Committee (5th Day) (Continued)
Amendment 132A not moved.
132B: After Clause 54, insert the following new Clause—
“Commissioning of police weapons, surveillance equipment or investigatory technology
(1) Save as provided for by regulations under this section or as specifically authorised under other legislation, no constable, police force, police and crime commissioner or other policing body may commission the development or deployment of weapons, surveillance equipment or investigatory technology.(2) The Secretary of State may by regulations—(a) authorise a relevant policing body to commission the development or deployment of weapons, surveillance equipment or investigatory technology specified in the regulations;(b) specify technologies or providers that may or may not be commissioned by any relevant policing body;(c) prescribe conditions that must be met by any technologies or providers if they are to be commissioned by any relevant policing body;(d) authorise a person, or panel of persons, to monitor such commissioning as is authorised and compliance with such conditions as are prescribed.(3) Regulations under this section must be made by statutory instrument.(4) Regulations under this section—(a) may make different provision for different purposes or areas;(b) may make financial, consequential, supplementary, incidental, transitional, transitory or saving provision.(5) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”
My Lords, Amendment 132B—a probing amendment—is in my name and that of my noble friend Lord Hain. The Committee will know that everyone here is engaged with scrutiny of the present Bill because we believe that police powers, criminal justice measures and the criminal law need to be on a clear and, for the most part, statutory footing—certainly on a clear legal footing. A brief skim of this very hefty piece of legislation will throw up references to well-established and legendary Acts of Parliament. The Police and Criminal Evidence Act is an obvious one, as is the Public Order Act; the list goes on. These measures, over the years, have come to govern police powers in particular: powers of arrest, investigatory powers, and so on.
However, because we are nearly a quarter into the 21st century, so much technological development—some of it just as intrusive as traditional powers of arrest and subsequent investigatory powers—has proceeded apace. I, for one, despite having been around this territory for a couple of decades, am not clear about the statutory footing for much of it. That is really the legal and constitutional basis for this probe, if I might put it like that. In a moment, my noble friend Lord Hain will use a more specific example that spurred us to table this amendment, even though that was only a couple of days ago.
In a sense, this is not that dissimilar to the amendment that the noble Lord, Lord Moylan, and many of his friends on the Benches opposite debated a few days ago. That was about non-crime information sitting around on databases, potentially to the detriment of citizens. His cry then, supported vociferously by people from across the Committee, but particularly that side, was that it must be on a statutory footing. The same must be true as a matter of law, not least the law of the European Convention on Human Rights but constitutional principle, in relation to the commissioning of weapons, surveillance equipment, investigatory technology and new algorithmic technology—much of which is currently under investigation by the new House of Lords Justice and Home Affairs Committee, ably chaired by the noble Baroness, Lady Hamwee, who is in her place, and comprising many illustrious Members of your Lordships’ House.
That committee is conducting a very important investigation. I recommend that the Committee takes a glance at some of the evidence that is emerging about how this technology is developing apace—sometimes commissioned by individual forces, sometimes by consortia of forces. Where, I ask the Minister, is the parliamentary debate, the public scrutiny and, ultimately, the hard legal and constitutional basis for it?
This is not to say that any particular technology is offensive per se—some of it may be very useful to criminal investigations and crime prevention in the public interest, but, goodness me, it needs to be on a statutory footing. Look at the way in which the extraction of mobile phone data developed and was not, for a considerable periods of time, on a statutory footing, what happened and how the Government then had to respond, even in this Bill. I am asking for a broader response to all of this kit—all of this technology. I beg to move.
I speak in support of Amendment 132B, in the name of my noble friend Lady Chakrabarti, to which I have added my name, and which provides for a new clause in the Bill. I ask the Minister to listen quite carefully and consider bringing back a government amendment on Report to address the issues that we have raised. There is a really important issue about the accountability and scrutiny of these developing technologies of surveillance and weapons.
The purpose of the proposed new clause is to ensure that drones and other new surveillance or weapons technology can be deployed by the police only within parameters and regulations set by the Secretary of State; in other words, it seeks to ensure proper parliamentary accountability and scrutiny rather than leaving it as a matter of exclusive police discretion. As my noble friend Lady Chakrabarti has pointed out, when, in the past, other forms of technological surveillance, and indeed digital technology, were not properly regulated, they started to encroach on privacy in a major way. We have all seen examples of that or experienced it ourselves.
Police in England and Wales are considering using drone-mounted cameras that could film high-quality live footage from 1,500 feet—457 metres—away, which raises concerns among civil liberties campaigners. The National Police Air Service—NPAS—which provides air support to 46 police forces, has asked private companies for information about systems that offer both airborne imaging and air-to-ground communication. A government website stated on 21 September:
“The imaging systems are intended for use on BVLOS (Beyond Visual Line of Sight) remotely-piloted aircraft systems: ‘Drones’.”
The NPAS told potential bidders that the systems should be capable of transmitting live, high-quality images even in low light, using electro-optical or infra-red systems. It said that this would enable officers to pick out detail such as facial features, as well as clothing and vehicle registration plates, at a distance of between 500 feet and 1,500 feet. The NPAS added that the cameras should be able to operate on a drone that stays in the air for up to four hours and flies up to 30 miles from the base station from which it is controlled.
Drones have been used by various English and Welsh police forces, including the Metropolitan Police, which has explained that they have been deployed to survey crime scenes and provide live footage of operations. That is all to the good as a response to serious crime. It seems, however, that the NPAS may plan a national rollout of drone technology, which raises all manner of civil liberty issues, including privacy, how much autonomy will be granted to private companies operating such drone technology for surveillance by the state, and whether it will target legitimate protesters as opposed to criminals and terrorists.
I ask these questions because these important issues cannot simply be a matter for operational police decision-making. They should be placed within an accountable regulatory environment that can be scrutinised by Parliament. CCTV is already ubiquitous and operated by private companies able to watch whatever we do, certainly in urban areas. Surveillance of the vehicles we drive is also universal. Big tech companies are increasingly monitoring almost our every move.
Deployment of police drones with algorithmic and facial recognition technology should be properly regulated. This is the essence of what I am asking the Minister to respond to. Drone surveillance has even been used to stalk dog walkers during lockdown. It is not acceptable for a Home Office spokesperson simply to say, recently:
“Use of drones is an operational matter for police forces.”
Nor is it sufficient for Ministers to say that the police are already subject to the Air Navigation Order and the general data protection regulation. Although it was reported in the Guardian that the Home Office says increased use of drones would allow police forces to replace helicopters, reducing noise and carbon emissions, that should not be a reason to duck the necessity for proper accountability and scrutiny. I stress, to the Minister and to your Lordships’ House, that this amendment does not seek to block police deployment of drones for legitimate purposes such as to tackle criminals, drug or people traffickers, terrorists, or racist or fascist demonstrations targeting black, Jewish or Muslims citizens.
The Undercover Policing Inquiry, to which I gave evidence earlier this year, has already revealed stark injustices and abuses of liberty and privacy. The High Court has recognised this in its recent judgment finding against the Metropolitan Police in a case brought by environmental protestor Kate Wilson, who was intimately and improperly befriended by undercover police officer Mark Kennedy. Other example like this were revealed by the Undercover Policing Inquiry. I mention these because they relate to accountability, scrutiny and proper regulation. One undercover police officer told the inquiry that she did not know why she was infiltrating one feminist group, as only four people attended a meeting she went to. But she was deployed in this way, instead of on serious undercover police work, such as what I saw and approved as Secretary of State for Northern Ireland. That was legitimate undercover police work.
This amendment is about ensuring drone technology is used to put serious crime under proper surveillance, is accountable and does not get out of control, as undercover police officers did. I have spoken previously in this House, on another Bill, about the improper use of undercover police officers to monitor and put under surveillance anti-Apartheid demonstrators, instead of pursuing the South African security services who were bombing Nelson Mandela’s headquarters in London. I will not go on about this, but my point is that the deployment of undercover police officers should have been more properly regulated. I hope that the current inquiry, headed by Judge Mitting, will produce recommendation to that effect, given that it was set up by the Government, which I welcome. The question is how deployment is regulated and who makes the ultimate decisions. I believe it should be based on a warrant—which I signed hundreds of, as Secretary of State for Northern Ireland and when substituting for the Home Secretary or Foreign Secretary—to deal with serious crime.
To give an example of what I think would have been a legitimate deployment of drone technology if it had existed then—I will describe this generally so as not to give away what was really going on—I witnessed graphic video-based surveillance of paramilitary members with guns seeking to attack fellow citizens in Belfast when I was Secretary of State for Northern Ireland in 2005. That was done for entirely legitimate purposes. I will not describe how exactly it was done because I do not think that should be publicly revealed. The operation of a drone in that situation—because drone technology did not exist in the form that it does now—would have been entirely legitimate and I saw at first hand the way it could be legitimately deployed.
However, I can also see how this could be spread, if it is simply an operational decision by police, to target non-violent demonstrators and environmental activists. We may not approve of their methods, but we have already seen members of Extinction Rebellion put on a terrorist list by police forces. When that was revealed they of course said that they should not have been. This is about parliamentary scrutiny and accountability. Without such accountability, how do we know that drone-based surveillance is not being targeted on illegitimate purposes like undercover police officers most certainly were?
If the noble Baroness is willing to look at this, and she might find some technical reasons why our amendment is not acceptable to her, it may be that the same kind of authority should be given as under the warrant procedure for authorising surveillance. As I have just explained, I signed hundreds of those as Northern Ireland Secretary of State and in other capacities. Maybe that is one of the ways in which ultimately the Secretary of State would take the decision and be ultimately accountable under the legislation that Parliament passes. Parliament can therefore scrutinise, if not every decision, then the general pattern of decisions made. We need something similar for drone surveillance and this amendment tabled by my noble friend provides for that. I hope the Government will address this so that we do not have to bring back the same amendment or a similar one on Report, because the Government will have recognised this is an important issue and taken the initiative themselves. I ask her to consider that.
My Lords, way back in 2004 I was the Deputy Mayor of London—when there was only one deputy mayor and not a whole host of them. In that role I attended DSEI, the arms fair. What struck me was that there was a terrifying amount of military equipment being sold and repurposed for use by police forces and Governments against their own citizens. That was a few years ago and I imagine the situation has got much worse since.
On another occasion I was outside a kettle in Whitehall chatting to the senior police officer trying to give him some good advice about how to communicate with the crowd. He had a phone call, he stepped away to take it and when he came back, he said “I’ve just been told not to speak to you any more.” I asked, “Who by?” and he pointed at the helicopter that had been flying over us. That was the first time I realised just how powerful the cameras were; they had not only been able to photograph me but also recognise me which, from the top of my head, I would have thought almost impossible.
There is always a great amount of mission creep with this type of technology and people can get carried away with it. Our own Prime Minister infamously wasted hundreds of thousands of pounds of public money buying illegal water cannons when he was Mayor of London. They ended up rotting down in Kent and I am not sure we ever managed to sell them—perhaps we sold them for scrap. As far as I know there is still no oversight or regulation of the facial recognition technology. I would be very interested to hear the Minister tell me about that, because I have been agitating for that for some time.
Amendment 132B would help bring the commissioning and procurement of weapons, surveillance equipment and investigatory technology under the supervision of the Government—whom, of course, we all trust. It is important to ensure that these technologies are commissioned coherently, with proper political oversight and judgment. Ultimately, these are questions about the balance of power between the state and the population. I would like to see even greater oversight—perhaps even a Lords Select Committee should be set up to consider these issues and make recommendations. I hope that the Government will listen.
My Lords, I support Amendment 132B in the names of my noble friends Lady Chakrabarti and Lord Hain. Most of us were blissfully unaware that there was something called the National Police Air Service. We might have thought of it monitoring traffic problems and advising on detours, or perhaps tracking a getaway car through the streets. We probably thought that our local police service was undertaking this. Certainly, we would have expected such a service to have been accountable.
We were somewhat surprised to find that responsibility for commissioning this service in England and Wales is held in West Yorkshire and is becoming part of the remit of the Mayor of West Yorkshire. It was unnerving to read in the Guardian that there is to be a massive development in the role of the National Police Air Service without reference to Parliament, especially as it is considering the use of the technologies which have been described and which take us into worrying areas of policing that involve the use of drones, possibly fitted with facial recognition technology, and greatly increase the degree of public surveillance. Can the Minister say how much, if any, of the information captured will be accessible to the private company involved in its provision?
Amendment 132B aims to ensure that the commissioning of such equipment should be a matter for Parliament so as to ensure proper accountability and scrutiny. If there is one thing we should have learned from recent concerns about policing, it is that all aspects of policing should be accountable and open to public scrutiny. The antithesis of accountability is having an election every few years for a police and crime commissioner who is usually elected on the basis of a low turnout with little local understanding of that person’s role.
Can the Minister reassure the Committee about another aspect of accountability? When contracts are awarded for aspects of policing, they should be transparent and not clouded by being classified as commercially sensitive and therefore less open to public scrutiny. As other noble Lords have said, I hope that the Minister will take account of this amendment and the nature of the concerns it expresses.
My Lords, the noble Baroness has referred to the Justice and Home Affairs Committee, which I chair. It is currently undertaking an inquiry into the use of new technology—I stress new, by which I mean artificial intelligence—and the application of law. I do not wish to pre-empt whatever the committee may recommend. We will certainly look at issues of so-called hard or soft regulation. We will also look at procurement standards, transparency—by which I mean intelligibility both to those who use AI and to those who are the subject of it—and accountability. The list of issues seems to increase with every evidence session. At a recent session, a witness said
“certain things with AI will always be the same. We will always have a data issue, a bias issue and an explainability issue”.
I do not think it appropriate to go into any detail this evening, other than to say, “Watch this space”.
My Lords, we support the principle of the amendment the noble Baroness, Lady Chakrabarti, has tabled. Picking up a theme here, facial recognition technology is an example of where officials are concerned. For example, the guy who is responsible for the regulation of CCTV has very serious concerns that the technology is running ahead of the regulations and that this needs to be addressed. As my noble friend Lady Hamwee said, the use of artificial intelligence is another new and developing area where Parliament should at least consider whether these new technologies need to be subject to debate in Parliament and regulation.
However, I am not sure about the example of drones, which are sort of a replacement for police helicopters. I left the police in 2007; 14 years ago, with something not very imaginatively called “heli-tele”, police helicopters could pick out people’s faces from however many thousand feet they were up in the air and transmit those images to officers on the ground who had television monitors in front of them. It was extremely useful to see where crowds were moving in a fast-moving demonstration situation. Clearly, you can have a lot more drones than you can have helicopters, because they are a lot cheaper and so forth. The increased use of drones may be of concern, but the way in which they are being used is no different from what huge helicopters have been doing for years, whether members of the public were aware of it or not.
The noble Baroness, Lady Jones of Moulsecoomb, talked about the Mayor of London and water cannon. Again, I think it was Theresa May as Home Secretary who refused to allow their deployment. Unfortunately, if the Mayor of London had actually listened to experts in public order policing, they would have told him that they are more or less useless for the sort of things he was hoping to use them for. I think he felt that water cannon would be useful following the widespread riots across the country. In fact, in that scenario they are completely useless. They are lumbering giants of things that cannot possibly keep up with marauding gangs going round and looting and so forth.
I think my noble friend Lady Hamwee has hit the nail on the head—it is new technology that needs to be considered and regulated, or at least debated in Parliament to see whether it needs to be regulated. To that extent, I support the amendment in the name of the noble Baroness, Lady Chakrabarti.
My Lords, I have very much been in listening mode on this. Amendment 132B would require the oversight of the Secretary of State for police bodies to commission or deploy weapons, surveillance equipment or investigatory technology. I welcome the questions raised. All the speakers have thought about this matter far more than I have, and I look forward to the Minister’s response with interest. I do not know whether she is an expert on heli-tele, but I take the noble Lord’s point that technology as a whole is running ahead of regulation. That goes to the heart of the points made today. I also take the points made by the noble Baroness, Lady Hamwee, on the purposes of her committee in looking at the possible regulatory approaches, such as a hard or soft approach.
Things are moving very fast; we all know that. We are all challenged in our day-to-day lives in the way we communicate with people. This institution has been challenged in the last 12 months, and things have changed dramatically. With an open mind, I look forward to the Minister’s response.
I thank the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Hain, for setting out their case for this amendment. I can do no better than echo the comments of the noble Lord, Lord Paddick, on heli-tele, which were absolutely to the point. I think the Committee is generally referring to some of the new, emerging technologies and the framework around them.
I have done quite a lot of work in Parliament on LFR and biometrics, but very little in this Chamber, so I am very pleased to have a chance to debate this with noble Lords this evening. I refer the Committee to some of the work I have done in the Science and Technology Committee on LFR, biometrics, forensics and so on. It makes for riveting reading.
We are really aware of the issues that noble Lords have raised. There are some links to the matters we debated on Monday relating to confidence in policing and the importance of policing by consent. We are mindful of the need to ensure that the police’s use of technology is appropriate, and it might assist the House if I begin by setting out some of the existing legal framework in this space. What noble Lords have talked about tonight covers a vast area, but I will give some of the headlines for a flavour of what we are doing.
The framework includes police common law powers to prevent and detect crime, the Data Protection Act 2018, the Human Rights Act 1998, the Equality Act 2010, the Police and Criminal Evidence Act 1984, the Protection of Freedoms Act 2012 and law enforcement bodies’ own published policies. This framework places important obligations on those responsible for the deployment of technology, including the need to undertake data protection and equality impact assessments, and has provisions to regulate automated decision-making where there are significant implications for the individuals affected.
I also want to assure the Committee that the Government recognise the importance of ensuring that there is strong evidence around the use of technology in policing. To this end, we supported the appointment, in June, of Professor Paul Taylor as the National Policing Chief Scientific Adviser. Ensuring that all technological developments in policing are based on good evidence and the best understanding of science is absolutely crucial. Professor Taylor chairs a police science and technology investment board, which demands rigorous quality assurance of all proposals. He is also represented on the relevant National Police Chiefs’ Council committees and is developing national research and development guidance with the College of Policing.
We also recognise the need for appropriate co-ordination of investment decisions across the policing landscape. Therefore, with oversight from the ministerially led strategic capabilities and investment board, we are supporting the development, mobilisation and implementation of the 10-year national policing digital strategy, to ensure that the right infrastructure is in place across policing to harness and exploit the benefits of data and analytical capabilities.
Work under way includes establishing an NPCC data board to promote a consistent approach to developing data literacy; assessing efficacy, ethics quality and standards; and establishing a central data office within the Police Digital Service, which aims to improve data management and sharing across policing. The data office will provide the essential infrastructure for the sector to ensure strategic direction, central co-ordination, and accountability on national expectations of locally held data. Work is also under way to develop a national data ethics governance model, building on the work West Midlands Police has done to establish an ethics committee to advise on data science projects. The national model will also be developed in collaboration with the Centre for Data Ethics and Innovation and the Home Office.
With regard to the noble Baroness’s points on the deployment of weapons, the Home Secretary approved the publication of the College of Policing’s Code of Practice on Armed Policing and Police use of Less Lethal Weapons. The code makes clear that all new less lethal weapons systems, certain specialist munitions and significant changes to pre-approved less lethal weapons systems require approval by the Home Office before they can be used by police forces in England and Wales. The code also sets out the United Nations’ principles on the use of force and firearms by law enforcement officials and that Governments and law enforcement agencies should equip law enforcement officials with various types of weapons and ammunition to allow for a differentiated use of force and firearms. These should include the development of non-lethal incapacitating weapons for use in appropriate situations.
We are very clear that, where appropriate, new technology is used to assist the police in the fight against crime and in protecting the public. Indeed, the public expect the Government to support operational partners in making the best use of technology to tackle serious harm such as knife crime, rape and serious sexual assault, child sexual exploitation, terrorism and other serious offences. We will therefore back and empower the police to use new technologies to deliver effect in a way that maintains public trust.
I will home in for a minute on LFR. For a while now, there has been a question about LFR being used in a legal way. Noble Lords who are geeks on this subject will know about the Bridges v South Wales Police case. The Court of Appeal said that there was a legal framework for police use of LFR which allows its use for policing purpose and where it is necessary and proportionate. The framework includes police common law powers to prevent and deter crime, data protection, equality and human rights legislation, the Surveillance Camera Code of Practice, and forces’ own published policies. The appeal also confirmed that forces’ published policies need to provide more clarity about when they will use this technology and who they are looking for when they use it. The College of Policing has now completed its consultation on national guidance to address the gaps, which it is intended will be published early next year.
I think the noble Lord, Lord Hain, mentioned the UCPI issue. As we discussed during the passage of the CHIS Act, what happened was not legal then and it is not legal now. I confirmed during the passage of that Bill that it would not, in any circumstances, be acceptable.
The noble Baroness, Lady Bryan of Partick, seemed to suggest that PCCs were not accountable because of the low turnout in elections. The point here is that they are elected and they set out their policing plan—in fact, they are becoming far more popular as local representatives of their people.
I want to address the point made by the noble Baroness, Lady Hamwee, about the Justice and Home Affairs Committee inquiry into the use of new technologies in law enforcement, which I am sure will touch on many of the issues raised today. We look forward to the report that stems from that and will study any recommendations very carefully.
Can the Minister say something more about facial recognition technology? She has covered this to some extent, but what is different from the heli-tele era that the noble Lord, Lord Paddick, described, or the incident in Belfast I described, when you did not have facial recognition technology? This is going that way if it is not there already, and does that not raise important regulatory questions, or is this being addressed by the committee she has just described? I would be grateful if she could elucidate.
I have not engaged with the committee. The committee could invite me, but I think it spoke to Home Secretary in the past few days. Live facial recognition is the comparison of images against a watchlist, whereas heli-tele seems to be—from what the noble Lord, Lord Paddick, was describing—aerial CCTV. The two are quite different and are governed under different laws. The LFR is a comparison against a watchlist, and that is why it is different.
I wonder whether the Minister will mind me intervening. My concern was not that the police and crime commissioners were not elected, but that the one that serves West Yorkshire is elected only by West Yorkshire, yet it is commissioning work on behalf of other areas in England and Wales that properly should be done here in Parliament.
My Lords, I am grateful to all Members of the Committee who spoke on this amendment. I want to be clear: it was a probe, and my ideal scenario would not even be for a regulation-making power in a great big criminal justice Act, it would be an Act of Parliament itself. I say to the Minister—and I mean this genuinely in a constructive spirit—that it was a Conservative Government in 1984 who introduced what is now the Police and Criminal Evidence Act.
What I am really saying is that there is so much of this kit and technology developing apace that we need something at least equivalent to the Police and Criminal Evidence Act to put questions of commissioning and regulation—of who decides what the tests are and what the accountability is in relation to all this development and commissioning of this new technology in the policing space—in one Act of Parliament. Again, it is not a partisan point; I would be saying this whoever the Government were. That was a really important piece of legislation in 1984, and the time has come for something like it. There happens to be another Conservative Government, and I think something like that will come.
What I said to the noble Lord, Lord Wolfson—sitting down—I said a couple of years ago to his predecessor: what is the legal basis of telephone extraction? I was told data protection and consent, or something of that kind. Here we are now, a couple of years later, in response to concerns, and there is going to be under this Bill a clear statutory framework.
I hope the noble Baroness does not mind me intervening, but I again refer her to the Science and Technology Committee, because the Policing Minister talked about gaps in the legislation. In fact, the honourable Member Graham Stringer was pleading for legislation, and I refer her to the comments the Policing Minister made in that regard.
I thank the Minister for that, and I will certainly go back to look at that. When she made her comments, I asked about the statutory framework, the legal basis. A list came back which began with the common law, the Data Protection Act, the Human Rights Act and the Equality Act—all good things—but my suggestion is that, as a matter of good governance, sound regulation and accessibility for the public—this is not about just civil liberties concerns and privacy but public money and accountability—all this regulation should be under one framework. That way there will be consistency across all 46 police forces in relation to where the commissioning should be, which providers are considered to be ethical and which are not, how they are to behave and what the conditions are, and then, once the technology has been developed, how it is to be deployed. I do not think it is asking a lot to suggest that this should all be under a single statutory framework. It would be something that the Minister and her Government could be proud of, and there could be a regulatory framework that could last for many decades, just as, broadly speaking, the Police and Criminal Evidence Act did.
I thank all noble Lords who spoke. To go back to my noble friend Lady Bryan of Partick’s point, where is the statutory underpinning of a National Police Air Service? Where is the Act says that says “there shall be a National Police Air Service”? I am not aware of it. Where is the Act of Parliament that set up a national College of Policing? I am not aware of it. It may exist somewhere, but I have not found it and I do not see it. I am not doing this to score points; I think it would be good governance and good legislation from which many generations and many Governments in future might benefit.
With that, and with my gratitude for taking this seriously, I hope that I have planted a seed for future thinking. The committee chaired by the noble Baroness, Lady Hamwee, on which I have the privilege to sit, will no doubt develop this conversation with the Minister in due course. I thank everyone for their patience and engagement, and I beg leave to withdraw the amendment.
Amendment 132B withdrawn.
Clause 62: Offence relating to residing on land without consent in or with a vehicle
133: Clause 62, page 57, leave out line 7 and insert—
“(d) a constable, following a request of the occupier or a representative of the occupier,”Member’s explanatory statement
This is a JCHR recommendation. This amendment would provide that, as part of the conditions for the new offence of criminal trespass only a police officer could request a person to leave land and only following a request by the occupier of the land.
My Lords, I am proud to open the debate on these amendments. They are a means of addressing another very serious departure from the principles of social justice by the Government. I support most of the amendments in the group, which are mostly different ways of tackling the same problem.
I will speak to Amendments 133 and 149 in my name and those of the right reverend Prelate the Bishop of Manchester, and the noble Lords, Lord Bourne of Aberystwyth and Lord Alton of Liverpool, for whose support I am very grateful. The lengthy trajectory of this Committee has prevented the noble Lord, Lord Alton, speaking in person, and the rail disruption after the sad accident near Salisbury has also derailed the noble Lord, Lord Bourne, who told me that he considers our amendments proportionate, sensible and wholly right.
I declare interests as president of Friends, Families and Travellers, co-chair of the All-Party Parliamentary Group for Gypsies, Travellers and Roma, and other positions as noted in the register. I am also grateful to the Joint Committee on Human Rights for its percipient report devoted wholly to the significant difficulties of Clause 62.
Our Amendment 149—the main one—would do away with the problem that the harsh and probably illegal provisions of Clause 62 purport to solve. If agreed, Clause 62 will not be the cruel anomaly that it is. The problem is, of course, the lack of authorised encampment sites, both permanent and transit, whether publicly or privately owned. Our amendment would oblige local authorities to provide adequate accommodation for Gypsies and Travellers residing in or resorting to their area—that is, permanent and transit sites as required. They are already required to assess the need for sites under planning law, so they should know what will be required in law. This means that Gypsies and Travellers would be treated on a par with other homeless families, except, of course at much lower cost than building housing, but because very many authorities have been so negligent in even making assessments, we have also provided a power of ministerial direction if need be.
The Home Secretary does not appear to understand the situation. On 8 March she wrote:
“As of January 2020, the number of lawful traveller sites increased by 41%”.—[Official Report, Commons, 8/3/21; col. 21WS.]
The error here is that this increase refers to transit pitches for individual caravans for a limited period of time. It actually resulted in only 10 additional transit pitches a year, not permanent pitches on permanent sites. There had in fact been an 8.4% decrease in the number of local authorities permanent pitches, as shown in Ministry of Housing, Communities and Local Government figures. Will the Minister apologise for this mistake on behalf of the Government?
The real picture is that, in January last year, for example, only eight of the 68 local authorities in south-east England had identified a supply of permanent deliverable sites to meet the unmet need. That means that 60 had not complied with the Government’s planning policy for Traveller sites. In January this year, there were at least 1,696 households on the waiting lists for permanent pitches in England. As of last March, the last funding round for applications for Traveller sites had awarded funding for only two schemes across the whole country, and that was only for new transit sites. In the context of the overall housing shortage, these numbers may not look large but they are huge in relation to the small number of Gypsies and Travellers who still travel—for instance, in January last year, there were only 694 of them—and to those who need to stay on permanent sites while their children are in school or their elders receive medical care.
It should also be recognised that living on caravan sites is part of the traditional culture of Gypsies and Travellers. They may no longer live a completely nomadic life but, as elsewhere in the world, they suffer distinct and often severe mental health problems when forced to live like the majority, and their suicide rate is high. As our judges have said, we do not have the right to deprive them of this aspect of their culture. Fitting up sites with electricity, mains drainage and rubbish collection is much cheaper than the cost of evictions. An arrangement for negotiated stopping sites in Leeds, where basic amenities were provided for a limited time, saved the local authority more than £2,038,350 a year.
The Bill makes no acknowledgement of these indisputable and bleak statistics. Instead, it criminalises trespass without any assurance of a legal alternative. It will deprive people of the only home they have and all their domestic possessions. This provision therefore deprives any people thus criminalised of their right under Article 8 of the European Convention on Human Rights to respect for their homes and for their private and family life, which, by law, includes respect for their traditional ways of life. Because it applies overwhelmingly to Gypsies and Travellers—the Minister was unable to tell me in our helpful meeting before Second Reading which other people had been the cause of complaint—it also breaches the right not to be discriminated against indirectly or directly in the enjoyment of other human rights.
As long ago as 2001, the ECHR ruled that there was
“a positive obligation on Contracting States by virtue of Article 8 to facilitate the Gypsy way of life.”
Since 1995, the UK has been a signatory to the Framework Convention for the Protection of National Minorities, Article 5 of which states:
“The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture”.
Scant respect is paid to this obligation by making it impossible for Gypsies and Travellers to have sites to live on. Our judges have struck down local authorities’ wide injunctions to deprive Gypsies and Travellers from using sites, saying this in 2020:
“It is a striking feature of many of the documents that the court was shown that the absence of sufficient transit sites has repeatedly stymied any coherent attempt to deal with this issue. The reality is that, without such sites, unauthorised encampments will continue and attempts to prevent them may very well put the local authorities concerned in breach of the Convention.”
I refer the Minister to the JCHR report, and the report of the Constitution Committee on exactly that point—and also to the police, who certainly understand the issues as they actually work out in practice, and said in their evidence to the Government’s consultation:
“In summary, we believe that criminalising unauthorised encampments is not acceptable. Complete criminalisation of trespass would likely lead to legal action in terms of incompatibility with regard to the Human Rights Act 1998 and the Public Sector Equality Duty under the Equality Act 2010, most likely on the grounds of how could such an increase in powers be proportionate and reasonable when there are insufficient pitches and stopping places?”
Some 93% of the police who responded to the Government’s consultation on the Bill called for more site provision as a solution to unauthorised encampments.
Finally, government action to redress the lack of sites is not at all a new idea. The Caravan Sites Act 1968, brought in by the much-lamented Lord Avebury, resulted in a large number of new sites, but it was shamefully repealed in 1994. Our amendment therefore restores this obligation, thus incidentally reflecting both Welsh and Irish solutions to the problem; the Government are out on a limb here, as elsewhere in this Bill. It was clear across the House at Second Reading that the Bill’s proposal is wrong—wrong in law, wrong economically, wrong logically and wrong morally. Our amendment would remove its main fault.
Amendment 133 is supported by the same distinguished cross-party list as Amendment 149. The difficulty with Clause 62 as it stands is the fact that a person would commit a criminal offence simply by failing to comply with a request by a private individual, rather than by a police officer or other authority. I think this is almost unheard of. Of course, landowners have a right to ask anyone to leave their property, but we do not in this country invite them to decide who is a criminal and who is not. The terms “significant damage”, “significant destruction” and “significant distress” are not defined and are highly subjective. Previous case law has decided that “squashed grass” can amount to damage. I need hardly add that this provision can elevate prejudice to a very odd status indeed. All well-informed people will know that there is an abundance of prejudice towards Gypsies and Travellers. Even earlier today in your Lordships’ House, the noble Lord, Lord Carrington, referred to “Travellers or tinkers”, which is acknowledged to be a pejorative term in this context, in connection with theft.
This amendment makes it clear that it is only a police officer, with all the training that they receive, their local experience and their publicly validated authority and accountability, who can make this request as a matter of law. I beg to move.
My Lords, I declare my interest as a vice-president of the Local Government Association. I am also a patron of the Traveller Movement and an officer of the All-Party Parliamentary Group on Gypsies, Travellers and Roma. The noble Baroness, Lady Whitaker, is a long-standing co-chair of that group, and it is a pleasure to follow her. I agree with everything she has said.
In this large group, I have added my name to Amendment 136 and to Clauses 62 and 64 stand part. I shall leave others to talk about the amendments, while I focus on the overall effect of those clauses and why they should not stand part of the Bill.
Since the mid-1990s, I have seen closely how society in our country manages its relationship with the Gypsy, Roma, and Traveller community. As chair of education in Cambridgeshire, we worked very closely with our Gypsy and Traveller community, and our schools, to make it easier for children to access school when their parents moved for work—usually, but not only, following the patterns of generations moving from farm to farm to work at whatever the seasonal needs required. The families that we knew found it hard to access education, and the difficult reception that they faced from very hostile communities meant that all too frequently, children were bullied, in and out of school. Our district council community officers worked closely with these families to support them. The most distressing things that I heard directly from families then are still true today, and possibly even worse, because now, adults, including teachers, abuse and bully Traveller families, and even children in school.
On Clause 62 on unauthorised encampments, it is worth remembering that well over a decade ago, local government was asked by the Government to provide more authorised encampments based on the planning needs of their own Traveller communities. The reality was that far too many councils not only did not create the number of encampments needed in their area but have closed other existing ones. As a result, it is harder for a family to find a pitch on an authorised encampment. Without a base, it is much harder to access services such as education, health and even work. It is a vicious circle that this clause makes much worse.
Friends, Families and Travellers conducted research into compliance with planning policy for traveller sites and assessed the need and supply of Gypsy and Traveller pitches in 2016, and again in 2019, analysing Gypsy and Traveller accommodation assessments and local plans from all planning authorities in the south-east of England. The most recent findings revealed shockingly low numbers, with only eight out of 68 local authorities meeting their identified need for Gypsy and Traveller pitches. There is a similar picture across the country.
Despite the statements of the Home Secretary, there was an overall 8.4% decrease in pitches on local authority Traveller sites between 2010-2020. As a result of these pressures, the Gypsy and Traveller community, working with local authorities and landowners, has created other solutions to managing encampments that have been developed over recent times, such as negotiated stopping, where arrangements are made on agreed stopping times and to ensure the provision of basic amenities such as water, sanitation and refuse collection.
Part 4 of the Bill contains some of the most hostile legislation seen against one community. The introduction of a new criminal offence where trespassers have the intent to reside will apply when a person is residing, or intending to reside, on land without consent and has been asked to leave by the occupier, their representative or the police; has at least one vehicle with them on the land; has caused, or is likely to cause, significant damage, disruption or distress; has failed to comply with this request as soon as reasonably practicable and has no reasonable excuse for doing so. Failure to comply without “reasonable excuse” can lead to the police exercising powers to seize a vehicle—and let us remember that that is someone’s home, with all their possessions in it—as well as imprisonment and a fine. All these measures are completely disproportionate, but the severity of the seizure of a home and possessions is extraordinary.
The impacts of these measures will be catastrophic for an individual and a family suddenly without a home or possessions and with potentially any family member over 18 years of age thrown straight into the criminal justice system. Beyond the immediate impact, this will also affect the welfare of the whole family and severely impact on the children, who would lose their home and could face children’s services interventions, possibly with the family breaking up.
These proposals are being put forward despite the existence of a range of other eviction powers for encampments, and despite the range of alternative solutions grounded in a humane and common-sense approach, such as the provision of more sites and stopping places. There are already a wide range of eviction powers for encampments, which can be exercised as swiftly as within an hour and which can be triggered if incidents of anti-social behaviour occur. These enable a response based on conduct, not on what a landowner might think is “likely”. The powers will disproportionately affect this minority and ethnic communities, and are likely to be in conflict with equality and human rights legislation, as the noble Baroness, Lady Whitaker, has outlined.
These clauses are part of a sustained attack on the Gypsy, Roma and Traveller communities. In May this year, Matthew Parris wrote an article in the Times headlined, “It’s time we stopped pandering to Travellers.” He went on to say that
“there is no place for the true nomad in modern Britain.”
I beg to differ. We have human rights legislation to protect those rights that are being destroyed.
Regarding Clause 64, the police do not want these more draconian powers. The National Police Chiefs’ Council issued operational guidance on the policing of unauthorised encampments, which has been agreed by all chief officers in England, Wales and Northern Ireland. It states:
“The co-ordinated use of powers available under the Criminal Justice and Public Order Act 1994 allows for a proportionate response to encampments based on the behaviour of the trespassers.”
In the NPCC 2019 response to the Government’s 2019 consultation on unauthorised encampments, the NPCC said that,
“the possibility of creating a new criminal offence of intentional trespass or similar has been raised at various times over the years but our position has always been—and remains—that no new criminal trespass offence is required.”
However, it is not just the concerns of the police. Frankly, the subjective nature of the language in Part 4 leaves the powers wide open to abuse. One example will suffice: the use of the word “significant”. “Significant” is a threshold requirement, which the Supreme Court recently characterised as,
“like the skin of a chameleon, the adjective takes a different colour so as to suit a different context.”
In other contexts, the word “significant” has caused confusion and required consideration by the Court of Appeal following many years of litigation. Will the Minister explain to the House where we can find a definition of significant that would satisfy the Court of Appeal and the Supreme Court, and not leave these clauses open to abuse?
I find particularly chilling the new role of a private individual in triggering a criminal offence. It could mean the powers are misused, particularly where prejudicial views exist. That is why I support the various amendments in this group that try to clarify and make it plain that only authorised police officers should do that.
The definition of a Gypsy or Traveller in planning terms requires proof of travelling: without that, you are not assessed as needing a pitch or planning permission, but the community’s ability to travel will be severely impeded. We are back to that vicious circle. It is another attempt to force people into settled homes against their traditions, their wishes and their human rights. I look forward to hearing the contributions of other noble Lords, but in the meantime, I believe that the best thing possible for Clauses 62 and 64 is to remove them entirely from the Bill, and for the police and other public bodies to rely on the existing legislation.
My Lords, I support Amendments 133 and 149 in my name and the names of the noble Baroness, Lady Whitaker, who has spoken so eloquently, and the unavoidably absent noble Lords, Lord Alton and Lord Bourne. I also wish to support Amendment 147 in the name of the noble Lord, Lord Rosser, and others. I refer noble Lords to my interest in policing ethics that is set out in the register.
As I said at Second Reading, Gypsy, Roma and Traveller people have been a vital part of the economy of our nation—not least its agricultural sector—for many generations. Their mobility has enabled them to provide labour at the point of need for shorter or longer periods of time. The consequence of that very flexibility is that they have not acquired fixed land, property or dwellings over generations, but are constantly at the whim of the availability of sites and pitches for their vehicles and caravans. The labour shortages that presently beset us might serve as a reminder that we owe a debt to those who have provided a flexible workforce in times past. Instead, this Bill seeks to push them towards criminality while making no adequate alternative provision for them.
Amendment 149 is vital to the integrity of the Bill. It will repair the damage caused by the repeal of the Caravan Sites Act 1968 and give local authorities a statutory duty to provide authorised sites and adequate numbers of pitches. The present law is clearly failing, as the noble Baroness, Lady Whitaker, said, and as the noble Baroness, Lady Brinton, reiterated. Sixty out of 68 authorities in the south-east are not at present complying with the Government’s own planning policy. The problem with Clause 62 as it stands is that it seeks to respond only to the consequences and not to the cause. The world-renowned Desmond Tutu, formerly archbishop of Cape Town, famously remarked that it is not enough to fish bodies out of the river; we need to take a stroll upstream to see who is throwing them in. Amendment 149 addresses the cause directly; indeed, with it in place, as the noble Baroness, Lady Whitaker, said, there may be little need for any of Clause 62 as drafted.
The present situation, with a planning policy but no clear statutory duty, places local authorities in an unenviable position. There are few, if any, votes in providing sites for Travellers; if there were, undoubtedly the planning policy would be upheld. On these Benches, we understand that sometimes the role of a bishop is to take responsibility for the unpopular decision that no parish priest dare take for fear of alienating some among their congregation. Amendment 149 will provide similar support for local councillors and council officers who seek to provide for Gypsy, Roma and Traveller people, sometimes in the teeth of hostile and prejudiced opposition.
Sometimes Ministers respond to requests for amendments such as this by indicating that the issue has merit but that some other, future Bill is the more proper route through which to deal with it. However, in this case, such argument should be afforded very little weight. Amendment 149 is not tacked on to a clause seeking to deal with very different matters; it lies at the heart of tackling the issues that Clause 62 purports to address. If there is to be a Clause 62 at all—and that is a matter for your Lordships’ consideration —this amendment is central to it.
I now turn briefly to the other amendments to which I have referred. I am grateful for the draft statutory guidance the Minister has shared with some of us: I hope that this indicates a willingness to work with those of us particularly interested in the clause. However, as it stands, it does not provide adequate safeguards against the clause being used prejudicially. Nor does it tackle the points of principle that amendments in this group seek to address. Amendment 133 may seem a matter of detail, but it is important detail. It is a matter of principle. As the noble Baroness, Lady Brinton, said, to allow a landowner or other third party to escalate a matter of trespass to the level of a criminal offence without reference to any constable is a very grave matter. It could provide statutory support for decisions taken on pure prejudice. A judgment on whether particular circumstances constitute criminality is not something that, in situations such as this, should be devolved to any private individual, let alone one who may have a direct interest in the land or property in question.
As well as these matters of principle, there are strong, pragmatic reasons for this amendment. The presence and leading role of a police officer will be an important safeguard against abuse of the law, as well as assisting in providing a robust evidential chain should a prosecution follow. I hope the Minister will be able to accept this modest amendment or agree to meet us to find a mutually acceptable alternative before Report.
Finally, Amendment 147 seeks to include Gypsy, Roma and Traveller people within the same general safety net that applies to other households. The law properly places a high bar on depriving anyone of their home. The process by which a mortgage lender or residential landlord can evict a person from their dwelling is surrounded by robust safeguards. It takes time, and it should take time. Those affected, who may include children, vulnerable adults and others to whom a relevant local authority may have a duty to provide accommodation, need to be afforded adequate protection from seizure while they either identify and move to an alternative location or are given access to some other safe and secure place to live.
The safeguards that your Lordships’ House has enacted over many years and that mitigate the risks of homelessness for the vast majority of other members of our society cannot simply be disregarded and disapplied, or reduced to the level of statutory guidance, when it comes to this one small section of our community. Where such basic rights are to be lost, it should surely require far more egregious circumstances than the offence of criminal trespass that this clause seeks to create. All these matters would be far better dealt with in a Bill focused on the provision of safe and secure accommodation for all our people, including those whose lifestyle and culture is rooted in travelling. If Part 4 is to remain as a small and ill-fitting part of this very wide-ranging piece of legislation, we have much work to do to make it fit for purpose. I believe that the amendments to which I have spoken form a necessary part of that revision.
My Lords, I will speak quickly, because I am speaking on behalf of my noble friend Lady Bennett of Manor Castle. It is wonderful to see such a huge coalition of Peers tabling amendments and speaking on this issue. I imagine that Gypsy and Roma Travellers, peaceful protesters, van-lifers, wild campers and anyone else threatened by this proposed legislation will be glad to see the opposition that is coalescing in your Lordships' House, and I foresee a struggle for the Government on this. Far from criminalising trespass, we should be opening up more land for access to the public and enhancing our enjoyment of our magnificent countryside.
We should remove these clauses completely. It is a nasty section of the Bill. It is discriminatory and dangerous. It will be to the detriment of the reputation of the Government—if it can be any more damaged—if they struggle to keep these clauses in. There are many other useful amendments in this group that we support, but the Government would be very wise to compromise on this issue.
My Lords, it may well be that the Government are wise to compromise on this issue. There is a fair amount in Part 4 that has excited controversy in this House, in the other place and among the wider public. But I would not want it to be thought that, because Part 4 and the clauses that may be subjected to these amendments—which have been articulately and powerfully advanced by the noble Baroness, Lady Whitaker, and those who have spoken after her—are rightly subject to trenchant criticism, for all the reasons that have been advanced so far, the solution that appears in the amendment paper is necessarily the right one. The proponents of the amendment may well be right, but the solution they put forward to deal with the legitimate problem they have identified may not be. Unquestionably, the number of Traveller sites provided by local authorities is woefully small and may well be one of the great reasons for Gypsies, Roma and Travellers trespassing.
I just want to gently put a slightly different line of thinking. Twenty-five years ago, as a Member of Parliament, I was rung by a very distressed farmer in my constituency, whose land was being trespassed on. I do not know if they were people who come within some statutory definition of Traveller, though they certainly were not Gypsies or Roma. They had a host of trucks, most of which were unlicensed. There must have been about 40 individuals—men, women and children—trespassing with these vehicles. They also had dogs, and these dogs were running wild and disturbing, damaging and, in a few cases, killing my constituent farmer’s sheep. I fully appreciate that requiring one of the conditions in this clause through the amendment to be triggered by the presence or the say-so of a police officer would provide greater certainty that something unlawful was happening. I say unlawful, because that covers the civil aspect of this as well.
However, if in a rural constituency you cannot remove people from your farmland and they are causing damage to your livestock, you will be placed in quite a difficult position. Yes, of course you can go to the county court or some other court within our system and apply for an injunction, but if you are in the middle of rural England, you need to get organised, get there and make quite difficult arrangements. You need to make the application for the injunction to remove these trespassers, but you also need to identify the trespassers. The ones that I saw on this particular occasion were not the least bit interested in telling me who they were.
I put forward a gentle plea. I accept all that the right reverend Prelate and the noble Baronesses, Lady Whitaker and Lady Brinton, said, and to some extent I accept what the noble Baroness, Lady Jones, said. However, when we are considering this difficult problem and how to solve it, we also need to think about the innocent farmer whose livelihood is put at risk by people who are not interested—albeit they may have housing, education and employment questions that need answering— in the farmer’s right to earn a living and to do so undisturbed.
My Lords, I declare my interest as a vice-president of the LGA and a member of the APPG on Gypsies, Travellers and Roma. In speaking to this important group of amendments I thank the noble Baroness, Lady Whitaker, for her powerful speech and the noble Lord, Lord Rosser, for tabling the amendments to which I put my name.
All these amendments deal with the issue of residing on land without consent. Amendment 135 states that a police officer can ask P to move only if there is a relevant caravan site within the local authority area. Last Thursday the noble Baroness, Lady Young of Old Scone, initiated a debate on the importance of having a land use strategy. In my contribution I stressed to the Minister that as part of a land use strategy, all local authorities should identify land for a Gypsy, Roma or Traveller site. Unless all local authorities, regardless of where they are, have sites identified and fully serviced for the use of the Travelling community, Part 4 of the Bill will result in huge miscarriages of justice.
This amendment is based on a JCHR recommendation and would mean that a person commits a crime of trespass only if they refuse to move when there is a space on a site within the local authority area, so sites must be available in all local authority areas. Amendment 136 requires a senior police officer to conduct consultations with relevant bodies and carry out an assessment of the personal needs of those on the land, including children. I can envisage a situation where such an assessment is not carried out, the families are evicted from their home and their vehicles seized. The adult family members would do all in their power to prevent this happening, which could result in them being classified as committing offensive conduct such as verbal abuse and threatening behaviour. That could result in them being detained in prison, with the result that their children, having been left homeless by the seizure of their vehicles, would be taken into care.
Just what problem is this part of the Bill trying to solve? As far as I can see it is creating problems on all fronts.
Amendments 137 to 142 would leave out the words
“or is likely to be caused”
in respect of the aggravation that is anticipated when the Travelling community arrives on the land. It is not sufficient to anticipate that there will be damage and disruption; it has to have occurred before any action can be taken. How do the police proceed if they believe that a burglary is about to be committed? Do they arrest the likely culprit while he or she is doing their shopping or bathing their children, and no crime has yet been committed? No; they have to wait until the actual crime is in process before acting.
This classification of the Travelling community as villains of the piece has to stop. They have become the last section of our communities that it is acceptable to vilify and discriminate against, and they are marginalised simply because they choose a different way of life to the settled community. They are bullied both as children and adults, and their way of life is not respected.
Amendments 143 and 144 remove the penalty of imprisonment. As it is, Gypsies, Roma and Travellers are already over-represented as a classification in our prisons. Why on earth would the Government wish to add to this? This is 2021; it is simply unacceptable to penalise a section of our population in this way because of their way of life and the culture they wish to follow.
Amendment 145 removes “insulting words or behaviour” from the definition of “offensive conduct”. In my experience, the Travelling community themselves are more likely to be recipients of insulting words and behaviour than to be doling them out.
In the draft guidance circulated by the Minister, under “Significant”, it says:
“distress caused by offensive conduct such as verbal abuse and threatening behaviour. This may include a level of distress which changes behaviour, rather than distress which amounts to ‘disgust’. For example, this may include behaviours which may cause fear when walking close to the encampment which prevents a person from leaving their house.”
This is complete rubbish. The Minister must think again. This is not the way in which a civilised country behaves.
I have put my name to Amendment 151. The Delegated Powers and Regulatory Reform Committee was impressed by the number of inappropriate delegations in the Bill. It was particularly concerned at those in Clause 64 concerning trespass, which it felt should be the subject of parliamentary scrutiny.
I have spoken in this Chamber before of the public meeting I chaired many years ago when looking for a transit site for Gypsies. At that meeting, it was thought appropriate for one man, a local authority councillor, to stand up and say that the only thing to do with Gypsies was to stand them up against a wall and shoot them. All people deserve to be treated with respect and have their way of life respected. All deserve to have a home in which to bring up their children and care for their elderly relatives. If this is a caravan, then so be it. It is not for me or anyone else to judge that this is unacceptable.
It is the role of local authorities to provide adequate land for housing for their current residents and to anticipate what will be needed in the future. That provision must include sites for caravans and vehicles for the Travelling communities, both permanent sites and transit sites for those passing through. This is not rocket science, as the saying goes; it is basic human rights.
I have put my name to Amendment 147, which would prevent a police officer having the power to seize a vehicle that is a person’s home. Imagine a family, living in such a vehicle, that has managed, against the odds, to get their child into the local school. The mother is expecting a second child and has managed to get an appointment at an ante-natal clinic while her child is in school. She picks her child up from school and they return to find that their home has been seized and removed. They have nowhere to go, nowhere to prepare a meal and nowhere to sleep for the night. What other section of our community would be treated in this way? My noble friend Lady Brinton has spoken passionately about this. The Minister and the Government really need to think again.
Amendment 151 would ensure that this happens and that the guidance, which is not the same as the law itself, is properly scrutinised. There are many instances when the Government issue guidance on a subject but do not actually issue a statutory instrument which would make this a legal requirement. This causes confusion and is extremely unhelpful. Given the nature and serious consequences of this part of the Bill, I support others in attempting to ensure it is removed and made fit for purpose. I look forward to the Minister’s response.
My Lords, I have listened with interest to what noble Lords have said on this group of amendments, and I rise to add my support to them, particularly Amendment 149.
In 2019, the General Synod, the parliament of the Church of England, held a serious and lengthy debate on the treatment of Gypsy, Roma and Travelling communities. It noted the long and ugly history, going back at least as far as the Egyptians Act, passed by your Lordships’ predecessors in 1530, which sought to ban further immigration from Romani Gypsies and to deport resident Gypsies.
In preparation for that debate, a paper was circulated, entitled Centuries of Marginalisation; Visions of Hope. This was both sobering and a call to action. It was a challenge to the Church to do more, including providing sites and freeing up land. We have not made enough progress on the promises made at that time. In all humility, I should say that the Church, like so many other social institutions, has too often fallen short or even been complicit in the discrimination and marginalisation felt by these communities. That has been a failing on our part, and it was chastening to listen to the stories in that debate and to hear the level of abuse, discrimination and pain which has been caused. The synod’s resolution called on the
“Bishops in the House of Lords to continue to speak out boldly against legislation that seeks to further marginalise Gypsies, Irish Travellers and Roma”.
It is in that vein that I feel the need to address the Committee today, because I fear we are in danger of making the situation still worse.
It is 10 years since Michael Hargreaves and Matthew Brindley wrote in Planning for Gypsies and Travellers, a publication by the Irish Traveller movement, that
“There are no stopping places, few transit sites, no emergency sites and families on the road face constant eviction”.
The lack of permanent sites and the difficulties of getting planning permission due to local opposition, egged on by a hostile media, is the single biggest issue facing the Gypsy and Traveller communities. Not only has this not changed in the intervening decade but the Bill risks significantly exacerbating the situation.
Amendment 149 would be a small but necessary remedy to that exacerbation, returning us, as several have already noted, to a previous status quo. It would remove the current tyranny of the majority problem, which sees sites for Travellers weighed against electoral concerns. Unauthorised encampments are a consequence of inadequate authorised ones. This is not new, nor is it surprising, but it is possible to remedy—and I would urge Ministers to give serious consideration to this amendment.
Repeatedly, Ministers have told your Lordships’ House and Members in the other place that the Bill does not represent an attack on the Gypsy, Roma and Traveller way of life. Yet that sentiment is clearly not shared by many in those communities who have written to Bishops, and, I am sure, to other Members of your Lordships’ House, in advance of this Bill. It is certainly not the opinion of the Churches Network for Gypsies, Travellers and Roma, to which I would like to add my thanks, along with my friend the right reverend Prelate the Bishop of Manchester and the noble Baroness, Lady Whitaker. I hope that it is not too late for the Government to take steps to ameliorate what is presently proposed.
My Lords, I will speak to Amendment 136, to which I have added my name, but I support all these amendments, which attempt to mitigate the injurious effects of Part 4 on one of the most marginalised communities in our society. I will leave to the end my more general comments relating to the clause stand part debate, and I apologise for not being able to make it to Second Reading, because I was away.
In an earlier consultation, the EHRC expressed concern about more powers to evict or ban encampments and reminded the Government that all such powers
“must be exercised with a full awareness of the occupiers’ welfare needs, human rights, and, where applicable, their entitlement to protection under the Equality Act”.
They emphasised that
“These cannot be circumvented by new powers.”
As has already been made clear, there is a widespread fear that the powers contained in this Bill will circumvent these important principles.
For now, I will focus on welfare needs. We are talking about a group of people who already suffer significantly worse health, both physical and mental, than the general population and who can look forward to significantly shorter life expectancy. Their children do worse in the education system, including being more likely to be subject to exclusions. The National Equality Panel, of which I was a member, was quite shocked by the level of disadvantage suffered by the community, which we found “very troubling”. While that was a decade ago, the Minister then responsible for these issues, the noble Lord, Lord Bourne, acknowledged
“that members of Gypsy, Roma and Traveller communities continue to face some of the steepest challenges in society”
“Health, education and housing inequalities are considerable”.
These inequalities, as we have heard, are likely to increase as a result of this Bill, and in particular it is likely to lead to an increase in homelessness. Have the Government really thought through what it means to have one’s home confiscated?
The impact of eviction, or fear of eviction, on children in particular can be frightening and traumatic, as Children’s Society research has shown. As has already been said, we are potentially talking about children experiencing homelessness as the result of forced eviction from their home, which could lead to them being taken into care, particularly if their parent, parents or carers are jailed. Has the Home Office calculated the potential knock-on costs for local authorities? In what way can such a measure, which potentially interferes with the child’s right to family life, be “necessary and proportionate”, as required by Article 8 of the European Convention on Human Rights? In what way can this possibly be in the best interests of the child in line with the UN Convention on the Rights of the Child?
I agree with Friends, Families and Travellers, whose briefings have been invaluable, that, in the Government’s failure to take into account the impacts on Gypsy and Traveller children, particularly of repeated eviction, parental imprisonment, interactions with the social care system and lack of respect for cultural identity, the Bill may be in breach of the convention.
I do not doubt that the Minister will respond that the draft guidance to police makes clear they must make proper welfare inquiries in line with their equalities and human rights obligations before taking action. But this injunction is totally undermined by the statement that the police, alongside other public bodies,
“should not gold-plate human rights and equalities legislation”.
Could the Minister explain exactly what is meant by “not gold-plate”? On the face of it, it would appear to be an invitation to set aside human rights and equalities and welfare concerns when deciding whether or not to apply a law which could criminalise people in vulnerable circumstances for causing supposedly “significant”—and we have already heard the problems with that word—damage or distress; this could, it would appear, be as trivial as smells or smoke from a bonfire.
Ministers repeatedly have said that they remain committed to delivering a strategy to tackle the inequalities faced by the communities most likely to be affected by this legislation. While that is a welcome recognition of the disadvantages they face, this strategy was promised well over two years ago, in June 2019. Yet when I asked those at FFT about the strategy, they said that they have seen nothing since that amounts to such a strategy. Apparently, it has been held up by Brexit and the pandemic. Could the Minister please update us on where the strategy—which is supposed to be a cross-departmental strategy—has got to, and give us an assurance that full details will be published before Report? Otherwise, any reference to this strategy is just empty words when we are considering legislation that will increase the “entrenched inequality”, to quote the noble Lord, Lord Bourne, when Minister, faced by Gypsies, Roma and Travellers.
More generally, I believe that these clauses should not stand part of the Bill. I will expand briefly on the reasons already given. First, they criminalise one of the most marginalised communities in our society on extremely flimsy grounds. Secondly, they give rise to several human rights concerns, as documented so well by the JCHR, and also voiced by the Council of Europe’s Commissioner for Human Rights, in a most unusual letter to the Lord Speaker, which asks us not to accept these provisions. Thirdly, in the words of the JCHR:
“The proposals self-evidently discriminate against Gypsy, Roma and Traveller people, putting at risk their right to practise their culture without being unfairly criminalised in the absence of adequate sites.”
I suggest that the Government have been somewhat disingenuous in how they have responded to accusations that these proposals are discriminatory. On the one hand, they assure us that the proposed offence will not apply to various groups about whom concerns have been raised, such as the homeless, although here they have ignored the extent to which homeless people might sleep in vehicles; on the other hand, they argue that it is not targeted at any particular group, meaning the GRT community. Yet clearly it is targeted at this group. Could the Minister explain who else is likely to be the target?
The equality impact assessment acknowledges that there may be an indirect discriminatory impact but argues that this can be objectively justified, albeit not to the satisfaction of the JCHR or the Council of Europe’s Commissioner for Human Rights. Ministers repeatedly counter accusations of discrimination with the assurance that the proposals will not affect the vast majority of Travellers, who are law-abiding citizens. We agree that the vast majority are law-abiding. The whole point of our concern is that this punitive legislation, with its imprecise wording, is likely to turn many of these law-abiding citizens into officially second-class, non-law-abiding citizens. The draft guidance has done nothing to assuage this concern. It will disproportionately affect the Traveller community either directly—because they are unable to avoid its requirements in the absence of adequate sites—or indirectly, because of the fears to which it has given rise. Can the Minister say to what other group the Government expect the legislation to be applied, and on what basis? I have yet to hear or read any convincing rebuttal of the charge that this clause will be discriminatory in its impact.
My Lords, in responding to this group of amendments, I shall make four points with varying degrees of effort.
First, I commend the work of the noble Baroness, Lady Whitaker. She is one of the few people in Parliament who is prepared to speak up for the GRT community, which she has done for many years. In this context, we should also remember the work of the late Lord Avebury. It really shows the benefit of having an appointed House, complementing an elected one. While my next point might not find favour with the noble Baroness, I hope that she, and other noble Lords, will be rather more relaxed regarding my last two.
Secondly, we keep discussing the unwillingness of local authorities to provide sufficient sites for Travellers to meet the demand. A possible concern of local authorities is that demand might be insatiable. A far bigger concern is that local authorities are answerable to their electorates. As we have discussed, there is no sector of our society more despised and feared than the Travellers. I accept that local authorities have legal obligations and that they are not adhering to them.
It may help the Committee if I describe my own lived experience, which is not unusual for people who operate in the countryside. I have a small workshop near Basingstoke where I undertake pro bono engineering work, largely in support of a museum that is a registered charity. Every single day I go there, I have to expend 30 minutes of work releasing and, later on, securing my equipment so that it is too difficult for Travellers to steal it. In the countryside, everybody has to take similar anti-Traveller precautions, which are expensive and result in significant loss of productivity.
One day, the heavy-duty padlock for my workshop container was literally ripped off the door mechanism. Fortunately for me, there was nothing of interest to them inside. It was thought that they were looking for quad bikes. Soon after, and near that location, a farmyard complex was broken into and a quad bike was stolen. At a nearby farm, Travellers broke into a 40-foot shipping container. They applied such brutal force to the lock mechanism that the container was shifted 12 inches from its original position. Fortunately, there were no quad bikes to steal. I mention quad bikes because, in August 2019, PC Andrew Harper was killed by Travellers resisting arrest for the theft of a quad bike.
It may surprise the Committee and the outside world to hear that I am not wealthy. I am the original impoverished Earl. However, in January 2012, I was able to buy the one and only new vehicle that I have ever owned. It was a Land Rover Defender and, to put it mildly, I became emotionally attached to it, as most Defender owners do. On 21 October, when I was in your Lordships’ House, that vehicle was stolen from a railway station. It is very unlikely that I will ever see it again. It was most likely in a shipping container before I left your Lordships’ House.
Obviously, I cannot claim that it was stolen by Travellers. What I can report, however, is that when Hampshire police successfully raided a Traveller site near Odiham on 25 October, they recovered about 25 vehicles, including three Land Rovers and several quad bikes. Sadly, mine was not among them. I understand that this well-planned operation required 60 police officers in order for it be undertaken safely and without risk of disorder. This would have been a force-level operation and would have taken some time for the police to plan.
The inescapable fact is that, collectively, Travellers are above the law. When the police have good reason to believe that stolen goods are located at a Traveller site, there is little they can do about it. I asked the noble and learned Lord, Lord Falconer of Thoroton, a Question on this very point on 15 October 2002. Afterwards, when we had a chat in the Prince’s Chamber, he said to me, “Not bad, not bad.”
My third point, which may be more palatable to most of the Committee, is that the provisions in the Bill are unlikely to help much, if at all. Despite the difficulties being experienced by the police, which I have already referred to, according to the Prison Reform Trust’s Bromley Briefings, 5% of the prison population identifies as being from a Gypsy, Roma or Traveller background. This is a totally disproportionate ratio that cannot be accounted for by bias, although bias probably exists to some extent. It is clear to me that a large proportion of the Traveller population is illiterate, innumerate and unable—and unwilling—to engage in exclusively legitimate economic activity. The youths convicted of killing PC Andrew Harper, I understand, fall into that category. However, I do not believe that a nomadic lifestyle cannot be legitimate. There must be plenty of things that Travellers can do to help our society.
My fourth and final point concerns solutions. How to prevent the Traveller community bringing up their children with the weaknesses and defects I have referred to is a complex social and cultural problem, and is not for me. The prison system is a different matter. According to the chief inspector’s monotonously depressing reports, all we do with prisoners of this nature is keep them in one building with extremely limited purposeful activity, fail to address their weaknesses and then wonder why we have a general reoffending rate of about 65% within 12 months of release.
One day, the Committee will consider my Amendment 241, which proposes drastic reform in respect of prolific minor offenders. It is targeted particularly at offenders who are illiterate, innumerate and whose personal conduct falls far below the standard required. However, it is not the whole solution for Travellers. There are some very complex social problems to be solved. Sadly, the Bill’s simplistic provisions do no such thing as they address the symptoms and not the underlying causes.
Can I ask the noble Earl a question? It seems, from listening to his speech, he is saying that all Travellers are criminals. He did not quite say that all criminals are Travellers, but he got some way towards it. What is his solution? Is it to deport them to some offshore island, so they do not affect our way of life?
When the noble Lord looks at my speech carefully, he will see I said there is legitimate economic activity for Travellers. I accept that plenty of Travellers engage exclusively in legitimate economic activity. I decided not to tease the noble Lord and ask him who he thought was stealing all the electrical cables from the railway system.
My Lords, the lateness of the hour and eloquence of many of the speeches tonight mean that I can be brief, but I feel compelled to say a few words in this debate. First, to the noble Earl opposite, to cite particular crimes committed by particular people of whichever community is no justification for a measure that targets all members of that community. We could all cite the statistics of people in prison. We know, for example, there is a disproportionate percentage of black and brown people in prison. Would that justify further criminalisation and demonisation of people who look more like me and less like the noble Earl? I think not.
When the noble Baroness looks at my speech in Hansard, she will see that I am arguing, as I will in relation to my Amendment 241, that we need to do something useful with people when they are in prison. The system we have does not address their needs.
I am grateful to the noble Earl for that. Gypsy, Roma and Traveller people are a tiny percentage of our population in the United Kingdom. Undoubtedly, they are one of the most demonised minorities, not just in our nations, but historically and in Europe. We would not have a post-World War II human rights framework but for atrocities perpetrated against minorities, including Gypsy and Roma people.
It is very upsetting to look at Part 4 of the Bill. It is a disgrace. I am sorry to have to say this, but Part 4 is an inherently discriminatory piece of legislation. It is as discriminatory as previous ignominious legislation targeting east African Asians or gay people. If it passes in its present form it will be notorious. I have no doubt at all that it violates Articles 8 and 14 of the convention, at the very least, as other noble Lords have said. I praise the eloquence and perseverance of my noble friend Lady Whitaker in particular, and of many noble Lords and right reverent Prelates.
They know whereof they speak: to persecute people for their nomadic lifestyle—to criminalise the Traveller way of life—is the equivalent, I have no hesitation in saying, of criminalising people for their dress, their food or their prayers. It is a significant attack on their way of life to criminalise them for stopping in places when they have nowhere else to stop. Part 4 is that despicable. I signed one of the amendments; I could have signed any of them. This part, however, should not stand in any primary legislation in a civilised country.
This bit of the Bill is being put forward as part of a very populist and nasty culture war, to use the phrase of the noble Baroness, Lady Jones. It is very dangerous. As the honourable Member for Maidstone, who has not been in this Chamber—perhaps one day she will come—but whose name has been mentioned at many points today, said, be careful about the difference, the fine line, between being popular and being populist. We might well remember that when we consider this part on Report.
My final thought is that in a former role I once had the privilege of chairing a meeting—it was, as I recall, at the Conservative Party conference. The audience was very sceptical about the value of human rights, and the Human Rights Act in particular. It was, potentially, a tricky meeting. I chaired a speaker who was addressing concerns in the audience about prisoners having human rights. Again, that is not a popular group in our society—prisoners and human rights is a bad cocktail. He was saying that prisoners have human rights and that some of them even thought that they had a right to a flushing toilet. What a disgrace that was—the audience was very upset and wanted to scrap the Human Rights Act, as some people still do. This eloquent and learned speaker said that it was very simple to deal with the problem: just fix the loo.
Fix the loo—do not demonise the prisoner, do not scrap the Human Rights Act, just fix the problem that is giving rise to the concern. In this case the fix would be to give people stopping places and the support that they need. The criminal law will deal with burglary and with people using their dogs to terrorise people, and will protect the innocent farmer. I wonder whether the eloquent speaker and passionate defender of the Human Rights Act who spoke at that meeting will remember the occasion, as I always have. He was, of course, the noble and learned Lord, Lord Garnier.
I remember that remark very well, and I adhere to everything that I said then. I hope that the noble Baroness is not setting up an Aunt Sally. The speech that I gave a moment ago did not criticise the proponents of these amendments. It criticised much of the content of Part 4 of the Bill. All I asked was that in seeking to provide a solution for one group of people we did not create a problem for another group.
I am grateful to the noble and learned Lord, Lord Garnier, for that. There is ample criminal law and ample tort law for nuisance. There are ample laws to protect people from burglary, nuisance and so on. This measure, however, is targeted. The euphemism is so thin: “without permission, with vehicles”. I wonder who we are talking about there. The euphemism makes this racial discrimination even more obscene.
My Lords, we strongly support all these amendments. As the noble Baroness, Lady Whitaker, and my noble friend Lady Bakewell of Hardington Mandeville said, the crucial point here is that if legal sites were provided it is unlikely that these provisions would even be in the Bill. Having adequate sites is likely to be cheaper than the cost of taking legal action against those who have no option other than to trespass. As the right reverend Prelate the Bishop of London and the noble Baroness, Lady Lister of Burtersett, said, the Bill’s provisions, whether by accident or design, will very clearly disproportionately impact an already vulnerable minority: the Roma, Gypsy and Traveller communities. What would happen if the Government and local authorities made it a criminal offence for motorists to park their cars illegally and then did not provide enough spaces for motorists to park legally? There would be uproar.
My noble friends Lady Brinton and Lady Bakewell told the Committee from their extensive experience about hostility towards Gypsy, Roma and Traveller communities. I have to say to the noble Earl, Lord Attlee, that when he reads back what he said in Hansard it will be open to interpretation that, for every crime he described where he could not say who the perpetrator was, he implied that all those crimes were committed by Travellers, without any evidence that they were responsible for those particular crimes. That is why there is so much hostility towards these communities because speeches such as that can be misinterpreted as, “The noble Earl is saying that those communities are responsible for all these crimes, even the ones where we do not know who committed them.”
My Lords, the noble Earl is far more responsible than a police officer because I can take him to police officers in London who will say that all crimes in London are committed by black people.
My noble friend Lady Brinton also reminded the Committee that there are existing laws to deal with these situations. That goes to the point that the noble and learned Lord, Lord Garnier, raised. The National Police Chiefs’ Council has said that existing laws are adequate. The police say that more laws are not needed for this sort of offence. If the police are saying that, why are the Government bringing forward this legislation?
Rather than go through all these amendments, all I will say is that I agree with what my noble friends and other noble Lords have said. Part 4 should be removed from the Bill in its entirety because existing legislation is more than adequate.
I congratulate my noble friend Lady Whitaker on her powerful and persuasive speech introducing her amendments and opening this debate, as we expected it would be. As the noble Earl, Lord Attlee, said, my noble friend has been a determined campaigner on behalf of the Gypsy and Traveller communities.
As has been said, Part 4 relates to unauthorised encampments, which it criminalises, creating an offence if someone resides or intends to reside on land without consent in or with a vehicle. The Bill also gives landowners a role in criminalising a person who is trespassing, strengthens police powers to deal with unauthorised encampments, prohibits a person re-entering land without a reasonable excuse within 12 months and gives the police the right to seize property, including people’s caravans, which could be a family’s primary residence. The Bill also amends police powers associated with unauthorised encampments in the Criminal Justice and Public Order Act to lower the threshold at which they can be used, allow the police to remove unauthorised encampments on or partly on highways and prohibit unauthorised encampments that are moved from a site returning within 12 months.
The Bill’s provisions will primarily—as has been said on more than one occasion—affect the Gypsy, Roma and Traveller communities. To back up the point my noble friend Lady Chakrabarti just made, the 2011 census indicated that there were approximately 58,000 people who identified as Gypsy or Irish Traveller in England and Wales, accounting for 0.1% of the resident population.
The amendments in this group to which my name is attached provide that a constable can use the powers under this clause in respect of a person leaving land or removing their property only if the person has been offered a suitable pitch in a caravan site in the local area. The amendments provide that a police officer does not have the power to seize a vehicle that is a person’s home and limit the new offence to where damage and disruption has been caused, rather than to where it is deemed likely to be caused or to where conduct has been deemed likely to take place. The first two of those three issues are based on recommendations by the Joint Committee on Human Rights.
Amendment 151, which is also in my name, is based on a Delegated Powers and Regulatory Reform Committee recommendation and provides that guidance issued by the Secretary of State in relation to police powers in respect of trespasses on land must be subject to parliamentary scrutiny under the negative procedure, and not just be a matter for the Secretary of State.
Failure to comply with a police direction to leave land occupied as part of an unauthorised encampment is already a criminal offence, but the proposals under the Bill create a new offence of residing on land without consent in or with a vehicle. The penalties are imprisonment of up to three months or a fine of up to £2,500 or both. I wonder whether the Minister can say what will happen under the terms of this Bill to a Traveller family in a single vehicle who are residing on a highway and have nowhere else to go.
This part of the Bill is clearly targeted at Gypsy, Roma and Traveller communities and may well breach the Human Rights Act 1998 and the Equality Act 2010, since we are talking about a recognised ethnic group. When the powers in the Criminal Justice and Public Order Act 1994 were debated in Parliament, it was stated that the powers were intended to deal with “mass trespass.” However, under this Bill, even a single Gypsy or Traveller travelling in a single vehicle will be caught by this offence. The Criminal Justice and Public Order Act 1994 requires six vehicles.
These measures to increase police powers in relation to unauthorised encampments are not even backed by the police. More than 80% of the police responses to the government consultation did not support the criminalisation of unauthorised encampments. The views of the National Police Chiefs’ Council were clearly put in its submission to the 2018 government consultation:
“Trespass is a civil offence and our view is that it should remain so. The possibility of creating a new criminal offence of ‘intentional trespass’…has been raised at various times over the years but the NPCC position has been—and remains—that no new criminal trespass offence is required. The co-ordinated use of the powers already available under the Criminal Justice and Public Order Act 1994 allows for a proportionate response to encampments based on the behaviour of the trespassers.”
The NPCC told the Bill Committee in the Commons that the group
“strongly believes that the fundamental problem is insufficient provision of sites for Gypsy Travellers to occupy, and that that causes the relatively small percentage of unlawful encampments, which obviously create real challenges for the people who are responsible for that land and for those living around… The view of our group is that the existing legislation is sufficient to allow that to be dealt with, and we have some concerns about the additional power and the new criminal provision and how that will draw policing further into that situation.” —[Official Report, Commons, Police, Crime, Sentencing and Courts Bill Committee, 18/05/21; col. 15.]
The Joint Committee on Human Rights was told by a deputy chief constable that
“where we have an increasing number of”
“sites, we have a direct correlation with a reducing number of unauthorised encampments”.
The committee was also told by the chair of the National Association of Gypsy and Traveller Officers, a representative body for local government officers who work with Travellers, that
“while public authorities did need to deal with some cases of crime and serious harm, the vast majority of encampments did not present any significant challenges”,
“The current law is fine”.
The Government seem determined to put on the statute book legislation that will probably result in Gypsies and Travellers being locked up against the advice of their own police. As of January 2020, just 3% of Gypsy and Traveller caravans in England were in unauthorised encampments and, of that 3%, 60% were on not-tolerated sites and 40% were on tolerated sites. Tolerated sites are where the local authority has decided not to seek the removal of the encampment, so it is likely to remain indefinitely.
Some 184 of the 285 authorised sites in operation today were built following the passage of the Caravan Sites Act 1968, from 1968 to 1994, when there was a statutory duty to establish authorised sites with funding from central government. The Criminal Justice and Public Order Act 1994 repealed this provision, since when there have been fewer than three authorised sites built in England, on average, every year. As a result, without that statutory duty, there has been a lack of assessment of the needs of Gypsies and Travellers and a failure to identify appropriate land where they might be accommodated and apply for and obtain planning permission. In reality, it is very difficult for Gypsies and Travellers to secure planning permission.
As my noble friend Lady Whitaker said, there has been an overall 8.4% decrease of pitches on local authority Traveller sites over the last 10 years, and an overall decrease of 11% in permanent pitches on local authority and registered social landlord sites. As my noble friend also said, research in January 2020 found that only eight out of 68 local authorities in the south-east of England had identified a five-year supply of sites for Gypsies and Travellers, while 15 had no identified need for new sites.
The police currently have discretion to decide whether to use their powers under the Criminal Justice and Public Order Act but, under this Bill, they will be duty-bound to act when they are informed by a private citizen that a criminal offence has taken place. The term “significant distress” is highly subjective, and we run the risk of seeing numerous reports of criminal offences being committed based on someone—a private citizen—saying that they are significantly distressed by an encampment, which could lead to the criminalisation of an individual who refuses to leave a piece of land. At the very least, the police should be able to use their powers in relation to a person leaving land and removing their property only if the person has been offered a suitable pitch at a caravan site in the local area.
The Bill creates conditions for an offence to have been committed, including that
“significant damage or significant disruption has been caused or is likely to be caused”
or would cause “significant distress”, or that the person
“has, or intends to have, at least one vehicle with them on the land”.
Some of those words are open to very subjective interpretation, including “likely to”. We need clarity in the language of the law, particularly in the contentious provisions we are discussing. My amendments would limit the new offence to where damage and disruption has been caused, rather than where it is deemed “likely to” be caused or where conduct is deemed “likely to” take place.
The draft Statutory Guidance for Police on Unauthorised Encampments gives a very broad set of examples of where the term “likely to” might be met. It indicates its wide-ranging scope and does not bring much clarity to the law on this issue. It also states, as my noble friend Lady Lister of Burtersett said, that
“the police, alongside other public bodies, should not gold-plate human rights and equalities legislation.”
That gives a strong hint about how the Government want the police to interpret the guidance.
The Bill also gives the police the right to seize the property of people living on unauthorised encampments, including their caravans, which could be their primary residence. Would it ever be proportionate to seize a person’s primary residence, and effectively render them homeless and unable to pursue their way of life? That could also involve making children homeless.
The police expressed concerns to the Joint Committee on Human Rights around the police’s intended role in potentially making a family homeless. Amendment 147 would provide that a police officer did not have the power to seize a vehicle that was a person’s home, and was in line with a recommendation from the Joint Committee on Human Rights.
The Victims’ Commissioner told the Public Bill Committee in the Commons that
“unless there is proper provision of authorised encampments, you have two sets of victims. I quite agree with you that the people who are distressed, damaged or whatever by an unauthorised encampment are victims of that. There is no doubt of it … but I want you to take into account the difficulty of finding somewhere to camp in a lot of places, which forces people into an unlawful place.”—[Official Report, Commons, Police, Crime, Sentencing and Courts Bill Committee, 20/5/21; col. 120.]
However, the Government do not want to take that into account. Instead, as I have said, they seem determined to enact legislation that will probably lead to Gypsies and Travellers being locked up against the advice of the police. Given the levels of prejudice shown towards Gypsies and Traveller communities, that is quite likely. It is a prejudice personified by the Conservative MP who, in Committee in the Commons on 8 June this year, said:
“The Travellers I am talking about are more likely to be seen leaving your garden shed at 3 o’clock in the morning, probably with your lawnmower and half of your tools. That happens every single time they come to”—[Official Report, Commons, Police, Crime, Sentencing and Courts Bill Committee, 8/6/21; col. 410.]
and then gave the name of his constituency.
A lead member of the Local Government Association told the Public Bill Committee in the Commons that:
“There has to be a commitment from local authorities that those sites are allocated. The statutory legislation that already exists for these protected characteristics needs to be taken seriously. We should be meeting the obligations that are already set in statute, which says that we should have adequate sites for these communities, but we just do not.”—[Official Report, Commons, Police, Crime, Sentencing and Courts Bill Committee, 18/5/21; col. 68.]
I do not dismiss the point made by the noble and learned Lord, Lord Garnier, but the Government should focus more on ensuring that local authorities have the resources they need to provide more space for Traveller communities to reside legally, with decent facilities, as a solution to unauthorised encampments, rather than focusing on at least some of the provisions in this section of the Bill. I hope the Government will reflect on what has been said in this debate tonight.
My Lords, I was waiting to hear this amendment being moved, which is why I have waited to make my contribution. If you had asked the community where I live—it is not a rural community, although we have a village green—what they thought of Travellers roughly five years ago, there would have been a fairly non-committal response. However, after an incident in which a significant number of vans were parked on the green, and large amounts of rubbish were collected and deposited on it, the attitude changed significantly. As a result of that, we had to build bunds or mounds to stop them coming on the village green. It did change people’s attitudes.
Let me make clear where I come from on this issue. I used to be a member of the All-Party Parliamentary Group on Gypsies, Travellers and Roma. I no longer am, because my point of policy difference with it was that, when illegal acts are committed by Travellers, they are not prepared to condemn them and say “Not in our name”, which to me was an important aspect. Of course, I am against discrimination towards Gypsies, Roma and Travellers. It is a small minority who commit significant offences; let me make that clear. With all due respect to the noble Earl, he was too sweeping in some of his statements; I do not associate myself with that. However, to pretend that there are not problems, even on official sites, is to deny serious reported incidents, including things such as modern slavery. Serious activities take place and we cannot just turn a blind eye to them.
I do not believe the Government’s proposed amendments are right or even necessary. I have found in Ealing that we have been able to remove Travellers from places such as Ealing Common, where they have created similar problems with rubbish, so we seem to have the powers to do that anyway. I looked at the amendments from, to take an example, my noble friend Lord Rosser, and I do not believe—I think the noble and learned Lord, Lord Garnier, was right—they are the solution to the problem either. It would be useful if the Minister convened a meeting before Report where we could have a more balanced discussion about the problem.
When I addressed a meeting of Gypsy, Roma and Travellers, I said to them, “I believe in the two R formula”. Of course, they did not know what that was. I said, “It is rights and responsibilities; you have rights, and I will defend your rights not to be discriminated against unreasonably or unfairly, but you also have responsibilities to behave in a reasonable way in society. It does not mean you have the freedom to go around and collect rubbish and dump it, or to allow activities which cannot be tolerated.” They rightly said that they were not the only people who dump rubbish; I said, “Of course you’re not. I condemn them as well.” It would be totally wrong to create the impression that all these crimes are committed by Travellers.
It is also wrong to assume that no criminal activities take place on official sites as well—
Will my noble friend give way? He has just come to a very important part of his remarks. Every community is capable of committing crime, and therefore we have criminal and civil laws that apply to all communities rather than specific measures targeted in a discriminatory fashion.
I thank the noble Baroness, but I think I made it clear in my contribution that I do not believe the Government’s proposals are right or necessary. Do not find a difference with me on those grounds, because it is not what I am suggesting.
If we really want to find a solution to these problems—I think one of the right reverend Prelates made a point about discrimination in education—lots of schools take real pride and make an effort in accommodating Gypsy, Roma and Traveller children. They are the examples of best practice which the Government should encourage. It is not true to say that all Gypsy, Roma and Travellers are illiterate and innumerate—far from it. In fact, one person I met who impressed me was a young woman from a Traveller family who had taken herself through university and become a teacher and an absolute credit to her community. We should beware of sweeping generalisations. They do not help us in these circumstances.
I am aware of the lateness of the hour, but I wanted to make this contribution. I like to think that my activities in support of the Gypsy, Roma and Traveller group will not cause me to be labelled as unfairly prejudiced or discriminatory. Ever since I was capable of doing it, I have fought all my life against any form of discrimination, whether it is anti-Semitism, racism or discrimination against Gypsy, Roma and Traveller groups.
My plea to the Minister when she gets to her feet is to take into account the fact that there are some genuine concerns from a number of us about the nature of the government proposals and whether they will help the situation and are necessary—or whether the existing laws are such. I also do not believe that the nature of the amendments, if I take that of my noble friend Lord Rosser as an example, is a solution to the problem. That is why I suggest that, before we reach Report, the Minister convene a meeting, which might enable us to find a bit more common ground than appears to exist in the Chamber at the moment.
My Lords, I thank all noble Lords who have spoken in this debate on Clauses 62 and 64. I am grateful to have had discussions with the noble Baroness, Lady Whitaker, and am happy to have further discussions with the noble Lord, Lord Young of Norwood Green, before Report.
These clauses deliver on a clear manifesto commitment to tackle unauthorised encampments. It is worth quoting directly from the Conservative manifesto, as the commitment was in explicit terms. The manifesto said:
“We will give the police new powers to arrest and seize the property and vehicles of trespassers who set up unauthorised encampments, in order to protect our communities. We will make intentional trespass a criminal offence”.
The noble Baroness, Lady Lister, and others have challenged me to say, if I was not talking just about the Gypsy, Roma and Traveller community, who I was talking about. It is anyone who sets up camp on unauthorised land and causes significant damage, disruption or distress. My noble and learned friend Lord Garnier gave us an example, and he was not even sure who the individuals were. When I go on holiday to Cornwall, I see examples of unauthorised encampments, and I do not know who the individuals are. It is a wider problem than just Gypsy, Roma and Travelling communities.
We have brought forward the measures in Part 4 because we understand the challenges many locations across the country face when individuals cause significant damage, disruption or distress to communities, businesses, and landowners. The financial cost of cleaning up sites and repairing damage can also be significant. It is not a sound assumption to say that landowners will have sufficient resources to be able to clean up after some of the damage that is caused to their land. The measures are a proportionate means of protecting the rights of communities. While we must ensure fair and equal treatment for Travellers, and recognise that the majority are law-abiding, as the noble Lord, Lord Young of Norwood Green, said, we are equally clear that we will not tolerate law-breaking and we are determined to ensure that the police have the powers they need to support and serve their communities. That is why we are introducing this new criminal offence as a proportionate means of protecting the rights of communities.
It is very important to recognise that the threshold for the new offence is high. The act of taking a vehicle on to someone else’s land without their permission is not in and of itself criminalised by this clause, nor is an “unauthorised encampment” in itself an offence. There are several conditions to the offence, all of which must be satisfied for someone to be found guilty of the offence. Most importantly, the offence requires conduct or residence that causes, or is likely to cause, significant damage, disruption or distress. I would hope that no one in your Lordships’ House would condone such conduct.
I move now to the amendments. The three government amendments in this group, Amendments 134, 146 and 148, are simply clarificatory in nature so I do not propose to say more on them at this stage.
Amendment 133 in the name of the noble Baroness, Lady Whitaker, would have the effect that no criminal offence is committed unless the police make the request to the trespasser to leave. This would remove the ability of a landowner to trigger the offence by requesting that trespassers leave their land, and would slow the enforcement process down, while using more police resource.
As I have said, the new offence targets only those who cause significant damage, disruption or distress and who do not leave when asked to do so. It is right that on those occasions where significant harms have taken place, enforcement action should be taken to protect citizens and businesses. This amendment would remove the ability for police to act more quickly where they need to in response to unauthorised encampments causing significant harm, disruption or distress.
Noble Lords have raised concerns that this means that those on unauthorised encampments could be criminalised simply because the landowner does not want them there or because they hold prejudiced views towards people. This is simply not the case. The police will need to continue to collect evidence to form reasonable grounds for suspecting that the offence has been committed, and the offence will apply only where specific conditions have been met. In addition, we expect that the police will continue to have regard to their duties under the Human Rights Act 1998 and to their duty to safeguard the vulnerable before and when taking enforcement decisions.
A few noble Lords referred to the word “significant”, specifically the noble Baroness, Lady Brinton. It is widely used in legislation, and examples are set out in the draft statutory guidance. This type of qualifying term is used for other offences without government guidance; for example, the Public Order Act 1986 refers to
“serious disruption to the life of the community”,
and Section 14A of that Act, on prohibiting trespassing assemblies, refers to “significant damage”.
On the Human Rights Act, the Government believe that the measures are compliant with the ECHR and the Equality Act 2010. We respect the rights of the Traveller community to follow a nomadic way of life, in line with their cultural heritage. Enforcement action will not be based on race or ethnicity. Anyone who causes significant harm, disruption or distress and does not leave when asked to do so will commit the offence.
Amendment 135 in the name of the noble Lord, Lord Rosser, seeks to provide that the offence is committed only when a suitable site has been offered. There is no justification for causing significant harm, disruption or distress—the lack of availability of a pitch on an authorised site cannot be an excuse for such conduct. As I have said, the fact of the unauthorised encampment is not in itself an offence. If significant harms are being caused, it is only right that the police have powers to tackle those harms, and that those harms should incur enforcement action in the way that any other criminal behaviour would.
Amendment 136 in the name of the noble Baroness, Lady Bakewell of Hardington Mandeville—I know she has had to leave, or else she will not get her last train home—would require a senior police officer to conduct a welfare assessment before considering if enforcement action is proportionate. I can assure the Committee that, in making decisions around the seizure of property, the police will need to take into account welfare considerations and vulnerabilities, and, where possible, should liaise with local authorities regarding suitable accommodation, just as they currently do.
Therefore, we do not think that this amendment is necessary. The police already give full consideration to their responsibilities under their public sector equality duty, and to the potential impact that issuing a direction to leave, or utilising powers of arrest and seizure, may have on the families involved, before they reach a decision on taking enforcement action. Each case will be dealt with on its own merit and according to the evidence.
I thank the noble Baroness for that. The “gold-plate” quotation has been mentioned twice tonight, and I must confess that it was novel to me. I suspect that the answer is that, within anything such as the Equality Act or the Human Rights Act, there is interpretation—you could abide by every single aspect of it, or not. But I will write to the noble Baroness, because I think the Committee requires clarification on just what it means. It is too late to guess at this time of the night, so I will write to her.
Amendments 137 to 142, again in the name of the noble Lord, Lord Rosser, would remove the “likely to cause” condition of the offence. We think this is an important element of the offence because provision that the offence can be caused if significant damage, disruption or distress is likely to be caused enables the police to intervene where people are suspected of repeatedly causing significant harms. This is particularly relevant in cases where those who cause damage move a short distance away, only to enter other land and cause more damage. It is only right that the police can intervene quickly in these cases of suspected serial criminal behaviour.
I point out that an offence based on likelihood of harm occurring or similar is not unique to these provisions, nor is it a novel requirement in criminal law. As for other offences, the factual circumstances and evidence of each case will determine whether a “significant” level of damage, disruption or distress has been caused or is likely to be caused, and this will be for the police—and ultimately, of course, the courts—to determine.
Amendments 143 and 144, in the name of the noble Baroness, Lady Bennett of Manor Castle, would limit the maximum penalty for the offence to a fine of up to £2,500. We think that, given the nature of the conduct covered by this offence, it should be open to the courts to impose a custodial sentence of up to three months. Of course, it will be for the courts to decide the appropriate penalty in each individual case.
The noble Baroness, Lady Massey of Darwen, tabled Amendment 145, which would seek to remove “insulting words or behaviour” from the definition of offensive conduct. As we indicated in our response to the JCHR, we believe that landowners should be protected from being insulted on their land, and the provision in Clause 62 mirrors that in the 1994 Act. It is only right that there is consistency within the law.
I turn now to Amendment 147, which would remove the vehicle seizure power from the offence. Seizure powers are already conferred on the police in relation to a person’s failure to comply with a police direction to leave land under the trespass provisions in the Criminal Justice and Public Order Act 1994. It is right that police should have an equivalent power in the context of the new criminal offence where the level of harm is significant for the offence to be committed before police would consider using, and are able to use, seizure powers. If people do not commit significant harms, or leave when asked, they will not be caught by the offence and will not risk having their vehicle seized. Without the power to seize vehicles, enforcement action is likely to be hindered, and the harms can continue while people and vehicles remain on the land.
Police decisions to seize vehicles should continue to be taken in consultation with the local authority, where appropriate. As is the case for existing provisions, the local authority would need, where possible, to offer assurance that they have relevant measures in place to meet any welfare and safeguarding needs of those affected by the loss of their accommodation, particularly the vulnerable, before police take enforcement action.
We expect police will continue to undertake any enforcement action in compliance with their equality and human rights obligations and will continue to consider harm to local amenities, the local environment and the rights of nearby residents.
Where a decision is made not to charge the person, the police must return the property as soon as is practicable. If at any time a person other than the suspect satisfies the police that property that is retained belongs to the person at that time, and belonged to them at the time of the suspected offence, then the police must return the property to the person.
Amendment 149 seeks to reintroduce a statutory duty on local authorities to provide sites for Gypsies, Roma and Travellers. The Government’s aim is to increase the provision of Traveller sites in appropriate locations and to maintain an appropriate level of supply. The planning system, taken as a whole, is capable of meeting the needs of the Traveller community. It places sufficient requirements on local authorities for what they must do to provide sites.
As the noble Lord, Lord Rosser said, a duty to provide sites was introduced in 1968. As more sites were needed, the basis on which the duty was introduced changed. Like the rest of the population, most Travellers aspired to own their own home and to live on a private, rather than a public, site. In recognition of this, planning policy seeks to promote more private site provision, while recognising that not all Travellers can afford their own site. Local authorities and social housing providers are able to bid through the £11.5 billion affordable homes programme 2021-26 for the funding of new sites.
The noble Baroness, Lady Lister, asked when the GRT strategy was due. I understand that the Department for Levelling Up, Housing and Communities—now affectionately known as DLUHC—is working closely with other government departments to progress the strategy, which will be published in due course. I know the noble Baroness is going to roll her eyes at that because she does not like that term “in due course”. We remain firmly committed to its delivery.
The noble Baroness, Lady Whitaker, brought up the numbers. The Traveller caravan count is a count of caravans, rather than sites. None the less, it should be recognised that, in January 2020, there were 6,506 Traveller caravans on sites provided by local authorities and private registered providers in England. This was an increase of 10% on the 1994 Traveller caravan count. As of January 2020, the number of authorised transit pitches had increased by more than 40% since January 2010.
Finally, Amendment 151 seeks to provide that the guidance to be introduced under Clause 64 should be subject to the negative procedure, as recommended by the Delegated Powers Committee. We are carefully considering all the Delegated Powers Committee’s recommendations. We will respond to its report ahead of the next stage. In coming to a final view on its recommendation in relation to Clause 64, we want to take into account the Government’s broad approach to parliamentary scrutiny of statutory guidance such as this. In a letter to the DPRRC in October 2018, my noble friend the Lord Privy Seal said:
“There is a vast range of statutory guidance issued each year and it is important that guidance can be updated rapidly to keep pace with events. There is nothing to prevent Parliament from scrutinising guidance at any time. I certain exceptional circumstances it may be appropriate for guidance to be laid before Parliament or be subject to the negative procedure.”
It is our firm belief that the new offence provided for in Clause 62 is appropriately framed. It targets significant harms, not simply the act of residing in a vehicle on land without permission. As I have said, the new offence delivers on a clear manifesto commitment to strengthen the protection to communities from unauthorised encampments. I apologise to noble Lords for that quite lengthy explanation. I hope that the noble Baroness, Lady Whitaker, will withdraw her amendment.
From the Minister’s reply on behalf of the Government, I rather inferred that the Government were confirming that the police can seize a vehicle, even if it is a family home and leaves people homeless. I should like the Minister to confirm that this can happen under the terms of this Bill.
I am just looking for my wording now. I think that what I said to the noble Lord in reply is that the police should take into account welfare considerations where possible and should liaise with local authorities regarding suitable accommodation, just as they currently do. They should give full consideration to their responsibilities under the public sector equality duty, as well as to the potential impact that issuing a direction to leave, or utilising powers of arrest and seizure, may have on the families involved before reaching a decision on taking enforcement action. If I could just complete my last sentence, obviously each case should be considered on its own merits.
I hope the Minister will forgive me for saying this but that is a lot of words. I read into it that, under the terms of the Bill, despite all those words, the police can seize a vehicle even if it is a family home and results in homelessness, because nowhere did the Minister say that they cannot do so.
I am grateful for the Minister’s attempts to sanitise Part 4, although I did not quite understand her explanation of the Home Secretary’s misleading remarks.
The hour is late. It would not be right for me now to take issue with every point the Minister made, although I would like to. She will have noticed the widespread concern evidenced in many thoughtful speeches about the import of Part 4. I would not say that those concerns have been assuaged by her response. She will also have noticed that stereotyping is still with us, here and there.
However, I am grateful to the noble and learned Lord, Lord Garnier, for his appreciation of the general problem, although I do think that his one anecdotal example could be dealt with perfectly well by the present police powers. However, his suggestion that Clause 62 could attract a compromise in relation to site provision encouraged me to hope that the Minister will discuss a better solution before Report.
On that basis, I beg leave to withdraw the amendment.
Amendment 133 withdrawn.
134: Clause 62, page 57, line 8, after “to” insert “do either or both of the following”
Member’s explanatory statement
This amendment clarifies that the power under section 60C(1)(d) of the Criminal Justice and Public Order Act 1994 is a power to require a person to leave the land in question, to remove property from the land or to do both.
Amendment 134 agreed.
Amendments 135 to 145 not moved.
146: Clause 62, page 59, line 12, at end insert “or”
Member’s explanatory statement
This amendment clarifies that the powers of seizure in section 60D(1) of the Criminal Justice and Public Order Act 1994 apply to property that belongs to a person suspected of an offence under section 60C of that Act, is in their possession or is under their control.
Amendment 146 agreed.
Amendment 147 not moved.
148: Clause 62, page 60, line 16, leave out “section 37” and insert “Part 4”
Member’s explanatory statement
This amendment expands the definition of when proceedings are commenced for the purposes of section 60D(6) of the Criminal Justice and Public Order Act 1994 to cover when a person is charged under any provision of Part 4 of the Police and Criminal Evidence Act 1984.
Amendment 148 agreed.
Clause 62, as amended, agreed.
Amendment 149 not moved.
House adjourned at 11.28 pm.