§ 8.1 p.m.
§ The Minister of State, Home Office (Baroness Scotland of Asthal)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to. House in Committee accordingly.
[The DEPUTY CHAIRMAN of COMMITTEES (The Countess of Mar) in the Chair.]
Clause 45 [Prohibition of certain air weapons]:
Lord Dixon-Smith moved Amendment No. 183:
Page 37, line 9. leave out from "subsection" to end of line 12 and insert—
(IZA) In this section—
§ The noble Lord said: In the absence of my noble friend Lord Shrewsbury I shall speak to all the amendments grouped under Amendment No. 183. Those who have taken the trouble to read the amendments will have observed that there is a remarkable degree of congruence between the amendments tabled by my noble friend and those put down by myself.
§ Air pistols and air rifles fall neatly into two categories: those that are operated by a lever-action compressor on the actual weapon and those powered by an independent, attached high-compression gas bottle. There is no difficulty with the lever-action weapon; the problem that the Bill seeks to deal with concerns gas-powered air weapons. A specific problem arises with gas-powered air pistols. I have been informed that they can be converted relatively easily into something else. In fact, they can be converted to take rimfire ammunition using an explosive charge. Of course that turns them into a weapon completely different from and separate from air weapons.
§ In order to deal with the problem, in my view the Government have taken a sledgehammer to crack a nut. They propose to deal not with the specific problem of a particular brand of air pistol, but to prohibit all gas-powered weapons. It is proposed that they should all come within the firearms regulations. So far as the particular air pistol is concerned, I accept that that is a perfectly reasonable proposition, but whether it is the best way of dealing with the issue is entirely another matter.
§ These weapons have very low value. A firearms licence costs £50, although the security measures required to keep a weapon would probably cost considerably more than that. These weapons will disappear, which may be the best solution. However, the provision is to apply equally to gas-powered air rifles. There is no reason for air rifles to disappear. If there is any fear that such weapons could be cut down and converted into a weapon that can be used with a single hand and not used as a rifle, I understand that in order to do that it is necessary to cut off the means of attaching the gas bottle. No doubt a nifty armourer could find a way of achieving it, but the game would not be worth the candle. One could go to an East End pub and get a proper firearm with less trouble- if one may put it that way.
§ The amendments in this grouping have been drafted to do two things. The first is to exclude the gas-powered air rifle so that such weapons are not brought under the provisions of the Firearms Act 1968. We do not think that that is unreasonable. The Minister will see that the amendments contain dimensions which we believe would make this a secure proposition. We do not see why the use of gas-powered air rifles should not be allowed to continue.
§ Secondly, turning to gas-powered air pistols, the particular brand that is the cause of the problem is a thing called a "Brocock". I have handled a good many 225 different weapons with the police and it has been an interesting experience, but I have not encountered this firearm.
§ I understand the wonderful and terrifying use of a sawn-off shotgun, but sawing down a rifle, which in reality is a sniper's weapon, would be an act of incredible folly and would certainly not make it a more usable weapon at close quarters, which is what criminals are mostly concerned with. A sawn-off shotgun is entirely another matter, but that is a diversion. I seek simply to make the point that a sawn-off air rifle, even if that could be done, would be a useless weapon. There would be no point in doing so. However, these pistols are a problem.
§ The amendments have two purposes. The first is to limit the effect of the Bill. They seek to take the pistols—not the rifles—out of commission by bringing them under the firearms regulations. Secondly, the effect of the final amendment and of bringing these weapons within the firearms regulations will be that the people who own them will have to get rid of them. As the Firearms Act removed ordinary handguns from general use, so this part of the Bill will have the same effect on these weapons.
§ Where people feel that it is necessary to get rid of these weapons, we believe that they should be eligible for compensation. The sums of money involved will not be large because the weapons involved are relatively low cost. We are not dealing with game guns and those kinds of weapons, which can cost hundreds if not thousands of pounds; we are talking about handguns which may cost £50 or £60.I do not know the numbers involved, but the amount of compensation in these circumstances would not be unreasonable. There should not be any difficulty because a precedent has been set by what was done with ordinary handguns.
§ That is the purpose of this group of amendments. I do not intend to go through them one by one and spell them out in detail. An outline of their purposes is sufficient. I hope that the Minister might find it in her heart to treat them with some sympathy. She has that steely glint in her grin, which means that she may well not do so. That will mean simply that we shall have to return to the matter again on another occasion. I beg to move.
§ The Deputy Chairman of Committees
I must inform the Committee that if this amendment is agreed to I cannot call Amendments Nos. 184 and 185.
§ Earl Peel
I support the amendments tabled in the name of my noble friend Lord Shrewsbury—that is, Amendments Nos. 183, 189, 191 and 193. I must declare an interest as vice-chairman of the British Shooting Sports Council.
Before I address the amendments, it is important that I should reiterate the view of all responsible shooters that the misuse of firearms must be condemned in the strongest possible terms. Nevertheless, it is very important, I hope the Minister 226 agrees, for the Government to ensure, as per their manifesto commitment to the sport of shooting, that legitimate sporting shooters do not bear the brunt of heavy-handed legislation. The Government must deliver legislation that is appropriate and proportionate.
It is my view and that of the British Shooting Sports Council that Clause 45, which aims to address the real problems of firearms misuse, deals indiscriminately with sporting shooters, who are responsible members of the community, and those who would indulge in anti-social behaviour. It is for that reason that I support my noble friend's amendments, which will be moved today by my noble friend Lord Dixon-Smith.
In so doing, it is appropriate that I should acknowledge the work of the British Shooting Sports Council, which, I am sure the Minister will agree, has worked tirelessly to resolve these issues in as comprehensive a way as possible.
Amendment No. 183 is specifically designed to reduce the order-making powers set out in Clause 45, which, as I have said, are far too wide-ranging and give the Secretary of State too much power. I am convinced that these powers could be used to ban a wide range of air weapons, perversely leading to a situation where controls on air guns could end up being tighter than the controls on other and more dangerous weapons.
Surely the correct and equitable way of dealing with such problems is to identify where the abuses are taking place and to introduce specific legislation to deal with the problem. To introduce these wide-ranging powers in a catch-all fashion shows, I suggest, a disrespect for responsible members of the shooting community. It would lead to discrimination against them and, as I have already said, go against what the Government have pledged that they would not do—to introduce legislation that would impinge on shooters.
With regard to Amendment No. 189, our laws should, in my view, reflect what is appropriate to the realities of shooting today. As well as ensuring firearms controls are designed appropriately, it is equally important to consider balancing ministerial powers to allow the Government to relax controls that serve no purpose. Amendment No. 192, which I did not specifically mention, also covers this point.
Amendment No. 191 would limit the wide-ranging power the Government are proposing to bestow on the Secretary of State to ban any air gun he or she deems to be specifically dangerous, a point that I have already raised. The amendment would limit the Government's power to deal with an identified problem.
Finally, Amendment No. 193 would replace the proposed licensing scheme for Brococks, to which my noble friend referred. I agree with him; I am not an expert in these matters and, to the best of my knowledge, have never seen or indeed handled a Brocock, but I acknowledge that they are causing the Government considerable difficulties.
It is generally accepted among holders of these weapons—and the British Shooting Sports Council feels very strongly about this—that it would be more appropriate to ban their use and offer compensation 227 instead, rather than trying to introduce this rather cumbersome, bureaucratic licensing system which the Government propose.
§ 8.15 p.m.
§ Baroness Scotland of Asthal
I thank the noble Earl, Lord Peel, and the noble Lord, Lord Dixon-Smith, for raising these issues. I appreciate the nature of their concerns and would like to take the opportunity to acknowledge what has just been said by the noble Earl, Lord Peel, that the shooting community very much agrees with us that the misuse of firearms is abhorrent. That is our starting point. The noble Earl was right to point out that there is a need for proportionality and balance. I join him in congratulating the council on its approach in working very hard to make sure that we have a system which is robust.
We have listened with great care and attention to what has been proposed, but there is the issue of balance. The Government believe that in relation to these issues, we have the balance about right. I appreciate that the amendments would restrict the proposed ban on air weapons which use the self-contained gas cartridge system to handguns only. Furthermore, I appreciate that the ban would apply only in respect of handguns which can be readily converted to fire ammunition using the force of gunpowder or other explosive material to discharge a missile. I understand the way in which they are put. But as your Lordships will be aware, the controls we propose are needed because certain types of weapons are being converted. The noble Lord, Lord Dixon-Smith, says that they should not be converted, but we know that they are being converted and used, regrettably, in an increasing number of violent criminal acts, including murder and attempted murder.
I accept that at the moment these conversions are carried out on various types of handgun and the ammunition involved uses some kind of explosive charge. But unfortunately, we know that criminals are very resourceful; if they cannot get one type of weapon, they cast around for something else which they would find of equal utility.
We considered very carefully whether the ban on self-contained cartridge systems should be confined to hand guns only, but regrettably, the problem is with the system itself and the ease with which it can be used to fire conventional bullets. How long would it be before a rifle is used in a shooting if all other types of these guns are banned?
The same applies to confining any powers to weapons which can be converted to discharge a missile by the force of gunpowder. It simply does not make sense to restrict ourselves to what is presently known to be the problem, only to find ourselves unable to act quickly when a new weapon finds favour with criminals.
Amendment No. 183, moved by the noble Lord, Lord Dixon-Smith, suggests the definition of a self-contained gas cartridge. I understand why people wish to differentiate between the type of mechanism 228 currently being converted and other systems that use CO2 bulbs. It is certainly not our intention to ban the latter, and 1 do not believe that the current definition does so.
I suspect that Amendment No. 192 relates principally to the availability of expanding ammunition, rather than anything involving anti-social behaviour and the issues that we are discussing today. I am aware that the present restrictions have caused some difficulties, but we shall shortly undertake a review of firearms legislation generally and we shall consider the issue then. We know that the current legislation in that area is about 35 years old, and a fresh eye is merited.
Amendment No. 193 would introduce provision for a compensation scheme. We are not seeking to use the order-making powers unless a particular problem arises in respect of an air weapon that is considered to be especially dangerous. As with the prohibition on the air cartridge system, we shall seek to strike a fair balance between the interests of individuals who own the guns and the wider public interest. Existing owners will, on obtaining a certificate, be able to retain them for their own use, and retailers and manufacturers will be able to run down existing stock and obtain authority to sell overseas if they so wish.
In those circumstances, we do not believe that compensation is payable in relation to the proposed ban on guns using the air cartridge system, and we would certainly not wish to commit ourselves to making a compensation scheme in future. However, I assure noble Lords opposite that in Clause 45 we intend only to act proportionately in relation to the problems associated with the criminal misuse of the air weapons. Therefore, I invite the noble Lord to withdraw the amendment.
§ Earl Peel
I should like to address the Minister on the points she made about Amendment No. 193. The British Shooting Sports Council, on behalf of people who own such weapons, is actually prepared to give them up in exchange for compensation because it acknowledges the difficulties to which the Minister has referred. Would it not be cheaper, simpler and altogether more satisfactory to decide that we should not have any more of those weapons and to pay compensation accordingly? The alternative is to have a complicated and cumbersome licensing system, which I should have thought the Government would be only too willing to dispose of in favour of our alternative suggestion. It seems common sense to go along with that.
§ Baroness Scotland of Asthal
I am tempted to say, "If only it were so". We do not have any indication that would cause us to believe that it would be the cheaper option. Noble Lords will know, too, that there is an issue as to the payment of compensation generally and more broadly. We do not believe that it would be an appropriate use of funds or that it is justified as the provisions are made. We believe that the proposals for obtaining a certificate are appropriate, as they would allow those who already have the weapons to retain 229 them and the retailers and manufacturers to sell them overseas if they so wished. We do not see that compensation would be merited.
§ Lord Dixon-Smith
I am grateful to the noble Earl, Lord Peel, for his support, and to the Minister for her reply, even though I find it, unsurprisingly, disappointing. The provision is still a sledgehammer to crack a nut. Our problem—I agree that it is a problem for both sides but not for responsible shooters—is the use that the criminal fraternity will make of an opportunity. I accept that that is a real difficulty. However, as my noble friend said, here we have a situation where the legitimate community are prepared to give up the whole weapon if they are compensated for it. I accept that if they can continue to use it, compensation should not be paid. However, the question is whether anyone who currently does not have a firearms licence will want to go to the trouble and expense of getting one, with all the additional security measures that are incumbent on them if they hold such a licence for the keeping of a gun, for something that is of relatively little value.
I do not know the answer to that; different individuals will come to different conclusions. However, for many people, the effect of the Bill as it stands is not that the weapon is being confiscated but that it is being banned. That is the reality. That does therefore argue to a certain extent in favour of compensation.
Of course, we can never deal with the criminal fraternity completely as regards the conversion, alteration or modification of weapons. There are criminal armourers out there who can start with a bar of steel and end up with a finished weapon. We are not proposing to ban people from owning bars of steel, although that is almost the implication behind this part of the Bill. I agree that that is arguing a very extreme case. Nevertheless, I think that there is merit in dealing with what is a specific problem in a specific way. If subsequently there is another specific problem, perhaps we could produce an amendment to those that we have produced to enable that problem to be dealt with also. We must consider that.
We shall study the noble Baroness's reply with great care and see what we wish to do about it. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 184 to 193 not moved.]
Clause 45 agreed to.
On Question, Whether Clause 46 shall stand part of the Bill?
§ Lord Avebury
I should like briefly to speak to Clause 46 stand part. I have given the noble Baroness notice that I was going to mention the research being conducted by MCM Research Ltd on behalf of Defra, on the implications for noise disturbance from licensed premises. I originally raised this matter in the Committee stage of the Licensing Bill on 10th February when there was no sign of the report being produced by the time that 230 the House rose at the end of July. I wrote to the Minister, the noble Lord, Lord Mclntosh of Haringey, asking about the production of the report, and I received a reply from Mr Richard Caborn, dated 20th August, again giving no indication of when the report was to be published but assuring me that relevant insights would be reflected in the guidance on the Licensing Act. I now understand that the report is to be published at the end of October and that the guidance will follow hard on its heels in early November.
Those Members of the Committee who took part in the proceedings on the Licensing Bill will remember that we had several discussions on the importance of the guidance and that after a good deal of prevarication the Ministers in charge of that Bill produced an early draft. It now appears that we shall have no opportunity of commenting on the guidance or on the Defra report before these key documents are set in stone. We have very little confidence in the Defra study as it was commissioned from a company whose clients are largely concerned with the production of alcohol and the business of selling it. The manner in which the findings of the report are to be released at a seminar outside Parliament, not to Parliament, confirms the anxieties that we felt. We request that the Government allow time for discussion of that document and of the guidance, however little influence your Lordships may have on the way in which they are applied.
§ 8.30 p.m.
§ Lord Whitty
It probably falls to me to respond to the noble Lord rather than my noble friend Lady Scotland, although neither of us received notice of the matter. I believe that the noble Lord referred to the MCM research and the draft report on noise from licensed premises. Considerable discussion took place on noise from licensed premises during the passage of the Licensing Bill. The report will be published on 29th October. That coincides with the UK noise forum conference at which all the concerned parties will be brought together before any definitive guidance is issued.
Although I understand the points that have been made and am familiar with such points made in a different context, Clause 46 is not dependent on the guidance to which the noble Lord referred. Therefore, I do not believe that to oppose the Question that Clause 46 stand part of the Bill meets the noble Lord's point. However, I undertake to write to the noble Lord in more detail on the UK noise forum conference.
§ Baroness Hamwee
I did not know that my noble friend Lord Avebury intended to raise this point. It would certainly be helpful when the guidance is issued to have attached to it an explanation of the difference between the criteria that are used to judge noise in the context of the Licensing Bill and those that are used to judge public nuisance as it is public nuisance rather 231 than noise itself which is the subject of this part of the Anti-social Behaviour Bill. One can see the scope for confusion there.
§ Lord Hylton
While we are considering Clause 46 it would be helpful if the Government could explain why closure for a period not exceeding 24 hours is likely to be helpful. Is it intended just as a warning to the owners or managers of a particular premises from which noise nuisance is emanating that their conduct has been noticed and is thought to be excessive, or what other purpose can it serve? Twenty-four hours seems a very short period.
Some years ago I had experience in rural Somerset of complaints regarding a particular pub. I know that noise from such premises can cause great local aggravation, particularly to people living in the immediate neighbourhood of the premises, but I am somewhat mystified by the way in which this clause is drafted.
§ Lord Whitty
The aim of the power within the clause is to stop the noise. It is not of itself a penalty or a warning; it seeks to ensure that the disturbance caused by the noise stops. There are, of course, criminal proceedings beyond that point but the 24-hour period seeks to ensure that the particular nuisance that is being caused is ended instantly.
Clause 46 agreed to.
Clause 47 [Closure of noisy premises: supplemental]:
Baroness Hamwee moved Amendment No. 193ZA:
Page 38, line 29, leave out paragraphs (a) and (b).
§ The noble Baroness said: In moving the amendment, I shall speak also to Amendments Nos. 193ZB and 193ZC. Amendment No. 193ZA picks up the point that has just been made by the noble Lord, Lord Hylton. Clause 46(3)(a) provides that a closure order may not exceed 24 hours. My amendment probes why that is necessary and the circumstances in which it was envisaged that it would be used. The amendment suggests deleting Clause 47(1)(a) and (b), because I find it particularly difficult to envisage circumstances in which a closure order of up to 24 hours may be made and then cancelled. I assume that it would have to be cancelled within the 24 hours, or it would have expired.
§ Amendments Nos. 193ZB and 193ZC suggest that a chief executive of a local authority can appoint any officer to exercise the closure powers, not only an environmental health officer. I have made a note that the Local Government Association raised that matter, although I confess that I could not find the reference to that in my papers this afternoon when I looked for it, so it may have been my imagination, but I think not.
§ The Government may suggest that environmental health officers know their way around the area legally speaking, but one can imagine that only an inexperienced EHO might be available at a given time. Would it not be more sensible to give the powers to a more senior local authority officer, perhaps accompanied by an EHO? I cannot believe that chief executives would be reckless in giving that authority. 232 They would know that the buck stopped with them. To make the provision as easily exercisable as I am sure that the Government want it to be, so that minor matters do not stop its use, they might consider whether the powers could be widened somewhat. I beg to move.
§ Lord Whitty
As I said in response to the noble Lord, Lord Hylton, on the previous clause, the point of the 24-hour closure is to end the public nuisance, not to punish the owner or manager of the licensed premises. For example, if a nuisance were related to the televising of a football match one evening and a huge crowd were watching the match on the premises, there would be no reason, provided that everything had quietened down, why the pub should not open again at 11 o'clock the next morning. The environmental health officer would have to make that judgment, clearly, but without that provision the 24-hour order would always stand for 24 hours.
§ Lord Avebury
An order does not have to be for 24 hours. According to Clause 46(3), it could be for the duration of the football match or the remainder of the time when the licensed premises would have remained open that evening anyway, and not for the 24 hours, which would extend into the following day's opening.
§ Lord Whitty
Yes, but if there were a current disturbance, clearly whoever was imposing the order would want to act on a precautionary basis and could do so for up to 24 hours. He could do so for less than 24 hours as, within 20 minutes of the order having been issued, everything might have calmed down with everyone having gone home for the night. Therefore, there is no reason why the pub should not open for the normal, quiet, decent regulars the next morning. That is the only point. The provision gives a little flexibility, whereas one might have said that the place needed to be kept closed until one was absolutely sure that the incident was over.
On the other two amendments, I understand the noble Baroness's point in extremis, but in most cases the environmental health officers responsible have the training, skill and expertise for dealing with noise, public nuisance and abatement orders. Therefore, it is normal that those who have that statutory function should be specified in the Bill. While I am not undermining the integrity of the chief officers, were that to be diluted, people without such experience could have this stringent, draconian statutory power. That would not be desirable. I would not therefore be prepared to accept those two amendments.
§ Baroness Hamwee
My noble friend Lord Avebury made the point I would have made on the length and cancellation of the closure order. As regard Amendments Nos. 193ZB and 193ZC, I accept that environmental health officers have the expertise, but, as in other areas of local government, they are stretched. My suggestion was not to change what 233 might be normal but to allow a little more flexibility. However, I hear what the Minister says and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 193ZB and 193ZC not moved.]
Clause 47 agreed to.
Clause 48 agreed to.
Clause 49 [Penalty notices for graffiti and fly-posting]:
§ 8.45 p.m.
Baroness Hamwee moved Amendment No. 193ZD:
Page 40, line 3, leave out subsection (1).
§ The noble Baroness said: In moving Amendment No. 193ZD, I shall speak also to Amendment No. 193ZE, 193ZF and 193ZG. We tabled the amendment not because we do not want to deal with graffiti and fly-posting and not because we do not believe they are serious offences—I use that expression in the generalised sense—but because we believe the Government should justify conferring on civilians the power to apply fixed-penalty notices. Perhaps the Minister could give other examples of civilians having such powers. I recall that the community support officers, whose existence has recently been brought into being by statute, have the power to detain people for up to 30 minutes. Even they, as part of the police force, do not have powers to impose fixed-penalty notices.
§ I am obliged to the Law Society for raising the point. It is right to question whether the piecemeal extension of police powers will improve effectiveness and enforcement. The Law Society has drawn my attention to the Home Office police operational guidance on penalty notices for disorder offences. It mentions the importance of the accurate identification of suspects and their place of residence. It states that failure to identify a suspect and his address prior to issue of the fixed-penalty notice could invalidate the enforcement process, compromise the scheme's integrity and bring it into disrepute. It also stresses the need for documentary evidence rather than "non-physical sources". Does that raise an issue when dealing with children? Without the support of a police officer, a claim of false identity will often be effective protection from the enforcement of fixed-penalty notices. Civilians do not have the power to detain an individual or to ascertain his identity.
§ The piecemeal extension of police powers, without regulation—the Minister may assist me on what regulation, training and so on there will be—provides the possibility of the abuse of police powers by those who do not have the professional training to use them. We have a respect for our police and our police are publicly recognisable. I would certainly welcome the police being relieved of duties which civilians can carry out. Although this is not an absolutely equivalent situation, none the less, having listened over the years to debates about, for example, whether non-uniformed officers can stop traffic, I believe that the Government need to justify why they want to deal with the matter in this way.234
§ Amendments Nos. 193ZE and 193ZF relate to the amount of the fixed-penalty notice. Under Clause 49( 10) the amount is to be £50 and under Clause 49(11) a different amount can be substituted. I am sure we shall be told that the Secretary of State and the National Assembly for Wales will consult before they make any change to the amount. However, there would be no harm in enshrining that consultation on the face of the statute. Indeed, a requirement for consultation that goes wider than simply the local authorities would be welcome and, I believe, important.
§ The noble Lord, Lord Dixon-Smith, has tabled later amendments inspired, I suspect, by a number of the cable operators, and so on, who have an important concern about the costs to them of dealing, in particular, with fly-posting. We shall come to that in due course. However, I believe that they, too, need to be brought into the consultation loop.
§ My main point relates to the level of the penalty. The sum of £50 seems to be rather derisory and, of course, is imposed only if one can catch the person who is doing the fly-posting. Should the penalty be the same everywhere? Is this not something that each local authority should have the opportunity to put a figure on and say, "This is a real problem in our area. We want to crack down really hard"? I believe that different authorities may well have different views, and Amendment No. 193ZF would permit variations between the authorities.
§ Amendment No. 193ZG seeks to leave out a substantial part of Clause 51.1 welcome the fact that the penalties will be payable to local authorities. I do not believe that the Minister will be surprised if I ask why receipts may be used only for "qualifying functions". Why do we not allow the money, as subsection (5) anticipates, to be used for all functions across the local authority? The provision proposes ring-fencing of what is not likely to be a very great deal of money. It may simply entail the rather bureaucratic nonsense of ensuring that certain expenditure is designated as coming out of a particular pot, or it could entail a real restriction. I suspect that not enough cash will be involved for there to be a real restriction. However, as a matter of principle, we oppose ring-fencing and I believe that it is needless in this situation.
§ I hope that the Minister will be sympathetic to my plea that either the fence or the ring—I am not sure which—is lifted from this money and that it is available for any use that the local authority considers proper. I beg to move.
§ Lord Whitty
The noble Baroness is mistaken to say that these powers are new. The terms of the Bill are based largely on those that already exist for litter and have done since at least 1990, in the Environmental Protection Act, and for dog fouling since 1996. In both cases, local authority officers—now community support officers—issue fixed penalty fines. So that is not new and the amendment would remove any reference to allowing such authorised officers to issue fixed penalty notices. Therefore, that would completely remove the new power and I would not be 235 prepared to accept that because I believe that Clause 49 provides a valuable new tool to local authorities and a more coherent system whereby these issues are dealt with in the same way as litter and dog fouling.
On the second and third amendments in this group, the amount is set at £50. That relates to minor offences, whereas for major offences it is possible to resort to prosecution and a court judgment. It is also important that the level of £50 can be altered, as the noble Baroness acknowledged, following consultation by the Secretary of State or the National Assembly. We recognise the point that some local authorities would wish to be able to set the level themselves.
While that has attractions, we are consulting on the matter to some extent in the consultation paper Living Places—Powers, Rights and Responsibilities led by my department. There may be difficulties in that there would be less clarity about the level of penalty. Conceivably it could lead to displacement of activities for authorities that charged a smaller penalty and it would remove the clarity of a fixed penalty fine. Nevertheless, in the Bill we envisage the possibility, in the light of the responses to the consultation to which I have referred, that at a subsequent stage we could introduce greater flexibility for individual authorities.
Amendment No. 193ZG deals with how we use the receipts. The noble Baroness says that that is akin to ring-fencing. In one sense it is, but before this Bill, the money would have gone straight to the Exchequer so the local authorities would not have had it in the first place. So there is at least some advance. I recognise that in the long term one may wish to be more flexible, but in the short term we are faced with the fact that very few local authorities take this matter as one of their priorities.
Significant resources will be needed for enforcement and it seems sensible, at least in the initial stages, for that money to be recycled to provide support for the administration and enforcement against these offences. Again, the power exists for the Secretary of State or the National Assembly to specify other functions on which the funds could be spent. As the noble Baroness will know—I believe that she entirely approves of this—there may be an occasion when high-performing authorities would be given greater flexibility as to how they spend the receipts. For the moment we believe that the money should be spent on the area with which the offences deal.
§ Baroness Hamwee
I am grateful to the Minister. On his last point, I recognise that the possibility exists of allowing different authorities to have different amounts for penalties, but I struggle to see that it exists under the Bill, because Clause 49(11) allows for an order to substitute "a different amount", not different amounts. Can the Minister help me further on that? I am interested to hear that consultation is currently taking place on that. It would be a great pity if, even if the difference between local authorities were not applied at the start, the possibility was not included in the Bill.
§ Lord Whitty
If I gave the impression that there is a specific power to grant that flexibility, that may be a 236 slight exaggeration. The Government are in the process of consulting on whether that would be desirable for local authorities. It would still be for the Secretary of State to confirm any differentiation under existing powers. If there were a more general system, that would require a change to the Bill.
§ Baroness Hamwee
I realise that; that is why I am trying to pre-empt a bit more legislation by suggesting the possibility now. I hear what the Minister says; I am grateful for his answers on all the amendments and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 193ZE and 193ZF not moved.]
On Question, Whether Clause 49 shall stand part of the Bill?
§ Lord Hylton
The Minister mentioned earlier that fixed penalties were not the only way to proceed against people who have written up graffiti or indulged in fly-posting. Could he go a little further and say that, where there is desecration of cemeteries, painting of swastikas on the walls of synagogues or painting of other offensive slogans on churches or mosques, the normal way of proceeding will be by prosecution, not by fixed penalties?
§ Lord Whitty
Yes, the intention is to use fixed penalties for minor instances of offences that would not otherwise have been worth the expense of prosecution, although prosecution will still remain an option. We do not think that fixed penalty notices are at all appropriate for offences that are racially or religiously targeted or motivated. The clause therefore specifically excludes those and they would therefore be subject to prosecution.
Clause 49 agreed to.
§ 9 p.m.
§ Baroness Hamwee moved Amendment No. 193ZFA:
§ After Clause 49, insert the following new clause—
§ "FLY-POSTING REMOVAL
- (1) The Town and Country Planning Act 1990 (c. 8) shall be amended as follows.
- (2) In subsection (3) of section 224 (enforcement of control as to advertisements) for "level 3" substitute "level 4".
- (3) In subsection (1) of section 225 (power to remove or obliterate placards and posters) leave out "or obliterate".
- (4) In subsection (2) of section 225 (power to remove or obliterate placards and posters) leave out "or obliteration".
- (5) In subsection (3)(b) of section 225 (power to remove or obliterate placards and posters) leave out "or obliterate".
- (6) In subsection (5) of section 225 (power to remove or obliterate placards and posters) for "two days" substitute "six hours"."
§ The noble Baroness said: The amendment was suggested by the London Borough of Camden. I know that several Members of the Committee visited the borough recently to see its work. The noble Baroness, Lady Thornton, is nodding; I know that my noble friend Lord Avebury and, I think, the noble Lord, 237 Lord Hylton, were among the group that went. As one who was unable to go, I seem to be moving the amendment.
§ Camden has done a great deal of work to tackle fly-posting through designing hoardings in a way that makes it difficult to attach posters to them and by painting street furniture in a way that cuts down the amount of fly-posting. Of course, it is struggling with the present legislation. It welcomes the measures in the Bill, but recognises the limitations. Illegal fly-posting tends to happen at night and is done very quickly. The chances are that not many successful fixed-penalty notices will be issued. The amendments would approach the issue from another direction by amending the current legislation.
§ Under the Town and Country Planning Act 1990, local authorities can give notice in writing to a person who displays, or causes to be displayed, a poster or placard on an illegal site. Very often, as we have all seen, those involved are the promoters of nightclubs or record companies—they say that it is done by the DJs or artists themselves. I declare an interest as a partner in a firm that acts for many recording artists and record companies. I am sure that our clients would never do any such thing. They are so successful that they do not need to.
§ The notice served states that the offender has 48 hours to remove or "obliterate" the poster. If they do not do so, local authorities can recover reasonable expenses. I understand that the standard recharge fee per poster is around £100. If the same promoter puts up a poster in the same locality within 28 days, the local authority can take action resulting in prosecution. The average fine is around £500.
§ That figure does not reflect the amount of work that goes into tackling the problem. Local authorities must identify the marketing company. The people who undertake fly-posting, being fairly fly themselves, tend to use unmarked vehicles so that they are difficult to identify. The costs of identifying those behind what is being advertised is also a difficulty.
§ From the other perspective, the current legislation requiring removal within 48 hours means that the offender has had two days' free advertising. Often that is all that is needed if, for instance, a Friday club night is being advertised. The offenders can deface or obliterate a poster simply by putting up another one on top of it.
§ The amendment proposes alterations to the Town and Country Planning Act. It would be good to reduce the removal time to no time at all. I have proposed six hours because I did not want to give the Minister the easy response that nobody can do something in no time. The removal of the poster should be required as opposed to allowing the "deface" or "obliterate" option. Another possible amendment could be to increase fine levels.
§ I accept that those measures cannot fully address the problem. The London Borough of Camden, which has raised the issue with me, also recognises that the Government are attempting to address the problem in 238 a more modern fashion through the provisions in the Bill. But all measures to deal with this very offensive habit should be put in place and made as effective as possible. I beg to move.
§ Baroness Thornton
My Lords, I support the amendments. I do not think that they will quite do the job, but it is important that we start to make the effort. The Government probably have a lot of sympathy with the amendment, as it is completely in line with the idea that, where there is grime, there is crime. Without a clean environment, it is even more difficult to deal with anti-social behaviour and the problems that arise from it. I declare an interest because I live in Camden, but my borough is not alone in feeling the need to deal with these problems. I know that it is important for us to look at the problem from all different angles.
§ Lord Whitty
I recognise some of the concerns behind the noble Baroness's tabling of this additional clause. It raises a number of ticklish problems in taking a view on the matter, but I understand the issues with which it is intended to deal. The question of raising the level of penalty would apply in cases in which the fixed penalty did not apply and prosecution was either the preferred option of the authorities or the recipient of a fixed notice refused to pay. However, as your Lordships will be aware, the raising of one level to another requires the Home Office to make some assessment about all the other offences that would move. I regret that we have not been able to do that in the time available. A fairly formidable case must be made in order for change to occur. We could certainly look at the matter.
On the question of "or obliterate", it is clear that, in most cases, the preferred option for the authorities is to remove the fly poster. However, there will be circumstances in which damage could be caused to the building and it would be better to obliterate it. The noble Baroness's amendment would not leave open such an "exceptional circumstances" option. At present, the amendment reads as though they are equivalent options, but we need "or obliterate" as an option of some sort. I could not, therefore, accept that amendment as it stands.
There is some merit in reducing the time from two days to six hours, especially because one way of removing fly posters is to stick another on top and pretend the first was never there, which can easily be done in two days. I am not sure whether a more limited period would reduce that abuse. We are not clear that that would work in practice.
Although I sympathise with the amendments, it is unlikely that they are acceptable to the Government in their present form. We will consider them further between now and Report. I would not, however, like to raise expectations that we would be able to come forward with amendments in this legislation, given the time constraints upon us all in this Bill. The Government, however, will take on board the concerns expressed by the noble Baroness.
§ Baroness Hamwee
1 am obviously grateful for the Minister's comments. However—and this is not confined to this Bill—although we are very close to the end of the Session, we are at only the Committee stage and it is disappointing to hear that it is too late to pursue something that has a good deal of support. The Minister's response was also sympathetic. Really, one wonders what we are all up to. I do not wish to have a go at the Minister because he is in a difficult position, but he tempts me to return to the matter on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 50 agreed to.
Clause 51 [Penalty receipts]:
[Amendment No. 193ZG not moved.]
Clause 51 agreed to.
Clauses 52 and 53 agreed to.
Clause 54 [Graffiti removal notices]:
§ Lord Dixon-Smith moved Amendment No. 193A:
§ Page 43. line 18, at end insert "(not being a community scheme contributor)"
§ The noble Lord said: This group of amendments attempts to deal specifically with the issue of graffiti removal notices and how that general subject is dealt with. As the noble Baroness, Lady Hamwee, surmised a few moments ago, I have had some briefing from BT, NTL and Telewest on the subject.
§ It might be useful to fill in the background. As society develops, the demand for sophisticated communications increases. That involves cabling our streets and connecting into houses and commercial properties. It involves substations that can spread the network and identify who is using the signal and so on. The result is an increase in street furniture. There are steel boxes mounted on walls or standing on the pavement, manholes and that sort of thing.
§ Such objects are as vulnerable as any other structure in the street to people with a taste for graffiti. What should happen? My amendments are not exactly paralleled by the Government's group, which follows this, but both groups deal with the same subject. I am grateful to see the Government's amendments, in which they say what they see as being necessary to improve the Bill. The Government's amendments, with which the noble Lord, Lord Whitty, will deal in a few minutes, will go a long way towards dealing with the problems.
§ I should explain that the three companies that I mentioned have pointed out that they already work closely with local authorities to try to establish what we might call a reasonable modus operandi for dealing with the graffiti that appear from time to time on their substations or whatever. Those structures are not there for fun; they contain sophisticated electronic equipment to the value, in many cases, of tens of thousands of pounds. Somebody who rolls up with a bucket of paint stripper and a bucket of water to clean them down can do a great deal of damage.
§ The issue lying behind the amendments is how we arrive at a reasonable way of working, so that the needs of the communications companies and the need 240 of the community to have graffiti removed are met reasonably. Does the Bill meet that demand in the most appropriate way?
§ The Bill requires that, if graffiti appear, the relevant local authority will serve a graffiti removal notice on the owner of the property, requiring them to remove the graffiti within 28 days. The communications companies feel that they are the victims of the crime and are being made to pay for rectification. Victims of vandalism are rarely compensated, and it is rare for somebody else to clear up the mess. Usually, one has to do it oneself, unfortunately. Mostly, people have some sort of insurance that will cover most of the cost. The principle is not wholly new.
§ The real problem is how to handle the problem with communications. What guidance will be given to local authorities for dealing with the issue? How will a graffiti removal notice be served? Communications companies do not have teams of inspectors going around looking at their street furniture on a daily basis; it is probably on a several monthly basis, or an even a longer period. They know immediately if the electronics are out, but they will not know if someone has taken a paintbrush to it, and so on. If a local authority's way of serving a graffiti removal notice is to stick a bill on top of it, which states that there are 28 days to remove the graffiti, one is using one form of graffiti to request the removal of another. That really is not satisfactory. So we reach the need for a code of practice, which comes back to the relationships those companies were developing with local authorities.
§ I was surprised when in my discussions with one of the companies, which shall be nameless, I suggested that perhaps they should submit a schedule of their street furniture within a given local authority's area -and of course for each local authority they would have to submit a list—by e-mail, with an e-mail address on the bottom to which the local authority could communicate when there was a problem. I suggested that the local authority could perfectly reasonably have someone with a digital camera who could photograph the piece of street furniture. That would ensure that the identification was correct, and would show what the problem was. The notification would be immediate and absolute and in those circumstances of course it would be perfectly reasonable to expect the graffiti to be removed in 28 days.
§ As I said, it would not do for the notice to begin with a period when a bill was stuck on top of the offending paintwork. So really we are talking about arriving at a series of procedures which will work. I do not intend to go through these amendments seriatim yet again. I expect the Government to say that these amendments will not achieve what I seek. I want some assurance from the Government that they will work with these companies to provide an achievable and practical modus operandi for dealing with this problem.
§ It is important because if we do not find a successful modus operandi for areas prone to graffiti, the companies will not put in the communications infrastructure to help those communities to develop and perhaps lift themselves out of the rather despairing stage which gives rise to graffiti in the first place. So the whole issue is very important.241
§ I do not intend, as I said, to deal with the amendments in detail because I have explained the problem. The Government's amendments in the next group go some way towards answering the problem. To a certain extent the fact that we have two groups is unfortunate. On the other hand it is natural because the Government need to get their amendments on the face of the Bill. When they are there, we can see whether any further work is needed to improve them. If the Minister gives strong assurances that the Government are working with the communications industry to find a satisfactory modus operandi which will lead to guidance to local authorities on how the matter is to be dealt with, because the present Bill does not really sufficiently deal with it, we shall all be satisfied. With that, I beg to move.
§ Baroness Hamwee
One of the points made by the communications companies is that there has been no satisfactory regulatory impact assessment in connection with Clauses 54 and 55. When the Minister responds, I hope that he will be able to comment on that. Another point made was that there has been no opportunity for input. I support the points made by the noble Lord with regard to the code, which go some way to addressing what seem to be reasonable points raised by these companies.
Perhaps I may make a brief comment concerning Amendments Nos. 193Jand 193L, which were referred to a little obliquely by the noble Lord. As I understand them, the amendments have the effect of excluding from these provisions areas designated as what he described as social inclusion priority areas; the argument being that the demand for a competitive range of utilities and electronic communication services is overriding. I do not understand that to be exclusive or in any way opposed to the environmental requirements of any and every area. It is particularly important in areas which are deprived and which do not have the advantages of some other areas where a sense of pride in the environment is fostered.
There has been reference to the need to ensure a good quality of environment as the basis for the continuation of other qualities and to the danger of letting the environment deteriorate. Once the environment starts to slip, a lot can slip with it. I hope that I have read the two amendments correctly; or perhaps I hope that I have not read them correctly. But if I read them as I described them, they are not amendments we would want to support.
§ Lord Hylton
I wonder whether we are perhaps trying to legislate in too much detail about what is, admittedly, a frustrating and often very annoying problem. The noble Lord, Lord Dixon-Smith, referred to the situation where the victim of anti-social behaviour is required to remedy it himself. I suspect that in some cases the local authority may find that it is serving a notice on itself. I also suspect that the thrust of Clause 54 will be, to some extent, undone by exemptions in Clause 55. Perhaps the government amendment to be moved later will do something to clarify and sort out those items.
242 I should like to suggest to the Government that the removal of graffiti could be done, very suitably, by people on community service orders or by people who have been called upon by a court to make reparation for their offences through the mechanisms of restorative justice. Of course, that will frequently have to be done under supervision, particularly in the case of delicate and sophisticated technological equipment, as mentioned by the noble Lord, Lord Dixon-Smith. However, I commend that thought to the Government.
§ Lord Whitty
The issue to which the noble Lord, Lord Dixon-Smith, referred is recognised by the Government and is one on which the telecommunications companies have made representations. The general point raised by the noble Lord, Lord Hylton, is interesting, but I suspect that most owners of property of the kind referred to here would prefer to have the option of removing the graffiti themselves prior to a local authority, through whatever means, taking it upon itself to do so. That will not apply in all cases, but it would probably apply to the cases that are the particular concern of the main amendments in this grouping.
The noble Lord, Lord Dixon-Smith, is right to point out that we need to find a way of dealing with the problem, but the development of guidance rather than providing exemptions is the better way forward. The noble Lord may know that we shall pilot this whole provision in 12 local authority areas. It is important that we secure full co-operation and engagement with industry, and I believe that we will do so.
Turning to the points made about street furniture provided by the telecommunications companies—of which there are many; not all are quite as responsible as some, so that certain companies may not be signed up to genuine local initiatives—it is important that we use the pilot studies to determine the final form of the guidance. The noble Lord referred to a code of practice, but we seek to produce guidance to cover all the issues, such as dealing with delicate property, damage to property in general, health, safety and so forth. I think that that is the way to proceed rather than seeking to provide exemptions, which would allow less scrupulous companies to escape their obligations by signing up to a single local graffiti initiative.
If those initiatives work well and the industry is engaged with them, then given the 28-day notice period, one would expect the graffiti to be removed in any case. So the problem should not arise. Further, those responsible companies which play a genuine part in the initiatives should not encounter any problems. However, procedures must be worked out and concerns about particularly delicate equipment in street furniture must be resolved. Nevertheless, we all recognise that one of the most offensive forms of graffiti is quite often seen on such street furniture and therefore it must be included.
I turn to the other amendments in the grouping, Amendments Nos. 193B, 193D, 193F, 193R and 194A. Their purpose is to provide safeguards for the operation of the graffiti removal clauses, prevent 243 damage to property and to address issues of safety. The Government accept the need for such safeguards. It is for that reason that we have written the requirement for guidance on to the face of the Bill. Again, we shall consult with industry representatives on how it should be developed.
However, the effect of the amendments would be to tie local authorities into any number of codes of practice. We feel that it is less confusing to develop a single, comprehensive and coherent guide to good practice in this area, which is the intention behind providing statutory guidance.
The counter notice mechanism outlined in Amendment No. 193D would introduce an overly bureaucratic response to problems which are best addressed in the context of the guidance and good practice, which we shall develop and foster through the pilots. The amendment would introduce delay to the operation of that process. We all agree that swift action is needed here.
The noble Lord has generously recognised that the next grouping of amendments tabled by the Government deal with the issue of the appeals mechanism. I shall deal with the concerns that have been expressed when we reach the grouping. However, while I recognise the concerns, I would not be able to accept the noble Lord's amendments as they stand.
§ Baroness Hamwee
Is the Minister able to give an indication of the likely time-scale of the pilot studies to be undertaken and thus when one might reach "non-pilot territory"? Further, although I may have misunderstood the position, it seems that these provisions will come into effect for the pilots, but looking hastily at the commencement clause, it does not appear possible to bring the clauses into effect individually for local authority areas. Either the clauses will come into effect or they will not. Have I misunderstood that?
§ 9.30 p.m.
§ Lord Whitty
The clauses will come into effect on the due commencement date—which we will debate later—but the statutory guidance will not be finalised until the pilots have been completed. We intend to start the pilots in April 2004 and to select the areas between now and then. The pilots will run for a number of months before we can finalise the statutory guidance. I hope that clarifies the issue.
As regards an earlier point made by the noble Baroness, the pilots will also include the basis of a proper regulatory assessment.
§ Lord Dixon-Smith
Can the Minister be slightly more specific, particularly on the point raised by the noble Baroness, Lady Hamwee, in relation to the commencement clause? If this is to work effectively and well when the pilots have finished, the problems have been established and solutions found to them, it would suggest that the commencement date for the Bill as a whole would need to be delayed. I believe that there is a general wish in the House to get other parts 244 of the Bill implemented fairly quickly. We can perhaps deal with that matter later, but it does need to be dealt with; otherwise we shall have to deal with the Bill as it is now—which is without the guidance and therefore without the practice and not in a satisfactory state. I would welcome the Minister's views on this specific issue.
§ Lord Whitty
I do not believe that the statutory guidance provided under these clauses alters the argument about the commencement date. The powers will be there. We will run pilots and finalise the statutory guidance in the light of those pilots. The commencement date of the powers is not relevant to the time it takes to draft the statutory guidance. After all, there are many Bills in which there is a commencement date but where guidance, codes of practice and, in some cases, regulations are not there on the commencement date.
We will come to a more general argument about the parts of the Bill which do not apply to my department, but the question of when we will get the final version of the statutory guidance does not affect the commencement date. We will of course have draft statutory guidance for use and testing out during the 12 pilot studies, but we will not have the final version until somewhat later.
§ Lord Dixon-Smith
My concern is not so much about the procedure for the guidance but about the fact that an assiduous local authority, with the Bill on the statute book, could act on the words of the Bill without the guidance and thereby cause some difficulty.
§ Lord Whitty
The noble Lord would not be correct to say that before the full completion of the powers, which include the statutory guidance, one could act outwith those terms. It would be better if I were to write to the noble Lord on that basis. Basically, we will have draft guidance; we will have the 12 pilot schemes testing out that draft guidance; and the powers will commence in those areas only for that period. Once we have completed the pilots and developed the final guidance, the powers will roll-out more generally.
The noble Lord will probably require that from me in slightly more legalistic language, so I shall offer to write to him.
§ Lord Dixon
I am grateful to the Minister. He has done his best to clear up the dilemma, but it is still there. Whether the guidance is there or no, the statute will be there and will have commenced. Therefore it seems to me that, technically, the powers that exist in the Bill will be available to local authorities to use. If we recognise that that is a difficulty, that is sufficient.
As I have said, our amendments were in this instance a sprat to catch a mackerel. We have gone some way towards achieving this with the Government's amendments which will follow. We have gone some way towards achieving it in this debate and the assurance that we have received from the Minister that the Government are aware of the problem and are 245 looking at it, that there will be pilot schemes to see how to make this work, and work satisfactorily, and so on. So this has, in fact, been a useful debate. None the less, we shall need to look at the Minister's words with care to see whether there are points we will wish to raise later. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 193B not moved.]
§ Lord Whitty moved Amendment No. 193C:
Page 43, line 29, at end insert—
(5A) A graffiti removal notice must explain the effect of subsections (4) and (5) and sections (Recovery of expenditure) and (Appeals).
§ The noble Lord said: In moving Amendment No. 193C, I should like to speak to the amendments related to it. This deals with the batch of amendments that the noble Lord, Lord Dixon-Smith, has already spoken of with approval. I therefore feel that I probably do not need to say very much to the Committee tonight. Most of these amendments relate to the guidance, on which we have had some discussion. The amendments also ensure that local authorities remain generally liable for damages not directly connected with the lawful exercise of the new power. That should be some reassurance to the companies involved.
§ Graffiti on the types of properties these clauses cover is a real blight, and people expect local authorities to be able to ensure that it is removed. That is why the powers are there, and it is important that they are.
§ The amendments also provide for a suitable appeals system and for safeguards to protect the interests of the owners of private property who might otherwise be detrimentally affected by the preceding clauses.
§ Again, the effect of these clauses will be piloted in the 12 areas and the results will be taken into account in the final form of the statutory guidance. I beg to move.
§ Lord Dixon-Smith
It is tempting to repeat much of what I have said, but I think I will at this stage welcome these amendments. They help the Bill forward and will give some reassurance to those who are concerned about the Bill, even if they do not go quite as far as one might consider totally desirable. But I am glad to see them and I thank the Government for them.
On Question, amendment agreed to.
[Amendment No. 193D not moved.]
§ Lord Whitty moved Amendment No. 193E:
§ Page 44, line 22, leave out second "section" and insert "sections (Recovery of expenditure) to"
§ On Question, amendment agreed to.
§ [Amendments Nos. 193Fand 193G not moved.]
§ Lord Whitty moved Amendment No. 193H:
Page 44, line 26, at end insert—
"graffiti removal notice" has the meaning given by subsection (2),
§ On Question, amendment agreed to.
§ [Amendment No. 193J not moved.]
§ Lord Whitty moved Amendment No. 193K:
§ Page 44, line 30, after "160(4)" insert "and (5)"
§ On Question, amendment agreed to.
§ [Amendment No. 193L not moved.]
§ Clause 54, as amended, agreed to.
§ Lord Whitty moved Amendment No. 193M:
§ After Clause 54, insert the following new clause—
§ "RECOVERY OF EXPENDITURE
- (1) A local authority may recover from the person on whom a graffiti removal notice was served expenditure reasonably incurred in exercise of the power under section 54(4).
- (2) A local authority may not recover expenditure from a person under subsection (1) unless it has served on that person a notice which sets out the amount of, and details of, the expenditure which it proposes to recover.
- (3) Section 160 of the Environmental Protection Act 1990 (c. 43) has effect in relation to notices under subsection (2) as if they were notices within subsection (2) of that section."
§ Lord Whitty moved Amendment No. 193N:
§ After Clause 54, insert the following new clause—
- (1) The Secretary of State must issue guidance to local authorities in England for the purposes of sections 54 and (Recovery of expenditure).
- (2) The National Assembly for Wales must issue guidance to local authorities in Wales for the purposes of sections 54 and (Recovery of expenditure).
- (3) A local authority must have regard to any guidance issued to it under this section."
§ Lord Whitty moved Amendment No. 193P:
§ After Clause 54, insert the following new clause—
- (1) A person on whom a graffiti removal notice is served may, within the period of 21 days beginning with the day on which it is served, appeal against the notice to a magistrates' court on any of the following grounds.
- (2) They are—
- (a) that the defacement is neither detrimental to the amenity of the area nor offensive,
- (b) that there is a material defect or error in, or in connection with, the notice,
- (c) that the notice should be served on another person.
- (3) Where an appeal under subsection (1) is brought, the graffiti removal notice shall be of no effect pending the final determination or withdrawal of the appeal.
- (4) On the determination of such an appeal, the magistrates' court must do one of the following—
- (a) quash the notice,
- (b) modify the notice,
- (c) dismiss the appeal.
- (5) Where the court modifies the notice or dismisses the appeal, it may extend the period specified in the notice.
- (6) A person on whom a notice under section (Recovery of expenditure) (2) is served may, within the period of 21 days beginning with the day on which it is served, appeal to a magistrates' court on the grounds that the expenditure which the authority is proposing to recover is excessive.
- (7) On the determination of an appeal under subsection (6), the magistrates' court must do either of the following—
- (a) confirm that the amount which the authority is proposing to recover is reasonable, or
- (b) substitute a lower amount as the amount which the authority are entitled to recover."
§ Clause 55 [Exemption from liability in relation to graffiti removal notices]:
§ Lord Whitty moved Amendment No. 193Q:
§ Page 44, line 40, after "liability" insert "to any person responsible for the relevant surface"
§ On Question, amendment agreed to. [Amendment No. 193R not moved.]
§ Lord Whitty moved Amendments Nos. 193S and 193T:
§ Page 45, line 12, leave out paragraph(d)
Page 45, line 15, at end insert—
(5) Section 54(10) is to apply for the purposes of this section as it applies for the purposes of that section.
On Question, amendments agreed to.
§ Clause 55, as amended, agreed to.
§ Baroness Gardner of Parkes moved Amendment No. 194:
§ After Clause 55, insert the following new clause—