Anti-social Behaviour, Crime and Policing Bill

Baroness Mallalieu Excerpts

Monday 18th November 2013 Lords Chamber

Moved by

[Baroness Mallalieu]

19C: Clause 1, page 1, line 7, leave out “on the balance of probabilities” and insert “beyond reasonable doubt”

[Baroness Mallalieu (Lab)]

I shall also speak to Amendments 20A and 20D, which are grouped with Amendment 19C. I speak on behalf of the noble Lord, Lord Dear, who regrets that he is unable to be in his place today.

I think everybody agrees that anti-social behaviour is a very real problem and that the authorities have to be able to prevent innocent people having their lives made a misery by it. There can always be improvements to whatever system is in place. However, most of us—if not all of us—also agree that civil liberties are also precious, and freedom of expression is particularly so, as it is often through the expression of ideas that society is changed for the better. These three amendments are tabled with the aim of helping the Government to get the balance right between the two. Many of the people who spoke at Second Reading on this Bill—and many, many more who have written to and lobbied Peers on all sides of this House—feel that Clause 1, as presently drafted, has got the balance wrong.

A law to tackle anti-social behaviour must surely be precise, targeted and given proper safeguards. If not, it would be capable of undermining fundamental human freedoms; it would be likely to distract the authorities and swamp the courts, hampering the tackling of genuine social problems effectively. As it stands at the moment, Clause 1 creates what we are already calling here IPNAs: injunctions to prevent nuisance and annoyance. The very wording exposes the main problem in the present drafting, because you cannot actually outlaw nuisance or annoyance by all people and in all places. The concept of both of those things without a proper definition is vague and, above all, subjective.

We are talking here about a change of law that will apply to any person in any place, public or private. Clause 1(2) says that injunctions can be sought by a whole range of bodies and individuals in relation to conduct that is merely,

“capable of causing nuisance or annoyance to any person”.

That pretty much covers all human life: there is no human activity, I suggest, that does not annoy someone somewhere. This test has been borrowed from the context of housing, which involves neighbours and people living in close proximity who cannot simply move out or look the other way or pay no attention. The present test is very carefully restricted to conduct affecting the housing management functions of the relevant landlord. It is quite another thing, however, to apply it to the high street, the park, the sports stadium, the countryside at large or Parliament Square. It risks being used against every single one of us for something we do, have done or might do in the future—protestors; people with noisy children playing outside; people preaching in the street; people canvassing; people ringing church bells; pet owners; carol singers; clay-pigeon shooters; and even nudists, whom I have to say have written to me and a number of other noble Lords in very considerable numbers, concerned that they are likely to be targeted as people who are “capable of causing … annoyance”. However, it is not just those groups: it is all of us who are potential targets of this imprecise, all inclusive drafting.

We live in a crowded island; nuisance and annoyance are inevitable consequences of our lives which demand a degree of give-and-take and tolerance. Legislation must be targeted, or our courts will simply be clogged with the trivial and vexatious; real serious nuisance and actual serious annoyance will go unchecked. They will simply not get a look-in and the IPNA will become discredited.

The IPNA is intended to replace, among other things, the ASBO, which a magistrate, at present, can make if two conditions are met. The first is if somebody has acted in an anti-social manner, which is defined, very sensibly, as,

“conduct which caused or was likely to cause harm, harassment, alarm or distress to one or more persons not of the same household as him or herself”.

The second condition about which they have to be satisfied is,

“that such an order is necessary to protect relevant persons from further anti-social acts by him”.

The range of bodies which can apply for an ASBO is narrower than that for an IPNA, which obviously reduces the number of applications and the scope for abuse.

The IPNA is applicable to everyone but, most importantly, there is a vast difference between the thresholds of the two. Instead of targeting harassment, alarm or distress, Clause 1, as I have already said, catches any behaviour by any person that is capable of causing nuisance or annoyance. Each of us in this Chamber probably passes that threshold several times a day in the eyes of someone or another—in refusing to give way at Question Time or by talking for too long or too often. That is quite apart from outside this Chamber—snoring loudly in the Library or not putting newspapers back after reading them—or before we leave this House and venture into the outside world.

Clearly, there are other tests in Clause 1 but that it could at its base level encompass the most ordinary activities of human life is breath-taking. Further, instead of having to prove necessity, as under the ASBO, the courts for the IPNA application will operate the ordinary civil court test for injunctions; that is, deciding where the balance of probabilities lies. ASBOs currently are handled by the magistrates’ court, which must be convinced beyond reasonable doubt—in other words, the criminal standard of proof. But IPNAs are to be handled by the civil courts, which need to be convinced only on the balance of probabilities—the civil standard of proof—that a person has engaged in the alleged conduct.

Under Section 1(5) of the Crime and Disorder Act, where an ASBO is sought the individual has a defence if he can show that his conduct was “reasonable in the circumstances”. But, as yet, there is no reasonableness defence in Clause 1 of this Bill, although I see that the noble Lord, Lord Faulks, has a suggested amendment on the Marshalled List. Therefore, IPNAs have a far lower threshold with fewer safeguards, making them much easier to obtain than an ASBO. That is of course the Government’s intention. They want to reduce the present evidential burden, about which some have complained, and to speed up the court process.

There are strong arguments that most of the anti-social behaviour which the public worry about is caught by existing criminal law offences, such as criminal damage, public order and harassment laws. It is also said that it is not the lack of laws but the lack of political will and, I have no doubt, funding on the part of those responsible for enforcing those laws which renders them less effective than they should be. There are undoubtedly problems of court delays and not just with ASBO applications. However, the solution to that is surely not to remove civil liberty safeguards. Ironically, by making IPNAs easier to obtain than the old ASBOs, there is a real prospect that Clause 1 will slow courts down even further by clogging them with large numbers of IPNA applications. Some local authorities—notably Camden, which has a serious anti-social behaviour problem and has had considerable success with ASBOs—have expressed fear that this rebranding, as they call it, will not in the end prove an improvement.

In tabling these amendments, our concern is not with the Government’s attempts to make improvement to the present process for dealing with this sort of behaviour, which has broad support, but with proposing to do so effectively by placing injunctions on free speech and free movement without a court needing to be properly convinced of the need or the seriousness. If Clause 1 retained the definition of Section 1 in the Crime and Disorder Act, the current level of concern would simply not exist.

As it stands, a huge range of people and organisations from all parts of the political spectrum have already voiced serious disquiet. The Commons Home Affairs Committee said that Clause 1 is “far too broad”. The Joint Committee on Human Rights said that the nuisance and annoyance test,

“is not sufficiently precise to satisfy the requirement of legal certainty required by both human rights law and the common law”.

The noble Lord, Lord Macdonald, the former Director of Public Prosecutions, who unfortunately cannot be in his place today, has provided a most helpful legal opinion from the coalition Benches, in which he says of “nuisance and annoyance”:

“The phrase is apt to catch a vast range of everyday behaviours to an extent that may have serious implications for the rule of law … 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”.

He also criticises the lack of a necessity test and describes the safeguards as “shockingly low”.

Even the Association of Chief Police Officers, which broadly supports the IPNA thinks the threshold is unrealistically low and advocates a return to the harassment, alarm and distress test and the addition of a necessity test, both of which would be achieved by our amendments. Justice, Liberty, the Criminal Justice Alliance, the Standing Committee for Youth Justice, Big Brother Watch and countless other organisations and civil liberty groups, ranging right across the spectrum from the Christian Institute to the National Secular Society, have expressed their deep concerns about Clause 1. The three amendments tabled by the noble Lord, Lord Dear, and me seek to address their main concerns; there are other lesser ones. First is the standard of proof, which we say should be beyond reasonable doubt. Secondly, there is the absence of a necessity test, and, thirdly, the nuisance and annoyance threshold should be put back where it is at present with harassment, alarm and distress.

First, on Amendment 19A, the current ASBO legislation is applied by a magistrates’ court granting civil orders. When ASBOs were considered by the Judicial Committee of this House in 2002, it was held that the criminal standard of proof should determine whether anti-social behaviour had occurred. Given the huge impact such an order can have on an individual’s life and bearing in mind that an IPNA can make positive as well as negative requirements, we believe this standard must be retained. As the noble and learned Baroness, Lady Hale of Richmond, said, also in the Judicial Committee of this House, in 2008:

“There are some proceedings, though civil in form, whose nature is such that it is appropriate to apply the criminal standard of proof”.

We say this is one of them.

Secondly, the necessity test needs to be retained. The requirements of necessity and proportionality are enshrined in human rights law and it is important for them to appear in the Bill to reduce the risk of trivial applications and to help avoid unnecessary and disproportionate orders. Thirdly, in Amendment 20D the words “just and convenient” reflect the standard civil test and appear in the Bill. We believe that the higher test required by human rights law—“necessary and proportionate”—should be in Clause 1.

It is crucial that police, local authorities and the many other bodies which can apply for IPNAs can see for themselves in the statute the test that the court will be applying. This will focus minds and, we hope, reduce speculative, vexatious and inappropriate applications. Amendment 20A returns to the threshold test currently in use, “harassment, alarm and distress”. There is a real danger that if the currently proposed, worryingly low threshold is retained, we will create a situation every bit as bad as that under Section 5 of the Public Order Act, where the “insulting words” limb of the offence was used to silence unfashionable or politically incorrect speech. Noble Lords will remember that this House voted overwhelmingly and contrary to the direction of all party Whips to strike “insulting words” out of that legislation a year ago.

The present Clause 1 has united religious groups concerned with street preachers, children’s groups concerned about playground noise, and protest groups concerned that the temptation to seek IPNAs against inconvenient protesters, whether they be anti-frackers, anti-HS2ers, gay rights groups, Occupy or even the Countryside Alliance—in which I have an interest—will prove irresistible to people in authority. To take a test that works in one narrow set of circumstances, as the Government have done here, and try to apply it to the world at large is a recipe for unleashing a wave of unintended consequences. These three amendments are modest proposals that I hope will bring some real improvement and would not lead to the outrage that many have expressed about the current drafting. I beg to move.

--- Later in debate ---

[Baroness Mallalieu]

My Lords, I thank the positive Minister for his response, but I am bound to say that if that was positive, I would like to hear him in a negative mood. However, I thank him for the crumb of comfort in relation to a possible amendment on reasonableness. I also thank all those who have taken part in the debate.

A number of noble Lords referred to the Housing Act and the reasons for the much reduced requirements for an ASBI, the injunction allowed under that Act. The reason—as we all understand it, and as others have said—was the very great difficulty of persuading people in close-knit communities to give evidence against their neighbours and people they knew out of fear. That was the reason for the particular wording of that Act, which a number of noble Lords referred to and said worked perfectly well in that context. However, in each context where that lesser definition has been used there have been very clear statutory limits on the circumstances. What the Government are proposing to do now is to open that definition and apply it to everybody in all circumstances. They are apparently going to allow what must be an imprecise and subjective test to hold sway, and not in any way in the circumstances to which the noble and learned Lord, Lord Morris of Aberavon, and others referred, of close neighbours and fear.

The guidance, which was referred to not by the Minister in his winding-up speech but by others, also troubles me. Although there is already guidance in draft, and no doubt more is being prepared, there should be, whatever guidance comes later, clarity on the face of the Bill. While it is reassuring to hear that trivial matters are not going to be taken up and pursued, that is not something that anybody looking at the Bill itself can be confident about. The Bill should contain clear definitions. It should contain the important guidance—what has to be proved—but at the moment it does not.

There is no question of a Division in the House tonight but I say to the Minister that this is undoubtedly a matter to which we will return at a later stage. I very much hope that in addition to being positive he will be—as we know he is on other matters—fair and open-minded, that he will be prepared to hear further argument between now and Report and that, on reflection, he himself will table some amendments that reflect and go some way to meeting the anxieties raised tonight. With that in mind, I beg leave to withdraw the amendment.

Amendment 19C withdrawn.