Anti-social Behaviour, Crime and Policing Bill

Baroness Mallalieu Excerpts

Wednesday 8th January 2014 Lords Chamber

[The Lord Speaker (Baroness D'Souza)]

I should perhaps remind your Lordships that if this amendment is agreed to, I cannot call Amendment 2 by reason of pre-emption.

[Baroness Mallalieu (Lab)]

My Lords, my name has been added to this amendment. The noble Lord, Lord Dear, moved it with his customary reason and calm; I fear that I shall not be following in quite the same vein.

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.

[Lord Mackay of Clashfern (Con)]

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.