§ 3.9 p.m.
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Earl Ferrers.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 67 [Violent entry to premises: special position of displaced residential occupiers and intending occupiers]:
Lord Desai moved Amendment No. 86A:
Page 52, line 13, leave out ("or a protected intending occupier").
The noble Lord said: In moving this amendment I shall speak also to Amendments Nos. 86B and 86C with which this amendment is grouped. Since this topic and subsequent amendments which I am moving all refer to what are called "squatters"—although legally we should call them "trespassers" I shall still call them "squatters"—perhaps I may be allowed to make a few general remarks on what my intention is in moving this amendment before I turn to the specifics of Amendments Nos. 86A to 86C.
§ In the Criminal Justice and Public Order Bill now before the Committee there is clearly an intention, as shown in Clauses 67 to about Clause 71, to change the existing law about squatters. There seems to be a panic about it which I argue is not justified. It seems that an attempt is being made to highlight the issue of squatters in an emotional way and to change the law in order to criminalise certain activities which are currently not criminal.
§ I begin by speaking about the current situation concerning homelessness and empty homes. It is true that currently there are more empty homes than there are squatters. There are nearly 850,000 empty homes and only about 60,000 squatters. That is the first matter. There are so many empty homes in both the public and private sector that we have the very curious situation of empty homes and homelessness. The second point is that there are 60,000 or so squatters. A survey carried out by a squatters service shows that most squatters are occupying public and not private property. It is either local authority property, housing association property or some such property in the public domain and not in the private sector.
§ In so far as there is occupation of property in the private domain, the existing regulations allow for someone who is a displaced residential occupier to have recourse to the law and remove the squatter. However, Clause 67 extends that category and changes the definition of a "protected intending occupier" in such a way that it will increase the amount of violence used by unscrupulous landlords who will be able to conjure up leases shorter than two years. The property having been 1086 unoccupied for more than 24 months will allow the landlord to forcibly and violently enter the property and remove the squatter.
§ Clause 67 amends Section 6 of the Criminal Law Act 1977. That lays down that people may not use violence to force entry into a property. The clause before us refers to a displaced residential occupier and a protected intending occupier. The latter category of occupier which my amendment seeks to remove is a peculiar category of people who are not actually living in the property and who have been displaced by a squatter. It is not the case of an ordinary residential family which has gone on holiday and then found its property occupied and therefore has an absolutely legitimate reason to remove the squatter.
§ I am not proposing a sort of squatters' charter for anarchy. I am opposing the extension of the definition under the category of what I call a "PIO" (protected intending occupier) in such a way that people with short leases will be able to claim the same rights as a domestic occupier. That will lead to the practice of many unscrupulous landlords creating artificial PIOs and therefore having a right to remove violently a squatter. That will increase the degree of violence in society and therefore cause problems.
§ That is unnecessary because, as I pointed out, there is very little evidence of private persons' property being occupied. In recent years, because many people have failed to pay their mortgage or have negative equity, those who have bought out those mortgages are arbitrarily replacing them with other prospective occupants. Very often they are not even aware that that is what has happened. In those conditions very often those whom we call "squatters" do not come within the ordinary image of a squatter. They are families with children who are unable to pay the mortgage and things of that kind.
§ We have to be quite sure that in amending the present Criminal Law Act 1977 we do not do things that arbitrarily empower people who are unlikely to be scrupulous about these matters or add to the degree of violence in our society which is already worrisome. I beg to move.
§ The Chairman of Committees (Lord Ampthill)
I remind the Committee that if this amendment is agreed to I shall be unable to call Amendments Nos. 86B or 86C.
§ 3.15 p.m.
§ The Minister of State, Scottish Office (Lord Fraser of Carmyllie)
Clause 67 makes "protected intending occupiers" of property exempt from the provisions of Section 6 of the Criminal Law Act 1977. Its date indicates under which Administration this Act was passed. Section 6 makes it an offence, without lawful excuse, to use violence or the threat of violence in order to gain access to premises. "Violence" in this context may mean no more than breaking a window. Displaced residential occupiers are already exempt from this offence and Clause 67 preserves their existing exemption.
1087 Section 6 is clearly useful and desirable in many contexts but unfortunately it has been the subject of abuse by squatters who frequently erect notices threatening to prosecute the rightful owners and occupiers of property if they break into their own property. As I say, that may be no more than breaking a window. This situation is clearly quite unacceptable; squatters in this context deserve no such special protection.
Contrary to what the noble Lord said, squatters will retain the protection of the general criminal law. That means that it will continue to be an offence to assault a squatter, for example, or to commit a breach of the peace. Moreover, Clause 67 does not change the protection given to lawful tenants. Those who have suggested, as I understood the noble Lord to suggest, that Clause 67 will legalise the activities of violent landlords and heavy-handed private bailiffs are simply mistaken.
The first of the three amendments would delete the protection given to protected intending occupiers altogether, while the others would limit it to certain classes of protected intending occupier—either private owners or private tenants. The Government do not believe that any such distinction is justified. This clause does not affect the general criminal law; it simply denies squatters a special protection which, as unlawful occupants of property, they do not deserve. With that short explanation I hope the noble Lord will feel that he can agree to withdraw these amendments.
§ Lord Renton
I wonder whether my noble and learned friend can help us on the meaning of "protected intending occupier". That is not defined in the definition clause at the beginning of Part V. I must confess that I have not looked to see whether there is any such definition in the 1977 Act. What exactly is "a protected intending occupier"?
§ Lord Fraser of Carmyllie
If my noble friend looks at Clause 69, he will see that it provides an extended definition of what is "a protected intending occupier" of any premises. According to what will be the new Section 12A(2) of the Criminal Law Act 1977, "a protected intending occupier" is defined as someone who has,a freehold interest or a leasehold interest with not less than two years still to run".My noble friend may recall that the provisions originally required a lease of some 21 years. If my noble friend then reads subsection (4), he will see that "a protected intending occupier" can also be a tenant. The circumstances in which that individual is protected if he is a tenant are fully set out in that provision. It may appear somewhat unusual to include that definition, but I think that my noble friend will find on examination that the position is fully set out.
§ Lord Renton
I am grateful to my noble and learned friend. However, is it not rather strange that the application of something so fundamental should take nearly three pages of Clause 69 to explain? I wonder whether between now and Report stage my noble and 1088 learned friend might consider inviting Parliamentary Counsel to redraft Clause 69 to require rather less detailed clarification.
§ Lord Fraser of Carmyllie
I am certainly prepared to ask the draftsman to look at it, but it must be appreciated that it is important that, where a protection is given to an occupier in this category, there should be a very clear definition of exactly the extent of that protection and when the occupier is entitled to it. The reason that the definition has been given in Clause 69 is that, as I suggested, Clause 69 is intended to provide a textual amendment to the Criminal Law Act 1977. However, I shall certainly invite the draftsman to look at it.
§ Lord Stallard
I rise to support the noble Lord, Lord Desai, in his amendment. That is not to say that we support squatting generally. We certainly recognise that squatting is an emotive issue which makes people's hackles rise straightaway. Although many people do not understand the situation of somebody who finds it necessary to begin squatting in a property, those who have served in local government in any inner-city area, and especially in London, will understand the paints made by the noble Lord, Lord Desai, and his reservations about the introduction and extension of the provisions relating to protected intending occupiers. We all lived through the Rachman era, and it appears that these provisions will return us to that era and reintroduce the Rachman element into what is already a serious situation.
Personally, I can understand squatting. I have lived with it and through it for many years, and I understand that we ought to look at squatting as a symptom of something much deeper. Its cause is homelessness and the shortage of affordable rented property. There would be no need for squatting—and we would all then support measures to stop squatting—if there were sufficient properties for people to live in or statutes that would allow people to move into empty properties. As the noble Lord said, there are thousands of empty properties, mostly within the ambit of government. By comparison, very few are in the public authority sector. Some properties have been empty for 10 years or more.
We must consider the position of a fellow who is redundant and who has literally no chance of getting a job. He may have moved all over the place and done his best. He is in dire straits and has no chance of ever being rehoused. If he sees a property that has been empty for 10, 12 or 13 years and which is without electricity or water, and if he then squats in it, why should he be subjected to all the horrendous effects of the law? It would be far easier to accept that he has a real problem and to try to deal with his problem instead of setting the whole force of the law against him.
I am reminded of what Mike Bennett, who was then the chairman of the Metropolitan Police Federation, said some years ago:I can forsee police involved in the forcible eviction from premises and those premises remaining empty, boarded up and people saying: 'Was it necessary?"'—that is, for the police to go in and the place then to be boarded up— 1089I can see the problem of making criminals of people who are desperate to get their lives back in balance. Someone who has been made redundant, someone who squats in premises—who pays for gas, electricity and water. Along comes a policeman and evicts them. That's not what I joined the police for and I don't think a lot of people did".Many ordinary folk understand what makes people squat, but that does not mean that they condone it. Such people cannot see the necessity for introducing provisions such as this in a Criminal Justice and Public Order Bill. They are seeking legislation that will do something about homelessness generally and prevent the necessity for squatting.
§ Lord Campbell of Alloway
Surely the analogy with Rachman is a little wide of the mark. As I understand it, Rachman was an evil landlord who evicted people who had a right to be there, using thugs, dogs and other forms of oppression such as cutting off supplies. The people we are considering are squatters. They have no right to be there. Therefore, any form of such analogy is misconceived. I know that this is an emotive subject, but cannot we keep our feet on the ground?
§ Lord Stallard
I do not want to get into a debate about Rachman, but I know about Rachman. I was there. I can show the noble Lord press cuttings showing that I was subjected to some fierce opposition from the Rachmanite people who went much further than the noble Lord has suggested. The noble Lord should reread reports from the Rachman era to see exactly how far such people went. They did board up premises in the way that has been suggested, and that is what will happen again. Such people will evict squatters and then board up the premises to create protected occupiers.
§ Lord Fraser of Carmyllie
This short debate has ranged pretty widely, and it now seems appropriate to return to Clause 67 and the offence that was introduced by Section 6 of the Criminal Law Act 1977. A limited class of people was provided with a defence against that offence and we are proposing to extend that. Perhaps I may emphasise the point that was so lucidly made by my noble friend. These provisions have nothing to do with the likes of Rachman. If noble Lords will read Clause 69, as I have asked previously, they will see that one of the qualifications within the definition of,a protected intending occupier of any premises"—whether that person has a freehold interest or is a tenant —is that that individual,requires the premises for his own occupation as a residence".We are not talking about a landlord trying to get rid of tenants for whom he does not care. We are talking about an owner who requires the premises for his own occupation. I am bound to advise the Committee that given the conflict between a squatter and someone with a property in which he has either a freehold interest or a right as a tenant, it seems entirely right that such a person's interests should be superior to those of a squatter.
§ Lord Desai
I am somewhat disappointed by what the Minister has said. As we have already strayed into a discussion of Clause 69, it seems that the nub of the issue is that the length of lease previously had to be 21 1090 years, but that requirement has now been shortened to two years. That change fundamentally alters the situation. While we may not return to Rachmanism completely, we are certainly advancing towards it. Under the legislation, it will be possible for some landlords to create a dummy lease for an intending occupier so that within two years the landlord can eject (by violent means) whoever happens to be occupying the property.
Many of the people who are supposed to be squatters today are rescuing properties which have been abandoned by local authorities and other public corporations; they are rescuing and restoring such properties. However, it will now be possible for local authorities, as well as private landlords, to go in and evict such people. Section 6 of the Criminal Law Act 1977 was quite right in being careful and restricting the sorts of people who were allowed to use violence to enter property.
When one takes this clause together with Clause 69, I entirely agree with the noble Lord, Lord Renton, that it is very difficult to understand what is going on. One really has to read various provisions so as to be able to put two and two together. The situation will be changed in a most fundamental way. It will now be possible, as it was not previously, for landlords to do certain things.
I believe that people who have a genuine domestic right of occupation should be protected against squatters —there is no doubting that fact—and that the current provision for "intending occupiers" which relates to people with leases of longer than 21 years should remain unchanged. I do not see the logic for shortening the period. That is why many associations and bodies interested in housing—for example, Shelter, SHAC, CHAR, the Law Society, Liberty, the Police Federation and the AMA—are all against such clauses which they suspect will cause much trouble in the sector. That is why I am saying that we ought to stop now. We should allow the present situation which is affording protection to genuine occupants to continue and not extend or weaken that provision. In the circumstances, I feel that I must test the opinion of the Committee.
§ 3.32 p.m.
§ On Question, Whether the said amendment (No. 86A) shall be agreed to?
§ Their Lordships divided: Contents, 50; Not-Contents, 166.1091
|Archer of Sandwell, L.||Gould of Potternewton, B.|
|Ardwick, L.||Graham of Edmonton, L.|
|Boston of Faversham, L.||Gregson, L.|
|Brooks of Tremorfa, L.||Hollis of Heigham, B.|
|Bruce of Donington, L.||Hughes, L.|
|Campbell of Eskan, L.||Irvine of Lairg, L.|
|Carmichael of Kelvingrove, L.||Jay of Paddington, B.|
|Cledwyn of Penrhos, L.||Jay, L.|
|Cocks of Hartcliffe, L.||Jeger, B.|
|David, B.||Jenkins of Putney, L.|
|Dean of Beswick, L.||Kagan, L.|
|Desai, L. [Teller]||Kilbracken, L.|
|Dormand of Easington, L.||Kirkhill. L.|
|Ennals, L.||Listowel, E.|
|Fisher of Rednal, B.||Llewelyn-Davies of Hastoe, B.|
|Gallacher, L.||Macaulay of Bragar, L.|
|Mallalieu, B.||Sefton of Garston, L.|
|McIntosh of Haringey, L.||Shepherd, L.|
|Milner of Leeds, L.||Stallard, L.|
|Monkswell, L.||Strabolgi, L.|
|Monis of Castle Morris, L.||Taylor of Blackburn, L.|
|[Teller.]||Taylor of Gryfe, L.|
|Nicol, B.||White, B.|
|Perry of Walton, L.||Williams of Elvel, L.|
|Rea, L.||Williams of Mostyn, L.|
|Ackner, L.||Grimston of Westbury, L.|
|Addison, V.||Hailsham of Saint Marylebone, L.|
|Alexander of Tunis, E.||Halsbury, E.|
|Allen of Abbeydale, L.||Hampden, V.|
|Allenby of Megiddo, V.||Hanworth, V.|
|Alport, L.||Harding of Petherton, L.|
|Annaly, L.||Harmar-Nicholls, L.|
|Archer of Weston-Super-Mare, L.||Harrowby, E.|
|Arran, E.||Hayter, L.|
|Astor of Hever, L.||Henley, L.|
|Astor, V.||Hives, L.|
|Balfour, E.||HolmPatrick, L.|
|Barber of Tewkesbury, L.||Hood, V.|
|Belhaven and Stenton, L.||Hooper, B.|
|Birdwood, L.||Howe, E.|
|Blatch, B.||Hylton, L.|
|Boardman, L.||Ironside, L.|
|Borlhwick, L.||Johnston of Rockport, L.|
|Boyd-Carpenter, L.||Kenyon, L.|
|Brabazon of Tara, L.||Kimball, L.|
|Bruntisfield, L.||Kinloss, Ly.|
|Burton, L.||Kinnaird, L.|
|Butterworth, L.||Kintore, L.|
|Cadman, L.||Lauderdale, E.|
|Campbell of Alloway, L.||Lindsey and Abingdon, E.|
|Carnegy of Lour, B.||Lloyd-George of Dwyfor, E.|
|Chalker of Wallasey, B.||Long, V.|
|Chelmsford, V.||Lucas, L.|
|Chesham, L.||Lyell, L.|
|Clanwilliam, E.||MacLehose of Beoch, L.|
|Clark of Kempston, L.||Macleod of Borve, B.|
|Cochrane of Cults, L.||Mancroft, L.|
|Constantine of Stanmore, L.||Manton, L.|
|Courtown, E.||Marlesford, L.|
|Craig of Radley, L.||McColl of Dulwich, L.|
|Cranborne, V.||Melville, V.|
|Crawshaw, L.||Merrivale, L.|
|Cross, V.||Mersey, V.|
|Cumberlege, B.||Middleton, L.|
|Dacre of Glanton, L.||Miller of Hendon, B.|
|Darcy (de Knayth), B.||Milverton, L.|
|Daventry, V.||Monteagle of Brandon, L.|
|Davidson, V.||Montgomery of Alamein, V.|
|Dean of Harptree, L.||Mowbray and Stourton, L.|
|Denlon of Wakefield, B.||Moyne, L.|
|Digby, L.||Munster, E.|
|Dixon-Smith, L.||Murton of Lindisfarne, L.|
|Downshire, M.||Nelson of Stafford, L.|
|Dudley, E.||Nelson, E.|
|Eden of Winton, L.||Oppenheim-Barnes, B.|
|Elibank, L.||Orr-Ewing, L.|
|Ellenborough, L.||Peel, E.|
|Elles, B.||Pender, L.|
|Elliott of Morpeth, L.||Peyton of Yeovil, L.|
|Elphinstone, L.||Platt of Writtle, B.|
|Elton, L.||Plummer of St. Marylebone, L.|
|Erroll of Hale, L.||Polwarth, L.|
|Faithful1, B.||Porter of Luddenham, L.|
|Ferrers, E.||Pym, L.|
|Flather, B.||Quinton, L.|
|Fraser of Carmyllie, L.||Rankeillour, L.|
|Fraser of Kilmorack, L.||Reay, L.|
|Gainford, L.||Rees, L.|
|Gardner of Parkes, B.||Renfrew of Kaimsthorn, L.|
|Gisborough, L.||Renton, L.|
|Goold, L.||Renwick, L.|
|Goschen, V.||Richardson, L.|
|Gridley, L.||Rippon of Hexham, L.|
|Rodger of Earlsferry, L.||Strathcona and Mount Royal, L.|
|Rodney, L.||Strathmore and Kinghorne, E|
|Seafield, E.||Sudeley, L.|
|Seccombe, B.||Thomas of Gwydir, L.|
|Sempill, Ly.||Trumpington, B.|
|Shannon, E.||Ullswater, V. [Teller.]|
|Sharples, B.||Vaux of Harrowden, L.|
|Sherfield, L.||Vivian, L.|
|Skelmersdale, L.||Wakeham, L. [Lord Privy Seal.]|
|St. Aldwyn, E.||Wharton, B.|
|St. Davids, V.||Windlesham, L.|
|Stanley of Alderley, L.||Wise, L.|
|Stewartby, L.||Wynford, L.|
|Strafford, E.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ [Amendments Nos. 86B and 86C not moved.]
§ Clause 67 agreed to.
§ Clause 68 [Adverse occupation of residential premises]
Lord McIntosh of Haringey moved Amendment No. 87:
Page 53, line 13, leave out from ("conviction") to ("to") in line 14.
§ The noble Lord said: In moving Amendment No. 87, I wish to speak also to Amendments Nos. 88, 107, 108, 111, 113 to 115, 120A and 120B, some of which are in my name and some of which are in the name of the noble Lord, Lord Avebury. The noble Lord, Lord Avebury, has given valuable service to the Committee on earlier days of our sessions in seeking to insist that we should not, when we were dealing with the issues of trespass and aggravated trespass, seek to create more imprisonable offences. As a general principle that is a sound one and one which applies, I suggest, even more strongly to the issue of squatting, with which we are concerned now, than to the issues we debated on previous days.
§ There is no doubt that squatting is a great nuisance. There is no doubt that it causes severe pain to those whose residences are taken over by squatters. There is no doubt that it costs money to public authorities and to private landlords, who are not just inconvenienced but are caused extra expense by the activities of squatters. But that surely does not mean that we should put into prison—that is what the Bill proposes—large numbers of people who are squatting.
§ I have made this point before and I know many Members of the Committee do not much care for it but I shall make it again. The people we are discussing do not believe that they are criminals. They do not believe that they are doing something wrong. One must either accept what they say or not—that is up to the Committee —but they believe that they are forced into the position of squatting because they have no alternative place to live. They believe they are doing a useful job in occupying properties which would otherwise remain vacant and they believe that they are improving the level of occupation of dwellings in this country. They believe that they are not doing anyone any serious harm and they believe that they should not be punished for that.1093
§ My noble friend Lord Desai has opened the debate on the issue of squatting and he has expressed views which we on these Benches share. There is clearly something wrong which has to be put right and there are clearly elements of this legislation which can, under certain circumstances, be justified. It is clear that, if there is a breach of the law, that breach of the law must be capable of punishment, but surely that should not be done by sending these people to prison. These are people who would otherwise almost certainly be homeless people on the streets. Whatever the Prime Minister may think about beggars and people on the streets, I do not think that even he is suggesting that they should be sent to prison for offences under the 19th century vagrancy legislation. But that is almost in effect what is being proposed in this legislation. I suggest to the Committee that we should be very wary of creating these new imprisonable offences. By all means we should consider fines and preferably community service orders but we should not consider prison for people of this sort. I beg to move.
§ Lord Avebury
I am sure the Minister will have been relieved that it fell to the noble Lord, Lord McIntosh, to move this series of amendments because, if it had been left to me, I certainly would not have agreed to their all being grouped together in this way. As the Committee may recall, on the previous occasion when we dealt with a series of criminal offences which were created under this Bill, I sought the Committee's permission to discuss each of them individually because each of them created a separate offence. We were not just talking about one offence which is punishable by imprisonment under this Bill but a number of them. I think I counted up to six or seven on the previous evening that we discussed this Bill. Now at the very beginning of our proceedings this afternoon we come to some more offences. However, now the term of imprisonment which is specified in the clauses we are dealing with has increased from three months to six months.
I hope that when he comes to reply the Minister will explain why when we discussed offences on the previous occasion we were talking about a maximum sentence of three months' imprisonment and now we are talking about a maximum sentence of six months' imprisonment, when, as the noble Lord, Lord McIntosh, has rightly pointed out, people do not squat for pleasure. They do it because they have nowhere else to go. In the eyes of most people in this country, they are not committing an offence if they find an empty property and they camp in it pending its occupation by someone else. I do not see any harm in that. If they refuse to go on the first demand made to them by the intending residential occupier, that may be because they have no alternative. The local authority will not give them a house all of a sudden, nor is it easy for people without means to move into rented accommodation in some of our larger cities. It may be force majeure that requires them to stay where they are.
We are dealing in this series of amendments with two completely different offences, as I mentioned earlier. 1094 Amendment No. 87 concerns the person who refuses to comply, or fails to comply, with a request to leave made to him by a displaced residential occupier or an individual who is the protected intending occupier of premises. I do not believe that anything is said about the time that is allowed to him to comply with the directions under the Bill. One is not dealing with the kind of cases that fell within the jurisdiction of the county court. In those cases the county court when granting an order for possession would invariably accompany it with a statement as to the period within which the direction had to be complied with.
I should like to know from the Minister when this offence is committed. Is it committed the instant that the notice is delivered to the squatter or is it committed some time after that? If so, why is that not on the face of the Bill? Who decides? When is it, following receipt of the notice, that the squatter commits the offence and the police move in?
Amendment No. 107 refers to Clause 69. It is a completely different matter. I am glad to see that the noble Lord, Lord Elton, agrees with me. There we are considering the offence created under subsection (8) of Clause 69 of making a statement which the person concerned knows to be false in a material particular or of recklessly making a statement which is false in a material particular. For that the offender can also go to prison for six months. This time the boot is on the other foot, because it is the person requiring possession of the premises who makes the statement that he is a protected intending occupier, that he requires the premises for his own occupation and that he has been granted a tenancy of the premises. I can see all kinds of problems arising from that. It may well be that he has a flimsy reason for believing that he has been granted a tenancy of the premises. The court may say that he has recklessly made a statement to that effect which is false in a material particular. When it transpires that although he thought he was granted a tenancy it turns out that he was not, he would nevertheless render himself liable, in making that statement, to six months' imprisonment. Obviously, the Minister will say that in those circumstances the court would not send him to prison for six months. Why do we not say that on the face of the Bill?
To multiply the offences that render a person liable to imprisonment, however few the number of cases in which the courts may impose such a penalty, is not desirable when our prisons are bursting at the seams and people are being kept on remand in police cells and other temporary premises. Are we really intending to create additional places over and above those we already have to house the vast number of remand prisoners? If the Minister says that the number will be quite small, perhaps he can answer the question that I repeatedly put the other day to his Front Bench colleague, the noble Earl, Lord Ferrers. Why is nothing said in the financial memorandum about the cost of imprisoning the people who will be sent to gaol under all these provisions? We dealt with six of them the other evening, and I dare say that we shall deal with a further six this evening. Even if a fairly small number of people were sent to prison under each of these clauses at a cost of £3,000 per week, multiplied by 12 weeks (representing three months' 1095 imprisonment), one would be talking of a very substantial sum of money. I should like to know what that sum is.
I suggest to the Government that there is no point in having a provision which requires them to state on the face of the financial memorandum how much a particular clause will cost when they resolutely decline to say in this particular case what burden a whole series of clauses will impose on the taxpayer. Each time this evening that we come to the offences that are to be created, I hope that the Committee will consider whether it wishes continually to increase the number placed on the statute book or whether, after due consideration—perhaps not this evening but at Report stage—the whole matter should be reviewed and the attempt made to deal with it, as in the past, through the civil law.
§ Lord Campbell of Alloway
I wish to speak briefly in opposition to the amendments. I shall, however, confine my observations to Amendments Nos. 87 and 88. Surely, we are concerned with two questions. The first is the status of the squatter; the second is how serious the offence is. The noble Lord, Lord McIntosh, said that the Labour Benches share the views expressed by the noble Lord, Lord Desai, on squatters. The noble Lord says that they do not believe that they are criminals and claims that they do very little harm. That is assuredly a very dangerous doctrine to adopt because it creates a dispensation from the ordinary process of law. Although it can be done in certain circumstances, I believe that there is no justification for it in this case, certainly not on any of the grounds that have been advanced.
One comes to the question of how serious is the offence. It can be trivial; it can be very serious. Merely because there is power to imprison for up to, say, six months does not mean that one will imprison for more than 14 days. It is merely an enabling power in a very serious case. Personally, I can see no possible reason for restricting the discretion of the magistrates in a serious case to impose a fine at scale five, if appropriate and subject to means, and imprisonment. I would have thought it extremely rare—indeed it is—that magistrates ever impose the maximum sentence allowed by law.
As regards Amendment No. 88, a community service order is inherent in the disposal available to magistrates. They do not have to fine or imprison; they can make a probation order, give a conditional or absolute discharge, or impose a community service order. I hope the Committee will agree that it is not right in these circumstances, where the matter can constitute a serious crime committed against residential premises, that the discretion of the magistrates should be limited in any way other than as proposed by the Government in this clause. That is why I oppose the amendment.
§ Lord Elton
I have an almost professional interest in keeping people out of prison, having spent almost three years as Minister responsible for prisons in the 1980s and as founder of a charity that tries to keep young people away from crime and custody. Following upon what my noble friend said, I hope that the Committee will recall that hard cases make bad law. From time to 1096 time this Chamber develops a tendency to apply the severest sentence to the most trivial of cases and then assumes that that will be the result of its legislation. Amendment No. 107 applies to the people about whom the noble Lord, Lord Desai, waxed understandably eloquent in his first group of amendments. The amendment strikes at the power in the Bill to punish somebody who makes a false statement purporting to be a protected intending tenant.
When the noble Lord, Lord Desai, inveighed against those evicting using the powers available as a consequence of Clause 69, he appeared to have in mind unscrupulous landlords who wished to evict tenants in order to relet, refurbish or redevelop. The noble Lord nods his head. However, the clause is so drafted that the power can only be invoked if the person requires the property for his own occupation. Therefore, the power cannot be applied to an entire block of flats. It can only be applied to a single flat.
In this case it would be possible for an unscrupulous person who did not want the property for his own occupation to claim that he did and wave a piece of paper. That would be a serious criminal offence in the view of the noble Lord, Lord Desai. I should have thought that he might think that such a person ought to go to prison so that he would not do it elsewhere in his extensive properties in the East End of London.
I hope that in this case the Committee will leave in the Bill the power to imprison.
§ 4 p.m.
§ Lord Renton
I, too, feel that we should leave these powers in the Bill. We are dealing here with crimes of violence. If more than one crime of violence has been committed it may well be that imprisonment is right. That is always within the discretion of the court.
I agree with what my noble friend Lord Campbell of Alloway said, but I shall be grateful if my noble and learned friend the Minister of State, when he replies, can confirm the proposition that my noble friend Lord. Campbell put forward; namely, that the court has power to award a community service order just as it has in any circumstances a power to award probation.
§ Lord Avebury
I do not want to cross swords with such a distinguished lawyer as the noble Lord, Lord Renton, but we are not dealing here with crimes of violence. If a person who declined to comply with a notice requiring him to quit, made under the earlier of the two clauses we are now dealing with, were to strike the bailiff or whoever delivered the notice then of course he would be liable to be prosecuted for actual or grievous bodily harm, or something of that nature. In any case where a squatter commits violence, either against an intending residential occupier, a member of the public, the police, or whoever knocks on the door and speaks to him about his unlawful occupation of the premises, it is much better that he should be dealt with under the existing law than that an attempt should be made to label that act as refusing to comply with the notice.
The offence of refusal to comply with a notice must presumably have been designed to cope with those cases 1097 where no violence is offered. The new offences are being created under the Bill because it emerged that if a squatter remained in occupation of premises entirely peacefully there was no way in which he could be brought before the courts for a criminal offence. That is the whole purpose of this part of the Bill. It has nothing to do with violence.
§ Lord Windlesham
I anticipate that when the Minister replies to the debate he will have little difficulty in assuring the Committee in relation to the argument used by the noble Lord, Lord Avebury, that when considering cases on summary conviction the magistrates' courts have to take account of the seriousness of the offence. Any court is subject to the provision in Section 1 of the Criminal Justice Act 1991 that a custodial sentence may only be imposed if the offence is so serious that a community sentence will not suffice. That provision would apply in every case involving squatting.
What I have found missing from the debate so far is an acknowledgment of the inadequacy of the existing civil proceedings. The issue of squatting has been before Parliament for many years. In 1991 the Home Office published a consultation paper in which it was pointed out that the application of the law to squatting was complicated due to the overlap between public and private wrongs and criminal prosecutions or civil remedies. Whereas the powers under the Criminal Law Act 1977—to which the Minister of State referred in the debate on the previous amendment—include criminal sanctions there were fewer than 100 prosecutions under that Act in each of the previous three years. Compare that with more than 10,000 applications made in 1989 for relief against squatters by way of civil proceedings in the High Court or the county court in England and Wales.
This Bill does not criminalise the act of squatting. It introduces penal sanctions against a person who, being subject to an interim possession order made by the court, fails to leave the premises within a period of 24 hours beginning at the time of the service of the order. That is set out in Clause 71 and I believe answers one of the points made by the noble Lord, Lord Avebury.
If one considers the issue of squatting over a period of time and the inadequacy of the civil remedies because of the appalling delays and the cost involved, to introduce this limited criminal sanction in the circumstances described in the Bill is a proper solution.
§ Lord Desai
We are drifting into later clauses and I regret that. I wish to point out that the proposal in the Bill creates a criminal offence which was not previously required. The 10,000 applications which the noble Lord, Lord Windlesham, mentioned do not necessarily relate to 10,000 properties. Multiple applications are possible. It is also true that in one-quarter of those cases there was no case to be made. A great deal of alarm is being created about this problem and we have to put it in perspective. If there were only 100 prosecutions why do we take it for granted that the other 9,900 were genuine cases which were frustrated by squatters? Why not 1098 acknowledge that it is a very small problem? We shall make matters worse by introducing this criminal sanction.
The Committee should be aware that two-thirds of squatters are women. According to a survey undertaken by the Advisory Service for Squatters one-third of squatters are women with small children. One's image of squatters has to be amended. Some of those women have run away from domestic violence. That is why they are squatting. One should not believe that all squatters do is commit criminal acts of violence. This is a problem created by homelessness and many other problems over the past 15 years. We shall make the situation worse by introducing these criminal sanctions into what is currently a civil matter.
§ Lord Elton
As I listen to the noble Lord, Lord Desai, I wonder whether we have the right picture in our heads. I may be wrong. However, Amendment No. 87 in the name of the noble Lord, Lord McIntosh, relates to Clause 68. The offence dealt with in that clause is the offence of not leaving premises on being asked to do so by somebody who already lives there. For example, the noble Lord, Lord Desai, comes home and finds another family occupying his house who refuse to go. I should have thought that that required some form of sanction.
The alternative is an individual who is a protected intending occupier of the premises. We have discussed that category. It is somebody who needs to live in the premises and who either owns the property or has a lease which has another two years to run. I should have thought that person required protection as well. Indeed, I am surprised that there should be a requirement for a lease to have two years to run, and when we get to Clause 69 I shall ask about that. Surely in the case of someone actually refusing to leave the home of a person who has come back from holiday, or even from work, and to let that person come back into their own home is a very serious offence. If persisted in, it surely requires a severe sanction. If the sanction exists maybe the offence may not be persisted in.
§ Lord Taylor of Gryfe
I wonder, having listened to the noble Lord, whether there is not some legal provision at the moment covering the cases that he quotes of someone coming back from holiday and finding his property occupied, or even one such as the noble Lord, Lord Desai, returning home from the House of Lords, and finding his property occupied. I am not a lawyer, but I presume there is some legal protection already. I see the Minister is nodding his assent.
I must say that the issue of squatting raises all kinds of emotions. I have been looking at some references made in another place. For example, a former Minister referred to anti-social parasites, and someone said that was the reason why we should get tough on armed robbers, tough on rapers and tough on squatters. I think sometimes, because of the presentation in the media of squatters in dilapidated properties, there is immediately a kind of emotional feeling that they are some kind of dangerous criminals. We are treating them in this Bill as if they might be dangerous criminals. I would hope, with the noble Lord, Lord Windlesham, that the magistrates, in dispensing justice, would take into 1099 account all the factors in each case. But what we are doing is putting a law on the statute book in this regard, and I would hope that we could see it in perspective before making a dramatic change. A survey of over 2,000 squats found that 90 per cent. of these properties were owned by local authorities or housing associations.
As has been quoted already, the local authorities happen to have a much larger number of empty properties than are occupied by the squats. The real problem is: why are they there? No one goes into a squat because they would like to live in a property with no water or electricity supplies. They go there because they are homeless: they have nowhere else to go. To suggest that they are all criminals who ought to be punished by the extension of the criminal law is unjust and morally wrong. Consequently, I would support the noble Lord, Lord Avebury, in the case he has made.
§ Lord Avebury
I do not want to prolong our discussion, but the noble Lord, Lord Elton, gave us a very partial explanation of what a protected intending occupier is. He limited it to the case of the noble Lord, Lord Desai, coming home from work or from his holiday and finding someone in occupation of his house. But I would ask your Lordships to consider the case of a local authority which grants the tenancy of a house occupied by squatters to someone who is on their housing list, knowing that it is occupied by squatters. That person then holds a written statement specifying his interest in the premises under Clause 69(2) (d) and stating that he requires the premises for a residence for himself, notwithstanding the fact that the local authority could have granted him the tenancy of some other premise. So he has a prior claim over the squatter and when the notice is issued—I am obliged to the noble Lord who explained that that has 24 hours to take effect, which was a point I omitted earlier—in 24 hours the squatters have to get out and give way to the person who has the prior claim, as the nominated tenant of the local authority.
In those circumstances we see a totally different picture, because this squatter may be a woman with three children who has been displaced from the refuge. We were talking about that at Question Time and the noble Earl the Minister then said that there was no question of anybody being thrown out on to the streets. He dismissed that suggestion as absurd. However, if the refuge was closed and the battered woman who is at present occupying the premises with her children happens to take up occupation of a squat, perhaps somewhere in the neighbourhood of Chiswick, and the local authority then issued a notice saying that somebody else was qualified to occupy the premises, that battered woman and her three children would have to leave within 24 hours. Would she then not be on the streets? What is the noble Lord suggesting that a person in that category should do, bearing in mind that the vast majority, or two-thirds I think was mentioned, of the people in squats are women and that a substantial proportion of them have young children? These are people who are not well able to fend for themselves in the housing market, and I cannot understand how anybody would think that they were able to comply with 1100 a direction to leave within 24 hours. In those circumstances they would be liable to the penalties imposed by this Bill.
§ Lord Elton
We need to decide this, but the noble Lord, Lord Avebury, has usefully illustrated what I was trying to suggest: that there will be a wide range of culpability. It will be for the court to decide in the light of circumstances. We have merely to produce penalties which are suitable to meet every point on that scale and not to cut the scale off arbitrarily half-way up, on the grounds that the severest case will never occur.
§ Lord Windlesham
Before the Minister replies, he may be able to help the Committee with some further information. In order to get a fuller picture, is he able to say something about the unlawful occupation of commercial premises? The debate so far has been entirely about families, often homeless families. As I understand it, in the London boroughs where there was such a great concentration of squatting two or three years ago there has been a marked decline. For example, in the London Borough of Lambeth, as few as 58 local authority properties were squatted in October 1993, compared with an all-time high of 1,250 in 1987. As a greater stock of local authority housing has become available, one must assume that the problem of homeless families has declined. Against that has been a counter trend of more squatting in commercial premises, which on the face of it would seem to be unlikely to have anything to do with homelessness.
§ Lord Fraser of Carmyllie
It might be helpful if I were to intervene now to make this simple point. Anyone coming to this debate ignorant of the issues involved might have been brought to the conclusion that the power and the penalty introduced under Clause 68 was a wholly new one. The fact is that Clause 68 merely re-enacts the existing provisions of Section 7 of the Criminal Law Act 1977. The only change to it is that it omits those parts which relate to the definition of a protected intending occupier. As I previously explained to my noble friend Lord Renton, the provision has been extended and is now to be found in Clause 69. Otherwise, Section 7 is left intact and the existing Section 7 makes it an offence for a squatter to fail to leave the property when required to do so. So there is nothing new there. I should also say to the Committee: that indeed the existing penalty that may be imposed is, at its maximum, a period of six months' imprisonment, and so there is no change there.
I am grateful to my noble friends Lord Windlesham, Lord Renton and Lord Campbell who have supported the provisions that we have suggested as being necessary. They are of course the maxima that we are providing the courts with. We are not suggesting in any sense that on each and every occasion these maximum penalties of imprisonment of six months should be imposed.
My noble friend Lord Campbell of Alloway said that the offences would range from the trivial to the serious. They will indeed. It is also of concern that on some occasions they may be repeated, in which circumstances one would wish to give the courts sufficient powers. In 1101 the worst case there may be those who are—however else one may wish to put it—politically motivated and habitually defy court orders. In those circumstances it would seem appropriate that such a person should be sent to prison.
I think it was the noble Lord, Lord Avebury, who asked why in three of the four offences with which we are dealing the maximum is six months but for the fourth it is two years. Having regard to the sentiment expressed in the earlier debate by the noble Lord, Lord Desai, I should have thought that he would welcome the increase in the penalty to two years in the circumstances where it is allowed by the Bill; that is, where someone who has sought to obtain an interim possession order from a court has given to the court false or misleading information. In those circumstances, it seems to the Government that it would be entirely right that if anyone wished to take the risk of misleading the court—be he a landlord or an owner—it would be appropriate to have a serious deterrent in place to prevent him from doing so. I trust that, far from there being any opposition to that level of penalty, it will be appreciated that it is highly desirable that we should have a distinction between the six months and the two years in such a case.
I wish to address a more fundamental point to the noble Lord, Lord McIntosh, about his proposal. In any case where imprisonment is provided as a maximum sentence, the courts have the power to impose a community service order if they think it is an appropriate penalty in the circumstances. However, a community service order is never prescribed as a maximum penalty in its own right. Community service is one of the most demanding and restrictive types of community penalty available to the courts. As I understand it—and I am open to correction—this side of the Border since as far back as 1973 the policy has been that a community service order should be available only for those offences which can be so serious as to justify a custodial sentence. The noble Lord may not have intended it, but it seems to me that in his amendments he has opened up an issue of policy which probably goes rather further than he intended in putting the proposal forward as a simple restriction.
I hope it will be appreciated that in the four sets of offences that we have created two might affect the squatter, but in respect of the other two, given the sentiment expressed by the noble Lord, Lord Desai, I should have thought that it would be considered by Members of the Committee opposite that it would be quite appropriate for a custodial sentence to be imposed in an extreme case.
§ Lord Renton
Before my noble friend sits down, will he confirm that the court may award a community service order without it being specifically mentioned in the Bill?
§ Lord Fraser of Carmyllie
I apologise if I have not made that clear. Yes, that is the case. It would be a novelty if we were to allow for a community service order in relation to an offence when at present it would not also be capable of attracting a sentence of imprisonment.
§ Lord Harris of Greenwich
The noble and learned Lord will recall that his noble friend Lord Windlesham asked a question relating to commercial premises. I should be grateful if he would answer it in a moment. On the last point that he made about the position in 1973 when community service was introduced, at first on an experimental basis and then extending to the rest of England and Wales, he is quite right. It was then described as an alternative to imprisonment. But it would be wrong to assume that in the 20 years that have elapsed since then it has only been handed down by a court as an alternative to imprisonment. Since then, the sentencing procedures have changed radically.
§ Lord Fraser of Carmyllie
Perhaps I may briefly respond to the point on which the noble Lord, Lord Windlesham, asked for clarification. Clauses 68 and 69 do not relate to commercial premises at all. I thought that would be clear from the circumstances. Owners of commercial premises would be able to apply for an interim possession order, but that is in relation to Clauses 70 and 71 which we have yet to reach.
§ Lord McIntosh of Haringey
I am grateful to Members of the Committee who have taken part in the discussion. I wish to make two points entirely clear before I consider more specific issues. The first is the issue raised by the noble Lord, Lord Campbell of Alloway, about the position of our Front Bench on the amendments moved by my noble friend Lord Desai. I should make it clear that although we agree with him that there are such grave defects in Clauses 67 and 69 that they should not stand part of the Bill, we have not felt the same about Clause 68. That clause refers to adverse occupation of residential properties where the complainant is the occupier or owner or the occupying owner of that residential property. For that reason, we do not oppose all the provisions in this part of the Bill. Our only amendments proposed to Clause 68 are Amendments Nos. 87 and 88, to which I have spoken, referring to the penalties to be imposed. That is the first point to make, that we are not in any sense being soft on squatters who move in on the home of my noble friend Lord Desai while he is on holiday, or my home or that of anyone else. If I were to suggest that we were being soft on them, Mr. Tony Blair would have me shot at dawn. I can assure the Committee that he is not.
The second point I wish to make is about imprisonable offences and community service orders. The Minister is, of course, correct in saying that the intention, when community service orders were first introduced, was that they should only be available for imprisonable offences. The Minister is also correct in saying that the Criminal Law Act 1977 which was introduced by a Labour government provided for that to be an imprisonable offence. We are moving forward from the position of the Labour government in 1977 —if the noble Lord, Lord Harris, does not mind my saying so, since he was a member of that government —if we take away the imprisonment capability which is provided in Clause 68.
The point I seek to make which was not particularly taken up in the debate was that those squatters who are the subject of Clause 68 are not criminals. They do not 1103 see themselves as criminals and are not best treated as criminals. To take the example of my own borough, Haringey had a serious squatter problem, as did Lambeth some years ago. That has been dealt with not by increasing the severity of the offences by seeking to use the criminal law, but by sensible, civilised negotiations. Squatters who move into council properties which the council does not have the resources to improve and make available for occupation are allowed to stay, on the agreement that they will get out as soon as the builders are ready to move in to renovate the properties. There have been occasions—one close to where I live—where many squatters moved into a smallish tower block. At the end of the period they showed that they were not only careful and suitable tenants, but that they would probably come high on the list of tenants who would be eligible for that property when it had been renovated. The agreement was that they could stay there and renovate it themselves—a very satisfactory agreement it was, too.
§ Lord Campbell of Alloway
I am grateful to the noble Lord for allowing me to intervene. To save confusion, I should say that, of course, if there is an agreement I am not worried. If there is an agreement between those who own the premises and the squatters that they may stay there until the builders come, that is not the position which I have been addressing. I accept that.
§ Lord McIntosh of Haringey
I do not think that we are in great disagreement. I was responding to the point made by the Minister about the effectiveness of criminal sanctions. It is not a point with which I agree.
A number of noble Lords directed the point at my noble friend Lord Desai that because Clause 68 is concerned with squatters and Clause 69 with those who falsely claim to be prospective tenants (whatever the correct phrase is) he would be in favour of the imprisonment of those people. I do not believe that he would or has ever said that he would. These are offences and they need the sanctions of the law, but they do not need to be added to the list of criminal offences.
The Minister pointed out the technical defects in our amendments. He also made a point about the use of community service orders which, although I agree with the noble Lord, Lord Harris, that sentencing policies have changed in the past 20 years, deserves some further consideration. Although I do not in any way resile from my fundamental disagreement with the creation of new imprisonable offences, I do not think it is proper that I should seek the opinion of the Committee on this group of amendments. I beg leave to withdraw Amendment No. 87.
Amendment, by leave, withdrawn.
[Amendment No. 88 not moved.]
Clause 68 agreed to.
Clause 69 [Protected intending occupiers: supplementary provisions]:
§ 4.30 p.m.
Lord Desai moved Amendment No. 89:
Page 53, line 37, leave out ("two") and insert ("21").
§ The noble Lord said: In moving Amendment No. 89 I shall speak also to Amendments Nos. 90 to 106.
§ A particular feature of this piece of legislation is that it changes the definition of "protected intending occupier". The purpose of my amendments is to make quite sure that the change in the status of refusal to comply with an interim possession order is not lightly treated. We want to make quite sure that the protected intending occupier is a genuine person who really needs accommodation and not just that a dummy lease has been created by the landlord or the local authority merely for the purpose of claiming repossession of the property.
§ The amendments in this series are quite straightforward. Amendment No. 89 goes back to the status quo; namely, a lease of 21 years rather than only two years. Later, instead of the person giving a statement signed by a commissioner for oaths—very often landlords use their solicitors—it could be signed only by a Justice of the Peace; and sufficient evidence would have to be adduced that the facts are as they are. Again, that is intended to make quite sure that when this Bill becomes law it will not be used lightly and unscrupulously by landlords.
§ Lastly, some of the amendments add the word "immediate" before "occupation". They are designed to ensure that in the event of a genuine housing need there is no intention of stopping that sort of possession order. What we seek to prevent is the creation of a dummy lease, with a person being evicted not for the intending occupier but so that after a week or so the property can be sold.
§ Amendments Nos. 89 to 106 aim to make quite sure that the intending occupier is a genuine person in genuine housing need and that whatever statement he or she makes is absolutely bona fide. I beg to move.
§ Lord Renfrew of Kaimsthorn
This is; a field with which I am not greatly familiar. The noble Lord, Lord Desai, will, I am sure, correct me if I misapprehend his intention, but the first of these amendments seems to me to be extraordinary. If I were to acquire the freehold interest in a property with the intention of occupying it as a residence, and if my freehold interest were, for instance,' 15 years, is it really the case that that would be considered altogether an insufficiency by the noble-Lord, Lord Desai? It seems to me that the factor that he seeks to introduce (or re-introduce) of having not less; than 21 years still to run is a very considerable time period. I find this amendment difficult to comprehend.
§ Lord Fraser of Carmyllie
There is a considerable number of amendments here, the first of which is. Amendment No. 89. The set of amendments that the noble Lord has tabled are all designed to weaken proposals that have been put forward by the Government, and indeed they might be considered to weaken the existing law, which, as we have previously appreciated, was introduced in 1977.
1105 Clause 69 amends existing Section 7, reducing from 21 years to two years the length of the lease required in order for the leasehold to be included in the definition of a "protected intending occupier". The noble Lord's amendment would effectively retain the 21-year requirement.
There is no good reason why those with leases shorter than 21 years should not be offered the same protection as other protected intending occupiers. This amendment would simply retain the provision of the 1977 Act which, as my noble friend indicated, we consider would place at an unfair disadvantage those who should in justice be offered the same protection as any other home owners.
As regards the other amendments, it is necessary for a protected intending occupier in the private sector to hold a written statement, witnessed either by a magistrate or a commissioner for oaths—that is to say, a solicitor—setting out the circumstances of his case. These amendments would change the nature of that requirement by making it necessary to adduce evidence before a magistrate, who alone would be able to witness the statement. This conversion of a simple witnessing of a statement into a quasi-judicial proceeding before a magistrate is quite unnecessary and, indeed, is a radical departure from the existing Act. It is entirely contrary to the purpose of the Bill, which is to increase the protection that is given by the criminal law to lawful owners and occupiers of property. There is, so far as we are aware, no evidence that the existing system has been abused by the commissioners for oaths, and there is no reason to deprive them of their ability to witness this kind of statement.
§ Lord Elton
Can my noble friend the Minister explain to us why a person who has two years to run on a lease is protected, but a person with 18 months is not? My anxiety relates to the smaller end of the scale. I point out that the ends of leases are sometimes a way in which families in difficulty, who could not otherwise obtain accommodation, can do so. These tenants may require protection very much more than those who have substantial periods of a lease to run. Why, if a person has a proper title under a lease to occupy a place as the resident, should he not be entitled to do so regardless of the fact that the period is a short one?
§ Lord Fraser of Carmyllie
I invite my noble friend to look not just at new Section 12A(2) in Clause 69, but also to have regard to what is provided for in subsections (4) and (6), which allow for protection to those who have tenancies of premises.
§ Lord Elton
Subsection (4) again has:not less than two years still to run".The other reference is to tenants of a local authority or housing association. What about tenants of the private landlord? I am sorry that I did not give my noble friend notice of this question. Perhaps I should give him time to look at the text in front of him.
§ Lord Fraser of Carmyllie
The noble Lord put me off because when he read subsection (4) he read it short. Where he has seen a restriction, it is where there is: 1106a licence to occupy those premises granted by a person with a freehold interest or a leasehold interest with not less than two years still to run in the premises".If he is a tenant, there does not have to be more than two years to run.
§ Lord Elton
Perhaps, after reflection, my noble friend will write to me. If I have a right to occupy for 18 months a place for which the head lessee has 18 months, I do not see why I should not be able to enjoy that right as I would be able to do if he had a lease of two years. It seems to me to be an extraordinary form of discrimination. But we are getting into the small print of property law. I should be very happy if my noble friend would discuss it with me later.
§ Lord Desai
The short debate that we have had on this group of amendments has demonstrated once again that, whatever else happens by Report stage, some of these matters should be clarified so that we can all understand what is being done, what are the definitions and how they will be interpreted when this legislation is enacted.
I still maintain that to go down from 21 years to two or, as someone suggested, even less than two, will create opportunities for some unscrupulous people to exploit this piece of legislation. I can say no more than that. I hope that I do not have to remind the Chamber of it in the future. I imagine that what will happen is that we shall see once again the introduction of some rather underhand practices which somehow will be encouraged by shortening the period from 21 years to two years. After all, there has been a piece of legislation which has stood and 21 years has been considered proper for that time. Suddenly it seems that we want to have practically no length of lease at all —24 months, 18 months, or one might propose six months. I believe that this will lead to trouble.
This is a technical issue. It is not the kind of issue on which one seeks the opinion of the Committee. Therefore I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 90 to 108 not moved.]
Clause 69 agreed to.
§ 4.45 p.m.
§ Clause 70 [Interim possession orders: false or misleading statements]:
Lord McIntosh of Haringey moved Amendment
Page 56, line 14, at beginning insert:
("( ) An interim possession order shall only be issued if the person or persons subject to the order have been given reasonable notice of the intention to seek such an order in a form prescribed by the Secretary of State, which shall include information about where and how to object to the making of an order and how to appoint a legal representative, together with information about provisions contained in subsections (1) and (2) of this section.").
§ The noble Lord said: In rising to move Amendment No. 109, I shall also speak briefly to Amendments Nos. 110, 112, 116 and 117 tabled in the name of my noble friend Lord Desai.
§ We now come to Clause 70 of the Bill which deals with offences in relation to interim possession orders if the person who tries to obtain an interim possession 1107 order makes statements which he knows to be false or recklessly makes statements which are false. We shall not move later amendments about imprisonment because they have already been debated. The concept in Clause 70 of making it an offence, though not an imprisonable offence, to make such statements for the purpose of obtaining interim possession orders is totally laudable. But this provision provides an opportunity for us at least to ask what assurances are being given that the person against whom the interim possession order is sought shall be properly informed about the order.
At the beginning of the clause our amendment provides that:
An interim possession order shall only be issued if the … persons subject to the order have been given reasonable notice of the intention to seek such an order in a form prescribed … which shall include information about where and how to object to the making of an order and how to appoint a legal representative, together with information about provisions contained in subsections (1) and (2)".
I hope that to some extent we are pushing at an open door. 1 do not know whether or not this is the right place for the amendment. The Lord Chancellor's department published a consultation paper on changes to the rules of court to facilitate the interim possession order procedure which is introduced by this Bill. Paragraph 13 of the Lord Chancellor's consultation paper states:
It is proposed that an applicant should be required to give a written notice to the occupier to leave, explaining his intention to seek an interim possession order. The notice will also set out the consequences of an order, how it can be challenged and the benefit of seeking independent advice".
§ If that suggestion in the consultation paper is indeed the firm intention of the Government—at the moment it is only a consultation paper—we should be satisfied and there would be no need for this amendment.
§ Amendment No. 109 seeks an assurance that that is the Government's intention. It looks for an indication of whether they would be willing to see the intention that is expressed in the consultation document introduced onto the face of the Bill, either in this or a similar form and either in this or a comparable place—or "a better place" it would perhaps be right to say. I beg to move.
§ Lord Elton
There will be some sympathy for the principle behind Amendment No. 109 which deals with the need to give reasonable notice before telling a family which will not be one of the best funded families in society that it has to be out and under another roof in 24 hours. Not many of us, with our resources and at considerable expense, would find that easy. The people subject to these orders are not likely to have such resources or be able to afford expensive recourse. Common humanity suggests that where there is an order which may very well be justified and heeded, time should be given for alternative accommodation to be found.
§ Lord Desai
I wish to speak to Amendments No. 112 and 110 which are in my name and are placed in this group of amendments. The purpose of Amendment No. 110 basically is to add negligence as an additional offence for people making a misleading statement. There have been examples of that, especially in the case 1108 of some local authorities. It has been said that some misleading orders have been issued through negligence rather than any intent or recklessness.
I want to make quite sure that no loophole is left for people to make mistakes. When people are evicted without any proper cause, under current legislation a person has to comply with the order before he can appeal against it. He has physically to move out. If he does not, he is liable to have committed a criminal offence. Therefore persons have to move out and then appeal. We want to be quite sure that people are asked to comply with an order which has been made with proper due care and not out of negligence. That is the purpose of Amendment No. 110. Amendment No. 112 basically stiffens the punishment for making misleading statements.
§ Lord Fraser of Carmyllie
This is an important: amendment to clarify the policy on this issue before we: return to it, possibly at a later stage. Amendment No. 109, spoken to by the noble Lord, Lord McIntosh of Haringey, is, I would say to him, out of place here because it relates to the new proposed civil interim possession order and not to the criminal consequences of granting such an order, which is what the Bill deals with. Having said that, it is an appropriate moment to explain what is proposed here.
The civil order itself will be introduced by amendments to the rules of court, and that is a matter, as he will appreciate, for which my noble and learned friend the Lord Chancellor has policy responsibility. As the noble Lord observed, my noble and learned friend has issued a consultation paper on the details of how the interim possession order will work and he is currently considering responses to it.
One of my noble and learned friend's proposals was that there should be a period of notice before an interim order is granted. I notice that my noble friend Lord Elton has indicated his firm approval of such a period and I understand, more generally, that that has been welcomed by respondents. The periods suggested in the consultation paper were either 24 hours or 48 hours. Seven days is clearly rather longer than that suggested in the consultation paper and it would appear that that is too long. The matter of the appropriate period is one on which my noble and learned friend the Lord Chancellor will have to reflect, given the responses to his consultation. What we are clearly anxious to secure is a quicker and more effective procedure than the existing one.
With that explanation I hope that the noble Lord will be satisfied that, while it is an important point, it is not an appropriate place to introduce it on the face of the Bill.
Amendments Nos. 110 and 112 would create a further offence of negligently providing false or misleading information in order to obtain an interim possession order, and differentiate between the maximum penalty for this offence, which would be two years' imprisonment, and the penalty for the deliberate and reckless offender, which would rise to seven years. It is a standard provision in many Acts that it shall be an offence to provide any false information either 1109 knowingly or recklessly. Clause 70 goes further and penalises those who make false or misleading statements knowingly or recklessly. This is designed to give special protection against any abuse of the new interim possession procedure. No such offence exists where negligence is the basis of liability. Negligence involves a lower degree of culpability than recklessness. English law generally provides sufficient grounds for a criminal prosecution, and I see no reason to depart from this principle in these circumstances. With that explanation I hope that the noble Lord will withdraw his amendment.
§ Lord McIntosh of Haringey
I am most grateful to the Minister for his response to my Amendment No. 109. I am aware, as I think was obvious to him, that my amendment has been put in the wrong place. I was suggesting to him that it could be put in a better place in the Bill, but in the light of what he has told me about the process of the consultation—and he has not indicated that there is anything in the responses to the consultation which indicates disagreement with the proposal of the Lord Chancellor's Department—I am perfectly content to leave it to that process of consultation and to the making of rules of court.
As to the time of the notice, the Minister will have noted that in our amendment we said "reasonable notice"; we did not specify whether it should be 24 hours, 48 hours or seven days.
§ Lord Fraser of Carmyllie
I appreciate that the noble Lord used the word "reasonable". That was said in response to his noble friend Lord Desai, who did wish to include a period of seven days.
§ Lord McIntosh of Haringey
I recognise the distinction. I should have looked more closely at the amendments of my noble friend Lord Desai and certainly more closely at his Amendment No. 112, which goes directly against my Amendments Nos. 113 and 114. I must say to my noble friend that however much we deplore the possibility of Rachmanism— which is what this clause is about—it seems to me that seven years' imprisonment for these offences is going a bit far. I understand that my noble friend will not be moving these amendments as part of the same group, but I hope that on mature reflection he will agree with me that it would not be desirable to increase the maximum period of imprisonment—or, indeed, to have any such period of imprisonment—for an offence of this kind.
In view of the very helpful response from the Minister, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 110 to 117 not moved. ]
Clause 70 agreed to.
Clause 71 [Interim possession orders: failure to comply an offence]:
Lord Desai moved Amendment No. 118:
Page 56, line 39, after ("served") insert ("personally").
§ The noble Lord said: In moving Amendment No. 118, I wish to speak also to Amendment No. 119—in 1110 the name of my noble friend Lord McIntosh and myself —as well as to Amendments Nos. 119, 119B, 120 and 121 to 123. We have had some clarification about the interim possession order from the Minister and I am grateful to him for that. However, the procedure under which an interim possession order can be obtained is a peculiar one, where the person against whom the order is obtained may not even know that such a thing is going to be done to him. He is not going to be there; the hearings are ex parti and that person—let us call him a squatter—would be faced with an order to leave within 24 hours.
§ My amendments first allow more time for the person to comply with the order—within seven days rather than 24 hours. Then, having left the premises, the periods for re-entry are amended to within seven days or three months rather than one year. Amendments Nos. 118, 119, 119Aand 120 refer.
§ The purpose of the later amendments is again to make sure that the order is served properly and in person to the occupant, and therefore that he has full knowledge of what is being done. I am not a lawyer and I want to make quite sure that the person against whom an interim possession order is made—and it is a rather new thing in as much as the person against whom it is obtained is not going to know about it until after the landlord has been to court—has as much protection as possible and as much time as possible to comply with the order before criminal punishment is visited upon him or her. I beg to move.
§ Lord Fraser of Carmyllie
As I said in discussing the previous amendments, it is not for this Bill to determine how the new interim possession order is to be served. The question as to whether such an order will have to be served personally on the alleged squatters is therefore another matter to be governed by the rules of court and not by this Bill. Doubtless my noble and learned friend the Lord Chancellor will wish to take account of the views expressed by the noble Lord.
Amendments Nos. 119 and 120 are designed to undermine the new procedure by providing that the squatters do not have to leave until seven days after the interim possession order has been served on them, and that they do not have to leave at all if they serve notice of their intention to have the interim order set aside. If they do that, they would be able to stay until a full court hearing eventually resolves the case, which in fact would be no improvement on the present arrangements. The owner's position would, if anything, be even worse than at present since he would have wasted both time and money on an entirely useless interim procedure instead of applying straightaway for an order for possession in the usual fashion.
With regard to Amendments Nos. 119A and 119B, once squatters have left property in compliance with an interim possession order we believe that it is then necessary to protect the property for as long as possible thereafter against the same squatters regaining access. I cannot accept that either seven days or even three months is a sufficient period of time for this protection to last. We have quite deliberately provided that an offence will be committed if the same squatters return to 1111 the property as trespassers within one year in order to avoid the situation where they simply leave temporarily, perhaps taking the keys to the property with them, and then come back after a few weeks before the owner has been able to arrange for the property to be occupied legitimately by someone else.
These amendments would improve the position of squatters at the expense of the legitimate property owner. They run contrary to the thrust of what we propose. I think the noble Lord will appreciate that, for those reasons, I cannot accept them.
§ 5 p.m.
§ Lord Desai
I thank the Minister for his answer. The noble Lord, Lord Elton, mentioned 24 hours. I wish that the Minister had at least accepted Amendment No. 119, which allows seven days for someone to comply with an order, rather than 24 hours. Twenty-four hours is a little harsh, especially as a person cannot appeal until after he has moved out. If it happens to be a false eviction much hardship will be caused by someone having to move out at such short notice. If the person is to comply, allowing seven days seems reasonable. However, I shall read the Minister's remarks with interest. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 119, 119A, 119B and 120 not moved. ]
Lord Avebury had given notice of his intention to move Amendment No. 120A:
Page 57, line 6, leave out ("imprisonment for a term not exceeding six months or").
§ The noble Lord said: I know that this amendment appeared in an earlier grouping but perhaps I may point out that this is the fourth new criminal offence that your Lordships have created this afternoon.
§ [Amendment No. 120A not moved.]
§ [Amendments Nos. 120B, 121, 122 and 123 not moved. ]
§ Clause 71 agreed to.
§ Clause 72 [Power of local authority to direct unauthorised campers to leave land]:
§ [Amendment No. 124 not moved.]
§ The noble Lord said: In moving this amendment I shall, with your Lordships' leave, speak also to Amendments Nos. 128A, 128B and 135. To understand these amendments it is necessary to appreciate a crucial feature of the Caravan Sites Act 1968. That feature was that the criminal offence of unauthorised camping could be committed only in a designated area. Unauthorised camping in an area which was not designated was not a criminal offence. A designated area was one in which the Minister had decided that there were adequate camping sites for those residing in or resorting to the area. The rationale was that unauthorised camping in such an area could properly be made a criminal offence because resort could be had lawfully to an available site. In the substantial majority of cases that would be at sites 1112 provided by the local authority. In areas which were not designated, unauthorised camping was not a criminal offence because ex hypothesi sufficient sites were not available for lawful camping.
§ The underlying philosophy of the Act was that no man should be made a criminal because he had nowhere to rest lawfully. This Bill is a reversal of that philosophy. The concept of designated areas has been removed. In essence the criminal offence is unauthorised camping in a vehicle on land after notice of a direction to leave. That notice can be given irrespective of whether there is a lawful site available in the area to which the vehicle and its residents may lawfully move.
§ I shall address these features in greater detail when opposing the Motion that Clause 72 stand part of the: Bill. The short point, however, under this amendment is that it is a matter of common humanity that no one should be made a criminal by failing to move himself and his family when there is no site to which he may lawfully remove himself and his family. The purpose therefore of Amendment No. 125 is to retain the concept of designation so that only designated authorities may give directions, non-compliance with which constitutes a criminal offence.
§ The purpose of Amendments Nos. 128A and 128B is to ensure that no direction may be made which does not specify an available site to which those subject to the direction would be able to remove themselves. Perhaps I may at this point refer to Amendment No. 135. It is intended to be of similar effect in that the magistrates, before ordering removal of a vehicle and persons residing in it, must be satisfied not only that they are present on land in contravention of a local authority direction given under Clause 72 but also that there is an alternative site in the locality on which the vehicles may remain either temporarily or permanently. I shall deal more fully with those amendments in a moment.
§ I wonder what the Government will say in reply to this group of amendments. No doubt it will be along these lines. I feel confident that the noble Karl will not disappoint. He will say that 62 per cent. of local authorities are not designated and that only 38 per cent. are, so it is only the 38 per cent. which have criminal sanctions available to them. The 62 per cent. do not, and they can only have criminal sanctions to hand if the concept of designation is abandoned. It would be difficult to think of a more unmeritorious argument. The 62 per cent. are not designated because they have failed to comply with their duties under the 1968 Act. Their duty under Section 6 was to provide adequate accommodation for gypsies residing in or resorting to their area. It is notorious that across the country there has been a continuing failure to perform this statutory duty, notwithstanding the availability of 100 per cent. capital grants. Thus, put at its shortest, the law breaking local authorities will be rewarded with criminal sanctions against unauthorised campers whose predicament is attributable to the local authorities' failure to fulfil their statutory duty.
§ If the noble Earl says, "Well, that's life. We had to give authorities in non-designated areas power to deal with the nuisances created by unauthorised campers", the answer is that they already have such power and 1113 there is no need for the creation of these extended offences which are not directed to nuisance but only to unlawful occupation. In 1990, Parliament, by the Environmental Protection Act of that year, improved the summary procedure for dealing with statutory nuisances. Why are those powers not fully adequate to deal with any nuisance which may be caused by unauthorised campers? For example, if the campers create any nuisance on land a local authority can serve an abatement notice, non-compliance with which can lead to a level 5 fine. The central justification for these amendments is that no man should be made a criminal merely for remaining where he is when he has nowhere else in the area to which he and his family can move.
§ I turn to deal in more detail with Amendment No. 135. When a local authority has directed under Clause 72 that persons and vehicles remove themselves from land, then it is the magistrates' court under Clause 73(1) which has to deal with offences arising out of non-compliance with the notice. Under that subsection the local authority can complain to the magistrates' court which in turn may make an order requiring the removal of the offending vehicle. The order may authorise the local authority to do what is necessary to remove the vehicle.
§ I invite the noble Earl to give a very particular response to this amendment, the effect of which is that the court may only make an order if it is also satisfied that there is an alternative site in the locality on which the vehicles may remain either temporarily or permanently. We submit that the central vice of the Government's policy is that they are legislating for orders to remove without the least notion of the place to which the vehicles are to be removed. There is a gaping hole in Clause 73(1). Is there any reason why, under such an order, the local authority may not simply dump the vehicle on a lay-by in an adjoining district, so moving the problem on to its neighbour? There is no power, so far as I can see, for the local authority to detain or store what is the property of another pending its relocation. If the local authority has nowhere within its locality to which the vehicle can be moved, what is actually to be done with it?
What are the powers of the officers and the servants of the local authority? Under Clause 73(2) they can enter the land and take such steps to render the vehicle suitable for removal as the order may specify. But what does that mean? Does it mean putting the vehicle into working order so that it can be driven without breach of the law? Does it mean taking steps to ensure that it has an MOT certificate? Despite the fact that the authority is not specifically authorised to remove, does the noble Earl say that that is one of the things that the authority may do as a step,
reasonably necessary to ensure that the order is complied with",
under the opening words of Clause 73(2)? Or is something quite different contemplated; namely, that the local authority shall not do the removing itself, but shall order the owner to remove the vehicle so that an offence of wilful obstruction is committed if the owner does not remove it?
§ We believe that what must be contemplated is removal by the servants of the local authority. That returns us to the point of the amendment. What are the local authority's powers to remove and to where is it to remove the vehicles? I hope that the noble Earl will endeavour to give an informative reply. I beg to move.
§ 5.15 p.m.
§ Lord Avebury
The noble Lord, Lord Irvine of Lairg, has opened up a very general debate on the question of designation which, as he rightly said, was part of a bargain entered into between the local authorities and the gypsy community in 1968 whereby local authorities providing adequate sites for gypsies residing in or resorting to their area were given additional powers contained in the 1968 Act to remove gypsies from unauthorised encampments.
As the noble Lord pointed out, what the Government are proposing under the Bill is to remove the obligation on local authorities to provide sites but to extend the draconian powers of the removal of caravans to the whole of England and Wales without any new obligation being placed on the local authorities. He rightly asks: what is to happen to the vehicles which are removed from these sites and to the people living in them? I wish to reinforce the questions he has put to the Government which go right to the heart of this part of the Bill.
In the Government's consultation paper Access to Local Authority and Housing Association Tenancies of January 1994, the duty to provide temporary accommodation where the local authority has reason to believe that the applicant is homeless and in priority need—that is to say, pregnant, with dependent children or otherwise vulnerable—is to be rescinded. However pressing the need of the applicant, he or she remains on the street until inquiries are completed.
At present a local authority has a duty to secure permanent accommodation eventually for someone who is homeless, not intentionally, and in priority need. The consultation paper replaces that with a duty to provide temporary accommodation only, so that an applicant could become homeless again on the expiry of a fixed period still to be determined. Assuming that the applicant had not declined an offer of accommodation which the local authority considered satisfactory to the needs of the family, then the local authority would have a new duty to provide temporary accommodation, but whether at once or after another period on the streets is not clear.
There is no mention in the consultation paper of what is to happen to gypsies who are evicted under Clause 72. The Association of Municipal Authorities has already submitted detailed criticism of the proposals. It says that the changes in the duties towards the homeless, added to the proposals in the Criminal Justice and Public Order Bill,could mean that travelling families were deprived both of the right to a site and right to a home".Clause 72 makes it unlawful for gypsies to stop anywhere except on an authorised site. Local authorities are to have the power, which in the 1968 Act was 1115 conditional on the provision of adequate accommodation for gypsies residing in or resorting to their area, to direct gypsies to leave any land they are residing on. If the gypsies fail to leave the land, they commit an offence punishable by a level 3 fine. So the 6,000 gypsy families for whom provision has yet to be made on authorised sites will be harried from place to place, accumulating fines. They will no longer have the expectation that one day local authorities will have provided enough sites in England and Wales to cater for the whole of the gypsy population and that in the meanwhile counties which have not made adequate provision will not have the powers, which the Government now propose to give all of them, to move gypsies on.
The new duty to provide emergency assistance in the consultation paper applies to,households in priority need who have no accommodation of any sort available for occupation".I wish to reinforce the question put by the noble Lord, Lord Irvine of Lairg, as regards the application of those words to gypsies evicted from an unauthorised site. Do they mean that a gypsy family, evicted from an unauthorised site—which it may have occupied for years and without having the faintest hope of somewhere else to go—is not eligible?
Already we see the kind of problem that that will give rise to, affecting every gypsy family not on an authorised site. There is the case of Dommett Wood in the constituency of my right honourable friend the leader of the Liberal Party. I believe that it was reported in the Guardian last Saturday that 10 adults and six children in a clearing where gypsies were said to have camped traditionally for 120 years were to be evicted by the district council following the refusal of planning permission which they had applied for. As an aside, perhaps I may mention that that connects with another aspect of government policy which we may have an opportunity to discuss later, because it is the Government's belief—far fetched though it may be— that private provision of sites by the gypsies themselves is to replace the whole of the provisions hitherto offered to them by the local authorities.
It was reported in the newspaper that the eviction would not take place until next March when this Bill has become an Act. Presumably the powers in this clause apply in Somerset, a county which has not been designated under the 1968 Act. The district council would not be able to evict them now because Somerset, as I understand it, has not provided adequate accommodation for the gypsies in that area. But once the Bill is law, all the gypsies in the county not already on authorised sites will be threatened with eviction. The Government have an obligation to explain what will happen to thousands of gypsies who will be evicted and who will not be able to camp anywhere lawfully after this provision comes into effect.
What will be the combined effect of the proposals in the consultation paper, and the continuing duties of local authorities under the Children Act 1989 as far as gypsies are concerned? In that connection, have the Government considered the implications of the case of R. v Northavon District Council ex parte Smith, which was 1116 heard in July 1993? Perhaps I may remind the Committee that in that case Mr. Jimmy Smith, his wife: and five children under 10 were threatened with eviction from a caravan which was parked illegally by the side of the road. Avon County Council asked Northavon District Council either to provide the family with assistance in securing a full tenancy commensurate with their housing needs or to secure accommodation for them in a private rented property.
Section 27 of the Children Act 1989 provides that,Where it appears to a local authority that any authority mentioned in subsection (3) could, by taking any specified action, help in the exercise of any of their functions under this Part, they may request the help of that other authority …, specifying the action in question. An authority whose help is so requested shall comply with the request if it is compatible with their own statutory or other duties and obligations and does not unduly prejudice the discharge of any of their functions".The court ruled that Avon had a general duty under Section 17(1) of the 1989 Act to safeguard the welfare of children in need, and a specific duty under Section 20(1) to provide accommodation for children in need. It had the power to ask for Northavon's help in exercising those functions under Section 27 just quoted, and Northavon had no discretion to refuse that request on the ground that the council had already considered its duty under Section 65(3) (b) of the Local Government and Housing Act 1989, and had decided that it was not obliged to offer a tenancy to the Smiths. The Master of the Rolls, Sir Thomas Bingham, said:Reading these two statutory codes side by side, I find a clear parliamentary intention that children in need should not fall between them. That means a clear duty to provide or secure the provision or give assistance in relation to the securing of accommodation must rest somewhere".I should like to hear the Government reaffirm that intention this afternoon. Is it Parliament's intention—is it the Government's intention?—that families with children should continue to be protected by a safety net which ensures that if they are denied the right to continue residing in one place and have no chance of being able to reside lawfully anywhere else, they will be offered accommodation suitable for their needs? That is what the Children Act provides. The case that I have just mentioned does not give the answer because the Smith family were being evicted from the caravan that they occupied but did not own. The usual pattern of living in the gypsy community is for the family to own their own caravan. If they are evicted, it is from the site, not from the vehicle itself.
Let us suppose the Smith family had been evicted from a site, and were then unlawfully camped on the roadside after Clause 72 has come into force. As I have already suggested, under paragraph 5(1) of the consultative document, they would not be defined as "homeless", because they would still have the use of their caravan, even though by continuing to reside in it they would be committing an offence. Section 65 of the Local Government and Housing Act, or its future equivalent, would not come into play. But the Children Act still applies, and it is essential to know what the Government's policy is on this matter. Are they going to let the Northavon appeal take its course, and if the House of Lords upholds the decision of the Court of Appeal, will they refrain from attempting to alter the 1117 law? If that is so, what will be the position of families evicted from one unauthorised site, and having no alternative but to station their caravans on another unauthorised site? Would a county council still be able to invoke Section 27 of the Children Act, and would that action not restore the duty in the 1968 Act which it is proposed to repeal in Clause 75?
This may be the right moment to refer to an opinion which was given to the Save the Children Fund by the distinguished human rights lawyer, Peter Duffy, a former chairman of the international executive committee of Amnesty International and an expert on the European Convention on Human Rights. Mr. Duffy points out that the application of Mrs. June Buckley to the European Commission was declared admissible by the European Commission of Human Rights in March 1994. Mrs. Buckley, a gypsy, complained about the cumulative effect on her and her children of designation and the criminal offence which follows it under the 1968 Act, and the strict enforcement of the planning law. Mr. Duffy emphasises that up to now, all applications by gypsies against the United Kingdom have been found inadmissible by the European Commission, largely because of the existence under the law of a duty to provide sites. This, he believes, would change if the Bill (containing Clause 72) is enacted in its present form, making it likely that breaches of Articles 8 and 14 will be found.
The criminalisation of the gypsy way of life under this clause would violate the recommendations made by the Committee of Ministers against discrimination against gypsies. The Committee declared that:In their law and practice regarding the movement and residence of persons, States should refrain from any measures which would lead to discrimination against nomads for reasons of their nomadic lifestyle".Will the Government say whether they have considered the possibility of a flood of applications under Articles 8 and 14 being declared admissible by the Commission, and how they answer the charge that I now make, that what they are doing in this clause is a deliberate violation of our obligations under the convention?
The attitude of respondents to the new criminal offence in the consultation paper Gipsy sites policy and illegal camping: reform of the Caravan Sites Act 1968 was critical. I mention the example of Hertfordshire County Council (about which we know a great deal) which said:The creation of the proposed criminal offence is not likely to be helpful …, as it will bring with it major enforcement problems, which will continue indefinitely so long as there are not adequate authorised public or private sites which gipsies can use as an alternative to illegal camping. It is possible to envisage a situation where groups of gipsies are being moved on almost daily, with an increasing number of stopping places, not just traditional ones, becoming involved. This is likely to generate a much more confrontational atmosphere than exists generally at the present time. The new legislation would foster a public expectation that illegally camped gipsies should be removed immediately, which would be very expensive and which local authorities and the police might find impossible to meet. Orders prohibiting return to sites would not be easy to enforce because of the problem of identifying that it was the same gipsies who had returned. Districts that have been designated may feel aggrieved that other areas having resisted site provision, will be granted similar powers".1118 The Association of Metropolitan Authorities said that increased powers to move gypsies off unauthorised sites should only be considered in the context of adequate alternative provision being available, which of course is precisely what we tried to do in the 1968 Act. Justice expressed concern that new criminal laws were being proposed to remedy a social problem.
I am advised that the Government received nearly 1,400 responses to the consultation paper, and that the overwhelming majority believed these proposals to be unworkable. I am also told that only 660 of the responses were lodged in the Library of another place, the remainder having been excluded on the spurious grounds that they did not mention particular paragraphs of the paper.
The proposal in Clause 72 is thoroughly reactionary, taking us back to the bad old days prior to the 1968 Act when gypsies were harried from pillar to post. It will mean increased local authority spending on evictions; more unnecessary work for the courts; misery and confusion for a great many gypsy families; burdens on the county councils under the Children Act, and many cases against Britain at Strasbourg. All that to placate a small but vociferous section of the right wing of the Tory Party which is animated by fanatical hatred of gypsies and an unreasoning opposition to any measures that allow them to continue their way of life without causing disturbance to the settled population. They are mean and despicable provisions which have no place on the statute book of a nation which prides itself on its treatment of minorities.
§ 5.30 p.m.
The Lord Bishop of Liverpool
I listened at an earlier stage to the noble Lord, Lord Stanley, speaking as a landowner about the difficulties of trespass and about the unquestioned nuisance of illegal camping; and I listened with a great deal of sympathy. I was reminded of the time when, as Bishop of Woolwich, I was taken by a landowner, Uvedale Lambert, to be shown as a matter of great pride a site in Surrey properly provided and prepared for lawful camping. The simple issue of removing illegal camping has to include a proper provision of legal sites. I support Amendment No. 128A, tabled in the name of the noble Lord, Lord Irvine of Lairg, and Amendment No. 135. I believe that they hang together with the fact that my own name has been tabled to oppose the Question that Clause 75 stand part of the Bill.
The argument appears to have been, "Local authorities have failed to obey the requirement laid on them by the law, so let us repeal the law". But how can a discretionary power be expected to produce further proper provision? We are dealing with an unpopular group of people. A great deal of prejudice is expressed against gypsies. Again, I refer to a time when I was Bishop of Woolwich. I lived in a road called Asylum Road in Peckham. I remember when the gypsies arrived in that road. It was said that black people were given a rest because the hatred of so many people was turned on the gypsies. How are local authorities to resist such prejudiced feelings if they are not obliged to make 1119 provision? How will planning authorities ensure that planning permission is given when, again, prejudice is at work in opposing those requests?
I remember a councillor in Southwark approaching me in a very threatening manner and saying, "You are in favour of the homeless". Southwark was one of the boroughs which did its duty much better than others in London at a time in the 1960s when authorities in other parts of London were inclined to give such people their fare and tell them to go east to some of the boroughs which did make provision for homeless people. I understood the anger about inconvenient people who did not fit in.
It will be interesting to follow what Southwark have been doing in the meantime. In 1986 Southwark made a decision to make provision rather than to proceed with evictions. The authority had already provided, as it was required to do, for at least 15 caravans. Some argued that the borough would be swamped by gypsies. However, in 1973 Southwark produced a new 16-pitch official site and they are upgrading two further sites. Families are registered on the electoral role and children are settled in local schools. The fear of being swamped has not been fulfilled.
The statement that the 1986 Act was a failure needs further consideration. The figures that I have been given show that 60 per cent. of gypsy caravans are now legally sited, whereas in the 1960s, before that Act, less than 10 per cent. were legally sited. I do not believe we should call that a failure. I know that district councils have made the decision that swifter evictions are unworkable unless they are balanced by adequate provision of sites to which people may be moved.
I am deeply unhappy about the proposed measures. A civilised country is properly measured by how it treats its minorities, especially minorities who, for various reasons, have attracted unpopularity. A distinguished Jewish judge told me only last month when I mentioned that I was going to speak on the subject in your Lordships' House that, "Gypsies today are the Jews of yesterday". We need a mixture of private development with people being encouraged—with, perhaps, measures to encourage them—to buy their own sites and develop them, together with a mixture of local authority provision. If the duty to provide is removed, how can we expect sufficient provision to be made? How can we expect sufficient planning applications to be accepted?
Members of the Committee have talked very much about "them over there" as being a nuisance. But let us start to think about them as people—that is, families, mothers and children—and ask, "How will proper provisions be made for them?" I am thinking especially about health and education. The senior public health officer in Liverpool, Dr. Ruth Hussey, has shared with me details of a major study that she undertook about travellers and their access to health. Gypsies and ethnic minority groups have a right to equal access to health services. Can the Minister tell us how those families will receive equal access to health? Dr. Ruth Hussey says that,problems are created for health services [by] local authority policies of actively moving travellers on, thereby making follow-up more difficult".1120 For vaccination, one must have a postal address, and the same applies for hospital appointments. Members of the: traveller community are disadvantaged as regards health and as regards health care.
To enable preventive health services to be provided, health professionals need to know when travellers arrive in a district. They need to know where they are so as to be able to follow them up. The constant moving on does not help the situation. I am not sure what is the Government's intention. Do they want to accelerate a. process of assimilation? If they do, surely what would be most important would be the co-operation of the traveller community. Moreover, if they want assimilation, what would be more important than anything else would be the provision of education for children of traveller families so that they are built in and become part of a community. When we talk about health care, we need to stress that the proper pursuit of health care needs to be discussed with members of the traveller community. They may perceive that the most important parts of health care will be targets of clean water and a secure camp site.
I shall speak briefly on education. I am informed that the school attendance rate varies between 10 per cent. and 50 per cent. of eligible traveller children. Local authorities have responsibilities. Indeed, the noble Lord, Lord Avebury, asked some very important questions about the Children Act and how its provisions will be fulfilled. I have questions to ask about the Education Act 1980. Under that legislation, the local authority has a duty to make education available for all school-age children residing in its area, whether permanently or temporarily, which must embrace traveller children. How will that provision be made if then; is no duty to provide lawful sites? It seems to me that all the perfectly proper wishes to prevent illegal camping will only be sensibly and properly met if there is provision of legal sites.
The amendments which have given rise to the debate are Amendments Nos. 125, 128A, 128B and 135. In their different ways, they would all restrict local authorities in the use of what we believe is a new, quick and effective power to deal with unauthorised camping which Clause 72 provides. Let us be perfectly clear. There is unauthorised camping and there is a problem. I believe that even the right reverend Prelate the Bishop of Liverpool, who is so concerned —and rightly so—about these matters, would agree that there is a problem here which has to be addressed.
I shall run quickly through some of these amendments to explain why we believe that the power which we have in the Bill is a good one which is designed to meet the needs of both the local authority and the community it serves. Local authorities are responsible, experienced bodies and it must be for them to decide, given the availability of resources and the other duties which rest upon them, how best to use this power.
Amendment No. 125 restricts the use of the power to local authorities which have been designated under the Caravan Sites Act 1968. It is wrong in principle. Unauthorised camping can cause great nuisance, 1121 damage and distress to landowners and to local communities wherever it occurs. It does not seem sensible to us that only those authorities which have made adequate provision on caravan sites for gypsies should have adequate powers to control unauthorised camping in their areas. The fact is that only 37 per cent. of authorities have been designated, as has already been stated.
Clause 72 empowers authorities to direct any unauthorised campers, not just gypsies, to leave land and to remove their vehicles and property. However, the designation procedure, which the amendment seeks to link with the new power of direction, relates solely to the provision of sites for gypsies. It would be illogical to confine the powers of local authorities to deal with unauthorised campers (who may not be gypsies) just to those local authorities which have provided accommodation for gypsies. The amendment would therefore deny to non-designated authorities the powers which they need to control unauthorised camping by non-gypsies.
Amendments Nos. 128A, 128B and 135 also refer to the use of the power which is implied in this clause. Amendment No. 128A would require a direction given under Clause 72 to specify any available site or sites in the borough or district concerned where the unauthorised campers to whom the direction applies can lawfully reside in their vehicles. Amendment No. 128B is, I think, intended to be a proviso to the clause emphasising that for a direction to be given at all such alternative sites must be available within the borough or district. Amendment No. 135 would have a similar effect by preventing a local authority from using the direction power until it had demonstrated to a magistrates' court that there was alternative accommodation available.
The noble Lord, Lord Irvine of Lairg, wondered what I was going to say on this matter. He then proposed to tell the Committee what I would say. I do not know whether he was quite right in his submission but the Committee will be able to determine that for itself. We fully accept that the problem of unauthorised camping arises mainly because not all travellers have a lawful site on which to reside. Indeed, we have already taken steps to encourage more gypsies to establish their own sites under the planning system as it is at present. However, we do not agree with the principle that local authorities should be constrained from evicting an unlawful encampment simply because the persons whom they are evicting have no lawful place in the area where they can reside in their vehicles.
We entirely agree that the lack of alternative accommodation for unauthorised campers must be a factor in an authority's decision whether or not it should evict those people. But there may be other equally important factors which it has to consider: an encampment may cause an intolerable nuisance to the landowner and the local community; it may create a public health nuisance; or it may constitute a hazard to traffic. These amendments pay no regard to those factors. I do not think it is reasonable that a local authority should be impotent to evict such encampments 1122 on the grounds that an alternative site in the locality cannot be identified. We fully understand the problems which are experienced by genuine nomads without proper site accommodation, and we intend to reinforce our advice to authorities that they should not evict gypsy families needlessly where they are camped on council or unoccupied land and are causing no nuisance. We will also advise authorities to continue to make emergency stopping places available to gypsies where they may stay for short periods.
The noble Lord, Lord Irvine, has claimed on a previous occasion that our proposals,represent a high watermark of repressivenessand that gypsieswill be harried from pillar to post with nowhere to stay and no lawful option other than to remain on the move".That was, I thought, a somewhat intemperate and uncharacteristically unfair indictment by the noble Lord of local authorities which have a proud history of tolerance towards gypsies. Perhaps I could remind the noble Lord, and indeed the noble Lord, Lord Avebury, that at present 46 per cent. of gypsy caravans in England and Wales are stationed on council sites and a further 24 per cent. are on private authorised sites. Another 10 per cent. are stationed on land which is owned by the gypsies concerned—albeit much of it may not have planning permission. The picture of repression which the noble Lord painted, and indeed which the noble Lord, Lord Avebury, painted, does not accord with the facts.
The noble Lords, Lord Avebury and Lord Irvine, were concerned about where the gypsies would go if they were evicted. That is a perfectly genuine and correct concern; but gypsies who are without lawful accommodation will continue to do what they do now —they will camp on bits of surplus highway land and other unoccupied or derelict land for short periods and then they will move on. They will be expected to choose the location of those unauthorised sites carefully so as to avoid causing a nuisance to others. We would expect them also to be careful in how they use such sites so as to avoid giving offence to others. Provided that they meet these expectations it is unlikely that local authorities will try to evict them. We intend to reinforce our advice to local authorities that they should not evict without good cause.
I believe it was the noble Lord, Lord Avebury, who referred to families with children and asked whether they will continue to be protected by a safety net. If a gypsy household has nowhere else to park its caravan, the household may be found to be in priority need and may be deemed to be unintentionally homeless under the homelessness legislation. If that is so, the local housing authority would have a duty to secure accommodation for the household.
The Committee should also bear in mind that Clauses 72 and 73 relate to all unauthorised campers, and not only to gypsies. The so-called New Age travellers adopt a travelling lifestyle as a matter of choice. Furthermore, they appear to have no wish to establish or to reside on authorised sites. Their desire is to roam unchecked through the countryside. These amendments would 1123 accord to these persons a remarkable degree of protection under the law which frankly I do not think is justified.
I understand the logic behind these amendments. It is easy to paint a bleak picture of the future in which local authorities wield their new powers like zealots and every unauthorised camper is repeatedly moved on. However, I do not believe that that is likely to be the case. The right reverend Prelate the Bishop of Liverpool said that a civilised country is judged by how it treats its minorities. That may be perfectly true, but everyone in the country has to live within the law and it is not sufficient for people to say, "Because I want to move around I am entitled to trespass or to place myself on someone else's land and create such problems as may arise simply because that is what I wish to do".
The noble Lord, Lord Avebury, was concerned about the human rights issue. I can inform the noble Lord that we have no quarrel with the nomadic way of life. But nomadic people have to keep within the confines of the law. Illegal camping can cause great nuisance and distress. Nomadic people cannot expect to be free of the constraints which affect other citizens or to have special privileges.
The noble Lord was also concerned about the Strasbourg cases, in particular the Buckley case. The Commission has asked for further observations on the case of Mrs. June Buckley. The case is not finished and has not yet come before the Court of Human Rights and may never do so.
The right reverend Prelate the Bishop of Liverpool was concerned about planning permission not being granted to gypsies. I believe that that was what he found when he was Bishop of Southwark. The Department of the Environment's circular Gypsy Sites and Planning advises local planning authorities to include within their development plans policies to meet gypsies' accommodation needs. The law requires planning authorities to determine applications for planning permission in accordance with development plans and any other material consideration. The Government policy advice can be treated as a material consideration. Gypsies can appeal against unfair decisions by planning authorities. I believe that the planning system is transparently fair.
The right reverend Prelate and also the noble Lord, Lord Avebury, were worried about access to health facilities. Of course it is difficult to maintain continuity of health care when people are travelling around. However, regional health authorities are required to take account of travellers' needs in formulating their plans, and there are well-established arrangements for general practitioners either to provide emergency treatment to unregistered people or to treat people as temporary residents for a period of up to three months. The Department of Health is funding a number of special schemes across the country to help travellers and encourage them where possible to link up with mainstream services. Our proposals will not affect any of those arrangements and will not exacerbate the difficulties that travellers may already experience.
If, as the noble Lord, Lord Avebury, has said, it is felt that the Government are being too harsh, let us remember that everyone in this country has to live 1124 within the law. The correct steps have to be taken to protect those who are in minorities and are deserving cases, but I invite your Lordships to look at the reality. Every week local newspapers throughout the country include reports of appalling mess, nuisance and environmental damage caused by the illegal encampment of travellers. Many gypsies cause no trouble but a good number create intolerable conditions for local communities. In practice, eventually they are moved on by court action, or they may move on themselves, but I believe it is naive to imagine that none of them has a place to go. Part of the rationale for the gypsy lifestyle is the ability to move from place to place. It would be unduly constraining to require a local authority to identify an alternative site within its area, and it would be bureaucratic to impose such a requirement on local authorities collectively.
This is a sensitive and a difficult area. Of course it is important that those who are in minorities and are in difficulties should be adequately protected. I said earlier that 80 per cent. of gypsies were already on sites provided either by the council or privately, or were on their own sites. It is not the case that there is a mass; campaign, if I may so put it, against gypsies. One has to balance the rights and desires of people to move around with the conditions that those rights and desires impose upon other people. We believe that that is, the balance that we have got right in the Bill.
§ Lord Avebury
A few years ago an American scientist named Milgram conducted an experiment in which he brought ordinary American citizens into a laboratory where it was explained to them that they would be taking part in an experiment designed to measure the effect of pain on the learning process. He discovered that ordinary doctors, housewives, lawyers and so on could be persuaded, under the influence of a prestigious university institution and the professor who was standing beside them, to inflict serious pain on the so-called subjects of that experiment.
The noble Earl is a man I greatly respect. He is humane and kind and has all the human virtues. Yet he pushes this inhuman policy on gypsies because he is part of the institutional framework of the Conservative Party and the Government. I cannot believe that there can be any other explanation for the reply that he has given this evening. It totally ignores the effects on the gypsy community which will result from this provision. It is no use the Minister saying that there are plenty of other places to go and that with a little ingenuity gypsies can find alternative places to park. He knows perfectly well that that is not true. If he has any doubt about it, let him ask people like the Romany Guild, Hertfordshire County Council or any of the other 1,400 eminent persons and organisations who made representations to the Government about the original consultation paper.
The noble Earl says that it is for the local authorities to decide how they will best exercise their powers. These are powers which are to be given to them. They never had those powers in the past. They have not needed those powers in order to persuade them to provide sites under the 1968 Act. It was the bargain that 1125 they were to be given the powers if they provided the sites that resulted in a major advance in the past few years.
I know it is the opinion of the noble Earl that the 1968 Act has not worked. The figures show that he is wrong. The number of gypsies camping on unauthorised sites has decreased in the past year to its lowest level since a point in 1989. The combined total provision by local authorities and private owners has increased every year since 1990. The noble Earl is aware that we would have been on the way to a complete solution to the problem and the provision of an adequate number of sites in England and Wales for all gypsies residing in or resorting to local authority areas if we had not suddenly wiped out the incentives that local authorities had to provide such sites. First, we wiped out the financial incentives in the form of the 100 per cent. grant. I hope that we shall have an opportunity to discuss that matter later on. We are now wiping out the incentive that local authorities had under designation in the 1968 Act to provide their own sites.
It is not true that the private sector is able to provide anything like an alternative. I challenge the Minister to say what has happened since the circular was issued at the beginning of January 1994 and what changes in development plans have been effected by local authorities that include greater provision for gypsies.
§ Lord Stanley of Alderley
I am grateful to the noble Lord for giving way. Unless I read this clause wrongly —as I may well have done—the provision deals with moving on unauthorised encampments. The next clause, Clause 75, deals with the provision of sites. My noble kinsman is dealing with the provision of sites when the clause with which we are now concerned deals with moving on illegal, unauthorised campers.
§ Lord Avebury
It does indeed. It was the Minister who went into these areas. I spoke originally about the criminalisation of the gypsy way of life. The Minister said that gypsies could get along perfectly well without the sites that would otherwise have been provided by local authorities. It is said that there are plenty of unauthorised sites to which they can go which are unobtrusive and will not attract use of the powers that are being conferred on local authorities by this clause. They can camp somewhere else, either in the neighbourhood or perhaps in other parts of the country. That was the situation which obtained prior to 1968. A local authority would evict gypsies from the places they formerly occupied in one area and they would go into a neighbouring area.
I remember very well that when I was in another place the problem arose constantly. The local authority whose area included the constituency which I represented used to evict gypsies, who then went to the neighbouring county of Kent, where there was no provision for them, and they were harried from pillar to post. The same would happen now.
Whatever the Minister may say about the Government's policy on looking after the homeless, the fact is that these people will not be in priority need. Under the guidelines which his Government have 1126 published, a family which is rendered homeless by being evicted from an unauthorised site will have no claim on the authority in whose area they happen to reside because they will still be in possession of their caravan. That will disqualify them under the guidelines which have been published by the Government.
The noble Earl and his Government are creating enormous social problems by giving local authorities the power to evict in this way. I am sure that when local authorities see the results of the clause they will bitterly regret it. Not only will it result in an increase in legal costs and staffing costs in carrying out the convictions, but they will have to pick up the pieces afterwards too. This will affect not only the gypsy families in question: the next generation will suffer from the trauma which has been inflicted on it by the Government's Clause 72.
§ 6 p.m.
Perhaps I may clarify one or two matters for the noble Lord, Lord Avebury. He has made out that the Government are doing terrible things and gypsies will be harried from pillar to post. He implied that the Caravan Sites Act had almost cracked the problem. That is not so. Gypsy numbers have been increasing year after year. The noble Lord disagrees but I think that he will find that that is so. Ever since 1981 —and we are now talking about a period of more than 12 years—there have regularly been 4,000 caravans on unauthorised sites, despite all the money that has been spent. Therefore the problem has not been cracked.
Throughout that period, local authorities have dealt with this difficult problem humanely, as I am sure the noble Lord will recognise. What he is really saying is that if people want to stop somewhere and camp illegally on an unauthorised site they should be entitled to do so. I do not think that that is right. The law of the land requires people to live within the law. Just to say, "I want to stop here because it is convenient to me", is not good enough.
§ Lord Avebury
The law says that only the 38 per cent. of local authorities which are designated have the powers which are contained in Clause 72. I want to revert to that position.
When I contradicted the noble Earl I was looking at the Government's own figures in local authority returns, published by the Department of the Environment, for the number of gypsy caravans, analysed by region, every January. In January 1993 there were 13,198 caravans in total. In 1994 there were 13,060. Between those dates the number of gypsy caravans on unauthorised encampments decreased from 4,183 to 3,838.
I did not say that the problem was almost solved. I said that it was on the way to a solution. I also pointed out that the number of caravans which have been provided on authorised sites is considerably greater than the number provided on private sites. The figures so far are 5,951 in the case of councils as against 3,271 in the case of private sites. Therefore the Government's assertion that the private sector is able to take up the loss of any provision by the public sector is simply pie in the sky.
§ Baroness Faithfull
Perhaps I may ask for guidance from my noble friend the Minister and the noble Lord, Lord Avebury. I am confused. A number of us want to speak on this subject but intended to speak to Amendment No. 134. We seem to have strayed. Therefore, we are in some confusion as to whether we should speak now. Many of us, particularly my noble friend Lord Stanley and I, had intended to speak to Amendment No. 134. Perhaps we may speak on the general issues raised by Amendment No. 134.
§ Lord Taylor of Gryfe
Can the Minister give me some guidance? I understand that we are discussing relieving local authorities of the obligation which exists to provide sites under the present Act. Is that the issue, or are we discussing some other issue? Otherwise I should like to speak on the matter.
The position is fairly clear. We are discussing Amendment No. 125. That amendment is grouped with Amendments Nos. 128A, 128B and 135. Those are the amendments which are under discussion.
The Lord Bishop of Liverpool
I understand that there is some difficulty. The noble Lord, Lord Stanley, said that the amendments we are discussing were concerned with moving on and legal trespass. I believe that he wanted to head us off from talking about the provision of legal sites. However, I am not quite sure how one can consider one without the other. Amendment No. 128A is concerned with the provision of other sites.
In relation to the points that I tried to make I feel that there is a gap in the response from the Minister. I do not see that we can have an answer to those issues until he tells us why the Government are repealing the duty of local authorities to provide sites. In responding to me, the noble Earl said that everyone has to live within the law and we should not trespass. I fully agree. But the way to deal with that is to ensure that proper provision is made. That is the problem which is addressed by Amendment No. 128A. I do not see how we can keep away from Clause 75. I believe that it has to be included in a rounded discussion of the matter.
I want to press the Minister. He spoke with some pride of the figures and said that 46 councils provided sites. That was surely the result of the law as it stands. That is not failure. Nor is it a case of having almost cracked the problem. However, some progress has been made. Why do we not keep that law in place and bring greater pressure on local authorities to fulfil their obligations?
In thinking of the good of gypsy families, I asked the Minister whether the answer was to get more gypsy children to school. In response to the question as to what the gypsies would do, the Minister said that they would camp for short periods, and move on. We would hope to see steadier provision as a result of which there would be a greater possibility of children becoming established in schools.
The position which the right reverend Prelate addresses is this. At the moment, a local authority which has a certain number of caravan sites is a designated area and can move people on. We suggest 1128 that local authorities have not taken up the 100 per cent grant which was available for these people. As they have. not done so over the past 15 or 25 years, there is. no point in continuing that provision.
We are encouraging gypsies to find their own sites, as they have in the past, where they will be able to make their home. However, the very nature of being a gypsy is that one wishes to be a nomad and to move around. The two objectives conflict.
§ Lord Taylor of Gryfe
In response to the right reverend Prelate, what we are doing now is to relieve local authorities of a certain responsibility which they have at present. The Minister said that they have not fulfilled the obligation as extensively as they might. Nevertheless, to relieve them of that responsibility would not be a wise step, economically or socially. Economically, the Minister has said, if there are difficulties in the local authorities in providing housing, they could be accommodated under the Housing Act by a local authority and presumably put into bed and breakfast or their children might even be taken into care once community and the environment in which they live at the moment has been broken up. On economic and social grounds this dramatic change in the responsibilities of local authorities does not seem to me to be justified.
The Minister said that we were trying to encourage the gypsies to provide their own sites but, however desirable that may be, it is a gamble. If the local authorities have been unable to exercise this responsibility to the full in the past it is a bit of a gamble to say that perhaps the gypsies will develop their own sites. I return to the point that was made earlier. We are talking about people, about families and about breaking up families. I have been impressed by some of the briefings I have received on this matter from the Homelessness and Housing Need people and from Save the Children, who indicate that the best way to guarantee stable conditions will be through the provision of authorised sites. They are convinced of the importance of access to stable and suitable accommodation for children of mobile families.
Children are in danger if we do not place responsibility on local authorities, as exists in present legislation. In the consultative documents which preceded this Bill, I was impressed by what the Country Landowners' Association and also the National Farmers' Union said. They say that an additional criminal offence whereby it is illegal to station a vehicle on public or private land is to be encouraged but that, as currently drafted, the offence raises difficult questions of enforcement. I think that is true.
Similarly, the NFU and the police officers who will have to operate the law in due course have said that the local authorities should continue to be encouraged to provide suitable facilities for gypsies and itinerants. They also made the point that it is going to be extremely difficult to enforce this legislation. That point of view is supported by a number of constabularies which were asked to comment on the consultative document. I have 1129 an important submission from the gypsies themselves, who have made alternative proposals for the constructive reform of the Caravan Sites Act 1968.
I suggest that, before we make the substantial change implied in the legislation before us, these matters should be given very serious consideration. I have also the submission of the religious Society of Friends, with which I am associated. They too stress the importance of this in social terms. Therefore I feel that we must be extremely careful in changing the legislation in the way that has been suggested, because we are moving into an area which could have very serious social consequences.
§ 6.15 p.m.
§ Lord Hooson
It seems to me that the weakness of the Government's case here, as expressed by the noble Earl, for whom we all have a great deal of respect, is the emphasis of the obligation placed on travellers, with which we all agree: the obligation on gypsies not to park on unauthorised sites and create a nuisance for the rest of the community. With that one can agree, but there are also obligations on local government under the 1968 Act which many local authorities have chosen to ignore. There have actually been attempts in the courts to bring about a realisation of the obligations upon local authorities. These have not resulted in any action. Am I not right in thinking that there are many local planning authorities in this country which have never granted planning permission for gypsy sites, whatever the applications have been?
I have been a fairly consistent supporter of the Government in this legislation in so far as it affects travellers, who make a huge nuisance of themselves by moving in great numbers and causing the kind of reaction in our community which I think has been fully justified. It is that movement of large numbers which people in rural areas and in other areas feel threatens their own way of life. It has resulted in popular support for the Government for criminal sanctions —that is what it amounts to—against such people. But when you have the genuine nomad, the gypsy, with whom we are primarily concerned here, travelling about in fairly small numbers and when there has been a failure by local authorities to provide proper licensed sites for them, then the noble Earl is losing out on his balance. We all have rights in the community and we all have obligations. We all have obligations to obey the law, but, when obeying the law is not compatible with the nomadic life because those who are responsible for the law have not provided licensed sites, then I think it is grossly unfair. It is this element which is troubling the Committee.
§ Lord Avebury
If I could ask the noble Earl to deal with one other point, he keeps saying that the local authorities after 25 years have not complied with their obligations under the Caravan Sites Act and therefore it is not reasonable to expect them to do so now. He may well be aware that in recent years the Government have been issuing directions to local authorities which have not provided sufficient sites for gypsies in their areas to comply with the Act and to provide fixed numbers of 1130 pitches for the gypsies. I have before me, for example, an order issued by the Secretary of State on 28th November 1988, requiring Hertfordshire County Council to provide accommodation for a further 110 caravans for gypsies residing in or resorting to their area. In the case of Hertfordshire, I believe that since the publication of the Bill only one of the three sites which were to have been provided under this direction given by the Secretary of State is to go ahead. Therefore, as the Bill approaches the statute book, it has meant that the projected provision in the county of Hertfordshire has been cut by two-thirds.
I want to know from the Minister—and if he cannot answer the question today I should be grateful if he could write to me—to how many local authorities has the Secretary of State issued directions under Section 9 of the 1968 Act to provide what number of pitches, and in how many cases has the Secretary of State exercised the power of mandamus that was conferred on him by the 1968 Act to enforce those directions. I believe the answer to the latter question is probably, none. I have not heard of any, but this is the key to the statement that was made by the noble Earl that the Act has not succeeded after 25 years. The reason why it has not succeeded is that the Government have not been sufficiently firm in using the powers that they were given. As I say, it is only in very recent years that they have started issuing directions such as the one I have here in the case of Hertfordshire. I believe half a dozen similar ones have been issued to local authorities but that in no case have the Government ever sought to enforce those directions by the power of mandamus which they possess. Had they done so, they would have found that the number of pitches provided by local authorities would have accelerated considerably.
Also, the Government are being too pessimistic about the rate of provision at the moment and the ability to exceed the number of unauthorised encampments. Since the noble Earl was obviously badly briefed by the department in saying that the number of unauthorised encampments had increased every year when it declined between 1993 and 1994, I suggest that he examines the figures. Perhaps on reflection he may agree with the argument put by myself and other noble Lords that if we allowed the 1968 Act a chance to work, and if the Government were firmer about using the enforcement provisions, we would not need Clauses 72 or 75.
§ Lord Northbourne
I urge on the Committee that the ownership of sites by the gypsy population is the worst of all possible solutions. The reason local authorities have had so much difficulty in establishing sites is that people hate having them near their own property. That is because the sites are not properly managed. In order of preference, in regard to gypsy sites near me, I would put as worst of all a site owned by the population who occupy it. The next best solution would be a site owned and managed by the local authority and the best would be a site owned and managed by me.
If we could reduce the aggravation caused by the sites through having them properly managed by the local authority and ensuring that the gypsy population moved on every two or three months and that they were turned 1131 off the site if they caused trouble or left mess, then I believe that the difficulty in obtaining gypsy sites would be less than today.
I do not know whether I can help the Committee any further. The noble Lord, Lord Avebury, asked me how many directions had been given. Three directions have been given, none were for mandamus, the directions were for Hertfordshire, Avon and Surrey. My advice is that each authority is acting in good faith.
There are a number of problems here. The first is that the gypsy population has been increasing year after year. There are now some 13,000 caravans, a considerable increase on the figure of under 10,000 in 1981. Despite all the advantages of the Caravan Sites Act 1968, there is a continuing number of caravans on unauthorised sites, as there has been all along, amounting to 4,000 a year. That has been the case since 1981. The existing policy has not reduced the level of illegal camping by gypsies. Local authority site provision is not keeping pace with the growth in the gypsy population, even though since 1978 local authorities have been able to claim a 100 per cent. grant in respect of the capital costs of site provision.
I agree with the noble Lord, Lord Northbourne, that on the whole people are not keen on having caravan or gypsy sites on their doorstep. That is one of the problems. However, because there is that difficulty, it does not give the right to gypsies to set themselves down anywhere else. We need to try to encourage people to obtain the sites. The local authorities will still have the ability to make caravan and gypsy sites and the gypsies will be able to have their own caravan sites. The number of sites privately owned by gypsies has increased substantially, I think I am right in saying by about 135 per cent.
The picture that hereafter all gypsies will be pilloried, left, right and centre, is not fact. Eighty per cent. are already on sites. We must try to ensure that they are looked after—if that is the right expression, which it is not—in a way that is compatible with their form of life and with the law. Local authorities have difficult and conflicting duties to carry out. There is often with campers—I use that all-embracing term, whether they are gypsies, New Age travellers or whoever else—an appalling mess, nuisance and environmental damage. Local authorities must take that into account. It may be that they will have to say to the people who cause the damage: "I am sorry, you've got to move on and find somewhere else because it's not fair to the rest of the community that this area should be in such a parlous state". That is a perfectly justifiable reason for a local authority to move someone on.
Those reasons cause us to suggest that it is right for local authorities to have powers which they will carry out sensitively, as they have in the past. It is right for them to do that and for the community as a whole that there should be places where gypsies can reside. But it is not right for them to remain if they are residing there unlawfully. However one argues the case, we cannot justify —no one can—the continuation of illegal acts. However, that is a separate matter from trying to find a suitable, adequate alternative which would be legal. The 1132 conditions which local authorities have are difficult and these powers will enable them to carry out their duties properly.
§ Lord Irvine of Lairg
The debate will continue tonight under the rubric of the many amendments which lie ahead and when we will have the opportunity to deal with some of the arguments which the noble Earl has brought forward. Specifically, I desire to repudiate the suggestion which recurred in the noble Earl's address, that a principal solution would be for the gypsies to provide sites for themselves through the use of the planning system.
Planning policies have, as the noble Earl is or should be aware, become less accommodating, so that even if a gypsy had the resources to provide a site for his family or others, he would find it much more difficult to do so lawfully. Earlier this year, the Government of which the noble Earl is a member reversed to a significant extent the supportive approach hitherto extended to applications for planning permission for gypsy sites. The new approach is to be found in Circular 1/94, issued by the Secretaries of State for the Environment and Wales. Gone is the previous recognition that it is necessary to accept such sites, even in areas of open land where there are land use policies severely restrictive to development, such as green belts and areas of outstanding natural beauty. Now it is the policy that:As a rule it will not be appropriate to make provision for gypsy sites in such areas".Moreover, the Secretaries of State have declared that:Past gypsy sites might be acceptable in some rural locations. The granting of permission must be consistent with agricultural, archaeological, countryside, environmental and green belt policies".The likelihood of many new privately provided gypsy sites being consistent with all such development plan policies is remote, particularly if businesses are to be run from the site on which the caravans are stationed, which many gypsies prefer.
Moreover, the Government have now explicitly abandoned earlier advice that:The special need to accommodate gypsies and the consequences of not accommodating them should be taken into account as a material consideration in reaching planning decisions".So Secretaries of State will apparently no longer recognise such considerations of significant factors in favour of the grant of permission notwithstanding any conflict with planning policy.
Moreover, it needs to be remembered, as has been mentioned, that planning applications for gypsy sites are generally not welcomed locally, and were not, even under the previous approach, which was more supportive. The research that was published in 1991 by the Department of the Environment stated:The refusal rate for gipsies who have applied for permission is extremely high, perhaps 90 per cent.".The result of the Secretary of State's new planning policy can only be a significant reduction in the number of applications that will achieve planning permission. With very great respect to the noble Earl, he does not give the Committee realistic advice in suggesting that any solution to the problem will be found in gypsies providing lawful sites for themselves.
1133 There was at the heart of the noble Earl's reply a non sequitur. On the one hand he was saying that the Caravan Sites Act 1968 has not completely cracked the problem. That is of course correct, because so many local authorities flouted the will of Parliament and did not comply with that Act. But the noble Earl then drew from that proposition the wholly inadmissible conclusion that therefore the Act should be repealed, when manifestly that would make the existing situation so much worse.
There is a problem. We accept it. The issue, however, is one of principle. It is, as the noble Earl himself acknowledged, that there are insufficient lawful sites for gypsies. He acknowledged that that was a problem. Why does that problem exist? It exists because so many local authorities have flouted the will of Parliament and have not complied with their statutory duty under the Caravan Sites Act. I have to say to the noble Earl that it is rather rich, when he refers to gypsies, to intone to this Committee that everyone has to live within the law, when the principal cause of the problem is that 62 per cent. of local authorities have not achieved designation because they have not complied with their legal obligations.
In these circumstances, and in view of the many supportive speeches that have been made around the Chamber, I desire to test the opinion of the Committee.
§ 6.32 p.m.
§ On Question, Whether the said amendment (No. 125) shall be agreed to?
§ Their Lordships divided: Contents, 66; Not-Contents, 144.1134
|Addington, L.||Liverpool, Bp.|
|Airedale, L.||Lockwood, B.|
|Archer of Sandwell, L.||Longford, E.|
|Ardwick, L.||Macaulay of Bragar, L.|
|Avebury, L.||Mackie of Benshie, L.|
|Blackstone, B.||Mallalieu, B.|
|Carmichael of Kelvingrove, L.||McIntosh of Haringey, L.|
|Congleton, L.||Merlyn-Rees, L.|
|Dean of Beswick, L.||Mishcon, L.|
|Dean of Thomton-le-Fylde, B.||Monkswell, L.|
|Desai, L.||Morris of Castle Morris, L.|
|Donaldson of Kingsbridge, L.||Mulley, L.|
|Donoughue, L.||Nicol, B.|
|Dormand of Easington, L.||Pitt of Hampstead, L.|
|Elis-Thomas, L.||Plant of Highfield, L.|
|Ennals, L.||Rea, L.|
|Falkland, V.||Redesdale, L.|
|Gallacher, L.||Richard, L.|
|Gladwyn, L.||Robson of Kiddington, B.|
|Glasgow, E.||Russell, E.|
|Gould of Potternewton, B.||Sefton of Garston, L.|
|Graham of Edmonton, L.||St. Edmundsbury and Ipswich,|
|Greenway, L.||Stedman, B.|
|Harris of Greenwich, L.||Stoddart of Swindon, L.|
|Hooson, L.||Taylor of Gryfe, L.|
|Irvine of Lairg, L.||Thomson of Monifieth, L.|
|Jay of Paddington, B.||Thurlow, L.|
|Jeger, B.||Tordoff, L. [Teller.]|
|Jenkins of Putney, L.||Turner of Camden, B.|
|Judd, L.||White, B.|
|Kagan, L.||Williams of Elvel, L.|
|Kirkhill, L.||Williams of Mostyn, L.|
|Kissin, L.||Winchilsea and Nottingham, E.|
|Addison, V.||Lauderdale, E.|
|Allenby of Megiddo, V.||Leigh, L.|
|Annaly, L.||Lindsay, E.|
|Arran, E.||Lindsey and Abingdon, E.|
|Astor, V.||Liverpool, E.|
|Balfour, E.||Long, V.|
|Banbury of Southern, L.||Lucas of Chilworth, L.|
|Barber of Tewkesbury, L.||Lyell, L.|
|Belhaven and Stenton, L.||Mackay of Clashfern, L. [Lord|
|Boardman, L.||Macleod of Borve, B.|
|Borthwick, L.||Mancroft, L.|
|Boyd-Carpenter, L.||Marlesford, L.|
|Brabazon of Tara, L.||Marsh, L.|
|Brentford, V.||McColl of Dulwich, L.|
|Bridgeman, V.||Melville, V.|
|Brigstocke, B.||Merrivale, L.|
|Brougham and Vaux, L.||Mersey, V.|
|Bruntisfield, L.||Milverton, L.|
|Burnham, L.||Monteagle of Brandon, L.|
|Burton, L.||Morris, L.|
|Cadman, L.||Mountevans, L.|
|Carlisle of Bucklow, L.||Mowbray and Stourton, L.|
|Carnegy of Lour, B.||Moyne, L.|
|Carnock, L.||Munster, E.|
|Chalker of Wallasey, B.||Murton of Lindisfarne, L.|
|Chesham, L.||Napier and Ettrick, L.|
|Clanwilliam, E.||Nelson, E.|
|Clark of Kempston, L.||Newall, L.|
|Clinton, L.||Nickson, L.|
|Cochrane of Cults, L.||Northbourne, L.|
|Colwyn, L.||Orkney, E.|
|Cork and Orrery, E.||Orr-Ewing, L.|
|Courtown, E.||Oxfuird, V.|
|Craigavon, V.||Palmer, L.|
|Craigmyle, L.||Pearson of Rannoch, L.|
|Cranbrook, E.||Peel, E.|
|Cross, V.||Perry of Southwark, B.|
|Cullen of Ashbourne, L.||Peyton of Yeovil, L.|
|Cumberlege, B.||Platt of Writtle, B.|
|De L'Isle, V.||Plummer of St. Marylebone, L.|
|Dean of Harptree, L.||Quinton, L.|
|Denton of Wakefield, B.||Reay, L.|
|Dixon-Smith, L.||Renton, L.|
|Dudley, E.||Rodger of Earlsferry, L.|
|Elibank, L.||Rodney, L.|
|Ellenborough, L.||Saltoun of Abernethy, Ly.|
|Elphinstone, L.||Savile, L.|
|Elton, L.||Seccombe, B.|
|Faithfull, B.||Selborne, E.|
|Ferrers, E.||Sharples, B.|
|Flather, B.||Sherfield, L.|
|Fraser of Carmyllie, L.||Shrewsbury, E.|
|Gibson, L.||Simon of Glaisdale, L.|
|Gisborough, L.||Skidelsky, L.|
|Goschen, V.||St. Davids, V.|
|Grantchester, L.||Stanley of Alderley, L.|
|Gray of Contin, L.||Strathclyde, L.|
|Gridley, L.||Strathcona and Mount Royal, L.|
|Halsbury, E.||Strathmore and Kinghorne, E.|
|Henley, L.||Teviot, L.|
|Hertford, M.||Thomas of Gwydir, L.|
|Hives, L.||Thomas of Swynnerton, L.|
|HolmPatrick, L.||Trumpington, B.|
|Hooper, B.||Ullswater, V. [Teller.]|
|Howe, E.||Vinson, L.|
|Ingrow, L.||Wakeham, L. [Lord Privy Seal.]|
|Jeffreys, L.||Wharton, B.|
|Johnston of Rockport, L.||Windlesham, L.|
|Kenyon, L.||Wise, L.|
|Kimball, L.||Wynford, L.|
|Kitchener, E.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.1135
§ 6.42 p.m.
Earl Ferrers moved Amendment No. 125A:
Page 57, line 25, after ("vehicles") insert ("within that authority's area").
§ The noble Earl said: In moving this amendment I shall speak also to Amendment No. 134A. These are technical amendments which make clear the intention that local authorities may only use the proposed powers under Clauses 72 and 73 to give directions to unauthorised campers and evict them from land within their own areas. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 126 not moved.]
§ 6.45 p.m.
Lord Irvine of Lairg moved Amendment No. 127:
Page 57, line 29, at beginning insert:
("and that such persons are behaving in such a manner as to create a significant nuisance or a significant highway obstruction").
§ The noble Lord said: I rise to move this amendment and, with the leave of the Committee, I shall speak also to Amendment No. 129A, which was formerly Amendment No. 134. We shall not move Amendment No. 129.
§ The effect of Amendment No. 127 would be that a local authority could only give a direction under Clause 72(1) where it appeared to it that the persons to whom the notice was directed were behaving in such a manner as to create a significant nuisance or highway obstruction. We invite the Government to say whether their position is that local authorities should be entitled to give directions in respect of unauthorised encampments which are causing no harm or nuisance whatsoever. That is the effect of the Bill, because the only conditions for giving the direction are residence in a vehicle on the highway or on unoccupied land or on occupied land without the consent of the occupier.
§ Will the noble Earl confirm that the local authority in its absolute discretion can require unauthorised campers to leave, although the unauthorised encampments are causing no harm or nuisance whatsoever? We ask how it can be just to require them, under pain of criminal sanction, when they have nowhere to go, to leave places where they are causing no harm or nuisance whatever.
§ On 10th February the Minister in another place said that there was no reason why local authorities should not continue to tolerate unlawful encampments that cause no harm or nuisance; local authorities would not be forced to use their powers under the proposed legislation.
§ Why do we not do it and put the matter right in this Chamber? The purpose of this amendment is to remove the right of local authorities to use the new powers in circumstances in which there is no practical justification for their use because the unauthorised encampments are causing no harm or nuisance whatsoever.
§ We support Amendment No. 129A. Clause 72 gives draconian powers to local authorities to evict families from unauthorised encampments even in cases where, as I have just emphasised, no harm or nuisance is being caused. Could anyone of ordinary conscience doubt that no reasonable local authority could make a direction until it had considered the age of the children affected, 1136 the arrangements for their schooling, their health and their general welfare—and do it not only for the young but for the old as well?
§ As it stands the Bill gives summary powers of eviction to local authorities without imposing on them any responsibility to consider the human consequences of their action. This amendment gives the Government an opportunity to accept some restraint on humanitarian grounds. I beg to move.
§ Lord Renton
I am unwilling to support this amendment. I can well imagine circumstances—I speak from experience of living in a village—in which people just place themselves in a position where it is undesirable for them to be but might not be behaving technically in such a manner as to create a significant nuisance or a significant highway obstruction. One does not want to weary the Chamber with specific examples, although there are many. I should have thought that the Bill as it stands has the matter about right.
The amendment uses the words "a significant highway obstruction". People could be creating an obstruction to the occupiers, perhaps the farmers, and those who are on the land without obstructing the highway. They might merely be obstructing the work that is being done on a farm, for example. Therefore, to that extent I believe that the amendment is quite unacceptable as well as for the more general reason that I mentioned.
§ Lord Hylton
In regard to an earlier clause in this Bill I cited two examples within the last year, one from Somerset and one from Avon, in which campers were creating nuisance and obstruction. One of them happened to be on a bridle path and footpath and the other was in a small public park. Those seemed to me to be exactly the kind of cases envisaged by Amendment No. 127, which is a useful amendment and one that I wish to support.
There is a range of circumstances in which an authority might consider using the direction power which falls outside the scope of Amendment No. 127. For example, an authority might judge that the loss of an amenity was a sufficient reason to direct unauthorised campers to leave a site in an area where development is subject to strict control; or it might consider it reasonable to use. the power where a private landowner complained about being deprived of the use of his land.
The noble Lord, Lord Irvine, was particularly worried about these matters. I have no doubt that the level of nuisance caused by the presence of an unauthorised encampment, whether or not a highway is subject to obstruction, will be factors that a local authority will weigh in the balance before deciding whether to use its power of direction. I think we can and must rely on local authorities not to take precipitative action, for these and other reasons.
Amendment No. 129A requires authorities to take account of the personal circumstances of unauthorised campers before they can give their directions. I know that there are certain organisations—such as the Children's Society, the Save the Children Fund and the 1137 National Childbirth Trust—who have expressed concern about the Government's proposals to reduce unauthorised camping. They fear that authorities will use their powers arbitrarily and that increased evictions will further restrict the access of gypsies to education and health services. Those organisations are, quite understandably, particularly concerned about the implications for children, and for women who require ante-natal or post-natal maternity care.
I understand those concerns but, for a number of reasons, I think that they are misplaced. Our proposals are intended to encourage gypsies to establish their own authorised sites, which should provide a stable home base. This would secure both regular school attendances and easier access to health and welfare services. The Government commit considerable resources towards resolving the particular difficulties experienced by local education authorities in ensuring access to educational services for travellers' children. In the present financial year grant payments of some £10 million expenditure in England and Wales have been made on this work.
General medical and hospital services are available to travellers on the same basis as they are to the rest of the population. Health authorities are expected to take account of travellers' needs when planning services.
We recognise that the nomadic lifestyle is one which can inevitably cause problems with the continuity of healthcare —that is inherent with the very style of life —but in terms of primary medical healthcare there are well-established arrangements for general practitioners either to provide emergency treatment to persons not registered with the practice, or to treat people as temporary residents for a period of up to three months. In an attempt to improve the access to primary health services for a variety of people who are without permanent accommodation, the Department of Health is funding some 30 special schemes across the country.
Clause 72 provides a statutory defence where an unauthorised encampment is established on land because of illness or other emergency. Local authorities are experienced and responsible bodies, and their duties towards homeless people and children are already laid down in statute. It remains incumbent upon local authorities to observe those duties in all that they do, and to act upon them where appropriate. I do not think, therefore, that it is necessary to place such a requirement as the noble Lord, Lord Irvine, has in mind on the face of the Bill.
§ Lord Irvine of Lairg
The noble Earl is not in a giving mood on this amendment. I hope that that situation will not continue throughout the whole of this stage of the Committee's proceedings. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 128, 128A, 128B, 129 and 129A not moved.]
Lord Irvine of Lairg moved Amendment No. 130:
Page 57, line 36, at end insert:
("( ) A direction under subsection (1) shall not take effect until 24 hours after it is served.").
§ The noble Lord said: I hope that this modest amendment will find the noble Earl in a somewhat more giving mood. The purpose of this amendment, which is very modest in scope, is to give a mere 24 hours for compliance with a direction after it has been served. It is important that the criminal law be certain, and this provision guarantees at least 24 hours before the direction bites. Such a period would enable legal advice to be taken on an urgent basis.
§ It is true that the obligation is to leave as soon as practicable under Clause 72(3) (a), but a minimum period of 24 hours in which to take stock—without being under any obligation—and to consider one's position, without the direction having any effect, is surely only reasonable. It would, incidentally, be likely to lead to fewer breaches of the peace, because it is too obvious that an eviction order which is sought to be imposed with immediate effect and without any prior notice could lead to serious trouble in practice.
§ Finally—I hope that the noble Earl will find this a compelling point in favour of this amendment—it is vital that there be this short breathing space of 24 hours to reduce the risk of families being broken up. The danger of a speedy eviction is that if the family is not all together at the moment of eviction they can be separated and experience great difficulties in establishing future contact. This would cause unendurable hardship.
§ I hope that the merit of this modest amendment will find favour with the Government and that the noble Earl will at least indicate that he will give an amendment along these lines very serious consideration. I beg to move.
§ Lord Renton
I wonder whether it has occurred to the noble Lord, Lord Irvine of Lairg, that the words of subsection (3) (a), "as soon as practicable" could last longer than 24 hours?
§ Lord Irvine of Lairg
It may be that the noble Lord, Lord Renton, did not hear me, but I did refer to the obligation to leave as soon as practicable. Of course that could extend beyond 24 hours, and would continue to do so if this amendment was accepted. The point of this amendment is that there should be 24 hours within which the obligation to leave does not arise; that there should be a period from the giving of the direction, the making of the direction, of 24 hours, in which a family has an opportunity to take stock of its position, to get itself together and to consider how to move forward, without being under any obligation to leave at all, whether as soon as practicable or not. After the 24 hours has elapsed they would be under an obligation to leave as soon as practicable.
The last intervention of the noble Lord, Lord Irvine of Lairg, was the most telling of the lot, because what he really said is that these people must be allowed to take stock of their position, get themselves together, and do everything like that, before they move but, he said, they ought to move after 24 hours. The words are perfectly clear. My noble friend Lord Renton was right to refer to this when he said that the words say that they have to move as soon as practicable. It may well be that it would be more than 24 hours, but of 1139 course if you put in "a minimum of 24 hours", that would become the accepted minimum. The whole point about this clause is that the direction, once it is given, should be carried out by the campers as soon as practicable.
In the case cited by the noble Lord, Lord Irvine of Lairg, where children were away—where they were possibly at school—and had not gathered their bits and pieces together, it would obviously be impracticable for them to move as quickly as that. But to say that once you have issued an instruction there should in all cases then be a 24-hour moratorium under which you do not have to leave but after which you have to leave as soon as practicable destroys the noble Lord's case. What you really want to do is to say, "As soon as is practicable those people must leave". If that is more than 24 hours, so be it, but I do not think that they should automatically be given a moratorium of that nature if in fact they could move with convenience beforehand.
§ 7 p.m.
§ Lord Irvine of Lairg
The capacity of the noble Lord, Lord Renton, to mislead the noble Earl is greater than I had thought it could possibly be. The position that I am submitting is perfectly plain. I am not suggesting by this amendment that these persons should be disadvantaged so that they have 24 hours within which they must move. Under the existing provision they will have to leave as soon as practicable. The point is that they should have 24 hours within which they will not be under any obligation to move. No one can come along to them in that 24 hours and say, "It is practicable for you to have left by now", and harry them to leave when they may have all manner of reasons for saying that it is not practicable. What in the name of goodness is wrong with a modest provision which says that an eviction may not take place immediately? People will be given 24 hours within which to gather themselves together and to consider their position without anyone being able to say to them, "You must go" or "It is practicable for you to go". After they have had this modest mercy, then the obligation on them will be to leave as soon as practicable. I urge the noble Earl to consider again.
§ Lord Hylton
Before the noble Earl replies, I hope he will address himself to the point made by the noble Lord, Lord Irvine of Lairg, in his first speech about the avoidance of violence when people are told to move from somewhere where they have been encamped.
§ Lord Renton
We should also remember that very often the occupier of the land will have asked these people to go; and perhaps asked them several times. It is only as a last resort that he tells the local authority about them and asks the local authority to give a direction. When that happens I should have thought that they should be asked to go as soon as practicable, even within 24 hours.
The noble Lord, Lord Irvine of Lairg, is so persuasive that one always has to be very careful when one listens to him because he would charm the leaves off a tree. He suggested that we had said that there are 24 hours in which a person must move. No one 1140 has said that. What the noble Lord has said is that there should be 24 hours in which one need not move. If one is going to give a direction to move which has to be carried out as soon as is practicable, I cannot see any reason for saying, "Do it as soon as possible, but you don't have to bother for 24 hours". As my noble friend Lord Renton said, people may have been asked to leave. The owner may have become totally frustrated and so goes along to the local authority and says, "Look, will you give a direction?" The local authority considers all the circumstances of the case and says, "Yes, we will give a direction". Then the direction is, "You have to move but you have to move as soon as is practicable". I cannot see any advantage in building in the 24 hours; in which they need not do anything.
§ Lord Irvine of Lairg
The advantage is that there would always be scope for argument as to whether it was practicable for people to leave. They could be; harried with suggestions that they should leave immediately because it is practicable for them to leave immediately, which they dispute. Why not just give them 24 hours in which they cannot be harried?
For the very reason that that would be even worse. If they are going to argue, fuss and complain about whether their moving is as practicable as possible, there will be much more of an argument if you have 24 hours in which to let the whole thing fester —and then 24 hours later you start the battle royal. If an order is given to move, they are not to move immediately but to move as soon as is practicable. I do not see the point in saying, 'That's all right, but you can stay on for another 24 hours and then we will consider all the arguments in 24 hours' time".
§ Lord Avebury
In that case, why has the Minister put 24 hours as the period which is allowed for a person to comply with an interim possession order under Clause 71?
§ Lord Harris of Greenwich
The noble Earl is clearly under instructions from his right honourable friend to accept none of these amendments. So, irrespective of the merits of the arguments, there is very little prospect of any concession being made. That is a great pity because I think major social problems will arise as a result of the Government's posture on this matter.
§ Lord Irvine of Lairg
I brought forward the amendment with some expectation that it would be accepted, despite the attitude of the Government which the noble Lord, Lord Harris of Greenwich, has identified. I do not think there is any rational objection to this amendment. If accepted it would be both humanitarian and would have a tendency to reduce the risk of violence. But worse arguments, plainly, will prevail. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Irvine of Lairg moved Amendment No. 130A:
Page 57, line 46, leave out ("3") and insert ("1").
§ The noble Lord said: The Government propose to increase the maximum fine for unauthorised camping from level 1 under the 1968 Act to level 3 under this Bill. Level 1 is £200; level 3 is £1,000; so the increase is fivefold. What is the justification for the increase? So far as I am aware, none has been offered.
§ I appreciate that the noble Earl will say/Trust the courts. The fact that £1,000 is the maximum does not mean that £1,000 will be imposed in all cases", and so on. But once you increase the maximum to £1,000 there is every risk that it will be imposed in some cases. The higher the level of maximum fine the greater the risk of non-payment and imprisonment in default. The risk of imprisonment is a matter to which I shall return when we oppose the Question that Clause 72 stand part of the Bill. Meanwhile, I would welcome the noble Earl informing the Committee what is the rationale for this increase.
For a fine to be effective as a fair penalty it has to be commensurate with the offence and also sufficiently onerous to deter a potential offender.
The circumstances of unauthorised camping vary enormously. At one end of the scale is the single caravan, parked temporarily and inconspicuously, causing offence to nobody. We would not expect a direction to be given in such circumstances, and no question of a penalty should arise from that. But at the other end of the scale is the mass invasion by travellers who appear determined to demonstrate their disregard for the rights, feelings or safety of landowners, the safety of neighbouring occupiers or the opinions of members of the public. They just want to sit wherever they wish.
In the most serious of cases, the police would be expected to take action under their powers in Clause 56. Failure to comply with a direction under those provisions would attract a fine not exceeding level 4, which is £2,500, and also a possibility of imprisonment. Where, for whatever reason, the police decide not to take action, the matter would be left to the local authority. It is right that failure to comply with a direction given by a local authority should be a less serious offence than failure to comply with a direction given by the police. This is reflected in the level 3 fine prescribed by Clause 72. But I do not think that failure to comply with a local authority direction is necessarily so much less serious as to justify only a level 1 fine, nor do I think that a level 1 fine is likely to deter potential offenders.
Whatever the maximum penalty may be, the amount of the fine in any particular case will be a matter for the court to decide. The Government have merely to set the maximum and the court decides within that limit what is the correct fine for the case under consideration. The Government believe that magistrates need wide powers to deal with the wide range of circumstances of unauthorised encampments. I do not think that the limit proposed by the noble Lord in his amendment provides those wide powers. On reflection, I hope that the noble Lord will agree.
Earl Ferrers moved Amendment No. 131:
Page 58, line 15, after ("(b)") insert ("in England").
§ The noble Earl said: In speaking to this amendment perhaps I may also speak to Amendments Nos. 132 and 133. These are purely technical amendments which take account of the new titles which will be accorded to local authorities in Wales from 1st April, 1996 by the Local Government (Wales) Bill. They are necessary so that statutory references to local authorities include reference to the new authorities when they are created. I beg to move.
§ On Question, amendment agreed to.
Earl Ferrers moved Amendments Nos. 132 and 133:
Page 58, line 16, at end insert:
("(c) in Wales, a county council or a county borough council").
Page 58, line 27, at end insert:
("(7) Until 1st April 1996, in this section "local authority" means, in Wales, a county council or a district council.").
§ On Question, amendments agreed to.
§ [Amendment No. 134 had been withdrawn from the Marshalled List.]
§ On Question, Whether Clause 72, as amended, shall stand part of the Bill?
§ Lord Irvine of Lairg
Hitherto criminal sanctions have applied only in designated areas where there was an acceptable provision of sites. Now criminal sanctions will apply on the service of a notice by a local authority whether or not there is any site in the area to which a nomad may lawfully resort. The likelihood is that local authorities will adopt a policy of serving such notices irrespective of whether there is a lawful site to go to and irrespective of whether there is any harm sufficient to require intervention.
The failure of over 60 per cent. of all authorities to comply with their statutory duty after nearly a quarter of a century demonstrates a general lack of sympathy for gypsies. At the very least, once some authorities pursue an aggressive use of the new powers to drive unauthorised campers out of their areas, others will respond with a similar policy, if only to protect their own areas. No authority is likely to volunteer to provide a refuge for those driven out of other areas.
Similarly, outside the metropolitan areas, there will be two authorities under this Bill who will be given powers to serve notices in each district—the county council and the district council. It will soon become known which authority will use its powers more readily and no doubt which will gain the popularity such action may attract locally. In practice, intolerance will drive out tolerance. That has always been why a national policy to ensure that all authorities provided an adequate number of sites was necessary.
The reality is that these powers will be used and not left unused, even if there is no lawful site for a person to resort to in the area and even if the gypsies are doing no harm or nuisance. That must be what the Government intend should happen as a result of 1143 removing the need for designation if the powers are to be invoked and by not restricting the circumstances in which notices can be served under Clause 72.
There are five fundamental objections to the Government's approach to the extension of the criminal law in this area. First, it constitutes unjustifiable discrimination against those residing in vehicles. Secondly, it condones the failure of local authorities to comply with their statutory obligations and will penalise the individuals whom these duties were intended to assist. Thirdly, there is a high risk of imprisoning individuals because they have no lawful place of abode. Fourthly, force will be fruitless in practice, and, fifthly, there are already adequate statutory remedies for nuisances caused by unauthorised campers.
One of the less attractive features of the Government's attempt to justify their approach has been to claim that they propose to remove existing discrimination in the legislation. The Government's case is that the existing offences do not apply to all illegal campers and only to gypsies, who are defined as those of a nomadic habit of life, whatever their race or origin. The Government propose to make the new criminal offences applicable to all persons residing in vehicles.
First, the increased ambit of the offences may bring within the criminal law, for example, those on holiday in a caravan on an unauthorised site. Do the Government really believe that to be desirable? But it remains perfectly obvious that these provisions will principally affect, and are designed to apply to, those falling within the statutory definition of a gypsy. Who else resides in a vehicle on an unauthorised site normally but a person of a nomadic habit of life?
Whatever the precise group to which the provisions apply, they remain fundamentally discriminatory. There is no criminal offence of intentional trespass as such, but the offences which the Government propose discrimi-nate against those who trespass with a vehicle in which they reside. There is no rational ground for such discrimination. Is it to be suggested that the public interest would be better served if the same individuals were to camp unlawfully in a tent or sleep rough? Why should individuals be subject to the criminal law for having their own mobile roof rather than trespassing under someone else's roof? What is the rational basis for that discrimination?
Under the present law, it is arguable that the discrimination is justified. Circular 57/78, which stands today, says of the use of criminal sanctions that they,are severely discriminatory against one group of people and their use is justifiable only on the basis that the duty of the responsible authority with regard to that group has been fully implemented—that is to say, by providing sufficient sites".It is that justification which is negated by this Bill. The discrimination which this Bill involves condones the failure of local authorities to comply with their statutory obligations and penalises those individuals whom those duties were intended to assist.
In replying to the debate on Second Reading, the noble and learned lord, Lord Fraser of Carmyllie, stated that the Government accept that there is a direct connection between the shortfall in authorised sites and the high levels of unauthorised camping. What the 1144 Government are in reality inviting Parliament to do in this Bill is to abandon any national policy of assistance supporting the provision of sites when there are around 4,500 caravans on unauthorised sites. But they are then; because over 60 per cent. of local authorities have not discharged the duty which Parliament imposed on them over 20 years ago. The Government's response to that lamentable failure, the resulting shortfall in supply and the unauthorised camping is a perverse one. The rational response would be to ensure that the authorities comply with their legal duties, so removing the major cause of unauthorised camping. The Government's response is effectively to condone the breach of statutory duty by large numbers of local authorities, to abandon the major source of supply for new sites, and to impose criminal penalties on those who have no authorised site to which to go.
The Government's new approach also risks imprisoning individuals because they have no lawful place of abode. It is quite true that the offences proposed under Clauses 72 and 73 have as their sanction a fine but the reality will be different, as the Government themselves recognised in a consultation paper they issued on gypsy site policy in 1992, which stated:Fine enforcement action by the courts against a moving population is very difficult and the last resort, imprisonment, may be reached in a high proportion of cases".Notwithstanding that recognition, the Government propose to increase the likelihood of imprisonment by, as I pointed out, increasing the scale of fines.
What kind of penal policy is it that creates offences; for those with no lawful place of abode, recognising that in a high proportion of cases imprisonment may be the manner by which offenders will have to be dealt? I shall answer that question: it is a penal policy that appeals to this Government and to no one else. Is it really sensible; to provide accommodation for a person in prison rather than accommodation for the vehicle in which that person lives?
There is no need to look further for a recognition of the sheer crassness of the Government's approach than the Government's own extant advice to local authorities, which states:The departments have always taken the opportunity to remind local authorities of the human misery as well as the considerable waste of time and financial resources and the increased pressure on neighbouring authorities caused by the indiscriminate eviction of gypsies from illegal encampments when there is no space available for them on an authorised site. It will continue to be the policy of the Secretaries of State that Government should act in conformity with the departments' advice to local authorities that gypsies should not be moved unnecessarily from unauthorised encampments where there is no authorised site for them".Similarly, the Government have recognised the difficulties of providing acceptable sites for public provision, but they have emphasised—and appear to continue to emphasise in an extant circular—that the alternative is the continued proliferation of unauthorised sites in locations chosen by the gypsies themselves and with no facilities at all. Eviction from such sites contributes nothing to the overall solution of the problem. Successive governments have repeatedly emphasised that until enough sites have been provided, gypsies should not be needlessly moved from place to place and particular authorities should not drive gypsies 1145 out of their areas to become the responsibility of neighbouring authorities. Moreover, the money spent on evicting gypsies and on the subsequently clearing, ditching or fencing of land, which can be considerable, could be used for providing suitable sites. Again, in time past, the Government have said:It may be that curtailment of indiscriminate eviction, costly to carry out and fruitless in effect, could release resources for the provision of emergency stopping places equipped to a minimal level of facilities".The new criminal sanctions are unnecessary and will do more harm than good. Where camping causes a nuisance or is in breach of planning controls, there are summary statutory procedures which are wholly adequate and which can be supplemented by court injunction. Similarly, it is already an offence to obstruct the highway. The solution is not the creation of more criminals; it is the provision of adequate sites. The Bill will reduce their supply. It will drive gypsies from area to area at considerable expense and in total disregard for the welfare of their families and without providing a solution other than the ultimate solution of imprisonment. We therefore oppose the question that Clause 72 should stand part of the Bill.
§ Lord Avebury
I agree completely with the noble Lord, Lord Irvine, that Clause 72 does nothing whatever to address the problem caused by the inadequate provision of accommodation for gypsies in England and Wales and the nuisance that is caused by unauthorised sites which everybody agrees must be dealt with.
I am at a loss to understand the logic of the Minister's case, having heard him on several occasions simply repeat what was said by Mr. David Maclean in another place. I am not the only person who has had difficulty. I have, for example, a letter from the Quakers which states:We remain unclear why the Government is taking this action against gypsies and other travellers. A variety of organisations and local authorities generally consider that the Caravan Sites Act was working reasonably well and public sites were gradually being established at relatively little costand, I would add, "private sites also". If one looks at the figures in the Government's annual survey, undertaken in January each year, one sees that both public and private providers of accommodation have been making their contribution and that the gap between the number of people wanting accommodation and the number of pitches available on local authority and private sites has gradually been diminishing. Why not let that process continue to completion, which would happen during the next few years?
I asked a question about directions by the Government. The Minister replied that only three such instances had occurred, one being that of Hertfordshire which I mentioned earlier. The other two cases involved Surrey and Avon. Despite the fact that 38 per cent. of local authorities in England and Wales have made no provision under the 1968 Act and that for 25 years they have been completely ignoring their obligations, the Government have seen fit to take action against only three authorities. They have made no attempt to see that 1146 the 1968 Act is working properly, although, as I mentioned, the figures show that the number of sites is gradually increasing.
Why this sudden insistence on scrapping what has been on the statute book for 25 years and what was slowly and painfully leading to all the gypsies in England and Wales having somewhere lawful to camp? The Minister simply repeats what his colleague Mr. David Maclean said—that nomadic persons must keep within the confines of the law. How can they do that unless adequate provision is made? How do we improve matters by criminalising encampments on unauthorised sites when plainly the public provision over the past 25 years has not been adequate?
It seems to me that the result of the clause will be that many gypsies are thrown onto the roadside. They will become homeless. They will gravitate from one local authority to another, causing disputes between neighbouring authorities of the kind we used to see prior to the 1968 Act when gypsies departed from the outer London boroughs into the county of Kent where there was no provision for them. The same thing used to happen in the north of London as gypsies moved into Hertfordshire.
We shall be imposing extra obligations on local authorities to whose areas such decanted gypsies will have to migrate. They will be thrown out of one area and, inevitably, move on to the local authority next door which, in turn, will use the provisions of the clause against them so that they then move into a third area. In other words, there will be nowhere in England and Wales where the gypsies can safely call a halt and live in peace with their neighbours.
It is quite insane for the Minister to say, as he did earlier, that there are plenty of places where gypsies can camp—albeit, unlawfully—without causing nuisance to their neighbours and where the local authority will take no action against them. Where are those places? Can the Minister tell us? I do not know any of them. Moreover, if it is that easy, why have not the counties which have failed in their duty over the past 25 years been able to locate them and say, "We will put them there"?
There has always been the difficulty, about which we are aware, of the counties identifying sites and then finding that objections from the districts make it impossible for agreement to be reached, which means that the wrangle continues indefinitely until, as on the three occasions that I mentioned, the Secretary of State steps in. However, if the Secretary of State was able to step in on those occasions and identify places where such provision could be made for the gypsies concerned, why cannot he do so for the other 38 per cent., or whatever the balance may be?
It is a mean little provision which will run us into trouble with the European Commission of Human Rights, whatever the department may think and despite the advice given to the Secretary of State. It is a provision which will cause immense suffering among the families that are evicted and one which will lead to trauma for the children of those families. Further, it is a provision which will cause enormous trouble for the local authorities which have to pick up the pieces as regards dealing with the homeless problems that it will 1147 create. I beg the Government, even at this late stage, to think again and return with more sensible provisions when we reach the Report stage.
§ 7.30 p.m.
§ Lord Renton
The main reason put forward by the noble Lord, Lord Irvine of Lairg, against Clause 72 is that it gives rise to a criminal sanction. However, we must remember that, in order to make the clause effective, the local authority is given power to issue a direction. Therefore, there must be some sanction to ensure that the direction is complied with. The sanction is not a very stringent one. Admittedly, there could be imprisonment in the worst type of case; alternatively, there could be a fine. If we are to give local authorities the power to issue directions there must be some sanction to make them effective, otherwise there will be no compliance.
The other objection put forward by the noble Lord, Lord Irvine of Lairg, was also mentioned by the noble Lord, Lord Avebury. Both noble Lords said that local authorities have not used their powers under the 1968 Act to provide camping sites everywhere. My recollection of that legislation is that local authorities are obliged to provide them only where it is necessary and practicable to do so. It has just not been possible to provide camping sites in congested urban areas. Of course, one must realise that that does not really matter because gypsies and New Age travellers, wisely, do not resort to the congested urban areas: they go to villages, farms and so on. We must accept that fact realistically.
The failure to provide alternative camping sites under the 1968 Act is really a separate matter. However, one hopes and believes that, in practice, local authorities will find that as a result of the Bill they will consider it kind, wise and necessary to make use of their powers under the 1968 Act and provide such sites where required. We must not fail to deal with this very real problem—and; indeed, it is a real problem—for that somewhat irrelevant reason. I am quite sure that it will work out all right in the end.
§ Lord Harris of Greenwich
I should like to make a few brief observations. I believe that the noble Earl has told us on a number of occasions that people must keep within the law. Well, that is a proposition which is extremely difficult to dissent from. However, a second question arises to which the noble Earl has given absolutely no answer; namely, precisely how are these people supposed to keep within the law? That is the issue before the Committee this evening.
First, as we heard from the noble Lord, Lord Irvine of Lairg, what is the answer to the suggestion that such people should ask for planning consent from the local authority? Well, surprise, surprise, in over 90 per cent. of the cases the local authority says, "No". The fact is that many people in the community do not want to have one of those sites anywhere near where they live. Moreover, in exactly the same way, they do not exactly demonstrate with enthusiasm if they hear that a prison, a probation hostel or a bail hostel is to be established in 1148 their area. There is great opposition in the community to the provision of such facilities. That is why, in the real world, such people will nor. obtain planning permission.
Secondly, as a result of the Bill there will be no statutory obligation on local authorities to provide such sites. Therefore, I fear that in many areas the consequences are obvious: the attractive populist cause will be, "Let's get rid of the gypsies". It will flow from one local authority area to another and yet again to another. By and large, such people are not even on the electoral register, no more in fact than are beggars— another group of people that have been identified by the Government as being particularly unattractive members of the community.
All we are ensuring by way of the provision is that unrealistic fines will be imposed and that some of the people concerned will go to prison. There will also be a great deal of disturbance within the families in many such cases. It is really something approaching humbug for Ministers to say that they are the Government of the family when they are in fact introducing such proposals. As I said, it is pure humbug.
The noble Lord, Lord Harris of Greenwich, is entitled to his view, although I thought that it was a slightly extravagant one. Moreover, it seemed to me from his speech that the noble Lord, Lord Irvine of Lairg, was hardly living in the real world. He asked why the Government were taking such action against gypsies and other travellers. It is not a question of taking action against people. Over the past 13 years, about 2,172 local authority pitches have been provided for gypsies. However, even that number has barely been able to keep up with the rise in the number of gypsy caravans. As I explained earlier, some 80 per cent. of gypsies are on sites; that is, local authority sites, private sites or sites of their own. We are not talking about a. mass migration of gypsies because of the provision. What we are really talking about is the effect which people have when they rest upon the land of other people and the effect that that has upon the community.
It is a contradiction in terms to say that all those people must have sites because that is what we want when, in fact, we are talking about nomads. A nomad is a person who moves around and does not necessarily want to stay on a site. Despite all that has been done over the past 25 years or so, there has been constantly a roving population of about 4,000 gypsy caravans. We are saying that that is fine, provided that the people who do the roving rove and rest where they are so entitled and not where they are not entitled so to do.
§ Lord Avebury
Is the Minister saying that the 4,000 caravans which are at present on authorised sites will remain at that number for ever more? The Minister is admitting that what the Government are doing in this legislation is to make it impossible for any local authority in future to provide the sites through the withdrawal of the 100 per cent. grant and through the criminalisation of gypsies on unauthorised sites. Therefore we will never break out of this 4,000 figure. It will remain constant.
I cannot tell whether or not it will remain constant. All I can tell the noble Lord, Lord Avebury, is that since 1981 it has remained constant, despite the grant and despite the fact that it is a 100 per cent. grant, which is almost a unique form of grant. In very few other parts of national life will one find examples of 100 per cent. grant. But, despite that, there has been a roving population and one of the reasons why there has been a roving population is that gypsies want to rove. That is fine provided they do their roving in a way that is not offensive either to the land or to the possessions of other people.
A noble Lord—I forget now who it was—referred to New Age travellers. Of course these people are not nomadic according to the courts. Clause 72 gives local authorities powers against these non-traditional, itinerant groups of people. This has been widely respected and has been widely acclaimed by local authorities, and for good reason; namely, that the chaos which is often created by these people in particular localities has been intolerable. If it is intolerable, something must be done about it. Some Members of the Committee have said that these poor people will experience a lot of difficulty and trouble. There are often occasions where a small number of gypsies camp in an inoffensive manner and do not cause any trouble at all. Those people will not be harried.
But where the presence of gypsies, either in small or large numbers, becomes an offence to the neighbourhood or to the landlord, steps ought to be taken to move them on. We have been encouraged by the fact that gypsies often have their own caravan sites. In fact there are 3,300 gypsy caravans on private sites today, and that is a good move. However, my noble friend Lord Renton was perfectly correct in saying that, if a local authority is to have a sanction or an obligation that it can impose upon people, that sanction must be capable of being imposed on people who are not prepared to abide by the appropriate direction. That is why there is a sanction in the Bill.
It is all very fine to say that the sanction may be too severe and to say that people should not be imprisoned but the sanction imposed will depend entirely on the nature of the offence. Some incursions by large numbers of New Age travellers create the most terrible problems. I have no doubt whatsoever that many people in the countryside will be glad to see that there is some provision for moving people on who encamp and create great offence to a locality and to a neighbourhood. That is the reason for this clause and I believe it is a perfectly respectable reason. I hope the Committee will agree that it should remain in the Bill.
§ 7.45 p.m.
§ Lord Irvine of Lairg
The noble Lord, Lord Renton, and the noble Earl are well aware that we on this side of the Chamber approved of the balance of the 1968 Act; that was that a local authority was under a duty to provide sites and, if it fulfilled its duty, it became designated and only then was it entitled to have access to criminal sanctions. What the noble Earl persistently fails to do in this debate is to meet the points that are being made. He has given us no answer as to why the 1150 Government have condoned the local authorities' breach of their statutory duty. He has given us no reason for assuming that existing sites established under statutory duty by local authorities will continue to exist once the duty is repealed. Further, if over 60 per cent. did not fulfil their statutory duty, what possible basis can there be for assuming—and proceeding on a policy basis—that they will provide sites under a mere power? I am not minded to press the Question—
I hope I may interrupt the noble Lord for one minute to get the record straight about one thing. He said that 60 per cent. of local authorities have not done what they are supposed to do. Of course they may not have established sufficient sites to become designated areas but that does not mean to say that they have not produced sites.
§ Lord Irvine of Lairg
I entirely accept that, but the full fulfilment of their duties would result in designation. I am not suggesting that local authorities which have not achieved designation have necessarily done nothing but I have put on record three central points in this debate which have been made before and which the noble Earl has failed to meet. Perhaps the future course of this Committee will afford the noble Earl an opportunity to answer those points directly. Meanwhile, I do not propose to press the Question to a vote.
Clause 72, as amended, agreed to.
§ Lord Annaly
I beg to move that the House do now resume, and, in doing so, I suggest that the Committee stage shall begin again not before 8.45 p.m.
Moved accordingly, and, on Question, Motion agreed to.