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Amendments made : No. 172, in page 44, line 2, leave out 7 days' and insert three months'.
No. 173, in page 44, line 16, leave out in the open air'.--[ Mr. Maclean. ]
Amendment made : No. 174, in page 46, line 5, after highway', insert or road'.--[ Mr. Maclean. ]
in non-residential premises, or seven working days in residential premises,'.
2(A) Where a person is charged with an offence under subsection (2) it shall be a defence for him to prove that at the time the interim possession order was served on him he had reasonable grounds for believing that he was entitled to remain in occupation of the premises.'.
Mr. Maclennan : Amendment No. 33 is not designed in any way to undermine the purpose of the Government's intentions in dealing with squatters. As the law stands, it allows an unacceptable process of delay to take place which can prevent the true owners of a residence from recovering the occupancy of their premises. The Government were entirely right to introduce this clause, but the proposal that it should be possible to evict squatters within 24 hours of the serving of a writ is too summary and too likely to wreak injustice. A period of seven days would be more reasonable.
May I point out, as I think that I did at an earlier stage, that the circumstances in which it is discovered that people are squatting are not in any sense uniform. I know of one occasion when a tenant of a property was served with a notice to quit by a bank, which was the true owner of the property. The tenant held a wholly invalid lease from a third party who had been dispossessed by the bank and he had no knowledge of the fact that he was a squatter. In such circumstances, although he is technically and clearly a squatter, it would be reasonable to allow a certain amount a time to elapse to put one's house in order. I hope that the Minister will not view the amendment as undermining the purposes of the clause, but rather as fortifying its equity.
Mr. Trimble : I shall follow briefly what the hon. Member for Caithness and Sutherland (Mr. Maclennan) said and especially develop the example that he used. It is quite appropriate to remember that in such circumstances we may be dealing not only with the property owner and a squatter, but with third parties who have behaved dishonestly. There may be circumstances in which persons are squatting in a property, yet none the less believe that they are entitled to be there because of the fraud of some other person. Amendment No. 67 is designed to deal with that situation. It is not intended in any way to disrupt the operation of the legislation and I agree that there should be more effective remedies to enable the property owner to regain possession.
May I simply ask the Minister this : if a person has reasonable grounds for believing that he is entitled to remain in possession of a property, how can it be just to convict him of an offence and make him a criminal, if he has reasonable grounds ? The amendment would operate only when someone has reasonable grounds for believing that he is entitled to remain in possession of the property. The term "reasonable" obviously imports subjective criteria, which may be examined by the courts if the circumstances arise. As a result of the fraud of some other
Column 314party, how can it be right to make the person occupying a property, who believes that he is entitled to be there, a criminal ?
Mr. Maclean : I understand the concern of the hon. Member for Upper Bann (Mr. Trimble) that the new interim possession procedure should not operate unjustly. I share his concern, which is why clause 65 makes it an offence to seek an interim possession order under false pretences. However, I am afraid that I cannot accept the two amendments.
The amendment tabled by the hon. Member for Caithness and Sutherland (Mr. Maclennan) would extend the period of grace allowed to squatters in residential premises after they have been served with an interim possession order from 24 hours to seven days. That is too long. The minimum delay between serving a summons on squatters and a court hearing under the existing procedure is only five days. The whole point of the new procedure is that it should be quicker than the existing one, which has been found to be unacceptably slow and is open to tactical delays by squatters.
My noble and learned Friend the Lord Chancellor is proposing a delay of 24 hours between ordering squatters to leave and seeking an interim possession order, so, effectively, squatters will have 48 hours to seek legitimate accommodation. I do not think that we would be justified in prolonging that period at the expense of the lawful owners and occupiers of property. Under the Lord Chancellor's proposals, the new procedure will be available for only 28 days after the presence of the squatters is discovered. The scenario outlined by the hon. Member for Upper Bann will therefore be covered. I have some sympathy with the hon. Gentleman's intentions, but his defence is unacceptable and would seriously undermine the new procedure by opening up a substantial loophole for squatters. All squatters could routinely claim that they believed that they were lawful tenants and entitled to disregard the interim possession order. The police would then have to decide whether to act against them and would probably decide not to do so in most cases. If a case came before the magistrates, they would similarly have to assess a claim not that the alleged squatters were in fact entitled to remain but that they had reasonable grounds for believing that they were. Squatters would produce false leases or allege that they had been given the keys and were licensees, as they do at present. All the advantages that the new procedure is intended to bring would be lost and aggrieved owners would probably find the new procedure even less effective than the existing civil remedy.
Under our proposals, all that the police will have to decide is whether a civil court's order has been obeyed--questions about the merits of the civil case are nothing to do with them. Similarly, if a case goes before the magistrates, the only question will be whether the interim possession order was complied with within 24 hours as required. One of the main reasons why the Government did not wish simply to criminalise squatting per se was to avoid entangling the police and magistrates in complicated questions about the civil law of trespass, with which they are not equipped to deal.
It is also undesirable in principle to create a statutory right to disobey a court order. If people believe that they are not squatters, they will have a right under the new
Column 315procedure to a full hearing of the case after they have obeyed the interim order. People who are served with a court order to leave premises within 24 hours cannot reasonably believe that they are entitled to disregard it. For those reasons, I must reject the amendments from the hon. Members for Caithness and Sutherland and for Upper Bann.
and that any of those persons has caused damage to the land or to property, or used threatening, abusive or insulting words or behaviour towards the occupier, a member of his family, or an employee or agent of his ; or that the site is visible to large numbers of persons ; or that persons resorting to the site have deposited any substance capable of polluting the land or the environment outside their caravan or similar living accommodation'.
provided that it is satisfied that there is somewhere else in the locality for them to go either temporarily or permanently'. No. 272, in page 55, line 34, leave out from sites)' to the end of line 37 and insert
will be repealed after the period of 5 years after this Act has received Royal Assent.'.
Sir David Mitchell : The Bill gives new and stronger powers to the police and local authorities to move travellers on. The police powers depend on travellers causing a nuisance, but the local authority power operates whether or not they cause a nuisance. Amendment No. 134 requires the local authority, in the exercise of its powers, to be subject to a similar test as that for police powers--for example, causing damage, threatening or abusive language, the site not being tucked out of sight, polluting the land and so on.
I fear that there will be problems if amendments Nos. 134 and 135 are not accepted. It is easy for the Government to take authoritarian powers to move people on. The question is where do they go. The answer is likely to be somewhere a good deal worse. I shall give a practical example. In my constituency for somewhat overlong a particular scrubland site--common land --has been occupied by a small group of gipsies. Mr. Bob Dodd and the others were moved on about a month ago. As a result, they moved about 700 yd away and ended up close to some houses and near a river. Indeed, they are on a much more prominent and unsuitable site than they were before. I fear that if the Bill is not amended, that will be a microcosm of what will happen in the future. Gipsies, travellers and the like will be moved on, but will settle on somewhere worse and more unsuitable than the place that they occupied originally.
May I just pause to put this into context ? Britain has a
Column 316long tradition and record of not persecuting non-conforming minorities, and those of a nomadic way of life are just one of those minorities. Before there were planning controls, gipsies had umpteen rural sites to which they could go, provided that they did not cause a nuisance, but we in Parliament have introduced intensive planning controls. We have denied travellers the use of their traditional stopover sites. We are now invited to have them moved on, nuisance or not, whether or not there is somewhere available to which they can go. My amendment No. 135 means that when the gipsy fails to move on
It being Ten o'clock, further consideration of the Bill stood adjourned.
Motion made, and Question put forthwith, pursuant to Standing Order No. 14 (Exempted business) ,
That, at this day's sitting, the Criminal Justice and Public Order Bill may be proceeded with, though opposed, until any hour.--[ Mr. Michael Brown. ]
Question agreed to.
Sir David Mitchell : My amendment No. 135 means that when the gipsies fail to move on and the council goes to the magistrates, the court must satisfy itself that there is somewhere else in the locality where they can go, temporarily or permanently.
The situation is worse than it appears. At the same time as he seeks new powers to move people on more quickly and easily, the Minister has made it less likely that there will be somewhere for them to go. While admitting that fewer than 40 per cent. of councils have made adequate provision, he has repealed the duty of councils to provide adequate gipsy sites. He has repealed the grants to councils to provide sites and withdrawn the circular countenancing gipsy sites in green belts, often the gipsies' natural habitat. He has issued a new circular which specifically refers to planning authorities avoiding encroachment on open countryside for gipsy sites. Even though the Minister must know that gipsies can only afford to buy agricultural land in rural areas, nevertheless that prohibition has been introduced by his latest circular.
When the Minister proposed stringent powers to move travellers on and closing many of the places that they may have hoped to go to, I asked him what they should do. He replied :
"We believe that in future travellers should seek to make provision through the planning system."
He added :
"I have every confidence, however, that if gipsies make proper applications to local planning authorities, they will be provided with planning permission."--[ Official Report , 26 July 1993 ; Vol. 229, c.972.]
I must take the Minister into the real world where 90 per cent. of all gipsy planning applications are refused. Any gipsy site application in the south-east of England will meet implacable opposition from local residential groups, which will have solicitors, barristers and planning consultants available to them.
I have an example. Over the years, a Mr. Cooper has sought a gipsy site in a Hampshire location. Hampshire county council, not Mr. Cooper, told me that his costs have exceeded £10,000. Where do the Mr. Bob Dodds of this world and the like, to whom I referred earlier, get the money to pursue a planning application on that scale ? What happens to the semi- literate gipsy ? What address can be put on a planning application ? Will a council entertain a planning application from someone of no fixed address ? Does the Minister really expect some of the more
Column 317disadvantaged of our fellow citizens, some of whom are semi-literate, to take on the whole force of implacable local opposition to a planning site application ?
What we need is transitional sites with four things : privacy, a standpipe for water, a lavatory and a skip for rubbish, and nothing else. Those people want to be alone, away, not part of town or village life. It is something that we should not deny them. After all, they make no great call on the public purse. They do not expect to be given mortgage relief, they do not seek council housing and they do not claim housing benefit.
We should seriously consider what is to happen to those people when the new powers are exercised to move them on from the site that they are on, with no proper site for them to go to and with the certitude that they will turn up somewhere where they will be a darned sight more of a nuisance than they were in the first place.
Mr. Fraser : I wish to speak to amendment No. 272, but I must say how much I admired what the hon. Member for Hampshire, North-West (Sir D. Mitchell) had to say. I agreed with almost every word. One does not say this lightly, but what the Government are doing with the Bill will lead to something like ethnic harassment and the chasing of a group of vulnerable people from one part of the country to another. In Committee, we took the strongest possible exception to the abolition of the duty of local authorities to provide gipsy sites. It is a duty with which I was proud to be associated in a Labour Government. Also, I was a Minister in the Labour Government who provided the 100 per cent. grant.
The clause would throw the matter entirely out of balance. The abolition of the duty of local authorities to provide designated sites is almost as effective as the abolition of the 100 per cent. grant in preventing new sites from being set up. As soon as the grant goes, there will be no possibility of more than a handful of local authorities providing sites. At present, at least 38 per cent. of local authorities have provided sides.
We tabled amendment No. 272 because we cannot vote again on Report on the abolition of the duty. We chose to table instead an amendment in relation to ending the 100 per cent grant.
Mr. Peter L. Pike (Burnley) : Is not it a fact that all the organisations that have been canvassed for their views on this, including Save the Children and many responsible organisations, have said clearly that the Government have got it wrong ? If the Government are not prepared to revoke this section of the Bill tonight, those organisations will be strongly in favour of an amendment such as that to which my hon. Friend is speaking, which seeks to delay the provision for another five years.
Mr. Fraser : My hon. Friend is absolutely right. The amendment is the only alternative which we can put through on Report. He is also absolutely right that almost every single representation that Committee members had from caring organisations and organisations that understand the problem were wholly against the line that the Government are taking.
A Labour Government recognised that we had to have a humane and civilised balance between the rights of gipsies on one hand and the needs and understandable concerns of ordinary communities on the other.
Mr. Mike O'Brien (Warwickshire, North) : Is my hon. Friend aware that the police have also expressed concerns about the repeal of the Caravan Sites Act 1968 ? They are concerned that, if the Act is repealed, travellers will be moved from constabulary to constabulary in ever- decreasing circles at great public expense which will waste police time ?
Mr. Fraser : That is absolutely right. No expenditure will be saved and police time will be wasted. If there is an alleged nuisance, it will be replaced in place after place as people are harassed from one part of the country to another.
We recognise that there are people whose habitual way of life is nomadic and who are known as gipsies. They have existed in this country as a separate ethnic group for hundreds of years. George Borrow described them as saying that the open air was a life which was very sweet. They have a separate language, and some English words are borrowed from the gipsy language. The word "pal"--I do not think that gipsies would use that word with regard to the Ministers--is a romany word. They have a separate way of life, and they have been horribly persecuted.
Europe is recognising the rights of ethnic groups and it must be the worst possible time to put law backwards as the Bill does. We recognise their separate rights and the legitimate concern which members of the public have about gipsy encampments. It is a real problem in our increasingly urban countryside, and more industrialisation in the countryside means that there is less prospect of employment for gipsies. We recognised that a balance had to be struck and we struck it by including a duty on local authorities to provide the sites and giving them the resources to do so. Hand in hand with that provision went the restrictions that were available to the local authorities that provided the sites.
Mr. Geoffrey Clifton-Brown (Cirencester and Tewkesbury) : What is the difference between a gipsy and a traveller and does the Caravan Sites Act 1968 apply only to gipsies or also to travellers ? If it applies to new age travellers, is it not the case that, by obliging local authorities to provide sites, we are encouraging an ever-increasing number of new age travellers and therefore the ever-increasing provision of sites, which will cost ever-increasing sums of public money ?
Mr. Fraser : I think that about a month ago the Solicitors' Journal contained a thorough discussion of the subject. The 1968 Act provided for people with a separate, nomadic way of life and drew a distinction between gipsies, as a recognised group, and travellers. There should be a balance. One was struck in the 1968 Act, but this legislation will impose a harsh and harassing regime on a people whose way of life has been established for centuries, thus putting them under more pressure, and will tilt the balance of the law in the wrong direction. It is no mark of a civilised country or sensitive and sensible legislation for us to proceed in the way in which the Government are doing. Although there will be some constriction, we will countenance it only if a duty is placed on local authorities to provide for a need that has been recognised for decades, if not for centuries, and if they are given the resources to do so.
The Parliamentary Under-Secretary of State for the Environment (Mr. Tony Baldry) : First, I must respond to the concerns of my hon. Friend the Member for Hampshire, North-West (Sir D. Mitchell). It is important to remember that clause 67 is discretionary. It gives local authorities discretion and it would be for a responsible local authority to decide whether to exercise its powers. It is conceivable that a responsible local authority, acting reasonably, might wish to use its powers in circumstances that are not specified in my hon. Friend's amendments. For example, an unauthorised encampment on land adjacent to a main road might cause a serious traffic hazard or serious nuisance to neighbouring landowners or the public. My hon. Friend's amendments unnecessarily limit the discretion that we propose to give to local authorities.
It is also important to bear in mind the fact that clauses 67 and 68 relate to all unauthorised campers and not only to gipsies. New age travellers adopt their life style as a matter of choice. They cannot possibly be described as true nomads, or in the somewhat romantic terms in which gipsies have been described this evening. Furthermore, new age travellers appear to have no wish to establish themselves or reside on authorised sites, but simply want to roam through the countryside unchecked. My hon. Friend's amendments would accord them a degree of protection under the law that they do not have at present and certainly do not deserve.
I understand the concern expressed by my hon. Friend the Member for Hampshire, North-West that local authorities should not be allowed to use the powers provided in the Bill to harass and confound families who have nowhere to turn. The powers that we propose are not intended to give authorities such licence ; nor is it reasonable to suspect that they will make indiscriminate use of the powers. Local authorities have wide experience in dealing tolerantly with unauthorised camping. The powers that we propose to give them are discretionary and we expect them to continue to act humanely and sensibly. We have issued advice, which makes it clear that authorities should not evict gipsies needlessly and we intend to re-issue and reaffirm that advice when the new provisions come into force.
I must draw the attention of my hon. Friend the Member for Hampshire, North -West to the fact that in that advice we make it clear that local authorities should consider emergency stopping places and that, where such places are identified, steps should be taken to arrange regular refuse collection and that, as soon as possible, they should provide other facilities, such as water supply and sanitation. I think that that meets the concerns that were expressed by my hon. Friend.
With regard to amendment No. 135, I should like to make it clear that clause 67 already provides a range of statutory defences for persons against whom proceedings are brought. Specifically, mechanical breakdown, illness and other immediate emergencies are all grounds on which a traveller may claim that his unlawful entry on to land was unavoidable. I hope that my hon. Friend will feel that the action that we are taking will meet his concerns. It is certainly not intended that people should be harassed from pillar to post.
Column 32010.15 pm
As was made clear by the hon. Member for Norwood (Mr. Fraser), amendment No. 272 seeks to secure 100 per cent. grant for the capital costs of site provision for a further five years after the repeal of part II of the Caravan Sites Act 1968. I remind the House that the 100 per cent. grant was introduced way back in 1978 in response to a recommendation of Sir John Cripps, in his report of 1976, that such grant should be introduced for just five years for the purpose of stimulating local authority site provisions. Instead, we have maintained the 100 per cent. grant for 14 years--far longer than was envisaged by Cripps--and local authorities have come to depend wholly on it to fund any new proposal. I do not think there is any other case of a grant of 100 per cent. This is a consequence not foreseen by Cripps and certainly not envisaged by Parliament.
Although more than £87 million has been expended since 1978, local authority site provision has failed to keep pace with the growing demand for sites. The result is that the level of unauthorised camping has hardly fallen at all throughout the period during which the grant has been available.
The simple truth is that the 1968 Act has failed and that it is incumbent on the House, on behalf of local communities plagued by unauthorised camping and gipsy families still without decent accommodation, to find a realistic and fair solution to this long-standing problem. We believe that our proposals offer the best way forward towards such a solution, and I urge the House to resist the amendments.
Sir David Mitchell : In view of my hon. Friend's response--in particular, his announcement that he will issue a new circular covering the items he mentioned to the House--I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Fraser : Clause 72 creates a new offence. These amendments are alternatives : the Government are free to choose one or the other. The offence that is being created is having an article in one's possession for a purpose connected with the commission, preparation or instigation of an act of terrorism to which the clause applies. No hon. Member wants a situation in which people go around in possession of articles intended for purposes of terrorism. The objection to the way in which the offence is formulated lies in the words
"in circumstances giving rise to a reasonable suspicion that the article is in his possession for a purpose connected with the commission, preparation or instigation of acts of terrorism". Unfortunately, the nature of the offence being created does not derive from the defendant's actually having an article in his possession for the purposes of terrorism. It might be a gun, a detonator or some other explosive device, all of which would normally be articles illegally possessed. On the other hand, it might be a perfectly lawful object,
Column 321such as binoculars, a camera, a notebook, a mobile telephone or a measuring tape. The substance of the offence is not the possession of the article but the fact that the possession gives rise to reasonable suspicion.
Of course we want to strengthen the law against terrorists, but here we are creating sus law that is quite literally so. The problem about sus laws is that the issue becomes not what the defendant did or intended to do but what a police officer or some other person suspected he had done or intended to do. So, ultimately, the offence is literally a matter of conjecture and suspicion.
Theft is not defined as "he steals who takes and carries away something capable of being stolen, giving rise to the suspicion that the defendant intended to deprive the owner of the item". We do not define the offence of supplying dangerous drugs as "being in possession of drugs giving rise to a reasonable suspicion that they were intended for supply". And we do not define grievous bodily harm as "wounding somebody under circumstances that give rise to reasonable suspicion that somebody has been done harm".
The Government are free to choose between the two amendments as they wish. They create an objective test of whether the person was in possession of an article with a view to terrorist activity or in circumstances that give rise to a reasonable conclusion. It will then be left to the jury to reach an appropriate decision on whether an offence has been committed.
The problems with the formulation in the clause are, first, it is not good law ; secondly, the innocent risk being convicted ; and, thirdly and also important, it may give rise to a guilty person being convicted and then becoming a martyr. That does not fight terrorism but gives terrorism a chance of guilty martyrs who can then attack the law under which they were convicted.
If we are to unite against terrorism and create a new offence, let us do it in a sensible, acceptable way that will not lead to innocent people being convicted or guilty people having alibis in the eyes of their followers.
Mr. Maclean : Clause 72 makes it an offence, under the Prevention of Terrorism (Temporary Provisions) Act 1989, for a person to have any article in his or her possession in circumstances that give rise to reasonable suspicion that the article is in his or her possession for a purpose connected with the commission, preparation or instigation of acts of terrorism. It will be a defence for the person to prove that the article is not in his or her possession for such a purpose.
That follows the terms of the offence as it already exists in Northern Ireland under section 30 of the Northern Ireland (Emergency Provisions) Act 1991. Amendment No. 224 would require the prosecution to show beyond reasonable doubt that the article was in the person's possession for a terrorist purpose. That would effectively render the offence unworkable as it might often prove impossible for the prosecution to establish that.
For that reason, the present wording of the offence requires the prosecution to prove beyond reasonable doubt that, from the combination of the nature of the article, the circumstances of its possession and the statements of the accused, a terrorist purpose in the possession of the article can be suspected. If such a suspicion is established, it is not unreasonable then to require the accused to explain his or her possession of the article or to show that he or she was not in possession of it. I emphasise that it will not be the
Column 322simple possession of the article but its possession in circumstances that give rise to a reasonable of its connection with terrorism that will constitute the offence.
Amendment No. 225 would make no practical difference to the test of guilt in that offence. Unlike the concept of reasonable suspicion, the concept of reasonable conclusion is not commonly used in criminal law and its use here would give rise to uncertainty about the proper meaning of the provision.
I understand the concern of the hon. Member for Norwood (Mr. Fraser). I give him credit for his genuine concern and for seeking, in his view, to make the test fairer and safer. But the test in the new offence is fair and should remain. Despite his reasonable and courteous attempt, the route that he proposes would not work and would undermine the clause. That was not his intention, but I am sorry that I cannot accept his amendments.
Amendment negatived .
Amendments made : No. 182, in page 62, line 36, leave out which, being stored on a computer disc or by other electronic means,' and insert
stored on a computer disc or by other electronic means which'. No. 131, in page 62, line 38, at end insert
( ) in subsection (3)
(a) in paragraph (a), for the words "3 months" there shall be substituted the words "6 months" ; and
(b) in paragraph (b), for the words "two years" there shall be substituted the words "3 years" ;'.
No. 183, in page 62, line 45, leave out which, being stored electronically,' and insert
stored on a computer disc or by other electronic means which'. No. 132, in page 63, line 10, leave out 3' and insert 6'. No. 84, in page 63, line 14, at end insert
(8) The Protection of Children (Northern Ireland) Order 1978 shall be amended as provided in subsections (9) and (10) below. (9) In Article 2 (interpretation)
(a) in paragraph (2)
(i) in the definition of "child", after "child" there shall be inserted the words "subject to paragraph (3)(c)" ;
(ii) for the definition of "photograph" there shall be substituted the following definitions
""indecent pseudo-photograph" includes
(a) a copy of an indecent pseudo-photograph ; and
(b) data stored on a computer disc or by other electronic means which is capable of conversion into a pseudo-photograph ; "photograph" includes
(a) the negative as well as the positive version ; and
(b) data stored on a computer disc or by other electronic means which is capable of conversion into a photograph ;
"pseudo-photograph" means an image, whether made by
computer-graphics or otherwise howsoever, which appears to be a photograph ;"
(b) in paragraph (3)
(i) in sub-paragraph (a), after the word "photograph" there shall be inserted the words "or pseudo-photograph" ;
(ii) in sub-paragraph (b), at the end, there shall be inserted the words "and so as respects pseudo-photographs ; and" ;
(iii) after sub-paragraph (b) there shall be inserted the following sub- paragraph
"(c) if the impression conveyed by a pseudo-photograph is that the person shown is a child, the pseudo-photograph shall be treated as showing a child and so shall a pseudo-photograph where the predominant impression