Northern Ireland legislative consent granted, Scottish and Welsh legislative consent sought. Relevant documents: 33rd and 41st Reports from the Delegated Powers Committee, 11th Report from the Constitution Committee, 5th Report from the Joint Committee on Human Rights.
1: Clause 1, page 2, line 4, leave out “just and convenient” and insert “necessary and proportionate”
Member’s explanatory statement
This amendment amends the test for imposing a respect order to require the court to be satisfied that it is necessary and proportionate to make the order for the purpose of preventing the respondent from engaging in anti-social behaviour.
My Lords, I apologise to the House; I was not ready, but it is worth waiting for. This amendment would change the legal test for imposing a respect order, requiring the court to consider this step “necessary and proportionate”, and not merely “just and convenient”, in preventing a person engaging in anti-social behaviour. This small, targeted change would ensure that the test is more proportionately aligned with the potentially serious consequences of these quasi-criminal orders, since a breach can result in up to two years’ imprisonment. It would also better reflect the Government’s stated intention that these orders should be used to tackle the most persistent cases of anti-social behaviour.
As the noble Lord, Lord Pannick, noted in Committee, these cases would be adequately covered by a “necessary and proportionate” framework. The Minister says that judges must already take necessity and proportionality into account under the Human Rights Act. If that is so, I struggle to see why that very safeguard cannot be placed transparently in the Bill. This is a critical point, given the well-documented failures of previous anti-social behaviour powers. The evidence shows that, in practice, vague legal tests not only lead to inconsistent decisions: they sometimes deter the courts from using orders.
A more rigorous test would also address concerns about systemic bias. Existing anti-social behaviour powers continue to fall more heavily on minority-ethnic and other disadvantaged groups. Without stronger safeguards, this will almost inevitably be repeated by respect orders. Tightening the test is a modest way to reduce that risk, and will provide greater clarity for all concerned—judges, counsel and victims—as well as those made subject to these orders. It also better aligns the order with the risk assessment duty already outlined in new Section J1 inserted by Clause 1.
In Committee a number of Peers expressed concern about judicial overreach, particularly with tools so sweeping that they can order somebody to do anything described. But the current broad and vague test will do nothing to solve this. In fact, it will make matters worse. The quasi-criminal nature of these orders will invite legal challenge, causing delay in already backlogged courts, potentially clogging the system with marginal cases while doing little for victims of persistent and ongoing anti-social behaviour. A clear necessity and proportionality requirement would sharpen the law, focus efforts on the worst cases and help ensure that respect orders become the tool of choice for serious or repeat anti-social behaviour, rather than just another broad but inconsistently used power added to an already confusing landscape.
My Lords, I agree with everything said by the noble Baroness, Lady Doocey. As I understand the Government’s position, they accept that it would not be appropriate to impose such an order unless it is necessary and proportionate, and indeed that is the test applied by the European Convention on Human Rights, so the only question is whether the language of the Bill, and the Act that it will become, should reflect the true test. It seems to me, as it seems to the noble Baroness, Lady Doocey, highly appropriate that what is in the legislation should set out the true test. This has to be applied not just by judges but by police officers, local authorities, communities and everyone who is responsible for considering and enforcing this legislation. Let us put the true and proper test on the face of the Bill.
My Lords, there is a lot in this group. The Government are undoubtedly sincere in wanting to use the Bill to further tackle anti-social behaviour, and such moves to take on this blight on communities will certainly be popular. However, we have to pause a moment and say that there is already a plethora of tools on the statute book designed to tackle anti-social behaviour, and yet it does not seem to be improving. This is the group in which we need to ask why. Perhaps anti-social behaviour orders and injunctions in all their various guises, from community penalty notices to public spaces protection orders, are just not fit for purpose.
I fear that, instead of tackling this, the Government are taking an easy and performative route and affording the state even more of the same—with more draconian powers—under a different label, that of respect orders. They are doing all this with little clarity or evidence of efficacy. That is what the amendments in this group are designed to tackle. By and large, I support them all.
I tabled Amendment 6, which calls for an independent —I stress the word “independent”—review of existing powers under the Anti-social Behaviour, Crime and Policing Act 2014, which should be published prior to the commencement of Sections 1 and 2 of the Act. As legislators, we have an obligation to take responsibility for assessing the impact of, and the evidence about, laws that we made in the past before we duplicate their weaknesses. We need to understand the pros and cons.
This review would look at solving the evidence gap. It is extraordinary that there is significant variation in data captured across relative authorities. Because ASBIs are locally administered in a patchwork of varied use, there is a worrying variation in the types and quality of data collected, the location of that data and the ability of that data to be extrapolated and shared internally or with relevant agencies where appropriate. This is surely a slap across the face of evidence-based policy-making, because without data it is not possible to adequately assess the effectiveness of behaviour orders and to fully understand any trends arising out of their imposition, enforcement or breach, including disproportionate impacts.
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Kingdom Security did not have its contract renewed, but similar practices have proliferated throughout the ASBI enforcement world. Such scam-like behaviour of taking fines for profit discredits and trivialises a serious approach to tackling anti-social behaviour. This is a chance for the Government to row back on this. I hope that the noble Lord will call a Division on this, and I shall certainly vote in support of Amendment 7 if he does.
My Lords, I shall speak to the amendment tabled in my name. As noble Lords know, I am terrible with the billion rules that we have in this place, so bear with me. This amendment would make a small change that would make a big difference to many residents around the country.
I shall try not to rehearse the arguments that I have made before, but we now need to reflect the reality of the housing situation in this country. With the Government’s mission to build 1.5 million homes, this reality will only become bigger—that many of our housing providers in the social sector are for-profit companies. It is a matter of fairness to make sure that the vulnerable residents that they are responsible for have the same access to the law that any resident would have, regardless of the legal structure of their landlord. To make that happen, I have proposed small changes to remove the particular words “non-profit private”. That would make a massive difference to these companies’ ability to keep people safe.
The law is at its best when it is clear and coherent. Good law should be comprehensive and unambiguous. If Parliament intends these powers to apply to housing providers, as I say, it should apply to all of them. This amendment would not alter the policy intent of the Bill but strengthen it, reinforcing the simple principle that tenants’ safety and accountability must be the same, regardless of where you live in the country. I recommend the amendment to the Government and ask for this tiny change to make sure that we can deliver safety for all our residents countrywide.
My Lords, I shall speak to the amendments in my noble friend Lady Doocey’s name and mine, which seek to ensure that the Government’s new anti-social behaviour powers are grounded in evidence, proportionality and democratic accountability, as well as to other amendments in this group.
On these Benches, we do not dismiss the misery that persistent anti-social behaviour causes, but we remain deeply unconvinced that layering yet another complex civil order on to an already confused ASB framework is the right approach. As Justice has highlighted, respect orders risk duplicating existing powers, come with limited evidence of effectiveness and lack basic procedural safeguards. They rely on a weak civil standard of proof, yet they impose severe restrictions and carry a potential two-year prison sentence upon breach.
First, in Committee, we warned that the threshold of “just and convenient” is far too low for an order that can deprive a person of their liberty and exclude them from their home. I very much welcome what the noble Lord, Lord Pannick, had to say in his observations on the European Convention on Human Rights. The Minister in Committee, the noble Lord, Lord Hanson, defended that language as “familiar” to the civil courts. However, he offered a chink of light, agreeing to examine the arguments for the wording in Amendment 1, “necessary and proportionate”, to ensure strict alignment with the Human Rights Act. I very much hope that his reflections have led him to accept this higher and safer threshold today, ensuring that these orders are not used merely for administrative expediency. We need an answer to the pilot or not-pilot question raised by my noble friend.
Secondly, I return to the issue of democratic accountability. Our Amendment 2 requires that the terms of respect orders and PSPOs must be subject to a full council vote. In his follow-up letter to me, following Committee, the Minister, the noble Lord, Lord Hanson, rejected this, claiming that it would introduce delays and unnecessary bureaucracy. But democratic scrutiny of civil liberties is not an administrative delay; it is a constitutional necessity. The Government’s resistance to this directly contradicts the Local Government Association’s own statutory guidance, which recommends as best practice that final approval of a PSPO be undertaken at cabinet or full council level, to ensure openness and accountability.
My Lords, it will come as no surprise to the Minister that these Benches maintain our opposition to the Government’s respect orders. We have heard, in Committee and today, many concerns about the new regime. Our concerns are slightly different from some of those expressed by other noble Lords, in that we oppose them because we view them as simply unnecessary.
In Committee, my noble friend Lord Davies of Gower asked the Minister what the true difference would be between respect orders and the current anti-social behaviour injunctions. The response confirmed that, in the Government’s view, the only difference is that breaching a respect order will be a criminal offence, whereas breaching an injunction is not a specified criminal offence. That may seem tougher on the surface, but, in reality, it will not make any difference. A person who breaches an ASB injunction can be prosecuted for contempt of court, as they have defied an order of the court; in addition, the power of arrest can be attached to the injunction under Section 4 of the Anti-social Behaviour, Crime and Policing Act 2014. Where that is the case, a police officer may arrest a person without warrant for breaching the terms of their injunction under Section 9(1) of that Act. Furthermore, an arrest warrant may be made by the court if the person who applied for the injunction believes the person has breached that injunction.
For all those reasons, therefore, a number of avenues exist for enforcement of these injunctions. But, even if the Government believe that creating a specific criminal offence is necessary, why not simply amend the ASB injunction regime to create that offence? Why introduce an entirely new regime? Having said all that, we are where we are. In Committee, the Minister responded to my noble friend’s criticism by stating that it was a manifesto commitment. I do accept this, and that is why I suspect they will pass today unhindered.
It is good to be back, is it not? It feels like we have been away for ages and now here we are again, back for another session of interesting amendments to the Crime and Policing Bill. I am grateful to all noble Lords for tabling them.
As the noble Lord, Lord Cameron of Lochiel, recognised, respect orders are a Labour manifesto commitment. They are made for securing action on anti-social behaviour in our town centres across this country. We secured a mandate to implement them. I welcome the amendments and we will discuss them, but this is a core element of Labour government policy.
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Government Amendment 4 is part of a listening exercise that we undertook in Committee. It will ensure that appropriate consultation is carried out prior to the issue or revision of statutory guidance on respect orders. Although consultation with relevant stakeholders is routinely carried out prior to the issuing of such guidance, I hope that formalising this requirement in the legislation with Amendment 4 will help with the concerns noble Lords raised about statutory guidance not being subject to adequate consultation and the perceived impact on its utility. I will return to that at some point, but I hope that is of assistance. Amendment 4 also makes it clear that the consultation undertaken prior to Clause 1 coming into force will count towards fulfilling the consultation requirement.
I will try to clarify the concerns that have been raised about the respect order pilots and say what is happening with that. The noble Baroness, Lady Doocey, raised that point, and other noble Lords have commented on it. Details of the rollout of the respect orders are being examined and worked through by the Government. I will share more detail in due course and before any further action is taken. That is the position for the House to understand.
There are a number of other amendments in the group; I will address each in turn. Amendment 1 was moved by the noble Baroness, Lady Doocey, and was supported by the noble Lord, Lord Pannick. It seeks to change the legal test for issuing a respect order so that the court would need to consider it “necessary and proportionate”, rather than “just and convenient”, to issue it. This was raised in Committee. I made it clear that the current “just and convenient” language mirrors the test in the current civil injunction regime under the 2014 Act, which the respect order in part replaces. The legislation was enacted by the coalition Government. The noble Baroness, Lady Doocey, may well have been in the House when that was done. The Bill mirrors that language completely. Housing injunctions and youth injunctions will remain operational under the 2014 Act. The “just and convenient” test will be consistent across these orders and the respect orders, which we consider fair and proper.
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I have one final point. In Committee we welcomed the Home Office’s plan to pilot these orders, only to be told that the Government had decided that this was no longer necessary. On that occasion, the Minister informed me that things change. However, since then things appear to have changed again: the latest policy paper says that respect orders will now be piloted before being rolled out nationally. That is obviously very welcome, but I hope that today the Minister can reassure the House that—in this matter, at least—there will be no further changes. One change I strongly advocate is that outlined in Amendment 1. If it sharpens the law, improves enforcement and offers greater protection against injustice for the price of a modest drafting alteration, why resist it? I beg to move.
That is why Amendment 24 in the name of the noble Baroness, Lady Jones of Moulsecoomb, who is not in her place, which would require the Home Office to publish quarterly data, is so important, as well as Amendment 12 from the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Doocey, which calls for an annual report. Both amendments positively try to tackle the limits of the availability of the evidence base, without which I do not know how we can make informed policy decisions.
At present, all the critiques of present behaviour orders are invaluably brought to us from sporadic academic research, FoI-based research led by the likes of Josie Appleton and her team at the Campaign for Freedom in Everyday Life, and the excellent campaign group Justice. They want their work to be made redundant by the Government; they want the Government and officialdom to do their work instead. If the Home Office does not understand its own legislative tools because it does not have the data, the misery of anti-social behaviour will remain untouched while the statute book grows.
I hope the Minister will listen to the front-line workers who have to implement and use these orders and who, reasonably, bemoan the lack of proper consultation with those who understand the ASBI regime in real life. I note the government amendment on consultation, which is welcome.
The majority of practitioners who Justice consulted believe that the new respect orders are unnecessary and replicate flawed laws already available. Only 6% conclude that they will improve outcomes for victims; 82% of respondents to the practitioners survey have called for the review of the existing 2014 Act and of existing powers prior to respect orders being introduced. There was unanimous agreement that the Government should address problems inherent in existing injunctions and orders before creating more, and that failure to properly consult has meant that opportunities to resolve problems with the way orders operate in practice, not on paper, and to increase their effectiveness have been missed. Surely the Minister will want and feel the need to understand why research shows that a significant proportion of CPNs and PSPOs are, for example, being overused for trivial activities, such as feeding the birds, honking horns, gathering in groups or idling in your car, or imposed in inappropriate circumstances against, too often, the homeless and the mentally ill, where the behaviour complained of falls far below the threshold of antisocial behaviour that the public are concerned about and that the 2014 Act was envisaged to tackle.
All that we are asking in these amendments is for the Minister to look at what has gone wrong so that we can improve it. Surely the Government are worried about the vastly varied use of existing orders, which creates a postcode lottery for victims and means that British citizens do not know what is allowed from one town to another. Conduct that is totally lawful in Lincoln might be subject to state sanction in Leeds. Surely such a differential variation in the volume of orders imposed, the type of orders imposed, the conditions imposed, and so on, undermines the rule of law that I know this Government strongly support. It makes enforcement dependent on the victim’s location, rather than circumstances, or on the perpetrator’s location, rather than precisely how they are behaving badly. This makes a mockery of the notion of all of us being equal under the law. A review would look at these problems and recommend practical solutions.
Amendments 1 and 3, especially, are important in relation to ensuring that respect orders are used only when necessary and in a proportionate way. We have already heard about that. I think this is very helpful, particularly in creating a right to appeal. I am worried that the statutory test and the language used for imposing these new respect orders are so broad that, rather than capturing behaviour that is serious and persistent in nature, they will criminalise more trivial behaviour. That these orders can be imposed on individuals without their knowledge and, most egregiously, for an indefinite duration—for example, until further notice—is why we need this appeals process. How is it fair or proportionate that an individual who has never been found guilty of an offence is required to comply with serious restrictions on their liberty and personal life indefinitely, yet someone convicted of an offence by the criminal justice system is at liberty and free of prohibitions once they reach the end of their defined term of sentence, or even sometimes before that these days? This is reminiscent of that stain on our justice system, the abolished and abominable IPP indefinite sentence, which caused such a scandal. Why would the Government now create these new, oppressive orders that flout the important principle that if individual lives are subject to state interference, they need to know how long the interference will last and when it will end?
Finally, I have added my name to Amendment 7, an excellent contribution from the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Doocey, on fixed-term penalty notices, based on the work of the Campaign for Freedom in Everyday Life. This, I hope, will ring true with any Labour Government, because ensuring that private companies dishing out on-the-spot fines for antisocial behaviour, and doing so to profit financially, is surely something that offends the Government’s values. There are concerns that antisocial behaviour orders have been corrupted for income generation and commercial purposes. With fines increasing so much under this Bill, surely that tendency will be turbocharged. I think it is something that the Government will want to tackle, because all the orders in Clause 4 being issued at such a low benchmark are likely to result in fines going up. I am worried that this will encourage councils to become trigger-happy with orders and so on.
I am sure that the noble Lord, Lord Hanson of Flint, will remember, as I do, the scandal of Kingdom Security in north Wales in, I think, 2019, when councils including Conwy, Denbighshire, Flintshire, Gwynedd and Anglesey outsourced the collection of their on-the-spot fines to a private security group, Kingdom, which illustrated that the behaviour of the enforcers could well be seen as being far more anti-social than any of the behaviour of local residents for which they were supposed to be fining them. A grass-roots campaign attracted 8,000-plus members to its Facebook page and led to numerous protests all over north Wales, with the security group’s wardens accused of threatening, bullying and even stalking north Walians, following dog walkers and smokers at a distance just so they could catch them out and fine them. They expressly targeted the elderly and women and children; the tissue of one 95 year-old lady blew from her wheelchair to the ground, and she was fined.
Currently, research by the Campaign for Freedom in Everyday Life, formerly the Manifesto Club, shows that nearly half of all PSPOs are signed off by a single, often unelected, council officer, without any democratic vote. This lack of scrutiny has led to absurd and stigmatising orders banning innocuous activities. If full council approval is already recommended as best practice by the LGA, standardising it in legislation would not be an arduous delay; it would simply force all councils to meet the standard of transparency that the Government’s own guidance expects.
As regards Amendment 3, as I highlighted in Committee and in correspondence with the Minister, there is currently no formal means to directly appeal a PSPO FPN. Citizens feel pressured into paying unjust fines to avoid financial ruin. The Government’s move to increase the maximum fixed penalty notice for PSPO and CPN breaches to £500 is highly dangerous without statutory safeguards. In Committee, the Minister suggested that, if individuals feel a fine is unreasonable, they can simply make representations to the issuing agency. This is totally inadequate; there should be a formal right of appeal.
I turn to Amendment 7 in my name, which concerns fixed penalty notices for public space protection orders and community protection notices. I thank the noble Baroness, Lady Fox, for her support in this respect and for her very extensive unpicking of these ASB powers. Under Clause 4, the Government are pushing ahead with a 400% increase to the maximum FPN for these breaches, raising it from £100 to a punitive £500. Without statutory safeguards, this will simply supercharge a system that is already widely abused. This new clause addresses the deeply concerning practice of fining for profit. It stipulates that neither an authorised person nor their employer may retain any financial benefit from the fixed penalty notices that they issue.
The Campaign for Freedom in Everyday Life’s Corruption of Punishment report exposes the grim reality of the modern enforcement market. Environmental and ASB enforcement is increasingly seen as a business. Local authorities are entering into contracts with private companies, boasting of “zero financial risk” while sharing the “surplus revenue” generated by fines. Guidance and formal representations are entirely inadequate when faced with the modern enforcement market. As the Campaign for Everyday Freedom’s research also highlights, 66 councils currently employ private companies to issue FPNs, and the standard model is that these companies retain a percentage of the income, often up to 100% until costs are recovered. This creates a direct perverse financial incentive to issue as many tickets as possible for innocuous actions.
As I have pointed out to the Minister, Defra has already issued strict guidance stating that private firms enforcing littering should not receive greater revenue from increasing the volume of penalties. It is entirely illogical not to apply the same statutory prohibition to anti-social behaviour enforcement. We must ban fining for profit in the Bill. It is a time to a put a statutory end to the revenue collection system masquerading as justice.
Finally, in Amendment 12, we have proposed an annual report on the use of these ASB powers, for all the reasons I have stated that were so well expressed by the noble Baroness, Lady Fox. I entirely understand that the noble Baroness, Lady Jones of Moulsecoomb, is trying to achieve something very similar in her amendment. We are all aiming for much greater transparency in the use of these ASB powers, and I very much hope that the Government will go for at least one of the proposals.
I turn briefly to some of the other amendments in this group. I have a rather specific concern about the requirement in Amendment 2, tabled by the noble Lord, Lord Clement-Jones, that a respect order may be applied for only if the local authority has agreed to do so at a meeting of the full council. Subsection (8A) in his amendment states:
“A relevant authority may not make an application for a respect order … unless the relevant local authority has complied with the requirements … in subsection (8B).
However, the definition of relevant authority in new Section B1 includes
“the chief officer of police for a police area … the chief constable of the British Transport Police”,
and a number of other authorities, such as Transport for London. What this means is that, should the police wish to apply for a respect order, they must first seek the approval of the local council. I do wonder whether this might create an overly burdensome and time-consuming requirement.
Amendment 7 from the noble Lord, Lord Clement-Jones, is, however, something I do have sympathy for. In 2024, a record 14.4 million parking fines were issued, representing a 13% increase from the previous year. There are widespread concerns about unclear parking signage, faulty machines and companies using quotas to increase the number of fines they collect. Parking firms and, indeed, councils using fines based on spurious violations simply to make money is surely not right. Where a person has violated the rules, of course the use of penalty charge notices is justified, but we should not allow them to unfairly issue fines to those who do not deserve it.
Finally, and having been somewhat critical of respect orders, I say to the Minister that I welcome his Amendment 4. As much as I may think that respect orders are unnecessary, if we are to have them, it is welcome that the Secretary of State will be required to consult on the guidance they issue.