Anti-social Behaviour, Crime and Policing Bill — Committee (5th Day) (Continued)

House of Lords, 2 December 2013.

Baroness Hamwee (Liberal Democrat)

This group of amendments takes us to Clause 91, which provides for possession in the event of riot-related offences. The first amendment in the group is Amendment 56AM, tabled by my noble friend Lord Greaves, who also tabled Amendment 56ACC. He proposes to leave out the words “a person” from the new grounds so that the ground for possession would be limited to an offence by the tenant residing in the dwelling house, not the tenant or another person. My noble friend, who cannot be here today, asks whether—as he and I read the legislation—this could include, for instance, a lodger or someone who has been taken in by the tenant on the advice of the Government to avoid the spare bedroom tax.

My Amendment 56AB would restrict the ground for possession to the commission of a serious offence, using the definition in new Section 84A in Clause 86 for convenience. I understand and appreciate that granting possession will be a discretionary matter, but the court must take account of some circumstances being such as to justify the exercise. I was concerned, as I have been on similar points, by the Government’s response to the Joint Committee on Human Rights, which said that it was not persuaded by the Government’s justification for this ground for possession. The Government say that this is likely to happen only very exceptionally. The ground is discretionary, which means that the court will not be able to make a possession order unless it considers it reasonable to do so. The court may be less likely to conclude that it was reasonable to evict when the crime was not committed in the locality of the property. As it is a riot-related offence, it may have been committed some way away and have nothing to do with the property. We are talking here about offences which, in all likelihood, are unrelated to the other occupants of the property. The JCHR commented that this response would disproportionately affect women and children.

This Bill is, rightly, victim focused, but I am concerned that this punishment would create new victims—other occupants of the property. If an offender who is about to set out to take part in a riot and to loot is not deterred by the thought that he might be convicted of a criminal offence and be imprisoned, and the effect of that on his family, would he even think about the tenancy? I find it hard to put myself in the mind of such a person, but I doubt it.

My amendments would restrict the offence in question to a serious offence and try to meet the Government part way on this. I have other amendments that would allow the court to transfer the tenancy to the spouse of an offender who herself or himself is not an offender. I am happy with the clause, but I have cut out the first bit and gone straight to seeking a compromise with the Government. I beg to move.

Lord Faulks (Conservative)

My Lords, I would like to address the House on this clause. As the Minister will

be aware, I am very much in favour of the architecture of this Bill and very sympathetic to its aims. However, as in life, not everything is perfect, and I fear that I cannot give my endorsement to this clause, which gives the court additional powers to order possession in relation to secure and assured tenancies in the event that the,

“tenant or a person residing in the dwelling-house has been convicted of an offence which took place during, and at the scene of, a riot in the United Kingdom”.

That distinguishes it from other parts of Part 5, which are concerned with matters that take place in the locality—or the vicinity, as the noble Lord, Lord Greaves, would have it.

I understand that the additional ground for possession has been included in the Bill to reflect the seriousness with which the Government view participation in riots, particularly those on a scale seen in this country during the summer before last. Those who committed offences during the riot on that occasion were dealt with speedily and firmly. Sentences of imprisonment were the norm, and some were lengthy. To some extent, one could say that they were deprived of the right to remain in a dwelling house by that very process. The courts have sufficient powers to deal firmly with offenders caught up in a riot and appeals against sentences were, for the most part, unsuccessful. The criminal justice system—some would say “for once”—in general responded very well to what occurred.

I am concerned that this measure is a step too far. While a court would still have to be satisfied that it was reasonable to grant possession, the fact that the relevant offence can be committed not only by the tenant but by someone residing in the dwelling house means that a tenant wholly innocent of involvement in a riot could potentially lose their home. I do not think that this is a necessary or appropriate provision, given all the other powers that exist elsewhere in the Bill. I am also concerned that what is essentially a procedure by way of civil remedy should carry with it a criminal offence of this sort connected with the civil recovery of possession. Although I share the Government’s concern that those involved with riots should be dealt with in a way that sends out a message to any potential rioters, I take the view, as did the Joint Committee on Human Rights, of which I am a member, that this clause is a step too far.

Baroness Berridge (Conservative)

My Lords, I, too, am a member of the Joint Committee on Human Rights and wish to speak to Clause 91. I sympathise with the Government’s reasoning and motivation for this additional ground for possession being included in the Bill and appreciate the strong signals that are needed for people involved in rioting. I was in London in the summer of 2011 so I can directly share the concern of the Government and the general public about the serious nature of the offences of those who participate in riots, especially on that scale. However, as my noble friend Lord Faulks outlined, the criminal courts have sufficient powers to deal with those matters. If I recall correctly, some courts even sat through the night, and many offenders were clearly extremely shocked to be sentenced to a period of imprisonment. The criminal courts were not found wanting and sentences reflected the gravity with which the judiciary viewed this behaviour.

It is important to note the distinctive nature of the power in Clause 91. Unlike the powers in Clauses 86 to 90, this power is exercised in relation to behaviour that is not necessarily either of any impact on the landlord or in relation to the premises themselves or connected to the dwelling house. I also share the concern of the noble and learned Lord, Lord Lloyd. When speaking of the old ASBO regime, he stated that we are,

“using the civil law to do the work of the criminal law”.—[ Official Report , 18/11/13; col. 750.]

Repossessing premises is a civil law matter, but this provision is akin to bringing criminal penalties for riot into our civil courts. As my noble friend Lord Faulks has outlined, the courts have to be satisfied that it is reasonable to grant possession. However, the fact that the offence can be committed not only by the tenant but by someone residing in the dwelling house means that a tenant wholly innocent of involvement in rioting could lose their home. That is unjust.

Such a tenant could argue that Article 8 of the European Convention on Human Rights protects their right to a family life and home. However, such arguments can often be lengthy and expensive. Many of these arguments will end up being funded by the taxpayer. Although I share the Government’s concern that rioting should have potentially serious consequences, I am left wondering why if rioting is a ground for repossessing premises, other serious offences, such as paedophilia, are not. I maintain the view recorded in the report of the Joint Committee on Human Rights. This clause will be an unhelpful precedent.

Lord Foulkes of Cumnock (Labour)

My Lords, a few weeks ago I was quite taken aback when I received from a Conservative Peer a message of glowing tribute for the two speeches I had made in the Chamber that day. Since I had not been anywhere near the Chamber that day I was somewhat mystified, and that is why I want to make it clear that the speech before last was not made by me, but by someone with a similar name. The noble Baroness currently in the chair and I also have the same sort of problem from time to time, except that there is one big difference between her and me which is fairly obvious. I do not mean politics, I mean gender. So I want to make it clear that the speech before last was made by the noble Lord, Lord Faulks: F-A-U-L-K-S. I say that because if I just pronounced it, Hansard would not know what on earth to do.

I have a further point. Had I been making these points in another place with the noble Baroness, Lady Fookes, in the chair, she would have ruled me out of order long before now, but that does not happen here. My point is that that the numbering and lettering of these amendments is even more confusing than the confusion between our three names. I hope the clerks will look at some more logical way of numbering and lettering amendments. After all, 56 is not the only number that you can use for an amendment. There is 57 for example, and so on. These As, Bs, Cs, Ds and so on are most confusing. However, I am going on too long, taking up time now when I am looking forward to speaking in order, substantially and importantly, on attacks on shopkeepers and public service workers later in the Bill.

Lord Paddick (Liberal Democrat)

My Lords, I support my noble friends Lord Faulks and Lady Berridge, although I am not on the Joint Committee on Human Rights. At the time of the riots in London and across the country a couple of years ago, I supported severe punishment by the courts of otherwise minor relatively offences, because those offences took place during a riot. I do not support lenient treatment of minor offences committed during a riot. However, as my noble friends have indicated, the provision to order possession of a property when the offence has absolutely nothing to do with protecting neighbours, for example, from anti-social behaviour, is a step too far. It is politically motivated and is not driven by the needs of justice. Therefore, it should be no part of this Bill.

Lord Rosser (Labour)

My Lords, Clause 91 is headed “Offences connected with riot” and presumably the intention is again to put victims first. In that case, I come back to an earlier point: why are there two classes of victim of riotous behaviour? Riotous activity by a tenant of social housing or an assured tenancy can lead to eviction, but riotous activity by an owner-occupier cannot, and there is no redress of comparable severity that would apply to an owner-occupier but not to someone in rented accommodation. Will the Minister address this point? In a Bill intended to put the victim first, what is the thinking behind the Government’s apparent decision that there should be two classes of victim when it comes to action that can be taken against those who cause misery through the activity defined in Clause 91?

Under Clause 91, tenants, including the individual convicted of riotous activity, who have caused no nuisance, annoyance or harassment, alarm and distress to anyone living in their own locality could be evicted. Children could be evicted. This clause appears to have more to do with punishment over and above that handed down by the court for riotous activity. This additional punishment is not evenly applied, since it can affect only those in social housing and assured tenancies and not owner-occupiers. Is that fair and just?

Finally, Clause 91 refers to,

“an offence which took place during, and at the scene of, a riot in the United Kingdom”.

Could this include an offence unrelated to the riot, but at the scene of the riot, such as careless or dangerous driving, or a minor assault? If so, could a family in rented accommodation face eviction for such an offence as a result?

Lord Taylor of Holbeach (Conservative)

With regard to the question that the noble Lord asked me before our tea break, I have nothing further to add. The two classes of tenure are different. Therefore, the possession of property which is owned by someone and the possession of a property which is tenanted by someone are not comparable. The noble Lord is seeking to introduce a red herring. It adds nothing to whether anti-social behaviour should be grounds for possession.

Lord Rosser (Labour)

I understand what the Minister is saying, but he seems reluctant to admit that under this Bill someone in rented accommodation can be treated

much more severely than an owner-occupier. He seems unwilling to face up to there being, for the same offence, unequal treatment and indeed considerably more drastic treatment for those in rented accommodation, who can lose their homes while owner-occupiers cannot. There is no penalty of equal severity for an owner-occupier that does not apply to someone in rented accommodation.

Lord Taylor of Holbeach (Conservative)

An owner-occupier with a mortgage might well find his home taken from him as a result of a term of imprisonment. I say to the noble Lord that trying to compare bottles with cans is not a particularly helpful thing to do. Either he is in favour of retribution—

Lord Faulks (Conservative)

I am very grateful to the Minister for giving way. He has been asked this question a number of times. Of course, there are differences. One significant difference, of which he will no doubt be aware, is that if you are a tenant of a public authority, you have additional protection by virtue of the Human Rights Act, whereas those who are not protected by a public authority—private tenants—do not have any such protection.

Lord Taylor of Holbeach (Conservative)

I am grateful to my noble friend for his intervention, which points to a difference. There is a difference in the treatment; there is not a difference in the way in which the victims are dealt with.

Lord Rosser (Labour)

I am always interested to listen to a lawyer explaining the law. However, that point does not answer the point that I have made: for the same offence there is a much more drastic penalty for somebody in rented accommodation than for an owner-occupier—namely, loss of their dwelling.

Lord Taylor of Holbeach (Conservative)

The noble Lord has made that point several times. It is up to other noble Lords to judge whether it correctly identifies anti-social behaviour, which is what the Bill seeks to address.

I would like to talk about the subject of this debate—that is, the specific proposals in Clause 91. As the law stands, thuggish behaviour against neighbours or in the locality of a tenant’s home may be a basis for eviction. However, looting, or other riot-related criminal activity, by tenants further away from their homes would not usually be taken into account. I do not think that is right, although the noble Lord may think that it is. People who wreck other people’s communities through riot-related offences should face the same consequences that they would if they carried out such behaviour in their own neighbourhoods. Clause 91 enables that to happen. It also sends out a strong and important message for the future that if you get involved in a riot, whether that is near your home or not, there may be consequences for your tenancy.

However, I emphasise that we would expect landlords to seek to evict under this new ground for possession only exceptionally. With regard to the concern raised by the Joint Committee on Human Rights—that

the ground amounts to a punishment and may disproportionately affect women and children—it is important to note that safeguards will be in place. The new ground is discretionary, and so, just as is the case for the existing discretionary grounds for possession for anti-social behaviour, the court would have to consider whether it was reasonable to grant a possession order in the light of the facts of the case. The impact on the whole household and any young children is likely to be a relevant factor in this.

Amendments 56AM and 56CC to this clause would mean that possession action under the provisions of Clause 91 could be triggered only where the tenant, and not a member of their household, had been convicted of an offence. Amendments 56B, 56C, 56D and 56E would mean that only convictions for “serious offences”, as defined for the purposes of the new absolute ground for possession, could trigger possession action under the provisions of Clause 91.

As I have said before, it is an established principle of tenancy law that a tenant is held responsible for the behaviour of members of their household. There is also an issue of wider parental responsibility here. In practice, though, the landlord would need to prove that it was reasonable to grant possession, and we consider it unlikely that the court would find this to be the case where a child of a tenant has, as a one-off, got caught up in, and committed, an offence during a riot. Clearly, a tenant, or any other parent, should be held more responsible if their teenage child makes their neighbours’ lives a misery over a period of years than if they just let them out of their sight for a few hours. Similarly, in practice we would not expect this new ground for possession to be used where the conviction was for a minor offence. We would expect these provisions to be used only exceptionally and in relation only to serious riot-related offences. Therefore, a landlord might, for example, consider possession action where one of their tenants had been convicted of a serious assault on a police officer, but not where they had stolen a pair of trainers from a shop. Again, even if a landlord were to apply for possession on the basis of a minor offence committed at the scene of a riot, we would not expect the court to consider it reasonable to grant possession. Therefore, we would, in practice, expect the impact of Amendments 56AM, 56CC, 56B, 56C, 56D and 56E to be limited.

I recognise, however, that, through these amendments, my noble friends—I was also grateful for the speeches made by my noble friends Lady Berridge and Lord Faulks—are seeking to ensure that we establish in law that only serious offences committed at the scene of a riot by a tenant could provide a trigger for possession under the new ground. I am, therefore, ready to consider these amendments further, without commitment, in advance of Report.

Amendments 56CA and 56CB would enable the court, when granting possession against a tenant, to order that the tenancy be transferred to another individual. There may be occasions, for example where relationships break down, where it is appropriate for a court to determine to whom within a household a new tenancy should be granted. In general, however, decisions about who should be allocated available social housing locally should rest with the landlord or, where nominations

agreements are in place, with the local authority. They, not the courts, understand who is most in need of social housing locally, and are best placed to make decisions in the light of that knowledge.

In short, I believe that these provisions make entirely appropriate changes to the discretionary grounds for possession available to landlords. It will still be for the landlord and the courts to decide whether possession is reasonable in all the circumstances. That said, in relation to the riot-related provision, I will, as I have indicated, take away Amendments 56AM, 56CC, 56B, 56C, 56D and 56E and consider them further. With that assurance, I commend Clauses 90, 91 and 92 to the Committee.

Baroness Hamwee (Liberal Democrat)

My Lords, I confess that I am a little confused by the comments of the noble Lord, Lord Rosser. As I understand it, he supports the concept but takes issue with differentiation between tenures. However, in supporting the concept and saying that different tenures should be dealt with in a similar way, I assume that he is talking about confiscation of a property. However, we do not have to go there as that is not what is provided by the Bill. Obviously, I am very grateful to my noble friend—

Lord Rosser (Labour)

I said that no redress of comparable severity would apply to an owner-occupier as opposed to somebody in rented accommodation.

Baroness Hamwee (Liberal Democrat)

As I said, the noble Lord is concerned about differentiation. That is where my logic—perhaps not his—takes me. I am grateful to the Minister. My amendments on the transfer of a tenancy sought to ameliorate the situation, although I recognise landlords’ concern. As regards what is reasonable for a court or a landlord to do, I am not sure whether the reasonableness concerns the seriousness of the offence or the nature of the household—for instance, whether there is a child in the household. I have a bit of a difficulty there. Having said that, my noble friend made my argument extremely well. I am very glad that this matter will be considered further and will not take up any more of the Committee’s time on it tonight. I look forward to coming back to it on Report, whenever that is. It is probably quite soon. I beg leave to withdraw Amendment 56AM.

Amendment 56AM withdrawn.

Amendments 56B to 56E not moved.

Clause 91 agreed.

Clause 92 agreed.

Clause 93: The community remedy document

Amendment 56F

Moved by Baroness Hamwee

56F: Clause 93, page 64, line 14, leave out “one” and insert “two”

Baroness Hamwee (Liberal Democrat)

My Lords, in moving Amendment 56F, I will speak also to Amendments 56G and 56H, as well as Amendments 56GA, 56GB, 56HA and 56HB in the name of my noble friend Lord Greaves.

With Clause 93 we reach Part 6 of the Bill—Local Involvement and Accountability—which starts with community remedies. The first of my amendments is to Clause 93(3), which provides that an action which might be included in the community remedy document is appropriate if it has one of three objects: assisting rehabilitation, ensuring reparation, and punishment.

A community remedy should have an objective of more than punishment. The Offender Rehabilitation Bill, which has been through this House and is now in the Commons, makes a very welcome switch in direction in penal policy by the way in which it looks at rehabilitation. There is a change in general thinking along these lines as well. My amendment would require two of those three actions—not punishment alone, but either reparation or rehabilitation as well; and it might just be rehabilitation and reparation.

Amendment 56G is on a completely different point: consultation on the community remedy document. It would require the police and crime commissioner, or MOPAC in London—I do regret the loss of the acronym MOPC—to consult with local authorities. I cannot believe that I have omitted to mention the London boroughs, but I am sure that the Minister will tell me that, for this purpose, they are unitary. Amendments 56GA and 56GB from my noble friend Lord Greaves are much better, but they do the same thing.

Amendments 56HA and 56HB are my noble friend’s amendments to Clause 94. They ask about the relationship between the requirements that the community remedy document places on someone, whether by agreement or conviction, and the requirements under IPNAs and CBOs. Are they the same? Are the requirements in Clause 93 the way in which IPNAs and CBOs will also operate, or are community remedies alternative and additional? Why are they all needed?

My noble friend’s amendments also probe the concept of the community remedy as an alternative to a fixed penalty notice or a caution when an offence has taken place. He is concerned that the whole area of penalties versus cautions might become even more muddled. I share this concern. I think I saw a government statement recently announcing changes in the use of unconditional cautions; I might be wrong, but this is not central to the amendments. Apart from, perhaps, my first amendment on consultation, these are probing amendments as to the provisions in this part of the Bill. I beg to move.

Lord Rosser (Labour)

My Lords, I shall be brief. I shall certainly be interested to hear the Minister’s response to the amendment moved by the noble Baroness, Lady Hamwee. Subject to hearing from the Minister, it is difficult to see what the problem would be with inserting “two” rather than “one” in Clause 93(3). As the noble Baroness, Lady Hamwee, has also pointed out, when it comes to Clause 93(5), although there is consultation, it does not seem as if local authorities are going to get much of a look-in. If the Minister was going to move to two rather than one of the objects having to be carried out, it would be even more important to consult with local authorities.

Lord Taylor of Holbeach (Conservative)

My Lords, perhaps I may deal with that point. It is clear that local authorities are likely to be engaged in the compilation of suitable elements for community remedies but we do not see the necessity of putting it in the Bill.

I thank my noble friend Lady Hamwee for raising these issues about this important part of the Bill. Dealing with low-level crime, out of court where appropriate, means that victims get justice quickly. My noble friend is absolutely right: there is a review going on at the moment of informal cautions and the consequences of out-of-court settlements. Damian Green announced this in a Written Ministerial Statement on 19November. These remedies strengthen the armoury. They mean that the offender has to face immediate consequences for his or her actions which can make her or him less likely to offend in the future. The community remedy will give victims of low-level crime and anti-social behaviour a say in the punishment of offenders out of court. It will also ensure that victims and the public agree that the punishments used are meaningful, rather than a token slap on the wrist.

The Bill provides that the actions on the community remedy menu must have the objective either of assisting in the offender’s rehabilitation, ensuring that they make reparation or providing a punishment. Some actions will have more than one of these elements; for example, cleaning up graffiti is a reparative action but it also has an element of punishment. In other cases, appropriate actions may have only one of the elements required. One of the actions we have suggested in the draft guidance is that the offender could be asked to sign an acceptable behaviour contract, whereby they agree not to behave anti-socially in future. This assists the rehabilitation of the offender but it need not have a reparative or punitive element.

I know that my noble friend is keen to avoid actions that are purely punitive in nature. However, I see no reason why this should not sometimes be appropriate. The Criminal Justice Act 2003 already provides that a conditional caution may impose a financial penalty on the offender. On its own, this would be a punitive punishment and may, in some cases, be entirely appropriate. So we should not rule out that option.

Amendments 56G and 56H would make the community remedy document subject to consultation and agreement with the local authority as well as with the police. The PCC has a duty to consult the chief constable and to agree the community remedy menu with him or her. This is appropriate, since police officers will be using the community remedy document and will take ultimate responsibility for the sanction offered to the offender.

However, I believe that the role of the local authority is a little different. The PCC should consult with community representatives and the public. We would expect this to include local councils, as they are likely to contribute a number of actions to the menu. Professionals such as youth offending teams will know what actions are appropriate and what resources are available locally to deliver the more formal sanctions.

My noble friend has tabled a number of amendments—alongside those in the name of my noble friend Lord Greaves, who is not in his place

today—which seek to enhance the role of local authorities in the Bill. In this instance, I believe that it makes a good deal of sense to formalise the relationship between the PCC, the police and local authorities in establishing the community remedy document. There is much to be gained from this relationship and, since the community remedy document will be established in advance—one might say in slow time—there is nothing to lose by making the responsibility to consult a statutory one. However, I believe that the responsibility to agree the actions to be included on the community remedy document should rest with the PCC and the chief constable. PCCs are democratically accountable to the public, and the responsibility of ensuring that the community remedy meets the needs of local people properly rests with the PCC.

For many of the same reasons, I do not believe that the decision about whom it is appropriate to consult in preparing the document should be a joint responsibility of the local authority and the PCC, which is what Amendments 56GA and 56GB, tabled by my noble friend Lord Greaves and spoken to by my noble friend Lady Hamwee, seek to do. Responsibility for preparing the community remedy document properly rests with the PCC, and so, by and large, should the decision on consultation.

Amendments 56HA and 56HB, also tabled by my noble friend Lord Greaves, would mean that the community remedy would be used for anti-social behaviour only and not for low-level criminal offences. The Bill places a duty on the police officer to make reasonable efforts to obtain the views of the victim on whether the offender should undertake any of the actions in the community remedy document.

As currently drafted, that duty applies when someone has admitted to anti-social behaviour or a low-level criminal offence which the officer has decided will be dealt with using a conditional caution. The community remedy provides a means to engage the victim in considering what the community resolution should be or in considering appropriate conditions to attach to the caution. The police officer will take ultimate responsibility for the sanction offered to the offender and must ensure that it is proportionate to the offence committed.

I am firmly convinced that this victim-focused approach should apply equally where it is considered appropriate to deal with a low-level criminal offence with an out-of-court disposal. In particular, where the offending is low-level or it is someone’s first offence, undertaking an action from the community remedy menu, such as apologising to the victim or repairing the damage caused, may have a more positive and longer lasting impact on the offender than a formal court sanction.

As I have indicated, I will give sympathetic consideration to Amendment 56G in advance of Report. As for the other amendments, I hope that, having aired these important issues, my noble friend will be content to withdraw her amendment.

Baroness Newlove (Conservative)

My Lords, how will the remedies be evaluated? I am inclined to think that the community remedy is not “one size fits all”. I know that it rests with the PCCs but I have said previously

that I am concerned about how the remedies will be reviewed across the country. Can the Minister give me any idea of how that is going to happen?

Lord Taylor of Holbeach (Conservative)

Each PCC has to consult within his area on what is considered to be an appropriate menu—if one might call it that—of suitable community remedies. I have little doubt that members of the Association of Police and Crime Commissioners will discuss this matter in some detail among themselves and that there will be considerable input. However, essentially it will be about local decisions made to address local problems and finding local solutions for local anti-social behaviour and for dealing with low-level crime at a local level and in a formal way.

Baroness Hamwee (Liberal Democrat)

My Lords, I suspect that the debate about the role of the local authority and the relationships between the local authority and local policing bodies is destined to go on and on. However, wherever the word “community” is seen, I move almost seamlessly to local authorities. Police and crime commissioners are indeed democratically accountable but so are local authorities. Local authorities are going to be more local than most of the police and crime commissioners, whose areas of responsibility are very wide, and of course they cannot impose a penalty themselves. Anti-social behaviour is very much a local authority concern. I am not seeking to downplay the role or status of police and crime commissioners—I would expect both to contribute. However, I thank the Minister for his response and beg leave to withdraw the amendment.

Amendment 56F withdrawn.

Amendments 56G to 56H not moved.

Clause 93 agreed.

Clause 94: Anti-social behaviour etc: out-of-court disposals

Amendments 56HA and 56HB not moved.

Amendment 56J

Moved by Lord Ponsonby of Shulbrede

56J: Clause 94, page 66, line 10, at end insert—

“( ) Provisions should be put in place under a designated senior police officer to ensure scrutiny of decision making through a local scrutiny panel.

( ) The strategy and usage of cautions and out of court disposals should be reviewed by a local scrutiny panel on a regular basis.

( ) The use of cautions and out of court disposals for serious cases and repeat offenders should be particularly scrutinised.”

Lord Ponsonby of Shulbrede (Labour)

My Lords, this is a probing amendment, which seeks to put in place a scrutiny element in decision-making through a local scrutiny panel. I have taken the wording of the amendment from the recently published government document, Review of Simple Cautions, which was written by the College of Policing and the Government and was published in November this year.

Scrutiny is a method by which out-of-court disposals can be reviewed by magistrates, district judges, PCCs, the police, the probation service and YOTs. In London, I understand that MOPAC, the Mayor’s Office for Policing and Crime, would take the lead.

I understand that the necessary legislation is in place for scrutiny panels to be established and that a number of PCCs have already introduced some form of scrutiny panel. The prime purpose of these panels is of course to help the public maintain confidence in out-of-court disposals. I am moving this probing amendment because I believe that the rollout of scrutiny panels has been very patchy across the country. As far as I know, no scrutiny panels have been established in London, and I believe that that is a cause for concern.

It is worth reviewing the figures relating to the massive change in recorded crime that we have seen in recent years. In 2008, there was a maximum of 360,000 cautions. Currently, the number of cautions issued by the police is about 200,000, which represents a huge reduction. In London, in our youth courts over the past three years we have seen a halving of the number of cases brought to court. There are any number of explanations for this huge reduction in recorded crime, and I shall not go through all the possible ones. However, I will list some of them because I know that they have been widely debated in the press and elsewhere.

The first is that there is indeed a genuine reduction in the level of crime, which of course is to be welcomed. A second explanation that is commonly advanced is the cuts to the police service. A further explanation is the massaging of reported crime figures, as was alleged in the Public Administration Select Committee on 19 November. A further explanation is the removal of police targets for offences brought to justice. Another is that the police are concentrating resources on gang-related offences rather than specific drug-related ones: namely, possession with intent to supply. That explanation is specific to the London area.

There are other, more improbable, explanations: I will list just a couple. The first, which I heard from a police officer, is that the riots of 2011 led to a reduction in the current levels of crime because the offenders were locked up for such lengthy periods that they failed to instruct a younger generation in crime. The second is that the banning of lead in petrol in 1998 led to this reduction in crime.

As I say, there is any number of reasons for this. However, the Government will be well aware that there is widespread scepticism about the reliability of the figures used. The method put in place by the Government to try to address that scepticism is the scrutiny panel. I am moving these amendments—which are probing; I understand that the legislation is in place—to try to get the Government to roll out the scrutiny process more thoroughly. My experience is that in London it is just not happening. It is a very important part of the process for the public to maintain confidence in our out-of-court disposals. I beg to move.

Lord Rosser (Labour)

My Lords, one of the issues that my noble friend Lord Ponsonby of Shulbrede raised is the apparent extent to which Clause 94 could be used to

keep cases that would justify court proceedings under the terms of the Bill out of the courts, where an individual has admitted to engaging in anti-social behaviour or committing an offence to a constable, investigating officer or a person authorised to issue additional cautions. Even where such a person thinks that the evidence is enough to seek an injunction under Section 1 or to take other court proceedings, they can still make a decision not to seek an injunction, not to take court proceedings, not to give a caution and not to give a fixed penalty notice. Instead, they can tell the offender to carry out any action listed in the community remedy document, including making a payment to the victim.

Since the Secretary of State is to issue guidance to local policing bodies on how they should discharge their functions in preparing or revising the community remedy document, can the Minister say what will be the maximum penalties that can be provided for in that document, including the maximum payment that can be ordered to be made to the victim? If an offence has been admitted, can the offender insist on being taken to court or receiving a caution or fixed penalty, rather than carrying out an action listed in the community remedy document?

Will a constable or investigating officer be able to act under Clause 94(3) if the offender has previously committed offences, or will it be only if the offender is not previously known? Will a record be kept and, if so, by whom, of any actions under Clause 94(3) that an individual who has committed anti-social behaviour or an offence has been told to take? Since the community remedy document is to apply not only to anti-social behaviour but to an individual who has committed an offence, what kind of offences will be deemed suitable to be dealt with under Clause 94?

My noble friend Lord Ponsonby spoke about the issue of scrutiny and the apparent inadequacy of the scrutiny that is likely to take place. Certainly, there do not seem to be watertight provisions in the Bill to ensure that such scrutiny takes place of the use of the powers under Clause 94.

Lord Ahmad of Wimbledon (Conservative)

My Lords, I thank the noble Lord, Lord Ponsonby, for tabling his amendment. As he explained, it is probing in nature and seeks to establish a local panel to scrutinise the strategy and use of cautions and out of court disposals in particular. I listened carefully to the reasoning given for the reduction in crime; there were some interesting comments.

I draw your Lordships’ attention to the out of court disposals review that is currently taking place, in partnership between the Ministry of Justice and the police, and in conjunction with the Home Office, the Attorney General’s Office and the Crown Prosecution Service. The review will look at all out of court disposals currently used against adults and consider how they might be reformed. The aim is to ensure that out of court disposals are as effective, simple and transparent as possible. The review includes conditional cautions and community resolutions, both of which will be subject to the community remedy. This public consultation was launched on 14 November to seek the views and

experiences of professionals, victims’ organisations and the public. The consultation will conclude on 9 January and the review as a whole will conclude later in the spring.

Two key themes of the review—picking up on a point raised by the noble Lord, Lord Ponsonby—are transparency and accountability. The consultation asks the public to consider whether they think there is more information about out of court disposals that should be shared; whether they are able to hold the police to account for the way that out of court disposals are used; and how they think that the Government can make the out of court disposal system more accountable.

In particular, the consultation asks for views on what sort of offences out of court disposals are appropriate for. I agree that the use of cautions for serious offences and repeat offenders requires careful consideration in each specific case. The Review of Simple Cautions, to which the noble Lord referred, has already been completed. The review made it clear that cautions should no longer be used for indictable only offences, and certain serious either-way offences, unless there are exceptional circumstances, and that those who persist in criminal activity should no longer expect to receive a caution. Those changes have been made to the guidance on simple cautions.

The out of court disposals review is also looking at this issue. Currently, the guidance for all out of court disposals indicates that they are available for all offenders, but are primarily intended to address first-time offending. The latest data, for 2012-13, show that 60% of those getting a caution—that is, either a simple or a conditional caution—have not received a previous caution.

On the issue of senior officer oversight, the simple cautions review recommended that there should be greater local accountability and scrutiny of decision-making. The review further recommended that each force should have a senior officer identified as responsible who would provide local leadership and accountability and who would make use of local scrutiny panels. We are considering that recommendation carefully as part of the wider out of court disposals review. There are clearly links between the matters considered in the simple cautions review and the out of court disposals review, and we will consider these alongside each other. Further, I assure the noble Lord that the issues he and others raised in this debate, will be fed into the out of court disposals review.

The draft guidance on the community remedy signposts existing CPS guidance on the use of conditional cautions. The community remedy will work with any changes to conditional cautions or community resolutions that take place as a result of the review, but we need to be careful not to impose anything in the Bill or the guidance that will contradict or restrict any changes to those systems.

I will pick up a few points made by the noble Lord, Lord Rosser. He asked about the crimes for which the remedy might be used. They are low-level criminal damage, low-value theft, minor assault without injury and anti-social behaviour, and are currently set out on page 15 of the draft guidance. In addition, the noble Lord asked whether the offender could insist on prosecution. The answer is no. He asked whether the

community remedy only applied to first-time offenders; I have already covered that particular issue. I was asked what records are kept. The police will keep records in accordance with the Data Protection Act 1998 and will retain them if there is a specific police purpose. As I said, a much more detailed review will end in January of next year.

The noble Lord, Lord Ponsonby, indicated that this was a probing amendment. I hope by what I have said that that I have conveyed that there are broader issues to consider as well. We will undoubtedly return to this issue once the current review results are out. In the interim, I hope that the noble Lord is reassured both by my explanations and my commitment that the content of this debate will be included in that review, and that he will be minded to withdraw his amendment.

Lord Ponsonby of Shulbrede (Labour)

My Lords, I thank the noble Lord, Lord Ahmad, for that response to my amendment. I am pleased that there will be a further review of out of court proposals. Perhaps there should be a review of the scrutiny panels themselves? The purpose of my amendment is not to address a lack of legislation. The legislation has been in place for years: it is just that it has not been implemented.

Lord Ahmad of Wimbledon (Conservative)

On that point, as I said in my response, one thing that the wider review is doing is talking directly to local players on the ground, including local police, to feed back on the effect. The noble Lord is quite right that legislation is available. What we need to see is practical implementation. We hope that the more detailed review will address those issues.

Lord Ponsonby of Shulbrede (Labour)

Once again, I thank the noble Lord, Lord Ahmad, for that explanation. I will make one last point. In London, where 25% of all crime in England and Wales takes place, as far as I am aware no scrutiny panels are in operation. Having said that, I beg leave to withdraw the amendment.

Amendment 56J withdrawn.

Clause 94 agreed.

Clause 95 agreed.

Clause 96: Review of response to complaints

Amendment 56K

Moved by Baroness Smith of Basildon

56K: Clause 96, page 67, line 30, at end insert—

“( ) The relevant bodies must decide under subsection (1)(b) that the threshold for a review is met where the person making the complaint has notified any of the relevant bodies that he or she has been a victim of anti-social behaviour or is vulnerable due to ill health, mental capacity, race, sexuality or religion.”

Baroness Smith of Basildon (Labour)

This amendment is regarding the threshold for review for the community trigger. We are concerned that the community trigger will not be effective unless it takes into account the vulnerability of the victim. We all accept that vulnerability

is important and how somebody responds to anti-social behaviour has a huge effect on the impact it has on them and on the community. Our worry is that the proposed trigger is too weak and will therefore be ineffective.

We put in some freedom of information requests about the number of times the triggers had been successfully activated in the pilot areas. The figure was just 13 times out of a reported 44,011 incidents of anti-social behaviour. The worry is that somebody who is vulnerable is not treated any differently to someone who is perhaps more robust and able to deal with the problem.

I feel so strongly about this because I am reminded of one of the first cases I dealt with when I was a reasonably young county councillor in the early 1990s. A lady who came to see me and with whom I was in regular contact for some time was vulnerable. She was easily bullied. Most of us would have thought that the behaviour of some kids in her street was insignificant—eggs thrown at her windows, for example. It was annoying and irritating, and it went on for some time, but her reaction made her more vulnerable. Trying to get the authorities to act in the days before we had anti-social behaviour orders was extremely difficult. It went on for some considerable time.

That situation has not stopped. The Minister will be aware of recent cases and the case of Fiona Pilkington and 18 year-old Francecca Hardwick which goes back to 2009. They complained 33 times about harassment and anti-social behaviour. In the end, Miss Pilkington set fire to their car and they were both killed. Anti-social behaviour can have some tragic and harmful consequences, particularly where the victims are vulnerable. The amendment would ensure that the community trigger takes into account that vulnerability and the need for a 24-hour response if someone says that they are vulnerable. That should be enough to speed up the process. We do not want to see other incidents with such a tragic consequence.

My colleagues in the other place raised this in Committee. The Minister, Jeremy Browne, said then that the Bill already provides a framework for taking account of particular vulnerabilities and individual needs. I cannot find that in the Bill or in that amendment. Both the issue of vulnerability and the reporting process need to be explicit and clear in legislation or guidance—I would prefer in legislation. One thing that struck me about the Fiona Pilkington case was the comment that systems were in place for officers to have linked the catalogue of incidents, but they were not well utilised. It is a case of being very specific and clear about what the expectations are. I am concerned that Jeremy Browne was talking about hate crimes. Perhaps the Minister can give me some guidance on this. Hate crime does take vulnerability into account, but anti-social behaviour and hate crimes are not the same thing.

The chief executive of Victim Support also said that she supported the community trigger in principle,

“but we think it could go further than that, to make the most important thing in measuring the test the impact on the victim … We think that should very much be the focus of the test: the vulnerability of the victims”.

There is real concern that vulnerable victims will definitely feel that their complaints have not been adequately dealt with if they have to make a minimum of three complaints. Under the heading “Review of response to complaints”, Clause 96(4) states:

“In a situation where … at least three (or, if a different number is specified in the review procedures, at least that number of) qualifying complaints have been made”.

For someone who is feeling vulnerable, being bullied and suffering from anti-social behaviour, three complaints can be two complaints too many before we see tragic consequences. Those three complaints do not guarantee a response: they merely trigger a review from the police or council.

I understand what the Minister is seeking here, but it would be helpful if he could look at this in a little more detail. We looked at how this was approached in the Manchester City Council case study and we were quite impressed with the way these issues were looked at. There were four trigger questions to ascertain the vulnerability of the victim. Something like that could be looked at to take into account those vulnerable victims who feel the consequences and suffer the impact far more than others. They could then be dealt with as a matter of greater urgency, rather than having to make three complaints first. I beg to move.

Baroness Hamwee (Liberal Democrat)

My Lords, the noble Baroness has made some interesting and important points and I agree that the impact on the victim is what we should be looking at. But I am concerned about the wording. This may be a start, but it is not the complete solution. Notification is not the same as an assessment and certainly not the same as any evidence that there has actually been previous anti-social behaviour and claiming that there has—one can see how mischief could be made of that. What is vulnerability? These things cover a wide spectrum. I take the point about starting from how the victim feels and whether feeling that makes that person a victim whereas another person might not feel victimised by the same behaviour, but it is a complicated area.

My amendment 56L would provide a trigger in the case of more than one complaint if it is made by somebody living at a different address. What I am getting at is that this needs to be about more than just a tiff between two neighbours and not something that is very short term.

Amendments 56LA to 56LE in the name of my noble friend Lord Greaves are, he says, part of his attempt to get uniform and accurate descriptions of councils in different parts of the Bill. The Minister will recognise this. The only thing that I would disagree with him on is the phrase “part of his attempt”—I think one could call it a campaign.

Earl of Lytton (Crossbench)

I come to this area of problems between neighbours or people in residential environments through my work as a chartered surveyor. I see it in terms of being brought into situations where these problems have turned into some sort of property dispute. I have enormous sympathy with what the noble Baroness, Lady Smith of Basildon, set out, and

with what the noble Baroness, Lady Hamwee, said. The difficulty is that when people have annoyed each other there are various phases to this annoyance.

The first stage is to say: “Oh, well. They have done something they should not have done”. The second stage is: “If they do that again, I shall take action”. The third stage is when absolutely anything, however minor, triggers the most violent reaction. People who have got themselves in a sensitised situation cannot get out of that psychological bind. That is one of the most difficult and intractable things that one has to deal with. This may result in the police being called out on multiple occasions or the local authority being endlessly rung. That is the reality.

Yes, people will claim that they are vulnerable, although in a sense that is a self-assessment of whether they are actually vulnerable or it is some self-created vulnerability. What I do know is that on both sides of the argument, the perpetrator and the victim are likely to think that the other is completely nuts, irrational and unreasonable in their attitude. I do not know how this Bill or this amendment resolve that issue. There is a case for taking some of these things out of what one might call a heavyweight approach to dealing with the problem.

Whether one fires off in the direction of some other community means of trying to unpick things—getting people to realise that their neighbours’ children are not ogres and the children’s parents to recognise that the affected person is also not an ogre—is a really difficult issue. I am not sure that we have the solution here. However, I shall certainly give the matter some careful thought between now and the next stage, because there is something in terms of social cohesion and peaceable existence for people in residential environments that needs to be addressed much more deeply.

Baroness Newlove (Conservative)

My Lords, I shall speak to Amendment 56K. For far too long we have allowed concerns about the rights of perpetrators to inhibit communities from addressing this important issue at the expense of the majority of law-abiding citizens, who are simply trying to get on with life, raise a family, work and study. What has to happen before we actually face that what is termed anti-social behaviour is so wide that we cannot sit in the ivory tower of Parliament and honestly tie it down for today and tomorrow? We need to allow flexibility for these powers to be meaningful.

I must congratulate and thank the noble Lord and the noble Baroness for proposing one of very few amendments that think of the victims. I have seen so many provisions and amendments about protecting the perpetrators’ ethical and religious beliefs and considering their disabilities, but for me, this is the first about the victim. I cannot tell your Lordships’ about the number of times that I have been contacted by victims who are ill, elderly, suffer disabilities—or all three. They have to deal with anti-social behaviour and are scared to leave their home. These people need immediate action and cannot wait for the numerical thresholds to be met. So I, for one, fully support this amendment.

Lord Taylor of Holbeach (Conservative)

My Lords, this has been a good debate and we have addressed the whole relevance of the community trigger and how it might operate in

practice. We have had the four trials—the noble Baroness, Lady Smith, referred to the one in Manchester and the report that we have had on it. We can all agree that persistent anti-social behaviour causes significant harm to victims. That has been made quite clear by everybody who has spoken—my noble friend Lady Newlove, the noble Earl, Lord Lytton, and my noble friend Lady Hamwee. However, people can sometimes find themselves being passed from the police to the council, to the landlord and back again, or reporting the same problem over and over again.

The community trigger will give victims and communities the right to demand that agencies that have ignored repeated complaints take action. It is an important safety net and is at the heart of our reforms to put the victim at the centre of the response to anti-social behaviour. I hope that no authority in every instance to has to wait to be reminded three times of anti-social behaviour. Some anti-social behaviour will need immediate response, but the community trigger will give victims the right to a review of the authority’s response when three notifications have been made.

Amendment 56K, from the noble Baroness, Lady Smith of Basildon, relates to the threshold for using the community trigger. The Bill provides that the threshold will include the number of complaints that a victim has made in a certain timeframe; for example, three complaints in six months. However, it will also include an assessment of the victim’s vulnerability, because we know that it is often the most vulnerable in our society who are at greatest risk. Many agencies complete a risk assessment when a case is reported, and will revisit the assessment periodically, because vulnerability and resilience to vulnerability change over time in certain cases, though not in all.

The Home Office summary report on the community trigger trials, which was published in May, contains an example risk assessment matrix. This was the one used by the Richmond Housing Partnership. The matrix asks for details of the behaviour, such as how frequent it is, whether it is getting worse, the vulnerability of the victim—including whether they are being deliberately targeted and how much it has affected them—and the support available to the victim, such as whether they live alone or have a close network of friends and family, and whether their health is affected. The answers are scored and the result provides an indication of the potential harm—I use that phrase definitively, because it appears in the Bill—that may be caused to the victim. It is not a definitive assessment, but it assists the professional in assessing the needs of the victim.

We have added a second limb in response to a recommendation from the Home Affairs Select Committee. It ensures that the potential for harm will be a consideration when setting a trigger threshold, not just the number and frequency of incidents. Amendment 56K seeks to determine that the community trigger threshold will be met if the victim is judged to be vulnerable due to ill health, mental capacity, race, sexuality or religion. I have every sympathy with the intention of this amendment.

I understand that anti-social behaviour can often be motivated by these factors, and that vulnerable people need our protection. However, the broader

approach to considering potential harm that I have just described captures these as well as other vulnerabilities. Rather than trying to put victims into categories, we require agencies to consider their individual needs.

I hope that I have reassured noble Lords that focus on vulnerability is already provided for in the Bill. I draw the noble Baroness’s attention to page 58 and Clause 96(5)(b), which refers to,

“the harm caused, or the potential for harm to be caused, by that behaviour”.

So that is in the Bill.

Baroness Smith of Basildon (Labour)

The noble Lord said page 58; did he mean page 68?

Lord Taylor of Holbeach (Conservative)

I apologise if I misdirected the Committee. There is direct reference to the subjective nature of anti-social behaviour. That was on the recommendation of the Home Affairs Select Committee. It also appears in the guidance, under the heading “Putting victims first”, which states on page 10:

“The Community Trigger can be used by any person and agencies should consider how to make it as accessible as possible to young people, those who are vulnerable, have learning difficulties or do not speak English”.

On the following page, under “Responding to the victim”, it repeats that the potential harm to a particular victim is one of the key matters that has to be taken into account. We have already built in the very issues that the noble Baroness has said she would like in the Bill.

I turn to Amendment 56L, tabled by my noble friend Lady Hamwee. It probes the finer detail of how the community trigger threshold will work in practice. My noble friend seeks reassurance that, for instance, three members of a household cannot report the same problem and have that count as three separate incidents for the purpose of meeting the threshold. This would of course mean that they would essentially jump the queue to get their problem dealt with as a community trigger. The Bill already accounts for this, and I will happily explain how.

Clause 96(11) defines a “qualifying complaint” for the purpose of the community trigger. The complaint needs to be made within one month of the incident occurring, or a different period if specified within the review procedures. This is to prevent someone making complaints about historical incidents in order to use the community trigger. Subsection (12) allows the local agencies to set out what will be considered a “qualifying complaint” where someone makes two or more complaints about the same behaviour or incident, in particular when separate complaints relate to different aspects of one incident. That achieves the safeguard that Amendment 56L is designed to achieve.

We want to ensure that the legislation is robust enough that only genuine requests to use the community trigger meet the threshold, while allowing the procedures to be flexible enough to ensure that the trigger can help those victims who need it most. I hope that I have reassured my noble friend that the procedures are set out in a way that will ensure they will not be manipulated in the manner that she fears.

As I said, we have trialled the community trigger in four parts of the country since June 2012, and the majority of requests to use the trigger were genuine. We have tested the legislation through trials and I am content that we have achieved a good balance between addressing the needs of the most vulnerable victims, which my noble friend Lady Newlove, emphasised, and allowing agencies the flexibility to operate the community trigger to suit local circumstances.

Some amendments have been tabled by my noble friend Lord Greaves, to which my noble friend Lady Hamwee referred. I know that my noble friend is anxious to ensure that we standardise the definition of a local authority in the Bill. In this case, however, the wording used in Clause 97 and Schedule 4 is technically correct. His amendment 56LD inadvertently omits line 19 on page 69, which is still required. Given that our provisions are technically correct, I am not persuaded that there are sufficient grounds to make the amendments.

I hope that, having listened to I have said, the noble Baroness is content to withdraw her amendment.

Baroness Smith of Basildon (Labour)

I am grateful to the Minister; I think he has heard what I said. I should like to read the details of what he said in Hansard with reference to the guidelines and the Bill, because I am not 100% sure that the points he makes fully address the issues that I brought forward today. First, he said that there is a right to demand that the authorities take action. My understanding is that it is not a right to take action, it is a right to have a review of the case. He is right to say that, sometimes, cases of anti-social behaviour are motivated by someone’s vulnerability, but sometimes it is the vulnerability of the individual that makes the anti-social behaviour more severe, because they are less able to cope with the pressures they face.

I am very grateful for the support of the noble Baroness, Lady Newlove, the Victims’ Commissioner. She fully understands the point I am trying to make about how people react to anti-social behaviour. For the trigger to be used 13 times in more than 14,000 incidents gives me cause for concern. If I can go back to read what the Minister said and read the guidance, at this stage, I beg leave to withdraw the amendment.

Amendment 56K withdrawn.

Amendment 56L not moved.

Clause 96 agreed.

Schedule 4: ASB case reviews: supplementary provision

Amendment 56LA not moved.

Schedule 4 agreed.

Clause 97: ASB case reviews: interpretation

Amendments 56LB to 56LE not moved.

Clause 97 agreed.

House resumed. Committee to begin again not before 8.37 pm.

Baroness Smith of Basildon (Labour)

My Lords, we have grouped these amendments together for ease of debate. I thought that it would be helpful to have one debate rather than several on a similar issue. So I am speaking to the amendments in my name and those of my noble friends Lord Rosser and Lady Gale. My noble friend’s amendment on dog control notices also has our full support. In moving my amendment, I will speak also to Amendments 56MA to 56MC.

The first step is to acknowledge the seriousness of the problem. Since 2009, nine children and seven adults have died as a result of attacks by dogs. In the three years to February 2013, 18,000 people were admitted to hospitals in England and Wales after dog attacks, and 23,000 postal workers have been attacked by dogs in the past six years. As Christmas approaches and we post our letters, we ought to think of the poor postal deliverers. Since April 2011, there have been 6,000 dog attacks on those who deliver our post. So it

is a serious problem and horrendous for those who have been involved, have been attacked or have witnessed attacks.

I appreciate that the Government are bringing legislation forward but I really think that there is a missed opportunity here. I referred to this last week when we discussed community protection orders. I am worried about the Government’s one-size-fits-all approach. Dog control notices were introduced to deal with a specific problem. I am not saying they are perfect. They needed updating and amending, but to replace gating orders, dog control orders and other forms of order with one community protection order does not give us confidence that the issue of dangerous dogs will be properly and effectively tackled.

Community protection notices are a reactive measure to deal with dog attacks. They can be slow to serve and they can be challenged in the courts, causing further delay. I support and welcome the Government’s proposals for increasing penalties, but prevention is better than penalty, and that is why our proposals include the dog control notice.

I read carefully what Ministers said in the other place. They seem wedded to their measures and confident that they will deal with the problem. I do not share that confidence. That brings me to Amendment 56MB, which requires the Secretary of State to review the,

“use of community protection notices in addressing dangerous dogs”.

The amendment specifies a review of the effectiveness of Government’s measures three years after they come into force and every three years after that. If the Government are confident that they will be successful—and I am sorry that I do not share the noble Lord’s confidence, although I wish I did—that review will be a way to assess their effectiveness or otherwise, whether action taken is adequate and whether further measures are needed.

This is a missed opportunity. As a first option, we support the amendment in the name of my noble friend Lady Gale introducing dog control notices. A dog control notice is specific to the problem. It is proportionate and targeted. It seeks to prevent attacks by dogs. “Prevent” is the key word. The dog control notice is a preventive measure to stop tragedies occurring, while the community protection notice reacts to a situation that has already occurred.

The measure enjoys widespread support. My noble friend Lady Gale will say more about this. In the Commons it received support from a number of government Back-Benchers, as well as a range of individuals and organisations, including those that deal with the welfare of dogs and those whose members are at risk from attack, as well as those that deal with the aftermath of attacks or try to prevent attacks. They include: the RSPCA; the Association of Chief Police Officers; the British Veterinary Association; Battersea Dogs & Cats Home; CWU, the postal workers’ union; Unison; the Kennel Club; the Police Federation; the National Dog Warden Association; and even the Environment, Food and Rural Affairs Committee in the other place. They all state that legislation should cover dog control notices, which would give power to the police and local councils

to ensure that owners are responsible and do what can be done to stop dogs attacking people and other animals.

It seems to me—perhaps the Minister will enlighten me—that the only people who do not support dog control measures are the Government. The amendment has widespread support from all those who are most affected by, and concerned about, this issue. The noble Lord, Lord Trees, would have made my next point if he were able to be present. The dog control notice amendment that we have tabled refers specifically to attacks on other dogs and animals. I am sure the Minister recognises that that is also an important issue which is not specifically addressed by the Government’s proposals.

The noble Baroness, Lady Gale, made a very powerful speech at Second Reading. No one could fail to be moved by the plight of those who have been subjected to dog attacks and have been badly injured, maimed, suffered life-changing injuries or even died. I strongly believe that the Government should heed the wisdom of the many people who are in favour of this amendment and not stick to the somewhat tired, hackneyed argument that fewer orders mean less bureaucracy. There is real fear that, in setting their face against the overwhelming support for dog control notices, getting rid of dog control orders and moving towards what I think was described earlier as a holy grail of deregulation, they are weakening public protection, which is the key point here.

I turn to our other amendments in this group. One concerns a risk assessment of seized dogs. Obviously, we appreciate and understand that some dogs have to be seized for public safety, and sometimes for the dog’s own protection if there is immediate concern about its potential to attack a member of the public or another dog. In those cases, clearly the dog has to be seized, and local authorities and the police can seize dogs that they deem to be dangerous. However, concerns have been raised with us by organisations, including the RSPCA, that on occasion dogs are returned to their owners, or released from kennels, in not exactly tip-top condition; indeed, they are in a poorer condition than when they went in. Not only is that bad for the dog; it is extremely bad for the public purse if dogs are kept in kennels for longer than is necessary. Therefore, we suggest that within 48 hours of a dog being seized its behaviour should be properly assessed by suitably qualified people to determine whether it needs to remain in kennels and whether it is a prohibited breed of dog. This simple amendment seeks to improve the case management of seized dogs, thereby improving their condition and easing the burden on the public purse.

Our amendment 56MC proposes that joint guidance should be issued by Defra and the Home Office as this issue concerns both departments. That guidance would advise local authorities on how to use existing legislation to deal with dangerous dogs. I do not know whether the Minister has had the opportunity to review the guidance but it is pretty weighty. Not only is there the guidance itself, but annexes as well. Animal welfare organisations have repeatedly asked the Government

to reduce the length of the guidance. They have advised me that they do not consider it fit for purpose given that those involved in dog welfare cannot cope with it. We need to have concise, accurate guidance that organisations which need to access it can follow and implement easily.

In conclusion, the increase in dog-related deaths in recent years is extremely sad and worrying. These amendments seek to include effective, clear measures in legislation to deal specifically with the problems caused by dangerous dogs, as opposed to hoping that they can be mopped up in an order, the terms of which could be rather vague in their application to dangerous dogs. I hope that the Minister will look favourably on these amendments and consider, first, the issue of dog control notices. However, if there is no possibility of movement on that, the issue of review is extremely important. I beg to move.

Lord Redesdale (Liberal Democrat)

My Lords, the words of the noble Baroness, Lady Smith, were music to my ears because I have introduced two Private Members’ Bills about dog control notices—one under the Government of the party opposite and one under the coalition. Funnily enough, I got a completely different response from the party opposite on both occasions.

Baroness Smith of Basildon (Labour)

I am sorry, I was not here then.

Lord Redesdale (Liberal Democrat)

Of course. It is interesting how things develop. That is probably the purpose of this House. Private Members’ Bills do get the ball rolling. When I started on my first Bill, it was written with all the dog organisations and the RSPCA. It had a great deal of support, but not from the Government. The second time I raised it, after all the publicity, a great deal more work had been undertaken by Defra, and I think that has led to the present situation.

I would have liked a separate piece of legislation which would have been clear and concise. I understand the Minister’s position—that this has gone through the Home Office. The problem is that most Governments would have taken the route that has been followed, because we are dealing with 11 pieces of legislation that would have to be amended. For ease of access, it would have been extremely useful if there had been one dog control notice, but those of us who have been fighting this fight for some years now realised that that probably was not going to be the case.

I support the background to these amendments. However, there are a couple of issues that I wish to raise. I do not believe that these amendments are going to be carried but they show some of the fundamental problems that we are facing. One of the major problems is the Dangerous Dogs Act 1991. That was a knee-jerk reaction which led to types of dogs being named. Amendment 56LF talks about trying to work out what prohibited dogs are; for instance, a pit bull is actually a mongrel, so is very difficult to define as a particular type of dog. Breeders of pit bulls call them long-legged Staffies; they attempt to get round it that way. An expert trying to look at this has had difficulty, and it has cost the Metropolitan Police and the police in Liverpool and in other places millions of pounds kennelling those animals. I know that this is a specific

point but there are cost implications of trying to work out within 48 hours whether the dog is a prohibited animal. Behavioural assessment will also cause difficulties because a lot of this work will fall to the dog charities. At the moment they are facing a massive problem with bull breeds being abandoned.

The issue of protected animals is raised in these amendments and we might well come back to it in further pieces of legislation. It is a particularly difficult issue to deal with. I have a rather useless and cowardly dog, but next door’s cat is particularly on his wish list. I do everything I can to try to stop him chasing this cat, but if a cat were seen as a protected animal—which it is not at the moment, though I know some people are calling for it—that would be a problem we would have to look at.

I understand the tenor of these amendments, and that this is an issue that we may return to further down the line if the Bill does not achieve its objectives. The Government deserve commendation for the attitude taken by the Minister and by the noble Lord, Lord De Mauley, who met and worked closely with us. That the guidance runs to more than 100 pages is a problem, because who is going to read it? If people do not read and understand the guidance and realise where it fits with other pieces of legislation, there is going to be a problem of enforcement. I have to admit that I found it difficult just reading the Bill and cross-referencing it. I hope that the Minister will consider attaching a very short précis to the start of the guidance to make the issue simpler.

Baroness Gale (Labour)

My Lords, I rise to speak to Amendment 56MA, which has already been mentioned by my noble friend Lady Smith and I hope to elaborate on what she had to say.

The Minister will be aware that many organisations and individuals have campaigned for dog control notices, including the RSPCA, the Communication Workers Union, and individuals such as Dilwar Ali, whose six year-old son was badly injured when a dog attacked him in his garden, and the parents of Jade Lomas-Anderson, who was killed in an attack by dogs earlier this year. I had the privilege of meeting them recently when they gave Peers a briefing on why they feel so strongly about the necessity for dog control notices. I am sure that the Peers who were present will agree that the meeting with Jade’s parents was an emotional one. They are determined campaigners and they certainly convinced me that dog control notices should be implemented rather than community protection notices, which I know are the Government’s preference. Dilwar Ali is an equally passionate campaigner for dog control notices following the horrific attack on his six year-old son. The Minister will be aware that the Communication Workers Union has campaigned for dog control notices in order to have some level of protection for postmen and postwomen, thousands of whom are attacked by dogs as they deliver the mail.

The Government believe that community protection notices will be a sufficient measure when it comes to addressing a range of anti-social behaviour problems, including attacks by dangerous dogs, and promoting responsible dog ownership. The use of a CPN in

conjunction with an acceptable behaviour contract is meant to have a similar impact to issuing a dog control notice. However, it is clear that community protection notices are inadequate. Their shortcoming lies in their broad application. The Commons EFRA Select Committee concluded in February 2013 that many charities and organisations, including the RSPCA, the Kennel Club, Battersea Dogs and Cats Home, the Dogs Trust and the Communication Workers Union, have consistently argued that CPNs are too little too late and that they are not specific enough.

The Bill states that CPNs will address issues of a “persistent or continuing nature”. In practice, they will be issued only after an attack has taken place. Therefore, for a CPN to be issued, an existing complaint needs to have been made about a detrimental impact on the quality of life of the community, and it may mean a costly, painful and bureaucratic investigation and prosecution process for victims as much as for local councils.

A dog control notice would target irresponsible ownership directly and would be pre-emptive. That is vital when it comes to tackling dog-related incidents. Preventive measures address much earlier both repeat offenders and one-off attacks affecting individuals. We believe that the measures set out in our amendment are far superior to CPNs, as they are specifically aimed at dogs. The RSPCA’s statistics fully support this conclusion. In England and Wales in 2012 it issued 12,658 informal advice notices, which, in practice, are similar to DCNs. The compliance rate was 93%. That is a very high percentage and shows that these notices can work.

The Minister and noble Lords will be aware that in Northern Ireland the use of dog control orders in conjunction with dog licensing has been very successful. The presence of dog wardens employed full time by local authorities has also been very effective. Therefore, Northern Ireland has dog control orders, and Scotland has implemented them. The Welsh Government would have implemented them. However, the Minister will be aware that the Welsh Government withdrew their Bill in favour of the Wales and England legislation that we have before us today, although they do not believe that the Bill covers everything that their Bill would have done. I believe that they will have the right to come back to the Minister and that they are probably in discussion with him. Cardiff county councillors recently briefed me on the consultation which, because they are concerned about it, they have carried out regarding dangerous dogs in Cardiff.

Since 2005, 13 children and seven adults have been killed by dogs, the latest only last month, when four year-old Lexi Hudson was killed by a dog. Although the introduction of longer maximum sentences and the extension of existing laws to private property are welcome, this amendment will go a step further. Dog control cannot be dealt with under this catch-all, umbrella—or, as some people have called it, the Christmas tree—policy. We believe that our amendment, which calls for dog control notices, is a much better way to deal with dangerous dogs. What the Government are proposing does not go far enough.

I ask the Minister to listen carefully to the argument put forward by the campaigning organisations, those who have suffered the loss of a loved one and those who have seen at first hand the effects of dogs attacking family members, causing very serious injuries. All of them want dog control notices. The British Veterinary Association wants them and the noble Lord, Lord Trees, who has great experience in this field, spoke in favour of them at Second Reading. Northern Ireland and Scotland have them and Wales wants them. There is so much evidence and support for dog control notices that the Minister must be aware of it.

I know that the Minister is a listening Minister; and the coalition Government have been known to change their minds, as recent events have shown. We would certainly welcome a change of mind on this matter, as we believe that it is the right thing to do.

Lord Lyell (Conservative)

My Lords, I see my noble friend Lady Hamwee is rising; she probably has much more expertise than I do. I would not want to spend more than about 22 seconds on this particular subject this evening.

I declare an interest straight off, in that under my roof there are not one, not two, but three rottweilers that live quite well. I have taken lessons from that immortal movie, “Crocodile Dundee”, in which he calmed the rottweilers. I am used to having dogs. Living in the wilds of Angus in Scotland, one goes out sporting with dogs; one has labradors and spaniels. I have also become acquainted with dogs in the course of my political duties. During 1974, I went off into Forfar. In the spare spaces there on the council estates were packs of large dogs. I was told, “For goodness’ sake, take care: you may get bitten”. I armed myself; in one pocket of my coat I had Smarties and small beans. In the other pocket I had Rolos and a large Mars bar. It may be incorrect—I will wait to hear from my noble friend and the experts—but I found that those forbidden, or not, substances were a particular help. On the second or third night that I was carrying out what I call political duties, I found that there were old friends who recognised that this was the man with the Rolos or the large Mars bar. As far as I was concerned, that kept dogs under control.

I do not know whether rottweilers are a particular prohibited type of dog; I do not think they are. I have read about the specialist activities carried out by my noble friend Lord Redesdale, and perhaps the noble Baroness, Lady Gale, on particular types of dogs. I am sorry; I have gone over my permitted time. I am very curious; perhaps the Minister, or somebody else, can advise me about,

“behaviourally risk assessed by a suitably qualified behaviourist”.

I am delighted that the noble Baroness has found, at least, a point of interest in somebody suitably qualified in canine behaviour, and perhaps even human behaviour. Could my noble friend write to me about that? As I say, I am grateful to your Lordships, because I declare an interest. I have all my fingers and toes after four years of three rottweilers.

Baroness Donaghy (Labour)

My Lords, I knowledge the progress made in extending the law regarding private property and dangerous dogs. In supporting

the amendments, I do not wish to undermine the Government's proposed action but rather to strengthen it. I recognise that the noble Lords, Lord Henley, Lord De Mauley and now Lord Taylor of Holbeach, are fully in sympathy with the plight of the 23,000 postal workers who have been attacked and injured both physically and mentally by dogs in the past five years. They have been on the rounds, as it were, and witnessed what the CWU members are up against. Again, I fully acknowledge the involvement of Ministers.

I also appreciate that the Government wish to simplify and rationalise the law around anti-social behaviour. But in attempting this, I do not believe that they recognise the specialist requirements for dealing with dangerous dogs and their owners. There is insufficient focus on this in the proposed legislation. I will come on to the impact assessments in due course.

As my noble friend Lady Gale said, having met some of the parents of children killed and maimed by dogs, it is clear that the human cost is devastating. However, the economic cost is also worrying, with the loss of approximately 4,500 working days due to injuries sustained by postal workers. Campaigners feel strongly that the introduction of dog control notices would provide an effective preventive measure for alerting the authorities to the potential for dogs that could act dangerously in the future. In nearly every case, attacks have been the culmination of incidents that, if put together and acted upon, could have prevented that accident. The Government have argued that the new “flexible tools package” of orders will be as effective as the dog control notices introduced in Scotland and Northern Ireland, if not more so. However, the Environment, Food and Rural Affairs Committee, as my noble friend Lady Smith has already pointed out, does not agree with that argument.

Specific dog control notices would be a message for the dog owner to take action before an attack and would raise the profile and awareness among dog owners. Many of them exercise their dogs in public parks. They get to know each other and also know the good dog owners and the not so good ones. It would encourage a communal network. Issuing dog control notices should be a simple procedure. They could be issued by those trained to recognise examples of poor control. Action should be taken on the first occasion that a dog attacks anyone. It is the first time in studying for this debate that I have heard of this “one bite” rule or “one free bite” rule, which is appalling and trivialises the seriousness of the issue.

The PDSA has estimated that more than 1 million dogs display aggressive behaviour towards people and pets on a weekly basis. Its research shows that an overwhelming 87% of people believe that pet owners should face tough penalties if their dog attacks another person or animal. For the Government to introduce penalties for attacks on private property is commendable, but they are after the event, after the injury and after the death. Specific dog control notices would establish a framework to encourage better behaviour, preventing serious incidents and would establish a record of behaviour patterns.

The overall impact assessment concentrates entirely on the issue of making it a criminal offence to allow a dog to be dangerously out of control on private property

belonging to the owner of the dog. That is hardly surprising, but it is concentrating on legal sanctions after an attack. As I have already said, many attacks are the culmination of behaviour that is well known in the community. The overall impact assessment then refers us to the specific impact assessment on these measures published at the same time as the Bill. That took a bit of finding. It dates back to 9 May 2013. I assume that it has not been updated. Looking at the specific impact assessment, the concentration is on replacing dog control orders with public spaces protection orders, with community protection notices replacing litter clearing notices and defacement removal notices. There is no mention of dangerous dogs, although I understand that it is supposed to be an overall umbrella notice which covers everything.

I realise that the subject of dog control notices has been debated in the other House, and despite all the major stakeholders supporting this and the proposals for compulsory microchipping, the Government have set their face against it. Obviously, local government is in a difficult position, as it is strapped for cash and cutting back on areas such as dog wardens. Therefore it is not surprising that it has shown no enthusiasm for dog control notices. However, the concern is that community protection notices would be a blunt and unwieldy measure. The danger is that they would be slow to serve and open to challenge in the courts.

The Minister of State, Norman Baker, indicated that,

“muzzling, neutering, microchipping, keeping a dog on a lead … can be required under a community protection notice”.—[ Official Report , Commons, 15/10/13; col. 682.]

If that is the case, why are the two impact assessments completely silent on this? Looking through the draft guidance for front-line professionals on the reform of anti-social behaviour powers, the section on community protection notices makes no reference to dogs. It does say that before anyone is issued with a community protection notice, the accused should be given a written warning—presumably posted through the letterbox by a postal worker. We have to get to page 48 of the 64-page draft guidance before the actual word “dog” is used, and that is only in relation to public spaces protection orders—the old dog control orders—so we are back to square one.

Thousands of postal workers have been injured, children have been killed and maimed, just over eight guide dogs are attacked and killed per month on average, yet the draft guidance to professionals waits for 48 pages to mention the word “dog”. There is a danger that what the Government regard as streamlining by introducing community protection notices is actually a lack of focus on this important issue. If there is no focus now, what hope will there be when its implementation depends entirely on local discretion and funding?

What further guidance will the Minister give on issues such as the definition of “out of control” and “dangerously out of control”? What guidance will there be when aggressive dogs are allowed to roam freely on the landings of communal flats, terrifying the neighbours? What steps will be taken if an owner in receipt of one of these new community protection

notices simply swaps the dog for another? Will compulsory microchipping accompany a community protection notice? Nothing in the draft professional guidance gives us a clue. This is an area crying out for more effective steps to identify and deal with bad owners and poor dog control before someone is maimed and injured. I fully support the amendment.

Baroness Hamwee (Liberal Democrat)

My Lords, I shall make one point in the context of this Bill, which follows a comment by the noble Baroness, Lady Donaghy. Much of this Bill is about anti-social behaviour where someone is “likely to” do something, “threatens to” do something, or something is “capable of” causing harm and various sorts of problems. This is all about people. The dog provisions which we are being asked to consider in these amendments are preventive, not reactive. I would like to see much more of a similar attitude to “likely” behaviour or “possible” behaviour of dogs in the preventive way that we are applying to people in a large part of this Bill.

Lord Taylor of Holbeach (Conservative)

My Lords, this has been an interesting debate, particularly for me. When I became a Minister in Defra, a little over two years ago, one of my first priorities was to consider the whole business of dogs. I was motivated by exactly the same sentiments as most noble Lords have been: that attacks on communications workers, children and adults by dogs are unacceptable. They are a cause of great distress, and I wanted to do something about it.

Roughly two years ago—in December, at any rate—we had the first round table of all the dog charities and various interested parties, including Mr Joyce of the Communication Workers Union. We found that we had an awful lot of common ground. I think that underlying this debate is an awful lot of common ground. I am pleased that noble Lords have welcomed the fact that the Government are dealing with this issue. My noble friend Lord De Mauley, now in Defra, is seeing through a number of things, including the issue of microchipping of dogs. Defra has produced its own manual on dogs. The anti-social behaviour guidance for professionals is one document, but another slightly more substantial document is available to deal with dogs. I took note of the reference of the noble Baroness—or was it my noble friend Lord Redesdale?—to its size and the fact that some simplification of it might be due.

I thank all noble Lords who have spoken: the noble Baroness, Lady Gale, originally laid amendments on this issue at the beginning of the Bill’s proceedings; the noble Baroness, Lady Donaghy, to whom I will refer when I come to one or two issues; and the noble Baroness, Lady Smith. I also thank my noble friends Lady Hamwee and Lord Redesdale—he has long campaigned on this issue—and my noble friend Lord Lyell, who survived living with three rottweilers, something which I would not personally want to try to achieve.

I shall deal with the specific items to which noble Lords have spoken. First, because it is the most significant and I think everyone has mentioned it, Amendment 56MA provides for dog control notices. I put it on

record that I fully understand the intention behind the amendment. The Government agree that there is a genuine need for an additional tool to address poor dog ownership and enable early action to prevent dog bites and attacks. We should not have the one-bite law; we should be able to anticipate the bite before it happens. I accept that.

However, I hope that I can go some way to showing that the provision is not necessary and that everything the noble Baroness, Lady Smith, wants from such a notice is already available to enforcement authorities in the provisions in Parts 1 to 4, as noble Lords have said. The very same new clause was debated and rejected on Report in the Commons. The measures in Parts 1 to 4 can address all types of irresponsible behaviour with a dog, regardless of its specific manifestation. For example, a community protection notice can be served in cases where there are too many dogs in one home, where an owner does not have proper control of his dog, where a dog strays and in many other scenarios too.

I reassure the Committee that all the requirements suggested under the new clause such as muzzling, neutering, microchipping, keeping a dog on a lead, attending training classes can all be required under a community protection notice. The new clause is simply unnecessary. The powers are already there in the Bill. I take some comfort from the fact that Amendments 56MB and 56MC go some way towards acknowledging that.

Moreover, the measures in this Bill go further and are far more flexible. They allow officers to make any reasonable requirements based on the specifics of the case with which they are dealing. For example, the CPN might require signage to be put up to warn visitors to a property of the presence of a dog, to fix a post-box guard or to mend fencing to prevent a dog escaping.

It is important to understand the grounds under which the proposed dog control notices can be issued. In the new clause, the authorised officer has to have,

“cause to believe that a dog is not under sufficient control and requires greater control in any place”.

That suggests the dog is “out of control” already and the notice does not appear therefore to be preventive. The test for the CPN is much more useful and applicable. The behaviour of the dog owner or the person in charge of the dog simply needs to have a detrimental effect of a persistent or continuing nature on the quality of life of those in the locality. It can address issues concerning the owner as well as the dog and sometimes the two things go hand-in-hand. This could involve all manner of possibilities including allowing a dog to be out of control. It could include scenarios where the dog or dogs are not out of control but, for example, where there are too many dogs on a property, an owner persistently allows their dog to foul in a public space, or even where a dog is threatening a legitimate visitor to a property, such as a postal worker.

I note the comments of the noble Baroness, Lady Smith, about the requirement in the CPN for a written warning. I assure her that that is not a problem. It will not delay a notice being issued. In fact, it is a helpful addition to the measures. The provision for a written warning is in place for a number of reasons. It ensures that suitable evidence can be provided to meet the

threshold test of persistent or continuing behaviour, which is one of the elements of a CPN. In terms of use, a written warning could be a simple tear-off form. Alternatively, a written warning could be included in any correspondence with the individual of an acceptable behaviour contract which makes it clear that any breach will result in the issuing of a CPN. There need not be much of a delay between the written warning and the issuing of the CPN itself. It is a very flexible measure that can be used to address owner, premises and dog.

For example, let us say that a dog is running out of control in a park and perhaps is frightening children. The officer sees this happening and requests the owner to bring their dog under control and put it on a lead. The owner fails to do this so the officer issues a written warning that they will issue a CPN unless the person complies. In many cases that will be sufficient for the person to take the necessary action but, should they refuse for whatever reason, the officer could wait for a short time—perhaps five minutes—before issuing the CPN. There has not been an unacceptable delay and the CPN should secure the necessary behaviour change. In many cases, a CPN will not be needed because the written or even verbal warning will have done the trick.

I hope the Committee will agree that it is better for a dog owner to address the problem themselves rather than to be compelled to do so under the terms of a notice. In our earlier debates many noble Lords pointed to the virtues of early, non-statutory interventions before the powers in the Bill are exercised. I note too that the noble Baroness had a concern that dog issues may be lost in the breadth of ASB measures and be downgraded by local authorities. I do not accept that concern. Local authority dog wardens have dogs as their priority. They, other local authority officers and the police will be able to use these powers in relation to dogs. I believe they will greatly enhance what they can do for dogs. We have been careful to explain in the draft practitioners’ manual how they can be applied to dogs, which I will cover later on. I will just say at this stage that the manual includes some excellent examples of how local authorities have been able to co-ordinate initiatives to tackle problems with dogs. These new powers will go a long way to helping those initiatives.

I recognise that some animal welfare organisations continue to support and argue for the introduction of specific dog control notices. However, the practitioners—the people who will be actually using these measures—are supportive of the measures in the Bill. The Bill will simplify the number of powers and make them more flexible. There will be simplification, but also flexibility. Crucially, it will allow them to do more with less. The Local Government Association is on record as supporting the new ASB measures for what they can do in relation to dogs. In its written evidence to the Public Bill Committee in the Commons, it said:

“We are aware that there is continued pressure for specific dog control notices to be included in the Bill. The LGA remains to be convinced that separate tools are necessary as no details have been provided of the specific gaps in the provisions for the injunctions, community protection notices or public space protection orders that a dog control notice is needed to fill”.

The noble Baroness has stated that ACPO supports DCNs. The national policing lead for dangerous dogs has supported the development of these flexible ASB powers and has acknowledged that the manual which has been produced explains clearly and helpfully how to deal with them.

Amendment 56MB would require the Secretary of State to review the operation of the notices and ASB measures in relation to dogs every three years. I understand the sentiments behind the amendment and can see that people will want to be certain, as the Government will want to be certain, that the measures that we are implementing are working. As I have already said, I welcome the implicit recognition that CPNs are the way forward but I do not believe that a statutory duty to undertake a review is necessary as this Government continue to apply the practice, introduced by the previous Administration, of conducting post-legislative reviews three to five years after Royal Assent. We will undertake a review of this Bill, as with others. I agree that the effectiveness of the powers in the Bill to deal with dog-related issues should be one focus of the review. We will ensure that this is the case.

The issue of guidance is the subject of Amendment 56MC. We published in October the draft practitioners’ manual on tackling irresponsible dog ownership. As a reflection of the importance we attach to dog control and welfare, it is the only piece of issue-specific guidance in relation to the anti-social behaviour provisions in the Bill. All others are covered by the general practitioners’ guidance, to which the noble Baroness referred, but this specific Defra-produced guide is a manual for dealing with dogs. I note that a number of noble Lords said that it is fairly bulky. Well, it is. It has two basic elements: the legal guidance and a specific guide to particular issues. However, I am told by dog charities that they are considering producing a handy guide for those of their staff who deal with these dogs as an everyday matter. I am interested in that and we are very interested in hearing what people have to say. This debate is helpful on that.

Noble Lords will see that the manual demonstrates how the new power, in combination with informal mechanisms such as acceptable behaviour contracts and warning letters, can provide the means for improving and increasing responsible dog ownership. The manual signposts when officers should seek advice and who can provide that advice. It has been drafted in co-operation with local authorities, the police and the Welsh Government and I thank them for their support. We are looking for comments so that we may ensure that we are equipping officers with what they need. The existence of the draft manual shows that we aim to produce such guidance as envisaged by Amendment 56MC. That said, as I indicated in response to similar amendments, we are ready to consider whether provisions for statutory guidance in relation to the powers in Parts 1 to 4 should appear in the Bill. That relates to earlier discussions we have had on the Bill.

Perhaps I may turn to the last of these amendments. Amendment 56LF seeks to provide for the regulated and early release of seized dogs under Sections 1, 2 and 3 of the Dangerous Dogs Act. We can all agree on the importance of animal welfare, but in cases where

there has been a suspected offence, we must balance the need to provide for the welfare of the animal with the need to protect the public. By imposing a time limit on assessments of such dogs, not only do we increase resource pressures on respective police forces—many of which have only one or two trained dog legislation officers—but we compromise public safety if officers are under pressure to carry out rapid assessments. I am confident that all assessments are completed as soon as is practically possible, with enough time provided for the required thoroughness.

The Secretary of State for the Environment, Food and Rural Affairs announced in February 2013 that his department intended to bring forward secondary legislation that would permit the release of seized suspected Section 1 dogs where they have been assessed not to pose a risk to public safety. The releasing police force would be able to impose conditions on the owner, including muzzling and keeping it on a lead in public, as suggested by the amendment. The amendment would then be an unnecessary duplication. It would not be right to include such a change in primary legislation where the Government have the vires to make changes through secondary legislation.

In conclusion, I hope I have been able to persuade the Committee that specific dog control notices are already effectively provided for in the Bill. In fact, I would suggest that we have gone further and are providing a more flexible range of powers. I hope, too, that the noble Baroness, Lady Smith, is satisfied that the point she has raised in relation to Amendment 56LF can be dealt with through secondary legislation.

I have a note here that I will read for the sake of clarity on the “one free bite rule”. I would like to reassure the Committee that there is no such rule. Where a dog is dangerously out of control—where someone is injured or there is a reasonable apprehension of injury—there may be an offence under Section 3 of the Dangerous Dogs Act 1991. The police and the local authority may investigate and, along with the Crown Prosecution Service, will decide whether to take forward the prosecution. That is under existing powers. It is entirely possible, and, indeed, not uncommon, that a destruction order would be made after an incident. I mention that because I may have misled the noble Baroness. I know of an incident where a dog was allowed one bite—it did not bite again—but it was greatly to the relief of the owner that that particular situation occurred.

I hope I have persuaded the noble Baroness to withdraw her amendment. It has been an interesting debate, for which I am grateful to noble Lords.

Baroness Smith of Basildon (Labour)

My Lords, the Minister is absolutely right: it has been an interesting debate. I have learnt things I could never have imagined, such as where the noble Lord, Lord Lyell, keeps his Rolos. On a serious note, I am grateful to all noble Lords who have spoken for their contributions and their support for dog control notices. I think the Minister understands why this has been brought forward. I wish I could share his confidence. I will read his comments again

and look at some of the points he made in more detail. He has not addressed the point of dog attacks on dogs or other pets. I am disappointed not to have his support for the 48 hours review. I agree with the noble Lord, Lord Redesdale, that the assessment could be started within 48 hours. The reason to do that was to reduce costs and bureaucracy and for the welfare of the dogs. I am most surprised not to have the Minister’s support for a review. Given that he is so wedded to the provisions in this Bill and not notices, I thought he would have welcomed a review. I think that we are headed in the same direction and I wish that I had his confidence about the measures in the Bill. I will look carefully at what he had to say and look at the issues again. For now, I beg leave to withdraw the amendment.

Amendment 56LF withdrawn.

Clause 98: Keeping dogs under proper control

Amendment 56LG

Moved by Baroness Oppenheim-Barnes

56LG: Clause 98, page 70, line 46, at end insert—

“( ) after subsection (2) there is inserted—

“(2A) The owner of a dog commits an offence if they, or the person for the time being in charge of the dog, are not able to control the dog in a public place whether or not it is muzzled or kept on a lead.””

Baroness Oppenheim-Barnes (Conservative)

My Lords, I listened with great interest to the previous debates and would once again like to pay tribute to the noble Lord, Lord Redesdale, for everything that he has done in this matter. I only wish his measure was on the statute book. We would, perhaps, not be having these debates.

I was also interested in Amendment 56MA, tabled by the noble Baroness, Lady Gale, which has already been debated, because what I am attempting to do in my amendment is very simple. Perhaps at Third Reading, it could be tabled with part of the amendment tabled by the noble Baroness, Lady Gale. I have already spoken to the Public Bill Office, and that would be a possibility because my amendment does not deal with penalties.

I want to define very simply what a responsible person is. The owner of the dog, which will be in a public place, should know the degree to which somebody they are asking to be in charge of the dog or dogs meets the requirements in my amendment. They should be capable of being responsible and in charge of the dog, whether it is on a lead or not. Many people can very satisfactorily control dogs that are not on leads. Likewise, with regard to muzzling, I want defined once and for all whose liability it is, what the requirements are and, above all, who an appropriate person might be. This is only a first step in a still-unfolding problem. I wish it was not. People have seen dogs—their own or other people’s—practically shredded in public places and parks. Very often, those in charge of them are attacked at the same time. It happens too often, but perhaps not sufficiently often for it to be an even bigger public issue than it is now. The potential is always great.

At the time it happens you need the reinforcements immediately. I live in a very well known park in London where there are big notices saying “no cyclists”

and, in that particular area, “no dogs”, because children play on the grass in the summer. I have yet to see a single cyclist or dog owner being stopped. That is one small area, and I have not seen any very bad incidents. I have certainly encountered them with my own dogs and with other members of my family. In each case, the outcome has been ghastly and has lived with us and the remaining dogs for the rest of our lives.

I had the interesting experience of my daughter’s dog being seriously attacked in America. The other dog’s owner had no control of it and did not even attempt to control it. They rescued their dog and went straight to the police. The police came immediately and made an order on the spot for that owner never to have that dog not on a lead or not under complete control. I was very impressed with the speed with which that action was taken. My daughter never wanted to walk anywhere near that house again. I hope my noble friend Lord Lyell will forgive me for being jolly pleased that I am not his neighbour.

Lord Lyell (Conservative)

I reassure my noble friend that these dogs are wonderful so long as you take firm action. If she wishes to visit me, I assure her that she will escape totally unharmed and much loved.

Baroness Oppenheim-Barnes (Conservative)

My noble friend knows how highly I regard him, but I really do not think I shall accept his invitation, which was made so gallantly.

I hope that my noble friend the Minister will have realised that this problem has continued to grow and grow since the 1991 Act, the passage of which I vaguely remember taking part in. The great problem with that Act was the naming of certain types of dog. It was also mentioned, at Second Reading, that there are now dog psychiatrists and that naughty dogs can sometimes have their whole behaviour changed. I have known only one of those and I will, wisely, not give the Committee his name. He was brought in because my two were little puppies and we had to find out who the strong one was. The strong one took one look at him, did not fancy him very much and turned away, taking no notice. The little flibbertigibbet did all these little clever things in front of him and he said, “Ooh, that is the main dog. That dog is certainly going to be the leader of the pack”. He subsequently wrote a chapter in his book in which he named my two “the terrible twins”. He based this on an incident when I was walking around with them on the lead at the local dog show. They had seen a Weimaraner that had attacked them in the past and they must have been very nervous. Everybody was laughing and when I looked around it was because one was on top of the other. That is why he called them the “terrible Oppenheim twins”. If you ever pick that book up, please put it down again and do not buy it.

This is a serious debate, on a serious matter, on which there is enormously strong feeling about things that can never be put right afterwards. I implore my noble friend to take note of what has been said and to try to meet, before Third Reading, the more modest proposals debated this evening.

Lord Redesdale (Liberal Democrat)

My Lords, I support and thank my noble friend Lady Oppenheim-Barnes, who has been a stalwart in the campaign on this over many years.

There are problems with the amendment but it raises an important issue that we will come back to. After many years of discussion, the issue remains that some people use dogs as a way of intimidating others. This can take place even if the dog is on the lead and in a muzzle, because the person is using the dog for effect, so the muzzle is not a barrier to intimidation. I understand that this is a very difficult area to legislate in, but I hope the Minister will take into account that intimidation can be caused even if the dog is on a lead and muzzled.

Baroness Smith of Basildon (Labour)

My Lords, I agree that the noble Baroness, Lady Oppenheim-Barnes, is making a serious point about how the victim, or potential victim, feels when an owner is not in control of a dog. I am grateful for her comments and although she said something about the wording here, I was grateful for her support for dog control notices. None of us guarantees that we have absolutely the right wording. We may be able to have discussions, outside the Chamber, on wording that is accurate and would suit the Government well. The noble Lord does not want to see dog control notices but we may be able to make some improvements by discussing the matter further. I am grateful for the noble Baroness’s comments and support.

Lord Taylor of Holbeach (Conservative)

My Lords, I thank my noble friend Lady Oppenheim-Barnes for moving this amendment and other noble Lords for their contributions.

The purpose of the amendment is to extend the definition of “dangerously out of control”, found in the Dangerous Dogs Act 1991 and used to determine whether an offence has been committed under Section 3 of that Act. It would read so that the owner or person in charge of the dog would be liable for prosecution where the dog was not under their control.

Let me be explicit. Where a dog has been dangerously out of control, regardless of whether injury has been inflicted, the owner or person in charge may be liable under Section 3 of the Dangerous Dogs Act 1991. “Dangerously out of control” is defined in Section 10 of that Act and is taken to mean,

“any occasion on which there are grounds for reasonable apprehension that it will injure any person, whether or not it actually does so”.

That would cover some of the incidents to which this amendment would apply.

Furthermore, the Government agree that there should be proactive intervention before a dog becomes dangerously out of control. Where an individual does not have the dog sufficiently under their control, action should be taken to avoid escalation to those more serious incidents. The new anti-social behaviour measures will allow for such action by using the community protection notice and, in some cases, the injunction to prevent nuisance and annoyance. Those early intervention measures can make requirements of the owner to ensure that the dog is brought under control, its welfare improved and public safety protected; we have discussed the impact of such measures on conventional anti-social behaviour, and just now in the case of dogs. Requirements might include attending training or behaviour classes, for example.

Should the out-of-control behaviour be of sufficient concern, it will also be possible to make a complaint to the magistrate’s court under Section 2 of the Dogs Act 1871. Based on the evidence before it and using the civil burden of the balance of probabilities, the court can impose an order that requires the dog to be muzzled, on a lead or, in the most serious cases, destroyed.

Authorities may use the Dangerous Dogs Act 1991 where a dog is dangerously out of control, and it is right that we maintain that threshold for this criminal offence. In other cases, where a dog is more generally out of control, authorities may require the owner to be subject to the new measures, such as the CPN introduced in the Bill, or may use the Dogs Act 1871. Given that there are a number of ways to address an incident such as the one described by my noble friend, and in the spirit of the Bill of reducing duplicate legislation, I ask my noble friend to withdraw her amendment. I agree that it may well be useful if I talk to my noble friend Lord De Mauley, who is not able to be here this evening, about the possibility of meeting to discuss these dog measures some time before the next stage. However, I hope that my noble friend will withdraw her amendment.

Baroness Oppenheim-Barnes (Conservative)

I am very grateful to my noble friend for his extremely helpful remarks, particularly in relation to what is already in the 1991 Act, which might be one of the easiest ways to address this. I beg leave to withdraw the amendment.

Amendment 56LG withdrawn.

Amendment 56M

Moved by Lord Taylor of Holbeach

56M: Clause 98, page 71, line 5, at end insert—

“(iii) in paragraph (b), for “two years” there is substituted “the relevant maximum specified in subsection (4A)”;

(e) after subsection (4) there is inserted—

“(4A) For the purposes of subsection (4)(b), the relevant maximum is—

(a) 14 years if a person dies as a result of being injured;

(b) 5 years in any other case where a person is injured;

(c) 3 years in any case where an assistance dog is injured (whether or not it dies).””

Lord Taylor of Holbeach (Conservative)

My Lords, government Amendment 56M relates to the maximum penalty for dog attacks. Following an amendment tabled in Committee in the House of Commons by Richard Fuller, Defra consulted over the summer on possible increases to the maximum sentences for offences under Section 3 of the Dangerous Dogs Act 1991 of allowing a dog to be dangerously out of control—the very measure that we have been discussing in the previous amendment. Specifically, that is the aggravated offence where an out-of-control dog kills or injures a person or an assistance dog.

Some 3,180 people and organisations completed the online survey and a number of organisations sent written representations. In summary, some 91% of

respondents considered that the maximum penalty should be increased. We have taken into account the results from the survey, the written representations and the need for the maximum penalty to be proportionate to the offence.

The amendment provides for an increase in the maximum penalty for an aggravated offence under Section 3 of the 1991 Act, to apply in England and Wales, as follows: 14 years’ imprisonment if a person dies as a result of a dog attack, five years’ imprisonment if a person is injured by a dog attack, and three years’ imprisonment for an attack on an assistance dog that results in injury or death of the dog.

These changes reflect the high public concern that two years is an insufficient penalty for these offences, and the fact that seven adults and 10 children have died in dog attacks since 2005, and some 10 assistance dogs are attacked by other dogs every month. As now, each of these offences could also be punishable by an unlimited fine instead of, or in addition to, imprisonment; and, of course, the courts have the option of passing a community sentence.

I should make it clear that these revised sentences will apply only to the aggravated form of the offence in Section 3 of the 1991 Act; that is, the offence where a person or an assistance dog is actually killed or injured in a dog attack. Where someone actually sets their dog on to a person, the Offences Against the Person Act 1861 is likely to come into play. As noble Lords will be aware, the Act comes with its own sentencing regime. Were someone to be killed by a dog set upon them, if this is found to be an act of murder or manslaughter, the maximum sentence that would apply is life imprisonment. As now, it will be for the Crown Prosecution Service to decide whether there is both sufficient evidence to charge a person with the Section 3 offence and whether it is in the public interest to mount a prosecution. Once a case comes to court and a person is found guilty, it will be for the judge to take into account any mitigating or aggravating factors when passing sentence. We can, and should, leave it to prosecutors and the courts to make decisions in light of the facts of each individual case.

Of course, increasing the maximum penalty for dog attacks is only one aspect of trying to target irresponsible dog ownership and to encourage more responsible approaches. The Government consulted on a range of measures to encourage responsible dog ownership in 2012, and published a summary of results and the way forward in February this year, including bringing forward the other measures in the Bill relating to dogs and the compulsory microchipping of dogs by 2016. However, I hope noble Lords will agree that increasing the maximum penalty in the way that I have described is an important additional step. I commend the amendment to the Committee.

Baroness Smith of Basildon (Labour)

My Lords, I am grateful to the noble Lord for bringing this forward and for his explanation. I know he said at Second Reading that he would bring forward the amendment and he has been kind enough to write to noble Lords about it. I think this came from amendments proposed in the other place, where Richard Fuller raised the point and the Government agreed to do a consultation

on it over the summer. Therefore, we are supportive and want to see better sentencing guidelines around dangerous dogs. The culpability of those responsible and the actions taken against them are central to the measures the Government have taken. It also comes back to the point I made to the noble Lord earlier. I do not want to hark on about dog control offences too much but it is about prevention. Tougher sentences help with preventing such attacks taking place, and encourage more responsible dog ownership. That certainly is a positive.

I would like to ask the noble Lord a few questions about this. I am slightly puzzled about the reasons—if he could help me on this—that the amendment says,

“14 years if a person dies as a result of being injured”.

That will be the maximum penalty and we all recognise that in most cases the maximum penalty would not be the penalty given. Is 14 years comparable with other legislation? Are there other kinds? Where has this come from? I am sure it is not something the Minister has just dreamt up. I assume that there is other legislation that is seen as similar or relevant, which the period of 14 years would have been taken from.

I think there was some discussion in the Commons. This measure is for when a person dies as a result of being injured, but what if a dog is used as a weapon? We know that there are cases when somebody is injured because a dog is deliberately set on a person. What if they die? Is that the same penalty? What if somebody deliberately sets a dog on another animal, or a pet? With the penalty for somebody who dies as a result of being injured—in the case of an assistance dog, whether or not it dies, the penalty is three years—is there any distinction between an attack occurring when the owner has tried not to have their dog attack an individual and an attack occurring when the owner sets the dog on an individual? I do not think that it would be covered by dog fighting laws, if a human is attacked. If the Minister has any information on that, it would be helpful.

Furthermore, is the five years’ imprisonment for a person being injured something that is found in other legislation? I am speaking slowly, because I think that inspiration is about to arrive for the Minister on this issue. Where do the 14 years, five years and three years come from? Is there comparable legislation? The crucial point is whether the attack is deliberate, and whether a dog is forced to attack another dog or person. Many years ago, I helped to home a dog that had been the victim of quite serious attacks by other dogs. This poor dog was quite an aggressive creature with other dogs, but it had had half of its jaw bitten off and was in a terrible state. So I have seen at first hand and cared for dogs that have been very seriously attacked by other dogs. I am trying to get to the base of whether this is about something that happened, which should have been prevented, or something that is deliberate. It would be very helpful if the noble Lord could answer these questions.

Lord Taylor of Holbeach (Conservative)

The most important thing is to recognise that the prosecution of these cases is in the hands of the prosecuting authorities and adjudication of sentences is in the hands of the court. But there are particular aspects to the legislation. The noble Baroness

asked me whether there was something comparable: 14 years’ imprisonment is the same penalty as for causing death by dangerous driving, so there is a parallel with that.

The noble Baroness made a further point. I thought that I referred to it—and, certainly, I half thought that I mentioned it in my previous contribution. It is getting late and my memory may not be right, but I certainly have it here in my notes and may have said it in my speech. When a person deliberately sets a dog to injure someone, using a dog as a weapon, other offences would apply, such as murder or manslaughter, which as the noble Baroness knows carry a maximum of a life sentence, if that is shown to be the case. I am sure that I alluded to that in my previous remarks.

Why did we decide to increase the maximum penalty for injury to a person to five years? The majority of people wanted to see 10 years, but we wanted to be proportionate and felt that this was about the right tariff for injury to a person. But I think that the noble Baroness welcomes the amendments, and I am grateful for her support.

Baroness Smith of Basildon (Labour)

The noble Lord is right: I am welcoming the amendments and am grateful to him for his explanation, which is extremely helpful. I had not realised that a dog could be used as a tool currently in a murder or manslaughter charge; that

information is news to me. So I am grateful to him for explaining that more fully. He is right—we do support these amendments.

Lord Taylor of Holbeach (Conservative)

What has been helpful about these debates on the dog legislation is that they have reinforced the fact that this is an area in which the legislative framework has been imperfect. I hope that I have convinced noble Lords on the flexibility of the anti-social behaviour measures when applied to dog ownership. There is specific draft guidance being given to professionals. I shall make sure that all noble Lords who have spoken in this part of our discussions this evening, including those who might have done, such as the noble Lords, Lord Trees and Lord Greaves, get a copy of that guidance, because it will help future discussions. I hope it will persuade noble Lords that given the acknowledged difficulty of legislating in this area, what the Government are seeking to do is sympathetic to the sentiments of the Committee.

Amendment 56M agreed.

Clause 98, as amended, agreed.

Clause 99 agreed.

Amendments 56MA to 56MC not moved.

House resumed.