Anti-social Behaviour, Crime and Policing Bill
The Committee consisted of the following Members:
Steven Mark and Georgina Holmes-Skelton, Committee Clerk
† attended the Committee
Gloria De Piero: I want to make it clear that amendment 13 is a probing amendment—we want clarification. We have no problem with the addition of “positive requirements”: the Labour party introduced the concept of positive requirements, partly through individual support orders. In the light of submissions and evidence from local authorities and the police, we want clarification on how the requirements will be funded. The Government’s impact assessment for the injunctions does not quantify the cost of imposing positive requirements.
“The LGA is concerned that, given that use of positive requirements is predicted to impose an additional financial burden on councils, the overall estimates that the injunctions will be cheaper to use than ASBOs may not be right, and councils may be placed under an additional financial burden.”
On amendment 14, if someone is put on an alcohol awareness course for six months, the police have to be informed if the person does not meet their positive requirement. That is absolutely fine, but we are a little worried about time scales. For example, if said person does not turn up to session 1, 2 or 3, we think that the police should be notified at that stage and not at the end of the six months. Will the Minister respond to those points?
The Minister of State, Home Department (Mr Jeremy Browne): I hope you enjoyed a good lunch, Sir Roger—but not too good—and are therefore in fighting form, for I think we have three more hours of deliberations this afternoon.
I am grateful to the hon. Member for Ashfield for providing us with the opportunity to consider in more detail the practicalities surrounding the use of positive requirements in the injunction process in part 1.
On amendment 13, although I agree that it is important to establish how positive requirements will be funded at the point of an injunction being issued by the court, I do not agree that the individual or organisation responsible for supervising compliance should be liable for the costs. I take on board the hon. Lady’s point that the amendment is probing and that I should not take it too literally. However, to take it literally momentarily, where the local authority, for example, applied for an injunction that was to include attendance at a drug rehabilitation course, the teacher delivering that course could be put forward to supervise compliance.
Although the teacher would be best placed to monitor attendance and engagement with the course, it would not be right for the teacher, or school or college, to cover the costs of the course. Instead, we could expect the local authority, as the applicant, to cover those costs. That is because the downstream benefits of changing the perpetrator’s behaviour fall to them and other agencies, such as the police.
Taking the amendment literally, we think that there would be unfortunate consequences to accepting it. In addition, by placing the burden of costs on the supervisor—in this case, a teacher or a school—we would be in danger of deterring those bodies from coming forward and working with local agencies to prevent future antisocial behaviour.
I want to make it clear that not all positive requirements will necessarily incur costs. A court might direct an individual to repair something they have broken. For instance, if an individual had broken a fence as part of a persistent campaign of antisocial behaviour against a neighbour, the court might feel that making that person fix the fence would force them to confront the consequence of their behaviour and promote a change of approach. That sanction would not necessarily incur a cost. Furthermore, positive requirements that do incur costs will be considered on a case-by-case basis by the applicant.
We should not forget that leaving antisocial behaviour unchecked also comes at a cost. The applicant might decide that the cost of, for example, a drug rehabilitation course, if drug abuse were the root cause of a person’s antisocial behaviour, would be small compared to the ongoing costs associated with not addressing the causes of the behaviour. In that situation, they might feel it is money well spent, and fund the course. There are all kinds of activities taking place in the communities we represent that can help people in those sorts of circumstances, and some of the positive requirements may be swept up in existing activity.
Sarah Champion (Rotherham) (Lab): Will the Minister create an additional pot for those costs to come out of, or will the money be ring-fenced? I am concerned that people might be put off applying because they know it will come out of their ever-decreasing budgets.
Mr Browne: As all the major parties have accepted, there is no additional money available for measures of this type because of the appalling budget deficit we inherited when we came to office three years ago. We will require agencies that already have considerable amounts of public money available to them to fund a lot of the initiatives.
However, some of the positive requirements will not incur costs, and some of the costs will be negligible. In some cases, the cost will be less than the cost of leaving the problem unattended to. In other cases, the person could attend a course that they had already chosen to attend, or the course might have an open place on it. All kinds of activities are going on all the time in our communities. The marginal cost of putting an extra person on a positive requirement course would not be high if that activity was already taking place in that community.
Gloria De Piero: Positive requirements sound fantastic, and I think everybody will support them. What would the Minister say as guidance to the agencies that expressed concerns about the costs—ACPO and the LGA? Should a positive requirement be attached to every injunction to prevent nuisance and annoyance? What is the proportion?
Mr Browne: That decision would need to be made locally, depending on the circumstances of the individual case, but I take the hon. Lady’s point. In my limited experience—I have been a Minister for three years—every agency that is consulted about anything thinks it would make life easier for it if a bit more public money were put in its direction. That might have been a feasible approach to government when we had big budget surpluses, but we do not have big budget surpluses, and we have to ensure that we operate effectively to achieve value for money for the taxpayer.
As I say, the consequence of not addressing some of these patterns of behaviour often has a bigger impact on the taxpayer than addressing them. We do not want people to breach the injunctions and, in the most extreme circumstances, go to prison for up to two years. That bears a much greater cost than trying to correct their wayward behaviour at an embryonic stage. Therefore, it should not be assumed that the costs will be much greater.
Amendment 14 relates to the requirement for the person supervising compliance to notify the applicant for the injunction and the police of any breach or completion of a positive requirement. I endorse the sentiment behind the hon. Lady’s amendment. It must be right that breaches are reported as soon as practicable, but that is implicit in the clause as it stands, so I see no need to clutter the Bill by writing such a requirement into it. Moreover, the point can more sensibly be made in accompanying guidance to practitioners. For all those reasons, I ask the hon. Lady to withdraw her amendment.
Mr Browne: In some cases, they may be beneficial. In some cases, the positive requirement may be more likely to address the cause of the antisocial behaviour than the negative penalty, but in others it may be that the positive requirement is not necessary, is quite a modest measure or incurs no cost. Saying this may be an ongoing task for me during the lifetime of the Committee, but with this Bill we are not trying to anticipate every single form of antisocial behaviour that could possibly occur anywhere in the country, the precise motives and circumstances of every perpetrator, and the precise requirements of every victim. I fear that we are going to hear a refrain, whereby I keep being asked to anticipate all such circumstances into the indefinite future and am criticised for being insufficiently perceptive in my ability to gaze into the distant future and put into the Bill every single thing that could possibly go wrong for somebody in any circumstance.
We are trying to introduce a Bill with flexible powers that can be deployed locally by local agencies that best know the circumstances of the perpetrators and victims in that area. I would not presume to know about the circumstances of every community in the hon. and learned Gentleman’s constituency. I would not feel that it was right for the Committee to try to take a prescriptive approach; I would hope and believe that the agencies in his area were best equipped to interpret the Bill in a way that was most advantageous to the people they serve.
Stephen Phillips: I will stick to the subject that is being debated. Does the Minister agree that we should at least try to anticipate what we can in terms of what antisocial behaviour might take place, while granting sufficient powers to encompass the circumstances, Rumsfeldian as they may be, that we have not anticipated? Is that not the point of the Bill?
Mr Browne: We are trying to—in the jargon—“de-clutter the antisocial behaviour landscape” because, over a number of years, the previous Government kept adopting additional measures to respond to concerns about new forms of antisocial behaviour. That is why we have a range of 19 existing measures that are very niche and specific in their application. The concern has been raised with us that it is complicated for practitioners to be sure which is the most suitable of those measures to deploy. It would be helpful to have a streamlined, more flexible, smaller set of measures that can be deployed imaginatively by people in any given community to try to address the problems that they face.
Inevitably, if we give people power—whether GP fundholders, free schools or, for that matter, antisocial behaviour practitioners—to exercise some discretion free from ministerial diktat, we have to trust them to do that with a degree of wisdom. It requires asking Government to let go, but that is often a good approach in life. I am keen to recommend that approach to the Committee, and not only for the Bill; that approach is a theme that runs through the legislation of a number of Departments. We have made no estimate of the number of injunctions that will be applied for in any year, or the number that would include positive requirements. That is, as I said, properly a matter for local determination.
Sarah Champion: I would like to return to the budget. I hear the Minister saying that there is no additional money and that any money has to come from the existing pot, and I accept that. If I am hearing him correctly, there will hopefully be free places on existing courses, which are cheaper than going to jail. If perpetrators went to jail, it would not come out of the local authority’s pot. Say, for example, that a local authority put aside £100,000 in its budget planning specifically for the positive requirements and there was then a riot, so all the money was spent in the first six months. Can the Minister envisage such a situation, whereby there is no money for the positive actions so nothing gets done?
Mr Browne: It is possible to envisage circumstances where such exceptional behaviour takes place that special provisions have to be made. Governments do, in some situations, make provision for exceptional circumstances. The bottom line, in the immortal words of the former Chief Secretary to the Treasury running up to 2010, is that there is no money left. The Government spend almost £2 billion of our taxes and borrowed money every single day. The reaction to every initiative cannot be, “We need to spend even more money”, because we do not have lots of extra money to spend.
My point is that local councils, which have considerable sums of money, have to think about how they use that money intelligently on behalf of the taxpayer who funds them. It may well be that some courses offer particularly good value for money and that the cost of adding someone on to a course as an additional person is marginal in some circumstances, and therefore offers good value for money, but let me say this: no member of the Committee knows with absolute certainty the best range of measures and positive injunctions to reduce antisocial behaviour in Taunton Deane. I would even be modest enough to say that I am not 100% sure I know precisely what the best measures are to reduce antisocial behaviour in Taunton Deane, but I am sure I know better than anyone else serving on the Committee.
Rather than assuming that we all know the best way to tackle antisocial behaviour in Taunton Deane and magicking up even more borrowed money—even though the Labour party does not want to spend any more money—which is a less good way to proceed, we should give power and autonomy to local practitioners. We should trust them, give them a bit of flexibility to be innovative and imaginative and ask them to spend public money wisely, rather than continuing to seek new
Gloria De Piero: The logic of what the Minister is saying is, “If you are particularly cash-strapped, we do not expect any positive requirements.” The Association of Chief Police Officers and the LGA are serious organisations with experience of dealing with antisocial behaviour, and they are genuinely concerned that they may not be able to afford the positive requirements in this financial crisis. Granted, some local authorities will be more cash-strapped than others, so there may be regional disparities. Some local authorities may be able to enforce and grant positive requirements, but others may not have the resources to do so. Would it not be sensible to conduct an impact assessment to see whether the positive requirements will work?
Mr Browne: I hope that councils and others continuously assess whether the public money they are spending is having any beneficial consequences. If they conclude that there is no benefit to spending taxpayers’ money on something, they should probably stop spending it or spend it more wisely. I take that as a given in the public sector. I am not sure whether hospitals or schools have explicit requirements not to squander public money, but they should be spending it efficiently and effectively.
There is a range of measures. Anyone going around their constituency on a Friday can see all kinds of initiatives to help people and to try to correct wayward behaviour. In some cases, such initiatives could be adapted to help those who are subject to injunctions as part of the positive requirements. In other cases, it may be that the positive requirement is not needed, but we envisage that decision being made locally so as best to serve the needs of the community.
Gloria De Piero: I have listened to the Minister, but, in truth, I am rather concerned, because a new power is being introduced without an impact assessment. Some councils, the LGA and ACPO have made representations to say that they may not be able to afford to use it. Whatever the warm words about positive requirements, whether the measures will be applied is a concern. Will they be applied equally across the country?
Mr Browne: The measures will not be applied equally across the country, because what may work best in Ashfield may not work best in Taunton Deane. Ultimately, there are two models of government. One is that all wisdom resides in Whitehall and that we have a highly prescriptive, centralised command and control model of government. The alternative model, which the measure is trying to put forward but is received with antipathy by those who are ideologically concerned, is that we should not assume that the Government always know best. It may well be that the people delivering the services—the head teacher, the local GP, the local council or the police officer working on antisocial behaviour in his or her neighbourhood—have some wisdom to impart about their own neighbourhood. Perhaps we should give them a bit more discretion and a bit more of an opportunity to be innovative. There will be no uniformity of provision, but I do not necessarily regard that as a bad thing.
Gloria De Piero: With respect, representations have not been made from ACPO and the LGA saying, “They may want to do such things in Ashfield, but they do not in Taunton Deane.” The objections and concerns raised by the bodies that will have to grant the positive requirements are about the financial situation not making that possible. Is it not time for an impact assessment on the positive requirements?
Mr Browne: This is like a question and answer session. The assessment of whether activities undertaken by people in the public sector offer value for money for the taxpayer is constant and I expect that to happen as a matter of course.
Gloria De Piero: Our concern is that the clause states that a court “may attach” a power of arrest to an injunction if a person has engaged or threatened to engage in the use of violence or if there is a risk of significant harm. Even if those conditions apply, the power of arrest only “may” be attached to the injunction, which is extremely worrying.
Amendment 27 suggests that the power of arrest should automatically apply to any breach of an injunction. The Association of Chief Police Officers does not go as far as that but it goes further than the Minister. In its written statement to the Home Affairs Committee ACPO says that
“we feel that retention of the discretion to arrest would allow us and our partners to decide upon the best course of action according to the circumstances. This may mean we do not arrest for every breach, particularly when there is a ‘minor’ breach, but it would give us the power to arrest which is an effective tool in the right circumstances.”
“Where an Injunction was granted without a Power of Arrest, and there were subsequent allegations of breach, it is easy to see difficulty in enforcement. Under the existing criminal procedure arrest for breach of ASBO, or breach of Interim ASBO, helps to nip trouble in the bud. In contrast, under the new procedure police officers or others who became aware of evidence of breach would have to supply that evidence to the applicant authority
Will the Minister clarify those points? I should like to describe a scenario. An elderly lady lives alone and has an alley next door. I have had a similar case in my constituency. There is a group of young adults making mischief, shouting and mocking her on a daily basis. If those yobs are given an IPNA, which prevents them from going anywhere near that alley or mocking that elderly lady, the Minister is telling them that if they breach their brand new IPNA there is no automatic power of arrest. In effect, the logic of the Bill says, “But if you threaten her with violence then we may have a power of arrest.” I do not think that is good enough.
Mr Browne: As we have heard again from the hon. Member for Ashfield, these amendments relate to the power of arrest that may be attached to prohibitions and requirements in part 1 injunctions. I am aware that the current ASBO on application, which this injunction replaces, carries a power of arrest on breach because such a breach is a criminal offence. That is the point of distinction that we may get to again with regard to all of the discussion on part 1, which is that the injunction is a civil order, not a criminal order. We therefore regard it as necessary to have some different provisions in place that take account of that different status.
However, the ASBO is a slow, bureaucratic tool that does little to change the behaviour of the offender and protect communities. The new injunction will change that, and it aims to address the underlying causes of the behaviour so that the offender does not breach court-imposed restrictions. To achieve this aim, the injunction is civil in nature, using a lower threshold of “nuisance and annoyance” and granted on the lower, civil standard of proof which, as the Committee will know, is the balance of probabilities. As such, the injunction can be used to deal quickly and effectively with a wider range of behaviours than the ASBO; in many cases, the relevant behaviours may not be criminal. It would therefore be disproportionate to attach an automatic power of arrest to every injunction, which is what is being proposed in the amendment .
However, I believe that in the most extreme cases of antisocial behaviour, the power of arrest should be available to protect the public. As drafted in clause 3, the power of arrest may be attached to an injunction where there is a threat of violence or harm to others. As this is available to deal with the worst instances of antisocial behaviour, we would expect that in the majority of cases the court would decide to attach such a power. I believe this is the right approach and will allow the police to direct their resources towards the most appropriate offenders. I do not believe it is proportionate or sensible to attach a power of arrest to every injunction in every circumstance.
There are substantial penalties in place. I say that because we have had complaints from a number of organisations that think that the penalties are excessive, whereas the Opposition tend to criticise the Government on the grounds that the penalties are unduly lenient. It is worth reminding the Committee that a breach of an injunction carries an unlimited fine and up to two years in prison for someone who is over 18 and has not actually committed a criminal offence, and thus does not have a criminal record. Up to two years in prison is a pretty serious penalty. For those aged 14 to 17, in the last resort and most extreme circumstances, there is a provision for up to three months’ imprisonment. A number of my hon. Friends have raised that matter, including, my hon. Friend the Member for Bedford, who was keen to stress his concerns about criminalising under-18-year-olds. We should be extremely cautious before we criminalise people under the age of 18.
We are trying to get the right balance by introducing a civil injunction, which uses the lower threshold of proof and tries to nip bad behaviour in the bud, but also having the fall-back of being able to arrest people—and, in some circumstances, impose quite severe penalties—while not regarding doing so as an automatic or desirable state or affairs.
Bridget Phillipson: My understanding is that injunctions related to domestic violence were civil orders, but Labour changed the law to make sure that there was a criminal sanction at the end of that process; there had been a reluctance to impose the power of arrest on civil orders, so the injunctions were not worth the paper they were written on. Are we not risking exactly same thing? We all want this matter to be dealt with; does experience in this area of the law not demonstrate that there are real dangers with the Government’s proposals?
Mr Browne: The hon. Lady makes a serious point. To go slightly off the beaten track, the Government have already looked at additional measures to protect people—normally, but not always, women—suffering domestic violence.
The clause does not say that there will be no power of arrest, but rather that there will not automatically be a power of arrest. The amendment would remove the word “may” from the clause and replace it with “shall”; the change would not be from “will not” to “shall”. As the clause is drafted, the power of arrest may be attached to an injunction where there is a threat of violence or harm to others. That would appear to cover the circumstances in most cases that the hon. Lady describes. However, it is important that even in the most serious cases the court retains its discretion on when to attach a power of arrest: there may be a small minority of cases where, for whatever reason, it does not think it appropriate or proportionate to attach the power. I believe that, in
It is fair to say that there would be a presumption of power to arrest in the most serious circumstances, but not an automatic requirement in all circumstances. As I have said, that is an attempt to reflect the nature of the injunction as distinct from a criminal sanction, which has a higher threshold of proof. In this case, the person who incurs the injunction has not initially committed a criminal act, so we need a proportionate set of sanctions and other measures in place. For those reasons, I urge the hon. Member for Ashfield to withdraw her amendment.
Mr Browne: I have never been a judge and I have not presided over any such cases, so none come immediately to mind, but I would assume that the person in such circumstances would attach a power of arrest. There is nothing in the Bill to stop them attaching a power of arrest in every circumstance. All we are questioning is whether they should be obligated to do so in every circumstance. We are not trying to discourage people from doing so, but I suppose the question comes back to whether we want to be prescriptive in the Bill or to provide discretion for the courts on what is an appropriate sanction to put in place for breach of an injunction.
There is perennial discussion about the degree to which politicians should seek to restrict and bind the hands of those who consider individual cases and whether we should allow some flexibility depending on the merits of an individual case. I assume that in the serious cases that Opposition Members brought to the Committee’s attention there would, in the natural course of events, be a power of arrest, but it should not be assumed that that is automatic in the legislation.
Gloria De Piero: The Minister has not given me any compelling reasons why, in the most serious cases of antisocial behaviour when someone may be hurt physically, there should not be an automatic power of arrest.
Mr Browne: I am sorry to hog the stage but, to return to a point I made this morning in response to the hon. Member for Rochdale, we must be a little careful before describing a huge range of offences as antisocial behaviour. In the circumstances that the hon. Lady envisages, when someone violently assaults someone else, I would not assume that a civil injunction was the most appropriate sanction. We should not bundle together a whole range of criminal behaviour, including serious criminal behaviour such as damage to property and violent assault against individuals, into some ASB category, blurring the distinctions unduly between crime and antisocial behaviour. The injunction is about antisocial behaviour that falls short of a criminal act—that is the very nature of the injunction—whereas the hon. Lady is describing circumstances in which someone has committed a straightforward criminal offence, and the appropriate sanctions should flow from that.
“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…there is a significant risk of harm to other persons from the respondent.”
The word “may” is in the Bill. Those extremely serious circumstances are the most extreme forms of antisocial behaviour. The Committee would not fulfil its duty if we did not send out a message saying that we take very seriously the most serious forms of antisocial behaviour, which include the threat of violence, and that there will be an automatic power of arrest in such circumstances. I wish to test the will of the Committee on the removal of word “may” and the insertion of “shall”.
‘(h) a headteacher, or
(i) a principal of an FE institution.’.
Gloria De Piero: In principle, we have no problem with increasing the number of bodies that can apply for an IPNA. However, we have concerns about the extra cost to organisations that have never used the ASBO, let alone a brand new injunction. It will require training and potentially more staff. There will also be costs associated with pursuing a breach of an IPNA, given that a breach will no longer be a criminal offence. What provision will be made for the new bodies—the Environment Agency and the national health service—to ensure that they are equipped to grant injunctions?
I will begin with two things that the Minister said in this morning’s debate. He said that if we give people powers, whether they are GP fundholders or practitioners tackling antisocial behaviour, it is only right that we give them the discretion or flexibility to use those powers. He also said that the head teacher knows best, and I agree with both those statements.
This morning, the Government acknowledged that bullying is an issue, as highlighted by the Minister’s welcome concession to include it in the guidance. While a significant amount of bullying takes place beyond the school gate, the Minister noted that schools have the main responsibility for dealing with it. All my amendment would do is extend the list of those who can apply for an injunction to include head teachers and principals of further education colleges—those whose remit is to deal with bullying. If housing providers are to be added to the list to deal with antisocial tenants, I see nothing illogical or harmful to the overall intention of the Bill to expand the list, not least because, as the Minister admitted this morning, there is a gap between the police and schools on tackling bullying.
It is no answer—if this is indeed going to be the Minister’s answer—that a local authority can make an application. There are already many academies, and there will be more. Their head teachers need to have access to such remedies just as much as the heads of maintained schools. The amendment is meant to be helpful, and would enable those who have the authority to deal with the serious and harmful act of bullying to apply for the positive requirements that an injunction brings with it while protecting victims.
Mr Browne: Thank you, Sir Roger, for giving me an opportunity to reply to this important group of amendments. I am in a slightly strange position as a Minister—amendment 16 suggests taking two organisations out of the list on the basis that they should not be burdened with the responsibility of exercising the power, while amendment 8 suggests that two institutions should be added to the list on the basis that they would be burdened if they did not have the responsibility of exercising the power. I will require a little more time to talk through our thinking. I hope that that will give encouragement or, at least, insights to Committee members.
As the hon. Member for Ashfield said, amendment 16 seeks to strike the Environment Agency and NHS Protect and its Welsh equivalent from the list of agencies that may apply for a section 1 injunction. The list of agencies that may apply for an injunction broadly mirrors the list of bodies that may apply for an antisocial behaviour order.
The Environment Agency has been able to apply for ASBOs since September 2006, so that it can tackle environmentally-related antisocial behaviour, and it is
The Environment Agency wants access to the injunction, and there is a good case for its inclusion in the list. Although it has hitherto used antisocial behaviour orders infrequently, it believes that continued access to such powers is important to tackle environmental crime where circumstances demand that it takes robust, formal action against perpetrators. It is currently reviewing the role that the new injunction may play in protecting people and improving the environment. We will continue to work with it and others on how to put the new powers into practice.
I envisage that the powers will be used infrequently. In searching for an example, I put it to officials that an injunction for somebody pouring paint into a river that runs through different local authority or police force areas would be suitable, even if they were not putting it in deliberately, to stop environmentally destructive behaviour. It would be strange to deny the Environment Agency the opportunity to use the injunction in those circumstances.
NHS Protect and its Welsh equivalent cannot apply for an antisocial behaviour order, but there is a strong case for conferring powers to allow them to apply for the new injunction to safeguard staff and patients who face persistent antisocial behaviour in hospitals, GP surgeries or other health establishments. During our consultation on the new powers, NHS Protect indicated that antisocial behaviour is a persistent and pervasive problem in the NHS. NHS staff strongly support NHS Protect having access to the new injunction.
NHS Protect currently works in partnership with other authorities—usually the police and local authorities—that have the power to apply for a stand-alone ASBO on its behalf, but the police cannot always prioritise antisocial behaviour problems in the NHS, because they need to direct resources to what they envisage as more serious problems.
Some forms of antisocial behaviour that affect the NHS may cross the geographical boundaries of police forces and local councils, such as the problem of hospital hoppers, a concept with which I had hitherto been unfamiliar. Individuals who feign illness in order to be admitted to hospital for treatment or medication or both may, in a way that causes nuisance and inconvenience, persistently seek to admit themselves to different hospitals in different areas. NHS Protect is better able than any other authority to apply for an injunction against bogus patients. As I have said, the problem often occurs in several locations, crossing police and local authority boundaries, and involves several NHS bodies, so NHS Protect is best placed to tackle hospital hoppers.
There are also concerns about people who cause disruption, most obviously in accident and emergency; those circumstances will be familiar to hon. Members.
Individuals who behave in such a way may become aggressive or abusive towards staff if they do not receive treatment or admission, or when they are challenged after it becomes apparent that they are not unwell or do not require treatment at that point. Appropriate persons at health bodies already have the power to remove individuals who without reasonable excuse cause a nuisance or disturbance to NHS staff on hospital premises. The power can be used to prevent escalation, but it does not provide an ongoing solution for individuals who persistently cause a nuisance or annoyance. The ability of NHS Protect to apply for the injunction would provide an ongoing solution and address the antisocial behaviour problems that only or primarily affect the NHS.
It is fair to say that we are talking about quite a small category of incidents with regard to NHS Protect. However, I hope that I have convinced the Committee that some thought has been given to the issue across Government and this was deemed a suitable vehicle to tackle that undesirable behaviour.
Sarah Champion: Having a lot of experience of working with and in the NHS, I believe staff would find it extremely uncomfortable to police their own services. That is not why a lot of people went into the NHS. It blurs their responsibilities and I am not comfortable with it.
Stephen Barclay (North East Cambridgeshire) (Con): Does my hon. Friend agree that institutions already have that duty as accounting officers, particularly foundation hospitals that are accountable in their own right to police their budgets and deliver value for money? Therefore, they are already policing certain aspects of their budgets. This is another way to protect value for money and patient services.
Mr Browne: I am sympathetic to the point made by my hon. Friend. If amendment 16 were agreed, the burden of applying for injunctions to address either environmental antisocial behaviour or the abuse of staff in health establishments would fall to others, most likely the police or local councils. However, police and local councils would not in those circumstances necessarily be the organisations best placed to tackle antisocial behaviour in those areas. They are not necessarily the ones who will encounter that kind of antisocial behaviour or to whom such incidents will be reported. That could mean increased costs to the police and councils, delays in their responses, or even reluctance to pursue cases on behalf of the Environment Agency and NHS Protect.
I stress that it is envisaged that the overwhelming number of injunctions would be applied for by local authorities and the police. If hon. Members look at the organisations that apply for ASBOs, by and large they
Amendment 8, tabled by my hon. Friend the Member for Chatham and Aylesford, seeks to add head teachers and principals of further education colleges to the list of persons who can apply for an injunction. She spoke persuasively this morning on the wider issue, and the amendment is a logical extension of that debate. I am happy to assure her that we will continue to keep under review the list of those who can use the new injunction. Subsection (4) enables us to add new bodies that may apply for an injunction by order. We have the flexibility to add head teachers to the list of relevant bodies in future if a case can be made.
I would like to go a bit further. If my hon. Friend agrees not to press her amendment, I am happy to assure her that we will consult over the summer with the National Association of Head Teachers and others, and I will inform her of the results. It may be, for the reasons given in slightly different circumstances by the hon. Member for Rotherham, that some head teachers and principals are not comfortable with exercising the power. They may feel that it is not a power they would wish to discharge.
They would rather bring cases to the attention of, say, the local authority or the police and hope that they could exercise an injunction on their behalf. However, as I just said, not only do we have the power to add new organisations or new categories by order, but we will look at the specific request in amendment 8 and consult to see whether we could add these extra two categories to the list. No one doubts the sincerity of my hon. Friend the Member for Chatham and Aylesford and we understand the force of the point she is making.
Stephen Barclay: I suspect that the Minister’s constituents, like mine, are suffering from consultation fatigue and have been for many years. His logic was demonstrated by the phrase, “strange to deny the Environment Agency the opportunity to use”. Unless he expects the consultation to give a universal response, with 100% of respondents saying that they would not like to use the power in the amendment tabled by my hon. Friend the Member for Chatham and Aylesford, it is logical to assume that some people will respond by saying that they would like to use it. This is a permissive power. Those who do not want to use it do not have to, so I struggle to understand what the purpose of the consultation is unless the Minister expects a universal response.
Mr Browne: I accept absolutely the logic of my hon. Friend’s point. Perhaps I should shine some light on the modus operandi of the Home Secretary and whether we should legislate by impulse or whether we should consider in careful detail, following periods of consultation with relevant authorities, the best way to proceed with legislation.
Stephen Barclay: I am sure the Minister is not suggesting that my hon. Friend tabled an amendment in a haphazard or ill-considered way. Perhaps he wants to put on the record the fact that was not the intention behind his surprising comment. Is not in the nature of a Bill Committee that elected representatives can make recommendations and table amendments? That is consultation in its purest form. It should not only be a consultation dictated by officials.
Mr Browne: I certainly would not wish to imply that my hon. Friend the Member for Chatham and Aylesford ever tables amendments that she has not considered deeply. I am sorry if I gave that impression. My only point is that we have a Government Bill which has been introduced by the Home Office after an exhaustive and extended period of internal consultation, and which has a balance of requirements. It is not unreasonable for a Minister, when undertaking to look at whether the Bill could be modified, to subject the modifications to the same type of internal consideration that the original proposals in the Bill were subjected to before being brought to the House for consideration. All I am asking is that Committee members, particularly those who might in some circumstances be minded to support the Government, give the Government the opportunity to weigh up these issues and consult the people who might use the powers. I was trying to be helpful to my hon. Friend the Member for Chatham and Aylesford and to all other Committee members who share my concern that we should try to achieve beneficial progress in the area that she is bringing to our attention.
Chris Skidmore (Kingswood) (Con): The Minister has been extremely generous in offering the opportunity for consultation. What are his thoughts about the fact that the list currently consists of outward-facing public bodies that have a responsibility for the community at large? In contrast, schools are inward-facing bodies, and the headmaster is responsible only for the school community within the school premises.
Head teachers do have a power of injunction: it is called permanent exclusion. We ought to be very careful when we consider changing the law. The NAHT will give its view on the power in the consultation, but there is the risk that that power might undermine the process of exclusion, which has been worked out over years.
Mr Browne: I agree with that point. It is not unreasonable, as we consult more widely on this issue, that we should ask the Department for Education what it thinks are appropriate powers to vest in head teachers and college principals. We are not hostile to the intentions behind amendment 8; indeed, I seek to convey the opposite impression. We want to accommodate the sentiments behind the amendment, but we want to ensure that it is done in the most effective manner. That is why I was keen to tell my hon. Friend the Member for Chatham and Aylesford that we will undertake a consultation to see how the injunction can be most suitably deployed. We need to see whether injunctions are best granted directly by head teachers and principals, or whether they would rather they are referred to other bodies that more typically issue injunctions.
Richard Fuller (Bedford) (Con): My hon. Friend the Member for Chatham and Aylesford is doing a first-class job this morning and this afternoon in trying to strengthen the Bill. On this issue, does the Minister agree that we would be adding two individuals, rather than organisations, to the list of people who can provide injunctions? Substantially, it is organisations that are already enumerated on the list. The only other individuals on the list are involved directly in law enforcement—the chief constable and the chief police officer. Therefore, it seems that if we accepted amendment 8 we would be placing the responsibility for legal enforcement on individuals who have not asked for it and may turn round and ask why on earth they have been given it.
Mr Browne: I am grateful for my hon. Friend’s intervention, and I agree with his point. Although I endorse the intention behind the amendment, we want to ensure that it does what we all want it to do. For that reason, I am keen that the Government give greater consideration to this area. It may be that we have genuine anxieties about how it will work in practice for the reasons that my hon. Friend the Member for Bedford touched on. We might be able to find a suitable route forward that is satisfactory to everybody who shares our concerns. On that basis, I hope that for different reasons coming from different ends of the scale the hon. Member for Ashfield will withdraw amendment 16, and my hon. Friend the Member for Chatham and Aylesford will agree not to press amendment 8 with my assurance that I will come back to her after the summer consultation process.
Gloria De Piero: Amendment 16 was tabled to test the Minister’s arguments, and he has done a good job in explaining his thinking. He is right to say that more organisations might want to use the new injunction. In fact, Mad Frankie Fraser got an ASBO in his care home a couple of weeks ago, which shows that such a power might come in handy in a variety of institutions.
I pay tribute to the hon. Member for Chatham and Aylesford, who raised bullying in this morning’s sitting and again this afternoon. If she wanted to press amendment 8 to a vote, we would be minded to support it. I hear what the Minister has said. Perhaps the compromise would be to put it in the Bill and if—I do not think this will happen—he finds widespread outrage in our teaching institutions, it could be withdrawn later as the Bill progresses. However, I doubt he would find the widespread outrage that he fears.
‘(h) a headteacher, or
(i) a principal of an FE institution.’.—(Tracey Crouch.)
‘(1A) The court may vary an injunction under section 1 on the application of any person eligible to apply for such an injunction under section 4(1).’.
The amendment would ensure multi-agency working. It would overcome the issue that arises when an additional applicant wants to apply for an injunction, and prevent their having to go through a court process. Let us take a practical example. Our imaginary friend, Johnny, has
The amendment is sensible and would save us cash while ensuring swift action if the perpetrator took their bad behaviour elsewhere. The Social Landlords Crime and Nuisance Group also said that the proposal is a good idea. It stated:
Mr Browne: As the hon. Lady has explained, the amendment would extend the ability to apply to vary an injunction to any agency eligible to apply for an injunction as listed in the amended clause 4. As currently drafted, clause 7 restricts applications to vary an injunction to the person or body that applied for that injunction, as well as the respondent. The drafting ensures that it is clear who is responsible for an injunction and that appropriate consultation takes places. There will be no danger that changes could be made without the lead agency’s knowledge. However, we expect agencies to work together where it makes sense for them to do so.
I would not regard what the hon. Lady says about a series of parallel injunctions taken out by different agencies as being indicative of good working practice across Government. We would hope that the lead agency that brought the original injunction could work collaboratively with others where necessary. There is already a duty under clause 14 for the applicant to inform any other body or individual that he or she thinks appropriate before applying for a variation.
The hon. Lady talked about a person in the Arndale centre who moved on to a hospital. We have not got to clause 14 yet, but, in the circumstances she described, it is envisaged that the first applicant would inform the person affected in the second instance about the antisocial behaviour. That would ensure that where another agency has views on the terms of an injunction, they are considered properly. There is also the opportunity for more than one agency to apply jointly for an injunction, allowing them to apply, vary or discharge it at a later date.
Where a situation develops after an injunction is granted, so that a new agency becomes involved, we would expect them to discuss any variation with the original applicant rather than apply for a totally separate injunction from the original. In practical terms, after the application to vary or discharge the injunction has been made, a case can be presented on behalf of the applicant by another authorised agency. However, as drafted, the legislation ensures that the original applicant is involved in the process. We will draft guidance in association with the police, local authorities, social landlords
Finally, our approach in clause 7 mirrors that in the Crime and Disorder Act 1998 in respect of ASBOs, so there is precedent. I hope that the hon. Member for Ashfield will find it comforting and encouraging that, in that regard at least, we are drawing on the ASBO experience.
Gloria De Piero: Since both the High Court and the county court may make an injunction in respect of persons over 18, the clause needs amending to reflect that a person arrested for breaching an injunction made by the High Court should be brought before a judge. Amendment 18 probes that issue.
On amendment 19, the clause disregards Christmas day, Good Friday and any Sunday for the purposes of calculating the 24-hour period within which a person must be brought before the court. Will the Minister clarify whether that should include all bank and public holidays? On that point, I received a written submission from Rebecca Bryant, who also gave evidence to us; she raises the issue that
“as currently drafted if a young person was arrested on a Saturday they would be held in the police station until the next available court (usually a Monday) and this could be for longer if there was a bank holiday or Christmas Day. We believe this raises serious safeguarding issues in relation to young people being held in custody if a bail provision is not considered.”
Stephen Phillips: I listened intently to the way in which the hon. Lady moved the amendment. It is not really for her to respond, but I am concerned by what she said about young people being held for lengthy periods in custody. However, I would imagine—the Minister may be about to say this anyway—that those concerns apply whenever a young person is arrested on a Saturday and there is an intervening bank holiday or public holiday such as Christmas day. For that reason, I
Mr Browne: I am grateful to my hon. and learned Friend for his insight into what I was about to say, which was extremely accurate, and also to the hon. Member for Ashfield for explaining the background to the amendments. Both amendments, as we have heard, relate to the procedures related to arrest following the breach of a condition in an injunction that had a power of arrest attached to it.
Amendment 18 would provide that a person arrested for breach of an injunction issued by the High Court must be brought before the county court within 24 hours. The High Court has the power to issue injunctions under part 1 of the Bill. It is certainly not our intention to exclude those arrested for breach of an injunction issued by that court from the requirement to be brought before a court, but it appears that that may be the effect of the current drafting. I therefore undertake to consider the matter with a view to resolving it on Report. I invite the hon. Member for Ashfield to withdraw the amendment on that basis, so that we can look at the point she raised.
For the reasons touched upon by my hon. and learned Friend the Member for Sleaford and North Hykeham, I will not be so forthcoming on amendment 19, which seeks to add to the days that can be disregarded in calculating the 24-hour period within which an arrested person must be brought before a court. The wording in the clause is similar to that in the Family Law Act 1996, which introduced injunctions to prevent domestic violence. It is therefore a method of calculating time periods familiar to lawyers, the police and the courts and I see no reason not to use a well-established precedent in the Bill.
Perhaps more importantly, the occasions specified in the clause as currently drafted are single days. The amendment could be read to include longer periods: for example, if the court is not due to sit for two or more consecutive days. That could lead to an arrested person not being brought before the court for longer than intended under the Bill and therefore spending a longer period in custody. Civil courts are used to operating, when necessary, on Saturdays and on public holidays. I therefore put it to the Committee that the formula used in subsection (4) is appropriate.
I ask the hon. Member for Ashfield, having secured the prospect of at least half a loaf, in my undertaking to look at the issue raised by amendment 18, to withdraw the amendment. As I said, she has properly identified a potential anomaly in subsection (3) and before Report we will consider how best to address it in wording with which lawyers and others are comfortable and that sits well with the rest of the Bill.
Stephen Phillips: I seek some clarification on subsection (6). Under subsection (3), an arrested person must be brought before either the county court—I know that the Minister is going to consult on whether that should be the High Court—if a county court granted the injunction, or a justice of the peace if the injunction was granted by a youth court. Yet, under subsection (6), if a person is brought before a justice of the peace, the JP must remand that person to appear before a youth court if that person is aged under 18, or the county court if that person is aged 18 or over.
I wonder how a person could be aged 18 or over in circumstances where the original injunction was granted by a youth court—unless, I suppose, they turned 18 between the point at which the injunction was granted and the moment at which they were brought before a justice of the peace. If that is the mischief that subsection (6) addresses, then I understand it. If not, I would like the Minister to explain precisely what is going on with subsection (6).
Mr Browne: Under subsection (3)(b), a person arrested should be brought before a justice of the peace if the injunction was granted by a youth court. Under subsection (6)(b), the person must be remanded to a youth court if they are aged under 18. I cannot see any circumstances—other than the rare one, described by my hon. and learned Friend, in which the person turns 18 in the interim period—in which that apparently anomalous situation would arise. I am happy to throw the question open to the Committee to see whether anyone can suggest any other circumstances in which that situation would arise.
Stephen Phillips: I am certainly not going to force a vote on clause stand part. Will the Minister let the Committee know, perhaps in writing, that that is the mischief that the provision is aimed at? [ Interruption. ] He is not able to see, but all his officials are nodding, so I have little doubt that it is. Will he let us know in due course?
Mr Browne: Especially if they are all nodding energetically behind me, that gives me the green light to go wild and let my hair down. I undertake to let the Committee, particularly my hon. and learned Friend, know how the provision will apply in practice. The Government reserve the right to table amendments later to improve the clarity of the Bill, if we feel that that would improve the legislation.
‘(7A) Within a year of this section coming into force, the Secretary of State shall review the length of time that relevant courts have taken to reach decisions on whether or not to issue warrants under this section.’.
We heard that this was likely to severely slow down the process for dealing with ASB as County Courts are under pressure from reduced staffing and more litigants in person because of the reduction in eligibility to civil legal aid. County Courts were also likely to be further away for victims to attend.
There were further risks associated with a move to County Courts. Magistrates Courts would typically have a Duty Probation Officer in attendance who would be able to arrange any practical follow-up provisions, such as make-good in the community. As Swindon Borough Council noted, ‘the County Court can imprison a defendant for breach of Injunction or fine a defendant. But it is simply not equipped to offer reform, rehabilitation and reparation’.”
Mr Browne: The amendment would require the Secretary of State to review the timeliness of courts’ consideration of applications for an arrest warrant under clause 9. Such a review should be within a year of the commencement of clause 9. We have already debated whether a power of arrest should automatically be attached to all injunctions, so I will spare the Committee the ordeal of going over that ground again.
However, I accept that it is a necessary corollary of the approach taken in the Bill that breaches are followed up and, in appropriate cases, it should be open to the person who applied for the injunction to go to court to secure an arrest warrant and for that to be issued expeditiously. I am confident that the courts will be able to handle any such applications in an efficient and timely manner. I can, therefore, agree at least in part with the sentiment behind the amendment. Where I differ is on the need for a bespoke statutory review in the Bill. In line with the practice adopted by the previous Administration, all new legislation is subject to post-legislative review three to five years after Royal Assent.
Of course, that does not preclude our examining the effectiveness of aspects of the Bill within a shorter time span, should that prove necessary. As I have said, we do not need the inflexibility and cost inherent in the duties imposed by the amendments. We are open to scrutiny; we intend to undertake that scrutiny, perhaps in a slightly longer time scale than the hon. Member for Ashfield would ideally envisage. However, we have the option of a shorter time scale if necessary. We do not wish to incur the extra cost of requiring a review of these matters sooner than necessary. For all those practical reasons, which concern Governments of all colours, I ask the hon. Lady to withdraw her amendment.
David Rutley (Macclesfield) (Con): The Minister is making some sensible points. I can see papers passing between the hon. Member for Ashfield and the right hon. Member for Delyn. Does the Minister know of any precedent set for statutory reviews when the right hon. Member for Delyn was a Minister in the Home Office?
Mr Browne: My hon. Friend makes a strong point. If one were to read Hansard from when the right hon. Member for Delyn was a Minister, one would notice a distinct tonal shift between that era and the current one. I look forward to part 2 of the Bill, on which I understand that the right hon. Gentleman will take centre stage and display all the properties of a furious Opposition spokesman holding the Government rigidly to account, which he did not possess in quite the same way when he was in government.
Mr Browne: It is necessary to ensure that the powers can be discharged as need be in the way the Committee would envisage. We made changes to the county court system in the Crime and Courts Act 2013 that provide for greater flexibility to move cases around, to take advantage of a court that has greater capacity compared with its neighbour. The single county court seeks to remove the geographic and jurisdictional boundaries to provide a single court with a national jurisdiction of England and Wales, irrespective of where the court is convened.
In Government, we are alive to the concerns that the hon. Lady raises and we believe that we have the processes in place to deal with them. As I say, we keep these matters constantly under review, but we do not think it is necessary to have in the Bill a detailed timetable for when such a review—if, indeed, it is necessary—should take place. That is the normal procedure and that is good practice, without the need to specify overtly.
Gloria De Piero: We think that within a year would be a reasonable period to review. We have all talked about the importance of dealing with antisocial behaviour quickly. Indeed, the Bill’s entire premise is that it will deal more quickly with cases of antisocial behaviour. There are well-documented delays in county courts, so we think it is sensible for the Minister to review in a year the length of time being taken. If cases are taking longer, clearly the Bill’s premise will fall.
‘(3) In this section “domestic private rented property” means a dwelling-house occupied by any person under—
(a) an assured tenancy,
(b) an assured shorthold tenancy, or
(c) a licence, except where the dwelling-house is also occupied by its owner.’.
Gloria De Piero: The amendments deal with an important principle in terms of antisocial behaviour: they seek to provide parity between the sanctions available in social housing and in the private rented sector. It is particularly important that local authorities have the same power to act where antisocial behaviour is occurring in a private rented property, not least because the private rented sector is growing and people need more, not fewer protections.
To give an example, the most recent census published by the Office for National Statistics showed that the number of private renters in England and Wales increased by 88% between 2001 and 2011. The following is an example that I used in the oral evidence sessions that prompted much support from the Social Landlords Crime and Nuisance Group: imagine if I—or any of our constituents—am a victim of antisocial behaviour and am being bullied or harassed by each of my neighbours.
Bridget Phillipson: I rise to speak briefly on my hon. Friend’s amendments, which go to the heart of areas of omission in the Bill and the additional steps that are needed to protect residents from antisocial behaviour. It is not clear why the private rented sector has not been sufficiently covered in the measure. I should like to highlight examples from my area where there have been difficulties of antisocial behaviour in the private rented sector and where there are still deficiencies in the system.
Social housing providers often deal effectively with antisocial behaviour and work in partnership with local councils and other providers. They take seriously their responsibilities for ensuring that their tenants act appropriately and that their behaviour does not cause nuisance or harm to other tenants or residents. Unfortunately, that is not the case with a minority of private landlords.
As I mentioned in the oral evidence session, in one street in my constituency, it has been particularly difficult to resolve some of the long-standing problems of antisocial behaviour in the private rented sector. In that street, an ex-coal board street, an increasing number of properties have been bought by private landlords. It was difficult for the local council even to ascertain who owned those properties in order to take action. It took nearly two years in some cases and some of those landlords were absentee landlords who were resident in Hong Kong. Once ownership was ascertained, taking action was the next step and that was rather difficult.
Regardless of tenure, there should be effective means of dealing with antisocial behaviour. I hope that this is one area to which the Government will give serious consideration. It cannot be right, as my hon. Friend outlined, for there to be such a difference in approach towards a person in the social rented sector and their next door neighbour whose home was bought under the right to buy. Unfortunately, the examples I have seen are often where it is most difficult to deal with antisocial behaviour. The cases that are the most protracted and take the longest to resolve are almost always those concerning the private rented sector. We still have difficulties with social landlords but when I write to them and engage with them they respond and are clear about their responsibilities. That is sadly not always the case with private landlords.
I welcome my hon. Friend’s amendment. I hope that the Government will give further consideration to how we can ensure that private landlords take their responsibilities seriously, that their tenants take their responsibilities seriously and that we do not see such a divergence in approach depending on people’s housing tenure as opposed to the way they conduct themselves.
Mr Browne: I am slightly surprised that more Members have not sought to contribute to our deliberations on this part of the Bill. It strikes me as being one of the more interesting areas and one where there is plenty of scope for divergent opinions and where all those opinions can have some validity.
I shall talk about amendments 21, 22 and 23 and then 24 and 25 separately because they have a slightly different effect. In the spirit of slightly more free style Committee processes, I am open to ideas. That is why I welcome them and hope that others will be prompted by me into discharging their obligations as members of the Committee by coming forward with lots of ideas, although no doubt the Government will ultimately be responsible for whether the policy works in practice. I am actively seeking interesting insights, because the points made by the hon. Members for Ashfield and for Houghton and Sunderland South are valid. I will try to engage with their substance.
In the case of amendments 21, 22 and 23, it seems clear that the intention is to allow local authorities to exclude those in the private rented sector from their homes in exceptional cases. The Government remain to be convinced that that power, which is effectively exercised by or on behalf of the state, should be extended to individuals who live in their own homes or in privately rented accommodation. That is why the Bill is drafted as it is. However, we are willing to consider that further if a strong enough case can be made to the contrary.
Chris Skidmore: Could the Minister clarify whether the arguments made by the hon. Member for Ashfield are covered by clause 13 and the tenancy injunction against the person who has a tenancy agreement with the applicant? It seems that what she would like is covered by the clause.
Currently, under the terms of an antisocial behaviour injunction—these are the housing provisions—social landlords can exclude owner-occupiers and those in privately rented accommodation from their property in extreme cases if their behaviour is affecting the housing provider’s ability to manage their property and tenant. For example, if it is impossible to house anybody in a local authority flat because the next-door neighbours, who live in privately rented accommodation, behave so unreasonably that it is not possible to find anybody who is willing to live in the flat and it has to be kept vacant, the current provisions allow for the housing authority to apply for an injunction to remove the private tenants who are behaving so unreasonably that the flat cannot be let.
If a social tenant is constantly being harassed and threatened by a next-door neighbour who owns their own home, the social landlord can apply for an injunction against the neighbour. If the antisocial behaviour involves violence or significant risk of harm to the landlord’s tenant, the landlord can seek to exclude the perpetrator from their own property. We are talking about exceptional circumstances where the state has the power to exclude people who do not live in state-owned property.
The amendments would seemingly still remove such power from social landlords, but allow local authorities to apply for an injunction, including exclusion in the case of those in the private rented sector. That means that, in the example of an antisocial private rented sector tenant, the social landlord would have to work with the local authority in applying to exclude a perpetrator from the private rented accommodation, rather than acting independently.
However, owner-occupiers would not be covered at all and, as such, could not be excluded from their homes under any circumstances. When the hon. Member for Houghton and Sunderland South spoke in support of the amendments and said that they should apply regardless of tenure, my understanding is that the amendments would extend the provision from occupant of social housing to occupant of social housing and people in the private rented sector, but not to owner-occupiers, so it would not be regardless of tenure; everybody would be renting, and people who privately rented would be affected by the amendments as well, but somebody living in the home that they themselves owned would not be covered by the scope of the amendments, however antisocially they behaved.
It is not clear to me why the local authority should take responsibility for the injunctions when it is just as likely that a police force will have begun injunction proceedings against the perpetrator. That is why it gets a little more complicated. Previously, it was the local authority as the landlord exercising the power, because the people who lived in private rented accommodation were behaving in a way that compromised their ability as a landlord to let out the flat, whereas in this case, the injunction may be applied for, not by the landlord at all, but by one of the bodies that we list in clause 4—let us say that it is the police—so the circumstances would potentially be somewhat different.
If any change along those lines were made, there may be a case for extending the provisions to injunctions for which the police apply as well as to those for which local authorities apply. Both have access to the IPNA and both could be dealing with the case. However, I agree that, as the amendments suggest, the power to apply for an exclusion order against a private tenant should not be at the discretion of a social landlord, but rather that of the state, whether that is through a local authority or the local police force.
There is also a question about whether it is right to limit exclusion to those in the private rented sector—that may be of greater concern to people on the Government Benches, but it may not—or whether it is appropriate for it to be extended to owner-occupiers as well. It may be that the hon. Member for Houghton and Sunderland South and others want to go even further. There are legitimate points of view on how many of the three categories we extend it to. Some may feel it is not appropriate for the state to exclude people in the private realm when there is no effect on social landlords. Others, for the reasons that the hon. Lady gave, may feel that that is appropriate, while others may feel that if people who are renting in the private sector are being excluded, why should that not extend to an extremely unreasonable person who lives in the home that they own themselves, where no rental arrangement is taking place?
My point is that all those arguments are legitimate. I can see the validity in them all. The Government, in the Bill, have used the most constrained argument, which is to limit the measures to those who live in social accommodation, because we feel that a line is crossed when the state starts exercising a power to exclude people from their home, when it has no direct stake in that housing arrangement; the state is not the tenant. However, I am not saying that the argument is black and white, or that believing that the powers should be more widely extended is an invalid argument.
Bridget Phillipson: When I was talking about tenure, I was referring to the private rented sector as opposed to the social sector, because that is where we have seen a big growth. As my hon. Friend the Member for Ashfield said, there has been a big increase in the number of tenants in the private rented sector. That, to me—anecdotally in my constituency, and I think it is mirrored across the country—is where we have seen particular problems, often involving antisocial behaviour, and that area needs addressing most.
Mr Browne: I understand the hon. Lady’s point. To clarify my point, let us say that the individual who is subject to antisocial behaviour, and whose life is being made extremely difficult, lives in a block with three other flats. The landlord of one is the local authority, so it is a straightforward social housing dwelling. In the second flat, a person is privately renting; it is an owned flat, perhaps bought originally under the right-to-buy scheme, but is then let out to a private tenant. The third flat was also bought under right to buy, but the person who owns the flat lives there; they have not let it out.
Under the arrangements in the Bill, the hon. Member for Ashfield is right to draw to the Committee’s attention to the fact that we have limited the powers to exclude a person only from the first of those three flats: the person who is living in a property that is effectively owned by the state, so the state is the landlord. All I am saying is that one crosses a line when the power is given to the state to exclude people from properties of which the state is not the landlord. I am not saying that it is a bad line to cross; I am just saying that there is a line.
What the hon. Lady and the amendments envisage, as I understand it, is that the powers should be extended to include the second flat—the people who are renting, but in the private sector—and let us say that all three are equally guilty of inflicting antisocial behaviour on the people who live in the other flat. What she is not saying, as I understand it, is that the provisions should apply to the occupants of the third flat, who may also be inflicting antisocial behaviour on the other people.
My personal circumstances are that the people who live either side of me own their own houses. I live in a terraced row in my constituency, so what the hon. Lady envisages would not apply to my neighbours, because they are owner-occupiers who are not renting out their house, but if they decided to do so because they were going to, say, New Zealand for a year to broaden their horizons, it would apply to them. Again, I am not saying whether that would be right or wrong. It depends on what the Committee wants. Does the Committee want to have one, which is what we envisage at the
Gloria De Piero: I sense that there may be an opportunity for consensus. Everything that the Minister has said suggests that he recognises that to single out one kind of housing—social housing—is not fair. Going by some points in his argument and in the contributions and comments that he has made, I wonder whether he thinks that my amendments do not go far enough. I am not sure whether that is the case, but I genuinely detect that there may be an opportunity for consensus and that we may be able to mirror the powers that will exist through the Bill in the social housing sector for those who rent privately—unless the Minister wants my amendments to go further.
Mr Browne: I am just trying to flesh out all the arguments. I am saying that the Government go one step of three, the amendments go two steps of three and there is a case for going three steps of three, but there is a case for not doing so as well, which is why we have drawn the Bill as going one step of three. I am merely a member of the Committee; I am just giving my views on the matter.
Bridget Phillipson: We are having a reasonable, principled debate on the theoretical aspects—how the principle might extend and what it might mean if it were extended further—but it is clear from the oral evidence we received that there is a particular problem with the private rented sector. We have not heard evidence that owner-occupiers represent a particular problem. That said, we are all engaging in conjecture about what might or might not be the case. Have the Government done any work on where antisocial behaviour tends to predominate and, if they have not, would it not be helpful to do so?
Mr Browne: I have not seen a specific estimate of the number of perpetrators of severe antisocial behaviour who live in a home that they own, but I agree that from the representations we have heard, and my own direct, somewhat anecdotal experiences, the problem tends to be greater in the private rented sector than where people own their property. All I am saying is that there are cases—I am sure that we see them from time to time—when people living in their own property behave unreasonably towards their neighbours.
I draw to the attention of the Committee that the definition of a “domestic private rented property” outlined in amendment 23 is not one with which the Government are familiar, and there is a risk that if we adopt that definition, we will not provide comprehensive cover for all forms of private rented accommodation. If we, as a Committee all together, wanted to go down the path of including two of my three flats, rather than just one, it would be quite important to have a pretty watertight definition of what constituted the owner of the second flat.
In a case where a young adult terrorises the local community, repeatedly threatening violence, should it be possible to exclude him from the family home? If the home is owned by his parents, even allowing for the amendments, he could not be prevented from returning,
Sarah Champion: I support the amendment proposed by my hon. Friend the Member for Ashfield, because my understanding is that she is trying to get parity in the rented sector. I agree with the argument that is being put forward, but it is another argument. I draw the Committee’s attention to the evidence of Rebecca Bryant of Manchester city council, who is a director for the Social Landlords Crime and Nuisance Group. She said in relation to the existing legislation:
“You are almost creating a two-tier system where if you are the tenant of a social housing property, there are always more draconian powers that we can use against you, whereas it is becoming increasingly difficult to manage the increasing problem of antisocial behaviour in the private sector. It would be a very useful tool for us to have”—
“particularly to offer respite to the most vulnerable of tenants and owner-occupiers in our communities.”—[Official Report, Anti-social Behaviour, Crime and Policing Public Bill Committee, 18 June 2013; c. 28, Q61.]
Mr Browne: The hon. Lady makes a strong point. There is a distinction: social housing is a privilege, not a right, and it is correct that serious antisocial behaviour should result in exclusion in those circumstances. There are greater difficulties in framing what is meant by “private rented property”. On the face of it, that is a quite straightforward concept to define, but there are all kinds of arrangements—for example, people sub-letting or taking in lodgers—that we would have to ensure were covered in the provision. Perhaps I shall expand on those points when we return from the Division.
Mr Browne: As I was saying before the two Divisions, there are three categories: people in social housing, people who rent in the private sector and people who own in the private sector and live in their own house. The Committee, as I understood from hon. Members’ contributions, is happy about the provisions in the Bill relating to the first category. There does not appear to be an appetite to extend the provisions to the third category, but there does seem to be some appetite for considering whether we can extend the provisions to the second category—people who rent in the private sector. Perhaps it is best, given that that appears to be the prevailing view of the Committee, that we look at how that can be achieved.
It is important that we get the definitions right for the private sector. As I was saying before the Divisions, people live in a range of different circumstances. I was talking about people who sub-let; lodgers; people who live with their parents, guardians or a brother; and people who have an arrangement where they pay something towards the value of the property, but not the full market value. On the face of it, it appears very easy to define a person privately renting; however, I fear a definition is not quite that obvious. The Government should therefore look more at that.
I cannot give a categorical assurance that we will table amendments on Report on these measures. All I can say is that we currently have provisions for the social sector, and we will look—as I said, we are open to looking at this—at what provisions it is possible to extend to people who are privately renting.
Gloria De Piero: I want to be relieved and to welcome warmly the Minister’s words, but I need a little more detail. Does he accept in principle that there is parity between social housing and privately rented housing?
Mr Browne: If someone is subject to an unrelenting barrage of antisocial behaviour that makes their life extremely bleak, whether the person next door who is perpetrating that behaviour is renting from the council or from a private landlord makes little difference to them. I can see why Committee members want the powers to apply in both those circumstances. However, there is a slight difference, which I tried to acknowledge in my earlier remarks.
The hon. Lady might not agree, but it is legitimate to think there is a difference between people who break the law who rent from the state and those who rent privately, which would involve crossing the line into the private realm and excluding that person from a property of which the state is not the landlord. Some Committee members might think that is a synthetic difference. However, in the first case, the state is excluding people from property that is owned by the state, and in the second it is excluding people from property that is not owned by the state. Some might think that gives greater power to the state in the private realm than they are comfortable with; others might say that if people perpetrate that type of antisocial behaviour they are indifferent to that distinction. That is, I hope, a full answer.
Let us look at what we can do for the private sector. I am not promising that we will table an amendment to give effect to that; I do not want to give a cast-iron undertaking. However, it is something we take seriously, for the reasons I have given, and we are genuinely open about what we will do in this area.
Stephen Phillips: In the context of excluding people from property in the private sector that they either own or are renting, has the Minister taken legal advice—I do not want to know its content—on whether that might contravene, for example, the provision in the Human Rights Act about preventing the free enjoyment of property?
The point I would make is that currently, if somebody in private rented accommodation is making the life of somebody else in private rented accommodation miserable, the state has no power. The hon. Member for Houghton and Sunderland South talked about people in the private rented sector behaving very badly. However, if there were two flats next to each other and they were both privately rented, there is currently no power to exclude, so we would be effectively extending a power, because we would be creating the right to exclude people from private rented accommodation when they were affecting other people in private rented or owner-occupied accommodation, not just those in the state social sector, as is currently the case. In that way, such a change would represent an extension of powers.
Bridget Phillipson: On the point made by the hon. and learned Member for Sleaford and North Hykeham about the principle at stake, as I understand it, there is currently provision in terms of occupation orders that allow people to be excluded from homes that are either rented or owned by owner-occupiers. In certain circumstances, such as domestic violence, it is possible for someone to be excluded from a property or for the victim to be the only person allowed access to that property. I just wanted to draw the Minister’s attention to the fact that there is already such provision in certain circumstances.
Mr Browne: Indeed, but that is for a narrower set of circumstances than we would envisage if we went down that path. All I am saying to the Committee is that if I am here to defend the legislation as contained in the Bill—
The Bill does not have the provision to go into the private realm; we do not need to undertake an impact assessment because we are not proposing to do that in the Bill. I am now in tune with the mood of our times and can say that we will look at options on that, although I do not want to guarantee that we will table amendments. We may, however, feel that we can make some good changes.
I am even more sympathetic to amendments 24 and 25, tabled by the hon. Member for Ashfield, than I was to her amendments 21 to 23. I understand that the intention is to ensure that tenants in the private rented
However, it is interesting to hear the case—we have not heard any great detail, but others may wish to intervene—for and against extending the measure beyond the social housing realm to privately rented accommodation and possibly even to owner-occupiers. Currently, if I live next door to somebody in social housing, and every Saturday in the summer they hold a barbeque to which they invite 25 people who behave in a reprehensible manner all afternoon, making it impossible for me to enjoy an afternoon in the garden with my children, I could take action using some sort of injunction. That is only if my next-door neighbours live in social housing.
However, if my neighbours were in the private rented sector—to draw on the point made by the hon. Member for Houghton and Sunderland South—or owned their own house, and invited exactly the same 25 people round, who then behaved equally reprehensibly and prevented me from enjoying an afternoon in the garden with my children, I would have no powers to do anything about that under the Bill. We are going over similar territory about whether people feel that we are crossing a line, but I am personally sympathetic to the case for looking at whether we can take things further. I am interested in hearing contributions, including from the hon. Member for Rotherham.
Sarah Champion: May I take up the Minister’s offer and give an example? In Rotherham, we have an area called Eastwood. Both the police and the local authority have said that the biggest problem there is with about half a dozen houses that are all owned by private landlords. The tenants are very disreputable, but both the police and the local authority have said that they are unable to do anything because those homes are in private hands. I support the Minister looking favourably on the amendment.
Mr Browne: I am grateful for support from any quarter where I can find it. Others may take a different view, but I do not personally believe that social tenants have a monopoly on inviting people with antisocial behavioural tendencies to their homes. There is a strong case for extending the legislation.
At the moment, the back-stop is that there is provision in the legislation for people in social housing. That is important and will capture a large number of incidents in our constituencies. If we extended the provision to the private rental sector, it would capture more. We could extend it further, to owner-occupiers, but it probably makes sense to have equivalent status in both areas, rather than different levels in different parts of the legislation.
Richard Fuller: It is always interesting to listen to the wide-ranging hypotheses that hon. Members can come up; however, I would make the point that I was elected to represent the good people of Bedford and of Kempston, but I was also elected as a Conservative. Regardless of
Mr Browne: My hon. Friend’s contribution expresses the dominant sentiment behind the drafting of the legislation. However, as I have said, I am open to arguments—that is how things work. I would say only this it to my hon. Friend: an Englishman in his castle who seeks to enjoy the castle grounds with his children on a Sunday afternoon may feel that their lives are blighted by antisocial behaviour, regardless of the rental arrangements of the people living next door, with their 25 guests. However, he makes a reasonable point, which is why the legislation is drafted as it is.
Gloria De Piero: As the hon. Member for Bedford said, the Minister is outlining a number of different hypothetical situations and what his own view might be on the relative merits of each; he has used the phrase “my personal view” a number of times. However, this is a Government Bill and it is important to get to the nub of the Government’s argument. Before the Divisions in the House, I was ready to come back and welcome the consensual approach that the Minister was taking, because I thought he had accepted the amendment in principle. I fear that something happened during the Divisions, because he seems to have retreated and cannot give me any guarantees.
Mr Browne: Not at all. Large parts of the Bill are indeed the Government’s Bill—[ Interruption. ] No, not all of it: I admit that the Bill has not gone through all its stages, but as it currently stands, as amended by the Committee, there are two provisions now in the Bill that the Government specifically recommended should not be. It is not wholly the Bill as the Government envisaged. There are lots of people who feel that the Bill as envisaged by the Government is imperfect. We know that because the Government have already been defeated twice during the course of proceedings on the Bill. There was not a vote in the first case, but an amendment was made that has changed the Bill.
My point is that, although ultimately the Government are responsible for legislation, if Members want to use their imaginations, there is scope for broadening the Bill; all I am doing is laying out that fact. This is not hypothetical; thousands of people around the country are affected by the antisocial behaviour of neighbours who live in the private rented sector, and we could look to extend the Bill to give them greater protection. However, that could cause some difficulties, as outlined by my hon. Friend the Member for Bedford, which is why the Bill is drawn in the way it is.
For what it is worth, I recommend that the Committee support the Government on the clause and keep it as it is. If it is of any reassurance to anyone on the Committee, I will undertake to look at whether there is scope for extending the provisions to private rented tenants, without
The Chair: Order. Before we progress too much further in our ramble around the shires, let me say that I have a duty to ensure the Committee considers the amendments that are on the amendment paper, not ones that are not. The Minister has given a clear undertaking that he wants to take the issue away and look at it, although not an undertaking that he will do anything about it. The time is rapidly approaching when I need to invite those whose signatures appear on the amendments to press them to a vote or withdraw them.
Gloria De Piero: As I listened to the Minister earlier, I really thought we were coming to a consensus, in that he accepted in principle the parity between the private rented sector and the social housing sector. May I give him one last chance? Does he accept in principle the parity between those sectors?
Mr Browne: Sir Roger, I suspect I am guilty in your view of speaking at too great, rather than insufficient, length. As I said, someone subjected to antisocial behaviour by their neighbour is probably indifferent to their neighbour’s tenancy status and just wants suitable measures to be available to prevent the antisocial behaviour, so, in that regard, there is parity. However, my hon. Friend the Member for Bedford made the reasonable point, and I have said on a number of occasions, that we cross a line when we extend powers beyond the state realm into the private realm, which is why the Bill is framed in the way it is. It would afford greater protection to a greater number of people if it was extended into the private realm—that is clearly the case.
Gloria De Piero: I am sorry, but I feel I have no option. I cannot get clarity on the Government’s position, and there is certainly no offer of a guarantee on protections for those in the private rented sector. I therefore have no option but to test the will of the Committee on amendment 21.
‘(3A) Within a year of this section coming into force, the Secretary of State shall review the length of time taken by consultations under this section with local youth offending teams.’.
The Opposition are a bit worried that there is no time scale for when local youth offending teams have to be consulted. It would be a good idea for the length of time taken by consultation with local youth offending teams to be reviewed. We do not want people not to be punished for their behaviour or for long periods to pass because of the clause’s lack of time scale.
Mr Browne: This debate is similar in many respects to our earlier debate on amendment 20 in that it calls for a review of the workings of, in this case, clause 14 within 12 months of commencement. Specifically, amendment 26 is concerned with the obligation of an applicant for an injunction to consult the youth offending team before making an application in respect of a person who is under 18.
Youth offending teams help to ensure that the needs of the young person are met in an appropriate way. In our consultation, it was recommended that the youth offending team should be consulted before an order is made against an under-18, so that the young person’s needs are taken into account. There is broad support for such a requirement. Of course, I expect that the necessary consultation with the relevant youth offending team would take place with a proper sense of urgency. If the police or other agency have concluded that the public need to be protected by taking out an injunction, the necessary judicial process needs to be completed as quickly as possible and should not therefore be unduly delayed by protracted consultations.
I remind the hon. Member for Ashfield that the Crime and Disorder Act also includes a requirement for consultation before making an application for an ASBO, albeit expressed in different terms. The principle of consultation is therefore well established. We sought to streamline it while providing greater flexibility where the respondent is an adult, but there is general acceptance that the needs of under-18s require particularly careful consideration, hence the duty to consult the youth offending team.
As I indicated in the context of amendment 20, I am not persuaded of the case for a statutory duty to undertake a review. There are established arrangements for post-legislative reviews and it is open to us to undertake an interim review should there be a case for doing so. I therefore ask the hon. Lady to withdraw the amendment.
Gloria De Piero: I thank the Minister. We will keep on eye on how long the process is taking and check whether there are hold-ups when the legislation comes into force. I beg to ask leave to withdraw the amendment.
Gloria De Piero: I should like some clarification. I think the clause will mean that an existing ASBO will lapse after five years. Will the Minister explain what will happen to Paul Smith, who was given an ASBO of longer than five years for a bomb-making hobby? Other examples are given in the following headlines: “Campaign of misery sees fraudster hit with a 10-year Asbo extension”; “Unlimited ASBO imposed on Chadwell St Mary pensioner”; and “Serial offender gets a 7-year ASBO in bid to stop neighbours’ ‘nightmare’”. What will happen to those ASBOs? They should continue beyond five years, but they are set to expire.
Mr Browne: This is an important point for the Committee to consider and I hope that I can reassure the hon. Lady and other members of the Committee. Clause 20 contains saving and transitional arrangements in respect of existing orders that are being replaced by the new injunctions under part 1 of the Bill. The provisions apply to antisocial behaviour injunctions, injunctions under sections 135A, 135B and 135D of the Housing Act 1996, antisocial behaviour orders on application, individual support orders, intervention orders and drinking banning orders. The repeal of the existing provisions does not affect orders or injunctions made before the commencement of this part of the Bill.
From the day that the provisions in the Bill come into force, agencies and practitioners will not be able to vary an existing order by extending either the order itself or any of the provisions in it. This is the crucial point: five years from the commencement date, any existing orders still in place, such as antisocial behaviour orders on application or antisocial behaviour injunctions, will automatically convert to injunctions under part one of the Bill. That also applies to prohibitions in any existing orders, as well as to individual support orders, which will automatically convert to positive requirements under clause 2.
The clause also allows the court to consider the past behaviour of a person in deciding whether to grant an injunction. The court is limited to considering conduct that occurred up to six months before the commencement date of the Bill. I hope the Committee agrees that the provisions are practical and sensible, and ensure a smooth transition to the new powers without disruption.
Gloria De Piero: I think the Minister is saying that the unlimited ASBO imposed on the Chadwell St Mary pensioner in Thurrock will convert to an IPNA in 2018. Do I understand him correctly? With that conversion, there will be no accompanying criminal sanction for a breach.
Mr Browne: Indeed. The hon. Lady is right that the antisocial behaviour provisions would exist for five years. Some provisions may, of course, apply for less than five years. For example, they may have a three-year time limit to 2016 and would therefore expire within the five-year time frame. If the provisions had no time limit, or the time limit was in excess of five years, they would convert to an injunction after five years, as outlined in part one of the Bill.
Written evidence reported to the House