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
The amendments are designed to deal with what appears to be an obvious hole in clause 81. As it stands, the orders that a court may make under subsection (2) for the expenditure referenced in subsection (1) can be made only against owners of premises. The problem is that often the premises for which the relevant expenditure is incurred need to be cleared, secured or maintained because of the actions not of their owner, but of their occupier. One can think of, for example, a night club, which is not likely to be owned by the person causing the problem.
I understand from discussions with my right hon. Friend the Minister for Policing and Criminal Justice that the Government are prepared to consider the amendments, but given the ways of Whitehall, they would like to consult within Government as to whether there would be any problems. The amendments are probing in nature, given that as I understand it, the Minister is going to consider with his colleagues whether they should be tabled as Government amendments on Report.
The Minister for Policing and Criminal Justice (Damian Green): I am grateful to my hon. and learned Friend for his helpful amendments. As he said, they would allow the court to consider making an order for the reimbursement of costs incurred by the police or local authority against the occupier of the premises rather than the owner. I am happy to acknowledge that that may be appropriate in cases where the occupier is responsible for the behaviour that leads to the closure of the premises and is the person on whom the closure notice is served. In that regard clause 72 refers to a person who
If, for example, the owner of the premises has rented out the property, they may be wholly unaware of the problems being caused by the occupiers. Alternatively, they may have worked actively with either the police or the local authority to try to stop the behaviour. In such circumstances, it would, on the face of it, be unreasonable for an order for the reimbursement of costs to be made against the owner rather than the occupier.
However, it is not necessarily always the case that where the premises have been rented out or leased, the liability should fall on the tenant or lessee. There may be instances when the landlord refuses to engage with the police or local authority to help tackle an issue relating to their premises. In such cases, it may be that liability to meet the costs incurred by the police or local authority in clearing, securing or maintaining the premises should fall on the owner rather than the occupier.
That being the case, I cannot advise the Committee to accept the amendments. However, I am happy to take them away in a positive light and consider the sensible points that my hon. and learned Friend raised before the Bill is debated on Report. I am grateful for his indication that he will be content, on that basis, to withdraw the amendment.
The exemptions, which are contained in subsections (1) and (2), currently apply unless an act or omission by a police officer or a chief officer of police can be shown to have been in bad faith, which is of course an entirely subjective element. Although I will not formally move the amendment, the Minister may wish to consider whether the measure goes sufficiently wide given that it is possible to contemplate a circumstance in which damages should be awarded but bad faith has not been shown. In other words, there was no subjective intention on the part of the police officer to do that which ought not to have been done. There was simply a gross oversight, or a gross failure in what the police officer was doing. It is quite common in many Acts and in many aspects of the common law for bad faith to be coupled with gross negligence because both ought not to be circumstances in which those who exercise authority are to be exempted from the consequences of such acts in an entirely wrongful way. As I said, although I will not formally move the amendment, I ask the Minister for an assurance that the point will be considered—even if, ultimately, it is decided
The Chair: Just for the record, the hon. and learned Gentleman has already moved the amendment. He has to move it, because if he does not, the Minister cannot reply. The hon. and learned Gentleman then has the opportunity, obviously, to withdraw it later. That is the technicality.
Damian Green: I am grateful for that guidance, Sir Roger, because, as we speak, the amendment is in a state of grace between being moved and being withdrawn, which will presumably last for as long as I speak, which will be brief.
As my hon. and learned Friend explained, clause 82 provides for an exemption from liability for the police and local authorities for any act or omission by them in respect of the closure powers. As drafted, clause 82 disapplies that exemption in any case where the police or employee of the local authority can be shown to have acted in bad faith. The amendment seeks to disapply the exemption from liability where it can be shown that the police or local authority acted with gross negligence. There is a technical point: gross negligence and negligence are not treated as separate concepts under the civil law, so introducing the concept of gross negligence in this context could have unintended, knock-on consequences on negligence law generally. That, as I said, is a technical point. I am concerned about extending the liability of the police and local authorities in such a context.
The concept of “bad faith” is well understood by the courts in that there are a number of legal precedents for it. In particular, the term is used in the Anti-social Behaviour Act 2003, which contains one of the existing closure powers that this Bill seeks to replace. The term is also used, for example, in schedule 7 of the Land Registration Act 2002, which includes an indemnity for members of the Land Registry in relation to the exercise of their functions. Given those well established precedents, I am not convinced of the need to introduce in the Bill an additional liability based on negligence. I hope that I give some reassurance to my hon. and learned Friend by pointing out that in many cases, activity that amounted to gross negligence could constitute, or at least help to substantiate, a case of an officer or local authority employee acting in bad faith. As it stands, the use of the concept of bad faith in this context is appropriate, but I heard what my hon. and learned Friend said and I will consider the proposal, and perhaps have further discussions about it, given his indication that he will withdraw the amendment today.
Stephen Phillips: I am extremely grateful to the Minister. Far be it from me to embark on a law lecture. There is indeed a debate as to whether the word “gross” when coupled with the word “negligence” adds anything to pure negligence. It is a debate that has long raged, as the Minister will be well aware, in the Admiralty courts in this jurisdiction and elsewhere. Crassa negligentia, or gross negligence, seems to be something beyond negligence; it is that form of negligence that no reasonable person could perhaps have made.
On the basis of the undertakings that the Minister has given to consider the point, and with the caveat that we should not copy mistakes from previous legislation
Paul Maynard: I have been asked to inquire what provision is or could be in place for children involved in an eviction who are blameless of any crime or incident that might be the cause of the eviction.
Gloria De Piero (Ashfield) (Lab): I have some questions about the clause. The bar will be set higher because the court will have no discretion. We understand that persistent low-level antisocial behaviour is still an issue, and we would not want the courts to ignore it. The impact assessment says that the new mandatory ground for eviction will not increase the number of evictions. Could the Minister tell us what he hopes to achieve if it is not expected to increase the number of evictions?
If a member of a household, for example the son, commits antisocial behaviour, breaches an injunction or an order or commits a serious offence, he should be punished. Courts can already choose to evict an entire family. Is there any evidence to show how often that happens at the moment?
The Minister of State, Home Department (Mr Jeremy Browne): It is a pleasure to serve under your chairmanship again, Sir Roger. In speaking to clause 86 I will take into account the points raised by my hon. Friend the Member for Blackpool North and Cleveleys and by the hon. Member for Ashfield.
Clause 86 introduces a new absolute ground for possession for antisocial behaviour in secure tenancies. Generally, secure tenancies apply to local authority tenants and some tenants of other social landlords. Landlords quite rightly only turn to eviction for antisocial behaviour as a last resort, but when they do the current arrangements for possession for antisocial behaviour are often a source of frustration for landlords and, more importantly, victims of antisocial behaviour. The process is often complex, slow and expensive.
Existing grounds for possession for antisocial behaviour under the Housing Act 1985 are discretionary. The court may only grant possession if the ground is made out and the court considers it reasonable. In practice that often means that a significant amount of time is required for the court to consider the matter, which often leads to extensive delays, thereby prolonging the suffering of the victims of such behaviour who have to continue living next to the perpetrators. Indeed, the evidence we have suggests that it can take an average of seven months from application to the grant of a possession order. The provisions in the clause seek to speed up that process where criminal or antisocial behaviour has already been proven in another court. That is the crucial point.
The clause introduces a new absolute ground for possession for antisocial behaviour by inserting a new section 84A in the Housing Act 1985; it provides that the court will be required to grant possession, subject to any available human rights defence, if any one of the following five conditions is met. The first condition is that the tenant, a member of the tenant’s household or a visitor to the property has been convicted of one of the serious offences listed in a new schedule to the Housing Act 1985 as inserted by schedule 3 to this Bill. The second condition is that the tenant, a member of the tenant’s household or a visitor to the property has been found by a court to have breached an injunction to prevent nuisance or annoyance obtained under clause 1. The third condition is that the tenant, a member of the tenant’s household or a visitor to the property has been convicted of breach of the new criminal behaviour order. The fourth condition is that the tenant’s property has been closed under a closure order as a result of antisocial behaviour in or near the property where the total period of closure is more than 48 hours. The final condition is that the tenant, a member of the tenant’s household or a visitor to the property has been convicted for breach of a noise abatement notice or order in relation to the tenant’s property under the Environmental Protection Act 1990.
The offence or antisocial conduct must have been committed in the tenant’s property or in the locality of that property, and have affected a person with a right to live in the locality or affected the landlord or a person employed in connection with the landlord’s housing management functions. Our intention is that the new absolute ground for possession will shorten the possession process in a way that is fair to victims and witnesses, as well as being fair to those at risk of losing their home.
On one of the central points made by the hon. Member for Ashfield, it is not our intention, and we do not anticipate, that the provision will increase the number of evictions for antisocial behaviour. The available evidence shows that eviction is an exceptional course of action. There are, on average, some 2,000 evictions each year. One could think of that as roughly three or four per parliamentary constituency. The power is not widely used and landlords overwhelmingly look to alternative remedies and tools to address antisocial behaviour and its causes before resorting to possession proceedings.
Gloria De Piero: Why does the power only apply to those who live in social housing? Was there any discussion when drawing up the legislation about whether it should apply to those on housing benefit, for example?
Mr Browne: Subsequent clauses deal with some of those matters, and this power is specific to social housing. There is a particular issue with social housing, which is that the tenant is provided for by the state, and the tenant is living in the state’s property. We are providing powers for the state to possess the property that its tenants are in, in those exceptional circumstances. As I said, it is not our desire and nor do we anticipate that the sanction will lead to a rise in possessions or will become widely used. The problem is that if someone is subject to terrible antisocial behaviour, it can take, on average, seven months for it to be remedied, where possession is seen to be the appropriate course of action. If somebody was in those circumstances, they would wish the process to be quicker, and I think we all would understand that concern.
Where it becomes necessary to take such action and serious antisocial behaviour or criminality has already been proven, it is right and fair that landlords have the option of seeking possession using the new absolute ground. As I said, that should help to reduce the amount of time that victims have to suffer from intolerable behaviour. The proposal has been widely welcomed by social landlords; 75% of landlords who responded to our public consultation were in favour. The new absolute ground will be available to landlords in addition to the existing discretionary ground for possession for antisocial behaviour in schedule 2 to the Housing Act 1985, so landlords will be able to choose which is the most appropriate in the circumstances.
I take the point made by my hon. Friend the Member for Blackpool North and Cleveleys about the power affecting other family members. I assure him that the power does not create an additional issue, because that situation applies to the current provisions. As I said, the power will only be used, based on past precedent, between three and four times a year on average in each of our constituencies, and I hope that reassures him about the scale on which the power will be exercised. These kinds of powers are only exercised in the most extreme circumstances, when we consider the number of complaints that we receive about antisocial behaviour in our constituencies. This power is the final sanction and will be used extremely sparingly.
The clause specifically relates to people living in council-owned properties, but as I said to the hon. Member for Ashfield, subsequent clauses deal with different living arrangements. Clause 89 deals with the private rented sector, for example. I am getting ahead of myself, but the Bill deals with such arrangements step by step, and I hope that she is reassured that the provisions can be used in various circumstances when appropriate.
Gloria De Piero: If someone has committed a crime, what is the mechanism for the police to inform their landlord, so that the tenant or resident can be evicted? Landlords have to serve notice within 12 months of a conviction, so how do they know that the tenant has committed and been convicted of one of the offences?
Clause 87 will insert new section 83ZA in the Housing Act 1985, and will set out the notice requirements for the new absolute ground for possession for antisocial behaviour for secure tenancies introduced by clause 86. The provisions are designed to ensure that tenants are given adequate notice of the landlord’s action to seek possession and are told the reasons why possession is being sought and what rights they have to challenge the notice. The notice will also explain where the tenant can obtain help and advice.
I hope that Committee members who want, as we all do, to see antisocial behaviour dealt with appropriately realise not only that the powers are an important part of that process, but also that the sanction is significant. It is also right that safeguards exist for those subject to the sanction.
The new section provides that a court must not consider a landlord’s application for possession to end a secure tenancy under the new absolute ground unless the landlord has given the tenant notice of the intended proceedings, which must include the date on which those proceedings may be commenced. With periodic tenancies, the minimum period between the notice being served and proceedings being commenced is four weeks. In the case of a flexible tenancy—one for a fixed term—the minimum notice period is one month. To ensure that a notice is not left hanging over a tenant for an inordinate length of time, a notice ceases to be in force 12 months after the date when possession proceedings may be begun. The notice must include essential information, such as the reason for the landlord’s decision to seek possession under the absolute ground. I hope that reassures the Committee that the safeguards are adequate and provide sufficient protection to people in such circumstances.
Turning to the specific question put by the hon. Member for Ashfield, the Home Office will work with the police to inform landlords about convictions. We would expect there to be a sufficiently clear understanding between the police and social landlords about the antisocial behaviour problems in a neighbourhood. We are talking about a small number of people who manifest the most persistent and extreme forms of antisocial behaviour, and the power is not being used widely. We expect that the police will be familiar with the cases as a matter of course; for example, if tenants cause large amounts of disturbance due to persistent problems around drug dealing, that would come to the attention of the police. On that basis, we are confident the power will work in practice.
Mr Browne: The hon. Lady makes a reasonable point. There is no central database that all 43 police forces in England and Wales and all landlords can draw on; they cannot check whether a name in one database corresponds with one in another database. If somebody commits an offence when they are on holiday at the other end of the country, it will not automatically be known to the social landlord in the area where they normally live. However, repossession will be considered appropriate only at a very advanced stage of antisocial behaviour and criminality. We expect, in those circumstances, that the authorities seeking possession would want all the relevant information.
Short of having a massive database that is open to a large number of people, we cannot be certain that an offence committed at the other end of the country would be known to the landlord in those circumstances. However, in practice, we believe that the models of working with the police, landlords and others will ensure that the circumstances the hon. Lady envisaged, where a person has a bad record of behaviour elsewhere in the country but a good record of behaviour in their own locality, are less likely in practice than they are in theory. With that, I hope the Committee will approve the clause.
Gloria De Piero: I understand that the clause is included in the Bill in the light of the case of Manchester city council v. Pinnock. Pinnock was evicted, but challenged the decision on the basis of human rights law. I understand why the Government have included the requirement to carry out a review if one is requested. I simply want to ask whether we are sure the review is watertight on human rights grounds. Will the Minister tell us something about the process by which the review will work?
Mr Browne: The clause provides secure tenants of local authorities and housing action trusts with a right to request a review of the landlord’s decision to seek possession on the absolute ground, as provided by clause 86. I have spoken about the importance, which everybody will understand, of ensuring there are safeguards in place before that relatively severe action is taken.
The clause specifies that tenants must request a review in writing within seven days of being served a notice of the landlord’s intention to seek possession under the absolute ground under clause 87. When a review is requested, it must be carried out and the outcome communicated to the tenant before the date on which possession proceedings could be begun. The clause also includes a power for the Secretary of State in relation to England and for Welsh Ministers in relation to Wales to make regulations setting out the procedure for carrying out reviews. Such regulations would be subject to the negative resolution procedure.
The right to review is, in our view, a sensible and important safeguard, and ensures that a decision to seek possession on the absolute ground can be looked at again to check that it is robust and proportionate, prior
Our belief, without which we would not recommend that the Committee approve the clause, is—this answers the hon. Lady’s question—that it is proportionate, workable and legal. As I say, it has a protective, safeguarding role for people who find themselves in the circumstances set out in it. Given the point raised a few clauses ago by my hon. Friend the Member for Blackpool North and Cleveleys, that is appropriate. The particular circumstances in a case may make repossession inappropriate, and it is right that a review could consider that, where that was thought to be the right course of action. On that basis, I hope the Committee will see fit to approve the clause.
‘(3) The Secretary of State shall review one year after this section comes into force the extent to which courts have ordered possession under the grounds inserted by this section into the Housing Acts 1985 and 1988, and shall publish the results of this review.’.
The clause includes a brand-new power, which is intended to allow landlords to seek possession where a tenant or person living with them has been convicted of rioting anywhere in the UK. Given that it a brand-new power, it would be useful to review it and to publish any results within a year.
I also have a question. If I understand it correctly, the clause applies only in England. Could the Minister reassure me that there is no loophole? For example, if a person living in a flat in London is convicted of rioting in Cardiff, the landlord could seek possession of the flat, but if a person living in a flat in Cardiff riots in London, could the Welsh landlord take possession of the flat?
I agree that we should keep under review the extent to which the new powers are used. We therefore gave a commitment in response to the public consultation on the new eviction powers to monitor how the number of convictions for antisocial behaviour changes over time and to review the policy in the light of the data.
However, making statutory provision for specific reviews at specific points in time is too inflexible an approach. As I indicated when similar amendments were tabled to clauses in part 1, the Government are generally not
Specifically on the clause, a statutory review perhaps makes—dare I say it?—even less sense that it would in other circumstances. I expect, and very much hope, that there will not be any rioting in the next 12 months. If there is no significant riot, or any riot at all, in the next 12 months, there will be nothing for the review to consider, because no one will have done anything that means the powers are used against them.
If there is rioting at some point in the future, I anticipate that we would look to see how effectively the powers were used and whether they were, perhaps, a deterrent; we would certainly look to see whether they were a suitable punishment for people who had behaved with such disregard and abandon towards others. However, for the reasons I have, I hope, clearly explained, we would not wish to do that in the next year, because we cannot anticipate what will happen in the next year.
Stephen Mosley (City of Chester) (Con): On the point raised by the hon. Member for Ashfield about the power applying only to England, my constituency is right on the border with Wales. Any riot that happened in Chester would involve people from both sides of the border, because people go to school and work on both sides of the border. Similarly, if there was a riot in the constituency of the right hon. Member for Delyn, I am sure people from the English side of the border would take part. If there is a riot and two people are convicted of the same offence, is it fair that the one who lives on one side of the border gets thrown out of their house and the one who lives on the other side does not? Surely they should have the same punishment. [ Interruption. ]
Mr Browne: As my right hon. Friend the Minister for Policing and Criminal Justice says, surely nobody riots in Chester. I appreciate that my hon. Friend the Member for City of Chester is asking an important hypothetical question, drawing on the point the hon. Member for Ashfield made. Only an English landlord can use the new power, but it would be available to use wherever the riot happened in the UK. If the tenant rioted in Cardiff, an English landlord would be able to take action against the tenant, but because it applies only to landlords in England, the hon. Lady and my hon. Friend are right to say that if it were the other way round, the powers would not apply. That is a consequence of the devolution settlement, which in this case means that the power to make such a decision, which the Welsh Assembly Government may choose to exercise, rests with them, not here in the Palace of Westminster.
We consulted the Welsh Government and they indicated that they did not want the provision to apply to Wales, and as the matter is devolved, that is a decision for the Welsh Government. It might be an issue that people voting in Wales take into account the next time they exercise democratic rights. We legislate with the power that resides in this Parliament and that power means that the provision will apply to landlords in England only, but the rioting could happen anywhere in the UK. Even if that is a source of frustration to hon. Members, I have at least provided clarity. We are going as far as we
Gloria De Piero: There are clearly loopholes and questions to be ironed out, so we will monitor the situation to see whether and how the power is used, whether it is used effectively and whether regional and national discrepancies occur. I beg to ask leave to withdraw the amendment.
‘(1) Each of the actions contained in a community remedy document must—
(a) consist of one or more of the elements within subsection (2),
(b) promote public confidence in the out of court disposal of any anti-social behaviour or offences capable of being dealt with under section 94.
(2) The elements within this subsection are—
(a) a punitive element reflecting the effects on the victim (if any) and the wider community of any anti-social behaviour or offences capable of being dealt with under section 94 in a manner proportionate to those effects;
(b) a restorative element ensuring appropriate restitution to the victim (if any) and the wider community of any anti-social behaviour or offences capable of being dealt with under section 94.
(3) The Secretary of State shall from time to time publish guidance as to appropriate actions to be contained in a community remedy document.
(4) In this section—
“anti-social behaviour” means behaviour capable of causing nuisance or annoyance to any person.
“punitive element” includes any action which results in a loss of free time to the person carrying it out.
“restorative action” includes an apology in writing.
“victim” means a person affected or principally affected by any anti-social behaviour or offence capable of being dealt with under section 94.
“the wider community” means those living, working or visiting the area for which the policing body has responsibility.’.
Stephen Phillips: I am extremely grateful for that guidance. Sir Roger. I therefore propose to speak about new clause 1. In one sense, we debated it when, as the Committee will recall, I questioned the police and crime commissioners when they gave evidence to the Committee, before we began our clause-by-clause analysis. At the risk of being called one of the metropolitan elite, which, I recall, was the charge levelled from the Front Bench when I questioned the Minister, my hon. Friend the Member for Taunton Deane, when he gave evidence to the Committee, the point seems to be obvious and clear; the Government might be advised to take it on board and we ought to be capable of agreement. It is simply this: at the moment, the Bill contains no guidance whatever about what should or should not be included in the list of community remedies that police and crime commissioners, in consultation with their chief officers, will in due course publish for their areas.
For that reason, the new clause seeks, without being prescriptive—that was the other charge that the Minister levelled at me when he gave evidence—to put some limits around what is and is not permissible. It would make it clear that the remedies alighted on by police and crime commissioners must contain a punitive element or a restorative element, or indeed both, and that the Department, in the shape of the Secretary of State, will from time to time publish guidance about what is and is not appropriate.
That would have the salutary consequence that police and crime commissioners, who are up for election every five years, will not promise their electorate to put people in the stocks if they commit antisocial behaviour or offences that can be addressed under the provision, or make other foolish promises about foolish punishments. I accept that such punishments might run foul of other legislation, particularly human rights legislation, but someone required to conduct a community remedy ought not to have to resort to such legislation. The point is that we ought to be able to deal with that situation now, not prescriptively, but by making clear the limits of what is and is not acceptable in the community remedies that the Bill, with my wholehearted support, will create.
I suspect that the only possible criticism of the new clause is that it does not expressly mention rehabilitation, but nothing in the Bill or the new clause would prevent the list of punishments—either in its entirety or in relation to discrete and individual remedies—from having a rehabilitative element. The Government may want to make that clear, which they could do from the Front Bench, because all that the new clause is designed to do and all that it says it will do is make sure that the remedies in a community remedy document consist either of a punitive or a restorative element, or something of both, and there is nothing whatever to prevent rehabilitation as well.
The new clause is desirable, and unless I can be persuaded otherwise by the Minister, I have to tell him that I will move it at the appropriate moment in our proceedings, subject to the will of the Committee.
Gloria De Piero: If Government Members had not tabled the new clause, we would have tabled a similar one. It is important that there are benchmarks, kitemarks and guidance about what is appropriate in a community remedy document. There should be no suggestion that it is a soft option, but it is important not to criminalise young people immediately and we would not want it to be abused.
“Guidance would be very useful in this context. There is also pilot work going on elsewhere in the country, and a body of evidence will emerge to suggest the sorts of remedies that are most effective”.––[Official Report, Anti-social Behaviour, Crime and Policing Public Bill Committee, 20 June 2013; c. 68, Q128.]
“I am concerned that the current proposals on consultation might raise community expectations too much, given that the Chief of Police and the PCCs will have the final say on what is included in the community remedy document and individual officers will have the final say… I am also concerned that it could lead to significant force-by-force differences”.
I have some questions for the Minister. When does he expect local policing bodies to prepare a community remedy document? Subsection (1) states that it could be revised at any time. Why? What consultation would be needed before a revision, and what might prompt one?
The provision under subsection (3) about consulting community representatives sounds incredibly informal, so what would the Minister regard as good practice? How might the public consultation under subsection (3)(c), on the drawing up of the document, be undertaken? Under subsection (4), the PCC must agree the remedy document with the chief officer of police. What if there is a conflict between their views? On subsection (5), how will the community remedy document be advertised after it is finalised? Is there any view about good or bad practice? Finally, I am interested in why the term “community remedy” has been chosen, rather than restorative justice.
I want to make some general points about the clause and to seek reassurance from the Minister about aspects of it. The Committee is aware that the Home Affairs Committee carried out pre-legislative scrutiny on the Bill and broadly welcomed the restorative practices that are proposed. Of course restorative practices and restorative justice can be an important means of resolving issues between victim and perpetrator and an appropriate response to some lower level offences. However, I have some questions and would like reassurance about the impact on victims and about making sure that their views will be heard properly.
Victim Support’s evidence to the Home Affairs Committee was clear about the need for proper safeguards to prevent perpetrators from victimising their victims again. It explained that sometimes a simple apology can be appropriate, but that clear safeguards are needed, with a full risk assessment, and that victims should have a choice about participating.
In similar matters, such as disputes about antisocial behaviour, local authorities and others sometimes carry out mediation to resolve parties’ concerns. Often, that is appropriate, and it can be effective. However, sometimes in constituency cases that I have dealt with, it has been reported that the victims of the antisocial behaviour are concerned that failure to agree to engage in mediation will lead to their views being seen less favourably by the local authority.
Often, a victim of antisocial behaviour will have tried for some time to resolve the matter with the perpetrator and to reach a resolution acceptable to all and will have reached the point where they think that processes such as mediation are no longer appropriate. Having tried all they can to resolve the matter and after years of antisocial behaviour, they are no longer willing or able to sit down with the perpetrator to resolve things. We therefore need to understand that victims must have a say, and be heard.
I want to discuss how domestic violence comes into the matter. The Home Affairs Committee had evidence from Victim Support about the importance of a risk assessment, particularly when such interventions are used between ex-partners, which can sometimes happen: a murder resulted in one tragic case from 1991.
Victim Support talked about the need for adequate protection and said that restorative options can be unsuitable where a perpetrator admits culpability for an isolated incident but blames the victim for provoking them, or when the relationship between the two involving complex power dynamics, such as in a continuing or past sexual relationship. That is also relevant to mediation, which can be appropriate, but proper safeguards are needed to avoid the inappropriate use of community remedies or mediation that would result in the victim being put at risk of harm, or feeling that they must take part in a process that they do not feel will be of benefit to them.
Of course, such an approach can be an appropriate means of resolving antisocial behaviour, but we need to be clear that there are safeguards in place so that other options can be considered, so that victims are not put at risk of harm and so that, when they agree to take part in the process, victims are clear about what the outcomes can be. Equally, if they feel that the process is not right for them and that a simple apology will not suffice, they should not suffer any disadvantage as a result of having a strongly held view that their safety might be jeopardised as a result.
Damian Green: I thank my hon. and learned Friend the Member for Sleaford and North Hykeham for tabling this new clause and for provoking such an important debate. I start by rejecting any imputation or slur that he is a member of the metropolitan elite, because I know that he is steeped in the antique ways of Sleaford and North Hykeham and would wish to make that clear to the Committee.
The new clause seeks to provide greater definition on the operation of the community remedy in two ways: first, by requiring the Secretary of State to publish guidance; and secondly, by inserting certain requirements into the Bill. As drafted, the Bill allows for police and crime commissioners to exercise discretion on the actions that would be appropriate in their local area. As the hon. Member for Houghton and Sunderland South has just said, the community remedy document will be drawn up in consultation with the local community and the chief constable, who has to agree it with the PCC. I fully expect PCCs and chief constables to be able to reach a sensible agreement on the content of the community remedy document. The Bill requires agreement, and it seems to me that in all cases a period of consultation, both with the community and between the PCC and the chief constable, should provide a sensible conclusion.
Stephen Phillips: There is some reassurance in what my right hon. Friend says, if it is correct. He says that the chief constable has to agree the contents of the community remedy document, and I can see from subsection (3) that the chief constable has to be consulted. Will he point me to the relevant words in the clause that indicate that the chief constable has to agree the contents of the community remedy document? That is what he said, although he may not have meant to do so.
I should emphasise that, in the spirit of localism, the list of actions will vary from one police area to another. We need to be careful not to be too prescriptive about the type of actions that can be included in the community remedy document. Police and crime commissioners, who are democratically elected, should be afforded the flexibility to draft a menu of actions that are appropriate for their area and to come up with innovative local initiatives that help to reduce reoffending.
My hon. and learned Friend makes a perfectly good point about guidance, and that point was made a lot in the evidence sessions. I am happy to assure him and the Committee that we intend to publish guidance on the community remedy, as with the other aspects of the Bill that the Committee has discussed. Having said that, I do not see the need to write it in the Bill.
Damian Green: I shall take that point away and think about it, because guidance that specifically excludes something may be undesirable. I take the hon. Lady’s point, which is very serious, and I should make the overall point that, in any circumstances, the victim has to agree to the use of the community remedy. I am sure that she can envisage circumstances in which the community remedy is so inappropriate that no victim would consider it, which is an important thought.
I was struck that all three PCCs who gave oral evidence said that it would be helpful to have guidance, but they also all emphasised the importance of local discretion. Ron Ball put it succinctly when he said:
Stephen Phillips: My right hon. Friend is being generous with time. Can the Department prepare draft guidance in time for Report? If so, will he undertake to the Committee that that guidance will be published before the Bill is reported to the House?
Damian Green: In technical terms, any guidance that we produce would have to be draft guidance until the Bill has gone through all its stages. We cannot produce guidance unless we have the statutory backing for it. In substance, then, the short answer to my hon. and learned Friend’s question is yes. We will produce it so that it can be considered before Report.
I hope that that reassures my hon. and learned Friend. Placing requirements on the types of action that can be included as remedies might introduce unnecessary rigidity into the process and, in particular, limit the opportunities for innovation. More widely, it is becoming apparent as PCCs get up to speed in their jobs—they are now nine months in, or so—that they are showing an increasing degree of innovation, and different ideas are coming out of different areas. I certainly want them to carry that over into this area of their activities.
My hon. and learned Friend said that he expected me to talk about rehabilitative actions, following a conversation that we had earlier. Indeed, that will be an important part of the community remedy’s potential to be effective. In that regard, I draw his attention to the provisions of the Criminal Justice Act 2003 relating to conditional cautions, which form part of the community remedy scheme. Section 22 of the Act states:
Gloria De Piero: So it could be to rehabilitate only. Somebody could say that a person going on a basket-weaving course might be a better human being. There must be some limits. If only one of those must be followed, I am not convinced that the proposal goes as far as the new clause.
Damian Green: I can answer factually. That is what the 2003 Act says; it must be one or more. I would be surprised if the hon. Lady did not agree with that, as it is part of the 2003 Act passed by the Government of
The other point made by my hon. and learned Friend the Member for Sleaford and North Hykeham was that the remedy could include sanctions that are unacceptable to society. It may simply be that I am more idealistic than he is, but I am prepared to trust in the good judgment of PCCs and chief officers to produce a list of appropriate sanctions.
Stephen Phillips: The Minister has gone a long way during his remarks. I may come back to that in due course. Given that the community remedy document must be agreed with the chief officer of police for the area in question, can the Minister indicate—if not, perhaps he can write to the Committee in due course or come back at some later stage—whether it would be a breach of some code of conduct for a chief officer to agree to a punishment that breached someone’s human rights—for example, putting them in the stocks? If that is right, the new clause may be unnecessary.
Damian Green: That is an interesting question. I will not dilate on whether the particular punishment that my hon. and learned Friend mentioned would necessarily break our obligations under the European convention on human rights. He is a making a case with which I sympathise, suggesting that it may well do. Nevertheless, I suspect that we would not know unless it was tested in the courts. I suggest that we would not want it to be tested in the courts, because I do not think anyone would benefit. Clearly, there are wide duties on chief constables—indeed, on anyone who holds the office of constable—to uphold the law. Every chief officer would be extremely alert to and cognisant of that in every action, particularly in every document that they sign.
It is already open to the police to deploy out of court disposals where they consider it appropriate, having regard to existing national guidance. The key innovation of the clause is to give the victim a greater say in the choice of disposal; both hon. Ladies referred to victims. As it stands, the clause will give more rights and powers to victims, which I hope the Committee welcomes.
Bridget Phillipson: The Minister talks about the existing situation. He will know, returning to my earlier point about domestic violence, that concerns have been raised about the inappropriate use of disposals in domestic violence cases. Will he reflect on that when the guidance is drawn up? We all want to make the policy work; we just have to ensure that it will not be used inappropriately.
The hon. Member for Ashfield asked why the policy is called community resolution, not restorative justice. The short answer is that community resolution is an out of court disposal that achieves an outcome that meets the needs of the victim, the offender and the wider
The hon. Lady also asked about consultation. The local policing body must carry out a consultation of community bodies that it considers appropriate. We leave it free to local authorities to use their discretion to achieve that, because there will be different circumstances in different areas.
Damian Green: Off the top of my head, I cannot think of people it would be inappropriate to consult. My experience of consultations is that the wider they are—though not necessarily the longer they are—the better they are. The matter will be for local authorities and police and crime commissioners, who are both directly elected.
There is a wider argument to be had about the extent of localism and how much power we provide to people outside this place, or outside the specifics of legislation. Indeed, the underlying point made by my hon. and learned Friend the Member for Sleaford and North Hykeham in his new clause is about how much freedom can be provided to representatives of individual areas to make their own decisions. There may well just be a difference of emphasis between us.
My inclination is always to try to take power as far down the system as possible and make it more local. In the spirit of that instinct, I will decline to answer in detail the hon. Lady’s question, because it is not for Ministers to say how individual people may wish to carry out a consultation or which groups they may wish to speak to. There will be differences of emphasis in different parts of the country, which, with the best will in the world, no one sitting in the centre of Government can be aware of. Her area and my area might be completely different, and we would each seek different ways of conducting a proper local consultation. That is the advantage of doing such things at a local level.
I have already mentioned that the victim has to agree to the use of the disposal. The other point is that the offender cannot be compelled to accept an out of court disposal. If an offender is not prepared to carry out the chosen act and if, for instance, they feel that it would in some way breach human rights, they can instead face the prospect of being prosecuted for the relevant offence, or of having some other action taken against them. For example, they could be subject to an injunction under part 1 of the Bill. I hope I have answered in full all the questions raised by hon. Members from both sides of the Committee and explained why I believe that the clause as it stands should stand part of the Bill.
Gloria De Piero: Under subsection (5), what might happen if there are two or three victims who express different views over what action should be carried out? The clause says that the officer must take account of all the views. What if there are widely differing views over what action should be carried out by the perpetrator?
Damian Green: This is a classic example of localism in extreme action, because an individual officer dealing with an incident will, as all officers do at all times, have to exercise their individual discretion. One can quite easily envisage circumstances where there would be two sides of an argument, and the police officer concerned gets very different accounts from both sides.
Stephen Phillips: I cannot help but notice that there is a definition of victim for the purposes of the clause contained in subsection (6). That definition tends to indicate that only one person will be consulted. Will the Minister confirm whether that is the case? If there is one victim it is the person who is the victim of the offence or the behaviour that is being dealt with by the community remedy. If there is more than one, it is the person who is principally affected. Perhaps that provides an answer to the hon. Lady’s question, in the sense that the police officer will only be consulting one person.
Damian Green: I think my hon. and learned Friend provides a partial answer, but I am conscious of the practicalities. If two people are having a dispute that may have got physical and each blames the other, it is up to the officer on the ground to judge who is the principal victim. The clause as it stands does its best to help the individual officer who has to make the decision, but I do not think that we should deceive ourselves that that, in all cases, will give cast-iron guidance that enables the officer to do things without exercising discretion; the officer will have to exercise discretion.
Stephen Phillips: Is the officer in fact entitled to take into account the views of more than one person? If that is the intention behind the legislation, is not an amendment required? At the moment, the officer deals only with the person who is affected by the behaviour or the offence, or the person who is principally affected by it. He is not entitled to take into account the views of more than one person.
‘(1A) The relevant bodies must decide under subsection (1)(b) that the threshold for a review is met where the person making the complaint has notified any of the relevant bodies that he or she has been a victim of anti-social behaviour or is vulnerable due to ill health, mental capacity, race, sexuality or religion.’.
We all know of horrific cases involving vulnerable people where action has not been taken. Whatever side of the Committee we are on, we are all agreed that this matter is of paramount importance. I would like to take the Committee back to our evidence sessions. The chief executive of Victim Support said:
“The community trigger is a very good idea in principle, but there are ways in which we think it could go further and make explicit reference to the harm caused to victims in the test…we think it could go further…to make the most important thing in measuring the test the impact on the victim. We think that should very much be the focus of the test: the vulnerability of the victims.”––[Official Report, Anti-social Behaviour, Crime and Policing Public Bill Committee, 20 June 2013; c. 83, Q164.]
“ASB is however often a complicated matter, with complexities that the public do not always understand, have an appreciation of what agencies are actually empowered to deliver for them, or the affordability of their proposals. The implementation of this process would need to take in to consideration that there may be difficulties ensuring that the harm and vulnerability element of ASB is not overlooked by the sheer quantity of incidents, malicious, vexatious or indeed prejudicial reporting.”
Rebecca Bryant, the ASB lead at Manchester city council, gave evidence to the Committee. Manchester city council operates a triage system at the point of contact with the victim that uses four key trigger questions to ascertain their vulnerability. It asks whether the victim is experiencing regular antisocial behaviour and whether it is most days or at least three days a week. It asks whether they are without support. Support can be provided by family, friends, neighbours, colleagues or support services. It asks the victim whether their health or the health of anyone else has been affected, and whether they think they have been deliberately targeted.
If the victim answered yes to any of those four trigger questions, Manchester city council would offer a 24-hour response. A named officer would take on the case, agree an action plan and investigate the complaint. At the initial meeting a full risk-assessment matrix would be completed to fully assess the vulnerability of the victim and offer the correct support. Vulnerability is at the forefront of all our minds. We have an opportunity to put new antisocial behaviour legislation on the statute book. Let us make sure that it takes into account the need for an immediate 24-hour response if someone says that they are vulnerable. Our amendment would ensure that bodies have to take that into account.
Bridget Phillipson: The Home Affairs Committee took a lot of evidence in this area. It is important that the qualitative aspects and the vulnerability of the victim are taken into account. Our report stated:
Gloria De Piero: We have an opportunity to ensure that the vulnerability of the victim is at the heart of the legislation. That is a value that we all hold dear. It is not about which side of the Committee we sit on. Let us not waste this opportunity in our scrutiny of the Bill to put at its heart something that should be the absolute priority in dealing with antisocial behaviour cases.
Mr Browne: This part of the Bill is commonly known as the community trigger. The hon. Lady raised some important points about how we ensure that vulnerable people are properly protected from antisocial behaviour. Many police forces, councils and housing providers are working hard to deal with antisocial behaviour, but the community trigger is an important safety net for those who suffer persistent antisocial behaviour and do not feel that their complaints are being adequately dealt with. The most vulnerable in our society are often at greatest risk, and the community trigger will ensure that victims’ needs are at the forefront of the response to antisocial behaviour.
Antisocial behaviour is fundamentally a local issue and looks and feels different in each area and in every neighbourhood to every victim. The mechanism for carrying out the case review will therefore be set locally. Each local area will set a threshold that must be met for the trigger to be used, and we want to retain a degree of flexibility for that reason. It is important, however, to clarify, because it has occasionally been misunderstood, that the maximum threshold that an agency can set is three reports in six months, but it may be deemed that two reports in one week would also trigger the trigger. The system is flexible, but three reports in six months is the maximum. That is not a target; it is the backstop and not what we would necessarily recommend as ideal.
Gloria De Piero: With respect, when we reach the clause stand part debate, we can debate whether three reports is the maximum; various people, including the Victims’ Commissioner, Baroness Newlove, have expressed concern about that figure. This debate is about vulnerability and I would like the Minister to focus on that.
Mr Browne: I was coming to precisely that point, although I hope that we do not have to argue about whether three is the maximum, because I assure the hon. Lady that it is. We may argue about whether it should be the maximum, but I wanted to make that clarification.
The Government agreed that the potential for harm should also be a consideration when setting a trigger threshold and we have included that in the clause. The Bill already provides a framework for taking account of particular vulnerabilities and individual needs, which is one of the issues that the amendment seeks to address.
It is important that local agencies have flexibility in setting the threshold according to local needs. Indeed, there was strong feedback to our consultation that that should be the case. The proposal supports local agencies in taking a tailored approach to assessing harm and the needs of victims in their areas. We are already seeing a risk-based approach to antisocial behaviour in practice. Over the last few years, a number of changes have been made in the way that antisocial behaviour is dealt with by agencies, including better assessment of victims’ risks and vulnerability, greater understanding of the impact of persistent but low-level problems and stronger partnership working.
In many areas, risk-assessment processes are embedded into the way that agencies deal with antisocial behaviour, and a risk assessment is completed when a case is reported. As we all know, many victims do not report the first incident of antisocial behaviour, but wait until they are at their wits’ end and in a state of despair. For that reason, risk assessment is a crucial component of the response.
Gloria De Piero: The Minister says that risk assessment is embedded in the system in many areas. I think he agrees that vulnerability should be at the heart of the legislation, so for the benefit of the Committee, I will show how uncontroversial the amendment is. We want to insert a line in the Bill that says that a decision must be made when an individual has notified the local authority or the police that they have been a victim or are
That would send a clear signal that we do not want another Fiona Pilkington case or another case such as the one in Broxtowe, my neighbouring constituency, some six months ago, which ended in the most tragic circumstances. Let us take this opportunity to say that those things must never happen again. It is great that such measures are embedded in the system in many areas, but it is not acceptable that they are not embedded right at the heart of every local council’s actions to tackle antisocial behaviour.
Mr Browne: I am grateful to the hon. Lady for that intervention, because it leads to the conclusion of my response. The amendment seeks to determine that the community trigger threshold would be met if the victim is judged to be
Those factors mirror the factors used to define hate crime. Clearly when someone is reporting a hate crime, it should be treated as one, rather than as antisocial behaviour. I understand that antisocial behaviour can often be motivated by those factors. However, the crucial point is that the broader approach in the Bill—of considering potential harm—was drafted as such specifically to recognise and acknowledge the concept of the harm caused to the victim, in the light of representations from the cross-party Home Affairs Committee. Rather than being a numerical counter alone, it captures the vulnerabilities that are listed in the hon. Lady’s amendment. Several areas that trialled the community trigger included hate incidents in their locally determined trigger threshold and nothing in the legislation prevents agencies from doing the same in future.
It is not necessary to build the factors listed in the amendment into the legislation, as the risk assessments carried out should highlight whether they are factors in the relevant behaviour. The community trigger ensures that the needs of victims are at the forefront of the response to antisocial behaviour. Its introduction has been welcomed by many, including the Association of Chief Police Officers, Victim Support and the Local Government Association. I hope that that widespread support, along with the points I have made, will give the hon. Lady sufficient reassurance for her to withdraw the amendment.
Those points were made in relation to the Bill as it stands, by people who have given us written or oral evidence, and who have based their views on their reading of the Bill. They have stressed the idea of a clear vulnerability test.
Chris Skidmore (Kingswood) (Con): Why did the hon. Lady decide not to mention physical disability in her amendment? As secretary of the all-party group on disability, I would have thought that was the flaw in the amendment. It lists ill health and mental capacity, but physical disability does not come under the umbrella of ill health. The amendment excludes people who are physically disabled from having the right that she claims for people on the grounds of ill health or mental capacity.
Paul Maynard: Does the hon. Lady share my concern that one possible consequence of her amendment is that it could lead to incidents that should be treated as hate crime, whether in connection with disability or any other factor, being downgraded and regarded as merely
Gloria De Piero: The wording in the amendment was based on Manchester city council’s approach; that was the objective. The council asks, “Do you think that you or someone else is being deliberately targeted?” We hope that the wording takes into account the kind of test that Manchester city council uses, which is why we used it.