§ 3.6 p.m.
The Minister of State, Home Office (Earl Ferrers)
My Lords, I beg to move that the Bill be now further considered on Report.
§ Moved, That the Bill be further considered on Report.— (Earl Ferrers.)
§ On Question, Motion agreed to.
§ Clause 72[Power of local authority to direct unauthorised campers to leave land]:
§ Lord Irvine of Lairg moved Amendment No. 118:
Page 58, line 6, at end insert:
("( ) and there is a site or sites available within that authority's area at which such persons may lawfully reside in their vehicle or vehicles.").
§ The noble Lord said: My Lords, in moving Amendment No. 118, I shall speak to Amendments Nos. 119 and 120. Clause 72, as it now stands, creates a new criminal offence; that is, unauthorised camping in a vehicle on land after notice of a direction to leave. It matters not that those residing in the vehicles have nowhere to which they can lawfully go. They must move if they are not to become criminals. The purpose of these amendments is to ensure that no direction may be made which does not specify a site to which those subject to the direction would be able to remove themselves and to ensure that no offence will be committed unless such a site is available.
§ The underlying principle that the amendments embody is not new. It has been reflected in the law for a quarter of a century. Under the Caravan Sites Act 1968, the criminal offence of unauthorised camping can be committed only in a designated area. Unauthorised camping in an area which is not designated is not a criminal offence. A designated area is one in which the Minister has decided that there are adequate camping sites for those residing in or resorting to the area. Thus the rationale is that unauthorised camping in such an area could properly be made a criminal offence because resort could be had lawfully to an available site. In areas which are not designated, unauthorised camping is not a criminal offence because, ex hypothesi, sufficient sites are not available for lawful camping. Therefore, the principle underlying that Act is that no man shall be made a criminal because he has nowhere lawfully to rest. That principle is a simple matter of common humanity and for that reason alone it should be maintained.
§ Two other considerations reinforce it. First, to make a man a criminal because he fails to move his family and himself when he has nowhere to which he may lawfully 1517 go will devalue the criminal law. A person in that position is more in need of assistance than prosecution. It will not enhance respect for the criminal law to treat such practical problems as the occasion of a criminal offence. Secondly, to force a man to move himself and his family when he has nowhere to which he may lawfully go will mean merely that he must camp unlawfully somewhere else. Far from the law helping to solve any problem of unauthorised camping, it will merely transfer it to another location at considerable public expense.
In Committee, the noble Earl was candid about the consequences when he was asked about what would happen to such persons in practice. All he could say was that:
they will camp on bits of surplus highway land and other unoccupied or derelict land for short periods and then they will move on".—[Official Report, 7/6/94; col. 1122.]
§ In other words, the effect of having a criminal offence of unauthorised camping when a person has nowhere else to go will not help to solve any problem of unauthorised camping; it will merely transfer it elsewhere at considerable public expense and in defiance of common humanity.
I ask what are the reasons given by the Government for refusing to accept the amendments. In Committee the noble Earl said:
We entirely agree that the lack of alternative accommodation for unauthorised campers must be a factor in an authority's decision whether or not it should evict those people. But there may be other equally important factors which it has to consider: an encampment may cause an intolerable nuisance to the landowner and the local community; it may create a public health nuisance; or it may constitute a hazard to traffic. These amendments pay no regard to those factors. I do not think it is reasonable that a local authority should be impotent to evict such encampments on the grounds that an alternative site in the locality cannot be identified".—[Official Report, 7/6/94, col.1121.]
§ With respect, the noble Earl's reasoning does not begin to stand up to examination. If unauthorised camping creates a nuisance or obstructs the highway, a local authority already has adequate powers to deal with those matters. In the case of highways, will the noble Earl confirm that Section 130 of the Highways Act imposes a duty on the highway authority and there is a power for every other council to assert and protect the rights of the public to the use and enjoyment of any highway, including any roadside waste which forms part of it? Does the noble Earl suggest that the authorities have insufficient legal means to achieve that objective? Will he confirm that such authorities may not only obtain an injunction to restrain but may also prosecute any person who obstructs the highway or causes any other danger or nuisance to users of it? Why are such powers not adequate?
§ In the case of other land, the noble Earl's reasoning is not even accepted, as I understand it, by the Government of which he is a member. Encampments may cause a nuisance or may damage amenity whether or not the landowner has consented to them. Will the noble Earl confirm that the Government decided that Clause 72 should not apply to encampments which have the consent of the owner of land because adequate powers exist to deal with any nuisance or harm to amenity which might arise under the Environmental 1518 Protection Act 1990 and the Town and Country Planning Act of the same year, as the Government stated in their own consultation paper?
§ Will the Minister confirm also that the powers under those Acts are also available to a local authority whether or not the encampment is authorised by the landowner? Will he explain why he now says that the legislation which the Government promoted in 1990 to deal with nuisances and harm to amenity is defective? For example, if the campers create any nuisance on land, a local authority can serve an abatement notice, non-compliance with which can lead to a level 5 fine. Indeed, that is a fine which is more severe than that proposed under Clause 72 of the Bill. What is inadequate about that?
§ The Government know perfectly well that local authorities have adequate powers to deal with any nuisance or harm to amenity which an encampment may cause. Moreover, any problem will not be solved merely by requiring persons who create a nuisance to move on. That will merely move the nuisance created elsewhere.
§ The fact remains that the offences which Parliament is being asked to create in this Bill are not related to any nuisance or harm to amenity. The noble Earl's previous reasons for rejecting the amendments—that they may be necessary to deal with nuisance or injury to amenity —therefore do not relate to the offence which the Bill creates. The offence is of unauthorised camping and notice can be served and a criminal offence committed even if the unauthorised encampment causes no nuisance or harm to amenity.
The Government have refused to entertain amend-ments to restrict the circumstances in which the provisions can be invoked to those in which a nuisance is caused despite the fact that the Minister said in Standing Committee in another place on 10th February:
There is no reason why local authorities should not continue to tolerate unlawful encampments that cause no harm or nuisance".
§ Throughout, the noble Earl has relied on the reasonableness with which local authorities may be expected to exercise the new powers which the Bill confers and he has asserted that local authorities have a proud record of tolerance towards gypsies. I would submit that that complacency not only ignores the facts; it ignores also the pernicious tendencies which this Bill will produce.
§ Hitherto, tolerance may have been secured to an extent by the existence of a duty to provide adequate sites and the difficulties of taking enforcement action under the planning legislation in the context of a national policy supporting gypsy site provision. But the failure of over 60 per cent. of all authorities to comply with their statutory duties after nearly a quarter of a century demonstrates a general lack of sympathy for gypsies reflected also in the fact that 90 per cent. of all applications for planning permission by gypsies have been refused even under a national policy framework hitherto sympathetic towards them.
§ Whatever may have been the position previously, the likelihood is that local authorities will adopt a policy of serving such notices irrespective of whether there is a lawful site to go to and irrespective of whether there is 1519 any harm sufficient to justify intervention. At the very least, once some authorities pursue an aggressive use of the new powers to drive unauthorised campers out of their areas, others will respond with a similar policy if only to protect their own areas. No authority is likely to volunteer to provide a refuge for those driven out of other areas.
§ Similarly, outside the metropolitan areas there will be two authorities in each district which will be given powers to serve notices—the county council and the district council. It will soon become known which authorities use their powers more readily and no doubt which will gain the popularity which such action may attract locally. In practice, intolerance will drive out tolerance. A national policy has always been necessary to ensure that all authorities provide an adequate number of sites.
§ The reality is that the powers will be used and not left unused, even if there is no lawful site for the person to resort to in the area and even if no harm or nuisance is being created. That must surely be what the Government intend should happen by removing the need for designation if the powers are to be invoked and by not restricting the circumstances in which notices can be served under Clause 72.
§ I conclude with regard to Amendments Nos. 118,119 and 120 by saying that the Bill invites Parliament to create a criminal offence of unauthorised camping in a vehicle on land after notice of a direction to leave. The offence proposed is one of unauthorised camping. As such, it is not directed at any nuisance or obstruction to the highway that such camping may cause. The central justification for the amendments is that no man should be made a criminal merely for remaining where he is when he has nowhere else in the area to which he and his family may move. If he and his family create a nuisance or other harm, a local authority has power to deal with that. But he and his family should not be made criminals for staying when they have nowhere to go.
§ I speak briefly to the other two amendments in the grouping —Amendments Nos. 121 and 122. When a local authority has under Clause 72 directed that persons and their vehicles should remove themselves from land, under Clause 73(1) the magistrates' court has to deal with offences arising out of non-compliance with the notice. Clause 73(1) provides that the local authority can complain to the magistrates' court which in turn may make an order requiring the removal of the offending vehicle. The order may authorise the local authority to do what is necessary to remove the vehicle.
§ The central vice of the Government's proposal is that they are legislating for orders to remove without having the least notion to where the vehicles are to be removed. As I pointed out in Committee, there is a gaping hole in Clause 73(1). Again, I invite the noble Earl to do what he did not do in Committee; namely, to explain why that gaping hole exists. Under the Bill there is no power for the local authority to detain or store what is the property of another pending its relocation. If there is nowhere in the locality to which the vehicle can be moved, what is to be done with it?
§ In Committee, I sought to ask whether there was any reason why, under such an order, a local authority may 1520 not simply dump the vehicle in a lay-by in an adjoining district, thus moving the problem on to its neighbour. I have to observe that there came no answer to those questions from the noble Earl. However, I trust that we shall receive a response today. We propose that a vehicle should only be removed to another site in which those who reside in it may stay. I ask: where else is it sensible to put it? I beg to move.
§ Lord Avebury
My Lords, I should like to take up the point made by the noble Lord, Lord Irvine, in his conclusion. It is one of the most important factors that we have to consider this afternoon and one with which we failed to deal on the last occasion. We do not want to return to the situation that existed prior to 1986 which many noble Lords will remember. At that time, local authorities moved caravans from one neighbourhood to another, leaving the citizens of the neighbouring authority to pick up the pieces. We saw much of that in my former constituency of Orpington which is on the outer edges of Greater London. It was sometimes the custom to take caravans and dump them in the county of Kent. Everyone knows that that went on around the perimeter of Greater London. Local authorities had to cope with an increasing number of gypsies camping on unauthorised land in the very built-up districts of outer London. They would put the gypsies into the neighbouring county as the simplest way of getting rid of the problem. But, of course, it did not do so; it simply created additional difficulties for the authorities in the counties which had to cope with such people.
I must insist that the Minister replies to that last question. In my view, it is the key to the whole problem. If we allow gypsies to be moved from unauthorised sites and, in addition, state that magistrates may put them somewhere else, then it is our duty as one of the Houses of Parliament to say where the courts are expected to put them. If there is nowhere else within the area covered by the authority concerned, then there is no option but for that authority to take the caravans over the boundary and dump them on someone else's land. Is that really what we want? If the Minister does not have a reply, are we not entitled to put right what seems to me to be a very serious omission before the Bill leaves this place and returns to another place?
I should like to refer to a letter that the Minister kindly sent me after the previous occasion when we debated the matter. I put certain questions to him about the duties of local authorities under the legislation regarding the homeless. I asked what was to happen to people who were living on an unauthorised site who Wére removed by the police and then placed somewhere else. I asked if they then became homeless, and, if so, was the local authority then obliged to rehouse them. I referred to the consultation paper Access to Local Authority and Housing Association Tenancies.
The Minister reminded me—although I believe I referred to the matter in Committee—that the consultation paper stated that a person should not be treated as homeless if there is suitable accommodation of any sort available for him to occupy. I asked the Minister the following question. If such a person was still inside the caravan, even though it was occupying 1521 part of an unauthorised site, would he be treated as having suitable accommodation? In his reply, the Minister said that it seemed unlikely that a gypsy family who were evicted from an unauthorised site and who had nowhere lawful to place their caravan would be regarded as having suitable accommodation available. In other words, the act of removing the gypsy family from an unauthorised site is to make them homeless within the meaning of that term according to the consultation paper to which I referred. Assuming that the family had children, the local authority would then be responsible for making alternative accommodation available to them.
Is there really much point in that? The local authority causes the gypsies to be removed from an unauthorised site, knowing that there are children in the family and knowing that they will then become responsible for offering alternative accommodation to the family. That does not seem to make much sense to me. However, before we leave the matter, it is important for us to get on record from the Minister in the course of the debate that the meaning as set out in the consultation paper is the one to be applied to gypsies who have been removed from unauthorised camps. I hope that the Minister will confirm in his response that the local authority will be obliged to rehouse such a family and offer them accommodation under the terms set out in the consultation paper.
Secondly, has any attempt been made to ascertain the view of the police on the matter? For example, do they want the duty? Are they happy about having such a duty placed upon them to remove caravans from unauth-orised sites when there is nowhere else for such people to go? What consultation has the Minister undertaken with the Association of Chief Police Officers, with the Police Federation and others who will have to carry out the Government's dirty work? Do they know their duties regarding the alternative places to which such caravans are to be towed? Has any guidance been issued to the police about where those caravans are supposed to go? Are they to be put on a roadside, are they to be taken into the area of a neighbouring authority just over the boundary, or are they to put on yet another unauthorised site and thereby incur even bigger fines which obviously the gypsy family would be unable to pay? I should like to know what the police think about that aspect of the matter.
The pernicious tendencies to which the noble Lord, Lord Irvine, referred are already beginning to manifest themselves. Moreover, with the shadow of the Bill looming over the countryside, there is much evidence to show not only that evictions are already taking place under existing law but that vigilantes are also taking the law into their own hands and exercising violence against gypsies to force them to leave unauthorised camps.
I have with me a letter from Jenny Smith who is the chair of the Labour Campaign for Travellers Rights drawing my attention to a number of recent incidents. The first took place on 16th November 1993 near the Cirencester area. Travellers were attacked with CS gas and baseball bats. One man was very badly beaten around the head and was in a very dazed condition when 1522 Jenny Smith saw him that night. There were five children on that site at the time. At the beginning of April, again near Cirencester, a woman had the spokes of the wheels of her horse-drawn vehicle broken with a sledge-hammer by local people.
A further incident, also in Cirencester, involved people in balaclavas attacking a site. One woman was hospitalised after being hit around the head with an iron bar. On 30th May 1994 at Watlington near Oxford, a grandmother, a pregnant woman with a two year-old baby, three teenagers and two adult men were attacked by local vigilantes. A bus was completely destroyed by fire, all the windows of the vehicles on the site were smashed, caravan homes were extensively damaged and most of the occupants' personal possessions were ruined and destroyed. The Government have created that kind of environment by pressing forward with the Bill. It is the kind of attitude that I believe we shall see increasingly in the coming months if the legislation is enacted.
The policy that is being replaced is one of give and take where local authorities were obliged to provide accommodation for gypsies residing in their areas. In return, the gypsies accepted back in 1968 the fact that local authorities should have additional powers to move gypsies from unauthorised encampments where adequate accommodation had been provided. They did not like it, but they accepted it as part of a reasonable bargain which would give them the long-term hope that, ultimately, adequate accommodation would be provided on a network of sites throughout the country. In such circumstances, of course, it would not matter to them if these powers had been implemented.
I wish that even at this late stage I could persuade the Minister, who is a humane man, to think carefully about what the Government are doing. Do they wish to create disorder and disruption in the lives of gypsy families when we are so near to providing a complete solution that would eliminate the problem of unauthorised campers forever? I know that it is probably futile to appeal to him in this way, but I do so nevertheless in the hope that perhaps your Lordships may think that this provision should be struck out of the Bill.
§ 3.30 p.m.
§ Lord Renton
My Lords, even if this group of amendments were right in principle, which I doubt and to which I shall say a word in a moment, it seems to me that they would be unworkable in practice and would indeed cause disappointment to the people who would be trying to rely upon them. Let us take this question of the local authority being required to refer the people to an unoccupied site, under the control, presumably, of the local authority. If we take a large county, like Hampshire, Norfolk, Lincolnshire or Kent, the nearest available site, on the county basis, may be many miles away and may already be full up if the people arrived there—so another site would have to be recommended.
But let us take the smaller unit—the district council, because in subsection (6) of this clause "local authority" includes a district council. Some district councils are very big. I happen to live in a very big one which stretches about 28 miles by 22 miles. I do not think there 1523 would be more than two sites available in that area. They might both be full. But there is a further factor. The clause, even as it stands, will create an extra administrative task for the local authority concerned. It will be a task which needs to be dealt with at the weekends.
If we add the ideas contained in these amendments to the opportunities under the clause then, of course, there would be very much more work to be done. Local authorities would undoubtedly have to keep some staff in offices, perhaps in different parts of the local authority. Indeed, they might have to have the assistance of the police in patrolling places where these incidents take place, or are reported by telephone to have taken place. Therefore, the proposal, however well inten-tioned, would be unworkable and could cause disappointments.
I do not think, with respect to the noble Lord who has moved the amendment and to the noble Lord, Lord Avebury, who has supported it, that the amendment is right in principle. It is especially not right in principle in relation to paragraph (c) of subsection (1). That paragraph refers to the occupation of any land without the consent of the owner. That means that if people intend to camp with their vehicles on private property and are determined to get somewhere to go, all that they need to do is to go onto any private property and when the owner protests say to the owner, "All you have to do is to telephone the local authority and they will find another site for us", but the local authority may simply be unable to do so. One could elaborate the practical problems, and indeed the points of principle that arise, but I really would not expect my noble friend Lord Ferrers to accept these amendments.
My Lords, the Government have made it clear during the passage of this Bill, both in this House and in another place, that they accept that the problem of unauthorised camping by gypsies arises mainly because of the shortage of authorised sites. We accept also that it is desirable that gypsies should have lawful accommodation, although we differ from the noble Lord, Lord Irvine of Lairg, on the question as to how and by whom that accommodation should principally be provided in the future.
What we do not accept is that local authorities should be the bodies in question, or that they should not have adequate powers to remove unauthorised encampments of gypsies, or any other unauthorised campers for that matter, unless and until such authorised accommodation is available. The noble Lord, Lord Irvine, said again today, as he did in Committee, that the underlying philosophy of the Caravan Sites Act 1968 was that no man should be made a criminal because he had nowhere to rest lawfully. The noble Lord made a point of saying that. He mentioned it twice today. He even said that people should stay if they are doing no harm and are not causing a nuisance. I am bound to say that I thought that was the most astonishing remark to come from a lawyer. The noble Lord, Lord Irvine, is saying, in other words, that a person who sits on someone else's land or, if one extrapolated that, sits in someone else's house, may be 1524 permitted to stay there provided he is doing no harm and is not causing a nuisance. I should have thought that is one of the fundamental problems of the law of property. There is a misconception here. It has never been the case that a gypsy could regard himself as immune from prosecution for illegal camping simply because there was no alternative site for him to go to in the immediate vicinity. Under the 1968 Act, a gypsy commits an offence as soon as he camps anywhere in a designated area which is not an authorised site. It is of no significance whatsoever if all the sites are full. Under the 1968 Act that does not permit the gypsy to camp in the area on an unauthorised site. It is no argument to say, "The sites are full, I have nowhere else to go". The fact is that the law says that it is at present an offence to camp on an unauthorised site in a designated area.
The 1968 Act imposes no constraint whatever on a designated authority to use its powers of eviction. The fact is that there are many gypsies who refuse to occupy sites which are provided by local authorities. The 1968 Act recognises that, and always has done—a point which appears to have escaped the noble Lord, Lord Irvine of Lairg, today. Under the 1968 Act it is an offence for a gypsy to camp unlawfully in a designated area. Under the Government's proposals, that would no longer be the case. It would no longer be an offence to camp unlawfully in a designated area. It would not be an offence to camp—which it is now. The gypsy will only have committed an offence when he fails to move on when he is directed to do so by the local authority. The gypsy who is given no such direction would commit no offence. That is a distinct difference from the position at present.
The Government are therefore introducing no new philosophy of criminality in this area. What we are doing in these provisions is to try to find some sensible and practical ways of enabling local authorities to control unauthorised camping and to limit the nuisance and despoliation of the countryside which at present can occur and which the system of designation has failed to address.
The noble Lord, Lord Avebury, said that we were near to eliminating unauthorised camping forever. With the greatest respect to the noble Lord, I do not think that that is so. The reason the Government's provisions are necessary is that noble Lords will find, if they look at the figures, that there have been considerable changes. In 1981 there were 3,800 gypsy caravans on council sites. The number had increased by 1994 to 6,370. That is a 67 per cent. increase. There has been a 135 per cent. increase in the number of caravans on private sites. However, the number of gypsy caravans increased between 1981 and 1994 from 9,805 to 13,794, a 40 per cent. increase. Therefore, despite the fact that more sites have been made available the number of caravans has increased.
In 1978, when the provisions were introduced, fewer than 10 per cent. of gypsies were in lawful accommodation. Now, 70 per cent. of gypsies are in lawful accommodation and 10 per cent. are on tolerated sites. The fact is that the number of unauthorised campers has increased. I find it astonishing that it should 1525 be said that because the numbers have increased local authorities should have to provide the extra places and taxpayers should have to pay for them.
Both the noble Lord, Lord Irvine, and the noble Lord, Lord Avebury, were concerned about the powers to remove people. The Clause 73 power is to remove people from the land. However, in practice, vehicles are taken to redundant highway land or to council land and gypsies are invited to move them. In practice the authorities have had few problems in using the existing powers to remove vehicles, which are similar to those in Section 11 of the Caravan Sites Act 1968. Forced evictions are rare.
The noble Lord was concerned about statutory nuisance powers. The nuisance powers available to local authorities are not adequate to deal with unauthorised camping. First, the environmental health officer has to serve an abatement notice. That can be served on the unauthorised campers. But where there is any difficulty in identifying the person responsible for the nuisance it is more likely to be served on the owner or occupier, who would not have given his permission to the unauthorised campers to be on his land in the first place. If the abatement notice was served on the unauthorised campers there might be a delay of at least 21 days to allow them to submit an appeal against the notice. If the notice was ignored by the unauthorised campers they would have to be prosecuted in the magistrates' courts, entailing yet further delay. The Government's proposal would give local authorities the power to evict unauthorised campers. That is the only effective solution to unauthorised encampment which is causing an intolerable nuisance.
The noble Lord, Lord Irvine of Lairg, is right to say that the highway authority has powers to take action in the court against obstruction of the highway. Clause 72 gives a power to direct travellers to move without first going to the court.
I turn to the question of homelessness, about which the noble Lord, Lord Avebury, was concerned. Gypsies in caravans with no legal place to camp are already homeless under Part in of the Housing Act 1985. The new proposals do not change that. But gypsies have not applied to local authorities for housing, mostly because they do not want to move into housing. We expect gypsies to continue to live as nomads and to find their own sites. In the meantime local authorities will act tolerantly.
The homelessness legislation, whether in its present form or as it may be under the Government's proposed reforms, provides a safety net for homeless households. Whether a particular household is homeless depends upon the assessment by a local housing authority under the statutory criteria. My right honourable friend the Minister for Housing, Inner Cities and Construction hopes to announce before the parliamentary Recess the Government's conclusions following the consultation to which the noble Lord, Lord Avebury, referred.
The noble Lord asked me what the police think about this question. Clause 72 is a matter not for the police but for local authorities. We are not placing a duty on local authorities to evict travellers. There is no duty on them 1526 to evict travellers. That would be a matter for the discretion of the local authority and the decision will be based on the circumstances of the individual case. We expect them, and will advise them, to continue their current policy of toleration.
§ Lord Avebury
My Lords, perhaps I may ask the noble Earl a question. Does he mean that in those circumstances local authorities will have to bring in the police to assist them in the exercise of their duties?
§ 3.45 p.m.
My Lords, it will be for the local authority to tell the people to move on. If they do not move on that will be an offence and they will be taken to court as a result of that offence.
Under our proposals in the Bill, which have worried the noble Lords, Lord Irvine and Lord Avebury, so much—and unreasonably so—all principal local authorities in England and Wales will have powers to tackle unauthorised camping by anyone in their areas. We think that it is right that it should be for the local authorities to judge when it is appropriate to use the powers. I recall with a certain amount of relief, and surprise considering his speech today, that the noble Lord, Lord Irvine of Lairg, seemed content finally to accept that point when we last debated these matters on 7th June. I remind him of what he said then, when speaking to an amendment which had been tabled by my noble friend Lord Stanley of Alderley. He said that,a local authority, with all its knowledge of its own area and its relationships with neighbouring areas, will be in a much better position than a magistrates' court to decide whether these new powers should be invoked".—[Official Report, 7/6/94; col. 1167.]That is also the Government's view. The Department of the Environment intends to issue advice to local authorities repeating the existing advice that they should use the new powers to evict gypsies with great care, particularly where they are encamped unobtrusively on council land, and that they should continue to look for ways to minimise nuisance, by providing, for instance, temporary emergency stopping places where gypsies can stay for short periods.
The amendments tabled by the noble Lord, Lord Irvine, have three serious disadvantages. First, they would place the whole onus on the local authority. It does not matter how much mess is being made or how much nuisance is being caused to people in the locality; under the noble Lord's amendment the local authority would be powerless to do anything without first providing a site. That is unreasonable. The unauthorised camper would be allowed to continue camping unlawfully with impunity and with no regard for the rights of others in the area.
Secondly, there would be a requirement for the local authority to provide more pitches than there are gypsies normally residing in or resorting to its area in order to meet the needs of every conceivable casual visitor to its area. That would impose an even more onerous burden on local authorities than did the 1968 Act. It would not be a sensible use of public funds.
Thirdly, the local authority would be required to direct to a particular site or sites all unauthorised 1527 campers, whether gypsies, New Age travellers, recreational caravanners or itinerant workers. I do not believe that any local authority could be expected to manage sites effectively on that basis.
The Government believe that the powers in Clauses 72 and 73 are necessary to enable local authorities to control unauthorised camping in their areas. We remain of the view that it must be left to local authorities to decide when to invoke the powers, and to the gypsies as to whether they wish to live on a site which is chosen by the local authority. For those reasons I hope that your Lordships will not agree to the amendments tabled by the noble Lord, Lord Irvine.
§ Lord Irvine of Lairg
My Lords, the noble Lord, Lord Renton, recognised that there may be nowhere for the gypsies to go if subject to a direction as if that were a conclusive argument against the amendments. It appears to me to be the justification for them. I am unable to see how the amendments would cause disappointment to their intended beneficiaries, because if an alternative site is not available they would have the advantage of remaining where they are. The noble Earl said that he found it surprising that a lawyer could arrive at that conclusion; namely, an entitlement in those circumstances to remain parked where they are on land which, by definition, is not their own. That portrays on the part of the noble Earl a failure to appreciate a fundamental objection of principle to the Government's proposal, namely, that it constitutes unjustifiable discrimination against those residing in vehicles.
There is no criminal offence of intentional trespass as such. The offences which the Government propose discriminate against those who trespass with a vehicle in which they reside. There is no rational ground for such discrimination. Is it, for example, to be suggested that the public interest will be better served if the same individuals were to camp unlawfully in a tent or to sleep rough? Why should individuals be subject to the criminal law for having their own mobile roof rather than trespassing under someone else's? I doubt that there is any rational basis for such discrimination.
My Lords, perhaps I may interrupt the noble Lord, although I do not like to do so. If I were to plonk my caravan in the noble Lord's garden and proceed to sit there and do no nuisance and cause no harm, does the noble Lord really say that I have a right to stay there?
§ Lord Irvine of Lairg
My Lords, plainly there would be no civil right. But we are addressing whether or not persons who trespass with vehicles should be singled out and discriminated against, as I submit, by the criminal law when the tramp who sleeps rough or camps unlawfully in a tent would not.
My overall view is that the provisions are offensive to the traditional respect and protection that our country affords to minorities. In those circumstances, I desire to test the opinion of the House.
§ 3.50 p.m.
§ On Question, Whether the said amendment (No. 118) shall be agreed to?
§ Their Lordships divided: Contents, 80; Not-Contents, 151.1529
|Addington, L.||Jeger, B.|
|Archer of Sandwell, L.||Jenkins of Putney, L.|
|Ashley of Stoke, L.||Lawrence, L.|
|Avebury, L.[Teller.]||Lester of Herne Hill, L.|
|Barnett, L.||Listowel, E.|
|Blackstone, B.||Llewelyn-Davies of Hastoe, B.|
|Bonham-Carter, L.||Longford, E.|
|Boston of Faversham, L.||Lovell-Davis, L.|
|Bottomley, L.||Mackie of Benshie, L.|
|Broadbridge, L.||Mallalieu, B.|
|Brooks of Tremorfa, L.||Mar and Kellie, E.|
|Bruce of Donington, L.||Mason of Barnsley, L.|
|Carmichael of Kelvingrove, L.||Mayhew, L.|
|Carter, L.||McCarthy, L.|
|Castle of Blackburn, B.||McIntosh of Haringey, L,|
|Clinton-Davis, L.||Merlyn-Rees, L.|
|Darcy (de Knayth), B.||Molloy, L.|
|David, B.||Monkswell, L.|
|Dean of Beswick, L.||Morris of Castle Morris, L.|
|Desai, L.||Peston, L.|
|Donaldson of Kingsbridge, L.||Peterborough, Bp.|
|Dormand of Easington, L.||Rea, L.|
|Eatwell, L.||Richard, L.|
|Ewing of Kirkford, L.||Robson of Kiddington, B.|
|Falkender, B.||Sainsbury, L.|
|Fitt, L.||Seear, B.|
|Gallacher, L.||Serota, B.|
|Gladwyn, L.||Shaughnessy, L|
|Gould of Potternewton, B.||Stallard, L.|
|Graham of Edmonton, L.||Stoddart of Swindon, L.|
|Gregson, L.||Taylor of Blackburn, L.|
|Grey, E.||Thomson of Monifieth, L.|
|Harris of Greenwich, L.||Tordoff, L.|
|Haskel, L.||Turner of Camden, B.|
|Hilton of Eggardon, B.||Wallace of Coslany, L.|
|Hollis of Heigham, B.||White, B.|
|Howie of Troon, L.||Wigoder, L.|
|Hughes, L.||Williams of Elvel, L.|
|Irvine of Lairg, L.||Williams of Mostyn, L.|
|Aberdare, L.||Cadman, L.|
|Addison, V.||Campbell of Alloway, L.|
|Alexander of Tunis, E.||Campbell of Croy, L.|
|Allen of Abbeydale, L.||Carnock, L.|
|Allenby of Megiddo, V.||Chalker of Wallasey, B.|
|Annaly, L.||Charteris of Amisfield, L.|
|Annan, L.||Chelmsford, V.|
|Arran, E.||Congleton, L.|
|Ashbourne, L.||Courtown, E.|
|Astor, V.||Cox, B.|
|Balfour, E.||Craigavon, V.|
|Barber, L.||Cranborne, V.|
|Belhaven and Stenton, L.||Cumberlege, B.|
|Beloff, L.||Dacre of Glanton, L.|
|Blatch, B.||Davidson, V.|
|Blyth, L.||Dean of Harptree, L.|
|Boardman, L.||Denton of Wakefield, B.|
|Borthwick, L.||Dilhorne, V.|
|Boyd-Carpenter, L.||Dixon-Smith, L.|
|Brabazon of Tara, L.||Eden of Winton, L.|
|Brentford, V.||Ellenborough, L.|
|Brigstocke, B.||Elles, B.|
|Brougham and Vaux, L.||Elphinstone, L.|
|Bruntisfield, L.||Elton, L.|
|Burnham, L.||Erne, E.|
|Burton, L.||Faithfull, B.|
|Butterworth, L.||Ferrers, E.|
|Buxton of Alsa, L.||Fraser of Carmyllie, L.|
|Fraser of Kilmorack, L.||Murton of Lindisfarne, L.|
|Gainford, L.||Nelson, E.|
|Gainsborough, E.||Northesk, E.|
|Gardner of Parkes, B.||Oppenheim-Barnes, B.|
|Gibson-Watt, L.||Orkney, E.|
|Gilmour of Craigmillar, L.||Orr-Ewing, L.|
|Gisborough, L.||Oxfuird, V.|
|Goschen, V.||Park of Monmouth, B.|
|Gray of Contin, L.||Pearson of Rannoch, L.|
|Gridley, L.||Peel, E.|
|Hailsham of Saint Marylebone, L.||Pender, L.|
|Halsbury, E.||Peyton of Yeovil, L.|
|Hanworth, V.||Platt of Writtle, B.|
|Harding of Petherton, L.||Rankeillour, L.|
|Harmar-Nicholls, L.||Rawlinson of Ewell, L.|
|Hayhoe, L.||Renton, L.|
|Hayter, L.||Renwick, L.|
|Henley, L.||Rodger of Earlsferry, L.|
|Holderness, L.||Roskill, L.|
|HolmPatrick, L.||Saltoun of Abernethy, Ly.|
|Howe, E.||Seccombe, B.|
|Hylton-Foster, B.||Selborne, E.|
|Ironside, L.||Shannon, E.|
|Jellicoe, E.||Simon, V.|
|Johnston of Rockport, L.||Simon of Glaisdale, L.|
|Kimball, L.||St. Davids, V.|
|Kinloss, Ly.||Stanley of Alderley, L.|
|Lauderdale, E.||Stedman, B.|
|Long, V.||Stockton, E.|
|Lucas, L.||Strange, B.|
|Lyell, L.||Strathclyde, L.|
|Lytton, E.||Strathmore and Kinghorne, E.|
|Mackay of Ardbrecknish, L.||[Teller.]|
|Mackay of Clashfern, L. [Lord||Sudeley, L.|
|Macleod of Borve, B.||Terrington, L.|
|Manton, L.||Thomas of Gwydir, L.|
|Mar, C.||Thurlow, L.|
|Marshall of Goring, L.||Trumpington, B.|
|Merrivale, L.||Tugendhat, L.|
|Mersey, V.||Ullswater, V. [Teller.]|
|Miller of Hendon, B.||Vaux of Harrowden, L.|
|Milverton, L.||Vivian, L.|
|Montgomery of Alamein, V.||Wakeham, L. [Lord Privy Seal.]|
|Mountevans, L.||Walton of Detchant, L.|
|Mountgarret, V.||Wise, L.|
|Mowbray and Stourton, L.||Wynford, L.|
|Moyne, L.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 4 p.m.
§ [Amendments Nos. 119 to 122 not moved. ]
§ Clause 75[Repeal of certain provisions relating to gipsy sites]:
§ [Amendment No. 122A had been withdrawn from the Marshalled List]
§ Lord Irvine of Lairg moved Amendment No, 123:
Page 60, leave out subsection (1) and insert:
§ The noble Lord said: My Lords, Clauses 72 to 74 of the Bill can perfectly well co-exist with a continuing duty on local authorities to provide sites and the Secretary of State's power to direct them to do so. This amendment therefore is designed to ensure that the duty to provide sites continues. There are three main reasons. First, in the absence of such a duty there will be no further significant public provision of sites and the likelihood is that some existing public sites will close. Secondly, there is no realistic prospect of gypsies themselves providing sufficient sites, as the 1530 Government suggest. Thirdly, without such a duty there is no real prospect of any solution to the practical problems of site provision and unauthorised camping.
It is true to say that if the duty is repealed, local authorities will retain a power to provide sites. The noble Earl said in Committee that it would be entirely a matter for local authorities to decide whether and where to provide sites. He said that the Government did not want to see the end of provision from public funds. This is an approach which does not fit with what the Government propose or with what other Ministers say. In another place, the Minister, Mr. Maclean, said:
we believe the time has come to call a halt to caravan site provision at public expense and, instead, to encourage gypsies to establish their own sites through the normal planning system". —[Official Report, Commons, Standing Committee B, 10/2/94; col. 709.]
That is Mr. Maclean's position. Is it the noble Earl's position? In replying to the debate on Second Reading of the Bill in your Lordships' House, the Minister of State, the noble and learned Lord, Lord Fraser of Carmyllie, said that there was now,
a reasonable level of public provision. The steps we have taken to encourage more gypsies to establish their own sites will, we trust, make up for the shortfall".—[Official Report, 25/4/94; col. 509.]
§ I submit that whatever the noble Earl may believe, the Government, in truth, want public authorities to have no further role in the provision of sites. Whatever members of the Government may now say, that will be the inevitable practical consequence of their own proposals. There will be no statutory duty to make adequate provision; there will be no central grants for the capital expenditure involved; there will be no national pressure from the Government for authorities to provide an adequate number of sites, whether by means of directions or otherwise, and the incentive to provide sites in order to obtain the powers available on designation will be removed.
§ There are normally no votes or popularity to be had locally in providing sites. Frankly, it is often an unpopular task. There are many other pressures on the budgets of local authorities which have greater appeal. At best, any new public provision will be on a small scale compared with what has hitherto been achieved.
§ Any new public provision, therefore, will be wholly inadequate to meet the needs which now exist. At best, if the Bill passes in its present form, any new public provision will be on a tiny scale compared with that which has hitherto been achieved. That has been proved by experience. It was recognised by all parties in Parliament in 1968 that the existence of that power to provide sites had proved insufficient of itself. It was for that reason that a duty to exercise the powers local authorities already had was sensibly imposed by the 1968 Act.
§ Moreover, the noble Earl can give no convincing assurance that, in the absence of a duty on public authorities, existing public provision will not be lost, aggravating the shortfall in sites. There will be no requirement for authorities to keep existing sites open. There will be no duty to do so. If they run at a loss—as well they may—or if they are unpopular locally, as undoubtedly many are, there will be every incentive to close them. The reality will be that, in the absence of a 1531 duty on local authorities to provide sites, there will be no additional public provision of any significance and the likelihood is that some existing public sites will close.
§ What hope is there, then, of those in need of sites providing an adequate number of them? They have certainly not done so, notwithstanding the Government's encouragement and the failure of over 60 per cent. of local authorities to fulfil their duties hitherto. The Government's only attempt to support the suggestion that they may solve the problem has been to make the point that private site provision has increased at twice the rate of council site provision since 1981 —a statistic which the noble Earl mentioned in a letter to the noble Lord, Lord Avebury, and of which he was good enough to send me a copy. It is a statistic which he described as telling.
§ That statistic must be related to the low base rate from which it is taken. Such a statistic says absolutely nothing about the actual numbers involved. When the noble Earl comes to reply, will he confirm that, notwithstanding the failure of over 60 per cent. of all local authorities to perform their statutory duties in the period between 1981 and 1992—the period referred to in the Government's consultation paper—over 37 per cent. more sites in absolute numbers were provided by local authorities than by others. Will the Minister confirm that that figure would have been that much greater if public authorities had performed their duties as they ought? Notwithstanding the deplorable failure of public authorities to comply with the law, is it not true that public site provision has always been the main source of supply?
§ There can be no doubt that for many years there has been considerable encouragement for private site provision, as the noble Earl accepted in Committee. But between 1981 and 1992 the number of caravans on private sites increased by only 1,600. There is every reason to continue to encourage such provision. But many gypsies cannot afford to provide their own sites and there is little which others do to cater for them except local authorities under a duty to act.
§ So let us look not at the misleading statistics about the rates of increase but at what matters: namely, numbers. The simple fact remains that private site provision has only produced sites for about 150 caravans a year. In 1992, however, there were 4,500 caravans on unauthorised sites. Therefore, at the rate of private provision that has been achieved, in practice it would take about 30 years to provide enough sites merely to meet the requirement which already existed in 1992. But in fact it is likely to take far longer for such private provision to meet the need for lawful sites, if it is ever achieved, for three main reasons.
§ What I desire to emphasise first is how the Government's planning policies have changed, and changed adversely, to the interests of the gypsies, despite what was said by the noble Earl in Committee. I desire to take the opportunity to spell this out. Planning policies have become less accommodating so that even if a gypsy has the resources to provide a site for his 1532 family, or others, he will find it more difficult than it has been to do so lawfully. The rate of provision is therefore likely to reduce in any event.
§ The second point is that the number of separate gypsy households requiring sites is likely to increase as existing families grow up. The third point is that even this calculation assumes that there will be no loss of public provision, which is likely as the Government's proposals become law.
§ There is no realistic prospect that gypsies will be able to provide the necessary number of lawful sites themselves. The Government may trust to private provision to make up the present shortfall, but there is no realism about that. There is no rational basis for their trust whatsoever. If the Government take issue with that conclusion, the noble Earl should tell the House, when, if the Bill becomes law, he has been advised that an adequate number of sites for those residing in or resorting to all areas will be provided. I am bound to ask: if the Minister has had no advice, why not? If he has had advice, what has it been?
§ There is humbug at the heart of the Government's policy. This humbug is not simply that they must know that what they are suggesting is unrealistic: as a solution to the problem of unauthorised sites; it is also that at the same time as they suggest that private site provision is the solution on which we should rely they are making such provisions more difficult by altering national planning policies.
Noble Lords might have been forgiven for thinking that the noble Earl was suggesting that in that circular the Government had eased the difficulties of obtaining planning permission for gypsy sites. The truth is the opposite. Before the circular, as the Government's consultation paper put it,
gypsies enjoy[ed] a privileged position in the planning system".
§ The avowed purpose of the circular was to remove that.
§ I ask the noble Earl to confirm these facts. Previously, was it not recognised that it was necessary to accept such sites, even in areas of open land where there are land use policies severely restrictive to development such as green belts and areas of outstanding natural beauty? The new circular specific-ally withdrew that advice.
Is it not the policy that as a rule it will not be appropriate to make provision for gypsy sites in such areas? That is what the circular says. Given that that is the case, I should be grateful to the noble Earl if he could explain how he came to write in the letter to the noble Lord, Lord Avebury, to which I have referred in the context of gypsy sites that,
the circular does not change the Government's existing policy on development in the Green Belt"?
§ It plainly does.
Moreover, had not the Secretary of State also declared in that recent circular that,
whilst gypsy sites might be acceptable in some rural locations, the granting of permission must be consistent with agricultural, archaeological, countryside, environmental and Green Belt policies".
Is not the likelihood of many new sites being consistent with all such development plan policies remote—particularly if businesses are to be run from the site on which their caravans are stationed as many gypsies prefer? Moreover, have the Government not now explicitly abandoned earlier advice that,
the special need to accommodate gypsies—and the consequen-ces of not accommodating them—should be taken into account as a material consideration in reaching planning decisions"?
§ So is it not apparent that the Secretaries of State will no longer recognise these factors as significant in favour of the grant of permission, notwithstanding any conflict with planning policy?
Against that background, which is now patently more hostile to applications for planning permission for gypsy sites, I should be obliged if the noble Earl could explain in terms the quite extraordinary statement that he made in his letter to the noble Lord, Lord Avebury, which he allowed me the advantage of reading, that,
we expect the Circular to encourage more private applications and thus to increase the number of permissions which are granted".
§ How can it possibly be the case that a less favourable national planning policy than that under which 90 per cent. of all gypsy site applications were refused will result in more planning permissions being granted?
§ No doubt the noble Earl may say that the Department of the Environment will look at plans to see whether regard has been had to the needs of gypsies in formulating planning policies. But is he suggesting that that department has hitherto not done so? In the absence of any duty to provide sites which stimulated allocations and plans, what assurance can be given that any greater weight will be given to gypsy needs than hitherto?
§ If the Secretary of State were seriously concerned to secure that gypsy needs were met in planning allocations, he would publish targets for site provision as part of his strategic planning guidance in just the same way as he publishes targets for dwelling provision for the settled community. He of course has no intention of doing any such thing. It must be obvious that plan making will not provide more sites when the Secretary of State's planning policy is more hostile; when he has withdrawn the privileged position that such sites enjoyed in the planning system—a provision which he expressly described in the consultation paper; and when the duty to provide sites is repealed. The only charitable explanation for these extraordinary suggestions and the statements emanating from the noble Earl on planning policy is that the Home Office has not read or has not understood what the Department of the Environment has published.
§ There is no public support for the abolition of the duty on local authorities. Faced with no such support the noble Earl said in Committee that the Government decided to proceed with their main proposals because they are committed to reducing unauthorised camping. But the fact is that without such a duty there is no real prospect of any solution to the practical problems of site provision and unauthorised camping. In the absence of such a duty there will be no further significant public provision of sites; the major source of new sites will dry up; and the likelihood is that some existing public sites 1534 will close. There is also no realistic prospect of gypsies themselves providing sufficient sites as the Government suggest.
§ The substance is that the suggestion of private site provision is a smokescreen. Had the Government wanted to encourage such provision, they would have made planning policies more accommodating to such proposals, not more hostile. In truth, what the Government rely on to deal with a social problem is the unique imposition in the area of trespass of criminal sanctions. The real effect of the legislation, which they dare not openly avow, is to make those who have no lawful place to reside in their vehicles disappear through the imposition of criminal sanctions.
§ The wider use of criminal sanctions for unauthorised camping makes it all the more necessary that the duty to provide sites remains and is not repealed, so that families are less likely to be made criminals because they have nowhere lawfully to live.
§ I now turn to Amendment No. 124. The purpose of this amendment is for the Government to retain their existing statutory powers to make grants. That power has been a key element of the public policy that has been followed over the past 15 years. It was adopted following a recommendation by Sir John Cripps in his report on gypsy accommodation.
The noble Earl said in Committee:
The grant has been available now for over 15 years and what was intended as an incentive has turned into a dependency".—[OfficialReport, 7/6/94; col. 1188.]
§ The situation has never been one of avoidable addiction. It is simply one of the need for such grants. Not only are gypsy sites an unpopular competitor for capital expenditure, but their provision is likely to be unremunerative without that. As the noble Earl confirmed in Committee, it has been found to be the case that the costs of site provision have not been financed from rents and rates. Without a duty to provide sites and without financial assistance with the capital expenditure involved, the policy to provide an adequate number of sites would not have progressed to the extent that it has. Understandably, the Government took the view that the rate of grant for capital expenditure should be 100 per cent.
The grants represented a recognition of the national interest in ensuring that gypsies should be satisfactorily accommodated. In a circular that is still in force, the Secretaries of State for the Environment and for Wales stated that,
it is in the national interest that gypsies should be satisfactorily accommodated: the total amount of the grant is therefore being found from central government voted expenditure and not piecemeal from housing investment programme allocations to individual authorities".
§ With respect, I think the noble Earl misunderstood in Committee my questions on this matter, so I will repeat them. Will he be good enough to reveal to the House, when the Government consider that it ceased to be in the national interest that gypsies should be satisfactorily accommodated so that one of the main reasons for making grants has disappeared? On the other hand, if the Government consider that it is still in the national 1535 interest that gypsies should be satisfactorily accom-modated, the noble Earl will no doubt tell the House why the Government are proposing to abolish the powers that they have to promote the national interest.
Having listened carefully to the noble Earl in Committee, I am not clear whether the Government's objection to the present power to make grants is that it is exercised and therefore costs money, or that it is not exercised enough and therefore has not cost more. Despite his statement that authorities had become dependent upon such grants, the noble Earl also thought it right to explain to the Committee that as,
local authorities have not taken up the 100 per cent. grant which was available for these people … over the past 15 or 20 years, there is no point in continuing that provision".—[Official Report, 7/6/94; col. 1128.]
§ If the problem is that not enough authorities have taken advantage of the grants available, the reason and the solution are obvious. The reason is that over 60 per cent. of authorities have failed to comply with their statutory duty to provide adequate sites and accordingly have not made application for grants to assist them to do what they should have done. The solution, as was said in Committee, is for the Secretary of State to direct them to perform their duties.
§ The Government have complained of the cost of these grants; namely, £56 million between July 1978 and August 1992—£4 million or £5 million a year. Complaints about expenditure on that scale in respect of an important social problem are quite unconvincing. A sum of £4 million or £5 million or so a year pales into insignificance when placed against the support that the national taxpayer provides each year for social housing for the settled population of the country. Should the noble Earl refer to the cost of the grants, I would invite him to inform us of the cost to the national taxpayer of support for all forms of social housing for the settled community. For example, did not local housing authorities alone receive over £4 billion—not £4 million —in subsidy from 1991 to 1992? What proportion does the amount of grants paid on gypsy site provision bear to the total amount of support provided by the national taxpayer for all forms of social housing?
§ I suggest that to complain of the amount spent— though it lives unconvincingly with the proposition that the local authorities are not taking up the grant, which is some £4 million to £5 million a year—is to lose any reasonable sense of proportion. Moreover, the Government's policy is likely to lead overall to more public expenditure: in moving gypsies from place to place; on those in prison for failing to pay fines; and in having to deal with the unfortunate consequences for the children and families that the new approach will undoubtedly cause.
§ Under the present arrangements the Government have a discretion on how much grant, if any, to pay. If the existing amount is unjustifiable, why is it not reduced in the exercise of the Secretary of State's discretion? How can the amount that the Government have decided to spend as a matter of discretion justify repealing and wholly removing the power that they have been exercising? Do the Government not trust themselves to act sensibly?1536
§ The Government propose to repeal the power to make any grant at all. The result will be that any capital expenditure on sites by local authorities will now have to compete with other demands on their limited capital resources. It is a competition that the sites will no doubt lose in the absence of any duty to provide sites and the general unpopularity of such expenditure. Unlike other forms of social housing, there will be no power for an exchequer contribution to public provision.
§ I suggest to the House that the proposed repeal is the clearest possible indication that the Gavernment no longer consider that there is a national interest in the provision of adequate accommodation for gypsies. Taken with the proposed repeal of the duty to provide sites and the hardening of planning policy, it is the clearest possible indication that there is no political will to achieve any realistic solution to the practical problem of site provision.
§ This is a mean spirited repeal. It is a statement of the Government's determination to rid themselves of any practical responsibility for the solution of a social problem and to treat that problem as a problem only of public order. It is lamentable that the Government consider that the proper agents for the solution of social problems are ultimately the police and not the public authorities. I beg to move.
§ 4.30 p.m.
§ Lord Avebury
My Lords, there is an alternative explanation for the Government's conduct. It is not that they believe that gypsies should be left to sink or swim or that they are not interested in whether or not adequate accommodation is provided throughout the country for caravans to be stationed lawfully. The. Government know what problems occur and what troubles arise with the settled population wherever there are unauthorised sites. They get masses of letters from MPs whose constituents are annoyed by the nuisance, dirt and other unsavoury aspects of unauthorised sites in their immediate neighbourhood.
Obviously, the Government believe that all gypsy families should ultimately be accommodated on authorised sites. But because of their ideology, they believe that the remainder of the task should be accomplished entirely by private enterprise and not by the local authorities. They cannot understand that if the efforts of both private enterprise and local authorities are harnessed together, completion of that task will be reached at an earlier date than otherwise would have been the case.
The Minister said that it was increasingly difficult for local authorities to find sites where they can build the larger encampments which have been common in the past. That difficulty can easily be solved. They can merely provide a smaller number of caravans on each unit, just as the gypsies themselves do. The figures for the past few years show that while local authorities have been responsible for the bulk of the provision in the whole of the period leading up to 1994, in the past few years private enterprise has made a significant contribution. Everybody should welcome the fact that it has been able to do so.
1537 I should like to ask a very simple question. If, contrary to the supposition of the noble Lord, Lord Irvine, the Minister believes that the sooner all gypsies are on authorised sites, the sooner the nuisance caused by unauthorised encampments will be eliminated for ever, then why not harness the efforts of both public and private authorities? It is clear that if that is done the task will be completed sooner instead of depending entirely upon the efforts of one sector or another.
The noble Earl, Lord Arran, gave me some figures on 27th June, from which it appears that the local authorities are capable of a considerable additional effort over and above what they have done in the past. The number of applications for stage 1 approval— approval in principle for gypsy site grants—received between 27th January and 4th March (a period of just over one month) was for 541 pitches whereas in the previous 18 months the applications for stage 1 approval totalled only 1,402. Those figures illustrate that the imposition of a deadline suddenly galvanised the local authorities into putting in quite a few stage 1 applications for approval in principle. From 4th March until 23rd June the local authorities continued to submit applications to proceed to stage 2 and tender for seven sites totalling 130 pitches. That is at a much higher rate than local authorities have provided in the previous four years. So they have not come to the end of their tether. They have not exhausted their ingenuity in finding suitable sites for gypsy encampments and they should be allowed to continue with that task in parallel with the private sector, so that both can make their contribution to the completion of the task.
I did a little arithmetic, making assumptions on what could happen if both sectors were to continue providing sites at the same rate as in the past. I made the further assumption also that the Government are correct in thinking that because of the changes in the structure plans arising from Circular 194, the private sector would start to make an increased contribution from 1996 onwards. I do not necessarily believe that because, when I look at what has happened to applications from gypsies for permission in recent months, particularly since the circular was issued in January 1994, I see no signs of the Government's optimism being realised.
When one looks at the bad authorities, one sees an interesting fact. The local authorities that failed to honour their obligations under the 1968 Act are the ones that are most reluctant to give permission for gypsies to develop their own sites. For example, in the region of Avon, Wiltshire provided 158 pitches, Somerset 126, Gloucestershire 102; and since its formation in 1974 Avon had provided only 16 pitches up until 1993. Some local experts believe that that is only because the Government issued the authority with a direction under Section 9 of the Caravan Sites Act 1968.
When one looks at the planning applications submitted by gypsies in relation to land in Avon, we see universal refusal. Therefore, where the local authority declines to provide sites for gypsies, they also do not allow the gypsies to develop sites for themselves. We find large areas of the country—no-go areas for gypsies —where, first, local authorities did not honour their 1538 obligations under the 1968 Act which are now being repealed; and, secondly, planning permission will not be granted as a result of Circular 194.
The Government may be able to help a little on this matter —they have some control over the process—if they want to uphold appeals by gypsies against the refusal to grant permission by local authorities. I was interested in another part of the Minister's letter to me, which has already been the subject of several quotations. The Minister said that 283 out of the 1,250 caravans owned by gypsies on land without planning permission were on what he called "tolerated" sites where the local planning authority is not proposing to take enforcement action to stop the gypsies using the sites for residential purposes. Out of the remaining 2,586 caravans, 641 are on tolerated sites which is usually land owned by local authorities.
Can the Minister say to what extent the Department of the Environment will uphold appeals in relation to those tolerated sites? If the gypsies own the land themselves, apply for planning permission and it is rejected by the local authority, will the department be more generous in upholding their appeals? In the case of tolerated sites, land owned by local authorities, the situation speaks for itself. If local authorities are prepared to tolerate the presence of gypsies on that land, why cannot they then grant planning permission and make the sites legal? If they could do that, there would immediately be an extra 283 plus 641 pitches—a total of 924—at the stroke of a pen which is as much as was provided by local authorities and the private sector together in two-and-a-half years.
The other matter I want to raise, which is quite interesting, is: what happens when we assume that the private sector manages to double its contribution to the provision of sites but we then also allow local authorities to continue as they have done in the past? We can extrapolate the figures for the four years between 1990 and 1994, and assume that the doubled private sector contribution comes into force only in the years 1996 onwards. The reason for that is that structure plans take a long time to amend. From the inquiries I made of various local authorities, it appears that that process is around 18 months to two years down the line. For example, in the case of Kent, it does not expect revised structure plans to incorporate the advice given in Circular 194 to come into operation before the beginning of 1996. If immediately after that the local authority starts giving planning permissions on a more generous scale than in the past, it will be a remarkable achievement. I am therefore being optimistic when I say we should assume that the private sector doubles its contribution from 1996 onwards. I am also making the assumption that we have the same contribution from the private sector as we had in the past and the growth in the gypsy population continues at the rate of 3 per cent. as it has done in the past four years.
On those rather optimistic assumptions we shall reduce the number of unauthorised caravans from 3,800 in 1994 to just under 3,000 in the year 2000. Can we really afford to do without the public sector contribution? Even if we make the optimistic assumption that local authorities continue provision at 1539 the same rate as in the past and the private sector contribution doubles, we are still only gradually whittling away at the backlog of unauthorised sites to the extent of something under 1,000 pitches between now and the turn of the century. We shall not reach the bottom of the pile of unauthorised encampments before around 2015 and 2020. We are therefore looking at a very long-term operation even if all the resources in the country are harnessed towards the solution of the problem. If we suddenly strike out the local authority sites and say we do not want them any more and find the assumptions made in relation to the increased contribution by the private sector are not realised, then we really are in shtook. It will be difficult to revive the contribution of the public sector when we find that gypsies are not able to obtain planning permission and that the optimistic assumptions made by the Government are not realised.
For heaven's sake let us not run the risk of being left with little provision from the private sector and only the dregs of what remains outstanding from the stages one and two applications to be completed in the public sector. If we do that we shall be storing up a legacy of trouble for the future. There will be not only the 3,800 caravans on unauthorised sites that exist at the moment; but also the 3 per cent. per annum increase of caravans arising from a natural increase in the gypsy population all coming on to the unauthorised sites, making nuisances in the neighbourhoods of settled populations and causing problems for the next generation because the children from the sites will not be properly looked after from either a health point of view or in terms of education. This is the last chance. If the Minister does not give way on this amendment or on that of my noble kinsman, which we shall discuss in a moment, we shall be storing up serious problems which our successors will live to regret.
§ Lord Harris of Greenwich
My Lords, I intervene briefly to urge the noble Earl to reply to a specific point made a few minutes ago by the noble Lord, Lord Irvine of Lairg; namely, the quotation from a ministerial circular saying that there is a national interest in providing accommodation for gypsies. The answer to the question is either yes or no. If the answer to the question is yes, and that remains the policy of the Government, I am bound to say that we are proceeding in an extraordinary way in being asked to pass a specific section of the Bill.
I should like to add just one point to what was said by the noble Lord, Lord Irvine, when he listed the increased public expenditure which arises as a result of this part of the Bill. I refer to the issue of the costs in relation to enforcement of this part of the Bill. There will be substantial additional expenditure by police forces throughout the country. As the noble Earl may recall, I tabled a question requiring a Written Answer asking about the number of new criminal offences being created and what discussion there had been with the Association of Chief Police Officers concerning the training and other costs in the implementation of this and other clauses in the Bill. The noble Earl indicated that discussions on this matter were still proceeding—in 1540 other words, apparently the Government have no idea what the increased public expenditure will be. That related only to training, but the operational costs will be very substantial.
When my noble friend Lord Avebury asked whether there had been discussions with the Association of Chief Police Officers, the noble Earl's answer was that Clause 73 would be triggered by the local authority and not by the police. Clause 73 would be triggered by action from the local authority, but the police have to be present, as the noble Earl well knows, if there is likely to be any breach of the peace. For the reason given by my noble friend when he indicated that there is already an increasing level of violence occurring now at some of these sites, it is highly likely that the costs to the police will be very substantial. Therefore, I should be grateful if the noble Earl would answer the specific question which my noble friend Lord Avebury asked him: have there been any discussions with the police on what they believe will be the increased costs which they will have to face as a result of the passage of this section of the Bill? We deserve an answer to that.
§ Lord Merlyn-Rees
My Lords, over the weeks I have listened to the wide discussion which has taken place about the problem of gypsies and about the problem raised in the other place many years ago concerning the need for sites provided by local authorities via government grants. As time went on, it was borne on me that in different parts of the country there is a different problem.
I want to rehearse the problem which I lived with for 30 years in inner city Leeds. When I was Secretary of State for Northern Ireland I had phone calls at 1 o'clock or 2 o'clock in the morning from councillors asking what they could do about the problem that had arisen. The issue that I put to the noble Earl is this: have the Government considered the particular problem of inner city areas where in my view, private enterprise—I have no objection if it provides sites—is unlikely to provide such sites? It does not provide much else so why it should suddenly wake up and provide sites for gypsies, I do not know.
It is an explosive issue. It was even worse at one time in the days of what was called in local authority jargon "slum clearance". At that time, as is always the way, those houses tended to be occupied by older ladies because of the demographic situation. There were the problems which arose from stealing lead flashing and that kind of thing. There was police involvement and the relatively recent problem of near riot when new houses aré built and then alongside, in a field, caravans arrive with television sets and all the rest of it.
I accept fully—and I know from my experience in Leeds—that there are genuine gypsies who have been going backwards and forwards to the fairs in the Dales for hundreds of years. But I am talking about a different problem which has arisen. The issue is this: will what the Government intend do something for these areas? I do not believe that it will. The city council provided one very good site. It was in what I used to call "my area". The council tried to provide three others in other parts of the city. But the residents of the more affluent parts 1541 of the city said, "Not likely; we are not having gypsy sites in our area". The problem which will arise is that there will not be private sites either.
I have risen to my feet simply to ask whether the Government are considering, with the Department of the Environment, the particular problems of inner city areas. They are different from those of Wiltshire and Avon and the problems which arise in country areas. These inner city areas have real problems. To remove the duty on local authorities to provide sites will cause real problems. I hope that the Government have considered the particular problem which arises in the area which I once represented.
§ 4.45 p.m.
My Lords, the noble Lord, Lord Irvine, has some difficulty in understanding why the Government were proposing to abandon a system of public site provision which apparently had alleviated the experiences of many gypsy families who had no lawful accommodation. This was the problem which was presented at Committee stage by the right reverend Prelate the Bishop of Liverpool. I believe that he encapsulated his views or characterised them, by saying that local authorities have failed to obey the requirement laid on them by law, so, in the Government's view, let us repeal the law. That was the onus of the remarks of the noble Lord, Lord Irvine of Lairg.
I would offer this alternative explanation. The Government have been looking for better and fairer ways to achieve the original objectives of the Caravan Sites Act 1986.
My Lords, I am sorry, 1968. My noble and learned friend is perfectly correct, as usual. That Act had two objectives: the provision of adequate sites for gypsies and the control of unauthorised camping. I would be the first to say that this is not an easy issue; it is one with great social impact. That system has been in operation for some 24 years, and the fact is that levels of unauthorised camping —in terms of numbers of gypsy caravans on unauthorised sites reflected in the January counts carried out by local authorities in England and Wales—have hardly changed since then. Unauthorised camping has been virtually the same and can cause serious nuisance, distress and offence and the Government have made it clear that they must take action to control this nuisance.
I remember the right reverend Prelate the Bishop of Liverpool referring with some feeling at Committee stage to the prejudice and hatred which gypsies experience. Indeed, the noble Lord, Lord Merlyn-Rees has insinuated that this evening by the problems which he has had in an inner city area. I do not deny at all that prejudice exists—of course it does—and much of it is irrational and unjustified.
But the public disquiet about unauthorised camping cannot be attributed solely to irrational prejudices. Unlawful gypsy encampments can cause immense nuisance and desecration, and there are many gypsies 1542 and other itinerant groups who pay scant regard to the rights of other people to the proper and lawful enjoyment of their land and the natural amenity of the countryside. Respect for the lifestyle of gypsies will not be increased while this kind of thing is allowed to continue.
The Government had to decide to do something. We decided to look again at the policy of public site provision against the backdrop of unabated levels of unauthorised camping. I do not see anything unprincipled about that.
The assimilation of gypsies into what one might call the settled community has never been the Government's aim. The Government recognise that many people will wish to continue to pursue a nomadic form of life. Our intention is not to discourage those people or to make their lives a misery. The nomadic lifestyle itself causes many problems. It affects access to important health and welfare services and interrupts children's education. It affects those people who undertake that lifestyle and also those who do not follow that lifestyle, but who find themselves affected by it.
All these problems result from people who wish to be nomads. That is the choice of the nomad. All the Government can do is their best to address these problems which confront them and to try to alleviate them both sympathetically and with understanding. I do not believe that our proposals will necessarily exacerbate the difficulties which nomadic people already experience.
§ Lord Irvine of Lairg
My Lords, does not what the noble Earl has just said entail that evictions should only take place where the unlawful encampment causes nuisance or injury to amenity? Does he not accept that, under the Bill, evictions may take place where there is no nuisance and no injury to amenity whatever?
My Lords, yes, that is perfectly true. As I have explained, it is intended that the guidance should state that local authorities should use the power at their own discretion and according to reason. In other words, local authorities should not chase up every gypsy just because he is there. The fact is that in law a person may not have a legal right to be somewhere but, in practice, it will be the local authority that will have to use its discretion.
The conclusion which we reached, after extensive consultation, was that local authority site provision was not likely ever to meet the apparently growing demand for sites. This was not simply a case of sparing some local authorities the continuing embarrassment of not having complied with their duty.
The noble Lords, Lord Irvine and Lord Harris of Greenwich, asked whether it was not in the national interest that gypsies should be satisfactorily accom-modated. Of course, it is in the national interest that they should be satisfactorily accommodated, but it is the Government's view that public provision has now reached a satisfactory level and that further provision should be made by the gypsies themselves through the planning system. We have never said that gypsies should not be satisfactorily accommodated. Over 70 per cent. of gypsy caravans are on authorised sites. Of the 1543 remaining 30 per cent., 10 per cent. are on the gypsies' own land without planning permission. Therefore, a great deal has been done from the public point of view.
The noble Lord, Lord Irvine, then asked about the 60 per cent. of local authorities which have failed to fulfil their duty. Although 38 per cent. of authorities have provided adequate accommodation to meet the requirements of all the gypsies residing in their, area, that does not mean that the remaining 60 per cent. have not provided any sites at all. Many sites have been provided in those areas even if the full needs have not been met. The noble Lord, Lord Irvine, referred to the remarks of my honourable friend Mr. Maclean and tried to draw a difference between his remarks and mine. I can assure the noble Lord that there is no such difference.
Local authorities will retain their discretionary powers under the Caravan Sites and Control of Development Act 1960 to provide further sites if they wish to do so. Reference has been made to the possible closure of local authority sites. I can advise your Lordships that we would expect local authorities in England and Wales to maintain their 300 or so existing sites. Local authorities have statutory housing duties towards homeless people and if they close their sites they may have to accept some gypsy families as statutorily homeless—and they would not do that in a hurry. County councils have obligations under the Children Act to provide services to children and their families. They would have great difficulties in discharging those obligations if they closed their sites.
The noble Lord, Lord Avebury, referred to local authority applications for grant. The recent influx of local authority applications for grant has been triggered by the Department of the Environment's letter of 27th January this year to the local authorities drawing their attention to the withdrawal of grant-making powers in the Bill. Many authorities believed that the Bill would receive Royal Assent before the summer recess and, as a result, many of the applications have been ill prepared. The few that have been well prepared are in respect of sites which have been in the pipeline for a number of years.
The noble Lord was also concerned about the extent to which the Department of the Environment would uphold planning appeals for gypsies on their own land. The noble Lord will realise that I could not possibly generalise in relation to tolerated sites which might become the subject of planning appeals. However, it may well be relevant that the land in question has been used as a site for a substantial period and the local authority had not previously objected to it. Each case has to be considered on its merits. There are sites on both public and private land which do not have planning permission or a site licence but where gypsies can camp free of harassment. Those tolerated sites vary. There are places where a single gypsy family is allowed by a farmer to camp on his land on a seasonal basis or during a horse fair. In that connection, I refer to Swan Farm in Sevenoaks in Kent, where gypsies have been camping on their own land but without planning permission since 1973. There are even non-tolerated sites. One such site in the borough of Stratford is of long duration.
1544 It seemed to us that it would be wrong to maintain what was in effect an open-ended commitment to provide sites at the public expense for all those gypsy families without accommodation, whether or not this was what they actually wanted.
The noble Lord, Lord Irvine, said that the grant was in the national interest. He must remember that the 100 per cent. grant for gypsy site provision was originally intended to be available for five years only so as to stimulate site provision by local authorities. It has been paid now for over 15 years, and it is clear that local authorities have come to depend on the grant entirely. I do not think that there is any principled reason for maintaining a grant for ever—a grant which is unprecedented in the public sector because it is a 100 per cent. grant.
The noble Lord, Lord Irvine, said that that cost is minimal compared with the cost of providing social security and so forth. With respect to the noble Lord, I thought that that was a bad argument. One can always say that there is a very good reason for continuing to spend money because by not doing so one would spend more. However, this grant has been paid for three times as long as was originally intended. The fact is that more and more people are deciding to become nomads—I have explained that the number has increased by 40 per cent. since 1981—but there is no reason why a person's individual choice to become a nomad should necessarily become the responsibility both of the local authority (which has to provide the site) and of the taxpayer (who has to pay for it).
§ Lord Avebury
My Lords, although this was mentioned in Committee, the noble Earl obviously cannot be aware that as a result of a recent court decision, a person who becomes a nomad voluntarily, and who has not been one in the past, does not qualify for the definition of "gypsy" under the 1968 Act.
My Lords, I think that the noble Lord is referring to New Age travellers who, as he knows, are different from gypsies.
We know, from our discussions with the National Gypsy Council, that many gypsies would prefer to establish their own sites rather than to live on council estates, which have to cater for many different family groups in order to achieve reasonable economies of scale.
Gypsies are not always the close-knit community which they are sometimes portrayed as being. Animosity between different family groups is not unknown among them, with all sorts of weapons being used by them to settle their problems —like guns, shotguns and even chain saws and scythes—so they are not necessarily a totally harmonious group. This causes significant management problems on local authority sites, and is the chief reason why some gypsies shun these sites. Private sites, on the other hand, tend to be smaller than council sites and can usually accommodate single family groups better.
We thought that the right approach to the problem, and the one which was most in accord with the aspirations of gypsies themselves, was to take steps to encourage more gypsies to establish their own sites 1545 through the planning system and to repeal the system of mandatory site provision which was not providing adequate sites.
The noble Lord, Lord Harris, asked about the police. The provisions do not have any significant manpower implications for the police. The police sometimes assist local authorities with forced evictions, but such evictions are rare.
§ Lord Harris of Greenwich
My Lords, perhaps I may ask the noble Earl a question on that last point. Is that the view of the Home Office or is it the view of the Association of Chief Police Officers?
My Lords, it is a fact. The fact is that such evictions are rare. Whether a gypsy is being evicted or a landlord is evicting a trespasser from his land, it is a civil action and the police are called in only to ensure that there is fair play.
The noble Lord, Lord Merlyn-Rees, referred to urban areas where fewer than 10 per cent. of gypsies are on lawful sites. As I understand it, 46 per cent. are now on council sites and 24 per cent. are on private sites.
The noble Lord, Lord Irvine, was also concerned about planning. We have taken steps to encourage private site provision. The Department of the Environment's Circular 1/94, issued on 5th January, provides a framework under which gypsies will be able to develop their own sites.
Some concern was expressed in Committee about whether private site provision through the planning system could ever provide enough sites quickly in order to alleviate the problems which are being experienced by gypsy families. We think that the planning system is capable of providing sites. Indeed, it has already been successful in doing so. There are now 3,306 gypsy caravans on authorised private sites in England and Wales. We expect that successful provision to continue and even to be enhanced by the new circular. It advises local planning authorities to include in their develop-ment plans policies to take account of gypsies' accommodation needs. Where an authority's failure to have regard to government policy results in a refusal of planning permission, the authority risks having its decision overturned on appeal.
The Secretaries of State for the Environment and for Wales have to be consulted in the preparation of the local authorities' draft development plans. The Secretaries of State can object to a draft plan. They will intervene formally if there are unresolved conflicts which do not appear to be justified by local circumstances. The process of commenting upon authorities' proposed policies is already under way.
The planning system is fair. I have no doubt that there will continue to be local opposition to the development of gypsy caravan sites. We do not alter the public's attitude to such things overnight, but we intend to ensure that the gypsies' planning applications are treated fairly. We hope that more gypsies will have confidence in the system and will try to establish sites in accordance with the usual procedures rather than in defiance of them, as too often happens at present. We expect, too, that the public will see less reason to oppose the development of 1546 a small private site which caters for one family than they would in the case of a council site which would accommodate several families.
Local authorities, and the majority of private landowners, are not likely to be greatly concerned about a small, unobtrusive, unauthorised encampment on their land. In addition to the authorised sites which are available at the moment, there are also many tolerated sites on private and public land where gypsies camp without fear of immediate eviction. To camp lawfully on land for a short period, a gypsy has only to obtain the occupier's permission.
I know that this is a controversial subject. The Government's proposals offer a realistic way forward. I cannot promise that there will be no unauthorised camping or that in 20 years time all gypsies will be accommodated happily on authorised sites as a result of these proposals, but it is the right thing to do. It is correct that local authorities should have regard to what happens in their areas. It is right that they should have regard to the conditions of the countryside in which everyone has a part to play and which others wish to enjoy. It is also right that the gypsies should be able to find places of their own, but that is fundamentally the responsibility of those who undertake a nomadic life. It is not necessary that the local authorities or the taxpayer should have unlimited liability. They have both contributed considerably over the past 15 years.
§ 5 p.m.
§ Lord Irvine of Lairg
My Lords, I find the Minister's reply wholly unsatisfactory. He appeared not to have followed or to have engaged with my proposition that £4 million or £5 million a year is the figure that applies to grants. I was not contrasting that with social security payments at large or social expenditure at large; I was contrasting it with the cost to the taxpayer of all forms of support for social housing for the settled community, and was inviting him to accept that the figure for that was £4 billion in comparison to £4 million.
I intervened to ask the Minister whether his emphasis on nuisance or injury to amenity caused by unlawful encampments was not misplaced as a justification for these powers of eviction. We received no answer to the proposition that there is ample power in the law already to deal with nuisance or injury to amenity from unlawful encampments. So that is not independent justification for the power to evict. The Minister was good enough to acknowledge that eviction could take place in circumstances in which there was no nuisance or injury to amenity, but expressed the somewhat pious hope that, in accordance with guidance to be given to local authorities, they might, in their absolute discretion, abstain in some cases from evicting where there was no nuisance or injury to amenity. Does not that mean that the law will be arbitrary; that its application will vary from district to district; and from the mood of one local authority to another? Will it not be fundamentally offensive to justice, because similar cases will not be dealt with in like manner across the country?
At some point I had the thought that the Minister was defending the working of the 1968 Act, the primary duty 1547 of which he is repealing. As he pointed out, one ought not to be too misled by the figure of 60 per cent. of local authorities which did not achieve designation. They may nor. have been providing sufficient sites to achieve designation, but, none the less, they were providing sites. But at the same time as he was defending the working of the Act, it appeared to me that he was contradicting himself in justifying the repeal of its primary duty.
I have to say with great respect to the Minister, who in some contexts I would readily accept is a strong supporter of civil liberties, that I suspect that the inadequacy of his reply is because his heart does not accompany his brief and that he is perhaps a pressed man in defence of what, in good conscience, he must be incapable of believing is defensible or capable of being defended by rational argument.
By introducing the amendments I have provided the essential factual background for the House to come to a judgment on the next important group of amendments to be moved primarily by the noble Lord, Lord Stanley. In those circumstances, I beg leave to withdraw the amendment.
§ [Amendment No. 124 not moved.]
§ Lord Stanley of Alderley moved Amendment No. 124A:
Page 61, line 6, at end insert:
("( ) This section is subject to subsections (4A) and (4B) of section 159.").
§ The noble Lord said: My Lords, with this amendment I shall speak also to Amendments Nos. 208A, 209A and 212A. The substantive and consequential amendment is Amendment No. 212A. It delays for five years the repeal of the Caravan Sites Act 1968. As your Lordships will know, the main effect of the 1968 Act is to lay a duty on the local authority to provide sites for genuine gypsies—genuine gypsies being those people as defined by a recent Court of Appeal decision. I must make it clear that they are not hippies, New Age travellers or any of the like.
§ The main reason why the amendment is so essential is that it will prevent genuine gypsies from being moved from one illegal site to another. Without it, I see local authorities being greatly reluctant to move on gypsies under Clause 72 which it has been decided should stand part of the Bill, and for which I am grateful.
§ The amendments would, first, give the Government's policy of gypsies providing their own sites time to work, especially as local authorities will have to redirect their planning policies and structure plans to accommodate that welcome idea. The noble Lord, Lord Irvine, mentioned in a previous amendment the recent planning guidelines that seem to run counter to providing sites in the future.
§ Secondly, the amendment would give the Secretary of State the power to revise the method of providing sites if it is found that the new policy is proving difficult. Many of your Lordships have expressed doubts as to whether gypsies will be able, or even allowed, to provide their own sites. The amendment provides a fall-back provision.1548
§ Thirdly, the proposals need cost the Treasury not one penny. Indeed, as I suspect my noble friend Lady Faithfull will explain, they could save the taxpayer money.
§ Fourthly, it gives the Secretary of State the power to release local authorities from their duty to provide sites as, when and where he or she thinks fit. That is fair only to those local authorities which have already struggled to do so. It would also help with the problem of the inner cities, which was raised by the noble Lord, Lord Merlyn-Rees. I believe that the noble Lord, Lord Congleton, will comment on the problems of the local authorities which have provided sites.
§ Fifthly, it would give the Government and local authorities time to make a thorough search for satisfactory sites. MoD and forestry sites were suggested in Committee. Sixthly, the real hardship to people such as children and pregnant women, as acknowledged on Second Reading (col. 509) by my noble and learned friend Lord Fraser, would be solved to the relief not least of the children's societies; in particular, Save the Children. That matter was raised by the right reverend Prelate the Bishop of Liverpool. Seventhly, my honourable friend Tony Baldry said that the Government's proposals in this part of the Bill are aimed at securing the original objectives of the 1968 Act by other means. This amendment would help the Government to achieve that objective.
§ Your Lordships will not be surprised to hear that my noble friend Lord Ferrers has taken great trouble sympathetically to discuss this amendment with me. I do not know how, with such a massive Bill before him, he finds the time but I hope that he has been able to persuade himself—which I do not believe was difficult —and more importantly the Government to accept this small but constructive amendment. I beg to move.
§ Baroness Faithfull
My Lords, in order to clarify the position in my mind, I wish to ask my noble friend various questions. First, I speak as a former local government chief officer—though, admittedly, that was some time ago. I also speak on behalf of the well-being and the education of the children and the health of the family.
My noble friend Lord Ferrers said that under the Children Act 1989 and the Children and Young Persons Act 1933 the local authorities have been consulted and have agreed to the repeal of the Caravan Sites Act 1968. I am in some difficulty about the issue, and it is the same difficulty as was mentioned by the noble Lord, Lord Merlyn-Rees. If gypsies are evicted from a site and there aré problems in respect of the health, education and care of the children, which authority will be responsible?
Under the Children Act, the place of residence denotes the responsible authority. If a family is moved on and problems arise will the authority whose area they have left be responsible or will it be the authority into whose area they are moving? I can see confusion between authorities as to who will be responsible for the problems that arise in such families.
Have the Government considered what will happen if there is a reorganisation of local authorities? If unitary authorities are introduced great difficulties will arise 1549 because many small authorities will want other authorities to be responsible. We must clarity exactly who, under the Acts, will be responsible if an eviction takes place. I understand that the evictions take place quickly. If that is so, will guidance be circulated stating how much notice of eviction should be given, first, to the authority from whose area the family has been evicted and, secondly, to the authority into whose area they are going?
If families are moved on quickly the children will not stay permanently at one school. When families are evicted what will happen to the children? Will arrangements be made for them immediately to be admitted to a school in the area to which they have moved or will it be expected that they will attend the school on whose roll they appear?
If a family is quickly evicted from one area to another its members will not be registered with a new doctor. There may be disease in the family or a woman may be pregnant. They will not be registered with a doctor in the new area but they would have been registered had they stayed in the area in which they had been living.
I support my noble friend Lord Stanley and agree that the whole exercise needs to be much more carefully planned and thought out. It must be more closely considered with the statutory and voluntary organisa-tions and the Association of Directors of Social Services. I believe that a survey must be carried out showing where the sites are.
I make a plea to my noble friend and ask whether it would be wise to defer the matter for five years so that the issue of who will be responsible in the various circumstances can be carefully and properly worked out.
Let us remember the terrible troubles that arose as a result of the clearance of the Highlands of Scotland during the last century. I ask my noble friend Lord Ferrers whether all those issues have been considered, together with the legal position with regard to the Acts of Parliament which must be administered under this extraordinarily difficult situation? Will he support my noble friend Lord Stanley in deferring the measure and planning the whole position carefully and with thought?
§ 5.15 p.m.
§ Viscount Tenby
My Lords, I support Amendment No. 124A and its allied amendments. It is a pleasure to be associated once again with the noble Lord, Lord Stanley of Alderley, in an area in which he has shown great commitment for a number of years. The Minister may recall that some three years ago we were both anxious about the lack of provision for the control of New Age travellers. Although our request to amend Section 39 of the Public Order Act then fell on deaf ears, the Government have since paid heed to our pleas. For that I express my thanks and, more importantly, the thanks of the blighted communities in the south, the west and in Wales whose lives will be made much better as a result of new measures.
The problem before us today is altogether different. We are dealing with traditional travelling communities, the composition of which has been accurately and usefully described recently in the courts. That has been 1550 a matter of great satisfaction. The rationale behind the Government's proposals is that the Caravan Sites Act 1968—which I and many others believe was an imaginative and constructive Act and I bow towards its author, the noble Lord, Lord Avebury —has failed and that a fundamental change is necessary to the way in which we view this problem which, of course, will always be with us. In accordance with their beliefs, employment of the private sector is seen as the answer rather than government involvement by our local authorities.
The first question which has to be asked—indeed, it may be the only question which has to be asked—is whether the Act has failed. I do not believe that it has. While it is true that only 38 per cent. of English local authorities have acquired designated status—that is, have met government requirements—in the provision of suitable sites for gypsies, the fact is that the amount of accommodation has increased over the years. Therefore, probably some two-thirds of travelling folk now have access to an authorised site.
We have heard already today some of the figures. However, like good tunes, they bear repeating. At the beginning of the year, there were nearly 4,000 caravans on unauthorised sites, of which 1,252 were on land actually owned by gypsies but without the relevant planning permission. Of those, 283 were on tolerated sites, of which we have heard much today. Those are sites about which the local authority would be unlikely to take any action and where, I agree with the noble Lord, Lord Avebury, local authorities may well be prodded by government into granting planning permission.
The subject was trawled over knowledgeably in great detail in Committee by others far more expert than myself. The noble Lord, Lord Irvine, spoke on it today. It is perhaps interesting that in an area where, for obvious reasons, it is notoriously difficult to obtain entirely reliable statistics, there is an avalanche of information, although some of it is conflicting and therefore unhelpful. The House will be relieved to hear that I shall confine myself to brief, general comments on the virtues of the amendment.
The advantage of freezing until 1999 the existing provisions of the Caravan Sites Act 1968 is that it will keep in place the supporting props which protect those communities while at the same time providing a breathing space to see whether the private sector can deliver the goods. What can be more rational than that? What can be wrong with that? Surely that is a reasonable stance to adopt.
I share the anxieties of some other noble Lords that gypsies, through their tradition and upbringing, may have difficulties in relation to coping with the complexities and frustrations of, for example, planning procedures. I know that I cannot cope with them, so it may well be that some gypsies may also find it difficult. It may be said that the gypsy council and other bodies would possess the necessary expertise to purchase sites on behalf of those communities. But they would surely be able to purchase only a comparatively small number of sites and they might be overwhelmed by the sheer weight of applications.
1551 In that context, I take up the noble Lord's plea for an examination of disused Ministry of Defence sites. I know that that is always a tricky subject but they are proliferating week by week. Although using disused army camps and airfields for that purpose may awaken our worst NIMBY instincts, many of those sites are in relatively out of the way places. They probably have running water and hard standing. I should like the problem to be examined with much more urgency.
The crux of the matter is that the Government say that despite the expenditure of £89 million from the public purse since 1976, the number of gypsies on unauthorised sites has increased. The Minister said that. For a number of reasons, regrettably that may be so. But surely the answer is not to withdraw all support and remove the obligation on local authorities to be involved; to say in effect to those authorities which complied with the provisions of the 1968 Act, "You were conned. Bad luck", and to those which failed, "You were right all along to hold out". That does not sound like a very moral attitude.
I should add that in conversations with both county and local authorities, I have yet to find anyone who agrees with the proposals. If the provisions of the Bill become law, the words of a certain Minister of Health prior to the 1968 Act may, I fear, again become a reality. He said:For most traveller families there is nowhere they can put their homes; they are only within the law when moving along a road".In Committee the noble Earl said:It is easy to paint a bleak picture of the future in which local authorities wield their new powers like zealots and every unauthorised camper is repeatedly moved on. However, I do not believe that that is likely to be the case".—[Official Report, 7/6/94; col. 1123.]The Minister is an eminently reasonable and compassionate man. We all know that; I certainly do. In general terms, what he says may be true. But a belief is not the same as the letter of the law. If the provisions are passed there will be a duty on the authorities to enforce them with all the attendant stresses and miseries which they will bring to gypsies with regard to education, as the noble Baroness, Lady Faithfull, said, health and peace of mind. How can it do otherwise than to lead to more illegal camping and, therefore, greater friction within countryside communities? That is why I urge noble Lords to support the amendment.
§ Lord Renton
My Lords, my noble friend Lord Stanley of Alderley is inviting your Lordships to postpone for as long as five years the provisions contained in the Bill affecting gypsies and, one must say, other wandering people. My noble friend says that he is inspired to do that because of the decision of the Court of Appeal in the case which occurred just before our last debate on this matter. Noble Lords will recollect that several speakers, in particular, the noble Lady, Lady Saltoun of Abernethy, and the noble Earl, Lord Halsbury—and I believe that we all agreed with them —were anxious that the people traditionally known, respected and liked as gypsies should not suffer in any way from legislation which we pass.
But there is a problem. It is a problem which was faced by the Court of Appeal. It is that besides the 1552 original and genuine gypsies, there are a number of people, mostly of native British descent, who took to the wandering life following the invention of the motor vehicle. They were not such worthy people. They were described as didicois. Now we have a further and recent development of the wandering life; for example, the New Age travellers.
The feeling became fairly clear in our last debate —and I hope that your Lordships will agree that we should now make it absolutely so, as the Court of Appeal certainly did—that we must treat all those people in the same way.
§ Lord Stanley of Alderley
My Lords, I am sorry to interrupt my noble friend, but the Court of Appeal did not say that. It made clear who was and who was not a gypsy. The gypsy to whom the noble Lady, Lady Saltoun, referred, certainly fell into that category. New Age travellers do not. They would have to be travelling with a view to trying to find work.
§ Lord Renton
My Lords, I am grateful to my noble friend for allowing me to explain further. I have here the report of the Court of Appeal. The report states:It was accepted that originally and etymologically nomads were people who wandered in search of pasture for their animals, but that meaning had long since disappeared. It was therefore no longer permissible to restrict the statutory definition of 'gypsies' to those who led a wandering life with an economic purpose in mind".Lord Justice Neill made various other comments in his judgment which are relevant but of which I shall spare your Lordships the repetition. However, I should like to refer to the conclusion which was supported by the two accompanying Lord Justices:In his Lordship's judgment, in the context of Part II of the 1968 Act the definition of gypsies in section 16 imported the requirement that there should be some recognisable connection between the wandering or travelling and the means whereby the persons concerned made or sought their livelihood Persons, or individuals, who moved from place to place merely as the fancy might take them and without any connection between the movement and their means of livelihood fell outside those statutory definitions".Thereafter, the report stated that,his Lordship read Section 6(1) of the 1968 Act"—which was referred to in the earlier discussion and which says—the duty of the county council was to provide sites for those who came in cohesive groups and who had some purpose and pattern for their wanderings".It seems that my noble friend and I may have been at cross purposes. As my noble friend rightly pointed out, it is perfectly clear that there is a distinction between the various types of wandering groups. But we have to bear in mind the fact that all those types of wanderers exist. Whether or not we legislate differently for them is a matter in respect of which we have so far relied upon the Government. I shall be most interested to hear what my noble friend the Minister has to say on the matter.
However, bearing in mind the decision of the Court of Appeal and the views expressed by most noble Lords at the earlier stage, I should have thought that it was unnecessary to postpone the Government's provisions for five years in order to consider the matter still further. Indeed, it has been considered so much over the past year or so in both Houses. With deep respect to my noble friend, with whom I so often agree—sometimes in 1553 disagreement with the Government, as he well knows —I should have thought that on this occasion we ought to accept the position as we have so far decided it and not postpone further consideration for five years which, with all the factors involved, might be a rather agonising period.
§ 5.30 p.m.
§ Lord Avebury
My Lords, with great respect, I believe that the noble Lord, Lord Renton, has put the facts of the case quite correctly. There is no difference between him and those of us who attached our names to the amendment. Our purpose is to ensure that the public authority provision for gypsies, which is to be prolonged for a few extra years, is restricted to those whom we may, in shorthand terms, call the "genuine gypsies" and not extended to New Age travellers or to persons like a correspondent of mine who took up the nomadic way of life voluntarily in his early twenties by buying a van and taking to the road.
Such people should not expect Parliament to require the local authority to make provision for their accommodation. That is something which is not within their traditions or customs because, by definition, they were living in settled accommodation until they embarked upon that different way of life. Therefore, it is totally unreasonable for them to expect the taxpayer or local authorities to support them in what they arbitrarily decide to do. They must fend for themselves. I believe that we are at one on that aspect of the matter.
However, we must face the fact that there are about 3,800 caravans belonging to gypsies and not to New Age travellers or voluntary hippies who take to the road in the manner that I described. Those caravans are still on unauthorised encampments and provision has to be made for them in one way or another. I was glad to hear the Minister say in response to the last amendment that he believed it was in the national interest for us to deal with the problem as rapidly as possible.
Incidentally, in parenthesis, perhaps I may point out to the Minister that he was wrong to say that there were two purposes to the 1968 Act; namely, the provision of adequate accommodation for gypsies and the control of unauthorised sites. If the noble Earl refers to the Act, he will see that Part I protects individuals living in mobile homes on conventional sites from unauthorised eviction without a court order. I only mention that fact because it is frequently forgotten that that legislation contained a further important provision for people living in mobile homes. It is still on the statute book and it is not proposed to repeal it.
The Minister said that he did not think that the Government's proposals would exacerbate the position; in other words, he did not think that they would create a worse position regarding unauthorised encampments than would have obtained if we had allowed the local authorities to continue carrying out their work for another five years as proposed by my noble kinsman. I do not know how on earth the noble Earl can reach such a conclusion in logic when, looking back over the past few years, it will be seen that local authorities have been providing roughly 200 pitches a year. Moreover, 1554 although he was rather scathing about it, proposals have been submitted to the department for something like 2,000 additional pitches.
The Minister dismissed the latter by saying that some of those applications were put in very hurriedly because, when authorities received the letter of 27th January, they realised that the chopper was coming down and that they had to submit them before the deadline. However, the 541 pitches which were the subject of stage 1 approvals between 27th January and 4th March did not have to be submitted in any detail; indeed, they can be developed at the leisure of the local authorities. Incidentally, the 100 per cent. grant still continues to apply to them ad infinitum. There is no time limit within which those stage 1 applications, which have been approved in principle, have to be turned into stage 2 detailed, thoroughly costed and thought-out proposals. Therefore, if they continue down the road of turning the 541 stage 1 approvals into stage 2 proposals and do the same for the 1,402 pitches which are provided for in the applications for stage 1 approvals agreed within the past 18 months prior to 27th January, the local authorities will continue for another two years. I have had the latter confirmed by the discussions that I have had with senior officials in the department. If there is any discussion on the matter, the facts can easily be ascertained.
As regards the public sector borrowing requirement for 1994–95, I believe that the same amount has been included for provision of 100 per cent. grant as has been the case in previous years. Unfortunately—and I discovered this from the Minister's reply—we shall not have a cut-off point in 1994–95 when suddenly, on the passing of the legislation, the provision of sites by local authorities comes to an end and we become entirely dependent on the private sector. The reason is that there are sites in the pipeline which will continue, as I said, to attract the 100 per cent. grant.
All my noble friend is seeking is a small extension. In fact, it is not five years because, as we may well agree, for the next two years those applications in the pipeline will continue to trickle through and the local authority contribution will probably be much the same as it has been over the past five or 10 years. It is for the following three years thereafter that my noble kinsman is saying, "Let us continue to lay this obligation on local authorities, simultaneously with the increased contribu-tion of the private sector. If we find that the private sector comes up to scratch and that it can increase its contribution by at least 100 per cent., then we can afford to discontinue the obligation on the local authorities".
I hope the Minister has studied the figures which I passed across to him. I make no apology for repeating what I said on the previous amendment because it is important that your Lordships should understand. Let us suppose we agree that the private contribution is doubled from 1996 onwards, that the contribution by local authorities continues at the same level, and that the gypsy population increases by 3 per cent. a year as it has done in the past few years. According to my calculations —anyone, including the Minister, can dispute them, if they see fit—by the year 2000 we shall only have reduced the number of gypsy caravans on unauthorised encampments from the present level of just under 4,000 1555 to just under 3,000. It will be the year 2015 or 2020 before the aspiration—shared, I believe, by the Minister and everyone who has spoken—of ending the menace of unauthorised encampments is finally accomplished.
Surely, when faced with such a long-term task, the last thing we want to do is to tell anyone who is making a contribution to stop. Why not allow, as my noble kinsman Lord Stanley of Alderley proposes, the local authorities to continue exactly as they have done in the past for the next five years? Then, by the turn of the century, we shall see whether the kind of figures which I have written on the piece of paper are realised. If they are realised—they contain some optimistic assumptions —surely we will be able to say, with the benefit of hindsight, that it would have been absolute madness to have scrapped the contribution that local authorities were making in 1994 and to have depended entirely on the private sector alone.
This is the last opportunity we shall have to consider this matter. If we leave it now, it will be no good your Lordships saying to the Government in two years' time, "Oh what a pity that we did not think the contribution of local authorities was important". There will not be any time for legislation to reinstate that provision. Even if there were time for legislation, I hardly think one could crank the local authority effort up to the kind of level it has achieved at the moment.
Before we leave the amendment, we should say that some local authorities have done a good job. I have a pamphlet issued by Cardiff which describes how that authority has tackled its gypsy problem. I believe that the former constituency of the noble Lord, Lord Merlyn-Rees, has made enormous efforts. Leeds has tried genuinely to solve the problem of unauthorised encampments. However, there are places—I make no apology for saying that Avon has not made an adequate contribution in this regard—which have not made adequate contributions. The Minister knows that two other authorities have been the subject of directions under Section 9. He says that he does not wish to issue any more directions under Section 9 because it is a power of last resort. But is it not unfair that when some local authorities have made provision for all the gypsies residing in, or resorting to, their areas, we say in the Bill that the ones which have failed, and the ones to which I have referred with the worst record as regards giving planning permission for private sites will now be excused all future contributions? I do not think noble Lords would agree that that is fair. I hope that they will accept the amendment.
§ 5.45 p.m.
§ Viscount Brentford
My Lords, I support the amendment. I am in discussion with a number of people working with gypsies and I may wish to say more about that at Third Reading. I fully agree with the proposals of the Government; I certainly voted in support of Clause 72 as it stands. I take heart from the fact that a number of times my noble friend Lord Ferrers has talked about these provisions being administered reasonably. However, as the noble Lord, Lord Avebury, said, we all want to remove the problem of the use of unauthorised sites.
1556 There seem to me to be two reasons why the time delay is valid, if I may answer my noble friend Lord Renton. The first is that we still have a large number of mobile families who do not have access to authorised sites. Whether they represent a quarter or a third of the total, they constitute a large number. Therefore action is still required. I am glad that there will be scope for the private sector to help meet the provision Secondly, I refer to the length of time taken by planning applications. They can go on for years. That is why we need the delay in order. It will give the private sector time to lodge, and succeed in, planning applications. I was glad to hear my noble friend say, I believe, that he has encouraged planning applications to proceed. Nevertheless, they will take time. This seems to me the reason underlying the amendment. My noble friend the Minister talked about a number of planning applications in the pipeline, thereby indicating the time they take.
I am worried that local authorities will have to identify in their structure plans places that are suitable for gypsy sites. How long will that take? It may take up to two years in itself. I am worried particularly about the provision for children—my noble friend Lady Faithfull referred to that—and for pregnant mothers. I would like my noble friend the Minister to confirm that his reasonable policy will take account of pregnant mothers for a period of, say, at least a couple of months on either side of the birth; otherwise great hardship can arise.
Access to authorised accommodation is required for children in mobile families. They must have stable and suitable accommodation that is appropriate for them. As my noble friend Lady Faithfull said, this is equally relevant as regards schooling, GP and health services and other community services. If there is to be a continual moving on from unauthorised sites to other sites, these children will be deprived of such facilities. I hope therefore that my noble friend the Minister will express support for the amendment.
§ Earl Peel
My Lords, I had no intention when I entered the Chamber of taking part in this debate. It is only since listening to the arguments that I am bound to say that I see great merit in my noble friend's amendment. It seems to me that while attempting to find a positive solution to what is unquestionably a difficult problem, that problem is unlikely to be resolved unless there is some positive help from local authorities to help gypsies find suitable site accommodation.
I believe my noble friend Lord Renton tried to distinguish between the genuine gypsy and the non-genuine gypsy. I am not in a position to be able to say whether or not that has been defined clearly. Certainly, however, I am aware of the position as regards genuine gypsies. It is a great shame that much of their reputation has been damaged by New Age travellers. The Government are being what I can only describe as optimistic if they think that by lifting the duty on local authorities in favour of private site provision through local landowners, provision will be made in this regard. There is little chance of that happening, particularly in view of the fact that landowners who are expected to provide these sites will find it difficult to distinguish between genuine gypsies 1557 and New Age travellers. It is such a shame that the Government have done so much in the Bill to counteract the ever-increasing problems of rural crime, but in this case I believe that there is a real danger that the Government proposals will prove to be a retrograde step. Discouraging local authorities from taking on the responsibility which exists under the 1968 Act will result in the issue being dodged and many more problems developing than are likely to be resolved.
I have to put one question to my noble friend before I can make up my mind on this issue. Can he persuade me and other noble Lords that what the Government propose is better than what exists under the 1968 Act?
§ Lord Congleton
My Lords, I have been invited by local authorities in Wiltshire to support the amend-ments. I have also been invited to do so by the National Farmers' Union and Save the Children.
Many of the points that I would have raised have already been mentioned and I do not propose to go over ground that was covered either in the Committee stage or earlier this afternoon.
Even if I had not been invited to speak this afternoon I would have done so on my own account, having lived in Wiltshire for 35 years and for 10 of those years having been a rural district councillor. Rural district councillors do not exist any longer; they were swept away in the 1974 reorganisation. During my term of office as a councillor, in which capacity I was proud to serve my fellow citizens and communities, I believe that I had a reasonable record of achievement. I did two things which give me pride and pleasure to reflect upon. The first was to have four small bungalows built in our very small village for elderly retired folk.
The other achievement was, during my term as chairman of the council, to encourage the council to establish what was the first permanent gypsy site in Wiltshire. It was in South Wiltshire and it was established in 1972. We established the site because Dorset—which has always appeared to be a yard or too faster over the ground than Wiltshire—had become a designated authority and was pushing its unwanted travelling folk across the boundary into South Wiltshire. It was clear that we had to do something. We set to and established a gypsy site.
Therefore I have some experience of what happens at the sharp end. We had no trouble involving shotguns or chain saws. I am told by the chief officer of the county council, who now has responsibility for these matters, that in all the years during which permanent sites have been established in Wiltshire—and we heard from the noble Lord, Lord Avebury that there are now 158 pitches in Wiltshire—there has been no trouble.
To go back to 1972 for a moment, one might have thought that establishing a site in an area would prove unpopular with the local community. So it proved. However, we went through the usual civilised process of discussion, consultation, negotiation, persuasion, coun-ter persuasion and so forth. After some months everyone was won over—some more reluctantly than others. That 1558 site has now been established for more than 20 years. Others have followed. There are now 29 sites, some private and some operated by the local authority.
I mentioned that because it has been put forward by the Government that the Caravan Sites Act 1968 has not worked. I have had little responsibility for, and do not take credit for, the fact but Wiltshire is a shining example of how it has worked. I ask myself, if it can work in Wiltshire why on earth can it not be made to work elsewhere?
An Act of Parliament, especially one which lays duties on authorities to do certain things, is an inanimate piece of paper with words written on it. It needs to have life breathed into it. In this case it was for the local authorities to breathe life into the Caravan Sites Act 1968 for which the noble Lord, Lord Avebury, was responsible. That requires political will at the local authority level.
I do not know why some councils have failed to establish the gypsy sites that were required of them under that legislation. It has been suggested that they have flouted the will of Parliament. They probably have. The 1968 Act lays a duty on local authorities. Some authorities have responded to the will of Parliament and some have not. Wiltshire has done so, and all credit to it.
What of the future? If Clause 75 is approved—and I hope that it will not and that the amendments are accepted—what will happen in those areas where permanent and transit gypsy sites have been established? Will they become overcrowded? Will floods of travelling people use those sites because they have nowhere else to go? Apparently the county of Avon has not done very well in this respect. Wiltshire is next door to Avon, and I hope that travelling people will not flood over the boundary into Wiltshire.
The financial implications have been mentioned. A total of £87 million over 15 years for the whole of England and Wales does not seem a great amount of money. I do not see great savings resulting from the operation of Clause 75.
What am I to tell the people in Wiltshire? They have done everything that Parliament wanted them to do. They are now to be disregarded. The community charge payers will be told that their money has not been well spent. All those authorities which have not done what Parliament wanted them to do will be give the green flag and told that they may forget about it. I find that obnoxious. I support the amendments.
§ 6 p.m.
My Lords, as my noble friend Lord Peel said, this is a sensitive and difficult area. I do not think that anyone who has had cause to approach the subject could fail to realise that there is nothing which is not sensitive or difficult. The problem affects people's lives and livelihoods. It also affects people on whose land or in whose vicinity gypsies present themselves. Therefore, there is a difficulty between the two sides of the problem. Nobody pretends that it is an easy problem to solve. I would not want your Lordships to think that 1559 either I or Her Majesty's Government are taking a tough-nosed view and are being inconsiderate. We are trying to deal with a problem.
On the one hand, there is the problem of gypsies who wish to follow a certain form of nomadic life style. They wish, and are entitled, to have their children educated and to have access to doctors and so forth. On the other hand, there are the conditions of distress and despoliation of the countryside, unauthorised camping and sometimes trespass, and all that that carries with it. It is not easy to strike a balance.
We have dealt with the principle behind the amendment all afternoon. My noble friend's amend-ment suggests that we put off the issue for another five years in order to allow local authorities to take such action as they need and then see what the situation is at the end of that time. The noble Lord, Lord Avebury, said that it is not wrong to put off the matter. However, it is five years. That is one third of the time during which the Caravan Sites Act 1968 has been in operation. The provision of the 100 per cent. grant was introduced later. The provisions were originally to operate for five years. They were extended and have operated for 15 years. Now my noble friend Lord Stanley suggests that we retain the provision for another five years—the same length of time as it was originally intended the grant should last.
As I explained earlier, the system was put in place when fewer than 10 per cent. of gypsies in England and Wales had lawful accommodation. The position is very different: now. Some 70 per cent. of gypsy caravans are now on authorised council or private sites; and on top of that figure, 10 per cent. are on tolerated sites.
The 100 per cent. grant was introduced in 1978. It was made available for a five-year period only. It was intended to stimulate local authority site provision. My noble friend now says, "Let's have it for yet another five years", even though the period has been extended to 15 years.
The system has not enabled local authorities to keep up with the growth of demand for such sites and consequently unauthorised camping by gypsies has remained at broadly the same levels throughout the past 13 years. The reason is that the number of those who wish to become nomads has increased. As I explained previously, that is because the number of caravans has increased by 40 per cent. since 1981, from 9,800 to 13,700. I do not wish to keep harping back, but I must do so because we are discussing the same argument. When that number of people decide to take on that lifestyle, I do not believe that it is reasonable to say that the local authorities should have to provide the sites and that the taxpayer should have to pay for them. If the number of gypsies increases, that is their wish; no one has to take on that lifestyle.
The argument is enticing; I do not deny that. My noble friend Lord Stanley was good enough to see me and seek to entice me. He very nearly did so, but he did not succeed. The argument is, "Let's have another shot. Let's keep the grant going for another five years. Let's put the issue off for a while. Let's have a bit of a breathing space". It is tempting to believe that with just a few more years of grant being available to them, local 1560 authorities will be encouraged to step up their site provision. I doubt whether that will be the case. As the noble Lord, Lord Avebury, said, at the end of the grant regime there has been an upsurge in last-minute applications for grant from local authorities. That was only to be expected. Not all of those are viable proposals. Some are for sites which have been plucked out of the air with no real assessment of the planning or other difficulties to which they might give rise. Others are for minor refurbishment which more properly belongs within a normal maintenance programme. I do not believe that that upsurge is an indication of a desire within local authorities generally to continue with large scale public site provision.
I ask those noble Lords who are in favour of the provision where they expect we shall be in terms of local authority site provision in July 1999. Will this provision be the solution to the problem? I very much doubt it. I believe that we are likely to be in a similar position to now.
§ Lord Avebury
My Lords, the question is not where we shall be in July 1999 but whether, as a result of the amendment in the name of the noble Lord, Lord Stanley of Alderley, we shall be nearer to a solution to the problem than we would be if the amendment were rejected.
My Lords, that is an argument for continuing a grant for ever. That is what happened when the period of the grant was increased from five to 15 years. The noble Lord, Lord Avebury, answered the problem when he said that it will not be until the year 2015 or 2020 that everyone is on an authorised site. That is because if conditions continue as they have done in the past there will be yet more itinerant people, yet more local authorities will be expected to make more provision, and yet more taxpayers' money will be expected to pay for that provision.
I do not believe that imposing a statutory timetable for the repeals will make the task of local authorities to find suitable locations for sites any easier. I do not think that such a provision is likely to have an effect on the natural growth of the gypsy population or on the desire of those young gypsy couples to have their own caravans and pitches.
My noble friend Lady Faithfull referred to some matters of great importance. My noble friend Lord Brentford referred to children and pregnant mothers. Before a local authority were to evict a gypsy it will need to consider, among other matters, what duties it and other local authorities will owe to the family to be evicted. The children and pregnant mothers will be two of those considerations.
My noble friends were both concerned about the proposed circular. That will remind local authorities of their obligations under the Children Act 1989. Those obligations are clear enough. Local authorities will be expected to liaise about their evictions. But my noble friend Lady Faithfull was anxious about travellers' access to education facilities. Of course, the continuity of access to education for travellers' children is a problem. We already commit very considerable resources towards resolving those difficulties. 1561 Allowance is made in the funds allocated to education authorities for the basic needs of travellers' children. There are two separate duties. The first is the duty of the local education authority to ensure that all children attend school or are otherwise suitably educated, and it has to make sufficient places available to them. The second is the duty of parents to ensure that children between the ages of five and 16 attend school regularly or are suitably educated otherwise than at school.
My noble friend Lady Faithfull was anxious about health facilities. By the very nature of their travelling lifestyle it is difficult to maintain continuity of health care for travellers. However, regional health authorities are required to take account of the travellers' needs when they formulate their plans. The National Health Service Executive issued guidance in September last year which makes it perfectly clear that where a patient cannot give an address the district health authority in which the unit providing the treatment is located should accept the responsibility. There are well-established arrangements for general practitioners either to provide emergency treatment to unregistered people or to treat people as temporary residents for a period of up to three months.
The noble Lord, Lord Avebury, recognised and applauded the very considerable efforts of local authorities which have provided sites. I agree with him. Some have made a great deal of effort and expended a great deal of trouble; and I applaud them too. I was sorry that the noble Lord, Lord Congleton, said that the arrangements were going to be cast on one side. That is not so. Our proposals do not reward authorities which have not provided adequate sites for gypsies. The simple fact is that the new powers for local authorities are necessary to enable them to control unauthorised camping in their areas. It is the control of unauthorised camping which underlies the subject. The grant has continued for 15 years. We believe, for the reasons that I have given, that it is time for it to come to an end. Of course, whenever a grant comes to an end 101 reasons are put forward on why it should continue; and everyone would like it if it were to continue. But the grant has not solved the problem. Even the noble Lord, Lord Avebury, admitted that the problem would not be solved until the year 2015 or 2020.
While I understand the reasons for my noble friend Lord Stanley putting forward his amendment, I hope that he will not press it because I do not think that that would be right under the circumstances. A lot of local authority provision has been made. Much private provision has been made by the gypsies themselves. It is right that when more people wish to take on such a lifestyle they should be responsible for making that provision. If my noble friend were to press the amendment, I hope that your Lordships will reject it.
§ Lord Stanley of Alderley
My Lords, I might as well put your Lordships out of your agony and say that I intend to press the amendment, so noble Lords had better start to make up their minds which way they wish to go.
1562 I thank all noble Lords for their support. Perhaps I may deal quickly with the Court of Appeal case. In that case it is quite clear that New Age travellers—hippies, call them what you will—were not included. In particular, Lord Chief Justice Leggatt referred to requiring sites from the local authority. That was not my main argument however. My main argument was contained in the seven points which I made in my opening speech and I have no intention of repeating them now; it would only bore your Lordships.
We are all agreed—particularly my noble friend Lord Ferrers, who has said it a hundred times—that the problem is providing enough sites for the gypsies. We just do not have enough. I believe that my amendment would give the local authority and the private sector time to find the sites. My noble friend Lord Brentford brought up the question of the planning problem and that it takes two years even to get the sites into the structure plan. Then the gypsies have to try to apply for them, so it will take a little time. That is what I ask your Lordships to give.
I fully accept that it is a difficult problem. It goes without saying that my interest is on the farming and rural side, as I am agonised and infuriated by the unauthorised sites. However, the amendments are also supported by those on the social side of the problem and, as your Lordships know, they are strongly supported by Save the Children, so we are at one over the problem.
My noble friend Lord Ferrers chided me, as I thought he would, for asking for a delay. I am more than used to being chided and teased; I have been all my life and I shall continue to be so. Perhaps my noble friend did not realise and appreciate another recent court decision within the past few months in which a farmer was awarded substantial damages against Avon County Council for not providing sites. If we give local authorities a delay, they will start paying attention. Maybe the farming community should have taken the case up before, but once one case is taken up and has been judged—I hope I am allowed to quote the damages, I believe that they were over £70,000—local authorities might just start thinking again about their duty. That is why I wish to have a delay.
My noble friend Lord Ferrers again said that the Act has been in force since 1968, so why do we have to wait another five years to do anything? I follow the words of the noble Lord, Lord Congleton: there needs to be a political will. There may have been the political will in the recent court case against Avon County Council, but frankly I cannot believe that a single noble Lord here, when faced with a difficult decision—and this is difficult—will not put it off. I usually put the problem in the pending tray and hope that when, after a few months, it has disappeared under a heap of paper, I shall not have to sort it out.
Because of the court case and all the planning problems, the eleventh hour has come and I ask that we should give local authorities a little longer to solve the problem. I agree with my noble friend Lord Peel that the Government have done much in the Bill to try to prevent rural crime. I am truly grateful for that and I am sorry that in this case they cannot follow the argument that 1563 this legislation could well cause more rural crime as we move gypsies from one unauthorised farm site to another unauthorised farm site. Indeed, it might well pit farmer against farmer.
This is a minor correction to the Bill. I suggest that it is the kind of minor correction that is in keeping with your Lordships' revising role. I hope that it is widely supported by noble Lords; it is certainly widely supported outside. I therefore very much hope that noble Lords will support it in the Lobby. I commend the amendment to your Lordships.
§ 6.13 p.m.
§ On Question, Whether the said amendment (No. 124A) shall be agreed to?
§ Their Lordships divided: Contents, 133; Not-Contents, 104.1564
|Airedale, L.||Hertford, M.|
|Archer of Sandwell, L.||Hilton of Eggardon, B.|
|Ardwick, L.||Hollick, L.|
|Ashley of Stoke, L.||Hollis of Heigham, B.|
|Attlee, E.||Houghton of Sowerby, L.|
|Avebury, L. [Teller.]||Howell, L.|
|Barnett, L.||Howie of Troon, L.|
|Beaumont of Whitley, L.||Hughes, L.|
|Beloff, L.||Hylton-Foster, B.|
|Blackstone, B.||Irvine of Lairg, L.|
|Bonham-Carter, L.||Jay of Paddington, B.|
|Boston of Faversham, L.||Jay, L.|
|Bottomley, L.||Jeger, B.|
|Brentford, V.||Jenkins of Putney, L.|
|Bridges, L.||Judd, L.|
|Brightman, L.||Kilbracken, L.|
|Broadbridge, L.||Kinloss, Ly.|
|Brougham and Vaux, L.||Lawrence, L.|
|Burton, L.||Listowel, E.|
|Cadman, L.||Lovell-Davis, L.|
|Carnarvon, E.||Lucas, L.|
|Carter, L.||Lytton, E.|
|Clinton-Davis, L.||Mackie of Benshie, L.|
|Cocks of Hartcliffe, L.||Mallalieu, B.|
|Coleraine, L.||Mason of Barnsley, L.|
|Congleton, L.||McCarthy, L.|
|Craigavon, V.||McGregor of Durris, L.|
|Darcy (de Knayth), B.||McIntosh of Haringey, L.|
|David, B.||McNair, L.|
|Dean of Beswick, L.||Merlyn-Rees, L.|
|Dean of Thornton-le-Fylde, B.||Molloy, L.|
|Desai, L.||Monkswell, L.|
|Dilhorne, V.||Monson, L.|
|Donaldson of Kingsbridge, L.||Montgomery of Alamein, V.|
|Donoughue, L.||Morris of Castle Morris, L.|
|Dormand of Easington, L.||Mottistone, L.|
|Eatwell, L.||Mountgarret, V.|
|Ennals, L.||Mulley, L.|
|Ezra, L.||Murray of Epping Forest, L.|
|Faithfull, B.||Newall, L.|
|Falkland, V.||Park of Monmouth, B.|
|Gainsborough, E.||Pearson of Rannoch, L.|
|Gallacher, L.||Peel, E.|
|Geraint, L.||Peston, L.|
|Gisborough, L.||Peterborough, Bp.|
|Gladwyn, L.||Pitt of Hampstead, L.|
|Gould of Potternewton, B.||Ponsonby of Shulbrede, L.|
|Graham of Edmonton, L.||Prys-Davies, L.|
|Grantchester, L.||Rankeillour, L.|
|Gray of Contin, L.||Rea, L.|
|Greenway, L.||Redesdale, L.|
|Gregson, L.||Richard, L.|
|Grey, E.||Rix, L.|
|Harding of Petherton, L.||Robson of Kiddington, B.|
|Harris of Greenwich, L.||Russell of Liverpool, L.|
|Haskel, L.||Saltoun of Abernethy, Ly.|
|Seear, B.||Wallace of Coslany, L.|
|Serota, B.||Wedderburn of Charlton, L.|
|Stallard, L.||Wharton, B.|
|Stanley of Alderley, L. [Teller]||White, B.|
|Stedman, B.||Wigoder, L.|
|Strabolgi, L.||Wilberforce, L.|
|Strange, B.||Williams of Crosby, B.|
|Tenby, V.||Williams of Elvel, L.|
|Thurlow, L.||Williams of Mostyn, L.|
|Tordoff, L.||Winchilsea and Nottingham, E.|
|Turner of Camden, B.|
|Addison, V.||Jeffreys, L.|
|Alexander of Tunis, E.||Johnston of Rockport, L.|
|Alexander of Weedon, L.||Kimball, L.|
|Annaly, L.||Kinnoull, E.|
|Arran, E.||Lauderdale, E.|
|Astor, V.||Lawson of Blaby, L|
|Balfour, E.||Leigh, L.|
|Barber, L.||Long, V.|
|Belhaven and Stenton, L.||Lyell, L.|
|Blatch, B.||Mackay of Ardbrecknish, L.|
|Blyth, L.||Mackay of Clashfern, L. [Lord|
|Boyd-Carpenter, L.||Merrivale, L.|
|Brabazon of Tara, L.||Mersey, V.|
|Brigstocke, B.||Miller of Hendon, B.|
|Bruntisfield, L.||Milverton, L.|
|Campbell of Alloway, L.||Moran, L.|
|Carnock, L.||Munster, E.|
|Carr of Hadley, L.||Murton of Lindisfarne, L|
|Chalker of Wallasey, B.||Napier and Ettrick, L.|
|Clark of Kempston, L.||Nelson, E.|
|Colnbrook, L.||Norrie, L.|
|Colwyn, L.||Northesk, E.|
|Cork and Orrery, E.||Oppenheim-Barnes, B.|
|Courtown, E.||Orkney, E.|
|Craigmyle, L.||Peyton of Yeovil, L.|
|Cranborne, V.||Platt of Writtle, B.|
|Cumberlege, B.||Rawlinson of Ewell, L.|
|Davidson, V.||Renton, L.|
|Dean of Harptree, L.||Renwick, L.|
|Dixon-Smith, L.||Rodger of Earlsferry, L.|
|Elles, B.||Seccombe, B.|
|Elliott of Morpeth, L.||Simon of Glaisdale, L.|
|Elton, L.||Skidelsky, L.|
|Erne, E.||St. Davids, V.|
|Ferrers, E.||Stewartby, L.|
|Finsberg, L.||Stockton, E.|
|Flather, B.||Strathclyde, L.|
|Fraser of Carmyllie, L.||Strathcona and Mount Royal, L.|
|Gardner of Parkes, B.||Strathmore and Kinghorne, E.|
|Gilmour of Craigmillar, L.||[Teller.]|
|Glenarthur, L.||Sudeley, L.|
|Goschen, V.||Swinfen, L.|
|Gridley, L.||Tebbit, L.|
|Hailsham of Saint Marylebone, L.||Thomas of Gwydir, L.|
|Hastings, L.||Trumpington, B.|
|Hayter, L.||Tugendhat, L.|
|Hemphill, L.||Ullswater, V.[Teller.]|
|Henley, L.||Vivian, L.|
|Holderness, L.||Wakeham, L. [Lord Privy Seal.]|
|HolmPatrick, L.||Westbury, L.|
|Hood, V.||Wynford, L.|
|Howe, E.||Young, B.|
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ 6.22 p.m.
§ Lord Stallard moved Amendment No. 124B:
Before Clause 79, insert the following new clause:
§ Definition of obscenity
§ "Definition of obscenity.
1.—(1) For the purposes of this Act, any publication, whether written, printed, audible or visual, shall be deemed to be obscene if in the opinion of a jury it—
(2) Without prejudice to the generality of subsection (1) (a) above, where it is apparent that the publication is intended for or sold to children and young persons under the age of 18 years, it shall be deemed to be obscene if it contains any material of the nature set out in subsection (1) above without the necessity of satisfying the requirements of paragraph (b)".").
§ The noble Lord said: My Lords, the object of this amendment is much the same as that of the amendment moved by the noble Lady, Lady Saltoun, and supported by the noble Earl, Lord Halsbury, at Committee stage. The object of this amendment is, to quote the noble Lady, to put some teeth into the 1959 Act.
§ Unlike the noble Lady, while I welcome the amendments that are shortly to follow this one on videos and other matters, I regret that that amendment does not deal with books, pictures, photographs, plays, broadcasting and so on. My amendment is an attempt to try to fill that gap.
§ It has certainly been my experience that the present laws do not work. I think that that is the experience of most people. All sorts of excuses are made as to why that is so, but nobody seems to be too insistent on changing them. Ordinary people to whom I speak, and to whom I have spoken over the years for a long time, just do not understand why something cannot be done to improve what to them is a serious situation.
§ It is a widely accepted fact that since 1960 standards and moral values have declined quite dramatically in our country. They have declined since the 1959 Act came into force and they continue to do so. I shall repeat just one or two of the statistics that were used. For example, in 1961 there were 51,000 illegitimate births in this country. By 1991 the number had risen to 235,000. In 1961 there were 27,000 divorces; in 1991 there were 167,000 divorces, and that figure is still rising quite rapidly. Drug offences, rape, burglary, street crime, car crime and crimes of violence have all increased. It is a well-known fact that in some inner-city areas those crimes seem to be almost out of control. In such areas we have come to accept such statements as: "You can expect to be burgled; you can expect to be mugged". A lot of people just do not accept that, and they want to know why they have to accept it. They want to know, if something can be done about it, why it is not being done. That is a very common, ordinary and legitimate question.
§ I firmly believe—many people may not agree with me; certainly not Members of this House—that much of the problem arises from the permissiveness which began in the 1960s, when the Christian and moral values on which our society was, and is, built, the values on which it was founded, began to be eroded. We saw the breakdown of respect between men and women, parents and children, children and teachers and between a huge chunk of the population and the police force. We saw a lessening of respect for the elderly and infirm and a 1566 general lack of respect for people and their property. Something has to be done. I read the debate that took place (because I could not be here at the time) and I believe that this amendment, with the couple of alterations that we have made to it since the Committee stage, ought to meet the objections that were raised, certainly those raised by the government Minister who replied to the debate.
§ It seems that the original flaw in the 1959 Obscene Publications Act may lie in the requirement for a prosecuting counsel to prove to a jury that any specific material held to be obscene has a tendency to deprave or corrupt a significant proportion of persons likely to read, hear or see the matter. I fully accept that it is very difficult to prove a tendency. It is equally difficult for a jury to decide on a guilty verdict in such matters given that the wording is so vague and subjective and is open to such a variety of interpretations.
§ Over the years, a long succession of lawyers, judges and DPPs have criticised the wording of the Act, using such terms as "unworkable", "unenforceable", "unten-able" and "illogical", and have described it as providing a formula that cannot be applied. They have all said so. This amendment is an attempt to change that situation. I accept that it was the intention of Parliament in passing the 1959 Act to strengthen the law against pornography without penalising works of genuine artistic merit. In practice, the law has been rendered almost powerless against pornography.
§ The point is clearly demonstrated if we compare the modest volume of pornography that was offered for sale prior to the 1959 Act with today's huge pornographic industry. Nobody can gainsay that there is now a huge industry in pornography and that it is increasing rapidly. I need make no more speeches about how much the situation has deteriorated since the introduction of that Act and the way in which it was worded.
The substance of the material that is published has undergone substantial change over that same period. For example, the risqué girlie magazine of those days bears no comparison with today's steadily expanding trade in publications that specialise in sexual perversions of nearly every imaginable kind, including sadomasoch-ism. As long ago as 1972 the then Master of the Rolls, the noble and learned Lord, Lord Denning, criticised the failure of the Obscene Publications Act. He said that experience has shown that much material which even at first sight would appear to be pornographic in the extreme has escaped the reach of the law. The noble and learned Lord argued that the law had misfired because of the, wording of the statute and the way in which the courts had chosen to apply it. Each failed prosecution seemed to encourage the pornographers to push back the bounds of acceptability even further. It also made it extremely unlikely that the DPP would enable subsequent prosecution cases to be brought to trial owing to the extreme unlikelihood of a conviction being obtained under the 1959 statute. The decision of the Director of Public Prosecutions in respect of the publishers of the Marquis de Sade's book Juliette to the effect that:
there is insufficient evidence to provide a realistic prospect of conviction as required by the code of prosecutors
§ clearly shows the need for a new code. That book contains material which is so horrifying that the printers who produce the parliamentary House magazine refused to typeset it. The book describes and advocates violence of the most perverted kind. If I were to try to illustrate it, Hansard would probably be banned under my amendment. It would certainly be out of order. Yet Juliette can be bought by teenagers from any bookshop. After the recent horrific attacks on women and children, an urgent government review of Britain's obscenity laws would clearly have public support.
§ From correspondence and calls that I received following recent discussions and Questions in your Lordships' House on the Education Bill, the sex education provisions of that Bill and some of the material being published at that time, I know the strength of support to be found outside as well as inside this House for something to be done. The argument of those who oppose any tightening of the present laws, that there is no proof of a link between pornography, violence and sexual crime, is no longer credible. There is an argument that tightening of the law is on the way to censorship. That may be. But maybe there is a need for an element of censorship. Even with complete freedom, there must be some limits and some kind of code provided. There have to be some moral values and some base. I believe that is where we went wrong when the Christian values in which most of us were brought up began to be eroded.
§ Let me give an example of what is happening. It arose from a Question that I asked in March concerning two publications: A Sex Guide and Your Pocket Guide to Sex. Arising from my Question and the publicity it received, there were some protests and statements made by Ministers in the other place. Pressure was put on the publishers and others to withdraw the publications. I have now received the copy of a cover of a new Penguin publication in the same vein, one corner of which states: "The book the Government tried to ban". Are people so far gone that they do not take any notice at all of this place or of what we are trying to do and are cashing in on the Government trying to ban the book so that they can sell more copies of that awful publication? Most of us would reject such publications if our children were to say, "This is what I am reading now; I bought it in Smith's".
We must do something. In the meantime, the pornographers and that industry is clearly using the present Obscene Publications Act as an umbrella under which they feel free to expand their markets without let or hindrance. My amendment, worded as it is, meets the objections of the noble and learned Lord, Lord Rodger of Earlsferry, who said:
It seems to the Government that, in so far as it can be, the law has to be in keeping with the views of ordinary men and women. That is how it is expressed by juries".—[Official Report, 7/6/94; col. 1216]
§ He is quite right. He does not agree with that when it comes to his final words, but he is quite right. The law has to be in keeping with the views of ordinary men and women. I defy noble Lords to find any ordinary men or women who do not agree that there is need for a change of the nature that I suggest tonight. There has to be a 1568 change. The whole thing has to be brought back into some kind of reasonableness. My amendment is one way of doing it.
The noble and learned Lord concluded that:
the Government believe that the 1959 Act, as it stands, contains a formulation which has not so far been bettered, and we do not believe that this amendment would improve upon it".—[Official Report, 7/6/94; col. 1217]
§ That may have been true. There were a couple of words which made the amendment difficult and circuitous. We have removed those words. I now submit that the amendment as shown on the Marshalled List today meets those criticisms. I hope that the House will be able to accept the new amendment. I beg to move.
§ 6.30 p.m.
§ Lord Renton
My Lords, I am sure that every one of your Lordships sympathises with the noble Lord, Lord Stallard, in his description of the general decline of morals—especially, alas! among the young—to which he referred. Let there be no doubt about that. That is the motive for his amendment. However, with deep respect to the noble Lord, I am not sure that it is a solution to the very much broader social problem which he mentioned.
I turn to the terms of the amendment. In doing so, I ought to declare that when the Obscene Publications Bill (which was a Private Member's Bill, introduced by Mr. Roy Jenkins, now the noble Lord, Lord Jenkins of Hillhead) came before the other place, I, as a junior Minister at the Home Office, had to advise the other place upon it. That was 35 years ago. I hope that noble Lords will broadly agree that the Act has stood the test of time fairly well. It has the very great: advantage of simplicity.
Its terms are truly simple. The noble Lord quoted the whole of the subsection in question. I shall quote only part of it:tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it".So far as I know—and others may know better—in practice that has not given rise to difficulties in the courts. Certainly it is not the only provision in the Act. Toward the end of the Act there is a section which deals with the defence of the public good. I should have thought that it would be better to stick to that provision in Section 1(1) of the 1959 Act instead of trying to replace it in the way suggested by the noble Lord, which is nothing like so simple and which will give rise to difficulties of definition—definition of terms which the jury may not easily understand. Not every juror will know the meaning of the word "sado-masochism". New paragraph (1) (b) of the amendment is another way of expressing the tendency to deprave and corrupt.
It is right that we should always be trying to improve the law. But when trying to improve a law which has stood the test of time for so many years, we must be quite sure of what we are doing. Quite frankly, I prefer the simplicity of Section 1 of the 1959 Act to the complexity of the noble Lord's amendment.
§ Lord McIntosh of Haringey
My Lords, it is necessary to say from this Dispatch Box—or perhaps at a discreet distance from it—that this is a matter on 1569 which my noble friends have a free vote. There is no issue of party policy or a Whip on the matter. At the same time, for myself I say that I am as strongly opposed to this amendment as I was to the previous one.
I was enormously impressed by the speech of the noble and learned Lord the Lord Advocate in response to the amendment moved by my noble friend on the last occasion. He pointed out, as my noble friend reminded the House, that definitions of the Obscene Publications Act 1959 have never in practice been bettered. He pointed out the fallacies of trying to define obscenity not by the purpose of the obscenity but by what is depicted. If one does that, one becomes involved in an impossible tangle of asking whether a news item or a piece of classical art or literature is to be treated in the same way as something designed for pornographic purposes. I am sure that no amendment along the lines suggested by my noble friend could ever replace the definition contained in Section 1. Any amendment which attempts to remove Section 1 of the 1959 Act is doomed to failure.
Paradoxically, my noble friend made the situation worse. Because he limited the scope of the amendment to certain things—sadomasochism, bestiality and so forth—he restricted the definition of obscenity more than he wished. He ruled out some of the provisions which the 1959 Act in its present formulation could deal with but which could not be dealt with by an amendment of the sort proposed. I beg my noble friend, person to person, not to press the amendment.
§ Lord Avebury
My Lords, perhaps I can point out another omission in the amendment proposed by the noble Lord, Lord Stallard, which may be considered to be of importance. In Section 79, which follows the amendment, provision is made for computer-generated images which may be a growing and even more harmful influence on the lives of young people. Much has been said and written on the subject in relation to the ease of access to pornography generated on disck, some of which is alleged to be freely available in schools, and also the more worrying phenomenon of pornography distributed over the Internet, which is freely available to anybody with a computer and modem. Perhaps when the Minister replies to the amendment he can say whether or not the Government have had any thoughts on the matter.
Whatever definition one has of obscenity, it implies that there must be some mechanism of control. Once a publication is regarded as obscene it can be seized in the bookshops, if it is a book. If it is a disk, equally the authorities can go to the people selling the disks, apprehend them and confiscate the goods. But I am not sure how we can cope with pornography that is available over electronic media; nor can I think of a remedy for pornography distributed over satellite television. There is a certain amount of that, though I am happy to say that it is not freely available in this country.
Rather than concentrate on the old forms of pornography such as pictures, magazines and text, we must consider the new facilities which the electronic media have made available to pornographers to distribute their work and how we can deal with it. At the 1570 same time, we must be careful not to catch the innocent sellers of images which may be caught, not necessarily within this definition but in some other definition. The noble Lord, Lord Renton, is right to say that we should consider the context in which the images are contained. I received representations from people publishing naturist magazines to say that they are afraid that some of the provisions of Clause 79 may render them liable to prosecution. An image of a naked child in a magazine addressed to the naturist community is not obscene; it is part of the normal way of life of naturists. Nobody suggests that there are any sexual connotations to such images and we would not want a definition of obscenity which was so wide as to catch that kind of image, or indeed the artistic images which have no overtones of the sort mentioned by the noble Lord, Lord Stallard.
This is perhaps not the place in which to enter into a lengthy discussion on the subject. But the Government must address their mind as to what we should do about pornography distributed through computer media, particularly the ready availability of disks to schoolchildren and the much more knotty problem of how we deal with pornography distributed over the Internet and over satellite television. I do not believe that we have the means to deal with it and I shall be glad to hear reassurances from the Minister.
§ 6.45 p.m.
§ Lord Simon of Glaisdale
My Lords, as I had something to do with the 1959 Act as a Home Office Minister and meddled with its interpretation in two cases in your Lordships' House—Shaw v. Director of Public Prosecutions where I appeared as a law officer and then in Knuller as a participant in the decision—I should like to offer humbly a few observations.
First, there is no doubt that the case of Knuller gave a great relaxation to the law. Secondly, it is not realistic to say, as the noble Lord, Lord Stallard, said, that any lapse in public standards of morality have anything to do with the 1959 Act. I find it quite impossible to trace any relationship. Thirdly, the 1959 Act contains two defects, one of which has been overcome. For a long time it was misused. A famous leading counsel appeared in case after case supported by an expert witness and he took the issue posed by the 1959 Act in quite the wrong way.
As the noble Lord, Lord Renton, said, Section 1 gives the test for pornography as a tendency "to deprave or corrupt". Section 4 introduces the defence of public good. What it says, and I think is now understood, is that a work, notwithstanding that it may be obscene, nevertheless on the whole may conduce to the public good by reason of, say, its artistic or literary merit. It is a difficult balancing act to be performed by a jury but juries can perform it, weighing the evil of the obscenity against the correlated good of the artistic or scientific merit. Where it went wrong for a long time was that it was successfully argued in case after case that the obscenity was itself of value; that people benefited by contemplating the obscenity. An expert witness would be asked, "Do not your patients masturbate as a result?" He would say cheerfully, "Yes, they do, and much to their relief. As a result, the issue that was really posed 1571 by the Act was misunderstood in case after case. That has been rectified by a decision in your Lordships' House. I respectfully agree with the noble Lord, Lord Renton, that the Act now works reasonably well, as was intended.
The second defect is perhaps less important. The verdict of the jury masks entirely the question whether it thought the article obscene or whether the obscenity was outweighed by the artistic, scientific or other good. As a result we know very little about the way the Act has worked in individual cases. If there is an amendment to the Act I would much prefer to see it clarified that separate verdicts are brought in on the question of obscenity and any countervailing public good. Having said that, much as I admire the noble Lord, Lord Stallard, I cannot agree that the new proposed clause would improve the matter, even in the way that he seeks.
I make one final suggestion: the whole subject was reviewed about 10 years ago by a committee chaired by Professor Williams. Unfortunately, the general effect of its report was to trivialise the whole issue. The report found no favour when it was debated in your Lordships' House; it was in fact dropped. I believe, however, that it contained one valuable suggestion. That was to get away from the test of to deprave and corrupt and to ask instead: does this article outrage public decency? I would very much like to see further inquiry and exploration on those lines. In the meantime I cannot, on any approach, support the amendment.
§ Lady Saltoun of Abernethy
My Lords, I support the intention behind the amendment of the noble Lord, Lord. Stallard; it is exactly the same as the intention behind my amendment at Committee stage. The noble Lord, Lord Renton, said that the Obscene Publications Act had the merit of simplicity. It is all very well an Act having the merit of simplicity. But if it is not effective that merit is neither here nor there. I contend that the Obscene Publications Act is not effective.
I have to confess that I would like to see some form of censorship brought back. I know that at present censorship is a dirty word. But we have censorship through the Race Relations Act and in connection with equal opportunities. If advertising for an employee we may not specify whether that employee is to be male or female. What is that except a form of censorship? The only difference between the 1950s and nowadays is what is censored is different.
No one is quicker than myself in agreeing that this amendment, or something like it, is not the whole answer to the question. I believe, however, that it would go a little way towards helping it.
My Lords, I know that the noble Lord, Lord Stallard, is much concerned about this matter and I respect him for standing up for the maintenance of standards and moral standards which seem to be so much under attack nowadays.
§ Lord McIntosh of Haringey
My Lords, the Minister is not suggesting that moral standards have been under attack in this House this evening, is he?
My Lords, certainly not. I do not know where on earth the noble Lord, Lord McIntosh, gets that 1572 idea. I had better start again if the noble Lord is going to be so finicky as to try to trap. I was merely commenting and commending the noble Lord, Lord Stallard, in general for standing up for certain standards which, on the whole, seem to be under attack outside this House.
I want to make it perfectly clear to start with that the Government have no doctrinaire attachment to the tendency to deprave and corrupt test of obscenity which is currently part of the Obscene Publications Act 1959. As we have often said, if anyone could devise a new test which seemed to us to be better than the existing one, we would be content in principle that the law should be changed, if, of course, Parliament also wished it. But while the Government certainly share the noble Lord's concerns, I could not, as he and other noble Lords realise, advise noble Lords to accept the amendment.
The Obscene Publications Act 1959 makes it an offence to publish, or possess for publication for gain, any article which, taken as a whole, has a tendency to deprave and corrupt those likely to read, see or hear the matter contained or embodied in it where an "article" —I mean this in the legal sense and not the journalistic sense—is made up of distinct elements, for example, separate features in a magazine. The article may be found obscene if any one of those elements, taken as a whole, has a tendency to deprave or corrupt. Section 4 of the Act provides that no offence is committed if the defendant can prove that publication of the article concerned is justified as being for the public good on the grounds that it is in the interests of science, literature, art or learning, or other objects of general concern.
I suppose that the main criticism of the current "deprave and corrupt" test, is that it is imprecise, archaic and difficult for jurors to understand, with the consequence that too few prosecutions for obscenity are brought, and too few of those succeed. But, the statistics do not altogether bear this out. In 1993, there were 213 prosecutions and 172 convictions for obscenity offences under the 1959 Act. Figures for seizure and forfeiture under Section 3 of the Act are not collected centrally but from inquiries which have been made of the Metropolitan Police we understand that in 1993 they alone seized 147,716 obscene items which is not a bad trawl.
As for imprecision and uncertainty, one of the advantages of the current test is its adaptability. It is not confined to precise subjects, and certainly not to pornography. It can catch any material which has a tendency to deprave and corrupt, whether it is concerned with drug taking, sexual perversions, violence, crime, or instructions for bomb-making.
At the beginning of this year my right honourable friend the Home Secretary looked carefully at the various proposals which have been made for a new test of obscenity over the years, as well as at a test suggested by Mrs. Ann Winterton MP. These tests fall into two main camps; those which provide a list of subjects which may not be depicted, and those which prohibit depictions which are grossly offensive. The noble Lord's amendment, I think, falls somewhere between the two.
1573 Both of these approaches have significant disadvan-tages however. A list approach is inflexible and essentially arbitrary; inevitably some things are missed out, while other things may be inadvertently included under a broad general heading which we would wish to exclude on more careful thought. A gross offensiveness test is at least flexible, but it seems wrong in principle to ban something just because some people, or even most people, may be offended by it. Many things may be offensive to many people, but this is not, in itself, a reason to ban them. The current deprave and corrupt test concentrates on the harm which an article may do to those who are exposed to it, and this seems to be right in principle.
When my right honourable friend considered the alternatives to the current test, he asked himself, as I think your Lordships should do now, what difference they would make in practice. It is impossible to predict which articles, or even which broad categories of article currently escape the test of obscenity but would be caught by the test of the noble Lord, Lord Stallard, which is, I am bound to say, vague and uncertain, and to some extent a little confusing. The proposed amendment contains a variety of different criteria for determining whether an article is obscene. These are to be applied in different combinations according to the circumstances of each case. The definition of obscenity would be almost circular, as one of the criteria as to whether an article is obscene depends on whether it portrays "nauseating obscenity". So what is obscenity? It is something that is obscene. What is obscene? It is something which portrays "nauseating obscenity"—and so we go round and round. The criteria also contain elements such as "degrading violence", "nauseating obscenity", "lewd" material, all of which are undefined, and all far from providing a more certain and objective test than the current test of obscenity.
In general, articles would be found obscene under the proposed test only if they "could encourage similar acts" or conduct. In fact, this is probably more restrictive than is the current requirement that they should have a tendency to deprave and corrupt. This does not necessarily imply any effect on actual conduct but it may simply refer to moral degeneracy, or to the continuance of an already corrupt manner of life.
As I have said, one of the virtues of the current test of obscenity is that it can apply to any type of material which has a tendency to deprave and corrupt, and it is not confined to pornography. The noble Lord's amendment would cover only sexual material, violent material, and material concerned with controlled drugs. It would not, for example, cover material which glamorises a life of crime, or instructs people in how to make bombs, both of which can be covered under the present definition.
If the objection to the current test is that it is too difficult for juries, I am bound to say that I do not think that jurors would find the noble Lord's proposed new test much easier to apply—rather the contrary in fact. But I wonder whether juries do find the existing test difficult.
1574 There has undoubtedly been a change in standards of public acceptability over the years. I think that many of your Lordships would agree also that the change has been for the worse. I think that the noble Lord, Lord Stallard, certainly would do so. However, it is difficult to attribute this change to any particular deficiency in the law, which has remained the same since 1959, and which is indeed almost identical to the common law of a century ago. I think the truth is that social mores have changed as a whole, and people are simply not as shocked, or shockable, as they once were. This may be a pity and I, for one, think that it is highly regrettable, but I doubt whether any amendment to the test of obscenity would reverse this process.
The noble Lord, Lord Avebury, referred to the damage which computer material and disks can do. He will note that Amendment No. 126A in the name of my noble friend Lord Gisborough deals with disks. The Bill strengthens our controls on obscenity, and particularly on computer pornography, by making it clear that transmissions between computers are covered by the Obscene Publications Act; by extending the law to cover child pornography which is manufactured by computer; by making it an imprisonable offence merely to possess child pornography; by increasing the penalties for obscenity offences in Scotland and by making obscenity and child pornography offences in England and Wales serious arrestable offences. The Bill strengthens those areas considerably.
However, I should not like to be discouraging to the noble Lord, Lord Stallard. The Government take very seriously the threat that is posed by the worst kinds of obscene material. That is why we have included the existing provisions of Part VII. It is vital that the law should keep pace with advances in modern technology, such as computer pornography, and especially computerised child pornography. As I have said, the Bill also makes obscenity offences arrestable, and it will give the police increased powers to obtain evidence against pornographers. It provides a possible prison sentence for those found in possession of child pornography, and it brings the penalties for obscenity offences in Scotland into line with those in England and Wales. I do not think that anyone can justly accuse the Government of taking no action on this matter.
Although I understand the concern of the noble Lord, Lord Stallard, I am bound to tell him that we do not believe that this amendment would improve the law. Indeed, if it were adopted there is a strong risk that the law might actually be left in a worse position—by being left in an ambiguous and confused state which would inevitably create an area of opportunity for the pornographers to exploit to their advantage.
§ 7 p.m.
§ Lord Stallard
My Lords, I have listened carefully to all those who have participated in the debate. I must confess that this is what I expected. I did not expect that my amendment would receive the acclaim of your Lordships' House. However, I am a bit disappointed that the Government were not more positive. I had thought that this Government would at least appear to be more positive to any alternative provisions to try to stop 1575 the flood of pornography which concerns us all. In view of that, I should be happy if the Minister were to say to me that the Government will come forward with a better amendment to do the job that I have sought to do. If the noble Earl could say that, it would help everybody. However, from listening to him, it seems that the Government are simply sitting back and saying that this has been the law for 35 years. It seems that until some change is forced upon them by public opinion, nothing will happen. I hope that the public will listen to small debates like this because even if people think that I am wrong—they may think that the Government are wrong —at least the debate will have started.
The noble Lord, Lord Renton, said that the 1959 Act is simple. That is supposed to be its merit. However, I have read umpteen opinions from a succession of lawyers, judges, law lords and directors of public prosecution. All have criticised the wording of the 1959 Act, using words such as unworkable, unenforceable, untenable, illogical and saying that it provides a formula that cannot be applied. Therefore, it does not seem to me that the colleagues of the noble Lord, Lord Renton, in the legal profession think that the provisions are simplistic. In fact, I think that the opposite is the case. The Act is too complicated for even those lawyers to be able to make sense of it. The Act needs changing.
If we let this opportunity slide by, nothing will be changed. That is obvious from hearing the contributions from the other side and the Minister's remarks. I am sad that the noble and learned Lord, Lord Simon of Glaisdale—I have the utmost respect and admiration for everything else that he does—is wrong because he does not agree with me on this. I am sad about that, but I do not believe that the Act is working.
If the Act were working, there would be much more success than that to which the Minister was able to point. The statistics that he gave show minimal effort given the size of the problem. We are talking about a problem running into hundreds of thousands of cases, not a paltry few hundred offences here and there. Pornography is a big industry and the 1959 Act is obviously not good enough, not strong enough —and too complicated—to be able to deal with it. Indeed, it is so complicated that even lawyers and DPPs cannot understand it.
Therefore, something has to be done and, in the absence of anything else, I suggest that my amendment would at least improve the existing position. It might even take the debate a step forward. I seek the views of your Lordships on that.
§ Division called.
§ The Deputy Speaker (Lord Strabolgi)
My Lords, the Question is that Amendment No. 124B be agreed to. As many as are of that opinion shall say, "Content". On the contrary, "Not-Content".
§ Lord Annaly
My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, perhaps I may suggest that Report stage begin again not before 8.15 p.m.
§ Moved accordingly, and, on Question, Motion agreed to.