Lord Clement-Jones:

Moved by Lord Clement-Jones

23: Clause 4, page 12, line 8, leave out subsections (3) and (4)Member’s explanatory statementThis Amendment removes the subsections increasing the level of fines attached to FPNs, aiming to address concerns that existing notices and orders are being imposed in inappropriate circumstances.

My Lords, Amendment 23 would remove subsections that increase the maximum level of fines attached to fixed penalty notices for breach of public space protection orders and community protection notices. The core proposal of Clause 4 is to increase the maximum FPN for these breaches from £100 to a punitive £500. This represents a 400% increase in the penalty for infractions often issued without judicial oversight.

The Manifesto Club—a body which I mentioned previously and with which I have engaged extensively on these powers—rightly labels this increase as a

“grossly out-of-proportion penalty”.

We must look at the nature of the offences that these fines target. The Home Office claims that this increase shows a “zero-tolerance approach” to anti-social behaviour, but that ignores the actual activities being punished. Manifesto Club research, relying on freedom of information data, shows that the vast Majority of penalties are issued for innocuous actions that fall far outside anyone’s definition of serious anti-social behaviour. This is leading to what the Manifesto Club calls

“the hyper-regulation of public spaces”.

For instance, in 2023, Hillingdon Council issued PSPO penalties largely for idling—leaving a car engine running for more than two minutes. This affected 2,335 people, including a man waiting to collect his wife from a doctor’s surgery. Other commonly banned activities that face this grossly increased penalty include loitering, swearing, begging, wild swimming, busking and feeding birds.

The Manifesto Club has documented community protection notices that target non-harmful behaviours, which are also subject to the increased fine. Orders have been issued banning two people from closing their front door too loudly, prohibiting a man from storing his wheelbarrow behind his shed and banning an 82 year-old from wearing a bikini in her own garden. The increase in fines to £500 for these so-called busybody offences appears to be simply a form of message sending, rather than a proportionate penalty designed to resolve community harm.

The second, and perhaps most corrosive, effect of Clause 4 is that it will spark a boom in the enforcement industry and intensify the practice of fining for profit. The Manifesto Club found that 75% of PSPO penalties in 2023 were issued by private enforcement companies. These companies are typically paid per fine issued, which creates an overt financial incentive to pursue volume regardless of genuine harm or proportionality. They target easy infractions rather than the most serious offenders.

Increasing the financial reward fivefold heightens this perverse incentive to issue as many FPNs as possible for anodyne activities. Crucially, while Defra has published guidance stating that environmental enforcement should never be a means to raise revenue, the Home Office has not prohibited fining for profit for anti-social behaviour offences such as PSPO and CPN breaches, nor even formally acknowledged the issue. I have raised this many times in the House.

Rather than authorising this increase in fines, we should be prohibiting incentivised enforcement for all ASB penalties in primary legislation or statutory guidance. The system of FPNs is already heavily criticised for undermining due process. They are issued solely based on the decision of an official and do not involve the production of evidence in court. This lack of judicial scrutiny means that, when innocent people are fined for innocuous actions, they often feel completely helpless, lacking the means to appeal a decision made by incentive-driven officers.

If we are serious about addressing serious anti-social behaviour, the enforcement should focus on serious criminality and nuisance, not extracting revenue from arbitrary restrictions. We must resist measures that intensify arbitrary law enforcement and injustice. This increase in penalties must be abandoned. I therefore urge the Government to support Amendment 23 and reject subsections (3) and (4) of Clause 4. I beg to move.

My Lords, I rise to speak to my Amendments 24 and 25. In some aspects, I take a slightly different view from the noble Lord, Lord Clement-Jones, because I approve of the increased £500 penalty, provided it is for real anti-social behaviour. I accept the noble Lord’s point that there seem to have been quite a few ASBOs granted for “busybody offences”, and that is not right.

However, my concern here is making sure that the fines are properly paid. If we give the rise to £500, what will be the punishment if criminals do not pay it? Imprisonment is not important. In the words of the great capitalist Del Boy, it is “cushty”, and most criminals, from the smallest to the greatest, regard a term of imprisonment as factored into the crime. What about fines? No problem, they will simply not pay them, and with sufficient sob stories to the court, they will probably get away with a ridiculously low payment plan. Then, when they go outside and drive away in their BMW while texting on their new iPhone, that is great.

Only one thing works as proper punishment—they hate it—and gives the state and victims proper recompense: that is the confiscation of their ill-gotten gains or of any part of their property, which will cover the amount of any unpaid penalty. Of course, there are compensation orders, which can be made for most crimes, but, again, the convict will probably not pay up and nothing more will be done about it.

We must expand confiscation orders to all crimes where a penalty has not been paid, and my amendments are, I would suggest, a tiny but good example. We seem to go out of our way to make compensation orders as difficult as possible to obtain and deliver. Confiscation orders in the UK can be issued for any crime that involves financial gain, not just specific offences. They are used to take away profits from criminal activity, with the court determining the amount of the order based on the defendant’s benefit from their criminal conduct. The common crimes involve fraud, drug trafficking, theft and organised crime, but any offence where a financial element is present can trigger an order.

How do confiscation orders work? First of all, a conviction is required. Even I would agree with that. A confiscation order can be made only after the defendant is convicted of a crime. The Crown Court decides whether to issue an order after gathering information from both the prosecution and defence. The court’s goal is to recover the benefit—they stress “benefit”—the defendant gained from the criminal conduct. The court considers whether the defendant has a criminal lifestyle, which can be established by their conduct over time. The ultimate aim is to disrupt criminal activity by making the crime unprofitable and preventing future offences.

Why on earth stop with that tight confiscation concept about ill-gotten gains? If someone has committed a crime and gets a financial penalty or a fine and he does not pay up, he has benefited from that crime. He has made a financial gain in that he has saved the money he should have spent on a fine. In those circumstances, it is only just and right that the court’s bailiff can confiscate all and any property of the convict to recover the fine he has refused to pay or says that he cannot pay.

In this case, we are looking at confiscation of his goods and property up to a value of £500 plus a small administration fee. My Amendment advocates automaticity, and that is essential. We do not need all the evidence of ill-gotten gains that prosecutors have to go through to prove that the superyacht, Bentleys and five homes all over the world came from drug running or ripping off a pension fund, since we would be collecting only on a known fine imposed by a court.

Part 2 of the Proceeds of Crime Act 2002, which deals with confiscation, has 86 clauses and 2,000 hoops for prosecuting authorities to jump through before they can get their hands on criminal money or property. If noble Lords flick through the Bill to Schedule 16, they will find 39 or 40 pages of detailed amendments to that Act. I shall probably deal with a few of those amendments when we come to it. That is a huge number of amendments just to confiscate the proceeds of crime. We do not need any of that here, and I suggest that all financial penalties or fines, such as we will have in this Clause, should have an automatic confiscation order attached for failure to pay within a reasonable time. There would be no need to go back to court and no more bogus sob stories about inability to pay. Society and victims deserve that the convicted person pays his dues. My amendment would ensure that that happens.

My Lords, of course I support the Amendment from the noble Lord, Lord Clement-Jones, opposing the increases in these fines, but I think we need to go further and for a variety of reasons abolish these on-the-spot penalties per se, which is why I have tabled this Clause stand part notice.

You cannot overestimate how much public space protection orders and community protection notices trivialise what we understand to be dealing with anti-social behaviour. We have just had a long discussion about what anti-social behaviour is. These orders are part of the toolkit to deal with anti-social behaviour and they end up targeting individuals for the most anodyne and mundane activities, and banning everyday freedoms.

The use of fines has, in a way, led us to not take seriously what real anti-social behaviour is, because these fines are given out for such arbitrary, eccentric reasons. PSPOs and CPNs can be issued on a very low threshold, are entirely subject to misuse—there is lots of evidence showing that—and often criminalise, as I said, everyday activities. For example, PSPOs are often used to ban young people gathering in groups—which seems to me to be a dangerous attack on our right to assembly—despite the fact that the statutory guidance states that PSPOs should target only activities that cause a nuisance and should not criminalise

“everyday sociability, such as standing in groups”.

That is what it says, yet they are constantly used in that way and seem to be unaccountably doled out.

There are now over 2,000 PSPOs in England and Wales, and each of them contains up to 35 separate restrictions. That means that tens of thousands of new controls are being issued on public spaces all the time. As we heard earlier, they are imposed in different geographic areas, making prohibitions on different types of activities for different citizens from one place to another. You can be in one town where an activity is legal and then go to the next town and the same activity is illegal. We discussed some of that earlier.

As the noble Baroness, Lady Chakrabarti, pointed out and as Justice has drawn our attention to, the inconsistent use of PSPOs creates a “postcode lottery” for victims but also for perpetrators. Justice says that this

“undermines the rule of law by making enforcement dependent on the victim’s location rather than the circumstances”.

I hope we can send the Minister the research done by Justice and by the Manifesto Club that has already been referred to so that he can see from the freedom of information requests to local authorities just what kind of activities are being issued with PSPOs and CPNs, and therefore what these fines are being used to tackle. I assure the Committee that it is innocuous activities, not anti-social behaviour. There are councils that are banning kite-flying, wild swimming, as we have heard, and using camping stoves.

I thought it was interesting that, recently, the Free Speech Union forced Thanet District Council to scrap its imposition of a sweeping public spaces protection order that would have banned the use of foul or abusive language in a public space in the Thanet area, so you would have been able to swear in one area but not in another. I understand that it might have raised a lot of money, but that is not necessarily the same as dealing with anti-social behaviour.

Actually, the councils themselves do not do the dirty work of enforcement. Instead, they outsource that to private companies, and the noble Lord, Lord Clement-Jones, has explained so well the dangers of using these private firms. We have a geographic breakdown of the national way of dealing with anti-social behaviour, and now we have an almost feudal way of collecting fines from it. These kinds of fines mean that orders might well be issued for all the wrong reasons—for income-generating, commercial purposes to meet targets that are about raising money rather than tackling anti-social behaviour—and increasing the fines will surely only incentivise that practice further.

I urge the Minister to consider that the noble cause that the Government are associated with here is dealing with anti-social behaviour, but using private companies to fine people in such a cavalier way discredits the whole cause. It is damaging the reputation of that noble cause. There is no transparency or oversight mechanism for these companies. There is one ban that I would like to bring in, and that is fining for profit. I hope the Minister will consider at least reviewing this and looking at it closely.

My Lords, I do not intend to rehearse the arguments already put so effectively by my noble friend Lord Clement-Jones. Suffice to say that we on these Benches fully support Amendment 23, as £500 is an extortionate amount of money for the type of behaviour that fines are designed to address and will simply result in private companies making even greater profits than they do at the moment while pushing those already struggling further into debt. For these reasons, we have serious reservations about the implications of the amendments in the name of the noble Lord, Lord Blencathra.

The orders create a postcode lottery for victims. Charities warn that, in some parts of the country, orders are handed out like confetti. This undermines public trust by making enforcement dependent on the victim’s location.

Overall, the use of these powers needs to be subject to much stricter safeguards. The Government must ensure that there is proper oversight of their use and that the law is applied equally, openly and proportionately.

My Lords, I am grateful to all noble Lords who have contributed to this thoughtful debate on Clause 4 and associated amendments. The discussion has reflected the balance that must be struck between proportionate enforcement and ensuring that penalties remain effective and fair. As anti-social behaviour seems to be increasingly present on our streets, it is right that the clause is given careful consideration.

The noble Lord, Lord Clement-Jones, raised concerns in Amendment 23 about the overuse or inappropriate issuance of fixed penalty notices. Those are indeed legitimate points for consideration, and I am sure that all noble Lords agree that such powers should be exercised carefully and with a proper sense of proportion. Fixed penalty notices are designed and intended to deal swiftly with low-level offending without recourse to the courts, but they must always be used responsibly and in accordance with proper guidance. However, it seems that Clause 4(3) and (4) will help to act as a proper deterrent to anti-social behaviour, as they will play an important part in ensuring that the penalty levels remain meaningful. I look forward to hearing the Government’s thoughts on this matter.

I turn to the amendments in the name of my noble friend Lord Blencathra. We are grateful to my noble friend for his focus on practical enforcement. His Amendments 24 and 25 seek to strengthen the collection of fines by introducing automatic confiscation provisions and modest administrative charges for non-payment. It is right that those who incur penalties should expect to pay them, and that local authorities are not left to have to chase persistent defaulters at the public’s expense. We therefore view my noble friend’s proposals as a constructive contribution to the debate in order to ensure that enforcement is both efficient and fair.

The noble Baroness, Lady Fox of Buckley, has given notice of her intention to oppose the Question that Clause 4 stand part of the Bill. We respect this view, but we cannot agree to the removal of the clause. Clause 4 contains a number of sensible and proportionate measures that are designed to improve compliance and to strengthen the effectiveness of penalties. Many of these reforms build on the Criminal Justice Bill brought forward by the previous Conservative Government.

This debate has underlined the importance of maintaining confidence in the fixed penalty system, ensuring that it is used appropriately and enforced consistently. The system exists to fulfil the wider aim of upholding law and order in our communities. In these endeavours, we on our Benches will always be supportive.

I am grateful to the noble Lord, with the support of the noble Baroness, Lady Fox, for discussing and tabling Amendment 23, and to the noble Lord, Lord Blencathra, for his Amendments 24 and 25. I am grateful to the noble Lord, Lord Sandhurst, for his broad support for the Government’s approach to the main thrust of the issues, although he, like us, slightly diverges from the noble Lord, Lord Blencathra, which I will come back to in a moment.

I cannot agree with the noble Baroness, Lady Fox—I am afraid that is the nature of political life. These offences are used for things such as dog fouling, littering, vandalism and drunken, aggressive behaviour. They are not trivial or low level; they are things that impact on people’s lives, and the abandonment of the Clause would mean the abandonment of the people who are victims of those particular instances. The debate for me is around whether £100 or the £500 that we have put in the Bill is a reasonable figure. I argue to the noble Lord, Lord Clement-Jones, that it is practitioners who have said to us that the current £100 limit does not always carry enough weight to stop offenders committing further anti-social behaviour.

I also say to him that, under existing legislation, relevant agencies may already issue fixed penalty notices of up to £500 for environmental offences such as littering, graffiti or fly-posting. We expect that the prospect of a higher fine will act as a stronger deterrent, as the noble Lord, Lord Sandhurst, has said. These measures were consulted on by the Home Office in 2023, before this Government came to office, and received Majority support as an effective deterrent to anti-social behaviour. I do not know offhand whether the Manifesto Club contributed to that consultation, but the point is that a majority in the consultation accepted that the increase was necessary. Increasing the upper limit does not mean that every person breaching an order will receive a fine of £500. The figure could be lower, proportionate to the individual circumstances and the severity of the case.

Even if an individual feels their fine is not reasonable or proportionate, they can make representations to the issuing agency on receipt of the notice to make their case and give reasons why they feel the notice should not be implemented. There will be statutory guidance, updated very shortly, to emphasise the importance of using these new limits proportionately, including a recommendation that local authorities include wording on this in any service level agreement with the contractors. I hope that those reassurances assist the noble Lord and that he will not, in due course, press those amendments.

The point that the noble Lord, Lord Blencathra, has mentioned is important. It is important that individuals pay a fixed penalty notice and do not shirk their responsibilities. I hope I can reassure the noble Lord that a robust process is already in place for non-payments of such notices, including—and this is quite a hefty penalty—a 50% increase in the fine amount and referral to a magistrates’ court, which could mean further costs falling on the individual.

Confiscation orders can also involve seizure of assets, bank accounts or property, and failure to pay can lead eventually to imprisonment. It would be disproportionate to introduce automatic confiscation orders for a failure to pay a fixed penalty notice of up to £500, but the current legislation already provides for escalation to the magistrates’ court for unpaid fixed penalty notices as well as a criminal conviction and fines for persistent breaches. This ensures accountability without resorting to confiscation powers designed for more serious crimes.

I recognise where the noble Lord is coming from. He shakes his head in slight unhappiness at my response, but I think this is a reasonable approach, and the Government’s intention is that, when fines are levied, they are paid. That is the key point on which we share common ground. With that, I urge the noble Lord to withdraw his amendment.

My Lord, I thank the Minister for his reply, disappointing though it is, but that is probably a pattern that will continue as the Bill carries on.

I did not even get an acknowledgement from the Minister that there are flaws in the existing PSPO/CPN system; often, it is just busybody offences that receive fixed penalty notices. He just recited a number, at perhaps the outer edge of anti-social behaviour, which of course should attract fixed penalty notices. He also prayed in aid the fact that environmental offences can have fixed penalty notices at a higher level, but we have heard quite a lot of anecdotal evidence about those being misused. The chances are that these new higher penalties will be misused as well.

I also did not seem to get any acknowledgement that the fining-for-profit aspect of this by local government is a problem. I do not know whether the new statutory guidance the Minister mentioned will include something along those lines. I very much hope so, and that he can reassure us that there will be a reaffirmation of the need for proper democratic oversight of PSPOs and CPNs. The current guidance recommends that councils, either in full council or in Cabinet, approve these orders but that appears not to be the case currently, with all the consequences that the Baroness, Lady Fox, has outlined.

I hope that, if we are going to learn from the experience of the current anti-social behaviour powers, the Government take on board some of this debate and the points made in previous groups. We will probably return to this on Report, but for now, I beg leave to withdraw Amendment 23.

Amendment 23 withdrawn.

Amendments 24 and 25 not moved.

Clause 4 agreed.

Clause 5 agreed.

House resumed. Committee to begin again not before 8.34 pm.