Well, my Lords, this has been an interesting debate. I am not particularly thick-skinned, so I am clearly sensitive to the views that have been expressed by this House. I am grateful to the noble Lord, Lord Dear, and other noble Lords who have spoken, because they have done justice to this debate by the contributions they have made. I owe it to the House to explain the Government’s position, and perhaps I can then take this issue on.
Clause 1 is clearly an important part of the Government’s reforms, and I begin by acknowledging that there has been some common ground on the need to include it in the Bill. We have indeed reached some common ground on the elements that we need to include in Clause 1 to make it effective. First, I am glad that the civil standard of proof for the new injunction has been accepted by so many noble Lords. Secondly, I welcome the tacit acceptance of the “just and convenient” limb of the test for an injunction. The noble and learned Lord, Lord Carswell, said that this is a proper consideration for courts in any case, but it is right that we should make it explicit as one of the limbs of the test.
The terms of Amendment 1, as compared with the amendments put forward in Committee, are a welcome demonstration that this House listens carefully to the evidence put before it both by noble Lords and by front-line professionals, and that it adapts its approach accordingly. The Government have also listened to the concerns expressed by noble Lords in Committee and by the Constitution Committee and the Joint Committee on Human Rights, and that is why I have tabled Amendment 2, which we believe addresses the concerns about the breadth of the “nuisance or annoyance” test. Although Amendment 2 is not part of this group, it addresses exactly the same issue—the appropriate form of the test for the grant of an injunction—and, accordingly, it is important that your Lordships consider Amendments 1 and 2 together.
As I said in the debate in Committee when my noble friend Lord Faulks tabled his amendment, I believe it is inherent in the way that the court will look at any application for an injunction to consider whether it was reasonable to grant an injunction in the circumstances of the case. I am grateful for my noble friend’s contribution, and I look forward to him joining me on this Bill before we conclude our consideration of it.
I thank my noble friend Lady Hamwee for her contribution to this debate. I also thank other noble Lords who wanted to speak but were not able to or who have forgone their right to speak in order to expedite this debate. In that I include my noble friends Lady Newlove and Lady Berridge.
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None the less, I can see that there is a good case for making a reasonableness test explicit in the legislation, and I undertook to reflect further on my noble friend’s amendment. In doing so, the Government have also been conscious of the fact that the reference to conduct being,
“capable of causing nuisance or annoyance”
could, arguably, cast the net far too widely, and may not be a sufficiently objective test for these purposes.
I believe that government Amendment 2 addresses both those points. Were the House to agree that amendment, the first limb of the test for the granting of an injunction would be revised, so that instead of the court having to be satisfied that the respondent,
“has engaged or threatens to engage in conduct capable of causing nuisance or annoyance to any person”,
it would now have to be satisfied that the respondent,
“has engaged or threatens to engage in conduct that could reasonably be expected to cause nuisance or annoyance to any person”.
I hope noble Lords will agree that this is an important change, which, I submit, properly addresses the concerns that have been raised about the test for the injunction.
The noble Lord, Lord Dear, has proposed an alternative amendment to address the concerns to which I have referred. I am grateful to the noble Lord for seeking to find a middle way. In an attempt to find some middle ground, he has designed a two-tier system. The “nuisance or annoyance” test is retained for any application for an injunction by a housing provider or a local authority acting in that capacity, but the “harassment, alarm or distress” test would apply to any application made by the police, a local authority when acting in a capacity other than that of a housing provider, or any of the other agencies listed in Clause 4.
The noble Lord has explained to the House the reasoning behind his approach. As I have said, I commend him for his willingness to find some middle ground. His amendment explicitly recognises that the “nuisance or annoyance” test has operated successfully for a number of years in the housing context. But I part company with him when he asserts that this test cannot be transferred across to other contexts where anti-social behaviour occurs.
The types of anti-social behaviour that a social housing provider needs to address are not unique to that housing sector. The issues that affect those living in social housing affect those in private rented accommodation and owner-occupiers too. The impact of noise nuisance, graffiti, drunken yobbish behaviour or intimidation does not, and should not, depend on where you live.
Let me now turn to what is evidently the core concern of the noble Lord, Lord Dear—the possibility that the “nuisance or annoyance” test could have a chilling effect on free speech. Noble Lords have suggested, for example, that an injunction could be sought against bell ringers, street preachers, carol singers or others engaging in perfectly normal everyday activities.
I hope that noble Lords will accept that that is clearly not the Government’s purpose. It is my belief that those concerns are misplaced. I want to make it clear that the purpose of our reforms is not to prevent people from exercising their rights to protest and free speech. We all suffer from annoyance in our daily lives, and there is, rightly, no place for the criminal or civil law to regulate behaviour just because it is annoying.