HL Deb 03 November 2003 vol 654 cc538-619

3.50 p.m.

The Minister of State, Home Office (Baroness Scotland of Asthal)

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

Clause 32 [Powers under section 30: supplemental]:

Baroness Walmsley moved Amendment No. 57:

Page 28, line 13, after "person" insert ". unless they are under the age of 18,

The noble Baroness said: My Lords, in moving Amendment No. 57, I shall speak also to Amendments Nos. 58, 59 and 60 standing in my name.

The arguments I put forward to the House last week on the penalties associated with the offences in Part 1 of the Bill apply to this group of amendments. I shall not weary the House with those arguments in detail, but instead I shall cut to the heart of the matter.

The offences we are considering are very minor ones. Indeed, many of us think that they should not be offences. They do not involve violence, theft or sexual violation. They simply involve refusing to move away from a place or returning to a place within 24 hours. The so-called offender may have had nothing to do with the behaviour that caused the place to be designated as one where a police officer could move people on. The person may be there for perfectly innocent and lawful purposes. Yet the Government plan to give the courts the right to incarcerate such a person for up to three months.

The Minister reassured us in Committee that three months is a maximum sentence, and we all understand that. However, I do not believe that a custodial sentence is appropriate for such a minor misdemeanour in any circumstances, and particularly not for a young person under the age of 18. Therefore, I tabled this group of amendments to make a community sentence the only sentence for those aged under 18 and for such a community sentence to be included in the list of penalties for adults for the sake of clarity.

We all understand that the sentences listed in the Bill are maximum ones, but it sends out a message to sentencers when community sentences are not even mentioned. We all know that sensible and rigorous community sentences can be a great deal more effective in preventing re-offending than a custodial sentence, particularly one as short as three months, in which the hard-pressed Prison Service has no chance of doing anything meaningful with the inmate. The time in custody indeed will probably do more harm than good by alienating the so-called offender from society, separating him or her from family and putting him or her in contact with many hardened criminals from whom he is bound to learn bad lessons.

We welcome the Government's focus in their Green Paper Every Child Matters on community sentences and restorative justice. In the light of that consultation paper, it seems inconsistent to persist in refusing to consider community sentences only for under 18s for such minor offences. I beg the Government, even at this late stage in the Bill, to think again about these measures, which have already generated such anger and despair among the young people in this country. I beg to move.

Lord Dixon-Smith

My Lords, my Amendments Nos. 61 and 63 are in this group of amendments—slightly strangely, but I think there is a good diplomatic reason for it. I support the principle enunciated by the noble Baroness, Lady Walmsley, that a community sentence would be better for those under the age of 18 who have committed minor offences. However, the Minister has consistently put the argument that the Bill sets out maxima, and, as the noble Baroness, herself said, there is a question of psychology involved in this. Anyway, the principle she is enunciating is correct, but it is of course also possible under the Bill.

I tabled Amendments Nos. 61 and 63 because it is necessary to get county councils involved in the process of anti-social behaviour orders. That was not being done as the Bill originally stood. I tabled these amendments as I was not sure whether the Government intended to table Amendments Nos. 64 and 65. I thank the Minister for those amendments. They will spare me some trouble in a few moments. I am most grateful.

Lord Avebury

My Lords, perhaps I may add a word on my noble friend's amendments. I do not know whether the noble Baroness is aware, but on Friday the number of people held in custody in the prisons of England and Wales reached what I believe is the all-time record of 74,149 people. I suggest that Parliament should think very carefully about offences which lead to imprisonment, particularly, as my noble friend has said, short sentences for non-violent offences. I should like to remind the noble Baroness of the Statement which was issued last November jointly by the Home Secretary, the Lord Chancellor and the Attorney-General. It states: Short custodial sentences without post-release supervision, as opposed to community sentences for lesser offences, provide little opportunity for rehabilitation or to prevent re-offending and can make things worse. The cycle of of fending behaviour is more likely to be perpetuated if offenders lose their job or their home, and their family ties are broken. In addition, the pressure of dealing with increasing numbers of short-term prisoners can also disrupt the education, training and employment programmes that are proven to be effective for rehabilitating more serious, long-term offenders". I do not know whether the noble Baroness has had the opportunity to speak to prison governors who face this problem. They tell me that short-term prisoners are a disruptive influence in an environment where many people are approaching the end of their sentences and are trying their best to conform with the system and to prepare themselves for release. Additional burdens are placed on the staff and on the inmates themselves by the influx of these short-term prisoners who are interested only in getting out of prison at the end of the short period given to them by the courts. So I hope that the noble Baroness will again endorse the observations made by her colleagues and will delete these sentences of imprisonment provided by the clause.

I do not think that it is a satisfactory answer to say, "This is a maximum only", because if the courts are given a maximum, the inference is that one would like them to use it on some occasions, however rare.

Baroness Scotland of Asthal

My Lords, I say immediately to the noble Lord, Lord Avebury, that I endorse what my noble and learned friends said in relation to the generality of the comments to which he alluded. I do not seek to resile from any of those statements; nor, indeed, do the Government. That does not mean that in dealing with offences of this nature one should not set the outer parameter. I also hear what the noble Lord says on the fact that the courts may be tempted to use it. If your Lordships were to look at how sentencing has worked to date, it is very rare indeed for the maxima ever to be used.

On Amendments Nos. 57 to 60,I hope I can reassure noble Lords in relation to juveniles. I clarify that the penalties set out in Clause 31(2) operate slightly differently between juveniles and adults. We say that there is no need for the Bill to spell out all the sentencing options. The options available to a court are set out in the Powers of Criminal Courts (Sentencing) Act 2000, as amended. I have made this point on other occasions, certainly in relation to other Bills, but it may be worth reciting it for the purpose of this debate today.

The options range, in hierarchical order, from imprisonment, community service orders and fines through to conditional and absolute discharges. Legislation creating a new offence spells out the maximum period of imprisonment, as the noble Baroness and the noble Lord both acknowledged. So we are discussing the maximum period of imprisonment or maximum fine level that can be imposed; a sentencing court can always impose a lesser penalty.

I should like noble Lords to recognise that we are trying to set out a new approach: a new menu of opportunities for the courts of which they will be able to take advantage. That is reflected in the structure of the Bill. The court is under no obligation to hand out the maximum sentences and may choose any lesser sentence depending on the circumstances of the case, including the age of the defendant.

Detention and training orders, which are the juvenile equivalent of imprisonment, can be made for a minimum of four months. So there can be no training order for less than four months. That means that where the maximum penalty of imprisonment that can be imposed is less than four months, as in this case, a detention and training order cannot be made. The court will be left with the options of a community sentence, a fine, a conditional discharge or an absolute discharge. So I hope that that reassures noble Lords that the scheme, which is clearly set out, can differentiate in the way that noble Lords would most like.

Amendment No. 61, standing in the name of the noble Lord, Lord Dixon-Smith, requires the police to consult both county and district councils before granting an authorisation. The Government recognise that county councils have an important role to play in tackling anti-social behaviour—many play an active role in local crime and disorder reduction partnerships.

We considered carefully the points made by the noble Lord in Committee. However, we thought that to add another step in the authorisation process would be overly bureaucratic. We have listened and we have reflected that listening in the amendments to which the noble Lord referred—Amendments Nos. 62, 64 and 65. The noble Lord's amendment would enable local authorities to apply for anti-social behaviour orders. We have responded and think that we have achieved his aim.

On both counts, I hope that the noble Lord and the noble Baroness will be content, because on this occasion, I may have managed to satisfy them both. 1 hope so.

4 p.m.

Baroness Walmsley

My Lords, I am most grateful to the noble Baroness for her response and for the supportive remarks of the noble Lord, Lord Dixon-Smith, and my noble friend Lord Avebury. I ask the Minister for clarification. Was she saying that because a detention and training order cannot be made for less than four months, a three-month custodial sentence could never be applied to an under-18?

Baroness Scotland of Asthal

My Lords, that is right. One considers the maximum under the sentencing regime. If it is three months' imprisonment, one can apply that to an adult, but the equivalent for a juvenile is a training order, which can be only for four months or more. So in the instance cited, a juvenile under the age of 18 cannot be sentenced to a training order, because that would be outwith what the court is allowed to do; so there must be a community order or fine. That is why I hope to have given the noble Baroness a little pleasure.

Baroness Walmsley

My Lords, I am most grateful to the Minister for that clarification; it gives me some comfort. However, I must observe that the Bill has an obscure way of saying that, although the way in which the Minister put it was clear and not at all obscure.

It is important that the courts should be encouraged to use community sentences, because they are clearly not doing so anywhere near as much as even the Government would want them to—certainly not as much as many people working with young people would like them to be used—instead of custodial sentences. However, in view of what the Minister said, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 58 to 60 not moved.]

Clause 36 [Interpretation]:

[Amendment No. 61 not moved.]

Clause 37 [Anti-social behaviour orders]

Baroness Scotland of Asthal moved Amendment No. 62: Page 30, line 15, at end insert— (za) after paragraph (a) there is inserted— (aa) in relation to England, a county council;";

The noble Baroness said: My Lords, in Committee, the noble Lord, Lord Dixon-Smith, highlighted the fact that at present, county councils cannot apply for anti-social behaviour orders. The power is currently available to the police, district councils and registered social landlords. That power has been requested by the County Councils Network and has again been proposed by the noble Lord in Amendment No. 63.

We saw the good sense of that. We have recognised that county councils have responsibilities that encompass tackling anti-social behaviour. Government Amendments Nos. 52, 64 and 65 therefore extend to county councils the power to apply for anti-social behaviour orders on the same basis as that for registered social landlords, the British Transport Police and, under the Bill, housing action trusts. I therefore ask the House to accept the government amendments. I beg to move.

Lord Dixon-Smith

My Lords, it simply remains for me once again to thank the noble Baroness for having tabled the government amendments. Once again, they are welcome.

On Question, amendment agreed to.

[Amendment No. 63 not moved.]

Baroness Scotland of Asthal moved Amendments Nos. 64 and 65: Page 30, line 20, after "acts)" insert "—

  1. (a) after paragraph (a) there is inserted—
  2. (b) "

Page 31, line 10, at end insert—

(6A) In section IE (consultation requirements) after subsection (4) there is inserted—

(5) Subsection (4)(a) does not apply if the relevant authority is a county council for a county in which there are no districts."

On Question, amendments agreed to.

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

The Earl of Listowel moved Amendment No. 66: Page 32, leave out lines 7 to 16.

The noble Earl said: My Lords, the effect of the amendment is to strike out the provisions of Clause 38 relating to court reporting restrictions; in the youth court. My intention is to retain the status quo: that automatic reporting restrictions are imposed in the youth court that can be lifted only if it is in the public interest to do so.

The principal intention behind my amendment is to ask the Minister for a firm undertaking that the impact on children and families who are identified to the press is monitored carefully. In Committee, the Minister was kind enough to say that she would find all the research that she could about that to assuage my concerns. Regrettably, the only research is that which she then cited, which considers solely the effectiveness of anti-social behaviour orders, not their impact on children and families.

Indeed, that research called for further research. It stated: much of the information about the impact of anti-social behaviour orders remains anecdotal … in many areas partnerships were unable to say accurately what the outcome of their ASBOs had been … information is essential to decisions about whether an order is appropriate for similar kinds of behaviour in future, to establishing which conditions work best and to answer general questions about effectiveness".

It is that research for which I am calling.

The same report also expressed concern at what happens when national newspapers pick up the information passed to local newspapers, such as a "shop a yob" campaign by one local newspaper adopted in the past month by the Sun. The photographs of several young people aged 12 years or above were pictured in the Sun with their names and details of their behaviour. The majority of those young people had received anti-social behaviour orders. In Committee, the noble Baroness agreed that, sadly, many young people about whose behaviour we arc concerned lack adequate nurture. I wonder whether the Sun is the right place to make up that deficit.

In child abuse cases, principal care takers often style the child whom they are looking after as bad, evil or a demon. As noble Lords know, Victoria Climbié 's care taker took her to a local evangelical church to exorcise the demon that she believed to be in the child. Noble Lords may be aware of the case in the United States of David Pelzer, who had a very sad history of abuse. He described in his autobiography how his mother singled him out as the bad boy among his siblings. He became the centre of all her ill intent and the black sheep of the family.

One of several concerns for many is the danger of perpetuating in broader society what is begun in the family. The children are bad at home, they become bad in their neighbourhoods, they develop a pariah status among their peers and adults, and finally they are named and photographed in the local newspaper, which is a certificate of their badness and failure. The adult world inadvertently colludes with what began in the dysfunctional family at the start of the child's life.

Recently, I attended the weekly assembly of a special school, where children were presented with certificates that stated: "I have not hurt another child this week". Abused and neglected children received particular attention from the school for their positive restraint in not hitting other children. The head of another school, with a very prestigious history of that type of work with such children, described the publication in newspapers of the photograph, address and details of children's anti-social acts as a certificate of failure. He was appalled by it.

Another practitioner, the founder of a therapeutic community for abused children, took into her care a 14 year-old boy who had been branded by the press with a nickname that denoted him as a verminous rodent. He had settled into the home and seemed to be making progress when the press arrived on the doorstep and he had to be moved on for the sake of the other children.

On another concern, this morning I spoke to a Cheshire magistrate who is a member of a youth panel. He remembered that, two years ago, a boy was stripped naked and tied to a lamp post in the locality as a warning about his behaviour. The magistrate said that his behaviour would not have warranted any action by a court, but the local estate so objected to it that they did to him what I described.

Recently, in the Observer, one family described their experience of intimidation by local people, who told one boy that if he stepped out of line again he would be six feet under. There is also a danger that by publishing such information one might encourage such vigilantism, which we saw in the case of people concerned about paedophiles.

The Minister may observe, as she did previously, that ASBOs tend to be given to children at the end of a long history of highly anti-social behaviour I regret that the interventions that should exist to protect these children, and the rest of us, are lacking. There has been chronic under-investment in necessary services. In the past 20 years, the youth service has shrunk by 20 per cent. A local Social Exclusion Unit report underlined in particular the availability of child and adolescent mental health services, which is very important. There may be a 12 to 18-month wait before a child can see a clinician.

The key finding of the Government's report on how to improve services for children and families, Every Child Matters, is that the workforce supporting families and children has been neglected over many years. The main effort must be to rebuild that workforce. There are measures to protect such children and to protect us from them, as well as protecting their families. I am afraid that the extreme measures promoted in the Bill are another reflection of our inability to break free from the history of neglect of such vulnerable children and families.

I do not wish to tire your Lordships' House—I have already spoken for eight minutes. I recognise the sincerity of the Government's intentions in this respect. Sometimes some of the acts that we most regret are those carried out in the process towards achieving our highest ideals. Some means of reaching the ends that we all desire are unjustifiable. All that I ask, as I asked ministerial officials several times and I asked in Committee, is for an undertaking to monitor the impact of that highly controversial publicity in the press. I look forward to the Minister's response. I beg to move.

4.15 p.m.

Baroness Linklater of Butterstone

My Lords, I support the noble Earl, Lord Listowel, on this amendment. We return to the subject, which was discussed in Committee, because we continue to feel that this is not the right way to achieve the desired result of reducing anti-social behaviour. It carries with it the risk of far greater and more damaging negative outcomes than positive ones.

I am perfectly clear that, under the Bill, courts will retain the discretion to impose reporting restrictions where an ASBO has been imposed. But I have yet to hear a convincing argument why the current situation of automatic reporting restrictions under Section 49 of the Children and Young Persons Act 1933 should not still apply, with the court using its discretion on when to lift them.

The Minister said in Committee that that was to remove the anomaly of the difference in reporting restrictions between the magistrates' court and the youth court, and so to bring them in line with each other. Yet, in the companion to the Green Paper Every Child Matters, entitled Youth Justice—The Next Steps, the first sentence of the section entitled "Basic Approach" is: When children and young people do become involved in crime we would continue to operate a distinct youth justice system broadly on present lines, with a clear and visible response to offending behaviour from age 10 upwards". I have always regarded it as axiomatic that the approach to children and offending and the criminal justice system must be clearly differentiated from that relating to adults, from a philosophical, practical and humane point of view. That is what the youth justice system is predicated on. Children are not small adults. Why, therefore, do such principles not apply when it comes to ASBOs?

However, another Home Office document on ASBOs states: But the imposition of reporting restrictions may restrict the effectiveness of the order if the effectiveness of the ASBO will largely depend on the wider community knowing the details". That argument for reporting details immediately risks breaching Article 40 of the UN Convention on the Rights of the Child, which asserts the obligation to respect the child's right to privacy, at all stages of the proceedings". Nor is it in the best interests of children and young people as defined in Article 3 of the UNCRC.

The distinction between the approach of the youth courts and that of the magistrates' courts must be retained if justice is truly to be done. The welfare principle under the Children Act must have a place in the application of any sanction, and the potential harm of naming and shaming must also be taken into account.

In Committee, the Minister quoted anecdotal evidence of the effectiveness of publicity on reducing the anti-social behaviour of some young people. There is also anecdotal evidence the other way, as we have already heard from the noble Earl, Lord Listowel. In one case, reported in the Observer two weeks ago, alleged vigilante attacks were made on the boys in question. In others, publicity led to young people being stigmatised in the community.

I am sure that the Government could not have envisaged the campaign that the Sun newspaper launched to "Shop a Yob", which has been identifying children all over the country, some as young as 12. That is the antithesis of responsible, local community involvement; it is vigilantism of the press. It is very difficult and dangerous to use publicity in this way because people interpret and react to information in an extremely unpredictable way. When difficult, dysfunctional and often disturbed youngsters are concerned, whose behaviour is indeed unpleasant and intimidating, the risks are magnified. Such children are rarely shamed or humiliated into positive social behaviour. They are not only demonised by the process in the eyes of some, they could equally become anti-heroes in the eyes of others. Neither is desirable, and, clearly, that is not what is intended.

What is really needed is an evaluation and further research into the effectiveness of ASBOs in reducing anti-social behaviour—just as the noble Earl, Lord Listowel, said—and into what effect press reporting has on young people and the community. Only then should consideration be given to the possibility of lifting reporting restrictions on the young people who are given ASBOs. ASBOs do indeed have opportunities attached, both in stopping the behaviour and removing it from a particular place—thus reassuring local people—and identifying particular troublemakers. However, ASBOs must be enforced within the context of a multi-disciplinary approach that also addresses the causes of such behaviour to ensure a positive outcome for both the young person and the community. That is the essential corollary without which the outcome is likely to be negative and the strong arm of the law a purely punitive arm without any balancing support. Only with such support do ASBOs have the chance of achieving the sort of results that we all seek.

I have just received a letter from the Minister in response to my request for more information on the recent government initiatives that form part of the thinking expressed in the Green Paper. It makes impressive reading and I thank her for the letter. The £250 million investment in the Children and Adolescent Mental Health Service Network is greatly to be welcomed, as is the proportion of the Children's Fund for crime reduction. I sincerely hope that the YISPs produce the outcomes that are intended and the plans for the Connexions partnerships for vulnerable eight to 19 year-olds.

We have sought to argue this in various parts of this Bill. The opportunities offered in this area will be realised only when connections are routinely made between police intervention and other agencies— social services departments, schools, health and other agencies, including some of the initiatives that I have mentioned—as a requirement. That will require massively more resources than the Minister has mentioned, especially for the statutory agencies. Will she give us some assurance on the matter? Otherwise, I fear that the best intentions of the Government in this area will be lost.

Baroness Scotland of Asthal

My Lords, I thank the noble Baroness, Lady Linklater of Butterstone, for her complimentary comments about the contribution made by the Government and the efforts that we are making, and I also thank the noble Earl. I very much understand why the noble Baroness and the noble Earl are pressing this issue. We have some very difficult problems to unravel. We went through many of those in Committee. We are being pulled in two different ways. We must consider the interests of the child, who is often abused and neglected and exhibits aberrant, dysfunctional behaviour as a result. That behaviour has a terrible effect on the people around them. We need to examine how best to assist such children to reintegrate. Some have become so damaged that they are incapable of responding to ordinary boundaries. These are difficult issues.

I confirm to the noble Earl that we also believe that this area has been neglected for some time. That is why the Government have put in such energy and huge investment. For example, in addition to the money referred to by the noble Baroness for mental health, there has been £342 million for behaviour improvement programmes between 2000 and 2006, £513 million provided for the Youth Service in 2003–04, the £25.5 million each year for positive activities for young people, the initial budget of £200 million for the Young People's Fund, and the £15 million per annum for positive futures. We need every penny of that money to try to cushion and support young people.

In pressing his amendment, I understand that the noble Earl is accepting that reporting restrictions on certain individuals may have to be raised, but the question is how we monitor that and test whether it is the best thing to do. We have given a lot of thought to the matter. The noble Earl seemed to be asking for a specific piece of research. The major problem associated with work of that nature is that, first, a statistically small number of people are exposed in such a way. Secondly, the nature of exposure is likely to differ considerably from area to area, and thirdly, such young people are likely to be vilified by their local community already and it would be difficult in research terms to get the empirical data correct—to unpick the impact that this has on them compared with the exposure itself.

Noble Lords will know, however, that we are anxious to look at this area and cull as much information as possible. We looked at the possibility of constructing a separate research programme, how much it would cost and what its benefits would be, but we must bear in mind that we must examine the advantage to young people and how we invest in programmes likely to make a difference.

We have spent a good deal of money on improving our IT systems throughout the criminal justice system. Noble Lords will know that we are spending more than £ 1billion—£1.6 billion, I think—on that so that we have the potential to provide improved empirical data on disposals. That will provide us with a robust database of information to enable the Government to calculate the net impact of our policies and inform the making of new policies.

That is the broad context, but the noble Earl wants to know about research in this specific area. Our difficulty is not in saying that we do not think that this is an area that we should continue look at and test out, but how best to do that, how to get the research done and what it would deliver. At the moment, we do not feel that the cost benefit would be fruitful. However, we want to continue to look at this area, because it is obvious that we will have to revisit the whole issue of testing whether our policies are doing that which we seek.

If we examine the issue in the round and look at what we are doing with the Children's Fund, the children's Green Paper, and in the Bill, we see that these issues are being continually looked at to test whether the aspirations that we jointly and severally have for this piece of legislation actually deliver. Although I cannot tell your Lordships that we have a specific project in mind or that we think that there are cost benefits in carrying out a targeted piece of research, we agree that this area will be included in the other things that we must look at to ensure that we are delivering for children in a meaningful way.

We must also, however, deliver for the communities that, regrettably, are sometimes subjected to terrible behaviour. The courts will have an opportunity to address that problem. We want courts to think much more carefully about whether to grant restriction orders for children, which, as noble Lords will know, are dealt with in a significantly differently way from those for adults. The court must say whether it will lift or impose restrictions. For the children, it is a case of whether restrictions are lifted; for adults, it is whether they are imposed. We thought that, in the area of anti-social behaviour orders, it was appropriate to have a similar system.

I remind the House and the noble Baroness that the UN Convention on the Rights of the Child refers to the penal law. ASBOs and the equivalent orders are civil orders. The provisions relate only to orders made on conviction. The details of the conviction that precedes the anti-social behaviour order remain under reporting restrictions until the restrictions are lifted by the court.

We have had to strike a difficult balance. We think that we have got it about right. We know that the orders can be beneficial. The noble Baroness, Lady Linklater of Butterstone, talked about the police and other agencies working together. She knows that part of what we are trying to do is to make the link with the police. We hope that, once the pilot is rolled out throughout the country, the CPS will be involved in charging, thus framing the sort of offences involved. We are trying to make sure that the Juvenile Bench, which will still deal with such matters, will have the information that it seeks.

The noble Baroness and the noble Earl will know well that the courts are still bound to take the welfare of the child into account, under the Children and Young Persons Act 1933. The Judicial Studies Board has produced guidance on reporting restrictions in magistrates' courts, including specific advice on reporting restrictions and ASBOs. As the noble Earl is aware, the guidance includes reference to consideration of the welfare of the child.

When the Bill becomes law, there should, as with any other Bill, be training, through the Judicial Studies Board, on how it should be used and what should be done with it. Home Office officials will work with the Judicial Studies Board to ensure that the guidelines take account of the changes made by the Anti-social Behaviour Bill, so that we have a joined-up approach to how they should be applied. It is part of our security that we have tried to make sure that those who deal with sensitive issues involving children have the skills and training to be more responsive.

I am sure that Juvenile Benches throughout the country will see the campaigns that are launched and will have them in mind when they decide whether, in a particular case, it is right and proper for that child in those circumstances for the court to lift reporting restrictions. Those courts will think carefully about what may happen as a result and about the conditions that they may wish to put on the lifting of restrictions.

I hope that I have said enough to reassure noble Lords that the Government do not intend to let the issue lie fallow. We will return to the matter and continue to consider it. The interests of the children in those circumstances are at the forefront of our mind. Although I cannot give the noble Earl a specific commitment that there will be a piece of research, I can say that we will keep an eye on the issues, as the empirical data come through.

The Earl of Listowel

My Lords, I thank the Minister for her helpful reply. In Committee, she said changes to processes in the juvenile courts were being discussed. I feel more sanguine about that. However, most anti-social behaviour orders relating to children are made in the adult court. The adult court does not have the good relationship with the local youth offending team that the juvenile court has. The adult court does not have the specialist training for dealing with children that the children's court has. The adult court does not meet in a special session once a week, as the juvenile court does, to deal with children's issues. My reason, in part, for moving the amendment and asking for the research is not so much my concern that we are changing the arrangements in the juvenile courts; it is what is going on in the adult courts and how well informed and well considered their important decisions about children and their families are.

I look to your Lordships to see what support I might have in dividing the House. I am moved towards doing so. Although what the Minister said was, to some extent, reassuring, I feel that there is a danger that such children will, as so often, fall through the gaps. The Government have a huge agenda in this area, and those children may be left out. I take the Minister's point about the difficulties for local communities, but I look to your Lordships for an indication of whether it would be worthwhile to divide the House.

Noble Lords

Hear, hear.

The Earl of Listowel

My Lords, in that case, I shall divide the House.

4.35 p.m.

On Question, Whether the said amendment (No. 66) shall be agreed to?

Their Lordships divided: Contents, 51; Not-Contents, 116.

Division No.1
Addington, L. Masham of Ilton, B.
Avebury, L. Miller of Chilthorne Domer, B.
Beaumont of Whitley, L. Northover, B.
Bledisloe, V. Oxford, Bp.
Brookeborough, V. Palmer, L.
Chorley, L. Rees-Mogg, L.
Clement-Jones, L. Roper, L.
Craig of Radley, L. St. John of Bletso, L.
Darcy de Knayth, B. Saltoun of Abemethy, Ly.
Dholakia, L. [Teller]
Elton, L. Sharp of Guildford, B.
Falkland, V. Sharpies, B.
Fearn, L. Shutt of Greetland, L.
Finlay of Llandaff, B. Smith of Clifton, L.
Hamwee, B. Steel of Aikwood, L.
Harris of Richmond, B. Stern, B.
Howe of Idlicote, B. Strange, B.
Hurd of Westwell, L. Swinfen, L.
Lester of Herne Hill, L. Thomson of Monifieth, L.
Linklater of Butterstone, B. Tope, L.
Listowel, E. Tordoff, L.
Lucas, L. Wallace of Saltaire, L.
Lyell, L. Walmsley, B. [Teller]
Mackie of Benshie, L. Walpole, L.
McNally, L. Walton of Detchant, L.
Maddock, B. Warnock, B.
Acton, L. Ashton of Upholland, B.
Ahmed, L. Barnett, L.
Allenby of Megiddo, V. Bassam of Brighton, L.
Alli, L. Berkeley, L.
Amos, B. (LordPresident) Bernstein of Craigweil, L.
Andrews, B. Bhatia, L.
Archer of Sandwell, L. Billingham, B.
Blackstone, B. Lea of Crondall, L.
Borrie, L. Levy, L.
Brooke of Alverthorpe, L. Lipsey, L.
Brookman, L. Lofthouse of Pontefract, L.
Burlison, L. McCarthy, L.
Carter, L. Macdonald of Tradeston, L.
Christopher, L. McIntosh of Haringey, L.
Clark of Windermere, L. McIntosh of Hudnall, B.
Clarke of Hampstead, L. MacKenzie of Culkein, L.
Clinton-Davis, L. Mackenzie of Framwellgate, L.
Cohen of Pimlico, B. Mallalieu, B.
Corbett of Castle Vide, L. Mason of Barnsley, L.
Crawley, B. Massey of Darken, B.
David, B. Merlyn-Rees, L.
Davies of Coity, L. Mishcon, L.
Davies of Oldham, L. [ Teller] Morgan, L.
Desai, L. Morris of Aberavon, L.
Dixon, L. Morris of Manchester, L.
Dormand of Easington, L. Orme, L.
Dubs, L. Parekh, L.
Elder, L. Patel of Blackburn, L.
Evans of Temple Guiting, L. Paul, L.
Evans of Watford, L. Pendry, L.
Farrington of Ribbleton, B. Plant of Highfidd, L.
Faulkner of Worcester, L. Ponsonby of Shulbrede, L.
Filkin, L. Prys-Davies, L.
Gale, B. Rendell of Babergh, B.
Gavron, L. Richard, L.
Gibson of Market Rasen, B. Roll of Ipsden, L.
Goldsmith, L. Rooker, L.
Gordon of Strathblane, L. Sainsbury of Turville, L.
Goudie, B. Sawyer, L.
Gould of Potternewton, B. Scotland of Asthal, B.
Graham of Edmonton, L. Sheldon, L.
Gregson, L. Simon, V.
Grocott, L. [Teller] Smith of Gilmorehill, B.
Harrison, L. Symons of Vernham Dean, B.
Haskel, L. Taylor of Blackburn, L.
Hayman, B. Temple-Morris, L.
Hilton of Eggardon, B. Tenby, V.
Hogg of Cumbernauld, L. Thornton, B.
Hollis of Heigham, B. Turner of Camden, B.
Howie of Troon, L. Warner, L.
Hoyle, L. Watson of Invergowrie, L.
Hughes of Woodside.L. Weatherill, L.
Hunt of Kings Heath, L. Wedderburn of Charlton, L.
Irvine of Lairg, L. Whitaker, B.
Jay of Paddington, B. Whitty, L.
Jones, L. Wilkins, B.
King of West Bromwich, L. Williams of Elvel, L.
Layard, L. Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

4.45 p.m.

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

Baroness Linklater of Butterstone moved Amendment No. 67: Page 32, line 41, leave out subsection (3).

The noble Baroness said: My Lords, Amendments Nos. 67 and 68 relate to Clause 39 and the extension of fixed penalty notices. The purpose of Amendment No. 67 is to resist vigorously the further reduction of the age at which fixed penalty notices could be issued for disorderly behaviour—that is, from 16 years old to as young as 10 years old—by affirmative resolution. It also asserts that to use the powers of the Home Secretary to further reduce the age in that way is entirely inappropriate. It is right and just that if such a measure is to be considered seriously, it must be addressed properly through primary legislation and therefore be subject to full parliamentary scrutiny. Thorough consideration should be given to all the implications of such a move, which, in our view, is highly undesirable.

In Committee, we argued that a 10 year-old cannot give informed consent to the fixed penalty notice or have the capacity to understand the consequences of accepting one, as required by code C of PACE. It is an inappropriate sanction for children so young. Of itself, it could not promote positive social behaviour. It would fall on the family to pay. It therefore fails to meet the objective of a swift and direct response to disorderly behaviour on the part of such a young person. My principal point is that it should occur, if at all, only as a result of the most detailed consideration of what this means through full parliamentary process.

Clause 39 extends the fixed penalty notice scheme— introduced by the Criminal Justice and Police Act 2001—to 16 and 17 year-olds for disorderly behaviour. In Committee, there was discussion of the age reduction from over-18s to 16 and 17 year-olds, once the outcome of an evaluation of the scheme in four police areas had been completed. The evaluation was not available at the time, but the Minister reported that it had been completed, although not published, and that, from the point of view of the police, the outcome was favourable. As a speedy way of dealing with adult disorderly behaviour, that is encouraging. It has our full support.

Amendment No. 68 aims to ensure that the safeguards afforded by the PACE code of practice to young people under 16 years old also apply to 17 year-olds where fixed penalty notices are used. They should be activated at a police station in the presence of an appropriate adult. Code C requires that an appropriate adult be present before any interview, detention, bail or signing of a statement by an under 16 year-old. The adult must have an active role in advising the young person and ensure that the interview is conducted fairly and that the young person understands what is happening and why. It would be extremely difficult to be absolutely sure that a 16 or 17 year-old understands what is happening and why without the presence of that appropriate adult.

The amendment would ensure greater safeguards in the Bill for such young people, which are consistent with PACE. I understand that the intention is to pilot this—as with the over 18 year-olds—which I welcome. However, I should like the Minister to assure us that the PACE safeguards will be incorporated in the pilots.

During the past few years, the Government have done a great deal of work through their reformed youth justice system, to which I pay tribute. There is a whole system of, for example, reprimands, final warnings and referral orders to youth offending panels, which are a perfect example of how to bring local communities into the process of dealing with troublesome young people. They have had remarkable success in involving local people, on a voluntary basis, who have never before been involved in this way. All the new provisions in the Bill sit uneasily with what is already in place.

It is felt strongly by all the children's organisations that lowering the age at which fixed penalty notices may be issued is simply to apply adult sanctions to young people—a theme to which I referred earlier— and that it is inappropriate. Young people in this age group are already significantly discriminated against as regards entitlement to financial and other benefits, and are more likely to be both out of school and out of work. The Explanatory Notes make it clear that 16 to 17 year-olds will have the same level of financial penalty imposed as that for adults, which is either £40 or £80, depending on the offence. Figures from the Office for National Statistics show that only 240,000 young people in this age group are in full-time employment, and they do not have the protection of the minimum wage. Young people rarely qualify for income support and, even in cases of severe hardship, will normally receive only £32.50 per week.

Even if the expectation is that parents will have to pay the fine—and research shows that they are most likely to be unemployed, single parents—it is important to recognise the distinction between a child and an adult when applying a penalty. Therefore, I should like to ask the Minister for an assurance when she comes to reply: will the level of fines be set lower for people in this age group to take account of their age and economic position? I beg to move.

Baroness Scotland of Asthal

My Lords, I understand the concerns expressed by the noble Baroness, Lady Linklater, in relation to this matter. As I have said on previous occasions, we believe that penalty notices for disorder have an important role to play in tackling anti-social behaviour by juveniles. This is relatively low-level anti-social behaviour, but it does impact on the wider community and needs to be addressed. We have thought hard about this issue and have not changed our view about the need for such a sanction to be available to the police when dealing with juveniles. I know that the noble Baroness will agree with me when I say that we want to stop this kind of behaviour before it takes root. It is hoped, therefore, that we shall be able to address it more quickly and easily.

Extension of this scheme would give the police the power to tackle such behaviour. A notice will act as a deterrent, but it will not leave the young person with a criminal conviction, recognising this age group's youth and vulnerability, which is a point that I know noble Lords will share with me. Further, it will encourage the police to take action against anti-social behaviour in the street which is not being dealt with at present.

Noble Lords know that much work is being done with the Association of Chief Police Officers, which has urged the Government to extend the scheme to juveniles. As the noble Baroness mentioned, we intend to pilot the scheme first on 16 and 17 year-olds to see whether it would be usefully applied to the younger age groups. The proposal has to be tested to see how it works and what benefits are derived from it.

The proposal also dovetails with what we are trying to do with local policing and initiatives: bringing in community service officers to work with police officers in a given area in order to make a difference. We believe also that it is right for parents to take responsibility for the behaviour of their children and that they should be expected to pay the penalty on their children's behalf. There is no difference, essentially, between that and the current position whereby a court may fine a child under the age of 16.

Clause 39(4) allows the Secretary of State to set the penalties at different levels for different ages, so allowing a lower amount to be set for those in the younger age groups. We shall certainly consider this aspect, as mentioned by the noble Baroness, when we look at the pilot studies and fashion them to make them work better.

Amendment No. 68 would mean that fixed penalty notices for juveniles aged under 18 could be issued only in a police station. We believe that that would reduce the effectiveness of the scheme by restricting the discretion of police officers. There will be times, in particular as regards 16 and 17 year-olds, when it will be perfectly proper to issue a notice elsewhere, so long as those young people fully understand the process. It may also be suitable for under-16 year-olds if either the parent or carer is present. We want to allow police officers to exercise their judgment.

I understand what has been said by the noble Baroness about how the scheme would operate. I hope that I have been able to reassure her that we shall look at this whole area carefully. It may be a little of a "suck it and see" exercise because we want to get it right. We have experience of using pilots in this way under other circumstances and we have found them very useful. They help to clarify what works. We want to pursue only that which works effectively, and we think that this is a good way forward. I hope that the noble Baroness will be a little comforted by what I have said.

Baroness Linklater of Butterstone

My Lords, I thank the Minister for that reply. I did not hear any mention of my resistance to the proposal by affirmative resolution to lower the possible age of imposing such fines to children as young as 10. However, that aside, I fully appreciate that the courts have the opportunity and the power to impose fines. Therefore why an additional fixed penalty scheme in this context and as set out in the Bill will have any further effect on the prevention of anti-social behaviour than have the current procedures is not at all something of which I am convinced. While I understand that it is of course proper for parents to take responsibility in the way mentioned by the Minister, we are talking here about stopping young people on the spot in regard to their offending behaviour. I am not sure that the connection is clear.

I am glad that the Minister has confirmed that there is to be careful monitoring and evaluation of the pilot schemes, and that sufficient discretion will be given to the police. However, I still think it is important to seek the assurance I asked for; that is, that the PACE safeguards should be in place for 16 and 17 year-olds. The fact that it is quite difficult to see that through is not necessarily a convincing argument.

Having listened to those remarks, I hope that the Minister will have one or two further reassuring comments to make when we finally consider the matter at Third Reading. I do not intend to divide the House at this point and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 68 not moved.]

Baroness Scotland of Asthal moved Amendment No. 69: After Clause 42, insert the following new clause—


  1. (1) This section applies to proceedings in which a local authority is a party by virtue of section 222 of the Local Government Act 1972 (power of local authority to bring, defend or appear in proceedings for the promotion or protection of the interests of inhabitants of their area).
  2. (2) If the court grants an injunction which prohibits conduct which is capable of causing nuisance or annoyance to a person it may, if subsection (3) below applies, attach a power of arrest to any provision of the injunction.
  3. (3) This subsection applies if the local authority applies to the court to attach the power of arrest and the court thinks that either—
    1. (a) the conduct mentioned in subsection (2) consists of or includes the use or threatened use of violence, or
    2. (b) there is a significant risk of harm to the person mentioned in that subsection.
  4. (4) Harm includes serious ill-treatment or abuse (whether physical or not).
  5. (5) Local authority has the same meaning as in section 222 of the Local Government Act 1972."

On Question, amendment agreed to.

Clause 44 [Air weapons: age limits]:

Lord Dixon-Smith moved Amendment No. 70: Page 36, line 22, leave out ""seventeen"" and insert ""sixteen"

The noble Lord said: My Lords, anyone who has used a machine gun knows that, if you are lucky, you will hit the target with your first shot. After that, the bullets simply spray around the countryside. That is the purpose of a machine gun. The only reason for mentioning the weapon in this Chamber today is that it pretty closely describes the approach over the past few years of governments of both persuasions to legislation in the matter of guns and firearms. The target is and always should have been illegal guns being improperly used by criminals lor criminal purposes. The process we have gone through has hit many legitimate users of guns and firearms, very often to their disadvantage.

This group of amendments is designed to ease the problem slightly. The Bill seeks to raise the age at which air guns may be owned and carried from 14 to 17 years. Earlier I sought to have the provision removed, but I received no encouragement from the Government, so I now propose the age of 16 as a possible compromise.

It is surprising how many totally adult things someone may do at the age of 16. It is possible to buy a scooter and get a licence to ride it on the roads; one can smoke, drink alcohol and indulge in sexual intercourse. Someone can join the Army as a young soldier and receive full weapons training. While a 16 year-old will not be sent to the front line to fight, he might be sent at 17—although that is neither here nor there. The Electoral Commission is considering proposals that the voting age should be lowered to 16. These are all adult qualifications—but you cannot carry around an air rifle until you are 17. That is petty and silly. The amendments in the group therefore seek that, wherever in the Bill the Government consider 17 to be the appropriate age limit, it should be changed to 16.

I have argued before that if you treat someone as responsible they will, on the whole, behave responsibly. I accept that there are always a few people who insist on misbehaving but in my general experience there is plenty of law to deal with people who misbehave and break the law, even in relation to the misuse of air rifles and airguns. The Government should have no problem in accepting the amendments. I beg to move.

5 p.m.

Lord Monson

My Lords, I support the extremely modest amendment of the noble Lord, Lord Dixon-Smith. Is there any evidence from police records to suggest that 16 year-olds are more likely to misbehave with air rifles or air pistols than 17 or 18 year-olds?

Lord Monro of Langholm

My Lords, I support the amendment even though I much prefer the next group of amendments which would place us in a more satisfactory position in regard to 14 to 17 year-olds. However, these amendments would be better than nothing and provide a good start. They would show that the Government are willing to fulfil their manifesto commitment to not in any way affect shooting. I shall reserve my detailed remarks for the next group of amendments, but surely we can start moving in the right direction by accepting these.

Baroness Scotland of Asthal

My Lords, I thank the noble Lord, Lord Dixon-Smith, for moving the amendment even though, if I may say so gently, its introduction was extravagantly expressed.

The purpose of Clause 44 is to tackle air weapons misuse by ensuring that young people do not have access to them without adult supervision. Noble Lords will know that many people believe that the Government have not gone far enough to keep the public safe and urge us with some vigour to go even further. We believe that the provisions in the Bill are very balanced. They raise the age limit from 14 to 17.

I know that shooting organisations are concerned about the effect the Bill may have on shooting sports— a concern also raised by the noble Lords, Lord Monson, Lord Monro and Lord Dixon-Smith—but the Government have already responded to those concerns by allowing an exception for young people to use their air weapons unsupervised on private premises. The amendments would remove a further category of young person—all 16 year-olds—from the need for supervision.

I hear what the noble Lord, Lord Dixon-Smith, says about moving the age limit to 16. I remind the House that there are others who say that the voting age should be moved to 21 and some who believe that there should be a gender difference between the ages when women are allowed to vote and when men are allowed to vote.

It is important that we should remain proportionate and realistic. The current age limit is 14. We have chosen 17 as the new age limit in order to catch the age group that we believe is most likely to be involved in the misuse of air weapons. It is also consistent with other age limits in firearms law. An age limit of 16 would mean that far fewer young people would have to be supervised when handling air weapons, but this would mean less protection for the public and undermine efforts to tackle air weapon misuse. We firmly believe that 17 is the right age at which to draw the line for unsupervised access to air weapons.

I ask the noble Lord not to press the amendment. I know that we shall speak with even greater energy on this issue during the debate on the next group of amendments.

Lord Dixon-Smith

My Lords, there will be dissension for a very long time between the noble Baroness and myself over the question of when a child is grown up and when, whether and how they are capable of making responsible judgments and so on. I do not intend to prolong matters. The Minister has given me no encouragement whatever. I have become used to having buckets of cold water poured down my neck—it is not an unfamiliar sensation—and I accept it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Moynihan moved Amendment No. 71: Page 36, line 34, at end insert—

The noble Lord said: My Lords, perhaps I may start by stating what I hope is obvious: all law-abiding citizens support the Government's proposals for a new offence of possessing an airgun or a replica gun in a public place without lawful authority or reasonable excuse. Everyone agrees that the misuse of firearms is a genuine, deeply felt concern of the general public and that there is widespread support for measures to tackle this problem. But there is no history—not one case— where legitimate shooting sports have been the subject of the misuse of firearms. We must not allow, as my noble friend said when addressing the previous group of amendments, legitimate shooting sports to be swept into ill-considered, all-embracing legislation. I hope that as a result of our deliberations the Government will now realise that, as the legislation is currently drafted, the world of sport will be seriously damaged by the Government's proposals.

Sadly, this is not the first blow that the Government have landed on the face of British sport in the Bill. At the beginning of our considerations on Report, the Government landed a further blow on the battered body of British sport—pace Tim Henman and our rugby players—by refusing here and now to reinforce the stature of our anti-doping strategy by giving a commitment to grant independent status to UK Sport's anti-doping directorate.

Now, in a further blow to the solar plexus, the Government are in danger of landing a body blow to the world of Britain's young sporting shooters. Once again the Minister for Sport in another place is silent, as he was on the first issue, his voice not to be heard defending the interests of sportsmen and women. Only the characteristic, knowledgeable voice of the former Minister, Kate Hoey, was to be heard at Second Reading. She asked: will my right hon. Friend ensure that the guidance notes make it clear that the Bill will not prevent legitimate young shooters going to legitimate places to shoot? Will those people be covered by the reasonable exemptions and will that be clearly stated?".

The Home Secretary was clear in his reply. He said: We are seeking good and lawful reasons for carrying weapons, and we need to ensure that the guidance is positive and helpful in that way".—[Official Report, Commons. 8/4/03; col. 149.]

So we look to the Minister—as highly respected as she is hard working and popular—to broaden the remit of her portfolio and support the conciliatory amendment tabled in my name which will satisfy the Home Secretary's reply to Kate Hoey.

But, first, a little background. Without exception, the world of sport, coupled with those organisations representing the countryside, have railed and rallied against the Government's misguided new restriction set out in the clause. It is some feat for the Government to have alienated in one clause the Association of Professional Clay Target Shooting Grounds, the British Association for Shooting and Conservation, the Clay Pigeon Shooting Association, the Countryside Alliance, the Gun Trade Association, the Muzzle Loaders Association, the National Rifle Association, the National Small-bore Rifle Association, the Shooting Sports Trust, the Sportsman's Association of Great Britain and Northern Ireland, the United Kingdom Practical Shooting Association, the Association of Professional Shooting Instructors and the Institute of Clay Shooting Instructors—all of which make up the British Shooting Sports Council—yet they have achieved that feat. They have done so by, for the first time, making it illegal for young responsible shooters between the ages of 14 and 17 to carry air guns in public places without supervision including, of course, our 16-year-old Commonwealth gold medallist, Charlotte Kerwood.

The issue is of extreme concern to the sporting shooting community, as it could seriously impede the participation of young people in a wide range of shooting sports, something the shooting community has, for many years, worked hard to encourage. Once again, the much publicised Game Plan, the Government's supposed blueprint for sport, is blotted. For in that document the DCMS has set a target to initiate, a major increase in participation in sport and physical activity, primarily because of the significant health benefits and to reduce the growing costs of inactivity".

Shooting sports often require significant physical exertion and provide a wide variety of health benefits for those who participate in them. How does the restriction of young people's ability to practise these sports fit with Game Plan? The Bill will bear down disproportionately on any young responsible sportsman or woman who has permission to shoot on local farmland or who, as a trainee gamekeeper, is required to travel to an estate as their place of work.

To summarise, the legislation carries two main categories of legitimate shooters who will be affected. The first is the sports shooters who, if Labour Party manifestos are worth the paper they are written on, have an undertaking that they will not be the subject of discriminatory legislation further to restrict the enjoyment of their sport. Sadly, as currently drafted, the Bill revokes that undertaking and so affects this category of young shooters. The second category is the farmhands who frequently assist the local farmer by, for example, killing rats in barns.

Worse, the clause contradicts the Government's manifesto commitment not to place further restrictions on the sport of shooting. Moreover, if the Bill does not receive further amendment, young shooters will be allowed to use their guns on private land without supervision but will be in the conflicting position of having to be supervised when carrying these same guns in public.

The Government will of course turn to the series of statistics for crime involving air guns and replica weapons, which the Minister in another place published in response to questions from Mike Hancock, MP. Careful analysis of these statistics is important for the work of a revising Chamber, so I believe it is important to note that on the basis of government statistics, a person is more likely to be hospitalised by a tea cosy or a cotton bud than by the misuse of an air gun. Nevertheless, we should seek ways of improving enforcement and introducing further offences which allow the police to challenge any person of any age who is carrying an air gun in a public place. Both these proposals in the Bill have our support.

With the Minister's support, and accompanied by senior representatives of the British Shooting Sports Council and the British Association for Shooting and Conservation, I recently met with her officials to consider ways of reaching agreement with the Government to ensure that Clause 44 of the Anti-social Behaviour Bill does not bear down disproportionately on young sporting shooters, while ensuring that the legislation remains effective and practical in targeting the abuse of guns. The Government have yet to signal their agreement with the proposals we put to officials, so it is with great regret that I seek agreement on a compromise amendment, which I nevertheless hope achieves that objective.

This amendment would allow young shots to carry air guns in public places without supervision, but under very restrictive and clearly defined conditions. The many organisations to which I have referred, including the British Association for Shooting and Conservation, believe that those conditions are unnecessarily draconian, but I believe and hope they will carry the support of your Lordships across the political divide.

The amendments tabled in my name show the extent to which both I and the shooting community have strived to seek a reasoned and reasonable way to identify middle ground between the Bill as it stands and the law in its current form. Amendments Nos. 71,72,73,74 and 75 are evidence of this process, and Amendment No. 76 is the culmination of these efforts. It seeks first to allow young people to carry air guns in public without supervision, provided the gun is carried in a securely fastened case.

In the end, I have not sought to add over-complex and burdensome bureaucracy to the work of the police by requiring more than the provisions of reasonable excuse for carrying a gun, since by requesting evidence of purpose—for example, a signed letter from the parents or evidence of a place of destination and the place of residence—we would be going beyond good reason, lawful authority and the new conditions laid out in the Bill. Nevertheless, by recognising the need to carry the gun in a securely fastened case, the risk, though remote, is minimised that our 17-year-old Commonwealth gold medallist has her air gun stolen from her for criminal purposes.

Yet to make this possibility even more remote—and I remind the House that expert commentators from the police and the shooting community have not been able to identify a single offence recorded of a young 14 to 17-year-old sport shooter arrested for abusing the current freedom to carry his or her air gun to a shooting club—I propose to go further and amend the Bill to allow young people to carry air guns in public without supervision if, and only if, the guns are carried in a securely fastened case, with the new requirement for the case to be securely locked and the key kept separate from the gun.

Your Lordships will note that even the most determined criminal now has a problem. He or she can break with precedent in terms of criminal activity in this country, grab the gun case—unaware of whether there is a gun inside—knowing in advance that the law-abiding young sporting shooter will not have a key to the securely fastened case. However, I recommend going even further by introducing the provision that the air gun pellets must always be carried separately from the gun. That is an exceptionally important additional proposal which I hope will meet with the Minister's support.

In seeking consensus, I propose to go even further. The young person wishing to carry an air gun unsupervised in public must be able to prove—here I emphasise that the burden is very much on the individual—that they are travelling directly to the place where they will be practising their sport.

Amendment No. 76 seeks to protect young responsible shooters. It is regrettable that it is left to these Benches, with, I hope, support from those genuinely committed to sport on the Liberal Democrat and, indeed, the Labour Benches, to rally together on an all-party basis to address this issue. However, I hope the Minister will respond positively, support my amendment and avoid the necessity to test the will of the House. I beg to move.

5.15 p.m.

Lord Pendry

My Lords, I take part in this debate wearing my sporting hat. As chairman of the All-Party Sports Group, I declare an interest in this matter. I accept, of course, the main tenets of the Bill, but I think it is flawed in respect of the provision in Clause 44 which, if passed, would exclude many young people from the sport of shooting.

Although I support the sporting community, I am far from a shooter. I must confess that it is probably the last sport I would put my hand to. As a national serviceman in the Royal Air Force in the 1950s, doing my square bashing at West Kirby RAF station, I, together with some 70 conscripts, marched on orders to a rifle range, as it was deemed necessary for us to have a basic knowledge of using rifles. I failed to hit one shot anywhere near the target range, and, with 69 of my colleagues lined up to go to lunch, I was accosted by the sergeant in charge who made me sign a piece of paper stating that I was blind so that the rest could go to lunch. So you see, my Lords, shooting is hardly a sport I could have excelled in. However, as the noble Lord, Lord Moynihan, has said, others do. He referred to young Charlotte Kerwood, a 16-year-old gold medallist at the Commonwealth Games, and there have been many more before her.

It is a fact that many people participate in this sport across the UK—rather more than those who participate in rugby, hockey, athletics or motor sports. I recognise that the Bill has an important intention; namely, to prevent the misuse of air guns. Any changes to the Government's proposals should certainly be thought through thoroughly, and I hope the Minister will do that. I believe that the noble Lord, Lord Moynihan, as well as the British Association of Shooting and Conservation and the British Shooting Sports Council, have tried hard to meet the Government's concerns. They all recognise that, if the clause is passed without amendment, it will pose a significant impediment to the participation of young people in a whole range of shooting sports, from informal target practice to competitive shooting.

Shooting sports are often practised in rural areas where it is often preferable for young people to walk or cycle to the place where they shoot. Requiring young people to be supervised in those situations—or even supervised walking down the street—would surely put off the majority of youngsters who were thinking of taking up the sport. Caroline Flint MP, a Home Office Minister in the other place, argued that: There is no 'strong reason' why young shooters should not be supervised. It is no different to the support given to young people by parents and coaches in relation to many other sports". That is a very important point. Perhaps we should be looking at it in another way: it is not a legal requirement for adults to accompany young people to practice sessions in other sporting disciplines. As with other sports, it is currently left up to parents to judge whether it would be appropriate to allow young people to travel unsupervised to the location where they practise shooting sports. Surely, young shooters should be given the same opportunities as sportsmen and women from other backgrounds.

As the author of Labour's Sporting Nation manifesto in 1997, I can assure noble Lords that it commended the sports of shooting and fishing. I hope that that will be underlined for many years to come on the Benches opposite. In the context of the Government's grass roots sports policy, surely the amendment proposed by the noble Lord, Lord Moynihan, must be accepted. The DCMS has a key target to initiate, a major increase in participation in sport and physical activity, primarily because of the significant health benefits and to reduce the growing costs of inactivity". Shooting sports often require significant physical exertion and provide a wide variety of health benefits for those who participate in them. If the clause is left unamended, I am concerned that it could undermine the Government's clear achievements on grass roots sport and prevent the sporting community from upholding these targets. As a result, I call on noble Lords to support the amendments tabled by the noble Lord, Lord Moynihan, which would allow sporting shooters a reasonable degree of freedom to practise their sport while ensuring that the Government's attempts to tackle gun crime retain their effectiveness.

The Earl of Shrewsbury

My Lords, I support my noble friend's amendment, and declare my interest as chairman of the British Shooting Sports Council, honorary president of the Gun Trade Association and a former chairman of the Firearms Consultative Committee.

I praise the work that the BSSC has put into this issue. It has worked long and hard on the matter and has been willing to go to great lengths to satisfy the Minister's concerns with regard to public safety, which some would say were adequately covered by the powers given to the police in Clause 43. The BSSC put forward the wording of these amendments, having taken great care to consult the Home Office to find a workable solution. On behalf of the BSSC, I thank my noble friend Lord Moynihan for his tireless support on the issue. He is a true friend of British sport, as we have seen throughout the passage of the Bill.

I should like to reiterate what my noble friend has said, but let us consider the matter from the point of view of the individual whom the Government are trying to isolate with the legislation. I refer to the anti-social young person who is prepared to risk the safety of others to get his kicks out of an airgun. Under the law as it stands, he can be arrested if he carries an airgun in public without a securely fastened cover. To some of your Lordships, that item might not seem all that stringent. Under my noble friend's amendments, not only would he have to do that, but he would have to lock the case in which he was carrying the gun; leave the key at home; and be able to prove that he was travelling directly to a place where he has permission to use the gun for sporting purposes. He would not be allowed to carry pellets with the gun and, on top of that, he could even be required to carry valid identification and written permission from his parents and the landowner.

What young person out to create serious mischief with an airgun is going to go to the trouble of having all that information with him and, abiding by those restrictions, go and take a potshot at a cat? Young responsible sporting shooters, on the other hand, have willingly and wisely shown themselves to be prepared to give up all those freedoms to retain their right to carry the tool that they use for their sport in public places.

Her Majesty's Government say that what they propose in the clause will not affect shooting sports. The work that the BSSC has put into the issue shows exactly how passionate young sporting shooters are about protecting that aspect of their sports.

The Government say that our proposals will not work because hooligans will break the law anyway, or would do it behind our backs, and the police would be unable to stop them. Surely, the Government know that one cannot build legislation on such an assumption. Why introduce the excellent proposal in Clause 43, which the shooting community fully supports, to require everyone carrying an airgun in a public place to be able to provide good cause or reasonable excuse for so doing, if one is trying to tackle the minority of the population who will just ignore the requirement completely? It is fairly academic that the Government do not have faith in the police to do their job properly. Therefore, I hope that your Lordships will support my noble friend's amendment.

Lord Addington

My Lords, Amendment No. 76 seems a reasonable amendment. If the Government are going to allow people to go on shooting rifles, and allow shooting sports generally, they will allow youth into the sport. The amendment would mean that young people could get there and take part in the sport, and would replace considerable numbers of restrictions on transporting weapons. If we say that young people must be tied to a parent or supervising adult, many young people will simply drop out and it will become more difficult.

Let us please have a little consistency. I agree that we must not take lightly firearms of any description, but if we are allowing them to be used legally, we must allow them to be used to a realistic level. We can support the amendment because it reaches that balanced point. We hope that the Government respond favourably to the issue because, realistically, they do no: have much choice—unless they are saying that they want to cut down on shooting sports.

Earl Peel

My Lords, I wholeheartedly support the amendment tabled by my noble friend Lord Moynihan. In so doing, I declare an interest as a vice-president of the British Shooting Sports Council.

I absolutely understand the Government's objective in trying to marginalise those few individuals who are intent on making people's lives miserable through the irresponsible use of airguns. At the same time, it is important that the responsible—and I am sure that the Minister would agree that by far and away the majority of those who use airguns are responsible—are not penalised out of proportion.

As my noble friend Lord Shrewsbury said, as the law stands, anyone who carries an airgun in a public place without a securely fastened cover is in breach of the law. I should have thought that that was by far and away the major deterrent. The amendment would add to that a list of additional restrictions, including not carrying ammunition and the requirement to carry valid identification. I suggest that that combination would act to deter all but the very few who are intent on breaking the law.

Of course, we cannot legislate to cover all possibilities, but we must pass laws that are reasonable, practical and above all—and this is a very important point—show respect for the responsible people. If we add to the amendments the sensible proposals in Clause 43, we have reached a sensible and fair balance. Without the amendment, responsible airgun users who indulge in target shooting or carry out necessary pest control activities on farmland are likely to be seriously compromised, as indeed will other members of their families who in some cases will have to give up precious time to ferry them around.

I realise that these amendments appear to address relatively small and irrelevant issues. However, the pressures of regulation and red tape are constantly bearing down on the rural communities. The Government gave the noble Lord, Lord Haskins, the task of looking at red tape in rural matters and he came up with a whole series of proposals, but the Government completely ignored most of them. I hope that the Government realise that red tape, particularly in the rural sector, is getting out of all proportion. If the Bill is enacted as it stands at the moment, it will create considerable difficulties in the rural sector.

I therefore implore the Minister to look sensibly at these amendments. I hope that she will accept what my noble friend has suggested as a thoroughly sensible and reasonable compromise.

5.30 p.m.

Lord Monro of Langholm

My Lords, I support my colleagues and noble Lords on all sides of the House who have spoken in support of the amendment moved by my noble friend Lord Moynihan. He said, as I did in my previous intervention, that the Government's manifesto said that it would not affect shooting. However, that is exactly what is happening. We all know that it is a slippery slope into much more severe regulation, often by guidance to chief constables, which could make it very difficult indeed to operate with firearms. One sees that not only in this legislation. We saw it last weekend in the "Sports Cabinet" at which the sports Ministers, UK Sport and other sports councils met and decided that financial support would not be available for the top marksmen who have done so much to win gold medals for this country in the Olympics and the Commonwealth Games. We are all aware of the immense contribution that Bisley has made.

I support the comments of my noble friend Lord Shrewsbury about the BSSC. I have been involved with that fine organisation, and I declare an interest as a past president of the NSRA, the NRA and the Clay Pigeon Shooting Association. When it comes to firearms all those organisations know what they are talking about, much more than the Government know what they are talking about. The Government ought to listen. They ought to be glad to have the advice of the BSSC on how they should proceed. The Government's thinking as manifested in their legislation shows a lack of information.

It is no wonder at all that the Government's direction in this matter is causing grave concern to some crack shots, both boys and girls. We all understand the Government's worry about imitation weapons, conversions and so on. However, an attack on youth and airguns is not justified. It is certainly not justified as regards air rifles. Most gun crime, of course, involves handguns. The provisions as they affect airguns will do nothing to help reduce the incidence of firearm crime.

We want youngsters, through experience with adults, to learn how to shoot safely and to enjoy it for years to come. It is all very well for the noble Baroness to say, "On private land they can do what they like". They have to get to that private land. They have to move from their homes to a farm or to wherever they have permission to shoot. The point applies similarly to youngsters who are high-quality marksmen and want to go to the nearest indoor range, an open range, a railway station or an airport so that they can compete internationally. All that would be banned by the Government's incredible restriction on movement for 14 to 17 year-olds.

As I said, I hope that the Minister will ensure that draft guidance is shown to both Houses of Parliament so that we can see how that guidance relates to the legislation. Very often such guidance takes a stride or two further forward than was ever approved by Members of both Houses. At this stage, however, I hope that the noble Baroness will realise that she is on a losing wicket, that she has not very many friends in this building tonight and that she might as well concede it.

Earl Attlee

My Lords, I rise briefly to support strongly Amendment No. 76. I have no interest to declare. I confess, however, that I was a little bit cautious about previous amendments which we considered in Committee to address this issue. I felt that they did not meet all the Government's legitimate aspirations to protect the public. However, I think that the requirements outlined by my noble friend Lord Moynihan fully meet all sensible requirements.

Lord Dixon-Smith

My Lords, just to make it absolutely plain, I am grateful to my noble friends who are advancing these amendments. They will, of course, have the full support of these Benches. The amendments reduce some of what I would call the collateral damage caused by the proposals in the Bill as it stands. I hope that the noble Baroness will find it in her heart to accept them, or make sufficiently sympathetic noises to persuade my noble friends that they need not pursue the matter tonight because the Government will improve on their proposals.

Baroness Scotland of Asthal

My Lords, we have just enjoyed a debate that could take place only in your Lordships' House, and enjoyed it we certainly have. The noble Lord, Lord Monro, said that the Government ought to listen. We have listened. Moreover, as the daughter of a very fine Caribbean cricketer, I can assure him that I intend to protect my wicket as well as I can.

Clause 44 will require young people under 17 to be supervised by an adult when carrying an air weapon in public. So a young person would indeed be able to carry an airgun if he had a reasonable excuse to do so; for example, if he was going to a club. However, he or she would have to be supervised by an adult if they were under 17.

I think that this amendment could not have been pursued with greater force and vigour than that shown by the noble Lord, Lord Moynihan, who at one stage employed every argument to persuade that it was an efficacious, easy and not complex way forward. If only that were so. The Government have tried to be proportionate in our response to the issue. We believe that these provisions are necessary. It is when a young person is carrying a gun in public that the greatest risk of its misuse arises. It is then that the public most need to be protected. It is then that adult supervision is most required.

I know that the focus has been on what young sportsmen and women will do and on what risk they pose. As your Lordships will know, however, that is only one side of the coin. The issue is not that those who wish to behave responsibly will act improperly, but that those who can remove things from them might act improperly. Indeed, many young people already have the benefit of an accompanying adult.

I say straightaway that I recognise the efforts of the noble Lord, Lord Moynihan, and all the attempts to formulate an exception to the requirement to assist responsible young shooters. I very much take into account what was said by all three noble Earls, Lord Shrewsbury, Lord Peel and Lord Attlee. I think that the noble Earl, Lord Peel, asked the Government to be reasonable and practicable and to show respect for the responsible. However, we believe that we are doing exactly that.

The very conditions posited by the noble Lord, Lord Moynihan, while not foolproof in themselves, would in combination make it difficult for anyone wanting to misuse an air weapon. We concede that. However, the same raft of conditions would also be difficult for the police to enforce. A complex exception like this would effectively undermine our efforts to tackle the increasing problem of air weapon misuse. It is perfectly reasonable to expect a young person aged 16 and below to be supervised by an adult when carrying a gun in public. As I say, I hope that that already happens in most cases. Where: it does not, it will be necessary to modify that behaviour. That may cause some inconvenience but we do not think it will be of such gravity that it will imperil the sporting community in this country. Our young shooters are extremely good; they are responsible and the adults who guide them take that responsibility seriously. We believe that these provisions will constitute a balance.

We looked very carefully at the issue. As I said on a previous amendment, many argued very strongly indeed that we should not have the exception on private land, that the measure should not be permissible in the way that we have now crafted it, and that we should just expunge it. That view was expressed and the Government have been robust in saying that we want a medium way forward. I am grateful for the acknowledgement of how far the Government have listened to all the issues. However, we have to listen to both sides of the argument, not just one, in order to get a proportionate and balanced response. We believe that we now have that proportionate response. We have sought to take into consideration all the factors and have come up with a workable solution with which ACPO members and the public can be content. We have a safe and proportionate response.

Lord Moynihan

My Lords, I am deeply grateful to noble Lords who participated in this debate. I am particularly grateful to my noble friends, to the noble Lord, Lord Pendry, who is always a wise voice in the world of sport, and to the noble Lord, Lord Addington, whose perceptive comments will, I hope, carry his colleagues through the Lobby in favour of Amendment No. 76.

All the issues have been covered in depth. I believe that these amendments are satisfactory in terms of being balanced and addressing all the issues. Very regrettably on this occasion I am not persuaded by the Minister. Having listened carefully to colleagues, I shall withdraw Amendment No. 71 and not move Amendments Nos. 72, 73, 74 and 75. However, I shall wish to seek the opinion of the House on Amendment No. 76. I beg leave to withdraw Amendment No. 71.

Amendment, by leave, withdrawn.

[Amendments Nos. 72 to 75 not moved.]

Lord Moynihan moved Amendment No. 76: Page 36, line 34, at end insert—

(5) It is not an offence under section 22(4) of this Act for a person of or over the age of fourteen to have with him an air gun or ammunition in a public place provided that—

  1. (a) the air gun or rifle is so covered by a securely fastened gun over that it cannot be used;
  2. (b) the gun cover is securely locked and the key kept eparately from the gun;
  3. 568
  4. (c) the air gun or rifle pellets are carried separately from the gun;
  5. (d) the person is travelling directly to or from a place at which he can lawfully use the air gun or where it has been kept on his behalf.""

The noble Lord said: My Lords, I wish to test the opinion of the House on Amendment No. 76.

5.43 p.m.

On Question, Whether the said amendment (No. 76) shall be agreed to?

Their Lordships divided: Contents, 119; Not-Contents, 122.

Division No.2
Addington, L. Kingsland, L.
Alexander of Weedon, L. Laing of Dunphail, L.
Anelay of St Johns, B. Lester of Herne Hill, L.
Arran, E. Linklater of Butterstone, B.
Astor of Hever, L. Liverpool, E.
Attlee, E. Livsey of Talgarth, L.
Avebury, L. Lucas, L.
Biffen, L. Luke, L.
Blackwell, L. Lyell, L.
Blatch, B. McColl of Dulwich, L.
Bridgeman, V. MacGregor of Pulham Market,
Brooke of Sutton Mandeville, L. L.
Brougham and Vaux, L. Mackie of Benshie, L.
Byford, B. Maddock, B.
Campbell of Alloway, L. Mallalieu, B.
Carnegy of Lour, B. Mancroft, L.
Cavendish of Furness, L. Miller of Chilthorne Domer, B.
Chadlington, L. Miller of Hendon, B.
Colwyn, L. Monro of Langholm, L.
Cope of Berkeley, L. [Teller] Monson, L.
Crickhowell, L. Mowbray and Stourton, L.
Darcy de Knayth, B. Moynihan, L.
Denham, L. Murton of Lindisfarne, L.
Dixon-Smith, L. Newby, L.
Eccles of Moulton, B. Newton of Braintree, L.
Elliott of Morpeth, L. Noakes, B.
Elton, L. Northbrook, L.
Fearn, L. Northover, B.
Feldman, L. O'Cathain, B.
Fookes, B. Onslow, E.
Fowler, L. Palmer, L.
Freeman, L. Park of Monmouth, B.
Gardner of Parkes, B. Parkinson, L.
Gilmour of Craigmillar.L. Pearson of Rannoch, L.
Goodhart, L. Peel, E.
Goschen, V. Pendry, L.
Gray of Contin, L. Perry of Southwark, B.
Hanham, B. Phillips of Sudbury, L.
Hanningfield, L. Pilkington of Oxenford, L.
Hanson, L. Platt of Writtle, B.
Harris of Richmond, B. Plummer of St. Marylebone, L.
Hayhoe, L. Rees, L.
Higgins, L. Renton, L.
Hodgson of Astley Abbotts, L. Roper, L.
Hooper, B. Rotherwick, L.
Howe, E. Ryder of Wensum, L.
Howe of Aberavon, L. St John of Fawsley, L.
Howe of Idlicote, B. Saltoun of Abernethy, Ly.
Hunt of Wirral, L. Sanderson of Bowden, L.
Hurd of Westwell, L. Seccombe, B. [Teller]
Jacobs, L. Selsdon, L.
Jellicoe, E. Sharp of Guildford, B.
Jenkin of Roding, L. Sharpies, B.
Shrewsbury, E. Waddington, L.
Simon of Glaisdale, L. Wakeham, L.
Smith of Clifton, L. Walmsley, B.
Steel of Aikwood, L. Walpole, L.
Strathclyde, L. Warnock, B.
Thomas of Walliswood, B. Weatherill, L.
Trumpington, B. Wilcox, B.
Acton, L. Howie of Troon, L.
Ahmed, L. Hoyle, L.
Alli, L. Hughes of Woodside, L.
Amos, B. (Lord President) Hunt of Chesterton, L.
Ampthill, L. Hunt of Kings Heath, L.
Andrews, B. Janner of Braunstone, L.
Archer of Sandwell, L. Jay of Paddington, B.
Ashton of Upholland, B. Jones, L.
Bach, L. Kennedy of The Shaws, B.
Barnett, L. King of West Bromwich, L.
Bassam of Brighton, L. Layard, L.
Beaumont of Whitley, L. Lea of Crondall, L.
Bernstein of Craigweil, L. Lipsey, L.
Billingham, B. Listowel, E.
Blackstone, B. Lofthouse of Pontefract, L.
Blood, B. McCarthy, L.
Borrie, L. Macdonald of Tradeston, L.
Brett, L. McIntosh of Haringey, L.
Brooke of Alverthorpe, L. McIntosh of Hudnall, B.
Brookman, L. MacKenzie of Culkein, L.
Burlison, L. Mackenzie of Framwellgate, L.
Campbell-Savours, L. Marsh, L.
Carter, L. Masham of Ilton, B.
Christopher, L. Mason of Barnsley, L.
Clark of Windermere, L. Massey of Darwen, B.
Clarke of Hampstead, L. Merlyn-Rees, L.
Clinton-Davis, L. Morgan, L.
Cohen of Pimlico, B. Morris of Aberavon, L.
Corbett of Castle Vale, L. Morris of Manchester, L.
Craig of Radley, L. Orme, L.
Crawley, B. Parekh, L.
David, B. Patel of Blackburn, L.
Davies of Coity, L. Pitkeathley, B.
Davies of Oldham, L. [Teller] Plant of Highfield, L.
Desai, L. Powell of Bayswater, L.
Dixon, L. Prys-Davies, L.
Donoughue, L. Radice, L.
Dormand of Easington, L. Randall of St. Budeaux, L.
Dubs, L. Rendell of Babergh, B.
Elder, L. Richard, L.
Evans of Parkside, L. Rooker, L.
Evans of Temple Guiting, L. Sawyer, L.
Evans of Watford, L. Scotland of Asthal, B.
Farrington of Ribbleton, B. Sheldon, L.
Faulkner of Worcester, L. Simon, V.
Filkin, L. Stem, B.
Finlay of Llandaff, B. Strange, B.
Gale, B. Symons of Vernham Dean, B.
Gavron, L. Taylor of Blackburn, L.
Gibson of Market Rasen, B. Temple-Morris, L.
Goldsmith, L. Thornton, B.
Gordon of Strathblane, L. Turnberg, L.
Goudie, B. Turner of Camden, B.
Gould of Potternewton, B. Warner, L.
Graham of Edmonton, L. Watson of Invergowrie, L.
Grocott, L. [Teller Wedderburn of Charlton, L.
Harrison, L. Whitaker, B.
Haskel, L. Whitty, L.
Hayman, B. Wilkins, B.
Hilton of Eggardon, B. Williams of Elvel, L.
Hollis of Heigham, B. Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.53 p.m.

[Amendments Nos. 77 to 80 not moved.]

Clause 45 [Prohibition of certain air weapons]:

The Earl of Shrewsbury moved Amendment No. 81: Page 37, line 21, leave out from "subsection" to end of line 24 and insert "(l)(c) insert— (d) any air weapon which—,

  1. (i) either has a barrel less than 30 centimetres in length or is less than 60 centimetres in length overall, and
  2. (ii) uses, or is designed or adapted for use with a self contained gas cartridge system, or
  3. (iii) is readily convertible to fire ammunition capable of discharging a missile by the force of gunpowder or a like propellant.

(1ZA) In this section—

  1. (a) a self contained gas cartridge is a single unit containing a propellant charge of air or carbon dioxide, a valve or other device for releasing the charge, and a propellant together with a projectile;
  2. (b) the term "readily convertible" has the meaning ascribed to it in section 1(6) of the Firearms Act 1982 (c. 31) (control of imitation firearms readily convertible into firearms to which section 1 of the 1968 Act applies).""

The noble Earl said: My Lords, in moving Amendment No. 81 I shall speak also to Amendments Nos. 84 to 87 and 89 to 91, particularly Amendment No. 91. Noble Lords will be aware that I declared my interest earlier.

Although the British Shooting Sports Council and the Gun Trade Association wholeheartedly support the Government's efforts to introduce legislation to target the abuse of airguns, the proposed powers that the Government intend to give themselves in Clause 45 represent a real, significant and dangerous shift of power into the hands of Ministers. That indiscriminate approach to imposing firearms controls is, to put it quite bluntly, somewhat autocratic. Ministers' attitude on the issue has been to try to solve the problem by introducing the power to ban any airgun deemed especially dangerous.

There is a real concern in the shooting community that the power proposed by the clause would eventually be used to ban a wide range of airguns, leading to the somewhat perverse situation in which controls on airguns could be far more stringent than those on Section 1 firearms. The Minister must surely agree that that arrangement would be totally illogical, and would create a considerable imbalance in the law. The risk of the powers being used in an indiscriminate way outweigh the Government's wish for the powers to be unconfined.

Amendments Nos. 81 and 89 seek to limit the order-making powers only where necessary to deal with the problem identified; namely, easily convertible air-cartridge systems. I acknowledge the Minister's comments in Committee that it would not make sense to restrict the Government to what is presently known to be the problem. However, the fact remains, as my noble friend Lord Dixon-Smith emphasised in Committee, that in all likelihood criminals using a sawn-off gas-powered air rifle would be unthinkable. It would be an inefficient and useless weapon for criminal purposes. Given the proposal to license rather than ban outright Brococks, which are much more suitable for criminal use when converted to fire live ammunition, it is surely undeniable that the Government's; position is unbalanced.

I am aware that my noble friend Lord Peel will address Brococks and other air-cartridge system airguns when he speaks to Amendment No. 91. However, I wonder whether the Minister has seen today's article on Brococks in the Evening Standard. If not, I draw her attention to it. It is ample and powerful evidence that the Government's plans for a partial ban will not do the trick. The only sensible way forward to protect the safety of the public in the matter is a complete ban on those weapons, and with full compensation. The argument in support of such a course of action is overwhelming.

Finally, I simply want to make two points. First, if Her Majesty's Government honestly feel that people are not responsible enough to hand their airguns in to the authorities, surely those very people are not responsible enough to hold a Section 1 firearms certificate. Secondly, if, as the Government propose, such airguns may be held by individuals on a Section 1 licence—if such persons are deemed to be responsible enough to possess the airguns—does it not follow that the shooting fraternity should be allowed their target handguns back under the very same premise? I leave the Minister with that thought. I beg to move.

The Deputy Speaker (Lord Haskel)

My Lords, if Amendment No. 81 is agreed, I will not be able to call Amendment No. 82 because of pre-emption.

Lord Dixon-Smith

My Lords, I have tabled Amendments Nos. 82, 83 and 88, but there is no need for me to detain the House for more than a few moments. My amendments run in parallel with those of my noble friend Lord Shrewsbury, and I support everything that he said. There is no point in my repeating it. The provisions illustrate again what I would call the scatter-gun approach of legislation on the subject. The amendments provide considerably more precision on any effects.

Earl Peel

My Lords, I support the amendment, but I shall restrict my remarks principally to Amendment No. 91, which seeks to replace a licensing scheme for Brococks with a compensation scheme and outright ban. That highlights the willingness of the shooting community to target firearms misuse in a specific and appropriate fashion.

Very early in the negotiations between the Home Office and the gun trade on Brococks, it became manifestly clear that it would not be possible to modify that type of gun in such a way that criminals could not convert them into live firing handguns. The fact that the Government fully accept that to be true would put Ministers under an obligation to ban the weapon rather than opt for an overly bureaucratic and expensive licensing system. I emphasise that such a system would not only provide a financial disincentive to Brocock owners to obtain a licence, but allow those readily convertible guns to get into wider circulation and be used in a way contrary to the aims of the Bill. I do not believe that that is the intention of Ministers. However, that is what will happen if the Government do not accept these amendments, in particular Amendment No. 91.

Compensation schemes are not new. They were well used in two previous Acts on firearms prohibition. What is important is that these amendments demonstrate a genuine willingness by the shooting community to come forward with a genuine and realistic option to deal with a recognised problem. In view of the considerable sacrifice by shooters to work with the Government by dispensing with these problematic firearms, and in the same breath eliminating the need for additional bureaucratic licensing systems, which I am sure the Minister would be only too willing to welcome, I hope that she will look favourably at the sensible compromise provided in the amendment put forward by my noble friend.

6 p.m.

Baroness Scotland of Asthal

My Lords, I am grateful for the way in which the noble Earls, Lord Shrewsbury and Lord Peel, have sought to support the amendment and for the comments made by the noble Lord, Lord Dixon-Smith. I say to the noble Lord, Lord Dixon-Smith, that we do not have a scatter-gun approach. We have a highly focused, targeted approach but a number of noble Earls would rather our target be elsewhere. We cannot be accused of a scatter-gun approach.

It was suggested that we are taking a sledgehammer to crack a nut—more politely expressed in the contributions of noble Lords. I regret that there have been too many murders and attempted murders using these converted weapons to sustain that argument.

The Earl of Shrewsbury

My Lords, I thank the Minister for giving way. That is exactly why we want them banned entirely.

Baroness Scotland of Asthal

My Lords, we understand that, but the question is: how should we deal with them? It is true to say that these conversions are currently carried out on various types of handgun and the ammunition involved uses some kind of explosive charge. I was grateful that the noble Lord has taken on board the comments I made in Committee; namely, that we cannot prevent ever-inventive criminals seeking new and different ways. But there is a great variation in the types of rifle used and it is not always easy to classify them. I hear what the noble Lord says about getting rid of all of them, but then, returning to our earlier debate, some people will say that we are penalising the responsible for the irresponsible. Your Lordships know that the Government are loath to do that.

A revolving carbine would remain legal if we were to accept this amendment but could soon be converted to look like a conventional revolver of the type we all agree should be banned. As for confining any future restrictions to weapons which can only be converted to discharge a missile by the force of gunpowder, again, it is important to be flexible and to have available a provision which can be used in respect of any new design which might come on to the market in the future. I hope that we have no need for further recourse to these powers, but if criminals start to cast around for alternative weapons, we must be able to respond quickly and flexibly.

Amendment No. 81 also suggests a definition of a self-contained gas cartridge. We are clear that the present wording excludes systems which use CO2 bulbs and bears down only on those guns which are currently causing problems.

As regards Amendment No. 90, I know that there is a strong desire to use the proposed new power to relax the controls on expanding ammunition which have been causing some difficulties, but I believe that this is something for the forthcoming review of firearms legislation generally. That matter will be debated. We will certainly look at the issue carefully in the course of that review.

Finally, Amendment No. 91 seeks to introduce provision for a compensation scheme. It does not actually apply to the prohibition on guns using the air cartridge system, only to future orders. We have previously explained why compensation is not payable in respect of the air cartridge system. Also, we have sought to strike a fair balance between the interests of the individuals who own the guns—they can continue to keep them on a certificate—and the wider public interest. As for the future, no prudent government could commit themselves to a compensation scheme without knowing what circumstances applied.

Noble Lords opposite will want to know that we do not see Clause 45 as a means of attacking the legitimate use of air weapons. But we do need appropriate and flexible powers to deal with the problems of criminal misuse. We believe that this is what Clause 45 provides and I would ask the noble Earl to withdraw his amendment. I reassure noble Lords that we have listened most carefully. I acknowledge that we have learnt a great deal from those with whom we have been able to consult, as they have learnt from us as we shared some of the problems that may not have been fully understood. We believe that together we have made a better fist of what needs to happen and that this is where we rest. We have been grateful, and we will continue to be, to have these discussions with all those interested in the sporting and other issues.

The Earl of Shrewsbury

My Lords, I am extremely grateful to the Minister for those words. I appreciate her position and want to place on record the feeling from the shooting community that things have never been so good in the discourse which continues with government, ACPO and many others involved in regulation. We appreciate that.

I listened carefully to what the Minister said but she gave me little cause for comfort on Amendment No. 91. For once, we have the most unusual situation in which almost the whole shooting community is pressing for stronger action: for a complete ban but with full compensation on an evil little weapon which causes massive damage in the wrong hands.

As my noble friend Lord Peel said, the precedence exists in the two Acts banning handguns. People were compensated for losing those weapons. I am adamantly against the banning of anything—except in the most exceptional circumstances. I believe that these are exceptional circumstances. I shall withdraw all my other amendments but I must press Amendment No. 91.

Amendment, by leave, withdrawn.

[Amendments Nos. 82 to 90 not moved.]

The Earl of Shrewsbury moved Amendment No. 91:

Page 38, line 17, at end insert—

(7) After section 1(5) of the Firearms (Amendment) Act 1988 (c. 45) (prohibited weapons and ammunition) insert—

(6) Where an order under subsection (4) may result in a person who has lawfully owned any firearm or ammunition subject to the order being deprived of his property (whether or not a form of licence may be made available) the Secretary of State shall make a draft compensation scheme.

(7) The scheme in subsection (6) shall be laid before both Houses of Parliament as an order at the same time as the order under subsection (4) is laid, and shall be approved in draft by each House of Parliament."

The noble Earl said: My Lords, I wish to test the opinion of the House.

6.8 p.m.

On Question, Whether the said amendment (No. 91) shall be agreed to?

Their Lordships divided: Contents, 102; Not-Contents, 113.

Division No.3
Addington, L. Fowler, L.
Anelay of St Johns, B. Freeman, L.
Attlee,E.[Teller] Gardner of Parkes, B.
Avebury, L. Goschen, V.
Beaumont of Whitley, L. Gray of Contin, L.
Biffen, L. Greenway, L.
Blackwell, L. Hanham, B.
Blatch, B. Hanningfield, L.
Bradshaw, L. Hanson, L.
Bridgeman, V. Harris of Richmond, B.
Brougham and Vaux, L. Hayhoe, L.
Campbell of Alloway, L. Higgins, L.
Carnegy of Lour, B. Hooper, B.
Cavendish of Furness, L. Howe, E.
Colwyn, L. Howe of Aberavon, L.
Cope of Berkeley, L. Howe of Idlicote, B.
Craig of Radley, L. Hunt of Wirral, L.
Crickhowell, L. Jellicoe, E.
Darcy de Knayth, B. King of Bridgwater, L.
Denham, L. Kingsland, L.
Dixon-Smith, L. Laing of Dunphail, L.
Eccles of Moulton, B. Lester of Herne Hill, L.
Elliott of Morpeth, L. Linklater of Butterstone, B.
Elton, L. Liverpool, E.
Fearn, L. Livsey of Talgarth, L.
Feldman, L. Lucas, L.
Fookes, B. Luke. L.
Lyell, L. Phillips of Sudbury, L.
McColl of Dulwich, L. Pilkington of Oxenford, L.
MacGregor of Pulham Market, Platt of Writtle, B.
L. Renton, L.
Mackie of Benshie, L. Roper, L.
Maddock, B. Rotherwick, L.
Mancroft, L. Russell, E.
Masham of Ilton, B. St. John of Bletso, L.
Miller of Hendon, B. Saltoun of Abernethy, Ly.
Monro of Langholm, L. Scott of Needham Market, B.
Monson, L. Seccombe, B.[Teller]
Mowbray and Stourton, L. Selsdon, L.
Sharples, B.
Moynihan, L. Shrewsbury, E
Murton of Lindisfarne, L. Skelmersdale, L.
Newton of Braintree, L. Smith of Clifton, L.
Noakes, B. Steel of Aikwood, L.
Northbrook, L. Strathclyde, L.
O'Cathain, B. Thomas of Walliswood, B.
Onslow, E. Tordoff, L.
Palmer, L. Waddington, L.
Park of Monmouth, B. Wakeham, L.
Parkinson, L. Walmsley, B.
Peel, E. Walpole, L.
Perry of Southwark, B Wilcox, B.
Acton, L. Gould of Potternewton, B.
Ahmed, L. Graham of Edmonton, L.
Alli, L. Grocott, L. [Teller]
Amos, B. (Lord President) Harris of Haringey, L.
Andrews, B. Haskel, L.
Archer of Sandwell, L. Hayman, B.
Ashton of Upholland, B. Hilton of Eggardon, B.
Bach, L. Hollis of Heigham, B.
Barnett, L. Howarth of Breckland, B.
Bassam of Brighton, L. Howie of Troon, L.
Berkeley, L. Hoyle, L.
Bernstein of Craigweil, L. Hughes of Woodside, L.
Billingham, B. Hunt of Chesterton, L.
Blackstone, B. Hunt of Kings Heath, L.
Blood, B. Janner of Braunstone, L.
Borrie, L. Jay of Paddington, B.
Brett, L. Jones, L.
Brooke of Alverthorpe, L. Kennedy of The Shaws, B.
Brookman, L. King of West Bromwich, L.
Burlison, L. Layard, L.
Campbell-Savours, L. Lea of Crondall, L.
Carter, L. Lipsey, L.
Christopher, L. Lofthouse of Pontefract, L.
Clark of Windermere, L. McCarthy, L.
Clarke of Hampstead, L. Macdonald of Tradeston, L.
Clinton-Davis, L. McIntosh of Haringey, L.
Cohen of Pimlico, B. MacKenzie of Culkein, L.
Corbett of Castle Vale, L. Mackenzie of Framwellgate, L.
Crawley, B. Marsh, L.
David, B. Mason of Barnsley, L.
Davies of Coity, L. Massey of Darwen, B.
Davies of Oldham, L. [Teller] Merlyn-Rees, L.
Desai, L. Mitchell, L.
Dixon, L. Morgan, L.
Donoughue, L. Morris of Aberavon, L.
Dormand of Easington, L. Morris of Manchester, L.
Dubs, L. Parekh, L.
Elder, L. Pendry, L.
Evans of Parkside, L. Pitkeathley, B.
Evans of Temple Guiting, L. Plant of Highfield, L.
Farrington of Ribbleton, B. Powell of Bayswater, L.
Faulkner of Worcester, L. Prys-Davies, L.
Filkin, L. Radice, L.
Gale, B. Randall of St. Budeaux, L.
Gavron, L. Richard, L.
Gibson of Market Rasen, B. Rooker, L.
Goldsmith, L. Sawyer, L.
Gordon of Strathblane, L. Scotland of Asthal, B.
Simon, V. Watson of Invergowrie, L.
Symons of Vernham Dean, B. Weatherill, L.
Taylor of Blackburn, L. Wedderburn of Charlton, L.
Temple-Morris, L. Whitaker, B.
Whitty, L.
Thornton, B. Wilkins, B.
Turnberg, L. Williams of Elvel, L.
Turner of Camden, B. Woolmer of Leeds, L.
Warner, L. Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

6.19 p.m.

Clause 48 [Dealing with noise at night]:

Lord Whitty moved Amendment No. 92:

Page 40, line 11, at end insert—

"(5) In section 9 (section 8: supplementary), for subsection (4) substitute—

"(4) A local authority may use any sums it receives under section 8 (its "penalty receipts") only for the purposes of functions of its that are qualifying functions.

(4A) The following are qualifying functions for the purposes of this section—

  1. (a) functions under this Act, and
  2. (b) functions of a description specified in regulations made by the Secretary of State.

(4B) Regulations under subsection (4A)(b) may (in particular) have the effect that a local authority may use its penalty receipts for the purposes of any of its functions.

(4C) A local authority must supply the Secretary of State with such information relating to the use of its penalty receipts as the Secretary of State may require.

(4D) The Secretary of State may by regulations—

  1. (a) make provision for what a local authority is to do with its penalty receipts—
    1. (i) pending their being used for the purposes of qualifying functions of the authority;
    2. (ii) if they are not so used before such time after their receipt as may be specified by the regulations;
  2. (b) make provision for accounting arrangements in respect of a local authority's penalty receipts.

(4E) The provision that may be made under subsection (4D)(a)(ii) includes (in particular) provision for the payment of sums to a person (including the Secretary of State) other than the local authority.

(4F) Before making regulations under this section, the Secretary of State must consult—

  1. (a) the local authorities to which the regulations are to apply, and
  2. (b) such other persons as the Secretary of State considers appropriate."

(6)In section 11 (interpretation and subordinate legislation), in subsection (3) after "order", in the first place where it occurs, insert "or regulations".

(7) The reference to the Noise Act 1996 (c. 37) in Schedule 1 to the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/672) is to be treated as referring to that Act as amended by this section."

The noble Lord said: My Lords, in moving, on behalf of my noble friend Lady Scotland, government Amendment No. 92, I shall speak also to Amendment No. 96.

clause 48 enables all local authorities in England and Wales to issue fixed penalty notices in respect of complaints of excessive noise at night. Amendment No. 92 will allow local authorities to retain their receipts from night noise fixed penalty notices for use on any qualifying functions. That change will offer two main benefits: first, it will encourage local authorities to make more use of the night noise offence by way of fixed penalty notices; and, secondly, it will provide consistency with the proposed handling of receipts from fixed penalty notices issued for graffiti and fly-posting.

As group of amendments also allows the Secretary of State to request from local authorities for monitoring purposes information on the level and use of such income. It also provides for regulations to be made by the Secretary of State specifying which functions, in addition to those that local authorities already have, are "qualifying functions" on which receipts may be spent. That will allow the Government to consider giving additional flexibility in future in the use of such receipts by local authorities. The amendments will encourage and support the increased use of night noise fixed penalty notices with the resulting benefits for people who suffer noise from their neighbours at night.

All Government's determination to tackle the problem of fly-posting is already reflected in other clauses in the Bill. However, during earlier stages, the noble Baroness, Lady Hamwee, raised some points in relation to fly-posting and the Government have reflected on those points. Government Amendment No. 96 recognises the severity of the offence and increases the level of fines for those prosecuted under Section 224(3) of the Town and Country Planning Act 1990 from level 3 (up to £1,000) to level 4 (up to £2,500). That recognises the growing incidence of fly-posting and the need for a more punitive deterrent for those responsible for the crime.

shall also mention my view of the other two amendments in this group. Through Amendment No. 94, the noble Baroness, Lady Hamwee, seeks to remove the words "or obliterate" from Section 225 of the Act, which empowers a local planning authority to "remove or obliterate" placards and posters which, in its opinion, contravene regulations. As I said in Committee, we feel that local planning authorities should keep the option of being able to obliterate a fly-poster in cases where removal may damage the fabric of the building or structure on which the poster is displayed.

The new clause would also reduce from two days to six hours the minimum period which must elapse before a local planning authority may remove or obliterate a placard or poster where it has served notice on the person responsible for the poster of its intention to do so. It would be unfair to remove any defence from a person who stood to gain from the advertisement just because the local planning authority had posted a note requesting him to remove the advertisement within six hours. Six hours is too short a limit and it would be unsound and unworkable as it is an unreasonably small time period in which to expect the advertiser to take action.

Amandment No. 93, in the name of the noble Baroness, Lady Hamwee, would require an authorised officer proposing to issue a fixed penalty notice in respect of a minor act of graffiti or fly-posting to notify the person to whom the penalty is being given of his or her right to decline the fixed penalty. I do not believe that is necessary. It is implicit in the way that authorised officers will deal with these matters that it will be clear to the offender that refusal or failure to pay the fixed penalty notice may result in his or her being prosecuted. Issuing a fixed penalty notice is an alternative to potential prosecution, and so the person receiving one will know that he or she faces a choice: to take their chance before the courts, or to pay up. That has worked perfectly well in respect of existing fixed penalty notices for littering and dog fouling. I have every expectation that it will do so in respect of graffiti and fly-posting. I therefore cannot accept either of the other two amendments in the group in the name of the noble Baroness. I beg to move.

Baroness Hamwee

My Lords, I thank the Minister for introducing the amendment that deals with the penalty. This was the last point on which I expected the Government to move, particularly as the Minister at the previous stage made some perfectly reasonable points about the Home Office needing to see how this knocked on to other offences. I am delighted to see that the Government have acted.

On obliteration, I take the point about damage to the fabric of equipment, but legislation that allows an offender to obliterate a poster by placing another one on top of it—that is what obliteration means—does not seem to me to be a proper solution. If one allowed 48 hours for removal or obliteration, quite often the event being advertised will have taken place and the poster will have done its job. However, I shall not press those two issues. Enforcement in relation to fly-posting and graffiti needs to be looked at overall. Clearly there are still problems concerned with that.

I welcome Amendment No. 92. It is good to leave money with local authorities for them to spend. When previously we debated this matter I made a point about ring-fencing. I suppose that applies here as well. I hope that there will be enough money for that not to be an issue. I hope that the new penalties will mean that the level of fly-posting will diminish. We shall see.

One point that applies also to Clause 51 (3) concerns the language used. That subsection states: A local authority may use any sums it receives … only for the purposes of functions of its that are qualifying functions". The word "its" appears uncomfortable there. I would have expected the subsection to read "of it" or possibly "its functions", which would be easier. I do not expect a response to this point unless anyone on the Front Bench feels moved to provide one. I can see the noble Lord, Lord Evans of Temple Guiting, shifting about. I am sure he would express the matter much more elegantly than the rest of us. Such matters can be tidied up at the final stage. If parliamentary counsel and the powers that carry out that kind of tidying up and cross-referencing feel that that is an inelegant way of expressing the point, perhaps they would consider the provisions in Clauses 48 and 51(3). I thank the Government for moving on these issues.

On Question, amendment agreed to.

Clause 49 [Penalty notices for graffiti and fly-posting]:

[Amendment No. 93 not moved]

[Amendment No. 94 not moved.]

Clause 56 [Guidance]:

Lord Dixon-Smith moved Amendment No. 95: Page 45, line 29, at end insert "and may not exercise any of the powers conferred by section 54 or 55 unless and until such guidance is issued to it or it is otherwise authorised

The noble Lord said: My Lords, the Bill provides for local authorities to provide graffiti removal notices and, if necessary, in due course to set about removing the graffiti themselves, subject to notice and so on. We know that a great deal of negotiating is taking place between the Government and those who have street furniture that is all too often subject to graffiti. That is street furniture that contains sophisticated electronic equipment such as televisions, telephones, broadband and so on. The subject needs delicate handling. I commend the work of the Government and the industry to try to find a reasonable solution.

The Minister has written to me on the subject and has assured me that the general powers to use graffiti removal notices will not be applied initially except in those areas where pilot schemes are to take place. I am very grateful for that reassurance. It does much to relieve my concern.

However, I am slightly concerned about the final wording of the Minister's letter. He said that, these clauses will only come into force in 12 named local authority areas".

That is fine. He continued: The 12 pilots will operate according to the guidance, which will be developed in advance… in partnership with interested parties. At the end of the pilot period, we will use the experience of the pilot local authorities to produce a Regulatory Impact Assessment".

But he then states: This will inform decisions about commencement in the remaining authorities".

Surely, that will inform decisions about the need for amendments to the pilot schemes as, presumably, the pilot schemes will not be identical. So the wording should be wider.

Possibly, we could have tackled the matter outside the Chamber, but it would be as well to have it clarified on the Floor of the House, so that everyone knows exactly what we are talking about. That particular wording does not appear to indicate that the schemes might be modified in the light of experience, whereas I am positive in my own mind…and because I know the noble Lord well enough…that, if necessary, the pilot schemes will be adjusted before they become a universally applied scheme. I beg to move.

6.30 p.m.

Lord Whitty

My Lords, I can give the noble Lord the assurance he seeks. For the record, we shall commence these sections of the Act in 12 pilot authorities only, and we will try out the draft guidance on them. At the end of that period we will use the experience of the pilot sites to produce a regulatory impact assessment. That will do two things. It will inform decisions about amendments to future guidance, and…as I said in my letter… any subsequent commencement for all local authorities. If things need to be changed substantially, then, obviously, the commencement would be put back a little. So, certainly we will learn the lessons from those pilots, on adjusting the final version of the guidance as well as on commencement to other authorities.

Lord Dixon-Smith

My Lords, I am very grateful to the Minister for that reply. It provides me with the reassurance that I needed. More importantly, it will be reassuring to those businesses involved in this particular field. They were fairly happy with the process, but just needed that final bit of reassurance. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Whitty moved Amendment No. 96: After Clause 58, insert the following new clause—


In section 224(3) of the Town and Country Planning Act 1990 (c. 8) (offence of displaying advertisement in contravention of regulations) for "level 3", in both places where it occurs, substitute "level 4".

On Question, amendment agreed to.

Clause 59 [Sale of aerosol paint to children]:

[Amendment No. 97 not moved.]

Lord Dixon-Smith moved Amendment No. 98: Page 47, line 4, leave out "eighteen" and insert "sixteen

The noble Lord said: My Lords, Amendment No. 98 reiterates a series of arguments that I made at the beginning of the afternoon on whether 18—in this instance—is the age at which sense arrives and therefore is the age at which one is allowed to buy an aerosol spray can of paint. I do not intend to reiterate the arguments I used at the beginning of the afternoon because that should be superfluous.

The fact is that at the age of 16 one can do so many things which are characteristic of an adult. The Bill proposes that one must be 18 to purchase an aerosol spray can of paint and it makes it an offence for a retailer to sell one to anyone below that age. I cannot accept that that is reasonable. Therefore, I have tabled the amendment to change that age to 16, at which point all my earlier arguments apply. I beg to move.

Lord Whitty

My Lords, as noble Lords will recall, we had a debate on this issue in Committee. The Government indicated that they were prepared to look at it because clearly there is a crossover between the age at which this proposed prohibition would have operated and of other entitlements at 15,16,17 and 18, which are not entirely congruent with that.

We remain convinced of the need to take the tools of the criminal damage trade out of the hands of the taggers. The precise age at which that operates is obviously a matter for debate, but it is quite clear that much of it is in the age group that we are talking about. All the research and anecdotal evidence indicates that it is around that age. However, I am reasonably convinced that the age of 18 is pitching the matter a little high, particularly as the noble Earl, Lord Attlee, indicated during the course of that debate that one can drive a car at 17 but one would not be able to buy the can of spray to touch up the car, which somehow one had scraped, were one's driving to be roughly equivalent to that of most drivers at the age of 17.

I take that argument. I think there is a good argument for moving away from 18. In the circumstances, I shall not argue between 17 and 16 and I would be happy to accept the noble Lord's amendment.

Lord Dixon-Smith

My Lords, what else is there to say except that I am extremely grateful to the Minister for his reply? That is very kind of him. Many people, especially young people, will feel quite pleased about it.

On Question, amendment agreed to.

[.Amendments Nos. 99 to 101 not moved.]

Lord Dixon-Smith moved Amendment No. 102: Page 47, line 14, leave out "eighteen" and insert "sixteen

On Question, amendment agreed to.

[Amendment No. 103 not moved.]

Clause 62 [Public Assemblies]:

Lord Lester of Herne Hill moved Amendment No. 104: Page 49, line 6, leave out ""20" substitute "2"" and insert ""of 20 or more persons in a public place which is wholly or partly open to the air" substitute "compromising a significant body of persons gathered in a public place which is wholly or partly open to the air in such circumstances as to give rise to a reasonable belief falling within section 14 of the Public Order Act 1986

The noble Lord said: My Lords, in moving Amendment No. 104, which stands in my name and that of my noble friend Lady Linklater, I shall speak also to Amendment No. 104A. I have not previously spoken in any of the debates on the Bill. I do so partly because of my membership of the Joint Committee on Human Rights and the concerns that that committee has expressed about Clause 62, as it now is.

I say at the outset that I am very sorry that the noble Baroness, Lady Scotland, could not be here this evening because it was she and her advisers who very kindly met me in order to discuss this and other issues raised by the Joint Committee. Her absence prevents me from thanking her in person for the courtesy with which she and her advisers very carefully considered the points we raised. I am sure my thanks will be passed to her.

The problem that Clause 62 is designed to tackle is that in Section 14 of the Public Order Act 1986, which triggers police powers to control public assemblies, the definition of "public assembly" is numerical—it must consist of 20 or more people. The problem that that creates is that unscrupulous, mischievous or clever barrack-room lawyers quickly realise that if they assemble in groups of 19, 18, 17 or fewer, they can evade police controls under the Act.

I understand that, at a late stage during the Bill's progress through the other place, Clause 62 was inserted without anything like the proper debate. However, in its report on the clause, the Joint Committee made several points. First, it is distinctly odd to speak of two people as a public assembly. As the whole purpose of Section 14 of the Public Order Act 1986 is to allow the police to prevent serious public disorder, serious damage to public property, serious disruption to life of the community or the intimidation of people going lawfully about their activities caused by large groups of people, part of that rationale would be lost if conditions could be imposed on only two people.

The committee expressed its concern that reducing the number on whom conditions could be imposed from 20 to two could undermine the claim that they were being imposed for a legitimate purpose under the Human Rights Act 1998 and the European Convention on Human Rights—in particular, the rights to free speech and peaceful assembly. We were concerned that that would also tend to give rise to a significant risk that the powers would be disproportionately used.

We recognise that a number of safeguards for those rights would remain in place under Section 14. We drew attention to them, but we said that, although those safeguards would be important, we remained concerned about the potential "chilling effect" on freedom of association and of expression of small gatherings of private individuals if the power to impose conditions applied to groups of only two or more people, who are inherently far less likely than are groups of 20 or more to cause serious public order. So we recommended that the Government clarify the mischief at which the extension of the power to impose conditions is aimed.

I am delighted to note that the Government Bench has now been enriched by the presence of the noble Baroness, Lady Scotland. I recap by thanking her for the courteous and careful way in which she and her officials have met us to discuss the problem with Clause 62.

As I was saying, the focus of the Joint Committee on Human Rights was not just on matters of linguistics, but on the severe chilling effect that a provision that allowed the police power to control gatherings of only two or more people might have on freedom of expression and of assembly. What do I mean by "chilling effect"? It is an American phrase, meaning that those who want to gather for lawful purposes in twos, threes or fours may be deterred from doing so by a definition of public assembly as wide as "two or more people".

So the committee asked the Government to clarify the mischief and explain why existing powers under criminal and civil law could not adequately address the issue. We suggested that that would give the House the chance to consider the necessity for the clause and the proportionality of what is proposed.

I add that during the Bill's passage, an important High Court judgment has made clear that the Protection from Harassment Act 1997 can be used as the source of sweeping injunctions to prevent some animal rights extremists, for example, being able to harass people, whether in their business premises or in their homes. That is an important victory for everyone who believes that the rights to demonstrate and to free expression must be balanced against the rights and freedoms of others, especially where coercion and harassment are being used to destroy their lives and businesses. That is an important weapon.

Amendment No. 104 is intended to get away from a numerical test of two or more and to try to find a description that considers whether the body of persons is sufficiently significant to trigger the police powers. We are trying to steer a course between Scylla and Charybdis: the Scylla of too much legal certainty, on the one hand, given by a figure such as two or more— which is perfectly certain; everyone knows what "two or more" means—and the Charybdis of too much breadth.

If we choose a definition of "two or m ore", although other qualifications must be met under the Public Order Act to trigger the police powers, there may be a serious chilling effect on lawful citizens going about their lawful business, who will fear that the police in one area may be too ready to use the powers. That is why I sought to find a vaguer provision—"a significant body of persons"— which gives more protection to basic rights and freedoms.

I realise that reasonable people can disagree about the approach to the problem, but the problem is serious. One answer to the points made by the Joint Committee on Human Rights—and by me—is that the Human Rights Act 1998 will come to the rescue, because if the police abuse their powers, under the Act they are under a duty to act in a way that is compatible with the convention rights to free speech and freedom of assembly, and that we can therefore read those safeguards into the Bill.

That is true; that is always true. But whenever possible, I prefer the law—especially where basic rights and freedoms are at stake—to state clearly what should be the safeguards. It is all very well to achieve legal certainty by saying, "two or more persons"; but we achieve legal uncertainty if, to know to what the safeguards really amount, one must know what the Human Rights Act and the European Convention on Human Rights state.

That is why one way—I do not suggest that it is the only one—to tackle the problem would be to write in the notion of a "significant body of persons". I agree with those who would say that that is vaguer, but I think it would be safer. The other way is, by Amendment No. 104A, to leave out the clause altogether as being unnecessary in view of the battery of criminal and civil sanctions and safeguards that already exist.

The noble Baroness kindly wrote me a full letter. It will be important for part of it to be on public record and not simply placed in the Library. Perhaps she would also address the problem of "chilling effect", which cannot be met merely by stating how existing law may be cumbersome or ineffective. It is important not to take too many powers that will chill the opportunity for people lawfully to go about their business. I know that it will be said that the other safeguards mean that, if someone misbehaves, the police will use their powers, but not otherwise. However, there is still a problem of only two people suddenly becoming a public assembly, which seems to the committee on which I am lucky to serve to be a very odd concept. We are therefore worried about the mischief to which I have drawn attention. I beg to move.

6.45 p.m.

Lord Monson

My Lords, there is not much to be said in favour of Amendment No. 104A, as the present law clearly leaves too many loopholes about which something must be done. However, the noble Lord, Lord Lester, has made a persuasive case for Amendment No. 104. I agree with him that two is too small a number to constitute a crowd.

I think that there is a misprint in line two of the amendment, which refers to "compromising" a significant body of persons. Is it supposed to be "comprising"?

Lord Lester of Herne Hill

My Lords, it should say "comprising". I am grateful.

Lord Avebury

My Lords, since Committee stage, I have consulted police forces and lawyers who represent clients in cases of harassment by animal rights activists. I confirm, as the noble Baroness told the Committee, that the police want Section 14 of the Public Order Act to be amended. They say that activists are fully aware of the effect of the legislation as it stands and therefore have been turning up in numbers of fewer than 20 so that conditions cannot be imposed on them.

The police also say that other existing powers are inadequate. Section 42 of the Criminal Justice and Police Act 2001 has not worked because, when protesters turn up at the home address of an employee of the target company, they have time in which to intimidate and terrify that person before the police arrive. When directed to move away from the first home, they go to another one by pre-arrangement. There is then a chase around various houses in the neighbourhood, with the police always trying to catch up with the activists. The process leads to key employees resigning from companies. In extreme instances, the company may have to close.

I have figures for up to May 2003 of prosecutions in cases of activists intimidating Huntingdon Life Sciences and its suppliers. There were 31 prosecutions for breaches of Section 14 and only six convictions. Under Sections 3,4,4A and 5 of the Public Order Act, there were 202 prosecutions and 65 convictions. There were 73 prosecutions for aggravated trespass under Sections 68 and 69 of the Criminal Justice and Public Order Act, resulting in only 11 convictions. As drafted, those provisions apply only to trespass on land in the open air with the intention of disrupting lawful activity taking place on that land or adjacent land in the open air.

We will debate later the variation included in the amendment tabled by the noble Lord, Lord Dixon-Smith, which, I presume, includes premises targeted by animal rights activists who go into offices and factories seriously to intimidate workers. It seems that Section 9(1)(a) of the Theft Act 1968 has not been used, although I am indebted to SHAC for the observation that that is a much wider offence than many realise.

There were 41 cases of obstruction in relation to those activities and 31 convictions. That is the highest success rate that the police have achieved in using any law against activists. There were 13 prosecutions and five convictions for obstruction of a police constable.

All those figures tend to show that the existing armoury of police powers is not effective against well organised bodies of activists determined to prevent lawful business from operating by means of intimidation and harassment, thus supporting the case made by the noble Baroness in Committee. But the Minister responsible for science said in June that a considerable amount of legislation could be used to prevent harassment, and that perhaps it had not been used to protect companies.

Statistics for Cambridgeshire show a wide variation in the success rate of prosecutions. That may reflect the police's difficulty in framing the most appropriate charges and collecting the necessary evidence to match the increasingly sophisticated methods used by activists. There are, no doubt, even greater difficulties in other counties, where police have had little or no previous experience of that kind of activity. During my enquiries, I was glad to learn that the police college in Bramshill is at a fairly advanced stage in producing guidance on the powers available and how best to use them. Noble Lords will be interested to know that SHAC already has such guidance, which it has published on its website, for its own people.

During the previous debate on the issue, I asked the Minister about the Protection from Harassment Act. Although she did not have the information at the time, I have since ascertained, with the help of our invaluable Library, that the balance has swung effectively against intimidatory protesters.

In June, the High Court confirmed an injunction granted to HLS banning SHAC, its members and other named individuals from assaulting, molesting, harassing, threatening or pestering employees or their families, and creating 50-yard exclusion zones around the homes of employees. Any breach of such an injunction is a criminal offence. So far, it has proved to be effective in that I am not aware of any breaches.

My noble friend also mentioned that SHAC has recently turned its attention to customers, suppliers and shareholders of HLS, particularly a group of Japanese companies. Those companies have obtained a similar injunction under the Protection from Harassment Act parallel to the one previously gained by HLS itself. There is no reason to assume that it will not be equally effective for them. However, when I looked at SHAC's website this morning, the names of the five Japanese companies were still listed as "targets", and the so-called "evidence" against them was still being published there. Perhaps the noble Baroness will venture an opinion on whether that might constitute a criminal breach of the injunction against SHAC in respect of those companies.

What about the small firms dealing with HLS that cannot afford the hefty legal fees needed to get such an injunction? Do they need the protection that the clause would afford? Is it necessary to apply Section 14 potentially to any gathering of two people, rather than having a more narrowly aimed provision limited to the firms and individuals that have commercial dealings with HLS?

Undoubtedly, the tactics used by SHAC demand some further measures, but I think that the Government's approach is wrong. My noble friend has proposed an alternative, but we need a comprehensive review of all the available legislation, including the Protection from Harassment Act, so that an injunction might be granted, on the basis of a second application by a person trading with a given enterprise, to all persons or organisations dealing with that enterprise or investing in it, where it was apparent to the court that the purpose of those against whom the injunction was sought was to bring the lawful work of that enterprise to a stop. Under that proposal, when the Japanese companies applied, it would have been open to other victims of animal rights activists to ask the court to extend the injunction to all of them. Without such provision, every company or individual trading with HLS would have to ask for separate injunctions, when the clear purpose of SHAC as openly stated on its website is to attack everyone who trades with HLS, picking them off one by one. Further provision should apply not only to named individuals, but to any person who engages in an activity of the kind mentioned in the injunction following notice served on him by the senior police officer present. That would mean that, to stop somebody from harassing, intimidating or pestering employees of the target company, the police would not have to verify that he was a member of SHAC or one of the persons named in the original injunction.

On its website, SHAC claims not to be involved in activities of a criminal nature such as arson, attacks on companies' websites and threatening letters. However, the knowledge of what happens to anyone who ignores its warnings means that a visit to the supplier's premises and menacing behaviour, although unlikely to result in prosecution let alone conviction, is often enough to persuade the supplier to stop trading with HLS. A Section 14 order would not hinder that type of activity or dam the flood of e-mails, faxes and letters used to bring pressure to bear on companies and their directors.

Of course, everyone should be concerned with the ethical issues arising from the use of live animals for research, but the right approach is an informed discussion of the type initiated recently by my noble friend Lord Smith of Clifton on the report of the Select Committee on Animals in Scientific Procedures.

SHAC wants to eliminate discussion, slicing through complicated ethical dilemmas and putting an end to research that saves tens of thousands of human lives. We need to strengthen the law so that companies engaged in or connected with this work can continue without the unremitting molestation of them and some of their employees. Let us tune what we do to the specific threat, not extend the powers of the police to impose conditions on gatherings of two or more people.

7 p.m.

Baroness Scotland of Asthal

My Lords, I thank the noble Lord, Lord Lester of Herne Hill, for his comments. I apologise for not being here for the first word or two that he uttered, but I had the benefit of a very good discussion with him prior to today. I also thank the noble Lord, Lord Avebury, who gave graphic examples of why this is such a difficult and complex issue. If I may say so, he clearly demonstrated why we need this provision.

It is clear that there are a number of difficulties with Amendment No. 104 tabled by the noble Lord, Lord Lester. I worry about the use of the term "a significant body of persons" because of its imprecision, which is attractive and difficult at the same time. As he is aware, we have spoken to the Association of Chief Police Officers about his amendment. It is concerned that the amendment might leave the police with fewer powers than they already have. A court might take the view that an assembly of 25 persons was not, a significant body of persons". We could not guarantee how the amendment would work. We share the noble Lord's anxiety about getting precision and ensuring that the provision works in a sensible way, and we have examined the matter carefully.

To make it quite clear, when protesters or individuals are the subject of police actions, they should have a route to challenge those actions. We believe that Section 14 of the Public Order Act 1986 clearly requires the police to act proportionately in imposing conditions on public assemblies. Under Section 14, the police have powers to impose conditions on public assemblies, but they can use those powers only when the senior officer has reasonable grounds to believe that serious public disorder, damage to property or disruption to the life of the community might result, or that the purpose of the demonstration is the intimidation of others with a view to compelling them not to do an act that they have a right to do. Those are high tests to be met.

The conditions that may be imposed include the place where an assembly may be held, its maximum duration and the maximum number of people who may constitute it. So, the police may decide to order a group of protesters to stay in a particular area or limit their protest to four hours, for example. The worst that could happen to a group of protesters would be for the police to order them to end their protest, with the risk of arrest if the order were not complied with. In order to police demonstrations effectively—to manage them properly—the police require flexible, clear powers. They are mindful that their role is to allow peaceful protest while at the same time maintaining public order.

Section 14 provides the police with the ability to take action to negate and control the effects of an intimidatory protest without having to arrest large numbers of people, although currently that power can be exercised only in relation to groups of 20 or more. The noble Lord, Lord Avebury, is right—many protesters are becoming very sophisticated in utilising the safeguard provisions in current legislation to their advantage. The amendment of the noble Lord, Lord Lester, would impose an additional test on the police that would make it more difficult for them to use their powers. It is much clearer for a public assembly to be defined in terms of a number of people, although I accept that many will say that the provision lacks elegance and the Scylla of precision is not something that should necessarily be reflected everywhere. However, it has utility in this case.

Turning to Amendment No. 104A, I understand the concerns expressed by the noble Lord, Lord Lester, about Clause 62. However, as I explained, in order to police demonstrations effectively, the police require flexible, clear powers. The problem that the police have at the moment is that they can exercise their powers under Section 14 only when at least 20 people are assembled. Protesters such as animal rights activists know the law well and generally protest in much smaller numbers—or a larger group splits into several smaller groups to frustrate the policing of demonstrations, orchestrating them so that they do not fall foul of the provisions. Clause 62 amends the definition of a public assembly to two or more so that the police can deal with smaller groups such as intimidatory protests conducted by animal rights protesters outside the premises of targeted companies.

Although the police have powers in existing legislation to deal with individual misbehaviour, they need additional power to deal with the collective behaviour of an intimidating group. The imposition of conditions under Section 14 of the Public Order Act is often a more proportionate response to an intimidatory protest than arresting and prosecuting individuals. In the light of that explanation, I hope that the noble Lords will feel more assured.

I will now respond to additional comments made by the noble Lord, Lord Avebury, about how the Protection from Harassment Act 1997 works, because he made some important points about the use of injunctions. We welcome the more energetic use of injunctions. However, the noble Lord will recognise how difficult it has sometimes been to get them. When there is a regular protest by the same group of protesters who are harassing individual employees of a company, for example, the police may be able to use the provisions of the 1997 Act. However, they would have to have evidence that specific individuals had been harassed on at least two occasions by specific protesters. It would be difficult for the police to use this legislation in a public order situation when they needed to take immediate action to diffuse a potentially serious situation involving a group of people. The police may be able to deal with the behaviour of an individual under the 1997 Act, but not the entire group.

Lord Avebury

My Lords, the police have told me that a limitation on the use of the Protection from Harassment Act is precisely as the Minister explained but has to apply to named individuals. I suggested— for future consideration, obviously—a wider scheme that would allow such an injunction to be extended to anyone who perpetrated acts of the type that we have seen against the suppliers of HLS, or investors, auditors and so forth.

Baroness Scotland of Asthal

My Lords, one could consider that issue in the context of amending the Protection from Harassment Act 1997. All I would say is that experience of how injunctions work at the moment shows that they must be specifically targeted on individuals for reasons of enforcement. Often, the consequence of breaching an injunction is committal, which is a denial of someone's liberty.

It would be difficult if the injunctions were so wide that no one knew whether he was caught. I am sure that it would be argued by those who wished to evade the issue that the injunctions had not been targeted on them; that they were not named individuals; that they did not have an opportunity to have their say; and that it was unjust that they should be imprisoned without a proper opportunity to know that they should have desisted from certain behaviour. There are problems with making the injunction so broad that it would catch the world at large. We would have difficulties.

Although the injunctions give protection to the employees of the companies, I am not sure that they can be a replacement for the powers of the police to deal with small assemblies. First, the injunctions that we already know about were granted on several grounds. Only one was based on intimidatory protests outside company premises. Secondly, the injunctions must be applied for by the companies. As the noble Lord, Lord Avebury, rightly said, it is all right for companies that can afford to take such proceedings, but we must consider how we can protect companies that are not so financially advantaged.

Lord Lester of Herne Hill

My Lords, could not the Attorney-General bring a public interest injunction, based on the Protection from Harassment Act?

Baroness Scotland of Asthal

My Lords, I hear what the noble Lord says. I suppose that one could consider that, but the point of the provisions is to give the police the flexibility and clarity that they need to address the issues on the ground as they happen. That is the security that the provisions give. It is a quick, well targeted response to a problem.

The companies that have injunctions in place have some protection, but there are many that do not. I do not dismiss the noble Lord's suggestion out of hand, but, even if one were to take it up, it would take time for the Attorney-General to consider the papers, consider whether such an injunction would be right and then to act. If we wanted a quick solution, that would leave it too late. It is important to have the sort of protection that will make a difference with small, intimidatory groups.

Unless and until we have a better solution, this appears to be the best that we can do. I understand what the noble Lord said about the numbers, but we have a difficult problem here. We think, having gone all round the houses, that this is about the only way in which we can grapple with the problem in a way that is proportionate. What the noble Lord said about the Human Rights Act 1998 is right. He will know that we are trying to create a culture that imbues the system so that it influences everything that the police do, whether it relates to anti-social behaviour, criminal justice legislation or sexual offences legislation. In our relationships with people, it should be like breathing.

I hope that noble Lords will find that helpful. For the benefit of any noble Lord who wishes to read the detail, I have placed in the Library a copy of the contents of the letter that I sent to the noble Lord, Lord Lester of Herne Hill.

7.15 p.m.

Lord Lester of Herne Hill

My Lords, I am grateful to everyone who took part in the debate. I am especially grateful to the Minister for the way in which she handled discussion before this evening and for the careful way in which she replied to the debate. I keep a motto in my chambers—a statement by a great American judge—to remind me of the danger of being too certain of anything: The spirit of liberty is the spirit which is not too sure that it is right". I suspect that the Minister and I are not too sure about what is right.

Everyone in the House agrees on the aim, and we are all attempting to find the best means of achieving it. I understand the cogent and convincing argument made by the Minister. That is the first time in our debates that we have had the benefit of the full argument. I am sure that the Joint Committee on Human Rights will be grateful for that.

If the police service behaves in the way in which the Minister says that it should behave—proportionately and by ensuring that there is no chilling effect through the unnecessary use of the powers—the powers may be an important safeguard, in addition to the civil sanctions. However, it is worth putting it on record that one of the reasons why we are in the difficulty that we are in is that those who have been harassed and intimidated by bodies such as SHAC have not sought to use the powers in the Protection from Harassment Act in civil proceedings, as they ought to have done. I deplore particularly the fact that a big firm of international accountants caved in without a struggle. Even the Huntingdon laboratories, for which I have the greatest sympathy, ought to have used that obvious legal tool and the common law. I am astonished that the torts that the courts fashioned long before the Protection from Harassment Act—such as intimidation—have not been used.

It is worth considering whether public interest injunctions should be sought by the Attorney-General, either to keep the heat and expense off little companies that cannot do so on their own for various reasons or in the wider public interest. As the guardian of the public interest, the Attorney-General could provide a valuable service in getting wide injunctions of the kind that were granted in the recent case. As the noble Baroness indicated, the sanctions for breach of those injunctions are draconian: people go to prison for contempt of court. That is a very effective sanction.

I think that I agree with the noble Baroness rather than with my noble friend Lord Avebury that there is a danger in having impersonal injunctions against the world at large because of the lack of legal certainty. It would have a different kind of serious chilling effect, and 1 would prefer to see the Law Officers intervening in the public interest, especially to protect vulnerable companies in the way that I suggested.

Having said all that, I repeat my expression of gratitude to the Minister and her department for having taken the issues so seriously. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 104 A not moved.]

Clause 64 [Aggravated trespass]:

Lord Dixon-Smith moved Amendment No. 105: Page 49, line 32, leave out subsection (2) and insert—

(2) In section 68 (offence of aggravated trespass) the following subsections shall be substituted for subsections (1) and (2)—

  1. "(1) A person commits the offence of aggravated trespass if he trespasses on land and, in relation to any lawful activity on or taking place on that or adjoining land does there anything which is intended by him to have the effect—
    1. (a) of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity,
    2. (b) of obstructing that activity, or
    3. (c) of disrupting that activity.
  2. (2) Activity on any occasion on the part of a person or persons on land is "lawful" for the purposes of this section if he or they may engage in the activity on the land without committing an offence or trespassing on the land, and for the purpose of subsection (l)(b) and (c) above, the offence may be committed whether or not the person or persons who may engage in the lawful activity are physically present on the land when a person does anything intended by him to have the effects referred to in those subsections.""

The noble Lord said: My Lords, Amendment No. 105 deals with the problem that the noble Lord, Lord Avebury, touched on during the debate on Amendment No. 104: the vexed issue of protecting the interests of those who have legitimately been involved in growing genetically modified crops.

The case of Tilly v The Director of Public Prosecutions seemed to reveal a loophole in the law that surprised all of us. A demonstrator who uprooted GM trial crops escaped conviction for aggravated trespass on the ground that the farmer who had grown the crop was not present and had to be present for the offence to be committed. That cannot make sense. During the previous debate, I wondered whether the powers in Clause 62 could apply in such an instance. I would be interested to hear what the noble Baroness might have to say about that.

The amendment would remove the anomaly that I described. I acknowledge that it would apply to any legal activity, and it could be argued that the provision would cover field sports and other activities that could be interrupted by protesters.

As the noble Baroness indicated, protestors have become adept at interpreting the rules to make it difficult for them to be touched by the law. That is not satisfactory. It does nothing for either the country's progress or society's progress that perfectly legitimate activities can be totally disrupted. The work of anyone taking part in any experimental programme in agriculture nowadays is vulnerable. That is not in the interests of any of us. I beg to move.

Lord Avebury

My Lords, there is something in what the noble Lord, Lord Dixon-Smith, has said. Having spent a long time looking at the SHAC website and having studied reports of some of its activities, I observe that its practice has been to enter the offices or factories of target companies. It says that that renders it immune from the provisions of the 1994 Act, which refers only to activities on land and in the open air. As I understand him, the noble Lord, Lord Dixon-Smith, has taken those provisions and extended them so that they apply to the same intimidatory or disruptive activities when they take place in enclosed premises as if they had been in the open air. If that is the case, and I have understood him correctly, we would give that support.

Lord Lester of Herne Hill

My Lords, I must confess that I have serious reservations with what is here proposed, although I entirely sympathise with the aim. Wherever possible, my general approach is that one should avoid using criminal law if civil-law sanctions will do the job perfectly well. The law of trespass is primarily a law created to protect property and the person in the civil law field. Sometimes one has to use the criminal law in aid of that as well. I am troubled that the width of what is proposed is disproportionate and that the better approach is the one that I advocated in the previous debate on my amendment— namely, a much wider use of civil injunctions rather than extending criminal law in this way.

I do not know whether the police service would welcome that. As with family disputes, which the Minister knows much more about through her law practice than I, one finds that the police do not wish to get involved in those kinds of disputes. In this area, I would worry about the use of criminal law in a wider sense. So I would have some reservations, while sympathising with the amendment. But I shall be very interested to hear the Minister's response.

Baroness Scotland of Asthal

My Lords, perhaps I may say straight away that I recognise that, although the noble Lord's amendment does not refer to GM crops, it is targeted at the problems identified in the past in relation to prosecutions of those who damaged such crops. We recognise the need to look carefully at legislation in that area. I sympathise with the mischief which the amendment seeks to cure.

Although we sympathise, we do not necessarily think that this is the best way to do it. It is totally unacceptable for farmers going about their legitimate business to have their crops damaged. I say that very clearly. While I recognise the noble Lord's aim in amending the offence of aggravated trespass, this is not the only way of dealing with the problem. The proposal that we have just debated in relation to Clause 62, in certain circumstances, may be something that can be used. Twenty protesters were required. If the House is content, that will be reduced to two protesters, which may greatly assist the police. In terms of an office protest, that was the precise reason for Clause 64 being introduced.

We recognise the nature of the problem. It may be— I say "may be" because we have to look at this—that a better way of going forward would be to amend the offence of criminal damage. We need to look at all the options very carefully and to continue our discussions across government, with the police and other agencies on the best way forward. However, we do not want to rush into decisions without due consideration of what is the most appropriate action.

There is always a temptation to treat a Bill going through the House like a passing bus on to which one must jump in case one does not get another chance. On occasions, that is very successful. We shall turn to that later when we talk about high hedges. But it cannot be the vehicle on to which everything jumps. This is a difficult area, with which we must deal seriously and properly. We must find the best vehicle. We are not sure that this is the right bus for the provision, but we are hopeful that there may be a better bus that will come along fairly soon. We want to legislate on the issue at a later date. I hope that the noble Lord will understand our position.

Section 14 of the Public Order Act 1986, now referred to as Clause 62, could be used to deal with GM protestors. That, too, may be in our tool kit. I hope that the noble Lord will not be too disappointed. We are with him in spirit, although not on this bus.

Lord Dixon-Smith

My Lords, I am grateful to the noble Baroness for her sympathy. There is an old saying in my part of the world: an ounce of help is worth a ton of sympathy. This is a serious issue; it is a difficult problem, which will not wait for the next bus. Farmers have to plan their next year's cropping. In fact, they will have already planned next year's and the subsequent year's cropping.

If the noble Baroness had been able to say what the next bus was and when it was likely to arrive— although, given most people's bus timetables, one would still have an element of doubt in their actually arriving—

Baroness Scotland of Asthal

My Lords, the noble Lord will know that convention would never allow me to indicate anything of that sort. The timetable is never known.

Lord Dixon-Smith

My Lords, that is what gives us the problem. I am grateful to the noble Lord, Lord Avebury, for his support. I always listen to the noble Lord, Lord Lester, with great interest. He has unparalleled legal expertise in this kind of field. The noble Baroness was not absolutely clear about whether Clause 62 might assist. She said that it was possible. The reality is that pulling up a crop out in the country is not on the same scale of vexation and intimidation as protestors being in someone's garden. Therefore, unless the police have very clear guidance—which, again is not indicated—perhaps they would hesitate to use the legislation in this way.

This is something that needs to be dealt with. Because it is a matter that affects many commercial decisions, some of which have to be made in the very short term, I should like to test the opinion of the House.

7.29 p.m.

On Question, Whether the said amendment (No. 105) shall be agreed to?

Their Lordships divided: Contents, 58; Not-Contents, 133.

Division No.4
Anelay of St Johns, B. Greenway, L.
Attlee, E. Hanham, B.
Blatch, B. Howe, E.
Bridgeman, V. Howell of Guildford, L.
Brougham and Vaux, L. Hunt of Wirral, L.
Buscombe, B. Jenkin of Roding, L.
Byford, B. King of Bridgwater, L.
Campbell of Alloway, L. Laird, L.
Carnegy of Lour, B. Lyell, L.
Chadlington, L. McColl of Dulwich, L.
Chester, Bp. Mancroft, L.
Colwyn, L. Marlesford, L.
Cope of Berkeley, L. [Teller] Marshall of Knightsbridge, L.
Craig of Radley, L. Masham of Ilton, B.
Dixon-Smith, L. Miller of Hendon, B.
Eccles of Moulton, B. Newton of Braintree, L.
Elton, L. Noakes, B.
Fookes, B. Northbrook, L.
Gardner of Parkes, B. O'Cathain, B.
Gray of Contin, L. Onslow, E.
Palmer, L. Seccombe, B. [ Teller]
Parkinson, L. Selsdon, L.
Pilkington of Oxenford, L. Sharples, B.
Platt of Writtle, B. Shrewsbury, E.
Plumb, L. Skelmersdale, L.
Renton, L. Strathclyde, L.
Rotherwick, L. Waddington, L.
Saatchi, L. Walpole, L.
Saltoun of Abernethy, Ly. Wilcox, B.
Acton, L. Hoyle, L.
Addington, L. Hughes of Woodside, L.
Ahmed, L. Hunt of Chesterton, L.
Alli, L. Hunt of Kings Heath, L.
Amos, B. (Lord President) Jay of Paddington, B.
Andrews, B. Jones, L.
Archer of Sandwell, L. Kennedy of The Shaws, B.
Ashton of Upholland, B. King of West Bromwich, L.
Bach, L. Kirkhill, L.
Barker, B. Layard, L.
Bassam of Brighton, L. Lea of Crondall, L.
Bernstein of Craigweil, L. Lester of Herne Hill, L.
Billingham, B. Linklater of Butterstone, B.
Blackstone, B. Lofthouse of Pontefract, L.
Borrie, L. McCarthy, L.
Bradshaw, L. Macdonald of Tradeston, L.
Brennan, L. McIntosh of Haringey, L.
Brooke of Alverthorpe, L. McIntosh of Hudnall, B.
Brookman, L. MacKenzie of Culkein, L.
Burlison, L. Mackenzie of Framwellgate, L.
Campbell-Savours, L. Mackie of Benshie, L.
Carlile of Berriew, L. Maddock, B.
Carter, L. Mallalieu, B.
Chandos, V. Massey of Darwen, B.
Clark of Windermere, L. Merlyn-Rees, L.
Clarke of Hampstead, L. Miller of Chilthorne Domer, B.
Clement-Jones, L. Mitchell, L.
Clinton-Davis, L. Morgan, L.
Cohen of Pimlico, B. Morris of Manchester, L.
Corbett of Castle Vale, L. Newby, L.
Crawley, B. [Teller] Parekh, L.
Darcy de Knayth, B. Pendry, L.
David, B. Phillips of Sudbury, L.
Davies of Coity, L. Pitkeathley, B.
Desai, L. Plant of Highfield, L.
Dixon, L. Powell of Bayswater, L.
Donoughue, L. Radice, L.
Dormand of Easington, L. Randall of St. Budeaux, L.
Dubs, L. Rennard, L.
Elder, L. Richard, L.
Evans of Parkside, L. Rooker, L.
Evans of Temple Guiting, L. Roper, L.
Farrington of Ribbleton, B. Sainsbury of Turville, L.
Faulkner of Worcester, L. Sawyer, L.
Fearn, L. Scotland of Asthal, B.
Filkin, L. Sharp of Guildford, B.
Finlay of Llandaff, B. Shutt of Greetland, L.
Gale, B. Simon, V.
Gibson of Market Rasen, B. Smith of Clifton, L.
Goldsmith, L. Symons of Vernham Dean, B.
Gordon of Strathblane, L. Taverne, L.
Gould of Potternewton, B. Taylor of Blackburn, L.
Graham of Edmonton, L. Temple-Morris, L.
Greenfield, B. Thomas of Gresford, L.
Grocott, L. [Teller] Thornton, B.
Hamwee, B. Tordoff, L.
Harris of Haringey, L. Turnberg, L.
Harris of Richmond, B. Turner of Camden, B.
Haskel, L. Wallace of Saltaire, L.
Hayman, B. Walmsley, B.
Hilton of Eggardon, B. Walton of Detchant, L.
Hogg of Cumbernauld, L. Warner, L.
Hollis of Heigham, B. Watson of Richmond, L.
Howarth of Breckland, B. Weatherill, L.
Wedderburn of Charlton, L. Williamson of Horton, L.
Whitaker, B. Woolmer of Leeds, L.
Whitty, L.

Resolved in the negative, and amendment disagreed to accordingly.

7.38 p.m.

Lord Avebury moved Amendment No. 105A: Before Clause 65, insert the following new clause—


  1. (1) The Criminal Justice and Public Order Act 1994 (c. 33) is amended as follows.
  2. (2) In section 61 (power to remove trespassers on land)—
    1. (a) in subsection (1), after "If insert "the condition in subsection (1 A) is satisfied and";
    2. (b) after subsection (1) insert—
      • "(1A) The condition is that the senior police officer present at the scene must consult the local authority within whose area the scene is situated as to whether there is a suitable pitch for the vehicles on a relevant caravan site which is situated within the local authority's area.";
    3. (c) in subsection (9), before the definition of "common land", insert—

The noble Lord said: My Lords, we are grateful to the Government for listening to the arguments which we put to them in Committee to the effect that, in this clause, the police officer exercising the power of direction that would require travellers to leave an unauthorised caravan site should first ensure that there is somewhere else for them to go. In the government amendment, which we shall discuss in the next grouping, the officer must consult the local authority for the area as regards whether there is a suitable pitch on an official site for the travellers' vehicles. That is not wholly satisfactory because the officer is not obliged to refrain from issuing directions if the local authority states that it does not have a suitable pitch on any of its sites, and we shall have something to say about that when we come to it.

If it is the Government's view that the officer directing travellers to leave an unauthorised site should always have to consult the local authority on whether a pitch is available on an official site regardless of which Act of Parliament he happens to be using at the time, then we agree with them. It would be confusing for the police and for the travellers themselves if the officer could disregard the availability of accommodation in an area when he is acting under Section 61 of the 1994 Act but not when exercising the powers under Clause 65 of the Bill. We believe that it follows logically that when a local authority itself uses the power of direction under Section 77 of the 1994 Act, it should likewise ascertain that there is a suitable pitch or pitches on official sites in the area. That information would no doubt then be available for the magistrates if an order was sought under Section 78 of the 1994 Act.

At the moment, the powers in the Criminal Justice and Public Order Act are being used regardless of the availability of official sites in an area and regardless of the requirements of common humanity which have been described by the courts. Perhaps I may give one example. In Crawley Borough Council, the extended family of John Ross, Michael McCarthy, Wesley Maughen and others has repeatedly been evicted to the detriment of the health and education needs of the whole family. Erica Ross—John Ross's sister—has four children, aged 10, six, three and nearly two. The two older children started at Bewbush primary school on 11th September, but after they were evicted and went to Gratton Park three miles away, transport was not provided even though they were over the statutory limit from the school. Mr Maughen is awaiting a serious operation and the children of Mrs Julie McCarthy have already missed dental appointments because of a series of evictions.

On 13th October the council obtained a Section 78 order against the whole extended family, although eviction has been stayed by an application for judicial review, lodged on the family's behalf by a voluntary worker. There is a defect in Section 78 in that the magistrates have to grant the order irrespective of family circumstances, and legal aid is not available for contesting notices that have been served under Section 77.

I understand that the Minister believes that the new police powers in the Bill will provide an incentive to local authorities to provide sites. But why should they when all the powers in the 1994 Act give them what they want? If Amendment No. 105A is accepted, the powers of direction will be available to local authorities under that Act only when there have been inquiries about where those to be evicted could lawfully go, whether the action is taken under the Bill or the 1994 Act.

It would be confusing and unjust to apply different criteria where there are six or more caravans, as in Section 61 of the 1994 Act, as compared with five or fewer if the powers are to be exercised under the Bill. I acknowledge that there are anti-social travellers just as there are anti-social members of the settled population, but the provision in Section 61 of the 1994 Act wrongly confused the need to deal vigorously with minor criminality—which is said to be the purpose of the Bill—with the problem of unauthorised encampments, which demands remedies of a completely different kind.

For consistency between the Bill and the 1994 Act, the condition that there should be places available on an official site in the same area before travellers are directed to leave an unauthorised camp should apply to all these powers, whether they are exercised by the police or the local authority.

Amendment No. 105B would eliminate the penalty of imprisonment for a person who fails to comply with a direction under Section 61 of the 1994 Act. I do not know whether anyone has been sent to prison for this offence, but it would be an extraordinarily stupid use of Prison Service resources at a time when, as I mentioned during the debate on an earlier amendment, there are 74,149 people in custody in England and Wales. Even though, as the Minister said on the previous amendment, the maximum sentence in all these instances may be very rarely used by the court, the cumulative effect of having a number of offences on the statute book, each of which provides that a three-month prison sentence may be imposed, is harmful and leads to the clogging up of prisons by a large number of people serving short sentences for whom prison can do no good. I beg to move.

7.45 p.m.

Baroness Turner of Camden

My Lords, I rise to support the amendment moved by the noble Lord, Lord Avebury, and to speak also to Amendment No. 105B, with which it is grouped.

This ingenious amendment deals with a number of concerns about this section of the Bill which we voiced in Committee. I said then that we were concerned about the effect of this section of the Bill on the welfare of traveller and gypsy families. I said that I had been briefed by the Children's Society and Save the Children, of which I was for a number of years a member. My noble friend the Minister gave quite firm assurances that it was no part of the Government's intention to apply the kind of pressure that could result in children being removed and brought up as non-traveller children. We are very grateful for the assurances my noble friend gave us then and these have been duly passed on to the Children's Society and the other societies concerned.

However, a number of concerns remain. There is, as we know, a shortage of caravan sites. There is clearly a local authority responsibility and the amendment in the name of the noble Lord, Lord Avebury, attempts to deal with that. There are also amendments standing in the Minister's name with which we shall deal when we come to them, but the amendments of the noble Lord, Lord Avebury, seem to go further than those.

Amendment No. 105B, which would amend the Criminal Justice and Public Order Act 1994, goes further. It also deals with another matter of concern to us—the matter of penalties. Amendments Nos. 113 and 114, which will be debated later, deal with the provisions in the Bill which would, I think for the first time, specifically criminalise travellers who fail to comply with a direction. These provisions; turn the tort of trespass into a crime. One set of powers applies in cases of evictions from houses and another in cases of removal from sites. In one case a population is criminalised; in another it is not. The disparity between the way in which travellers are dealt with and the way in which people are evicted from houses can only strengthen the calls for the Government to deal with the matter of sites for travellers in the context of housing and homelessness legislation, bringing the need to make provision for them and the sanctions they face in line with those applying to people in houses.

The noble Lord's ingenious amendment deals both with suitable sites and penalties. The two amendments should attract the Minister's support. I hope that he will regard them as acceptable.

Baroness Whitaker

My Lords, I rise to support the objectives of these amendments. In particular, with reference to Amendment No. 105B, it is already a serious matter to criminalise, as the legislation does, an act of trespass which in other circumstances would be a civil tort, although I understand the context. At the least, a fine should be the maximum penalty.

Lord Bassam of Brighton

My Lords, the new clause suggested by the noble Lord is indeed ingenious. It would add an additional precondition to the existing power to deal with trespassers on land in Section 61 of the Criminal Justice and Public Order Act 1994.

It might be helpful if I first explain how the Government expect the new powers set out in Clauses 65 to 69 to work alongside the existing powers in Section 61 of the Criminal Justice and Public Order Act 1994. Where local authorities have provided sites and there is a suitable pitch on that site, the police will have the power to remove trespassers from unauthorised sites under the new powers in Clauses 65 to 69. Where there are no suitable pitches available, the police will be able to use their existing powers, in Section 61 of the Criminal Justice and Public Order Act 1994, to direct trespassers to leave land. These powers can be used only if reasonable steps have been taken on or on behalf of the occupier to ask the trespassers to leave, and—I think this is the important element—the trespassers have caused damage to land or to property on land, used threatening, abusive or insulting behaviour towards the occupier, or have six or more vehicles between them.

In these circumstances, the Government believe that, on balance, eviction, even in the absence of a nearby alternative site, is not just appropriate but right.

Amendment No. 105A would result in the police having to ensure these pre-conditions were satisfied and there was a suitable pitch on a local authority site available for the trespassers. In many areas, that would probably leave the police with no powers at all to evict trespassers from land, even when those trespassers have caused damage to land, have been threatening towards the occupier or, to use the phrase of the noble Lord, Lord Avebury, have been anti-social. He acknowledged that there were anti-social travellers. The Government believe that this situation would be unacceptable, and I cannot believe that that is ultimately what the noble Lord would wish to happen.

We have recognised the importance of the provision of pitches and transit sites. We established the gypsy sites refurbishment grant in 2001, as we were extremely conscious of the need to keep the network of 324 local authority authorised sites open, available for use and in reasonable condition. To date, £17 million has been competitively allocated to local authorities to upgrade their existing sites and bring unused and under-used pitches back into operation. This year—2003–04—the grant has been extended to include funding for temporary sites and emergency stopping places, as well as to continue to refurbish existing sites.

It is hoped that this extension to the grant will persuade local authorities to ensure adequate transit site provision in their areas. In March, we announced that a further £6 million over the next two years will be made available—that is, £8 million per year in each of the two years.

The Government recognise the concerns and problems with some unauthorised encampments. The Government's aim is to provide the police with an additional power to remove trespassers from land, where local authorities have made adequate site provision. We do not want to make it more difficult for the police to use their existing powers, which would be the effect of the noble Lord's amendment. That would leave landowners and communities suffering from damage to land and anti-social behaviour as a result of some unauthorised encampments.

Amendment No. 105B seeks to remove part of the penalty attached to a failure to comply with a direction so that imprisonment is not an option. The penalties set out in Clause 61(4) for the offence of failing to comply with a direction are the maximum penalties that a court can impose following summary conviction. The options available to a court range, in hierarchical order, from imprisonment, community service orders and fines through to conditional and absolute discharges.

The court is under no obligation to hand out the maximum sentences and may choose any lesser sentence, depending on the circumstances of the case. The noble Lord recognised that the most severe penalty was unlikely to be used. However, the Government believe that imprisonment should be an option for the most serious cases, although we expect that to be a very rare event. There may well be circumstances in which imprisonment is entirely appropriate.

I understand entirely where the noble Lord is coming from; I have great respect for the noble Baronesses who spoke in support of the amendment. However, we think it is right that we pursue this particular course. We think it is right that the police should have this additional power, otherwise I believe that communities will be vulnerable to continued periods of anti-social behaviour and the police will not be well placed to act to prevent that.

I hope that the noble Lord, having heard what I have said and mindful of some of the amendments that the Government intend to move later, will not press his amendment this evening.

Lord Avebury

My Lords, I am extremely grateful to the noble Baronesses Lady Turner and Lady Whitaker for their support for these amendments. They also have the backing of the all-party group on traveller law reform, the Gypsy Council and other organisations concerned with travellers. I have to tell the Minister that they will be extremely disappointed with his reply.

The Minister has told us that there will be two parallel regimes: under one, the powers of the police under the Bill can be exercised only after they have made inquiries of a local authority to ascertain whether there are any pitches on an official site in the area of the unauthorised encampment to which anybody given a direction under Clause 65 could go. Under the second regime, a power that already exists under the Criminal Justice and Public Order Act can be exercised irrespective of whether there is anywhere in the local authority area or anywhere around it for the gypsies to go.

The Minister did not even bother to comment on the example I gave him regarding the London borough of Crawley, in which an extended family had been evicted serially from a number of unauthorised sites on which it was encamped. I asked him what public interest is served by continually evicting the family from one place to another, whether it be within the London borough of Crawley—

Lord Bassam of Brighton

My Lords, just so that we have it accurately on the record, Crawley is a district council in west Sussex, not a London borough. I apologise to the noble Lord for not having responded to that particular point.

Of course I understand that there will be difficult and hard cases, and of course it is right that they are fairly considered. However, I think it is wrong to comment on individual cases of this sort in your Lordships' House. I do not know the full circumstances of the case; I obviously take on trust what the noble Lord says. However, I am sure that the local authority, working with the police and perhaps with education services and social services, will have considered the position very carefully. I know from my own experience just how difficult this can be. I had to deal with similar cases when I was leader of a local authority, and they are hard cases indeed.

Lord Avebury

My Lords, this was just one example. Does not the Minister know that this could be paralleled in 157 other local authorities where there are unauthorised encampments? The police are using, with varying degrees of severity, the powers they have under Section 61 of the 1994 Act. To what public purpose are they doing so, when it means that the lives of those families are disrupted and the children are not able to attend school? The problems of the traveller community are being perpetuated into the next generation, to say nothing of the serious health problems which occurred in this particular family and which are by no means unique. I happened to pick the borough of Crawley, but I could have chosen any one of dozens of other authorities throughout the country to cite as an example.

The Minister's claim that the Government are doing something about the problem is unsustainable. What the Government have done, as the noble Lord has explained—we will come to it, perhaps in more detail, in the next group of amendments—is to make a small amount of money available under the refurbishment grant for building new transit sites. In 2003–04, two such sites will be provided, in Darlington and in Lincolnshire. Under that provision, a total of 30 pitches will become available, compared with the 3,000 to 4,500 which have been said to be necessary over the next four years by the Government's own report, commissioned by the ODPM from Pat Ninier of Birmingham University. At that rate, there is not a cat in hell's chance for the provision that the noble Lord mentioned of £8 million a year, which is the same as in 2003–04. The Minister said that the Government were carrying forward that provision into 2004–05 and 2005–06—so perhaps another 30 pitches will be provided in each of those years on transit sites, and none whatever in permanent residential sites.

Within the time scale even of the next Parliament, it is impossible for there ever to be a local authority in which the police could legitimately exercise the powers that are conferred on them by this Bill. They will always be falling back on the Criminal Justice and Public Order Act 1994. I am very disappointed by the Minister's remarks that the powers will exist in parallel and that, wherever there are not sites, the police will continue to use Section 61 of the 1994 Act, regardless of whether there is any provision in the neighbourhood.

It is too late for me to test the opinion of the House, but I can tell the Minister that people will be very upset when they read what he has said. However, in the circumstances at this late hour, I have no option but to withdraw the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 105B not moved.]

Clause 65 [Power to remove trespassers: alternative site available]:

8 p.m.

The Deputy Speaker (Lord Lyell)

My Lords, I advise the House that Amendment No. 106 is grouped and that if Amendment No. 107 were accepted, I should not be able to call Amendment No. 108.

Lord Avebury moved Amendment No. 106: Page 50, line 17, leave out "'if and insert "that

The noble Lord said: My Lords, this is the first of the amendments to Clause 65, which ostensibly gives the police additional powers to remove travellers from unauthorised encampments but in fact does nothing of the kind, as I explained when we discussed the matter in Committee. Not one of the 157 local authorities with unauthorised encampments in their area, as at the January ODPM count, had vacant pitches on their official sites that would have been available for the purpose if the Bill had been in operation at the time. As I have just explained, not one of those authorities has any plans for building new residential sites. The total amount of provision over the next few years will be only a small fraction of that which is said to be necessary by the official ODPM report commissioned from Pat Ninier of Birmingham University.

There is a defect in the clause as originally drafted— that it is for the police officer to decide whether a suitable pitch exists. We propose instead that the local authority should be required to certify that a pitch is available before the officer issues a direction in respect of a particular caravan. That would involve not only confirmation of the existence of the vacant pitch but that it was not required for some other purpose. The local authority might require it for refurbishment, or it might be needed for somebody moving on to the site, to whom a commitment had already been made, or the authority might have to make sensitive decisions about the compatibility of those who were to be the subject of the direction with those already living on the official site to which they would move.

We are pleased that the Minister has gone some way towards accepting the argument that we put in Committee that it is for a local authority and not a police officer to assess whether there is a pitch on the relevant caravan site to which the caravans under the control of the persons being directed might move. Amendment No. 110 requires an officer to consult the district and county councils whether there is a suitable pitch for the caravan or caravans on a relevant site. It is unlikely that the officer will issue the direction if he does not get satisfactory assurances. However, we assert that to put the matter beyond doubt, and for the protection of the police from subsequent accusations that the power has been wrongfully exercised, the local authority should be required to certify in writing that it has room on an official site for the persons about to be directed.

We did not use the word "suitable", as in the government amendment, because the local authority would not be able to say that the pitches were for the caravans unless they were in fact suitable. However, we would be happy to add the word if the Government agreed to the spirit of the amendment. Obviously, we hope that the Government will accept our wording for the revised condition. However, whatever the House decides, we believe it to be wrong for the condition in the Bill to be different from the one that exists already in Section 61. I know that we have already covered that, but I have to emphasise that it will be extremely confusing for the police and the travellers to be subject to two different regimes.

The other amendment in the group is Amendment No. 113, which would eliminate the penalty of three months' imprisonment for failure to comply with a Section 65 notice. Will the Minister tell us how many people have been imprisoned for failure to comply with a notice under the 1994 Act? Has there been any follow-up to establish whether the travellers sent to prison under that Act benefited from the experience, and what effect it had on their families? We need that information before we allow further criminal penalties to be levied under the Bill. I beg to move.

Baroness Turner of Camden

My Lords, I support the amendment tabled by the noble Lord Avebury, but I also take the opportunity to speak to the amendments in my name, which are listed with this group.

Amendment No. 109 returns to an issue that I raised in Committee, but this time the wording is more specific. The intention is to ensure that families are not split up. That is part of our concern about traveller children. The family is part of the support system for children, and splitting up families can be destructive of the welfare of children involved.

The second part of the amendment deals very precisely with the whole matter of the welfare of children. In any intervention involving children, child protection and children's welfare should be the focus of the intervention. A forced eviction is a frightening and disrupting process for any child.

The noble Lord, Lord Avebury, has already dealt to some extent with Amendment No. 110, and I agree with what he said about it. Amendment No. 111 would specify that a senior police officer should mean an officer with specific training in working with travellers and ethnic gypsies, addressing race relations and child protection. I return to some of the arguments voiced in Committee. In rejecting my amendment in Committee, my noble friend the Minister suggested the need for swifter police powers, but the Government already have powers under the Criminal Justice and Public Order Act 1994 to move on anyone using threatening behaviour or causing damage, or to move on encampments of more than six vehicles.

Child protection concerns and the need for good race relations were not dealt with in the response to my amendment in Committee. Yet, in September 2003, the Commission for Racial Equality, writing to the Travellers' Law Reform Coalition, said: We also feel that it is important that police officers take a responsible approach and receive adequate training, as required by the Race Relations Act … this could then be supported by proposals for training in the guidance", which we are expecting to be issued.

Amendment No. 112 calls for the Deputy Prime Minister, following consultation with the Commission for Racial Equality and other interested parties, to issue guidance to local authorities and the police on the operation of this section of the Bill. That has important implications for race relations. On 4th October 2002, the United Nations Committee on the Rights of the Child noted: The Committee is concerned at the discrimination against children belonging to Irish and Roma Travellers. The Committee is also concerned at the existing gap between policy and effective delivery of services … In line with its previous recommendations, the Committee recommends that the State party devise … a comprehensive and constructive plan of action effectively to target the obstacles in the enjoyment of rights by these groups". The CRE has also expressed concern at the potential adverse impact on gypsies and travellers of certain sections of the Bill, in particular Part 8, and refers to the statutory duty to have due regard to the need to eliminate unlawful discrimination. The amendment makes it clear that it is for the Office of the Deputy Prime Minister, which has the lead on gypsies and travellers and unauthorised encampments, to lead on issuing guidance, rather than the Home Office.

The intention of Amendment No. 115 is to extend the defence of children to all children under 18 on site and not merely those travelling with a parent or guardian. I am returning to this amendment on Report because, possibly due to the fact that the Committee was taking place very late at night, my noble friend the Minister did not refer to it. The Bill does provide a defence for children under 18 who are in families. But as I said in Committee, some children may be travelling without a formal guardian and with no parent. That is not uncommon nowadays. As I also said in Committee, these days there are countries, particularly in eastern Europe, where Roma people suffer a great deal of persecution and harassment. Very often they may be asylum seekers who decide to send their children away, out of the way of harassment and persecution. There could very well be children who are taken care of by traveller families.

There are powers under child protection legislation, specifically the Children Act 1989, to address the needs and welfare of all children up to the age of 18. Inclusion of the wording in the Bill which we are seeking to remove would appear to negate the protection otherwise available to children under the age of 18.

I have not referred to Amendments Nos. 113 and 114 which are also in my name because they deal with penalties and they have already been dealt with, I think very effectively, by the noble Lord, Lord Avebury. I invite my noble friend to accept these amendments which we feel are entirely reasonable in the circumstances we have outlined.

Baroness Whitaker

My Lords, I support government Amendments Nos. 108 and 110 which go far to complying with the recommendation of the Joint Committee on Human Rights, of which I am a member; but I would also hope that my noble friend the Minister can supplement these by giving consideration to Amendments Nos. 109 and 115. These would prevent the risk of excluding gypsy, Roma and traveller children from the scope of the United Nations Convention on the Rights of the Child which other children enjoy.

As for Amendment No. 113, as noble Lords have said in debating Amendment No. 105B, this would be a great improvement in civil liberties. I also commend Amendments Nos. 111 and 112 relating to training and guidance which would help to defuse potentially prejudicial and traumatic situations. I hope that my noble friend the Minister will be able to meet these further concerns.

Lord Wedderburn of Charlton

My Lords, I support what has been said on very many of these amendments. I hope that we will not have another demonstration of the government policy of, "Bring'em on late and reject 'em all". That is what is happening with so many of the Bills that are supposed to come before this second House of the legislature, and we will have further examples as we go on, I suspect, through the night. I hope that the noble Lord, Lord Bassam, will actually answer some of the points that have been made. This is supposed to be a debate.

The noble Lord, Lord Avebury, has produced a manifestly unanswerable case on a number of the matters that he put. Why should not a local authority faced with a family not certify that there is another pitch to which that family and its travelling house and children can go? Why should they not? Let the Minister tell me why they should not. Why should the penalty of three months' imprisonment, challenged by Amendment No. 113, stand, advocated by the Government? Roma people are being harassed and persecuted in central Europe in an abysmal way but they find no protection in the hearts of these liberal Ministers, as indeed my noble friends are, who are put out to give a gloss to illiberal policies.

What on earth can be wrong with Amendment No. 115? If the rights of the child are as paramount as they are supposed to be in policies, why should not protection be advanced for children who do not happen at the time to be residing with a parent or guardian? Oh no, they are just travellers' children; they are just Roma children. They do not count. That is the impression that the Government will give if they do not adopt a liberal attitude on such amendments as these. I just hope that my noble friend Lord Bassam, who is not an illiberal man, will see that, whatever instructions he has received, he must be liberal on amendments of this kind regarding persecuted people. I very much hope that an exception will be made for these amendments and that some acceptable attitude will come from the Government.

8.15 p.m.

Lord Bassam of Brighton

My Lords, I rise to address the amendment proposed by the noble Lord, Lord Avebury, and those spoken to by the noble Baroness, Lady Turner.

Before I draw attention to the government amendments, which very much reflect the fact that we have listened to concerns raised in Committee, I wish to address the issue of alleged ministerial illiberality. It is not a matter of our being illiberal or hard line but of dealing with the matter in a practical way respecting the rights of settled communities as much as those of traveller communities. We are trying to strike a reasonable balance in having to sort out the muddle that this Government inherited when we came to office in 1997.

I heard what the noble Lord, Lord Avebury, said about the money that we were making available to local authorities to try to sort out local difficulties. We have made that money available and it is bringing improvements. It may not be at the pace and rate that the noble Lord would like to see, but as a former local authority leader for some 13 years I know from experience that there are no easy answers to these difficult questions. They are difficult and intractable questions. I urge noble Lords at least to adopt a reasonably practical approach to these matters and not to indulge in the rhetoric of attacking Ministers for their alleged illiberality when we are conscious and very mindful of the real problems which travellers and settled communities face in coming to terms with each other and living together.

The noble Lord, Lord Avebury, welcomed government Amendment No. 108 which seeks to ensure that before the police issue a direction for trespassers to leave land, there is an available pitch on a local authority site and that pitch is suitable. Our Amendment No. 110 puts on the face of the Bill what will happen in practice. Before giving a direction an officer will have to consult with the local authorities to enable him to assess whether a suitable pitch is available.

We shall be providing guidance to local authorities on the factors they will have to take into consideration when assessing suitability. The police will need to consider the advice of the local authority carefully before giving a direction.

We believe that these amendments provide a practical way of addressing the very real concerns raised by noble Lords without constraining the power to such an extent that it cannot be used to protect the communities that genuinely suffer—as the noble Lord, Lord Avebury, has said in the past and has repeated this evening—from nuisance and anti-social behaviour as a result of some—I underline the word "some"— unauthorised encampments.

The Government believe that Amendment No. 106 is unnecessary. In order for this power to be exercised all conditions in Clause 65 would need to apply.

Amendment No. 107 seeks to provide clarification that the local authority must certify that there is a pitch on a relevant caravan site for that person to be directed to. Government Amendment No. 110 ensures that the officer making the direction consults the relevant local authority as to pitch availability. We believe that the way in which this consultation takes place is best left to guidance rather than imposing a rigid certification regime on the face of the Bill.

Amendment No. 109 ensures that all families directed to leave the land under the new power do so to a single caravan site. While we do not wish to separate families when a direction is issued, there may be situations where it may be appropriate to split a large extended family group. Obviously there needs to be some flexibility. By adding the condition that the amendment seeks, it could ironically generate a perverse incentive for travelling families to reside in large numbers to avoid being caught by the legislation. Although I certainly acknowledge the importance of assessing children's needs, we consider that to be best left to guidance which will be issued alongside the Bill. That guidance will of course reflect best practice.

Amendment No. 111 seeks to recognise that travellers and ethnic gypsies may have particular cultural expectations that should be reflected in sensitive policing decisions. We all expect police officers to carry out their duties in conformity with the requirements of race relations legislation. However, the situation is not one that can be addressed piecemeal or is specifically related to gypsy and traveller communities, as I am sure that noble Lords will appreciate.

Lord Wedderburn of Charlton

My Lords, my noble friend has said nothing about the need for training. I did not address that in my speech, but I thought that he would deal with it. In moving the amendment, the noble Lord made a point that the specific training mentioned in the amendments had been supported by the Commission for Racial Equality and other bodies. Is the Minister saying that the evidence of those bodies is of no value, and that the Government are quite happy with the state of the police force in dealing with such matters without further training?

Lord Bassam of Brighton

My Lords, I want to put on record that training is of course important. Speaking from experience, I can say that my old local authority recognised the importance of training. Those officers who were obliged to deal with the issues were expected to receive some training. The police, who are invariably deployed to deal with and give support on occasion to local authority officers, had training appropriate to the issues.

All police officers are provided with community and race relations training as part of the police strategy. Specific training is given throughout the national police training curriculum and by a programme of force-based training and support, to put community and race relations very firmly in the operational context in which officers, and of course civilian staff, work. It is right that the training issues be addressed, but we think the matter best dealt with in guidance and through the usual training practices that local authorities and police authorities adopt.

Amendment No. 112 seeks to add a condition for guidance to be produced by the ODPM following consultation on the operation of the powers. I appreciate the importance of ensuring that all parties receive guidance on the implementation of the powers, but it is neither necessary nor appropriate to add that to the Bill. However, I give the assurance that we will consult the interested parties, including the Commission for Racial Equality, on guidance on the new powers. It will be very important for us to work closely with the Local Government Association, which is always involved in discussions and negotiations on such matters.

Amendment No. 113 seeks to remove part of the penalty attached to failure to comply with a direction. Amendment No. 114 would reduce the penalty to imprisonment or a fine, so that the person could not be subjected to both. The penalties mirror those currently available for the offence of failing to comply with a direction under Section 61 of the Criminal Justice and Public Order Act 1994. The focus of the swifter police powers is to encourage trespassers to use authorised sites instead of trespassing.

Amendment No. 115 would amend the defence available to a person under the age of 18 by removing the requirement that he must be residing with his parent or guardian. The aim of those new police powers is to provide swifter police action to deal with trespassers on land. Removing the condition for the person under 18 to be residing with his parent or guardian prevents any prosecution of anyone under 18. The provision is unlikely to be used on those under 18, as most will be living with their parents or guardians and therefore able to provide a defence.

We believe that many of the issues are best dealt with through the guidance that we will issue to local authorities and police on the powers. Given our commitment to guidance and consulting widely and extensively on the nature of that guidance, I suggest that the noble Lords who tabled the amendments do not press them, but support the government amendments in their place.

Lord Avebury

My Lords, I thank the noble Baronesses, Lady Turner and Lady Whitaker, and the noble Lord, Lord Wedderburn of Charlton, for their contributions to this short debate. No one has defended the Government's wording in the Bill or the Minister's concession as being sufficient to meet the difficulties we are trying to address.

We are grateful to the Minister for having listened to what was said in Committee. I have already acknowledged that Amendment No. 110 does part of what we wanted in providing that a suitable pitch should be available and that consultation with the local authority should precede any action to issue directions. However, the police will need only to consider that advice; they will not have to act on it. If the local authority says that no pitch is available, there is nothing in the Bill to prevent it issuing directions.

The Minister dwelt again on the extent of the improvements which he said had been introduced by the Government since coming into office in 1997 in the provision of accommodation for gypsies and he said that perhaps that was not as much as I would like to see. It is not me he has to please; it is the 3,000 families who are currently living on unauthorised encampments, together with the people whose lives are severely affected by having those unauthorised encampments in their neighbourhood. I have always acknowledged that that is the other side of the coin.

If the provision of new sites is at the rate of only 30 per annum, which is all that can be provided for the money the Government have made available, it will take 100 years before these people are accommodated in official sites. By that time, the population will have grown. Therefore, it is not me who says that the Government's efforts are inadequate; it is the Government's own report, which they commissioned from Pat Ninier of Birmingham University. The Minister did not comment on that either in respect of this amendment or the previous one.

The Minister talked about a rigid certification regime which we are seeking to impose. We say merely that when the police consult the local authority and it looks to see whether a suitable pitch, or pitches, are available, it should write a little note certifying that that is the case. This is not a rigid regime; it merely asks the local authority to put on record what it will say to the police informally if the Minister's solution is preferred. If I were the police, I would rather that the local authority had to put it in writing so that there would be no come-back if there were an argument about whether a suitable pitch had been made available.

In answer to the eloquent speeches made by the noble Baronesses, Lady Turner and Lady Whitaker, about the needs of children, the Minister said that this is all best left to guidance. Well, we see where guidance has left the children—they are the most deprived section of any in the school regime. It is universally acknowledged by the DfES and all those who have anything to do with traveller education that such children do not do well at school and do not obtain qualifications. As I mentioned earlier, the problems with the traveller community are perpetuated into the next generation because the children are never in one place for long enough to settle down at school. Nothing in the Bill will remedy that.

I am pleased to hear what the Minister said about consultation. I believe that it goes a long way towards meeting the requirement in the amendment for extensive consultation to take place with the CRE on the guidance and for officers in both local authorities and the police to receive specific training based on the guidance in how to deal with the problems of ethnic Romanies and Irish travellers. I believe that that, at least, was one positive assurance that we obtained from the Minister. However, on the whole, I was disappointed by what he said about this; amendment, as 1 was by what he said about the previous one.

I see that the noble Baroness, Lady Scotland, has returned to her place. I rather wish that she had been replying to the amendment because I took the trouble to send her fairly extensive material about the non-availability of pitches on official sites. The material also set out how the scheme in the Bill will not work because for many years the accommodation which the police would be able to access when issuing directions under this provision will not be available.

However, I can see plainly that we shall not get any further on this occasion. We shall have to postpone further discussion to forums outside your Lordships' House, where I know that organisations which represent travellers will be the first to express major disappointment at the Government's attitude. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 107 not moved.]

8.30 p.m.

Baroness Scotland of Asthal moved Amendment No. 108: Page 50, line 19, after first "a" insert "suitable

On Question, amendment agreed to.

[Amendment No. 109 not moved.]

Baroness Scotland of Asthal moved Amendment No. 110: Page 50, line 24, at end insert—

  1. (a) a police officer proposes to give a direction under subsection (1) in relation to a person and land, and
  2. (b) it appears to him that the person has one or more caravans in his possession or under his control on the land.
(3B) The officer must consult every local authority within whose area the land is situated as to whether there is a suitable pitch for the caravan or each of the caravans on a relevant caravan site which is situated in the local authority's area.

On Question, amendment agreed to.

[Amendments Nos. 111 and 112 not moved.]

Clause 66 [Failure to comply with direction: offences]:

[Amendments Nos. 113 to 115 not moved]

Lord Dixon-Smith moved Amendment No. 116: After Clause 68, insert the following new clause—


  1. (1) Where the use of a parcel of land changes and—
    1. (a) the new use requires planning permission under the Town and Country Planning Act 1990 (c. 8) and no application has been made to the relevant planning authority for planning permission for the change of use nor granted by them, and
    2. (b) the change of use creates a public nuisance;
      • the relevant local authority may take action to have the site restored to its former state.
  2. (2) If the relevant local authority decides to take action to restore a site it must serve notice of its intention on the owners and occupiers of the site.
  3. (3) If, on receipt of a notice, the owners or the occupiers of the site do not cease the unauthorised use immediately, they shall be guilty of an offence.
  4. (4) a person guilty of an offence under this section shall be liable, on summary conviction to—
    1. (a) imprisonment for a term not exceeding 6 months,
    2. (b) a fine not exceeding £20,000, or
    3. (c) both.
  5. (5) Where the owner of the site is responsible for the change of use or has otherwise permitted other persons to undertake the change of use and he takes no action to restore the site, the relevant local authority may restore the site and charge the owner for the full cost of the restoration.
  6. (6) Where the owner of the site has not authorised the occupiers of the site to change the use, the relevant local authority shall require the occupiers of the site to undertake the restoration and, if they take no action, may undertake the restoration and charge the occupiers for the full cost of the restoration."

The noble Lord said: My Lords, Amendment No. 116 would deal with a different aspect of the problem that we have now discussed at considerable length. At this hour, I shall try not to take too much of your Lordships' time.

Because of the chronic shortage of available local authority sites, it is not at all unusual for members of the gypsy community, when they find the opportunity, to take matters into their own hands. There are occasions when that is not too objectionable. They purchase a site, harden and service it in so far as they can, and a gypsy encampment ensues.

Various problems arise with that. In so doing, they are almost invariably in breach of planning regulations because, more often than not, they will not have taken the trouble to consult the planning authority in the area before purchasing the site and making use of it. That problem arises where there are planning laws, and the local authority can take enforcement action. I know of one site in my area where that has happened. It has about 30 caravans on it. It is now completely hardened and it has been there for, I believe, at least six years. The local authority has at last got round to taking enforcement action but, in my view, that is far too late.

However, there is a reason for such delay by the local authority. Disregarding the problems of planning laws, taking enforcement action is not cheap. If such action is taken, there is still the problem of what to do with the site when the gypsies are removed. Someone must pay to get rid of the hardened, serviced site because it is in the open countryside. That will be expensive and, at present, nothing can make the owner unharden the site and restore it to its original state.

Unauthorised gypsy sites are worse than that because in their initial stages they often cause serious public nuisance. The process of hardening a gypsy site is not simple. It involves a lot of additional traffic that may travel down residential roads and out into the countryside. When a gypsy encampment first arrives there is no doubt at all that it causes a deal of public nuisance and vexation. The amendment would give the local authority the power to give notice to the owners of such a site to restore it. An offence is committed if the use does not cease. That would largely remove the expenditure from the local authority.

I expect the noble Baroness will tell me that this amendment is completely wrong and completely unworkable. That may well be. I acknowledge that it has the safeguards that apply in all the earlier situations that we have heard about. In the normal situation when gypsies move on to a site, someone objects and with the objection all the official procedures come into play. However, a particular difficulty arises when gypsies own the site.

I have the greatest sympathy with the gypsy community in this matter, particularly because of the appallingly slow rate at which it is possible for local authorities to act to provide sites. The solution ought to be that gypsies provide their own sites where they can find landowners who are willing to sell them sites. At the same time, for that to happen they would need to have discussions with the local planning authority to ensure that what they want to do is acceptable. At the moment that does not happen and the result is that they cause a great deal of offence. What is worse is that in the end they get away with, in effect, a development of land that has no planning permission and which gives them an illegal advantage over the rest of the community.

That is a very real problem in this area. Although the way in which the amendment suggests dealing with the situation may not be perfect, it would deal with it. I look forward with interest to hearing the response of the noble Baroness. I beg to move.

Lord Faulkner of Worcester

My Lords, I support the spirit of the amendment of the noble Lord, Lord Dixon-Smith. I have had a number of representations from elected members, local authorities and residents about exactly this kind of problem. One that comes most to mind has occurred in the Epping Forest District Council area in Essex, where a group of travellers occupy a piece of land in an unauthorised way. The council tells me that the planning legislation is simply inadequate to deal with the problem because it is impossible to obtain the necessary injunctions and orders to seek their removal.

Another more serious case concerns a village in the Surrey Heath area where a field has been bought by a group of travellers, perfectly legally, and they have sub-divided it into 26 plots. They have fenced them in, erected gates and have sold on the plots through cash deals. The land is on a flood plain and as the level has been raised by putting down hardcore, to which the noble Lord, Lord Dixon-Smith, referred, there is every probability that the neighbouring houses will experience a flood when we have some wet weather. In that case both the borough council and the Environment Agency sought and obtained an injunction to get the travellers off the land. In April the council issued proceedings in the High Court for an application for committal as a result of the defendant then being in contempt of the court order.

On 2nd May, Mr Justice Holland said that the injunction was "being flagrantly ignored" and that he would commit any of the named respondents if any further breaches occurred before the hearing. Then, astonishingly, on 19th May, the court took no action in the face of the further breaches of the injunction and adjourned the contempt hearing indefinitely.

It appears that the only way in which the situation can be remedied and the site restored to its previous condition is for the council to go down the tortuous route of compulsory purchase. It seems to me that there is something wrong with the system if the interests of local residents, and indeed the interests of the travellers, cannot be looked after better through the planning process. It is for that reason that I support the principle underlying the amendment of the noble Lord, Lord Dixon-Smith, and I hope very much that my noble friend will be able to give us some comfort on it.

Lord Avebury

My Lords, the noble Lords, Lord Dixon-Smith and Lord Faulkner, have underlined the failure of the Tory Criminal Justice and Public Order Act, under which it was the intention that travellers— gypsies—should provide their own sites. Circular 1/94 enjoined local authorities to make provision in their planning schemes for land for that purpose.

However, in fact since the 1994 Act travellers have struggled to provide sites of their own and no local authority has stuck its head above the parapet to say, "There is a parcel of land in this area where we would welcome an application for planning permission". So, what inevitably happens is that gypsies acquire land and then apply for planning permission afterwards instead of doing it the other way around.

I am sure that if the noble Lord, Lord Dixon-Smith, reflects on the issue, he would agree with me that if a gypsy came into his local authority and asked for advice on a suitable piece of land within the area on which he might gain planning permission, he would get a fairly lusty answer. The noble Lord is nodding his head. I think that that would be the same response in any one of the hundreds of local authorities up and down the United Kingdom. So, inevitably, they acquire land in unsuitable places and ask for planning permission. Very occasionally they get it.

What the Government have failed to do—and this is something they could easily have done since 1997; it would not have cost them large amounts in resources—is at least to record how many planning permissions were asked for by gypsies for development of their own sites and their rate of success on appeals. I have repeatedly written to Ministers in the ODPM asking them to collect these statistics. They have told me that the planning inspectorate has the appeal figures, but when I asked for them to be produced the planning inspectorate says that its information is not complete and that better information is provided by private agencies which will search through all the appeals and provide it for a sum of £60 per year—an amount which the ODPM is apparently unwilling to spend.

No one wants to know, apparently, the success rate for gypsies applying for planning permission on their own land or appealing against refusal of permission. If we had that information we would know whether or not the policies introduced by the Tories in 1994, including circular 1/94, have been successful. My assertion is that they have failed because it is impossible—and I said so at the time in the debates on the 1994 Act—for gypsies out of their own resources to make up for the deficiencies in the provision of sites by local authorities.

That is the situation we face. It is no good for the Minister to say that—as he did a few minutes ago— "We have a few crumbs to throw to the gypsies for transit sites" when nothing whatever is being done about permanent sites, either in the private sector or in the provision of local authority sites.

Lord Hylton

My Lords, it is clear that the problem towards which the amendment draws our attention has arisen because successive governments and local authorities have failed to produce sufficient authorised sites where gypsies can settle and reside. However, it would be helpful to know—whether from the noble Lord, Lord Dixon-Smith, or from the Government; I do not know which—what is the scale of the problem arising after purchase of sites by gypsies. Two anecdotal instances have been cited from either side of the House, but is it much more widespread than that? I do not know; perhaps someone does.

As for the amendment, it strikes me that the penalties are on the severe side and perhaps should be reduced. I have one constructive suggestion: that the Home Office and Defra should put their heads together with the Ministry of Defence to see whether there are surplus defence sites that could be made available for the purpose under discussion.

8.45 p.m.

Lord Bassam of Brighton

My Lords, I certainly understand that the intent of the new clause is to deal with camp sites for travellers that are set up without the relevant planning permissions. However, as the amendment—and local planning authorities' existing enforcement powers—apply to travellers in the same way as to everyone else, it is best if I deal with the amendment in more general terms.

I am extremely interested in the cases drawn to our attention by my noble friend Lord Faulkner, which drew out some of the problems and deficiencies that may exist and cause problems for local communities.

I was also interested in the points made by the noble Lord, Lord Avebury, about the ineffectiveness of and some of the contradictions thrown up by the 1994 legislation. I must tell the noble Lord that I cannot answer his question about the detailed analysis of planning applications, although it is interesting. I question whether that will help us—or, at least, local authorities—in the important business of identifying sites in future. I thought that that was optimistic legislation from the Conservatives at the time and that it was extremely unlikely ever to be used.

The new clause appears to allow local planning authorities to act to restore a site to its former state where a change of use does not have planning permission and creates a public nuisance. It also makes a change of use without planning permission an offence and provides for local authorities to restore the site and recover their costs. Those proposed powers would duplicate the enforcement powers that local planning authorities already have under Part VII of the Town and Country Planning Act 1990.

The new clause also gives local authorities powers to act to have sites restored to their former glory—as I said—where a change of use does not have planning permission and creates a nuisance. Planning authorities already have powers under Section 172 of the Town and Country Planning Act 1990 to serve an enforcement notice in all cases where a breach of planning control—including unauthorised change of use—has occurred.

The new clause gives power to local authorities to serve a notice on the owners and occupiers of the site requiring them to cease the unauthorised use immediately. If they do not, they will be guilty of an offence and liable to a fine not exceeding £20,000 and possible imprisonment.

As well as powers to serve an enforcement notice, local authorities also have powers under Sections 183 and 184 of the Town and Country Planning Act to serve a stop notice, which requires the use or activity to cease immediately. So those powers exist.

Also, the new clause allows no right of appeal. We should be concerned about that on grounds of natural justice. It is also likely to be contrary to the provisions of the Human Rights Act 1998. Under Section 174 of the Town and Country Planning Act, there is a right of appeal to the Secretary of State against an enforcement notice. If the appeal is dismissed or not appealed, Section 179 of the Town and Country Planning Act makes it an offence to breach an enforcement notice. If found guilty, a person is subject to a fine not exceeding £20,000 on summary conviction or an unlimited fine on indictment.

Where the owner or occupier of a site takes no action to restore it, the new clause provides for the local authority to restore it and charge the owner or occupier the full cost of the restoration. Local planning authorities already have powers under Section 178 of the Town and Country Planning Act to enter the land, take the action required by the enforcement notice and restore the site to its previous condition. They may also recover the cost of taking that action from the owner of the site.

The new clause is not necessary, as it duplicates powers readily available to local authorities. For those reasons, I urge the noble Lord to withdraw his amendment. Having said that, I appreciate some of the points made by the noble Lord, Lord Faulkner. Clearly, careful thought has been put into the amendment tabled by the noble Lord, Lord Dixon-Smith. The Government will keep the matter under review, as with all local planning legislation in other parts of the legislative framework.

If there are specific problems of which the noble Lord does not feel that the ODPM is aware, it is open to him to draw them out to ensure that officials are apprised of any deficiencies. We need to keep a careful watch on such matters to ensure that the enforcement powers that local authorities wish to use are appropriate in all the circumstances.

Lord Dixon-Smith

My Lords, before the noble Lord sits down, if all those powers already exist, why are they not used, and what guidance might the Government have given local authorities to encourage them to use the powers?

Lord Bassam of Brighton

My Lords, I ought to declare an interest in that my partner is a planning lawyer. I know that guidance on those matters is issued and updated from time to time. Obviously, local authorities must think carefully about how they use the powers. From my own experience, I am not aware of any deficiency in the enforcement powers. It depends very much on the circumstances of each case. One is aware that difficulties can arise from time to time.

To return to the point that I made earlier, I look to the Local Government Association to draw out any persistent problems. If there are deficiencies, the noble Lord is right to draw them out. However, I am not sure that this is the right place to seek to remedy them.

Lord Dixon-Smith

My Lords, I can see why the Government should think that this is not an appropriate place to seek to put the matter right. I am grateful for the Minister's reply and the support of the noble Lord, Lord Faulkner. The noble Lord, Lord Avebury, is right to draw out the difficulties that exist; they are a great problem for everybody who tries to deal with the issue. The matter must be dealt with either by fresh guidance to local authorities to use existing powers or through a device such as a new clause. It may be that this is not the appropriate Bill for such a clause and that one should be included in a planning Bill.

The present situation is unsatisfactory. It is all very well to expect the Local Government Association to deal with the matter, but such problems occur one at a time in specific local authorities. It is therefore difficult to get the bulk of local authorities to take a specific interest in the problems of one local authority at any one time. Speaking as an old hand in local government, I am all too aware of that—as will be the noble Lord, Lord Bassam of Brighton.

I was grateful for the intervention of the noble Lord, Lord Hylton. We will never know the scale of the problem because the unofficial sites that we are discussing are not subject to any normal regulation, control or counting. That is the very reason that they are able to exist. I agree with him that the penalties suggested are on the severe side. However, as the Minister would say in these circumstances, "These are maxima".

Lord Avebury

My Lords, the unofficial sites are counted together with all sites in the January and July surveys undertaken by local authorities on behalf of the ODPM. The results of those surveys are available on the ODPM website.

Lord Dixon-Smith

My Lords, I am very grateful to the noble Lord because that answers the question asked by the noble Lord, Lord Hylton. It is most helpful. It is quite clear that we are not going to get any further with the matter tonight and it is far too late to start messing around, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Dixon-Smith moved Amendment No. 117: After Clause 68, insert the following new clause—


After section 163(2) of the Road Traffic Act 1988 (c. 52) insert—

( ) A person travelling on a highway pavement or other public area that is paved, employing anything riding on wheels, without due consideration for the needs of others must stop on being required to do so by a constable in uniform."

The noble Lord said: My Lords, this amendment would amend the Road Traffic Act 1968 to take account of a phenomenon that I suspect did not exist in any serious form when the law was passed. However, there is an increasing problem nowadays with roller-skates, skateboards and rollerblades being used on pavements and other places. One possible solution would be to agree this amendment to the Road Traffic Act so that a person travelling on wheels on the pavement—or any other paved area—without consideration must stop. They would then presumably be subject to all the other penalties that exist in the Highways Act. It mirrors what is said about traffic that is committing an offence. Presumably, other powers in the Act would be relevant. I beg to move.

Lord Bassam of Brighton

My Lords, the noble Lord should be congratulated on his persistence on this matter, if not the precision of his amendment. I do not think that it is effective in its purpose because it does not create the new offence. I will deal with it as a matter of principle.

As we have said before, the Government certainly understand the concern behind the noble Lord's amendment. Skateboarding and roller-skating can cause great delight to those undertaking the activity. I have never been able to get on to a set of roller-skates and stand up, but I have seen my children do it. However, we must recognise that such actions cause irritation to pedestrians in some specific local areas where it is done in an inconsiderate, dangerous and irresponsible manner.

The new clause would not ban all use of roller-skates on footways but, oddly enough, it would still have the effect of moving users from footways to roadways as they tried to avoid the risk of committing an offence, which we pointed out at an earlier stage in the Bill. These devices are not designed for use in traffic and displacing them on to roads would obviously be dangerous for both skaters and other road users. There are already sufficient powers to make by-laws to deal with this kind of nuisance, which would be a more precise way of tackling the problem.

Section 235 of the Local Government Act 1972 enables local authorities to enact by-laws with regard to skateboarding and roller-skating which can prohibit these activities in specific locations or regulate them throughout a district area. Already several local authorities have employed this provision to make it an offence to skateboard or roller-skate in designated areas, punishable by a fine on summary conviction.

Sufficient powers already exist, if there is a problem, and I urge local authorities to use the by-law route. I also urge the noble Lord to withdraw the amendment.

9 p.m.

Lord Hylton

My Lords, does the noble Lord accept that by-laws prohibiting an anti-social activity are not, by themselves, enough? They require enforcement. Obviously, a constable is capable of enforcing such laws, but would it not be an ideal task for the new community support officers?

Lord Bassam of Brighton

My Lords, my brief does not cover that issue, but that seems to be an eminently sensible suggestion. The noble Lord is right: enforcement is the key. By-laws have usually been carefully worked out in consultation with the police. I expect that a local authority seeking to get a by-law in place would want to talk urgently to the local police service to ensure that enforcement was possible. I would urge them to do exactly that.

Lord Dixon-Smith

My Lords, I am grateful to the noble Lord, Lord Hylton, and to the noble Lord, Lord Bassam of Brighton, for his response. I should point out that Section 163(2) of the Road Traffic Act 1988 does not create the offences that the noble Lord is complaining about. It deals with the right to stop cars and bicycles on the highway, if an offence has been committed. The offences are all created elsewhere. The amendment would add a little subsection to that section.

I shall think about what the noble Lord said. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton moved Amendment No. 118: After Clause 69, insert the following new clause—

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