My Lords, in moving Amendment 1, I want to be absolutely clear on one thing: anti-social behaviour can be, and often is, a blight on society and on those who suffer as victims of individuals who care only for themselves—people who are thoughtless, selfish or deliberately provocative. I believe, as many in your Lordships’ House will, too, that the law should continue to try to prevent that happening and to offer relief to those who suffer from that sort of behaviour. Their well-being is precious. On the other hand, civil liberty is precious, too, and a balance has to be struck between those two requirements.
My amendment is largely concerned with that balance and with a search for certainty, precision and clarity. It is concerned with the legal requirement that the law should be precise and not undermine fundamental human freedoms. The amendment is of course also about anti-social behaviour but the primary issue is an important and very long-established jurisprudential principle. From at least the days of Halsbury, it has been recognised that the law should be clear, reasonable, precise and unambiguous. People must know what the law demands of and grants to them. That principle is followed in all developed democracies. For example, in the USA the void for vagueness doctrine allows a statute to be struck down if it lacks sufficient definiteness or specificity so that:
“Men of common intelligence cannot be required to guess at the meaning of the enactment”.
That is from the case of Winters v New York in 1948.
Existing ASBO and public order legislation addresses anti-social behaviour by defining it in those circumstances as conduct that causes harassment, alarm or distress—a threshold test accepted by lawyers and lay people alike that has been well understood after years of judicial interpretation and never seriously challenged or openly criticised as too restrictive in scope. The Bill before us seeks to replace that three-word threshold test of harassment, alarm or distress with two new words: “nuisance or annoyance”. In so doing, it will open the door to uncertainty, confusion and legal injustice. Most of Clause 1 is concerned with the mechanics of the new injunctive procedure but the threshold test is the pivotal point around which everything else revolves. To put it another way, it is the foundation upon which all that is new will be based. The present threshold test of harassment, alarm or distress is about to be replaced with the altogether more imprecise words “nuisance or annoyance”. In other words, the net is being cast much wider—far too wide, in my opinion.
I am grateful to those who have supported me in tabling this amendment. The noble and learned Lord, Lord Mackay of Clashfern, was one of the most respected Lord Chancellors in the past half-century. The noble and learned Lord, Lord Morris of Aberavon, was an eminent Attorney-General. Both are signatories. So, too, is the noble Baroness, Lady Mallalieu, who brings a wealth of experience at the Bar as a practising QC and who spoke on 18 November in Committee on my behalf when I was unavoidably prevented from
being in my place. That day, she tabled in my name a very similar amendment to the one we consider now. I am grateful to her for setting out the proposition with great skill—cogently, powerfully and persuasively.
She reflected that the law should be precise and not undermine fundamental human freedoms. She recognised that anti-social behaviour was a serious problem but that action to deal with it should be balanced against the need to preserve civil liberties. She reminded the House that the Commons Home Affairs Committee had said that Clause 1 of the Bill is “far too broad”. She paid tribute, as I do now, to the opinion—widely circulated in your Lordships’ House—of the noble Lord, Lord Macdonald of River Glaven, a former Director of Public Prosecutions, who roundly attacked the Bill saying that, “Nuisance or annoyance”, is a phrase,
“apt to catch a vast range of everyday behaviours to an extent that may have serious implications for the rule of law”.
He went on to say:
“In my view, the combination of a low and vague threshold for the behavioural trigger, coupled with the civil standard of proof, creates an unacceptable risk that individuals will inappropriately be made subject of a highly intrusive measure that may greatly impact on their fundamental rights”.
It is not only Members of this House and of the other place who are concerned. A wide, and even disparate, range of organisations and civil liberty groups have expressed the same opposition. Justice, Liberty, the Criminal Justice Alliance, the Standing Committee for Youth Justice, Big Brother Watch, the National Secular Society on the one hand, the Christian Institute on the other, the Association of Chief Police Officers and many more have all said the same thing. A letter was published in the Times on 10 June last year in which around two dozen organisations expressed opposition to the phrase “nuisance or annoyance”. It reminded us that an injunction in those terms could be applied to anyone over the age of 10. It reminded us that it was subject to a new burden of proof, lowered to the civil burden on the balance of probabilities. It reminded us that it is open to indefinite duration and does not require any form of intent, and that a breach of the injunction can result in serious sanctions, including imprisonment.
I have a distinct feeling of déjà vu in speaking to this amendment, for it was only just over 12 months ago, on 12 December 2012, that I proposed an amendment to remove the word “insulting” from Section 5 of the Public Order Act 1986. The ingredients of that debate were strikingly similar to the issues today. Again, an important legal freedom was then at stake. The word “insulting” had been employed more and more to curb the exercise of free speech in public. That fundamental right was being abused. More and more, police and prosecutors were unwilling to exercise discretion—some might say that they were unwilling to exercise common sense—and they increasingly deferred to the courts for a decision. That increased the growth of the chilling effect, the definition of the word “insulting” became blurred, injustice increased and confusion reigned. Your Lordships agreed that amendment, voting 3:1 with a majority of almost 100 to strike “insulting” from the statute on the ground that it was no longer precise enough. The only real difference in that exercise a year ago and today is
that then I was able to cite a very long catalogue of examples of the results of poor legislation, and today we can only anticipate that such a list will develop—albeit an anticipation with some confidence.
No doubt it is to avoid an identical problem that the Association of Chief Police Officers has advised that, although it broadly supports the new IPNA, it believes that the suggested threshold is unreasonably low and it, too, advocates a return to the “harassment, alarm or distress” test.
With all those examples of the results of imprecise and vague legislation, I am frankly at a loss to understand why the Home Office is so eager to repeat the exercise, yet again facing a solid wall of resistance from experienced groups and learned individuals. I can but recall the words of the 1960s protest song—“When will they ever learn?”.
The phrase “nuisance or annoyance” has been borrowed, or perhaps lifted, from the context of existing housing legislation, which involves of course neighbours living in close proximity. In those special housing circumstances it is clearly almost impossible simply to move out or to look the other way or pay no attention. The present test in the housing sphere is restricted to conduct affecting the management functions of the landlord. What is appropriate in an environment with two-inch-thick party walls, or with 10 or more front doors opening onto a balcony on the fifth floor of a tower block, or with cramped lifts and common parts, all of that is clearly inappropriate, surely, in a public square.
Nuisance or annoyance, I would maintain, cannot and should not be applied to the countryside, the public park, shopping malls, sports grounds, the high street, Parliament Square, Speakers’ Corner and so on, because that risks it being used against any of us and against anyone in society. That risks it being used against those who seek to protest peacefully, noisy children in the street, street preachers, canvassers, carol singers, trick-or-treaters, church bell ringers, clay pigeon shooters and nudists—yes, they, too, have raised objections with me and, I know, other Members of your Lordships’ House.
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We live on a crowded island and we must surely exercise a degree of tolerance and forbearance. I shall continue to be privately annoyed by those who jump the bus queue, those who stand smoking in large groups outside their office, drinkers who block the footpath outside a pub on a summer’s evening, those who put their feet on the seats on public transport, those who protest noisily outside Parliament or my local bank, but none of that should risk an injunctive procedure on the grounds of nuisance or annoyance. I and those who support me are content to leave the test of nuisance and annoyance in place in the housing context, where it is well tried and proven. We strongly resist its use elsewhere and do not see our concession to housing law as a weakness in our case. Rather, we see it as a strength, distinguishing, as it does, the essential difference between the two environments.
I said that I would be brief. In conclusion, I pay a small tribute to the Minister, who has tabled an amendment introducing a test of reasonableness. I applaud his concern but not the practicality, because
that test, too, suffers from a problem of definition. I do not believe that it is enough to rely on a court considering it,
“just and convenient to grant the injunction”,
as set out in the second limb of Clause 1, or on the draft guidance for front-line professionals published in October last year, or on the insertion of the word “reasonable”. None of these will overcome the inherent flaw in the new test: the pivotal words “nuisance or annoyance” are vague and imprecise. The only certainty is that practitioners will leave it to the courts to decide, and thus introduce a chilling effect on lawful conduct, as they did for years when faced with the word “insulting” in the Public Order Act. We know only too well what difficulties that caused. Even in the court room, “reasonable” is itself subjective, and coupled with the lower burden of proof and vague and imprecise terminology, employing words that are hitherto untested in the courts, we will set the scene for confusion and inequity, for courts cluttered with inappropriate actions and for a wave of unintended consequences.
I conclude with the point with which I began. The amendment is about certainty and clarity, with the legal requirement that the law should be precise and should not undermine fundamental human freedoms. I contend that the Bill as drafted does not comply with that.
One last thought: in Charles Dickens’s novel Bleak House, when the case of Jarndyce v Jarndyce was in question, the cynical lawyer Mr Vholes commented:
“The one great principle of English law is, to make business for itself. There is no other principle … maintained”.
As it stands, the Bill will certainly expand the business of law. That should not be our aim today; our aim should be a search for precision, clarity and certainty. I beg to move.