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
That the Order of the Committee of 18 June relating to programming be amended as follows: line 8, in the entry for Tuesday 2 July, leave out “8.55 am and”—(Mr Syms.)
It is a pleasure, Mr Dobbin, to serve under your chairmanship. We do not have an issue with the principle of dispersal powers—indeed Labour introduced them back in 2004; none the less, we have an issue with the removal of consultation with local authorities when issuing a dispersal power. We have received many, many submissions along those lines.
As I said, we do not have an issue with dispersal powers themselves; we introduced them. One was used in my own constituency just a few weeks ago to stop car cruisers from meeting up around Sherwood business park in Annesley, and it was welcomed by residents and police. As it was put in place by the police and the local authority, I have not had a single complaint about it. None the less, we must all recognise that when we introduced dispersal powers, they were controversial. The new power can be authorised more easily than the existing one, which is why we are tabling the amendment. Local authorities should be consulted because there must be some democratic oversight.
When the Home Affairs Committee looked at the matter, it recommended that there should be a duty to consult local authorities on applications where a dispersal power was for more than six hours. The Government responded by saying that they would ensure that the legislation allows for that, but, in fact, the legislation does not.
“In these new proposals, although PCCs would be expected to provide democratic oversight, this is after the event and not through a process which engages the community before the powers are used...This could result in disproportionate use of the powers and greater tensions in some communities and sections of some communities.”
Gloria De Piero: Everyone who has made a submission says that the power works well and is a crucial part of their system. Different local authorities will have their own methods, but police say that working with a local authority really helps them get community consensus and cover. We are talking about a measure that was very controversial when it was first introduced.
“The authorisation process was found to be a crucial element on which well considered dispersal orders are founded, affording the opportunity to enhance police-community relations and provide openness and accountability.”
The other change that has been made is that the length of time for which individuals can be excluded from a designated area doubles under the Bill from 24 to 48 hours. The Minister may have good reasons for that, which is why we have not tabled an amendment, but I would like to hear what he says.
The power is controversial and submissions have been made, and we think it is right to state the concerns and note those submissions. Liberty and several other organisations made representations about the change. The details of how the provision will work are set out in clause 33, but as the power is mentioned in clause 32 that is where I raised it.
The Minister for Policing and Criminal Justice (Damian Green): With the amendment we move to the sunlit uplands of part 3 of the Bill, and the new dispersal powers. I am grateful to the hon. Lady for the measured tone of her amendment and her comments.
As the hon. Lady said, under clause 32 the use of the dispersal power must be sanctioned by an officer of the rank of at least inspector. That is to ensure that the need for dispersal, as well as the wider impact on community
The overall distinction that I would draw, which goes to the heart of the hon. Lady’s concern, is between a dispersal power and declaring somewhere a dispersal area, which is much longer term. The new power is designed to be a dynamic tool to allow the police to deal with antisocial behaviour quickly and effectively, on the spot, and to provide short-term respite to communities blighted by groups or an individual.
One of the problems with the existing dispersal powers, which, as the hon. Lady said, were introduced by the previous Government and proved useful to communities, is that in some circumstances they cannot be used quickly or flexibly enough. The current powers can be used only once a dispersal zone is in place. Before they can designate a dispersal zone the police must consult the local authority—precisely what the amendment would require. That introduces a degree of delay and inflexibility that may, in practical terms, inhibit or indeed prevent the police from taking effective action.
“These proposals have received significant support as it strengthens police powers to remove people from areas for poor public place behaviour in general and not overly focusing on alcohol related disorder as it is at present. Both Section 30 Anti Social Behaviour Act 2003 and Section 27 Violent Crime Reduction Act 2006 Dispersal orders have proved to be very effective tools and”—
Damian Green: Clearly, any power can be misused, but I have great confidence in the ability of the police to deal with public order problems. I am confident that the powers will not be used disproportionately. Underlying the hon. Lady’s argument is an understandable concern about safeguards. She seeks to ensure that the power is not misused. Indeed, that is what the Home Affairs Committee was driving at. For that reason we said that the power needs to be approved in advance by an officer of at least the rank of inspector. There are no exceptions. Even if a situation develops that an officer of a lower rank wants to deal with on the ground by this method, they cannot. It has to be approved by an inspector.
“The proposed power would be available in the event of the public being harassed, alarmed or distressed, or the occurrence of crime and disorder. This is a lower threshold than the necessity to demonstrate a significant and persistent problem in the locality, which applies under the current regime.”
Damian Green: That goes to the heart of the point I was making about flexibility. The new aspects of the power, which is a greater power, as the hon. Lady said, are designed to allow police officers to react to a dynamic situation quickly, whereas the dispersal zone is designed to address long-term issues, such as when an area becomes a centre for drug dealing or other kinds of antisocial behaviour. The power may be used to address a situation in an area where there is not habitually a problem, but where there is clearly, in the view of a senior police officer ranked inspector or above, a need to say, “We need to do something about this now.” It gives them the power to do that. To return to my point about 48 hours and the weekend, it would be much more difficult to get any kind of authority from a local authority during that period, and therefore the situation might get out of control and damage the community.
Bridget Phillipson: The Minister is being very generous in giving way. The Home Affairs Committee report recommended that there be a duty to consult if the dispersal power is applied for a period longer than six hours. Has the Minister considered whether there should be a measure of the length of time the powers are applied for, so that there is an immediate effect, but a duty to consult if the power is to remain in force for a longer period?
Damian Green: That is a very good point. The power is designed to be short term—up to 48 hours—so that it can provide temporary respite from an immediate situation. It should not regarded as a long-term solution for disorder in a particular area. I assure the hon. Lady that the power is designed to be a short-term measure, and there are safeguards in addition to its having to be approved by an inspector.
The test for the use of the power is high, and rightly so. People can be moved on only if the officer has reasonable grounds to believe that they are causing, or are likely to cause, harassment, alarm or distress. It should be given in writing; only in exceptional circumstances can it be given orally. The power is not designed to be used lightly. The police will have to jump over a number of hurdles before they can use it. I hope that that will provide the safeguards that people want.
Gloria De Piero: The Government responded to the Home Affairs Committee’s recommendation that the local authority should be consulted where a dispersal power was applied for longer than six hours by saying that they
Damian Green: We have introduced the safeguards. The problem may simply be one that divides our analysis from that of the Home Affairs Committee. If we went down the route of compulsory consultation with a local authority before the power was used, it would severely reduce the usefulness of the power to help communities maintain their police protection and would therefore lead in the end to more potential for public disorder. That may be a straightforward difference of analysis. The usefulness of the power will be immediate and for dynamic and unexpected situations. It is a useful new tool in the police armoury. Given all that, we should be wary of adding to the provisions additional requirements that slow down the exercise of such a power.
The hon. Member for Ashfield also mentioned police and crime commissioners, who, she said, can operate only in retrospect, rather than in advance. That is true, but they will have an important role in overseeing the use of the dispersal power. Police forces will keep records of the dispersals issued, and the police and crime commissioner can use those data to hold the force to account for how the dispersal power is used. If it is clearly shown that there is a pattern of misuse of such powers, there will be consequences for the chief constable through the police and crime commissioner, whose job it is to hold the chief constable to account.
In conclusion, the arrangements set out in clause 32 balance the need for safeguards with the flexibility that is vital for dealing with a wide range of antisocial behaviour. I am therefore not persuaded by the arguments in favour of the amendment, and I ask the hon. Lady to withdraw it.
Gloria De Piero: The Minister has not given me a single example of where, for instance, a community has been in danger because a local authority could not be consulted about a dispersal power over the week, and the power could not therefore be used. Given that, and the overwhelming number of submissions made by so many local authorities of different political persuasions, I would like to test the will of the Committee on the amendment.
Clause 32 ordered to stand part of the Bill.
Stephen Phillips (Sleaford and North Hykeham) (Con): I will not detain the Committee for long on this stand part debate. Along with my hon. Friends the Members for Chatham and Aylesford and for North East Cambridgeshire, I tabled some amendments to leave out some potential areas of red tape, in which the police will be involved if the Bill is passed. The measures in question are in subsections (5)(a), (5)(b), (9)(a) and (9)(b), which require directions to be written rather than oral. Even if the amendments had been tabled in time, I would not have pressed them to a vote, but I ask the Minister to consider deleting the provisions on Report on the basis that the Government are quite rightly committed to tackling police red tape and that the measures may be unnecessary.
Damian Green: I am happy to address directly my hon. and learned Friend’s concerns. He is right that the Government are keen to reduce unnecessary bureaucracy in the police. Indeed, we have taken quite considerable steps toward that. Obviously, however, it is appropriate to strike the correct balance between the safeguards that the public require and the police’s ability to operate effectively. It is worth noting that recording directions is considered best practice by those who currently use the existing powers, and ACPO has issued advice to that effect.
Issuing a direction in writing is an important safeguard for several reasons. First, it helps the person being given the direction understand exactly what is required of them. The written notice will specify the locality to which it relates and can impose requirements about the time by which the person must leave the locality and the route that they must take. The officer must also tell the person that failure to comply is an offence. Current best practice is to provide a pre-prepared notice, which the officer completes with the specific details of the direction. That may include a map to clarify the area the person is excluded from. If the direction is breached, it is crucial that the terms of the direction and how they were communicated are clear and capable of being evidenced. Breach of the dispersal power is an offence and the court would need to judge whether there is a reasonable excuse for failing to comply.
Secondly, keeping records will mean that use of the dispersal power can be scrutinised, as we have discussed previously, to ensure that it is not used disproportionately, either in a particular place or against particular groups of people, such as young people. That will help the police and crime commissioner scrutinise how the dispersal power is being used in their force area.
Thirdly, police forces and councils will be able to use data about use of the dispersal power in their crime prevention planning and when developing longer-term solutions to antisocial behaviour in hot spots.
I therefore understand the underlying concern. We have made the new power less bureaucratic by removing the need to pre-designate a dispersal zone in consultation with the local authority. However, the dispersal power is a powerful tool. We have seen in several serious recent issues that having a proper audit trail of what individual police officers have said and done, and when, is extremely important. I hope that my hon. and learned Friend recognises that.
I am not going to push any amendments either now or, I think, on Report—although I make no commitments in that regard—and I have heard everything the Minister has to say, but I hope that he will look carefully at the matter.
Damian Green: I appreciate my hon. and learned Friend’s point. I think there is a certain tendency to look back with nostalgia on the golden age of the clip round the ear. In the modern world, for all sorts of reasons, society has moved on. The capacity of people to record on mobile phones and cameras what the police may or may not be doing in individual circumstances would, regardless of anything else, entail greater official care about the capacity for the police to take individual, unofficial decisions about how best to deal with a dynamic public order situation.
Of course, that is what the police are doing up and down the country, often late at night, in every city and town. They have to make second-by-second decisions about the best way to defuse a situation safely. Given that the powers granted to them under the order are considerable, having a degree of formality about them, with as little bureaucracy as possible, so that there can be a decent, accurate and precise audit trail afterwards, is, apart from anything else, in the long-term interest of the police themselves, because they will be able to show precisely what they had instructed individuals to do. The amount of dispute we can minimise in that area seems to me to help not only the situation at the time, but in any subsequent investigations.
Gloria De Piero: Because of the controversy about the powers, both when we introduced them and in the Bill, I think that it is worth obtaining some reassurances for the organisations that have made representations. Police officers have the power to return an under-16-year-old to where they live or to a place of safety. Regarding that power, the Children’s Commissioner said:
Damian Green: We have discussed the purpose of the dispersal power. It is a powerful provision that allows people to be directed away from an area they wish to be in. As the hon. Lady said, the Children’s Society and Barnardo’s have raised a specific point, which relates to the existing regime as much as it would to the new regime under the Bill. We are seeking to mitigate that concern through the accompanying guidance that we discussed this morning and our wider safeguarding work. For example, we are now working with the College of Policing on training for police officers to ensure that
Police forces already have safeguarding arrangements in place to ensure that children are not returned to unsafe homes or placed in potentially harmful situations. We are seeking to improve the behaviour, ability and training of police officers, so that the important issue of protecting children is at the forefront of officers’ minds, particularly when they are exercising the type of powers that they will have under this section of the Bill. I hope that the hon. Lady is reassured by that.
Stephen Phillips: Again, I shall not detain the Committee long. There are printed amendments to the clause, which cannot be moved because they were out of time, in my name and those of my hon. Friends the Members for Chatham and Aylesford and for North East Cambridgeshire. Under subsection (2), where a dispersal power is used, a direction cannot be given that prevents the individual to whom it is given from going to the place where they live. The Minister will need to think about the following point before Report.
One can envisage how the dispersal power might be used where domestic violence was being demonstrated in a public place, for example, between a drunken man and his girlfriend. The police officer uses the dispersal power and tells the drunk chap to go home. He goes home, but is in due course followed by his girlfriend because she has nowhere else to go. So rather than taking place in a public place, in a pub, in the street or wherever it may be, the incident that the police officer fears takes place at home where the woman is beaten up by her abusive partner. While I quite understand and, indeed, support the general principle that the dispersal power should not be used to exclude someone from their home, it seems to me and my hon. Friends that there should be some leeway in this regard.
The amendments that cannot be moved, but are printed on the amendment paper, were designed to deal with that, so that a direction can be given to disperse someone from the address or tell them not to go back to the address where they live when there is a likelihood of harassment, alarm or distress being caused to someone at that location, or there is a threat, or violence is likely against someone who will be in the place where that person lives, or there is a significant risk of harm to the person who lives at that place. That ought to be dealt with, I respectfully suggest to my right hon. Friend the Minister, in the Bill. The Bill is currently too prescriptive. Subject to anything he says now, if the Government do not deal with this, I will certainly consider moving the amendments on Report.
Damian Green: I am grateful to my hon. and learned Friend for raising the issue. The dispersal power is intended for use in public places, to prevent or to stop members of the public being harassed, alarmed or distressed, or to prevent crime or disorder. That is why it would not be appropriate to allow this dispersal power to be used in the manner he proposes. It is not that it is not an important issue—it is.
Damian Green: Again, we are talking about giving the police certain powers. If that subsection were not there, the police would have the power to make someone temporarily homeless for up to 48 hours, which would be a new and somewhat draconian power. There is a perfectly good reason to have the subsection in the Bill. The underlying point my hon. and learned Friend makes about violence inside the home is perfectly fair, but there is a range of other powers that can be used in precisely those circumstances. The Minister of State, my hon. Friend the Member for Taunton Deane, said on Tuesday that he will consider whether the Bill needs to supplement those powers, and, in particular, whether it would be right to extend the injunction to prevent nuisance and annoyance in specific circumstances such as the risk of violence or harm. However, it is important to remember that powers already exist for circumstances in which there is violence, the threat of violence or a significant risk of harm to someone in the house.
For example, where there is risk of immediate harm a police officer can arrest someone for a breach of the peace, a common-law concept used to stop someone causing harm to a person or property or to prevent them from doing so. A breach of the peace may occur on either public or private property; police may use their common-law power to enter a property without a warrant in order to stop or prevent the breach.
Bridget Phillipson: The Minister is right. That is certainly what has happened in the area covered by the Northumbria police force, which has a proactive policy in that regard. However, it took a long time to reach that point, and I am not entirely sure that the power is consistently used. In fact, the power could be used better: police officers do not always seem confident in using it. There is need for greater attention to that matter.
Damian Green: I am grateful to the hon. Lady for raising that point, because, as I say, the powers are there. We are discussing legislation, so we are giving powers, but how the police use those powers is an operational matter for individual chief constables. Indeed, if a pattern of problems is emerging, it would be legitimate for the hon. Lady to discuss that with the police and crime commissioner—we now have those people in place—whose job it is to hold the force to account.
In response to the point raised by my hon. and learned Friend, we fully expect a police officer to assess the situation before he or she exercises the dispersal power. If an officer is faced with the kind of domestic violence problem that my hon. and learned Friend described, it is unlikely that using the dispersal power would be the appropriate response. There are other powers; there may be a feeling that they are not used appropriately in individual cases, but in terms of legislation it seems to me that the necessary powers are already in place.
When it is necessary to prevent somebody from accessing their home for a longer period, an injunction can be made under the Family Law Act 1996 or the Protection from Harassment Act 1997 to protect someone who is at risk of harassment or conduct that puts them in fear of violence. Breach of one of those orders is a criminal offence.
I understand the concerns raised by my hon. and learned friend, but I hope I have been able to reassure him and other members of the Committee that the dispersal powers are appropriate and appropriately described.
Stephen Phillips: I listened carefully to the Minister, and he has given me some reassurance. In relation to the powers that he outlined, what concerns me is that if one looks, for example, at the power to arrest for a breach of the peace, exercising that power in the scenario I outlined to the Committee would mean that the couple are sent home—dispersed, together or separately, to the residential property; the police then have to go to the property to check nothing is going on. If something is going on, they can arrest at that point for breach of the peace, but in reality they will have to spend the rest of the evening checking the situation, until the chap sobers up or whatever is driving the violence dissipates. That ties up resources and police time, and is completely unnecessary. We could amend the Bill to deal with the problem that I was outlining.
As for injunctions, I am afraid that they provide no answer at all. They afford no solution, because they require both evidence and a trip to court. The Minister is perfectly correct that breach of an injunction amounts to a criminal offence, but that does not deal with the immediate situation of violence that I outlined. It is immediate situations of violence and of antisocial behaviour and disorder with which the Bill is seeking to grapple. I therefore urge the Minister to look carefully at the issue with his officials, who I know have been listening intently to my no doubt inadequate description of the problem I foresee with the clause, and to come back on Report with rather better reassurances than the Committee has heard today—at least as regards my concerns—or, perhaps better still, to amend the Bill along the lines I indicated.
Damian Green: Let me have one last go at reassuring my hon. and learned Friend, by mentioning another new power elsewhere in the criminal justice system. Since last June, we have been piloting the domestic violence protection order in three police areas—West Mercia, Wiltshire and Greater Manchester. That new power enables the police and magistrates courts to put in place protection for the victim in the immediate aftermath of a domestic violence incident. Under a DVPO, the perpetrator can be prevented from returning to a residence or from having contact with the victim for
I can only assure my hon. and learned Friend again that we are very conscious of the problems of domestic violence, and we are taking significant steps to try to minimise and discourage it. We are experimenting with new ways of using the courts and other agencies to ensure that domestic violence is treated appropriately, because it is a significant problem.
“A constable who gives a person a direction under section 33 may also direct the person to surrender to the constable any item in the person’s possession or control that the constable reasonably believes has been used or is likely to be used in behaviour that harasses, alarms or distresses members of the public.”
As the hon. Lady said, under the clause, when an officer issues a dispersal direction, he or she may also direct the person to surrender any item he or she reasonably believes has been used, or is likely to be used, in antisocial behaviour. As she said, the item could be spray paint, in cases involving graffiti, or it could be alcohol, where drinking is involved. The power in the clause clearly makes it more difficult for individuals to continue their antisocial behaviour elsewhere. The direction will be given in writing, unless that is not reasonably practicable; one can imagine circumstances—a struggle may be going on or something like that—in which it might not be practicable.
The officer must tell the person that failing to comply is an offence and give them information in writing about when and how to recover the item; again, it is a question of the audit trail I mentioned earlier. As the Committee can see, the clause includes arrangements for the return of any surrendered item. The item must not be returned before the end of the exclusion period—the period during which the person must stay out of the locality. If the person appears to be under the age of 16, the officer can specify that it will be returned only if they are accompanied by an adult. If the person has not collected the item after 28 days, it may be disposed of or destroyed.
Gloria De Piero: I am pleased that there will be some record-keeping on the use of dispersal powers. Will there be guidance on how the public can see where dispersal powers have been used? Will the data be published locally? Does the Minister think that is a good idea? If so, what time scale does he have in mind for the police or council to show how the powers have been used?
Damian Green: That is a good question. I am in principle in favour of transparency and if the police wanted to publicise the fact that a dispersal order had been issued, it seems to me that in general there would be no objection to that. As the hon. Lady says, the purpose of the clause is to ensure that there is proper record-keeping. One can clearly see that to deal transparently with some instances, particularly those involving juveniles, might not be sensible on a widespread basis, but in general it is not specified in the Bill. In general it is good to work transparently, and that should happen even more widely than it now does in the criminal justice system.
The Criminal Justice Alliance shared some of those concerns. The matters were raised when the powers in question were introduced, but we think it is important, for powers that are so controversial, to restate the case for them.
Damian Green: I am happy to restate it, and I suspect that the issue would not divide us, in that although the hon. Lady was not a Member of Parliament at the time, she was a supporter of the Government who introduced the original powers. There was controversy about them, but we both agree that they are useful. They are helpful for the safety and security of people in their communities.
The problem is that a power of direction without any sanction against someone who does not comply with it rapidly becomes useless. As the hon. Lady said, failure to comply with a direction to leave an area makes someone liable to imprisonment for a period not exceeding three months, or a fine of up to £2,500, or both; and a person who fails to surrender items if requested to do so is liable to a fine of up to £500. As we all agree that the powers are useful we need to back them up with some sort of sanction.
Gloria De Piero: It is interesting that the Minister makes that point, because it is exactly the one that the Opposition made about the introduction of the injunction to prevent nuisance and annoyance: if there is no criminal sanction, what is the point? It is interesting that the Minister used an argument about powers under clause 33 and 35 that we used about a different power.
Damian Green: That is precisely because it is a different power. We should not necessarily go back over provisions that the Committee has already considered. Perhaps we should simply celebrate our unity on the provisions we are now considering.
Damian Green: I have huge respect for Justice and Liberty—both the organisations and the concepts—but the use of dispersal powers by police community support officers at the discretion of the chief constable will make the powers much more effective. I suspect that the provision will be particularly welcome to my hon. Friend the Member for North East Cambridgeshire, who has campaigned on the issue.
It is for the chief constable to decide whether to give PCSOs the power to issue a direction only, or the power both to issue a direction and to confiscate items. The new power replaces two existing powers, namely the power in section 30 of the Anti-social Behaviour Act 2003 to disperse individuals in designated places and that in section 27 of the Violent Crime Reduction Act 2006 designed to tackle alcohol-related disorder. Whereas a designated PCSO can exercise the first of those powers, they cannot exercise the 2006 Act power, so in bringing together those existing dispersal powers we are, in effect, extending the powers of PCSOs.
It is important that PCSOs are able to use the new dispersal power. Their primary role is in community safety, providing a visible policing presence on the streets. As a result, they will often be the ones who witness antisocial behaviour and they should be able to act quickly to stop problems escalating.