Committee stage in the Lords
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Baroness Miller of Chilthorne DomerLiberal Democrat- Quote
- My Lords, before the dinner break we raised a large number of concerns about all the clauses grouped with Clause 33. We on these Benches remain unconvinced that these provisions on gang-related violence should be in the Bill at all. We would like the Minister to list the powers that the police already have to deal with these situations. They have very wide-ranging powers to deal with public disorder, intimidation or anti-social behaviour. The Minister has not explained why special measures are needed to deal with this issue—indeed, not just special measures but ones which take us down a completely different line in terms of restricting the liberty of people who have not done anything wrong. The Minister clearly stated that sometimes it will not be a case of someone having done something wrong, and that the measure will be imposed for their own protection. That precedent was ably expanded on by my noble friend Lady Walmsley. We have not yet heard from the Government a sufficient explanation of why such an extraordinary measure is needed. Between now and Report, we will look again at everything that has been said in these debates and at some of the very constructive suggestions, including the one from the noble Lord, Lord Skelmersdale, because at least tightening up the definition of when these measures must be applied is the absolute minimum that we should be looking for. There is a great deal to question here. I shall not repeat all of our questions, because they are already on the record, but we are not convinced by and not happy with these provisions as they appear in the Bill. We are unconvinced of the need for these clauses.
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- My Lords, as I am sure noble Lords will appreciate, these provisions form part of a package, so I should like to set out the Government’s thinking behind the gang injunctions and speak on Part 4 as a whole. I know that a lot of these issues have been raised already, but if noble Lords would bear with me I should like to give an overall flavour of them. I am aware of the concerns. All of us in this House realise that violence is unacceptable in a modern society and that the Government have a responsibility to reduce violent crime. It is important that we tackle the disturbing trend of violent crime being committed by young people for the most trivial of reasons. We know that a significant proportion of such incidents are related to the gang culture that we are seeing, and the disputes that we see between gangs over the most petty drug dealing, involving very distorted values of respect and even who lives in which postcode. That can even cause people to shoot each other; that is quite extraordinary. These incidents are not only costing the lives of the unfortunate young people who become involved but, as we know from the media, it can also affect innocent individuals who happen just to get in the way of gunfire or fighting. There was the very sad and high-profile case of 11 year-old Rhys Jones, who was killed in Croxteth Park in Liverpool. Our view is, as I have stated a number of times, that where a crime has been committed, the perpetrator should be pursued to the full extent of the criminal law. However, the deterrence created by the sanctions of the criminal law, I am afraid, does not always seem to be sufficient to prevent offences being committed. We are firmly in favour of prosecuting offences where the evidence is sufficient and the public interest is such as to support that prosecution. Of course we are committed to improving the awareness of young individuals to give them the level of social understanding that enables them to make the right decisions in life. The noble Baroness, Lady Walmsley, is absolutely right to say that there is a whole raft of important issues and that it is important for there to be ways to make these things change, but very often one cannot do that straightaway. We want to steer young people away from damaging gang culture and violent crime, but that is difficult and takes a lot of co-ordinated effort to achieve. However, it is our view that where lives are at stake—which in respect of gang-related violent crime they clearly are—police and local authorities should be adequately equipped to intervene before it is too late. That is the role of Part 4. The new provisions enable police and local authorities to apply to the courts for a new injunction to prevent gang-related violence. Birmingham City Council used injunctions granted under the inherent jurisdiction of the courts, and applied for under Section 222 of the Local Government Act 1972, to put in place similar provisions that contributed to a significant reduction in gang violence and robberies. The director of the Safer Birmingham Partnership, Jackie Russell, recently wrote to inform me that: “Injunctions were able to reduce serious harm offences by 15%, robbery by 12.5% and violent crime by 6%”. I believe that we can build on these successes—which were constrained in how they had to be applied—by giving the gang injunction a firm statutory basis and issuing helpful guidance to applicant authorities. Another key element of the injunctions is that they should attract significant public support. We know that in Birmingham there was strong public support for the approach in neighbourhoods where gangs are a problem. I received another letter, this one from Assistant Chief Constable Suzette Davenport of the West Midlands Police, which said: “The community recognised the importance of these orders. Some mothers implored us to seek an order for their son so that ‘he doesn’t end up dead’”. We believe that the community support was due in no small part to the fact that the injunctions did not criminalise the respondents. I have placed copies of both letters in the House Library. I shall now briefly explain the nature of our provisions, which are very similar to those used in Birmingham that attracted the support that I have mentioned. Before the court grants a full injunction, it must be satisfied that the two conditions set out in Clause 33 are met. The first is that the court should be satisfied that the respondent’s past conduct has included engaging in, encouraging or assisting gang-related violence. The court must consider evidence of past behaviour to a civil standard, on “the balance of probabilities”. This is a completely civil tool that does not include a criminal conviction for breach—one of the key factors behind community support in Birmingham. The second condition is that the injunction is necessary to prevent the respondent engaging in, encouraging or assisting gang-related violence, and/or to protect the respondent from such violence. It is important to refer to what is meant by “gang-related violence”, which Clause 33 establishes as, “violence or a threat of violence which occurs in the course of, or is otherwise related to, the activities of a group that … consists of at least 3 people, … has any other characteristic that enables its members to be identified by others as a group, and … is associated with a particular area”. There has been significant debate in the other place and here tonight on this matter, but I am confident that through these debates we have arrived at the best possible definition to properly focus these provisions. I am sure that there will be more discussion on this. I am very wary, from previous incarnations, of ending up talking about a definition for 14 days and dancing on a pinhead with it. I realise the importance of definitions, but one has to be sensible about them. We are aware that a number of definitions are being used in different areas by different professions. However, as noble Lords will appreciate, there is a significant difference between a descriptive definition in an academic paper and a definition that is suitably clear for the statute books. The gang problem is one that varies and evolves—we talked about this earlier, as well—and for this reason the provisions need to remain flexible. The Government do not seek to outlaw “gangs” as a concept. Groups of young people whose conduct is entirely reasonable do not need addressing. This is why we have sought to define gang-related violence. It is the violence that needs preventing, not the gang membership. Where police have intelligence that gang violence is imminent, Clause 38 enables them immediately to obtain an interim injunction without notice—for example, to prevent gang members travelling to the place where they are expected to commit an act of violence, or to prevent gang members associating with those expected to participate in the violence. The court must specify a time for which the prohibitions or requirements under the section apply. Once obtained, the injunctions are designed to prevent future violence—whether the threat is of immediate or longer-term violence—as well as undermining the strength of a gang and offering support in finding a route out of the gang to those who seek it. One can encourage gang members to seek a route out, but the noble Baroness, Lady Walmsley, is right to say that you cannot make them do so—just as alcoholics must decide that they are no longer going to be alcoholics. Clause 34 can be used to prevent gang members from entering, or meeting each other in, a particular neighbourhood or area. Preventing gang members from meeting in what they think of as their territory undermines the strength of the gang and so renders its members less capable of committing violence and intimidating others. These injunctions also seek to remove the external manifestations of gang strength, which intimidate both the wider community and other gang members, to prevent, as appropriate, a particular local gang problem or gang members going to a public place with a violent dog, wearing gang colours or bandanas or using the internet to encourage gang violence. Noble Lords will recognise that a large part of this new provision is about prevention and enforcement. However, we recognise that gang members will not change their lives if we do not offer them positive alternatives to their violent criminality—that was discussed by a number of Members of the Committee this evening—so this provision also enables courts to compel gang members to take part in mentoring, training, education schemes or even drug treatment programmes. In those things, one has to get gang members to want to make it happen. That can be done; I have seen it in the cadet forces. This is set out in Clause 34(3). To summarise, these clauses provide a vital new tool in the fight against gang violence. They will help protect communities through the effective prevention of violence and will effect long-term change by engaging with gang members and changing their behaviour. We should face the fact that that is what will make things change. It is rather like our counterterrorism policy, “Prevent”, which, by stopping radicalisation and extremism, finally does these things. I know that was a bit long, but I hope it gave a flavour of the totality.
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Lord SkelmersdaleConservative- Quote
- My Lords, I am afraid that I am going to ask the Minister to be a little longer still. As I understand the position from today’s debate, injunctions are mainly intended to be applied for specific events and, probably, for a short period. If that is the case, why is there no set maximum time to be imposed on the respondent? The current drafting appears to suggest not only that injunctions could be imposed without any time limit but that they could be reimposed repeatedly. Do the Government have a fallback position? Surely if the repeated imposition of requirements and restrictions does not prevent the respondent engaging in gang-related violence, other methods should be in the armoury. On the other side, the Minister talked briefly about renewal. How long is eligibility under Clause 33(2) expected to last? If any injunction has successfully prevented a respondent continuing to engage in gang-related violence for a period—perhaps several years—how long is he to be considered eligible for an injunction’s renewal? Despite the probing from the Liberal Benches on this procedure of injunctions, there are still many questions that we need to ask. I am not sure that we can achieve that this evening. We shall have to come back to this at a later stage in the Bill.
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Lord Mackay of ClashfernConservative- Quote
- My Lords, I want to mention some small points that may need to be looked at. First, the local authority is a possible applicant for one of these injunctions. Its place in this is not clear to me. An authority that is not referred to is the CPS. It must be in the best position to know the situation with regard to a possible prosecution. On the whole, the local authority is not concerned with major prosecutions. Although it has statutory jurisdiction in relation to various things, it does not normally have a place in the prosecution of crimes such as those contemplated here. It may be that the experiments that have taken place in the jurisdictions to which the Minister referred introduced the idea of the local authority into this type of resource. My next point is also small, but it is quite important. It relates to the service of the order on the respondent. The provisions allow an application to be made without notice and require that if it is made without notice it has to be adjourned to a second stage. I have found no precise reference in the provisions to the need for service ultimately on the respondent. If, for example, there is a power of arrest, the respondent needs to know about it. I am sure that that is achieved in some way, and it may be that court rules that presently apply to injunctions generally apply to this one, in which case the point is dealt with. My third point, which again has been referred to but which is quite important, is the situation with regard to those under 18 and the enforcement of the orders. How is it proposed that the orders will be enforced against people under 18? There is nothing worse as a tool against gang violence than for a substantial number of those affected by it to be able to say, “Well you can make these orders, but you can’t do anything about them”. That is one of the problems facing the courts in many situations in my experience. In family disputes, for example, it is often difficult to know what one can do to improve the situation. One can see how it can be made worse, but to make it better is not so easy. I see the difficulties involved. I mention those three points which, although not central, are points of detail on which it helps to focus. I regard this as a novel and important development. I am concerned about exactly how it will work and what needs to be done to make it work.
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Lord West of SpitheadLabour- Quote
- On the point made by the noble Lord, Lord Skelmersdale, we will get on to timing in Amendments 141 and 141A. Rather than go into the detail of timing now, I shall leave it until we reach those amendments. The noble and learned Lord, Lord Mackay, made some very valid points. As so often is the case, the devil is in the detail. I understand that the police will be talking to the CPS. If it can be prosecuted criminally, that is what should be done. If they find out that it cannot be done, it will be for the local authority to use the same techniques as were used in the Birmingham example. We need to explain that detail a little more clearly and we will have to write to those who have been involved in this debate with some more detail on these aspects. The same is true in terms of serving an order on these people. I understand that the court rules apply, but we need to clarify that and ensure that people are aware of it. The under-18s are extremely difficult. As I mentioned, we are negotiating with MoJ and DCSF on this issue. There is a specific example against which action can be taken but it is a narrow one. It is a problem area and I would be wrong to pretend that it is not difficult. We have to try to tackle it because so many of those involved are in that age bracket. Again, I will touch on this.
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- Baroness Miller of Chilthorne DomerLiberal Democrat
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- The Minister has mentioned Birmingham time and again as an example but, of course, the court in the Shafi case said that an ASBO should have been used but in the event for any reason that it could not have been, the court already has a power to grant an injunction. Given that judgment, why are the Government setting their faces against what the judiciary says, which after all will be the end recipient of all of this activity when the injunctions are granted, broken and so on? The courts have already held that there are powers and that ASBOs are sufficient. In the event that they are not, injunctions can already be granted. I am sorry to press the Minister, but I still have not heard from him on this. Why do we need a special sort of injunction if the courts feel that there are already sufficient powers, which is exactly what they have said?
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- Lord West of SpitheadLabour
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- My Lords, I had hoped I had explained that. I do not think that the courts and the police believe that there are sufficient powers. Of course, when you go down the ASBO route, you are making youngsters in particular criminals. I do not have an exact breakdown with me and I need to be careful with the wording of that particular case, but I talked about it earlier as Members will see in Hansard. In the package that we will write, we will include the current levers that exist and why we believe that they are not sufficient to do what we want to do.
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Baroness WalmsleyLiberal Democrat- Quote
- My Lords, I shall speak also to Amendments 141 and 141A on timing. The effect of these amendments is to require the courts to impose a specific duration on the injunctions and to prevent the renewal of such injunctions. Amendment 141 suggests a maximum of two years and Amendment 141A suggests a maximum of three years. We on these Benches are not particularly exercised about which of these is the most desirable, but we feel it is important that this House debates whether there should be some specified time limit. During the legislative scrutiny of the Bill, the Government were asked why they considered it to be necessary and proportionate to permit indefinite injunctions and whether they had considered setting out in the Bill the maximum duration of an individual injunction. The Minister in response said that the Government had considered this possibility, but had concluded that indefinite injunctions might be necessary for some respondents. According to the Minister, “it may not be possible, at the time of granting the full injunction, to assess in any accurate sense how the behaviour of the respondent may change or develop”. He also expressed concerns that injunctions of maximum duration might be sought by the courts without consideration being given to the merits of the individual case. Actually, I think he was underestimating the care which the courts usually give to such decisions. In addition, he was concerned that injunctions could not be extended at the end of their maximum length, even if it were necessary to do so. On that basis, the Minister stated that the Government were satisfied that, “leaving the question of the duration to the courts is both preferable and reasonable, thereby ensuring that applicants and courts consider in each case what duration is really warranted”. The Minister also suggested that individual rights were safeguarded by permitting applications by either part to vary or discharge an injunction and the holding of review hearings by the court. However, review hearings are not mandatory, but may be ordered by the court. During the Joint Committee hearing in another place on 26 February this year, at col. 597, the Minister stated: “It is unlikely that the courts will grant an order with indefinite conditions without setting a review hearing. The guidance will also encourage the setting of review hearings for longer or indefinite injunctions”. It would be good if they did. Clearly, therefore, the Government do not want to tie the courts’ hands and believe that time limits for reviews could encourage courts to grant injunctions for the maximum time permitted. Looking at similar injunctions or order-making powers, it appears that ASBOs may be of indefinite duration, but are subject to a minimum length of two years. Violent offender orders—VOOs—which were considered by the House during the passage of the Criminal Justice and Immigration Bill last year—are also subject to a minimum two-year and maximum five-year period, with the possibility of renewal. So we have a mixed situation with regard to similar orders. We on these Benches accept that the question of whether there should be a maximum limit on the duration of a gangs injunction is difficult. However, we are unconvinced by the Government's arguments as to why injunctions of indefinite duration are necessary. For example, justifying the need for indefinite injunctions, the Government told us that it would be difficult for applicants or the courts to assess how an individual's behaviour might change over time. In our view, such a problem could easily be resolved by the applicant seeking to vary an injunction to take account of any changes and the court holding a review hearing, at which the respondent could make submissions. The Government assert that they are concerned that having a maximum duration for a gangs injunction might lead to applicants seeking injunctions for the maximum period, without regard to individual circumstances. There is another way of looking at that. Alternatively, the availability of an injunction for a finite period may serve to focus the efforts of investigators to obtain the material that they may need to be used in evidence in a proper criminal prosecution, rather than rely on the indefinite availability of a gangs injunction. We would rather put the onus there and on that evidence-gathering. To summarise, we do not believe that it is sufficient to rely on the courts to ensure that the operation of an individual or gangs injunction is not indefinite or so intrusive that it breaches human rights obligations. We have considered comparable powers and the Government's arguments, but still we favour both a maximum duration and a prohibition on its renewal. We feel that that should come back to be looked at afresh, rather than just renewed. Those limits would operate both as an important safeguard of the right to respect for private and family life under Article 8 of the ECHR and as a discipline on the investigative and enforcement authorities to find material capable of being used as the basis for a criminal prosecution within a reasonable time. With those reasons, I beg to move.
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- Lord SkelmersdaleConservative
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- My Lords, I apologise to the Committee for jumping the gun in my questions on clause stand part which anticipated the amendment, but the Minister was good enough to say that he had taken note of what I said, so I will not repeat it.
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- Lord West of SpitheadLabour
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- My Lords, Amendments 140A and 141A would place a time limit on the period for an injunction, as has been debated—in this instance, a three-year maximum—and to make injunctions non-renewable. A similar amendment was recommended by the JCHR, as was stated in its report on the Bill, and the Government set out in our response to the report the reasons why we believe that the current provisions are most effective. Amendment 141 would place a time limit on the injunctions, but suggests that a two-year limit would be more appropriate. The Government were initially resistant to placing a limit on the length of prohibitions or requirements that could be imposed by the courts, as we considered that the courts were best placed to decide on a case-by-case basis. However, I understand the concerns behind the amendments, and I have to say that I rather agree with them. I am very happy to consider imposing a time limit in order to increase the legal certainty afforded to the respondent. I am, however, of the view that the injunctions should be renewable. That is to say that, once an injunction has come to end—whether that be because the time limit has expired or because the court has discharged the injunction—the applicant should be free to make a further application to go through the routine again for an injunction against the same respondent if that is considered appropriate. We believe that if there is evidence to suggest that a further injunction would be appropriate, the applicant should not be prevented from making a further application. For the reasons I have outlined, I am willing to table a government amendment on Report to time-limit full injunctions, but I continue to resist the part of the amendment that makes injunctions non-renewable and politely request that it be withdrawn.
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- Baroness WalmsleyLiberal Democrat
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- My Lords, I am most grateful to the Minister for his reply. It is heartening to hear that he is listening. We will certainly not press the amendments relating to the time limits. I am a little disappointed that he will not consider the renewal issue, but I suppose we should be satisfied with what we have. In the mean time, I beg leave to withdraw the amendment.
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- Baroness Miller of Chilthorne DomerLiberal Democrat
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- The purpose of Amendments 145, 150 and 151 is to ask the Government why they think it appropriate to give a local authority the power to make an application for an injunction. In my 20-something years as a councillor with local authorities, I would not have found this an appropriate power for members or officers to have been given. I cast no aspersions on local authorities at all, but the granting of these injunctions, which are a very serious matter, is better discussed by community safety partnerships. The local authority would need to be involved in those discussions and might well initiate them, but the application for an injunction should really come from the police because a standard of evidence will need to be gathered. The police are likely to be much more in the front line of this evidence gathering and it is very difficult to make the case—I will be interested to hear whether the Minister can—as to why a local authority should be the body that makes the application. I beg to move.
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- Lord SkelmersdaleConservative
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- My Lords, the noble Baroness has a point, although I am not sure that I can support her entirely. Although I understand her concerns that local authorities should not be able to act without any involvement from the police at all, I would not want to see the local authority cut out from any involvement. However, I would like to see the relationship between the local authority and the police laid out with greater clarity in the Bill. The evidence that will be needed to impose an injunction will no doubt come from both bodies. The Bill should reflect that. It would be quite wrong for the courts to impose an injunction on someone whom the police have no suspicion or knowledge of at all, but local authorities will have a great deal of relevant information about a potential respondent to which the police and the courts should have access. I hope that the Minister will be able to say more about the relevant roles that the police and local authorities will play in the application for an injunction. I repeat that both need to be involved.
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- Lord West of SpitheadLabour
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- My Lords, Amendments 145, 150 and 151 collectively seek to remove the power of local authorities to apply for injunctions in the courts. This would mean that only the police could apply for injunctions. I am afraid that I must resist this amendment, as the Government strongly believe that local authorities should have the power to apply for injunctions under Part 4 of the Bill. Section 17 of the Crime and Disorder Act requires local authorities and the police to work in partnership and indicates that a power to prevent crime and disorder—that is, gang injunction—should be available to both agencies. I agree with the noble Lord, Lord Skelmersdale, that it is essential that they are both involved. In addition, the development of working practice from Section 17 responsibilities has in many areas led to truly integrated community safety partnerships where joint work is embedded. Consequently, crime management is as much the role of a local authority as it is of the local police. Local authorities already have led on the development of the use of preventive civil orders to tackle low-level crime and anti-social behaviour. They have also developed high levels of expertise working in the county courts and are in an excellent position to partner the police in the use of gang injunctions. This is a civil power and, although the police have some experience of using civil powers such as ASBOs and civil orders obtained in the magistrates’ court, in most areas the local authority seeks orders on behalf of the partnership. I believe that that move, which has happened over the past 10 years or so, is very healthy. I was surprised to find that the noble Baroness, Lady Miller, had been involved in this area for 21 years. That is very difficult to imagine—she must have made an early start. I believe that it is critical that local authorities are able to apply for these injunctions and I ask the noble Baroness to withdraw her amendment.
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- Baroness Miller of Chilthorne DomerLiberal Democrat
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- I can accept some of what the Minister has said and I understand the reservations of the noble Lord, Lord Skelmersdale, but there are instances where this system could fall apart. Reservations have been expressed that it might be very divisive in community terms to have these injunctions. For example, they might be applied far more strongly to black members of a community than to white members. It is possible to see how this might be something that the local authority would do better to stand back from. I accept that the local authority has had a role in ASBOs. I absolutely accept that community safety partnerships and close working are necessary. But here we are looking at a completely different level of restriction of liberty. This provision could require someone to stay in their own home, to not visit any of their friends, to not keep a particular pet, to not walk their pet or to not wear certain clothes. A very different level will be required. Another of my concerns is that the gang or gang members to whom this injunction will apply when it is granted might want to appeal—for example, to their local councillor—on the grounds of evidence that they were not a member of the gang. There could be a conflict of interest between the council as a body that brings the community together and represents the community, as ward councillors should do, and the council as a local enforcement body. This is well above enforcing matters such as litter, parking and those things that councils are more liable to do. Because of the severity of the restriction on the liberty of the individual, I have grave concerns that this is not an appropriate route for local authorities. I will take further advice from the LGA and take into account what the Minister has said. In the mean time, I beg leave to withdraw the amendment.
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- Lord SkelmersdaleConservative
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- My Lords, the Minister and, indeed, the noble Baronesses must be surprised to see this amendment because—in theory, anyway—it should not be necessary. However, it is intended to probe the various penalties and procedures that will be applicable for a breach of an injunction and to protect against any possibility that a respondent might find himself sucked into the court system to such an extent that he faces going to jail without ever having been given the opportunity to defend himself with all the privileges of a more normal criminal proceeding. There is the customary lack of clarity and detail in the Bill as to what penalties the court will be able to impose for a breach of an injunction and I look forward to hearing the Minister explain the process to my satisfaction. No matter what else, there must be absolute clarity that a respondent has access to the full rights of the law including representation, access to evidence and a proper burden of proof, before matters can escalate to such levels as imprisonment. I beg to move.
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- Lord West of SpitheadLabour
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- My Lords, I welcome the opportunity to clarify what will happen should an individual become subject to committal proceedings because they are suspected of breaching their injunction. Noble Lords will be aware that breach of any civil court order can be dealt with by starting proceedings for contempt of court. Although in this case the alleged contempt is civil in nature, because the court can impose a penalty of imprisonment the Court of Appeal has, perhaps unsurprisingly, held that contempt proceedings should be treated as criminal in nature. That is in order to ensure that Article 6 criminal fair trial guarantees are respected. Of course, one of those criminal fair trial guarantees is the right to representation; another is that the breach must be proved beyond reasonable doubt. The Court of Appeal has already set aside committal orders sending individuals to prison in some individual cases because the person was not legally represented. Naturally, judges who are dealing with contempt proceedings are well aware of the need to ensure that the process is fair when an individual may face a prison term. Judges cannot force an individual to have legal representation; that is up to the individual. Therefore, the amendment as drafted would cause an anomaly by, in effect, forcing someone to be legally represented even if they did not wish to be. Courts will inquire as to whether the individual wishes such representation and, if so, the matter could in some cases be adjourned in order to obtain that. I am content that this system addresses the concern raised in the amendment. I hope that noble Lords are satisfied that this system, which is in place for breaches of other types of civil court order and which will apply to this injunction regime, already incorporates the right to representation. I therefore invite the noble Lord to withdraw the amendment.
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- Lord SkelmersdaleConservative
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- Yes, my Lords, I will withdraw this amendment. However, if a case goes to the Court of Appeal, that is by definition already too late, because the individual concerned would, I assume, already be in prison. I do not think, then, that that helps particularly. I will, as usual, study what the noble Lord has said, but I doubt that I will find the need to come back to this at a later stage.
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- Baroness WalmsleyLiberal Democrat
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- My Lords, Amendment 148 seeks to put into the Bill an annual renewal of the injunction. It is similar to the amendment that might have been moved, had he been here, by the noble Earl, Lord Onslow—but he put his in a different place, after Clause 35. However, the wording is the same. The Minister might feel that this amendment is unnecessary following the generous offer he made earlier to consider a finite time limit on these injunctions. We feel that it is still necessary, although the need for it has diminished somewhat given what he said. We should bear in mind what the noble Earl, Lord Erroll, said earlier somewhat in support of the Government’s approach—that these injunctions should be a temporary matter until something more finite can be done. If we are considering time periods of two or three years, or even longer as a maximum, it is only right that there should be an annual review because, as the Minister said earlier, the justification for having non-finite injunctions was that people could not anticipate what would happen to the behaviour of the respondent when the injunction was set. Behaviour can change, and certainly in young people it can change drastically and quickly. The Minister himself gave us an example of a young man going through a cadet programme whose behaviour was turned around in a short period of time. We know that these things can happen. Under those circumstances, if we are talking about two, three, four or five years, we still feel that there is a need for an annual review so that young people are given the opportunity to attend and to make written and oral submissions to the court that the injunction should be lifted. I beg to move.
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- Lord West of SpitheadLabour
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- Amendment 148 seeks to insert a new clause into Part 4 which, if accepted, would require the courts to review an injunction at least once a year. I understand the point that is being made here. It is essential that we ensure that individuals whose movements we are seeking to restrict are afforded the necessary safeguards when it comes to defending their civil liberties and human rights. I believe that we have already provided a number of good safeguards within Part 4 and have sought to place these in the discretion of the court, which of course is best placed to tailor an injunction. First, in Clause 35, it is made clear that the court may order the applicant and the respondent to attend a review hearing. The Government have not sought to require the court to do so as they believe that in some circumstances a prohibition or requirement will need to be in place for a significant period and that reviewing the injunction at short periods may serve only to deplete resources. Secondly, Clause 41(2) makes it clear that a respondent is entitled to apply to the court for their injunction to be varied or discharged. The application can be made at any point after an injunction has been granted. This ensures that any change in circumstances can be brought to the court’s attention for its consideration. Finally, I should make clear that although it is not set out in these provisions, the respondent does have the right to appeal any decision to the Court of Appeal. This is provided for by the County Courts Act 1984 in respect of appeals from the county courts and by the Supreme Court Act 1981 in respect of appeals from the High Court. However, I understand the concerns of the noble Baroness and, having had time to reflect on the nature of the amendments, I am willing to accept that the additional legal certainty that such an amendment would afford would be beneficial. The Government will return at Report with amendments to the effect of a mandatory annual review. I therefore ask the noble Baroness to withdraw her amendment.
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- Baroness WalmsleyLiberal Democrat
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- My Lords, with great pleasure I shall withdraw the amendment.
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- Baroness WalmsleyLiberal Democrat
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- My Lords, this amendment was proposed originally by the JCHR and it requires consultation on the guidance. Gang-related violence is defined in Clause 32(5) of the Bill but unfortunately, as we heard earlier today, there is no definition of what constitutes a gang. This was the subject of much debate in another place, as it was earlier today in your Lordships’ House. During the debates in another place the Minister agreed to consider whether a definition could be incorporated into the Bill, and we have heard similar warm words today. Given this commitment, the JCHR wrote and asked the Minister whether the Government intended to set out in the Bill the definition of a gang. The Minister replied that the Government did not intend to do so at that stage because gangs vary from city to city. We have heard a number of different definitions today. The Minister at that stage considered that the term gang was well understood and expected its ordinary interpretation to apply. In Clause 46, the Secretary of State is required to issue and publish guidance to which those who are permitted to apply for gangs injunctions must have regard. The Minister confirmed in another place that the code of practice would need to be published in draft and put before Parliament for scrutiny. In correspondence, the Minister told the JCHR that the Government were considering whether to lay guidance before Parliament before the Act enters into force. He also said that the draft guidance would be published as soon as possible and, in any event, before the commencement of the legislation. The JCHR is concerned that the power to interfere with various convention rights by imposing a gangs injunction is insufficiently defined in law to satisfy legal certainty, which of course is another feature of human rights law. The word gang is not a precise or legal term. Its potentially wide application is a problem given the broad discretion which the Bill gives to those seeking applications. So, in the interests of legal certainty, the term should be defined in the Bill. But if the Government continue to propose only to deal with the definition in guidance, such guidance should be clear and detailed and set out the boundaries of the term, including those groupings of individuals which the term will not encompass, such as, for example, protestors. It should be regularly reviewed and updated at least annually to take account of changing circumstances and evolving case law, and it should be published in draft alongside the Bill as it goes through its remaining parliamentary stages, which is now. In later correspondence with the JCHR, the Government only agreed to publish the draft guidance before the commencement of the Act, so they appear to be backtracking on their commitment in another place to allow Parliament to scrutinise the draft guidance before the Act comes into force. That is why we on these Benches are now urging the Government to reconsider. Given the significant issues which the guidance is intended to cover, it is vital for your Lordships’ House and Parliament as a whole to have an opportunity to scrutinise not only the Act but also the draft guidance, in order to understand how the two will operate in practice, and to understand whether, taken together, they are compatible with human rights standards. I beg to move.
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- Lord SkelmersdaleConservative
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- My Lords, it is quite clear at least to this Member of the Committee that the Minister has had a very good dinner, because he has been in a very accepting mood. On behalf of the noble Baroness I ask him to accept this amendment too. It is so sensible that we can hardly not support it. With so much detail of the Bill left to guidance, this amendment is critical in ensuring that the implementation of the provisions is both proportionate and consistent. I am astonished that the requirement to consult on such potentially radical powers as these provisions can provide for is not already in the Bill. I therefore strongly recommend that the Minister should accept the need for them.
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- Lord West of SpitheadLabour
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- My Lords, Amendment 149 seeks to require the Secretary of State to consult the Lord Chief Justice and other appropriate persons before publishing draft guidance on Part 4. Perhaps I should explain my understanding of how this issue came about. There was debate in the other place about whether the definition of “gang” might be set out in guidance, as the noble Baroness laid out. It was suggested that, if this were to be the case, the guidance might be given a stronger statutory basis and a greater degree of parliamentary scrutiny. As noble Lords will be aware, the definition is now set out firmly in Clause 33. Given that, I believe that it would be acceptable for guidance simply to be laid before Parliament before publication. However, because the Government do not disagree in principle with consulting relevant persons before publishing guidance, and because there is every intention that we will do so—as well as because of the weight of feeling within this place—I am happy to agree the amendment in principle, and the Government are willing to return with an amendment of this nature on Report.
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- Baroness WalmsleyLiberal Democrat
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- My Lords, the Minister is my new best friend. I thank him for his words and look forward to seeing the government amendment at the next stage of the Bill. I beg leave to withdraw the amendment.
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- Baroness Miller of Chilthorne DomerLiberal Democrat
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- My Lords, I expect that I am making a big mistake in not allowing my noble friend Lady Walmsley to move this amendment, because she is having a lot more luck than me this evening—which is all to the good, and it is because her arguments are very powerful. Amendment 152 is another amendment about definition. It would amend the definition of “violence” so that it did not specifically include violence against property, but instead meant serious violence. The final line of the clause provides that “violence”, for the purposes of these provisions, can include violence against property. We believe that the use of such extreme coercive measures, without recourse to the criminal courts, is particularly inappropriate if used to restrain not violence against people but simply property damage, or indeed the encouragement or assistance of property damage. If the concern is that property damage is used to intimidate victims of crime, either they should be deemed to fall within the threat of violence against the person for the purposes of Clause 33, or specific provisions should be made for these circumstances. We on these Benches do not believe that ordinary criminal damage is sufficient to trigger these much more extreme powers. I beg to move.
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- Lord SkelmersdaleConservative
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- My Lords, I am afraid that I cannot be quite as positive on this amendment from the Liberal Benches. I confess that I have not yet made up my mind which noble Baroness is Castor and which is Pollux. I agree that these injunctions should probably be limited to genuine gang violence, and that there is much improvement to be made to them in order to ensure that. Property damage is not only expensive but intimidating, and is certainly an aspect of gang-related behaviour that should be able to be addressed. We are talking, of course, not about the odd case of graffiti but about the sustained use of damage, whether to cars, property or anything else, that can blight a community and make life a living hell for the inhabitants. The Minister still has a little way to go to convince us, but I am not sure that this amendment is the right way to achieve what we seek.
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- Lord West of SpitheadLabour
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- My Lords, Amendment 152 seeks to remove the ability of the courts to consider evidence of violence perpetrated against property and to replace that provision with a requirement for the violence being considered to be “serious”. I am very wary of getting into the classics—Castor and Pollux, Scylla and Charybdis and things like that; it is far too dangerous territory, I would have thought—but the reason that the Government have included violence against property is so that the court may consider as evidence instances where a “violent” act has been perpetrated but nobody has been hurt or injured. I admit that this sounds fairly unusual, but it is seen surprisingly often in gang warfare; for example, an incident where it is widely reported that, in an act of intimidation, one gang member has discharged a firearm at the house of a member of a rival gang, but has not actually hurt anyone. We have instances of that. We want the court to be able to take that into consideration when considering the respondent’s past conduct on the balance of probabilities. We also want the court to consider the likelihood of similar property-related incidents occurring in the future when deciding whether it was necessary to prevent future gang-related violence under Clause 33(3). The amendment would remove both those abilities and therefore potentially limit the effectiveness of the injunction. The Government’s position is that, although aspects of the injunction are targeted at very serious violence, it is a flexible tool that can also be used to help break down gang culture. This includes using prohibitions and requirements against the “lower-ranking” gang members, who are likely to have engaged in behaviour that was violent, but not necessarily so violent that the court would consider it “serious violence”. I question whether it would be right for us to accept an amendment which could effectively allow lower-level gang members to go untouched until the point where they committed an act of very serious violence. This is not in keeping with our desire to tackle gang-related violence at an early stage where reasonably possible. I remind noble Lords that the evidential test still requires proof of past violence and the court to be satisfied that the injunctions provisions are necessary. I therefore ask that the amendment be withdrawn and that the courts be allowed to consider evidence of violence as set out in the existing provisions.
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- Baroness Miller of Chilthorne DomerLiberal Democrat
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- My Lords, I hope that in moving my amendment I covered the case where somebody shot a firearm at property. That, as I said, would fall within the category of a threat of violence against the person, because it is intimidatory. Nevertheless, I have heard what the Minister said and recognise the lack of support for the amendment, so I shall beg leave to withdraw it.
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