Clause 1: Power to grant injunctions
Moved by Lord Dear
1: Clause 1, page 1, line 8, leave out from “in” to end of line 9 and insert “anti-social behaviour.
( ) Anti-social behaviour is—
(a) conduct that has caused, or is likely to cause, harassment, alarm or distress to any person, or
(b) in the case of an application for an injunction under this section by a housing provider or by a local authority when exercising similar housing management functions, conduct capable of causing nuisance or annoyance to any person.”
My Lords, in moving Amendment 1, I want to be absolutely clear on one thing: anti-social behaviour can be, and often is, a blight on society and on those who suffer as victims of individuals who care only for themselves—people who are thoughtless, selfish or deliberately provocative. I believe, as many in your Lordships’ House will, too, that the law should continue to try to prevent that happening and to offer relief to those who suffer from that sort of behaviour. Their well-being is precious. On the other hand, civil liberty is precious, too, and a balance has to be struck between those two requirements.
My amendment is largely concerned with that balance and with a search for certainty, precision and clarity. It is concerned with the legal requirement that the law should be precise and not undermine fundamental human freedoms. The amendment is of course also about anti-social behaviour but the primary issue is an important and very long-established jurisprudential principle. From at least the days of Halsbury, it has been recognised that the law should be clear, reasonable, precise and unambiguous. People must know what the law demands of and grants to them. That principle is followed in all developed democracies. For example, in the USA the void for vagueness doctrine allows a statute to be struck down if it lacks sufficient definiteness or specificity so that:
“Men of common intelligence cannot be required to guess at the meaning of the enactment”.
That is from the case of Winters v New York in 1948.
Existing ASBO and public order legislation addresses anti-social behaviour by defining it in those circumstances as conduct that causes harassment, alarm or distress—a threshold test accepted by lawyers and lay people alike that has been well understood after years of judicial interpretation and never seriously challenged or openly criticised as too restrictive in scope. The Bill before us seeks to replace that three-word threshold test of harassment, alarm or distress with two new words: “nuisance or annoyance”. In so doing, it will open the door to uncertainty, confusion and legal injustice. Most of Clause 1 is concerned with the mechanics of the new injunctive procedure but the threshold test is the pivotal point around which everything else revolves. To put it another way, it is the foundation upon which all that is new will be based. The present threshold test of harassment, alarm or distress is about to be replaced with the altogether more imprecise words “nuisance or annoyance”. In other words, the net is being cast much wider—far too wide, in my opinion.
I am grateful to those who have supported me in tabling this amendment. The noble and learned Lord, Lord Mackay of Clashfern, was one of the most respected Lord Chancellors in the past half-century. The noble and learned Lord, Lord Morris of Aberavon, was an eminent Attorney-General. Both are signatories. So, too, is the noble Baroness, Lady Mallalieu, who brings a wealth of experience at the Bar as a practising QC and who spoke on
She reflected that the law should be precise and not undermine fundamental human freedoms. She recognised that anti-social behaviour was a serious problem but that action to deal with it should be balanced against the need to preserve civil liberties. She reminded the House that the Commons Home Affairs Committee had said that Clause 1 of the Bill is “far too broad”. She paid tribute, as I do now, to the opinion—widely circulated in your Lordships’ House—of the noble Lord, Lord Macdonald of River Glaven, a former Director of Public Prosecutions, who roundly attacked the Bill saying that, “Nuisance or annoyance”, is a phrase,
“apt to catch a vast range of everyday behaviours to an extent that may have serious implications for the rule of law”.
He went on to say:
“In my view, the combination of a low and vague threshold for the behavioural trigger, coupled with the civil standard of proof, creates an unacceptable risk that individuals will inappropriately be made subject of a highly intrusive measure that may greatly impact on their fundamental rights”.
It is not only Members of this House and of the other place who are concerned. A wide, and even disparate, range of organisations and civil liberty groups have expressed the same opposition. Justice, Liberty, the Criminal Justice Alliance, the Standing Committee for Youth Justice, Big Brother Watch, the National Secular Society on the one hand, the Christian Institute on the other, the Association of Chief Police Officers and many more have all said the same thing. A letter was published in the Times on
I have a distinct feeling of déjà vu in speaking to this amendment, for it was only just over 12 months ago, on
No doubt it is to avoid an identical problem that the Association of Chief Police Officers has advised that, although it broadly supports the new IPNA, it believes that the suggested threshold is unreasonably low and it, too, advocates a return to the “harassment, alarm or distress” test.
With all those examples of the results of imprecise and vague legislation, I am frankly at a loss to understand why the Home Office is so eager to repeat the exercise, yet again facing a solid wall of resistance from experienced groups and learned individuals. I can but recall the words of the 1960s protest song—“When will they ever learn?”.
The phrase “nuisance or annoyance” has been borrowed, or perhaps lifted, from the context of existing housing legislation, which involves of course neighbours living in close proximity. In those special housing circumstances it is clearly almost impossible simply to move out or to look the other way or pay no attention. The present test in the housing sphere is restricted to conduct affecting the management functions of the landlord. What is appropriate in an environment with two-inch-thick party walls, or with 10 or more front doors opening onto a balcony on the fifth floor of a tower block, or with cramped lifts and common parts, all of that is clearly inappropriate, surely, in a public square.
Nuisance or annoyance, I would maintain, cannot and should not be applied to the countryside, the public park, shopping malls, sports grounds, the high street, Parliament Square, Speakers’ Corner and so on, because that risks it being used against any of us and against anyone in society. That risks it being used against those who seek to protest peacefully, noisy children in the street, street preachers, canvassers, carol singers, trick-or-treaters, church bell ringers, clay pigeon shooters and nudists—yes, they, too, have raised objections with me and, I know, other Members of your Lordships’ House.
We live on a crowded island and we must surely exercise a degree of tolerance and forbearance. I shall continue to be privately annoyed by those who jump the bus queue, those who stand smoking in large groups outside their office, drinkers who block the footpath outside a pub on a summer’s evening, those who put their feet on the seats on public transport, those who protest noisily outside Parliament or my local bank, but none of that should risk an injunctive procedure on the grounds of nuisance or annoyance. I and those who support me are content to leave the test of nuisance and annoyance in place in the housing context, where it is well tried and proven. We strongly resist its use elsewhere and do not see our concession to housing law as a weakness in our case. Rather, we see it as a strength, distinguishing, as it does, the essential difference between the two environments.
I said that I would be brief. In conclusion, I pay a small tribute to the Minister, who has tabled an amendment introducing a test of reasonableness. I applaud his concern but not the practicality, because that test, too, suffers from a problem of definition. I do not believe that it is enough to rely on a court considering it,
“just and convenient to grant the injunction”,
as set out in the second limb of Clause 1, or on the draft guidance for front-line professionals published in October last year, or on the insertion of the word “reasonable”. None of these will overcome the inherent flaw in the new test: the pivotal words “nuisance or annoyance” are vague and imprecise. The only certainty is that practitioners will leave it to the courts to decide, and thus introduce a chilling effect on lawful conduct, as they did for years when faced with the word “insulting” in the Public Order Act. We know only too well what difficulties that caused. Even in the court room, “reasonable” is itself subjective, and coupled with the lower burden of proof and vague and imprecise terminology, employing words that are hitherto untested in the courts, we will set the scene for confusion and inequity, for courts cluttered with inappropriate actions and for a wave of unintended consequences.
I conclude with the point with which I began. The amendment is about certainty and clarity, with the legal requirement that the law should be precise and should not undermine fundamental human freedoms. I contend that the Bill as drafted does not comply with that.
“The one great principle of English law is, to make business for itself. There is no other principle … maintained”.
As it stands, the Bill will certainly expand the business of law. That should not be our aim today; our aim should be a search for precision, clarity and certainty. I beg to move.
Whoever thought up Clause 1 and managed to slip it under the radar of the other place is a strong contender for some kind of award. Perhaps it should be a citation for attempting to increase the power of the state to interfere in people’s lives; perhaps a golden globe for providing the authorities with a new and easy-to-discharge weapon in the war against inconvenient and annoying expressions of dissent; or perhaps even an Oscar for thinking up a way to take out those who are a nuisance or annoyance in any one of a thousand unspecified ways—and doing it in a manner that admits virtually no defence or safeguard and that requires the minimum of evidence.
Those on whom the Government propose to confer this extraordinary power are fully set out in Clause 4. Apart from the housing providers, to whom I will come shortly, they include the Environment Agency, all local authorities, British Transport Police, Transport for London, the Secretary of State for Health—and, of course, the police themselves. In other words, they are in every single case an arm of the state. The proposed definition in Clause 1(2), that the respondent must be someone who,
“has engaged or threatens to engage in conduct capable of causing nuisance or annoyance to any person”,
has been adopted, as we have just been told, from a very limited provision, carefully restricted to conduct affecting the housing management functions of the relevant landlord. Both the applicant and the respondent are carefully defined. It is intended to assist a housing provider to control the behaviour of neighbours—tenants—living in close proximity who, as has been said, cannot simply look the other way, pay no attention or move easily—and in a situation where, because of fear, evidence may be hard to obtain.
The Government propose to take this particular power, designed for the particular problem of anti-social neighbours, and give it to a wide range of state bodies for use without restriction against absolutely anyone. The amendment of the noble Lord, Lord Dear, recognises the force with which many housing providers have lobbied us between Committee and today. They wish to retain that power in their own very limited and special context. Under this amendment, they would do so.
In Committee—and I anticipate more of the same later when the Minister replies—the response of the noble Lord, Lord Taylor, to my similar amendment on the ASBO definition that this amendment seeks to retain, was, “You are not thinking about the victims”. By that he clearly means those who are on the receiving end of anti-social behaviour. I have to say that he is wholly wrong in that. It is precisely because we are concerned about those who are harassed in our hospitals, caused alarm on public transport, or distressed by the conduct of others in the street that we want to see this legislation targeted at that behaviour.
In reality, most anti-social behaviour that the public worry about is already covered by existing criminal law offences under criminal damage, public order and harassment laws. There are unquestionably problems of court delays at present—and not just with ASBO applications. Inadequate resources for police, prosecuting authorities and courts are all factors. Ironically, by making IPNAs so much easier to obtain than ASBOs, for a far wider range of behaviour, and with a lower evidential burden, there is a real prospect that Clause 1 will slow down the courts by clogging them with myriad IPNA applications and will be of little help to real victims in need of urgent help.
I also remind the Minister that there are other victims of whom he appeared to take no account. They include those against whom an allegation is made that is unfair, unwarranted or untrue, or without any proper evidential basis. There is no defence of necessity or lack of intent in the Bill. I see no compensation provisions for a wrongful injunction, or any of the safeguards that normally attach to a civil injunction, especially when the defendant is not present at the initial hearing. This is all worrying, but particularly worrying for me is the lower burden of proof that is now proposed. However, my main concern is the extent to which lowering the threshold to behaviour,
“capable of causing nuisance or annoyance to any person”,
has the potential to undermine our fundamental freedoms, and in particular the way in which the proposed law might be used to curb protest and freedom of expression.
In exercising my personal right to protest in the past, I readily accept that I have on a number of occasions been guilty of conduct capable of annoying someone. Every march that delays traffic, every rally that overcrowds public transport or pavements, and every demonstration with loudspeakers, whistles and horns is no doubt capable of causing nuisance or annoyance to someone, and is usually a headache for the authorities, too. I suppose that there are Members of your Lordships’ House who have never attended a rally, demonstration or protest march, but I would place a small wager that they are in the minority. In a lifetime of attending protests, from Aldermaston as a child to the countryside march and many in between, if I have caused annoyance or nuisance, I hope that I have never caused harassment, alarm or distress to anyone.
Quite simply, the Bill currently sets the barrier too low. It threatens fundamental freedoms and, importantly, it undermines tolerance, which is surely an essential quality for living happily in an overcrowded island such as ours. Speaking in a rather different context but saying what I think is appropriate, Lord Justice Sedley some years ago put it rather well. He said:
“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having”.
To try to prohibit behaviour that is capable of annoying someone is a step far too far, and I hope that this House will do what the other place overlooked and stop it.
My Lords, I support this amendment; I have signed it and I believe that it is amply justified. As the noble Baroness has just said, one of our fundamental freedoms is the freedom of speech. Surely it is clear that in exercising that freedom, one may annoy one or more other people. From time to time in this House I have witnessed a Minister explaining his present difficulty by reference to the behaviour of the previous Government, and one immediately senses annoyance on the opposite Benches. If I have an opinion which I know some or many people will disagree with, surely I am entitled to come out with it. Do I have to reasonably consider whether it will cause annoyance to somebody else, and if it would, what should be the consequence? Am I to muzzle my point of view to placate people who might be annoyed? It is absolutely plain that “annoyance” in this context, with a wide application, is inappropriate for this purpose.
The position taken up by the Government hitherto, so far as I understand it, is that this definition has been tried and tested in the courts for some 15 years. But definitions in their application are subject to the context in which they are used, and this use has been in the context of social housing and its enforcement has been in the hands of the responsible authorities for social housing. You cannot imagine an authority in that field trying to stop a street preacher, for example, on the basis that he was annoying the passers-by by the denunciations that he was pronouncing against their acknowledged conduct. It is not the same context at all, and the context influences the proper interpretation.
It is certainly possible to consider amendments. The Government have come out with one in which they replace the clause which was in the Bill originally by “reasonably be expected to occasion annoyance”. I do not see that that helps in the slightest because the real difficulty is the definition of what is reasonably caused, not whether it is reasonably caused. Indeed, in some aspects this could be regarded as slightly widening the context of what was in the Bill before in the sense that it does not actually need to cause so long as it is reasonably expected to cause. That is a very small point that occurred to me just looking through it.
“Just and convenient” is used as a condition of the granting of this injunction. I find that hard to apply in the circumstances of this case. If something is just, does it not go forward because it is inconvenient to the respondent? That does not seem very sensible. I do not think the condition that it should be just and convenient adds anything to provide against the effect of the basic definition.
The use of the word “reasonably” has been suggested in relation to later amendments as a defence in this situation. But is it not reasonable for me to express my opinion even if I know that somebody will disagree with it? Earlier I gave an illustration from this House of a Minister on this side blaming the previous Government for whatever is the cause of the difficulty. Certainly such a view could be reasonably anticipated to cause annoyance on the other Benches—one has seen it often enough. The difficulty is in relation to the definition and to the absence of any safeguards which would prevent the application of that definition to inappropriate circumstances. There are various ways in which this might be approached and I strongly urge your Lordships to support this amendment unless my noble friend is able to indicate that these matters will be considered further.
I understand that the Government do not intend this to apply, for example, to street preachers, but the problem is that the definition as stated would, for the reasons which we have heard, quite clearly encompass that kind of conduct. The idea that guidance can deal with this seems to be quite aside from the real difficulty, because I do not believe that guidance can alter the substantial issue raised by the statute. The idea of the Home Office giving guidance to the courts strikes me as a slightly difficult concept for the courts to accept. Apart from the kind of interpretation which is given as a result of statements made in this House when an amendment is put forward, guidance to the courts by the Executive would be regarded as being of a rather doubtful constitutional propriety. Unless something can be done to alter this definition or the circumstances of its application, I urge your Lordships to support this amendment if, in due course, the noble Lord, Lord Dear, decides to test the opinion of the House.
My Lords, I have added my name to the amendment tabled by the noble Lord, Lord Dear. Like him, for as long as I can remember the Home Office has been bringing forward ill thought-out proposals with little regard for the consequences. Parliament scrutinises them, and they are from time to time defeated. I, like the noble Lord, thought that some lessons would have been learnt from our debate on “insulting”. I fear that from time to time the Home Office does not fulfil its purpose as the guardian of our liberties and a watchtower against the infringement of those liberties. I can go back a long time. Over the decades, Parliament has been concerned with loads of proposals of this kind which have not been thought out because they emerge from the fortress mentality of the Home Office, which imprisons so many Home Secretaries of all parties.
We have heard many objections, which I shall not repeat, to these proposals to lower the threshold and inevitably catch a much larger number of people than Parliament would want. As a lifelong criminal law practitioner, I, like the noble Lord, Lord Dear, give the highest of values to the importance of certainty, and the European Convention on Human Rights affirms the common law. When she agreed to the removal of the word “insulting” from Section 5 of the Public Order Act, the Home Secretary, informed Parliament that:
“There is always a careful balance to be struck between protecting our proud tradition of free speech and taking action against those who cause widespread offence with their actions”.—[OfficialReport, Commons, 14/1/13; col. 642.]
I agree wholeheartedly with the need for a careful balance. This proposal, including the Government’s amendment, is the wrong side of that balance. “Harassment, alarm or distress” is well tested by the courts and in its application. “Nuisance or annoyance” is such an elastic term that it could, if it were applied widely, be used as open-ended machinery to catch all sorts of people who really should not be before the courts. Somebody with a placard saying that the end of the world is nigh, a preacher or maybe a politician on the street during an election may well be caught because they will certainly cause annoyance to someone. Are those the kinds of people that we want to haul before the courts?
The Government say that their formula is hallowed and supported by 15 years of case law and is readily understood. The reality is that it has been tested only within the narrow confines of housing-related cases, and there are limitations on who can bring such actions. Like all former constituency Members, I have experience of dealing with housing problems. I can affirm that there is sometimes a need for strong action to be taken in cases where people are stable and cannot move. You have to do something to try to remedy that situation. There may be strong arguments for a lower threshold there, but to extend that lower threshold in a situation which has been tested only in the housing section is a bridge too far.
I fear that the Government’s amendment does not help us; it merely underlines the situation and may indeed make it worse. The test to be satisfied is the balance of probabilities. I heartily disapprove of such a test, which can ultimately lead to a loss of liberty for the individual for disobedience. The court must consider and decide whether it is,
“just and convenient to grant an injunction”.
What on earth does that mean? Convenient for whom? Just is perhaps a slightly easier concept, but I wonder how far it has been tested. We are familiar with the concept of the interests of justice, but “just and convenient”? One is horrified that this kind of clause, these kinds of words, are put in a statute at all.
For the existing ASBOs, the test is, of course, the criminal one of proof beyond reasonable doubt. The alleged burden is well known and well established, and when it is suggested here that the order must be shown to be necessary, why do we have to depart from the long-hallowed practice, which has been tested?
I support, and pray in aid, what the noble Baroness, Lady Mallalieu, said when she quoted Lord Justice Sedley. I shall not repeat the words, which are still ringing in our ears; I shall merely say that, as the noble Baroness told us, he finished by saying:
“Freedom to speak … inoffensively is not worth having”.
We do not want to catch people who merely annoy, or merely cause a nuisance. There must be a higher threshold.
It was my duty, as Attorney-General, to consider prosecutions when anti-Semitic material was published. Even that legislation could be said to be an infringement of free speech, but over the decades there was material so unacceptable that it had to be dealt with firmly. Where my discretion had to be exercised, I tried to approach the decision with the greatest care. Deciding not to prosecute was probably more difficult than deciding to prosecute. There have been other limitations on free speech over the years, and when Parliament attempts to limit free speech, each and every one of those limitations must be considered with the utmost care. We must be ever vigilant not to breach the fundamental concept of free speech.
My Lords, I fear that I am about to break the consensus. I hope that in doing so I do not cause too much nuisance or annoyance. The amendment in the name of the noble Lord, Lord Dear, and others is rather different from the one that was before your Lordships in Committee. The amendment there sought to include a requirement that anti-social behaviour had to be established beyond reasonable doubt before an injunction was obtained. Given the evidential problems that this would have created, the amendment has sensibly been altered so that it no longer requires a criminal standard of proof before a judge can order an injunction.
I tabled an amendment that reflected the views of the Joint Committee on Human Rights, of which I was a member. We had proposed that a reasonableness requirement should be imported into the definition of anti-social behaviour. In other words, there should be an objective element, to deal with the argument that the whole concept of anti-social behaviour was too subjective. The Government’s Amendments 2 and 3, particularly Amendment 2, seemed to me entirely to meet our concerns, and in this regard I am specifically authorised by my noble friend Lord Lester, who is unable to be here today, to say that he supports the Government’s position and would oppose Amendment 1.
It is clear from the speeches that we have already heard that there is concern that the obtaining of an injunction would be too easy, and that there would be a risk of freedom of speech, freedom of association, and the freedom to indulge in activities that some people might regard as annoying, being inhibited. Is this a realistic fear? First, it must be remembered that under Clause 4 the applications can be made only by an agency—for example a local authority, a housing provider or some other such body. That is a defence against inappropriate use. It means that a victim of anti-social behaviour has to go through the filter of a hard-working agency in order to establish the fact that there is sufficient basis to seek an anti-social behaviour order—or, in this case, an IPNA. If it were to be done on the say-so of one individual deciding, perhaps unreasonably or capriciously, that someone else had been guilty of anti-social behaviour, that indeed might be objectionable. But the use of an agency provides an important filter.
At Committee stage, and even at Second Reading, the Minister referred to the guidance. The guidance is given to the front-line professionals—not, with great respect to my noble and learned friend, the courts—to make sure that they do their job correctly. That guidance, which was then in draft, is now, according to an amendment, to be made a specific statutory provision. Page 24 of the advice says that,
“in deciding what constitutes ‘nuisance or annoyance’, applicants must be mindful that this route should not be used to stop reasonable, trivial or benign behaviours that have not caused, and are not likely to cause, harm to victims or communities. For example, children simply playing in a park or outside, or young people lawfully gathering or socialising in a particular place may be ‘annoying’ to some, but are not in themselves anti-social. Agencies must make proportionate and reasonable judgements before applying for an injunction. Failure to do so will increase the likelihood that an application will not be successful”.
Then we have the safeguard of a judge deciding whether it is just and convenient to order an injunction. First, there is the subjective element which, if the Government accept the amendment, will be there—the reasonableness requirement. But even if the House does not accept it, the judge would have discretion whether to decide that it is just and convenient to order an IPNA. Just and convenient is a well known expression to embrace the general discretion that any judge has to decide whether to make an order. It is one of considerable pedigree, as is “nuisance or annoyance”. I simply cannot see a judge ordering an injunction for any of the sort of trivial matters referred to in the course of the argument—the suggestion that it will apply to carol singers or preachers, for example.
It would provide a remedy for myriad different circumstances—perhaps the sort of behaviour where youths gather specifically under a particular person’s window and regularly play noisy music, are aggressive and perhaps smoke cannabis, providing day by day harassment of individuals.
It might be, but the problem is that the test for harassment is fraught with imprecision, as is any test that any Government might provide. Whether something gets over the hurdle of harassment will be somewhat uncertain. No doubt it will be argued in a particular case that it does not go far enough to constitute harassment, but it will nevertheless be anti-social behaviour by anybody’s definition.
The objection is that there is a risk that the hurdle will be too high and that the judge will say, “This is extremely anti-social behaviour and I profoundly sympathise with the individual but, looked at under the definition of harassment, it does not go quite that far”. That behaviour could be completely ruinous of an individual’s life, but perhaps not have that quasi-criminal description that the substitute definition has.
The greater test will always include the lesser, but areas that may or may not be considered by a court to get over that hurdle may be profoundly distressing in the non-technical sense to the individual but may not be regarded as sufficiently distressing to come within the definition. There is inevitably a degree of vagueness about any definition, whether you choose the one that the Government choose or the one proposed in the amendment. But I fear that the test is too low.
Could my noble friend deal with a major objection? An order can be obtained on hearsay evidence, so the judge does not have to hear from somebody who says, “I’ve been distressed or annoyed”; it would be sufficient for someone to say, “I’ve heard someone else describe himself as annoyed because of the behaviour in question”.
The question of hearsay evidence is important, and I am glad that my noble friend raised it. One difficulty about the orders is that individuals are often terrified of those who are responsible for the anti-social behaviour. They are terrified of being identified as the source of the complaint. If they have to give evidence, they will not want to do so. They therefore provide their perfectly bona fide complaint to an agency. Hard-pressed agencies will have to assess whether this is de minimis or of sufficient gravity before deciding whether to proceed.
It can be on the basis of an anonymous complaint, though a judge will need to be satisfied of its substantiality. There are individuals who simply would not seek an injunction if they thought that they could be clearly identified as the source of the procedure. Of course, judges are used to weighing up hearsay evidence, which has less weight than direct evidence. A judge is unlikely to make an order if they think that it is double-hearsay or comes from an unreliable source.
Before making an order, a judge also has to decide that it is proportionate and necessary, in accordance with the Human Rights Act. As I submitted, it is no light thing for the agencies to assemble the evidence necessary to satisfy a judge. The Law Society has carefully considered the arguments against Clause 1. Although more than happy to criticise government legislation—and even this Bill, in some respects—it remains absolutely firm in its support of the existence of the power described in Clause 1, fearing otherwise that the hurdle would be too high and that the power to prevent anti-social behaviour would be damaged.
My Lords, I am anxious to support the Government on Clause 1, because there is a great deal to be said for the replacement of ASBOs by IPNAs. However, the noble Lord seems to be arguing that the existing test for ASBOs—harassment et cetera—is too high. Is he arguing that, at the moment, people cannot get ASBOs because the test is too high and therefore that it must therefore be reduced for the new IPNAs? In my experience, the problem with ASBOs is that they are very often given for inappropriate things.
It is a marginally lower hurdle, but as I understand it—and the Minister will confirm—the choice of words was not an arbitrary matter but the result of a very wide consultation among the professionals concerned in order to reach a test that was sufficient to establish gravity but not so high that the scourge of anti-social behaviour could not be prevented.
In its briefing on this part of the Bill, the Law Society made the point that if injunctions are used in the case of noise nuisance, as an alternative to possession proceedings, they can result in the person or family staying in their home but with restrictions on their conduct, rather than the much more drastic step of eviction. Although an IPNA can be obtained on the balance of probabilities, with or without the amendment, the criminal standard must be satisfied before any breach can be established: that is, beyond reasonable doubt. I respectfully suggest that this provides an extra safeguard, so that this will not result in people being deprived of their liberty inappropriately.
I am also concerned about how coherent Amendment 1 is. It requires “harassment, alarm or distress”—a quasi-criminal test—with the exception, which was not in the original amendment in Committee, of a housing provider or local authority in a similar housing management position. In the case of social housing, the hurdle to be surmounted appears to be lower, so there is a two-tier test for anti-social behaviour, depending on whether you are a private tenant or are in social housing, where an injunction is much more easily obtained. That is hardly a satisfactory distinction, and I wonder how enthusiastic the party is about such a classification.
I do not know, of course, how the party opposite—or at least its Front Bench—regards this amendment. It will be borne in mind that MPs on all sides in the House of Commons were at pains to stress what a scourge anti-social behaviour is to their constituents, and that there ought to be substantial and sensible powers to prevent it. Indeed, the shadow Home Secretary said generally of the powers in the Bill that she thought they were too weak.
We are all passionately in favour of freedom of speech, freedom of association—
Will my noble friend forgive me? He has just said that he cannot understand why there should be a lower test in social housing. Surely the answer is that if you are in social housing you cannot move out of the way, people are free to do what they like to you and you are trapped. Therefore, a lower standard of unsociability has a much greater effect on the person affected. It is exactly the right proportion.
Of course I entirely accept the noble Lord’s point that those in social housing may not have options and therefore certainly need the protection at a lower level. My point was that it is rather inelegant to have a different test where there might theoretically be greater room for manoeuvre if there is a private tenant. The test ought to be the same.
I was repeating the fact that I sympathise with all those who have spoken in favour of the various freedoms that we value so much in this country. If we vote in favour of the amendment—if it is put to a vote—we will of course be able to congratulate ourselves and say that we have acted in the finest traditions of freedom. I will have the good fortune of going back to my house where, at least at the moment, there is no great history of anti-social behaviour in the area. Other noble Lords will perhaps be in a similar position. But let us not forget those who are in less fortunate circumstances, who do not have room for manoeuvre and whose lives are made totally miserable by this anti-social behaviour. I fear that if we accede to this argument, we will fail to take them sufficiently into consideration and will make bad law.
My Lords, we have just heard an interesting speech from my noble friend Lord Faulks. I am sure that I speak for every Member of your Lordships’ House in congratulating him on his forthcoming move to the Front Bench—because, as we all know, he is to be Minister very soon. It is therefore hardly surprising that he should have spoken with such passion in support of the Bill.
One is tempted to call that “cause and effect”, but I will not.
This noble House concluded its contentious business somewhat earlier than we had expected last night. I went home and turned on BBC Four, on which there was a most remarkable programme on the Salvation Army in which various officers made some extremely sincere but perhaps contentious statements. One gentleman in particular made the point that anyone who did not believe in Jesus Christ, as many of us do, was in fact condemned to eternal damnation. Imagine that being said on a street corner or anywhere else. Do we really want to deny people with sincere and genuine beliefs the opportunity of expressing them? I have always felt—although I did not agree with many of the things ascribed to him—that Voltaire had it right when he said, “I detest what you say, but I will defend to the death your right to say it”. That really should be implicit in all our legislation.
I find it somewhat difficult to accept that a Conservative Government or—let me correct myself—a Conservative-led Government are prepared to introduce this lower threshold in the Bill. Although my noble friend Lord Faulks said that it was different from the debate that we had on insulting a little over a year ago, and of course in some senses it is, nevertheless it is similar. It is also very different from what was implicit in the Defamation Act that came into force just a week ago today, whereby we introduced legislation—quite rightly, in my view—that makes it more difficult to engage in frivolous and vexatious complaining.
In this particular provision, in this clause of the Bill —much of which I approve of—we are seeking to lower a threshold and in the process place many people in possible danger of having their civil liberties, including their right to speak as they would, taken away from them. Of course I accept, as my noble and learned friend Lord Mackay of Clashfern accepts, that it is right that social housing should be treated differently—of course it is. In his intervention a few moments ago, my noble friend Lord Elton put that point succinctly and correctly.
At the moment the definition that is in dispute is ring-fenced; here it would not be. I say to my noble friend Lord Faulks that guidance is not legally binding; guidance is not the law. I would also say to my noble friend Lord Faulks—and to my noble friend Lord Taylor, for whom I have the utmost regard—something that I said not so long ago to the Home Secretary. I do not doubt for a moment her good intentions, but it is not just the road to hell that is paved with good intentions. It is crucial that this House, one of the bastions of freedom and civil liberties through the ages, should not weaken the right of our fellow citizens to be able to speak and to annoy.
We are all frequently annoyed. The noble Baroness, Lady Mallalieu, and I were on the same side in the countryside march. As she knows, we certainly annoyed a lot of people—and those who took a different line certainly annoyed us. But would it be right to slap injunctions on them? Would it be right to curtail that freedom of speech? No, it would not. I absolutely accept that it is not the Government’s intention to catch the street preacher, the carol singer or the Countryside Alliance member, but, of course, one can say two things in response to that. First, if this provision is passed, it passes out of the control of the Government. Secondly, this Government—benign, magnificent, united as it is—is not necessarily going to be in power for ever, much as many of us may regret that.
I really believe that the proposition put before us by the noble Lord, Lord Dear, so eloquently supported by the noble Baroness, Lady Mallalieu, and my noble and learned friend Lord Mackay of Clashfern, is a modest proposition but one of enormous and far-reaching importance. I beg the Government to accept it, and, in accepting it, to recognise that what they seek to do in this Bill will not be damaged beyond repair; on the contrary, it will be bolstered.
My Lords, I should like to take further what the noble Baroness, Lady Mallalieu, said about who is going to be involved at the beginning of this process. Whatever the noble Lord, Lord Faulks, said, it is not going to be a judge; it is probably going to be a police officer. I want to think about the use of language and I am going to give two examples of the use of language which distinguishes the word “annoying” from the language in previous Bills about distress and harassment.
I want to take your Lordships back to 1970s Soho where, as a young constable, I was patrolling with a much more streetwise officer. We were approached by a rather large Westminster councillor who was objecting to people handing out leaflets about rent rises. He said that he was really annoyed by this. The officer I was with said, “Well sir, my Aunt Mabel is annoying but I’m not going to let anybody arrest her for just being annoying”. That was in the 1970s. I now want to take your Lordships to the very top of government in 2007. The right honourable Tony Blair has announced that he is about to leave and the right honourable Gordon Brown thinks he is about to be the Prime Minister but he is still the Chancellor. I am sorry that the noble Lord, Lord Reid, is not in his place to confirm this story as he and I were involved in it when he was the Home Secretary. The Chancellor was about to move out of No. 11 with his red briefcase to announce a Budget to a particularly unstartled world when we discovered that a man was standing amid the cameras dressed in a full union jack outfit with a notice saying “John Reid for Prime Minister”. It was reported to me, as commissioner, that the Chancellor was likely to be annoyed; it was pointed out to me in very firm terms that the putative Lord Reid was going to be extremely annoyed; and, as the commissioner, I was annoyed because the Home Secretary was annoyed, but nobody used the terms “harassment”, “distress” or “alarm”.
The difference between simple words relating to annoyance and how they will be interpreted on the street by housing officers, police officers and so on is very important. This is not a matter for judges. People will be told to move on and get out of the road by people who are in authority because that is the easiest thing to do when dealing with somebody who is complaining. This is an absolutely awful piece of legislation and we should avoid it.
My Lords, a point that has not been made sufficiently—I think that the noble Lord, Lord Dear, referred to it in his very admirable opening speech—is the extra burden that passing Clause 1 unamended would impose on the police and local authorities. No one should underestimate that. If the only gateway for getting redress for annoying conduct, which I think we all agree is so low a test as to be almost meaningless, is via a local authority or the police, does anyone really believe that they will not be subject to a mass of citizen inquiries and applications? Of course they will. Indeed, many people who might be thought a little obsessive will no doubt badger the poor local police endlessly until they get what they call redress—that is, an application by the police for an injunction under Clause 4. Apart from all the more important civil libertarian aspects of this issue, we should not forget the potential extra burden—and, I suggest, vexatious burden a lot of the time—that will inevitably result from Clause 1 going through unamended.
My Lords, I rise briefly to give warm support to this amendment tabled and so ably presented by my noble friend Lord Dear and others. I firmly believe that the threshold in the Bill is set far too low.
I have been a lifelong supporter of Newcastle United Football Club. My friend, the noble Lord, Lord Shipley, who unfortunately is no longer in his place—and I call him “friend” in the social sense, not in the parliamentary sense—is for reasons best known to him, despite having been leader of Newcastle City Council, a Sunderland supporter. If I were to chide him and say that he is foolish to continue to support that team, which has been absolutely hopeless all season, despite beating Manchester United last night, and if I were to say that the team is in fact languishing at the foot of the Premier League and in imminent danger of relegation, I think that he would be extremely annoyed because he is a loyal supporter of Sunderland. If I persisted with that theme, he would reasonably regard me as a confounded nuisance.
If one looks at this clause and interprets it in a strictly literal sense, I would potentially be in breach of this statute if I said those things. In fact, I do not for one moment believe that he would seek an injunction; at least I hope not. Having said that, I believe that the clause is absolutely unacceptable and needs to be amended. There is even a possibility that the clause as drafted could act as a sort of charter for individuals of paranoid personality or malicious intent in leading them to seek this kind of injunction much more frequently than would ever have happened in the past. This clause is unacceptable and I strongly support the amendment.
My Lords, in response to that I can say that frequently and over decades I have been annoyed and alarmed and distressed by Manchester City.
When I read this Bill I too was concerned about the threshold, but as someone who has something—I know—of a reputation as a fluffy liberal I understand the Bill’s architecture much better than I did when I first came to it. It meets the principles enunciated at the start of the debate. I have understood the context as well, and am reassured that the everyday annoyances that have been used as examples and of which we are all capable will not be caught. Crucially, I have understood that preventing behaviour from escalating and staying out of the criminal justice system are at the heart of this part of the Bill.
Noble Lords have talked about the body of case law that has been built up in the housing sector; there was certainly an effective, large lobby from it at the earlier stage. I agree with my noble friend Lord Faulks about the difficulties of discriminating between two housing sectors. It is not that one is caught in social housing but not caught in owner-occupied housing—from which it may be very difficult to move—in quite the distinctive way that has been described.
Even as a lawyer I see that “convenient” in the term “just and convenient” has an everyday connotation that seems a bit baffling in this context, but the term has a pedigree, as does the case law built up in the social housing sector. It is quite a hurdle to overcome. Lawyers in this House far more experienced than me may correct me, but I understand the term to incorporate “reasonableness”, “proportionality” and “appropriateness”. I do not see the examples that have been cited as being caught within this; I have seen neither the noble Baroness, Lady Mallalieu, nor even the noble Lord, Lord Cormack, at a rally or on a march, nor many of my friends who might want to be lobbying outside the MoJ against legal aid cuts. It just does not extend in that way, because there is that protection.
My noble friend is asking for examples of behaviour. It could be kids kicking a football around on a bit of open ground—which happens on a bit of open ground next to my house. I am lucky enough to live on the Thames but I find it extremely annoying to have discovered that rowing is the most noisy activity: one might not have expected it. It could be a bit of drinking—not drunken behaviour but people sitting around with a can of lager. I know from neighbours’ comments that they feel apprehensive about that and, although there has never been anything for them to be apprehensive about, they just do not like people sitting around drinking cans of lager in public. I also suggest dogs being exercised on the same ground where children play—there are a lot of annoyances in that kind of area. People see me and no doubt think that I am a poor old lady delivering pizza leaflets for tuppence a thousand when I am delivering political leaflets.
Of course, if people feel threatened and their lives are badly impinged upon. That is what the Government are trying to prevent by this Bill. I do not want to downplay the impact of some bad behaviour on many people who react in a way in which I would not necessarily react, but the impetus to prevent—
Can the noble Baroness explain precisely how judges are supposed to interpret a threat and a feeling of being threatened from the words “nuisance” and “annoyance”? Also the use of the word “threatened” would indicate a much higher threshold.
I would say because of the context of the Bill, the clear policy underlying it and the evidence that would have to be given. I have heard the exchange about hearsay evidence but a judge has still got to be convinced that it would be just and convenient, and therefore proportionate, as I understand it, to grant an injunction.
Of course, these things are all subjective to some extent and perhaps that was an inappropriate word for what I was trying to describe. However, with what is reasonably frightening one is attempting to put objectivity into it; what may be unreasonably frightening would fall into a different category.
Perhaps I may now refer to the preventive nature of the provisions and say that, in considering whether the clause impinges on the fundamental freedoms of individuals—and we are talking here about individuals and not peaceful assembly—the convention rights, including freedom of expression, are protected in any event, as I understand them. The Minister will no doubt explain that the Government have responded to the JCHR’s concerns.
I have been critical about the reliance in the Bill on guidance. I agree with the noble and learned Lord, Lord Mackay of Clashfern, about it not being appropriate to give guidance to the courts—I made that point at the previous stage—but they would not be guided in the way that the potential applicants listed in the Bill would be, and the guidance will now be statutory.
The noble Baroness the Lord Speaker has confirmed that the second amendment—the reasonabless amendment —would fall if this amendment were agreed to. I finish by saying that I will still feel free to annoy people by delivering leaflets and by expressing minority opinions. I fear that, as a child of the 1960s, the musical exhortation has not persuaded me.
My Lords, the noble Lord, Lord Faulks, was right in this, at least in drawing attention to the scourge of anti-social behaviour. When I represented the constituency of Newport East I was all the time aware that there were households and, indeed, communities whose lives were very seriously blighted by anti-social behaviour. There is enormous political pressure on MPs representing constituents to find ways to crack down more aggressively and more effectively on such behaviour patterns. That pressure is, of course, amplified by the tabloids.
That is precisely why we should be moderate in this matter, why we need to be restrained and why we must try to get the right balance. Therefore, the provision in law that a threshold of “harassment, alarm or distress” must be exceeded seems to me to strike the right balance. I think that it is dangerous and improper to lower the threshold to “nuisance or annoyance”. It is surely unthinkable that we should risk introducing legislation that could impair the rights of people to go on demonstrations, as my noble friend Lady Mallalieu offered as an instance, or of kids playing football in the street, as the noble Baroness, Lady Hamwee, worried about. There are all manner of other innocent behaviours that are, indeed, annoying, but that in a free society we should not dream of legislating to prevent.
The noble Lord, Lord Faulks, did not annoy me—he never could annoy me—but he startled me with the arguments he scraped together in his gallant speech in support of the Government’s position. He asked: is it a realistic fear that people would be subject to IPNAs for trivial and inadequate reasons? He offered the thought that the requirement that applications would have to be made through an official public agency should be seen as a filter and a safeguard. The vast majority of public officials handle their responsibilities fairly, properly, scrupulously and reasonably. I hate to say this, but it is also, surely, an observation that all of us have made that if you put a man in uniform, or if you vest a person in official authority, some will find themselves tempted, and succumb to the temptation, to use power overweeningly. We have to be very careful indeed.
The noble Lord says, further, that guidance will be offered to these agencies so, again, we do not really have cause to worry. I am sure that the guidance will be a force in the right direction, but guidance is only guidance; it is flimsy and an insufficient protection. The much better protection would be not to write this risk into law. He offers a much more reassuring protection—that such injunctions could be made only at the discretion of a judge and that we can rely upon the judges to exercise common sense, decency and appropriate restraint and to be animated by a mature and wise sense of justice. In that case, why legislate? We do not need to do this. We can rely on the judges not to order injunctions against people who are merely guilty of causing trivial annoyance. It does not seem sensible, in the present circumstances in which the resources of the courts have been very attenuated, to add this burden to them.
I agree with the noble Lord, Lord Cormack. What are we here for if not to protect civil liberties? Justice and convenience are very often in tension. I suggest that what may be for the convenience of the Government politically, for the convenience of local citizens, whose annoyance threshold is perhaps rather low, or for the convenience of agencies may be very ill assorted with justice. I think that the Government’s position is unwise and I very much hope that the House will support the amendment in the name of the noble Lord, Lord Dear, and his colleagues.
My Lords, I support this amendment. The arguments for it have been set out so clearly and persuasively by the noble Lord, Lord Dear, the noble Baroness, Lady Mallalieu, my noble and learned friend Lord Mackay and the noble and learned Lord, Lord Morris, that I will not repeat them, particularly at this late stage of our consideration. I will make three quick points as my contribution.
First, I listened in particular to the point made by my noble friend Lord Faulks about MPs on all sides of the House complaining about and explaining the anti-social behaviour that some of their constituents face. As an MP of some 26 years’ standing, I can tell him that that is absolutely right: any MP worth his or her salt could give him numerous examples of anti-social behaviour and of the sense of inadequacy and frustration over the law seeming not to apply in those circumstances. However, one of the strengths of our bicameral arrangement is that this, your Lordships’ House, can consider such matters in a slightly different frame from the pressured one of representing constituents, some of whom are hard done by because of the law of the land. This House has the opportunity to reflect on the broader principles and bigger issues. This House sets the framework that, just occasionally, the House of Commons has not managed to get around to addressing because of the other pressures that Members of Parliament legitimately face. This is an opportunity for us to behave in a way that is in the national good and not just one that may be pleasing to some, or to some vested interest groups.
Secondly, my noble and learned friend Lord Mackay illustrated the ability to cause annoyance, and of Ministers causing annoyance to the other side of the Chamber when they blame the previous Government for problems they face today. Incidentally, I know my noble and learned friend would accept that this is a two-way street: it is not just Ministers in this Government who have blamed the previous one; Ministers in the previous Government blamed us as well. The distinction I want to leave in the minds of noble Lords is that we are a sophisticated body. I was interested in the reaction to my noble and learned friend’s point. We all smiled, nodded and were very civilised about it. Out there are people who are not as civilised, tolerant, understanding or forgiving. This legislation may be of interest to them in a way that it would not be to us. We have to bear that in mind when we cast our vote.
Thirdly, as a former chairman of the Conservative Party, I am saddened that the Government have brought forward this particular piece of legislation. It is a matter of record that I—along with the noble Lord, Lord Dear, and others—was a signatory to the legislation in December 2012 that amended by an overwhelming majority of your Lordships’ House the Public Order Act and took out the word “insulting”. Now we are offered in its place “annoyance”.
The sad fact is that it is not that surprising. I speak with some knowledge when I say that, internally, Governments occasionally believe that the combined wisdom of both Houses is not really up to scratch when compared to the wisdom of a department of state on a particular issue. I see nods on the other side of the Chamber that encourage me to understand that I am not making a party political point at my party’s expense. It is one of the realities, and I will say something about departments of state: they have long memories. I have to say to my noble friend on the Front Bench—who is my friend in the personal sense, as we have known each other for many years—that I am saddened that I judge this to be an example of long memory.
Your Lordships threw out “insulting”—rightly so —and annoyed a lot of people in the process. They pleased a lot of people as well. Today I hope, not out of any sense of vindictiveness, as I have been a fully paid-up member of this party for a long time, that at the end of this vote the only people who will be annoyed are those who thought to bring forward this particular piece of legislation. I hope that, under the guidance of the noble Lord, Lord Dear, we will now amend it.
My Lords, noble Lords who have spoken in favour of this amendment have produced a gamut of compelling reasons why your Lordships should support it. I will briefly focus on one aspect of the amendment and the original draft as produced to your Lordships, that of the court that has to interpret and apply the provisions, a function of which I have had fairly long experience in my time. The words “nuisance” and “annoyance” are what a distinguished jurisprudent called “weasel words”. They are highly subjective and are liable to be interpreted by different people in different ways, which is a recipe for judicial inconsistency and an invitation to those who wish to oppose people expressing opinions that they dislike. In my experience, that would be certain to lead to litigation and to further harassment through the courts.
I am reminded of a remark made by a former First Minister of Northern Ireland, subsequently a Member of this House, who said in his Parliament that people were offended by something that he had said that was rather controversial at the time. He added sweetly: “A lot of people came from a long distance to be offended”.
How are the courts to carry out their function of interpreting and applying the words “nuisance or annoyance”? To put oneself in the shoes of a judge, it is worth remembering that a lot of these cases, perhaps a large majority, will come before junior courts, which have neither the time nor the resources to enter into long jurisprudential arguments. I have long maintained that judges should be given discretion and that, whatever the legislation is, it should not circumscribe the discretion of a judge too closely but should leave a modicum of room for the judge to come to a proper conclusion on the facts of the instant case. However, this should operate within the parameters of reasonable certainty of the law. The principles that a court is asked to apply should be sufficiently clear for both the court and, equally important, those citizens who seek to know the obligations that the law places on them.
The provision of “just and convenient” would go no further. It would not satisfy the principle of reasonable certainty of the law. Indeed, a court should seek to achieve that in any decision, on an injunction or any other part of the law. It does not reduce the deficiencies in the substantive provision.
For those reasons, and for others that your Lordships have expressed, I strongly support the amendment. The provision in the Bill without the amendment is too uncertain and too wide. The amendment gives a proper degree of certainty and security of the law.
My Lords, it is my right to speak. People have mentioned cats and dogs; nobody has mentioned race. If this is the wish of the House, I will not.
I rise to support the amendment in the name of the noble Lord, Lord Dear. I believe that the Bill will allow the law enforcers to use subjective prejudices to harass and even charge persons as young as 10. This law does not take on board the fact that this nation is now multicultural but still has not unlearnt its racial prejudices. The clause could have as damaging an effect as the sus laws which black people have fought and struggled to have repealed. We are not unaware that the sus laws are still enforced by a change of language, as was done at the Notting Hill Carnival in 2013.
Britain is now a land of many cultures, and what one culture will subscribe to is not always acceptable to others and may easily be interpreted as annoyance and nuisance. Anyone with a racial bias could misinterpret the actions of anyone, especially someone of colour, as being offensive and feel it within their right to accuse them of breaking the law. Such actions as the Bill proposes could criminalise many innocent persons and further damage the fragile gains that we have made in this country.
A child as young as 10 may not even know that he or she is breaking a rule. This happened under sus many times—because I have worked in the community, I speak from within. This is what happens when people are given the wrong law. A group of young people speaking loudly or displaying high spirits of any kind could be accused of causing a nuisance or annoyance to others who are not aware of the culture. They could be young people gathering together to chat, especially on housing estates where there is not an awful lot of room. Young people are more prone to be victims of this law because they feel deeply and express it. Others in society, I agree, also feel deeply, but they have the means of concealing their real feelings.
I should like to quote Assistant Chief Constable Richard Bennett of Thames Valley Police, who said he would not expose anyone to the obscenities he had hurled at him at times when he was delivering the law. I worked in the community as a human being. I am not representing the black community. I know what I had hurled at me and the discomfort it caused people that I was engaged in trying to help right the wrongs that were going on.
My motive for speaking here so openly and frankly has been curtailed, and I will not delay your Lordships longer. This clause, if unchanged, will have serious effects on the black community and divisions will be even further stretched, as under the sus law.
My Lords, I wish to take very little time to make a point which is worth making and has not yet been made. I express my complete support for the main thrust of paragraph (a) of the amendment of the noble Lord, Lord Dear, but I wish to express my reservations about paragraph (b) of that formulation. Paragraph (b) refers to anti-social behaviour being,
“in the case of an application for an injunction under this section by a housing provider”—
“housing provider” is defined in Clause 19 of the Bill—
“conduct capable of causing nuisance or annoyance to any person”.
I think that paragraph (b) is ill advised and would be better left out.
The Housing Act 1996, amended by the Anti-social Behaviour Act 2003, provided for “relevant landlords”. That expression is much the same as, but not identical to, the definition of “housing provider” in the Bill. It provided that the courts, on the application of a “relevant landlord”, could grant an anti-social behaviour injunction if the person in question, the respondent, had engaged, or threatened to engage, in housing-related conduct capable of causing a nuisance or annoyance. There we have the expression “nuisance or annoyance” in the amended 1996 Act. Housing-related conduct is defined as meaning conduct directly or indirectly relating to or affecting the housing management functions of the relevant landlord.
There is no repeal provision in the Bill so these provisions relating to the actions that relevant landlords, as defined, can bring will remain as part of our law, not withstanding the Bill becoming an Act. Moreover, it is common in tenancy agreements for there to be a covenant by the tenant not to engage in any conduct that might constitute nuisance or annoyance to the surrounding dwellers in flats or houses. That too will remain. There is no repeal provision so far as that is concerned either. The new right being given by this Bill to persons who suffer from the behaviour, whether it is nuisance or annoyance or, as the amendment of the noble Lord, Lord Dear, would have it,
“conduct that has caused, or is likely to cause, harassment, alarm or distress to any person”,
is new. For my part, I do not see why the actions in that regard should not apply as much to housing providers as to anybody else. If housing providers are relevant landlords they can bring the actions referred to in the 1996 Act as amended. If they are not, why should they not be in the same position as anybody else? That is the point I make. This amendment would be improved and would be more consistent with the current law if paragraph (b) was removed.
My Lords, this is one of those debates that are quite special to your Lordships’ House. I spent 13 years in the other place and I have been in your Lordships’ House for three and a half years. I think other noble Lords who served there would agree this is not the kind of debate that we often heard in the other place. This House is made all the more relevant and important because of that. It is also one of those debates that Ministers from any party in Government would perhaps refer to as “interesting” and “helpful”. It certainly has been a very interesting debate. The noble Lord, Lord Dear, the noble Baroness,
I want to be clear at the outset that I think everybody who has spoken wants to see effective and swift action to tackle serious anti-social behaviour and to treat the issue with the seriousness it deserves. It is not overdramatic to recognise that, if left unchecked, anti-social behaviour can destroy lives. Ongoing anti-social behaviour can cause alarm and distress and, in some cases, leaves people feeling utterly devastated and unable to cope. It creates total misery.
In previous debates, I have spoken of my experience in supporting victims, both as a Member of Parliament and a county councillor. There is no doubt that when anti-social behaviour orders were brought in they created a significant change in the way such cases were dealt with. There were teething problems but experience has shown that they are an important tool in tackling such serious problems. That is why I just do not understand why the Government are embarking on such a dramatic change in this legislation. Obviously, improvements can always be made to any system and we would support improvements to anti-social behaviour orders. However, this really is a case of throwing the baby out with the bathwater and does not improve the position for those suffering from anti-social behaviour.
I am not a lawyer—I am perhaps in a minority among those who have spoken today—but all my experience and instincts of dealing with this issue tell me that these proposals from the Government are ill thought-out and unworkable. Noble and learned Lords with far greater experience and knowledge than I who have spoken have come to the same conclusion. As we have heard, the concern is that the Government’s new proposed threshold for granting an injunction for engaging or threatening to engage in causing nuisance or annoyance to any person on the balance of probabilities if the court considers it to be just and convenient is too vague and too broad. The noble and learned Lord, Lord Morris, described it as open-ended machinery that would catch people who should not be before the courts. The danger is that in the rush of those being brought before the courts for nuisance and annoyance we could lose focus on the serious cases of harassment, distress and alarm.
The very real concerns about how this power could be used and abused were raised at Second Reading and in Committee. In preparing for this debate, I started to draw up a list of activities that could be brought into the remit of Clause 1. I had to give up after several pages and hours. The noble Baroness, Lady Mallalieu, described it as an extraordinary power, and indeed it is. I appreciate and welcome the experienced and knowledgeable legal views but this is not just a legal issue. It is a moral issue of dealing with those people who are suffering the most. The Government are not targeting the behaviour causing the most serious problems but creating a catch-all clause that could affect almost everybody at some point. There is no doubt that some people and some activities inevitably cause some degree of nuisance and annoyance. However, is an injunction, which in most cases will be pretty weak and ineffective—although at the extreme end it could involve custody—the most appropriate way of dealing with these cases, or should we accept that in our everyday lives some level of nuisance or annoyance is a consequence of ensuring the liberty and freedom of the individual? Liberty and freedom are not open ended. There have to be constraints and the test of harassment, alarm and distress spoken about today is the appropriate point to place those constraints.
“I think we are too ready as a society, as the police and particularly with some legislation coming up on the books, to label what looks like growing up to me as anti-social behaviour”.
There have also been concerns that one person’s annoyance may be another person’s boisterous behaviour. Indeed, as the noble and learned Lords, Lord Morris and Lord Mackay, and the noble Baroness, Lady Mallalieu, said, it need not be boisterous behaviour. Exercising fundamental democratic rights of protest or even just expressing views in a forceful manner can cause nuisance or annoyance.
The Minister’s amendment suggests that behaviour has to be reasonably expected to cause nuisance and annoyance. That is an admission that the Government now recognise the unreasonableness of the clause that they have previously defended to the hilt. As the noble and learned Lord, Lord Mackay, made clear, while that change on its own may be welcome, it does not address many of the points being raised here today. It still leaves the test as nuisance and annoyance to any person on the balance of probabilities. That is not good enough. I was interested in the points made by the noble and learned Lord on “just and convenient”. I accept his assessment of the value and usefulness of that. If the boisterous behaviour to which I referred is ongoing and causes harassment, alarm or distress, then action obviously has to be taken. But as it stands, even with the government amendment, a one-off event that causes nuisance or annoyance to any person on the balance of probabilities would still lead to injunction.
In Committee the noble Lord, Lord Taylor, relied largely on the definition in the Housing Act 1996. Noble Lords have concerns about paragraph (b) of the amendment. I do not share their concerns because it is appropriate in limited circumstances for the existing law aimed at people in social housing to remain to give housing providers the tools to deal with tenants in such circumstances. No change is being sought to that position and that is what part (b) of the amendment makes clear.
I will now address some of the points made by the noble Lord, Lord Faulks, in his defence of the Government, which I am sure we will hear in due course from the Front Bench as well. One great benefit of ASBOs is how seriously anti-social behaviour is taken. The issue of alarm, harassment and distress is crucial and there are appropriate sanctions for dealing with it. We could end up with more of these orders being imposed but in most cases they will be a weaker response to dealing with anti-social behaviour. The noble Lord referred to the guidance and he read it out very quickly. I have a copy of that guidance. It is somewhat confusing because it says, as he rightly quoted:
“It should not be used to stop reasonable, trivial or benign behaviours that have not caused, and are not likely to cause, harm to victims or communities”.
Where in the Bill is harm referred to? Guidance is not legislation. The legislation, as it stood, referred to alarm, distress and harassment. The Bill refers to nuisance or annoyance. Guidance suggesting there has to be harm as well does not override what is in the Bill. Noble Lords who were defending the Government’s position, when asked whether they could give examples of activities that would come under the Bill’s definition of nuisance and annoyance but not cause alarm, harassment and distress, were unable to do so. Every example they gave of where action should be taken caused harassment, alarm and distress. It is quite clear that the existing legislation is the best way to define the kind of behaviour that is disrupting lives.
The noble Lord, Lord Faulks, also raised the issue of hearsay evidence. It is currently the case with anti-social behaviour orders that professionals can give advice on behalf of those suffering so that they themselves do not have to go to court to present their case. The noble Lord, Lord Phillips, made a very important point about the courts being clogged up and about the pressures on police officers having to respond to every case of nuisance and annoyance. Has the Minister given any consideration to how the police should respond with their increasingly limited resources to cries for help from people suffering what they consider to be nuisance and annoyance and whether they will then be able to deal with very serious cases of anti-social behaviour?
The existing test of harassment, alarm and distress recognises the seriousness of anti-social behaviour and the need to take action against those who breach an order. The definition proposed by the Government is too broad and the remedies are too weak. Setting the threshold so low undermines fundamental freedoms and tolerance. It is a great shame that, having had warning at Second Reading and in Committee of the great concern in your Lordships’ House, the Government did not come back today with something a bit better than the amendment being put forward. There are serious concerns about this, not just because it would catch too many people but because those who are really causing distress in our communities will not be the focus in tackling problems. I urge the Minister to accept the amendment moved by the noble Lord, Lord Dear. The only compromise that would be acceptable today would be if the Minister were to say that he accepts that there has to be a change of definition and that he can assure us that that would be “harassment, alarm and distress” and not “nuisance and annoyance”.
Well, my Lords, this has been an interesting debate. I am not particularly thick-skinned, so I am clearly sensitive to the views that have been expressed by this House. I am grateful to the noble Lord, Lord Dear, and other noble Lords who have spoken, because they have done justice to this debate by the contributions they have made. I owe it to the House to explain the Government’s position, and perhaps I can then take this issue on.
Clause 1 is clearly an important part of the Government’s reforms, and I begin by acknowledging that there has been some common ground on the need to include it in the Bill. We have indeed reached some common ground on the elements that we need to include in Clause 1 to make it effective. First, I am glad that the civil standard of proof for the new injunction has been accepted by so many noble Lords. Secondly, I welcome the tacit acceptance of the “just and convenient” limb of the test for an injunction. The noble and learned Lord, Lord Carswell, said that this is a proper consideration for courts in any case, but it is right that we should make it explicit as one of the limbs of the test.
The terms of Amendment 1, as compared with the amendments put forward in Committee, are a welcome demonstration that this House listens carefully to the evidence put before it both by noble Lords and by front-line professionals, and that it adapts its approach accordingly. The Government have also listened to the concerns expressed by noble Lords in Committee and by the Constitution Committee and the Joint Committee on Human Rights, and that is why I have tabled Amendment 2, which we believe addresses the concerns about the breadth of the “nuisance or annoyance” test. Although Amendment 2 is not part of this group, it addresses exactly the same issue—the appropriate form of the test for the grant of an injunction—and, accordingly, it is important that your Lordships consider Amendments 1 and 2 together.
As I said in the debate in Committee when my noble friend Lord Faulks tabled his amendment, I believe it is inherent in the way that the court will look at any application for an injunction to consider whether it was reasonable to grant an injunction in the circumstances of the case. I am grateful for my noble friend’s contribution, and I look forward to him joining me on this Bill before we conclude our consideration of it.
I thank my noble friend Lady Hamwee for her contribution to this debate. I also thank other noble Lords who wanted to speak but were not able to or who have forgone their right to speak in order to expedite this debate. In that I include my noble friends Lady Newlove and Lady Berridge.
None the less, I can see that there is a good case for making a reasonableness test explicit in the legislation, and I undertook to reflect further on my noble friend’s amendment. In doing so, the Government have also been conscious of the fact that the reference to conduct being,
“capable of causing nuisance or annoyance” could, arguably, cast the net far too widely, and may not be a sufficiently objective test for these purposes.
I believe that government Amendment 2 addresses both those points. Were the House to agree that amendment, the first limb of the test for the granting of an injunction would be revised, so that instead of the court having to be satisfied that the respondent,
“has engaged or threatens to engage in conduct capable of causing nuisance or annoyance to any person”,
it would now have to be satisfied that the respondent,
“has engaged or threatens to engage in conduct that could reasonably be expected to cause nuisance or annoyance to any person”.
I hope noble Lords will agree that this is an important change, which, I submit, properly addresses the concerns that have been raised about the test for the injunction.
The noble Lord, Lord Dear, has proposed an alternative amendment to address the concerns to which I have referred. I am grateful to the noble Lord for seeking to find a middle way. In an attempt to find some middle ground, he has designed a two-tier system. The “nuisance or annoyance” test is retained for any application for an injunction by a housing provider or a local authority acting in that capacity, but the “harassment, alarm or distress” test would apply to any application made by the police, a local authority when acting in a capacity other than that of a housing provider, or any of the other agencies listed in Clause 4.
The noble Lord has explained to the House the reasoning behind his approach. As I have said, I commend him for his willingness to find some middle ground. His amendment explicitly recognises that the “nuisance or annoyance” test has operated successfully for a number of years in the housing context. But I part company with him when he asserts that this test cannot be transferred across to other contexts where anti-social behaviour occurs.
The types of anti-social behaviour that a social housing provider needs to address are not unique to that housing sector. The issues that affect those living in social housing affect those in private rented accommodation and owner-occupiers too. The impact of noise nuisance, graffiti, drunken yobbish behaviour or intimidation does not, and should not, depend on where you live.
Let me now turn to what is evidently the core concern of the noble Lord, Lord Dear—the possibility that the “nuisance or annoyance” test could have a chilling effect on free speech. Noble Lords have suggested, for example, that an injunction could be sought against bell ringers, street preachers, carol singers or others engaging in perfectly normal everyday activities.
I hope that noble Lords will accept that that is clearly not the Government’s purpose. It is my belief that those concerns are misplaced. I want to make it clear that the purpose of our reforms is not to prevent people from exercising their rights to protest and free speech. We all suffer from annoyance in our daily lives, and there is, rightly, no place for the criminal or civil law to regulate behaviour just because it is annoying.
I shall be coming on to that, but I felt I had to place what I was going to say in some context—and I am grateful for the discipline of the House in allowing me to do just that. Our aim is to allow decent law-abiding people to go about their daily lives, engage in normal behaviour and enjoy public and private spaces without having their own freedoms constrained by anti-social individuals.
The test for an injunction, when taken as a whole, coupled with the wider legal duty on public authorities, including the courts, to act compatibly with convention rights, would ensure that the injunction cannot be used inappropriately or disproportionately. As I have explained, government Amendment 2 is designed to strengthen the first limb of the test so that the conduct must be such that it could reasonably be expected to cause nuisance or annoyance. This limb on its own is likely to preclude an injunction being sought or granted under this Bill to deal with bell ringers, carol singers or children playing in the street. However, there is a second part to the test.
I ask my noble friend the same question that the noble Lord, Lord Faulks, was unable to answer. Can he give one example of a problem that would not be resolved by the amendment proposed by the noble Lord, Lord Dear? What is the problem that the Government are seeking to deal with? Can he give one example?
If I might say, it solves the problem of over-complex legislation. Having two tests for the single problem of anti-social behaviour was not the Government’s intention in drawing up this legislation.
I do not want to detain my noble friend, but I am asking for an example of the kind of behaviour that would not be caught by the amendment proposed by the noble Lord, Lord Dear. We understand the Government’s intentions, but it is not clear what the problem is that they seek to remedy. Can he give one example that would not be caught under the amendment?
I do not intend to give any examples to my noble friend. I have given the reason why we have a single test for anti-social behaviour leading to an IPNA. I have given my reasoning, and I hope that my noble friend will accept it; I am not going to go into listing individual activities that the IPNA is intended to address. That is why we have a single test and why noble Lords will understand that I am speaking in justification of that single test.
The second part of the test is not a throwaway test, as some have suggested. It is under this limb of the test that the court will consider whether it is reasonable and proportionate in all the circumstances to grant an injunction. In making such an assessment, the court will consider the impact on the respondent’s convention rights, including the rights to freedom of speech and assembly.
I agree with the noble Lord that we should not leave it to the courts to apply these important safeguards. All these factors will weigh on the minds of front-line professionals in judging whether to apply for an injunction. Our draft guidance makes this clear. This will be backed up by a framework of professional standards and practice operated by the police, local authorities and housing providers.
Having said all that—and I apologise to my noble friend for not giving him an example—I have listened to the strength of feeling around the house on this issue. The Government’s purpose is plain: we wish to protect victims. ASB, or anti-social behaviour, ruins lives and wrecks communities. In our legislation, we need to ensure that authorities seeking to do so have coherent and effective powers to deal with anti-social behaviour. Recognising noble Lords’ concerns, I commit to take the issue away to give myself the opportunity in discussion with the noble Lord and others to provide a solution that clarifies the use of the legislation and safeguards the objective, which I think is shared around this House, of making anti-social behaviour more difficult and protecting those who are victims of it.
On those grounds, and on the understanding that the Government will return to the issue at Third Reading, I will not move for now government Amendment 2, and I hope that on the commitment to discuss the issue the noble Lord, Lord Dear, will not press his amendment.
My Lords, we have been detained for something over two hours and I shall take no more than a couple of minutes of your Lordships’ time to say what I have to say. First, I sincerely thank all those who have spoken in this debate, particularly the three signatories to my amendment and the Minister, who has had to sit through a varied and interesting debate.
Secondly, I want to pick up on the chilling effect. The experience with the word “insulting” in the Public Order Act is sufficient in itself to indicate what front-line practitioners will do. Governed as they are by very well-oiled complaints machinery, they will undoubtedly be faced with many examples when a set of circumstances are produced for them, and they will be virtually pressurised into taking some sort of action, to pursue the case and push it through to the courts to decide. That is the easy option, and it is what happened all too often with “insulting”. To take an exercise in discretion and turn around to the complainant and say, “Frankly, I think we should let this one go by”, is not an option that they will take willingly. That is undoubtedly why the Association of Chief Police Officers as one group has said that it thinks that “nuisance and annoyance” is wrong and that we should stay with the well tried formula of “harassment, alarm or distress”.
The choice between those two wordings is the pivotal point of the legislation—the absolute foundation on which everything else hangs. We can talk for as long as we like about reasonable, just, convenient, necessary and all those adjectives, and try to make it work but, if the pivot does not work, all the rest falls away. The pivot suggested by the Government is “nuisance and annoyance”. We have no knowledge of what will happen if that comes into play, but we know what will happen with “harassment, alarm or distress”; it is well proven, well tried and respected, and has never been faulted. To move way from that is a step into the dark.
We have had no examples whatever of the sort of conduct that “nuisance and annoyance” seeks, rightly, to address. I pay great tribute to the Minister, for whom I have a huge liking and respect, but unless he can satisfy me—and I suspect that this is the case with others in the Chamber, from what I pick up from the atmosphere—that he is willing to move immediately to “harassment, alarm or distress”, I must seek to divide the House. I invite him to respond to that.
As far as I am concerned, if I go into discussions between now and Third Reading, all the aspects that the noble Lord has related in his speech, and those expressed by other noble Lords around the House, will be on the table. I do not want to prejudge the outcome of those discussions. All that I can say is that I wish to make sure that when we come back to Third Reading we have a House that can unite behind legislation on this issue. I do not think that that is an unreasonable expectation, and I believe that it represents the sentiment in which this debate has taken place this afternoon.
I was asked a parallel question by my noble friend Lord Forsyth. We are trying to simplify the legislation so that we make it easier for practitioners, no matter in what circumstances they are dealing with the application for an IPNA, to have a test that is capable of being applied in all areas.
I have listened to this debate. There may be ways in which the noble Lord’s amendment can be modified to advantage. It is important to recognise that he has made a very valid contribution to this debate, and I would like to have the opportunity to consider further what he is proposing in his amendment.
My Lords, if I understand the position that the Minister has taken up, he will have an open discussion, the precise outcome of which cannot, of course, be forecast. He will take account of all aspects of what has been put forward in the hope that we can, between us, reach an agreed solution to the problem which has the support of the whole House.
My Lords, in Committee, Clause 1(5)(a) was the subject of some debate. It and the related provision in Clause 21 have also been a subject between the Home Office and the Joint Committee on Human Rights. Essentially, this provision places a duty on the court to avoid, as far as practicable, imposing prohibitions or requirements in an injunction or a criminal behaviour order which would conflict with the respondent’s religious beliefs.
The Government have consistently maintained that this provision related to the manifestation of the respondent’s religious beliefs, rather than to the religious belief per se. However, for the avoidance of doubt, we have decided not to remove the provision from the Bill, on the basis that the courts would in any event, by virtue of the operation of the Human Rights Act, be bound to consider whether the proposed prohibitions or requirements were compatible with the respondent’s convention rights, including but not limited to the right to the freedom of religion. I beg to move.
My Lords, I can quite understand the reason why this particular safeguard or defence in injunctive procedures is to be removed. The noble Lord may rest assured that I am with him as far as the argument goes. I have written to his noble friend and had an answer this morning pointing out that, in normal civil injunctive proceedings, there are a significant number of available defences—depending on how one counts them, 15 or 20 or more. The Bill as it stands would have allowed for three; this will reduce it to two.
I still do not understand, because in his letter to me—which I thank him very much for, and for keeping me in the loop on correspondence generally to do with this Bill—the noble Lord, Lord Taylor, merely said that he did not agree with me. He did not explain why in one set of civil injunctive proceedings under this Bill there will remain two defences, but in any other injunctive proceedings there will be 15 or more. That seems a two-tier approach, so what is the direction of travel in that respect?
My Lords, perhaps I may come back to the noble Earl in advance of Third Reading on that to specifically clarify the issues that he has raised. In terms of what the Government have done thus far, our understanding and direction of travel is clear, responding directly to the concerns raised on this issue.
Amendment 3 agreed.
Moved by Baroness Hamwee
4: Clause 1, page 2, line 18, at end insert—
“( ) For the purpose of determining whether the condition mentioned in subsection (2) is fulfilled, the court shall disregard any act of the respondent which he or she shows was reasonable in the circumstances.”
My Lords, Amendments, 4, 5, 24 and 25 are all directed at a defence for an application for an IPNA or for a criminal behaviour order. My amendments are different from definitions of the first condition which is the requirement for an injunction or an order.
There must be cases where the conduct can be expected—or maybe we will end up with “reasonably be expected”—to cause the impacts that we have been debating. Nevertheless, there is good reason for that conduct. It is not clear to me if, as drafted, there is any defence other than “I didn’t do it” or that the conduct does not meet the test.
“For the purpose of determining whether the condition”,
of the test,
“is fulfilled, the court shall disregard any act … which … was reasonable in the circumstances”.
In case that point is not clear enough, I have specifically used the term “defence” in my more homemade Amendments 5 and 25.
There must be an opportunity for the respondent or defendant to explain himself, and I would not be happy to leave whether or not to proceed to the discretion of the applicant or prosecuting authority, whichever we are talking about. At the previous stage, the Minister said that he would take away the first of each pair of these amendments to explore whether it was appropriate to introduce an explicit reference to reasonableness. I appreciate that he went three-quarters of the way to doing so this afternoon. I know that he gave no commitment at that stage, but in any event I do not believe that his amendment, had he pursued it, would have met the point of a defence. Conduct which could reasonably be expected to cause nuisance or annoyance might still be conduct for which, in particular circumstances, there is good reason. The court should actively have to consider this.
The point is made more important by the fact that it is likely in this area that there will be a lot of litigants in person, so the legislation itself needs to be extremely clear.
My Lords, I am grateful to my noble friend Lady Hamwee for her explanation of these amendments. She explained that they seek to provide the respondent or offender with a defence as to why an injunction or criminal behaviour order, which are also included in these amendments, should not be granted—namely, that the behaviour was reasonable in the circumstances. My noble friend has pointed out that this issue is distinct from the amendment that we have already debated, which is related to the first condition for the grant of an injunction.
If I may respond at this point to the noble Earl, Lord Lytton, about his queries in the previous debate, I can say that the provisions in Clause 1(5) are not defences; they are factors for the court to take into account when imposing restrictions or requirements. The two issues mentioned should not be confused with defence issues.
As I understand it, that is the case. I was going on to argue the question of defences because that was the issue that my noble friend wanted to sort out. However, I hope that we have saved the price of a stamp by clearing that up in the Chamber.
In effect, my noble friend is seeking to argue that it is not enough to be able to establish, in the case of the injunction, that the conduct in question could reasonably be expected to cause nuisance or annoyance but that it should also be necessary to show that the conduct was unreasonable in the circumstances. My noble friend has pointed to the reasonableness defence in Section 1 of the Crime and Disorder Act 1998, which applies to the ASBO on application, although it is worth noting that no such defence is contained in Section 1C of that Act, which relates to the ASBO on conviction. I am sympathetic to the point that she raised and I hope to persuade her that it is already effectively covered.
I will deal first with the injunction. As my noble friend will be aware, the second condition that must be satisfied is that the court considers that it is “just and convenient” to grant an injunction for the purpose of preventing the respondent from engaging in anti-social behaviour. As I have already indicated, in applying this limb of the test, the court will look at whether it is reasonable and proportionate in the circumstances of the case to grant an injunction. It will be open to the respondent to argue that he or she had a good reason for his or her conduct. The court will weigh that up against the evidence submitted by the applicant and come to a view. If the court is satisfied that the reason put forward by the respondent is a sound one, I fully expect it to conclude that it will not be just and convenient to grant an injunction. Therefore, the defence is, in practice, inherent in the drafting of Clause 1 as it stands.
In the case of the criminal behaviour order, it is again important to look at the wider context in which the court will apply the test in Clause 21. The same public law principles of reasonableness and proportionality will apply. It would therefore be open to the offender to argue that there were reasonable grounds for the conduct in question, which the court would then consider alongside the evidence presented by the Crown Prosecution Service.
I might add that there is no reasonableness defence in Section 1C of the Crime and Disorder Act 1998, which provides for ASBOs on conviction—the forerunner to the criminal behaviour order. That section does, however, stipulate that the court may consider evidence presented by the prosecution or the defence, which will be the position in relation to the criminal behaviour order, albeit that is not expressly stated in the Bill.
In addition, it is worth pointing out that, in deciding whether to apply for a criminal behaviour order, the Crown Prosecution Service would need to be satisfied that there was sufficient evidence to provide a realistic prospect of obtaining an order and that it was in the public interest to apply for an order. The prosecution would therefore consider any evidence which showed that the conduct of the respondent was reasonable in the circumstances.
In short, the point made by my noble friend is well made. I assure her that a respondent or offender will be able to raise such a defence, which will then be properly considered by the court alongside evidence submitted by the applicant for the injunction or order. In the light of this reassurance, I do not believe that these amendments are necessary and, as a result, I hope that my noble friend will be prepared to withdraw Amendment 4.
My Lords, my noble friend is having a difficult enough day, so I reassure him immediately that I will seek to withdraw the amendment.
I notice the reference to the public interest test in the case of the criminal behaviour order. As regards the injunction—this is not a matter for this afternoon—I wonder whether my noble friend might consider a reference to the point in the statutory guidance. I reassure my noble and learned friend that I am seeking not guidance to the court—I would not dare—but guidance to potential applicants in order to prevent them going forward if it is not appropriate that they should go forward in the circumstances that I sought to outline. As I said, it is not a matter for this afternoon and I know that the Government are consulting on the guidance but I hope that my comment at this point can be taken as a contribution to that consultation. On that basis, I beg leave to withdraw the amendment.
Amendment 4 withdrawn.
Amendment 5 not moved.
Moved by Lord Ahmad of Wimbledon
6: Clause 1, page 2, leave out line 19 and insert “An application for an injunction under this section must be made to—”
My Lords, in developing our anti-social behaviour reforms, the Government have, both formally and informally, sought the views of the front-line professionals who will use the new powers. We have listened to them and, where appropriate, have accepted constructive proposals to improve the measures in the Bill. The amendments in this group exemplify this approach.
Under Clause 1(8), applications for injunctions against over-18s to prevent nuisance and annoyance will be heard in the county court and applications against under-18s will be heard in the youth court. However, some cases of anti-social behaviour involve mixed groups of under and over-18s. To allow for such cases,
Amendment 19 would enable rules of court to be made which would, in turn, enable the organisation applying for an injunction to seek permission from the youth court for the application against the adult—or, indeed, applications if there is more than one adult—to be heard in the youth court alongside the applications in respect of one or more under-18s. The youth court may grant the application if it is “in the interests of justice”. If not, the application will be denied and the application in respect of the adults will be heard in the county court in the normal way.
If the case is heard in the youth court and an IPNA is granted, Amendments 8, 9, 10 and 11 provide that any subsequent proceedings in relation to the adults will be heard in the county court—for example, if there are proceedings for a breach. Only the initial application for the grant of an injunction will be heard in the youth court.
Amendments 6, 7 and 21 are consequential on Amendment 19. These amendments help put victims first. In most cases, it will prevent them having to attend court and give evidence twice. The amendments will also reduce costs and save court time. By linking these hearings in the youth court, we will retain the experience and expertise of its judges in protecting the best interests of respondents under 18. I beg to move.
We understand the reasons for these amendments and for wanting to try to ensure that cases involving those under 18 and those who are adult, where they relate to the same issue, can be tried or dealt with in the same court. Therefore, I certainly have no wish to argue against the principle of what the Government are seeking to achieve. However, in the letter that the Minister sent to us on
“We believe that it is in the best interests of respondents aged under 18 for linked cases involving adults to be transferred to the youth court rather than vice versa”.
Can he confirm that that means that a case could not be held in the adult court if somebody aged 18 was involved? Perhaps for the sake of argument I may take as an example—perhaps it is very exceptional—a case where there are, say, four or five adults and one person under 18 who happens to be 17 and a half. Under these amendments, is it the Government’s position that it would not be possible, if the parties wanted it, for the matter to be dealt with in the adult court? Are they saying that if the cases are going to be dealt with together, that can happen only in the youth court? I should be grateful if the Minister could clarify that point.
I stress that we are not opposed to what the Government are seeking to achieve, but I pose the question in the light of the sentence in the letter that was sent to us where reference was made to believing it to be,
“in the best interests of respondents aged under 18 for linked cases involving adults to be transferred to the youth court rather than vice versa”.
Does that mean that they could never be held in the adult court, even if for example there were four or five adults and one under 18? I think that I know the answer to this, but could the Minister say why the Government believe that it is in the best interests of respondents aged under 18 for linked cases to be in the youth court rather than vice versa?
My Lords, I will clarity that. As was put down in the letter of my noble friend on the final point, there is an understanding and appreciation that with youths under 18, youth courts have certain specialist knowledge in dealing with these cases. The point, which has been raised over and again, is that one of the key things, especially when it comes to such matters, is reforming and addressing particular issues, and ensuring that we prevent reoffending. We feel that the youth courts, particularly in the cases of under-18s, are best placed to deal with these issues. I can confirm that a case involving a person under 18 cannot be transferred to the country court in any circumstances.
Amendment 6 agreed
Moved by Lord Ahmad of Wimbledon
7: Clause 1, page 2, line 21, at end insert—
“Paragraph (b) is subject to any rules of court made under section 18(1A).”
Amendment 7 agreed.
Clause 7: Variation or discharge of injunctions
Moved by Lord Ahmad of Wimbledon
8: Clause 7, page 5, line 6, at end insert—
“( ) In subsection (1) “the court” means—
(a) the court that granted the injunction, except where paragraph (b) applies;
(b) the county court, where the injunction was granted by a youth court but the respondent is aged 18 or over.”
Amendment 8 agreed.
Clause 8: Arrest without warrant
Amendments 9 and 10
Moved by Lord Ahmad of Wimbledon
9: Clause 8, page 5, line 31, leave out paragraphs (b) and (c) and insert—
“(b) a judge of the county court, if—
(i) the injunction was granted by the county court, or
(ii) the injunction was granted by a youth court but the respondent is aged 18 or over;
(c) a justice of the peace, if neither paragraph (a) nor paragraph (b) applies.”
10: Clause 8, page 5, line 40, leave out from “injunction” to end of line 42
Amendments 9 and 10 agreed.
Clause 9: Issue of arrest warrant
Moved by Lord Ahmad of Wimbledon
11: Clause 9, page 6, line 8, leave out paragraphs (b) and (c) and insert—
“(b) a judge of the county court, if—
(i) the injunction was granted by the county court, or
(ii) the injunction was granted by a youth court but the respondent is aged 18 or over;
(c) a justice of the peace, if neither paragraph (a) nor paragraph (b) applies.”
Amendment 11 agreed.
Schedule 2: Breach of injunctions: powers of court in respect of under-18s
Moved by The Earl of Listowel
12: Schedule 2, page 138, line 34, leave out paragraph (b)
My Lords, I will speak also to the other amendments in my name in this group. Amendments 12 and 13 to Schedule 2, and Amendments 34 and 35 to Clause 37, seek to remove imprisonment as a sanction for children breaching their IPNAs or failing to comply with police dispersal orders respectively. Schedule 2 provides for supervision orders to be made against children breaching their IPNAs. This is adequate for dealing with children of all ages. There is no need to introduce detention as an additional sanction for over-14s. The case for why this is necessary has not been made. Will the Minister explain why this is seen by the Government as necessary?
Amendment 34 removes imprisonment as a sanction for children failing to comply with a police dispersal order. Amendment 35 sets out a range of alternative sanctions for such children. These measures aim to ensure that the discretion of the court is not fettered. I am grateful to the Minister for allowing us an opportunity to meet yesterday to discuss my concerns in this area. I will come to my final Amendment 86 in this group, which is on youth services, when I have discussed the other amendments.
There are two key reasons why imprisonment should not be available for children breaching their IPNA or failing to comply with a police dispersal order or power. First, imprisonment is expensive, ineffective and counterproductive. In 2010-11 the reoffending rate for children leaving custody was 72.6%. Youth custody is expensive. The average cost of a place at a secure training centre is £178,000 per annum. There is clear evidence to suggest that for many children, incarceration increases the risk of recidivism. Imprisoning children, even for a short period, can introduce them to criminal networks that become impossible to escape later.
I fear that we may be introducing more children to schools of crime and preparing them for later universities of crime. I have visited many young offender institutions and secure training centres. I visited Feltham young offender institution 13 or 15 years ago, and then visited it recently with a number of chief executives from London local authorities and the chair of the Youth Justice Board, Frances Done. It was striking how much things had changed in that time. Thanks to this Government, there are far fewer young people in custody, which is very much to be welcomed. Those young people who are left are very challenging, tough and difficult to work with. In the Bill, we are considering bringing in some young people—children—who have not even committed a crime to spend three months or so in detention with these very hard nuts. Do we really want to mix such children with such children?
From that visit to Feltham young offender institution, the concern of the chief executives of the local authorities in London about gang violence also became clear. We heard a transformation from my first visit to Feltham. No longer were two young people getting into a fight with one young person, but 13, 14 or 15 young men would be attacking one or two boys because they were not in the right gang. It was important for the secure estate to know from the local authorities which gangs their particular boys came from, so that they could manage the risks around that.
There is also a concern that we are bringing into these conditions young people who may not be a member of the right gang and may be victimised because of that. If they are not a member of a gang, one can speculate that they will be by the end of their time in the secure estate, because they will need to be to survive. I am very concerned about introducing more young people into the secure estate, given how much risk for them is involved and how detrimental for us it might be for them to have that experience.
The second main reason for opposing imprisonment is that it is a severe and anomalous punishment that may be incompatible with the UN Convention on the Rights of the Child. Allowing children to be imprisoned for IPNA breach or non-compliance with a police dispersal power is inconsistent with how prison is used in the wider youth justice system. In the criminal justice system, children are imprisoned only for the most serious offences or for persistent offending. Failure to comply with a police dispersal order is only a minor offence. IPNA breach is a civil offence—a contempt of court. This Bill introduces for the first time detention for children who are in contempt of court for minor civil wrongs. Currently the law does not allow this to happen, except in very limited circumstances.
Arguably, imprisoning children for IPNA breach or failure to comply with a police dispersal order is not consistent with the UK’s obligations as a signatory of the United Nations Convention on the Rights of the Child. Article 37 of UNCRC states that children should be imprisoned only as a “measure of last resort”. The United Nations standard minimum rules for the administration of juvenile justice—the Beijing Rules—state that:
“Deprivation of personal liberty shall not be imposed unless the juvenile is adjudicated of a serious act involving violence against another person or a persistence in committing other serious offences and unless there is no other appropriate response”.
I would argue that there are a number of other appropriate responses.
In conclusion, I assure the Minister that Amendment 86, on youth services and the duty on local authorities to secure appropriate services to prevent young people from being involved in anti-social behaviour, is merely a probing amendment. I would like to see the Minister attending to and looking at the statutory guidance for local authorities on services and activities to improve young people’s well-being. I support the broad principle set out in the guidance and acknowledge the reference there to youth work, and to young people’s personal and social development. However, the guidance is so broad in its interpretation that all local authorities are able to say that they are meeting some of these requirements so far as is reasonably practicable. Because the guidance says specifically that government will not prescribe which services and activities for young people local authorities should fund or deliver, or to what level, I am sure that more than ever the level of support that young people get access to is determined by where they live.
Last year, spending on youth services declined by 10% overall. Spending on getting young people off drugs and alcohol declined by 18%. If we are to be serious about preventing anti-social behaviour—and especially if we are talking about putting young people in custody because of their anti-social behaviour—it is important that we ensure that we have the vital youth services that will prevent this behaviour. This is a healthier and more civilised way of intervening with these young people, and it is well evidenced in preventing such behaviour. I would appreciate the Minister’s assurance that he will look at the guidance and consider whether it might be tightened to some degree to ensure that adequate youth services are provided.
It is welcome that considerable funding is being given to police and crime commissioners in this area, but what all young people need, particularly vulnerable young people, is continuity of relationships. They need to build a relationship of trust with an institution or an individual, they need their youth clubs—and they need them to be there over a period of time, not opening and closing depending on the whims of the local authority or the state of the economy.
I am sorry to have spoken for so long, but perhaps I may conclude by saying how sad I was to learn of the death of Mr Paul Goggins MP, a former Minister for Prisons and a well respected parliamentarian, with whom I had the privilege of working on a number of occasions as the vice-chair of the All-Party Parliamentary Group for Children and Young People in Care. He began life as a social worker and managed a children’s home. He tabled in the other place an amendment to the Children and Families Bill that is currently proceeding through this House, which the Government eventually accepted. It is described as one of the most important changes for looked after children in a generation and allows young people to remain in foster care with their foster carers until the age of 21, where they choose to do so. The Government are supporting that with £40 million for its implementation. He also worked very hard to introduce special financial provision for looked after young people and did much other work in this area. I am sorry to hear of his early demise and I hope that it will be of some comfort to his family to know of the respect in which he is held by this and the other place.
I beg to move.
My Lords, the noble Earl knows how sympathetic I am to his amendments, particularly in regard to detention. I made a cack-handed attempt at about 11.43 pm on day 4 out of five of Committee to raise issues about Schedule 2, and I have some questions for the Minister.
I am aware that Part 1 of Schedule 2 contains some significant safeguards—I hope the Minister will not feel upset at my using that term—and that paragraph 1(3)(a) provides that the applicant for a supervision order or a detention order must consult the youth offending team. There is no explicit provision for the court to consult the youth offending team although it may be good practice. Can he give me any reassurance on that score?
Secondly, is the Minister able to give me an example—I am sorry if it seems as though I am harking back to an approach adopted in an earlier debate, but I have asked this question before and it will not come as a surprise to him—of such a severe or extensive breach that only detention would be appropriate, without that activity also being a criminal matter? Perhaps he will also say whether there is a role for guidance from the Home Office, and what that role might be, for rules of court and for sentencing guidelines in this connection.
My Lords, I have not always felt that the noble Baroness, Lady Hamwee, has addressed herself to issues that are hugely important or pertinent in this Bill, although she has gone into a great deal of detail. However, the point that she has just raised about the circumstances in which the Government envisage these powers in respect of juveniles being appropriate is extremely important.
There is a risk that the Government will, no doubt inadvertently, create a perfect storm around some of these matters. The powers under the dispersal order—we will come to this later—can be exercised without proper prior consultation. This can then lead to young people in breach of a dispersal order being potentially subject to detention, with all the consequences that the noble Earl described.
I can envisage circumstances in which the perhaps over-hasty, ill thought through use of dispersal order powers will lead to young people being rounded up and to some of them, because they are in breach of a dispersal order, being potentially subject to detention. That seems to be a toxic cocktail for community relations in many of our towns and cities.
Therefore the question that the noble Baroness has just asked the Minister is extremely important. What are the circumstances in which it is envisaged that detention is the appropriate outcome of a breach of, in particular, a dispersal order? What are the circumstances? What is the context in which this will be done? Are the Government going to provide sufficient guidance to make that clear? Otherwise, I can envisage circumstances in which young people will be detained as a consequence of something that was perhaps ill thought through at the time, with enormous social consequences.
In the context of these amendments I share his concerns that we should be looking at detention for, as it were, a first offence; for something which, as my noble friend Lady Hamwee pointed out, might not even be a criminal offence. If it is a criminal offence, of course, we do not need the detention powers in the first place. I look forward with interest to what my noble friend has to say. I hope that he has been allowed to be more helpful to my noble friend Lady Hamwee than he was on a previous amendment.
My Lords, I thank the noble Earl, Lord Listowel, for his generous and kind comments, which we appreciate, for our former colleague Paul Goggins. He was an exceptional MP and, for those who knew him and were very fond him, he was an exceptional person as well. We are very sad to lose him.
On the amendments, rather along the lines of the issues raised by my noble friend Lord Harris of Haringey, perhaps I may ask some questions about dispersal orders. The extension of dispersal orders that the Government are proposing seems quite strange. Previously, dispersal orders were for 24 hours, with democratic oversight in consultation with the local authority, and covered a restrained geographical area. That has changed because under the Government’s proposals they are for 48 hours with a much wider geographical area. There is no involvement of the local authority but there is the involvement of a member of the police force of the rank of inspector or above.
The Minister will recall that we discussed in Committee the lack of clarity around the operation of dispersal orders. A number of questions were put to the Minister but we did not get answers then. Given this extension and the change in how the Government want dispersal orders to operate, it is a concern that the detention, particularly for young children, would remain for a much broader and wider offence about which we have had very little information, and I read the debate again today. It raises some questions for the Minister to answer. Why does he think that these dispersal orders are appropriate? Does he think it likely that, because of the wider area, the increased length of time and the fact that there is no democratic oversight, we shall see more dispersal orders? Is it appropriate in those cases that we may see more breaches of them?
It raises a concern that something as minor as a dispersal order, which can be issued by a police offer on the spur of the moment, when there is not really a process in the way we would expect, could lead to detention. The extension of how the Government are planning to use dispersal orders in the future, retaining detention for young people if there is a breach, gives rise to concern. Will the Minister explain why he thinks it appropriate, how he thinks it will be used and on how many occasions? I am concerned that we may see an increase in dispersal orders. I am very unhappy about the Government’s proposals in any case, but if we see an increase there could be an increased number of breaches and we could then see detention of young people. Will the Minister explain how this will operate and why he thinks it is appropriate?
My Lords, I start by joining in the tributes being paid to Paul Goggins. I know that my colleagues in the Home Office share this view. We were together yesterday evening when his illness was mentioned. His loss this morning is a loss to British public life and I am happy to pay tribute.
I am very grateful to the noble Earl, Lord Listowel, for tabling these amendments. It is right and proper that we consider these matters. His amendments raise important issues about whether detention is appropriate for someone aged under 18, and we debated this at some length in Committee. I was pleased that we had the opportunity for a productive meeting yesterday and I hope that I will be able to answer some of the points made by the noble Earl and other noble Lords.
The Government strongly support the use of informal interventions and rehabilitative approaches, particularly when dealing with young people. That is at the heart of our overall approach to anti-social behaviour. However, detention must be available to the court if the new injunction is to act as an effective deterrent and to protect victims and communities in the most serious cases. When we consulted on the new anti-social behaviour powers, 57% of those who responded were in favour of the breach sanctions for the injunction for under-18s. Only 22% disagreed, with only a further 4% against any custody for under-18s.
The injunction is a court order and must be supported by tough sanctions to ensure compliance. However, in contrast to anti-social behaviour orders, under-18s will not be unnecessarily criminalised and saddled with a criminal record for breach. However, it is only in the most serious or persistent cases of breach that a court may detain someone aged under 18. Schedule 2 to the Bill makes clear that a court may not detain a young person for breach of an IPNA,
“unless it is satisfied that, in view of the severity or extent of the breach, no other power available to the court is appropriate”.
Where this is not the case, the court may impose a supervision order on a young person and Part 2 of Schedule 2 to the Bill sets out a number of non-custodial requirements that can be attached to such an order. The relevant requirements are a supervision requirement, an activity requirement or a curfew requirement. These are three of the requirements which may be attached to a youth rehabilitation order, the youth equivalent of a community sentence.
We would expect the youth courts to do all they can to ensure that a young person’s rehabilitation is effective. In making any decision to make a detention order, the court must consult with the youth offending team and inform any other body or individual the applicant thinks appropriate. If the court does decide to make a detention order, it must give its reasons in open court. The availability of custody as a sanction in exceptional cases reflects the current position as regards the anti-social behaviour order on application. Indeed, breach of an ASBO on application attracts a maximum penalty of five years’ imprisonment as well as a criminal record.
The previous Administration took the view that there needed to be effective sanctions for breach up to and including imprisonment, including in cases involving young people. While it was generous of the noble Earl to congratulate the previous Government on this aspect of their policy, we do not believe that they got the balance quite right between punishment and rehabilitation. That is why we are treating breach of the IPNA as a contempt of court rather than as a criminal offence: we believe that they were right to include the option of custody for both adults and juveniles. To remove that option for juveniles would significantly weaken the effectiveness of the injunction and thereby weaken the protection we are seeking to afford to the victims of anti-social behaviour.
I shall address some of the concerns expressed by the noble Earl and other noble Lords. Of course, a vital part of preparing for the introduction of these new powers will be appropriate training and support for the judiciary, police and other front-line professionals in how these powers are applied to young people, and the Home Office is already discussing these requirements with the Ministry of Justice, the Judicial College and the College of Policing.
I can inform the noble Earl that young offenders under 18 years of age may be placed in a young offender institution run by the National Offender Management Service, NOMS, a privately operated secure training centre or a local authority secure children’s home. Placement is made by the placements team of the youth justice board, which is notified by the court when custody is given. They will use their expertise and will be informed by the relevant youth offending team to place them in an appropriate establishment suitable for their needs. The youngest and most vulnerable young people will be placed in secure children’s homes. There are no longer any places for girls in young offender institutions, so they will be placed in a secure training centre or secure children’s home.
Under the Bill, the court must consider any representations made by the relevant youth offending team in considering whether to make a detention order against an under-18. Moreover, the applicant for a detention order or a supervision order must consult any youth offending team and inform any other body or individual the applicant thinks appropriate. I hope that helps to reassure the noble Earl.
I shall go on to the dispersal order.
The noble Lord made the point about it being a contempt of court. Can he tell me in how many other cases young people can face detention for a contempt of court?
Off the top of my head, I cannot, but I hope that the noble Baroness will allow me to write to her on that. I will copy in all noble Lords who have spoken in this debate and put a copy in the Library.
As for breach of a dispersal direction, I can offer the noble Earl some comfort and, in doing so, I should like to correct the impression I gave in Committee on
In the case of the IPNA, I fear that we have to agree to differ on the appropriateness of having custody as a long-stop option for breach of an injunction by a person under 18. For the sake of victims of anti-social behaviour, we remain strongly of the view that, in exceptional cases, a detention order should be available to the courts. We should not weaken these provisions by removing that option.
Amendment 86, the final amendment in this group, seeks to place a new responsibility on local authorities to provide youth services to prevent young people becoming involved in anti-social behaviour. This obligation is already effectively provided for by the Crime and Disorder Act 1998, which places a responsibility on local authorities to formulate and implement a strategy for the reduction of crime and disorder in their area, where crime and disorder includes anti-social behaviour and youth anti-social behaviour. That Act includes a responsibility for local authorities to keep the strategy under review, monitor its effectiveness and alter it accordingly. Local authorities must ensure that their strategy focuses on the types of problem in their area, based on an analysis of local levels and patterns of crime and disorder, and the misuse of drugs and alcohol. Therefore, if an area has a particular problem with youth anti-social behaviour, the local authority has a responsibility to put measures in place to reduce the problem. I would expect this to include preventive measures. In addition, the Children Act 1989 places an obligation on local authorities to safeguard and promote the welfare of children in their area who are in need and to promote the upbringing of such children by their families by providing a range and level of services appropriate to those children’s needs. This includes services to prevent young people becoming involved in anti-social behaviour, crime and disorder, as well as services to support those young people and their families who become involved in anti-social behaviour or crime.
I hope I have reassured my noble friend Lady Hamwee, the noble Lord, Lord Harris of Haringey, the noble Baroness, Lady Smith of Basildon, and the noble Earl that the duty he seeks to create through this amendment already exists and that local authorities have these crime and disorder reduction strategies in place. In these circumstances, I hope the noble Earl will be prepared to withdraw his amendment.
My Lords, I am most grateful to all those who have spoken: the noble Baronesses, Lady Hamwee and Lady Smith of Basildon, and the noble Lord, Lord Harris Haringey. I am grateful to the Minister for his careful reply, particularly for giving some detail about the training of the judiciary and other people in contact with young people in this regard. That is terribly important and a place where we fall down to some extent. Again, I encourage the Government to think about the use of mentors in this kind of training of professionals working around young people. It is so important to develop an understanding of young people in front-line police officers who work on a beat and regularly come into contact with such young people, and other workers. Allowing and supporting them to become mentors to a young person for a period of three to six months, and helping them to reflect on that and how it works, benefits them but also benefits the young person who often needs that kind of relationship.
The Minister made a number of other interesting and helpful points. I express some concern about the placements—the disposals, if you like—within the secure estate. Because of the Government’s success in reducing the number of young people in custody, a number of secure children’s homes have been shut down. I am not sure if the secure training centres have also shut—I think places in them have been reduced. The courts have less range and freedom in choosing disposals. Sometimes, they will simply be driven to choose what is available, even for a fairly vulnerable young person. One recalls the suicide of a young person who was recognised as being vulnerable but was sent to a secure training centre because there was no space available in a children’s home. Shortly after that, he hanged himself. That was about five years ago. There are difficult decisions to be made. This is an area we will have to agree to disagree on.
I was really pleased to hear that there will not be the detention of children under breach of dispersal orders, if I understood the Minister correctly. That is very good news. I will not keep the House any longer at this time. I beg leave to withdraw the amendment.
Amendment 12 withdrawn.
Amendment 13 not moved.
Moved by Lord Taylor of Holbeach
14: Schedule 2, page 139, line 31, leave out paragraph (a)
Amendment 14 agreed.
Amendment 15 not moved.
Clause 12: Power to exclude person from home in cases of violence or risk of harm
Moved by Lord Ahmad of Wimbledon
16: Clause 12, page 6, line 36, at end insert—
“( ) the respondent is aged 18 or over,”
My Lords, in Committee, my noble friend Lady Hamwee questioned whether it was appropriate for under-18s to be excluded from their own homes on the grounds of anti-social behaviour. After further consideration, I am content to make a change that ensures that only adults can be excluded from their home where there is a threat of violence or a significant risk of harm to others.
Councils have wider safeguarding duties and other legislation that allows for a child to be removed from the home when it is in their best interest. For instance, local councils already have duties under the Children Act 1989 to safeguard and promote the welfare of children. Where a young person is committing serious anti-social behaviour to the extent that agencies are considering applying for an injunction with the power to exclude that young person from their home, the local council should first consider whether the child is “in need” under the Children Act and if so provide appropriate support as an alternative to simply excluding a young person from their home. A Part 1 injunction could still play a role in transforming the young person’s life as well as protecting victims from further anti-social behaviour. However, if removing them from the family home is considered necessary, this should be done under existing legislation and not just be seen as a chance to disperse the problem to another area.
I do not believe that this change will weaken agencies’ ability to deal with anti-social behaviour caused by minors. Agencies can still apply for an injunction to stop the young person’s behaviour and the court can attach a power of arrest to the order in cases where an individual has either been violent or threatened violence when committing or threatening anti-social behaviour, or where there is a risk of significant harm to another person by that individual. The power of arrest will act as a deterrent and allow the police to take swift action to protect the victim or communities if the injunction is breached. Of course, youth offending teams will play an important role in identifying the problems that drive the young person’s behaviour and measuring the risk they pose to others to ensure that the right action is taken. However, we accept that excluding a young person from their home using an injunction will not be the right action and I therefore commend the amendment to the House. I beg to move.
My Lords, the bad news for the government Front Bench is that this amendment was put down in the flurry of amendments that my noble friend Lord Greaves and I rushed to table when the timetabling of business was changed. That encourages me to continue that sort of scattergun approach to matters I think need to be discussed in Committee, but of course I am extremely happy to see this among the government amendments and to know that the change will be made. I am very grateful to the Government for listening.
Amendment 16 agreed.
Clause 13: Tenancy injunctions: exclusion and power of arrest
Moved by Lord Ahmad of Wimbledon
17: Clause 13, leave out Clause 13
My Lords, this amendment follows up the debate in Committee initiated by the noble Lord, Lord Rosser, about Clause 13. This clause preserves an existing power available to social landlords to apply for tenancy injunctions to prohibit anti-social behaviour which relates to or affects their management of their housing stock.
In Committee, the noble Lord, Lord Rosser, sought to challenge Clause 13 on the grounds that its provisions were not tenure-neutral. As I have indicated, Clause 13 simply preserves an existing power available to social landlords under Section 153D of the Housing Act 1996. That section, which, I might add, was inserted into the Housing Act by the previous Administration in 2003, responded to calls from social landlords that they needed to be able to hold their tenant responsible for the behaviour of visitors. However, strictly speaking, Clause 13 is not necessary, as an injunction under Clause 1 can be used to achieve the same end of holding the respondent responsible for the anti-social behaviour of the visitors to their property, regardless of tenure.
We included Clause 13 in the Bill because social landlords were familiar with tenancy injunctions. However, given the points raised in Committee by the noble Lord, Lord Rosser, and after further consultation with social landlords, we have decided to remove the clause to ensure that the injunction is completely tenure-neutral. This will fit in with our wider approach of simplifying anti-social behaviour powers through the Bill, while ensuring that social landlords, like the police and other agencies, will have access to the tools they need. I beg to move.
My Lords, I thank the Minister for introducing the government amendment. Any move towards increasing tenancy neutrality in the Bill is to be welcomed. I will raise one issue with the Minister, which arises from the letter that he sent to us setting out the reasons for the changes that were being made. The paragraph in question states:
“However, as the IPNA can do everything a tenancy injunction can do, we are satisfied that there is no compelling case for retaining this bespoke provision for those living in social housing”.
Earlier in the letter, the Minister had said:
“The provisions in respect of the IPNA are tenancy neutral”—
I am not sure whether that is regarded as different from tenure-neutral—
“save for the provisions in clause 13”.
From that, one would assume that if Clause 13 is disappearing from the scene, then the provisions in respect of the IPNA are indeed neutral. With the comment in the letter that,
“the IPNA can do everything a tenancy injunction can do”,
that was why the Government felt that they could withdraw Clause 13. Of course, not only does Clause 13 cover what is said in Clause 12(1), that an injunction,
“may have the effect of excluding the respondent from the place where he or she normally lives”,
it also states:
“The court may include in the tenancy injunction a provision prohibiting the person against whom it is granted from entering or being in … any premises specified in the injunction (including the premises where the person normally lives)”,
“any area specified in the injunction”.
In the light of the statement in the letter that the IPNA can do everything a tenancy injunction can do, are we to assume that that part of Clause 13(3) would or could apply to any tenure and not simply to those tenures previously covered by the tenancy injunction? As I understand it, the Government appear to have moved on that point and the provisions in respect of the IPNA are now neutral. Bearing in mind what Clause 13(3) said, which went beyond merely,
“excluding the respondent from the place where he or she normally lives”,
“any premises specified in the injunction”,
“any area specified in the injunction”,
is that something that is still to be reserved for social housing tenants or is it something that, if it was deemed necessary or desirable, could now be applied to anybody in any form of tenure?
My Lords, to clarify, as I said earlier in moving the amendment, an IPNA could impose the prohibitions that were specifically referred to in Clause 13 as well. For example, an IPNA could be used to deal with visitors to a property. As such, the provisions are covered in an IPNA. Therefore we have tabled the amendment in light of the comments made by the noble Lord in Committee.
My Lords, Amendments 18, 26 and 29 set out to remove the presumption that a child will be named publicly when they are involved in youth court proceedings relating to the new anti-social behaviour orders. I am very grateful to the Children’s Society, the Standing Committee on Youth Justice and others for concentrating my thoughts on this issue.
The Bill as it is currently written suspends Section 49 of the Children and Young Persons Act 1933 for children subject to the new orders and breach proceedings. For 80 years, Section 49 has provided a presumption against revealing details of a child’s identity. This Bill means that children will be named publicly as a default unless the court makes an active choice not to name them. My amendments do not prevent the court from naming a child if it thinks it appropriate to do so. They simply mean that a child will not be named by default.
The issue of publicly naming children is an important one. It raises a number of concerns regarding rehabilitation and safeguarding and is contrary to the usual presumption of anonymity that is granted to children in criminal proceedings. The presumption to name children has significant implications for the safeguarding of children. Naming a child publicly could mean that they are subsequently targeted by individuals or gangs wishing to exploit their vulnerability. Identifying a child as having been involved in anti-social behaviour could indicate that the child may be tempted to engage in risk-taking behaviour or that they will be more susceptible to being groomed. Children with special educational needs are also more likely to be involved in ASB, making them particularly vulnerable to exploitation.
Naming, thereby shaming, children can hinder the successful rehabilitation of those who wish to make a fresh start. It can be counterproductive by prolonging the problems that children have in re-engaging positively with their community. It can also make it extremely difficult for professionals to obtain services instrumental in a child's rehabilitation. There is little evidence that identifying a child is effective as a deterrent.
In our debates yesterday we were concerned with the Government’s very positive response to the need for education, health and care plans for children in trouble. I believe that this element of this Bill works in the opposite direction. In the age of the internet and social media, details of a child's identity are indelible once they are revealed. Children should not have this stamp on them from such a young age because it can affect their future ability to get a job, obtain housing and contribute to society. Naming and shaming through ASBOs has criminalised, stigmatised and negatively labelled young people and has in some cases perpetuated problems rather than helping to resolve them.
The Joint Committee on Human Rights has expressed concern about the impact of reporting on a child’s right to privacy in its pre-legislative scrutiny report. Naming and shaming contravenes the anonymity usually granted to children in criminal proceedings and denies the right to privacy in the UN Convention on the Rights of the Child. The Local Government Association has also expressed concern, especially about a child who receives or breaches an IPNA but who has not actually committed a criminal offence.
Magistrates and district judges sitting in the youth court are not accustomed to considering whether to impose reporting restrictions. That is because the youth court operates under a general presumption of anonymity. Section 39 of the Children and Young Persons Act will allow a court to impose anonymity on the new ASB proceedings. However, because the court is not used to having to consider whether anonymity should apply, it is likely that children will be named without the court even considering whether a Section 39 application should be made.
I therefore want to press the Minister for some guidance. Will he consider discussing with magistrates and district judges sitting in the youth court the need to consider a Section 39 order in each case where ASB proceedings are taking place? How will they ensure that the youth court considers whether to impose a Section 39 order in every case of a child involved in ASB proceedings? The guidance for front-line professionals accompanying the Bill should advise them to make a Section 39 application to the court when they believe that a child’s details should remain anonymous. Privacy for a child affects him or her not just at that moment but for the rest of their lives. It is something that we ought to take great care about removing. I beg to move.
My Lords, I support the right reverend Prelate. I was grateful to the Minister for the chance to discuss this matter yesterday, and I understood from what he said that he expected the courts to use naming and shaming to a very limited extent. That is comforting to some degree, but I worry about this, because many young people who will be drawn into this procedure are the sort with whom I am familiar from my parliamentary work with young people in or on the edge of care. The familial experience—the father often absent from the home, often violence in the home, often alcohol or other substance misuse in the home—has left many of them feeling deeply worthless and very guilty about themselves. We all know, I think, that when a young person sees a parent desert them, they do not think, “This is a very irresponsible adult”; they think, “What have I done to drive this person away from me?”. The risk is that, by the state coming along and publicising their name in the newspaper as a bad boy, they will think, “Yes, look, even the local newspaper thinks that I am useless, worthless, a bad boy and there is no good in me”. That is one area of concern for me.
The other is that when these young people grow up in a family where there is little love or attention and they are not listened to, sometimes, if they cannot get any fame, at least notoriety—their ability to be notorious—is something that they can chase after. If they will not be listened to in their home or anywhere else or given attention in school, at least if they cause a lot of aggravation they can see their photograph in the local newspaper. There are real reasons to be concerned about this. I am very grateful to the right reverend Prelate for tabling the amendment and I look forward to the Minister’s reply.
My Lords, in Committee, I tabled an amendment on the clause which was an attempt to suggest a compromise before we had even discussed it, because I knew that the Government would be keen to stick to the general approach. That amendment would have meant that the clause applied only to 17 and 18 year-olds.
As the right reverend Prelate said, the existing provisions are not absolute. I have some questions for the Minister arising from them. Given that there is currently discretion to allow reporting that is in the public interest, and given the public policy underlying the Bill, would that not be a strong indicator to the court on how to view the public interest test? Would not reversing it, so that the individual is named unless the court decides otherwise—apart from the consequences for the individual; I entirely take the points that have been made—mean additional process for the courts?
I suspect that there would have to be a pre-trial application for anonymity. If I am right, how does one ensure anonymity before that or in the listing of the application? The right reverend Prelate made the point that that would overturn the culture—in fact, the practice—of the youth court. It would be much easier for it to be able to continue with its current practice.
The existing provisions contain a lot of detail about lifting restrictions. Conversely, if one has reversed the presumption, what is the trigger for restriction to apply? What would be pointed to in an application to restrict reporting? Another question is whether any stakeholders have argued for the provision that we see in Clause 17.
Finally, what consideration have the Government given to how communications have changed, particularly with Twitter, which spreads information almost faster than a heartbeat and certainly before restrictions could be applied? Ironically, the law brought into effect in 1933 seems more appropriate for the age of speedy communications, where you start with restrictions and then consider whether to lift them. That would work much better for communications 80 years on.
My Lords, I add just a word based on my experience of how these things are dealt with in the courts. The advantage of the present rule is that a uniform rule applies throughout the country and avoids the problem, which is commonplace in the courts, of different practices in different areas and different judges taking different views. The uniformity of the rule is one advantage.
The second point, which the noble Baroness just mentioned, is that it is essential, if a reporting restriction is to be effective, that it be asked for at the beginning. There is always a risk that somebody nips out of the court before the order is made and the damage is then done but the individual can say, “I wasn’t there when the order was made”. To be effective, it has to be made at the start.
The third point is representation. I do not want to go into the issues about legal aid, which are not a matter for this debate, but there would be concern that people who are not very experienced and not attuned to all the matters raised by the right reverend Prelate fail to take the point. My impression is that if the point is taken as eloquently as the right reverend Prelate made it, the court would be very slow not to make an order unless there were compelling reasons for refusing the application, but it requires an application to be made, because I suspect that a court will not take the initiative without that.
Those are advantages of the present rule which would be lost. Obviously there is a balance to be struck, but I would be interested to know to what extent study has been made of the effect of losing those advantages, if the Bill is to remain in its present form.
My Lords, I will be brief. The Minister has been asked a number of relevant questions and I am sure that noble Lords will be waiting to hear the responses. In particular, do the Government anticipate that their proposal, with provision for suspending Section 49 of the 1933 Act, is likely to lead to a significant increase in the number of children being named as a result of that suspension of Section 49? Or do they take the view that it will lead to very little increase at all because they think that courts will regularly make decisions—an active choice—not to name the child in question? The question has already been asked about the Government’s intentions, not in respect of numbers or an exact figure, but whether they are looking for a significant increase in the number of children named. Is that the purpose of this? Or is their view that even though they are making the change, it may not make a great deal of difference because the courts are more likely to look at this matter and make the active choice not to name the child in question?
The answer may be that it is already covered in the draft guidance. I have not looked at the guidance to see if it is. However, if it is not already in the guidance, is it the intention that the guidance which will be issued to professionals will say anything about making applications to courts for children not to be named where professionals are directly involved? If it is not in the guidance is it the intention that it should be put in that guidance, and what in fact would it say?
I will leave it at that; the concerns have been expressed about this. Obviously there are already circumstances where children can be named as far as legislation is concerned, and I do not want to pretend that that is not the case. Clearly the Government were expecting that numbers of IPNAs would be issued and, therefore, that that might have an effect on the numbers of children being named. Whether that would still be the case in light of the amendment that has now been carried will remain to be seen. Nevertheless IPNAs will still be around, and that may lead to an increase in the numbers of children being named. It would be helpful to know the Government’s stance. Is that what they are looking for—or do they not see it making a great deal of difference? Will they be giving advice to anybody? I know that they cannot give advice to the courts, but will they give advice to professionals who might be appearing in court in order to make sure that courts are reminded at the very least that they do have this power to make the decision that children should not be named?
My Lords, this again has been a good debate on an important issue. Though it is a small part, it is an important part of these provisions. I thank the right reverend Prelate the Bishop of Ripon and Leeds for presenting these amendments for our discussion.
As the House will know, the Government do indeed believe that there is a need for reporting restrictions in respect of under-18s in certain cases, where it is both necessary and proportionate to allow for effective enforcement of an injunction or criminal behaviour order. This will enable communities to play their part in ensuring that the injunction and criminal behaviour order are effective in tackling anti-social behaviour by alerting the police if the respondent or offender breaches their conditions. Publicising the injunction and the order in certain cases will provide reassurance and increase public confidence in agencies’ willingness and in their ability to take action against perpetrators of anti-social behaviour. Potential perpetrators will be deterred from committing anti-social behaviour due to reporting. So while I understand the sentiment behind these amendments, I believe that there is a strong case for maintaining the default position under Clauses 17, 22 and 29. This mirrors the current position for anti-social behaviour orders.
However, all these legitimate aims must be weighed against the effect on the young person of making it known to their community that they have been subject to a formal court order, albeit a civil one. That is why, as we clarified in Committee, Section 39 of the Children and Young Persons Act 1933 gives the court the discretion to prohibit publication of the injunction or order. The courts are very well used to making such sensitive decisions, having been dealing with such cases since the reporting arrangements for ASBOs were changed by the Serious Organised Crime and Police Act 2005. The consultation with the local youth offending team will play an important role here. In this and other respects, the Bill has made changes that enhance safeguards in respect of the rights of young people, ensuring that they are always properly considered. The Bill provides that the youth offending team must be consulted before an application may be made for an injunction or a criminal behaviour order. The team will give valuable insight into the effect reporting would have on a young person, and allow more carefully informed decision-making by the applicants and courts on this issue.
I thank the noble and learned Lord, Lord Hope of Craighead, for his contribution to this debate. We are retaining the position as it applies to ASBOs as introduced by the previous Government. We would not expect any change of practice or frequency, as the relevant legislation was passed in 2005. We are not looking for any increase or decrease in the incidence of reporting. This is a matter for practitioners on the one hand and for the courts on the other. Perhaps I can reinforce the role of the youth courts. It is worth pointing out that once these powers are in place all applications for injunctions will be heard in the youth courts, which is not currently the situation for ASBOs. The youth courts are best placed for making such decisions and so this will ensure that the right outcomes on reporting, for the offender and the community, are achieved.
On this last point, during its pre-legislative scrutiny the Home Affairs Select Committee said,
“we are happy to leave the decision not to name a young person to the discretion of the judge”.
We agree that this is appropriately a matter of judicial discretion. I hope my noble friend Lady Hamwee also accepts that point. There is a wealth of case law on this issue which has upheld the legislation that allows for the publicising of ASBOs made against under-18s. The case law makes it clear that the reporting is sometimes necessary and gives guidance on the factors that should be considered. It demonstrates that the discretion given to courts can be exercised reasonably, proportionately and in a way which respects a young person’s human rights. I can help the noble Lord, Lord Rosser, on this. Our draft guidance makes clear that local agencies must consider that it is necessary and proportionate to interfere with the young person’s right to privacy, and take account of whether it is likely to affect a young person’s behaviour, with each case decided carefully on its own facts. There is a paragraph in the draft guidance on page 26. I do not propose to read it out but I hope that noble Lords will study it and find it satisfactory.
The right reverend Prelate the Bishop of Ripon and Leeds asked whether we would give guidance to the courts. The noble Lord, Lord Rosser, said that of course the Government will not give guidance to the courts. I am sure that the noble and learned Lord, Lord Hope of Craighead, would be happy that the Government are not seeking to give guidance to the courts. However we can and will give guidance to the police, to councils and to other practitioners on this issue. It is for the senior judiciary to give guidance to magistrates in the youth courts. However, I undertake to draw the attention of the Lord Chief Justice to this debate and to the concerns that have been raised in it by noble Lords. I will also work with the Judicial College on training for magistrates.
I will not go through the relationship of this debate with debates on ASBOs but I remind noble Lords that we must take into account the impact of lifting reporting restrictions on the young person. The youth court is well qualified to do that but we need to balance it against the needs of victims and the communities in which they live. For this reason, I am confident that the reporting of under-18s will be carefully considered, with all relevant factors weighed in deciding whether it is necessary to publicise an order against a young person. I therefore hope that the right reverend Prelate will feel reassured by the comments that I have been able to make and withdraw his amendment.
My Lords, I am grateful to the Minister for that response and I am at least partially reassured by what he has said, particularly in the promises to discuss with the judiciary and bring this debate to their attention, as well as emphasising the guidance to the professionals involved in such cases. I am grateful to those noble Lords who have spoken in the debate and I emphasise again the point made by the noble Earl, Lord Listowel, on just how damaged the children involved in these cases can be. They often feel deeply worthless.
Whether we are here as legislators or in the actual practice of the courts there is a need for us all to be aware, yes, of the needs of the community, which are very much at the fore of the discussion of IPNAs, but also of the needs of the child and the effect that will have on the community. If those needs of the child are not met then the damage to the community in the future can be much greater. However, I am at least partially reassured and so beg leave to withdraw the amendment.
Amendment 18 withdrawn.
Clause 18: Rules of court
Moved by Lord Taylor of Holbeach
19: Clause 18, page 9, line 36, at end insert—
“(1A) Rules of court may provide for a youth court to give permission for an application for an injunction under section 1 against a person aged 18 or over to be made to the youth court if—
(a) an application to the youth court has been made, or is to be made, for an injunction under that section against a person aged under 18, and
(b) the youth court thinks that it would be in the interests of justice for the applications to be heard together.”
Amendment 19 agreed.
Consideration on Report adjourned until not before 8.52 pm.