Anti-social Behaviour Bill

HL Deb 12 November 2003 vol 654 cc1437-68

6.19 p.m.

Baroness Scotland of Asthal

My Lords, before the Deputy Speaker calls the next group of amendments, I have it in command from Her Majesty the Queen to acquaint the House that, Her Majesty having been informed of the purport of the Anti-social Behaviour Bill, has consented to place her prerogative and interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

Bill read a third time.

Clause 14 [Security of tenure: anti-social behaviour]:

Lord Bassam of Brighton moved Amendment No. 1: Page 14, line 21, at end insert—

"( ) Section 83 of that Act is amended as follows—

1. (a)in subsection (1) for the words from "the possession" to the second "tenancy" substitute "an order mentioned in section 82(1A)";
2. (b)in subsection (2)(b) for the words from "an order" to "tenancy" substitute "the order";
3. (c)after subsection (4) insert—
• "(4A) If the proceedings are for a demotion order under section 82A the notice—
1. (a)must specify the date after which the proceedings may be begun;
2. (b)ceases to be in force twelve months after the date so specified.";
4. (d)in subsection (5) for "or (4)" substitute "(4) or (4A)"."

The noble Lord said: My Lords, at Report, the noble Lord, Lord Avebury, raised the issue of whether landlords were required to issue a notice to tenants informing them of the intention to seek a demotion order.

Demotions seek to be a preventive tool, as well as a final warning to tenants. In some cases, only the threat of loss of security of tenure is sufficient to make tenants realise the seriousness of their actions. Receiving a notice of the landlord's intention to seek demotion will impress upon the tenant that the landlord means business. In some cases, it may be sufficient on its own to bring about a change in behaviour and enable the landlord to avoid legal action altogether. Amendments Nos. 1 and 2, therefore, require landlords to serve notice before issuing demotion proceedings and specify the information which the notice should contain.

I am most grateful to the noble Lord, Lord Avebury, for bringing this matter to our attention and enabling the Government to bring forward these amendments.

I shall refrain from making any comments on the amendments grouped with Amendments Nos. 1 and 2 until they have been spoken to by the noble Baroness, Lady Hamwee. I beg to move.

Baroness Hamwee

My Lords, I must apologise to the House regarding Amendments Nos. 3 and 4. I noticed last night that, in translation, an error had crept in. I was about to ask for them to be withdrawn but there was a conversation with the Bill team and I understand that the Minister has an answer to what the amendments should have been. Given that this is the last stage of the Bill, I am grateful for his help. However, I apologise to all concerned. The amendments should say "should only" instead of "shall"—it makes rather a difference.

The amendments are to the clause covering proceedings for possession. They were tabled to make a request for guidance to the effect that fast-track eviction proceedings available for demoted tenancies should be used not for any reason other than for further anti-social behaviour.

We referred to this issue at Report; I expressed concern that tenants whose tenancy had been reduced to a demoted tenancy could, at the next stage, lose their homes as a result of a breach of more stringent tenancy conditions such as rent arrears. I am told by Shelter that this happens in the case of tenants placed on introductory or starter tenancies, where there are many parallels.

At Report, the noble Lord, Lord Bassam, suggested that a landlord who put his energy into seeking a demoted tenancy would do so because it would be a real chance to work with the tenant to improve behaviour. Of course, we all hope that that would be the effect of demotion. The noble Lord said that that kind of landlord would not subsequently seek to end the demoted tenancy on a whim. I am told by Shelter that it would like to share the Minister's view but, on the basis of its experience, it is unable to do so. So I am asking for an assurance that guidance will make it clear that final possession of a demoted tenancy should be sought only for further behaviour capable of causing nuisance or annoyance.

It is easy for landlords to evict tenants under the parallel introductory tenancy regime. The court there has no discretion and the landlord simply follows the fast-track procedure. I hope that the Minister can provide some assistance at this late stage.

Lord Avebury

My Lords, I thank the noble Baroness, Lady Scotland, and the noble Lord, Lord Bassam, for listening to what we said about demotion orders. I thank the noble Baroness in particular for the two letters she wrote on the subject— one to myself on 5th November and one to my noble friend Lady Hamwee on 11 th November. They set out very clearly how the Government saw this development occurring and how the threat of the demotion order would, in many cases, be quite sufficient to enable the tenant to comply with reasonable conduct and not to need the imposition of the demotion order.

As a result of the Government's amendment, we very much hope that many tenants who would otherwise have received demotion orders will be heedful of the notice which will precede it and it will never become necessary to serve the order. We are most grateful to the Government for the consideration of the arguments that were made on Report.

Lord Bassam of Brighton

My Lords, I am grateful to the noble Lord, Lord Avebury, for his kind words. I pay tribute to the noble Lord for the way in which he has conducted himself during the course of the Bill's proceedings in raising important and sharp points.

I shall now respond to Amendments Nos. 3 and 4.1 suppose, in a sense, I am agreeing with the noble Baroness that her amendments are defective. They would not achieve their aim, which appears to be that demoted tenancies might be ended only for a further instance of anti-social behaviour.

Placing the amendments in Clause 16 is an error. Clause 16 deals with the discretion a court may exercise, while the amendments seek to deal with the discretion that a landlord may exercise. Clause 16 deals with the court's discretion to grant a possession order on the existing grounds of nuisance under Section 84 of the Housing Act 1985 in respect of secure tenants or under Section 7 of the Housing Act 1988 in respect of assured tenants.

The amendments are rather curious in respect of local authority demoted tenants, because Section 84 of the Housing Act 1985 does not apply to the ending of a demoted tenancy because demoted tenants are not secure tenants. Section 7 of the Housing Act 1988 does apply to demoted assured shorthold tenants but, if the landlord was seeking possession using ground 2 of Schedule 2 to the Housing Act 1988, he would already need to provide evidence of anti-social behaviour. It would then be a matter for the court to decide whether to exercise its discretion to grant the possession order.

Irrespective of the drafting issues, I can see that the noble Baroness is seeking to require landlords to act in accordance with statutory guidance to the effect that the landlord should seek possession of a demoted tenancy only where there has been a further instance of anti-social behaviour rather than for any other reason, such as rent arrears.

The Government do not support such an approach in any event. A demoted tenancy is just that—a lesser form of tenancy where the tenant has forfeited certain rights. Once those rights are forfeited, it is our intention that tenants can regain them only by proving that they are responsible enough to be in receipt of those rights. That includes a general obligation to maintain their tenancy responsibly.

Landlords seeking to end a demoted tenancy do not need to use the "nuisance" grounds for possession in any event. Both local authority demoted tenancies and demoted assured shorthold tenancies can be ended without proof of anti-social behaviour. In the case of local authority demoted tenancies, the landlord has to follow the procedure set out in the new Sections 143D, 143E and 143F, introduced into the Housing Act 1996 by Schedule 1 of the Bill.

In the case of demoted assured shorthold tenancies, registered social landlords are automatically entitled to a possession order if they have given a required notice under Section 21 of the Housing Act 1998. That is usually a two-month notice. For the demoted tenancy to have a deterrent effect, tenants must be under no illusion that the effect of demotion orders is that they receive a very insecure form of tenancy. The onus is then on them to prove to their landlord's satisfaction that they are responsible tenants. If the landlord is not satisfied for any reason, including the accumulation of rent arrears, the tenancy may—and "may" is the important word—be ended swiftly.

I hear what the noble Baroness says on the matter. There is a disagreement between us, but in this grouping we have gone some way to helping noble Lords on the Liberal Democrat Benches. I am grateful to our colleagues from the Liberal Democrat Benches for their support in part of what they are doing, but there are areas of policy in which we frankly disagree; and this is one of them.

On Question, amendment agreed to.

6.30 p.m.

Lord Bassam of Brighton moved Amendment No. 2: Page 15, line 1, at end insert—

• "(4A) The court must not entertain proceedings for a demotion order unless—

1. (a)the landlord has served on the tenant a notice under subsection (4B), or
2. (b)the court thinks it is just and equitable to dispense with the requirement of the notice.

• (4B) The notice must—

1. (a)give particulars of the conduct in respect of which the order is sought;
2. (b)state that the proceedings will not begin before the date specified in the notice;
3. (c)state that the proceedings will not begin after the end of the period of twelve months beginning with the date of service of the notice.

• (4C) The date specified for the purposes of subsection (4B)(b) must not be before the end of the period of two weeks beginning with the date of service of the notice."

On Question, amendment agreed to.

Clause 16 [Proceedings for possession: anti-social behaviour]:

[Amendments Nos. 3 and 4 not moved.]

Clause 36 [Interpretation]:

Lord Dixon-Smith moved Amendment No. 5: Page 30, line 1, leave out "a district council,

The noble Lord said: My Lords, the Government made a valuable concession at Report stage, in relation to dispersal orders, when they agreed that dispersal orders could be made only by the police in agreement with the relevant local authority. That was most welcome. I can well understand the Government's reluctance for more than one local authority to be involved in the agreement. However, the question that I am not sure that we addressed with sufficient keenness is whether it is appropriate in all circumstances that that authority is the district council or the county council. I shall seek to argue that it should be the county council, if only to have the pleasure of hearing the Minister telling me why it should be the district council.

The fact of the matter is that in shire areas where there are two tiers of authority, the bulk of local government services are provided by the county council. County councils have the sole statutory responsibility at local authority level for services that will largely be involved with the key groups of people who are most likely to be dispersed. They have sole responsibility for young offenders, for social care including that of vulnerable adults and people with mental health issues, and for child protection and truancy. Those people would all be prime candidates for the possibility of being required to move on.

County councils have the lead statutory responsibility for the provision of youth offending services in a local authority area. In the case of juveniles who might offend against an order to move on by subsequently coming back into the area, the Minister made it clear on Report that, as they cannot be locked up, they will be subject to community sentencing, a fine, or a discharge if that were appropriate. The county councils have the key function in relation to youth justice, so it could be questioned whether they were the appropriate authority. It would be much more appropriate if orders designating areas in which people could be dispersed were made immediately with the authority with the responsibility for providing the statutory service to enforce the consequences of the orders being broken.

County councils are also responsible for co-ordination of the national drug strategy and local drug action teams, and so on. There is a long list of reasons why the county councils, which deal with the relevant local government services, are going to be most affected by the dispersal orders if anything goes wrong. I thought it was worth moving the amendment in order to get county councils involved in the process of designating areas where people can be dispersed. I beg to move.

Baroness Scotland of Asthal

My Lords, I understand why the noble Lord has tabled Amendments Nos. 5 and 6, but they do not deliver exactly what he would like. The amendments would require the police to seek agreement from the county council, not the district council, before granting an authorisation.

Amendment No. 5 would remove the need for a district council in a two-tier area to give its agreement to the authorisation of the use of powers under Part 4 of the Bill. Amendment No. 6 would replace the need for district councils to give their consent with a requirement for county councils to give their consent instead. When we made our last amendment, I understood the need to include county councils. However, I am not sure that it is right in this case to expunge district councils.

Lord Dixon-Smith

My Lords, for the sake of clarity, I should say that I put the amendments deliberately in that form because of the Government's reluctance to have to consult more than one local authority.

Baroness Scotland of Asthal

My Lords, we have considered carefully the points made by the noble Lord in previous debates and this evening. We also recognise that organisations such as the County Councils Network are seeking to work constructively with the Government to drive forward and to tackle anti-social behaviour. We are very grateful to those organisations for their efforts.

We are keen to encourage county councils to play their proper part and welcome their engagement in these issues. However, on this specific point we remain of the view that the authorisation process as set out in the Bill is the most appropriate. District councils are those bodies that sit on crime and disorder reduction partnerships in all areas and are therefore, we respectfully suggest, best placed to work directly with the police when deciding whether an authorisation is needed in a particular area.

In addition, we may be talking about authorising the use of dispersal powers in relatively small parts of a village, town or city. In such circumstances the lower-tier authority—the district council—is likely to be best placed to assist the police in making that judgment. With that explanation, I hope that the noble Lord will recognise that the Government have sought to address the issues that he has raised and that in no way do we seek to diminish the importance of county councils, or the work that they do with such success.

Lord Dixon-Smith

My Lords, I can assure the noble Baroness that at no time did I think that the Government had any intention of diminishing the authority and responsibility of county councils. I also hear what she said about the crime and disorder partnerships and working with district councils, which creates a close relationship between the district councils and the police.

There is a secondary problem which I probably should have mentioned but did not. None the less, it could be relevant. In all instances, one could disperse people across local authority boundaries and thereby export a problem from one borough to another. However, that applies equally to areas where there is, so to speak, single-tier local government. So I suppose that we will have to live with that.

I hear what the noble Baroness said on the matter. I do not wholly agree with her, but I suspect that we will have to agree to disagree on this matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 6 not moved.]

Clause 37 [Anti-social behaviour orders]:

Baroness Scotland of Asthal moved Amendment No. 7: Transpose Clause 37 to after Clause 91.

The noble Baroness said: My Lords, I should like to speak to Amendments Nos. 7,8,11,12,13,14 and 15. These amendments move all of the clauses in Part 5 to the end of the Bill. That is in accordance with the current drafting convention that dictates that parts of Bills entitled "Miscellaneous Powers" should be placed at the end. I beg to move.

On Question, amendment agreed to.

Clause 38 [Certain orders made on conviction of offences]:

Baroness Scotland of Asthal moved Amendment No. 8: Transpose Clause 38 to after Clause 91.

On Question, amendment agreed to.

6.45 p.m.

Clause 39 [Penalty notices for disorderly behaviour by young persons]:

Baroness Linklater of Butterstone moved Amendment No. 9: Page 33, line 6, at end insert — ( ) After section 2(3) insert— (3A) A penalty notice issued to a person under 18 must be given in a police station."

The noble Baroness said: My Lords, I rise to return for the last time to the issue of fixed penalty notices when applied to children and to speak to Amendments Nos. 9 and 10. The purpose of the first amendment is to ensure that the safeguards of the Police and Criminal Evidence Act 1984 code of practice C are on the face of the Bill. We feel that that is very important for this age group. The safeguards are there for very good reasons and recognise that 16 year-olds do indeed need to be managed in a different way and that being able to understand the full import of a fixed penalty notice is extremely important. On Report, the Minister said that to do so would be to reduce the effectiveness of the whole scheme because it would restrict the discretion of police officers. She also believed that it would be perfectly proper to issue a notice elsewhere provided that these young people fully understand the process.

It is precisely that proviso, coupled with the age of the young person, that PACE exists to cover and should of course be observed, and it can only be assured at a police station with an appropriate adult present. I have heard no argument at all to justify the move to disregard PACE in this context and I believe that it would be wrong to disregard it now. That is not to question the discretion of the police officers at all, but merely to recognise the important fact that these are young people who are being dealt with. I shall not rehearse the same arguments as I did last time in relation to the discriminatory financial implications of the fining process. I was reassured somewhat by the Minister on that point. However, I should none the less be grateful if she would explicitly confirm that lower penalties will indeed be set for 16 and 17 year-olds.

If the Minister is not prepared to amend the Bill, as I fear she may not be, I hope that she can assure me that the presumption will be that fixed penalty notices for under-18s will be issued only in a police station and in the presence of an appropriate adult; that the police operation guidance will clearly state the need to conform to the Police and Criminal Evidence Act code of practice C in respect of children and young people; and that the guidance will set out further preconditions for under-18s and their ability to understand the implications of the notice. I also understand that the Children's Society and other children's charities would welcome an assurance that they will be consulted on such guidance. I am seeking a lot of assurances. I dearly hope that we may get them and sleep easier in our beds as a result.

The purpose of my second amendment is to remove the powers of the Home Secretary to reduce further the age at which fixed penalty notices can be issued from the age of 16 to as low as 10 years old by statutory instrument. Having discussed it very briefly with the Minister and having thought about it further, I am afraid that I remain very uneasy about this device of keeping the door open to something that should not be allowed to happen and that she did not directly address when it was discussed on Report.

I must say, first, that I support the application of fixed penalty notices to adults. Indeed, the principle of dealing swiftly with low-level anti-social behaviour in this way—which deals with the problem at source, in an effective place; which hurts people's pockets, a very sensitive place; which does not waste valuable police time; and which does not leave the offender with a record—is admirable, and even more so since we are told that the outcome of the pilots has been successful. I assume that the results will be published in the near future so that we can see exactly how they were assessed.

We understand that the scheme is now to be extended to 16 and 17 year-olds—the subject of my first amendment. However, most crucially, the Bill states that the same sanction can in future, following the results of the next piloted stage, be further applied by statutory instrument to 10 year-olds. It is that to which I feel I must return one more time.

The noble Baroness said when we spoke about this on Report that this penalty will act as a deterrent. I wonder how real a deterrent such a penalty could possibly be to a 10 year-old who would not be paying the penalty anyway and who is unlikely to understand what it is all about or be able to give informed consent as code C of PACE requires. Nor do I see how the pilots on 16 and 17 year-olds will shed any light on how appropriate the sanction would be for children as young as 10. They are simply not in the same ballpark. What parents would punish a 17 year-old and a 10 year-old in the same way? It would not be on.

The principle at issue is that the extension of the fixed penalty notice scheme in this way is not acceptable because it is extending an appropriate adult sanction to children, which is not appropriate or acceptable. As I have said before, children are not small adults and should not be treated as such however awful and unacceptable their behaviour. That is why we have a youth justice system. That is what our system of humane, just and practical ways of dealing with children is all about. It can be argued that this is a relatively insignificant issue to be pursuing where the offences are minor and the sanction simple. However, the principle is not simple.

The other core issue is that the process of statutory instrument is not the way to go about the extension of the penalty. So this issue, with an important principle behind it, could go through on the nod, and that is what I take issue with. It is a matter that I believe merits proper consideration through the proper parliamentary process.

I have been urged to return to this issue one more time as the feeling is so strong among all the children's organisations that this is an inappropriate way to go about imposing an inappropriate sanction. I hope that the Minister will be able to give some reassurance that this matter will be given the proper time and attention which it deserves before it is allowed to be introduced into the armoury of the police.

Finally, while I am on my feet, I would like to raise one more issue. It is to do with some remarks that were made at Second Reading when I commented on the fact that the Opposition Benches were proposing to discuss only firearms and high hedges—both important matters— while totally ignoring all the other very substantive and serious issues that have subsequently been occupying us all for the past few weeks. That appeared to sting the noble Baroness, Lady Gardner of Parkes—I only subsequently realised how extremely appropriate her name is for her chosen campaign in the cause of high hedges—into a response. While she agreed—at col. 1120 of Hansard—with, neither the tone nor most of the content",

of my speech—a view to which she is absolutely entitled and with which many may have sympathy—she also claimed that I had said that the Bill was, wrongly conceived and should never have been brought before us".—[Official Report, 18/7/03; col. 1121.]

In fact, what I said was as follows: When the Government and the Home Secretary find us on these Benches resisting some of the measures in the Bill, it is not because we disagree with the basic proposition. What is at issue is the ways and means of effectively and constructively dealing with those problems, and of how we perceive and manage those predominantly young people who display no respect, recognition or concern for the rights, freedoms, privacy or feelings of others".—[Official Report, 18/7/03; col. 1097.]

We have indeed had some interesting and illuminating debates about the means towards agreed ends covering both practicalities as well as some important principles. I should hate to think that anyone, including the noble Baroness, Lady Gardner, believed that I or anyone on these Benches do not abhor anti-social behaviour, just as the Government do, even as we argue for the retention of important human rights on the one hand and seek— through our debates, which have been civilised and admirably piloted by the Minister—the most effective way of addressing the causes, the remedies and future prevention on the other. I beg to move.

Baroness Scotland of Asthal

My Lords, I warmly welcome the statement of affirmation given by the noble Baroness in relation to the Bill. From time to time there may be some who may be forgiven for not getting entirely that impression, so I am glad that the noble Baroness said it so clearly. It is, of course, not only necessary to want to do good; one has to deliver and do that which enables good to be done. That is what we seek to do. I agree with the noble Baroness that much good work has been done in Committee and throughout the Bill's passage. I thank her warmly for her compliments which are not merited but are gratefully received by me none the less.

I turn to Amendments Nos. 9 and 10. I understand why the noble Baroness pursues the matter but I regret to tell her that I still think that these issues are misplaced. The effect of Amendments Nos. 9 and 10 would be that under-16 year-olds would get a criminal conviction whereas, because of the proposals that we have made in the Bill, children over the age of 16 would not. I am sure that that is not the noble Baroness's intention.

Of course at this stage we could have brought forward primary legislation in relation to younger children if we thought that was merited. However, we do not think that it is. It is clear from the information that we have at the moment that including 16 and 17 year-olds is merited. We shall look at the information that comes from the pilots and the operation of the system in relation to that younger age group. If we find that there is evidence to justify coming back to the House and using the affirmative resolution procedure to say, "We should like to reduce this age limit even further to 15 year-olds, 14 year-olds or whatever", we have the ability to do so. Therefore, it is not right to say—as the noble Baroness suggests—that we are going to drop the age immediately to 10 year-olds. That is not our intent. We wish these procedures to be used judiciously and well and only if they are merited.

We appreciate the views expressed today and on previous occasions but we firmly believe that penalty notices for disorder have an important role to play in tackling anti-social behaviour by juveniles. They provide a valuable addition to existing powers and in our view complement them. They are aimed at relatively low level anti-social behaviour of the kind that causes a great deal of annoyance to the wider community. Juveniles who cause annoyance are not the sole preserve of the poor. Some very rowdy, disagreeable young people come, regrettably, from the very best of families. The measure applies to all those who behave badly in the way that we are discussing. That behaviour needs to be addressed. We have not changed our view about the need for this sanction to be available to the police in dealing with juveniles under 16 years of age. Extension of the scheme would give the police the power to tackle this behaviour. A notice will act as a deterrent but not leave the young person with a criminal conviction.

Baroness Linklater of Butterstone

My Lords, before the noble Baroness goes any further, I ask for reassurance on the matter. If she is continuing to consider dropping the age boundary to 10, will she also consider carrying out further pilots? Will she give an assurance that she would consider further pilots before the age limit was dropped once again?

Baroness Scotland of Asthal

My Lords, the modus operandi which we have adopted up until now is to have the power, pilot it, see whether it works—the noble Baroness will know that that was what we did with regard to adults—hone it to try to refocus it so that we get the best results and then seek to roll it out. We shall do the same kind of pilot with regard to 16 to 17 year-olds. It is a case of "suck it and see". We want to get it right. We need to be very careful to ensure that the scheme works. We are considering very much the utility of what we are doing.

We believe that the fact that these penalty notices do not end in a conviction is an important factor in their favour. The noble Baroness, others on the Liberal Democrat Benches and my noble friend sitting behind me, who are very interested in and committed to children's issues, have made the point time and time again that it is important to get children on the right road, not give them a conviction early and deal with them properly. This facility is our way of doing that. The behaviour is tackled, the offender sees the results of his or her behaviour but gets a chance to mend his ways and keep out of the criminal justice system.

Excluding under-16 year-olds from the scheme would mean that they could be dealt with only in a way that would leave them with a record, whereas offenders over 16 who accepted a penalty notice would not be left with a record. In our view it is right to allow those under 16 the same opportunity to keep out of the criminal justice system. At the same time communities want the police to take action against anti-social behaviour committed in their neighbourhoods and this will enable the police to do that.

The Association of Chief Police Officers has urged the Government to extend the scheme to juveniles. As your Lordships will know, we intend to pilot the scheme first on 16 and 17 year-olds to see whether it could be usefully applied to younger age groups. I assure the noble Baroness that we shall pay very careful attention indeed to how it is working with that group when deciding whether to use the power to extend the scheme to under-16s.

Parents should take responsibility for their children's behaviour and they should be expected to pay the penalty on their children's behalf. That is no different from the current position when a court fines a child under 16.I am really asking: do you want a conviction or not? I am sure that the answer that the noble Baroness would give is that none of us really wants these children to have a conviction unless it is necessary. I ask the noble Baroness to consider that point.

I remind the House that the decision of the Home Secretary to lower the age will require the agreement of both Houses. The Delegated Powers and Regulatory Reform Committee did not oppose these powers. The noble Baroness will remember that the beauty of an affirmative resolution procedure is that either the House agrees to it or it strikes the order down. That option would be available if the House felt that the order was not merited. Penalty notices for disorder are intended primarily as an alternative for the police for low level anti-social offending such as being drunk and disorderly. The police final warning scheme will still remain the main disposal for under-18s. Supplementary guidance will be provided to the pilots to make it clear that penalty notices for disorder are an alternative option where they are thought a sufficient deterrent.

The noble Baroness asked for assurance that the safeguards of the Police and Criminal Evidence Act 1984 would be available to those under 18 years of age who were given a penalty notice for disorder. For both adults and juveniles, the application of PACE and the codes of practice under it depends on the circumstances of the individual case. PACE and the codes of practice offer protection to individuals who are arrested, detained and interviewed by the police. A person must normally be taken to a police station as soon as possible after he is arrested, and any interview should take place at the police station. Code C offers particular safeguards for juveniles, including the presence of an appropriate adult at the police station.

Under Section 2 of the Criminal Justice and Police Act 2001, a constable can give a penalty notice for disorderly behaviour to a person if the constable has reason to believe that that person has committed a penalty offence. In many cases, the constable will have reason to believe that a juvenile has committed a penalty offence without arresting or interviewing him. For example, the constable might have witnessed him throwing stones at a train or consuming alcohol in public.

The idea of penalty notices for disorderly behaviour is to give the police a quick and effective means of dealing with such cases. In them, if I may respectfully suggest it, it would be a waste of time to arrest the juvenile and take him to the police station, and the presence of an appropriate adult would not serve any purpose. Once he has been given the penalty notice, the juvenile will still be able to discuss with his parents and others whether to pay the penalty or make a request to be tried. Under the proposals, parents will be notified of the issue of the notice. They will have 21 days to either pay or ask the court for a hearing. We believe that that both protects their rights and ensures that the child has ample opportunity to understand what the notice was issued for and the subsequent process.

There are other cases that are less clear-cut, in which the constable may not be sure whether a penalty offence has been committed. For example, it may not be apparent whether the juvenile is drunk or unwell. In those cases, the constable might wish to talk to the juvenile about whether he has committed an offence. That would constitute an interview for the purposes of PACE codes, and the juvenile would have to be taken to a police station and interviewed in the presence of an appropriate adult.

I hope that those assurances help the noble Baroness. I cannot say anything very much about the levels of fine. Those matters will be taken into consideration, and there will be guidance. We would be happy to send the children's charities copies of the draft guidance for pilots for 16 and 17 year-olds, so that they can comment on them. We would take that into account. The level of fine that we impose will be the kind of issue explored as a result of the pilots for 16 and 17 year-olds. We have not at the moment fixed a set level, but I am sure that we can take those issues into account.

I hope that the noble Baroness understands a little more clearly why we think the provision a useful hybrid. It does not need the full panoply, but we hope that it will have a beneficial effect. It will be quick and the young person will know that their behaviour is disapproved of, albeit that they will not be treated so harshly that they end up having a conviction that may besmirch their career prospects and character unnecessarily for the rest of their life.

7 p.m.

Baroness Linklater of Butterstone

My Lords, I thank the Minister for once again giving such a full and thoughtful response. I still feel that there is an inappropriate connection between the approach to children as young as 10 and teenagers as old as 17, albeit that the provision is a way, as she said, of possibly avoiding some sort of conviction. However, it boils down to a failure to make that kind of crucial distinction. We must always keep the needs of children in mind, however we go about dealing with their offences.

Although I recognise the possibility of affirmative resolution if such a situation were to be revisited, I understand—I have not had direct experience—that it is very rare indeed for an affirmative resolution to be voted down. Therefore, something would simply go through, so not much difference would be made in reality. However, I am very grateful for the Minister's offer to send draft guidance to the children's charities. I am sure that they will welcome that concession. In view of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 10 not moved.]

Baroness Scotland of Asthal moved Amendment No. 11: Transpose Clause 39 to after Clause 91.

On Question, amendment agreed to.

Clause 40 [Curfew orders and supervision orders]:

Baroness Scotland of Asthal moved Amendment No. 12: Transpose Clause 40 to after Clause 91.

On Question, amendment agreed to.

Clause 41 [Extension of powers of community support officers etc.]:

Baroness Scotland of Asthal moved Amendment No. 13: Transpose Clause 41 to after Clause 91.

On Question, amendment agreed to.

Clause 42 [Report by local authority in certain cases where person remanded on bail]:

Baroness Scotland of Asthal moved Amendment No. 14: Transpose Clause 42 to after Clause 91.

On Question, amendment agreed to.

Clause 43 [Proceedings under section 222 of the Local Government Act 1972: power of arrest attached to injunction]:

Baroness Scotland of Asthal moved Amendment No. 15: Transpose Clause 43 to after Clause 91.

On Question, amendment agreed to.

Clause 47 [Closure of noisy premises]:

Lord Avebury moved Amendment No. 16: Page 39, line 10, at end insert— ( ) The Secretary of State may issue guidelines as to what constitutes a public nuisance in terms of duration and volume of noise.

The noble Lord said: My Lords, the reason for tabling the amendment at such a late stage in the Bill is that we have only just had sight of the research conducted by MCM Research on behalf of Defra on noise from licensed premises. It would have been very useful to have it when considering the then Licensing Bill, when the issue caused a lot of discussion in the House at various stages. The research was commissioned by Defra a year ago, almost exactly to the day, to assess the potential impact of the Licensing Act on noise disturbance related directly or indirectly to the operation of licensed premises.

The report was finally published to coincide with the UK Noise Forum conference held on 29th October. Unfortunately, no slot was provided during the day for discussing the report, and I understand that the noble Lord, Lord Whitty, who was billed to attend the conference in the afternoon, had to cry off at the last minute, so there was no ministerial statement apart from a press release from his department. Since then, he told me in answer to a Question that any comments that the public wished to make on the MCM report would be noted, although he did not go so far as to say that the Government would do anything about them.

Unfortunately, the consultants, the majority of whose clients were alcohol-related, were unable to predict what the effects of the Licensing Bill would be. They had to recommend merely that further research should be conducted on the frequency and nature of noise disturbance caused by patrons after they have left licensed premises, before and after the introduction of the new licensing regime under the Act. In other words, no one, least of all the consultants commissioned by the department, has the faintest idea whether one of the declared purposes of the Licensing Act—Section 4(2)(c) deals with, the prevention of public nuisance"—

is going to be achieved.

Clause 47 of the Bill comes partly to the rescue by giving the local authority a closure power where, a public nuisance is being caused by noise coming from the premises".

According to the regulatory impact assessment, that should produce a decrease in the number of complaints of noise and nuisance by residents living near such premises. The police already have similar but not identical powers under the Licensing Act 1964, as amended by Section 17 of the Criminal Justice and Police Act 2001. It would be useful to know from the noble Lord, Lord Bassam, the reason for the variation in the wording of the powers in this Bill from that in Section 17 of the 2001 Act.

Unfortunately, the clause deals only with noise from inside the premises. As MCM Research said, many of the respondents considered that the disturbance in residential areas caused by patrons after they had left the premises would continue to be an intractable problem. The noble Lord may remember that we had long and detailed discussions on that during proceedings on the Licensing Bill, led principally by my noble friend Lord Phillips of Sudbury. He asked me to say that he, too, is very concerned that Clause 47 does not tackle the problem, about which we then spoke, of the menace of noise nuisance caused not by people who are inside the clubs and discos, but by the patrons after they have left those establishments.

The consultants suggested that national guidelines should be developed on the definition of noise disturbance, together with appropriate assessment criteria and measurement procedures. They said that those should allow for environmental factors and take into account the times at which noise is generated, which may affect individual residents' perception of the nuisance. For example, what is acceptable at 8 p.m. or 9 p.m. would be quite intolerable at 3 a.m.

Although noise from revellers outside clubs and discos can be dealt with as a statutory nuisance only when it reaches a much higher threshold, it would still be useful to have some idea of the level at which the police could take action against it under existing legislation.

The amendment would allow the Secretary of State to issue guidelines. I hope that we may have some indication that, as far as Clause 47 is concerned, those guidelines will be quantitative, so that local authorities will be able use the powers in the confident knowledge that their actions will be supported by scientific measurements.

The Institute of Acoustics has already done some work on what constitutes unacceptable disturbance and its advice might be useful in that regard. The institute's good-practice guide on the control of noise from pubs and clubs does attempt a definition on which the guidance for the clause might draw.

In many of our towns and cities, people's lives are being made a misery by the metastasis of the all-night booze economy into what used to be quiet residential neighbourhoods. That will be now be further aggravated by the Licensing Act 2003. Let us offer those people a little reassurance that there will be a firm upper limit to the nuisance that they have to endure. I beg to move.

The Lord Bishop of Derby

My Lords, the problem of noise is in part a technical matter, and its regulation by the consultants commissioned by Defra is even more technical, so I do not intend to stray into that territory. However, our cities and towns are now increasingly places where the success of the entertainment industry is a part of their future prosperity. In my own county of Derbyshire, there has been much regeneration of towns, and of the city of Derby in particular, thanks to new clubs, restaurants and other entertainment venues.

The Church does not wish to be a killjoy in that matter, but it is important that we have confidence in the licensing of such places. In dealing both with the issue of law and order outside clubs and pubs and with the problem of noise, it is important that the regeneration of urban economies through the entertainment industry is balanced against the need to preserve diverse communities where people's different needs and rights are respected. I have in mind particularly the disturbances experienced by one young vicar and his family, serving in a deprived town centre and committed to living among those whom he serves. At times, they have been almost driven from their home. The voice, indeed the noise, of local residents has been faint and drowned out in the planning process. In the context of noise nuisance, it would be helpful if the Minister were able to report on any progress in splitting A3 user class— the distinction between teashops and nightclubs.

The faint voices of local residents have echoed apparently unheard as licensing hours for surrounding pubs and clubs have been successively extended into the early hours. That has led to regularly unacceptable traffic flows, levels of noise and loutishness after midnight.

The amendment tabled by the noble Lord, Lord Avebury, speaks to that need and I welcome it. There can be no quarrel with clear guidance on what constitutes a nuisance in terms of noise, always providing that data and guidelines lead to action.

7.15 p.m

Lord Monson

My Lords, I am wholly sympathetic to what the noble Lord, Lord Avebury, is trying to achieve, but is not the drafting of the amendment slightly defective? It refers to the duration and volume of the noise, but not to the timing of the noise. As he indicated himself, a certain volume of noise measured in decibels that would be perfectly acceptable at 6 o'clock in the evening would be quite intolerable at 3 o'clock in the morning. The amendment as drafted does not quite take that into account.

Lord Bassam of Brighton

My Lords, I am grateful to the noble Lord, Lord Avebury, for bringing forward the amendment even, as he said, at this late stage. It is valuable to have further discussion on the subject, but I am not entirely confident that I will able to answer all his points and the points that were raised by the right reverend Prelate. However, we will see where we get.

I am entirely in agreement with all noble Lords who have spoken on the matter. Having led a local authority for some 13 years, I can confirm that noise nuisance, particularly in and around the Brighton seafront, was always a problem, especially to people living in small streets close to a club—and it always will be a problem, because it is not easy to resolve. The policing, monitoring and careful management of those areas will be a major issue, because we increasingly live in a night-time economy, especially in places like Brighton and Blackpool. We should recognise that that brings benefits, but also considerable problems. In part, Clauses 46 and 47 aim to deal with exactly those problems and issues.

The clauses propose a new power for local authorities to issue closure orders of up to 24 hours on licensed premises to prevent a public nuisance. As the noble Lord, Lord Avebury, pointed out, they address activities within the premises, but less so without. I cannot answer the noble Lord's precise point about the variation in wording. I will have to reflect on that further as it has not been raised with us previously. However, I acknowledge the point and we will try to deal with it.

I would also like to congratulate the noble Lord on coming forward with an amendment that would provide the Secretary of State with more powers. That is an interesting departure from previous positions adopted by Members on the Liberal Democrat Benches. Their providing us with an opportunity to issue guidance is a blessing that 1 am loath to put on one side.

The decision whether a public nuisance is occurring should be left to the investigating environmental health officer's judgment, based on his skills, experience and training. I shall speak a little more about that in due course. Such a discretion would allow the investigating officer to take into account not only the volume and duration of the noise, but also the characteristics of the neighbourhood; the type and frequency of the noise; the time of day or—more likely—night when it occurs; and what alternative measures could be taken. He could also assess whether the licensee is taking reasonable steps to control the noise. That is an important consideration.

In the local authority setting, the relationship between the enforcers and those who are responsible for the management of premises is important. On visits that I have made in the past, I have seen how important it is that that relationship is developed. It enables both parties to understand the parameters of what is desirable and what can be achieved, and also what is right in the circumstances. Those judgments should be made according to the neighbourhood and surrounding premises.

It is our belief that the flexibility will allow officers to distinguish between a level of noise that might be appropriate for a nightclub in a busy city centre, but would almost certainly be inappropriate for a country pub in a quiet residential area—and to take account of those many issues where premises sit uneasily together.

The amendment seeks to provide the Secretary of State with the power to issue guidance to local authorities on setting and delivering effective noise control policies. That guidance is already there and available within the noise management guide. I am sure the noble Lord will know that previously the guide was produced by the Chartered Institute of Environmental Health in consultation and careful discussion with departments. Now it falls to Defra to work with the institute.

The guide is being jointly updated by Defra and the CIEH. I pay tribute to them. In an earlier professional incarnation, I spent a great deal of time with environmental health officers. The work they have done on noise and noise nuisance is most valuable. We believe it is right to concentrate our efforts on updating that guidance. It will provide the background thinking to the way in which enforcement takes place. The research will be valuable and will form part of the background information necessary to update the guidance.

A number of other points were raised and I shall try to deal with them in turn. The right reverend Prelate asked about planning changes to class A3 premises. The ODPM has brought forward the change suggested, but I need to provide the right reverend Prelate with more detail. I shall put that in correspondence to him and share it with all those who have taken part in the debate.

Clause 47 targets noise from premises and that will fall to the local authorities. As regards areas outside premises, clearly, the local authority enforcement officers will want to work closely with the police. They are, after all, responsible for dealing with noise in the streets. They have a range of powers already to deal with the order and supporting guidance, including, controversially, fixed-penalty notices. There is a working relationship and we expect that to develop. Furthermore, it falls to them to deal with the public order aspects of noise nuisance on the streets and in the community.

The noble Lord, Lord Avebury, asked about the Licensing Act and the ability which should exist to take account of the cumulative impact of a large number of premises, particularly clubs. The Licensing Act enables a licensing authority to make a statement in relation to the cumulative impact of licensed premises when it receives representations and complaints. It will allow it to refuse licences when, on balance, it believes that to be right, particularly where a new application comes forward. With the development of licensing legislation and bringing that together with other local authority licensing functions, we see greater coherence developing in the next few years. That has been a problem, as I am sure noble Lords with local government experience will readily acknowledge.

I am grateful to the noble Lord for tabling the amendment, but we do not believe that it will necessarily achieve his aim. Guidance is already available and it is being updated to take account of changes in legislation. In this instance, the way in which that is being drawn up through the CIEH officers working closely with Defra will best suit us, rather than having to give a new power to the Secretary of State. I hope that having heard that explanation the noble Lord will feel able to withdraw his amendment.

Lord Avebury

My Lords, the Minister may be surprised to learn that I did not believe that he needed my permission to issue guidance on this clause. My amendment was designed to tease out the guidance that the Secretary of State might issue. The Minister has been helpful in explaining what he believes will happen in the joint update between Defra and the CIEH.

I offer one qualification to the way the guidance has been formulated: it does not take into consideration the views of the residents. That has been the case throughout our discussions on the nuisance of noise. The right reverend Prelate mentioned it yet again in saying that there should be a balance between the need to regenerate a community and the needs of the local neighbourhoods which surround the developments. That is where we have not got the balance right. Although the environmental health officers are best competent to say what constitutes a nuisance, if the views of local residents are ignored there will not be harmony between them and the developers.

Lord Bassam of Brighton

My Lords, perhaps I may try to be a little more helpful. It will be important, particularly for local authorities as custodians of the policy and its enforcement, to have a view on the issue. I will undertake to ensure that the LGA is consulted in the development of guidance. I am sure that it would be in any event, but it is worth putting that on the record. The interaction between the local authorities as custodians and the local communities will be very important. However, one could ably argue that environmental health officers, because of their frontline jobs, are in touch with public opinion on these issues.

Lord Avebury

My Lords, the Ministers additional reassurance is most helpful because the LGA will be in touch with local residents. It will feel the electoral pressures of people who are dissatisfied with the arrangements that are made.

However, I do not accept the Minister's assertion that this is always an issue and always will be. There can be a balance of interests between the developers and local residents, even in a place such as Brighton of which he has considerable knowledge. That is no less the case in other places which do not spring to mind as great hot spots of entertainment; for instance, the cities of Derby or Bath. Many cities in England and Wales were formerly quiet cities where people went for the kind of entertainment to be found in, say, Bath. I do not want to typify Bath, but people went there to visit the Pump Room, the theatre, and so forth and did not expect to find large crowds of noisy revellers on the streets at 3 a.m. preventing them getting to sleep in the hotels.

That is the balance we must strike. The Minister's comments today may be of some reassurance to those who are suffering from the blight. I am therefore most grateful to the Minister for considering my proposal. I do not intend to press the amendment and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 61 [Sale of aerosol paint to children]:

Earl Attlee moved Amendment No. 17: Page 48, line 18, leave out second "an" and insert "a large

The noble Earl said: My Lords, in moving Amendment No. 17, I shall speak to Amendments Nos. 18 and 19. We are grateful that on Report the Minister was helpful to my noble friend Lord Dixon-Smith and accepted that 16 was a more appropriate age to limit the sale of aerosol spray cans than 18. At the Report stage, I tabled amendments which sought to deal with the problem in another way, but in order to save your Lordships' time, I did not move them. However, your Lordships now need to consider whether the sale of far smaller aerosol paint tins to youngsters still needs to be prohibited. Some companies, such as Humbrol, produce smaller-sized aerosol cans of 100 millilitres that are used for model-making and other arts and crafts. Aerosol cans of that size would be fairly ineffective for graffiti and, indeed, a 100-millilitre can of spray paint would hardly do very much for the "street cred" of graffiti artists.

The distinction between smaller-sized cans and the larger ones of 300 millilitres or more, which are commonly used for graffiti, is therefore important. It seems to me to be unnecessary to prohibit the sale of smaller-sized aerosols to those who are under the current agreed age limit. Doing so would adversely affect and demotivate children who are creatively inclined and who engage in constructive pastimes, such as arts and crafts.

The proposed amendment would allow those under the age of 16 who use aerosol spray cans lawfully to continue to be able to buy them. The amendment works by providing prohibition only for large spray cans defined as being over 125 millilitres. That would leave the smaller cans outside the scope of the Bill. I am sure that the Minister will find my amendment very attractive—even irresistible. I beg to move.

7.30 p.m.

Lord Bassam of Brighton

My Lords, I do not like to upset the noble Earl but my speaking note states "Resist". It could probably simply say "Resist" and leave it at that. I find this a somewhat incredible amendment. As it stands, Clause 61 seeks to outlaw the sale of aerosol spray paints to children in order to reduce incidences of graffiti. As the noble Earl explained, the amendments would limit the coverage of the clause to large aerosols only.

I confess that I cannot see the logic of the noble Earl's argument. Surely small aerosols are just as well suited—perhaps even better suited—to criminal damage as large ones. They can far more easily be concealed about one's person. I should have thought that the smaller aerosol can would probably be attractive to someone who was determined, as graffitists appear to be, to exercise his art—if one can call it that—more or less anywhere. I do not believe that the average graffiti artist is too worried about his street cred, other than ensuring that people can see the effect of his activities.

I also wonder how the noble Earl would see his proposal being policed. I believe it is extremely hard to see a way in which the amendment could work in any practical sense. If it were amended in this way, I cannot see that the clause would any longer take the tools of the graffiti trade, if it can be described in that way, out of the hands of children.

Therefore, on grounds of practicality and logic, I cannot see any place for this amendment in our Bill. I understand what the noble Earl is saying but I do not believe that the effect of his amendment on Clause 61 would be to provide a serious disincentive to young people in general to use Humbrol paints. Young people have used those paints for many years in the way in which I used them as a child without needing to indulge in acts of graffiti. Therefore, I cannot support the amendment and I hope that the noble Earl will withdraw it.

Lord Monson

My Lords, before the noble Lord sits down, does he not realise that 125 millilitres is no more than the size of a large glass of wine? One cannot cover very many walls with that volume.

Lord Bassam of Brighton

My Lords, if one carried a few of those cans, I am sure that one could make a pretty fine mess of a wall without trying too hard.

Earl Attlee

My Lords, I had a sneaking feeling that the Minister would come up with an argument along the lines that he has articulated. However, a youngster could also buy a king-sized magic marker pen, and the damage that such pens do is much in evidence on the Tube system. Perhaps the Minister would say why we are not banning those.

Lord Bassam of Brighton

My Lords, if people use marker pens to deface public space and cause criminal damage, of course they can be dealt with if they can be caught and apprehended. We are trying to ensure that we deal with the issue of spray cans and nip that problem in the bud. But I believe that the order of damage that can be caused by their use is also somewhat wider.

Earl Attlee

My Lords, I am grateful for the careful consideration that the Minister has given to my amendment. I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendments Nos. 18 and 19 not moved.]

Clause 66 [Aggravated trespass]:

Lord Dixon-Smith moved Amendment No. 20: Page 51, line 9, at end insert— (b) after paragraph (c) insert— (d) of causing obstruction or disruption to the general community"

The noble Lord said: My Lords, last week we were all treated to reports—and some of us experienced the consequences—of a man who climbed up a crane on a site near the Tower of London. According to reports in The Times, he caused losses to the community at large of many millions of pounds and cost the police £10,000 per day. We know that the congestion consequences of that action were huge. A major gateway to the City of London was blocked for three days and the traffic back-up caused immense frustration and vexation to many people. The man in question has come down, thank heavens—he was bound to in the end—and he has been charged with causing a public nuisance and a danger to public safety.

The difficulty that I seek to overcome is that there is a lack of definition of the offence of causing a public nuisance. It is a common law offence or it is defined under various other Acts—for example, the Environmental Protection Act, which clearly would not be relevant in a case such as this, If ever there was a case of aggravated trespass, this was it. However, Clause 68 of the Criminal Justice and Public Order Act 1994 states: A person commits the offence of aggravated trespass if he trespasses on land"—

we have deleted the words "in the open air"— and, in relation to any lawful activity which persons are engaging in … does there anything which is intended by him to have the effect… of intimidating those persons … so as to deter them … from engaging in that activity … of obstructing that activity, or … of disrupting that activity".

I doubt whether the man who climbed up on the crane had any intention of doing any of those things. Apart from the fact that he probably knew that he would attract some television cameras and some amusement, I do not suppose that he had really thought of the consequences of what he was doing. Therefore, I believe that it would be helpful to add a paragraph (d) to the subsection of the Criminal Justice and Public Order Act from which I quoted so that the section would then read, does there anything which is intended by him to have the effect of … causing obstruction or disruption to the general community".

Although the wording of my amendment may not be perfect, I believe that it would make it plain that if someone did something which caused general chaos, there would be a clear section of the law under which he could be charged. My attempt was to try to define that. I may well have failed. I have no doubt that the noble Baroness will tell me that I have, but I believe we should give the matter some consideration. There is no doubt in my mind that we should make it very clear that if someone undertakes the type of enterprise with the consequences that I have described, he should be well aware that there will be clear adverse consequences for him personally. I beg to move.

Baroness Scotland of Asthal

My Lords, I very much understand the desire of the noble Lord to attempt to give the police additional powers to deal with protesters who seek publicity for their cause by climbing tall structures. However, we are not convinced that the police lack the powers to deal with that type of protest, nor do we think that the noble Lord's amendment would do what he wants it to do, albeit I accept that it is a stalking horse for us to have this debate.

While it would not be appropriate for me to comment in detail on any particular case, everyone has the right to protest peacefully about issues on which they hold sincere views. However, we do not think that that right extends to disruption to the wider community. I agree with the noble Lord's comments in that regard. There are various offences which might be committed in situations such as this;; for example, aggravated trespass and causing a public nuisance.

The police have a duty of care. Issues of safety for the protester, the general public and police officers will be of paramount concern in these situations.

I suggest that the noble Lord's amendment, which seeks to extend the offence of aggravated trespass, is drawn too widely. We do not think that it is necessary. All the amendment does is to widen who could be trespassing on land to cover protesters who are intentionally causing obstruction or disruption to the general community. Even with the amendment, the offence of aggravated trespass will still apply only where someone was engaged or was about to engage in any unlawful activity.

I remind the House that the police have the power to direct persons to leave land where a person is committing or intending to commit the offence of aggravated trespass, and if a direction is not complied with they can arrest an individual. In view of the powers that the police already have to deal with this type of protest, I do not think, with respect, that the noble Lord's amendment is necessary. It is always a matter for the police to choose between the various different powers which they wish to alight upon because of the circumstances of the particular case. They will take fully into account the safety issues that might prevail if they adopt one course rather than the other but that does not change the fact that the powers are available to them. Therefore, I invite the noble Lord not to press his amendment. I am sure that he will not.

Lord Hylton

My Lords, before the noble Baroness sits down, in view of the existing powers she mentioned, can she say whether some charge will be brought against this so-called Spiderman who was on top of the crane for so long? He must have been well aware of the disruption he caused and there must have been plenty of witnesses.

Baroness Scotland of Asthal

My Lords, I tried to make clear that I cannot comment on individual cases, particularly when they are sub judice. Noble Lords will gather that there have been proceedings taken. I think I can go as far as to say that when the person concerned came down from the crane he was charged with being a public nuisance and causing danger to public safety. The offence with which he has been charged is triable either way. It attracts a six months custodial sentence and/or level 5 fine. That penalty is higher than that for aggravated trespass, which is a summary only offence. I do not think that I can, with propriety, go any further than that.

Lord Dixon-Smith

My Lords, I am grateful to the noble Baroness for that explanation. I had done what I could to find out what was available, without prejudice to what might happen. I was careful not to comment on the merits of the particular case and simply used it to provoke the noble Baroness, if I might put it that way, into the explanation she gave. I hope that others elsewhere will take notice of that. I thought it essential to obtain wider knowledge of what might happen if one indulged oneself in that way. I have always wanted to climb a crane but I am certain that I shall not do so now. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.45 p.m.

Clause 67 [Power to remove trespassers: alternative site available]:

Lord Avebury moved Amendment No. 21: Page 51, line 14, at end insert— ( ) In section 61 of the Criminal Justice and Public Order Act 1994, after subsection (3) insert— (3A) Any direction under subsection (1) shall include a list of relevant caravan sites on which there are suitable pitches for the persons who are the subject of the direction."

The noble Lord said: My Lords, on Report we sought to align the police power to direct travellers to leave an unauthorised site under Section 61 of the Criminal Justice and Public Order Act 1994 with those in Clause 67 of this Bill. We were told by the Minister, to my very great disappointment, that the Government had deliberately set out to create two entirely different regimes for the police to direct travellers to move off an unauthorised encampment.

We were told that in a case where local authorities had already provided sites and suitable pitches were available, the police would use the powers in the Bill but where no suitable pitches were available they could use the powers they already have in Clause 67 of the 1994 Act, to which the amendment refers.

At no point has any Minister contested the assertion that in the 157 local authority areas where there were unauthorised encampments, at the time of the January 2003 ODPM survey there were no suitable pitches available on any of the official sites and that there will not be any pitches available within the foreseeable future. I apologise to the noble Baroness, Lady Scotland, for saying that I sent her evidence in the shape of a survey which I conducted in August and the first week of September on the failure of the local authorities in those 157 areas to carry out their statutory duties under the Homelessness Act. In fact I sent a copy to the noble Lord, Lord Evans of Temple Guiting, following a conversation I had with him about progress as we had a debate on gypsies and travellers earlier in the year. I thought he said that he had sent it on to the noble Baroness, but obviously he did not. However, I have also sent a copy of the survey to the ODPM. Copies are available on the Shelter website and on the website of the Traveller Law Reform Coalition.

The survey showed that not one of those local authorities has any plans to construct new sites and there is nothing in the Bill to give them any incentive to construct sites. The Government now say that they will make a Statement about Pat Niner's report to the ODPM in spring 2004. If they come round then to the idea of reinstating the duty of local authorities to provide enough sites for gypsies residing in or resorting in their areas, as provided for in the Caravan Sites Act 1968, there will then be a period of consultation followed by legislation and the earliest that anything could happen would be well outside the timescale of five years in the Niner report. I assume that they will accept the recommendation that Niner made that there should be a resumption of the statutory duty, and that may well not happen. But during the five years that she surveyed, she said that there was a requirement for between 3,000 and 4,500 pitches. We might get one-twentieth of that number, all of which are likely to be on transit rather than residential sites.

The Government are just as adept at putting off decisions as their predecessors have been for the past 35 years. I was forcefully reminded of that by one of the documents in the national archives, which has just been released under the 30-year rule, reference June 1974 AT78/7, where a civil servant wrote in a briefing which was then given to Ministers: There is precious little electoral advantage in providing a site and there are strong incentives to procrastinate and to hope that the problem will simply go away".

That has a very familiar ring. What Mr John Downie, the civil servant at the Department of the Environment, then wrote is equally true of councils and governments today: They would get no brownie points from the electorate as a whole for the comprehensive strategy demanded by Niner, so they just let things drift: plus ça change, plus c'est la mime chose".

The refurbishment grant, on which the noble Baroness and her Government have relied as evidence that they are doing something, has now been extended for the two years 2004–5 and 2005–06. The Government have given a total of £8 million to local authorities for those two years, compared with the £16.78 million which Pat Niner says is the minimum necessary over the period 2002–07 simply to bring up sites to the standard and to maintain them at that level; not to buy any new sites.

There may be some uncertainty about the figures, as the Government have claimed, but the difference between the Government's plans and the recommendations made by one of the foremost experts in the field is vast. There is no doubt at all that in each of the past two years there has been an increase in the number of travellers on unauthorised sites, arising from under-provision.

Leaving the police with the power in Section 61 to shift gypsies from one unauthorised site to another, often within the same area, while doing nothing to correct the shortage of accommodation which leaves the travellers with nowhere that they can lawfully stop, is a manifestly unworkable policy. It certainly will not do anything to alleviate the "aggro" caused to residents of houses when an increasing number of unauthorised travellers camp in their vicinity.

This clause is about a symptom, not the disease. The Government have already rejected the proposition we advanced on Report, that we should stop treating the symptom without thinking about the cure. So the amendment aims to provide at least a record of where the symptom is hurting. It would provide that every time the police exercise the Section 61 power that they will do so in the full knowledge that the problem is simply being shifted and not solved. I beg to move.

Baroness Turner of Camden

My Lords, I rise to support the amendment moved by the noble Lord, Lord Avebury, to which I have put my name. Throughout the discussion on this part of the Bill, we have voiced the concerns of organisations—the Children's Society, Save the Children, the Gypsy Council and others—which have been worried that the provisions in this section of the Bill would have the effect of criminalising Roma and traveller people and rendering more difficult the access of their children to education and healthcare.

During the passage of the Bill the Minister has given certain assurances as to the Government's good intentions. These have been passed on to the organisations concerned. The Government have also introduced a couple of amendments which were designed to deal with some of the worries to which we have given expression.

However, concerns remain. It is generally admitted that there is a shortage of suitable sites, as the noble Lord, Lord Avebury, has said. Some local authorities do not seem to take very seriously the obligation to provide suitable alternative sites. Eviction, with all that that means in terms of disruption and trauma for families and children, must always be a last resort; and removal as a result of negotiation is always much to be preferred. Suitable pitches must be available before people are faced with eviction. That is surely reasonable.

It is also true, and there has been considerable evidence of this, that there is a certain amount of discrimination against Roma and traveller people. There was a report in the newspapers today about harassment, to which Roma people have been suffering, in East Sussex, for example, and the CRE has been moved to say that something should be done about this kind of discrimination.

If people constantly face the possibility of eviction from the sites they occupy, they are bound to feel that this persecution has some effect. Of course, we must do everything we possibly can to prevent that happening.

The amendment, which is now moved as a last attempt to deal with these problems, is entirely reasonable. I urge my noble friend to accept it.

The Lord Bishop of Derby

My Lords, the issue of the traveller community has been of concern to this House for some time. There are problems with the provision of facilities for travellers, as the Minister said in Committee on 7th October. So, I welcome the fact that the ODPM's homelessness unit will incorporate the research of the noble Lord, Lord Avebury, into its own strategy.

Given the pastoral reality that homelessness among travellers is serious, my concern and my question is whether it is wise to strengthen the powers of the police, as the Bill does, without tying those additional powers into the provision of further facilities. In the course of my work I have visited authorised residential sites, which are well placed with an effective warden or manager and satisfactory amenities. All parties, including travelling people, local authorities and the police have worked together with positive outcomes for residents and the community at large.

On the other hand, I have no doubt that the Government can and will supply details of the problems caused by illegal trespass. No one can doubt the need for the police to have powers to control such a general nuisance. But, unless there is more of a concerted strategy to provide additional help as well as strengthening police powers, grounds for concern will remain that the enforcement aspect of this issue is taking precedence over the pastoral. The amendment of the noble Lord, Lord Avebury, seeks to tie together these two aspects in a way that I find convincing and I would like to support the amendment.

Baroness Whitaker

My Lords, I also support this practical amendment. It points up the biggest problem about the whole issue: this shortage of permanent and transit sites which constitutes a failure of our local authorities properly to consider what the local needs of all our communities are. This is really indirect and sometimes direct discrimination. I think it engages the Human Rights Act.

I very much agree with the right reverend Prelate. Indeed, when I was a CharterMark assessor, I had the opportunity to visit permanent gypsy sites in the boroughs of Kent which were extremely well maintained and no problem to the local residents.

I add that I am most grateful to my noble friend for copying to me her letter to the noble Lord, Lord Avebury, of 10th November on these issues. I express the hope that in preparing the guidance which will be provided, her department will also consult the gypsy, Roma and Sinti communities as well as the Commission for Racial Equality and the Local Authority Associations.

Lord Bassam of Brighton

My Lords, I rise to resist the amendment. In doing so, I want to pay tribute to the noble Lord, Lord Avebury, my noble friends Lady Turner and Lady Whitaker and the right reverend Prelate for their contributions, which were most thoughtful. I think that a thoughtful approach is best regarding very difficult issues relating to travellers, gypsies and Roma folk generally. It is not an easy issue. Retreating as it were to my local authority experience, they used to provide the local authority with many headaches and difficult decisions to make. Those difficult decisions were not made any easier when the Caravans Act 1968 was effectively repealed. Speaking personally, it made life much more difficult.

Having said that, I can well understand concerns expressed by voluble residents, certainly in parts of my borough, about poor behaviour and behaviour that was provocative and caused a nuisance. We have to try and strike the right balance. The noble Lord certainly accepts that difficulties have been caused. Other speakers have also accepted that point.

The amendment seeks to add a further condition to the existing power to issue a direction under Section 61 of the Criminal Justice and Public Order Act 1994. I made clear on Report that existing powers can be used only if reasonable steps have been taken by or on behalf of the occupier to ask the trespassers to leave where the trespassers have caused damage to land or to property on land; or have used threatening, abusive or insulting behaviour towards the occupiers; or where the trespassers have six or more vehicles between them.

The amendment would require a direction to direct trespassers to leave land made in those circumstances to include a list of suitable pitches. It certainly does not go so far as does the noble Lord's previous amendment. We do not want the use of those existing powers to be made more difficult, complex and bureaucratic through that additional requirement. Where local authorities have provided sites and there is a suitable pitch on that site, the police will have the power to remove trespassers from unauthorised sites under the new powers in Clauses 65 to 69.

As I said, I appreciate that the amendment does not prevent the police using their powers if there is no suitable site. However, where trespassers have caused damage to land, where they have used threatening, abusive or insulting behaviour, or where they have six or more vehicles between them, it is right that the police can act swiftly to restore the land to its owner. The amendment places additional thresholds— requirements —on the police before they can act. That is not right or appropriate.

In his usual, skilful way, the noble Lord has used this debate to raise broader issues; I can understand why. I certainly share some of the concerns that he and others have raised in this useful mini-debate. But the amendment is not the right way to proceed. It would prevent the authorities being able to act in difficult circumstances in which it is right that they do so to prevent a continuing nuisance.

As for the broader issues, the Niner report is under active consideration. I heard what the noble Lord said about the value of prevarication, but it is under active consideration. There are several alternatives to the proposal to reimpose the duty on local authorities— such as further changes to the planning regime. I do not say that that is a definite proposition, but it is certainly a further consideration. There are no immediate proposals to make decisions, but decisions will be made and the view is that come next spring— perhaps in April—a firmer line on policy in those matters will be taken.

I can make no promises about the outcome of those further considerations, but there are important issues to be considered and it is accepted that there is a shortage of available sites. My guess—my summation— is that it is likely that more money is being spent by local authorities than the grants that have been made available.

That is certainly true if my experience as a local authority leader is anything to go by: we felt obliged to provide for what were described as tolerated sites simply because of the sheer pressure being placed on us in our urban area to deal with travellers parking their vans, trucks and cars on the roadside and causing a nuisance of a different sort. We had to provide some sort of facility. I guess that many local authorities have had to take similar action.

I think that it goes without saying, because it is common sense, that a more coherent, more cohesive strategy is required than has perhaps emerged for some years. That takes some time to sort out; no doubt there will have to be some delicate discussions between the several tiers of local and central government. This is not the Bill that can sort out that problem.

I congratulate the noble Lord on tabling the amendment, sparking this debate and encouraging others to join it, because the issues are important. Doubtless, dealing with some of the issues that travellers, gypsies and other travelling communities can create when rubbing up against settled communities requires careful thought. The Government have taken some important steps—not least by ensuring that at least some money is available to local authorities to begin important upgrading work and to extend some sites. The noble Lord made some powerful points about expenditure on that. It is not for me to judge, but we recognise that problems exist. No doubt this area of policy will unfold during the next few months.

So I must resist the amendment; it is unhelpful. The clause will help the police and local authorities to tackle abuse where nuisance is properly acknowledged to exist; it is accepted that it should be tackled as we propose. So I am grateful to the noble Lord. I must resist the amendment, but I have listened carefully to the important points that have been made during the debate.

8 p.m.

Baroness Whitaker

My Lords, before my noble friend sits down, can he answer my point about consultation with gypsy organisations in preparing the guidance?

Lord Bassam of Brighton

My Lords, I would expect that where guidance is drafted and considered, there would be such consultation. I know that the gypsy organisations, in particular, have a well respected history and tradition of providing their views volubly on matters pertaining to guidance.

Lord Avebury

My Lords, I am most grateful to the noble Baronesses, Lady Turner and Lady Whitaker, and to the right reverend Prelate, for their support for the amendment, which we tabled to expose the fact that the Government's policy is the wrong way round. They are providing the initial powers under Clause 67 while not taking the first step towards providing the sites—which, as the noble Baroness, Lady Turner, said, local authorities do not at present take seriously. Of course they do not, because there is no statutory obligation and no money. In the old days, under the 1968 Act, there were both: they had to provide sites for gypsies residing in or resorting to their area; and they received a 100 per cent grant.

If the Minister imagines that something that falls desperately short of that scheme will do the trick, he is very much mistaken. We certainly look forward to the announcement that he foreshadowed next spring of what is the Government's policy on the Niner report. I wonder why they cannot at least say that they accept her principal recommendation, which is that the Government should have a clear, widely understood national policy towards the accommodation of travellers. We do not have that; and we have never had it. The opportunity was lost at the time of Sir John Cripps's report, in which he recommended that all the local authorities should get together with the Government and have an agreed scheme for the provision of a certain number of sites within an agreed timetable.

The right reverend Prelate said that homelessness of travellers is a serious matter— we know that from the ODPM's own figures. Under the Housing Act 1996, everybody on an unauthorised site is ipso facto statutorily homeless, and there are 3,000 such caravans. How can Parliament continue to provide additional enforcement powers while we know perfectly well that 3,000 families live homeless in those conditions? As the Minister rightly says, those conditions cause difficulties in the settled areas where the caravans are located.

I am very sorry that the noble Lord has insisted, yet again, on doing things the wrong way around— giving local authorities additional enforcement powers while doing nothing whatsoever to solve the problem of accommodation shortages. However, we have no alternative but to wait until next spring to find out the Government's policy. I hope that they will consult not only on the guidance on the enforcement powers in the Bill, but, as the noble Baroness, Lady Whitaker, said, on the formulation of their strategy. If they produce a policy next spring that does not match the needs perceived by the travelling community and the many organisations that support it—including the CRE, which is far more active than ever before— another opportunity will have been missed.

I hope that the noble Lord will take the message from this debate to consult widely on the formulation of the strategy, which will appear next: April, and that that strategy will include comprehensive knowledge of the needs of gypsies from themselves. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Scotland of Asthal

My Lords, we now move to a very special part of proceedings, when I can thank all noble Lords for the energy and vigour with which they have scrutinised the Bill. I thank all Front-Benchers for participating in making this Bill something that we can all think gives us credit. I beg to move that the Bill do now pass.

Moved, That the Bill do now pass.—(Baroness Scotland of Asthal.)

Lord Dixon-Smith

My Lords, I thank the noble Baroness for her kindness and consideration throughout the Bill. She has dealt with us all with immense care. In doing so, she has revealed the care and trouble that she intends should be taken for those who suffer from those problems, or who must deal with them, in the community. The Bill is better for our consideration. We are very grateful to her for her care of us and of the subject.

On Question, Bill passed, and returned to the Commons with amendments.