My Lords, your Lordships may be satisfied that we are moving back to stuff that is in the Bill as opposed to perfectly legitimate discussions about things that noble Lords have taken the opportunity to raise. In moving Amendment 23, I will speak also to the other 12 amendments in the group. In fact, I will speak to the first eight or nine amendments on the basis that my noble friend the Minister has kindly agreed to write to me about the others—unless other noble Lords raise them.
We move on to Part 4, Chapter 2 of the Bill, which is about public spaces protection orders—a new form of order that district or unitary councils will be able to make to tackle anti-social behaviour in their area. Rather than speaking in detail to each of these amendments, it would help at this stage if I made a few general comments to introduce public spaces protection orders.
Clause 55 is the defining clause. It says that the local authority—the district council—can make a public spaces protection order in response to circumstances in which,
“activities carried on in a public place … have had a detrimental effect on the quality of life of those in the locality”.
“Public place” is defined quite widely. It does not have to be owned by the public sector. The test here, of a
“detrimental effect on the quality of life of those in the locality”,
is essentially the same test as for community protection notices.
There is one fundamental distinction between this order, the PSPO, and the other measures we have been discussing so far, such as IPNAs, criminal behaviour orders and community protection notices, which are all about the control of individuals, of people acting either individually or in a group. Public spaces protection orders are different because they are about public spaces and controls over those spaces—in other words, controls on land and what people can do on that land—so they affect everyone, or everyone in a category of persons. That has civil liberties implications, because clearly they will capture innocent people who may then be penalised and, if they breach the order, could end up facing criminal charges.
I should say that I am not against public spaces protection orders. I think that they will be extremely useful devices for local authorities, as long as they are used sensibly and proportionately. The amendments in this group and some of my other amendments are not, therefore, against PSPOs; they are probing how they will work, what safeguards are already in the Bill and what further safeguards may be needed.
There are three main concerns about PSPOs. The first is the one that I have already raised: they may remove liberties of the citizen in public spaces from the vast majority of people who have done nothing wrong and do not intend to do anything wrong, or at least nothing significant. The Bill states that the orders can be levied for up to three years—the assumption is that that will be standard—and then prolonged for another three years ad infinitum. In effect, they could become permanent restrictions on what people can do in public places and, in extremis, whether they can go there or not.
The second concern relates to the possibility that public spaces protection orders could be used to keep people out of an area, not just to control what they can and cannot do within that area. For some types of land designated precisely for access and informal recreation, public spaces protection orders will in effect nullify and negate the very purpose of the designation of that land. That part of the proposals has caused considerable alarm among organisations such as the Ramblers and the Open Spaces Society, to which the noble Earl, Lord Lytton, referred. The threat, as it is seen, is that some or all the rights under existing legislation specifically for those types of land could be removed, and that when proposals are made to remove them under the new legislation, all the existing safeguards to ensure that such rights are not removed unless absolutely necessary will be swept away in a pretty easy, arbitrary manner.
The third concern, which I think we can deal with now, is that as the Bill has gone through its parliamentary process, PSPOs have not been much scrutinised—certainly not adequately, in my view. The pre-legislative consideration of the Bill by the Home Affairs Committee dealt with PSPOs in a fairly cursory way; they got some discussion, but not a lot, as the Bill went through the House of Commons. We must scrutinise this part of the Bill carefully to see whether we can persuade the Government to make changes to prevent some local authorities taking the provision to the limit so that it goes further than is reasonable.
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To avoid having to go through all the amendments in detail, I submitted a list of the questions they cover to the Minister, who kindly agreed to look at them. The basic questions are, first: will the orders have to be based on evidence—in other words, past and present activities on the land—as well as a concern that they will happen or continue, or can they be based solely on a concern or belief that activities will occur in the future? Secondly, can a PSPO be made only on the area where evidence exists or could problems in one area be used as a reason for a much bigger area, or even a different area, being made subject to one?
A further point has arisen since I had discussions with the Minister, which is whether the conditions that can be put on a PSPO can apply only to activities and the detrimental effect identified before people say, “Let’s have a PSPO”. Is it only those activities and the detrimental effect which have been identified and defined under the first condition, in Clause 55(2)(a), or could anything be put on once those are considered? Should the criteria for making an order not take account of the downsides of making it, rather than merely considering the benefits of doing so—in other words, should the legislation have a test of balance of judgment introduced into it? Should the prohibitions and requirements not be necessary rather than just reasonable? To what extent is discrimination acceptable between different types or groups of people, or differently aged people, in setting the prohibitions and requirements in the order? This is an important part of the Bill and I hope that we will scrutinise it carefully. I beg to move Amendment 23.