Anti-social Behaviour, Crime and Policing Bill

Lord Faulks Excerpts

Monday 18th November 2013 Lords Chamber

Moved by

[Lord Faulks]

20: Clause 1, page 1, line 8, after “conduct” insert “that might reasonably be regarded as”

[Lord Faulks (Con)]

My Lords, we return to considering Part 1 of the Bill, in particular IPNAs. I have already addressed the Committee about my views generally on Part 1, which support the Government, and I have no need to repeat them. However, I acknowledge that concern has been expressed both within the House and outside that the test for what is,

“capable of causing nuisance and annoyance”,

could be regarded as subjective. This would, potentially at least, result in a court ordering an injunction on the basis of some perceived nuisance and annoyance which, looked at objectively, should not be constituted as one.

In fact, the words “nuisance and annoyance”, which have, as we have heard, a considerable pedigree both in terms of the common law in reviewing breach of covenant cases, and in a number of Housing Act statutes, have been considered by a number of judges to carry with them a degree of objectivity. I would expect that they would not be viewed entirely in subjective terms, were a case to reach court. In fact, I very much doubt that either the agencies which were to seek an injunction under this part of the Bill or the courts would come to a different view in any particular case as a result of the insertion of these additional words. However, they would serve to allay some of the anxieties that have been expressed about anti-social behaviour being too subjective a concept, and the amendment should ensure that both the agencies and the court stand back and view the behaviour objectively before deciding whether it can properly be described as,

“capable of causing nuisance and annoyance”,

and whether it is “just and convenient” to grant an injunction. This added safeguard will, I suggest, fit reasonably into the structure of the Bill without weakening the protection that it provides for communities and individuals who are so often beleaguered by anti-social behaviour.

I noted that during the course of the debate, my noble friend the Minister indicated to the noble Baroness, Lady Mallalieu, that he was considering importing the word “reasonable”, as I understand it, into Clause 1(3) in relation to the “just and convenient” element of the judge granting an injunction. I respectfully suggest that the word “reasonable” might be better imported as a description of the relevant behaviour, rather than be imported into the discretion that a judge has in whether or not to grant an injunction. The judge would regard himself as being reasonable in any event when deciding whether it was “just and convenient” to grant an injunction. With respect, I would suggest that it would be better included further on in Clause 1. I beg to move.

--- Later in debate ---

[Baroness Hamwee]

Or even “nuisance or annoyance”?

[Lord Faulks]

My Lords, I am grateful to all noble Lords and noble and learned Lords who have taken part in this debate. I am grateful to the Minister for his reassuring noises; he has shown himself, as usual, to be a listening Minister. The expression “nuisance or annoyance” has a pedigree, as I think he said, in the housing context. It is almost a term of art, so widely has it been used over the years in the context of breach of covenant in common law, and it has found its way into statute.

Of course, a particular housing situation is not precisely analogous to anti-social behaviour. Nonetheless, there is a substantial accumulation of case law that the judges will understand and, I suggest, they will interpret it accordingly. I repeat what I said earlier: it seems that in any event the reasonableness is part of the judge’s task in deciding whether or not it is just and convenient to grant an injunction. Reasonableness will be the watchword, as will the obligations that the court has under the Human Rights Act.

Where I suggest it is important to import reasonableness, as the noble and learned Lord, Lord Hope, said, is at the stage of defining with some degree of objectivity the nuisance and annoyance so that neither the agencies nor the court are in any way diverted by simply having to accept a subjective interpretation of what counts as anti-social behaviour. I hope that the Minister will reflect on that. I appreciate that this does not in any way weaken the power, but it should reassure those who are naturally concerned about the potential for this power to be used oppressively, and that reassurance would be at least provided, I hope, by an appropriate amendment. With that, I beg leave to withdraw the amendment.

Amendment 20 withdrawn.