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House of Lords

Wednesday, 20 November 2013.

3 pm

Prayers—read by the Lord Bishop of Birmingham.

Prisons: Prisoners with Children


3.06 pm

Asked by Baroness Benjamin

To ask Her Majesty’s Government what plans they have to record whether or not an individual remanded in custody, or sentenced to prison, has any children.

Baroness Benjamin (LD): My Lords, I beg leave to ask the Question standing in my name on the Order Paper and I declare an interest as a vice-president of Barnardo’s.

The Minister of State, Ministry of Justice (Lord McNally) (LD): My Lords, our reforms to transform rehabilitation to bring down reoffending rates will see the introduction of an unprecedented through-the-gate service. Under these plans, we are developing a basic custody screening tool that will be completed by prison staff for all sentenced offenders and remand prisoners. As part of that process, we will record whether an offender has any children.

Baroness Benjamin: My Lords, Barnardo’s and other leading children’s charities have found that children of prisoners are a very vulnerable group. They are twice as likely to experience depression, mental health problems and drug and alcohol abuse, and to live in poor accommodation. Many go on to offend and yet these children are unlikely to be offered any targeted support. Barnardo’s found that the courts keep no record of them and that there are no requirements to identify them to children’s services. Will the Government create a statutory duty for courts to identify defendants who have dependent children and agree that, by collecting those data, they will be better placed to detect vulnerable children with a parent in prison and ensure that they get the support they need from children’s services?

Lord McNally: My Lords, I am not sure that I can give the guarantee of a statutory function for the courts but our reforms for probation will mean that the important function of advising the court prior to sentencing —which will outline the offender’s personal circumstances, including dependants—will remain with public sector probation services. Our reforms to transform rehabilitation will also introduce through-the-gate services for those given custodial sentences.

I appreciate the point that my noble friend makes; it is a worrying factor that many of the young people who come into the criminal justice system are themselves children of offenders. We should certainly be looking at ways to break that circle and trying to make sure that these children are helped away from a life of crime.

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Lord Touhig (Lab): My Lords, in replying to a debate on this matter on 12 November, the Minister offered a meeting and I certainly look forward to that. I have since read his remarks from that day. When an elderly or disabled person’s carer is sent to prison, the cared-for person often suffers the most as, in many cases, the courts do not even know that they exist. Although I accept that there is the safety net of pre-sentence reports in certain circumstances, when bail is denied there is no pre-sentence report and the court may not know that there is a cared-for person around at all. The consequence is that the cared-for person becomes an unintended victim. How are we going to stop that?

Lord McNally: My Lords, I appreciate very much the point that the noble Lord is making, and I look forward to meeting him and the Prison Advice and Care Trust. In some ways, it is amazing that we are in the 13th or 14th year of the 21st century and that we find these gaps in our care provisions. I often think that it is not that the state does not care but that we are not yet good enough at connecting bits of the state so that people do not fall through the net. As part of the exercise of bringing forward this basic custody screening tool, I hope that by bringing in the expertise of organisations such as PACT we will be able to make sure that people do not slip through the net in the way that the noble Lord suggests.

The Lord Bishop of Birmingham: My Lords, perhaps I may press the Minister a little further. When a court is aware of a child whose parent is imprisoned and that child is in a vulnerable state, will he ensure that the court refers the child to the proper care of the local authority or a charity in the region where that child is living?

Lord McNally: I go back to what I would expect to be common sense in these areas. Courts already have a duty, in every case, to take account of any mitigating factors, including that the offender has primary care responsibilities for children or other dependants. However, it is important that the presence of such dependants is brought to the attention of the court. Again, I can only emphasise that the direction of travel we are going in is to try to make sure that the prison and court authorities are aware of their responsibilities and that they link up with the supporting organisations needed in these cases.

Baroness Finlay of Llandaff (CB): Are the Government formally evaluating novel schemes, such as that at Doncaster prison, which aim to maintain the bonding between a parent and a child—particularly a new-born baby? The parent’s reoffending rate is lower, bonding takes place and the parental duty is learnt while the person is in prison, rather than it being destroyed during their incarceration.

Lord McNally: Yes, my Lords, we are following the Doncaster experiment. Last month, I announced a new approach to managing female offenders. We are developing the custodial estate so that women can stay closer to home and maintain links with their families, which is important not only for new-born babies but throughout childhood.

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Baroness Corston (Lab): My Lords, 17,000 children a year are affected by their mothers’ imprisonment. Given that the Government plan to close two women’s prisons, which means that there will be only 12 women’s prisons in England and Wales and which will lead to much longer journeys for those visiting their mothers and, often, to catastrophic breaks in the relationship between mother and child, will the Minister confirm that the mother and baby unit at Holloway prison is not subject to closure?

Lord McNally: I am not aware that there is any plan to do that but, if there is, I will write to the noble Baroness. However, such decisions are taken for operational reasons in the region. I have visited the Holloway unit and I know that it is valued because while it is not the most modern prison, it is close to people’s homes. The noble Baroness says that we are closing two women’s prisons, but the major complaint about those prisons which we plan to close is that they are a long way from anywhere, never mind not being close to home. We are developing the custodial estate so that women will be in the prison closest to their home. We have found from all the research that that is the factor which women in prison want. With that, coupled with the rehabilitation reforms and through-the-gate care for women, we hope to be able to address a number of the problems that the noble Baroness is concerned about.

Sentencing Council: Guidelines


3.15 pm

Asked by Baroness Miller of Hendon

To ask Her Majesty’s Government what sentencing guidelines are issued by the Sentencing Council to advise judges on the choice of the imposition of either consecutive or concurrent sentences on persons guilty of multiple offences.

The Minister of State, Ministry of Justice (Lord McNally) (LD): My Lords, the Sentencing Council issued the Offences Taken into Consideration and Totality guidelines in June 2012. They state that a concurrent sentence would be appropriate where,

“offences arise out of the same incident or facts”,

and where,

“there is a series of offences of the same … kind”.

A consecutive sentence would be appropriate where,

“offences arise out of unrelated facts”,

or where the offence,

“qualifies for a statutory minimum sentence and concurrent sentences would improperly undermine that minimum”.

Baroness Miller of Hendon (Con): I thank the Minister for his reply, but does he not agree that perception is everything? The Sentencing Council admits that:

“Concurrent sentences are sometimes thought to mean that an offender is getting away with some offences”.

Why, indeed, should an offender convicted of, say, causing death by dangerous driving, driving while disqualified and driving while uninsured not serve separate consecutive sentences for each offence, so that justice can be seen

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to be done? Is the Minister aware that justice is not served when the system seems to operate like a supermarket: “Commit one crime and get another one free”?

Lord McNally: My Lords, I appreciate that sometimes the way in which sentences are reported can cause that reaction—but the courts are required to impose a sentence that reflects all the offending behaviour in every case, for both single and multiple offences. With concurrent sentences, the guidelines make it clear that the courts should normally aggravate the primary sentence to reflect the additional offences. These guidelines are about ensuring that the courts apply those principles consistently.

Lord Clinton-Davis (Lab): My Lords, how frequently, if at all, has such guidance been given since the inception of the present rules? If so, in what circumstances has that arisen?

Lord McNally: My Lords, the Sentencing Council is a product of the Coroners and Justice Act 2009. I believe that that is a very good piece of legislation, because it places an obligation on courts, when sentencing for offences, to follow the guidelines of the Sentencing Council unless,

“it would be contrary to the interests of justice to do so”.

What that does, I hope—this was the intention of the legislation—is to bring consistency into sentencing, which we hope, as I think our predecessors hoped, gives greater confidence in the criminal justice system.

Lord Marks of Henley-on-Thames (LD): My Lords, the Sentencing Council guideline affirmed what is known as the totality principle. It generally works well in securing a uniform approach to sentencing for multiple offences that balances the need for reflecting overall criminality with the need for sentences that are just and proportionate. But does the Minister agree that, as the noble Baroness’s Question illustrates, much more needs to be done to explain this to a public who are very sceptical?

Lord McNally: Yes, I would agree. The totality principle requires that courts review the aggregate sentence against the totality of the offending behaviour and adjust it to ensure that it is a proportionate overall sentence. The noble Baroness who asked the Question made the point that the public, as they read these reports, are often dissatisfied with what they consider to be soft justice. I think that the more they understand the sentences, the more they will have confidence in them. Another reform by the previous Administration requires that judges more fully explain their judgments, and that is a welcome step in giving people greater confidence about why a particular sentence was given. I confess to a certain reluctance about televising the courts as I am worried that there could be the kind of slippery slope that we see in the American courts, but the changes that I have seen so far should give the public a better understanding of the system, and that can only be to the good.

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Project Tempora


3.20 pm

Asked by Lord Strasburger

To ask Her Majesty’s Government which Minister first authorised GCHQ’s Project Tempora; when that happened; and why they did not disclose the existence of Project Tempora to the Joint Committee on the Draft Communications Data Bill.

The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi) (Con): My Lords, I hope that your Lordships will understand that it would not be appropriate to discuss the specifics here. However, I can say that GCHQ and all other security and law enforcement agencies operate within a strict legal and policy framework, as set out by my right honourable friend the Foreign Secretary in the other place on 10 June.

Lord Strasburger (LD): I thank my noble friend for the Answer that she was required to give. In a democracy, wholesale untargeted state intrusion into the private lives of all the people, such as Project Tempora, is unacceptable unless it has the informed consent of the people via their Parliament. However, Parliament has not been informed and has not given its consent to Tempora; nor has the Cabinet, the National Security Council or even, it seems, the ISC. Will the Government acknowledge that the much vaunted oversight of the security services has failed spectacularly, as underlined last week by the feeble public performance of the ISC? When will the Government at last join the global debate about limiting state surveillance of its innocent citizens?

Baroness Warsi: The noble Lord makes an important point but I assure him that secret does not mean unaccountable. We have a system where any intrusion of the sort to which he refers has to be necessary, proportionate and carefully targeted. We have a number of oversight mechanisms, including political and judicial, the commissioners and of course Parliament through the Intelligence and Security Committee.

Lord Campbell-Savours (Lab): My Lords, when Malcolm Rifkind was recently interviewed on television, he seemed to suggest that the ISC, which he chairs, knew of Tempora but not by that name. If it did, would one not have expected it to have perhaps recommended a tightening up and clarification of the law?

Baroness Warsi: I hope that the noble Lord will appreciate that these are not matters into which I can go in any detail at the Dispatch Box. I cannot go into any detail of what the Intelligence and Security Committee was or was not aware of. It would be inappropriate for me to comment on how the noble Lord interpreted the comments made by my right honourable friend Malcolm Rifkind. I hope that the House appreciates that I am incredibly frank and robust when I appear at this Dispatch Box. In fact, probably much to the annoyance of my officials, I go beyond what is normally in the brief, but this is not one of those occasions on which I can comment on these matters.

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Baroness Miller of Chilthorne Domer (LD): My Lords, my noble friend mentioned how important accountability is but there is a very unfortunate issue here: Menwith Hill is Little America, albeit that it is in the north of England. Ever since 1994, Parliament has been asking for, but never receiving, any information about what goes on at Menwith Hill. I appreciate that there have been several visits by the ISC, although I gather that they were very uninformative. How can my noble friend imagine that that situation will become more accountable when that place is accountable only to the United States Government?

Baroness Warsi: I go back to what I said at the outset. Accountability in relation to these sensitive matters takes a number of different formats. We have laws in this country which are completely compliant with the Human Rights Act and which set out the parameters and the remit of the intelligence services. Some of the highest politicians in this land—the Foreign Secretary and the Home Secretary—have to sign off on each and every warrant presented before them. We have parliamentary accountability in the form of the Intelligence and Security Committee. Again, it would be inappropriate for me to comment on what its views were after its visits. We also have the tribunal, where individual cases can be presented.

Lord Butler of Brockwell (CB): My Lords, will the Minister confirm that GCHQ was candid to the Joint Committee on the Draft Communications Data Bill about the unclassified aspects of what it can and cannot do in collecting communications metadata, and candid with the Intelligence and Security Committee about the classified aspects of it?

Baroness Warsi: The noble Lord makes an important point. The Intelligence and Security Committee conducted a thorough review of the Draft Communications Data Bill. This was done at the same time as a review by the Joint Committee. It is right that it is the role of the Intelligence and Security Committee, rather than other parliamentary committees, to look at sensitive information.

Lord Richard (Lab): My Lords, of course the Minister cannot go into details on these very sensitive matters. We all accept that. However, for the life of me, I do not see why she cannot answer a straightforward Question about which Minister authorised the project and why the existence of the project was not disclosed to the Joint Committee on the Draft Communications Data Bill. These are not sensitive issues. They are pure matters of fact, surely capable of being answered.

Baroness Warsi: It is interesting that the noble Lord interprets it in that way but I think he would also accept that it would be inappropriate for me to comment on intelligence matters, which includes any comments on the project.

Lord Soley (Lab): Will the Minister take back what is troubling so many of us, which is that there has not been an acknowledgment yet by the Government of the need for a major discussion about the way we exercise oversight? It is not just the issue of accountability; it is also because of the almost terrifying fact that something like 60,000 files were available to some 800,000 people. This is supposed to be secret, even top

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secret. It is a nonsense and dangerous from that point of view, as well as the accountability. Please can she tell her colleagues in government that we need a full discussion on the accountability and the way we are doing it, because at the moment it is not working.

Baroness Warsi: I assure the noble Lord that these discussions are taking place, although not necessarily in the format he would like. Indeed, only this morning I had a round table with a number of NGOs and human rights activists who work in the area of freedom of expression on the internet and how that overplays with these kinds of allegations. These conversations are ongoing, and part of the appearance of the three intelligence chiefs at the Intelligence and Security Committee meeting was to do with that. I think the noble Lord would also accept that this is about perception —that leaks and the kind of information we have seen create a sense in the mind of the public that something is not quite right. It is wrong therefore for us to in any way play up to that by starting to comment on individual intelligence matters.

Lord Sharkey (LD): My Lords, the Regulation of Investigatory Powers Act is plainly inadequate to deal with the situation caused by the advances in interception technology. Does the Minister accept that there is now an urgent need for full and proper post-legislative scrutiny of RIPA?

Baroness Warsi: I probably should just refer the noble Lord to the 2012 annual report of the Interception of Communications Commissioner, which was published on 18 July this year. In it he said that RIPA had weathered well and the system of oversight it laid down has been, he believes, effective.

Lord Foulkes of Cumnock (Lab): My Lords, does the Minister accept that we all agree that GCHQ and the intelligence and security services do very important work to protect us from many threats but that effective democratic oversight is absolutely vital? With no disrespect to my noble friend Lord Lothian—I call him my noble friend—or indeed the noble Lord, Lord Butler, recent events have shown that the Intelligence and Security Committee, as currently constituted, is not really effective. Can the Minister give us some assurance that, in the new structure of the Intelligence and Security Committee that we are considering, we will have a robust membership accountable to both Houses of Parliament?

Baroness Warsi: The noble Lord will be aware that the role of the Intelligence and Security Committee has been up for discussion. I will ensure that his views are fed into that.

Gibraltar and Spain


3.30 pm

Asked by Lord Luce

To ask Her Majesty’s Government what is their response to the European Commission’s monitoring report on cross-border traffic between Gibraltar and Spain.

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The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi) (Con): My Lords, I am afraid that you have the McNally and Warsi show today.

We welcome the fact that the Commission has put Spain on notice and has made recommendations to the Spanish Government to improve the functioning of the border, which, if implemented, will reduce delays. We have published the Commission’s letter to the UK and Gibraltar and we encourage Spain to do likewise. Chief Minister Picardo has welcomed this and has confirmed that Gibraltar will act on the Commission’s recommendations.

Lord Luce (CB): My Lords, I am grateful to the Minister for her reply and to the Prime Minister for his strong support for the Gibraltarians. Will the Minister accept that, having visited Gibraltar at the invitation of the Gibraltar Government this month, and as a former governor, I can confirm without any doubt that border delays by Spanish authorities in the past few months have been not only disproportionate but a deliberate abuse of human rights and freedom of movement on a scale that would be totally unacceptable in any other part of the European Union and in which local Spaniards as well as Gibraltarians are suffering?

Will the Minister also accept that an average of five Spanish incursions a day into British-Gibraltar territorial waters could at any moment lead to a serious incident? Therefore, will the Government now demonstrate by deeds and not just words that we will exercise our responsibilities to Gibraltarians against this Franco-ist style intimidation by taking appropriate legal action now, by ensuring the Commission’s recommendations on broader traffic are implemented speedily by Spain, and by giving the new governor and commander-in-chief adequate resources to uphold British sovereignty?

Baroness Warsi: I thank the noble Lord for that further question. Of course, he comes to these matters with great expertise and experience from his involvement with Gibraltar. We are not surprised at the Commission’s conclusions in relation to border issues there. Of course, the border operated more smoothly than normal when the Commission was visiting. But I agree with the noble Lord that there are huge challenges and there continue to be huge delays at the border. We remain confident that Spain has acted, and continues to act, unlawfully.

I hear what the noble Lord says about action, but although all our options are on the table, we feel at this stage that it is best to pursue this matter through diplomatic means. It was for that reason that, after a further lengthy incursion, the ambassador was summoned to the Foreign and Commonwealth Office yesterday where we made our views clear to him.

Baroness Hooper (Con): My Lords, does my noble friend agree that the fact that the date and time of the European Commission’s visit to Gibraltar was advertised in advance means that it was not exactly the sort of spot check that could have revealed some of the worst practices that were carried out during the summer months and which affected the people of Gibraltar, Spanish workers and tourists alike? Have the Government queried that method of procedure with the Commission?

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Baroness Warsi: My noble friend makes an important point. That is why I said that we were not surprised that when the Commission visited things were much better than normal. It was not just a question of delays and inconvenience; it was concerning in terms of delays to ambulances, for example. It was therefore a real threat to individuals’ lives.

We are heartened to hear that the Commission intends to return. It may well be that a return without a lot of notice may be the right way forward.

Lord Howe of Aberavon (Con): My Lords, it is good to be reminded that Britain played a significant part some years ago in helping to secure for Spain membership of both NATO and the European Community. When that was taking place, I was able, with the assistance of my opposite Spanish number, Fernando Moran, to secure a foundational solution to the long-existing Gibraltar dispute. There was a signature on agreement for the reopening of Spain’s land border with the colony, which had been closed as long ago as 1969 by General Franco.

Those agreements laid the way for a proper solution of the sovereignty of the colony. At that time, Anglo-Spanish relations were greatly enhanced by that understanding. By 1988, each of the two monarchs was able to make a state visit to each other’s country, and Margaret Thatcher herself paid a successful visit to Madrid. With all of that sensible conduct of removing the historic obstacle, is it not now time for the Spaniards to be reminded of their undertaking?

Baroness Warsi: My noble and learned friend makes an incredibly important point. He is right—there have been long periods of good co-operation and real progress on this issue. Indeed, until 2011 the trilateral process—the forum for dialogue between the UK and Spain, with Gibraltar as an equal partner—worked incredibly well. It is sad that, after the election of the Spanish Government in December 2011, Spain withdrew from that process. We have offered ad hoc talks as a way of moving this matter forward but eventually we would like to see a return to that trilateral process.

Lord Triesman (Lab): My Lords, the events of the last couple of weeks—the fishing boat incursions, the border restrictions and the events yesterday with the Spanish naval vessels—demand of all sides of the House that we are very clear that the rights to their choice about nationality rest with the people of Gibraltar. That should be said, and said clearly.

I wonder if there is a view in the Government about whether the EU—of which, after all, both we and Spain are members—could help create some mutual modus operandi which would be beneficial to Gibraltarians while recognising their rights to their own nationality as they seek it. These diplomatic efforts need a place of focus. We can surely provide it.

Baroness Warsi: I hear what the noble Lord says. We have made this offer of ad hoc talks, which we think is probably the first stage where these discussions could take place. We are not entirely convinced that for some of the areas where the EU feels that it has

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competences where Gibraltar is concerned, it does indeed have those competences. As I said earlier, it would be right to return to the trilateral process where Gibraltar was an equal party to those discussions.

Start-up Loans


3.37 pm

Lord Popat (Con): With the leave of the House, I will repeat a Statement made in the other place today by my honourable friend the Minister of State for Business, Innovation and Skills.

“Across this House, since the great recession of 2008, concern has been repeatedly raised about access to finance, particularly for the smallest companies. The contraction in support for small and medium-sized business lending following the financial crisis led to a sharp drop in the growth of lending to and support for small businesses to finance growth.

All Members will recognise the story of the constraints facing aspiring entrepreneurs when it comes to accessing finance. These problems were a consequence of an overreliance on bank finance compared to international competitors, a hollowing out of business lending units in the big banks, too much concentration in our banking system, followed by the biggest banking bust ever faced in this country and the biggest bank failure in the world in 2008.

A calamity of this scale cannot be addressed by a single policy, so we have engaged since 2010 on a comprehensive programme of bank reform: splitting retail from investment banking; requiring greater capital; introducing a tax on leverage; introducing much stronger requirements to check that the people running banks are fit and proper persons, so we do not get the likes of Fred Goodwin and Reverend Flowers sitting atop our banks in the future; and we are introducing criminal charges for those who behave negligently in charge of big banks.

Those changes are part of a wider drive to change the culture of banking so that our banks serve the economy, rather than the other way around, but these reforms alone are not enough. To help companies access finance, we have introduced the first British business bank, have doubled the seed enterprise investment scheme and are expanding the enterprise finance guarantee schemes. Last year, we introduced start-up loans of up to £25,000 per founder, although more typically about £6,000, to help budding entrepreneurs access the seed capital to make their idea a reality.

Britain has for too long been a home of great ideas that are then commercialised and developed elsewhere. We want British business men and women to take brilliant British ideas and turn them into blossoming British businesses. The first start-up loan was made in September 2012, and from the start, growth exceeded expectations. More than a third of loans go to BME entrepreneurs, and more than a third to people previously unemployed.

In June this year, the Prime Minister announced that start-up loans would no longer be restricted to young people, so the age cap has been removed altogether. We are now seeing strong growth in the number of

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people over the age of 30 being helped to realise their full entrepreneurial potential with the mentoring and financial support of the programme. In August, we introduced specialised support to finance ex-military service personnel who want to start their own business within the start-up loans scheme.

I am pleased to announce that today we have made the 10,000th start-up loan. Mr Allen Martin, a Royal Navy engineer from Truro, is the 10,000th loan recipient of the programme. Allen joined the Royal Navy in 1991 as an engineer and mechanic. Working with helicopters, search and rescue, and commando forces, he served for 22 years in Bosnia, Kosovo, Iraq and Afghanistan. Having been medically discharged, Allen knew that he wanted to start his own business, so he applied for a start-up loan and founded Eclipse Property Cornwall. It will manage properties on behalf of landlords, renting them out and offering part or full management. Allen Martin has benefited from both the extension of start-up loans to all ages and the specialised support for our ex-service personnel.

Given the success of this targeted approach within the full age range, we are now going even further. I can tell the House that we are committing a total of £151 million to the scheme this year and next, with a goal of backing 30,000 new businesses by 2015. From 1 January, the Start Up Loans Company will specifically target priority groups: entrepreneurs over 50, NEETs and new mothers ready to return to the workplace, seeking the ability to manage their own time and commitments on their own terms.

Age UK estimates that one in five of those over 50 now work for themselves—a growing trend that accounts for the fact that 70% of the businesses that they start will last more than five years, compared with 28% of those started by young entrepreneurs. With the added support of mentors who understand modern media and marketing, new retail platforms and communications channels, start-up loans can help bring even more of those in that age group success. That is why I am tasking them to find the specialist providers who will make start-up loans a perfect fit for the older entrepreneur.

For NEETs, I know that Members across the House have seen just how valuable and popular these loans are proving in tackling youth unemployment. Working with the new enterprise allowance, start-up loans will now give specialist support to those who have been away from the workplace for a long time, who need strong and committed mentors with an understanding of what it is to start from a very low base. The Prince’s Trust has already demonstrated just how effective this approach can be, and much more can be done to create a targeted offer that creates the right conditions for those businesses to survive and thrive within the safe environment of start-up loans.

Finally, new mothers are also turning increasingly to self-employment. According to Mumpreneurs UK, self-employment for women is rising at three times the rate for men. So far, 37% of start-up loans have gone to women, and we want to do more to increase this. We will introduce specialised support for mothers seeking to start their businesses, juggling childcare and seeking flexible ways to turn business ideas into reality.

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With a record business creation of 400,000 new businesses each year, record jobs, and a record 4.9 million companies in the UK, Britain is once again becoming an entrepreneurial beacon of the world. Our future prosperity rests on the entrepreneurial aspirations of the British people. This Government will not rest in our drive to support those who want to work hard and get on”.

My Lords, I commend the Statement to the House.

3.45 pm

Lord Stevenson of Balmacara (Lab): My Lords, I thank the Minister for repeating the Statement made in the other place. I would also like to place on record the thanks of the House for the work that has been done by James Caan and the Start Up Loans Company to support people in setting up their businesses. It would be good also to record our congratulations to Allen Martin, the 10,000th recipient of start-up loans. Mr Allen is one of the first ex-servicemen to benefit from the Start Up Loans Company and we wish him well with his new venture.

Small businesses are the lifeblood of our economy. The £50 million that has been lent to 10,000 new entrepreneurs is an important token of that enterprise spirit that we know runs deep in this country. However, as we examine the performance of start-up loans in the context of the broader picture for the economy and small businesses, and the support available to start up, we agree with Mr Caan that there is still much work to be done. A key lesson from the start-up loans programme in so far as we have the results is that access to finance schemes is only as good as the infrastructure that supports them, and relies on a wider system of business support, mentoring and signposting. This is the very fabric of support now lacking in so many parts of our country in the absence of Business Link, after the abolition of the RDAs and with the deliberate impoverishing of local government, which had a good record on this issue under the previous Government.

This is borne out by the statistics that we are welcoming today. In every recession, there has been an increase in business start-ups. People faced with a flat job market and low demand for their skills will often look to create their own job by setting up a business. Desperation is not a bad motive for launching a firm, but does the Minister agree that where business support networks are strongest, as they are in London, it is noticeable that that is where there have been far and away the most loans to date? The statistics on the start-up loans scheme that the Government have released today suggest that some regions are missing out. Some 15% of the population live in London while 36% of the loans issued have been in London, and almost half in London and the south-east. Only 5% of the start-up loans have been issued in the north-east and 5% per cent in the south-west.

Can the Minister explain to your Lordships’ House why the scheme has not been delivered in a more consistent way across the country? What will he do to boost business support in the areas that are receiving the least of the start-up loans money? Will he comment on the fact that the successful Business Link scheme

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has not been replaced by anything meaningful to provide support not just for start-ups but for developing small firms around the country?

Is the Minister aware that James Caan is on record as saying that the support and mentoring available under the scheme was a more important part of the success of the programme than the loan itself? While providing finance to start-ups is important, mentoring also plays a crucial role in helping businesses get off the ground. Does the Minister share my concern that just 17% of those contacting the Government’s new mentoring portal did so in order to find a mentor? Can he do more in this area?

Start-up businesses need to have affordable premises. Given that many businesses now pay more in business rates than on their rent and that business rates have gone up by £1,500 on average in this Parliament, will the Minister say whether the Government will back Labour’s plans to cut and freeze business rates to help start-ups and save 1.5 million businesses across the country an average of £450? A cost that places burdens on new start-ups is rising energy costs. Under Labour’s energy price freeze, start-ups and other businesses will save over £5,000. Why do the Government refuse to take action to help reduce the crippling costs that start-up businesses face?

Alongside the start-up loans scheme, the Government announced the start-up spaces scheme to great fanfare almost two years ago. We were told then that over 300 government offices would be available for start-up businesses to use as premises, but to date just one has opened. Can the Minister explain why the scheme has not been delivered? Is it because the Government have not kept their promise to make the spaces available to start-ups? According to the statistics released by the Government today, almost two-thirds of start-up loans have gone to men. Given the failings that we have seen under this Government with the Aspire Fund that was set up to help women entrepreneurs and that made only five investments in 2011-12 compared to 127 in 2009-10, what steps are Ministers taking to ensure that there is more support available to women entrepreneurs?

Finally, providing help and support for start-ups is important, but thousands more small businesses across the country are struggling to get the finance that they need after the failure of the Government’s Project Merlin, credit easing and funding for lending schemes. According to the Bank of England, net funding to businesses has fallen by £14 billion in the past 12 months. While the £50 million that has been provided through the Start Up Loans scheme is welcome, it is but a drop in the ocean compared with the Government’s failure to get banks lending.

I failed to get an answer to the question I put to the Minister yesterday, so I encourage him to answer it now. It was about the British Business Bank, not RBS. My main point was that last week we learnt that the bank, announced in September 2012, had finally made its first investment of £45 million to two financial institutions: Praesidian Capital Europe and BMS Finance. I asked the Minister: when we will see funding flowing to the small and medium-sized businesses that need it, and when do the Government expect the British Business Bank to reach its target of £10 billion?

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3.50 pm

Lord Popat: My Lords, the noble Lord asked about lending 37% or 40% to London and not throughout the whole region. A large number of SMEs are based down south and up north, but it is for the whole region. To address this issue, we started a marketing campaign at the beginning of this month to make people aware of the different schemes available under the guarantee scheme. LEPs are now playing an important role in the regions in helping SMEs and making them aware of the different schemes available.

With regard to the business rate, it is currently frozen until April 2014 and the noble Lord must wait for the Autumn Statement in two weeks’ time to hear what the Chancellor has to say about it. We accept that it is a major issue for a large number of SMEs. Energy costs are being looked into by the Government at the moment. The British Business Bank has started. It consolidates a number of schemes within the Government. It will play a major role in lending new money. So far within those schemes we have private sector money and government money to the tune of £2.4 billion. The Government have injected a further £1 billion to do more lending to SMEs. The British Business Bank will play a vital role in helping SMEs and making businesses aware of the different schemes available within the Government. I hope I have covered all the questions asked by the noble Lord. If I have not, I will be very happy to write to him.

Earl Attlee (Con): My Lords, I remind the House of the benefit of short questions to the Minister in order that he can answer as many as possible.

3.52 pm

Lord Stoneham of Droxford (LD): My Lords, the shortfall in business investment is the biggest problem facing the economic recovery. I welcome this announcement of increased support for small business loans but recognise that it is one of many channels required to stimulate investment in small business. I have three questions. Are the Government sure that enough is being done to mentor, support and help networking for business people to take full advantage of these schemes and are they doing their best to make these schemes as simple as possible? Are technical and further education colleges being made the focus for small business development and for courses on how these loans can be used and how specific small businesses can take advantage of them? As well as technical and further education colleges, universities should be involved in this as well. Are the banks, particularly the state-regulated banks, being pressurised to redevelop their local and regional systems and get back to their historic original role of helping local businesses?

Lord Popat: My Lords, on business investment, I am pleased to say that there is a return of consumer and business confidence in the economy. Bank lending to businesses is going up. In fact we had a large increase in gross domestic lending to businesses in the past 12 months, a lot more than we had in the early part of 2012. Although net lending has dropped compared with the peak of 2008, it has just started to increase,

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so there is some business confidence and that will help business investment, which will help our growth. As I mentioned yesterday, our growth forecast has gone up from 0.6% to 1.4%, which is good news. With regard to bank lending, we have a large number of schemes. Once again, we are marketing very strongly awareness of these schemes, which will enable a number of businesses to borrow money and grow further.

Lord Leigh of Hurley (Con): My Lords, I speak as someone who started a business with exactly the same sum of money as Mr Martin raised so I am aware of the great difficulty in raising money for start-ups. To have a scheme such as this, which facilitates a new business, is really encouraging. I understand that 30 new businesses a day are being created by this scheme. Does my noble friend agree that not only is this wonderful for new businesses but the success of the business growth fund means that, as these businesses flourish, it is not just relief from debt and loans but equity injection which are being provided to enable these businesses to flourish and succeed?

Lord Popat: My Lords, it is pleasure to answer my noble friend’s question. He brings with him a wealth of experience both in business and in corporate finance. The business growth fund is a welcome initiative, with five or six clearing banks putting together some £2.5 billion to lend money to new and growing businesses. I imagine that it will do a very good job for special and medium-sized businesses, which can borrow money on the basis of venture capital. Therefore, we welcome the initiative. The good news is that not a penny of taxpayers’ money is involved in the growth fund.

Lord Empey (UUP): My Lords, perhaps I may bring the Minister back to the third point made by the noble Lord, Lord Stoneham. Is it not the case that, the way that banks have been operating in recent years, the pendulum has swung from golf course lending to computer program lending and there is no balance between the two? Surely there has to be a regional and more local focus to understand the persons and the nature of the business for which funding is being sought. Is it not the case that the standard approach of banks of using the same computer system, whichever bank you go to, has to be broken up? The banks should focus more on localised issues, including pension funds such as local government officers’ superannuation funds. They should be encouraged to use locally collected money to benefit local business.

Lord Popat: The noble Lord makes a very important point. When I ran an SME I had easy access to my branch manager. To borrow money was not that difficult and the turnaround of applications was very quick. I agree with the noble Lord that we need to focus at regional as well as at local level. What is now happening is that a large number of clearing banks have a central office which does underwriting through computers. I am sure that servicing the customer at a local level will become more important. The good news is that we have brought competition into the banking world. Aldermore, Metro Bank and Cambridge & Counties all have branch managers, so a large number of SMEs

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can deal directly with the branch manager rather than having an application going to the central level. With the demand for money and banks hungry to lend more, I am sure that, given time, banks will surely set up a branch manager network. That was a successful model in the 1970s and 1980s.

Lord Bilimoria (CB): My Lords, I congratulate the Government on the start-up loans scheme. It is an excellent initiative and I am delighted that the Minister, a fellow entrepreneur himself, is answering these questions from personal knowledge. I started a business from scratch. I know how difficult it was to raise those first few thousand pounds. To get my first overdraft of £7,500 was amazing. I see that the sums involve an average of £6,000. The average start-up loan is up to £25,000. I hope that the Government will increase that figure because the bigger it is, the better the start-up. I notice that the Prince’s Trust is one of the delivery partners. Can the Minister confirm what the effect of this scheme has been on the Prince’s Trust, which has done excellent work in this area over the years? Is it actually giving out more money as a result of start-up funds in the scheme or less? Secondly, what are the Government doing to help the people who get these loans go on to get the further funding that they need? This is only the start. The Government’s small firms loan guarantee scheme is excellent. How many of these start-up loan recipients have gone on to government-guaranteed schemes, which are absolutely essential? Finally, are the Government encouraging this group of entrepreneurs to network in the future, creating environments and events that these people can attend so that they become a community and the Government can identify the high-growth companies which will be creating the jobs that will power this economy ahead?

Lord Popat: My Lords, we will remove the age limit. The limit on lending is £25,000 for a period of five years, at a 6% interest rate. We will look at this over a period of time once we have looked at the success of the scheme. The scheme is proving to be successful. There are a few examples, which I have in my folder here, of people who have traded very successfully, done well and gone to the clearing banks to borrow more money to make sure that their businesses grow. The people who participate in the Prince’s Trust are actively encouraged and are quite often mentored free of charge to help them set up their own businesses.

Lord Brooke of Alverthorpe (Lab): My Lords, the noble Lord expressed a hope that banks may be persuaded to return to their former glory, when they operated at local level and were very much available for local businesses. Will he tell us what the Government intend to do to make that a reality? The reality is that in many areas the banks have loads of money to shell out. I recently purchased a new kitchen. At the end of the exercise, after having decided how much I was going to spend, I was asked, “But aren’t you going to take the interest-free loan?”. I had no intention of taking the interest-free loan for 12 months, but it was offered to me, so I took it. Therefore, Barclays has stumped up all the cash, which has immediately gone to the German manufacturer that produced the kitchen. There had been no question at all about any difficulty in paying.

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Interest-free loans are being offered all over the place. Perhaps we should have a look at what is happening with interest-free loans, where the money that comes through interest-free loans goes, who the beneficiaries are, and why the banks are not lending it to our SMEs and to our real start-up people, who we need.

Lord Popat: My Lords, it is not under the Government’s control to insist that banks have branch networks or branch managers at branches throughout the country. However, given time, with competition being put in place, this will happen—they will have no choice. If they really want to lend money and understand the local business and local businessmen, they will have to have a local branch network. On interest-free loans, I do not have information in my briefing but I will be very happy to write to the noble Lord on where that money comes from and how someone is able to give interest-free loans. Perhaps the people who sold those goods to the noble Lord are offering the loan themselves from the profit they made from the goods that were sold. However, I will certainly write to the noble Lord.

Baroness Wheatcroft (Con): My Lords, I applaud these steps that are being taken to encourage new businesses. I hope that some of them might go into making kitchens so that the noble Lord opposite might be able to buy British in the future. However, other noble Lords have remarked that it is important that companies should have access to advice as well as to money. Does the Minister agree that the Government inherited so many different advice schemes that the forest is impenetrable and that no entrepreneur has time to wade through it? Surely the sensible thing to do is what I believe the Minister is doing, which is first of all to simplify the advice schemes that are available.

Lord Popat: I thank the noble Baroness for her question. Yes, we inherited a large number of different schemes and advice schemes from the previous Government. We have looked at them and have come up with new ones as well. However, these schemes are all being consolidated under the new British Business Bank. I hope that it will be able to deliver good advice to its customers.

Baroness Cohen of Pimlico (Lab): My Lords, does the Minister agree that while loans are quite a good way to start a business, what you really need is some equity? With all the money borrowed it is hard work starting a business, and very few of us do that. This is an area where I know he agrees with me. Would he like to describe what steps we are taking to encourage equity investment in some of these small start-up businesses? We used to have something called 3i, which was a very potent and useful source for small businesses, and there are various government schemes. However, they have more or less lost themselves. When we both sat on the committee on small businesses and exporting we discovered that we are unique in Europe in that so many of our small businesses—indeed, businesses of any size—are financed by bank lending. Businesses in most other countries are financed much more largely by equity investment. Can the Minister describe what, if anything, is being done to encourage this?

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Lord Popat: My Lords, equity finance becomes very attractive and desirable to a large number of medium-sized businesses, but equally to small businesses that want to grow. We have a number of government schemes on equity finance but we also have a new set-up called equity growth funding run by HSBC and four other clearing banks. That is really helping. In fact, they had their first case up north under that scheme. That £2.5 billion available to lend on an equity basis will make a huge difference to a number of SMEs, but we have government- backed schemes as well on equity finance.

Anti-social Behaviour, Crime and Policing Bill

Committee (3rd Day)

4.05 pm

Relevant documents: 12th Report from the Delegated Powers Committee, 4th Report from the Joint Committee on Human Rights.

Moved by Earl Attlee

That the House do again resolve itself into a Committee on the Bill.

Baroness Smith of Basildon (Lab): My Lords, may I raise a point about the further consideration of the Bill today? At 6.03 pm yesterday, we received quite a lengthy letter from the Minister with amendments that I am told are to be debated today. Is it appropriate to receive amendments at such late notice for debate the following day?

Lord Ahmad of Wimbledon (Con): My Lords, as with the Opposition, we have also seen all the amendments and have been working through them. They have been tabled and agreed for debate; that is the programme that is scheduled for today. I know that the noble Baroness appreciates the challenges of the number of amendments we have on this Bill, and we wish to make progress.

Baroness Smith of Basildon: I am sorry. I understand the need to make progress. The Minister will know from the amendments we have tabled and our contributions to this debate that we agree with him in seeking to make progress. I am, however, questioning whether it is right to table amendments and notify some Members of your Lordships’ House—not all—at 6.03 pm for debate on the following day. That seems completely inappropriate. As we are speaking, I am trying to go through all the amendments to ensure that we have a response and can fully consider them. This House prides itself on scrutiny, but this does not leave us the opportunity to scrutinise adequately these amendments tabled by the Government.

Lord Ahmad of Wimbledon: Again, I say to the noble Baroness that anyone who has been in the previous days of this Committee would not doubt for a moment that the House has been very careful in its scrutiny of the Bill. That is reflected in where we currently are in the progress of the Bill. As I said, these amendments have been tabled and we, as the Government, have looked at them. We look forward to the debate and the scrutiny that will take place of them.

Motion agreed.

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Clause 12: Power to exclude person from home in cases of violence or risk of harm

Amendment 21D

Moved by Baroness Hamwee

21D: Clause 12, page 7, line 5, at end insert “, and

(c) the respondent is aged 18 or over”

Baroness Hamwee (LD): My Lords, I will also speak to Amendment 21G. The first of these amendments takes us to Clause 12, which is the clause giving power to exclude a person from his home in the case of violence or the risk of harm. This power can be included in an IPNA—in the injunction—if two conditions are fulfilled. The first is that the anti-social behaviour giving rise to the application for the IPNA amounts to violence or the threat of violence and the second is that there is a significant risk of harm from the respondent. My first amendment provides for a third condition, namely that the respondent is aged 18 or over. It seems to me a very severe sanction to exclude anyone from his home. I accept that this power is to be in response to a “significant risk” or behaviour, but if it is so significant as to justify such an action, are there not other courses of action that might be open to be taken? It is not required by the statute to link any of these provisions with a course of treatment or rehabilitation, as one would hope to see in many cases, and particularly that of young people.

The Bill is quite properly focused on the victim; we see that not just in the drafting of the Bill but on almost every page of the draft guidance, with which your Lordships have been provided. But I suggest to the Government that while excluding somebody from his home may mean the immediate protection of the victim, the longer-term protection must be rooted in addressing the victim’s long-term behaviour. Of course, excluding somebody from his home does not mean that he will not meet the victim somewhere else. So I am particularly concerned about this in the case of young people. I wonder, too, what the local authority response would be. Would it have obligations if a person under 18 found himself suddenly homeless?

In the Commons, the Minister referred to the guidance, making it clear that,

“the exclusion power will be used only rarely, but that the court will pay special attention to whether it is proportionate”.—[

Official Report

, Commons, 14/10/13; col. 543.]

That applied especially to the respondent’s Article 8 rights. It is one thing to issue guidance to local authorities—and I do not, of course, speak for the judiciary—but it is another matter to issue guidance to the courts. I have very considerable doubts as to whether it is right as a response to an IPNA, in the absence of something else justifying this, to allow this at all. I am hoping that there must be some explanation as to whether this cannot be done through any other relevant measure.

Amendment 21G is also about under-18s. I accept that suggesting that there may not be an injunction unless the police have talked to the respondent and his parents or guardian to discuss the behaviour and the respondent has been given an,

“opportunity to enter into an agreement as to future good behaviour”,

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sounds a bit “Dixon of Dock Green”—perhaps a bit “Evening, all”. But it comes not from that but from provisions in the Republic of Ireland, which have been drawn to my attention—and from a concern previously expressed by the Home Affairs Select Committee in the Commons, whose report recommended that the legislation should not permit IPNAs to be used against young people unless supportive and informal interventions have failed. I can hear the Minister saying “guidance” to that.

In the Republic of Ireland, there is similar legislation but the courts are permitted to impose a behaviour order, which is their version of the IPNA and ASBO, against children aged 12 to 18 only after a senior police officer has held a meeting with the child and the parents or guardian, and when the child has been warned about behaviour and given the opportunity to sign a good behaviour contract—and, of course, to abide by it. I understand that in the past five years in Ireland the authorities have issued more than 2,000 behaviour warnings and 15 good behaviour contracts but only three behaviour orders to those under 18. I suggest that that is a successful way in which to go about the matter. I beg to move.

4.15 pm

The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con): My Lords, I thank my noble friend Lady Hamwee for these amendments, which give me an opportunity to explain more fully how those responsible for young people and young offenders can work together. In Amendment 21D, my noble friend is right to highlight the impact that something like exclusion from the family home could have on a young person. It is worth reiterating here that the power to exclude is available only when a much higher test of violence or significant harm to others is met. As such, it is a power that is rarely used in the context of the current anti-social behaviour injunction and we expect that it will rarely be used with the new injunction. This is especially true with young people. There are a number of examples where young adults have been excluded from a family home because of the reign of terror they have created. However, I sympathise with the point my noble friend raises and I would like to consider it further, without commitment, ahead of Report. In doing so, I would want to consult with front-line professionals on this point.

Clearly, if the provision remained as it is and the court were to decide to exclude someone under the age of 18 from the family home, it would also have to consider what additional support, such as accommodation, would be necessary to make it possible. There would also be a duty on local authorities to consider what support they are obliged to offer to the young person in such circumstances. However, there may be situations where, for the benefit of victims, alternative accommodation —with other family members for instance—could be in both the young person’s interest and that of the community. I should add that there may be cases where a 17 year-old respondent lives alone and where exclusion may be an appropriate response to his or her threatening behaviour.

The local youth offending teams will also have a role in the process of applying for an injunction against a young person and will provide a balanced and

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considered input early on, so I am not persuaded that simply preventing exclusion in all cases where the respondent is under 18 is necessarily the right answer. That said, if my noble friend is content to withdraw this amendment, I will return to the subject on Report after further consideration.

Amendment 21G seeks to put in the Bill a requirement for agencies to use informal approaches against under-18s before resorting to more formal measures to stop or prevent their anti-social behaviour. Early and informal approaches can be successful in stopping anti-social behaviour committed by the majority of perpetrators, including young people. I agree that when dealing with young people, informal interventions should be considered first in most cases as they can help stop bad behaviour before it escalates. Our draft guidance reminds professionals of the importance of considering informal measures in the first instance. Informal approaches could include acceptable behaviour contracts or, as they are sometimes called, acceptable behaviour agreements. These contracts can be an effective way of dealing with anti-social individuals, especially where there are a number of problem behaviours. They can also be very effective at dealing with young people early, to nip problem behaviour in the bud before it becomes more serious.

However, more formal measures must be available in the minority of cases where informal interventions are not appropriate. I am reluctant to restrict professionals in the way the amendment suggests because they need to have the flexibility to respond in all situations. There are, however, safeguards to ensure that injunctions are used appropriately. Before an application against an under-18 is made, the applicant must consult with the local youth offending team. This will ensure that the youth offending team is involved at the earliest stage in the process. They can give their expert views on whether an informal intervention would be more effective in dealing with the anti-social behaviour, rather than the more formal power in the form of an injunction.

In addition, before an application for an IPNA against those aged under 18 is made to the court, the applicant must,

“inform any other body or individual that the applicant thinks appropriate of the application”.

We would of course expect this to include the young person’s parents or guardians. As I have said, we would expect that in most cases professionals will look to informal measures first, but these provisions act as a safeguard to ensure that they do not automatically move to seeking an injunction, and that the youth offending team is involved in finding a solution to the young person’s behaviour.

I hope that I have explained how the Bill will ensure that the needs of a young person will be assessed when agencies are considering applying for an IPNA against that young person. I hope, too, that my noble friend understands why I do not think it would be necessary to put provision for good behaviour warnings in the Bill. I hope that she will withdraw her amendment on the understanding that I will consider the matters she raised.

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Lord Hope of Craighead (CB): Perhaps I may briefly take the Minister back to Amendment 21D. He made a number of points to explain how in practice this measure will be dealt with in the case of people under the age of 18. I was looking at the draft guidance as he was speaking and some of the points that he made do not appear there. Certainly, the point is made that the power of exclusion would not be used often, as is the point about the high threshold and so on. However, for example, the Minister mentioned the function of the youth offending team but that is not mentioned at pages 25 and 26 in this chapter of the guidance. I can see a value in the continuing duty of the youth offending team when dealing with young people who are excluded from their home, but it would be helpful if that were to be put in the draft guidance. Will the Minister undertake to look at the guidance as well as the drafting of the Bill when dealing with the point that the noble Baroness raised?

Lord Taylor of Holbeach: We have already committed to looking at the draft guidance in the light of our debates. More to the point, it is explicit in the Bill that the youth offending team is involved.

Baroness Hamwee: My Lords, we, too, will look at the guidance in the light of the debates. I say that as a promise rather than a threat—and I hope it is interpreted in that way.

My first amendment—as are so many amendments at this stage—is to some extent probing. I thought that the Minister made my case rather better than I did. I am glad that he will be consulting. I would not expect him to move forward on this without talking to the front-line professionals. I make just one comment on what he said: accommodation with other family members is unlikely to be available unless it was there without the need for an order. I am just thinking about the way that family dynamics work. As regards both amendments but particularly the second, I, too, will look at the guidance again and hope to provide some useful input to ensure that what the Minister describes as a longstop is a very long longstop. I beg leave to withdraw the amendment.

Amendment 21D withdrawn.

Clause 12 agreed.

Clause 13: Tenancy injunctions: exclusion and power of arrest

Amendment 21E

Moved by Lord Rosser

21E: Clause 13, page 7, line 16, at end insert “or with any other person”

Lord Rosser (Lab): My Lords, we have tabled amendments 21E and 21F to seek to clarify the effect of changes made to Clause 12 on Report in the House of Commons. As I understand it, the effect of those changes is that the ability to exclude a person who is the subject of an injunction under Clause 1 from the place where he or she normally lives in cases of violence or risk of harm can now apply across all tenures, including owner-occupiers, and not just the social housing sector, as I think was originally proposed. Will the Minister confirm whether that is now the case?

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If Clause 12 now applies across all tenures equally, what powers are now given under Clause 13 that apply only to someone with a tenancy agreement but do not apply to someone normally living in owner-occupied property who is also the subject of an injunction under Clause 1? One would have assumed that all tenures were now being treated equally but I take it that Clause 13, by its very wording, does not apply to a person in owner -occupied property. If there is still a difference in the powers available under Clauses 12 and 13, depending on the form of tenure, will the Minster say what those differences are and why they are necessary? Will he also say whether Clause 13 applies to the private rented housing sector or to just the social housing sector? Presumably the private rented housing sector is now covered by the changes made to Clause 12, so if a private sector housing tenant is not covered by Clause 13, in which ways does it mean that someone in social housing accommodation is being treated differently from someone who is a private sector housing tenant and who is also the subject of an injunction under Clause 1?

Amendment 21F would give local authorities extra flexibility in tackling anti-social behaviour in the private rented housing sector when private landlords refuse or are unwilling to act. It would be helpful to have the Minister’s comments.

Finally, under Clause 12, the injunction may exclude the respondent from the place where he or she normally lives. Under Clause 13, the tenancy injunction may include a provision prohibiting the person against whom it is granted from entering or being in any premises or any area specified in the injunction. What is the reason for the difference in wording apparently based on form of tenure?

Lord Ahmad of Wimbledon (Con): My Lords, I totally understand the noble Lord’s concern that anti-social behaviour powers in this Bill should be, as far as possible, tenure-neutral. He is quite correct that this came up during the debate in the other place and Clause 12, which provides for exclusion, is now tenure-neutral following amendments made on Report in the Commons. Of course, it is of no consequence to the victims of such behaviour that the perpetrator is a tenant of social housing, in the private rented sector, or is indeed an owner-occupier. What matters is that action can be taken.

Clause 13 makes special provision for tenancy injunctions so as to preserve the powers in housing legislation. For the most part, the housing injunction can be used in the same way as an injunction to prevent nuisance and annoyance. However, it makes the express provision for a tenancy injunction to be made in some circumstances where the tenant allows, incites or encourages anti-social behaviour by another person and this constitutes a breach of the tenancy agreement. Such behaviour could be committed by a visitor or lodger, for example. Front-line professionals have demonstrated through discussions held that they value this power and that is why we have retained it.

I assure the noble Lord that we are satisfied that Part 1 already enables the police, a housing provider or a local authority to apply for an IPNA to prevent a person allowing, inciting or encouraging someone else

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to engage in anti-social behaviour. It can be used in this way not only against tenants in the social and private rental sectors, which are the sectors that these amendments are concerned with, but against owner-occupiers. Given that, we do not need to extend the tenancy injunction provisions to cover a wider category of persons, as these amendments seek to do.

I also assure the noble Lord that Clause 13 applies to anyone who has a tenancy agreement with a local authority or a social landlord, so it does not cover the private rental sector.

Based on the assurances that I have given in terms of the extension and the provisions that were discussed in the other place, I hope that the noble Lord is content to withdraw his amendment.

4.30 pm

Lord Rosser: I am still not entirely clear what the position is in the light of what the noble Lord has said. As I understood it, he seemed to be at some pains to say that the content of Clause 13 is also covered by Clause 12 because the police, or somebody making the application, would have the powers to make that application in respect of somebody in the private rented sector, or presumably even an owner-occupier, who was,

“allowing, inciting or encouraging any other person to engage or threaten to engage in anti-social behaviour”.

I think that that is what the noble Lord was seeking to tell me. That wording appears in Clause 13 in relation to tenancy injunctions but it does not appear in Clause 12, although the Minister is seeking to say that that is what Clause 12 actually means. Therefore, if owner-occupiers and the private rented sector are covered by Clause 12, why do we need Clause 13 to put in different wording for a tenancy injunction when the noble Lord is apparently seeking to say that that is already covered in Clause 12?

In my contribution, I drew attention to Clause 13(3), which says:

“The court may include in the tenancy injunction a provision prohibiting the person against whom it is granted from entering or being in … any premises specified in the injunction (including the premises where the person normally lives)”,

so it clearly covers premises other than where the person normally lives, but the subsection goes on to say that it could also apply to,

“any area specified in the injunction”.

Do the terms of Clause 13(3) apply also to owner-occupiers and the private rented housing sector or are we treating differently people in the social housing sector who may have one of these injunctions and who it is proposed should be excluded? Are the people concerned in the three different types of tenure all being treated equally or is there something different in this for the tenant of social housing accommodation? If there is no difference and it is all covered by Clause 12, why do we need a separate Clause 13?

Lord Ahmad of Wimbledon: I repeat that as far as the first clause is concerned, the intention is to be tenure-neutral. As I said, we have considered the discussions that took place on Report in the House of

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Commons and have made appropriate amendments. I also repeat that the specific purpose of a tenancy injunction is to capture behaviour where a tenant has breached, or it is anticipated that they will breach, their tenancy agreement by engaging, or threatening to engage, in anti-social behaviour. We have tried to cover all elements in both clauses. As I have said before, it does not matter to the victim whether the perpetrator is a tenant of social housing or in the private rented sector. What matters is that action can be taken, and Clause 12 covers that.

Lord Rosser: With great respect to the Minister, I do not think that he has explained why Clause 13 is necessary. He keeps saying that Clause 12 is tenure neutral. If it is tenure-neutral, it covers social housing tenants as well as those in the private rented sector and owner-occupiers. Therefore, why do we need Clause 13? He refers to Clause 13 relating to anti-social behaviour, but Clause 12(1)(b)(i) also refers to anti-social behaviour. It also refers, in subsection (1)(b)(ii), to,

“a significant risk of harm to other persons from the respondent”.

The Minister has not addressed another question that I asked. Clause 12 refers to,

“excluding the respondent from the place where he or she normally lives”,

but in Clause 13, which covers tenancy injunctions, a prohibition can apply to,

“any premises specified in the injunction (including the premises where the person normally lives)”.

I therefore repeat that the provision envisages that the scope can extend beyond the premises where the person lives. There is also a phrase about preventing a person,

“from entering or being in … any area specified in the injunction”.

Is the Minister saying that the terms of Clause 13(3) are also included in Clause 12? He cannot have it both ways. He cannot say that Clause 12 covers all forms of tenure and then say that he still needs Clause 13.

Lord Ahmad of Wimbledon: I can only repeat what I have already said: Clause 13 makes special provision for tenancy injunctions so as to preserve specific powers in housing legislation. In this case, it also makes an express provision for a tenancy injunction to be made in some circumstances where the tenant allows, incites or encourages anti-social behaviour by another person. This constitutes a breach of their tenancy agreement. As I said earlier, such behaviour could be committed by a visitor or a lodger. The reason for Clause 13 is that front-line professionals value this power. That is why we seek to retain it.

Lord Rosser: Why is it not equally important that the provision about,

“inciting or encouraging any other person to engage or threaten to engage in anti-social behaviour”

should apply to the private rented housing sector, and to owner-occupiers? Is the Minister saying that only somebody in social housing might incite or encourage others to engage or threaten to engage in anti-social behaviour, and that that would not apply to the private rented sector or to owner-occupiers? Of course it applies there, too. This is not tenure neutral. If it were, Clause 13 would not be needed.

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Lord Ahmad of Wimbledon: My Lords, either I am failing to comprehend totally what the noble Lord is saying, or vice versa. I am listening very carefully to what he is saying, but, rather than repeating myself, I think it would be in the best interests of making progress if I wrote to him about this. I hope that he has been reassured by some of what I have said, and by the commitments and assurances given by the Government. On that basis, I again ask him to withdraw his amendment.

Lord Rosser: Obviously, I accept that the Minister will, without any commitment, have another look at this and write to me—which presumably will require him to reflect on everything that has been said before his reply is signed and sent. On that basis I will withdraw the amendment. However, I put to him again this simple question: if he is arguing that Clause 12 is tenure neutral, why does he need Clause 13? I beg leave to withdraw the amendment.

Amendment 21E withdrawn.

Amendment 21F not moved.

Clause 13 agreed.

Clause 14: Requirements to consult etc

Amendment 21G not moved.

Amendment 21GA had been withdrawn from the Marshalled List.

Amendment 21H

Moved by Lord Rosser

21H: Clause 14, page 8, line 8, at end insert—

“( ) Within a year of this section coming into force, the Secretary of State shall review the length of time taken by consultations under this section with local youth offending teams.”

Lord Rosser: We acknowledge that there was broad support for the requirement that the youth offending team be consulted before an injunction under Clause 1 is sought against somebody under 18. However, there appears to be no timescale for the consultation with youth offending teams, and as a result there could be—not necessarily will be—delay. For that reason, the time taken for consultation with local youth offending teams should be reviewed. That is the purpose of the amendment. Surely we need to keep an eye on how long the process is taking and to check on whether there are hold-ups when the legislation comes into force.

I appreciate that the Government’s view is that the necessary consultation with the relevant youth offending team will take place with a proper sense of urgency and should not be unduly delayed by protracted consultations. A clear commitment to a review would further strengthen that position and make clear the need to carry out such consultation expeditiously. That is what those who may be victims certainly wish. In the light of the statement in the draft guidelines that the consultation requirement does not mean that the youth offending team could veto the application, will the Minister say what would constitute consultation being completed? Does the person applying for an injunction have to have received a response from the youth offending team for consultations which have been completed? If the response is that the youth

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offending team is not in favour of the injunction, would discussions have to continue before the terms of Clause 14(1)(a) had been met?

Would a failure by the youth offending team to respond at all within a certain timescale mean that consultation could have been deemed to have taken place? If so, what would the Minister consider a reasonable minimum period for a response? Would a failure to respond by a youth offending team within a certain time be grounds for an application without notice under Clause 5? Could the youth offending team oppose an application for an injunction under Section 1 for someone under the age of 18 in court? Will the court hearing an application for an injunction under Section 1 have to be told the outcome of the consultation with the youth offending team and the view of the youth offending team?

Baroness Hamwee: My Lords, I have Amendment 21J in this group. Consultation can mean a lot of things and sometimes mean different things to different people, depending on what they want it to mean. I have pretty much given up tabling amendments which add, to “consult”, “and have regard to the outcome of the consultation”, having been told quite frequently that of course that must be implicit. However, I have met times when the consulter has not recognised that.

We heard from the Minister on my previous amendments that local authority social services have a role when someone under the age of 18 is involved as the respondent or potential respondent to an IPNA. My amendment would insert a reference to,

“the local authority for the area where the respondent resides”,

meaning of course the social services part of the local authority. I am seeking consultation, without trying to define it, of the local authority as well as of the youth offending team.

Lord Ahmad of Wimbledon: My Lords, I thank the noble Lord and my noble friend for their amendments. This group again relates to the balance that needs to be struck in ensuring that the appropriate consultation takes place, but relates specifically to cases involving young people under the age of 18.

Amendment 21H is concerned with the duty on applicants for injunctions under Part 1 to consult with the local youth offending teams in the case of under-18s. Crucially, that consultation must take place before the application is made to the court. That is an important change to the process where young people are concerned. Therefore, youth offending teams will help to ensure that the prohibitions in the order are appropriate and understood by the young person, and that any positive requirements are tailored to meet his or her needs. As we all recognise, as do I from my time in local government, youth offending teams are an important and established part of the youth justice system. They are well used to working with young people in these sorts of circumstances.

The noble Lord raised the issue of consultation. This would be an ongoing process and I would expect the consultation with the youth offending team to take place swiftly for the benefit both of the victims and of the communities that require protection. One of our

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primary objectives in reforming the response to anti-social behaviour is to speed up that response and I would not expect this consultation requirement to prevent that.

4.45 pm

I share the sentiments of the noble Lord. Like him, I want to ensure that this legislation is effective. As was the case under the previous Administration, it is standard practice to undertake post-legislative scrutiny—as he is well aware—three to five years after Royal Assent. It is of course open to us to undertake a review sooner should there be a case for doing so, and I expect the Government to be held to account in the House through the usual parliamentary channels. Based on this, I am therefore not persuaded that there is a case for a statutory duty to undertake a review of this requirement, as in the amendment.

Amendment 21J, tabled by my noble friend Lady Hamwee, seeks to add a further consultation requirement to ensure that the local authority is consulted in each case where a young person finds themselves the subject of injunction proceedings. It is, of course, open to the applicant to inform the local authority. In the case of someone under 18, it is highly likely that they would. However, there may also be occasions where this is not necessary and it is certainly not the Government’s intention to tie the hands of the police or social landlords in these cases. As such, I believe that this kind of duty is better served by guidance. As my noble friend Lord Taylor has already said in response to earlier amendments —and as I have said previously in Committee—in light of the debates in your Lordships’ House we are going to review the guidance that will be issued.

As I have said, we are trying to make the new powers as streamlined as possible and that is why we have included a general duty to inform relevant agencies, rather than prescribing consultation. The requirement to consult the youth offending team on applications against young people is the only exception. We believe that this recognises the particular and vital role that local youth offending teams play, and we want to ensure that they are fully involved at an early stage in the process. While it may be appropriate to inform other agencies, we recognise that sometimes there is an urgent need to act to stop anti-social behaviour and to protect victims.

In closing, I return to the issue of consultation. The statute book contains many duties to consult and we leave it to the good sense of the police and other bodies to consult youth offending teams. Of course, anyone who has experience of youth offending teams will expect them to respond in a timely manner. I hope, in the light of the explanations and assurances that I have given, both the noble Lord, Lord Rosser, and my noble friend will be content not to press their amendments.

Baroness Hamwee: My Lords, is my noble friend aware of whether the Local Government Association has been consulted—sorry to use the term again—on this provision? It seems to me that the Government should have been talking to it about whether it would want a statutory role. I take his point about occasional urgency but it is always open to a local authority to

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say, “This is urgent. You had better get on with it”, or, at the other end of the spectrum, to say, “We have no comment”. If he is not aware of what talks underlay the provision as we see it now, perhaps he could let me know after today’s sitting.

Lord Ahmad of Wimbledon: In direct response to that, I can say that representatives from the LGA and other organisations have attended meetings with my noble friend with regard to this Bill. I again reassure her that, as the guidelines are reviewed, I am sure that the LGA will be making representations and will be part of that process.

Lord Rosser: I certainly will withdraw my amendment but can the Minister respond to two of the questions I asked? Can the youth offending team oppose an application for an injunction under Section 1 for someone aged under 18 and can it oppose it in court? Will the court hearing an application for an injunction under Section 1 have to be told the outcome of the consultation with the youth offending team and the view of the youth offending team?

Lord Ahmad of Wimbledon: The youth offending team cannot actually veto an application. If it objects to a particular application, we expect further dialogue to take place on what it has submitted, but that does not mean that the process should be dragged out unnecessarily.

Lord Rosser: I accept that the team cannot veto it, but my question was: if it does not agree with it, can it oppose it in court? When the thing goes to court, will it be necessary for the court to be told of the outcome of the consultation of the youth offending team and the view of the youth offending team?

Lord Ahmad of Wimbledon: This is a specific issue. As I said, I would expect that the court would consider all consultations that had taken place and advice that had been received in considering this element. Certainly, the intention in providing for these orders would be that the youth offending team had a central role. It would also be represented in court. If there were an occasion where the team felt strongly enough, yes, the short answer is that it would be represented at the court hearing if it thought that its issues were not being considered in the right way.

Lord Rosser: I thank the Minister for his response to the question and I beg leave to withdraw the amendment.

Amendment 21H withdrawn.

Amendment 21J not moved

Amendments 21JA and 21JB had been withdrawn from the Marshalled List.

Clause 14 agreed.

Clauses 15 and 16 agreed.

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Clause 17: Children and young persons: disapplication of reporting restrictions

Amendment 21K

Moved by Baroness Hamwee

21K: Clause 17, page 9, line 28, at end insert “against a respondent who is aged 16 or over at the date of commencement of the proceedings”

Baroness Hamwee: My Lords, my amendment is grouped with the debate on Clause 17 stand part and Amendment 22DA in the name of the noble Lord, Lord Ramsbotham. Within the past few minutes, he has sent me a note asking me to apologise to the Committee. Like many of us, his anticipation of what would happen, and when, was rather thrown. He said that he had an impossible diary today with long-agreed speaking engagements outside the House. However, in case the Minister thinks that that lets him off the hook from attack from that quarter, the noble Lord has primed the noble Earl, Lord Listowel, to speak on his behalf on his later amendments. The noble Lord said that he would not dream of considering voting before Report anyway, although I think one might add “ … ” to that.

My amendment is to Clause 17. I have not sought to delete the clause from the Bill because I wonder whether it might be possible to discuss a compromise. I am aware that this is a delicate issue on which there has already been quite a lot of focus. The clause provides that Section 49 of the Children and Young Persons Act 1933—it has a long pedigree—is not to apply to proceedings on IPNAs. That section restricts reporting of proceedings in which children and young persons are concerned. That provision restricting reporting also has an exception within it. Is that exception not sufficient for the Government's purposes? The exception is that if the court is satisfied that it is in the public interest to do so, it may dispense to any specified extent with the requirements of the section. Is that not sufficient? That is Section 49(4)(a). Section 49(5) provides that the court can similarly dispense with the requirements of the provision if it is appropriate to do so for the purposes of avoiding injustice to the child or young person.

We have talked on a number of occasions about one purpose of the ASBI being to avoid criminalising young people, whom we hope to divert from a criminal career—not to consolidate a criminal career. Given the way in which reporting would be likely to happen, this provision would criminalise the young person and have a very unfortunate long-term impact. “Naming and shaming” is not a term I like to use—it means stigmatising and putting a negative label on the young person. There must be a very high risk of perpetuating the problems which an IPNA should be looking to nip in the bud.

We have also talked about positive re-engagement and rehabilitation. I question whether not imposing reporting restrictions would be a deterrent. Is there any evidence that it might be? There are also, of course, safeguarding concerns. This had not occurred to me, but I am told that professionals consider that there is a risk that children who are identified as having been

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involved in anti-social behaviour may engage in risk-taking behaviour or be more susceptible to being groomed. This is very much in our mind at the moment.

In all, it seems to me that the risks, quite apart from the concerns that have been voiced by the Joint Committee on Human Rights and the Local Government Association, are too big. Perhaps the Minister can tell the Committee what lies behind this; what evidence the Government have that this is the right way to go; what assessments have been made to evaluate safeguarding risks, and whether the Government have kept in mind the impact on a child’s rehabilitation. I beg to move.

Lord Hope of Craighead: I add just a short point to what the noble Baroness has said. When one looks at the draft guidance at page 26, one can see what the Government are thinking of here. The point is made that making the public aware of the perpetrator and the terms of the order can be an important part of the process in tackling anti-social behaviour. One can follow the thinking behind that proposition. When one reads on, however, one sees that there will be circumstances in which either the police or the council may decide not to publicise the fact that an IPNA has been made. It seems to me that the power—or the discretion, perhaps one should say—to decide whether or not publicity should be given is being taken away from the court and given to the police or the council. Will the Minister explain why that is being done, bearing in mind the point that the noble Baroness has made about the discretion which exists within Section 49?

It is a very big thing to take away from the court the power to restrict publicity, bearing in mind the reach of the whole of Part 1, which is what we are concerned with, including Clause 5, which permits an application for an injunction to be made without notice being given to the respondent. The court would have no power to stop the press if they happened to be there reporting what had taken place. It would be a very serious matter to go as far as the clause goes without a full explanation why exercise of discretion is being taken away from the court and being given to the police or the council, who are not answerable to the court for what they do.

Lord Paddick (LD): My Lords, I speak from personal experience of dealing with the previous regime under ASBOs. There was a tendency among some local authorities to publicise how many ASBOs they had been granted by publishing a rogues gallery of photographs of people against whom ASBOs had been granted. This was done for political purposes, not to pursue the ends of justice. Some young people thought that having an ASBO against them—or, in this case, an IPNA—was a badge of honour that they could show off to their mates. They were young people with a juvenile attitude. It almost encouraged them to breach the ASBO because their picture had been publicised and they had local notoriety. There is a danger that this provision could make what was a very unhelpful situation under the previous regime even worse.

5 pm

Baroness Linklater of Butterstone (LD): My Lords, I endorse that and remind the House that when ASBOs were first considered under previous legislation, that

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worry was aired at some length in this Chamber. Things could go either way. Either you could have it as a badge of honour or it could be a mark that affected a young person or child’s life considerably. Either way, publicity had little to offer that was positive or helpful.

Baroness Smith of Basildon: My Lords, this has been a useful debate. I hope that the Minister can respond positively to it, because this is causing enormous concern. There is a great difference between the current regime of ASBOs—we still have them, and we propose that we keep them—and the new regime that the Government propose. We are talking about lifting reporting restrictions widely not for somebody who has caused harassment, alarm or distress, but someone who has caused merely nuisance and annoyance and breached the order. A child aged 10 who has been given an IPNA injunction for causing nuisance and annoyance—as I said earlier this week, I think that most children of 10 are at some point quite capable of causing nuisance and annoyance—could breach that injunction and find reporting restrictions lifted. That lifting of reporting restrictions does not seem to be a reasoned decision taken in certain circumstances—it is in every case. I do not understand why. I share the views expressed by other noble Lords. It is for the Minister to explain why he thinks that this is an appropriate and proper measure, because I fail to understand that.

The noble Baroness, Lady Hamwee, made a valuable point about safeguarding: whether children who receive publicity as a result of having caused nuisance and annoyance could be at risk. Could they be subject to grooming? Could they be targeted in any way? Have the Government done any assessment or evaluation? I cannot believe that such a clause would be brought forward without a great deal of thought, but I could be wrong. Have the Government undertaken any assessment of the impact that that could have on a child aged 10, 11 or 12? Given the naming and shaming effect of civil orders on children, have the Government consulted those organisations which seek to protect children to find out their views and how they think that it would impact on them? We are extremely worried, particularly given the low threshold level required for an order.

It really is incumbent on the Minister to explain the reasons for this clause. I hope that he has heard the concerns across the Committee. His explanation today will go a long way to seeing whether this is a matter to which we will return on Report.

Lord Taylor of Holbeach: I thank noble Lords for speaking in this short debate on an important issue, and my noble friend Lady Hamwee for moving her amendment. The noble Lord, Lord Ramsbotham, is not here, but we are aware of his sentiments through the Marshalled List, on which he gave notice of his intention to oppose the Question that Clause 17 stand part of the Bill.

As my noble friend Lady Hamwee said, the Bill in its current form specifically states that Section 49 of the Children and Young Persons Act 1933 is disapplied. This allows the details of under-18s subject to the new

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injunction to be reported unless the court imposes a restriction under Section 39 of the same Act. The same is true of the new criminal behaviour order, which is covered by a similar, parallel provision under Part 2.

My noble friend’s amendment would limit this disapplication to 16 and 17 year-olds. We know that the noble Lord, Lord Ramsbotham, thinks that it should apply to all young people. I understand the sentiments behind these amendments, but there is a strong case for maintaining the status quo in this area. There is a real need to allow reporting on under-18s in certain cases where it is necessary and proportionate, primarily to allow for effective enforcement of the order, with communities able to play their part in tackling the anti-social behaviour by alerting the police if, for example, the offender breaches the conditions of their order.

There are further legitimate reasons for lifting reporting restrictions. Publicising that action has been taken against anti-social individuals can also provide reassurance to the public that action can and will be taken, and can act as a deterrent to other individuals behaving without due consideration for their community. However, these legitimate aims must be weighed against the effect on the young person of making it known to their community that they have been subject to a formal court order, albeit a civil one. We made it quite clear in the draft guidance that we published last month, of which noble Lords are aware, that local agencies must consider whether it is necessary and proportionate to interfere with the young person’s right to privacy and whether it is likely to affect a young person’s behaviour, with each case decided carefully on its own facts.

Furthermore, the courts are used to making sensitive decisions, having been dealing with such cases since the reporting arrangements for ASBOs were changed by the Serious Organised Crime and Police Act 2005. The courts reinforced this position, as illustrated by the wealth of case law on the issue, by upholding the legislation that allows for reporting of under-18s and makes it clear that it is sometimes necessary. The legislation that we are examining today has been drafted to mirror these same provisions. This has worked in the past, and the case law provides further guidance on the factors that should be considered, and on how the court should go about making such decisions.

However, the Bill has made some changes that go further towards ensuring that the rights of young people are always properly considered. We see the role of the youth offending team as key. These front-line professionals work directly with young offenders to tackle the underlying causes of their behaviour. The Bill states that the youth offending team must be consulted before an application may be made for either an injunction or a criminal behaviour order. It will be able to give an invaluable insight into the effects that reporting would have on a young person, to allow for more informed decision-making by applicants and the courts on this issue.

It is worth pointing out that once these powers are in place, all applications for injunctions will be heard in the youth court, which is not currently the situation for ASBOs. The youth courts are best placed to make such decisions, so this move will also ensure that the right outcomes on reporting for the offender and the

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community are achieved. The noble and learned Lord, Lord Hope, is quite right. Discretion rests wholly with the court. The applicant for an injunction can express a view to the court on this matter, but the decision rests with the court.

My noble friend Lord Paddick asked whether there would be a presumption that reporting was permissible unless stated otherwise by the court, meaning that you would end up with a badge of honour situation. We are trying to change the way we deal with anti-social young people. We are focusing on working with the young person. All the debates we have had on IPNAs show how this new system provides a fresh approach to this issue. It will allow the youth offending team to be party to the decision-making process. The team is likely to be working with the young person already and will be able to advise on what current interventions are in place, whether the young person is engaging and what effects publicity may have. I think that covers the point made by my noble friend Lady Linklater.

I am a little surprised by the view taken by the noble Baroness, Lady Smith, because the previous Administration introduced these provisions in Section 49 of the Children and Young Persons Act through the Criminal Justice and Immigration Act. I shall quote the noble Lord, Lord Bassam, who was then a Home Office Minister, because it is very important to show that there has been a degree of unanimity on this among those of us responsible for dealing with these matters. Publicising procedures is a very important part of the local agencies’ attempts and efforts to deal with anti-social behaviour. The noble Lord said:

“It is about people being aware of those who have been challenged over the effects of their behaviour through the ASBO process. That challenge is very important. I believe, and I know that my colleagues believe, that we need to demonstrate to young people what unacceptable behaviour is. We need to draw a line. People need to understand exactly when behaviour is acceptable and when it is unacceptable. It is in the absence of those clear messages—those clear dividing lines—that young people get into the habit of the abusing behaviour that can have such a profound and damaging impact in our communities. So, yes, I do agree that publicity surrounding proceedings is an important part of the process. It is not about naming and shaming. I do not accept that tag, or title, at all”.—[Official Report, 23/4/08; col. 1612.].”

Baroness Smith of Basildon: Those are wise words indeed, but will the Minister confirm that my noble friend Lord Bassam was speaking about anti-social behaviour in terms of harassment, distress and alarm, and not an IPNA, which is to cause nuisance and annoyance?

Lord Taylor of Holbeach: The noble Baroness will know that an IPNA can be applied also in cases where there may have been harassment, alarm and distress, so although nuisance and annoyance is the test for an IPNA, it is not the absolute or exclusive text.

Baroness Smith of Basildon: This clause would apply to those who have committed a breach of an IPNA by causing nuisance and annoyance. Would that be correct?

Lord Taylor of Holbeach:The noble Baroness is quite right, but what we are seeking to do is to enable the IPNA-based process—at the discretion of the court, which I must emphasise to noble Lords, and in

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conjunction with the advice of the youth offending team—to determine whether this is the best way of dealing with this young person.

5.15 pm

Lord Deben (Con): I hope that my noble friend will stick hard to this, because one of the issues that most affected one in a very long life as a constituency Member of Parliament was the number of people whose lives had been made absolutely intolerable by activities of this kind. It is important that we stick to this in the way in which he has proposed.

Lord Taylor of Holbeach: I thank my noble friend for those encouraging words. I feel that we are right on this issue and I suspect that all noble Lords will know that, with discretion on this matter resting with the courts, there will be proper evaluation of the issues before any decision is made. I would expect any court to take full account of the nature of the behaviour before deciding whether to impose such a condition. I might add that the Home Affairs Select Committee considered this point during the pre-legislative scrutiny of the draft Anti-social Behaviour, Crime and Policing Bill. In its report on the draft Bill, the HASC said,

“we are happy to leave the decision not to name a young person to the discretion of the judge”.

We agree that this is appropriately a matter for judicial discretion for all respondents under 18, whether older or younger than 16.

For these reasons, I am confident that the reporting of under-18s will be carefully considered and used only in circumstances where it is necessary. I hope that I have been able to put this particular issue into context and that my noble friend will withdraw her amendment.

Lord Hope of Craighead: I come back briefly to the point about discretion. Of course it is right that the court will have discretion as to whether to grant an injunction. In the case of an application made without notice, the clause is perfectly clear; it gives wide discretion to the court as to what to do. My concern is that if the court decides to make an order, where is its discretion if you remove the provision in Section 49 to restrict the publicity that is given to it? It is that element of discretion that I think concerns the noble Lord, Lord Ramsbotham, and the noble Baroness. There are two discretions here. One is certainly there, very properly, in the way that the whole of Part 1 is drafted as to whether orders are to be made. It is the particular point about the discretion as to whether publicity should be given that is of concern.

Lord Brown of Eaton-under-Heywood (Non-Afl): My attention is drawn by my noble and learned friend Lord Walker to paragraph 123 of the Explanatory Notes, which indicates that, even though you are getting rid of Section 49, you are left with the discretion under Section 39 of the same Act. Paragraph 123 states:

“However, section 39 of that Act does apply to these proceeding and gives the court the discretion to restrict the publication of certain information in order to protect the identity of the child or young person, for example: his or her name; address; school, etc”.

Therefore, with great respect to the Minister, his answer lies in Section 39.

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Lord Taylor of Holbeach: I am most grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I am sorry if I struggled to get the place name right but I am delighted that he mentioned this point because I just received a note saying that Section 39 of the 1933 Act gives the court the discretion to impose reporting restrictions.

Baroness Hamwee: My Lords, I, too, was a little confused when the Minister referred earlier to Section 39, which the noble and learned Lord just mentioned. This will require some reading. The point, of course, is entirely right. It is how the court has discretion as regards publicity. I do not at all challenge the point on the injunction. I am very grateful to the noble and learned Lord, Lord Hope, for reminding the Committee that our courts are essentially public; that is where the concern comes from.

The Minister talked about the status quo. That confused me, because I thought that I was arguing for the status quo. He said that the status quo was good, but he challenged my amendment. I cannot see how we will not return to this on Report. However, I beg leave to withdraw the amendment.

Amendment 21K withdrawn.

Clause 17 agreed.

Clauses 18 to 20 agreed.

Amendment 22

Moved by Lord Marlesford

22: After Clause 20, insert the following new Clause—

“Part 1ALittering from vehicles

Civil penalty for littering from vehicles

(1) A littering contravention in relation to a vehicle occurs when a person inside the vehicle acts in contravention of section 87 of the Environmental Protection Act 1990 (offence of leaving litter).

(2) A civil enforcement officer may impose a civil penalty if a littering contravention under subsection (1) has taken place.

(3) The registered keeper of the vehicle shall for the purposes of section 87 of the Environmental Protection Act 1990 be treated as knowingly causing the littering contravention whether or not he gave any instructions for this to be done and shall be the recipient for a civil penalty under subsection (2).

(4) A civil penalty is not payable under this section by the owner of a vehicle if that vehicle is—

(a) a public service vehicle, within the meaning of the Public Passenger Vehicles Act 1981;

(b) a hackney carriage licensed under the Town Police Clauses Act 1847 or the Metropolitan Public Carriage Act 1869;

(c) a vehicle licensed under section 48 of the Local Government (Miscellaneous Provisions) Act 1976 (licensing of private hire vehicles);

and the person acting in contravention under this section is a passenger in that vehicle.

(5) The amount of a civil penalty under subsection (2) is to be specified in regulations.

(6) The procedure for imposing a civil penalty on a person and for recovery of costs is to be set out in regulations.

(7) The regulations must, in particular, require the responsible authority to give the person written notice specifying—

(a) the amount of the penalty,

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(b) the reasons for imposing it, and

(c) the date by which and manner in which it is to be paid.

(8) Regulations may—

(a) give a person on whom a civil penalty is imposed a right to appeal against the decision to an adjudicator;

(b) specify the grounds on which a person may request an appeal;

(c) specify the time within which a person must request an appeal;

(d) make provision for and in connection with the appointment of adjudicators;

(e) make further provision about appeals (including provision as to the powers available on an appeal).

(9) The registered keeper of the vehicle for the purposes of this section shall be taken to be the person in whose name the vehicle was registered under the Vehicle Excise and Registration Act 1994 at the time of the contravention.

(10) A civil enforcement officer under this section must be—

(a) an individual employed by the responsible authority, or

(b) where the authority has made arrangements with any person for the purposes of this section, an individual employed by that person to act as a civil enforcement officer.

(11) A vehicle for the purposes of this section is a motor vehicle as defined in section 185(1) of the Road Traffic Act 1988.”

Lord Marlesford (Con): My Lords, in proposing the new clause in Amendment 22 to provide a new civil penalty for littering from vehicles I seek to insert part of my Private Member’s Bill, which was extraordinarily enthusiastically endorsed by the House, excluding the Minister from Defra, at Second Reading on 19 July. Eight speakers from all sides of the House were good enough to come in on that summer Friday to support it. Since then I have received two placebo letters from Ministers, one from my noble friend Lord De Mauley and the other from my noble friend Lord Taylor. In a sense, they both said the same thing. They both say—this is more or less a quotation—that the Government share my frustration with the problems of roadside litter. I suggest that Governments are not elected to share the frustration of electors. They are elected in the hope that they will deal with the cause of the frustration. We want action rather than words, and I am offering a rather simple form of action to help them.

I wish to replace the criminal offence of littering from vehicles, which does not work, with a civil offence, which would work. The criminal offence does not work because it is necessary to prove who threw the litter from the vehicle. My civil offence would make responsible the keeper of the vehicle from which litter is thrown. It would impose a small fine, which he or she could pass on to whichever person in the vehicle threw the litter, in exactly the same way as if somebody borrows my car and parks it where they should not I get the parking fine. That is not a criminal offence, and it is the right way to do it.

My noble friend Lord De Mauley, in his letter to me dated 16 September, rather surprisingly suggested that:

“Such an approach clearly raises questions of proportionality and civil liberties”.

I would have thought that it did the reverse. He goes on to say:

“Littering is an unnecessary and antisocial behaviour … Littering from vehicles, particularly moving vehicles, is a dangerous form of littering”.

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He gets quite excited, because he goes on to say:

“The maximum fine which can be imposed on an individual convicted for littering is £2,500, which is clearly large enough to have an immediate effect on the financial situation of many individuals. Moreover, criminal convictions can result in higher insurance premiums or, in some cases, refusal of insurance. Unspent criminal convictions, including those for littering, also of course show up on any criminal record check carried out by a prospective employer, and must also be declared when applying for visas for travel to certain countries”.

That is a bit of a sledgehammer; I believe that my rather modest little proposal would be effective. The point about the sledgehammer is that not only is it not actually used, but it really is virtually impossible to use it. I hope that the Government, after this long period that we have waited—we have been discussing this for some while—could take some action.

My noble friend Lord Taylor wrote a very nice letter to me, in which he says:

“I recognise that it can be difficult for local authority enforcement officers to identify the offender when littering takes place from a vehicle, but providing for a civil penalty to be issued to the registered keeper … would … risk sending a message to the public that littering from vehicles is less serious compared to other littering”.

Yes, of course it is less serious. My noble friend Lord Goschen is about to introduce an amendment about the much more serious matter of fly-tipping. There is no comparison.

All these things are a matter of degree. We are fortunate in having several noble and learned former Law Lords in the House; I hesitate to say anything about the law because one knows nothing about it compared to everybody else here, but surely, proportionality and all that is very important. That is why I am hoping that the Government will recognise that something should be done about this problem.

Recently, my honourable friend Mr Dan Rogerson was given a new responsibility for the waste portfolio in the Government. He wrote to the waste sector saying that the Government was going to focus on,

“the essentials that only Government can and must do”.

He is putting forward,

“a limited programme of work on waste prevention, focusing our attention on the areas where action is clearly for Government”.

That fits in rather well with what I am proposing.

Since I have taken an interest in these matters, I have been on the close look-out when I have travelled. Certainly, in three countries in Europe this summer, in Arizona in the USA and last week in Hong Kong, I was very struck by how astonishingly clean they all were compared to Britain. It is really rather shocking that not only are we the way we are, but the Government are not enthusiastically supporting the measure I am suggesting or—which I would be perfectly happy with—proposing something better. I hope it will happen. I beg to move.

Viscount Goschen (Con): My Lords, I support my noble friend Lord Marlesford’s amendment, which largely reflects a Private Member’s Bill that the House discussed a while ago. It seems an eminently sensible measure and I look forward to a similarly positive and supportive reply from the Minister. My Amendment 22AA, which is grouped with that of my noble friend, deals with a different issue at the other end of the waste scale: it is to do with fly-tipping.

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Fly-tipping is the deliberate, planned commission of a criminal act by the illegal dumping of waste. This is a crime which blights rural areas, including the one in which I live; if I therefore have an interest, I am more than happy to declare it. The scale of the situation is scarcely credible. In 2012-13, according to statistics produced by Defra, there were 711,000 incidents, or crimes, at approximately 2,000 per day. I do not believe—and perhaps my noble friends can correct me if I am wrong—that that includes fly-tipping on private land, and private farmland in particular, which is an increasing phenomenon. That is a great deal of criminal activity but, in the same statistics pamphlet that the department has produced, there is an equally startling statistic. In the same period, only 2,200 prosecutions were undertaken. Another way of looking at it is that only crimes committed approximately on the equivalent of one day per year were brought before the courts. The odds are nowhere near sufficient to deter either the one-off or the serial offender.

5.30 pm

There are two clearly related issues to tackle. The first is about investigation and prosecution, and the second is about the severity of the penalties. On the former, police and local authorities must be encouraged to investigate properly and not to take the easy way out, which is all too often to say that these people must be caught in the act. We realise that that is highly unlikely. But this is a crime that uses vehicles—the ultimate traceable tool—and which typically leaves behind a good deal of evidence. I would appreciate to hear from the Minister what efforts are being made to improve the detection rate, which is lamentably lame on this crime.

In their report Government Review of Waste Policy in England 2011, the Government stated that they would,

“introduce stronger powers to seize vehicles suspected of involvement in waste crime”.

My Amendment 22AA does exactly that. I would like to support the Government and stiffen their resolution to introduce and, as importantly, to deploy this measure. Could the Minister update the House as to where the Government have got to in their deliberations in bringing forward their own orders? I am only a humble amateur politician, if one can call oneself that in this House. The Government may already have brought forward these regulations, or may be about to do so—or they may want to use my amendment to save them a bit of parliamentary trouble. I am not proud, and I am not concerned how it is done, but I am concerned that it is done.

If these criminals faced the serious prospect of losing their vehicle for committing this offence, it is my contention that we could drastically reduce the prevalence of this extraordinarily common crime. The Government have done a lot of good work in this area, and there has been a welcome reduction in some areas of the commission of this offence. Local authorities tend to react very quickly to clear away the waste, provided that it is not on private land, in which case it is not their responsibility. The police and other bodies, in particular the Environment Agency, are very supportive. The National Fly-tipping

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Prevention Group has played an important role in the co-ordination of responses. But now we need a more vigorous response, and we look forward to the Government taking the lead on this issue.

Lord James of Blackheath (Con): My Lords, I support my noble friend Lord Marlesford on his amendment, but I wish also to make a small criticism of it—that it is lacking in focus. While it deals with the issues of litter very effectively, it does not go far enough in addressing the issues of offensive behaviour in cars and other moving vehicles, which is increasingly prevalent among young people.

I cite the example of recent Saturdays, when we have had the rugby at Twickenham. I have made endless attempts to convince my wife that rugby is a respectable pastime and not the equivalent of being found in bed with a supermodel on a Saturday afternoon, as she has often thought—although, given the way in which England have played recently, it is a good alternative. However, I persuaded my wife to come to Twickenham with me on each of the last three Saturdays and she was totally horrified at the sight of the school buses coming down the road full of children indulging in a pastime which is, I believe, called mooning. I am not going to explain it to your Lordships because we are in mixed company, but the sight of some 40 children mooning simultaneously is not a pretty one. My wife is a youth justice officer and as she watched the police motorbikes zooming past these kids, giving them a friendly wave, she said: “We have a law against this sort of thing. Why are they not being brought into court? I would put them away for a year if I got them.”

There is an omission in the amendment tabled by my noble friend in that it does not deal adequately with the bad behaviour that can come out of vehicles and interfere with others. That was one example, but there was another this week of which your Lordships should be aware. In its wisdom, the Times—I am sorry that the noble Lord, Lord Finkelstein, is not here to take down this message—is pursuing, to a ludicrous degree, the cause of cyclists to the point where they are creating a new and separate society in London, in which cyclists think they have a superior law and control over everybody in a motor car. This is going to lead to some catastrophic accidents very soon. On three mornings, driving up the A3 in the Balham and Clapham area, I have seen cyclists put their cycles up against the central reservation—not the line where the bus lane is—stand in the middle of the road with a camera and defy you to run them down while they photograph you doing it. That is what they are longing for. We need to have that sort of behaviour excluded because it is going to lead to their demise and our prosecution: it is ridiculous. I support the amendment, but it needs to go a little further.

Lord Crickhowell (Con): My Lords, one step at a time. I am going to let my noble friend’s suggested change to the amendment pass by for the time being. However, I have a great deal of sympathy for both these amendments. I will concentrate on my noble friend Lord Marlesford’s amendment. I have now moved from my home in a national park, but I have always been horrified by the casual way that, in one of the

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most beautiful valleys in the countryside, people throw drink containers out of the windows of their cars as if that was a normal and natural thing to do. I am almost equally horrified—frustrated, indeed—by the attitude described by my noble friend as coming from Defra. I am not entirely surprised that it comes from officials: I am horrified that it has come in the form of letters from my noble friends who I have always regarded as thoroughly practical, sensible and wise people. I hope that my noble friend Lord Taylor will show that I am right in that respect when he responds to this debate.

The condition of our roadsides is really appalling. It is a very long time since I served in Lady Thatcher’s Government, but I well remember her returning from an overseas trip and expressing horror and consternation at the state of the road from Heathrow to London given the litter that was there, compared to the roadsides she had observed in the places she had been visiting. This was, I am afraid, one of the occasions when she did not do anything and here we are, 30 or more years later, and nothing effective has been done.

My noble friend described the comments from a Minister about the strength of the legal system and how, if you have a tough law and all the awful penalties he described, people were likely to take notice of it. I have to tell him that it is not only the hooligans and the ignorant who ignore the law. I well remember, when I was still a Member of Parliament for Pembroke, the president of my association—who had himself fought three parliamentary elections and was a distinguished local magistrate—telling me of driving back over the Preseli Hills from a magistrates’ meeting in Haverfordwest. He was horrified because someone in the car in front of him was throwing papers out of the window every few hundred yards. After he had driven for 10 or 20 miles and the confetti had been scattered along the roadside for a considerable distance, he decided to stop to see what the litter consisted of. He stopped, picked up the litter and discovered that it was the minutes of the magistrates’ meeting that he had just left. There you had a magistrate leaving a magistrates’ meeting who was so terrified of the law which my noble friend has described that he was taking no notice of it at all.

We have a very practical suggestion from my noble friend and it does not deserve the casual and rather absurd way that it has been treated so far by Defra. I hope that the Minister, if he cannot accept the amendment in exactly its present form, will tell the House that he will be prepared to discuss this whole matter in much more detail with his department in the hope that we can make some belated progress on this urgent problem.

Lord True (Con): My Lords, this is the first time that I have intervened on the Bill. I should declare an interest as leader of a London borough council; indeed, it is the council that I now learn is the world’s centre of mooning. I should apologise to Lady James of Blackheath for the offence that was caused. I will try to avert my eyes when I next go to Twickenham.

I express my immense support for my noble friend Lord Goschen and his amendment. He is exactly correct to point out the scourge of fly-tipping and I hope that the Government will be supportive. Equally,

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I am extremely supportive in principle and in practice of my noble friend Lord Marlesford’s amendment. I am going to anticipate what I fear the Minister might say about it, in the hope of averting the risk that he will push it aside. There are issues of policing that local authorities would have to face with this. It is not as easy to identify a car from which a piece of paper has been thrown as it is to find a parked car of which you can take a photograph and stick it on the web, so that the person who has parked the car can see the offence that they have committed. The proposed process imitates the process for dealing with a parking offence, and will still have issues of proof and so on attached to it. I am sure that the Minister may well be tempted to say that. None the less, I am sure that there are ways in which, with a will, these kinds of problems could be overcome. I hope that my noble friend on the Front Bench will take it forward in a positive spirit.

I should add to what my noble friend Lord Crickhowell said about motorways, where the situation is appalling. Last time I went up the M1, I saw the astonishing investment by the Highways Agency in having ridiculously exaggerated numbers of cameras at the first few junctions. Millions must have been spent on them, the side notices and so on. Yet along the side of the road, totally neglected, were piles of litter. Something ought to be done by the Highways Agency to prioritise investment and deal with this problem, which is a terrible advertisement for our country along its main highways and which a small local authority is not by itself competent to deal with.

Baroness Smith of Basildon: My Lords, I find myself in complete agreement with the noble Lord, Lord Marlesford, and the noble Viscount, Lord Goschen, on this issue. It should not have been a surprise to your Lordships’ House that when we debated the Private Member’s Bill of the noble Lord, Lord Marlesford, there was enthusiastic—indeed, passionate—support for the objectives he put forward. If one talks to the public at large, they regularly raise the state of the streets and pavements, and the impact that has on their community. That is why both these amendments are so relevant to this Bill.

Noble Lords may be aware of the “Panorama” programme that my noble friend Lady Bakewell presented a few weeks ago, in which she was able to show the cumulative impact of litter on anti-social behaviour in a local community, and the pride otherwise taken by that community in how it looked and about whether that litter was cleared. At Second Reading, we were very pleased to support the Private Member’s Bill. I am not going to suggest, nor is the noble Lord, Lord Marlesford, suggesting, that every word in it was perfect; we would have welcomed the opportunity to debate it further in Committee. But if the Minister were able to take it away and look at the objectives that it is seeking to achieve, that would be very welcome.

On the issue of fly-tipping, one of the problems has been that so many local authorities have been forced into the position of cancelling their door-to-door collections of larger and bulkier items. While some people have tried to make alternative arrangements, some think it is easier to dump it in the car, drive somewhere and tip it out. Local farmers—and local

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authorities, as the noble Lord, Lord True, said—speak about the increasing costs that they incur in having to deal with fly-tipping and litter.

I have never been subject to mooning on the motorway—I am not quite sure whether that is within the scope of the amendment—but if an area looks bad then behaviour becomes bad as well, which is of great concern to many people on private and public housing estates across the board. I hope that the noble Lord can take away the serious sentiment that, by dealing with litter and fly-tipping, we would improve our communities and make them better places to live.

5.45 pm

Lord Taylor of Holbeach: I could not agree more with the noble Baroness about the importance of behaviour regarding the environment. All noble Lords would join in that sentiment. I do see this as an ongoing debate on how Parliament, the Government, and communities as a whole can deal with what is manifestly a big problem. I am grateful, therefore, for the opportunity to debate these issues through the amendments tabled by my noble friends Lord Marlesford and Lord Goschen. My noble friend Lord Marlesford has come back on this issue following his Private Member’s Bill and the amendments that he made to previous legislation on similar grounds.

I shall address his amendment first. I know that littering from vehicles is something that he feels about passionately. I have been in the House when he has raised this issue previously and I also know that many noble Lords share his concerns, as I do myself. I consider it a source of considerable annoyance to see the roadside littered—if I may use the word—with discarded litter, discarded by people who do not seem to care about the visual and other impacts on the environment and other people’s neighbourhoods. Therefore, I come from a position of saying that littering should be treated seriously. My noble friend Lord Crickhowell is absolutely right. It is simply unacceptable to drop litter. Littering from vehicles can also present a danger by distracting or even injuring other road users or by obstructing the highway. Littering is anti-social and this is an anti-social behaviour Bill. It demonstrates disrespect for the community and it incurs costs for the taxpayer. In many communities, a lot of litter collecting is done by voluntary community groups. In my own area, the local civic society takes on responsibility for clearing up irresponsibly discarded litter. The Highways Agency spends around £10 million a year clearing litter and this often involves closing lanes, which also causes delays to other road users.

As my noble friend explained, his proposed new clause seeks to make it easier for local authorities to fine people when littering is witnessed from their vehicle. My noble friend feels that more people must be punished for this anti-social behaviour and that, if more people were or could be punished, fewer people would commit the offence in the first place. The Government are at one with my noble friend’s intentions. However, as my noble friend Lord De Mauley advised my noble friend Lord Marlesford during the Second Reading debate on his Littering from Vehicles Bill earlier this year, we do not believe that the approach

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he proposes is likely to contribute significantly to the resolution of this problem, and I think that I owe it to the Committee to try to explain that.

At present, because littering is a criminal offence, we advise local authorities not to issue fixed penalty notices for littering unless they are confident that the evidence against the offender would stand up if the case went to court. It is, of course, for local authorities to satisfy themselves about this and to assess the strength of each case on its merits. The amendment would also mean that, as a matter of law, the registered keeper of a vehicle could be punished for an offence committed by someone else, such as a passenger, or a family member who also had the use of the vehicle. The amendment makes clear my noble friend’s intention that the registered keeper should be held liable whether or not they gave instructions or allowed the contravention to take place. People who are innocent of any offence would therefore have either to pay the fine or take on further inconvenience and expense in challenging it, while the actual offender would go unpunished. It is hard to see how this approach is going to change offenders’ behaviour if someone else bears the punishment for their wrongdoing. In law, fairness and proportionality are crucial in gaining public support for the use of fines to punish this type of behaviour, but under the amendment an innocent party might be punished for the crime of another.

I accept that there is a place for keeper liability when it comes to the enforcement of traffic-related offences, but it is a very big step to extend this principle to other categories of offences. Government guidance on the use of fixed penalties is very clear that people should be fined only when it is proportionate and in the public interest to do so, and fining the registered keeper for any littering offence committed from their vehicle, regardless of their guilt, is neither fair nor proportionate.

Enforcement is the issue, and I agree with all noble Lords who have spoken that we want the message to the public to be loud and clear: littering is a crime. However, the amendment would distort that message by essentially decriminalising littering from vehicles, and at the same time it would create a legal anomaly. Littering while standing on the pavement would remain a crime, but dropping the same litter from within a vehicle would be treated as a civil offence. That risks sending the wrong message—that littering from vehicles is not really so serious.

More importantly, we also doubt that this proposal will achieve my noble friend’s desired aim, as it relies on the offence being witnessed. Its effectiveness would be limited by the number of enforcement officers available to the local authority, and they cannot be everywhere all the time. It will not be of any help when the offence takes place in an isolated area, in the dark or at such speed that the vehicle registration cannot be recorded. In some cases, CCTV may help, but even CCTV has limits as to the level of detail that it captures.

When my noble friend raised this proposal in the context of the Localism Bill in 2011, the then Minister, my noble friend Lord Shutt, responded:

“It makes sense to learn the lessons from the application of that approach in London before moving to wider legislation”.—[Official Report, 10/10/11; col. 1370.]

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I know that my noble friend Lord Marlesford feels that the powers under the 9th and 10th London Local Authorities Acts have been in force in London for a year and that we should therefore have had time to assess their operation by now. However, the current evidence suggests that these powers have not been widely used. It has taken a long time for the boroughs to put in place the necessary appeals system and paperwork. Barely a handful of civil penalties have been issued so far, and the new threat that registered keepers will be fined does not seem to have made much of a difference to the behaviour—

Lord Crickhowell: I am grateful to my noble friend. He is giving one lot of statistics but does he have any statistics relating to the number of occasions when criminal prosecutions have been effectively brought for the same offence anywhere in the United Kingdom?

Lord Taylor of Holbeach: I apologise to my noble friend because I do not have such figures. I am not quoting any figures here; I was saying that I understand that only a handful of civil penalties have been issued. I shall certainly write to my noble friend if I am able to obtain the answer for the number of littering crimes that have been committed. As I said earlier, enforcement is the issue. The new threat that registered keepers will be fined does not seem to have made much of a difference to the behaviour of the general public. After this debate, it would be interesting for me to talk to my noble friend Lord True about his experience in his borough and to find out how useful he has found these provisions under the London Local Authorities Acts.

The lesson we have learnt so far is that the evidence does not support this approach as being so effective in tackling the problem as to justify rolling it out on a national scale. While we share my noble friend’s sentiment and respect his persistence, we cannot support this amendment and I hope that he will withdraw it.

We have heard a number of speeches. My noble friend Lord James of Blackheath sought to get to the bottom of several issues, but we doubt that my noble friend’s proposal will assist us in dealing with the problems mentioned by many of the speakers in this debate.

I now turn to the amendment from my noble friend Lord Goschen. He alluded to a number of matters on which I can now inform the Committee. This amendment brings to our attention the problem of fly-tipping. Like littering from vehicles, this is another example of individuals having little care or concern about the impact of their actions on the environment.

I am pleased to be able to reassure my noble friend that there are currently seizure and disposal powers in respect of vehicles used for illegal waste disposal. These are set out in Section 6 of the Control of Pollution (Amendment) Act 1989 and they apply in Scotland, England and Wales. However, we will be improving on these powers when we commence provisions in the Clean Neighbourhoods and Environment Act 2005 to repeal and replace them.

The new, wider powers relate to the seizure of vehicles used or about to be used in the commission of offences under Section 33 of the Environmental Protection Act, which relates to the unauthorised deposit of waste

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and includes fly-tipped waste, under Section 34, which imposes a duty of care to ensure that waste is transferred to an authorised person, and under Regulation 38(1) or (2) of the Environmental Permitting (England and Wales) Regulations 2010, which require waste operations to be carried out in accordance with a permit. It will also make it easier for local authorities and the Environment Agency to exercise their powers—for example, by removing the need for a warrant before seizure and for the retention of the vehicles pending investigation or completion of court proceedings.

The new, wider powers also provide for the forfeiture of seized vehicles following convictions for offences under Section 33(1) of the Environmental Protection Act or Regulation 38(1) of the Environmental Permitting (England and Wales) Regulations. The new Environmental Protection Act powers have already been commenced in relation to Wales and are in the process of being commenced for England. The related secondary legislation is in the process of being drafted and finalised. Subject to the normal clearance procedures, these powers are due to be brought into force as early as possible in 2014. Given that the powers sought by my noble friend’s amendment already exist and are in the process of being improved, I do not think the amendment is necessary and I hope that he will feel able not to press it.

6 pm

Lord Marlesford: My Lords, it really is not good enough to say, as my noble friend has said, “We can’t do everything, so we should do nothing.” If we took what he said literally, absolutely nothing would happen this side of the election. That is not an impressive record for any Government to stand on. I wish one of the legal experts would intervene, but I do not believe that it would be seen as disproportionate or unfair for the keeper of a vehicle to face a small and moderate civil penalty fine of about £80 for having a vehicle from which litter is thrown if that would act as a deterrent.