My Lords, this is one of those debates that are quite special to your Lordships’ House. I spent 13 years in the other place and I have been in your Lordships’ House for three and a half years. I think other noble Lords who served there would agree this is not the kind of debate that we often heard in the other place. This House is made all the more relevant and important because of that. It is also one of those debates that Ministers from any party in Government would perhaps refer to as “interesting” and “helpful”. It certainly has been a very interesting debate. The noble Lord, Lord Dear, the noble Baroness,
Lady Mallalieu, and the noble and learned Lords, Lord Mackay and Lord Morris, have done this House a great service by bringing forward this amendment.
I want to be clear at the outset that I think everybody who has spoken wants to see effective and swift action to tackle serious anti-social behaviour and to treat the issue with the seriousness it deserves. It is not overdramatic to recognise that, if left unchecked, anti-social behaviour can destroy lives. Ongoing anti-social behaviour can cause alarm and distress and, in some cases, leaves people feeling utterly devastated and unable to cope. It creates total misery.
In previous debates, I have spoken of my experience in supporting victims, both as a Member of Parliament and a county councillor. There is no doubt that when anti-social behaviour orders were brought in they created a significant change in the way such cases were dealt with. There were teething problems but experience has shown that they are an important tool in tackling such serious problems. That is why I just do not understand why the Government are embarking on such a dramatic change in this legislation. Obviously, improvements can always be made to any system and we would support improvements to anti-social behaviour orders. However, this really is a case of throwing the baby out with the bathwater and does not improve the position for those suffering from anti-social behaviour.
I am not a lawyer—I am perhaps in a minority among those who have spoken today—but all my experience and instincts of dealing with this issue tell me that these proposals from the Government are ill thought-out and unworkable. Noble and learned Lords with far greater experience and knowledge than I who have spoken have come to the same conclusion. As we have heard, the concern is that the Government’s new proposed threshold for granting an injunction for engaging or threatening to engage in causing nuisance or annoyance to any person on the balance of probabilities if the court considers it to be just and convenient is too vague and too broad. The noble and learned Lord, Lord Morris, described it as open-ended machinery that would catch people who should not be before the courts. The danger is that in the rush of those being brought before the courts for nuisance and annoyance we could lose focus on the serious cases of harassment, distress and alarm.
The very real concerns about how this power could be used and abused were raised at Second Reading and in Committee. In preparing for this debate, I started to draw up a list of activities that could be brought into the remit of Clause 1. I had to give up after several pages and hours. The noble Baroness, Lady Mallalieu, described it as an extraordinary power, and indeed it is. I appreciate and welcome the experienced and knowledgeable legal views but this is not just a legal issue. It is a moral issue of dealing with those people who are suffering the most. The Government are not targeting the behaviour causing the most serious problems but creating a catch-all clause that could affect almost everybody at some point. There is no doubt that some people and some activities inevitably cause some degree of nuisance and annoyance. However, is an injunction, which in most cases will be pretty weak and ineffective—although at the extreme end it
could involve custody—the most appropriate way of dealing with these cases, or should we accept that in our everyday lives some level of nuisance or annoyance is a consequence of ensuring the liberty and freedom of the individual? Liberty and freedom are not open ended. There have to be constraints and the test of harassment, alarm and distress spoken about today is the appropriate point to place those constraints.
The ACPO lead for children and young people, Jacqui Cheer, emphasised this point in November when speaking to the APPG on children. She said:
“I think we are too ready as a society, as the police and particularly with some legislation coming up on the books, to label what looks like growing up to me as anti-social behaviour”.
There have also been concerns that one person’s annoyance may be another person’s boisterous behaviour. Indeed, as the noble and learned Lords, Lord Morris and Lord Mackay, and the noble Baroness, Lady Mallalieu, said, it need not be boisterous behaviour. Exercising fundamental democratic rights of protest or even just expressing views in a forceful manner can cause nuisance or annoyance.
The Minister’s amendment suggests that behaviour has to be reasonably expected to cause nuisance and annoyance. That is an admission that the Government now recognise the unreasonableness of the clause that they have previously defended to the hilt. As the noble and learned Lord, Lord Mackay, made clear, while that change on its own may be welcome, it does not address many of the points being raised here today. It still leaves the test as nuisance and annoyance to any person on the balance of probabilities. That is not good enough. I was interested in the points made by the noble and learned Lord on “just and convenient”. I accept his assessment of the value and usefulness of that. If the boisterous behaviour to which I referred is ongoing and causes harassment, alarm or distress, then action obviously has to be taken. But as it stands, even with the government amendment, a one-off event that causes nuisance or annoyance to any person on the balance of probabilities would still lead to injunction.
In Committee the noble Lord, Lord Taylor, relied largely on the definition in the Housing Act 1996. Noble Lords have concerns about paragraph (b) of the amendment. I do not share their concerns because it is appropriate in limited circumstances for the existing law aimed at people in social housing to remain to give housing providers the tools to deal with tenants in such circumstances. No change is being sought to that position and that is what part (b) of the amendment makes clear.
I will now address some of the points made by the noble Lord, Lord Faulks, in his defence of the Government, which I am sure we will hear in due course from the Front Bench as well. One great benefit of ASBOs is how seriously anti-social behaviour is taken. The issue of alarm, harassment and distress is crucial and there are appropriate sanctions for dealing with it. We could end up with more of these orders being imposed but in most cases they will be a weaker response to dealing with anti-social behaviour. The noble Lord referred
to the guidance and he read it out very quickly. I have a copy of that guidance. It is somewhat confusing because it says, as he rightly quoted:
“It should not be used to stop reasonable, trivial or benign behaviours that have not caused, and are not likely to cause, harm to victims or communities”.
Where in the Bill is harm referred to? Guidance is not legislation. The legislation, as it stood, referred to alarm, distress and harassment. The Bill refers to nuisance or annoyance. Guidance suggesting there has to be harm as well does not override what is in the Bill. Noble Lords who were defending the Government’s position, when asked whether they could give examples of activities that would come under the Bill’s definition of nuisance and annoyance but not cause alarm, harassment and distress, were unable to do so. Every example they gave of where action should be taken caused harassment, alarm and distress. It is quite clear that the existing legislation is the best way to define the kind of behaviour that is disrupting lives.
The noble Lord, Lord Faulks, also raised the issue of hearsay evidence. It is currently the case with anti-social behaviour orders that professionals can give advice on behalf of those suffering so that they themselves do not have to go to court to present their case. The noble Lord, Lord Phillips, made a very important point about the courts being clogged up and about the pressures on police officers having to respond to every case of nuisance and annoyance. Has the Minister given any consideration to how the police should respond with their increasingly limited resources to cries for help from people suffering what they consider to be nuisance and annoyance and whether they will then be able to deal with very serious cases of anti-social behaviour?
The existing test of harassment, alarm and distress recognises the seriousness of anti-social behaviour and the need to take action against those who breach an order. The definition proposed by the Government is too broad and the remedies are too weak. Setting the threshold so low undermines fundamental freedoms and tolerance. It is a great shame that, having had warning at Second Reading and in Committee of the great concern in your Lordships’ House, the Government did not come back today with something a bit better than the amendment being put forward. There are serious concerns about this, not just because it would catch too many people but because those who are really causing distress in our communities will not be the focus in tackling problems. I urge the Minister to accept the amendment moved by the noble Lord, Lord Dear. The only compromise that would be acceptable today would be if the Minister were to say that he accepts that there has to be a change of definition and that he can assure us that that would be “harassment, alarm and distress” and not “nuisance and annoyance”.