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.
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It is certainly possible to consider amendments. The Government have come out with one in which they replace the clause which was in the Bill originally by “reasonably be expected to occasion annoyance”. I do not see that that helps in the slightest because the real difficulty is the definition of what is reasonably caused, not whether it is reasonably caused. Indeed, in some aspects this could be regarded as slightly widening the context of what was in the Bill before in the sense that it does not actually need to cause so long as it is reasonably expected to cause. That is a very small point that occurred to me just looking through it.
“Just and convenient” is used as a condition of the granting of this injunction. I find that hard to apply in the circumstances of this case. If something is just, does it not go forward because it is inconvenient to the respondent? That does not seem very sensible. I do not think the condition that it should be just and convenient adds anything to provide against the effect of the basic definition.
The use of the word “reasonably” has been suggested in relation to later amendments as a defence in this situation. But is it not reasonable for me to express my opinion even if I know that somebody will disagree with it? Earlier I gave an illustration from this House of a Minister on this side blaming the previous Government for whatever is the cause of the difficulty. Certainly such a view could be reasonably anticipated to cause annoyance on the other Benches—one has seen it often enough. The difficulty is in relation to the definition and to the absence of any safeguards which would prevent the application of that definition to inappropriate circumstances. There are various ways in which this might be approached and I strongly urge your Lordships to support this amendment unless my noble friend is able to indicate that these matters will be considered further.
I understand that the Government do not intend this to apply, for example, to street preachers, but the problem is that the definition as stated would, for the reasons which we have heard, quite clearly encompass that kind of conduct. The idea that guidance can deal with this seems to be quite aside from the real difficulty, because I do not believe that guidance can alter the substantial issue raised by the statute. The idea of the Home Office giving guidance to the courts strikes me as a slightly difficult concept for the courts to accept. Apart from the kind of interpretation which is given as a result of statements made in this House when an amendment is put forward, guidance to the courts by the Executive would be regarded as being of a rather doubtful constitutional propriety. Unless something can be done to alter this definition or the circumstances of its application, I urge your Lordships to support this amendment if, in due course, the noble Lord, Lord Dear, decides to test the opinion of the House.