Clause 148

Police Reform and Social Responsibility Bill – in a Public Bill Committee at 5:15 pm on 15th February 2011.

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

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs)

This is a really interesting clause. I am always suspicious of miscellaneous provisions, as everyone should be. Let us suppose that the hon. Member for Gedling, and others from Westminster city council and the GLA, say that there might be a problem if people cross the road and pitch their tents. They ask the Government, who are flushed with enthusiasm about their new seizure and forfeiture powers in the preceding provisions, what they will do about it. The Government will say, “Don’t worry, the powers will apply to the byelaws of the GLA and Westminster city council and they will be able to use forfeiture and other powers to enforce them. We will give them some teeth.” That would probably be an acceptable thing to do. I am sure that the hon. Member for Cambridge has spotted this.

I then read the provisions again and realised why the Government were so flushed and excited by their extension of powers. Such powers will not apply only to Westminster city council and the GLA, but to all local authorities in England and Wales. I did not think that that could be right. Surely we cannot have a massive extension of seizure and forfeiture powers in respect of byelaws under the heading of “miscellaneous”.

I checked things out at the House of Commons Library because I was not sure that I could be right. I was told that it was right, and that clause 148 adds a new subsection to section 237 of the Local Government Act 1972 enabling local authorities to attach powers of seizure and retention of any property in connection with a breach of a byelaw relating to the prevention and suppression of nuisance. That is an absolutely incredible extension of power. I know that the Protection of Freedoms Bill has had its First Reading. The Ministry of Justice made this comment:

“Clause 148 creates a new power for byelaws to include provision for the seizure and retention of property in connection with the contravention of a byelaw and the forfeiture of that property on a person’s conviction of an offence or contravention of the byelaw. This is an extremely broad power; byelaws by their nature cover relatively minor transgressions and the exercise of coercive powers of seizure, retention or forfeiture of property will therefore frequently be disproportionate. If the government contend that this power is necessary to promote compliance with byelaws we believe that they should explain this and give examples of how this power might be used. We further believe that statutory criteria should limit the exercise of the power and structure judicial discretion to ensure proportionality.”

I will leave that on the table, or suggest that other hon. Members do what I did—look at some byelaws. I wanted Committee members to understand the consequences of what they are passing. These are the byelaws that I came across; I have not selected them on purpose. Warwick district council has “Byelaws for good rule and government and for the prevention of nuisances”. A “musical or noisy instrument” cannot be played near a church. Presumably, if someone contravenes that near a church, the musical instrument can be confiscated. There are byelaws on “Mud, etc, falling from vehicles to the highway”. On dog fouling, the byelaw states:

“No person in charge of a dog shall allow the dog to foul a footway or grass verge”.

We all agree with that, but the power under this clause will allow the dog to be confiscated.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge 5:30 pm, 15th February 2011

I am sorry to spoil the hon. Gentleman’s fun on some of this. I appreciate his concern and how he has expressed it, but he has misinterpreted the clause. It does not say that all existing byelaws have the provisions retrospectively added into them, which I agree would be a rather unusual power. As far as I can tell, it means that byelaws can choose to include this provision. I would be surprised if any council decided to have a byelaw that said that the dog could be confiscated, and I agree that that should be struck down and removed.

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs)

The hon. Gentleman may be right, but he is extending the power of seizure and of forfeiture to every local authority in this country. The hon. Gentleman says that they may decide not to use it. I am saying that there is an enabling power tucked away in the Bill. These are the sorts of things that byelaws cover.

Some local authority areas in this country will choose to use these powers. Justice has pointed out the disproportionality of that. I am pointing out that under a clause, tucked away in the miscellaneous provisions at the end of the Bill, is an enabling power, which allows a big increase in the powers available to local authorities to enforce byelaws. That is a big deal.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

Does my hon. Friend share my view that the faith of the hon. Member for Cambridge in local authorities may be misplaced? Perhaps that is why his party supports the Protection of Freedoms Bill, and has been so vehement in its opposition to the Regulation of Investigatory Powers Act 2000—because of how local authorities have abused and misused powers that no one anticipated they would have.

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs)

That is a very good point, which speaks for itself. We will hear what the hon. Member for Cambridge has to say about it. There are lists and lists of things that are available to local authorities. It may be that a local authority has a problem with the use of motorcycles and other vehicles. Sedgemoor district council has that problem. It has a byelaw, which states:

“These byelaws apply throughout the District of Sedgemoor, unless otherwise indicated.”

On the use of motorcycles and other vehicles, it states:

“‘public pleasure ground’ includes any pleasure ground or open space to which the Council’s pleasure ground byelaws apply, as indicated in the schedule to such byelaws…No person shall ride, drive or operate any motor bicycle or other mechanically propelled vehicle not intended or adapted for use on roads”,

and so on. It gives example after example of byelaws.

I understand the legislation, but it is a weak defence to say that the measure is not retrospective. It is an enabling power that means that once the Bill is enacted, every single local authority in this country can say, “We’ve got a problem. My byelaws are such that under section 139 we can introduce a power to seize that property, because we believe it is causing a nuisance.” That may be the will of Parliament. Other hon. Members may be more assiduous than I am, because I did not spot the problem until a couple of days ago—but there it was, tucked away. I thought, “What on earth does this mean?” It is amazing what we find out when we ask.

In addition, I am not clear who can enforce the powers. We have had a long debate about “authorised persons”. The enforcement concerns byelaws, so does  that have to be carried out by a warranted police officer? If a council chooses to use the powers and the enforcement is carried out by one of its authorised officers, such an officer—not a warranted police officer—will have the power to seize motorbikes, dogs, musical equipment, or anything in the prevention of nuisance. I cannot find out whether in such circumstances an authorised officer of the council would be allowed to use reasonable force. I think that the answer will be, “Yes, authorised officers can implement those powers; but no, they cannot use reasonable force.” The Minister will confirm whether that is so.

The point is that, as an enabling power, the provision is a significant extension. In defence of the hon. Member for Cambridge, I should say that it is not retrospective; it is to do with anybody who chooses to use it in future. It is a dramatic change.

Photo of Mark Tami Mark Tami Opposition Whip (Commons)

Does my hon. Friend agree that it is odd that the Government should be introducing the Protection of Freedoms Bill, which seeks to take powers away from local authorities, while giving local authorities a massive new power under this measure?

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs)

The provision represents a significant extension of power. The Government cannot have it both ways—they say, “We are going to take away all these nasty, intrusive powers that the state makes available to local authorities”, which, as my hon. Friend the Member for Birmingham, Selly Oak has said, they sometimes misuse. The Government give authorities enabling powers with one hand and take them away with the other, because they do not trust them to use them properly. It is all incoherent.

Photo of Chris Ruane Chris Ruane Labour, Vale of Clwyd

Are we on a slippery slope towards local authority sponsored and sanctioned violence?

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs)

Perhaps the hon. Member for Cambridge can answer that. I shall leave it there, but it is worth hon. Members’ going through the clause to see what it is about.

My final point concerns a power that will cause a real problem, but which local authorities will be greatly tempted to use. If there is a byelaw about skateboarding causing a problem, local authorities will now be told, “Your authorised officers can confiscate the skateboards.”

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs)

The hon. Gentleman may be right to say, “So what?” Perhaps every local authority’s authorised officers should be able to confiscate music equipment, skateboards and dogs that are causing a problem—[ Interruption. ] The byelaws include, “dogs causing a nuisance”. We are giving power to local authorities to confiscate items of property that are causing a problem. If the dog is causing a problem, presumably you can confiscate the dog. Whether that is right or wrong—some people say it is right—all I am saying is that it is a big extension of power to local authorities. I am highlighting it to the Committee so that we can make a judgment as to whether we think it is proportionate or not.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

I think that my hon. Friend has stumbled on a simple element of coalition policy. Is it not the case that this is a coalition Government who believe in confiscation as the route to resolving some  social difficulties? Those proposals are going to be part of the new antisocial behaviour proposals, so all we are witnessing is an earlier version of the same confiscation strategy.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

Order. That is long enough, I think.

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs)

That is a good point; I think the proposals do carry on that policy. I will finish there, Mr Chope. [Interruption.] The Government Whip shakes his head.

I say again that this is a significant extension of power to local authorities, and to authorised officers of local authorities, in implementing and enforcing byelaws in their areas. That may well be what this Committee thinks is right; it may well be what Parliament considers is right, but we need to have the debate in order to decide whether it is proportionate and reasonable for that extension of powers to be made available to local authorities, should they choose to use it.

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

It has been an interesting and illuminating debate. I will make a few general points, go back to the specifics and come back to some more general points.

It is interesting that the hon. Member for Gedling’s comments have again highlighted this fear of localism—the provisions are not, apparently, about empowering local communities to take responsibility for nuisance and problems in their areas; the hon. Gentleman does not want that. There is the inconsistency as well. His Government were very centralist and very restrictive, and sought to take a very rigid approach. I am still not certain whether he is reneging on that; perhaps he has seen the light. His approach is very interesting.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

Does the Minister agree that this is about giving power to local councils and local people to make decisions? Under the previous Government, we had to wait several years for the approval of a byelaw to allow control of parking on grass verges in Cambridge. We had been campaigning for that for many years.

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

There is a clear role and responsibility for local authorities to deal with nuisance and problems in their areas. That is a central tenet that we should be looking at in terms of the active community.

I want to give further context on why this provision has direct relevance to Parliament square and to come back on a point that I made to the hon. Member for Gedling this morning about displacement issues. The power of seizure is important for Westminster city council and the Greater London authority in relation to some other areas surrounding Parliament square. Having a right of seizure is important for new byelaws, or amended byelaws that would need to come forward, to ensure that protection. If there is a displacement as a consequence of the provisions in the Bill, clause 148 will be absolutely instrumental in guiding that, and ensuring that the provisions are effective and that the provisions in the Bill and the byelaws interlock.

To reiterate, I should say that the provision relates to new byelaws and amended byelaws. In that context, there is clear oversight over the establishment of any new byelaw. It is something that takes place over many  months; there is wide consultation and the council has to consult with and seek authorisation from the Department of Communities and Local Government. There are checks and balances, and human rights issues have to be properly considered at each stage of the process.

The clause is about localism, giving discretion back to communities and sorting out problems in their areas. The approach of the hon. Member for Gedling is illuminating in its inconsistency, but we shall see. We will no doubt be tested on the clause; I hope that he will back localism, but I suspect that he will not.

Question put, That the clause stand part of the Bill.

The Committee divided: Ayes 9, Noes 7.

Question accordingly agreed to.

Clause 148 ordered to stand part of the Bill.

Clause 149 ordered to stand part of the Bill.