§ (".—(1) Section 222 of the Local Government Act 1972 shall he amended as follows
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(2) After subsection (1) there shall be inserted—
(1A) On the application of a local authority under this section in their own name the High Court or a county court may issue an injunction restraining any person from—
and may attach such ancillary provisions to ensure compliance with an injunction as the court thinks fit including provisions restraining any person from entering qualifying premises or the locality of qualifying premises.(1B) The following are qualifying premises for the purposes of this section
§ The noble Baroness said: This amendment seeks to amend Section 222 of the Local Government Act. Where a person living on a council estate has been verbally abused or harassed, has had threats made against them, their house attacked, rubbish thrown into their garden and so on, the only person who has suffered and can take private law action is the victim, the individual resident, not the local authority. All that the local authority can do is act as landlord and seek possession against one of its own tenants for breaching its conditions of tenancy.
§ If the person responsible for the violence and harassment is not a council tenant but, let us say, an owner-occupier, possibly a right-to-buy former tenant, a visitor, a private rented sector tenant, or a housing association tenant, in all such situations the local 303 authority cannot use private law but only public law remedies, which in this field are in short supply.
§ When this issue was raised in the other place in terms of debates about community safety orders, public protection orders and the like, one argument used by Ministers was that local authorities already have sufficient powers under Section 222 of the Local Government Act to deal with the situation.
§ Work that we have done shows that that is simply not true. If Section 222 was sufficient, local authorities would already be using it successfully. They do not, and cannot, because it is not sufficient.
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Section 222 of the Local Government Act 1972 states that,
Where a local authority consider it expedient for the promotion or protection of the interests of the inhabitants of their area … they may prosecute or defend or appear in any legal proceedings and, in the case of civil proceedings, may institute them in their own name".
§ Such measures have been used by local authorities to prevent, for example, Sunday trading or breaches of planning law—in other words, where commercial companies were willing to flout the law repeatedly because they were willing to pay the fine at the end of the day.
§ However, when local authorities have tried to use Section 222 for serious anti-social behaviour, as the Minister in another place suggested they could, those local authorities which to my knowledge on several occasions have used it have had to withdraw or face surcharge because courts have ruled that there was not a wide enough public interest at stake.
§ I quote the notorious Finnie brothers case. Coventry City Council, in March 1995, tried to use Section 222 against the Finnie brothers, aged 26 and 29, to exclude them from a small section of one Coventry housing estate. Neither of the brothers lived there. They were not tenants, but they had friends and relatives on the estate. Together, they ruled the estate. They were held responsible for burglary, intimidation, harassment, violence and fire-bombing. Law-abiding tenants left the area, and the local authority found it difficult to get new tenants to live there. School rolls actually fell—people were voting with their feet. People were terrified of giving evidence. Councillors, MPs, the police and community representatives all gave sworn evidence.
§ The city council obtained a temporary injunction against the two brothers, who lived outside the estate but came in to produce that litany of offences. However, the city council's counsel, Sir Louis Blom-Cooper, advised it to withdraw the action as there was a risk of failure and therefore the court costs that would result would render it liable to surcharge. It had to follow counsel's opinion and the case fell. Some local authorities have been able to get Section 222 injunctions in cases of domestic violence; others have failed because judges have deemed that Section 222 did not cover it.
§ What is to be done? One could seek a brand new clause on the basis of public protection. I am very 304 reluctant to go down that route. This area is difficult. It is a mixture of hybrid civil and criminal law. There is also an issue as to how robust the evidence would need to be on which a local authority could seek an injunction with powers of arrest, as the noble Baroness, Lady Hamwee, mentioned.
§ However, there may be a simpler route. I hope with all my heart that the Minister will feel able to support it. If this amendment is not appropriately drafted perhaps he will be able to come back with his own amendment on Report. This may cut through a lot of our problems. It could be made clear on the face of the Bill and without doubt that Section 222 of the Local Government Act 1972 may be used, just as the Minister said in the other place, by a local authority as the basis for an injunction to exclude anyone, not just its own tenants, from coming into a defined area of its estates if the judge agrees that serious anti-social behaviour has occurred or is likely to occur.
§ The Minister in another place said that Section 222 could bear that interpretation. I have to say that several learned counsel have disagreed with him and local authority cases have fallen as a result because the councillors feared surcharge. The right way to do what the Minister says can be done, but QCs say cannot, is to make it clear on the face of the Bill that Section 222 can do the job that the Minister wants.
§ I very much hope that the Minister will feel able to support the principle of the amendment and, if this is not the appropriate amendment, will come back with a broadly similar one on Report. I beg to move.
§ Earl RussellI listened with very great interest to that speech. I am pleased to say that here the noble Baroness has successfully matched the remedy to the problem. The evidence in that Coventry case and counsel's opinion from Sir Louis Blom-Cooper I found extremely compelling.
It is possible that the amendment says only that the law is what it is already. But, as the amendment puts it, for the avoidance of doubt I think it would be a very good thing to have in the Bill, and I am happy to support the amendment.
Lord LucasThe short answer to the noble Baroness's amendment is yes—yes, we agree with what she says—but the long answer is rather more complicated than that.
First, let me issue a caveat. The local authority's power under Section 222 is very flexible. Any attempt to codify it in the way proposed in this amendment for particular uses would, we fear, reduce that flexibility. I have some counter examples to offer to the noble Baroness of cases where it has been used effectively. The London Borough of Hackney, for example, issued injunctions under Section 222 to prevent a gang of youths from outside the estate—in this case, the Kingsmead Estate—from coming on to it and causing untold serious problems by anti-social behaviour. They included attacking local authority officials and burgling and destroying council property. 305 Injunctions provided the solutions and we believe that one of the youths was subsequently jailed. I can also offer the case of Stoke City Council v. B&Q, where the court considered that it was in everyone's interest, particularly in urban areas, that a local authority should do what it could do to establish and maintain an ambience of law-abiding community and that what should be done for that purpose was for the local authority to decide.
Having listened to the noble Baroness, it is quite clear that our positive views of what can be achieved under Section 222 are not shared by some serious members of the legal community and have not been followed by a number of local authorities which have serious problems to deal with. That is a situation that concerns us greatly. If the noble Baroness will agree to work with my officials and provide us with the evidence that she has, we shall put all the effort we can into providing a suitable remedy for whatever problem may exist, before the Bill leaves this Chamber.
§ Baroness Hollis of HeighamI am very grateful indeed not only for the support of the noble Earl, Lord Russell, but for the Minister's response. I am delighted to take up his offer and very much hope that we can strengthen the Bill in that way. With the leave of the Committee, I shall withdraw the amendment, in the expectation that we shall revisit it.
§ Amendment, by leave, withdrawn.
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Baroness Hamwee moved Amendment No. 263ZAGE:
After Clause 140, insert the following new clause—