Anti-social Behaviour, Crime and Policing Bill

Debate between Lord Carswell and Baroness Howells of St Davids

Wednesday 8th January 2014 Lords Chamber

[Lord Carswell (CB)]

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.

[Baroness Howells of St Davids (Lab)]

My Lords—