Clause 2 - Closure order

Anti-social Behaviour Bill – in a Public Bill Committee am 5:15 pm ar 6 Mai 2003.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath 5:15, 6 Mai 2003

I beg to move amendment No. 17, in

clause 2, page 2, line 41, at end insert

'or as soon as reasonably practicable'.

Photo of Mr James Cran Mr James Cran Ceidwadwyr, Beverley and Holderness

With this it will be convenient to discuss the following:

Amendment No. 21, in

clause 2, page 3, line 14, after 'may', insert

'(but is not required to)'.

Amendment No. 22, in

clause 2, page 3, line 14, leave out third 'the'.

Amendment No. 23, in

clause 2, page 3, line 19, at end insert

'but the court has an absolute discretion to refuse adjournment if it considers that the public interest requires that a decision should be made as a matter of urgency.'.

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath

I can be relatively brief. Amendment No. 17 is intended to give greater flexibility. I hope that the Minister will accept this as a genuine attempt to try to improve the Bill. The Government's choice of wording here is too restrictive. Rather than matters having to be heard by the magistrates within 48 hours we suggest that it should be

''as soon as reasonably practicable.''

I will listen with interest to what the Minister has to say about that.

Amendment No. 21 falls into a similar category. Subsection (6) gives the court the power to adjourn the hearing; the amendment would add that it is not required to do so. We think that that would provide greater flexibility. I see the Minister nodding slightly: I hope that he is acknowledging that we are not trying to damage the Bill, but seeking a little more flexibility.

I shall not press amendment No. 22. The Minister said earlier that he was up at 5 am preparing for today's business—he is always extremely diligent. I first read the part of clause 2 to which the amendment is addressed in the early hours of the morning, and I thought that I had seen a typographical error, but on reading it again in the cold light of day, I realised that my initial thoughts were mistaken and that the draftsman knew better than I did.

I am sure that the Minister has spotted that amendment No. 23 is more significant. We want the courts to have absolute discretion to refuse an

adjournment if they consider that the public interest requires a decision as a matter of urgency. It comes back to my experience at the sharp end in the courts and the sort of case to which the hon. Member for Stockton, South referred on clause 1 stand part. Referring to parts of her constituency, she said that a faceless, anonymous and unknown company that owns a lot of property could put to the court all kinds of specious excuses for why a matter should not be dealt with there and then.

We are talking about serious nuisances in communities and really serious drug offenders. It seems to us that it should be made absolutely clear in the Bill that the court does not have to accept specious reasons for adjourning a hearing, whether at the instigation of a property company, or of one of the drugs suppliers or dealers. Although the court's powers are usually considered to be unfettered—unless fettered by specific legislation—it would probably help if we made it clear in the Bill that the court has the discretion to refuse an adjournment and that the court should have the public interest as its prime consideration.

The Minister will understand that amendment No. 23 is of greater substance, although I hope that he will deal also with amendments Nos. 17 and 21.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs)

When I first read the amendments, I found them rather seductive. However, I have some concerns and I hope that the Minister will answer them.

I am concerned that one can go too far the other way and not have enough safeguards, and that cases would be adjourned whenever it was thought necessary. It also occurs to me that malicious allegations could be made. Although amendment No. 23 seems a common-sense proposal, I wonder what would be the test of public interest in such cases; I am not sure what level of public interest is involved. It is a matter of great importance. If instant action needs to be taken—perhaps there are lots of drugs or arms involved and some high-profile action needed—amendment No. 23 would make a lot of sense, but it might remove the opportunity to protect the innocent.

Although I have a certain sympathy with the amendments, I am concerned that they go too far. I shall not decide my response until I have heard the Minister's reply.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

The hon. Member for Surrey Heath will be pleased to hear that I, too, found his words quite seductive.

One of the essential elements of the power is its speed in tackling the serious problem of premises that cause serious nuisance and disruption to communities. It is essential that a closure notice be endorsed by a court at the earliest opportunity.

The 48-hour period between the issuing of a closure notice and its consideration by a magistrates court has been chosen to allow for all reasonable delays. Consideration has been given to likely delays caused by Sundays, bank holidays and other public holidays, and we are clear that the courts have the capacity to consider the cases within that time. Delay would result

in an inability to provide the community with instant relief from antisocial behaviour, which is why I am not enamoured of the lead amendment.

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath

Perhaps the Minister misunderstands the intended effect of the amendment. We are not saying that the reference to 48 hours should be removed; we are trying to add the words

''or as soon as reasonably practicable'',

so that a court is not forced to bring magistrates in on a Sunday or bank holiday Monday if the closure notice was served late on Friday night. Sadly, disturbances requiring instant police action quite often happen late on a Friday or Saturday night. We are saying only that the court should have flexibility. The words

''as soon as reasonably practicable''

would still mean quite a short time scale.

We simply want to make life a little easier for magistrates. I used to practise in the city of Coventry, which includes the Minister's constituency. In large urban areas, one can usually get hold of a bench of magistrates, but in some of the smaller towns in the more remote areas, which nevertheless have drug problems, that might be quite difficult. One would not want to lose the whole basis for a closure order because the police said, ''We can't serve this now because we can't get a bench of magistrates within 48 hours.'' Would it not be helpful to include in the Bill at least the words

''or as soon as reasonably practicable''

without delaying matters?

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

I am simply worried that opening up the legislation would lead to it being ''reasonably practicable'' on too many occasions to deal with cases in periods longer than 48 hours. I have no desire to disrupt magistrates' lives unnecessarily; equally, however, I have no desire to allow situations that are disrupting people's lives to go on for unreasonable periods. I am happy to think about what the hon. Gentleman has said. We have been considering this matter for some time and, as I said, we are convinced that 48 hours is workable. If I remain convinced that that is so, I will not open up the legislation so that people can delay and frustrate the process. I need to be convinced that there is a real practical bar to dealing with these matters within 48 hours.

Photo of Mr Matthew Green Mr Matthew Green Democratiaid Rhyddfrydol, Ludlow

I am with the Minister on this point. There are different interpretations of what this part of the Bill is supposed to do. Surely the intention is that the police will act fairly strategically when they move in to close down premises. There seems to be an idea that, late on a Friday night, the police will suddenly hear about premises that they have not heard about before, and that they will rush out, slap a closure notice on them and try to drag the magistrates in over the weekend. However, we are dealing with a much more strategic matter. There will have been intelligence, and the police will probably have been involved in surveillance and consulted the local authority. They will act not at 9 pm on a Friday, but

at a time when a 48-hour time frame is entirely reasonable.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

There will be circumstances in which these issues arise. Action will need to be taken at weekends and cases taken to the court as soon as possible. I would be hugely worried about the signal that we would send if we removed the reference to 48 hours. I will look at what the hon. Member for Surrey Heath said, because he raises this point seriously and has practised in the courts. If he thinks that the provision will not be practical in some circumstances, we are prepared to consider it again between now and Report but, as I said, I have had people look at the provision and they say that it is not a problem. If I remain convinced that it is not a problem, I will stick with a provision that is clear and that sends a clear message about how quickly these matters should be dealt with and that does not allow anyone to feel that they can delay for longer than is necessary. Where evidence is sufficient and convincing, the court may issue a closure order immediately. There is nothing to stop it from acting quickly, within 48 hours, when it believes that instant closure is the best way in which to provide relief for the community.

I had to smile at what the hon. Member for Surrey Heath said. Ringing in my ears is what has been said about all the dreadful, draconian measures that I have taken through Committee in the past year or so—about how the Government are limiting the discretion of the courts and imposing mandatory requirements. Yet the hon. Gentleman is saying, ''Wait a minute. Let's not give anybody any discretion.'' I am in one of my more authoritarian modes.

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath 5:30, 6 Mai 2003

The Minister is welcome to be in authoritarian mode. Although I do not mind his making the point that he just made, I hope that he realises that amendments Nos. 21 and 23 are designed not to reduce the court's discretion, but to make clear how wide the court's discretion is. We are not trying to be more draconian than the Minister.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

I would hate the hon. Gentleman to be more draconian than me after everything that he has said to me over the past year or so.

By providing an option to adjourn for up to 14 days, we have taken account of any additional time that the court may require. The court has discretion in allowing an adjournment. It is an option to be used when the court feels that the owner or tenant will be able to stop the misuse of the premises within the period of the adjournment. That allows those who face the closure of their property to take action to convince the court that they are both willing to resolve the problem and capable of doing so before their property is removed from them for ever, or for a period of time if they are the owners. If that proves unsuccessful, the closure order can still be made.

Before Report, I will think about what the hon. Gentleman said, because I do not want to provide a wider discretion for the court to consider adjournment when that is not absolutely necessary. Bringing relief is the most importance consideration. If there is real potential for permanent relief in a relatively short time,

we need to leave that possibility open. I do not want the courts to misinterpret the provision and think that they can simply adjourn cases, which in effect, by another means, would turn a 48-hour time frame into something longer. I do not want that type of practice to spread. However, before Report I will think again about what the hon. Gentleman said. If I perceive that there is a real problem, I will table an amendment.

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath

I am grateful to the Minister both for what he said and for the spirit in which he said it. It is good of him to confirm that he will reconsider the wording. We do not want to drive a coach and horses through the Bill or provide extra scope for people to delay. We are trying to ensure that magistrates' lives are not made impossible and to acknowledge what happens at the sharp end.

As I asked in relation to an earlier group of amendments, when the Minister takes advice, will he make a particular point of talking to some Crown prosecution solicitors—perhaps in his home city—who have to deal with such cases in court? He should ask them—he might know some of them personally—about the kind of thing that lawyers on the other side will say and the excuses they will use if the Bill is left unamended.

There is always a danger in any bureaucracy—this is not in any sense a party political point—that people higher up the tree will say, ''Well, of course, Minister, your legislation must be absolutely wonderful,'' because they know that that is what Ministers like to hear. However, the Minister takes the issues seriously, and will want to try to anticipate any loopholes and close them. I am grateful to him and I am glad that he will consider the matter again before Report. At this stage, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 187, in

clause 2, page 3, line 2, after 'use', insert ', production'.

No. 188, in

clause 2, page 3, line 26, after 'use', insert ', production'.—[Mr. Bob Ainsworth.]

Question proposed, That the clause, as amended, stand part of the Bill.

Photo of Vernon Coaker Vernon Coaker Llafur, Gedling

I shall make some brief remarks about closure orders. I think that this will be a recurring theme in the Bill. To get a closure order, the case has to go to the magistrates court. Clause 2(3) states that

''The magistrates' court may make a closure order if and only if it is satisfied that each of the following paragraphs applies''.

It stresses ''and only if''. Paragraph (a) is self-explanatory—it applies if class A drugs are being used and supplied at the property. However, paragraph (b) applies if:

''the use of the premises is associated with the occurrence of disorder or serious nuisance to members of the public'',

and paragraph (c) if:

''the making of the order is necessary to prevent the occurrence of such disorder or serious nuisance for the period specified in the order.''

Paragraph (b) in particular will require evidence to be given at the magistrates court. My experience of talking to constituents and other hon. Members is that it is often difficult for police, environmental health officers, or anybody who might try to get a closure order through the magistrates court to obtain the necessary evidence, because people are terrified. Given the sort of people associated with crack houses, it will be difficult to get evidence that stands up in court. My local authority will often not take tenants to the magistrates court because it cannot get evidence against antisocial tenants.

When moving on from considering antisocial tenants to dealing with crack houses, which are often associated with gun crime, we need to reflect on the processes of evidence gathering. We have introduced all sorts of programmes to protect witnesses and to ensure that they are not intimidated when they go before the courts, but in all communities it is a serious problem to get people to come forward to give evidence to the court, to people in authority or to the police so that they can take action. We must consider how to ensure that, when applications go to court, there is sufficient evidence for the magistrates to make the closure order and that we do not witness the awful but common situation in which evidence is not presented because people are terrified of the consequences of providing it.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

My hon. Friend raises the same point as my hon. Friend the Member for Stockton, South. They are concerned to ensure that we have not set the barrier too high and that we are not rendering the powers difficult to use. I am as concerned as he is, and I have been trying to satisfy myself fully that we have not done that. I intend to continue to do that. When we say ''satisfied'', we mean that the court needs to be satisfied with regard to class A drugs. That might not be as straightforward as he might think, but we are talking about the balance of probability; not proof beyond all reasonable doubt. The police officer will have to have good reason and the court will have to be satisfied, and in order to be satisfied it will have to decide that the balance of probability is that the premises are being used for the sale, use, manufacture or production of class A drugs.

On the issue of nuisance, we expect to give guidance to lead the court in the direction of what constitutes serious nuisance and to allow professional witnesses to give evidence to that effect. My hon. Friend is right; getting near neighbours to give evidence is often the biggest barrier to taking action. Their lives are being plagued and they know that there is a massive problem in their area. Equally, they feel that if they come forward and give evidence, the consequences for them will be appalling. We must make certain that the power is usable from that point of view. It should be sufficient for guidance to say that if a local authority officer testifies to the fact that in the near area noise has been a continual problem, needles or other drug paraphernalia have been found in the near area and there has been an increase in prostitution over a period of time, the power can be invoked. Professional witnesses giving their evidence should satisfy the court enough for it to give the notice.

I want to continue to satisfy myself that that is the case, as I know that my hon. Friends will want to do. We know the size of the nuisance that exists, and we are determined to have a power for which the hurdle is set at the right level. It is not too high so that the police walk away from it because it is too difficult to use. I give my hon. Friend the assurance that I will continue to focus on the issue. I am as aware of it as he is.

Question put and agreed to.

Clause 2, as amended, ordered to stand part of the Bill.