My Lords, I hope that I am never anything but positive. As I made clear at Second Reading, the provisions of the first six parts of the Bill, which deal with anti-social behaviour, are about protecting victims of anti-social behaviour. It was good to hear noble Lords across the House recognising that that is what lies at the heart of what we are trying to achieve here. It ensures that police, local authorities and all those other agencies that are listed in the Bill can, where necessary, take swift action to bring respite to both individual victims and communities. The noble Baroness, Lady Mallalieu, is right: the central purpose of the new injunction is to nip problems in the bud and intervene before anti-social behaviour escalates. It is essential for the threshold to be set at the right level for that to happen.
The amendments seek to retain the key features of the anti-social behaviour order that the Government are seeking to replace. I understand the arguments and the concerns that a number of noble Lords have expressed about the test of the new injunction and I
have seen the legal opinion given by my noble friend Lord Macdonald of River Glaven, but I am sure it will not be a surprise that I am going to explain why we do not agree with these amendments and why I do not agree with my noble friend.
I fear that the effect of these amendments would be to weaken the effectiveness of the new injunction in providing relief to victims and communities. Amendment 19C seeks to replace the lower, civil standard of proof—on the balance of probabilities—with the higher, criminal standard of proof beyond reasonable doubt. Amendment 20A seeks to replace the “nuisance or annoyance” test for the IPNA with the anti-social behaviour test of “harassment, alarm or distress”. Finally, Amendment 20D seeks to revert from the requirement that it must be “just and convenient” to grant an IPNA to the test of “necessary and proportionate”.
As I have said, our reforms are about putting victims first. This means giving front-line professionals the right powers to protect victims and communities effectively from anti-social behaviour. The IPNA has been designed as a purely civil power which can be obtained quickly through the courts, to protect the public and stop an individual’s behaviour escalating.
It may interest noble Lords that the test of nuisance or annoyance was introduced in the Housing Act 1996 and subsequently amended by the Anti-Social Behaviour Act 2003 to extend to conduct capable of causing nuisance or annoyance. This test is used for the anti-social behaviour injunction. It is well recognised by the courts; they know it and are familiar with it. They apply it on a daily basis when deciding whether to grant injunctions to stop or prevent anti-social behaviour.
The term is also used in a number of other statutory contexts. For example, in Section 13 of the Criminal Justice and Police Act 2001 which relates to alcohol consumption in designated public places; in Section 9A of the Housing Act 1988 in respect of proceedings for possession; in Schedule 4 to the Local Government (Miscellaneous Provisions) Act 1982 in respect of street trading consents; and in Section 142 of the Highways Act 1980 in respect of obstruction of highways. I could go on, but I have already demonstrated, with this list, that “nuisance or annoyance” is a widely used, statutory term that is understood by both front-line professionals and the courts.
It is therefore not surprising that the Law Society fully supports the use of the test in Part 1. Its recent briefing says:
“The Society strongly suggests that the test is retained and that judges are allowed to exercise their discretion and considerable experience in dealing with these matters. The test is already familiar to the courts and other partners working with families and offenders”.
That this is a well established test has been true for some time. When it was being considered in your Lordships’ House in 2003, the noble Lord, Lord Bassam—who was then Home Office Minister and is now Opposition Chief Whip, but who is unfortunately not in his place at the moment—made a similar point. He said:
“‘Nuisance or annoyance’ is a well-established legal test which the courts are perfectly comfortable to use”. [Official Report, 23/10/03; col. 1791]
That was true then and it is true now, which is why the Government believe—as the previous Government did—that this is the right test to use. To retain the test that applies for the ASBO, as these amendments seek to do, would increase the evidential burden on front-line professionals who are working hard to protect victims and deter perpetrators. It would hinder them in providing respite to victims and communities more quickly. That this will be the consequence of these amendments has been put clearly in the briefing submitted to your Lordships by the Social Landlords Crime and Nuisance Group, which says,
“we consider that these amendments are unnecessary and would, if carried, lead to unintended consequences and seriously disadvantage victims. They would also have significant adverse financial and other resource implications for agencies”.
In relation to the amendment in the name of the noble Baroness, Lady Mallalieu, to apply the criminal standard of proof, their briefing note goes on to say:
“Raising the burden of proof to beyond reasonable doubt will effectively remove the ability to use professional evidence or hearsay, something which conflicts directly with the core purpose of the Bill, to deliver better outcomes for victims. To do so will make it extremely difficult to prove matters to the criminal standard without the victim giving evidence first-hand”.
These are telling points, which were reinforced by the noble and learned Lords, Lord Lloyd of Berwick and Lord Morris of Aberavon. They were also shared by the Chartered Institute of Housing, which also published a briefing note for your Lordships.
The central purpose of this new injunction is to nip problems in the bud and intervene before anti-social behaviour escalates to more serious levels or to criminality. That is in the interests of victims and perpetrators. To wait until these higher tests can be met would stop professionals from taking formal court action where it is necessary and from acting when there is more chance of the perpetrator addressing the underlying causes of their behaviour.
As to fears that injunctions will be handed out like confetti to stop children skateboarding or playing football in the street, or to silence street preachers giving public sermons, I can only quote again from the Law Society, which said:
“The Law Society supports retaining the legal test for the Injunction to Prevent Nuisance and Annoyance … as currently drafted in the Anti Social Behaviour Crime and Policing Bill. We do not agree with those who claim the test is too weak and should be strengthened by imposing conditions such as ‘seriousness’ or ‘malice’. Some are worried that the test is too weak and could result in preachers, buskers and even carol singers finding themselves subject to an injunction but the Law Society do not agree with this interpretation”.
Neither do I. The Law Society would not support these provisions if it had concerns that they would or could be used to stop children playing or people exercising their legitimate rights to freedom of assembly or freedom of expression.
I fully share the noble Baroness’s desire to ensure that these powers are used reasonably and proportionately. Significant safeguards are already provided for in the Bill, not least that an injunction must be authorised by a court. I am ready to consider further whether it would be appropriate to provide in the Bill that the court must consider, in the light of all the relevant circumstances, that it is reasonable to grant an injunction.
I therefore urge noble Lords to listen to the Law Society and to the front-line professionals who are telling us, loud and clear, that these amendments are not necessary and would significantly weaken the provisions in the Bill.
If this amendment was made, it would make no difference at all to children doing the normal playful things that children do or to street preachers sermonising on the high street. However, it would make a real and detrimental difference to the victims of anti-social behaviour, who would not get the quick respite they need from those who make their lives a misery. The amendment loses sight of the victims of anti-social behaviour, who should be our first consideration. For that reason I urge the noble Baroness to withdraw it.