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Lord Whitty: Yes, but if there were a current disturbance, clearly whoever was imposing the order would want to act on a precautionary basis and could do so for up to 24 hours. He could do so for less than 24 hours as, within 20 minutes of the order having been issued, everything might have calmed down with everyone having gone home for the night. Therefore, there is no reason why the pub should not open for the normal, quiet, decent regulars the next morning. That is the only point. The provision gives a little flexibility, whereas one might have said that the place needed to be kept closed until one was absolutely sure that the incident was over.

On the other two amendments, I understand the noble Baroness's point in extremis, but in most cases the environmental health officers responsible have the training, skill and expertise for dealing with noise, public nuisance and abatement orders. Therefore, it is normal that those who have that statutory function should be specified in the Bill. While I am not undermining the integrity of the chief officers, were that to be diluted, people without such experience could have this stringent, draconian statutory power. That would not be desirable. I would not therefore be prepared to accept those two amendments.

Baroness Hamwee: My noble friend Lord Avebury made the point I would have made on the length and cancellation of the closure order. As regard Amendments Nos. 193ZB and 193ZC, I accept that environmental health officers have the expertise, but, as in other areas of local government, they are stretched. My suggestion was not to change what

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might be normal but to allow a little more flexibility. However, I hear what the Minister says and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 193ZB and 193ZC not moved.]

Clause 47 agreed to.

Clause 48 agreed to.

Clause 49 [Penalty notices for graffiti and fly-posting]:

8.45 p.m.

Baroness Hamwee moved Amendment No. 193ZD:


    Page 40, line 3, leave out subsection (1).

The noble Baroness said: In moving Amendment No. 193ZD, I shall speak also to Amendment No. 193ZE, 193ZF and 193ZG. We tabled the amendment not because we do not want to deal with graffiti and fly-posting and not because we do not believe they are serious offences—I use that expression in the generalised sense—but because we believe the Government should justify conferring on civilians the power to apply fixed-penalty notices. Perhaps the Minister could give other examples of civilians having such powers. I recall that the community support officers, whose existence has recently been brought into being by statute, have the power to detain people for up to 30 minutes. Even they, as part of the police force, do not have powers to impose fixed-penalty notices.

I am obliged to the Law Society for raising the point. It is right to question whether the piecemeal extension of police powers will improve effectiveness and enforcement. The Law Society has drawn my attention to the Home Office police operational guidance on penalty notices for disorder offences. It mentions the importance of the accurate identification of suspects and their place of residence. It states that failure to identify a suspect and his address prior to issue of the fixed-penalty notice could invalidate the enforcement process, compromise the scheme's integrity and bring it into disrepute. It also stresses the need for documentary evidence rather than "non-physical sources". Does that raise an issue when dealing with children? Without the support of a police officer, a claim of false identity will often be effective protection from the enforcement of fixed-penalty notices. Civilians do not have the power to detain an individual or to ascertain his identity.

The piecemeal extension of police powers, without regulation—the Minister may assist me on what regulation, training and so on there will be—provides the possibility of the abuse of police powers by those who do not have the professional training to use them. We have a respect for our police and our police are publicly recognisable. I would certainly welcome the police being relieved of duties which civilians can carry out. Although this is not an absolutely equivalent situation, none the less, having listened over the years to debates about, for example, whether non-uniformed officers can stop traffic, I believe that the Government need to justify why they want to deal with the matter in this way.

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Amendments Nos. 193ZE and 193ZF relate to the amount of the fixed-penalty notice. Under Clause 49(10) the amount is to be #50 and under Clause 49(11) a different amount can be substituted. I am sure we shall be told that the Secretary of State and the National Assembly for Wales will consult before they make any change to the amount. However, there would be no harm in enshrining that consultation on the face of the statute. Indeed, a requirement for consultation that goes wider than simply the local authorities would be welcome and, I believe, important.

The noble Lord, Lord Dixon-Smith, has tabled later amendments inspired, I suspect, by a number of the cable operators, and so on, who have an important concern about the costs to them of dealing, in particular, with fly-posting. We shall come to that in due course. However, I believe that they, too, need to be brought into the consultation loop.

My main point relates to the level of the penalty. The sum of #50 seems to be rather derisory and, of course, is imposed only if one can catch the person who is doing the fly-posting. Should the penalty be the same everywhere? Is this not something that each local authority should have the opportunity to put a figure on and say, "This is a real problem in our area. We want to crack down really hard"? I believe that different authorities may well have different views, and Amendment No. 193ZF would permit variations between the authorities.

Amendment No. 193ZG seeks to leave out a substantial part of Clause 51. I welcome the fact that the penalties will be payable to local authorities. I do not believe that the Minister will be surprised if I ask why receipts may be used only for "qualifying functions". Why do we not allow the money, as subsection (5) anticipates, to be used for all functions across the local authority? The provision proposes ring-fencing of what is not likely to be a very great deal of money. It may simply entail the rather bureaucratic nonsense of ensuring that certain expenditure is designated as coming out of a particular pot, or it could entail a real restriction. I suspect that not enough cash will be involved for there to be a real restriction. However, as a matter of principle, we oppose ring-fencing and I believe that it is needless in this situation.

I hope that the Minister will be sympathetic to my plea that either the fence or the ring—I am not sure which—is lifted from this money and that it is available for any use that the local authority considers proper. I beg to move.

Lord Whitty: The noble Baroness is mistaken to say that these powers are new. The terms of the Bill are based largely on those that already exist for litter and have done since at least 1990, in the Environmental Protection Act, and for dog fouling since 1996. In both cases, local authority officers—now community support officers—issue fixed penalty fines. So that is not new and the amendment would remove any reference to allowing such authorised officers to issue fixed penalty notices. Therefore, that would completely remove the new power and I would not be

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prepared to accept that because I believe that Clause 49 provides a valuable new tool to local authorities and a more coherent system whereby these issues are dealt with in the same way as litter and dog fouling.

On the second and third amendments in this group, the amount is set at #50. That relates to minor offences, whereas for major offences it is possible to resort to prosecution and a court judgment. It is also important that the level of #50 can be altered, as the noble Baroness acknowledged, following consultation by the Secretary of State or the National Assembly. We recognise the point that some local authorities would wish to be able to set the level themselves.

While that has attractions, we are consulting on the matter to some extent in the consultation paper Living Places—Powers, Rights and Responsibilities led by my department. There may be difficulties in that there would be less clarity about the level of penalty. Conceivably it could lead to displacement of activities for authorities that charged a smaller penalty and it would remove the clarity of a fixed penalty fine. Nevertheless, in the Bill we envisage the possibility, in the light of the responses to the consultation to which I have referred, that at a subsequent stage we could introduce greater flexibility for individual authorities.

Amendment No. 193ZG deals with how we use the receipts. The noble Baroness says that that is akin to ring-fencing. In one sense it is, but before this Bill, the money would have gone straight to the Exchequer so the local authorities would not have had it in the first place. So there is at least some advance. I recognise that in the long term one may wish to be more flexible, but in the short term we are faced with the fact that very few local authorities take this matter as one of their priorities.

Significant resources will be needed for enforcement and it seems sensible, at least in the initial stages, for that money to be recycled to provide support for the administration and enforcement against these offences. Again, the power exists for the Secretary of State or the National Assembly to specify other functions on which the funds could be spent. As the noble Baroness will know—I believe that she entirely approves of this—there may be an occasion when high-performing authorities would be given greater flexibility as to how they spend the receipts. For the moment we believe that the money should be spent on the area with which the offences deal.


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