- (1) This section applies where a local authority is satisfied that a high hedge is adversely affecting the amenity of the area.
- (2) The authority may serve a notice (a "remedial notice") on every person who is the owner or occupier of the land on which the hedge is situated imposing the requirement mentioned in subsection (3).
- (3) That requirement is a requirement to take action in relation to the hedge to remedy the adverse effect within a period specified in the notice being not less than 28 days beginning with the day on which the notice is served.
- (4) If any owner or occupier of the land on whom a notice under subsection (2) was served fails to take the action required by the notice within the period specified in it for compliance with it, he shall be guilty of an offence and shall be liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.
- (5) In this section "high hedge" means so much of a barrier to light or access as—
- (a) is formed wholly or predominantly by a line of two or more evergreens; and
- (b) rises to a height of more than two metres above ground level.
- (6) For the purposes of subsection (5), a line of evergreens is not to be regarded as forming a barrier to light or access if the existence of gaps significantly affects its overall effect as such a barrier at heights of more than two metres above ground level.
- (7) In this section "evergreen" means an evergreen tree or shrub or a semi-evergreen tree or shrub."
I am pleased to see that the name of the noble Baroness, Lady Hamwee, has been added to mine on the amendment. In col. 499 of Hansard, on 28th February, she said in reference to amendments introduced by the noble Lord, Lord Evans of Temple Guiting:
Not only do they meet points made at the previous stage, but they seem to me—I hope my interpretation is right—to indicate that the Government are firmly behind the Bill and intend to see that it becomes law. That would be a very good thing indeed".
That was the High Hedges Bill, at Report stage. My noble friend Lady Buscombe said from our Front Bench:
I cannot share the optimism of the noble Baroness, Lady Hamwee",
to which the noble Lord, Lord Graham of Edmonton responded,
'"Oh ye of little faith'".—[Official Report, 28/2/03; cols. 499-500.]
He knew that we had been working on that legislation for four or five years.
§ At that stage, everyone in the Chamber was keen to see legislation controlling high hedges. The consultation had been quite remarkable. The noble Lord, Lord Bassam, who is present, was also involved in some stages of the Bill. However, the Bill has sadly got nowhere, which is why I am introducing this amendment.
§ The amendment is not comparable to the full Bill. It is really half a loaf, but I believe that half a loaf is better than none. It would be a start only, because it would not do a lot of the things that we would really like to be done about high hedges, and that the Government keep saying that they would like to be done. They have been saying for four or five years that it would happen when government time was available. The Bill that went through all stages in this House could still be picked up by the Government and put through easily in the other place, where it has not been considered at all. Similar Bills have been rejected, but my Bill is still just sitting there.
§ What does the amendment do? I shall not go through the detail, as it is clear enough for anyone to read, but it would give local authorities new powers to deal with evergreen hedges more than two metres high that adversely affect the amenity of the area. They would also be able to serve a notice requiring action to be taken to reverse the adverse effect; failure to comply would be an offence liable on conviction to a level 3 fine up to £1,000.
§ The amendment differs from the Private Members' Bills introduced by Stephen Pound and myself in that the new powers would apply only to high hedges that adversely affect the amenity of an area. It is unlikely that it would include hedges that simply impacted on a neighbour, which are perhaps the most distressing of all. However, this Bill apparently will not deal with 249 individual complaints; to be admissible within the Bill, the measure must be on the basis of the general amenity.
§ The amendment also suggests that the offending hedges might have to be publicly visible, which would rule out all the hedges in people's back gardens. It is unlikely that a local authority would be able under the terms of my amendment to require long-term maintenance of a hedge at the lower height. The only way in which a local authority could deal with a continuing problem would be to issue a new remedial notice. That would place a heavier burden on local authorities than if we had the proper High Hedges Bill. However, I had to make some compromises in drafting the amendment to ensure that it would fit into the Anti-social Behaviour Bill, and thereby to allow further debate on whether it is the right vehicle to deal with high hedge problems.
§ Why do I think that the Anti-social Behaviour Bill is the right vehicle? High hedges are without doubt an anti-social problem. In growing hedges to excessive heights owners show no consideration for their neighbours, and even when told about the impact of their hedge they often refuse to take any responsibility for it. Indeed, in many cases they become quite belligerent and unpleasant about it. We all know that cases earlier this year resulted in both a murder and a suicide. So the issue really can have very dramatic effects.
§ Additionally, high hedges are a quality of life issue. The misery inflicted by high hedges has been discussed many times and is well known. The issue never stops impacting on those affected; it follows them into their homes. It is worse even than noise, which has to abate at some point. This morning, I received a letter from an elderly lady who is convinced that her husband died because of his worry about a high hedge. As she said, if the Government believe in the Human Rights Act— and she quotes the relevant sections although I shall not go into them—she is entitled to have a life of her own. She said that the Government keep saying they support human rights, but she comes up against a brick wall every time she approaches her local authority to say that she would like her human rights respected in regard to a hedge.
§ Why is this Bill the right legal vehicle? It has been suggested that the text of the High Hedges Bill cannot fit within the Anti-social Behaviour Bill because the latter deals with behaviour that affects wider society. The Bill is not concerned with behaviour that impacts on a single person or household—the neighbour who lives in the shadow of a hedge. While the majority of Part 7 of the Anti-social Behaviour Bill is about local environmental problems that affect wider society, Clause 48 amends the Noise Act 1996. The 1996 Act deals with the impact of noise emitted from one dwelling to another. It is therefore all about the detrimental effect of night noise on a single person or a household.
§ The processes in the Noise Act and the High Hedges Bill—receipt of a complaint, investigation to establish whether a problem exists, service of a notice requiring 250 action to be taken or else an offence is committed—are also similar. Any dispute resolution procedures or attempts at conciliation take place off-stage; they are not on the face of the legislation. Apart from the need for a complaint to trigger these processes, they are the same procedures that local authorities are required to follow under Clauses 46 and 54 of the Anti-social Behaviour Bill when dealing with the closure of noisy premises or the removal of graffiti.
§ I am no legal expert and I do not claim that my amendment is in the absolutely right form. However, the Government have clever draftsmen who could do that. Better still, the Government could reverse themselves and make space for the whole Bill rather than just the half loaf that we have discussed. I look to the Government again to confirm their determination to ensure that there is hedge legislation. Meanwhile, I beg to move.
§ 9.45 p.m.
§ Baroness Hamwee
I am happy to have been able to add my name to the amendment. I think I said on Second Reading that I would do so—which was rather rash as I had not seen what the noble Baroness, Lady Gardner, was going to propose. Listening to the problems she encountered with regard to whether anti-social behaviour affects society or a group of people— more than one person or one household—I looked at Part 2, on housing. Clause 13 introduces provision for an anti-social behaviour injunction. The new section applies to,conduct … capable of causing nuisance or annoyance to any … person".The provisions set out what that means; it is quite clearly a person, a household.
I hope that it will be possible to review whether the constraint that the noble Baroness encountered is appropriately applied to her amendment. I should like to think that something equivalent to the whole of her Private Member's Bill, for which she fought for so long and so energetically and doughtily, if I may use that term, could be incorporated in the Bill. One does not get the relevant legislative opportunities that often. I congratulate the noble Baroness on taking advantage of this one. I hope that she is successful.
§ Earl Peel
I have a great deal of sympathy for my noble friend's amendment. I know how hard she has worked in the past to try to get her measure on to the statute book. However, I have one question for my noble friend. I hope that she does not regard it as frivolous as it is not intended to be in any way, shape or form. I am curious to know why she restricted high hedges to evergreens. After all, a beech hedge will hold its leaf throughout the year, albeit in a dead brown form. That, I should have thought, could be just as restrictive as a leylandii hedge. Indeed, during the summer months a high hornbeam hedge would be just as restrictive. As I say, I am curious to know why my noble friend restricted the measure to evergreens.
§ Lord Dixon-Smith
I support the principle of the amendment. Although having a tall evergreen hedge 251 may not constitute behaviour it can certainly be anti-social and it can certainly give rise to anti-social behaviour. To that extent I should like the Government to help get this measure on to the statute book if there is no other way to do so than through this amendment.
My noble friend Lord Peel asked an interesting question. However, I point out that although both hornbeam and beech are capable of retaining their leaves, they are usually kept trimmed when in the form of a hedge; otherwise, they look appallingly ragged. People may plant leylandii in all innocence forgetting that the wretched things will grow three or four feet a year once they are established, and will keep growing at three or four feet a year for the next 50 or 60 years by which time they constitute a huge problem. I could almost make a case for suggesting that leylandii should never be planted in urban areas at all. However, that is a separate issue. If the Government can treat the matter sympathetically, that would be for the good of many people in many places.
§ Lord Hylton
I suspect that the answer to the point raised by the noble Earl, Lord Peel, lies in the penultimate sentence of the amendment in the word "semi-evergreen" which I take to include any tree or shrub which retains its leaf throughout the 12 months.
§ Lord Bassam of Brighton
It falls to me to respond to the amendment. I do so with great sympathy for the case made by the noble Baroness, Lady Gardner. As she said, I responded to her Private Member's Bill from the Government Benches. I understand why inserting suitable provisions in the Anti-social Behaviour Bill is on the face of it a very attractive proposition. This is a thoroughly anti-social problem. I believe that the noble Baroness described people who are victims of it as hedge victims. She is absolutely right about that. We recognise that some people are victims of such anti-social behaviour on the part of their neighbours. I certainly admire the vigour with which she has attempted to argue the new clause into the scope of the Bill. Very skilfully, she has found a cunning way of trying to get it into the Bill. However, I have to suggest that to fit the matter into the Bill is far from comfortable. I do not believe that the amendment proposes a long-term solution to the problem that it seeks to address. The noble Baroness expressed that herself.
In particular, the new powers would apply only to high hedges that adversely affected the general amenity of an area. Again, the noble Baroness made that point herself. Sadly, that is likely to exclude hedges that impact only on a neighbouring property, which is where the majority of problems arise. It also suggests that the offending hedges might have to be publicly visible, which would rule out a lot of hedges that are in back gardens. The amendment might, therefore, cover only a fraction of the existing cases. As she knows, the department has had many cases drawn to its attention. She said that she has often been 252 inundated with correspondence on the subject. With our ministerial experience, we know how big the issue is.
Additionally, it is worth pointing out that it is unlikely that a local authority would be able, under the terms of the amendment, to require the long-term maintenance of a hedge at the lower height. The only way in which a local authority could deal with that continuing problem would be to issue a new remedial notice. In the end, the amendment does not offer the lasting solution that we all seek. It falls short of its target, and of the targets that have quite properly been established through consultation undertaken by the Government and through the Private Member's Bill.
In the circumstances, we think that we would probably better serve the majority of high-hedge sufferers by waiting for a more suitable legislative opportunity. That said, and without wishing to offer too much encouragement—I do not want to raise false expectations; it would be quite wrong and improper of me to do so from the Dispatch Box—the noble Baroness's point was that there might be some skilful draftsman who could find a way through the thicket of the issue and see whether it could be brought within the scope of the Bill. There may well be. Without going too far, it would certainly be worth our having a little look at that. As Members of the Committee have said, we do not get too many legislative opportunities, and I could not give a commitment as to when the Government could find a legislative slot in the future.
We as a government want to see such legislation ultimately on the statute book. We recognise the matter for the problem that it is. We have all said in this House that it frustrates us that we have not got further than we have. I greatly regret that the Pound Bill was frustrated in the Commons by Christopher Chope and Edward Leigh on Report. It lost valuable time, otherwise it would have come to this House and we would have had the opportunity to push it through, because it had a degree of government support. As I understand it, no further time is left for consideration of that Bill. The noble Baroness has done sterling work on the issue. In the end I am sure that she will be rewarded.
We do not feel able to support the amendment as tabled, although I fully sympathise with the noble Baroness. She has done a very clever job in bringing the matter forward in the way in which she has, but I hope that, for the reasons that I have given, she will feel that she should withdraw the amendment. I reiterate that final sympathetic point again: we will have a little look to see whether there is anything that we can do, but I do not want to raise expectations in saying that.
§ Baroness Gardner of Parkes
I thank the Minister for his reply, and thank those who have supported me on the amendment. I would like to answer the question raised by the noble Earl, Lord Peel. He was asking why deciduous trees or trees that held their leaves that were not classified as evergreen were not included. The reason is that the Government carried out very detailed consultation. In 1999, they issued a consultative document called High hedges: possible solutions. They 253 had an amazing number of responses—from 3,000 people and organisations. Normally, there may be only 100 or so. The results showed that 94 per cent of the respondents believed that new laws were needed to control hedges. Seventy-seven per cent of the local authorities which responded also supported that belief. A new system to allow local authorities to determine complaints was the most favoured; 72 per cent chose that option, including 67 per cent of local authorities.
Therefore, in our detailed discussions during the passage of the High Hedges Bill, it was clearly decided that no similar degree of consultation had taken place on deciduous hedges and on those which hold their leaves but are not evergreen. For that reason, it was felt that that public support was not so clearly demonstrated on this occasion. Deciduous hedges were not included but they were certainly debated at great length during the passage of the Bill.
I was interested in the point raised by the noble Baroness, Lady Hamwee, on other parts of the Bill which deal with individual cases. I shall be considering that again before the next stage. That was the ground on which the Public Bill Office said that the proposal could not be debated. However, it has proved not to be the case because individual cases are covered.
The Minister referred to the lasting solution that we are all seeking. We certainly are but we have been seeking it for too long. How much longer can we go on seeking it? He kindly said that he would have a little look at the proposal but I want him to have a great big look. I believe that this is an opportunity to include the equivalent of the High Hedges Bill in this Bill. I do not believe that there would be a problem with that in this House because we have debated the matter thoroughly over many years. We have ironed out all the problems.
If that were the case, "ultimately"—the Minister said he wanted ultimately to see it on the statute book—would not mean waiting for ever. It would mean that it was within sight. I shall not overlook the issue. I shall read Hansard and study the points made by the noble Baroness, Lady Hamwee. Members of the Committee will be pleased to hear that at this stage and at this time of night I shall beg leave to withdraw the amendment. We could talk on about it for ever because we are so used to it, but I beg leave to withdraw it.
Amendment, by leave, withdrawn.
§ [Amendment No. 194A not moved.]
§ 10 p.m.
§ Clause 56 [Sale of aerosol paint to children]:
§ Lord Dixon-Smith moved Amendment No. 195:
§ Page 45, line 19, leave out "eighteen" and insert "fourteen"
The noble Lord said: Clause 56 states:
A person commits an offence if he sells an aerosol paint container to a person under the age of eighteen".
We believe that 18 is leaving it a little too late. At 16 you can join the Army. Although you are not likely to be sent to the front line, you are being trained to go there. You can buy cigarettes and smoke; you can
go to the pub; and you can legitimately have sex. At 17 you can start driving a scooter and might have pitched off, scratched the paint and want to restore it. When you later start to drive a car, you might want to camouflage a scratch you put on your parent's vehicle in a minor scrape with the garden gatepost.
§ There are many things you can do at 16—we are even considering giving people the right to vote at 16— but you cannot be sold an aerosol paint can. That is to be an offence. It is not to be an offence to possess a can but it will be an offence for the shopkeeper to sell you one. That is ridiculous and we have suggested that the age of 14 is more appropriate. I beg to move.
§ Lord Whitty
According to the Marshalled List, the noble Lord, Lord Dixon-Smith, is to have two goes at this issue. Therefore, I am grateful that he kept the first one short. With regard to clause stand part, I understand that he is to suggest that we delete this whole provision. I can understand the logic of that, and we could have a long argument about what one can do at each age. I believe that the noble Lord, Lord Dixon-Smith, and I have been around that course once or twice when dealing with various pieces of legislation.
However, the proposal to reduce the age limit from 18 to 14 is most illogical. I could understand it if the noble Lord said that we should do nothing because possession is not an offence. But all the indications are that the largest number of people who use such sprays for graffiti are probably aged from 14 to approximately 18. One can possibly argue whether the upper age is 17 or 18 but, if the age limit were reduced to 14, that would exclude a vast number of people who commit the offence. I believe that the noble Baroness, Lady Hamwee, may be familiar with the report last year to the London Assembly on this matter. It showed that a significant proportion of such offences were carried out by people of that age.
One can argue that, should paint be needed to touch up a scooter or whatever, there are other ways of acquiring it through one's parents or other adults. However, if we are to do something in this field, it will be totally illogical to reduce the age limit to 14. If the noble Lord wants to return to that argument when we deal with the next grouping, we can go round the course again. However, we believe it is important that we recognise the problem caused by youngsters who create huge graffiti with aerosol sprays. While I do not necessarily champion all aspects of policing policy in New York, I believe that the noble Lord will know that New York has a similar provision and that it has achieved certain success as a result of it. Therefore, I very much resist this proposition.
§ Lord Dixon-Smith
I was interested in the Minister's opening remarks when he said that he considered a better way of dealing with this issue would be during debate on the next item on the Marshalled List—the Question whether clause stand part.
§ Lord Dixon-Smith
In my book, "more logical" is also "better". I believe we should deal with the case of 255 New York, which does not have a proposal to lower the voting age to 16 while it is being discussed by the Electoral Commission. Clearly certain issues are involved. I am prepared to accept that 14 may not be an appropriate age but, if it is inappropriate, it is no more so than 18. Perhaps somewhere in the middle is a haggle point. I have heard what the Minister has said. I shall consider it but, for now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 196 not moved.]
On Question, Whether Clause 56 shall stand part of the Bill?
§ Lord Dixon-Smith
We considered that we should argue that this clause should not stand part of the Bill because new powers in the Criminal Justice Bill will allow police to stop and search those suspected of carrying items to be used for criminal damage, which of course includes graffiti and therefore includes aerosol paint. Thus, we believe that this power is excessive in the light of that one, which would be more effective if it were applied.
I believe that catching young people with aerosol sprays with intent is likely to be far more useful than putting shopkeepers at risk and making them liable. The Minister might argue otherwise but, because the Criminal Justice Bill provides these powers, we considered this provision to be overkill as the Bill is drafted and that it would be better if the clause were not included.
§ Baroness Hamwee
My noble friend said when the issue of intent was mentioned, "How would one know?". I am sympathetic to the inclusion of a provision in the Bill. I am possibly influenced by the fact that a couple of years ago my honourable friend— and friend—the Member for Richmond Park, introduced a Private Members' Bill to prohibit the sale of spray paint to minors.
I apologise for not giving the Minister notice of the two questions that I want to ask him on this subject. They came to my attention just before I came into the Committee. The first concerns the word "sell". I understand that in a similar section in the London Local Authorities Bill, which is currently before Parliament, the term is "supply", which is wider than "sell". It is probably the term that is normally used in consumer protection-type legislation. I suspect it may be difficult for the Minister to respond to this point now, but at least the question is on the record.
My second question concerns the phrase in the defence provisions, "all reasonable steps". Again, I am told that until fairly recently similar legislation referred to "taking all reasonable precautions" and "exercising all due diligence". I believe that that is a term in the Trade Descriptions Act. Case law has now been established on what is meant by "taking reasonable precautions" and "exercising all due diligence". The due diligence leg is believed to be important as it helps to protect shop assistants who have not had much training or support.
256 I hope that the Minister may be able now or at the next stage of the Bill to respond to those questions. I put the matter that way because if there is an issue about the interpretation of the words, clearly the matter should appear in Hansard rather than just in correspondence. I hope that the Minister may be able to clarify that "all reasonable steps" means setting up a system and checking that it is being observed so that in practice those who are concerned can relate to other similar but not quite the same legislation.
§ Earl Attlee
I strongly support my noble friend Lord Dixon-Smith. I recognise the need to do something about the problem, but I believe that Clause 56 is totally disproportionate because very few people misuse aerosol paint and if one does not use aerosol paint one can use ordinary paint. Has the Minister considered creating an offence of possessing an aerosol can in a public place without lawful reason or excuse that is similar to the current legislation for possessing an offensive weapon in a public place?
One would normally have a lawful reason or excuse for carrying a tool that is used to maintain a vehicle, but if one went to a football match with a Stanley knife in one's pocket one would be in serious trouble. If a person could prove that he was going to repair a car, he would not have a problem. Also if someone was out late at night with an aerosol can in his pocket, he would have a problem. If he was just about to paint his car with an aerosol can of the same colour as the car he could easily offer a defence. What consideration has the Minister given to creating an offence of carrying an aerosol can in a public place without lawful reason or excuse?
§ 10.15 p.m.
§ Lord Whitty
I note the division on the Conservative Benches: the noble Lord, Lord Dixon-Smith, wants to reduce the number of offences; the noble Earl, Lord Attlee, wants to increase them. Indeed, in a sense, the noble Earl, Lord Attlee, gave me the answer to the noble Lord, Lord Dixon-Smith, who asked: if there is already an offence of using something for criminal damage, why not just leave it at that, rather than hit the salesman? The answer to that is by reference to knives, for example, to which the noble Earl, Lord Attlee, referred, where there are restrictions on sale as well as on carrying and use.
To try to answer the noble Earl, Lord Attlee, it is not different from the problem of establishing intent, in the sense that if someone is carrying an aerosol, it is reasonable to assume in most cases that he will be using it for a lawful purpose. One would have to witness the offence of creating graffiti before establishing the intent to do so; whereas if someone is carrying an offensive weapon, especially to a football match, the balance of proof would lean very much towards establishing intent to use for criminal purposes. So the issue of lawful purpose and of intent are of more or less the same difficulty. Because of that, the point at which we can legislate beyond what is in earlier legislation is at the point of sale, as it is in relation to the sale of offensive weapons.
257 I shall have to write to the noble Baroness, Lady Hamwee, about the difference between sale and supply, although it is clear that supply catches a larger number of people. Simply having a range of paints available at a cycle club could lead to a charge to supply. We would not want to include such arrangements. I shall also write to her about "all reasonable steps", although my recollection is that other pieces of legislation still use those terms without great difficulty of interpretation in the courts.
There is a central issue between us: whether we legislate in this field or not. The noble Lord, Lord Dixon-Smith, would prefer not to or, if we must, reduce the age to 14; I prefer to legislate in this field. There is an argument about whether we should go as far as 18; the noble Lord hinted that he might be prepared to consider a compromise there. Without making any undertakings, I shall also consider whether 14 to 18 is precisely the optimum range. It is likely that the Government will return resisting the deletion of the clause, even if we may tweak the precise figures therein. The noble Lord will have to await the outcome of our consideration of that until Report.
§ Earl Attlee
What is to stop a 19 year-old from purchasing a case of 12 cans of aerosol paint and then selling them to his 18 year-old friends for a modest profit?
§ Lord Whitty
He would then be selling them and be caught by the same provision as covers sale in a shop.
§ Lord Dixon-Smith
Before we leave the matter, this has been a useful discussion. I should point out that there is nothing to stop the 19 year-old from going out to buy a case of spray cans and creating the graffiti himself. Of course, that is a separate issue; there will be those who are irresponsible enough to do that, but I should like to think that most young people are much more responsible than the Bill implies.
In his response, the Minister hinted—I say no more than that—that he may reconsider the age limit in the clause. I take that as modest encouragement and withdraw my opposition to the Question that the clause stand part, although I may well bring back a proposal on another occasion.
Clause 56 agreed to.
Clause 57 [Unlawfully deposited waste etc]:
§ Baroness Hamwee moved Amendment No. 196A:
§ Page 46, line 5, leave out subsection (4).
§ The noble Baroness said: The amendment is grouped with Amendments Nos. 197 to 199. The noble Lord, Lord Dixon-Smith, has tabled Amendment No. 197, he and the Government share Amendment No. 199, and the Government have tabled Amendment No. 199.
§ I join the noble Lord, Lord Dixon-Smith, in objecting to seeing the Government set local priorities. The noble Lord approaches the issue by proposing the deletion of subsection (1) of proposed new Section 59A of the Environmental Protection Act 1990. It seems 258 that we can stop the Secretary of State issuing directions about the categories to which local authorities should give priority for the purposes of Section 59 of the Act only if we remove all of new Section 59A. That is a rather long way of saying that we should leave it to local authorities. Why do the Government have to intervene yet again? I beg to move.
§ The Deputy Chairman of Committees (Lord Hogg of Cumbernauld)
If Amendment No. 196A is agreed to, I cannot call Amendments Nos. 197 or 198 due to pre-emption.
§ Lord Dixon-Smith
I listened to the noble Baroness, Lady Hamwee, with interest. I am bound to say that she has taken the right approach. The logical thing would be to remove subsection (4) entirely. The provision involves micro-management and interference with local authorities on a grand scale—if micro-management can be on a grand scale.
I am encouraged that the Minister supports one of my amendments in that at least she must acknowledge that there is an element of overkill in this part of the Bill. That means that there is at least a case to answer. Given that apparently the Government are prepared to concede part of the case that I have made, will they consider looking at the wider case made by the noble Baroness, Lady Hamwee, and accept her amendment rather than ours? In any event, I am happy to speak in favour of this group of amendments.
§ Lord Hylton
I welcome the Government's Amendment No. 199 about collecting information on what has worked. That may give me a little comfort, because the Explanatory Notes refer to,better detection of the perpetrators of the crime".The problem is that usually there are no witnesses. In one local case in Somerset, we managed to find an envelope in the rubbish giving the address of the perpetrator—that worked. But in other cases fridges have been dumped by the side of a highway with little chance of discovering who did it. We would all be grateful if the Government could say more about how they intend to make the provision effective in practice.
§ Lord Whitty
This has become a complex group of amendments. The noble Lord, Lord Hylton, referred to my Amendment No. 199, which relates to the collection of information so that we can devise better strategies for identification, prosecution and prevention. Most people would welcome those powers. However, the amendments in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Dixon-Smith, would delete the powers of the Secretary of State to give direction to the Environment Agency and the Local Government Association about which problems of waste, fly-tipping and other offences should be concentrated on.
Both the Local Government Association, which the noble Baroness, Lady Hamwee, normally cites in support of her position, and the Environment Agency, favour those powers to give clarification to what is 259 currently a voluntary arrangement between the Environment Agency and local government whereby there is a division of responsibilities. Broadly speaking, the Environment Agency is supposed to deal with the fly-tipping of hazardous waste and serious environmental crime, and local authorities are supposed to deal with incidents involving non-hazardous waste. There will need to be clarification of that position and what is done to pursue it which can be in the Secretary of State's direction. I therefore resist any attempt to remove those powers from the Bill.
Amendments Nos. 196A and 198 would remove the power to require data. Being opportunistic, I will accept Amendment No. 198 in order to clear the way for government Amendment No. 199, which is a rather better requirement for data than the original Bill. I resist Amendments Nos. 196A and 197 and accept Amendment 198. When we come to it, I shall move Amendment No. 199 to give the Government and all the agencies concerned the basis on which to move forward to deal with what we all recognise to be a horrendous and growing problem for both urban areas and the countryside.
§ Baroness Hamwee
There is indeed a problem. When I was a local councillor, at the lowest end of the scale, I was constantly irritated by the problem of bags of rubbish that used to appear at the same point on the road. Clearly, trades people were dumping rubbish to avoid paying for its collection. However, they were always smart enough to remove any envelopes from the bags.
Listening to the Minister explaining the provisions, I now read the clause quite differently. I would not be so impolite as to say that the amendment clears up some unclear legislation, but his explanation came close to suggesting that. If that is the case, I am far more sympathetic and will stop seeing conspiracies. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 197 not moved.]
§ Lord Dixon-Smith moved Amendment No. 198:
§ Page 46, leave out lines 12 to 16. On Question, amendment agreed to.
§ Lord Whitty moved Amendment No. 199:
§ Page 46, line 20, at end insert—
- "(4A) In section 71 of the Environmental Protection Act 1990 (c. 43) (obtaining information from persons and authorities), after subsection (3) insert—
- "(4) The Secretary of State may, by notice in writing, require a waste regulation authority or waste collection authority in England and Wales to supply to him, or to such other person as may be specified in the notice, such information as may be so specified in respect of—
- (a) cases where the authority has exercised any powers under section 59 above, and
- (b) cases where the authority has taken action under any other enactment in respect of any deposit or other disposal of controlled waste in contravention of section 33(1) above.""
§ On Question, amendment agreed to.260
§ 10.30 p.m.
§ Clause 59 [Public assemblies]:
§ Lord Dixon-Smith moved Amendment No. 200:
§ Page 47, line 17, leave out ""2"" and insert ""10""
The noble Lord said: The Bill says:
In section 16 of the Public Order Act 1986 (c. 64)(which defines 'public assembly' for the purposes of the power in section 14 of that Act to impose conditions on public assemblies), in the definition of 'public assembly' for '20' substitute '2'".
That is a fascinating extension of the law. If two people meet on the corner of a street, they are a public assembly for the purposes of the Public Order Act 1986, as amended by this Bill. That cannot be reasonable, so we have suggested that the figure should not be two, but 10, which might just about be a "public assembly". In the days of my youth, we had things such as young farmers' clubs and all sorts of other young people's groups. All of them would be public assemblies under the definition in the Act and would, technically, be susceptible to immediate intervention and control by the police. I cannot believe that that is right, so we tabled the amendment to explore precisely what the Government mean by the provision.
§ I cannot for the life of me see how one could define a meeting between two people as a public assembly. On occasion, we have discussions in the Bishops' Bar on the most outrageous subjects that would be an offence under a good many Acts of Parliament, I suppose, as part of the normal day-to-day conversation in this place. That is not what this is all about either. I am fascinated by this and look forward to hearing the Government's explanation. I beg to move.
§ Lord Avebury
I agree with the noble Lord, Lord Dixon-Smith, but I ask the Government, "Why stop at two? Why not go down to one?". If the police have suspicions that two people meeting together in a public place may, in the words of Section 14 of the 1986 Act, cause,serious public disorder, serious damage to property or serious disruption to the life of the community",they might entertain the same suspicions about one individual. They could prevent that individual engaging in activity that would result in serious public disorder by issuing him with a notice requiring him to observe certain conditions, if he challenges the right of the police to prevent him walking on the public highway or doing anything that, the police think, will cause serious public disorder, damage to property or disruption to the life of the community.
In reducing the number to two, do the Government have a specific case in mind? If they do, we should hear about it. There was intimidation, for example, at Huntingdon Life Sciences, and people engaged in assemblies on the premises of that company with a view to intimidating employees and causing damage to property. Is this clause the right way to deal with such cases? There are already provisions on the statute book, such as those in the Protection from Harassment Act 1997, that could have been used against those individuals.
261 We must hear from the Government about the circumstances that they have in mind in which two people could constitute such a threat. Why does not the principle apply equally, if there is only one person?
§ Lord Hylton
I agree with the previous two speakers. The noble Lord, Lord Avebury, spoke about intimidation. That is a more serious kind of offence than causing a public order disturbance. I notice that the clause is headed "Public order". Will the Minister say what representations the Government have received on the point from youth organisations and from organisations concerned with civil liberties and human rights in this country?
§ Baroness Scotland of Asthal
I am more than happy to assist in the matter. I say straightaway to the noble Lord, Lord Dixon-Smith, that I am glad that he elucidated that this is a probing amendment. I was somewhat curious that he was piloting an amendment on behalf of his party in this Chamber which seemed to be directly contrary to that piloted in the other place. But I now understand why that is so.
§ Baroness Scotland of Asthal
I hear the noble Lord, Lord Hylton, say that this is a more sensible place. I, in modesty of course, could not comment.
Clause 59 amends the definition of public assembly from an assembly of 20 or more persons in a public place to an assembly of two or more persons. Its purpose is to give the police the ability to impose conditions, in limited circumstances, on small groups of intimidatory protestors where they are exercising powers under Section 14 of the Public Order Act 1986.
Clause 59 does not seek to curtail a person's right to assemble or to protest peacefully. It is targeted at those who have a pernicious intent by coming together for intimidatory purposes.
As the Committee will know, Section 14 allows a senior police officer to impose conditions on a public assembly, but only where he reasonably believes that serious public disorder, damage to property or disruption to the life of the community might result, or if he believes that the purpose of the demonstration is the intimidation of others with a view to compelling them not to do an act they have a right to do. So conditions include the place where an assembly may be held, its maximum duration and the maximum number of people who may constitute it. The noble Lord, Lord Avebury, asked why one cannot assemble on one's own. One usually has to consort with another. Usually, the provision is where two or more are gathered. We have chosen two.
The power enables the police to take quick action to negate and control the effects of an intimidatory protest without having to arrest large numbers of people. Therefore, it would be possible for the officer to disperse such a group and that would suffice.
262 Clause 59 would provide the police with the ability to impose conditions in the same circumstances on much smaller protests, such as intimidatory protests conducted by animal rights protestors outside the premises of targeted companies. The noble Lord, Lord Avebury, asked whether we could do that using the Protection from Harassment Act. There are real difficulties with that. These provisions will enable swift action to be taken by the police to enable them to give relief.
§ Lord Avebury
Can the noble Baroness tell the Committee what are the difficulties in using the Protection from Harassment Act? Perhaps I may offer her another alternative: why not use Section 4A of the existing Public Order Act?
§ Baroness Scotland of Asthal
At this time it would be difficult for me to go through all the issues in relation to harassment, but it is critical that we now address this specific targeted problem. The noble Lord mentioned the Huntingdon Life Sciences issue. He knows of the difficulties that arose in that case with protestors assembling, usually just one below the requisite number, and behaving in a very intimidatory way so as to make life virtually impossible for people. In those circumstances, if the conditions I have just outlined are met, the police need to be able to disperse that group so that that behaviour ceases. That is really what this kind of offence is targeted at.
Noble Lords will know that it would be possible to arrest 20, 30 or more people in this way. But is that the best way of dealing with it? Is it necessary? Does that fuel an issue to make it worse or does it help make it better? This is a quicker, more direct, and, it is to be hoped, easier way of dealing with it, which we trust will be effective. While the police use the powers mentioned by the noble Lord to report and arrest individual protesters—for example, those who are shouting abuse or holding up offensive banners—they can use the power only in respect of individuals who are committing specific acts. This legislation does not provide the police with the ability to deal with a small group of intimidatory protesters as a whole. That is why this approach is likely to be more successful.
The reduction in the number of persons which constitute a public assembly does not give the police any power to prohibit protests by small groups of demonstrators. It simply means that where the threshold set down in Section 14 of the Public Order Act 1986 is met, a police officer may impose conditions on that group. I am sure that the noble Lord, Lord Dixon-Smith, will recognise that activists are often well versed in the law and know that the police can impose conditions only where there are 20 or more persons. That is why they generally protest in far smaller groups or in a larger group which is split into several smaller groups in order to frustrate the police. While the police have powers to deal with individual misbehaviour, they require something further. Therefore, I think that 19 has become a good number of activists because it is one below the threshold.
263 Existing legislation which deals with public disorder and criminal acts is not sufficient. We fully accept that people have a right to protest about issues on which they hold strong views and with which many people may not agree. There is, however, a balance to be maintained between someone's right to protest and the expression of sincerely held beliefs and the rights of those who are engaged in lawful activity. I hope that with that explanation both the noble Lords, Lord Hylton and Lord Dixon-Smith, and even, perhaps I may say, the noble Lord, Lord Avebury, will feel more content than before we discussed the amendment.
§ Lord Hylton
Will the Minister consider getting the rubric above this clause changed and amplified to make it clearer?
§ Baroness Scotland of Asthal
We can consider that, but we think that the clause is clear now. I shall take it away and we can look at the clause. I do not guarantee that I shall come back with anything more appropriate, but we shall certainly look.
§ Lord Dixon-Smith
I am glad that we have had the discussion because certainly we are all better informed as to the Government's intention and the need for these particular numbers. I hope that the noble Baroness will forgive me for making the slightly tart comment that this duplicates Clause 30, but without the safeguards of Clause 31. That is pretty well exactly what it is; Clause 30 deals with people who have been upset by assemblies of people who can be moved on. But there are safeguards in Clause 31.1 shall consider what has been said and we may need to return to this issue. A distinction of debate between Members of the same party between the two Houses is not unknown. If it elucidates useful information, I do not apologise for it. I beg leave to withdraw the amendment.
Amendment, by leave,
withdrawn. Clause 59 agreed to.
§ 10.45 p.m.
§ Lord Bassam of Brighton moved Amendment No. 200ZA:
§ After Clause 59, insert the following new clause—
- (1) Section 63 of the Criminal Justice and Public Order Act 1994 (c. 33) (powers in relation to raves) is amended as follows.
- (2) In subsection(1) for "100" substitute "20".
- (3) After subsection (1) insert—
- "(1 A) This section also applies to a gathering if—
- (a) it is a gathering on land of 20 or more persons who are trespassing on the land; and
- (a) it would be a gathering of a kind mentioned in subsection (1) above if it took place on land in the open air."
- (4) In subsection (2) omit "in the open air".
- (5) In subsection (7) for "this section" substitute "subsection (6) above".
- (6) After subsection (7) insert—
- "(7A) A person commits an offence if—
- (a) he knows that a direction under subsection (2) above has been given which applies to him, and
- (b) he makes preparations for or attends a gathering to which this section applies within the period of 24 hours starting when the direction was given.
- (7B) A person guilty of an offence under subsection (7A) above is liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale, or both.""
§ We all know that raves can disrupt the peace and tranquillity of many local communities, in particular during the spring and summer months. I could regale noble Lords with certain unpleasant experiences during my time as leader of my local authority. Because of the hour I shall not do so. However, it should be understood that the Government understand the impact of raves on local communities and we are keen to deal with the problem. We are also grateful that that keenness to act is shared across the Committee.
§ I recognise that the effect of raves is not limited to the duration of the event itself. These gatherings can bring noise nuisance and traffic congestion on small, wholly unsuited roads. Rubbish may be deposited in often very attractive surroundings.
§ The legislation relating to raves goes back to the Criminal Justice and Public Order Act 1994. It was introduced as a response to what the government of the day saw as the growing phenomenon of the rave and the difficulties that this type of unstructured event was likely to cause. Since the introduction of that legislation, we know that the tactics of rave organisers have changed and we recognise the need for the legislation to be updated. In my experience, rave organisers are clever and use the best of modern technology, in particular the mobile phone, to make their arrangements. It is therefore necessary to disrupt those tactics and, in essence, that is what this proposed legislation seeks to do.
§ The issues relating to raves were raised during the Commons stage of the Bill. Further, it is a matter often raised by members of the public in correspondence. We are pleased to have this opportunity to table amendments in this Bill to Section 63 of the Criminal Justice and Public Order Act 1994.
§ Raves have been organised in buildings such as barns and disused warehouses. In the past the police have been powerless to act as the current legislation applies only to land in the open air. We therefore propose to extend the legislative powers to include indoor trespassory raves.
§ Rave organisers have been restricting the number at events to below 100 people in order to frustrate the operation of current legislation, so we propose to amend it to include indoor and outdoor events where 265 20 or more people are present. This aims to ensure that it is no longer commercially viable to organise an unlicensed rave. It should be noted that, for the organisers, raves have been highly profitable events. When speaking to young people who have attended them, many believe that they were badly ripped off. They may have had a good time at a rave, but they certainly paid for it.
§ Finally, the police have reported many occasions where rave organisers who have been given a direction to leave have simply moved to another area—a fallback position—to set up another rave. Again, I came across that problem during my time in local government. We propose to make it an offence for a person on whom a direction has been served to attend another trespassory rave within 24 hours of the direction being given.
§ The proposals will not be perfect and catch every event, but we think that most of the events that in the past have led to problems should be curtailed. The Government believe that these amendments will strengthen the current powers so that the police can provide relief to communities. They will be warmly welcomed by the Association of Chief Police Officers and, no doubt, by officers working on the ground.
§ I hope that the noble Lord opposite will welcome these government amendments and that, in the circumstances, he will not feel the need to press his own amendments. I beg to move.
§ Earl Peel
I am grateful to the Government for introducing the amendment, not least because I was going to cite endless cases. I no longer have to do so, which is a relief for me and will be much more a relief for Members of the Committee.
As regards subsection (3), which seeks to insert new subsection (1A) into the 1994 Act—I believe there is a misprint in that there are two paragraphs "(a)", the second of which should be paragraph "(b)"—I believe that the Minister said that both paragraphs (a) and (b) specifically refer to indoors and outdoors gatherings. I believe the noble Lord said that but I want to seek absolute confirmation.
Paragraph (b) of proposed new subsection (7A) refers to a period of 24 hours. I very much welcome this provision—it goes further than the amendment of my noble friend Lord Dixon-Smith—but I wonder whether 24 hours will be enough. If there were a further extension—say to 48 hours—it would obviously act as an additional deterrent, not least because people can remain in an area for 24 hours without too much discomfort whereas if the period was 48 hours they might be more inclined to return from whence they had come. Perhaps the Government will consider extending the period of 24 hours. I very much welcome the amendment. It is a major step forward.
§ Lord Bassam of Brighton
It is our intention to cover indoor and outdoor raves. The noble Earl has clearly understood what I meant.
266 The question of hours is a difficult point. Certainly, thinking back to one particularly perverse experience in our locality, the noble Earl is quite right. The 1994 Act was in place and law enforcement officers felt unable to move against a particular rave that had gone on over two days. I can see the difficulty that, having displaced it and moved it on, they may well experience similar caution in wanting to take decisive action.
I do not want to make a promise from the Dispatch Box that I cannot fulfil. I have noted the noble Earl's comments; I will say no more than that. Obviously Ministers and officials will want to look closely at what the noble Earl said and it may well be that they will wish to give the question of 24 hours vis-à-vis 48 hours further consideration. I can say no more than that.
§ Lord Dixon-Smith
If I had had the opportunity I would have welcomed Amendment No. 200ZA quite warmly and we would not have had to wait quite as long to reassure the noble Lord, Lord Bassam of Brighton.
The amendment is welcome. It may not be perfect— my noble friend Lord Peel raised an interesting point which is worth further consideration—but, on the strength of Amendment No. 200ZA, I am happy not to move my amendment.
§ Lord Avebury
If this problem has been so widespread, why was it not noticed until after the Bill was drafted and therefore necessitated an amendment being brought forward at this fairly late stage? The 1994 Act had been on the statute book for nine years before these proposals were brought forward. They could have been incorporated in the Bill when it first came before another place if the evidence had been available to support them.
The noble Lord referred to submissions by ACPO. I have not seen them. That does not mean to say that other Members of the Committee are not aware of representations by ACPO on the matter, but it would have been useful if that evidence had been laid before the Committee to support what is quite a drastic extension of the 1994 legislation, which is designed to prevent huge outdoor parties causing a nuisance and is now to be extended to quite small indoor parties.
Is it contended that the local authorities do not have adequate powers to deal with noisy parties in urban areas and that local environmental health officers are not fully discharging their duties to shut down illegal parties or to ask people to turn the sound down when complaints are made? If that is the case, we need to know why the existing legislation on these matters has not been effective and what representations the Government have had from environmental health officers or the local authorities. If the Government have evidence that widespread nuisance is being caused by small parties and that local authorities have expressed the view that their existing powers are inadequate, we are open to persuasion. On the whole, however, I am not keen on the proposal to extend the range of criminal offences without good reason, as this clause does, especially not when those offences attract custodial sentences.
267 Our other concern is that demonstrations frequently require the use of a sound system. We would not like these powers to be used to prevent the legitimate expression of views of political importance by small numbers of people who would, on the face of it, be affected by these provisions.
§ Lord Bassam of Brighton
I think I will deal with the last point first. It is not our intention for this legislation to fetter the rights of people quite properly to express their views on matters of a political nature.
On the noble Lord's other points, separate legislation can be used to deal with noisy parties. What we are talking about here is rather different from noisy parties; we are talking about situations in which a small number of organisers take over and occupy for a period of time a building or a piece of land. When they realise that the game is up because of the nuisance they are causing, they move on and do the same thing somewhere else in a pre-prepared, carefully worked out scheme.
I do not know how much experience the noble Lord has had of these events, but I can tell him they are a major headache for those charged with the responsibility of investigating the nuisance, taking enforcement action and making sure that those involved are deterred from a repeat exercise. I had a lot of experience of this as leader of my local authority back in the mid and late 1990s. I have some very good examples of the circumstances in which complaints have been made and the police have not felt able to take swift and effective action.
I can see that the noble Lord is bursting to speak, and I will give way. Let me first say that we are trying to deal with a real and genuine nuisance that has come to light through correspondence. It has been drawn to our attention by Members of Parliament and has come up during debates on this legislation which deals with anti-social behaviour. We think it is proper to respond to that.
The views of the Association of Chief Police Officers are plain and clear on this. Its members understand the need for this legislation and are very supportive of the approach that we are adopting.
§ Lord Avebury
I was certainly not challenging the noble Lord's anecdotal accounts of these raves. I am conscious of them, having received correspondence about them. I was simply asking him to produce evidence in the form of representations either by local authority associations or by ACPO. He says that ACPO has made representations; could we see the copies? Could he place them in the Library of your Lordships' House?
§ Lord Bassam of Brighton
I did not actually say that ACPO had made representations on specific cases. I have three very good examples which I am happy to share with the noble Lord.
In September 2000 there was a rave in Tolworth in Surrey. Massive disruption was caused to residents after a weekend-long rave took place on farmland. We received several letters on the issue from the local MP as well as residents.
268 In December 2001, Graeme Stephens, a farmer in Essex, had one of his barns broken into, and an illegal rave then took place. Police could not take any action as the rave was indoors and attended by less than 100 people, hence our desire to shift the threshold. The farmer was arrested for a breach of the peace when he tried to break up the event, and this made national press headlines.
There was a rave in January 2002 in Lincolnshire. Over the Christmas and New Year period in 2001, a farmer called Mr Benton and his family had one of his buildings broken into—damage caused by an illegal rave that took place on their premises. Police could take no action, as yet again the event was indoors and attended by fewer than 100 people. Again, that story made the national press.
Those are anecdotes, but they are well recorded ones. I am confident that the department could bring forward other examples. It is for those reasons that ACPO is firm in its support for our proposed changes.
I believed that there would be all-party agreement on the issue. I understand that the noble Lord, Lord Avebury, comes from a particular political perspective. However, if he argues against the measure he is arguing in a strange sort of way to protect the civil rights and liberties of a minority of those who wish to organise events that, in themselves, can overtake people's lives in a particularly unpleasant and dramatic way, causing noise, nuisance and disturbance over long periods of time, and considerable disruption to people leading a peaceful existence and going about their ordinary business. I am sure that it is not his intent to protect the civil rights of those who are out to cause a nuisance in that way, but it is sounding awfully like it as I listen to this evening's discussion.
§ Lord Avebury
I do not want to prolong these proceedings, but I have asked the Minister the question twice, and I shall put it to him a third time. Will he please let me have any evidence, in the form of statements or representations by either ACPO or local authority associations, which he has received in his department?
§ Lord Bassam of Brighton
I am happy to see whether we can share whatever information we have with the noble Lord, and I shall ask our officials to do exactly that.
§ On Question, amendment agreed to.
§ [Amendment No. 200A not moved.]
§ 11 p.m.
§ Clause 60 [Aggravated trespass]:
§ Lord Dixon-Smith moved Amendment No. 200B:
§ Page 47, line 21, leave out subsection (2) and insert—
- "(2) In section 68 (offence of aggravated trespass) for subsections (1) and (2) substitute—
- "(1) A person commits the offence of aggravated trespass if he trespasses on land and, in relation to any lawful activity which persons have engaged in, are engaging in
269 or are about to engage in on that or adjoining land, does there anything which is intended by him to have the effect--
- (a) of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity,
- (b) of obstructing that activity, or of disrupting that activity.
- (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 purposes 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.""
§ In the case of GM crops, the situation is more complicated. Under the law as it stands, provided that the person who is ripping up the GM crop satisfies himself that the farmer is not actually present, he cannot be charged with trespassing. The damage done to the crop and therefore to the farmer's livelihood is no less, whether or not the farmer is present. We tabled the amendment bearing those points in mind, and the serious disruption that such disturbances have caused in the countryside and to many people who participate in country sports.
§ The amendment may not be perfect, because we may cause some difficulty by leaving out subsection (2). However, we need to explore the question, because the matter needs to be dealt with, so that those who protest about those activities can be more easily controlled. At the moment, it is tricky, and the police are considerably exercised about the matter. I beg to move.
§ Earl Peel
As one who played a part in getting the aggravated trespass clause into the Criminal Justice and Public Order Act 1994 I am particularly interested in my noble friend's amendment which I wholeheartedly support. There is clearly a loophole in the existing legislation which requires the Committee's attention. It really must be a nonsense when a clear case of aggravated trespass would have been committed if the owner had been present but no charge can be brought simply because he was not present. As my noble friend says, the effect of the damage is going to be the same regardless of whether the owner is there.
270 My noble friend cited the case of the individuals responsible for destroying GM crops. I have some sympathy with them, but that is not the point. The point is that the farmer was growing them quite legally. He was not present when the disruption took place and as a result no charge could be brought. So it is totally illogical for the Government to ignore my noble friend's amendment. As the open-air anomaly has been dealt with under Clause 60, I can only hope and assume that the Minister will find favour in the logic of allowing this loophole to be closed as well.
§ Lord Hylton
I support Amendment No. 200B. It rightly refers to "intimidating", "obstructing" and "disrupting". I recall writing to the noble Earl, Lord Ferrers, some years ago when he was at the Home Office on precisely those kinds of points in relation to sporting activities. I hope that the Government will feel able to accept this amendment.
§ Baroness Scotland of Asthal
I understand and sympathise with the purpose of this amendment. As noble Lords will know, it was as a result of a particular case that the issue,of intimidating those persons or any of them",raised under Section 68(1 )(a), was construed to mean that the person had to be on the premises before it could operate. I appreciate the difficulties and problems that that has caused in the successful prosecution of those who damage GM crops. We recognise that there is a need to look very carefully at the legislation in this area. However, I think that the noble Earl, Lord Peel, and the noble Lords, Lord Hylton and Lord Dixon-Smith, will also understand that the issues of GM crops are not easy. We think that it is important for us not to rush at this legislation. If I may speak frankly, we thought that we had got it right last time. We are going to have to look at this very carefully because we want to ensure that if and when we legislate further we have done all the consultation and all the reviews, to ensure that we have the right solution.
I appreciate that the noble Lord, Lord Dixon-Smith, has added to subsection (2) the words,whether or not the person or persons who may engage in the lawful activity are physically present",so as to cure the perceived flaw. We are simply not sure that that is all that may need curing. We very much sympathise with this and we will look at it. Depending on what those deliberations evoke, we may seek to legislate on this issue at a later date. However, if we do so, it will be on a more comprehensive basis.
§ Lord Hylton
Does the Minister appreciate that this is a long-standing matter? I quoted correspondence that I had with the noble Earl, Lord Ferrers, nine or 10 years ago. The matter went on before that and it has been going on ever since. So it really is a matter of urgency. Will the Government come back at the next stage of the Bill with a better amendment than this one?
§ Baroness Scotland of Asthal
I cannot give the noble Lord the assurance that that will be the case. I have 271 tried to explain that we are undertaking wider government-sponsored dialogue in relation to these issues. The noble Lord is right that they are important issues. He will know the intensity with which these issues are being debated and the importance of the sensitivity that we have to apply to get the matter right. We do not want to act precipitately. I understand the passion and the desire to use this piece of legislation to fix things. I am simply saying that I do not believe that we can do it here.
§ Earl Peel
Before my noble friend replies, I believe that the noble Baroness said that we need to be careful regarding GM crops. That is not the only issue; there can be other cases. I do not think that we want to hang this argument on GM crops. The point was made that the farmer who had his GM crops destroyed was growing those crops perfectly legally. The fact that he was not present meant that the case could not be proceeded with against the perpetrator.
§ Baroness Scotland of Asthal
The noble Earl is absolutely right; the provision is not limited simply to GM crops but has wider application. Members of the Committee will know that in the world in which we now live there are other technological developments that we shall also incorporate. That emphasises why we have to get the matter right. As I said, we thought that we had a formula which would successfully enable prosecutions to take place where appropriate. We have had to think again as a result of the cases that have arisen. Therefore, we must ensure that when we craft the new piece of legislation—if we believe that legislation is appropriate—we frame it in such a way that it is robust, effective and does the job that we all wish it to do. As I said, we thought that we had achieved that previously, or rather, if I may respectfully say so, the party opposite thought that it had the matter right previously, but we know what has happened.
§ Lord Dixon-Smith
I agree with almost everything that the noble Baroness said except as regards the reason for delay. We are not talking about the problems, ethics and morality of GM crops, nor are we talking about the problems that might arise due to any other technological development which the noble Baroness says must be taken into account. We are talking about a problem of aggravated trespass. That will be aggravated trespass whether we are dealing with the destruction of GM crops or of conventional crops.
I do not have a great deal of sympathy with the reason given for delay; nor is it acceptable that if this amendment is not in an entirely appropriate form, the Government cannot, having acknowledged the need, produce a measure at any rate before Third Reading. We have a date in November for Third Reading. Therefore, we have a month. I should have thought that someone could be set down in a darkened room with a cold towel round their head and told not to emerge until they had the answer. But that may not be the Government's way of doing things. Clearly it is not.
272 We have had an interesting discussion. There is general acknowledgement that there is a problem. I am grateful to the noble Lord, Lord Hylton, and to my noble friend Lord Peel for their support. As I say, there is a problem. The Minister acknowledges that there is a problem. This is an appropriate Bill in which to do something about it. I am very disappointed that so far we do not have a stronger assurance that something will be done. However, for now, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 60 agreed to.
§ Clause 61 [Power to remove trespassers: alternative site available]:
§ Baroness Turner of Camden moved Amendment No. 201: Page 48, line 9, after second "a" insert "single"
§ The noble Baroness said: In moving the amendment, I shall speak also to the other amendments tabled in my name, Amendments Nos. 202, 203, 204 and 205. I want to register the apologies of my noble friend Lord Wedderburn of Charlton, who added his name to the amendments but unfortunately is unable to be here.
§ I agreed to sponsor the amendments as a result of an approach by the Children's Society. I was a council member of Save the Children for some years, which also supports the amendments. I remember that when I was a council member of the society, we were often concerned about the effect on children of the lack of suitable sites for travellers. We were worried about whether they would have access to education and adequate healthcare.
§ Nowadays, there are added reasons for concern. Since the rapid transition in middle and eastern Europe from command economies to the free market, there has often been a breakdown in the structure that previously existed. In some cases, that has led to the emergence of a particularly unpleasant kind of racism, often allied to criminal activities. Roma people have suffered harassment and sometimes direct persecution as a result. That appears to be true of Slovakia, and of Kosovo, where Roma people have suffered ethnic cleansing at the hands of the victorious KLA.
§ In Britain, we pride ourselves on being an open and tolerant society, but I wonder whether that tolerance is being extended to our own Roma and traveller people. According to the briefing that I have received from the Gypsy Council, that view of Britain as a tolerant society is doubted by many traveller families. It points to the inadequacy of gypsy/traveller sites. Between 4,000 and 4,500 extra pitches are needed in England alone. Clause 8 of the Bill will not produce any more sites. The council believes that Clause 8 indicates that the Government see gypsies not as part of the community but as a criminal element. There is a real fear that one of the unstated reasons for Clause 8 is to give the Government an excuse forcibly to remove the children and have them brought up as non-gypsies, either in care or in fostering. I do not believe that that is the Government's intention, but the fear really exists.273
§ The object of Amendment No. 201 is to secure assurance that the powers will not be used to send members of the same family to different sites. Families may be travelling in more than one vehicle, and the use of the new powers in a way that splits up families carries with it the risk of breaching Article 8 of the ECHR, the right to privacy and family life. Traveller families, including ethnic Roma and Irish traveller families, may live and travel together in extended family groups. Relationships may be integral to the family, and frequently provide support for the children. The risk of interference with family life could come at a time when children are already distressed by forced eviction. The trauma can only be increased if there are splits in the family as well.
§ If the Government do not see fit to accept the amendment, will the Minister assure the Committee that efforts will always be made to ensure that those on the same unauthorised encampment will be offered places on a single site, and that guidance will be issued to the effect that where a family travels in more than one vehicle the powers will not be used to send different vehicles to different sites?
§ The purpose of Amendment No. 202 is to obtain assurances that the powers in Clause 8 can be used only when there is not merely a possibility of a place on a relevant caravan site, but a place that will in practice be made available to the vehicle and those living in it. Also, it would ensure that they were informed of that, and that the power did not interfere with the rights of travellers, including children, nor with local authorities' site allocation policies.
§ As matters stand, it is unclear how the new powers will be reconciled with local authority allocation policies. What if the pitch is not suitable for the family in question? Some sites may simply not be suitable for school-age children. They cannot be too far away from access to schools and healthcare, for example. Under the amendment, there has to be a place on a named site, and it has to be confirmed that the vehicle and its inhabitants will be welcomed on that site. The pitch must be guaranteed for at least three months if those moved require it for that time, and notification of the availability of the pitch on a named site must be in writing. Amendment No. 204 approaches the problem in a slightly different way and is after the same objective. It is a kind of alternative.
§ The purpose of Amendment No. 203 is to ensure that decisions to use powers in this section are taken by an officer of sufficient seniority. Child protection concerns may arise in the course of a forced eviction and it is important that people with skills and experience to identify those are present and act upon the concerns.
§ The Joint Committee on Human Rights has expressed concerns about Part 8, which it says could give rise to a significant risk of incompatibility with convention rights. The police officer, in exercising these powers, must have had training on the Human Rights Act, the Race Relations Act and the Children Act.274
§ Finally, the purpose of Amendment No. 205 is to extend the defence of all children under 18 on site and not merely to those residing with a parent or guardian. Protection should be extended to all children. There may be disputes about whether the person over 18 who is with the child is indeed in the role of a guardian. There may be children travelling alone—not uncommon nowadays. The clause as it stands would allow under-18s to be arrested without a warrant and possibly to spend up to three months in prison. That is surely unacceptable and I cannot believe that it is what the Government really intend. I beg to move.
§ Lord Avebury
The noble Baroness, Lady Turner, made a powerful speech in moving the amendment and explained the context within which the Committee is being asked to consider it. She might have added that the Government brought this whole part forward at a late stage in the proceedings in another place. It was therefore impossible for honourable Members to debate it, let alone to obtain the kind of advice which the noble Baroness quoted, and to examine the implications.
In a nutshell, Clause 61 provides that where the occupiers of land ask the police to remove travellers, the police are to have a new power to direct them to leave and to remove their caravans and vehicles from the land if it appears to the senior police officer present that there is a pitch on a local authority site in the district or borough for the travellers to go to. But as the noble Baroness said, the Government are not going to provide any extra incentives for local authorities to provide sites and, as we have heard, there is a severe nation-wide shortage of legal places where travellers can stop. The assumption behind the proposal that there are some districts or boroughs where empty places are available on official sites, while at the same time travellers are camping unlawfully somewhere else in the vicinity, is manifestly false and there is no possibility that it could become true in the foreseeable future.
Counts are made every January of the number of traveller caravans on local authority and private sites and the number camping on unauthorised sites. These figures are published by the ODPM. When the Tory government repealed the duty of local authorities to provide sufficient accommodation for gypsies residing in or resorting to their area, and cancelled the 100 per cent grant which had been made available for that purpose, the burden of providing somewhere to live for travellers fell entirely on the private sector. For a while, the effects were masked because there were still some local authority sites in the pipeline and because in the years 1995-96 and 1999-2000 there were falls in the total number of traveller caravans, perhaps as a result of travellers moving into settled accommodation. That must be speculation, because the Government never bothered to ask the local authorities to record transfers to and from settled dwellings, though it would be simple 275 for them to do so, and they have been repeatedly urged to fill this critical cap in our knowledge. In any case, over the past two years, both the number of caravans and the number living on unauthorised sites have increased sharply and I would expect that trend to continue as a result of a higher-than-national average rate of new household formation among traveller families.
During August and the beginning of September this year I conducted a survey of the 157 local authorities in England where there were unauthorised traveller encampments in January 2003 to see what they were saying in their homelessness strategies about travellers. I found that five of the 157 authorities had not yet published their strategies more than a month after the statutory deadline allowed for in the Homelessness Act, in spite of the fact that a whole 12 months was allowed in the Act for the homelessness survey and the production of the strategy.
Of the remaining 152 authorities, 61 had no link to a page dealing with homelessness in the A to Z services finder on their website; 101, or nearly two-thirds, had not put their homelessness strategies on their website; and 107, or more than 70 per cent, did not even mention travellers. I found that most officials dealing with homelessness were unaware of their council's strategy and did not have a copy of it. In almost every telephone conversation that I had with these local authorities, where the person who wrote the strategy was out or on leave, no one else had access to it.
Hardly any of the strategies referred to the local authority's race equality statement or to the Race Relations Acts, which impose a duty on all authorities to ensure that, in the delivery of their services, they promote racial equality. Not one of them mentioned the advice from the CRE in their Ethnic Monitoring: a guide for public authorities, which recommends that local authorities introduce new categories where they wish to know how their services affect an important minority not covered by the census. One authority did comment on the omission of travellers from the census classification. But those which did have regard to the ethnic composition of their population relied almost entirely on the census categories, and only a handful acknowledged gypsies as an important minority in their own area.
Not one of the 157 local authorities in the survey said that they would deal with the unauthorised encampments in their area by offering trespassers places on official sites for the very simple reason that there were no such places to offer. It is a cruel deception for the Government to pretend that any local authority has spare capacity on official sites or that any of them are likely to be able to provide spaces in the future when none is planning new residential sites and none has done so since 1994.
It is true that small amounts of money are provided by the Government out of the refurbishment grant money for transit sites, and this year two projects have been approved: one in Darlington for 10 places and one in Lincolnshire for 20. Those 30 places should be compared with the figure of 1,000 transit pitches 276 required over the five years from October 2002, according to the report by Pat Niner to the ODPM. Therefore, with two of the five years gone, we have plans to meet 3 per cent of the required capacity. But, in addition, Pat Niner said that between 1,000 and 2,000 permanent residential places were required, and we have not even begun to think about how they are to be provided. For a week or two in Darlington and Lincolnshire, the local authorities may be able to offer places on their new transit sites. However, with a shortage of more than 3,000 places in England as a whole, the danger is that families accommodated there will try to remain permanently and there will be nowhere else in the region to which they can go if they are moved.
With no spare capacity, the only way that the requirement of this clause might be satisfied is where a pitch is temporarily out of use for some reason and is treated as being "for that caravan", in the words of the new clause—a term which is left dangerously undefined. Amendment No. 204 at least makes it clear that the decision on whether a pitch is available rests with the local authority rather than with the senior police officer who delivers the notice directing the travellers to leave the site.
In making the decision, the authority would be able to say that the rare vacant pitch was not "for that caravan" for any one of a number of reasons of which the police officer may well have no knowledge: the pitch might be scheduled for refurbishment; it might be let to someone who was temporarily absent; or it might have been allocated to someone else—for example, the relative of an existing licensee.
The "senior police officer" who has to make these tricky judgments under the clause as it stands may be a police constable straight out of training college. Clearly, it is wrong to leave it to chance whether the officer has adequate training and experience for the purpose. Amendment No. 203 corrects that by providing that the senior officer must be at least of the rank of chief inspector.
If, as we on these Benches say, it is extremely unlikely that there will ever be a suitable pitch on a public site ready and waiting for a single caravan directed to move from an unauthorised site, it would be positively miraculous if several pitches were available for caravans in a group, as they normally are. Hard as it is to treat such an extreme case seriously, we have to say that if it ever should occur, it would be totally unacceptable to us that families should be split up and sent to different sites. The Commission for Racial Equality, which has written to Andrew Ryder of the Traveller Law Reform Coalition supporting all these amendments, particularly emphasises the need to ensure that families remain together. Frankly, I do not trust a government who can propose a clause like this to deal with the matter in guidance so that any risk of incompatibility with the Human Rights Act, to which the noble Baroness has referred, will be avoided. That is the purpose of Amendment No. 201.
277 Finally, in Amendment 202 we are seeking to ensure that when the direction is given to leave the land and to remove the vehicles, it gives the recipient, as the noble Baroness has explained, details of the relevant site where he or she is being offered accommodation, which is to be for not less than three months. I believe that that should be a minimum.
This clause is a shabby and deceptive little piece of theatre, designed no doubt to placate those who complain about unauthorised encampments in their neighbourhood. Residents may have good reason to protest about the nuisance that arises when there is an influx of people without any facilities for refuse collection services or sanitation, but their anger should be directed against the Government, who have failed to make adequate provision for travellers, and against the Tories, who repealed the 1968 Act. I would really prefer that the whole of Part 8 be withdrawn, and that the Government should come forward with comprehensive proposals for ending the homelessness of 3,000 travellers. If that is not on offer, these amendments are the least we can demand to mitigate the evil effects of Clause 61.
§ 11.30 p.m.
§ Lord Dixon-Smith
Three of my amendments are in this group: Amendments Nos. 201 A, 202A and 202B. I do not intend to dwell on them. I have checked Amendment No. 201A and I do not believe that it is good English in the context of the Bill, so it may be best for me to correct it for another occasion.
The other two amendments are intended to introduce some greater degree of flexibility in handling the situation. I have some sympathy with gypsies who live in caravans because the development of modern society has so dramatically changed the nature of the countryside. The places where they used to be able to stay no longer exist. I do not wholly agree with the noble Lord, Lord Avebury, and his remarks because there are places—I can think of one close to where I live—where gypsies have bought and created a successful site on their own. After heaven knows how many years the site near me still does not have planning permission. The local authority tolerates it without planning permission rather than dealing with a breach of its own planning regulations because it is a benefit and as a result it does not have to deal with the problem of a site for the gypsies. That may seem cynical but it is also realistic.
That is a fortunate situation, but there are other situations where gypsies have settled in most unfortunate places and have caused gross public offence. That is a matter that we shall turn to on another occasion. I do not intend to say any more now, other than that these amendments are probing amendments.
§ Baroness Scotland of Asthal
I thank the noble Lord for that temperate note. I appreciate that this is a late hour. I also appreciate that this is an issue that evokes 278 great passion because of the plight that the noble Lord, Lord Avebury, outlined so graphically and to which my noble friend Lady Turner referred.
However, it is rare to hear the noble Lord, Lord Avebury, speak in such intemperate terms. He used the words: "shabby, deceptive piece of legislation", and "a cruel deception". The noble Lord suggests that this is a device by a cynical government to deal with a presentation problem. I refute in their entirety each and every slur. I use that language, because I am surprised.
I reassure my noble friend that no part of the provisions will justify anyone seeing travellers as criminal elements. There is no justification whatsoever for saying that they are crafted so as to remove traveller children so that they can be brought up as non-traveller children.
§ Baroness Scotland of Asthal
I know that my noble friend did not say that. I thank her for raising the issue so that we can dispute it in its entirety.
As the noble Lord, Lord Avebury said, we face some challenging issues of how we deal with the difficult question of accommodating traveller families with decency and in appropriate sites, so that they can live the life that they have chosen in a way that is proper in accordance with their traditions.
I also thank the noble Lord, Lord Avebury, for his review of the 157 local authorities. The Office of the Deputy Prime Minister's Homelessness Unit will be undertaking its own research, which will feed into best practice advice. We shall take into account everything that the noble Lord said this evening.
But in recognising that there is a shortage of sites, we believe that the provisions are important. The new power provides the police with a swifter enforcement power, provided that there is a space on a local authority site. Of course I hear what the noble Lord says, but it will end up being a question of evidence as to whether there is such a site. In practice, it will place an obligation on local authorities and police areas to work together in designating sites and it will not be possible to move people on unless such a site has been so identified. I had hoped that the noble Lord would see the provision as helpful, seeking to put a bit of extra pressure to ensure that that is done.
We know that site provision will remain an issue in the short term. Accordingly, last March, the Office of the Deputy Prime Minister announced additional gypsy site refurbishment grant of £8 million for both 2004-05 and 2005-06. The grant would be available for the provision of new transit sites as well as for the refurbishment of official local authority sites.
The current situation is not acceptable for any of the parties concerned. Where gypsies and travellers live on unauthorised sites, those sites often lack basic facilities, as the noble Lord well knows. Gypsies and travellers may experience difficulty in accessing adequate healthcare, education and other welfare services.
279 Members of the settled community report experiences of noise, an accumulation of rubbish, fear and anti-social behaviour from some encampments—by no means all— in their area. Sometimes regular leisure activities can be disrupted by gypsies and travellers camping on playing fields, parks or car parks, where their behaviour can sometimes be experienced as anti-social, aggressive and intimidating. Landowners, including farmers, industrialists and retailers can be frustrated in carrying on their legitimate business.
All those are important issues to be counter-balanced and dealt with. The Bill's provisions are a genuine attempt to approach the matter in a balanced way.
My noble friend Lady Turner raises in Amendment No. 201 the issue of ensuring that all those directed to leave the land, under the new power, go to a single caravan site. Although 1 appreciate that there will be many occasions when it would not be appropriate to split up travelling groups, it will not invariably be the case. Furthermore, the requirement for pitches to be available for all members of the group would generate a perverse incentive for travellers to reside in large groups to avoid being caught by the legislation. We want it to be properly targeted.
I know that the noble Lord, Lord Dixon-Smith, does not want to press Amendment No. 201 today. However, to persuade him not to press it at any other time, I suggest that it is unnecessary because Clause 61 already provides for groups to be split up if appropriate. I hope that he will be comforted by that.
Amendments Nos. 202 to 204, tabled in the name of my noble friend Lady Turner, would ensure that all the directions are communicated in writing. The Government believe that that is unnecessarily bureaucratic and goes against our aim of providing swifter police powers to use against those who trespass on land. The police should be able to issue a direction in the most appropriate format and by the relevant senior officer at the scene as they do currently when issuing directions under Section 61 of the Criminal Justice and Public Order Act 1994, which seems to work well. The requirements to put directions in writing and for them to be served by a chief inspector or more senior officer are simply unnecessary.
The swifter police power will help landowners to deal more efficiently with trespassers. That will go some way to reducing the cost to landowners when dealing with trespassers. It is right to recognise that, in one case, a landowner in Lancashire recently spent £23,500 dealing with evicting and cleaning up after a group of trespassers entered his land for a weekend. It is a real problem.
The decision to issue a direction will be taken by the police in consultation with relevant local authorities to ensure that all the existing preconditions to the use of the new power are met. The factors that the officer should take into account in assessing the suitability of alternative authorised pitches will be covered in guidance. We intend that that guidance will be telling and sound.
280 I shall not trouble the noble Lord by replying to Amendments Nos. 202A and 202B. I shall simply say that they, too, are covered by the new clauses. They allow for directions to be issued when there is a pitch available on an authorised site, not necessarily within the local authority, but within a reasonable distance. That is the nature of the noble Lord's amendment. The aim of those clauses is to provide swifter police powers while encouraging local authorities to provide more authorised sites in their areas. This amendment would break the link. So the answer to the noble Lord, Lord Avebury, is that we want local authorities to be put under appropriate pressure to discharge their duty. We believe that this is a proper way of doing that.
I hope that my response enables Members of the Committee to feel a little more comfortable. I say to the noble Lord, Lord Avebury, and my noble friend that our bona fides are well founded. We have no ill intent. We understand the pressing problems of travellers and are doing our very best to honour their tradition and to give them succour while, by the same token, balancing those rights against the rights of others to the proper enjoyment of their property.
§ Baroness Turner of Camden
I thank my noble friend for her statement and her assurances. From the submissions that I have received, I know that there is a genuine concern about the matter, including the removal of children. I said that I did not believe that that was the Government's intention, but that is what was felt and expressed to me. I am very grateful for the assurances that she has given.
I am also grateful for the assurances about the obligations to be placed on local authorities to carry out what they are expected to do in this area. That is all very valuable. We shall consider very carefully what the Minister said. It is very late in our proceedings to do much else this evening. We had to wait a long time before we reached a discussion of what I regard as an important element in the Bill, but there it is; that is the way things work. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 201A to 204 not moved.]
Clause 51 agreed to.
Clause 62 [Failure to comply with direction: offences]:
[Amendment No. 205 not moved.]
Clause 62 agreed to.
Clauses 63 to 66 agreed to.
Schedule 3 [Repeals]:
§ Baroness Scotland of Asthal moved Amendment No. 205A:
Page 64, line 19, column 2, at beginning insert—
In section 63(2), "in the open air".
§ On Question, amendment agreed to.
§ Baroness Scotland of Asthal moved Amendment No. 206:
§ Page 51, line 14, after "53" insert "to 55"
§ ?The noble Baroness said: The Committee will be pleased to know that this is the last amendment and I have pleasure in moving it. Clauses 54 and 55 concern the powers of local authorities to improve the quality of the local environment by removing graffiti from certain properties. As such it is fitting and appropriate 282 that the National Assembly for Wales should have responsibility for commencing those powers when they will affect the people of Wales. The amendment achieves that end. I beg to move.
§ On Question, amendment agreed to.
§ Clause 67, as amended, agreed to.
§ Clauses 68 to 71 agreed to.
§ House resumed: Bill reported with amendments.
§ House adjourned at eleven minutes before midnight.