Anti-social Behaviour, Crime and Policing Bill

Lord Forsyth of Drumlean Excerpts

Wednesday 8th January 2014 Lords Chamber

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.

[Lord Forsyth of Drumlean (Con)]

I am following my noble friend’s argument closely, but could he give an example of the kind of thing for which he thinks this provision might provide a remedy?

[Lord Faulks]

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.

[Lord Forsyth of Drumlean]

Surely that would be covered by the present law.

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[Baroness Hamwee (LD)]

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.

Unlike the current ASBO, the IPNA takes offenders directly into the criminal justice system.

[Lord Forsyth of Drumlean]

I apologise for interrupting my noble friend and am grateful to her. May I ask her the same question I asked my noble friend Lord Faulks? Can she give us a specific example of something that would be prevented by the Bill as it stands?

[Baroness Hamwee]

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.

[Lord Forsyth of Drumlean]

Is my noble friend suggesting that all these examples should be capable of being stopped by the courts?

[Baroness Hamwee]

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—

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[Lord Taylor of Holbeach]

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.

[Lord Forsyth of Drumlean]

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?

[Lord Taylor of Holbeach]

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.

[Lord Forsyth of Drumlean]

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?

[Lord Taylor of Holbeach]

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.