§ 8.47 p.m.
§ House again in Committee.
§ Clause 73 [Orders for removal of persons and their vehicles unlawfully on land]:
Earl Ferrers moved Amendment No. 134A:
Page 58, line 30, after ("land") insert ("within that authority's area").
§ The noble Earl said: Amendment No. 134A was spoken to with Amendment No. 125A. I beg to move.
§ On Question, amendment agreed to.
§ [Amendments Nos. 135 and 136 not moved.]
§ Clause 73, as amended, agreed to.
§ Lord Stanley of Alderley moved Amendment No. 136A:
After Clause 73, insert the following new clause:
("Orders for the removal of persons and their vehicles causing serious distress
- .—(1) This section applies where persons are for the time being residing in a vehicle or vehicles or any land to which section 72(1) applies, but no direction has been given by a local authority under that section.
- (2) A magistrates' court may, on a complaint made by an occupier of the land to which this section applies, or of any adjoining land, make an order directing the local authority to take such steps for the removal of any persons, vehicles or other property present on the land as could have been authorised under section 73 had a direction under section 72 been given, provided that the court is satisfied that the presence of the persons, vehicles, or other property is causing serious distress to the occupier, his family, or an employee or agent of his.
- (3) It shall be the duty of a local authority to comply with any order made under this section.
- (4) No order shall be made under this section unless the local authority has been given an opportunity to appear before the court to answer to the complaint.").
The noble Lord said: The new powers under Clause 72 for local authorities to direct unauthorised campers to leave are welcome, as are the back-up provisions in Clause 73 whereby the local authority can seek an order from a magistrates' court giving it the authority to enter the land and take the necessary steps to remove vehicles if, in contravention of Clause 72, the persons have not moved on. However, my noble and learned friend Lord Fraser made clear at Second Reading the Government's view:
Our advice to local authorities will encourage them to continue to tolerate unauthorised encampments where there is no nuisance or harm".—[Official Report, 25/4/94; col. 509.]
§ I believe that my noble friend Lord Ferrers repeated that position when we debated that clause. That situation worries me. That remark surely gives local authorities a government-approved let-out, particularly where the nuisance factor may be regarded as minimal for most of the rest of us in the council area.
§ Anyone, in particular local authorities, will always prefer to dodge unpleasant issues. As we have heard tonight, moving unauthorised campers and causing 1167 discomfort to them, their women and their children is certainly an unpleasant task. I make no bones about that. However, I fear that the remarks made by my noble and learned friend Lord Fraser will do just that; they will encourage the local authority to do nothing.
§ As I said on Second Reading—and I made only one comment —I do not believe that the law should discriminate between those with children and those without. I can think of many reasons why the law should not apply to me. Therefore, I consider that this amendment is important. The nuisance—or, indeed, worse than a nuisance—to residents who live close to the encampment may be acute. Where the occupier of the land or the adjoining land is suffering serious distress due to the presence of the encampment he should have a legal remedy by means of applying direct to the magistrates' court rather than going to the local authority.
§ I must remind the Committee that Amendment No. 136A will operate only when the court is satisfied that the occupier is being caused serious distress as opposed merely to being apprehensive or angry. Subsection (4) ensures that the local authority, too, will be able to put its case before the magistrates. I beg to move.
§ Lord Irvine of Lairg
We encourage the Government to reject this amendment on the basis of the one argument that might appeal to the noble Earl; that is, the principle of equal justice, on which he is rejecting all amendments tabled in this Committee.
The civil law already provides adequate remedies to owners or occupiers of land complaining of trespass. Summary relief can be obtained both in the county court and in the High Court. Furthermore, we do not see why an occupier of adjoining land should be entitled to complain of trespass on his neighbour's land. If the activities of persons or vehicles on his neighbour's land are causing him serious distress he is already entitled to obtain summary relief from the magistrates' court under the Environmental Protection Act 1990.
We do, however, find a little revealing the language of subsection (2) of the amendment. It is the mere presence itself of such persons and vehicles and not their activities which is said to cause serious distress. The main point is that, while for all the reasons that we have sought to deploy we oppose in principle the new powers given under Clause 72 to local authorities, we see no good reason or necessity for individuals to be empowered to by-pass the discretion of local authorities to decide whether to exercise their new powers in cases which will call for the exercise of detached and balanced judgment. In particular, a local authority, with all its knowledge of its own area and its relationships with neighbouring areas, will be in a much better position than a magistrates' court to decide whether these new powers should be invoked.
There is a further defect in the noble Lord's amendment. It imposes no requirement that persons likely to be affected by the order should be served and given an opportunity to be heard by the magistrates. We oppose the amendment principally on the basis that if these objectionable powers are to be laid on the statute book they should be available to local authorities alone.
It is always so difficult to keep sweet with the noble Lord, Lord Irvine of Lairg. He said that it would be equal justice if I were to reject the amendment because all evening I have done nothing but reject amendments. Of course, it is also difficult to keep on the right side of the noble Lord. If I were to accept the amendment he would say that again I am not agreeing with him. However, if I agree with him he would say that I was being dog in the manger and rejecting all amendments. One cannot get it right—
No, that is not what the noble Lord said; he said that I was rejecting all amendments. That was unfortunate because I was going to come down quietly on the side of the noble Lord, Lord Irvine of Lairg, and I thought that he would be pleased that I was; agreeing with him. I was going to say that I do not believe that this amendment is a good idea and that we have a common thread of agreement, for which he will be as grateful as I.
Amendment No. 136A would give the occupiers of land the right to complain to a magistrates' court in circumstances where a local authority had failed to give a direction under Clause 72 to unauthorised campers on private land, requiring them to leave the land and to remove their vehicles and other property. A complainant could be the occupier of the land where the unauthorised encampment is the established, or the occupier of adjoining land.
The court would have to satisfy itself that the presence of the unauthorised campers was causing serious distress to the occupier, his family or an employee or agent of his. The court could then make an order directing the authority to take steps to remove the campers and their vehicles and other property from the land.
The local authority would be given an opportunity to appear before the court to answer the complaint, but the effect of any order of the court would be mandatory on the authority.
Clauses 72 and 73 give local authorities discretionary powers to evict unauthorised campers from land, including private land where an encampment has been established without the occupier's consent. It is most important that local authorities should retain a discretion to exercise these powers, and should not be compelled to do so at the instance of private landowners or other interests. I acknowledge at once that landowners can suffer enormous inconvenience and distress from unauthorised encampments. But, in deciding whether to bring an end to an encampment, the local authority will need to consider factors besides the interests of the landowners affected.
Local authorities will need to consider the interests of the public. An authority might conclude that an encampment on council land or unoccupied land, although causing serious distress to an adjoining landowner, is not a particular nuisance to the public at large and that eviction of the travellers is likely to lead to their settling in an even less satisfactory location elsewhere. It may be possible to take steps to alleviate 1169 the distress to the landowner concerned—for example, by providing facilities such as skips, portaloos and a water supply—and, having done that, to tolerate the encampment at least for a period.
The local authority will need to consider the needs of the travellers themselves. There could be genuine reasons why they cannot move on at once. Health grounds are an obvious example. The local authority may need to consider its own statutory duties and responsibilities towards the travellers. For example, a local housing authority has certain obligations towards homeless persons and county councils have obligations in relation to children and their families.
The local authority will need to consider whether it has sufficient resources to put an effective end to the encampment at a stroke or whether the problem is better tackled by a more gradual approach. Of course, the local authority will need to consider the effects of the encampment on the landowners concerned. Nobody disputes that. The Government fully accept that a private landowner should not always be expected to bear the often-considerable financial burden of removing unauthorised campers from his land. There are circumstances in which public authorities should intervene in the public interest. But there is a strong distinction between local authorities intervening in the public interest and local authorities being compelled to invoke the criminal law at the instance of a landowner in circumstances where it may not be in the public interest to do so.
We believe that when an unauthorised encampment becomes established on land, it is necessary to weigh the several interests involved—those of the landowner or the lawful occupier, those of the unauthorised campers and those of the local community who may experience nuisance as a result of the encampment.
For all those reasons, I believe that the local authority is in the best position to decide whether it is appropriate to use its eviction powers. We consider that it would be wrong to give private occupiers the right to compel local authorities, via the courts, to take action against unauthorised campers.
§ 9 p.m.
§ Earl Peel
Is it necessary for my noble friend to move this amendment? Clause 56 makes it perfectly clear that if two or more persons trespass on land, or if there are six or more vehicles involved, the power exists to invoke the help of the police in such matters. I should have thought that that would cope with any problems appertaining to the trespass. I believe that my noble friend Lord Stanley should be happy with that.
§ Lord Stanley of Alderley
I am sorry that my noble friend Lord Ferrers did not give me a positive answer. I felt that the length of his answer showed that he has a guilty conscience. If he believed that he was right, he would have been able to tell me in three words that I was wrong. But he took a long time to answer, so I am sure that he has a guilty conscience.
My noble friend Lord Peel is not right, because I am talking about cases which may not be on a particular 1170 person's land, in which case it would not be possible to invoke the help of the police; for example, the land may be on an oxbow or at the side of the road or whatever.
I am not just talking about landowners. I am talking about neighbours, or a number of neighbours who may be inconvenienced and who would like to go direct to the magistrates' court. In that regard, I should say to the noble Lord, Lord Irvine—and I was surprised by what he, as a lawyer said—I would rather prefer to have judgment given by magistrates than by a local authority. The amendment provides that it is entirely for the magistrates to decide whether or not a particular person has been grievously distressed.
However, I see that I do not have the support of the Committee and I shall leave the matter as it stands. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 74 [Provisions as to directions under s. 72 and orders under s. 73]:
[Amendment No. 137 not moved.]
Clause 74 agreed to.
Lord Irvine of Lairg moved Amendment No. 138:
After Clause 74, insert the following new clause:
("Provision of caravan sites for persons with children.
.A local authority shall have a duty to exercise its powers under section 24 of the Caravan Sites and Control of Development Act 1960 (provision of caravan sites) in so far as may be necessary to provide adequate accommodation for those persons whom the authority deems to have children below the statutory school leaving age normally residing with them.").
§ The noble Lord said: The major debate which we are awaiting will be on Amendment No. 139 in the names of the noble Lords, Lord Avebury and Lord Kenyon, and on Amendment No. 139ZA which is in my name. The purpose of that is to retain the duty which local authorities have to provide adequate sites for gypsies residing in or resorting to their areas.
§ Amendment No. 138, which I now move, is designed to permit the Government to state at this stage in the progress of the Bill whether they would be responsive to a lesser duty—a duty of the local authority to exercise its powers under Section 24 of the 1960 Act to ensure adequate accommodation for gypsy families with children below the statutory school leaving age.
§ The reality is that if gypsy families with such children are to be evicted from place to place and then on again, regular school attendance will be impossible, with incalculable harm done to the education and future prospects of the children affected. The insecurity is likely to damage their emotional and mental development and the strain imposed on the family will be likely to cause more separations and more children being taken into care.
§ For families with children in the settled community, the policy has always been to require local authorities to provide them with accommodation if it was not otherwise available, to prevent children being taken into care and to promote their welfare. Why should gypsy families with children not be similarly protected? If the Government are unwilling even to accept any duty to provide sites for such families and children, it will be 1171 plain that in that sphere, too, they are prepared to introduce what is in effect discriminatory legislation against a small community.
§ The Government may say that the authorities may choose to provide sites to discharge their duties to the homeless and to children in need. However, that is less than frank, not least because the Government propose also to repeal the duties to the homeless as they now stand.
§ Also, it is not realistic because those duties generally come into operation only when an individual is in need. At that time, local authorities may not be able to offer a site if they have not already provided a sufficient stock and, in practice, they will not find capital resources to provide a new site in such a case.
§ Moreover, an offer of immobile or settled accommodation of some kind may well discharge any duty the authorities have and would be wholly unpalatable to those to whom it is proffered. Therefore, such duties are no substitute at all for a duty to provide adequate sites, nor are they likely to lead to the provision of more sites. They are more likely to lead to acrimonious disputes among authorities as to which authority is responsible for having to deal with the consequences of too few sites for children and homeless gypsy families.
§ Local authority temporary and permanent accommodation provided on sites is the only way in which to provide those families with the security which they need in order to avoid unnecessary family breakdowns, and to ensure a provision which will enable those children to gain access to proper education, community and health facilities. I beg to move.
§ Lord Hylton
I believe that the amendment is a kind of litmus paper which will test the Government's good intentions and bona fides and I support it.
I do not know whether the amendment is a litmus paper but I should point out to the noble Lord that it has some far reaching effects.
The amendment would insert a new clause which would have the effect of requiring local authorities to provide accommodation on caravan sites for any person —not just a gypsy—who normally resides with children of school age, and requires such accommodation, presumably in the authority's area.
Under Part II of the Caravan Sites Act 1968 local authorities are required to use their powers in the Caravan Sites and Control of Development Act 1960 to provide sites for nomadic persons, called "gypsies" in the 1968 Act. County councils are required to determine what sites are to be provided and to acquire the necessary land; and district councils are to manage the sites. The Government have made it quite clear that we do not think it is justifiable to maintain an open-ended commitment to meet gypsies' accommodation needs at the taxpayer's expense. Clause 75 of the Bill, therefore, repeals local authorities' duty to provide sites.
The amendment that the noble Lord, Lord Irvine of Lairg, just moved would impose a far more onerous burden on local authorities. It would require them to provide sites for anyone who wants such accommodation, irrespective of their personal circumstances, 1172 provided only that they are normally residing with children of school age. That is far too wide. The amendment does not differentiate between the responsibilities of county councils and district councils as the 1968 Act does. The imposition of such a duty on both tiers of authority would be a recipe for confusion and duplication. I do not think that such a proposal is tenable or reasonable.
Under our proposals, local authorities would retain their discretionary powers to provide further caravan sites if they deem this to be necessary. We have also already taken steps to encourage more gypsies to establish their own sites under the planning system. Last January, the Department of the Environment issued a circular which aimed to ensure that gypsies' accommodation needs are fully taken into account by the planning system. I really do believe that this is a better and fairer way forward.
§ Lord Irvine of Lairg
Once again, the noble Earl has succeeded in disappointing but not surprising me. It is obvious that in this amendment we are talking about those of a nomadic way of life. The suggestion that the: amendment would in practice extend to others is not to live in the real world. Nonetheless, I beg leave at this; hour of the night to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 75 [Repeal of certain provisions relating to gipsy sites]:
§ 9.15 p.m.
Lord Avebury moved Amendment No. 139:
Page 59, line 34, leave out subsection (1).
§ The noble Lord said: I am happy to say that we come now to an amendment on which there may be some measure of agreement of a wider nature between all parts of the Committee than there has been on some that we have discussed up until now. I understand that with Amendment No. 139 we are also taking amendments up to Amendment No. 142, which deal in general with the provisions of Clause 75 and in particular with the question of the definition of "gypsy".
§ Perhaps I may start with a preface on that point. At an earlier stage of our debate there was a substantial measure of agreement among noble Lords on all sides that something should be done to provide accommoda-tion for what may have to be described, in the absence of any better terminology, as genuine gypsies, but that we should not oblige the local authorities to provide accommodation for New Age travellers (or NATs, as they are termed for short) or indeed any other person who takes to the road, acquires a vehicle and adopts a nomadic way of life, thus apparently bringing himself or herself within the definition of a gypsy as contained in the Caravan Sites Act 1968.
§ We have heard already that the Government's case is that the Caravan Sites Act 1968 has failed despite the fact that, according to their own consultation paper Reform of the Caravan Sites Act 1968, 9,000 pitches had been provided for gypsies under the Act by January 1992. The Government say —and they have repeated the assertion this evening—that the provision of sites has failed to keep pace with growing demand, ignoring 1173 the substantial under-enumeration of gypsies, which is agreed by all the experts, on which the original requirement of 200 sites was calculated.
In my view, the main reason why more substantial progress has not been made was the then Government's rejection of the proposals that were made by Sir John Cripps in December 1976, when he recommended to the then Secretary of State, Mr. Peter Shore, that,
the Secretaries of State, after discussion, allocate a quota to each county outside Greater London and seek agreement on a time-related programme of site provision to fulfil it",
the allocations be made and the programmes agreed not later than 31 October 1977, and they be reviewed at five-yearly intervals, or more frequently in counties and London boroughs where, in the opinion of the Secretary of State, circumstances make this necessary".
What the local authorities needed at that time was clear guidance from the Government on the scale of the provision that was to be made within each local authority area and a firm timetable within which they would be expected to satisfy those needs.
§ Another important reason already referred to this evening was the reluctance of Secretaries of State to use the enforcement powers contained in Section 9 of the Act. Under that provision the Secretary of State could give a local authority a direction to provide such number of pitches as he thought fit. The Minister told us earlier that in three cases such directions have been given—to Hertfordshire, Surrey and Avon—but that in none of those three cases has the Secretary of State used the power of mandamus contained in the 1968 Act, even though, as for example in the case of Hertfordshire, five-and-a-half years have elapsed since the issue of the notice.
§ As I mentioned, one of the consequences of the publication of this Bill is that the number of pitches to be provided by the local authorities has fallen drastically. In the case of Hertfordshire it is from 110, which was the number given in the direction of 28th November 1988 by the Secretary of State, down to one new site, which I believe is in Stevenage, containing only about 33 pitches. So immediately the number of pitches to be provided in that county has been reduced by two-thirds. I believe that the same kind of thing is happening all over the country.
§ The majority of county councils, London boroughs and metropolitan authorities which replied to the consultation paper favoured retaining the statutory duty to provide sites, as did 48 per cent. of the districts. All of them wanted retention of the 100 per cent. funding. Two-thirds of counties but a minority of other types of local authority were in favour of distinguishing between the gypsies and the NATs.
§ The Save the Children Fund points out that unless there is a legal duty to provide sites, councils will find it almost impossible to resist local pressure and hostility to gypsies, and without some further government finance sites will never be built. It envisages that existing sites may even be sold off to private operators who may rent to non-gypsies or use the land for some completely different purpose. It suspects that some local authorities are already taking advice on whether they 1174 can sell their sites once the Bill becomes law. I cannot see anything on the face of the Bill to stop them from doing so. I should be grateful if the Minister could give some advice on that point.
County councils will have no obligation to employ gypsy officers as they do now. The Save the Children Fund alleges that that will threaten the whole infrastructure of support for gypsies. There will be no annual census because there will be nobody to conduct it and gypsies will receive no advice on planning matters. That makes it even less likely that private sites could make up the shortfall caused by the repeal of Part II of the 1968 Act, as the Government claim. The National Farmers Union makes that point too. The head of parliamentary affairs of the NFU, Mr. Barney Holbeche, wrote to me:
we remain concerned that by repealing the duty on local authorities to provide sites for gipsies there will be a substantial exacerbation of the existing problem of illegal encampments. We consider the Government's view that gipsies will be able to participate in the local planning and development control process in ways that will secure them authorised sites is, frankly, unrealistic".
In another place the Under-Secretary of State, replying to an adjournment debate on 21st April, said that,
between now and the expected Royal Assent in July, there will be an inevitable hiatus over the proposed council sites. Such a situation is, of course, not infrequent when there are changes in legislation".—[Official Report, Commons, 21/4/94; col. 1152.]
What does that mean? Of course, local authorities are cancelling their plans to provide sites. But after Royal Assent there is no incentive for them to start up again. If the Minister meant that there would be a hiatus before private sites begin to come on stream at the rate that local authorities were providing them, what is the evidence for that? The Circular 1/94 of 5th January 1994 on Gypsy Sites and Planning has already been referred to. It requires local planning authorities to continue to make provision for gypsies in their development plans and structure plans after the statutory duty to provide sites has been repealed. I believe that that, of itself, will make no difference to the rate of provision of private sites.
§ Secondly, local plans and Part II of unitary development plans are to identify locations suitable for gypsy sites wherever possible. Where that is not possible, realistic criteria are to be set out for suitable locations as a basis for site provision policies. At the same time, as was mentioned earlier, the circular excludes areas of open land where development is severely restricted. In particular it says that green belt land should not be allocated for gypsy sites in development plans. I mentioned also in an earlier debate that if it had been an easy matter to decide where those gypsy sites should be located, local authorities would have been able to do it over the past 13 years, and since the 1968 Act came into force. The problem is not solved by putting it into a circular, but the proof of the pudding will be in the eating. If the planning authorities designate sites in their development plans sufficient to accommodate the gypsies residing in or resorting to their area, as private site providers come forward with plans to build on this land and to let pitches at prices that the gypsies can afford, then let us consider the position 1175 at that stage. Meanwhile, I suggest that we should not proceed with this proposal while the future remains so uncertain, and while we have not the faintest evidence about what sort of provision these private operators are going to be able to make.
§ The circular does ask local authorities to be as helpful as they can in considering planning applications from gypsies. I asked the Minister earlier—and I repeat the question now—can he say how many planning applications have been submitted by gypsies, for what number of pitches, in the five months since the circular? I agree that that might not be conclusive, but it may give some indication of what is happening at local authority level and of whether the gypsies are receiving a more sympathetic hearing than they have done up till now in respect; of their applications for planning permission.
§ Will the department monitor continuously the number of pitches for which planning applications are applied and granted, and compare this with the number during the equivalent period before the circular was issued, to see if any difference has been made by circular No. 194?
§ Since it is impossible to make sure that private sites will be provided on anything like the scale that the local authorities would have done, will the Government be prepared as an alternative to defer the coming into operation of Part V until the private sector has had a reasonable chance to show what it can do? If the public and private sectors both continue to make their contributions within the framework of the revised development plans that are to be drafted under the circular, then, after a period which could be determined by the Secretary of State, the number of gypsies on unauthorised sites would be greatly diminished and the harmful effects of Clause 72 about which we were speaking earlier would be correspondingly reduced.
§ I do accept that local authorities should not be obliged to provide sites for every applicant who buys a caravan or lorry and takes to the road. The definition in the 1968 Act requires a gypsy to be of a nomadic habit of life, and that must surely exclude someone who decides to embark on a nomadic life having always lived in settled accommodation. Then the question would be: how long does someone have to lead a nomadic existence before it is said to have become a habit? I have suggested, with the noble Lord, Lord Kenyon, whose name also appears on Amendment No. 140, that this should be a period of 10 years. But that is, of course, a matter for discussion if the principle is accepted.
§ It might be objected—and one or two of your Lordships, with whom I have discussed this, have made this point—that difficulties would arise in establishing the time that a person had been travelling. If the person had been living in a house as an adult the electoral register would show it; if he or she had claimed any social security benefits, there again the address of the claimant would be verifiable. I would suggest that there are many ways in which the length of time that a person has been on the road can be established.
§ The children's organisations which are particularly concerned about these clauses say that, from their point of view, it is not possible to distinguish between one kind of traveller and another. I accept the validity of 1176 their contention from the point of view of looking after the children. The safeguards for the children have to be effective whether they belong to a gypsy or to a NAT family, but the accommodation needs of the two groups may well not be the same. Gypsies have a long tradition of caravan life and it is part of their culture, whereas for the NATs it is a mere convenience and they may far more easily be persuaded to return to ordinary dwellings. As I pointed out earlier, there has in the past year been a reduction in the number of caravans on unauthorised sites which exceeds the net new provision of pitches on authorised sites. That indicates that some people are voluntarily returning to settled accommodation and no doubt, if there was plenty of low-cost rented housing, other NATs might be tempted.
§ I hope that, with these arguments, the Minister may at last be disposed to accept one of our amendments today.
§ Lord Kenyon
In supporting this amendment I should like to speak also to Amendments Nos. 140, 141 and 142. I am glad that we have now got on to gypsies because earlier this evening, in discussing Clause 72, we had a good deal of reference to gypsies yet the clause refers entirely to unauthorised campers. There is no mention in the clause itself of gypsies. But Clause 75 does refer to gypsies themselves.
As a borough councillor, I have considerable experience of the problems associated with the obligation imposed on county councils by Part II of the Caravan Sites Act. I have seen at first hand the public fervour that is generated whenever there is a hint of a gypsy site meeting to discuss the provision of a new site in the borough in a vain attempt to comply with the law. I have heard well educated men and women become totally irrational when it is their locality that is being threatened by a visit from the sub-committee.
The problem, of course, is that the current attitude has developed because we are no longer talking about the same kind of gypsies as we were 16 years ago, when the Caravan Sites Act came into force. True gypsies have been with us for centuries. They have been tolerated—indeed welcomed —in the rural community, where they regularly assisted in the harvest and did other casual jobs around the farms and houses. But today they have acquired their parasites, the hippies or drop-outs—generically referred to as New Age travellers—who do not work, who do not want to work, but who believe that, because the gypsies have the apparent right to roam the countryside at will, they can do the same at the expense of the local taxpayer. They are the ones who are so unwelcome in the countryside, and it is most unfortunate that their presence and the aggravation and disruption that they cause has tarred the gypsies with a stigma that they do not deserve.
It is argued that because only 38 per cent. of councils have provided sufficient sites to enable them to become designated since the 1968 Act came into force, that is an indication that the Act is not working and should be repealed. There is only one problem that such a repeal will solve—and that is the Government's obligation to provide financial grant to local authorities to provide and maintain the sites. But it will not solve the 1177 underlying problem; and more importantly, it will not put anything workable in its place. What it will do at a stroke is to make the whole country a designated area and will render, I am told, something like 4,000 genuine gypsy families currently living in unapproved sites in undesignated counties liable to prosecution for criminal trespass. Where are they to go to?
Under the provisions of the Bill, the gypsies will now be expected to find their own sites and to apply for planning permission in the normal way. That objective is reflected in the Government's planning guidance. But gypsies are nomadic. They do not own freehold land. They do not want to own freehold land. And to expect them to learn to cope with the planning system is frankly pie in the sky. It is totally unrealistic to expect them to be able to handle a successful planning application for a site against all local opposition when 62 per cent. of the county councils have been unsuccessful themselves since 1968. It would clearly be far more appropriate for the councils themselves, with all the facilities at their disposal, to be responsible for this procedure and to benefit from the new planning guidance.
Clause 75(1) will have the effect of rewarding those councils which have ignored the Act for 16 years and of penalising those which have complied with the law, because the 38 per cent. which have acquired sites and have taken the Government's grant to develop them will now have to continue to maintain them at local taxpayers' expense while those who sat on their hands and did nothing will walk away laughing. This is not the time to take the carrot away from the donkey. It is time to get out the stick and push the waverers forward to achieve compliance with the existing law.
Amendment No. 140 seeks to limit the definition of gypsies to encompass only those who are of truly nomadic intent by imposing a test that they have carried on a nomadic life for at least 10 years. No doubt that will allow some who are not true gypsies to slip through the net by showing that they have been on the road for 10 years or more; but at least it will not exclude a single genuine gypsy. I hope that the Government will give serious consideration to this or a similar amendment which will achieve the desired result.
Of the 152 clauses in this Bill I welcome 151 of them as steps forward in the battle against crime. Some of those I may even have criticised as not going far enough, but at least they go in the right direction. Sadly, this clause goes in the wrong direction. It takes something away without putting anything sensible in its place and in doing so it criminalises a small group of people who certainly deserve better.
§ 9.30 p.m.
§ Lord Stanley of Alderley
My Amendment No. 139A is grouped with this amendment. I agree with my noble kinsman Lord Avebury that there should be some agreement on some of the amendments to Clause 75, many of which were discussed earlier with Clause 72 and which, in my opinion and obviously that of my noble friend Lord Kenyon, whose speech I much enjoyed, were actually addressed on the wrong clause. I hope that my noble friend Lord Ferrers will consider 1178 sympathetically the problems these amendments address, particularly those raised by my noble kinsman and my noble friend Lord Kenyon.
I have tried to tackle this problem in two ways. First I have tried by defining who is a gypsy and entitled to sites. Secondly, I have tried to make available more sites for genuine gypsies. As regards defining who is and who is not a gypsy I refer the Committee to a recent court case and the judgment of Mr. Justice Watkinson, which has been recently upheld by the Court of Appeal. Among other things it stated that these sites are not for "drop outs"—I believe I am right in saying that the judge actually used those words—and that their nomadic way of life was linked to work. Recently the Appeal Court stated that,there should be some recognisable connection between the wandering or travelling and the means whereby the persons concerned make or seek their livelihood. Persons, or individuals, who move from place to place merely as the fancy may take them and without any connection between the movement and their means of livelihood fall outside these statutory definitions".New Age travellers certainly would not qualify under that description. Moreover, Lord Justice Leggatt, in supporting the judgment, stated that the privilege of site provision is,not available to occupants of caravans who do not live in them for that purpose and whose moves are actuated not by need but by caprice".If these judgments are acted upon—and my Amendment No. 139A attempts to do just that—local authorities will at least have the numbers minimised. They certainly have no obligation, and nor in my opinion should they, as far as NATs are concerned.
I now turn to the much more difficult problem of sites. I regret that the Government have decided to repeal the Caravans Sites Act 1968. I understand why they have done so, but I believe that will only make matters worse and that there will be fewer sites for what I believe are more nomads, even though my noble kinsman says that there are fewer; but there are still many of them.
The Government issued a Department of the Environment circular on 5th January 1994 which has already been referred to by the noble Lord, Lord Irvine of Lairg. It addresses the provision of sites. I have to draw the Committee's attention to some of its snags. Paragraph 1 states that it is the intention to withdraw previous guidance allowing sites in green belts. Those are just the areas which genuine gypsies or nomads wish to have because there is work there. Paragraph 9 states that local authorities should have regard to the needs of gypsy sites and include them in their development plans.
But will local authorities actually do that? I ask Members of the Committee to consider the North Cornwall Development Plan which seems to make that virtually impossible. If I may say so, the story of a camel passing through the eye of a needle is what comes to my mind in that connection, but I very much doubt whether local councillors would consider themselves almighty. I have their policy (HSG 17) in front of me. I shall not read it out, but that policy makes it virtually impossible for genuine gypsies to have any chance of getting a site. I am more than happy to give that document to my noble friend later if he wishes.
1179 On the more cheerful side, paragraph 11 of the DoE circular offers more help. It states that local authorities should consider,unused and underused land owned by public bodies".Has my noble friend the Minister considered where those sites might be? Might they be Ministry of Defence sites of which, as we all know, many are available? Might it be possible—I put my head in a trap here, I am sure—for such sites to be used as temporary move-on sites for New Age travellers?
Your Lordships may well accuse me of being hardhearted towards New Age travellers and of posing problems about how to deal with genuine nomads. I accept both of those criticisms, but surely it is our job in this Committee to air such problems with a view to trying to find a solution. I shall certainly not press my amendment, Amendment No. 139A, and at this stage I do not support the removal of the clause from the Bill.
§ Baroness Faithfull
To help the implementation of the Bill should it pass through your Lordships' House and another place or, alternatively, if it does not pass, I have a strange request to make of my noble friend the Minister. Before making it, I should like to say first that I agree with the noble Lord, Lord Avebury, that the Caravan Sites Act 1968 should stand. I agree also with the right reverend Prelate the Bishop of Liverpool that every consideration should be given to the family life of those who lead a nomadic life and that they should have as much stability as possible, especially with regard to the education and health of their children.
I have a deep sympathy and concern for landowners and for the residents of towns, villages, hamlets and remote farms. Obviously, they have suffered greatly —and still they suffer. The noble Lord, Lord Harris of Greenwich, said that this Bill, if passed, will give rise to major social problems. Equally, if the Bill does not pass, there will be social problems which we shall have to face. Therefore, with respect and whether the Bill passes or not, may I ask my noble friend the Minister whether it is possible to set up a public inquiry, chaired perhaps by a judge, to look in the round at the position of the nomadic population? Some research has already been conducted by the Children's Society, showing that 60 per cent. of New Age travellers began their way of life because of homelessness. Such an inquiry should take into account the views of local authorities, housing corporations, voluntary organisations, the law, the police, the social services and, most of all, landowners.
We keep talking about the land, but whose land is it? What land is it, and where is it? My noble friend Lord Stanley of Alderley said that in my area two airfields formerly occupied by the Americans are standing empty, doing nothing, although both have water and houses. I understand—although I would have to go to see for myself—that there are great tracts of defence land on Salisbury Plain. Could not that land be looked at? What is happening in that respect?
Would it not be possible for local authorities to join together and have joint plans? If we are to have local government reorganisation and if—and I emphasise the word "if—instead of county councils there will be 1180 district councils, no small council will be able to deal with the problem on its own. There will have to be joint plans.
A much more thoughtful, planned policy must be considered. There also needs to be a committee of inquiry and research leading to rules and guidance for all those involved, be they landowners, travellers or local authorities. It is possible that my noble friend the Minister will say that that is not practically possible. However, unless that is done, we shall never get it right.
§ Lord Lester of Herne Hill
Gypsies are probably the smallest ethnic minority in the country. It seems to me that the way in which we, as a society, treat them and discharge our positive obligations towards them is a kind of litmus test for us as a civil society. Gypsies are not a popular group; indeed, they are easily tarred with the brush of the unattractive New Age travellers. I agree with all the remarks made by Members of the Committee that to substitute statutory duties towards that group of people by the kind of soft and unenforceable guidance given in the departmental circular is not satisfactory.
Another aspect that strikes me as deeply unsatisfactory is that, in considering the amendments, this place has no access to any authoritative, independent legal advice as to whether what is proposed complies with the international obligations undertaken by the United Kingdom in ratifying a whole host of international human rights treaties. I have in mind the European Convention on Human Rights which has already been mentioned, the International Covenant on Civil and Political Rights and the International Convention on the Elimination of all Forms of Racial Discrimination.
I appreciate that the Minister will not be in a position to disclose this evening the nature of any legal advice which was obtained before the provisions were placed before the Committee. However, when answering the points raised this evening, I should be grateful if the Minister could indicate how the scrapping of a statutory duty can possibly satisfy the positive obligations that international human rights law imposes on this country towards this ethnic minority. I have in mind in particular the right to respect for their families which is guaranteed by Article 8 of the human lights convention, to their homes and to the peaceful enjoyment of their possessions and the right to education which is guaranteed by the first protocol of the European convention. All of those rights should be read with the non-discrimination guarantee in Article 14 of the convention, or the other obligations in the International Covenant on Civil and Political Rights, especially Article 26 which guarantees the equality of treatment in effect as well as in intent, and the convention on the elimination of racial discrimination.
In being asked to pass such legislation, I believe that this Chamber is entitled to some reassurance that those points have been carefully considered by the Government and that they are satisfied that we are able to discharge our international obligations. Speaking for myself, I can only say that I agree entirely with the noble Lord, Lord Irvine of Lairg, that the statute we are asked 1181 to enact seems discriminatory in its effects, if not in its intent, and that it is seriously open to challenge on the international level.
§ 9.45 p.m.
§ Lord Irvine of Lairg
I desire to support Amendment No. 139, in the names of the noble Lords, Lord Avebury and Lord Kenyon, whose contribution, if I may say so, was most powerful. Clauses 72 to 74 of the Bill can perfectly well co-exist with a continuing duty on local authorities to provide sites and the Secretary of State's power to direct them to do so. It would be true to say that, if the duty is repealed, local authorities will retain a power but no duty to provide sites. It would be humbug, however—would it not?—to suggest that the Government have any real intention that they should exercise that power to secure any new public provision. At best, if the Bill passes in its present form, any new public provision will be on a tiny scale compared with what has hitherto been achieved.
There will be no statutory duty to make adequate provision; there will be no central grants for the capital expenditure involved: the power to make them is to be repealed by Clause 75(5) of this Bill. There will be no Government pressure for authorities to provide an adequate number of sites, whether by means of directions or otherwise, and the incentive to provide sites in order to obtain the powers available on designation will be removed if this Bill becomes law. There are normally no votes or popularity to be had locally in providing sites: it is, frankly, often an unpopular task. There are many other pressures on local authorities' budgets which have greater appeal. At best any new public provision will be on a tiny scale compared to what has been achieved hitherto. Does the noble Earl agree?
Any new public provision, therefore, will be wholly inadequate to meet the needs which now exist. That has been proved by experience. It was recognised by all parties in Parliament in 1968 that the existence of a mere power to provide sites had proved insufficient of itself. It was for that reason that a duty to exercise the powers local authorities already had was sensibly imposed by Section 6 of the Caravan Sites Act 1968.
Throughout the whole course of the proceedings of the Committee today I have waited in vain for an explanation from the Minister as to what principal reasons there are for removing that obligation. The truth is that the Government do not want any further public provision. To some extent the Government are quite open about their ambitions. In another place the Minister, Mr. Maclean, said,we believe the time has come to call a halt to caravan site provision at public expense and, instead, to encourage gypsies to establish their own sites through the normal planning system". —[Official Report, Commons, Standing Cttee B; 10/2/94; col. 709.]I dealt with the realistic opportunities that they had to do that during the debate on the Question that Clause 72 stand part. I do not repeat what I said then but simply record that the points that I made have not as yet been answered. Similarly, in replying to the debate on the 1182 Second Reading of this Bill in your Lordships' House, the noble and learned Lord, Lord Fraser of Carmyllie, stated that there was now,a reasonable level of public provision. The steps we have taken to encourage more gypsies to establish their own sites will, we trust, make up for the shortfall".—[Official Report, 25/4/94; col. 509.]The Government in truth want public authorities to have no further role in the provision of sites. Does the noble Earl accept that?
I desire to refer in particular to Amendment No. 141A, in my name. The Government propose in Clause 75(5) to repeal the power of the Secretary of State to make grants in respect of the capital expenditure that local authorities incur in providing sites which was conferred by Section 70 of the Local Government, Planning and Land Act 1980—a piece of Conservative legislation. The purpose of this amendment is to retain the power to make grants. The power to make grants has been a key element of the public policy followed over the past 15 years and was adopted following a recommendation by Sir John Cripps in his report on gypsy accommodation.
The need for such grants is obvious: not only are gypsy sites an unpopular competitor for capital expenditure, their provision is likely to be unremunerative without them. As the Secretary of State put it in a circular issued in 1977, before grants were available:Even on the simplest sites rents for caravan pitches are unlikely to be economic and most cases will call for subsidy".Without a duty to provide sites and financial assistance with the capital expenditure involved, the policy to provide an adequate number of sites would not have progressed to the extent that it has. Understandably, the Government decided that the rate of grant for capital expenditure should be 100 per cent. Moreover, the grants represented a recognition of the national interest in ensuring that gypsies should be satisfactorily accommodated. In Circular 11/79 (which is still in force) the Secretaries of State for Environment and for Wales stated that it was in the national interest that gypsies should be satisfactorily accommodated, and that therefore the total amount of grant had been found from central government voted expenditure and not piecemeal from housing investment programme allocations to individual authorities.
No doubt the noble Earl will reveal to the House when the Government considered that it ceased to be in the national interest that gypsies should be satisfactorily accommodated, so that one of the main reasons for the making of grants had disappeared. On the other hand, if the Government consider that it is still in the national interest that gypsies should be satisfactorily accommodated, no doubt the noble Earl will inform us why the Government propose to abolish the powers that they have to promote that national interest.
The Government have complained about the cost of these grants: £56 million between July 1978 and August 1992. The cost has been £4 million or £5 million or so a year. Complaints about expenditure on that scale in respect of an important social problem are quite unconvincing. Four or five million pounds a year pales into insignificance when set against the support that the national taxpayer provides for social housing each year 1183 for the settled population of this country. The noble Earl should inform the House, if he refers to expenditure on these grants, what the cost to the national taxpayer is of all forms of support for social housing for the settled community.
For example, did not local housing authorities alone receive over £4 billion—not £4 million—in subsidy in 1991/92? What proportion does the amount of grant paid towards gypsy site provision bear to the total amount of support provided by the national taxpayer to all forms of social housing? To complain about expenditure of £4 to £5 million a year is to lose any sense of proportion. Moreover, it is self-defeating. The Government's policy is likely to lead overall to more public expenditure in moving gypsies from place to place, imprisoning those who fail to pay fines and having to deal with the consequences for families and children that will result from the new approach.
Under the present arrangements the Government have a discretion as to how much grant, if any, to pay. If the existing amount of £4 million to £5 million is really unjustifiable, why do the Government not reduce grant, as distinct from extinguishing their power to make grant? The result is that any capital expenditure on sites by local authorities will now have to compete with other demands on their limited capital resources. That is a competition which the sites will certainly lose in the absence of any duty to provide sites and the general unpopularity of such expenditure. Unlike other forms of social housing, there will be no power for the making of an Exchequer contribution to public provision.
1 respectfully ask the noble Earl to make clear and distinct answer to the question whether the proposed repeal is not the clearest possible indication that the Government no longer consider that there is a national interest in the provision of adequate accommodation for gypsies. Taken with the proposed repeal of the duty to provide sites, and the hardening of planning policy spelt out in detail earlier—to which I have as yet heard no reply—is not all of this the clearest possible indication that there is no political will to achieve any real solution to the practical problem of site provision?
This mean-spirited repeal testifies to the Government's determination to rid themselves of any practical responsibility for the solution of a social problem and to try to treat it only as a problem of public order. It is lamentable that this Government consider that the proper agents for the solution of such social problems will in the long run be the police and not public authorities.
§ Viscount Brentford
I believe that the provision of sites is crucial to this issue. I should like my noble friend the Minister, when he replies, to explain exactly where additional sites will be found. It has already been said that the gypsies themselves will not provide them because they are nomads. What incentive will there be for landowners in a particular area to provide sites themselves? If there is a shortage at any time how will private enterprise otherwise be motivated to produce sites for this minority of people, the gypsies? Who will provide sites for them?
1184 We have given the local authorities powers to evict gypsies from unauthorised encampments whether or not sites have been provided and whether or not they have anywhere else to go. In this legislation we must not be guilty of forcing criminal behaviour on gypsies by evicting them from one place and not providing anywhere else for them to go.
I am extremely worried about this issue, both from the point of view of the gypsies themselves and from the point of view of their children and other vulnerable people who will be affected. My noble friend the Minister has already commented on the provision of education for the children of gypsies. That is vital. If gypsies have to move to unauthorised sites because: there is no authorised site for them to go to, the work of local education authorities in providing the education that is required will be made that much harder. Therefore, I hope that my noble friend will tell us how additional sites for gypsies will be provided.
§ Lord Greenway
I too should like to support the retention of the duty to provide sites for gypsies. The 1968 Act originally envisaged three types of site to be provided, namely, emergency stopping places, transit sites and the permanent residential sites about which we have heard so much this evening. The crucial sites which we need to consider are the transit sites.
Because they are nomadic gypsies move from place to place. If there are no transit sites to enable them to move from one permanent site to another they are forced to pitch on sites which are at present illegal. That would explain why the 4,500 families mentioned by Ministers break the law.
It is very difficult for gypsies who wish to travel, especially those who are on permanent sites. If they leave their site that site will be occupied by other gypsies wishing to take up permanent residence, and the original occupants will not be able to go back. They will have nowhere to go. Therefore, we have to look much more closely at the provision of more transit sites.
The lack of overall site provision also means that those few transit sites which have been provided are occupied by people who are taking up permanent residence and so destroying the object of the transit sites.
§ Lord Congleton
I should like to say a word or two in support of Amendment No. 139. Before I do so perhaps I may echo the words of the noble Lord, Lord Kenyon, who referred to the better aspects of Part V of the Bill, which I am sure will bring comfort and reassurance to those who live in the more isolated areas of our country who may have experienced the uninvited attentions of New Age travellers. I am referring to small communities, isolated farms, individuals and so on. I am sure they will be reassured by some of the provisions in the earlier parts of this Bill.
Clause 75 is raising a great deal of dismay and anxiety. I have lived in Wiltshire for 35 years, for 10 years of which I was an elected councillor in a small rural district council. In 1973 we succeeded in providing the first permanent site for gypsies in our county. There are now 29 sites with 233 pitches. Of those, 54 are transit pitches, to which the noble Lord, Lord 1185 Greenway, referred. There is all-party agreement, I am told, on Wiltshire County Council that the Caravan Sites Act 1968 should be retained. There is agreement also from the National Farmers' Union, the Association of County Councils and the Association of District Councils, with all of whom I have had brief consultations.
It was said, I think by the noble Earl, that one of the reasons for the Government's wish to repeal the Caravan Sites Act of 1968 was that it was not working. As I said, in 1973 a permanent gypsy site was established in south Wiltshire and there are now 29. Wiltshire is a designated county. If it has worked in Wiltshire, why on earth cannot it work somewhere else? Earlier I listened to the noble Lord, Lord Irvine, speaking to another amendment seeking 24 hours' dispensation before moving on campers who were staying illegally. I think that is what he was asking for —24 hours before the law was actually applied. Why did the noble Earl feel it was proper to resist that suggestion when the Government have not applied this legislation for 25 years—the length of time this legislation has been on the statute book—and have not made local authorities provide these so badly needed sites for the gypsies? It seems to me that the Government are acting in a very strange way, and I hope the noble Earl will be able to satisfy the Committee as to precisely why this legislation has to be repealed.
In conclusion, may I echo one particular concern of the Wiltshire County Council? What would be the position with a county like Wiltshire, where the council chargepayers have paid their money to support the provision of gypsy sites, when other counties, which have not provided gypsy sites in accordance with the 1968 Act, let loose their gypsies in Wiltshire? Will Wiltshire have to provide gypsy sites? Will that be used as an argument by neighbouring counties to move their gypsies into Wiltshire?
We have had an interesting discussion on these various amendments, and of course there is the one basic complication to which I referred earlier, and to which I refer again. At one moment we are saying we must provide more sites for gypsies, and at the next moment we are saying that, of course, these are itinerant people who want to move around. There is a non sequitur there: you provide sites, which insinuates that people are going to be permanent whereas in fact they move around. When the noble Lord, Lord Greenway, says that what we actually want is more transit sites I am bound to tell him that the local authorities have provided few transit sites as there is very little demand for them. The majority of gypsy families want sites with full facilities, and a local authority is much more likely to tolerate emergency stopping places than to provide actual transit sites. This has, in fact, proved to be quite popular.
My noble friend Lord Brentford asks where all these sites are going to come from. I cannot tell him exactly where they will come from, and he would not expect me to. However, he must remember that not all the gypsies on unauthorised sites wish to move about, although they 1186 are nomads. Thirty per cent. of those on unauthorised sites own the land, which indicates a willingness and desire to provide their own sites. The National Gypsy Council endorsed that view.
The noble Lord, Lord Irvine of Lairg, said that the Government want no more provision of sites from public funds and he asked me to agree. I do not agree with that; it is entirely a matter for the local authorities to decide whether and where to provide sites. The difference is that the 100 per cent. grant, which is astonishingly high by any standards and has been available for a long while, is to be repealed. The noble Lord said that there was no national interest in adequate provision for gypsies. That is completely wrong. He knows perfectly well that there is adequate provision; a great deal of effort has been put in throughout the past 15 years to provide sites for gypsies. However, 4,000 throughout each year who are of nomadic origin are on unauthorised sites.
My noble friend Lady Faithfull said that she would make a strange request and I wondered what on earth she was going to say. She does a number of strange things with Bills going through your Lordships' House, but her request was nothing compared with some of the strange things she does. She asked whether we could set up a committee of inquiry and research, to draw up rules and guidance for landowners, local authorities and gypsies. I do not honestly think that that is the right way to go about it. There is no need for a further inquiry into the nomadic lifestyle of people, no new wisdom to be gained on this difficult issue. The Children's Society report indicates that some New Age travellers are homeless people seeking refuge, but it also shows that the travelling life holds some form of superficial attraction, particularly for younger people. New Age travellers take up the travelling lifestyle as a matter of choice and not of necessity and their activities cause intolerable nuisance. The Government have an obligation to act on that.
We had an inquiry, we put out a consultation paper in 1992. It attracted 993 formal responses from a wide range of organisations; it is true that many expressed reservations, while some were frankly hostile to the proposals. Many of those who replied recognised that the existing system of council site provision had not succeeded in reducing the unauthorised camping, but few who responded made any constructive proposals for change. The Government decided to proceed with their main proposals because they are committed to reducing unauthorised camping.
My noble friend Lady Faithfull was right. The noble Lord, Lord Harris of Greenwich, said that the Bill would give rise to grave social problems if it were passed, and she was right to remind him that there would be grave social problems if the Bill did not pass. What she did not say is that there are grave social problems now, and that is why the Bill is being introduced. Some people in the countryside are laid open to the most intolerable abuses by people who claim to be of nomadic habits.
It is not a matter of criminalising people. My noble friend Lord Kenyon said that it would criminalise small groups. Of course the gypsies will not have committed a criminal offence under Clause 72 by living on an 1187 unauthorised site. It is not until a direction has been issued and they have refused to obey it, or if they return within three months, that an offence is committed.
Unauthorised camping is not just a social problem arising from a shortage of accommodation, although both those issues may be connected. Unauthorised camping can cause great offence and nuisance. We believe that it is right that local authorities should be able to take strong measures to deal with the most serious cases. Unauthorised camping by a gypsy in a designated area is already an offence, and so that principle has been accepted. I believe that our proposals are a reasoned response to what is, as I think everyone recognises, a serious problem.
The noble Lord, Lord Lester of Herne Hill, was concerned about infringing human rights and so forth. I do not believe that we will be found to be doing anything like that. Our proposals are not discriminatory. They are aimed at reducing the level of unauthorised camping which can cause intolerable nuisance and distress to local communities. No one has the right to camp on another person's land without his consent. We have no quarrel with the travelling community. Those who aspire to economic independence and who wish to follow a nomadic way of life for that purpose are of course free to do so. But, at the same time, travellers have to accept their own responsibilities, among which is the responsibility to pursue their own way of life without causing nuisance or injury to others.
Successive Administrations have persevered with the Caravan Sites Act for some 24 years. Over £87 million of Exchequer funds have been expended through capital grants to local authorities since 1978; yet the level of unauthorised camping has remained almost the same for the past 13 years. Local authorities have provided sites for some 46 per cent. of the total number of gypsy caravans in England and Wales. In the Government's view that is a reasonable level of public provision. Yet the rate of public provision has failed to keep pace with the apparent growth in demand. We believe that the right approach now is to encourage more gypsies to provide their own sites. Private site provision by gypsies has increased at twice the rate of public site provision since 1981, and we want to encourage that trend. The circular, Gypsy Sites and Planning, for which the National Gypsy Council and other gypsy organisations have expressed support as an initiative to encourage gypsies to establish their own sites, was produced. In addition, local authorities will be able to lease their sites to other people. A number are considering leasing sites to the National Gypsy Council. I see nothing wrong with that. The terms of the lease will guarantee that the site will remain open and the gypsies would have an incentive to keep those sites open. Three thousand gypsy caravans are at present on sites which are owned and run by gypsies.
Amendments Nos. 139A and 140 variously define the word "gypsies". We have decided to retain the definition of the word "gypsies" at present employed in the Caravan Sites Act 1968 for the purpose of the provision of working space on sites, because it is one with which local authorities are familiar. Recent cases in the High Court and the Court of Appeal indicate that the 1188 courts are also coming to terms with the definition. As recently as the end of last month, the Court of Appeal endorsed earlier High Court judgments concerning large unlawful encampments of New Age travellers, stating that the notion of economic independence is inherent to the idea of nomadic life, as is the notion that a nomad's living is made in an activity in which he has to go from place to place.
The courts, as I have said, have now clearly taken on board the essential requirement that a nomad is a person who will invariably travel for the purpose of getting a livelihood, whilst commenting on the impossibility of constructing one simple test for the application of the statutory definition. I do not think that a change in the definition would assist either the courts or local authorities. The removal of the discretionary element in Section 70 of the Local Government, Planning and Land Act 1980 would require a Secretary of State to pay grant regardless of value for money and regardless even of the need for a site. Amendment No. 141A would simply reinstate Section 70 as it now stands.
The 100 per cent. grant for gypsy sites was introduced in 1978 in response, as has been said, to a recommendation by Sir John Cripps in his 1976 report. He suggested that such a grant should be. made available for five years to stimulate local authority site provision. The grant has been available now for over 15 years and what was intended as an incentive has turned into a dependency. Local authorities expressed the opinion that that would represent too much control and the Government agreed that county councils could usefully look at setting themselves quotas.
§ 10.15 p.m.
§ Lord Stanley of Alderley
My noble friend passed on to the definition of what is or what is not a gypsy. He said that he accepted the ruling of the Court of Appeal of what is a gypsy. However, that does not appear to me to coincide with what is in the 1968 Act. Do I understand that in future sites will only be open to those who fall within the definition of the Court of Appeal?
It will be for the court to determine exactly who is and who is not a nomad. That is a matter for the court to decide and the courts have made clear what they have decided. That is why we believe it is better to leave the definition as it is and as courts and local authorities are able to interpret it, rather than to try and change it. By that route one causes more confusion and uncertainty.
The Government agreed that county councils could usefully look at setting themselves quotas. But it would not be appropriate for the Secretary of State to impose them. Rigid quotas are not suitable when one is talking of what is a fluid population such as gypsies. Local authorities have already established over 300 sites in England and Wales. That is a high level of public provision and we believe that the right approach now is to encourage more gypsies to provide their own sites. Private site provision has increased at twice the rate of public site provision since 1981 and we want to encourage that trend. Our proposals offer a better and fairer way forward.
§ Lord Irvine of Lairg
Before the noble Earl sits down, will he accept that I did not assert that there was no national interest in providing accommodation for gypsies? On the contrary, I asserted the precise opposite and asked the noble Earl to explain why he proposed to abolish the powers which the Government had to promote that national interest; namely, the power to provide capital grants for the provision of sites.
If I misquoted the noble Lord, Lord Irvine, I apologise. Sometimes, when one tries to write down what someone is saying, one gets it wrong. If I misrepresented the noble Lord, I apologise. I have spent a substantial amount of time on my feet trying to explain why we felt it necessary to make the change. I accept that it is a difficult change for some people to accept. However, the provision which was made for an experimental period of five years has continued for 15 years. I explained that £87 million of public finance has gone into providing those sites. We believe that that is sufficient on a 100 per cent. grant basis. Of course, it is up to local authorities if they wish to provide sites themselves. But the fact is, as I also tried to point out, that private sites have been increasing at twice the rate of public sites.
§ Lady Saltoun of Abernethy
I too must take issue with the definition of gypsies. Travellers and people with a nomadic way of life are not gypsies. I understand that gypsies are people of Egyptian descent, their descendants coming to this country many centuries ago. I believe that today there are few of them. Whatever the courts and local authorities may say, New Age travellers and people of a nomadic way of life are not true gypsies. That is my understanding of the definition of a gypsy.
§ Lord Stanley of Alderley
The noble Baroness ought to read the judgment of the Court of Appeal, which gives a description of what a gypsy is or is not—
The Earl of Halsbury
I must endorse what was said by my noble friend Lady Saltoun. The gypsies came from the North West Frontier of India, spoke their own language and for centuries infiltrated all over Europe.
§ Lord Renton
Is not the problem that originally the gypsies in this country were known as Romanies? In fact, during the Middle Ages many of them came from Hungary. In more recent times native British people adopted their way of life. They were not always good people and they became known as didicois.
Now we have yet another nomadic group, who call themselves New Age travellers. It will be impossible for us to legislate in different ways for each of these groups. Therefore, we must generalise and bring them all together and under the law we must treat them in the same way. We cannot discriminate between one group and another either on grounds of race or of motive.
Earl Ferrers: Perhaps I may help the Committee. Section 16 of the Caravan Sites Act 1968 states:
'gypsies' means persons of nomadic habit of life, whatever their race or origin, but does not include members of an organised group of travelling showmen, or of persons engaged in travelling circuses, travelling together as such".
The Act clearly rejects any racial or ethnic basis for the
definition and the courts have held that it is possible to acquire a nomadic habit of life and, indeed, to lose such a habit.
The Act requires local authorities to determine whether or not a person is a gypsy and each case is a matter of fact and degree to be decided on its own merits. Recently the High Court ruled that the notion of a nomadic habit of life means more than the mere fact of moving from place to place. The definition contemplated a class of persons whose means of obtaining an independent living necessarily involved their wandering from place to place. The notion of economic independence was inherent in the idea of a nomadic life, as was the notion that the nomad's living was to be made in an activity in which he had to go from place to place. The court also strongly emphasised the enduring character of the nomadic way of life.
In recent cases the courts have held that large groups of New Age travellers camped unlawfully on land in Devon, Dorset, Gloucestershire and Warwickshire were not gypsies for the purposes of the 1968 Act. On 27th May the Court of Appeal dismissed appeals brought by five travellers from unlawful sites in Devon, Dorset and Gloucestershire. It upheld the High Court rulings that local authorities' decisions to evict them could not be challenged on the grounds that the authorities owed a duty to provide caravan site accommodation for them. No such duty was owed since the travellers were not gypsies within the statutory definition.
§ Lord Avebury
Perhaps I may first deal with the point that the Minister just made. His clarification was helpful. Perhaps when we consider the matter further, as undoubtedly we shall on Report, we shall be satisfied with the interpretation of the definition in the 1968 Act which has been formulated by the Court of Appeal.
The reason why my noble kinsman Lord Stanley of Alderley, the noble Lord, Lord Kenyon, and I attempted to frame modified definitions was because we wished to exclude New Age travellers and to confer the benefits of the 1968 Act, if we could persuade the Government not to repeal it, on "genuine" gypsies.
But, with respect, I do not believe that the Minister quite answered the point which was put to him by my noble kinsman as to whether the definition as now laid down by the Court of Appeal would be the one that was binding on local authorities. If that were to be the case, it would be helpful if the department issued a circular confirming that that is its understanding of the position and that the local authorities are not obliged to provide accommodation on those sites for New Age travellers or other persons who do not come within the traditional definition of a gypsy.
That would certainly make life easier for those of us who have been trying to frame alternative definitions. We should no longer need to do so because the Court of Appeal would have satisfied the anxieties which we had on that point and, when we return to this matter on Report as we undoubtedly shall do, then we should be able to confine our attention to the simple point of whether we need to continue to impose the obligation on local authorities which they have always had under the 1968 Act.
1191 As to that point, I should have thought that the feeling of the Committee was extremely conclusive. Prior to the Minister's winding-up speech, nine consecutive speakers favoured the retention of the duty under the 1968 Act and not a single speaker defended the Government's position. Four speeches were made by Members of the Committee on the government Benches; we had two speeches from the Cross Benches; and three speeches from the Opposition Benches. Every single one of those speeches favoured the retention of the duty. I leave out the noble Lord, Lord Renton, because he spoke after the Minister.
§ Lord Renton
I thank the noble Lord for giving way. He is assuming that silence means dissent; it generally does not.
§ Lord Avebury
I hate to point this out, but there are not many Members on that side of the Committee apart from those who spoke. I believe that there are only the noble Lord, Lord Renton, and two other Members of the Committee who have been present throughout the proceedings. It was open to them to defend the Government if they wished to do so and I should have thought that anyone who believed that the balance was not correctly reflected in the speeches which had been made would have attempted to redress that balance by leaping to the Government's defence.
Perhaps I may tell the noble Lord that I am delighted that nobody rushed to the Government's defence because it would have meant that more people would have spoken and that would have elongated the debate even further.
§ Lord Avebury
This is an important matter. I do not believe that the Minister should object to people speaking on a matter which is of such fundamental importance to many of us in this Committee and to many outside this Chamber. The speeches reflected the vast majority of submissions made to the Government. As I said, of the 1,400 responses to their consultative document, the overwhelming majority were in favour of the retention of duties under the 1968 Act.
In his defence of the Government's position, the Minister repeated several points that have arisen earlier this evening. He said that the private sector had provided accommodation at twice the rate of the public sector. I can only say that he must be looking at a different set of figures from those produced by his own department, a copy of which I handed to him earlier. Those figures show the number of pitches provided on local authority and private sites from 1990 until 1994 —a period of five years. They showed that, during that time, councils have provided in total 5,951 sites and the private sector have provided 3,271 sites. If one looks at the increases during that period in both the private and local authority sectors, the number was about 800. Therefore, if the private sector continued to provide accommodation at the same rate as it has during those five years, by repealing the 1968 Act the rate at which the backlog is cut down and the rate at which people on unauthorised sites are brought into conformity with the law would be halved. That is a point which the noble Earl has emphasised throughout the proceedings.
1192 The noble Earl said in answer to his noble friend Lady Faithfull that there was no new wisdom to be gained. I should have thought that that was a very extreme point of view to take after such changes as have occurred in the past few years in the nature of the problem which have made it necessary, according to the Government, radically to sweep away the legislation and provide something new. I should have thought that there was some new wisdom to be gained, and that, in particular, the Minister might address his mind to the reasons why, during the past year, the number of people on unauthorised sites has declined; contrary to the point he has reiterated that the number of unauthorised encampments continues to increase at a faster rate than the provision of new accommodation. Is the decline because people are leaving the nomadic community and settling in fixed accommodation? Is it because in previous years NATs were counted in the total and that they have now been excluded by the local authorities? There must be some good reason why there has been a change in the recorded totals of persons on caravan sites in England and a change in the recorded totals of persons on unauthorised sites.
Finally, the Minister spoke about "intolerable abuse", neglecting the important proviso that that always relates to the unauthorised sites. If one looks at the complaints that are received from people about gypsies in their neighbourhood, about the disruption caused by insanitary behaviour, noise, dirt and so on, those complaints nearly always relate to an unauthorised site. On authorised sites that are properly managed gypsies do not cause anything like that sort of unsettlement in the surrounding community.
I know that we shall not convince the Minister by the arguments put to him this evening; that would have been done long ago with the many speeches to which he has listened from noble Lords on his own side. All I have to say is that there is such a degree of strength of feeling in the Committee on the retention of the provisions in the 1968 Act that we shall have consult between now and Report stage to find and bring forward a common formula both on the duty itself and on the definition of "gypsies" and hope that by the combined weight of our persuasion we shall then be able to convince the Minister. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 139ZA to 142 not moved.]
On Question, Whether Clause 75 shall stand part of the Bill?
§ Lord Irvine of Lairg
I oppose the Question that Clause 75 stand part of the Bill. Clauses 72 to 75 of this Bill represent a fundamental change in public policy towards those of a nomadic habit of life, whatever their race or origin.
For centuries there have been fears about those who have led such a life and, unfortunately, persecution in some cases. But at least in more recent times it has been recognised in this country that individuals have a right to adopt such a way of life if they choose and that their right should be respected. The practical issue has been how to ensure that the right to lead a nomadic existence 1193 can be reconciled with the rights of those who do not and how the practical problems which unfortunately occur may be minimised.
It is true that those having a nomadic habit of life have increased in number over the past 30 years, but it is important to bear in mind—the noble Lord, Lord Lester of Herne Hill made the point earlier—that the numbers involved are relatively small. In 1992 there were only 9,900 families estimated to be leading such a life. By any standards, it is a very small minority. I recognise that it is not a popular minority; but it is in its manner of dealing with the difficult problems which that small and unpopular minority raises that the wisdom and understanding of Parliament and our tolerance as a nation may reasonably be judged.
The public policy which has prevailed for the past quarter of a century has commanded all-party support. Its main objective has been to provide a system of legal encampments across the country in which those leading a nomadic existence can pursue their way of life without conflict with their more settled neighbours.
In recent years the achievement of what has undoubtedly been an enlightened objective has been based on five key elements. There is the duty of the local authorities to provide adequate accommodation; the provision by central government of grants toward capital expenditure on provision of sites; and the Secretary of State's power to give directions to authorities to provide sites or additional sites. The fact is that 100 per cent. capital grants and the imposition of a duty to provide sufficient sites failed to provide enough inducement to move some local authorities to act. The fourth element of the public policy toward site provision is designation. As the Secretary of State has recognised for many years, the prospect of designation for many authorities is a real incentive to site provision. That is because it gives them access to criminal remedies.
The fifth element of public policy has been a supportive approach to applications for planning permission for sites. That policy is proving successful. On this side of the Chamber we find it difficult to understand why it should be brought abruptly to an end. In 1965 there were estimated to be about 4,000 caravans, only a tiny fraction of them on authorised sites. In January 1992 local authorities counted nearly 13,500 such caravans, providing homes for an estimated 9,900 families. Nearly 9,500 of those 13,500 caravans —approximately two thirds—were on authorised sites. So the policy was succeeding.
No one should be complacent about what was achieved. It took over 20 years. In 1992 4,500 caravans were still on unauthorised sites. Many authorities had still not performed the duties laid on them. In 1992 over 60 per cent. of authorities had not achieved designation. The reason why more has not been achieved is plain. The research published by the Department of the Environment in its Gypsy Site Provision and Policy document of 1991 concluded that,having reviewed many of the 'technical factors' of planning, environmental health, local government procedures and 1194 parliamentary legislation, it remained clear that a key factor in the success or failure of a gypsy site policy was the amount of political will mobilised in its support".In the face of local hostility there remains, as that research put it,the necessity for political will to achieve site provision".The Government's new approach is to abandon the necessary political will to achieve site provision and to dismantle each element of the public policy which has hitherto enjoyed all-party support. So far as the active contributors to our discussion today go, from all quarters of the Committee that all-party support continues. The Government's new approach is to stop any significant public provision of new sites in practice and to hope that the application of discriminatory criminal provisions to those with lawfully no place to stop will cause those individuals simply to disappear off the face of the earth.
The Government's policy is to dismantle each element of the public policy which has hitherto enjoyed support by repealing the duty to provide accommodation, by repealing the power to make grants, by repealing the Secretary of State's power to give directions to authorities, by abandoning the concept of designation, and by abandoning their previously supportive approach to the granting of planning permission for gypsy sites. The practical consequences will be to curtail the supply available to meet an increasing demand and more families, without a lawful place to rest, being made criminals and ultimately imprisoned.
There is no case and no significant public support from interested bodies of which I am aware for such a reversal of public policy. When the noble Earl replies, can he at least say whether the major local authority associations and the others who were consulted actually supported this wholesale reversal of policy? I believe not. May we be informed? For reasons which I elaborated on previous amendments, we submit that the Government's proposals are mean-minded, discriminatory and will prove to be counter-productive and harmful.
The Government claim that they accept that people who wish to adopt a nomadic existence should be free to do so. But if the Government's proposals are enacted, the only people free to do so within the criminal law will be those wealthy enough to establish sites around the country between which they may wander, as medieval monarchs were able to do. Those less affluent, however, will be free only to move on provided they never stop. So I ask: why is the duty to provide sites and the power to provide grants to enable the sites to be provided properly the subject of a Criminal Justice and Public Order Bill? The only answer is that the repeal of the existing legislation, which has enjoyed for so long all-party support, makes public disorder and infringement of the Government's proposed criminal legislation more likely. The repeals create rather than remove the conditions which will cause crime. That is a strange recommendation for inclusion in a Bill promoted by a Government committed in name to greater observance of the criminal law. For those reasons, I oppose the Question that Clause 75 stand part of the Bill.
The Lord Bishop of Liverpool
I support the noble Lord, Lord Irvine, in resisting the Question that Clause 75 stand part of the Bill. I hope that the noble Earl the Minister will read the speeches that have been made today. They have been remarkably consistent on the point of not wanting in any sense to support illegal action but in wishing to ensure that proper provision is made I hope that he and Ministers in another place will think very hard indeed before resisting the calls that have come from all sides of the Chamber for the duty to remain on local authorities to make provision.
The noble Earl has repeatedly been asked to give a principled reason why the Government should want to repeal the existing provision. I have heard no attempt to give such a principled reason. I do not believe the sums of money are large in terms of the national budget: £87 million since 1978 seems a modest part of the national budget. It simply will not do to say, as the noble Earl did say, that it is entirely a matter for local authorities to provide sites. From all round the Committee we have made the point that we are talking about prejudice with regard to a very unpopular group. When it comes to local elections there are no votes to be had for making provision for travellers. This is one area where a duty should be laid nationally on local authorities so that they do not bear all the odium, as it can sometimes be, for making the proper provision.
I have tried to understand what the Government's hopes really are in the long term. I think I do not misrepresent them in presuming that assimilation, or some measure of assimilation, must be part of what they hope for. If that is so, getting traveller children to schools must be at the top of the list. I heard no answer to the questions that several of your Lordships—the noble Baroness, Lady Faithfull, the noble Viscount, Lord Brentford, and I—asked about how the Minister would expect to see more children getting to school than the 10 per cent. to 50 per cent., which is the figure given to us. Constantly moving travellers on causes some to choose that way. I do not think that the importance of transit sites should be dismissed. Wherever it is possible for there to be a more stable community, as happens, thank God, in some very good instances, more children will go to school with other children of the neighbourhood and will themselves want to be much closer to being members of that whole community.
If assimilation is in any sense part of the long-term objective, surely we want a policy which is co-operative rather than confrontational. That is not the way of this Bill. The Government say that the proposals are intended to encourage gypsies to establish their own sites. The figures given by the noble Earl earlier are not very encouraging—46 sites established by local authorities; 24 privately; 10 on gypsy land, not always lawful. Surely what has come out of the debate is that we need provision to be increased. We need a mixture —indeed, of private provision wherever that can happen —but we need a sustained duty to be laid on local authorities.
§ 10.45 p.m.
§ Lord Hylton
In the course of earlier debates on this subject the question has been asked, and rightly, as to where land is to be found in this country for providing sites not only for gypsies, traditional or semi-traditional, but also for travellers who have no other home of their own. Several good suggestions have already been made. The noble Lord, Lord Stanley of Alderley, pointed to redundant army camps and barracks. The noble Baroness, Lady Faithfull, mentioned redundant airfields that she knew of. In all these military cases, water, electricity and usually drainage and sewerage are there already.
I can go on a little further to suggest a number of other categories of land. First, there is redundant Coal Board land, very likely soon to be privatised. There, again, electricity and water are almost always available. There is a large quantity of derelict industrial land in this country, very often with services already existing. In addition to those the Forestry Commission is being urged, encouraged and perhaps even forced by the; Government to sell off some of its properties—some of its woods—particularly the smaller ones. In some cases those could provide well screened sites for caravan encampments. It must be possible somewhere within the very large amount of Crown land to find some suitable sites.
As if that was not a good start, there are now many thousands of acres throughout England and Wales of agricultural set aside which may soon be allowed to be set aside on a permanent basis. Even at the present time that could provide quite a number of temporary sites, given that the land is set aside from about September to the following July of each year.
What is lacking at the present time, as the noble Lord, Lord Irvine of Lairg, correctly pointed out, is the political will. I hope very much that what has been said today will generate some political will throughout the country, and particularly in the ranks of the Government. If they wish to change the 1968 Act then perhaps they should take power to exempt those local authorities all of whose area consists of built-up land. I cannot see that they have any other cause to abandon the coherent approach to the question which has prevailed until now.
The problem we are dealing with is a difficult one and nobody pretends that there is an easy solution to it. The right reverend Prelate the Bishop of Liverpool was quite right to draw the attention of the Committee to how important it is to try to deal with gypsies and to look after them as they tend to be the more oppressed—if that is the right word—people in society simply because, as I believe he said, nobody particularly wants a gypsy caravan site next door.
He spoke about what would help more children to get to school than the 10 per cent. to 15 per cent. which do so at present. With the greatest respect to the right reverend Prelate, that is a problem which presents itself to government, local authorities and everyone else. That matter is not properly addressed by this Bill or these clauses and, if I may say so, it is an irrelevance to the problem of this particular clause. Dealing with nomadic 1197 people, whether from the point of view of getting them to school or giving them medical attention, is bound to be difficult, but there are arrangements in place for local authorities to do that.
The noble Lord, Lord Hylton, said that there must be lots of spare land floating about the place somewhere which is Ministry of Defence land and so forth. It is always easy to believe that there are places where we can find homes for gypsies. But these are matters which have to be dealt with in the locality. When we have inquired whether there is spare Ministry of Defence land and so forth, it is not easy to find that there is any. The noble Lord suggested that gypsies or New Age travellers should settle on set aside farmland. I thought that that was one of the most extraordinary suggestions I have heard for a long while. I do not believe that that is a reasonable solution to the problem.
The Caravan Sites Act was introduced some 24 years ago with, as the noble Lord, Lord Irvine, said, all-party support. But as I explained earlier, it was intended that it should operate for five years and in fact it has operated for 15 years. It has had attached to it a 100 per cent. grant which is a unique form of grant in almost any sphere of local authority or public life. It is not surprising that if that legislation is to be repealed everyone will say that they wished that it was not and that the funds were still going to be there. That is a perfectly natural reaction.
That Bill was introduced by the noble Lord, Lord Avebury, when he was in another place. He has been a staunch supporter of it ever since, and that I can understand. His Bill proposed that each local authority should make fair provision of gypsy sites to reflect the number of gypsies who were residing in or resorting to the area concerned. An authority which made that provision could be designated, and it would then have access to powers which it could then use to evict gypsies in order to control unauthorised camping by them.
We come back to the problem that this is all about. We are trying to deal with and to control unauthorised camping. The Secretary of State would have a power of last resort to direct an authority to make additional sites available if necessary. This carrot-and-stick approach to public site provision has been in operation since the provisions came into force in April 1970.
The approach of that Act was based on three important premises. First, it was assumed that the gypsy population had then been accurately assessed and would not grow. That proved to be wrong.
The second premise was that local authorities would be keen to provide sites in order to be rewarded with designation which would give them powers to control unauthorised camping. In fact, after 24 years of operation only 37 per cent. of local authorities in England and Wales have these powers.
The third premise was that it was assumed in 1968 that the modest level of site provision which was envisaged as necessary could be achieved in a cost-neutral way with the costs of site provision financed from rents and rates. That has been found not to be the case.
1198 So when the right reverend Prelate says that he has heard no reason why we are making this change, I can only tell him that the reason is that those three premises which, at the time that that Act was brought into operation, were considered good and worthy, have not proved to be so. That is why we think that we must have a change. It is to see whether we can deliver either of the principal objectives; namely, reducing unauthorised camping and providing adequate sites for gypsies, in another way.
Our proposals are designed to achieve the original objectives of the 1968 Act by other means. Local authorities will continue to have the power to make further provision if they so wish, but we do not intend to set aside funds specifically for this purpose. We consider that the right approach now is to encourage more gypsies to provide their own sites through the existing planning system. Private site provision has increased at twice the rate of council site provision since 1981. The Department of the Environment issued a circular in January which makes it clear that local planning authorities should include in their development plans policies which meet gypsies' accommodation needs.
The planning system is transparently fair. Some 80 per cent. of all planning applications are granted. The system caters for a wide range of developers with specific land use requirements. We believe that the circular will ensure that gypsies' planning applications are treated fairly and will encourage more gypsies to establish their own sites.
The 1968 Act regime has been helpful, but it has not been wholly successful. We think that Parliament has to find an alternative, realistic solution to this long-standing problem where local communities have been plagued by the nuisance of unauthorised camping and where many gypsy families are still without proper accommodation.
Clause 75 is an important part of the Bill. I do not say —and I do not think that for one minute the right reverend Prelate would say—that even if the 1968 Act had continued in existence, the problem would have gone away or been overcome. I do not believe that it would have been overcome. It has not been overcome in the past 15 years and, as I have said, the provisions of the Act have lasted three times as long as intended. We have to address the problem of unauthorised camping and at the same time try to find ways of making provision for gypsies who are nomads and who do not always want to be in one place but who like to move around. We have to make that provision for them in an alternative way.
§ 11 p.m.
§ Lord Avebury
I have been tempted to intervene by the references of the noble Earl to the assumptions that he says were made in 1968. I was there, but I do not know where he was at the time. I took part in the discussions which led to the presentation of the Bill for which, as the noble Earl said, I was responsible in 1968. I had detailed conversations with the then Minister of Housing and Local Government, Dick Crossman, with Arthur Skeffington, who was the Parliamentary 1199 Secretary who dealt with the Bill in Committee and with my late friend John Silkin who was instrumental in saving the Bill when, as I was number six in the Ballot, it looked as though I would not have sufficient time in Committee. He created a second committee so that we could get the matter through, for which I was extremely grateful at the time.
The assumptions that the noble Earl says were made were simply never raised. For a start, it was feared at the time that the number of gypsies enumerated in the census was substantially underestimated. That fact was recognised by everyone at the time, especially by the officials in the department, and caution was expressed during the proceedings on the Bill that one should not rely too heavily on those figures.
Therefore, when the Minister keeps reiterating— indeed, he has sounded rather like a gramophone record all the way through our proceedings—that the number of unauthorised caravans has increased more rapidly than the provision for them, he is ignoring the fact that, if we started off with a much higher base than was then supposed, there may not have been that much of a difference between the rate of provision and the rate of increase of the population. Of course we did not assume that there was no growth in the gypsy population; indeed, that would have been a wholly unreasonable thing to have imagined when everyone knew that the size of gypsy families was greater than that of families in the settled population. If the noble Earl will refer back to the Ministry of Housing and Local Government document concerning gypsies and other travellers, on which much of the argument for the 1968 Act rested, he will see that there was an analysis of family size which could not have led anyone to the conclusion that there would be no future growth in the gypsy population.
The noble Earl also said that we assumed that local authorities would be keen to provide sites. Why then did we give the Secretary of State a power of direction and why did we reinforce that with the power of mandamus? Further, why does the Minister consistently refuse to answer the question that I have put to him several times? I do not want to sound like a gramophone record. I am very disappointed that the noble Earl constantly ignores my question. In fact, he ignored every single question that I put to him during the last debate; indeed, he did not reply to a single one of them. However, I put the following question again. Why has no attempt ever been made to use the power of mandamus in the Bill and why do the Government not issue directions to more than the three local authorities that the noble Earl mentioned earlier? Why does the Minister keep telling us that public provision is a failure and that we now have to rely on the private sector, when no real attempt has ever been made to compel local authorities to carry out their duties under the 1968 Act?
I am sorry that it is so late in the evening that we cannot have a much longer debate on the matter and that we shall have to return to it on Report. I am also sorry that the Minister, whose heart is clearly not in it— indeed, he is sitting there looking very dejected, and I am not surprised —does not agree with the points that he is having to make on behalf of the Government. He has been given his brief, he has to read it out and not 1200 listen to anything that is said from either side of the Committee. It would be unfair of me to keep Members of the Committee here any longer. However, I give a warning that we shall have to return to the matter and spend a great deal of time on it when we reach the Report stage.
§ Lord Irvine of Lairg
The arguments throughout the debate, and, indeed, throughout our many debates today on the issues concerning the gypsies raised by a. range of amendments have been compelling and all one way. If I may say so, the recent contribution of the noble Lord, Lord Avebury, was quite devastating and his question remain unanswered.
The noble Earl has many voters at his beck and call but he has had scarcely a supporter in this debate. Were I him I would not take comfort from the fact that no one on his side has provided the principal justification for the reversal of public policy which, as the right reverend Prelate the Bishop of Liverpool reminded the Committee, he has failed to provide himself. But this is not the hour to test the opinion of the Committee on this Question. I will not therefore press it to a vote tonight
Clause 75 agreed to.
Clause 76 [Powers to stop and search vehicles, etc. and persons]:
Lord Williams of Mostyn moved Amendment No. 142ZA:
Page 60, line 30, leave out ("it appears to").
§ The noble Lord said: In moving Amendment No 142ZA I wish to speak also to Amendments. Nos. 142ZB to 142AD inclusive. I am most pleased that the noble Earl is remaining here. He has plainly been champing at the bit all evening to agree with some amendments and now I am offering him the opportunity to do so with these moderate, reasonable, well-crafted and useful amendments.
It is very late and we are turning from the problems of gypsies to the prevention of terrorism, which is self-contained as a problem. The amendments deal with Clause 76, which provides for the introduction of draconian powers into the Prevention of Terrorism (Temporary Provisions) Act 1989. No one on this side of the Committee —I know that the noble and learned Lord the Lord Advocate will accept this—who speaks on questions of terrorism and related matters, as I do, is ever going to pretend that the balance is an easy one. The balance that I specify—I am obliged for his agreement—is trying to draw a reasoned, acceptable balance between state powers and individual liberties. Our approach is to seek to be helpful and to point out the difficulties and the pitfalls of what is a draconian proposal. If this section of the Bill becomes law, new Section 13A of the Prevention of Terrorism Act of 1989 will read:
Where it appears to [a senior officer] … that it is expedient to do so"—
those are important provisions—
he may give an authorisation that the powers to stop and search vehicles and persons … shall be exercisable at any place within his area or a specified locality in his area for a specified period not exceeding twenty eight days".
Therefore, it gives a totally unlimited discretion to any senior police officer to whom it appears expedient, for
a period of 28 days, that powers to stop and search vehicles and pedestrians can be given. The first proposal by way of amendment that we suggest —I readily recognise that the wording may not be perfect—is that the words "it appears to" should be deleted and the words in Amendment No. 142ZB included to make the relevant phrase read:
is convinced that it is necessary in order to prevent acts of terrorism
§ The onus, therefore, upon a senior officer—the seniority is specified in the proposal as presently in the Bill— would be a graver one and one more susceptible of judicial review. I use that in a general sense. I reiterate that the wording may not be perfect but I believe, respectfully, that the sentiment behind the change of wording is extremely important. For example, one has only to look at the metropolitan district. The power which the senior police officer may have is to order that the power to stop and search vehicles and persons shall be exercised at any place within the metropolitan district or any specified locality. If I construe that correctly, that could mean a locality as wide as, for instance, Westminster, Camden, or Islington.
§ Not only is that power extremely wide in terms of area, it is far too wide in terms of time. I must apologise to the noble and learned Lord the Lord Advocate if the amendment as printed has misled him. The amendment as printed mentions a reduction from 28 days to 11. I hope that he has not been wondering and worrying about whether some arcane proposition was to come forward from me. It is simply a printer's glitch. The figure should have been seven, which I hope will come as no surprise to him.
§ The serious point is that these powers are extremely wide and draconian. In certain circumstances they may be necessary, but if we are not exceptionally careful we shall have given the powers of terrorism their own victory, namely, the interference with civil life in a civilised community. Whereas we recognise that as a matter of principle some widening of powers may be necessary, it ought to be done on a very limited basis. In due time I will ask the noble and learned Lord Advocate to consider whether or not a degree of judicial intervention ought not to be present if these powers are to be exercised at all; that is to say, that where at all possible judicial authority should be obtained before any of these powers can be used.
I turn to Clause 76(2) (b) of the Bill as presently drafted. Clause 76(2) (a) is perfectly understandable because it refers to acts of terrorism connected with the affairs of Northern Ireland. It is a commonplace that it is the affairs of Northern Ireland and terrorism relating to them that really provide the motive for these alterations in the law. However, it appears to us that paragraph (b) is wholly unnecessary. It refers to
acts of terrorism of any other description except acts connected solely with the affairs of the United Kingdom or any part of the United Kingdom other than Northern Ireland".
§ Therefore, there is an exclusion of acts concerned solely with the affairs of the United Kingdom. If I read it correctly, it means that these powers can, for instance, be concerned with international terrorism relating to the affairs of Russia, Kurdistan and the United States of 1202 America, but not any part of the United Kingdom other than Northern Ireland. On a reading which I believe not to be flawed, subsection (2) (b) would appear to be quite unnecessary.
One needs to bear in mind the powers that are given. Powers are given to a constable to stop and
search any vehicle, its driver or any passenger for articles of a kind which could be used for a purpose connected with the commission, preparation or instigation of acts of terrorism…
§ There are also powers to stop any pedestrian. By virtue of Clause 76(4)—it is difficult to be happy with its wording—a constable may stop and make a search of any vehicle or person whether or not he has grounds for suspecting that the vehicle or person is carrying articles of that kind. By means of a degree of compliment of the Government, they have been absolutely candid about their purpose. No reasonable suspicion is required. These are stated to be random, blunt powers of search. It is rare indeed that one can contemplate an extension of state powers to that degree.
§ I submit to the Committee that 28 days is far too long a period, that the absence of any judicial involvement is a defect, and that the reference to any place or specified locality within a police area is far too widely drawn. I suggest that the Committee needs to bear in mind that a person is automatically guilty of an offence if he fails to stop, or to stop his vehicle, or wilfully obstructs a constable in the exercise of those powers. I see no saver of the usual formula "without reasonable excuse". I would be grateful to be corrected by the noble and learned Lord Advocate if I am wrong, but it appears to create an absolute offence; in other words, if a constable, for example, in the London metropolitan area vested with the powers of the commissioner, requires a vehicle to stop and it does not stop, an absolute offence is committed. There is no saver by way of reasonable excuse.
§ Again I stress that these points are put forward in order to improve the legislation and not simply in order to be difficult, as sometimes occurs and as I have witnessed in this Chamber and on occasion in Committee. Those are some of the problems which immediately leap out from Clause 76 as presently drafted.
Another important question is to be found in subsection (9), which reads:
Where a vehicle is stopped by a constable under this section, the driver shall be entitled to obtain a written statement that the vehicle was stopped under the powers conferred by this section if he applies for such a statement".
The amendment which we suggest, and which I respectfully submit constitutes a distinct improvement, proposes that within subsection (9), after the words:
a written statement that the vehicle was stopped under the powers conferred by this section",
should be added:
and setting out the reasons why this provision was used on this
§ The purpose is at least twofold, and is prudent in legislation of this kind, as a matter first of principle and secondly of practice. The matter of principle, upon which our law is based, is that the ordinary citizen should be entitled to know as of right the reasons for stop, search and detention. That is well recognised in our law. The noble and learned Lord the Lord Advocate 1203 and I were both brought up on Christie v. Leachinsky. In any event, as my noble friend Lord Lester of Herne Hill observed earlier in the preceding discussion in your Lordships' Committee, we have obligations under the European convention and it is a distinct question whether we should not be in breach of our obligations as a high contracting party under Article 5 if persons are able to be stopped without being given proper reasons for their stop, seizure and search.
§ That is the question of principle, which is extremely important and which, I repeat, gives terrorism the victory which it is not entitled to have. The question of practice is this. Again, I hope that the noble and learned Lord the Lord Advocate finds it a helpful approach. If a constable knows that he may subsequently have to give reasons for his behaviour, that is a salutary discipline upon anyone exercising those powers. Therefore, in principle and in practice, I commend the amendments to the Committee.
§ The final amendment relates to page 62, line 12, of the Bill as printed. Evidence to be obtained as a result of these draconian powers ought not to be admissible in any criminal trial except in a charge relating to an offence involving terrorism or serious violence. That is simply a safeguard which it is hoped would provide a degree of control over random searches which might be carried out for less than pure motives.
§ I am conscious that it is extremely late and I am reluctant to trespass on the Committee's patience, but these are matters of fundamental importance. That phrase "of fundamental importance" is one which is trotted out too often. I have lost count of it this evening. However, these amendments warrant and justify that description. I beg to move.
§ 11.15 p.m.
§ Lord Harris of Greenwich
This is a classic way not to legislate. There are a dozen people in this Chamber. The hour is almost 11.20. We are talking about major changes in the criminal law of this country. It is irresponsible to conduct public business in this fashion.
The Government Chief Whip is here. I must make it absolutely clear that if this continues with this Bill those of us on these Benches will move Motions at around this time to ensure that we have a properly full Chamber when we discuss matters of this degree of significance. I make that quite clear, and I am sure that the Government Chief Whip hears what I say.
On the substance of the matter, I tend to agree with the Government. I believe that these powers should be used on an extremely limited basis. I believe that it is right that an officer of at least the rank of assistant chief constable outside London and commander in the Metropolitan Police should give his authority before procedures of this kind are introduced. But they will have to be implemented on an extremely limited basis. If they were to be used irresponsibly there would be very adverse consequences so far as public opinion was concerned. I think that would be accepted in the police service, quite apart from anywhere else.
It would be wrong for me to comment on the many points made by the noble Lord, Lord Williams of Mostyn, because I would want to examine with 1204 considerable care the various arguments he has put forward. The only one with which I found myself not in agreement was his belief that there should be an opportunity for judicial intervention. I do not believe that it is possible for a judge to make a determination on a matter of this sort. I do not see the basis upon which he would be able to ignore such evidence as would be put before him by the police. He would be taking on an immense personal responsibility were he to refuse his authority and there then followed a series of terrorist incidents which it could be argued would not have taken place had he in fact confirmed the application of the police. It would be putting members of the judiciary in an extremely difficult and dangerous position were they to do that. Therefore on that point I am bound to say I am reluctant to agree with what the noble Lord, Lord Williams of Mostyn, said. But so far as the rest of it is concerned I was extremely interested in the many points he put forward. I should like to look at them and certainly we may come back to this at Report stage. I think it may then be desirable to go into this matter in greater detail rather than to do so at this time of the evening.
§ The Lord Advocate (Lord Rodger of Earlsferry)
I accept of course that in an ideal world we would not have a clause like this. I also accept that there must be a balance in these matters, and it is the question of striking a balance which is difficult and which we must always be striving to achieve. Nonetheless, I believe that the clause as formulated strikes the correct balance. I have noted with care the points which have been made and I have taken them to be probing points, designed to show up matters which the noble Lord, Lord Williams, thought were important to raise. Of course I have listened with great care to what he said. As to whether the words "it appears to" should be converted to "is convinced", that appears to me to be not a very important matter because at the end of the day if it appears to somebody then he is likely to be convinced of it.
On the other hand, when he substitutes for the words "expedient to do so" the words "convinced that it is necessary" at that point we do part company. It is of course not just expedient to do so but expedient in what sense?—expedient to do so in order to prevent acts of terrorism to which this section applies. There is already a limitation built in there. I accept of course that the noble Lord was not particularly wedded to those particular words, but the words which he chose nonetheless seemed to me to indicate the kind of difficulty involved, because he chose the word "necessary", but on the other hand there may often be a situation where there would be two possible routes open to prevent an act of terrorism. One would be to institute some scheme under Section 13(a) to stop and search vehicles, and the other might be, for example, to cancel an event, to close a building or something like that, where the terrorism was expected to take place.
In that situation, if one had to choose, it could not be said that it was necessary to exercise these powers because one might be able to prevent it in another way, by closing the particular building, or by some other 1205 means. So in that situation one would not be able to meet the test; and yet I would have thought that it would be appropriate, rather than give way to terrorism by perhaps closing a building or cancelling an event, to use the kinds of powers envisaged here. Therefore, if it appeared to the senior officer to be expedient to do that, it seems to me to be the kind of situation where it would be appropriate for the powers to be used.
I adopt what the noble Lord, Lord Harris, said about the intervention of the judicial authority. I recognise a theme which we have come across in connection with these matters before. I can understand why in some senses it would be a comfort, even to a Metropolitan Police officer or whoever it may be, to have such backing. But at the end of the day it is an operational matter and not one where it would be desirable to draw in the judiciary. It might lay them open to the criticism which the noble Lord, Lord Harris, mentioned if, at the end of the day, something went wrong.
The definition in subsection (2) (b) to which the noble Lord drew attention is designed to refer to two kinds of act of terrorism relating to matters outside the United Kingdom. I wondered why that formulation had been chosen, but it is designed to limit the scope of the section. The experience of those who have to deal with such matters is that, even though there may be people who are involved, for example, in Welsh nationalist terrorism, Scottish nationalist terrorism or other acts of terrorism within or relating to the United Kingdom, so far they have not acted in a way in which the powers envisaged by the clause would be thought to be necessary. The provision was designed to deal with acts of terrorism connected with Northern Ireland, where experience has shown that that can happen, and acts of terrorism connected with states overseas where the judgment is that it might be required. That is why the formulation was chosen.
The noble Lord, Lord Williams, is right. The powers are deliberately random and I accept that that goes further than normal. But the judgment is made that in that area we should have a random power of search. It is again a question of how long the powers should be for; the noble Lord said that he thought seven days. We are talking about maxima here and responsible senior officers who have to choose what they think is appropriate in the circumstances. Rather than have to renew powers for an operation every seven days, for example, it seems to us that a maximum period requiring to be renewed and capable of renewal for 28 days is appropriate. It is a matter of balance.
The noble Lord, Lord Williams, drew attention to a point in connection with subsection (3) and I wish to reflect on it because it does not seem that the subsection provides a reasonable excuse provision. I should like to consider further whether that provision should be built in. He then drew attention to subsection (9) and to the written statement which he would like to contain the reasons why the provision was used on that occasion. One could have it, but only in the sense that it might be in some ways a sham. One could say it was to stop a vehicle in an operation designed to frustrate terrorism or whatever it might be, a general reference to the use of 1206 the power. If one went further than that, it might lead to the police officer being required to specify the reason —namely, the operation which was under way at the time. That seems to me to be objectionable in the context. Therefore, although I have taken careful account of what was said, nonetheless I believe that the balance is correctly struck. In the light of these comments, therefore, I ask the noble Lord to withdraw his amendment.
§ 11.30 p.m.
§ Lord Monson
Before the Minister sits down, will he elaborate upon one point? He explained why the clause excludes terrorism within the UK other than that relating to Northern Ireland; namely, that to date Scottish nationalist terrorism and Welsh nationalist terrorism have not been as intense—if that is the right word—as Northern Irish terrorism, and of course he is right as regards the present situation. But it may not remain that way. Animal Liberation Front terrorism has already led to injury and destruction. I wonder whether it is wise to limit the powers of the police in this way. If we agree with the principles in the clause as a whole, is it right to tie the hands of the police in that way when we do not know how intense other forms of terrorism might become in future?
§ Lord Rodger of Earlsferry
I can appreciate that point of view fully. The Government have approached the matter by taking on board the fact that these are exceptional powers, and should therefore be framed in circumstances where it appears that they are necessary. If what the noble Lord described came about and such things came to pass, then I have no doubt that the Government would come forward with a proposal to amend, and thereby extend, the legislation, should that seem appropriate. No doubt Parliament would take a view in the light of the circumstances obtaining at the time. Random search powers are exceptional and so it seemed proper to define the circumstances and to go no further than what experience has shown to be necessary.
§ Lord Williams of Mostyn
I am grateful, as always, to the noble and learned Lord for the way in which he has responded and, I hope, reciprocated our approach. I am especially obliged to him for his indication and undertaking to reconsider subsection (6). That is particularly generous because that did not form a substantive part of my amendment, and I am bound to confess, although he has not cautioned me, that it occurred to me fairly late on that one was creating an absolute offence where one did not really want an absolute offence.
I should like to return briefly to the acts of terrorism described in subsection (2) (b), as affirmed by the noble Lord, Lord Monson. It seems to me we have had no basis—I realise the delicacy of these matters—of experience in fact to justify an extension to Russian, Kurdish, or any other form of terrorism, as opposed to animal rights terrorism or internal domestic terrorism for political purposes. That remains of deep concern. The noble and learned Lord said that the matter was an operational one. Of course it is. It is an operational decision, but it should not allow what are, in some ways, 1207 siege powers for 28 days on the basis of a conclusion reached by a police officer in an area which could be the whole of the Metropolitan Police area or, in the case of a force outside London—I avoid the word "provincial", since it offends me —for instance, Dyfed Powys, which has an enormous geographical area and which could be the subject of one of these orders.
I take the point about the involvement of the judiciary, but I am sufficiently old fashioned to believe that the judges are the safeguard of our liberties; they are fully involved at the moment, as should be well known, in questions of terrorism because document production orders have to be made on the authority of a judge with seniority no lower than that of a circuit judge.
Because the noble and learned Lord was so careful in dealing with the questions that I raised, perhaps I may just indicate to him that the only matter with which he did not deal was the admissibility of evidence. I realise that I raised a number of distinct questions, and I should be grateful if he would indicate that he will consider it, without binding the Government in any way, or doing anything other than say that he will at least consider my point on admissibility.
§ Lord Rodger of Earlsferry
It would be ungenerous not to say that I will consider it. On the other hand, I have to say that it does not seem to the Government that there is any reason why—assuming that one has a disciplined police force, in which case one would expect that, if these powers were misused, disciplinary sanctions would be taken against the officers involved —this sanction of rendering inadmissible evidence which would otherwise be totally admissible, and therefore good against a person, should be accepted. After all, if, in the course of one of these operations, one found a large quantity of drugs, it seems odd that that evidence should not be made available for a prosecution on drugs. If, of course, the powers were misused—in order to find evidence of drugs in some way, supposing that that could be done—then that would be a matter for discipline and the question of the admissibility of that evidence would be a matter for the courts.
As the noble Lord knows, the general principle is that admissibility of evidence is a matter for the courts, rather than starting from a rule which makes it inadmissible. I do not see any reason why that sanction should be written into the Act. If the powers are properly used but in the course of the exercise of those powers evidence of some other crime rather than the act of terrorism comes to light, then that evidence should be available to the court.
§ Lord Williams of Mostyn
I am grateful to the noble and learned Lord the Lord Advocate. But, with great respect to him, it does not solve the problem. A disciplinary sanction against a police officer is valueless. These powers are draconian—there are no two ways about it; all who have spoken agree. The question is whether they are necessary in certain circumstances. They may be, but one needs some sanction with regard to admissibility to be carefully considered.
1208 The situation is not without precedent, of course. Take the Criminal Justice Act and the powers given to the Serious Fraud Office under the authority of the Director of Public Prosecutions: the statute specifically rules inadmissible in criminal proceedings the material provided in a Section 2 interview. It is therefore not a beast suddenly sprung fully formed from my fertile imaginings. It is based on a precedent: which I believe was introduced by the present Government.
Be that as it may, I am obliged for the constructive approach from the Lord Advocate and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 142ZB to 142AD not moved.)
Clause 77 [Offences relating to terrorism]:
Lord Williams of Mostyn moved Amendment No. 142AE:
Page 62, line 29, leave out from ("possession") to ("the") in line 31 and insert ("with the intention of it being used for").
The noble Lord said: Amendment No. 142AE relates to Clause 77 in its present form, which again needs improvement. It is not the principle to which one objects, but the precise wording. If one looks at new Section 16A, as the Prevention of Terrorism (Temporary Provisions) Act 1989 would incorporate, one sees the rubric at the side—and this is not without significance—
Possession of articles intended for terrorist purposes".
Intention, therefore is in the side rubric. Unfortunately, in the substance of the clause, one finds that a person is guilty of an offence,
if he has any article in his possession in circumstances giving rise to a reasonable suspicion that the article is in his possession for a purpose connected with the commission, preparation or instigation of acts of terrorism".
The rubric therefore is not reflected in the substance of the intended offence. Amendment No. 142AE proposes that one should substitute,
with the intention of it being used for",
for the words,
for a purpose connected with".
§ That is no derogation from the power of the section, but it is an improvement in terms of the structure of a criminal act. As regards subsection (2) (b), I have made my observation and I take it no further.
However, one looks with some alarm at the way in which the present clause is structured. A person is guilty of an offence if he possesses an article or articles in circumstances of reasonable suspicion. Therefore, reasonable suspicion will of itself constitute the basis of a criminal activity which, one finds in subsection (5), has a maximum penalty on indictment of 10 years imprisonment. If we condemn our citizens to the possibility of 10 years imprisonment on the, basis of reasonable suspicion, I repeat that we are in serious danger of giving terrorism a victory that it would not otherwise achieve. That point is affirmed in particular in new Section 16A(3), which states:
It is a defence for a person charged with an offence… to prove that at the time of the alleged offence the article in question was not in his possession for such a purpose as is mentioned in subsection (1) above".
§ The casting and the structure of this clause is out of kilter with what can be accepted. I simply ask the noble 1209 and learned Lord the Lord Advocate to think again as to whether there is not at least some validity in my respectful proposal that at present this measure is far too harsh and draconian and will bring the law—I use the words carefully—into disrepute rather than into public support.
I make similar observations in respect of new Section 16B to the 1989 Act. The proposal to which my amendment gives flesh is that that section should not read:
No person shall, without lawful authority or reasonable excuse (the proof of which lies on him)… collect or record any information… or have in his possession any record or document".
Both of those are qualified as set out in the Bill. Instead, one should have in new Section 16B the words:
No person shall, with the purpose of furthering the commission, preparation or instigation of acts of terrorism to which this section applies",
§ and one continues as set out.
Again, one has the vice which, I suggest with great respect, will bring us into serious conflict with the European Convention on Human Rights. One has a crime capable of being proved simply on the basis of collecting or recording any information or possessing any record or document containing any information,
which is of such a nature as is likely to be useful to terrorists in planning or carrying out any act of terrorism to which this section applies".
§ One does not want to take extreme examples unnecessarily, but at the lowest a simple map or a simple list of addresses and telephone numbers would fall into this category.
§ The real danger will be that persons who have information recorded or collected or possessed by them will be charged and harassed unnecessarily. Journalists carrying out their proper function in a society as obsessed with secrecy for no sensible purpose as ours are liable to be in serious difficulties. Any investigative journalist, any investigative television programme and the compilers of it, will be in serious difficulty if new Section 16B stands as at present. One simply cannot fall back on the basis that the burden of proof—in other words, the burden of disproof of criminal activity— must lie on a journalist, an ordinary citizen or someone carrying out investigative work.
§ Those are extremely serious matters. I repeat, without excuse or sorrow, that the noble and learned Lord the Lord Advocate might usefully ponder whether this new section ought not properly to be recast to meet the mischief that it is intended to meet. I say that with great respect and regard for him.
§ New Section 16B is an extraordinary basis for criminal liability, in particular as it carries a maximum of 10 years imprisonment. The history of this country in the past 25 years, in its approach to journalism and free investigation by private individuals or by employed persons in the media, has not been one of such glory that it gives me any confidence that the section is properly drafted. I beg to move.
§ 11.45 p.m.
§ Lord Hylton
It seems to me that we have been over some of this ground on previous occasions in dealing with emergency legislation. When we come to 1210 "articles", I have in mind such items as torches, insulating tape, alarm clocks, screwdrivers and other tools and even, perhaps, gloves. Those items could, in certain circumstances, be used for terrorist purposes, but they are also used extensively for perfectly normal, legal purposes. Therefore, under new Section 16A(3), it may be extremely difficult for the ordinary citizen going about his ordinary business to prove that he had those items innocently. I hope that the Government will give the matter very serious thought, and I am glad that the noble Lord, Lord Williams of Mostyn, has raised the issue.
§ Lord Rodger of Earlsferry
Of course, I have listened with care to what has been said. These offences are replicating, in effect, offences which have been present in the legislation in Northern Ireland and which have been found to be useful and serviceable there. I accept that they are, in some ways, wide offences. It is for that reason that provision is made in paragraph 43 of Schedule 10 for the prosecution of those offences to require the consent of the Director of Public Prosecutions. Therefore, it is recognised that that is one of a fairly narrow group of offences and that safeguard has been built in.
I take the point about the apparent inconsistency between the side-note and the text of the section. But, of course, we use the text of the section. That makes it an offence if the person has any article in his possession in circumstances giving rise to a reasonable suspicion that it is in his possession for a purpose connected with the commission of an offence of terrorism.
The noble Lord, Lord Williams, wishes to substitute the test of intention. I accept that in some cases it would be possible for the prosecution to expect to meet that test, as formulated by the noble Lord. But equally, there would be cases where it would not be possible to meet that test; for example, where a suspicion arises that an article was in the person's possession in order to commit another crime of violence. In that situation, it may be very difficult, at the end of the day, for the Crown to go all the way to proving the intent which the noble Lord seeks.
That is why it is accepted that this provision does not go that far but applies a lesser test, namely, that a person has an article in his possession in circumstances that give rise to a reasonable suspicion. But it is of course made clear—in some ways only for the avoidance of doubt, because it might be thought to be inherent in the provision itself anyway—that it is a defence for the person to show that at the time of the alleged offence the article was not in his possession for such a purpose. If he proves that and the jury and the judge are satisfied, then he would not be guilty of this particular offence. I accept that it is an unusual offence. But, again, against the background of the kind of matter with which we are dealing, it seems to the Government that it is an appropriate offence to have in our law.
Section 16B does apply. I accept that the noble Lord, Lord Williams, gave examples which he said are in some ways trivial. But they are not. They are the kind of examples that one could have in mind where one found a list of addresses, of car registration numbers, of 1211 movements of cars or whatever it might be that might very well be the kind of record or collection of information which would indeed be of such a nature as to be likely to be useful to terrorists in planning an attack.
That raises the question: supposing someone has such a list; he may have it for reasons of journalism, and so on. But the section says:No person shall, without lawful authority or reasonable excuse".If he is able to show that he had the items in his possession and is gathering the information for the purposes of journalism and so on, then no offence would be committed.
Where that kind of defence is not available, it seems to the Government that that is a significant act, and one which should therefore in these exceptional circumstances constitute an offence. For those reasons I cannot accept the amendments that have been proposed.
§ Lord Monson
The more I look at this amendment, the more reasonable it seems. Admittedly, I first looked at it only five minutes ago. Everybody knows that no sensible person carries a suitcase belonging to somebody else on a flight bound for Tel Aviv, or indeed any other destination, unless he knows precisely what is in that suitcase. On the other hand, it is not considered in any way reckless or rash to carry a suitcase for somebody in your car going between London and Bristol or Manchester and Birmingham without inquiring closely as to what is in it. However, under the clause as it stands he could be carrying some such innocuous item as was described by my noble friend Lord Hylton and yet be caught by the clause and be subject to a lengthy term of imprisonment. That seems to me quite wrong.
§ Lord Harris of Greenwich
I wonder whether the noble and learned Lord can help me on one matter. He referred to the Northern Ireland experience so far as these particular provisions are concerned. Can he tell me now—and if not now, will he write to me—how many cases have there been in Northern Ireland since these provisions were enacted?
§ Lord Rodger of Earlsferry
I shall have to write to the noble Lord on that matter. I do not have anything further to add to what I have said in relation to what the noble Lord, Lord Monson, said. We are satisfied that the provisions have within them the kind of safeguards that would make it not really likely that somebody would be wrongly convicted in the kind of circumstances which the noble Lord envisaged.
§ Lord Williams of Mostyn
I am most grateful for the support that I received from the noble Lords, Lord Hylton and Lord Monson. The proposed Part IVA of the 1989 Act, as one sees from the Bill that we are presently considering, is headed: "Offences against public security". Public security depends on public confidence, and it depends irresistibly on the protection of the citizen from arbitrary arrest or arbitrary charge so far as is humanly possible.
If the Bill in its present form becomes an Act, public security will in fact be diminished. Nothing that the noble and learned Lord the Lord Advocate said has 1212 raised any doubt in my mind as to the validity of the criticisms that we have made. New Section 16A states that:A person is guilty of an offencepunishable by 10 years' imprisonment—and that is a greater sentence than most people get for manslaughter and almost as much as most people serve for murder—if he has any article in his possession in circumstances giving rise to a reasonable suspicion that the article is in his possession for a purpose connected with the commission, preparation or instigation of acts of terrorism".In other words, to take up the useful example given by the noble Lord, Lord Monson, the friend who entrusted the suitcase might have the unlawful intention or purpose; nevertheless, the carrier would be liable certainly to arrest, undoubtedly to charge and possibly to conviction.
Our simple amendment—I ask the noble and learned Lord to reflect further on it—should safeguard every legitimate interest; the state, the police, the prosecution and, above all, public security in the way that I described. One has to bear in mind, particularly in view of our recent discussions on the right of silence, that the onus is specifically laid upon the person charged. The burden is put on him to prove that at the time of the alleged offence the article in question was not in his possession for such a purpose. But whose purpose is it? My amendment takes away that ambiguity, which is exceptionally dangerous, not from the point of view of the prosecution but from the point of view of the defendant.
The noble and learned Lord the Lord Advocate rightly said that Schedule 10 requires the approval of the Director of Public Prosecutions before a prosecution can be launched. From my own experience at the Bar, perhaps I may add to the catalogue cited by the noble Lord, Lord Hylton. I prosecuted a very long series of terrorist cases in South Wales. They required the authority of the Director of Public Prosecutions. Among the items on which we relied as being deeply suspicious were clothes pegs because they can be used for making crude detonating devices, as everyone knows. One has to be exceptionally careful in going along that route. The authority of the Director of Public Prosecutions is a protection. But far better is a protection in the structure and the wording of the Act itself.
It troubles me deeply when the noble and learned Lord the Lord Advocate refers to the experience of Northern Ireland. Northern Ireland is in an extraordinaiy stage and state not experienced on the mainland. The people of Northern Ireland are burdened, because of terrorism, with significant restrictions which may be necessary there. Terrorist offences are not tried by jurors; they would be in this country. The judges in the Diplock courts have to give reasoned judgments for their conclusions. That does not obtain with a jury. One does not want to go to the state of affairs in Northern Ireland, with trials without jurors, unless one is driven to it. Nothing that the noble and learned Lord indicates has caused us to be driven to that.
New Sections 16A and 16B mean that possession and suspicion will be enough to convict our citizens unless they can prove their innocence. We do not wish to set foot on that journey. It will do public security no good. 1213 I am obliged for the response and in particular the attitude of the noble and learned Lord the Lord Advocate. On that basis, but with a promise to return in the future when we have a little more time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 142AF to 142AH not moved.]
Clause 77 agreed to.
Clause 78 agreed to.
Lady Saltoun of Abernethy moved Amendment No. 142B:
Before Clause 79, insert the following new clause:
("Definition of obscenity
. For section 1 of the Obscene Publications Act 1959, there shall be substituted—
Definition of obscenity.
§ The noble Lady said: The object of this amendment is to give the poor, toothless Obscene Publications Act 1959 some teeth. The government Amendments Nos. 142C and 142D, which I am sorry we are not going to discuss immediately after this debate as I had hoped, deal with pornographic or violent videos but will not touch books, pictures, photographs and plays. It seems a pity to deal with one and not with the rest.
§ The Obscene Publications Act has been in force for nearly 35 years during which time standards have steadily declined. Until 1960 the books and magazines available on, say, a station bookstall would not have been such that most parents would have been distressed at their children buying them; nor would they have contained material of an inflammatory nature likely to affect the behaviour of suggestible individuals. Since 1960 that has ceased to be the case. Now, every corner shop and supermarket sells books which I should certainly be horrified to find my grandchildren buying and which I should not care to read myself. Worse, authors whose books do not contain explicit enough sex scenes are apt to go unpublished. A novelist of my acquaintance was told by his publisher that his sex scenes were not steamy enough and that unless he 1214 pepped them up the book would not sell. And so, gradually, the supply of decent, non-pornographic literature is drying up.
§ During this period child abuse, which we almost never heard of before, has become commonplace if we are to believe the press and the reports of social workers. I see no reason not to do so. Illegitimate births have increased from 51,000 in 1961 to 235,000 in 1991 and the number of divorces has risen from 27,000 in 1961 to 167,000 in 1991. The incidence of rape has increased to the point where women cannot safely go out at night even in the most respectable areas and in some areas not even elderly widows alone in their own homes are safe.
§ If your house is burgled you are advised not to interfere with the burglars and not to try to tackle the thieves because they will probably beat you up. People of both sexes are liable to be mugged in the streets at night. Not long ago someone was attacked at a cash point opposite South Kensington station, a few yards from my flat, in the middle of the day.
§ Exponents of the permissive society like to tell us that there is no scientific proof—they are awfully keen on scientific proof—that there is any connection between the proliferation of violence and pornographic material and the rise in violence and sexual crime. I believe that just as the food we eat affects our physical health, what we read, listen to and watch affects our mental and spiritual health. If our characters and opinions are unformed, as in the case of children, or weak, as in the case of some adults, it is very likely to affect our behaviour. Having no definite code of conduct we model ourselves on the characters in what we read, watch and listen to. That is how children learn how to behave—by copying others, real or fictitious.
§ That is why responsible parents in my youth were very careful what their children read and we were encouraged to read improving books because it was held that what you read would affect your character. After 30 years of the permissive brigade telling us that that was all nonsense and all that mattered was self-expression, a few weeks ago I read in a newspaper that a child psychiatrist had made the revolutionary discovery that our parents had been right all along and that children's behaviour was affected by what they watched and what they read. If what you read and watch does not affect you, why do companies spend thousands of pounds on a few seconds of advertising time on television or radio or a few inches of space in the press? Why do the opponents of smoking want to ban tobacco advertising, as do those noble Lords who propose to move Amendment No. 164D—the noble Lords, Lord McColl of Dulwich, Lord Rea, Lord Walton of Detchant and the noble Baroness, Lady Seear?
§ We have legislation to ban publications calculated to incite racial hatred. If reading matter calculated to incite racial hatred does not incite racial hatred, why do we have that legislation? And, if reading matter calculated to incite racial hatred does incite racial hatred, why does reading matter or whatever is calculated to incite other forms of unacceptable behaviour not incite those forms of behaviour? You cannot have it both ways. The time has come to tighten up the legislation not only on videos, as the Government are doing in their very 1215 welcome amendments—Amendments Nos. 142C and 142D—but on books, pictures, photographs and the theatre too. It is not a great deal of use to do one without the other.
§ Before I sit down, I must take this opportunity—I am sorry that the Chamber is so empty because I would like more people to hear this—to pay tribute to Mrs. Mary Whitehouse, who has recently retired from the chairmanship of the National Viewers and Listeners Association. For many years she has devoted a large part of her time to watching and listening to programmes which I certainly would have given quite a lot not to have to watch, in order to put pressure to clean up their act on those responsible for much of the filth pouring into our living rooms. I can think of few greater acts of self-sacrifice and I wish her a happy retirement watching, if she wishes to watch at all, nothing but Ealing comedies and other happy and light-hearted programmes. I beg to move.
The Earl of Halsbury
I wish to associate myself with everything my noble friend has said. Possibly I would go a little further at Report stage by resurrecting an archaic piece of procedure known as the appointment of a jury of matrons. Pornography is written by men for men and one must assume that a male jury is prejudiced in the first place in favour of pornography. Therefore, a jury of matrons, now a practice that has fallen into desuetude would probably give us a very much more objective decision on whether something was corrupting, depraving, disgusting, nauseating or whatever terms one likes to introduce. I had this idea only at tea-time today and I have not had time to work up what is involved in rescuing an archaic piece of procedure and putting it to work in this day and age. I support my noble friend.
§ Lord McIntosh of Haringey
If it were not for the crowded Benches behind me I would have to say that this is an issue on which my party does not impose a whip. Indeed, since my only colleague here tonight is the Chief Whip, I shall say it to him. Anything I say from this Dispatch Box I say for myself and not for any of my colleagues. Indeed I am sure that if my noble friend Lord Stallard were here he would violently disagree with what I am about to say.
I was one of the three who opposed the video recordings Bill through all its stages in 1984, with my noble friends Lord Houghton of Sowerby and Lord Jenkins of Putney. I have not in any way changed my view that it is utterly wrong in principle for the law to seek to determine what should be on private bookshelves or anywhere else in a person's own home, whether it is pornographic or not. I disagreed with it when it applied to videos and I disagree with it as it applies to videos in the amendments which we shall now be dealing with on Tuesday. I profoundly disagree with it when it is proposed in the amendment of the noble Lady, Lady Saltoun, and her colleagues.
It is no defence to say that the amendment itself is a farrago. It just does not hold water in any sense. The amendment states that the material is obscene if it,contains any material of a sexual nature which is grossly indecent or lewd or degrading".1216 Let us forget the other matters. But "sexual nature which is lewd" would rule out the Kama Sutra, the Mahabharata, the plays of Aristophanes and of Plautus, the works of Chaucer including, for example, the Miller's Tale and the Wife of Bath's Tale and I have not yet got to the year 1500. The vast bulk of literature in all languages would be declared obscene. The great virtue of the Obscene Publications Act 1959 which, I remind the Committee, was made necessary because juries would not convict under the existing legislation, was that it forced the law to take account of the artistic content of books or works of art, whatever they may be:, and to take those matters as a whole rather than the incidents they depicted.
If we pass this legislation we would not only be going backwards in a very real sense in terms of censorship but we would be inviting a conflict between the law and juries. We would be inviting the law into our own homes where, I suggest to the Committee, it has no place whatever. I hope that the Government will resist this amendment.
§ Lord Monson
My noble friend has presented her case extremely well, but as a libertarian my sentiments are closer to those of the noble Lord, Lord McIntosh. However, I refer the Committee's attention to the subsection referring to,any material concerning any controlled drug".That would seem to imply that any novel set in the 1960s or perhaps later, which depicts the hero or heroine —or anybody else who is to be admired—smoking what used to be known as "a joint" and which, for all I know, still is, would be deemed to be obscene. I suggest that that goes a little too far and shows the kind of difficulties one is up against.
§ Lord Rodger of Earlsferry
I shall not go in detail into the drafting of the amendment, but it appears to the Government to be unacceptable. It contains elements which seem to be circuitous and so on. Therefore, without going into detail, it would not be acceptable. Having said that, the Government are not in any way particularly wedded to the formulation of Section 1(1) of the Obscene Publications Act 1959,
Although people have from time to time over the years come forward with various formulations—and earlier on this year others were put forward— nonetheless the Government have not yet seen any formulation which seems to better that in the first section of the Act. For that reason we do not believe that the proposed amendment would be an improvement of what is in the Act. There is obviously a balance in the 1959 Act. It seems to the Government that, in so far as it can be, the law has to be in keeping with the views of ordinary men and women. That is how it is expressed by juries. It would be wrong to suggest that the 1959 Act does not work. In any year, there are quite a large number of convictions and quite a lot of material is seized under the provisions of Section 3 of the 1959 Act. So the legislation works.
The noble Lady, Lady Saltoun, has drawn attention to what she sees as a decline in standards since 1960. I am sure that many people would agree with that. However, it is difficult to accept that all that has been caused by 1217 this piece of legislation. Having said that, however, it would be wrong to think that the Act, as framed in 1959, does not envisage that material may have an effect on people, because the test is that the effect of such material is that it tends to deprave and corrupt persons. Provisions relating to the effect on persons are therefore already contained in legislation. The generality of that -the words are general - seems to the Government to have advantages over, for example, the list formulation that the noble Lady envisages in her amendment.
The position therefore is that the Government believe that the 1959 Act, as it stands, contains a formulation which has not so far been bettered, and we do not believe that this amendment would improve upon it.
§ Lady Saltoun of Abernethy
I have listened to the various noble Lords who have spoken and I have to say that the only one with whom I agreed was my noble friend Lord Halsbury. I cannot share the noble and learned Lord's starry-eyed view of the effectiveness of Section 1 of the Obscene Publications Act 1959. I am sorry that the Government do not seem inclined to 1218 consider ways and means by which that Act could be improved and made more effective. I still believe that it is not nearly as effective as the noble and learned Lord believes. I am disappointed that, in view of the fact that the Government are prepared to strengthen the legislation against pornographic and obscene videos, they are not prepared to do a little bit more about other forms of pornography.
However, it is very late and I do not propose to detain the Committee any further at the moment. Therefore, while reserving the right to come back with possibly a different amendment at Report stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 79 to 82 agreed to.
§ Lord Annaly
I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at twenty minutes after midnight.