One of the things that I hope we do better now because of Select Committees is take time to get Bills right. We have pre-legislative scrutiny which—[Interruption.] The hon. Member for Kingston upon Hull North (Diana Johnson) knows that I was critical of large parts of the Health and Social Care Bill and I have been critical about the process for dealing with the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill, which has just gone through this House. I said here, and I have not changed my view, that the Government should have submitted the Bill for proper pre-legislative scrutiny. Unless it is absolutely impossible, pre-legislative scrutiny should always take place because draftspeople may do a good first job, but they may not think of all the issues that we, representing all parts of the United Kingdom, might spot and be able to use our experience to deal with. I agree with my hon. Friend the Member for Cambridge (Dr Huppert), and I hope the Government will be positive. I am sure these issues crop up in Lewes as much as in Cambridge and in Bermondsey and Southwark.
The religious beliefs issue is the last in this set of amendments. We ask the Minister to consider removing clause 1(5)(a). At present there is a list of four things which the prohibitions and requirements in an injunction must, so far as practicable, be such as to avoid: any conflict with the respondent’s caring responsibilities, any interference with the times at which the respondent normally works or attends school or any other educational establishment, and any conflict with the requirements of any other court order or injunction to which the respondent may be subject. The fourth one is
“any conflict with the respondent’s religious beliefs”.
As I indicated earlier, we think that that cannot properly be there because somebody’s right to hold a religious belief is absolute and therefore should not be qualified by the words
“must, so far as practicable, be such as to avoid—
(a) any conflict with the respondent’s religious beliefs”.
I am encouraged to think that the Minister in particular will be helpful because he has a good human rights record and I am sure he will want to say, on behalf of the Home Office, that the Home Office is positive about that.
There is one more amendment in the group relating to part 1—amendment 166— which deals with whether people can be excluded from their homes. We are clear that the sanction of excluding somebody from their home should be a sanction of last resort. It is a very serious thing to take away that right. At present there is a power to exclude a person from home in cases of violence or risk of harm. Clause 12 states:
“(1) An injunction under section 1 may have the effect of excluding the respondent from the place where he or she normally lives only if—
(a) that place is owned or managed by a local authority or a housing provider,
(b) the injunction is granted on the application of the local authority or housing provider, and
(c) the court thinks that—
(i) the anti-social behaviour in which the respondent has engaged or threatens to engage consists of or includes the use or threatened use of violence against other persons, or
(ii) there is a significant risk of harm to other persons from the respondent.”
This is a well publicised issue. In my borough, both when my colleagues were running the administration and when it has been under Labour administration, there has been discussion publicly as well as among councillors about whether an injunction should be used to kick people out of their council home or their housing association home, and if so, in what circumstances. In a way, such a provision is slightly discriminatory because it applies only to people who are in publicly funded housing; it does not apply to someone in private rented property. That remains an issue. We want the Minister to be positive about our amendment 166, which would add to subsection (c) one more condition—that the court has to be satisfied that the exclusion is necessary and appropriate. Of course, if someone has engaged or threatens to engage in violence, or has threatened other people in the house, whether it is domestic violence among members of a family or household or otherwise, the logic might be that they should be excluded. I do not resile from that at all, but because it is such a draconian solution the court needs to be clear that it is necessary and appropriate. That is the run of amendments in relation to part 1.
There is a smaller number of amendments relating to part 2, which is about criminal behaviour orders. The Committee recommends that the appropriate standard of proof required to establish anti-social behaviour for the purpose of a criminal behaviour order, which is a new order being introduced by the Government, should be made clear on the face of the Bill. The reason we say that is that it could be assumed that it was a civil standard of proof, as opposed to a criminal standard of proof. We think we ought to make that clear, not just so that the public know, but so that law enforcers and the public authorities know.
The Bill provides that a criminal behaviour order may be imposed if the court considers it “will help in preventing” anti-social behaviour. The Joint Committee on Human Rights does not consider this to be an appropriate or clear legislative test and we recommend that it is amended. As with the previous section, we consider that the broad and open-ended definition of the prohibitions and positive requirements that may be included in a criminal behaviour order do not satisfy the requirement of legal certainty, and we recommend to colleagues and to Government that the Bill be amended to achieve greater certainty.
Amendment 167 inserts after “satisfied” the words
“according to the criminal standard of proof”
in clause 21.
Amendment 168 would replace the words “help in preventing” with the single word “prevent”. Deciding whether something will help in preventing some behaviour gets us into rather esoteric territory and does not provide as clear a standard of proof as we would wish.
Amendment 169 is the same as an amendment we suggested to part 1, and would mean that instead of using the words “doing anything” to describe the actions, “specified actions” would have to be set out.
Amendment 170 is also similar to one of our amendments to part 1, and would ensure that the criminal behaviour orders
“relate to the anti-social behaviour which the respondent has engaged in”.
That would mean that there was a link between the activity and the public response.
Amendment 171 is a further amendment to clause 21 to make it is slightly more specific and, again, uses the phrase “specified actions” rather than “anything”. Amendment 172 makes the same change as amendment 170 a little further on, ensuring that the order relates to the antisocial behaviour in question.
Amendment 173 would leave out line 3 on page 12, which contains the same qualification as earlier about religious beliefs. The amendment would mean that the absolute right to religious beliefs would not be qualified when prohibitions and requirements in a criminal behaviour order were being considered by the authorities. We are trying to ensure that part 1 and part 2 are consistent and we hope that the Government will be positive about that.
Amendments 174 and 175 would add the following sentence, which reflects the principle I set out at the beginning of my speech, to the end of clauses 22 and 29:
“The courts must take into account the best interests of the child as a primary consideration when determining reporting of a child’s case.”
We are seeking to ensure that the duty of the court is on the face of the Bill.
Amendment 176, the last in the group, applies to clause 34, which can be found on pages 19 and 20 of the Bill. Its last subsection states:
“A constable may not give a direction to a person under section 33 if the person is one of a group of persons who are—
(a) engaged in conduct that is lawful under section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992 (peaceful picketing), or
(b) taking part in a public procession of the kind mentioned in subsection (1) of section 11 of the Public Order Act 1986 in respect of which…written notice has been given…or…written notice is not required”—
that is, a lawful public procession. We think that, after that, a provision should be included so that a police officer cannot give a direction if people are engaging in any other lawful form of public assembly. There are public assemblies that are not marches or picketing but that are perfectly lawful, and we do not think that they should be interfered with under the powers in the Bill. I hope that my civil libertarian colleagues on both sides of the House will fully support that.
That is part 3 dealt with, which leaves only part 5. It deals with the recovery of possession on riot-related antisocial behaviour grounds. The Committee’s view is simply put:
“While we recognise the seriousness of riot-related offences, we are not persuaded by the Government’s justification for the new discretionary ground of possession for riot-related anti-social behaviour. We are concerned about its potential serious implications for family members, and consider that it may disproportionately affect women and children. We also consider that it amounts to a punishment rather than a genuine means of preventing harm to others. We therefore recommend that this provision is removed from the Bill.”
Let me pause and say that I am conscious that that area is controversial. The controversy arose in my constituency a year and a bit ago, in the summer, when we had “riots” on the streets of Southwark and—not to a huge degree, but to some degree—on the Walworth road and in Peckham. Other cities in Britain as well as other parts of London were affected by riots. The question is how we deal with those who are caught rioting. The issue that was the subject of widespread discussion was whether it is right to take away a home when one of the people living there has been involved in rioting. Is it right that a 15 or 17-year-old youngster living in a council property in Lewes, Cambridge, Southwark, Kingston-upon-Hull or anywhere else, should have their home taken away?
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The Select Committee makes the point that such a provision is more likely to punish innocent women and children for the mistake of somebody who is more likely to be male, and more likely to be a teenager. That will not necessarily be the case: some of the riots in London involved people who were certainly not teenagers, and some who were certainly not males. They were caught on CCTV and by other cameras. We were very clear, however, that we should remove from the Bill the ability to give power to recover possession on riot-related antisocial behaviour grounds.
I am not an expert, but I believe that most local authorities have the power to terminate possession of tenancies on the basis that somebody has breached their tenancy agreement. It is certainly a breach of a tenancy agreement to behave in a way that seriously causes a nuisance to one’s neighbours or community. There are issues about how close that has to be, and so on. I ask the Government to be very careful in reflecting on the question. Although the easy populist line might be that it is good to have such a power on recovery in the Bill, I ask them to reflect on whether in fact it might be excessive and on the idea that it would not necessarily deal with the offence.
I am not sure and have never been persuaded that taking a home away from family X when one of the children has been involved in breaking the windows of the mobile phone store down the road will stop that youngster breaking the windows of another store later on. It does not seem to me that the sanction on the family as a whole will necessarily deal with what might be the latest in a succession of bad behaviour.
This group contains the largest group of amendments from the Joint Committee on Human Rights to be dealt with today. I hope that I have put the case clearly. We have no objection to the Government amendments that my hon. Friend the Minister will no doubt move later. We do not support the Labour amendment that, obviously, wants to keep the law as it is and to keep antisocial behaviour orders as they are, because the Government think they have a better answer, which is why they have introduced the Bill.