Anti-social Behaviour, Crime and Policing Bill

Public Bill Committee, 27 June 2013.

Clause 21 - Power to make orders

David Hanson (Labour, Delyn)

I beg to move amendment 28, in clause 21, page 11, line 21, leave out from ‘persons’ to end of line.

Jim Dobbin (Labour, Heywood and Middleton)

With this it will be convenient to discuss the following:

Amendment 29, in clause 21, page 11, line 34, after ‘team’, insert ‘and relevant neighbourhood policing team’.

Amendment 30, in clause 21, page 11, line 37, leave out from ‘must’ to end of line 2 on page 12 and insert ‘take into account an assessment of—

(a) any religious beliefs the offender may have; and

(b) the offender’s work, school or other educational commitments.’.

Amendment 50, in clause 21, page 11, line 39, at end insert—

‘(aa) any conflict with the offender’s caring responsibilities including, in particular, any caring responsibilities for a child.’.

David Hanson (Labour, Delyn)

It is a pleasure to serve under your chairmanship this morning, Mr Dobbin. You missed a very interesting session on Tuesday. We had a good discussion, with a lot of cross-party agreement on a number of issues. I welcome the Minister for Policing and Criminal Justice, who joins us in the Committee today.

I will let you in on a secret, Mr Dobbin. My amendments are not meant to cause difficulty for the Government; I simply want to test them. In a spirit of helpfulness, we do not intend to press them, but I want the Minister to consider the issues they raise. We want to know what the Government’s thinking is on several important issues relating to criminal behaviour orders.

Amendment 28 probes the court’s power to make a criminal behaviour order against an offender. Clause 21(3) sets out the first of two conditions for the criminal behaviour to be considered:

“The first condition is that the court is satisfied that the offender has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to one or more persons…not of the same household as the offender.”

The amendment seeks to test the premise that a criminal behaviour order cannot be made against anybody who is of the same household as the victim. I will return to that point.

Amendment 29 relates to subsection (8), which states:

“The prosecution must find out the views of the local youth offending team before applying for a criminal behaviour order to be made if the offender will be under the age of 18”.

The amendment, to test the Government and to generate discussion, states that the views of the local neighbourhood policing team should also be considered. I accept that “neighbourhood policing team” is not the tightest legal phrase. However, I want to test the principle of the subsection by asking the Minister whether the police should be involved in addition to the youth offending team. I will return to that point.

Amendment 30 aims to tweak the practicalities relating to the

“prohibitions and requirements in a criminal behaviour order”,

which must avoid conflict with the offender’s “religious beliefs”, and their attendance at work,

“school or any other educational establishment”.

I will return to that point shortly.

Amendment 28 questions whether we should allow criminal behaviour orders to be made against offenders who are of the same household as the victim. I want to test the Minister on whether behaviour that causes

“harassment, alarm or distress to one or more persons”

should also include what happens in the household. I anticipate that the Minister’s response will be that that is the wording of the current legislation. I accept that; I know it was passed by our Government in 1998. However, 1998 is 15 years ago, and things have changed since then. A number of issues have emerged, such as Twitter, Facebook, mobile phones and e-mails, which potentially relate to the home.

I simply want to get from the Minister an assessment of whether the stipulation in subsection (3) that a person should be

“not of the same householder as the offender”

is still applicable. If that phrase were deleted, as the amendment seeks, it would mean that if the court was satisfied that the offender had

“engaged in behaviour that caused or was likely to cause harassment, alarm or distress to one or more persons”,

be they in or outside the household, the criminal behaviour order could be applied.

Why do I ask for that to be considered and reflected upon? First, let me give the Minister a scenario. Let us look at elder abuse and the legislation that could be applied. Let us use the example of a grandson who has been thrown out of the parental home or is homeless. He turns up at his grandparents’ house having committed antisocial behaviour all over the town and forces his way on to their sofa for several weeks. In the household—I would welcome a definition in the Bill of household—he causes intimidation, harassment, alarm and distress to one or more persons. He might be trashing the house. He might be committing antisocial behaviour externally and internally. If that was happening, a punitive sanction could be applied, but would it be caught by clause 21(5)(b), which

“requires the offender to do anything described in the order”?

A requirement could be that the offender does not live at 21 Acacia avenue where the grandparents are. A requirement could be that the offender attends a drug rehabilitation course or an alcohol-related course. I want the Minister to explain what household means here and why the clause does not apply to the household.

Let me give another example. Clause 21(1) states:

“This section applies where a person (‘the offender’) is convicted of an offence.”

Let us say that a son with an alcohol, drug or other problem steals money from the parent in the property. He is in the household. He is an offender. There may be antisocial elements. He might be playing his music very loud in the property. He might be mentally unwell and spraying graffiti all over the inside of the property. Under the current legislation, as I read it and I may be wrong, no action could be taken. But in fact a CRASBO—a criminal behaviour order—as I will still call it, could be applied to the individual and because the offences are all committed in the house the individual could be required to attend drug rehabilitation, alcohol rehabilitation, or be banned from the premises for a period. A range of orders could be applied. I simply want to get a flavour of where we are.

Sarah Champion (Labour, Rotherham)

I should like to give two examples to support my right hon. Friend’s point. My nephew moved into my grandmother’s house. He was stealing from her and terrifying her. My aunt would not do anything. My parents went to the police who said they could not do anything because it was in a private household; it was a family member so they could not intervene. I have people coming to my surgeries. They tend to be single women whose sons are being incredibly abusive towards them and are robbing them. Again, the police will not intervene because it is a private household matter. It is vital that the police can act when it is within a household.

David Hanson (Labour, Delyn)

I am grateful to my hon. Friend for supporting my arguments; again, we test the Minister and the premise. The Minister may well say that there is a range of measures that could deal with that scenario, but I want him to tell us what those measures are and whether removing that element of the Bill would provide some additional powers.

Let me give another example. Recently there was a report in the press—it was in the Daily Mail so it must be true—that a Mr Frankie Fraser had received an ASBO in a care home in Kent. As the Committee may know, Mr Fraser goes by the soubriquet “Mad,” and served 42 years in jail for various crimes. He received an ASBO because of his offensive behaviour towards other residents of his care home who questioned whether pulling people’s teeth out on behalf of the Krays was a good idea. Mr Fraser demonstrated that he still has disruptive tendencies and so he was given ASBO. Under criminal behaviour orders, we find the phrase

“not of the same household as the offender.”

What is a household? Is Mr Fraser’s care home his household? If he is causing

“harassment, alarm and distress to one or more persons”—

and in this case he self-evidently was, as he was given an ASBO—does the reference to “the same household” mean that the provisions could never apply to somebody in a care home, such as Mr Fraser, as that care home would be his household? It is a reasonable question and I ask it simply for clarification from the Minister.

This is not a question of political divide; I am not saying, “Tories bad, Labour good.” The issues are important and we need to test them. Ultimately, this tool could have a punitive element, but could also place a restorative, reforming and genuine requirement on the offender that could lead to their behaviour changing. I want to probe whether the wording means that their behaviour cannot be changed in the home if they happen to share the household, however that is defined, with the person they have harassed.

Amendment 29 relates to provisions for those under the age of 18. Subsection (8) states:

“The prosecution must find out the views of the local youth offending team before applying for a criminal behaviour order to be made if the offender will be under the age of 18 when the application is made.”

That is a sensible provision, which I do not oppose: the youth offending team will have a comment about what provisions should be put in place. However, the neighbourhood policing team—the local police force—will have an interest in such a case, because its work will probably have led to the conviction for the offence. The youth offending team is local authority-led; it will consult the police, but it is not the police. Whether or not “neighbourhood policing team” is the right phrase—“chief constable” or “police and crime commissioner” might be better—the principle underlying the amendment is this: when the police have gone to all the trouble of getting the offender to court and securing a criminal conviction, and when the court has said that there should be a criminal behaviour order and then, because the offender is under 18, has consulted the youth offending team, I believe the police should also have a role. The police should be able to say, “This is the history of our involvement with this individual; this is what they have done and why we have brought the case; here is a bit of background to the situation.” They should be able to tell the court whether they think the conditions it is seeking to apply will or will not help. That is a reasonable position, and I am interested in the Minister’s comments.

Amendment 30 probes the provisions in subsection (9):

“Prohibitions and requirements in a criminal behaviour order must, so far as practicable, be such as to avoid…any conflict with the offender’s religious beliefs…any interference with the times, if any, at which the offender normally works or attends school or any other educational establishment…any conflict with the requirements of any other court order or injunction to which the offender may be subject.”

Those are reasonable provisions; but—again, my amendment is simply to test the Minister’s views—I question the way in which they are phrased. The subsection states that the requirements must

“so far as practicable, be such as to avoid”.

If someone has a conviction that leads to a criminal behaviour order, by and large, they have done something wrong; I am generalising, but I would expect that they will also have a tendency to test the system. The Bill states, first of all, that we should avoid any conflict with an offender’s religious beliefs; in that case, what is to stop me saying that I can prove I am Jewish and therefore can do nothing on a Friday, or that I am Muslim so I can do nothing on another day of the week, or that I go to Church class every Wednesday so I need time to do that?

The Bill says

“so far as practicable, be such as to avoid”.

My amendment simply says

“take into account an assessment of”

the same issues. People’s religious beliefs and work and education commitments should be assessed and other court orders should be examined, but they are not grounds not to apply the criminal behaviour order. The assessment may deem them to be such grounds, but

“so far as is practicable, be such as to avoid”.

should not necessarily apply. I believe that

“so far as is practicable”

means that I could test the prohibitions and requirements by standing up in court and making a series of statements that prove that

“so far as is practicable to avoid”

should apply. Under my amendment, the issues would be assessed and taken into account, but the court decides, not the offender. Ultimately,

“so far as is practicable, be such as to avoid”

should not apply, because offenders could say, “I can’t do Fridays, because I’m Jewish. I can’t do Mondays, Tuesdays and Wednesdays, because I am at work. I can’t do 3.15 pm or 4.15 pm, because I am at school. I already have a court arrangement on Monday. As far as is practicable, all that must be avoided, so I want to do it over the next several periods of time rather than in a much tighter framework, because those things must be taken into account.” The Minister should look at the provision and check whether it is tight enough and whether an assessment could be made, rather than ruling it out altogether.

I am sure that amendment 50 will be marvellously interesting. I will not comment on it until my near neighbour in office terms, the hon. and learned Member for Sleaford and North Hykeham, makes his comments. I do, however, reserve the right to comment once he has finished.

I hope the amendments are seen for what they are, which is an attempt to be helpful and constructive and to test. I look forward to what the Minister has to say about them.

Stephen Phillips (Conservative, Sleaford and North Hykeham)

It is an enormous pleasure, Mr Dobbin, to spend another Thursday in your company, serving under your chairmanship. I also thank you for the selecting the amendment as it was tabled late.

We had the exact same debate on an amendment on Tuesday, which the Government did not accept, but on which there was no Division. Amendment 50, which was tabled by me and my hon. Friends the Members for Chatham and Aylesford, for North East Cambridgeshire and for Bedford, is designed to bring clause 21 into line with clause 1 as it now stands. The point, which I also made on Tuesday, is that, in common with an injunction to prevent nuisance and annoyance, when a criminal behaviour order is issued, the caring responsibilities of the person against whom the order is made should be taken into account by a court. Such responsibilities could be for a child or for any other individual. That is entirely consistent with the Government’s much broader agenda of ensuring that antisocial behaviour is nipped in the bud and that it is not perpetuated from generation to generation. Should the Bill receive Royal Assent, if a criminal behaviour order is made against an individual, the court granting the order would be obliged, under the amendment, to take caring responsibilities into account, in particular for children. Someone against whom an order is made could have commitments relating to children that are important for their life chances and those commitments should be respected.

David Hanson (Labour, Delyn)

Will the hon. and learned Gentleman give way?

Stephen Phillips (Conservative, Sleaford and North Hykeham)

I am happy to give way to my near office neighbour.

David Hanson (Labour, Delyn)

I glanced at amendment 50 in haste, and now realise that it is related to amendment 1, which we supported, so I would like to offer the hon. and learned Gentleman our support for the principle behind this amendment.

Stephen Phillips (Conservative, Sleaford and North Hykeham)

I am extremely grateful for the Opposition’s support; whether it will be needed, I know not. However, I hope that the Government, having not caused the Committee to divide on the like amendment to clause 1, will not cause us to divide on this amendment, for the same reasons. It is entirely appropriate that part 2 is consistent with part 1 in the form in which it will be reported to the House.

The amendment is designed to be helpful. I hope that the Government agree, and also that they think it is sensible and improves the Bill. For those reasons, it is not a probing amendment and, if necessary, I will push it to a vote in due course.

Damian Green (Conservative, Ashford)

It is always a pleasure to serve under your chairmanship, Mr Dobbin. I thank the right hon. Member for Delyn for his kind words of introduction, and particularly for the tone of this group of amendments, which, I agree, ask perfectly reasonable questions about the intent and detail of the measure. After I have dealt with the right hon. Gentleman’s amendments, I will turn to amendment 50, which my hon. and learned Friend the Member for Sleaford and North Hykeham tabled.

As the Committee has heard, the amendments would change the circumstances in which a criminal behaviour order can be made, as well as aspects of the process for doing so. Amendment 28 would allow the order to be applied to cases where the offender and victims live in the same household. The criminal behaviour order has been developed to tackle the most serious antisocial behaviour blighting communities and victims within such communities. It is not intended to protect victims from offenders in their own homes. It goes without saying that all Committee members would abhor such behaviour, but it is important to be clear about the type of offending behaviour that we are seeking to address with these measures.

I appreciate that the right hon. Gentleman produced a number of perfectly plausible scenarios. In those sorts of domestic cases, several different risks and issues would need to be addressed, possibly with highly complicated underlying problems needing specialist experience. As such, it is not appropriate for them to be dealt with under the Bill. As he said, there is already specific legislation to deal with offending of that sort, such as the Family Law Act 1996 and the Protection from Harassment Act 1997.

The principle that antisocial behaviour powers are not designed to address domestic abuse also underpins existing antisocial behaviour legislation, which is clear that orders such as ASBOs are not designed to tackle offenders who live with their victims.

David Hanson (Labour, Delyn)

Will the Minister explain under what circumstances the example that I gave about Mr Fraser would be examined in future? Presumably he has had an ASBO, lives in a household and was offending against people in the same household. Will the Minister clarify that point?

Damian Green (Conservative, Ashford)

I was going to come to Frankie Fraser later, but I will do so now, if the right hon. Gentleman likes. The court will decide on the ASBO as it will obviously be working under the existing legislation. I do not know all the specifics so am reluctant to comment in detail. However, given that the court will have applied the current law, which uses the same language in respect of persons in the same household, it will have decided that the offender is not part of the same household. There are fairly obvious examples, such as what we call a house of multiple occupation. If there are locked doors, so that everyone has their own dwelling within that building, the courts would not regard that as a single household.

The right hon. Gentleman asked about the definition of a household, which goes to the heart of the debate. Interestingly, that concept that has never been defined in legislation, so every case is taken individually by the courts. In practice, they have to consider it on a case-by-case basis. Given that we could all produce a number of potential scenarios as to whether people are living in the same household, it is sensible for the courts to be responsible for the assessment, because every case will have slight wrinkles and differences.

As the right hon. Gentleman said, an ASBO was decided by the court to be appropriate in the case of someone living in a care home. Clearly, having it done in that way—providing courts with flexibility—means that, if a court decides that a particular measure on antisocial behaviour can be applied to someone, even though all they are doing is causing distress to people in the same building as them, it can use that legislation. The intention is that that reads across to the new legislation.

The right hon. Gentleman asked specifically about what legislation is available to deal with antisocial behaviour in the home. I have mentioned a couple of measures already, and I will provide the Committee with some more detail, which I think would be helpful.

Under the Protection from Harassment Act 1997, harassment is broad enough to cover events in the home. There is a criminal offence of harassment, as well as the possibility of taking out a civil injunction preventing harassment, breach of which constitutes a criminal offence. The Family Law Act 1996 contains two remedies—a non-molestation order, which is an injunction that prevents domestic violence-related behaviour, breach of which is a criminal offence; and an occupation order, which allows for a perpetrator of domestic violence to be excluded from their own home.

The right hon. Gentleman raised a point in another context about involving the police. As he knows, there will be occasions when the police need to act quickly to arrest a person if there is risk of imminent harm. They can do so under breach of the peace provisions. There is a suite of measures to deal with the various types of difficult situation that he mentioned.

David Hanson (Labour, Delyn)

The point that I am particularly interested in relates to clause 21(5)(b), which

“requires the offender to do anything described in the order.”

I understand that the police can act and that there is current legislation, but I am most interested in the power to make requirements under the order. In a household context, there may still be issues to do with criminal intent and a conviction for an offence such as assault or theft in the house. If a criminal behaviour order is also applied, there is potentially a requirement for offenders to do something about their behaviour in some way, shape or form. That aspect is what I am most interested in, because that would help stop repeat offending.

Damian Green (Conservative, Ashford)

Indeed. Precisely because there is the possibility of including particular behavioural changes as part of the order, one can imagine that an alcoholism treatment scheme or something like that would be relevant. We see that as a strengthening of the system. That will be a practical measure that can be used. The courts can then monitor whether the person subject to an order is obeying the conditions that have been applied, which is a further potential sanction. I hope that practical measure will lead to changes of behaviour and a reduction in offending.

In cases where there is a criminal conviction, it is important to ensure that the lines between tackling antisocial behaviour and domestic violence are not blurred, due to the serious nature of the offending. I appreciate the right hon. Gentleman’s argument for a consistent approach in the Bill, and I am happy to look at some of the detail. He has said that he does not intend to press the amendment to a vote, for which I am grateful. I assure him that we will keep the detailed points that he has raised under close consideration.

Amendment 29 would require additional consultation with neighbourhood policing teams where the offender is under 18. I am not particularly persuaded that there is a need to prescribe who should be consulted in such a way. The Bill has been drafted deliberately without a long list of statutory consultees to keep bureaucracy to a minimum and to allow local agencies to act quickly and flexibly, depending on the specific circumstances.

There is only one exception to that, which is where the offender is under 18 and there is a clear need to seek the views of the local youth offending team. Obviously, that is to ensure that the young person’s needs are properly taken into account when the court considers the case for an order. I hope it will reassure the right hon. Gentleman to know that, in practice, the police will already be directly involved in CBO cases, since the order is available only following a criminal conviction. In many cases, the police themselves will have prompted the application by the Crown Prosecution Service, so, as such, the local neighbourhood policing team will in many cases have been involved in the case.

Guidance will be clear on the need to engage with a number of partners. Ultimately, it will be up to the prosecution to decide, in any given case, who those are depending on the individual circumstances of the case.

Amendment 30 would require the court to take into account an assessment of the offender’s religious beliefs and their work or schooling commitments as opposed to requiring it to avoid conflict or interference with such beliefs and commitments. I think that subsection (9) adopts the right approach. It mirrors provisions in sentencing legislation on community penalties. It is entirely right that, as far as practicable, any prohibitions or restrictions do not conflict with the offender’s religious beliefs. The right hon. Gentleman gave some examples. In practice, it should be perfectly feasible to apply appropriate requirements and prohibitions, which are compatible with an offender’s religious beliefs.

The right hon. Gentleman also mentioned work or educational commitments. It is self-evident that education and employment are critical to reducing reoffending, so any prohibitions or requirements that get in the way of such commitments may well be self-defeating. In both cases, a duty to avoid a conflict or interference is entirely appropriate and reasonable and should not be weakened, as amendment 30 would do.

The right hon. Gentleman reasonably asked what is to stop an offender making spurious claims about religious beliefs or education commitments that would enable them to avoid any of the sanctions that the order is meant to bring about. The short answer is that an individual would have to produce evidence to the court in relation to those commitments, and only where a court is satisfied that sufficient evidence has been produced will it consider compatibility between the criminal behaviour order and the claimed commitments. I think that we can trust the courts to recognise spurious evidence when it is put before them.

Amendment 50, in the name of my hon. and learned Friend the Member for Sleaford and North Hykeham, mirrors an amendment that the Committee made to clause 1 on Tuesday. As my hon. Friend the Minister for crime prevention said, the Government’s view is that the list in subsection (9) is not intended to be exhaustive. It identifies those matters that are particularly germane to the court’s deliberations on what prohibitions and requirements are appropriate to include in an order. We accept that there will be other matters that the court will wish to take into account, such as the offender’s caring responsibility or any disability. In some cases, there will undoubtedly be other things to take into account.

It was for that overall reason that my hon. Friend the Minister for crime prevention advised the Committee on Tuesday that clause 1(5) and, by extension, clause 21(9) should not be amended. However, the amendment was agreed by the Committee. That having happened, I will not now oppose amendment 50, as it simply seeks to make the equivalent change to clause 21 and therefore introduces consistency throughout the Bill. However, I should make it clear that it is, if I may step gingerly into legal terminology, without prejudice to our further consideration of this issue, and we may wish to return to it on Report.

I know that the right hon. Member for Delyn wishes to withdraw his amendment and I am happy to reassure him again that we will reflect on the points that have been raised in relation to amendment 28. If my hon. and learned Friend the Member for Sleaford and North Hykeham seeks to press amendment 50, I invite the Committee to agree it, subject to the caveat that I have just set out.

David Hanson (Labour, Delyn)

I thank the Minister for his response. I take it from his comments that although he does not accept amendment 28, he recognises that there is an issue to be addressed. I will attend carefully to what he says, because I know how these things work. If he wants to reflect on the proposal, I will be happy. Including the provision would take nothing from the Bill; it would simply mean that individuals in the home who have caused harassment, alarm or distress could have a criminal behaviour order placed on them.

The Minister indicated that the order was meant for very serious cases of antisocial behaviour, but I put it to him and his officials that serious antisocial behaviour can take place in the home or be associated with it. Even if only one or two orders were issued a year, deleting the words in the clause would not cause a problem; it would simply mean that an order was available if such cases arose.

The current definition of elder abuse, which is recognised by Her Majesty’s Government, the World Health Organisation and countries across the world, states that it is

“a single or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person.”

At the moment, there is no meaningful legislative provision on elder abuse; a range of things are dealt with in the Mental Capacity Act 2005 and other measures, but there is nothing specifically on elder abuse.

I am not saying that a criminal behaviour order is always applicable in such cases, but there could be occasions when antisocial behaviour in the home was such that it caused harassment, alarm or distress, as in subsection (3). However, because the Bill refers to persons

“not of the same household as the offender”

a criminal behaviour order could not be applied. I am not saying an order has to be applied; I am simply giving the Minister a menu of potential options. The deletion of those words would, I hope, strengthen the Bill, without undermining any part of it.

I take it that the Government will at least examine the issue. We may return to it on Report if they do not; indeed, it can be discussed in another place if the Government do not consider it on Report. It may not surprise the Minister to know that Labour Members in another place can table an amendment and push it to a vote if the Government do not consider the issue.

On the other issues I raised for discussion, I take on board what the Minister says. I am pleased that he has accepted the amendment tabled by the hon. and learned Member for Sleaford and North Hykeham. I beg to ask leave to withdraw the amendment.

Clause 22

David Hanson (Labour, Delyn)

I beg to move amendment 31, in clause 22, page 12, line 13, leave out subsection (2).

I hope the amendment will not take up too much of the Committee’s time. I was going to raise the issue in questions on clause 22, but I tabled the amendment to focus our debate in case there were other amendments.

Subsection (2) states:

“It does not matter whether the evidence would have been admissible in the proceedings in which the offender was convicted.”

That relates to the proceedings on an application for an order. Subsection (1) states:

“For the purpose of deciding whether to make a criminal behaviour order the court may consider evidence led by the prosecution and evidence led by the offender.”

Will the Minister define what circumstances and issues would be raised that were not admissible in court? There are potentially issues the offender would not know about, and which might not have been admissible in court. I want to get a flavour of how that aspect of the clause will work in practice.

Subsection (2) essentially means that the application will be determined not only by what happened in court, which is public and before the offender and the prosecution, but by background evidence. I accept that that is probably necessary and will be based on reports from probation and others as part of a general duty, but I want the Minister to give us his understanding of the meaning of clause 22(2). He will undoubtedly have some thoughts to share with the Committee.

I do not want to press the amendment to a Division; I simply want clarification from the Minister, so that when the Bill becomes law and subsection (2) is exercised, there will be clarity for those who interpret it in real life at some future date.

Stephen Phillips (Conservative, Sleaford and North Hykeham)

I am interested to know why subsection (2) is in the clause, so I am grateful to the right hon. Gentleman for moving the amendment.

Dredging back into the dim and distant past, in criminal trials there is something called “similar fact evidence”, which is evidence of the propensity to commit the offence with which someone has been charged. It is generally inadmissible, because its prejudicial effect on a jury is considered to be outweighed by its probative value. Will the Minister say whether this is one of the situations that subsection (2) might deal with?

Although such evidence would not be admissible by the prosecution for the purposes of attempting to secure a conviction, it would be admissible for the purposes of trying to obtain one of the orders. That may be the mischief at which subsection (2) is directed, or it may be directed at some other mischief. Will the Minister indicate that, so that there is clarity for those who will have to interpret the legislation?

Damian Green (Conservative, Ashford)

The short answer to my hon. and learned Friend’s question is broadly yes. I will explain in detail, and I will address the question asked by the right hon. Member for Delyn.

The purpose of the clause is to deal with proceedings on application for a criminal behaviour order. When deciding on an application, the court can consider evidence from both the prosecution and the offender. The point is that that can include evidence that was inadmissible in the criminal proceedings in which the offender was convicted.

The criminal behaviour order is civil in nature, so hearsay evidence, which would not be admissible in criminal proceedings, can be presented. That means that evidence from vulnerable or frightened witnesses can be presented to the court by a third party—for example, a police officer or a housing officer. The approach has already been used by courts considering an ASBO following a conviction.

It is important that the court is aware of wider relevant behaviour to make an informed decision on whether granting such an order is appropriate. On every occasion, it will be for the court to decide whether the particular hearsay evidence is admissible or relevant. The clause provides the court with that opportunity.

Stephen Phillips (Conservative, Sleaford and North Hykeham)

I do not necessarily expect an answer straight away, but will the Minister tell the Committee, either now or at some point, whether hearsay gateways will have to be satisfied before such evidence is admissible for the purposes of subsection (2)?

Damian Green (Conservative, Ashford)

I believe not, but if my hon. and learned Friend requires a more detailed answer, I will certainly provide him with one and make it available to the Committee.

Broadly speaking, the new order directly replaces the ASBO on conviction. As the Committee will be aware, the House of Lords confirmed in the case of McCann that hearsay evidence is admissible in applications for ASBOs, and is therefore used in proceedings. The subsection does not break new ground, but simply affirms the approach that the House of Lords took, which is also well known to the courts, the Crown Prosecution Service, the police and councils that prosecute antisocial behaviour in the courts.

As I said, there is a good reason for allowing hearsay evidence in those cases: it concerns the protection of victims and witnesses. An individual who received a criminal behaviour order would be a criminal, because they would have been charged, prosecuted and convicted for a criminal offence. The CBO would therefore, in the main, be used against the most serious offenders.

Some victims and witnesses of antisocial behaviour are frightened or intimidated about giving evidence in court, and coming face to face with the offenders. If hearsay evidence is admissible it means the court can permit evidence from frightened or intimidated witnesses to be given in a written statement, or by a police officer or other professional. Hearsay and professional witness evidence allow those victims and witnesses to give evidence against perpetrators while minimising the distress and anxiety caused. As I said, it will be a matter for the court to judge the proper weight to be given to any hearsay evidence.

The effect of the amendment would be that protection for vulnerable victims and witnesses would not be available, and there would be a danger that that would deter them from coming forward and pursuing cases, for fear of reprisals. It would weaken the powers and I am sure that the Committee would not want that to happen.

David Hanson (Labour, Delyn)

I am grateful to the Minister for that explanation. I hope he appreciates that I tabled the amendment for clarity and simply to tease out the points he made. I am also grateful to the hon. and learned Member for Sleaford and North Hykeham for his contribution, and on that basis I beg to ask leave to withdraw the amendment.

Clause 23 - Requirements included in orders

David Hanson (Labour, Delyn)

I beg to move amendment 44, in clause 23, page 13, line 29, at end add—

‘(7) The Secretary of State shall produce guidance on the scope of requirements that can be used under this section.’.

Clause 23 provides what we have already discussed—the ability to include requirements in orders. I welcome the broad principle of such requirements. Under clause 21(5)(b) an offender can be required

“to do anything described in the order.”

That, effectively, is a requirement.

I have scoured the Bill with some interest, but have not yet seen any guidance or direction about what the requirements might be. I have a very good idea that they will be alcohol or drug treatment orders, behaviour management orders, or a range of things. There could be all sorts of potential orders, but there is no definition. The amendment would require the Secretary of State to produce guidance on the scope of requirements imposed under the clause.

My first question to the Minister is about what he is willing to accept in principle. The menu of guidance requirements might differ between Ashford and north Wales, or Ashfield and Macclesfield—that was quite poetic, was it not? Does the Minister accept that although things may be different depending on the part of the country, there should still be a menu of requirements: something where the Home Office says, “We are putting a box round these requirements, and they are the ones that can be used,” to provide guidance as to what requirements would be imposed in Macclesfield, Ashfield, Ashford or Delyn in north Wales? At the moment it seems that the Minister is saying that orders will include requirements, which it will be possible to use under clause 21, but he has not defined them.

I would therefore welcome, first, an “in principle” from the Home Office as to whether it intends to issue guidance about the requirements. In many ways, our discussion mirrors the one that we will have later in our deliberations on new clause 1 tabled by Government Back Benchers. It is the same principle. I would welcome a view on whether the Home Office intends a laissez-faire requirement—“Do what you want locally, however you want to do it”—or whether there will be some central guidance, with a menu of options and quality standards, saying, “You can pull from these what you will at local level.”

Secondly, what assessment has the Minister or the Home Office made of the use of the orders downstream? I fully expect that at some point in the next 12 months, they will become law in some shape or form, and criminal behaviour orders will become an option for the courts. In his impact assessment, has the Minister given a figure for the potential number of criminal behaviour orders? What assessment has he made of the requirements? Does he understand what the requirements might be, because the court will be providing them? Presumably, at some point downstream, the probation service, a voluntary organisation or someone else will be involved with such an order, so what assessment has he made of their capability and of the deliverability of the order if the court orders alcohol prohibition or drug treatment? What assessment has he made of the cost of the requirements downstream, because presumably the option is not cost-free?

If a criminal behaviour order under clause 21(5)(b) requires the offender to do something described in the order, presumably someone has to deliver it at some cost, at some place, and with some staff, because it has to be monitored, examined and organised. I am trying to be helpful, but I want to get from the Minister what guidance he is planning, if any. If not, why not? Even if in the first year of operation, we have only one criminal behaviour order in each constituency in the whole of England and Wales—if we take off Scotland and Northern Ireland—that means about 580 criminal behaviour orders. That would be only one in each constituency, but there might be 500 requirements in the first year. Who provides the requirements? Who monitors them? Who provides the cost of them? Who delivers them?

Requirements are a good idea, and I am asking these questions not to trip the Minister or to put blocks in the way but because I want an understanding that there will be some action when the court does something, if we pass the legislation and the courts exercise the requirements under clause 23. There is no point our sitting in Committee for the next couple of hours talking through clauses 21, 22, 23 and 24 if, ultimately, when the requirements are issued, there is no capacity to deliver them. I want to get a sense from the Minister of whether the system is laissez-faire. If not, what guidance is there? If there is no guidance, what is his assessment of the impact of the requirements in due course?

Damian Green (Conservative, Ashford)

As the right hon. Gentleman said, in amendment 44, he is seeking to ask whether we will produce guidance on the scope of the requirements that might be included. The answer is a straightforward yes.

It is right that we develop guidance to help those on the front line who will be using the new powers. Obviously, we will continue to work with agencies to do just that. We do not need to require guidance in the Bill, but I am happy to assure the Committee that we will provide it—legislation often requires detailed guidance to practitioners. We are committed to providing such guidance, which would apply to all the new antisocial behaviour powers in the Bill. It is not worth stating it in the Bill because that would clutter the measure.

It is intended to make the guidance available before Report so that it can be properly discussed by the House. I suspect that the right hon. Gentleman and I will slightly part company about how prescriptive we want it to be. The requirements that may be attached to a criminal behaviour order are a matter for local determination. I would not want to give the impression that our guidance will set out the full menu of possible requirements.

David Hanson (Labour, Delyn)

I think the Minister will accept that the previous Government, rightly or wrongly, set a number of requirements that could be used with such orders without giving specifics about how they would be delivered. They referred to a possible alcohol treatment requirement, or drug treatment requirement and so on. Does the Minister intend to give a brief headline on the scope of the requirements that could be included under clause 23?

Damian Green (Conservative, Ashford)

The guidance will obviously have to give indications of what might be available. Every order needs to be tailored to the individual circumstances of the offender and matched to the services that are available locally. We want agencies to think innovatively about what will work for their communities. We want people to experiment and come up with new ideas. We do not believe that all wisdom resides in central Government. I would not want the guidance to stifle local initiative. I invite the Committee to reflect that that is a sensible way forward.

The right hon. Gentleman asked for details of what we expect will happen. If he rereads the full impact assessment, he will find this issue addressed specifically on page 10. As he knows, the current trend of ASBOs on conviction is declining. We assume that the volume of criminal behaviour orders will follow the same trend because of the broader factors that limit the use of such orders on conviction and the trend among practitioners towards using informal measures to tackle the majority of antisocial behaviour. Clearly, one can come up with several scenarios about future numbers. It would be wrong to weary the Committee with the full costs included in tables E3 and E4 of the impact assessment, but I commend it as a good read.

David Hanson (Labour, Delyn)

It will come as no surprise to the Minister that I have read the impact assessment. I would welcome his putting on the record his assessment of the usage of criminal behaviour orders in the first, second and third years. That could give an idea of the number of requirements that will be included.

Damian Green (Conservative, Ashford)

It would be wrong for me to go beyond what is in the impact assessment, which makes it perfectly clear that the trend is downward. There is a range of scenarios. I am less wedded to specific, centrally driven targets than the right hon. Gentleman. I do not propose to set one. All those issues are discussed in great detail in the impact assessment. It is clearly a legitimate area for debate, but setting targets for requirements either nationally or in each area would not be right.

The right hon. Gentleman also asked about funding. Local areas already fund a range of supportive activity, inevitably. The new orders will enable councils and others to use those resources more effectively in a tough financial climate by making that support compulsory, rather than optional, where an individual’s behaviour is harming others. We intend that agencies will indicate any support that they believe is necessary and available as part of the application process. We do not intend that the court should be able to impose positive requirements on agencies. There will be significant local discretion because in different areas, different types of services will be available. Indeed, in different areas, different types of services will have proved effective. With that explanation, I hope that the right hon. Gentleman will withdraw the amendment.

David Hanson (Labour, Delyn)

Perhaps I am too easily pleased. I heard the Minister say that he will issue guidance, which will be produced at some point. Perhaps—dare I say it—he may be kind enough to send me a copy so that I can scan it and think of some parliamentary questions to ask him in due course. I accept his assurance on that, so I beg to ask leave to withdraw the amendment.

Clause 26 - Variation or discharge of orders

David Hanson (Labour, Delyn)

I beg to move amendment 45, in clause 26, page 14, leave out line 19.

Jim Dobbin (Labour, Heywood and Middleton)

With this it will be convenient to discuss the following:

Amendment 46, in clause 26, page 14, line 21, leave out subsection (2).

Amendment 33, in clause 26, page 14, line 27, leave out from ‘order’ to end of line 28.

David Hanson (Labour, Delyn)

The three amendments intend to get clarity from the Minister on the circumstances whereby the powers under clause 26 will be exercised. The clause states:

“A criminal behaviour order may be varied or discharged by the court which made it on the application of—

(a) the offender, or

(b)the prosecution.”

It goes on to say:

“If an application by the offender under this section is dismissed, the offender may make no further application without—

(a) the consent of the court which made the order, or

(b) the agreement of the prosecution.”

Subsection (3) says that if the prosecution makes a request that is dismissed, there may be no further application without the agreement of the offender.

I would like some clarity on that. The offender is an important part of the process: they have committed an offence, they have been convicted and, under the Bill, they will have been given a criminal behaviour order either prohibiting them from doing anything described in it, as stated in clause 21(5)(a), or requiring them to do what is described, as stated in clause 21(5)(b). Variation might be necessary, but in what circumstances does the Minister believe that the offender might make an application for an order to be varied or discharged, and how will they do that? Furthermore, what safeguards are there to ensure that there will not be a malicious approach in terms of the offender’s behaviour?

I understand and accept that there might be a change in circumstances; for example, the offender’s job might change, their child might be sick or have long-term illness, or they might have a caring responsibility, as the hon. and learned Member for Sleaford and North Hykeham, among others, mentioned earlier.

It would be helpful if the Minister outlined his understanding of the circumstances whereby an offender could apply for a variation, and those whereby, under subsections (1), (2) and (3), the engagement of the offender is most appropriate. Again, I do not mean to cause the Government difficulty, but I think that those interpreting the Bill should understand at some point exactly what the offender’s rights are under the clause, so that the approach is not malicious and the circumstances that the court can take as reasonable are defined as far as practicable if, as we have discussed, there are family, work or other reasonable changes in circumstances.

Rather than simply passing the legislation, I would welcome it if something were read into the record giving direction about the circumstances in which the offender can seek to vary or discharge the application. I say that because clause 26(1) says:

“A criminal behaviour order may be varied or discharged by the court which made it on the application of the offender”.

Without debate—we agree with the proposal—we have just agreed that, under clause 24, an order must be fixed for a period of not less than one year and not more than three years. If we are considering varying that, it is a serious length of time, and there is no clarity in clause 26 about what the circumstances should be.

I accept, as I said, that numerous circumstances could lead to that, but at the moment, variation or discharge of a serious order on application of the offender is left to the court, which could make any decision that it likes, because there is no specific guidance in clause 26 on what that variation should be. I hope that the Minister can give some details of his view on that.

Damian Green (Conservative, Ashford)

I will deal with the right hon. Gentleman’s general points, and then with the effects of the specific amendments. As he says and as the Committee can read, clause 26 allows both the offender and the prosecution to apply to the court to vary or discharge an order. It is obvious that, in certain circumstances, there may be a need to change the order.

To deal with the right hon. Gentleman’s specific questions, such an application may be made when the order is considered no longer necessary, as the root causes of the offender’s antisocial behaviour have been tackled. For instance, if it was caused by a drug problem and he or she has gone on a successful drug treatment programme, clearly, there is no point in continuing the order. It may also be necessary to change the order when the offender’s personal circumstances—for example, their address—have changed, or if an emerging health issue affects the requirements in the order.

The clause makes it clear that the court’s power to vary an order includes the power to add prohibitions or positive requirements, or to extend the time for which such conditions have effect. The rules governing those positive requirements, as set out in clause 23, will apply to any new requirements.

The provision ensures that criminal behaviour orders are sufficiently flexible to respond to changes in circumstances, but it is equally important to ensure that we do not create a burden of vexatious applications. Subsections (2) and (3) therefore provide that, where the court dismisses an application to vary an order, no further application can be made by the same applicant without either the consent of the court or the agreement of the other side.

The right hon. Gentleman asked, perfectly reasonably, what safeguards exist. The safeguard is the consent of the court, which is needed for any further application once a first application is dismissed, and the decision to vary or discharge rests at all times with the court.

Amendments 45 and 46 would remove the option for the offender to apply to vary or discharge an order, meaning that applications would be solely at the behest of the prosecution. For the reasons that I have given, I do not think that that would be right. A criminal behaviour order can be in place for a significant period. For an adult, it can be indefinite. An offender’s personal circumstances may change substantially while the order is in place, which would warrant a change to the prohibitions or requirements. There will be occasions when an offender has genuinely changed and they need to be able to go back to the court and demonstrate that the change is substantial and permanent.

I hope that I have answered the right hon. Gentleman’s questions about the circumstances in which we envisage the power being needed and that he will withdraw the amendment.

David Hanson (Labour, Delyn)

My objective was simply to get the clarification that the Minister has provided, so I beg to ask leave to withdraw the amendment.

Clause 29 - Breach of order

David Hanson (Labour, Delyn)

I did not table an amendment to the clause as I want only to test the meaning of three words in subsection (1): “without reasonable excuse”. It is important that the Minister puts on the record what he regards as a “reasonable excuse,” because a breach of an order is a serious offence. Breaching an order could lead to up to six months in prison, a fine or both. If convicted on indictment, an offender could face up to five years in prison, a fine or both.

Clause 29(1) states:

“A person who without reasonable excuse—

(a) does anything he or she is prohibited from doing by a criminal behaviour order, or

(b) fails to do anything he or she is required to do by a criminal behaviour order,

commits an offence.”

A definition may already exist, but can the Minister define what is meant by “without reasonable excuse”? Is it is a reasonable excuse to say, “I missed the bus”? Is saying, “My child was sick,” a reasonable excuse? Is it reasonable to say—with or without medical proof—“I felt ill this morning”? Is it reasonable to say, “I was asked to do overtime at work and so I didn’t turn up” or “I had a prior engagement that I didn’t tell the probation officer about. I went to Cardiff for a friend’s birthday”? What is reasonable to the Minister may be unreasonable to me and vice versa. It would help those who interpret the legislation in future to have “reasonable excuse” defined. Otherwise, we could—dare I say it?—end up with a postcode lottery in courts, whereby what is reasonable in Ashford is unreasonable in Flint in my constituency. What is the Minister’s assessment of reasonableness?

Sarah Champion (Labour, Rotherham)

I am also mindful of what is reasonable to the victim.

David Hanson (Labour, Delyn)

That is a good point. The nature of the orders and of the chaotic lifestyles of the people subject to them often means that such orders are breached. That is part of the business that the Minister is in. Orders may be breached because people have alcohol or mental health problems—there could be a whole range of issues. As my hon. Friend the Member for Rotherham indicated, if a criminal behaviour order were made against somebody in the town of Rotherham, the victim would know it was in place. They might have been to court to see it installed. They might possibly know, because these things happen in towns, that every Wednesday that person is due to go to alcohol rehabilitation to get treatment, and on that particular Wednesday they were not there.

Without delving into the detail of my hon. Friend’s comment, community confidence is about the orders being seen to be enforced. “Reasonable excuse” is a matter for interpretation. I simply ask the Minister if he could give us his interpretation.

Damian Green (Conservative, Ashford)

I am happy in a way to answer that perfectly reasonable question, but I want to make the point that it will not and should not be for me or any other Minister to anticipate what the courts will decide in any individual case. However, I am happy to give the right hon. Gentleman a broad indication. The basic point is that what constitutes a reasonable excuse is a matter for the courts.

The right hon. Gentleman and I part company where he used the phrase “postcode lottery”, which I seek to avoid. It seems to me that if one is in favour of devolving power from the centre to localities, one inevitably gets different decisions about what is acceptable or appropriate for different communities. People reach for the phrase “postcode lottery” in those circumstances, but it may actually be a good thing that people in Flint regard something as more or less serious than people in Ashford. A philosophical debate has been had about such matters over the centuries, but this Committee is not the place to continue it.

What counts as a reasonable excuse is ultimately a decision for the courts. It could include a family bereavement, a serious accident that requires hospital treatment, or any other last minute, unavoidable circumstances. “Unavoidable” is the word I stress. If somebody gets up and does not feel like fulfilling their obligation because they were drinking the night before, the right hon. Gentleman and I—and, I suspect, every court in the land—would agree that that is not a reasonable excuse for failing to fulfil an obligation. Something last minute, very serious and unavoidable is the sort of thing I would expect the court to regard as a reasonable excuse.

Of course, we expect the police, when they are considering whether to make an arrest, and the courts to be proportionate in their use of the term. Given that both those parts of the criminal justice system are extremely experienced at knowing when and how to act, we can put our trust in them. They will know what a reasonable excuse is in the individual circumstances that are brought up in a particular case.

David Hanson (Labour, Delyn)

Again, I was not trying to cause the Minister difficulty, but I feel it is important that some guidance is given about what will, in due course, be a legal document, which will be interpreted by courts across the country. That was my sole purpose in raising the issue.

Jim Dobbin (Labour, Heywood and Middleton)

I understand that the Whip wishes to move a manuscript amendment to the programme order. If the Committee agrees to that amendment, we will not have a sitting next Tuesday morning.

Clause 32 - Authorisations to use powers under section 33

Gloria De Piero (Labour, Ashfield)

I beg to move amendment 48, in clause 32, page 18, line 17, at end insert

‘and once the relevant local authority has been consulted.’.

It is a pleasure, Mr Dobbin, to serve under your chairmanship. We do not have an issue with the principle of dispersal powers—indeed Labour introduced them back in 2004; none the less, we have an issue with the removal of consultation with local authorities when issuing a dispersal power. We have received many, many submissions along those lines.

As I said, we do not have an issue with dispersal powers themselves; we introduced them. One was used in my own constituency just a few weeks ago to stop car cruisers from meeting up around Sherwood business park in Annesley, and it was welcomed by residents and police. As it was put in place by the police and the local authority, I have not had a single complaint about it. None the less, we must all recognise that when we introduced dispersal powers, they were controversial. The new power can be authorised more easily than the existing one, which is why we are tabling the amendment. Local authorities should be consulted because there must be some democratic oversight.

When the Home Affairs Committee looked at the matter, it recommended that there should be a duty to consult local authorities on applications where a dispersal power was for more than six hours. The Government responded by saying that they would ensure that the legislation allows for that, but, in fact, the legislation does not.

Bridget Phillipson (Labour, Houghton and Sunderland South)

My hon. Friend refers to the Home Affairs Committee report and its recommendations. We also said:

“For dispersal powers, our witnesses pointed to the removal of key oversight structures built around multi-agency approval and risk assessment.”

That goes to the heart of ensuring that local authorities were involved in the process.

Gloria De Piero (Labour, Ashfield)

The proposal has widespread support. The London borough of Hammersmith provided evidence to the Committee. It said:

“There is a real concern that removal of the requirement to consult with the local authority greatly weakens this power.”

The Local Government Association said:

“Use of such powers can on occasion prove very controversial, which is why their use should be dependent on democratic oversight.”

The Association of London Councils said:

“London Councils believe that only allowing the police to decide is too narrow and leaves all the power in their hands in cases that could be controversial.”

The Association of Chief Police Officers said:

“In these new proposals, although PCCs would be expected to provide democratic oversight, this is after the event and not through a process which engages the community before the powers are used...This could result in disproportionate use of the powers and greater tensions in some communities and sections of some communities.”

Buckinghamshire county council said:

“The council suggests that there is a requirement for local governance structures to be put in place around the powers”.

I could go on and talk about what Camden and Norwich say.

Stephen Mosley (Conservative, City of Chester)

At what level does the hon. Lady think that the local authority should be consulted? Should it be at office, member, executive member or chief executive level?

Gloria De Piero (Labour, Ashfield)

Everyone who has made a submission says that the power works well and is a crucial part of their system. Different local authorities will have their own methods, but police say that working with a local authority really helps them get community consensus and cover. We are talking about a measure that was very controversial when it was first introduced.

The briefing from the Criminal Justice Alliance said:

“The authorisation process was found to be a crucial element on which well considered dispersal orders are founded, affording the opportunity to enhance police-community relations and provide openness and accountability.”

We therefore think that it is crucial to work with councils in relation to dispersal powers.

The other change that has been made is that the length of time for which individuals can be excluded from a designated area doubles under the Bill from 24 to 48 hours. The Minister may have good reasons for that, which is why we have not tabled an amendment, but I would like to hear what he says.

The power is controversial and submissions have been made, and we think it is right to state the concerns and note those submissions. Liberty and several other organisations made representations about the change. The details of how the provision will work are set out in clause 33, but as the power is mentioned in clause 32 that is where I raised it.

Damian Green (Conservative, Ashford)

With the amendment we move to the sunlit uplands of part 3 of the Bill, and the new dispersal powers. I am grateful to the hon. Lady for the measured tone of her amendment and her comments.

As the hon. Lady said, under clause 32 the use of the dispersal power must be sanctioned by an officer of the rank of at least inspector. That is to ensure that the need for dispersal, as well as the wider impact on community relations, can be considered properly before the power is used. The inspector can authorise its use in a specified locality for a specified period, not exceeding 48 hours. The hon. Lady asked the reason for that period of time. The obvious point is that the powers are likely to be used at night, conceivably over a weekend, and a 48-hour order would mean there could be a period of peace for such a time, which might be useful in practical terms.

The overall distinction that I would draw, which goes to the heart of the hon. Lady’s concern, is between a dispersal power and declaring somewhere a dispersal area, which is much longer term. The new power is designed to be a dynamic tool to allow the police to deal with antisocial behaviour quickly and effectively, on the spot, and to provide short-term respite to communities blighted by groups or an individual.

One of the problems with the existing dispersal powers, which, as the hon. Lady said, were introduced by the previous Government and proved useful to communities, is that in some circumstances they cannot be used quickly or flexibly enough. The current powers can be used only once a dispersal zone is in place. Before they can designate a dispersal zone the police must consult the local authority—precisely what the amendment would require. That introduces a degree of delay and inflexibility that may, in practical terms, inhibit or indeed prevent the police from taking effective action.

Gloria De Piero (Labour, Ashfield)

Has the Minister received representations from organisations or people suggesting that the provisions are too inflexible at the moment, and, if so, will he name them?

Damian Green (Conservative, Ashford)

The hon. Lady neatly anticipates the next point I was going to make. In written evidence, ACPO said of the new powers:

“These proposals have received significant support as it strengthens police powers to remove people from areas for poor public place behaviour in general and not overly focusing on alcohol related disorder as it is at present. Both Section 30 Anti Social Behaviour Act 2003 and Section 27 Violent Crime Reduction Act 2006 Dispersal orders have proved to be very effective tools and”—

they underline this bit—

“combining these orders will simplify their administration and reduce costs.”

Senior police officers are indeed in favour of that increased flexibility.

Gloria De Piero (Labour, Ashfield)

Perhaps we should have the whole submission in front of us. I accept what the Minister says, but ACPO's written evidence to the Select Committee on Home Affairs states:

“This could result in disproportionate use of the powers and greater tensions in some communities.”

Damian Green (Conservative, Ashford)

Clearly, any power can be misused, but I have great confidence in the ability of the police to deal with public order problems. I am confident that the powers will not be used disproportionately. Underlying the hon. Lady’s argument is an understandable concern about safeguards. She seeks to ensure that the power is not misused. Indeed, that is what the Home Affairs Committee was driving at. For that reason we said that the power needs to be approved in advance by an officer of at least the rank of inspector. There are no exceptions. Even if a situation develops that an officer of a lower rank wants to deal with on the ground by this method, they cannot. It has to be approved by an inspector.

Bridget Phillipson (Labour, Houghton and Sunderland South)

The Home Affairs Committee report noted:

“The proposed power would be available in the event of the public being harassed, alarmed or distressed, or the occurrence of crime and disorder. This is a lower threshold than the necessity to demonstrate a significant and persistent problem in the locality, which applies under the current regime.”

Could the Minister comment on that point, given that it appears to be a stronger power? Does it not require greater oversight if the power is to be appropriately deployed?

Damian Green (Conservative, Ashford)

That goes to the heart of the point I was making about flexibility. The new aspects of the power, which is a greater power, as the hon. Lady said, are designed to allow police officers to react to a dynamic situation quickly, whereas the dispersal zone is designed to address long-term issues, such as when an area becomes a centre for drug dealing or other kinds of antisocial behaviour. The power may be used to address a situation in an area where there is not habitually a problem, but where there is clearly, in the view of a senior police officer ranked inspector or above, a need to say, “We need to do something about this now.” It gives them the power to do that. To return to my point about 48 hours and the weekend, it would be much more difficult to get any kind of authority from a local authority during that period, and therefore the situation might get out of control and damage the community.

Bridget Phillipson (Labour, Houghton and Sunderland South)

The Minister is being very generous in giving way. The Home Affairs Committee report recommended that there be a duty to consult if the dispersal power is applied for a period longer than six hours. Has the Minister considered whether there should be a measure of the length of time the powers are applied for, so that there is an immediate effect, but a duty to consult if the power is to remain in force for a longer period?

Damian Green (Conservative, Ashford)

That is a very good point. The power is designed to be short term—up to 48 hours—so that it can provide temporary respite from an immediate situation. It should not regarded as a long-term solution for disorder in a particular area. I assure the hon. Lady that the power is designed to be a short-term measure, and there are safeguards in addition to its having to be approved by an inspector.

The test for the use of the power is high, and rightly so. People can be moved on only if the officer has reasonable grounds to believe that they are causing, or are likely to cause, harassment, alarm or distress. It should be given in writing; only in exceptional circumstances can it be given orally. The power is not designed to be used lightly. The police will have to jump over a number of hurdles before they can use it. I hope that that will provide the safeguards that people want.

Gloria De Piero (Labour, Ashfield)

The Government responded to the Home Affairs Committee’s recommendation that the local authority should be consulted where a dispersal power was applied for longer than six hours by saying that they

“will make sure the legislation allows for this.”

Damian Green (Conservative, Ashford)

We have introduced the safeguards. The problem may simply be one that divides our analysis from that of the Home Affairs Committee. If we went down the route of compulsory consultation with a local authority before the power was used, it would severely reduce the usefulness of the power to help communities maintain their police protection and would therefore lead in the end to more potential for public disorder. That may be a straightforward difference of analysis. The usefulness of the power will be immediate and for dynamic and unexpected situations. It is a useful new tool in the police armoury. Given all that, we should be wary of adding to the provisions additional requirements that slow down the exercise of such a power.

The hon. Member for Ashfield also mentioned police and crime commissioners, who, she said, can operate only in retrospect, rather than in advance. That is true, but they will have an important role in overseeing the use of the dispersal power. Police forces will keep records of the dispersals issued, and the police and crime commissioner can use those data to hold the force to account for how the dispersal power is used. If it is clearly shown that there is a pattern of misuse of such powers, there will be consequences for the chief constable through the police and crime commissioner, whose job it is to hold the chief constable to account.

In conclusion, the arrangements set out in clause 32 balance the need for safeguards with the flexibility that is vital for dealing with a wide range of antisocial behaviour. I am therefore not persuaded by the arguments in favour of the amendment, and I ask the hon. Lady to withdraw it.

Gloria De Piero (Labour, Ashfield)

The Minister has not given me a single example of where, for instance, a community has been in danger because a local authority could not be consulted about a dispersal power over the week, and the power could not therefore be used. Given that, and the overwhelming number of submissions made by so many local authorities of different political persuasions, I would like to test the will of the Committee on the amendment.

Clause 33 - Directions excluding a person from an area

Stephen Phillips (Conservative, Sleaford and North Hykeham)

I will not detain the Committee for long on this stand part debate. Along with my hon. Friends the Members for Chatham and Aylesford and for North East Cambridgeshire, I tabled some amendments to leave out some potential areas of red tape, in which the police will be involved if the Bill is passed. The measures in question are in subsections (5)(a), (5)(b), (9)(a) and (9)(b), which require directions to be written rather than oral. Even if the amendments had been tabled in time, I would not have pressed them to a vote, but I ask the Minister to consider deleting the provisions on Report on the basis that the Government are quite rightly committed to tackling police red tape and that the measures may be unnecessary.

Damian Green (Conservative, Ashford)

I am happy to address directly my hon. and learned Friend’s concerns. He is right that the Government are keen to reduce unnecessary bureaucracy in the police. Indeed, we have taken quite considerable steps toward that. Obviously, however, it is appropriate to strike the correct balance between the safeguards that the public require and the police’s ability to operate effectively. It is worth noting that recording directions is considered best practice by those who currently use the existing powers, and ACPO has issued advice to that effect.

Issuing a direction in writing is an important safeguard for several reasons. First, it helps the person being given the direction understand exactly what is required of them. The written notice will specify the locality to which it relates and can impose requirements about the time by which the person must leave the locality and the route that they must take. The officer must also tell the person that failure to comply is an offence. Current best practice is to provide a pre-prepared notice, which the officer completes with the specific details of the direction. That may include a map to clarify the area the person is excluded from. If the direction is breached, it is crucial that the terms of the direction and how they were communicated are clear and capable of being evidenced. Breach of the dispersal power is an offence and the court would need to judge whether there is a reasonable excuse for failing to comply.

Secondly, keeping records will mean that use of the dispersal power can be scrutinised, as we have discussed previously, to ensure that it is not used disproportionately, either in a particular place or against particular groups of people, such as young people. That will help the police and crime commissioner scrutinise how the dispersal power is being used in their force area.

Thirdly, police forces and councils will be able to use data about use of the dispersal power in their crime prevention planning and when developing longer-term solutions to antisocial behaviour in hot spots.

I therefore understand the underlying concern. We have made the new power less bureaucratic by removing the need to pre-designate a dispersal zone in consultation with the local authority. However, the dispersal power is a powerful tool. We have seen in several serious recent issues that having a proper audit trail of what individual police officers have said and done, and when, is extremely important. I hope that my hon. and learned Friend recognises that.

Stephen Phillips (Conservative, Sleaford and North Hykeham)

Certainly my parents would have told me—I am sure that every Member’s parents told them this when they were little—that policemen used to tell children and young people who were making trouble essentially to hop off. My concern, quite apart from the red tape, is not only that that no longer happens, but that we are essentially enshrining in statute that it cannot happen; the police officer will now have to give the young person, albeit someone older than 10, a written direction to leave.

I am not going to push any amendments either now or, I think, on Report—although I make no commitments in that regard—and I have heard everything the Minister has to say, but I hope that he will look carefully at the matter.

Damian Green (Conservative, Ashford)

I appreciate my hon. and learned Friend’s point. I think there is a certain tendency to look back with nostalgia on the golden age of the clip round the ear. In the modern world, for all sorts of reasons, society has moved on. The capacity of people to record on mobile phones and cameras what the police may or may not be doing in individual circumstances would, regardless of anything else, entail greater official care about the capacity for the police to take individual, unofficial decisions about how best to deal with a dynamic public order situation.

Of course, that is what the police are doing up and down the country, often late at night, in every city and town. They have to make second-by-second decisions about the best way to defuse a situation safely. Given that the powers granted to them under the order are considerable, having a degree of formality about them, with as little bureaucracy as possible, so that there can be a decent, accurate and precise audit trail afterwards, is, apart from anything else, in the long-term interest of the police themselves, because they will be able to show precisely what they had instructed individuals to do. The amount of dispute we can minimise in that area seems to me to help not only the situation at the time, but in any subsequent investigations.

I am grateful for my hon. and learned Friend’s indication that he will not seek to press any amendments. I hope that I have been able to reassure him and the Committee.

Gloria De Piero (Labour, Ashfield)

Because of the controversy about the powers, both when we introduced them and in the Bill, I think that it is worth obtaining some reassurances for the organisations that have made representations. Police officers have the power to return an under-16-year-old to where they live or to a place of safety. Regarding that power, the Children’s Commissioner said:

“Inappropriately used, however, there is potential for the power to result in vulnerable children who are on the streets to avoid abusive situations at home being exposed to greater violence”.

As the commissioner has made a submission, it is worth responding to it just for the record.

Damian Green (Conservative, Ashford)

We have discussed the purpose of the dispersal power. It is a powerful provision that allows people to be directed away from an area they wish to be in. As the hon. Lady said, the Children’s Society and Barnardo’s have raised a specific point, which relates to the existing regime as much as it would to the new regime under the Bill. We are seeking to mitigate that concern through the accompanying guidance that we discussed this morning and our wider safeguarding work. For example, we are now working with the College of Policing on training for police officers to ensure that they recognise the signs of child sexual exploitation. That is part of a much wider and important piece of work on child sexual exploitation.

Police forces already have safeguarding arrangements in place to ensure that children are not returned to unsafe homes or placed in potentially harmful situations. We are seeking to improve the behaviour, ability and training of police officers, so that the important issue of protecting children is at the forefront of officers’ minds, particularly when they are exercising the type of powers that they will have under this section of the Bill. I hope that the hon. Lady is reassured by that.

Clause 34 - Restrictions

Stephen Phillips (Conservative, Sleaford and North Hykeham)

Again, I shall not detain the Committee long. There are printed amendments to the clause, which cannot be moved because they were out of time, in my name and those of my hon. Friends the Members for Chatham and Aylesford and for North East Cambridgeshire. Under subsection (2), where a dispersal power is used, a direction cannot be given that prevents the individual to whom it is given from going to the place where they live. The Minister will need to think about the following point before Report.

One can envisage how the dispersal power might be used where domestic violence was being demonstrated in a public place, for example, between a drunken man and his girlfriend. The police officer uses the dispersal power and tells the drunk chap to go home. He goes home, but is in due course followed by his girlfriend because she has nowhere else to go. So rather than taking place in a public place, in a pub, in the street or wherever it may be, the incident that the police officer fears takes place at home where the woman is beaten up by her abusive partner. While I quite understand and, indeed, support the general principle that the dispersal power should not be used to exclude someone from their home, it seems to me and my hon. Friends that there should be some leeway in this regard.

The amendments that cannot be moved, but are printed on the amendment paper, were designed to deal with that, so that a direction can be given to disperse someone from the address or tell them not to go back to the address where they live when there is a likelihood of harassment, alarm or distress being caused to someone at that location, or there is a threat, or violence is likely against someone who will be in the place where that person lives, or there is a significant risk of harm to the person who lives at that place. That ought to be dealt with, I respectfully suggest to my right hon. Friend the Minister, in the Bill. The Bill is currently too prescriptive. Subject to anything he says now, if the Government do not deal with this, I will certainly consider moving the amendments on Report.

Damian Green (Conservative, Ashford)

I am grateful to my hon. and learned Friend for raising the issue. The dispersal power is intended for use in public places, to prevent or to stop members of the public being harassed, alarmed or distressed, or to prevent crime or disorder. That is why it would not be appropriate to allow this dispersal power to be used in the manner he proposes. It is not that it is not an important issue—it is.

Stephen Phillips (Conservative, Sleaford and North Hykeham)

If that is right, and I have no reason to suppose that it is not, it is difficult to see why subsection (2) is in the Bill at all. It reads:

“A constable may not give a direction under section 33 that prevents the person to whom it is given having access to a place where the person lives.”

That is therefore concerned with preventing that person from going to or staying in the place in which they live—not a public place.

Damian Green (Conservative, Ashford)

Again, we are talking about giving the police certain powers. If that subsection were not there, the police would have the power to make someone temporarily homeless for up to 48 hours, which would be a new and somewhat draconian power. There is a perfectly good reason to have the subsection in the Bill. The underlying point my hon. and learned Friend makes about violence inside the home is perfectly fair, but there is a range of other powers that can be used in precisely those circumstances. The Minister of State, my hon. Friend the Member for Taunton Deane, said on Tuesday that he will consider whether the Bill needs to supplement those powers, and, in particular, whether it would be right to extend the injunction to prevent nuisance and annoyance in specific circumstances such as the risk of violence or harm. However, it is important to remember that powers already exist for circumstances in which there is violence, the threat of violence or a significant risk of harm to someone in the house.

For example, where there is risk of immediate harm a police officer can arrest someone for a breach of the peace, a common-law concept used to stop someone causing harm to a person or property or to prevent them from doing so. A breach of the peace may occur on either public or private property; police may use their common-law power to enter a property without a warrant in order to stop or prevent the breach.

Bridget Phillipson (Labour, Houghton and Sunderland South)

The Minister is right. That is certainly what has happened in the area covered by the Northumbria police force, which has a proactive policy in that regard. However, it took a long time to reach that point, and I am not entirely sure that the power is consistently used. In fact, the power could be used better: police officers do not always seem confident in using it. There is need for greater attention to that matter.

Damian Green (Conservative, Ashford)

I am grateful to the hon. Lady for raising that point, because, as I say, the powers are there. We are discussing legislation, so we are giving powers, but how the police use those powers is an operational matter for individual chief constables. Indeed, if a pattern of problems is emerging, it would be legitimate for the hon. Lady to discuss that with the police and crime commissioner—we now have those people in place—whose job it is to hold the force to account.

In response to the point raised by my hon. and learned Friend, we fully expect a police officer to assess the situation before he or she exercises the dispersal power. If an officer is faced with the kind of domestic violence problem that my hon. and learned Friend described, it is unlikely that using the dispersal power would be the appropriate response. There are other powers; there may be a feeling that they are not used appropriately in individual cases, but in terms of legislation it seems to me that the necessary powers are already in place.

When it is necessary to prevent somebody from accessing their home for a longer period, an injunction can be made under the Family Law Act 1996 or the Protection from Harassment Act 1997 to protect someone who is at risk of harassment or conduct that puts them in fear of violence. Breach of one of those orders is a criminal offence.

I understand the concerns raised by my hon. and learned friend, but I hope I have been able to reassure him and other members of the Committee that the dispersal powers are appropriate and appropriately described.

Stephen Phillips (Conservative, Sleaford and North Hykeham)

I listened carefully to the Minister, and he has given me some reassurance. In relation to the powers that he outlined, what concerns me is that if one looks, for example, at the power to arrest for a breach of the peace, exercising that power in the scenario I outlined to the Committee would mean that the couple are sent home—dispersed, together or separately, to the residential property; the police then have to go to the property to check nothing is going on. If something is going on, they can arrest at that point for breach of the peace, but in reality they will have to spend the rest of the evening checking the situation, until the chap sobers up or whatever is driving the violence dissipates. That ties up resources and police time, and is completely unnecessary. We could amend the Bill to deal with the problem that I was outlining.

As for injunctions, I am afraid that they provide no answer at all. They afford no solution, because they require both evidence and a trip to court. The Minister is perfectly correct that breach of an injunction amounts to a criminal offence, but that does not deal with the immediate situation of violence that I outlined. It is immediate situations of violence and of antisocial behaviour and disorder with which the Bill is seeking to grapple. I therefore urge the Minister to look carefully at the issue with his officials, who I know have been listening intently to my no doubt inadequate description of the problem I foresee with the clause, and to come back on Report with rather better reassurances than the Committee has heard today—at least as regards my concerns—or, perhaps better still, to amend the Bill along the lines I indicated.

Damian Green (Conservative, Ashford)

Let me have one last go at reassuring my hon. and learned Friend, by mentioning another new power elsewhere in the criminal justice system. Since last June, we have been piloting the domestic violence protection order in three police areas—West Mercia, Wiltshire and Greater Manchester. That new power enables the police and magistrates courts to put in place protection for the victim in the immediate aftermath of a domestic violence incident. Under a DVPO, the perpetrator can be prevented from returning to a residence or from having contact with the victim for up to 28 days, allowing the victim breathing space to consider their options, with appropriate support, obviously, from public agencies.

I can only assure my hon. and learned Friend again that we are very conscious of the problems of domestic violence, and we are taking significant steps to try to minimise and discourage it. We are experimenting with new ways of using the courts and other agencies to ensure that domestic violence is treated appropriately, because it is a significant problem.

Clause 35 - Surrender of property

Gloria De Piero (Labour, Ashfield)

I seek clarification on clause 35, which deals with the surrender of property. Subsection (1) states:

“A constable who gives a person a direction under section 33 may also direct the person to surrender to the constable any item in the person’s possession or control that the constable reasonably believes has been used or is likely to be used in behaviour that harasses, alarms or distresses members of the public.”

To give a practical example, the item could be a radio that is blaring out loud music or some spray paint.

Subsection (2) states:

“A direction under this section must be given in writing, unless that is not reasonably practicable.”

If members of the public were being threatened with spray paint, how would the constable remove it from the person? Surely, they would not have to write to them.

Damian Green (Conservative, Ashford)

The constable can remove it and then write. Let me try to set the issue in a wider context and give the hon. Lady a fuller answer.

As the hon. Lady said, under the clause, when an officer issues a dispersal direction, he or she may also direct the person to surrender any item he or she reasonably believes has been used, or is likely to be used, in antisocial behaviour. As she said, the item could be spray paint, in cases involving graffiti, or it could be alcohol, where drinking is involved. The power in the clause clearly makes it more difficult for individuals to continue their antisocial behaviour elsewhere. The direction will be given in writing, unless that is not reasonably practicable; one can imagine circumstances—a struggle may be going on or something like that—in which it might not be practicable.

The officer must tell the person that failing to comply is an offence and give them information in writing about when and how to recover the item; again, it is a question of the audit trail I mentioned earlier. As the Committee can see, the clause includes arrangements for the return of any surrendered item. The item must not be returned before the end of the exclusion period—the period during which the person must stay out of the locality. If the person appears to be under the age of 16, the officer can specify that it will be returned only if they are accompanied by an adult. If the person has not collected the item after 28 days, it may be disposed of or destroyed.

The purpose of the provision is to complement the core dispersal power and to make it more effective. On that basis, I ask the Committee to allow clause 35 to stand part of the Bill.

Clause 36 - Record-keeping

Gloria De Piero (Labour, Ashfield)

I am pleased that there will be some record-keeping on the use of dispersal powers. Will there be guidance on how the public can see where dispersal powers have been used? Will the data be published locally? Does the Minister think that is a good idea? If so, what time scale does he have in mind for the police or council to show how the powers have been used?

Damian Green (Conservative, Ashford)

That is a good question. I am in principle in favour of transparency and if the police wanted to publicise the fact that a dispersal order had been issued, it seems to me that in general there would be no objection to that. As the hon. Lady says, the purpose of the clause is to ensure that there is proper record-keeping. One can clearly see that to deal transparently with some instances, particularly those involving juveniles, might not be sensible on a widespread basis, but in general it is not specified in the Bill. In general it is good to work transparently, and that should happen even more widely than it now does in the criminal justice system.

Clause 37 - Offences

Gloria De Piero (Labour, Ashfield)

The submissions I shall refer to were raised in connection with the introduction of dispersal powers, but that does not mean it is not important to obtain responses to them.

Justice was

“particularly concerned that non-compliance with the new direction will constitute a criminal offence and carry a maximum penalty of three months’ imprisonment.”

The Criminal Justice Alliance shared some of those concerns. The matters were raised when the powers in question were introduced, but we think it is important, for powers that are so controversial, to restate the case for them.

Damian Green (Conservative, Ashford)

I am happy to restate it, and I suspect that the issue would not divide us, in that although the hon. Lady was not a Member of Parliament at the time, she was a supporter of the Government who introduced the original powers. There was controversy about them, but we both agree that they are useful. They are helpful for the safety and security of people in their communities.

The problem is that a power of direction without any sanction against someone who does not comply with it rapidly becomes useless. As the hon. Lady said, failure to comply with a direction to leave an area makes someone liable to imprisonment for a period not exceeding three months, or a fine of up to £2,500, or both; and a person who fails to surrender items if requested to do so is liable to a fine of up to £500. As we all agree that the powers are useful we need to back them up with some sort of sanction.

Gloria De Piero (Labour, Ashfield)

It is interesting that the Minister makes that point, because it is exactly the one that the Opposition made about the introduction of the injunction to prevent nuisance and annoyance: if there is no criminal sanction, what is the point? It is interesting that the Minister used an argument about powers under clause 33 and 35 that we used about a different power.

Damian Green (Conservative, Ashford)

That is precisely because it is a different power. We should not necessarily go back over provisions that the Committee has already considered. Perhaps we should simply celebrate our unity on the provisions we are now considering.

Clause 38 - Powers of community support officers

Gloria De Piero (Labour, Ashfield)

Again, I am doing my duty; submissions have been made and it is important that they are put on the record. In the spirit of unity, I expect the Opposition will agree with the Minister’s response. However, both Justice and Liberty are concerned about police community support officers having the power to direct dispersal, and it is important to respond to those criticisms.

Damian Green (Conservative, Ashford)

I have huge respect for Justice and Liberty—both the organisations and the concepts—but the use of dispersal powers by police community support officers at the discretion of the chief constable will make the powers much more effective. I suspect that the provision will be particularly welcome to my hon. Friend the Member for North East Cambridgeshire, who has campaigned on the issue.

It is for the chief constable to decide whether to give PCSOs the power to issue a direction only, or the power both to issue a direction and to confiscate items. The new power replaces two existing powers, namely the power in section 30 of the Anti-social Behaviour Act 2003 to disperse individuals in designated places and that in section 27 of the Violent Crime Reduction Act 2006 designed to tackle alcohol-related disorder. Whereas a designated PCSO can exercise the first of those powers, they cannot exercise the 2006 Act power, so in bringing together those existing dispersal powers we are, in effect, extending the powers of PCSOs.

It is important that PCSOs are able to use the new dispersal power. Their primary role is in community safety, providing a visible policing presence on the streets. As a result, they will often be the ones who witness antisocial behaviour and they should be able to act quickly to stop problems escalating.