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(ii) a police area which the Director General believes the person is in or is intending to come to.
103B Section 103A: supplemental
“appropriate date”, in relation to a qualifying offender, means the date or (as the case may be) the first date on which the offender was convicted, found or cautioned as mentioned in subsection (2) or (3) below;
“child” means a person under 18;
“the public” means the public in the United Kingdom;
“sexual harm” from a person means physical or psychological harm caused—
(a) by the person committing one or more offences listed in Schedule 3, or(b) (in the context of harm outside the United Kingdom) by the person doing, outside the United Kingdom, anything which would constitute an offence listed in Schedule 3 if done in any part of the United Kingdom;
“qualifying offender” means a person within subsection (2) or (3) below;
“vulnerable adult” means a person aged 18 or over whose ability to protect himself or herself from physical or psychological harm is significantly impaired through physical or mental disability or illness, through old age or otherwise.
(2) A person is within this subsection if, whether before or after the commencement of this Part, the person—
(a) has been convicted of an offence listed in Schedule 3 (other than at paragraph 60) or in Schedule 5,
(b) has been found not guilty of such an offence by reason of insanity,
(c) has been found to be under a disability and to have done the act charged against him in respect of such an offence, or
(d) has been cautioned in respect of such an offence.
(3) A person is within this subsection if, under the law in force in a country outside the United Kingdom and whether before or after the commencement of this Part—
(a) the person has been convicted of a relevant offence (whether or not the person has been punished for it),
(b) a court exercising jurisdiction under that law has made in respect of a relevant offence a finding equivalent to a finding that the person is not guilty by reason of insanity,
(c) such a court has made in respect of a relevant offence a finding equivalent to a finding that the person is under a disability and did the act charged against the person in respect of the offence, or
(d) the person has been cautioned in respect of a relevant offence.
(4) In subsection (3), “relevant offence” means an act which—
(a) constituted an offence under the law in force in the country concerned, and
(b) would have constituted an offence listed in Schedule 3 (other than at paragraph 60) or in Schedule 5 if it had been done in any part of the United Kingdom.
For this purpose an act punishable under the law in force in a country outside the United Kingdom constitutes an offence under that law, however it is described in that law.
(5) For the purposes of section 103A, acts, behaviour, convictions and findings include those occurring before the commencement of this Part.
(6) Subject to subsection (7), on an application under section 103A(4) the condition in subsection (4)(b) above (where relevant) is to be taken as met unless, not later than rules of court may provide, the defendant serves on the applicant a notice—
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(a) stating that, on the facts as alleged with respect to the act concerned, the condition is not in the defendant’s opinion met,
(b) showing the grounds for that opinion, and
(c) requiring the applicant to prove that the condition is met.
(7) The court, if it thinks fit, may permit the defendant to require the applicant to prove that the condition is met without service of a notice under subsection (6).
(8) Subsection (9) applies for the purposes of section 103A and this section.
(9) In construing any reference to an offence listed in Schedule 3, any condition subject to which an offence is so listed that relates—
(a) to the way in which the defendant is dealt with in respect of an offence so listed or a relevant finding (as defined by section 132(9)), or
(1) A sexual harm prevention order prohibits the defendant from doing anything described in the order.
(2) Subject to section 103D(1), a prohibition contained in a sexual harm prevention order has effect—
(a) for a fixed period, specified in the order, of at least 5 years, or
(3) A sexual harm prevention order—
(a) may specify that some of its prohibitions have effect until further order and some for a fixed period;
(b) may specify different periods for different prohibitions.
(4) The only prohibitions that may be included in a sexual harm prevention order are those necessary for the purpose of—
(a) protecting the public or any particular members of the public from sexual harm from the defendant, or
(b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom.
(5) In subsection (4) “the public”, “sexual harm”, “child” and “vulnerable adult” each has the meaning given in section 103B(1).
(6) Where a court makes a sexual harm prevention order in relation to a person who is already subject to such an order (whether made by that court or another), the earlier order ceases to have effect.
103D SHPOs: prohibitions on foreign travel
(1) A prohibition on foreign travel contained in a sexual harm prevention order must be for a fixed period of not more than 5 years.
(2) A “prohibition on foreign travel” means—
(a) a prohibition on travelling to any country outside the United Kingdom named or described in the order,
(b) a prohibition on travelling to any country outside the United Kingdom other than a country named or described in the order, or
(c) a prohibition on travelling to any country outside the United Kingdom.
(3) Subsection (1) does not prevent a prohibition on foreign travel from being extended for a further period (of no more than 5 years each time) under section 103E.
(4) A sexual harm prevention order that contains a prohibition within subsection (2)(c) must require the defendant to surrender all of the defendant’s passports at a police station specified in the order—
(a) on or before the date when the prohibition takes effect, or
(b) within a period specified in the order.
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(5) Any passports surrendered must be returned as soon as reasonably practicable after the person ceases to be subject to a sexual harm prevention order containing a prohibition within subsection (2)(c) (unless the person is subject to an equivalent prohibition under another order).
(6) Subsection (5) does not apply in relation to—
(a) a passport issued by or on behalf of the authorities of a country outside the United Kingdom if the passport has been returned to those authorities;
(b) a passport issued by or on behalf of an international organisation if the passport has been returned to that organisation.
(7) In this section “passport” means—
(a) a United Kingdom passport within the meaning of the Immigration Act 1971;
(b) a passport issued by or on behalf of the authorities of a country outside the United Kingdom, or by or on behalf of an international organisation;
(c) a document that can be used (in some or all circumstances) instead of a passport.
103E SHPOs: variations, renewals and discharges
(1) A person within subsection (2) may apply to the appropriate court for an order varying, renewing or discharging a sexual harm prevention order.
(b) the chief officer of police for the area in which the defendant resides;
(c) a chief officer of police who believes that the defendant is in, or is intending to come to, that officer’s police area;
(d) where the order was made on an application by a chief officer of police under section103A(4), that officer.
(3) An application under subsection (1) may be made—
(a) where the appropriate court is the Crown Court, in accordance with rules of court;
(b) in any other case, by complaint.
(4) Subject to subsections (5) and (6), on the application the court, after hearing the person making the application and (if they wish to be heard) the other persons mentioned in subsection (2), may make any order, varying, renewing or discharging the sexual harm prevention order, that the court considers appropriate.
(5) An order may be renewed, or varied so as to impose additional prohibitions on the defendant, only if it is necessary to do so for the purpose of—
(a) protecting the public or any particular members of the public from sexual harm from the defendant, or
(b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom.
Any renewed or varied order may contain only such prohibitions as are necessary for this purpose.
(6) The court must not discharge an order before the end of 5 years beginning with the day on which the order was made, without the consent of the defendant and—
(a) where the application is made by a chief officer of police, that chief officer, or
(b) in any other case, the chief officer of police for the area in which the defendant resides.
(7) Subsection (6) does not apply to an order containing a prohibition on foreign travel and no other prohibitions.
(8) In this section “the appropriate court” means—
(a) where the Crown Court or the Court of Appeal made the sexual harm prevention order, the Crown Court;
(b) where a magistrates’ court made the order, that court, a magistrates’ court for the area in which the defendant resides or, where the application is made by a chief
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officer of police, any magistrates’ court whose commission area includes any part of the chief officer’s police area;
(c) where a youth court made the order, that court, a youth court for the area in which the defendant resides or, where the application is made by a chief officer of police, any youth court whose commission area includes any part of the chief officer’s police area.
(1) This section applies where an application under section 103A(4) (“the main application”) has not been determined.
(2) An application for an order under this section (“an interim sexual harm prevention order”)—
(a) may be made by the complaint by which the main application is made, or
(b) if the main application has been made, may be made by the person who has made that application, by complaint to the court to which that application has been made.
(3) The court may, if it considers it just to do so, make an interim sexual harm prevention order, prohibiting the defendant from doing anything described in the order.
(a) has effect only for a fixed period, specified in the order;
(b) ceases to have effect, if it has not already done so, on the determination of the main application.
(5) The applicant or the defendant may by complaint apply to the court that made the interim sexual harm prevention order for the order to be varied, renewed or discharged.
103G SHPOs and interim SHPOs: notification requirements
(a) a sexual harm prevention order is made in respect of a defendant who was a relevant offender immediately before the making of the order, and
(b) the defendant would (apart from this subsection) cease to be subject to the notification requirements of this Part while the order (as renewed from time to time) has effect,
the defendant remains subject to the notification requirements.
(2) Where a sexual harm prevention order is made in respect of a defendant who was not a relevant offender immediately before the making of the order—
(a) the order causes the defendant to become subject to the notification requirements of this Part from the making of the order until the order (as renewed from time to time) ceases to have effect, and
(b) this Part applies to the defendant, subject to the modification set out in subsection (3).
(3) The “relevant date” is the date of service of the order.
(4) Subsections (1) to (3) apply to an interim sexual harm prevention order as if references to a sexual harm prevention order were references to an interim sexual harm prevention order, and with the omission of “(as renewed from time to time)” in both places.
(a) a sexual harm prevention order is in effect in relation to a relevant sex offender (within the meaning of section 88A), and
(b) by virtue of section 88F or 88G the relevant sex offender ceases to be subject to the notification requirements of this Part,
the sexual harm prevention order ceases to have effect.
(6) On an application for a sexual harm prevention order made by a chief officer of police, the court must make a notification order in respect of the defendant (either in addition to or instead of a sexual harm prevention order) if—
(a) the applicant invites the court to do so, and
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(b) it is proved that the conditions in section 97(2) to (4) are met.
(7) On an application for an interim sexual harm prevention order made by a chief officer of police, the court may, if it considers it just to do so, make an interim notification order (either in addition to or instead of an interim sexual harm prevention order).
103H SHPOs and interim SHPOs: appeals
(1) A defendant may appeal against the making of a sexual harm prevention order—
(a) where the order was made by virtue of section103A(2)(a)(i), as if the order were a sentence passed on the defendant for the offence;
(b) where the order was made by virtue of section103A(2)(a)(ii) or (iii), as if the defendant had been convicted of the offence and the order were a sentence passed on the defendant for that offence;
(c) where the order was made on an application under section103A(4), to the Crown Court.
(2) A defendant may appeal to the Crown Court against the making of an interim sexual harm prevention order.
(3) A defendant may appeal against the making of an order under section 103E, or the refusal to make such an order—
(a) where the application for such an order was made to the Crown Court, to the Court of Appeal;
(b) in any other case, to the Crown Court.
(4) On an appeal under subsection (1)(c), (2) or (3)(b), the Crown Court may make such orders as may be necessary to give effect to its determination of the appeal, and may also make such incidental or consequential orders as appear to it to be just.
(5) Any order made by the Crown Court on an appeal under subsection (1)(c) or (2) (other than an order directing that an application be re-heard by a magistrates’ court) is for the purposes of section 103E(8) or 103F (5) (respectively) to be treated as if it were an order of the court from which the appeal was brought (and not an order of the Crown Court).
103I Offence: breach of SHPO or interim SHPO etc
(1) A person who, without reasonable excuse, does anything that the person is prohibited from doing by—
(a) a sexual harm prevention order,
(b) an interim sexual harm prevention order,
(c) a sexual offences prevention order,
(d) an interim sexual offences prevention order, or
(2) A person commits an offence if, without reasonable excuse, the person fails to comply with a requirement imposed under section 103D(4).
(3) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years.
(4) Where a person is convicted of an offence under this section, it is not open to the court by or before which the person is convicted to make, in respect of the offence, an order for conditional discharge.
103J SHPOs and interim SHPOs: guidance
(1) The Secretary of State must issue guidance to chief officers of police and to the Director General of the National Crime Agency in relation to the exercise by them of their powers with regard to sexual harm prevention orders and interim sexual harm prevention orders.
(2) The Secretary of State may, from time to time, revise the guidance issued under subsection (1).
(3) The Secretary of State must arrange for any guidance issued or revised under this section to be published in such manner as the Secretary of State considers appropriate.”
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Sexual offences prevention orders and foreign travel orders
3 (1) Sections 104 to 122 (sexual offences prevention orders and foreign travel orders) are repealed.
(2) This paragraph extends only to England and Wales.
Sexual risk orders
4 Before section 123 there is inserted—
“Sexual risk orders (England and Wales)
122A Sexual risk orders: applications, grounds and effect
(1) A chief officer of police or the Director General of the National Crime Agency (“the Director General”) may by complaint to a magistrates’ court apply for an order under this section (a “sexual risk order”) in respect of a person (“the defendant”) if it appears to the chief officer or the Director General that the following condition is met.
(2) The condition is that the defendant has, whether before or after the commencement of this Part, done an act of a sexual nature as a result of which there is reasonable cause to believe that it is necessary for a sexual risk order to be made.
(3) A chief officer of police may make an application under subsection (1) only in respect of a person—
(a) who resides in the chief officer’s police area, or
(b) who the chief officer believes is in that area or is intending to come to it.
(4) An application under subsection (1) may be made to any magistrates’ court whose commission area includes—
(a) any part of a relevant police area, or
(b) any place where it is alleged that the person acted in a way mentioned in subsection (2).
(5) The Director General must as soon as practicable notify the chief officer of police for a relevant police area of any application that the Director has made under subsection (1).
(6) On an application under subsection (1), the court may make a sexual risk order if it is satisfied that the defendant has, whether before or after the commencement of this Part, done an act of a sexual nature as a result of which it is necessary to make such an order for the purpose of—
(a) protecting the public or any particular members of the public from harm from the defendant, or
(b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from harm from the defendant outside the United Kingdom.
(a) prohibits the defendant from doing anything described in the order;
(b) has effect for a fixed period (not less than 2 years) specified in the order or until further order.
(8) A sexual risk order may specify different periods for different prohibitions.
(9) The only prohibitions that may be imposed are those necessary for the purpose of—
(a) protecting the public or any particular members of the public from harm from the defendant, or
(b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from harm from the defendant outside the United Kingdom.
(10) Where a court makes a sexual risk order in relation to a person who is already subject to such an order (whether made by that court or another), the earlier order ceases to have effect.
122B Section 122A: interpretation
“child” means a person under 18;
“harm” from the defendant means physical or psychological harm caused by the defendant doing an act of a sexual nature;
“the public” means the public in the United Kingdom;
“vulnerable adult” means a person aged 18 or over whose ability to protect himself or herself from
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physical or psychological harm is significantly impaired through physical or mental disability or illness, through old age or otherwise.
(2) In that section “relevant police area” means—
(a) where the applicant is a chief officer of police, the officer’s police area;
(b) where the applicant is the Director General of the National Crime Agency—
(i) the police area where the person in question resides, or
(ii) a police area which the Director General believes the person is in or is intending to come to.
122C Sexual risk orders: prohibitions on foreign travel
(1) A prohibition on foreign travel contained in a sexual risk order must not be for a period of more than 5 years.
(2) A “prohibition on foreign travel” means—
(a) a prohibition on travelling to any country outside the United Kingdom named or described in the order,
(b) a prohibition on travelling to any country outside the United Kingdom other than a country named or described in the order, or
(c) a prohibition on travelling to any country outside the United Kingdom.
(3) Subsection (1) does not prevent a prohibition on foreign travel from being extended for a further period (of no more than 5 years each time) under section 122D.
(4) A sexual risk order that contains a prohibition within subsection (2)(c) must require the defendant to surrender all of the defendant’s passports at a police station specified in the order—
(a) on or before the date when the prohibition takes effect, or
(b) within a period specified in the order.
(5) Any passports surrendered must be returned as soon as reasonably practicable after the person ceases to be subject to a sexual risk order containing such a prohibition (unless the person is subject to an equivalent prohibition under another order).
(6) Subsection (5) does not apply in relation to—
(a) a passport issued by or on behalf of the authorities of a country outside the United Kingdom if the passport has been returned to those authorities;
(b) a passport issued by or on behalf of an international organisation if the passport has been returned to that organisation.
(7) In this section “passport” means—
(a) a United Kingdom passport within the meaning of the Immigration Act 1971;
(b) a passport issued by or on behalf of the authorities of a country outside the United Kingdom, or by or on behalf of an international organisation;
(c) a document that can be used (in some or all circumstances) instead of a passport.
122D Sexual risk order: variations, renewals and discharges
(1) A person within subsection (2) may by complaint to the appropriate court apply for an order varying, renewing or discharging a sexual risk order.
(b) the chief officer of police for the area in which the defendant resides;
(c) a chief officer of police who believes that the defendant is in, or is intending to come to, that officer’s police area;
(a) where the order was made on an application by a chief officer of police, that officer.
(3) Subject to subsections (4) and (5), on the application the court, after hearing the person making the application and (if they wish to be heard) the other persons mentioned in subsection
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(2), may make any order, varying, renewing or discharging the sexual risk order, that the court considers appropriate.
(4) An order may be renewed, or varied so as to impose additional prohibitions on the defendant, only if it is necessary to do so for the purpose of—
(a) protecting the public or any particular members of the public from harm from the defendant, or
(b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from harm from the defendant outside the United Kingdom.
Any renewed or varied order may contain only such prohibitions as are necessary for this purpose.
(5) The court must not discharge an order before the end of 2 years beginning with the day on which the order was made, without the consent of the defendant and—
(a) where the application is made by a chief officer of police, that chief officer, or
(b) in any other case, the chief officer of police for the area in which the defendant resides.
(6) Section 122B(1) applies for the purposes of this section.
(7) In this section “the appropriate court” means—
(a) the court which made the sexual risk order;
(b) a magistrates’ court for the area in which the defendant resides;
(c) where the application is made by a chief officer of police, any magistrates’ court whose commission area includes any part of the officer’s police area.
122E Interim sexual risk orders
(1) This section applies where an application for a sexual risk order (“the main application”) has not been determined.
(2) An application for an order under this section (“an interim sexual risk order”)—
(a) may be made by the complaint by which the main application is made, or
(b) if the main application has been made, may be made by the person who has made that application, by complaint to the court to which that application has been made.
(3) The court may, if it considers it just to do so, make an interim sexual risk order, prohibiting the defendant from doing anything described in the order.
(a) has effect only for a fixed period, specified in the order;
(b) ceases to have effect, if it has not already done so, on the determination of the main application.
(5) The applicant or the defendant may by complaint apply to the court that made the interim sexual risk order for the order to be varied, renewed or discharged.
122F Sexual risk orders and interim sexual risk orders: notification requirements
(1) A person in respect of whom a court makes—
(a) a sexual risk order (other than one that replaces an interim sexual risk order), or
(b) an interim sexual risk order,
must, within the period of 3 days beginning with the date of service of the order, notify to the police the information set out in subsection (2) (unless the person is subject to the notification requirements of this Part on that date).
(a) the person’s name and, where the person uses one or more other names, each of those names;
(b) the person’s home address.
(a) is subject to a sexual risk order or an interim sexual risk order (but is not subject to the notification requirements of this Part), and
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(b) uses a name which has not been notified under this section (or under any other provision of this Part), or changes home address,
must, within the period of 3 days beginning with the date on which that happens, notify to the police that name or (as the case may be) the new home address.
(4) Sections 87 (method of notification and related matters) and 91 (offences relating to notification) apply for the purposes of this section—
(a) with references to section 83(1) being read as references to subsection (1) above,
(b) with references to section 84(1) being read as references to subsection (3) above, and
(c) with the omission of section 87(2)(b).
122G Sexual risk orders and interim sexual risk orders: appeals
(1) A defendant may appeal to the Crown Court—
(a) against the making of a sexual risk order;
(b) against the making of an interim sexual risk order; or
(c) against the making of an order under section 122D, or the refusal to make such an order.
(2) On any such appeal, the Crown Court may make such orders as may be necessary to give effect to its determination of the appeal, and may also make such incidental or consequential orders as appear to it to be just.
(3) Any order made by the Crown Court on an appeal under subsection (1)(a) or (b) (other than an order directing that an application be re-heard by a magistrates’ court) is for the purposes of section 122D(7) or 122E(5) (respectively) to be treated as if it were an order of the court from which the appeal was brought (and not an order of the Crown Court).
122H Offence: breach of sexual risk order or interim sexual risk order etc
(1) A person who, without reasonable excuse, does anything that the person is prohibited from doing by—
(b) an interim sexual risk order,
(c) a risk of sexual harm order,
(d) an interim risk of sexual harm order,
(e) an order under section 2 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (risk of sexual harm orders in Scotland), or
(f) an order under section 5 of that Act (interim risk of sexual harm orders in Scotland),
(2) A person commits an offence if, without reasonable excuse, the person fails to comply with a requirement imposed under section 122C(4).
(3) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years.
(4) Where a person is convicted of an offence under this section, it is not open to the court by or before which the person is convicted to make, in respect of the offence, an order for conditional discharge.
122I Effect of conviction etc of an offence under section 122H etc
(1) This section applies to a person (“the defendant”) who—
(a) is convicted of an offence mentioned in subsection (2);
(b) is found not guilty of such an offence by reason of insanity;
(c) is found to be under a disability and to have done the act charged against him in respect of such an offence; or
(d) is cautioned in respect of such an offence.
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(a) an offence under section 122H or 128 of this Act;
(b) an offence under section 7 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (contravention of risk of sexual harm order or interim risk of sexual harm order in Scotland).
(a) a defendant was a relevant offender immediately before this section applied to the defendant, and
(b) the defendant would (apart from this subsection) cease to be subject to the notification requirements of this Part while the relevant order (as renewed from time to time) has effect,
the defendant remains subject to the notification requirements.
(4) Where the defendant was not a relevant offender immediately before this section applied to the defendant—
(a) this section causes the defendant to become subject to the notification requirements of this Part from the time the section first applies to the defendant until the relevant order (as renewed from time to time) ceases to have effect, and
(b) this Part applies to the defendant, subject to the modification set out in subsection (5).
(5) The “relevant date” is the date on which this section first applies to the defendant.
(6) In this section “relevant order” means—
(a) where the conviction, finding or caution within subsection (1) is in respect of a breach of a sexual risk order or a risk of sexual harm order, that order;
(b) where the conviction, finding or caution within subsection (1) is in respect of a breach of an interim sexual risk order or an interim risk of sexual harm order, any sexual risk order or risk of sexual harm order made on the hearing of the application to which the interim order relates or, if no such order is made, the interim order.
(7) In subsection (6) “risk of sexual harm order” and “interim risk of sexual harm order” include orders under sections 2 and 5 (respectively) of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005.
122J Sexual risk orders and interim sexual risk orders: guidance
(1) The Secretary of State must issue guidance to chief officers of police and to the Director General of the National Crime Agency in relation to the exercise by them of their powers with regard to sexual risk orders and interim sexual risk orders.
(2) The Secretary of State may, from time to time, revise the guidance issued under subsection (1).
(3) The Secretary of State must arrange for any guidance issued or revised under this section to be published in such manner as the Secretary of State considers appropriate.”
Risk of sexual harm orders
5 (1) Sections 123 to 129 (risk of sexual harm orders) are repealed.
(2) This paragraph extends only to England and Wales.
Application etc of orders
6 After section 136 there is inserted—
“136ZA Application of orders throughout the United Kingdom
(1) In this section “relevant order” means—
(a) a sexual harm prevention order;
(b) an interim sexual harm prevention order;
(c) a sexual offences prevention order;
(d) an interim sexual offences prevention order;
(g) an interim sexual risk order;
(h) a risk of sexual harm order;
(i) an interim risk of sexual harm order;
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(j) an order under section 2 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (risk of sexual harm orders in Scotland);
(k) an order under section 5 of that Act (interim risk of sexual harm orders in Scotland).
(2) For the purposes of sections 103I, 113, 122, 122H and 128, prohibitions imposed by a relevant order made in one part of the United Kingdom apply (unless expressly confined to particular localities) throughout that and every other part of the United Kingdom.
136ZB Order ceases to have effect when new order made
(1) Where a court in England and Wales makes an order listed in the first column of the following Table in relation to a person who is already subject to an order listed opposite it in the second column, the earlier order ceases to have effect (whichever part of the United Kingdom it was made in) unless the court orders otherwise.
| New order | Earlier order |
| Sexual harm prevention order | —sexual offences prevention order; —foreign travel order. |
| Sexual risk order | —risk of sexual harm order; —foreign travel order. |
(2) Where a court in Northern Ireland or Scotland makes an order listed in the first column of the following Table in relation to a person who is already subject to an order or prohibition listed opposite it in the second column, the earlier order or prohibition ceases to have effect (even though it was made or imposed by a court in England and Wales) unless the court orders otherwise.
(a) “court”, in Scotland, includes sheriff;
(b) “risk of sexual harm order” includes an order under section 2 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005.”’.—(Damian Green.)
Brought up, read the First and Second time, and added to the Bill.
Injunction—best interests of the child
‘The courts must take into account the best interests of the child as a primary consideration when deciding whether to impose the following—
(b) the terms of any prohibition or requirement;
(c) sanctions for breach of an injunction; and
(d) when determining reporting of a child’s case.’.—(Simon Hughes.)
Brought up, and read the First time.
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6.45 pm
Simon Hughes (Bermondsey and Old Southwark) (LD): I beg to move, That the clause be read a Second time.
Madam Deputy Speaker (Dawn Primarolo): With this it will be convenient to discuss the following:
Amendment 158, in clause 1, page 1, line 8, after ‘conduct’, insert ‘that might reasonably be regarded as’.
Amendment 163, page 1, line 10, leave out ‘and’ and insert ‘,’.
Amendment 164, page 1, line 10, after ‘convenient’, insert ‘and proportionate’.
Amendment 159, page 2, line 1, leave out ‘doing anything’ and insert ‘specified actions’.
Amendment 160, page 2, line 2, after ‘injunction’, insert
‘which relate to the anti-social behaviour which the respondent has engaged or threatened to engage in’.
Amendment 161, page 2, line 3, leave out ‘anything’ and insert ‘specified actions’.
Amendment 162, page 2, line 3, after ‘injunction’, insert
‘which relate to the anti-social behaviour which the respondent has engaged or threatened to engaged in’.
Amendment 165, page 2, leave out line 6.
Government amendments 1 to 12.
Amendment 166, in clause 12, page 6, line 29, after ‘court’, insert
‘is satisfied that the exclusion is necessary and proportionate, and’.
Government amendments 13 to 15.
Amendment 167, in clause 21, page 11, line 24, after ‘satisfied’, insert
‘, according to the criminal standard of proof.’.
Amendment 168, page 11, line 27, leave out ‘help in preventing’ and insert ‘prevent’.
Amendment 169, page 11, line 31, leave out ‘doing anything’ and insert ‘specified actions’.
Amendment 170, page 11, line 31, after ‘order’, insert
‘which relate to the anti-social behaviour which the respondent has engaged in’.
Amendment 171, page 11, line 32, leave out ‘anything’ and insert ‘specified actions’.
Amendment 172, page 11, line 32, after ‘order’, insert
‘which relate to the anti-social behaviour which the respondent has engaged in’.
Amendment 173, page 12, leave out line 3.
Amendment 174, in clause 22, page 12, line 44, at end insert—
‘(9) The courts must take into account the best interests of the child as a primary consideration when determining reporting of a child’s case.’.
Amendment 175, in clause 29, page 16, line 40, at end insert—
‘(7) The courts must taken into account the best interests of the child as a primary consideration when determining reporting a child’s case.’.
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Amendment 176, in clause 34, page 20, line 17, at end add—
‘(c) any other form of peaceful assembly.’.
Government amendments 19 to 44.
Amendment 177, page 61, line 22, leave out Clause 91.
Government amendments 45 to 48.
Amendment 96, in schedule 8, page 155, line 32, leave out paragraphs 24 to 27.
Simon Hughes: I wish to speak to the new clause and amendments that I and the hon. Member for Aberavon (Dr Francis) tabled, and I will also say a word about the Government amendments and Labour’s amendment 96.
Our amendments all arise from the deliberations of the Joint Committee on Human Rights, which has just completed its report on the Bill. I welcome the Minister of State, Home Department, my hon. Friend the Member for Lewes (Norman Baker)—if I can have his attention for a second—to his new responsibilities. I hope it will help him and the House if I say that we do not intend to seek to divide the House on the new clause or the amendments, but I hope that he will be able to give me a positive and constructive response. On many occasions we have been on the same side, trying to get positive and constructive responses from previous Conservative and Labour Governments. We have not always succeeded, but I hope that the new form of double act will allow me to ask for some reasonable changes and him to agree, either today or very shortly, to the changes that we seek.
I will put on record the relevant parts of the summary of the Joint Committee’s report, which we published on 9 October. It was the Committee’s fourth report of this Session. It states:
“The Anti-social Behaviour, Crime and Policing Bill was introduced in the House of Commons on 9 May 2013…It is a substantial Bill containing many provisions with significant human rights implications”.
The new clause relates to one of those implications. All the amendments in this group have human rights implications, which is why Mr Speaker has grouped them
We should like Ministers to pay attention to the issue of antisocial behaviour, which I shall come to expressly; to that of forced marriage; and, probably most politically controversially, to those of powers to stop, question, search and detain at ports, and compensation for miscarriages of justice. We shall come to those matters later in our deliberations.
We are grateful for the way the Bill team facilitated the Committee’s scrutiny of those issues, but we have three qualifications, as set out in our unanimous report. It states:
“First, we doubt whether the mechanisms for ensuring that a systematic analysis of the impact of laws and policies on children’s rights is carried out are yet embedded across Whitehall. We repeat our call for the Government to reassure Parliament that in future it will conduct a thorough assessment of the impact of legislation on the rights of children under the UN Convention on the Rights of the Child before the legislation is introduced. We propose to raise with the Children’s Commissioner the question of what can
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be done, in practical terms, to accelerate the Government’s progress towards implementing its undertaking to Parliament of nearly three years ago.
Second, the number of significant Government amendments to the Bill with potentially significant human rights implications has made our scrutiny—”
any Committee’s scrutiny, but ours in particular—
“of the Bill’s human rights compatibility more difficult”.
We take up that issue with the Leader of the House on a regular basis, because the more amendments are tabled late in the day, the more difficult Committees such as ours find it to report to the House and advise colleagues on how to respond. The summary continues:
“Third, the Government has not always provided us with information it has promised in sufficient time to enable us to scrutinise it adequately. We call on the Government, once again, to ensure in future that we are provided with the information we request in time to inform our scrutiny of Government Bills.”
Let me address the new clause and amendments to the antisocial behaviour proposals collectively, and then I will consider them individually although I do not anticipate detaining the House for too long. Parts 1 to 6 of the Bill reform current measures on antisocial behaviour, and the Committee’s view is that preventive measures against antisocial behaviour are, in principle, a welcome fulfilment of the state’s positive obligation to protect people against having their rights interfered with by others—that is the important context in which we consider all human rights implications of the Bill’s antisocial behaviour provisions.
New clause 33 would add to the Bill the requirement that
“The courts must take into account the best interests of the child as a primary consideration”
when imposing an injunction. It is a common principle of criminal and welfare law that the best interests of children be taken into account, and we would like that written into the Bill. The new clause simply states that the best interests of the child should be taken into account in four situations, namely when the courts are deciding to impose
“an injunction;
the terms of any prohibition or requirement;
sanctions for breach of an injunction; and
when determining reporting of a child’s case.”.
The Committee considered the human rights compatibility of the new civil injunction to prevent nuisance and annoyance—an IPNA. The Bill states that an IPNA may be imposed if the court considers it “just and convenient” to prevent antisocial behaviour—a lower test than the test of necessity required by human rights law. We also considered that the new IPNA definition of antisocial behaviour is too broad and not clear enough. I hope Ministers will consider positively the idea that the Bill should be as clear as possible and compatible with other legislation; we should not start introducing concepts not found in other legislation, which would mean that people would not know how the law would be interpreted.
In the Committee’s view, the Bill’s current provisions on the prohibitions and requirements that can be attached to an injunction are far too broad. Furthermore, we have not been persuaded that it is necessary to state expressly that prohibitions and requirements in an IPNA must “so far as practicable” avoid any conflict with religious beliefs. The Committee is clear—the House has been clear about this on many occasions—that the
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freedom to hold religious beliefs, or any beliefs that may not be from a religious perspective, is not a relative right but an absolute right that cannot be interfered with. The power to exclude a person from his or her home through the use of an IPNA is a severe measure, and the Committee believes further provision is required to ensure that such a power is used only when necessary.
As the new sanctions can be imposed on children as young as 10, the Committee also scrutinised the provisions and considered their impact on the rights of children. To reduce the potential negative impact of IPNA measures on children, we recommend that the courts must take into account the best interests of the child as a primary consideration in any IPNA legal proceedings. That explains the Committee’s position, and I will now consider quickly other amendments in the group.
Dr Huppert: My right hon. Friend is making an extremely good point. Has he had a chance to consider the report by the Home Affairs Committee which, during pre-legislative scrutiny of the Bill, came up with many of the concerns he has highlighted? Perhaps the fact that two different Committees raised the same concerns will mean that our hon. Friend the Minister might reflect more on the issue.
Simon Hughes: I am aware of the report by the Home Affairs Committee. One good thing is that since I started—my hon. Friend was very young; indeed, he may not have been alive, or just about, I think—Select Committees have become more useful and effective. They play a strong and useful part not just in considering issues, as the Home Affairs Committee has done, but in looking at legislation and reporting to the House. If we set up Select Committees like the Home Affairs Committee, or the Joint Committee on Human Rights, on which I and the hon. Member for Aberavon have the privilege to serve and which he has the honour to chair, it is nonsensical if our recommendations are not properly considered by the Government.
Amendments 158, 163, 164, 159 to 162, 165 and 166 relate to part 1 of the Bill. They do not require any great supporting speech as I hope they are drafted clearly and make their point. Amendment 158 would amend clause 1 on the power to grant injunctions, and would add to subsection (2) the words “might reasonably be regarded”. If amended, the clause would read:
“The first condition is that the court is satisfied, on the balance of probabilities, that the respondent has engaged or threatens to engage in conduct that might reasonably be regarded as capable of causing nuisance or annoyance to any person”.
That seeks to introduce an objective rather than a subjective test, which we believe would be helpful in ensuring the law is clear.
Amendments 163 and 164 go together and would mean that one test a court should apply when considering whether to impose an injunction, in addition to whether it is “just and convenient”, should be whether it is “proportionate”. That is a simple proposition, and as I know from my constituency work—and, I guess, the same is true for colleagues—it is always difficult to judge whether going to court and getting an injunction is the right way to deal with what may be growing, yet still relatively modest, antisocial behaviour. We think proportionality is appropriate and that it is better to write that into the Bill.
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Amendments 159 to 162 ask for greater specificity about what the injunction prohibits, and we have tried to tidy up the language a bit—to put it bluntly—and remove some relatively loose wording. Clause 1(4) currently reads:
“An injunction under this section may for the purpose of preventing the respondent from engaging in anti-social behaviour—
prohibit the respondent from doing anything described in the injunction;
require the respondent to do anything described in the injunction.”
There is a prohibition provision and a requirement provision. We ask the House to consider whether, rather than “do anything” the clause could be a bit more specific—that is a pretty general phrase not normally found in legislation. Amendment 159 would prohibit the respondent from “specified actions”, so the injunction would state, “You cannot throw stones through windows”, rather than, “You cannot do anything,” which may or may not be specified. “You must stop behaving badly” seems a rather unsatisfactory and general instruction, whether it is men behaving badly, or women or anybody else.
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Amendment 160 would add the phrase
“which relate to the anti-social behaviour which the respondent has engaged or threatened to engage in”
to the end of subsection (4), so we are clear that we think the Bill should link the prohibition contained in the injunction with the behaviour. For example, if people were regularly dive-bombing in Canada Water, which is a lovely bit of my constituency in the Surrey docks, in a way that frightened all the anglers and the fish and the pensioners sitting on the seats, it would be appropriate to have a prohibition that related to the antisocial behaviour of dive-bombing into Canada Water. It would not be appropriate to have a prohibition against throwing paper aeroplanes through the windows of the old people’s home or whatever. I think people get the idea. As the hon. Member for Aberavon would say, we are not a Committee that tries to create extra legislation or complication. We spend quite a lot of time trying to make things simpler and clearer in language that ordinary people can understand, so I hope that is appreciated.
Amendments 161 and 162 relate to the requirement part of the injunction. At present the injunction can
“(b) require the respondent to do anything described in the injunction.”
We would like “anything” to be replaced by “specified actions”. Amendment 162 would add at the end of the requirement provisions the same wording as amendment 160, so it would read:
“(b) require the respondent to do specified actions”
“which relate to the anti-social behaviour which the respondent has engaged or threatened to engage in.”
We hope that makes the provision clearer and we hope the Government will buy that proposal.
Dr Huppert:
My right hon. Friend is making an extremely good series of points. Does he share a concern about positive actions? There may be cases where somebody,
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through no fault of their own, cannot perform a positive action. There were cases with indeterminate sentences, for example, where prisoners were required to do various courses, which in some cases were not available for them to do. Would that also be checked?
Simon Hughes: One of the things that I hope we do better now because of Select Committees is take time to get Bills right. We have pre-legislative scrutiny which—[Interruption.] The hon. Member for Kingston upon Hull North (Diana Johnson) knows that I was critical of large parts of the Health and Social Care Bill and I have been critical about the process for dealing with the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill, which has just gone through this House. I said here, and I have not changed my view, that the Government should have submitted the Bill for proper pre-legislative scrutiny. Unless it is absolutely impossible, pre-legislative scrutiny should always take place because draftspeople may do a good first job, but they may not think of all the issues that we, representing all parts of the United Kingdom, might spot and be able to use our experience to deal with. I agree with my hon. Friend the Member for Cambridge (Dr Huppert), and I hope the Government will be positive. I am sure these issues crop up in Lewes as much as in Cambridge and in Bermondsey and Southwark.
The religious beliefs issue is the last in this set of amendments. We ask the Minister to consider removing clause 1(5)(a). At present there is a list of four things which the prohibitions and requirements in an injunction must, so far as practicable, be such as to avoid: any conflict with the respondent’s caring responsibilities, any interference with the times at which the respondent normally works or attends school or any other educational establishment, and any conflict with the requirements of any other court order or injunction to which the respondent may be subject. The fourth one is
“any conflict with the respondent’s religious beliefs”.
As I indicated earlier, we think that that cannot properly be there because somebody’s right to hold a religious belief is absolute and therefore should not be qualified by the words
“must, so far as practicable, be such as to avoid—
(a) any conflict with the respondent’s religious beliefs”.
I am encouraged to think that the Minister in particular will be helpful because he has a good human rights record and I am sure he will want to say, on behalf of the Home Office, that the Home Office is positive about that.
There is one more amendment in the group relating to part 1—amendment 166— which deals with whether people can be excluded from their homes. We are clear that the sanction of excluding somebody from their home should be a sanction of last resort. It is a very serious thing to take away that right. At present there is a power to exclude a person from home in cases of violence or risk of harm. Clause 12 states:
“(1) An injunction under section 1 may have the effect of excluding the respondent from the place where he or she normally lives only if—
(a) that place is owned or managed by a local authority or a housing provider,
(b) the injunction is granted on the application of the local authority or housing provider, and
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(c) the court thinks that—
(i) the anti-social behaviour in which the respondent has engaged or threatens to engage consists of or includes the use or threatened use of violence against other persons, or
(ii) there is a significant risk of harm to other persons from the respondent.”
This is a well publicised issue. In my borough, both when my colleagues were running the administration and when it has been under Labour administration, there has been discussion publicly as well as among councillors about whether an injunction should be used to kick people out of their council home or their housing association home, and if so, in what circumstances. In a way, such a provision is slightly discriminatory because it applies only to people who are in publicly funded housing; it does not apply to someone in private rented property. That remains an issue. We want the Minister to be positive about our amendment 166, which would add to subsection (c) one more condition—that the court has to be satisfied that the exclusion is necessary and appropriate. Of course, if someone has engaged or threatens to engage in violence, or has threatened other people in the house, whether it is domestic violence among members of a family or household or otherwise, the logic might be that they should be excluded. I do not resile from that at all, but because it is such a draconian solution the court needs to be clear that it is necessary and appropriate. That is the run of amendments in relation to part 1.
There is a smaller number of amendments relating to part 2, which is about criminal behaviour orders. The Committee recommends that the appropriate standard of proof required to establish anti-social behaviour for the purpose of a criminal behaviour order, which is a new order being introduced by the Government, should be made clear on the face of the Bill. The reason we say that is that it could be assumed that it was a civil standard of proof, as opposed to a criminal standard of proof. We think we ought to make that clear, not just so that the public know, but so that law enforcers and the public authorities know.
The Bill provides that a criminal behaviour order may be imposed if the court considers it “will help in preventing” anti-social behaviour. The Joint Committee on Human Rights does not consider this to be an appropriate or clear legislative test and we recommend that it is amended. As with the previous section, we consider that the broad and open-ended definition of the prohibitions and positive requirements that may be included in a criminal behaviour order do not satisfy the requirement of legal certainty, and we recommend to colleagues and to Government that the Bill be amended to achieve greater certainty.
Amendment 167 inserts after “satisfied” the words
“according to the criminal standard of proof”
Amendment 168 would replace the words “help in preventing” with the single word “prevent”. Deciding whether something will help in preventing some behaviour gets us into rather esoteric territory and does not provide as clear a standard of proof as we would wish.
Amendment 169 is the same as an amendment we suggested to part 1, and would mean that instead of using the words “doing anything” to describe the actions, “specified actions” would have to be set out.
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Amendment 170 is also similar to one of our amendments to part 1, and would ensure that the criminal behaviour orders
“relate to the anti-social behaviour which the respondent has engaged in”.
That would mean that there was a link between the activity and the public response.
Amendment 171 is a further amendment to clause 21 to make it is slightly more specific and, again, uses the phrase “specified actions” rather than “anything”. Amendment 172 makes the same change as amendment 170 a little further on, ensuring that the order relates to the antisocial behaviour in question.
Amendment 173 would leave out line 3 on page 12, which contains the same qualification as earlier about religious beliefs. The amendment would mean that the absolute right to religious beliefs would not be qualified when prohibitions and requirements in a criminal behaviour order were being considered by the authorities. We are trying to ensure that parts 1 and 2 are consistent and we hope that the Government will be positive about that.
Amendments 174 and 175 would add the following sentence, which reflects the principle I set out at the beginning of my speech, to the end of clauses 22 and 29:
“The courts must take into account the best interests of the child as a primary consideration when determining reporting of a child’s case.”
We are seeking to ensure that the duty of the court is on the face of the Bill.
Amendment 176, the last in the group, applies to clause 34, which can be found on pages 19 and 20 of the Bill. Its last subsection states:
“A constable may not give a direction to a person under section 33 if the person is one of a group of persons who are—
(a) engaged in conduct that is lawful under section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992 (peaceful picketing), or
(b) taking part in a public procession of the kind mentioned in subsection (1) of section 11 of the Public Order Act 1986 in respect of which…written notice has been given…or…written notice is not required”—
that is, a lawful public procession. We think that, after that, a provision should be included so that a police officer cannot give a direction if people are engaging in any other lawful form of public assembly. There are public assemblies that are not marches or picketing but that are perfectly lawful, and we do not think that they should be interfered with under the powers in the Bill. I hope that my civil libertarian colleagues on both sides of the House will fully support that.
That is part 3 dealt with, which leaves only part 5. It deals with the recovery of possession on riot-related antisocial behaviour grounds. The Committee’s view is simply put:
“While we recognise the seriousness of riot-related offences, we are not persuaded by the Government’s justification for the new discretionary ground of possession for riot-related anti-social behaviour. We are concerned about its potential serious implications for family members, and consider that it may disproportionately affect women and children. We also consider that it amounts to a punishment rather than a genuine means of preventing harm to others. We therefore recommend that this provision is removed from the Bill.”
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Let me pause and say that I am conscious that that area is controversial. The controversy arose in my constituency a year and a bit ago, in the summer, when we had “riots” on the streets of Southwark and—not to a huge degree, but to some degree—on the Walworth road and in Peckham. Other cities in Britain as well as other parts of London were affected by riots. The question is how we deal with those who are caught rioting. The issue that was the subject of widespread discussion was whether it is right to take away a home when one of the people living there has been involved in rioting. Is it right that a 15 or 17-year-old youngster living in a council property in Lewes, Cambridge, Southwark, Kingston-upon-Hull or anywhere else, should have their home taken away?
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The Select Committee makes the point that such a provision is more likely to punish innocent women and children for the mistake of somebody who is more likely to be male, and more likely to be a teenager. That will not necessarily be the case: some of the riots in London involved people who were certainly not teenagers, and some who were certainly not males. They were caught on CCTV and by other cameras. We were very clear, however, that we should remove from the Bill the ability to give power to recover possession on riot-related antisocial behaviour grounds.
I am not an expert, but I believe that most local authorities have the power to terminate possession of tenancies on the basis that somebody has breached their tenancy agreement. It is certainly a breach of a tenancy agreement to behave in a way that seriously causes a nuisance to one’s neighbours or community. There are issues about how close that has to be, and so on. I ask the Government to be very careful in reflecting on the question. Although the easy populist line might be that it is good to have such a power on recovery in the Bill, I ask them to reflect on whether in fact it might be excessive and on the idea that it would not necessarily deal with the offence.
I am not sure and have never been persuaded that taking a home away from family X when one of the children has been involved in breaking the windows of the mobile phone store down the road will stop that youngster breaking the windows of another store later on. It does not seem to me that the sanction on the family as a whole will necessarily deal with what might be the latest in a succession of bad behaviour.
This group contains the largest group of amendments from the Joint Committee on Human Rights to be dealt with today. I hope that I have put the case clearly. We have no objection to the Government amendments that my hon. Friend the Minister will no doubt move later. We do not support the Labour amendment that, obviously, wants to keep the law as it is and to keep antisocial behaviour orders as they are, because the Government think they have a better answer, which is why they have introduced the Bill.
Mr Steve Reed (Croydon North) (Lab):
Let me start by paying tribute to my hon. Friend the Member for Ashfield (Gloria De Piero) for the way in which she ably steered this Bill through Committee on behalf of the
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Opposition and for her work more generally as part of our shadow Home Office team before her well-deserved promotion last week. I also welcome the Minister to his new role and, along with my colleagues, I look forward to debating these important issues with him.
Antisocial behaviour orders have been the cornerstone of the fight against antisocial behaviour since Labour came to power in 1997. In that year, the previous Tory Government had failed to address a problem that blighted communities up and down the country, from suburban lanes to inner-city estates, for which people were long overdue a Government response.
ASBOs are a tough, fair and proportionate last response to persistent perpetrators of antisocial behaviour. They require a criminal burden of proof to be brought in, they are a last resort where other interventions have failed and they work because they are backed by the threat of criminal sanction. In seeking to repeal the legislation that brought in ASBOs, the Government are taking a retrograde and misguided step that will not be welcomed by the communities that live in fear of antisocial behaviour and that have come to know that the police have the power to take tough action backed by criminal sanctions if necessary.
In the Government’s most recent crime survey, 80% of respondents said they believed that antisocial behaviour was increasing under this Government since the general election. One third of respondents said that they had either been a victim of, or witness to, antisocial behaviour. They will be wondering why the Government have chosen to respond to people’s concerns not by toughening the legislation or by empowering the police to take action, but by going soft, taking away the threat of criminal sanction, taking police off the beat to attend training on new and weaker powers of response, and requiring the new injunctions to be taken out not in magistrates courts, which would mean they could be dealt with quickly and efficiently, but in county courts, which are slow and overburdened. Amendment 96 seeks not to prevent the Government from introducing injunctions to prevent nuisance and annoyance—they could be a useful alternative for the police to consider using—but to keep ASBOs on the statute book, leaving it to local councils and police forces to decide what best suits their local areas and needs.
I speak from experience. Before the people of Croydon North elected me to the House last November, I spent nearly seven years as leader of Lambeth council in south London. When Labour won power there in 2006, we found that the Tory-Lib Dem coalition had spent the previous three years stalling ASBOs on ideological grounds. One year, it issued none at all. As a consequence, antisocial behaviour remained too high, without sanction. Young people drifted from antisocial behaviour to low-level crime, and then to high-level crime, including street robberies. Gang violence rose. The fear of crime and the perception that local streets were simply not safe became endemic.
One of the first things the Labour-led council did on taking power was clamp down on antisocial behaviour. Issuing ASBOs, working closely with the police, was a key part of the response.
Kelvin Hopkins (Luton North) (Lab):
I congratulate my hon. Friend on his appointment. Conservatives and Liberal Democrats represent areas that are much more
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prosperous; Labour MPs typically represent by and large urban constituencies, with disadvantaged communities. Is it not the case that ASBOs are much more relevant to the constituencies that Labour Members represent?
Mr Reed: My hon. Friend makes an interesting point, but antisocial behaviour can happen in any community. Government Members ought to listen to the people they represent, who do not wish to see them watering down the responses and toolkit available to tackle antisocial behaviour.
To refer again to my experience, Lambeth council increased the use of ASBOs to achieve a reduction in antisocial behaviour not for the slogans or press releases, or to try to look tough, but because it was needed to get a grip of our streets and return confidence to the law-abiding majority of residents. Government Members cannot tell me that ASBOs do not work because I saw how crime fell when a newly elected Labour council worked alongside the police to use ASBOs to great effect in making our streets and our communities safe again.
ASBOs work in part because they are backed by a criminal sanction. Breaching an ASBO is not something to be taken lightly—it is a criminal offence. Persistent antisocial behaviour is deeply damaging to local communities, and people expect effective sanctions. With Labour’s ASBOs, that is exactly what they got. Instead, the Government propose to take away the criminal sanction. Offenders can breach IPNAs in the full knowledge that they are not committing a crime. If the police or local councils want action taken against someone who has breached their IPNA and who is terrorising a local community, they will not get support from the criminal justice system. There is no automatic penalty. Instead, the breach of an IPNA will lead to the potential of civil action brought under the contempt of court proceedings. Offenders across the country will be rejoicing that the Government have gone soft, while the law-abiding majority will be horrified.
The Government’s proposal is not only a weak response to antisocial behaviour, but the police and local councils will pay for it themselves. Instead of criminal proceedings being brought by the Crown Prosecution Service, the police will have to bring a civil action in the courts at their own expense.
Stephen Phillips (Sleaford and North Hykeham) (Con): Why, if ASBOs with criminal penalties attached are so successful, do 70% to 80% of teenagers against whom they are made breach them?
Mr Reed: I have given the hon. and learned Gentleman examples of how we successfully used ASBOs to drive down antisocial behaviour and offending of that kind, so I do not take his point.
Dr Huppert: The hon. Gentleman argues the case for ASBOs passionately, but I am not sure hon. Members agree that they were as effective as he suggests. Has he seen opinion polls such as the one done by Angus Reid last year? Its survey found that only 8% believe that ASBOs have been successful in curbing antisocial behaviour in the UK.
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Mr Reed: That might be the hon. Gentleman’s view and that of many of his colleagues, but many in the police service and elsewhere do not share it. I do not take that view.
In abolishing ASBOs and replacing them with IPNAs, the Government are not only taking away the power of the police to clamp down effectively on antisocial behaviour, but making the police pay for any action that follows from their hugely diminished budgets. One chief inspector has said, on the record, that the costs of pursuing such action through the civil courts would be in the region of £1,500 on every occasion. Based on last year’s court figures for breaches of ASBOs, the switch to IPNAs will cost councils and police forces another £1.5 million a year. That £1.5 million will be taken from two of the hardest-hit parts of the public sector. If a 20% cut to policing was not bad enough, hitting the police with a £1.5 million additional annual bill just for doing their job in tackling antisocial behaviour is a pretty low and unwelcome blow.
As with all costs, the proposal introduces disincentives. In the Public Bill Committee’s evidence-taking sessions, the chair of the Police Federation, Steve Williams, was asked whether the cost of pursuing an IPNA breach, both in financial and staff resourcing terms, would deter the police from taking action, to which he replied:
“That is a strong possibility. Yes.”—[Official Report, Anti-social Behaviour, Crime and Policing Public Bill Committee, 18 June 2013; c. 9, Q11.]
In Committee, Government Members said that IPNAs were necessary because they, unlike ASBOs, would not lead to a criminal record. They believe that criminalising children is wrong. However, breaching an ASBO is the criminal offence, not being subject to one. I must tell Government Members who share those concerns that IPNAs have been roundly criticised for lowering the burden of proof and for their lack of proportionality. Twenty-five organisations, including Liberty, the Children’s Society and Barnardo’s, put their names to a letter to The Times criticising IPNAs for their low burden of proof, and because they do not require “any form of intent”. The letter states:
“Such ill-thought out legislation will sweep up all kinds of non-criminal and non-serious behaviour, wasting police time and clogging up the courts. It threatens to divert resources from genuinely harmful or distressing behaviour, where the police and other services should be focussed”.
Simon Hughes (Bermondsey and Old Southwark) (LD): I warmly welcome the hon. Gentleman to his new responsibilities. I remember his days as Labour leader of Lambeth very well. I understand that he would rather keep ASBOs. If the criticism he cites from the newspaper letter is right, and if he shares it, will he support the cross-party amendments from the Joint Committee on Human Rights, which would make clear exactly what the standard of proof should be and introduce other protections?
Mr Reed: I argue that we should retain ASBOs alongside IPNAs as alternatives for the police and local councils to choose as they believe appropriate in the circumstances.
The IPNA will be available whenever behaviour is found to be likely to cause nuisance or annoyance. I can give examples from my constituency of Croydon North. I have received complaints from residents about children
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playing and making a noise in the street. They are at liberty to raise their grievances, but there is a question of proportionality. Under the Government’s proposals, we could be left in the farcical situation that children get handed down a court order for playing, while the hardened offender gets let off the hook with no sanction. It is a perverse and muddled policy from Ministers.
7.30 pm
Let me be clear: Labour would not scrap ASBOs if we were in power. We believe that communities deserve better than a watering-down of powers to tackle antisocial behaviour. I would be grateful if the Minister addressed, when he replies to the debate, the growing controversy between the Home Office and the Welsh Government in relation to Government amendment 82. I understand that the Welsh Government have made it clear that they object to what the Government are doing in watering down powers in Wales to deal with antisocial behaviour. It is clear that such a change will require a legislative consent order in the Welsh Assembly, which they are not willing to give. It is not something that we have the time to debate fully today given the constraints in the programme motion, but I am sure the Minister will want to put his position on record before this controversial change reaches the other place.
The Welsh Government are opposed to this change and so are we. We believe the police deserve better than to have one hand tied behind their back when trying to clamp down on offending. Local authorities deserve better than to be hit with new charges for trying to prosecute persistent antisocial behaviour. We believe that behaviour that blights lives demands a tough response. ASBOs give police and councils the ability to clamp down and target offenders: IPNAs will not. Many of my former colleagues who still lead local authorities are horrified at the prospect of losing a power that I was able to use when I led a council to make residents feel safer in their homes and on their streets.
In seeking to weaken powers to deal with antisocial behaviour, the Government appear to have gone soft on crime, but tough on the communities suffering from crime. The case for abolishing ASBOs has not been made by the Government, not at Second Reading, not in Committee and not today. Coalition Members must ask themselves whether they feel comfortable voting in favour of a move away from an effective sanction on persistent antisocial behaviour towards one that, according to numerous organisations, will criminalise ordinary childhood behaviour but leave persistent antisocial offenders laughing.
This proposal is wrong, and that is why we have tabled amendment 96 today. It will keep ASBOs as part of the armoury against antisocial behaviour, empowering our police and our communities to tackle antisocial behaviour, to crack down on yobbish behaviour and to respond effectively to the needs of local communities. Keeping ASBOs is a vital part of keeping our streets safe. A time when 80% of people feel that antisocial behaviour is getting worse is no time to weaken our resolve in tackling it. We must stand foursquare alongside the law-abiding majority. I urge all Members to join us in the Lobby, to stand with their local communities and support amendment 96 this evening.
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Tracey Crouch (Chatham and Aylesford) (Con): I welcome my hon. Friend the Minister to his new position and I look forward to working with him in the future on some key issues.
Government amendment 4 would replace the amendments to the Bill that I tabled and that were passed in Committee. I am grateful for Opposition support for the amendments and for the support of my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) and the Under-Secretary of State for Justice, my hon. Friend the Member for North West Cambridgeshire (Mr Vara). It is important to set out in context the reasons why I pressed those amendments to a vote in Committee and the background to the issue.
When we came to discuss the issue of antisocial behaviour and the new injunctions, it was clear that this was a perfect opportunity to talk about the vitally important issue of bullying. It is a key issue for many children and their parents. The statistics speak for themselves. Research now shows that one in three children have experienced bullying, with some suggesting that 70% of young people have at some point experienced some form of bullying. One million kids are being bullied every week, both in and out of school. It is one of the greatest concerns for children as they grow up and their parents. Beat Bullying research found that 44% of suicides among ten to 14-year-olds were explicitly linked to bullying, and at least 20 children every year commit suicide because they are being bullied.
I wish to pay tribute to the work of my hon. Friend the Member for Witham (Priti Patel) who, like me, has met the family of Ayden Olson, who unfortunately committed suicide as a consequence of bullying. Politicians need to take notice of such stories and try to make a difference to them.
I felt that the new injunctions were a really good opportunity to bring bullying back to the forefront of public debate, not least because in the past people have been concerned about criminalising bullies. Under previous legislation, bullying could lead to some sort of criminal sanction. The change to injunctions requiring instead a civil punishment meant this was the perfect opportunity to require them to include a positive requirement as well as the punishment of the injunction.
Priti Patel (Witham) (Con): I am grateful to my hon. Friend for mentioning my constituent, who was involved in a horrific bullying case that led to his suicide. Does she agree that the Bill is a good opportunity to find a way in which to protect vulnerable children and to punish bullies in the right way, as in the case of my constituent that she has highlighted?
Tracey Crouch: My hon. Friend makes a very good point, and that is exactly why it is important to add to the Bill the requirements to deal with bullying. We can deal with the bullies as well as the victims, because bullies are often victims of wider bullying, perhaps at home. The positive requirements would enable all sorts of agencies to intervene at an early stage and protect not just the victims, but the bullies themselves.
Bullying is not just face to face any more. Cyber-bullying is a massive problem, and it is certainly something that Ayden experienced. We are seeing increasing numbers of cyber-bullied victims. Some 63% say that the bullying
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started offline and then continued online. Bullying is not the same as it was when I was at school, when it was people being mean to each other in the playground. It is now persistent bullying on and offline. That is why I am pleased that the Government accepted the need to put bullying back into the guidance on the injunctions. It was originally in the guidance on the 1999 Act that introduced ASBOs. The subsequent review of ASBOs in 2002 also included persistent bullying, but the 2006 guidance—which until recently was the current Home Office guidance—did not mention bullying. I was grateful therefore for the commitment in Committee, from the former Minister, that bullying would be included in the guidance. Having seen an early draft of that, I am content with the guidance that will be issued.
If we are including bullying within the guidance of the injunction, it is logical to give those who primarily have responsibility for dealing with bullying—mainly schools, which unfortunately retain most of the responsibility—the tools to deal with it. That is why in Committee I pressed for head teachers and principals to be given the opportunity to apply for the injunctions. That would have been a permissive power that I thought would be a logical step. Unfortunately, that view is not shared by the teaching unions, all of which I have subsequently consulted, so I am reluctantly resigned to the removal of heads and further education principals from the Bill and I accept Government amendment 4.
I hope that bullying is not taken off the agenda. I hope that it is recognised as an extremely important issue for both children and parents, and that we recognise that further steps need to be taken to protect our children. We must ensure that perpetrators of bullying are dealt with in a way that helps them in their family and in society, and that they can have the positive requirements that the injunctions will give, despite the teachers and principals not applying for them. I am pleased that the Government continue to recognise the importance of bullying by keeping it in the guidance on the injunction, but I am sad that the teachers did not feel that they wanted the power to apply for it.
John McDonnell (Hayes and Harlington) (Lab): I support amendments 158, 176 and 177, which have been tabled by the Joint Committee on Human Rights. I am not sure that they go far enough, but they are what we have before us.
On amendment 158, my anxiety relates to the wording in clause 1. It almost legislates for pre-crimes, which became fashionable a couple of years ago. Hon. Members might recall that, at the time of the royal wedding, Dr Chris Knight and a number of his friends wished to protest against expenditure on the royal wedding. As part of a theatre group, they were going to take papier-mâché representations of the royal family to Buckingham palace on the day of the royal wedding and ceremonially guillotine them. The police arrested Dr Knight and his friends, detaining them—this was eventually legally challenged—on the basis that this was not a crime, but a pre-crime that could, at some point in the future, be designated as a crime.
The Bill, without the relatively minor amendment from the Joint Committee on Human Rights, states:
“The first condition is that the court is satisfied, on the balance of probabilities, that the respondent has engaged or threatens to engage in conduct capable of causing a nuisance”.
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That is not conduct causing a nuisance and not a crime that is taking place, but a judgment that there could be a crime in the future. That is a burden of judgment placed on a police officer or others that is almost impossible to determine and will leave us open to legal challenges until the cows come home. I support the amendment because it would at least define “reasonable judgment”, with criteria brought forward when the judgment is exercised. Otherwise, we will potentially be giving officers and others—in particular, the court—extensive powers, with little evidence on which to base the exercise of those powers.
The theme of our concerns in amendment 176 is to ensure that people have the right to express their views and the right to protest. Part 1, by designating certain forms of behaviour as unacceptable, can close down, as pre-crimes, certain activities. Those activities are exemplified by the experience of Dr Chris Knight, who was simply attempting to voice an alternative view. I am grateful to Mr Matthew Varnham for pointing out, in his evidence to the Joint Committee, that, as the Bill currently stands, any spontaneous act of protest could be designated as antisocial behaviour.
Curiously enough, I met Mr Varnham on a protest in Parliament square—people with disabilities were campaigning against work capability assessments. The protest had been applied for in advance and the police had given permission for it to take place. Spontaneous acts will take place at such protests. Groups will break off spontaneously and undertake other forms of protest, because they will have been convinced by the people speaking or by the debate that has taken place that further action needs to take place. As the Bill stands, that form of spontaneous protest would be outlawed and we would be dragging people through the courts simply because they went along to listen to a speech—for example, by the right hon. Member for Bermondsey and Old Southwark (Simon Hughes)—were excited by it, and decided that they wanted to do something spontaneous to ensure that his views were echoed in the wider community. At the moment, they would be arrested. God forbid that the right hon. Gentleman would ever incite anyone in that way—not on the basis of his speeches in this place, but perhaps elsewhere.
7.45 pm
If we close down free speech, we will be dragging people through the courts who simply want to exercise their right in a democratic society to say that they disagree. It is often the people who exercise this right to whom Parliament listens. It is as a result of such protest that legislative reform takes place. Most hon. Members have been involved in such campaigns, in particular the Minister, who is our sleeper within the Home Office on matters of this sort. I am anxious that we are giving a breadth of powers to courts and others to prevent freedom of speech. That is why I agree with amendment 176—a relatively mild-mannered amendment —which says that where there is an opportunity for peaceful assembly people should not be dragged before the courts just because they have taken the opportunity to protest spontaneously.
Amendment 177 is also tabled by the Joint Committee on Human Rights. I am extremely anxious about the additional penalty. I was involved in a case in south London where a family was threatened with eviction by,
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I believe, the London borough of Wandsworth. One member of the family, a young man, was prosecuted for participating in the riots. The family had no role whatever in the riots. I am not sure what their attitude was towards the young man—it never came out in discussions —but they certainly never knew that he was engaged in that behaviour. However, they were all threatened with eviction. Eventually, legal action was threatened and the local authority withdrew. I am worried that when the Bill is passed we will be in a situation where parents and others, who have no control over individual members of their family, will suffer as a result of a crime that they never participated in and, often, did not condone.
The inclusion of the measure in the Bill might have been politically advantageous a couple of years ago, but time has moved on. It is draconian and will result in injustice. As has been said, if a crime is committed by a member of a household in the vicinity of that property, powers already exist to deal with that. Most hon. Members would seek to ensure that the landlord, whether the council or a housing association, implemented the tenancy agreement. Every tenancy agreement I have seen in recent times allows the exercise of powers to seek repossession if necessary when a family, or a visitor, has brought about antisocial behaviour that has affected neighbours and others living in the vicinity. This measure is therefore unnecessary and will have a disproportionate impact on the families of those who may well have been involved in other forms of illegal activity—the riots were given as an example by the Minister when this was debated previously.
The right hon. Member for Bermondsey and Old Southwark said that he will not press any of the amendments to a Division, but I hope we will receive assurances that these issues will be addressed.
Simon Hughes: I said that we would not press the amendments to a Division tonight so that we can hear what the Government have to say, but we are committed to the amendments and we are clear that the Bill needs to be amended in the way that we propose. We are not going to back-off. We need a better Bill.
John McDonnell: I am hoping that the relationship the right hon. Gentleman has with the Minister is so influential that accommodation can be reached on this matter. If there is not accommodation, I think the amendment will come back at a later stage, because the measure will be seen to be unacceptable. If it did go through, I think it would cause future Governments—here and elsewhere in Europe—immense difficulties as these matters are contested, because the right to free speech is being undermined, as well as the articles of human rights legislation that allow people to enjoy the freedom of being in their own home.
On that basis, I support the amendments and hope we will get a positive response to them from the Minister.
Dr Huppert:
It is a pleasure to follow the hon. Member for Hayes and Harlington (John McDonnell). I agree with much of what he said, particularly about the consequences of the riots, which I shall come back to. Let me start by welcoming the Minister of State, Home Department, my hon. Friend the Member for Lewes (Norman Baker) to his new post and by congratulating him on his promotion to Minister of State. His injection
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of liberalism into this Department will be hugely welcome after decades in which Conservative and Labour Governments have clamped down on civil liberties and taken illiberal approaches wherever possible, playing to populism’s worst flaws. I greatly look forward to him playing his role as Minister of State in this Department.
I disagree with what the hon. Member for Croydon North (Mr Reed) said about the effectiveness of ASBOs. I do not think they were effective at all, but I do think substantial improvements can be made to the Bill. I hope this new Minister will take the opportunity to reflect on our comments and come up with something that takes them all into account.
Stephen Phillips: Whether or not ASBOs were effective originally, does my hon. Friend agree that, over time, they have become increasingly less effective? The breach rates are now so significant—up to 90% for most orders—that they have become utterly meaningless.
Dr Huppert: I agree; my hon. Friend is right that ASBOs simply do not work, so the idea of continuing them does not make much sense.
Mr Jim Cunningham (Coventry South) (Lab): Before the 1997 election, my right hon. Friend the Member for Coventry North East (Mr Ainsworth) and I campaigned for ASBOs. We did so because when we knocked on doors in certain estates, we often found that elderly people were being terrorised by gangs. In that part of Coventry, those people used steel doors to protect themselves. That is why we need to be careful when we say that ASBOs work or do not work. It depends greatly on the local authority and the police to make ASBOs work. I do not quite buy what the hon. Gentleman said; he had better put something in place that is stronger than ASBOs. Anybody who deals with inner-city problems in Coventry, London and other places knows that people can be terrorised on estates. That is why we need to be very careful about what we do to ASBOs.
Dr Huppert: I absolutely accept that there are problems of antisocial behaviour, including in many areas of my constituency. I am sure that all hon. Members’ constituencies are affected by it. The fact that there is an antisocial behaviour problem, however, and the fact that the words “antisocial behaviour” appear in the name of the order does not mean that the one is a solution to the other. I simply do not accept that they have been a very effective mechanism. Much better approaches have been taken by a number of innovative councils. Islington, for example, has tried antisocial behaviour contracts, which have been far more successful and there has been a range of successes elsewhere.
Simplifying the toolkit available is another issue. I welcome the idea of going down from 19 powers to six, which will make it much it much easier for people to find out what the options are. That is another reason why I reject the idea of keeping ASBOs together with IPNAs—injunctions to prevent nuisance and annoyance—which seems to me to be the worst of both worlds. The Bill must be aimed at trying to prevent harm and I hope that we will be able to solve that problem, helping people to get their lives back on track by dealing with the problems, rather than basing things on mediaeval punishment and state-aided revenge.
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There are some concerns about the changes to IPNAs. ASBOs dealt with behaviour in
“a manner that caused or was likely to cause harassment, alarm or distress”,
“conduct capable of causing nuisance or annoyance to any person”.
I certainly hope that my hon. Friend the Minister causes nuisance or annoyance to the Secretary of State; I expect that to be part of a working relationship and I am rather nervous about Secretaries of State being allowed to apply for IPNAs on this basis, if only for health-related issues. There is concern about what is meant by
“conduct capable of causing nuisance or annoyance to any person”.
I suspect we all carry that out on a regular basis or could find people whose conduct could be described in that way. That worries me, as it could be used more broadly. We heard from the Association of Chief Police Officers that IPNAs could stigmatise and criminalise young people unnecessarily, and they also tend to blur the distinction between criminal activity and nuisance.
The report from the Joint Committee on Human Rights—I commend my right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes) for his excellent speech, clarifying detailed and important amendments—says that
“the new…definition of anti-social behaviour is broad and unclear”.
I agree completely; the definition must become rather more defined.
When the Home Affairs Committee carried out pre-legislative scrutiny, we argued that there should be a test of intent or recklessness and that any action taken should be “necessary”. Something in that space is absolutely essential: whether it be through the wording used or by the introduction of a mens rea to try to offset the lower threshold to avoid hitting people with mental health issues, we need something to tighten up the definition of IPNAs without being overly broad.
My right hon. Friend was absolutely right about positive requirements. These are, in principle, very good and very helpful, but the concern was, as we heard in the Select Committee, that the councils would struggle to deliver those positive requirements in some cases. We know that the court
“must receive evidence of suitability and enforceability before a requirement is imposed”,
but not that the positive option will be available to someone. We must check that the positive requirements are doable, which I hope can be confirmed.
We have to deal with the issue of children because a huge number of these IPNAs will be issued to children. They have to be heavily involved in the resolution programme while being viewed as victims. I agree with new clause 33, sponsored by the Joint Committee on Human Rights, as the courts must take into account the best interests of the child as a primary consideration in any of these legal proceedings. I hope that the Minister will focus particularly on that.
Simon Hughes: Sometimes, of course, the best interest of the child is to have discipline from outside the family. It is not a one-way street that says that the best interest of the child is always a soft option; it may sometimes be a tougher option when the family is not up to the job.
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Dr Huppert: My right hon. Friend is absolutely right, highlighting why it is important to have this provision.
Since I first saw the Bill in its pre-legislative form in the Home Affairs Committee, I have been extremely concerned about clause 17. This disapplies section 49 of the Children and Young Persons Act 1933 for both IPNAs and CBOs. It disallows the rules that say that children should not be named and shamed publicly. We should all be extremely alarmed about that because children make errors. They may do something very silly when they are 14. Particularly in today’s age when data is freely available, what they have done could stay with them for the rest of their lives, and there is very little that anybody could do to stop that. That makes it hard for them to rehabilitate, to grow up and to become someone who regrets what they did when they were 14, as so many people will do.
I have heard the Government comment that the intention is to apply this only in rare circumstances, so that judges would not automatically name and shame young people, but do so only where it was an essential part of the order. The guidance must be absolutely crystal clear on this—on minimising the naming and shaming. This should be disapplied only where it is necessary to do so rather than applying it willy-nilly. Otherwise we will breach the UN convention on the rights of the child and a lot of other provisions.
On dispersal powers, my right hon. Friend the Member for Bermondsey and Old Southwark said that in response to the Select Committee report the Government have protected peaceful picketing and public processions, but I think it would be good to go even further to ensure that we do not prevent peaceful protest when we deal with antisocial behaviour. I agree with the amendment on that.
Lastly, I agree with the comments made by my right hon. Friend and the hon. Member for Hayes and Harlington about clause 91, which deals with riot-related offences. These have arisen from the time of the riots and the Prime Minister’s reaction to them. Now, however, we have calmed down and recovered from those awful events, so it is time to reflect on whether we need this special sanction. As right hon. and hon. Members have said, these provisions deal with a situation for which solutions are already available, so we do need to deal with the problem in the way proposed. The JCHR’s report says that it recognises
“the seriousness of riot-related offences”,
but questions whether we need a special rule for riot-related antisocial behaviour, because it looks like
“a punishment rather than a genuine means of preventing harm”.
I therefore hope that the Government will reflect on whether the clause is still needed.
Overall, the Bill has been improved, but I hope it can be improved even further. I am very excited at the role that my hon. Friend the Minister will be able to play. I look forward to hearing his response to the amendments, which I hope, in the fullness of time, he will be able to recommend.
Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC):
I agree with what the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) and the hon. Member for Hayes and Harlington (John McDonnell) said about amendment 158, and indeed about other amendments.
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Objectivity is vital. In the absence of objectivity, the police officer will be judge and jury, deciding everything on the spot, and—with the best will in the world—in a difficult, fraught situation on a busy Saturday night, things could go badly wrong. If we do not bring some objectivity to bear, we shall be on a very dangerous and slippery slope. I hope that the Government will consider this reasonable amendment.
8 pm
The hon. Member for Croydon North (Mr Reed) referred to Government amendment 82, but said that time did not permit further discussion of it this evening. With respect, I entirely disagree. The amendment is constitutionally important. I remind the House that it states:
“In Schedule 7 to the Government of Wales Act 2006 (legislative competence of Welsh Assembly), in the list of exceptions in paragraph 12, for ‘Anti-social behaviour orders’ there is substituted ‘Orders to protect people from behaviour that causes or is likely to cause harassment, alarm or distress‘.”.
On the face of it, the amendment does not seem particularly difficult to accept. However, the Government tabled it notwithstanding strong objections raised by both the First Minister of Wales and the Welsh Minister for Local Government and Government Business, and I understand that both gentlemen have written to the Minister for Policing and Criminal Justice and the Secretary of State for Wales expressing grave concern.
The amendment would replace a current exception to the legislative competence of the National Assembly of Wales with respect to antisocial behaviour orders with that new exception. I understand that the Home Office has so far claimed that the amendment to schedule 7 of the Government of Wales Act is merely consequential, and can thus be made without the need for a legislative consent motion in the Assembly. However, the First Minister made it clear in correspondence with relevant Ministers in the House of Commons that the amendment would
“represent a substantive reduction in the Assembly’s legislative competence.”
I consider that to be a matter of constitutional importance that cannot simply be brushed away.
It is surprising, to say the least, that the Government have chosen to act so brazenly, given that in their response to part II of the Commission on Devolution in Wales, they said that the interpretation of this self-same exception was “unclear”—referring to the provision that specifies antisocial behaviour orders as an exception to the Assembly’s legislative competence in respect of local government, namely paragraph 12 of schedule 7 to the Government of Wales Act. The question of how the Government can amend the exception without being certain of its interpretation is beyond at least my understanding, and probably beyond that of many other people. Given that the Government suggested that the Silk commission should look into the matter, it is perverse for them to act in advance of the commission’s recommendations. Furthermore, as they stated in their evidence that they were uncertain about how to interpret the exception, I do not know how they can be so sure that no legislative consent motion is required to amend it.
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If the proposed amendment to the exception were passed, all orders to protect individuals from behaviour giving rise to harassment, alarm or distress would be outside the legislative competence of the Welsh National Assembly. The Assembly would consequently be unable to legislate to protect people from such behaviour, even in devolved fields such as education, health and housing. The amendment would represent a substantive alteration in the institution’s competence, and the House should therefore not accept it without first seeking the Assembly’s agreement. I understand that a legislative consent memorandum and motion are to be laid in the Assembly, and that the Welsh Government will not be supporting the motion. I expect that the same will apply to my Plaid Cymru colleagues in the Assembly.
I believe that the amendment should be withdrawn, and that further discussions should take place. In my view, for the Government to railroad through the House a measure about which they are unclear is a constitutional disgrace.
Stephen Phillips: I intend to speak to the amendments for which I am at least in part responsible, and which were necessitated by our proceedings in Committee: amendments 1, 17, 45, 46 and 39 to 41. Before I do so, however, let me welcome my hon. Friend the Minister to his new post, and congratulate him on his promotion. Let me also welcome the hon. Member for Croydon North (Mr Reed) to his place on the Front Bench. He has been in the House for only a short time, and I am sure that his promotion is well deserved. No doubt we shall see a great deal more of him in due course.
Having congratulated the hon. Gentleman, however, I am afraid that I must take issue with some of the points that he made this evening. I have to tell him that while there was a lot of hot air about Labour’s great policy of the ASBO, the truth of the matter on the streets—whether in urban or in rural Britain—has been very different. Year on year, ASBOs have been breached in increasing percentages. While the hon. Gentleman, as the former leader of Lambeth council, may well have thought that he had solved problems by securing ASBOs for those who were engaging in antisocial behaviour which was affecting people in the area, the truth is that merely securing the orders achieved precisely nothing. It was their enforcement that was important. As I am sure the Minister will tell us in his response, breach rates now stand at 70%, 80% or 90%.
Sir Peter Bottomley (Worthing West) (Con): Drawing the attention of those on the Opposition Front Bench to the speech that my hon. and learned Friend is making may be to their advantage, as opposed to the advantage of the House. Would it be possible for them to stop talking to each other and listen to my hon. and learned Friend, who is making rather a good speech, mainly about the Opposition spokesmen themselves?
Stephen Phillips:
I am grateful to my hon. Friend for his intervention, but I fear that it may be counter-productive. I thought I was having rather an easy ride, at least in terms of how my speech will read in Hansard. There has been no intervention so far from the hon. Member for Croydon North, and I suspect that there can be no intervention from him now, because he has not heard anything that I have said. Be that as it may, however,
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this is not Third Reading, so I shall now deal with the amendments with which the House is being troubled principally as a result of what some would describe as my intransigence in Committee.
Let me begin with amendments 1 and 17. They relate, I am afraid, to words that were inserted in the Bill as a consequence of amendments to clauses 1 and 7, which were suggested by me and were carried in Committee. Clause 1 concerns the general power to grant injunctions. Subsection (5) states:
“Prohibitions and requirements in an injunction under this section must, so far as practicable, be such as to avoid”
a list of occurrences including, for instance,
“any conflict with the respondent’s religious beliefs”.
In the form in which it was considered in Committee, the Bill made no reference to the fact that those against whom injunctions might be granted might have caring responsibilities, particularly in regard to children. Because I thought that that was an important omission, I proposed—and the Committee agreed, in circumstances that I shall describe in due course—that the court should be required to take into account
“any conflict with the respondent’s caring responsibilities including, in particular, any caring responsibilities for a child”.
That seemed to me—and still seems to me—to be particularly important. Children’s life chances are not fixed, and if an IPNA is granted against their parents, they may be significantly and substantially affected by something for which they are not responsible. In those circumstances, it seems appropriate for the court expressly to take into account caring responsibilities, particularly caring responsibilities for children—and, perhaps, for those who suffer from disabilities. The Government’s position is, as I understand it, that those matters will be taken into account by a court under the general powers in the Bill—that is the assurance I have been given. Indeed, the draft guidance produced last week in accordance with the undertakings given to the Public Bill Committee contains wording that requires those seeking IPNAs—regard will no doubt be paid to this by courts as well—to take into account caring responsibilities.
On that basis, and although the decision has not been easy, I am not minded to oppose the Government’s desire to remove my first attempt at legislation in this House, successful as it was, because the Committee did not divide on the amendment I was proposing to clause 1. My amendment was accepted by the Minister who was then in charge, although there was a reservation when the “like” amendment was proposed to clause 27 that the Government reserved the right to come back to this matter on Report, as they have now done. Be that as it may, I am not going to take further the point that the Committee did not divide. The simple fact is—the Minister needs to make this clear from the Dispatch Box, so that it is clear to courts in due course—the one matter that has to be taken into account when an injunction is granted are the caring responsibilities of those against whom it is to be granted. That addresses amendments 1 and 17.
Government amendments 45 and 46 relate to clause 93 —we are see-sawing around a lot because of how the amendments have been grouped—which deals with community remedies and the community remedy document. As the House will know, every Member having read the Bill in detail, that is a list of community remedies—punishments, if one prefers—that can be handed out,
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which is drafted by a local policing body. Before it came into Committee, the Bill provided no guidance as to what that document might contain. As I pointed out in Committee, it might have provided that one punishment or remedy that could be handed out was to place someone in the stocks for two or three hours and have oranges hurled at them. Many of our constituents would doubtless think that a very sensible community remedy to be contained in a list of punishments or remedies that might be handed out to those guilty of antisocial behaviour. Obviously, the police and crime commissioners who gave evidence to the Public Bill Committee indicated that some form of guidance would be both desirable and necessary, and that has been taken on board by the Government. I tabled, but did not move, a probing amendment in Committee and it has been picked up by the Government, in that they have tabled amendments 45 and 46 to deal with the possible problem that one might have ended up with rogue and inappropriate remedies. Those measures therefore have my full support and I hope they will also have the support of the House.
I do not wish to detain the House for too long, but I wish to discuss amendments 39 and 40, which relate to clauses 70 and 73 and the time within which those who obtain orders must return to court. The Bill specifies a relatively short period—no doubt the Minister knows precisely what it is—but for the purposes of computing time no account is taken of days when the courts might be closed. I proposed to the relevant Minister somewhat longer periods, because it seemed to me that a problem might arise in respect of bank holidays and public holidays, as the courts would not be able to deal with these matters sufficiently quickly to enable the time limits to be complied with. Some of that has been taken into account, because the Government now propose that Christmas day will be removed from the period of calculation in these clauses, but there remains a difficulty with which the Minister needs to grapple.
I wrote to the Minister for Policing and Criminal Justice and it was suggested that specifying Christmas day was sufficient in this regard, but what about Easter? As we know, it consists of two public holidays, Good Friday and Easter Monday, so we are talking about a four-day period. The Home Office’s response has been, “The courts are able to deal with this because they may open over the weekend.” The Minister needs to reassure the House that that is the position and that there is therefore enough time over the Easter holiday, in particular, for these orders to be dealt with appropriately and for the Bill’s time limits to be addressed.
Government amendment 41 would alter clause 81, which deals with the recovery of costs against the owner of premises where an order is made—I have forgotten which part of the Bill this relates to, but the Minister will doubtless remind me. The Government’s point is that where such an order is made—for example, against a nightclub—the police should be able to recover their costs, and that is absolutely right. However, as I pointed out in Committee, nightclubs or late-night premises often are not owned by the people who occupy the premises where the nuisance occurs. For that reason, we need to include the word “occupier”, as the Government are now proposing. I am pleased that that piece of advice, which I gave for free—that is rare—was accepted. The amendment is therefore sensible and I hope it will command support across the House.
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I will rise to detain the House on Third Reading, but I must say that this is an excellent Bill because it deals with the nonsense of the fact that ASBOs were never enforced and were therefore not doing what the previous Labour Government intended they should do when they were introduced. I will make those points on Third Reading, but with that I will resume my seat and let one of my colleagues address the House.
Mark Field (Cities of London and Westminster) (Con): I thank my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) for welcoming me in that way.
I wish to put on the record a few of my concerns about the Bill’s impact on the ability of inner-city local authorities to deal with particular instances of antisocial behaviour; I know that the Minister has been informed about them by the redoubtable cabinet member, Nickie Aiken, from Westminster city council. I shall raise two main areas of concern, to which I would appreciate the Minister giving consideration, and one specific amendment, which I suspect will have to be moved in another place in due course.
First, on powers of arrest and direct access to the criminal justice system, criminal injunctions are, as we all know, more effective than civil injunctions in reducing high-level antisocial behaviour, which damages communities and harms the reputation of central London. The Bill proposes to replace ASBOs on application and ASBOs on conviction with IPNAs and criminal behaviour orders—CBOs—respectively. Breaching a CBO will automatically be a criminal offence, whereas breaching an IPNA will not. Local authorities will be able to apply for an IPNA, but will not be able to apply for a CBO. Therefore, local authorities such as Westminster city council—in a former life this would have applied to the shadow Minister in his role at the London borough of Lambeth—will no longer be able to apply directly for any order or injunction on antisocial individuals or groups that would lead to criminal proceedings in the event of a breach. Instead, local authorities, housing associations, Transport for London and even police chiefs will have to apply separately for an IPNA arrest warrant. Alternatively, local authorities will have to negotiate on a case-by-case basis with the Crown Prosecution Service, which I fear will be operating with increasingly limited resources and capabilities, to place CBOs on antisocial individuals.
Mr Steve Reed: At a time when the police have had to suffer a 20% cut in funding, is it appropriate to expect them to shoulder the additional burden of £1.5 million per annum in pursuing breaches of IPNAs?
Mark Field: I certainly do not think the figures to which the hon. Gentleman refers reflect the cuts at ground floor level in the work that can be done by our local police. However, all of us appreciate that we are living in financially constrained times and will be doing so for many years to come. Where I suspect I share some of the concerns that he has expressed, not just tonight but during the passage of this Bill, is about a severe weakening of the ability of local authorities, in conjunction with the police, to deal with elements of antisocial behaviour.
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Simon Hughes: I and a former leader of Lambeth council and others have dealt with these issues for a long time. I have heard the hon. Gentleman’s criticism, I understand it and it will be made from experience. I hope he will tell us what he and Westminster city council cabinet members and officers think might be the right answer. None of us has a perfect solution. We are all trying to find the best combination of tools to have in the box.
Mark Field: Naturally, I will try to be constructive. I wholly agree that the lower level nuisance and annoyance behaviour covered by an IPNA does not always warrant the threat of criminal prosecution, which perhaps happened in the past with ASBOs. Among the concerns expressed earlier was that elements of those ASBOs were not being properly enforced. We should rightly look to avoid criminalising the country’s youth wherever possible, but in practice the specific problems that we face with, for example, the very professional, aggressive begging on the streets of Westminster, literally within yards of where we are all sitting tonight, can currently be tackled only through the use of ASBOs on application. We rely heavily on the genuine threat of arrest to protect victims and to deter professional aggressive beggars, who are completely different from the 16-year-old who has got into trouble by graffitiing a bus-stop, for example. We lose that threat under the new proposals.
I want also to speak briefly about the antisocial behaviour committed by people with no fixed UK address. From the experience in Westminster city council area, but also in the City of London area that I represent, I know that tackling antisocial behaviour often involves dealing with organised aggressive begging gangs from across the EU. I fear that we will hear a lot more of this in the months to come. Some individuals travel to the UK in large numbers, with the sole intention of doing a short, but profitable begging stint before returning to their home. These people enter the UK according to their rights as EU citizens, and cannot currently be deported unless they remain in the country for longer than three months or commit a criminal offence. While they are in the UK, and particularly while they are here in central London, they have no fixed address and are completely transient in nature, with many sleeping rough.
Where we have previously dealt with such individuals through ASBOs on application, under the IPNA system the local authority will be able to apply for an arrest warrant only after a breach has occurred, by which time the individual in question may well have left the country, entirely unchallenged, to return at a future date. These people are deliberately off the grid, and we must have some legislation in place that closes this potential loophole and does not actively encourage the gaming of the system.
Stephen Phillips: My hon. Friend raises an extremely important point, to which I hope the Minister will respond. Might provisions in other statutes be used, under which, where a crime had been committed, people could be deported without an ASBO having to be made against them?