HL Deb 03 February 1998 vol 585 cc508-18

3.5 p.m.

The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Williams of Mostyn.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 1 [Anti-social behaviour orders:]

Lord Williams of Mostyn moved Amendment No. 1: Page I, line 13, after ("acted") insert (", since the commencement date,").

The noble Lord said: In moving Amendment No. 1, I should like to speak also to Amendments Nos. 25 and 318. These amendments, as can be readily seen from their terms, are intended to ensure that the act in respect of which an anti-social behaviour order is sought takes place after the commencement of the clause but that where there has been behaviour before commencement which may help to explain why the act has caused, or is likely to cause, harassment, this is admissible as supporting evidence. It was formerly disallowed under Schedule 8, which specifically prevented any evidence being adjudged of any anti-social acts committed by the defendant prior to the commencement of the clause.

We considered carefully before putting forward these changes. Plainly, it is essential that the act which forms the reason for the order takes place after commencement to avoid the taint of the orders being retrospective. However, it may well be the case in practice that such an act is merely one of a series of anti-social actions and that there is a background of continued harassment—perhaps even from extraneous noise and things of that sort—and perhaps failed mediation and persuasion which the court could usefully take into account in considering the application for an order.

We considered that the restriction placed by Schedule 8 was too limiting upon the court's discretion and should therefore be removed. The three amendments together achieve that aim. The first makes it clear in the body of Clause I that the action which causes the application for an order must occur after commencement. The second defines commencement specifically as the commencement date of Clause 1. The third removes the limitation on supporting evidence in Schedule 8. Overall, they bring the provisions into line with the sex offender orders in Clause 2 and should therefore result in a more effective introduction to the order. I beg to move.

Lord Henley

I thank the Minister for moving Amendment No. 1 and for speaking also to Amendments Nos. 25 and 318. I do not intend to speak at any length on this amendment because we shall be taking some time over Clause 1 in due course in considering my amendments, those tabled by my noble friends and those from other noble Lords. At this stage I rise merely to thank the noble Lord, Lord Williams, for writing to me and, I take it, to others in considerable detail about the government amendments. I have read what he said in his letter of the 29th about the three amendments to Clause 1 and I am satisfied.

On Question, amendment agreed to.

Lord Henley moved Amendment No. 2: Page 1, line 13, leave out ("in an anti-social manner, that is to say,").

The noble Lord said: In moving Amendment No. 2, I should like to speak also to Amendment No. 6. Amendment No. 2 is one of a series of amendments which I and my noble friends have tabled to Clause 1—other noble Lords have tabled a number of other amendments—by which we wish to tease out exactly what the Government's intentions are in relation to the clause. An anti-social behaviour order is, dare I say, an entirely new concept. We believe it is important to explore exactly what the Government intend. Amendment No. 2 in my name has been suggested by the Magistrates' Association for whose advice I am grateful.

The first amendment deletes the words, in an anti-social manner, that is to say",

so that the clause reads: that the person has acted in a manner that caused or was likely to cause harassment, alarm or distress".

The second amendment deletes the words "anti-social acts by him" and substitutes the words "harassment, alarm or distress". The noble Lord is far more aware than I that the latter expression—although I turned to Archbold and looked at the public order offences—is to be found in the Criminal Justice and Public Order Act 1994. Those are words with which I am sure the noble and learned Lords opposite, in particular the Solicitor-General, are perfectly familiar. I am sure that other lawyers who speak later in the debate are also perfectly familiar with them. They are used in the clause itself.

I believe that it is better to keep to the well understood public order law phraseology rather than introduce the new and rather vague concept of "anti-social" which I understand has no legal context, although no doubt courts would offer an interpretation in due course. If "anti-social" were to be retained it would require a fairly clear definition. As to that we should welcome the advice of the Government.

We shall be pursuing a number of other amendments on this particular provision all of which go to the wording and meaning of the clause. The noble Lord will also note that we are proposing to oppose the Motion that the clause should stand part of the Bill. I do not intend to pursue that course unless there are further questions relating to this clause which have not been dealt with by the time we get to the end. However, we believe that there is a case for considerably greater clarification as to what is intended and how the clause is designed to go further than the public order Acts themselves. In particular, what mischiefs is it designed to pick up that would not be picked up by the Public Order Acts and the words "harassment, alarm or distress"?

I dare say that we shall come to many points on other clauses which Members of the Committee will wish to address. I shall be grateful to hear their views on this particular amendment and what they believe it means. I also believe it is important that in due course the Government explain, first, why they believe that "anti-social manner" is necessary and, secondly, exactly what that adds to the public order Acts and the words "cause harassment, alarm or distress". I beg to move.

3.15 p.m.

Lord Renton

I support Amendment No. 2 moved by my noble friend. The Committee should bear in mind that it is laying the foundation for the meaning of Part I of the Bill. The position is very strange. Use is made of two particular phrases. The expression "anti-social manner" appears in line 13 on page 1 and the expression "anti-social behaviour" appears in the sidenote. Further, "anti-social behaviour" appears in subsection (4) in line 15 on page 2, to which I shall refer in a moment.

I am sure that all Members of the Committee agree that "anti-social" is a very wide concept. All crime is anti-social, but here there is a definition which fortunately is much more precise and narrow; namely, "cause harassment, alarm or distress". In passing, one wonders whether I have correctly pronounced "harassment". Sometimes it is pronounced as though it has something to do with asses but I do not believe that it has.

When I had doubt as to the meaning of "anti-social manner" in this part of the Bill I turned naturally to Clause 17 on page 13. There one sees the following definition: 'anti-social behaviour order' has the meaning given by section 1(4) above". If one turns to subsection (4) one finds that no definition is given. I believe that in the context of the two amendments to which my noble friend Lord Henley has referred the Committee must consider whether it is laying the foundation properly for Part I of the Bill. Eventually, the Government may wish to look at what is said in subsection (4) as well as in subsection (1). It is essential that we get this right. As far as concerns the language, it is far better to stick to the expression "harassment, alarm of distress" rather than bring it within the much wider concept of "anti-social behaviour" or "anti-social manner".

Lord Thomas of Gresford

I support the amendments to which the noble Lord has spoken. In line 13 "anti-social manner" is clearly defined because the words "that is to say" confine the expression to a manner that causes or is likely to cause harassment, alarm or distress. However, in line 3 on page 2 the expression "further anti-social acts" is not defined or limited in any way. Therefore, on one page one has "anti-social manner" clearly confined and defined and on another page "further anti-social acts" where the meaning is not clear. It is important that when an order of this kind is made a magistrates' court knows precisely what type of order it must make.

Lord Elton

I do not have the difficulty that noble Lords have had so far. I believe that there are two definitions. One in Clause 1(1)(a) deals with "anti-social manner"; the other is in Clause 17 and is concerned with an anti-social behaviour order. That order is defined pretty loosely in Clause 1(4). However, I have difficulty over the supposed breadth of the behaviour that is intended to be caught by the term "harassment, alarm or distress", particularly "distress". I take it that these cases would be tried by magistrates except on appeal. Therefore, that term will have to be understood very widely indeed, not merely by professional legal people. This provision will apply also to those who are not legally represented. Distress may be felt either reasonably or unreasonably by the neighbour of someone who keeps ducks or geese or who plants a high hedge. The question arises whether the Bill is directed at that kind of behaviour and, further, whether it will be taken to be directed at that kind of behaviour even if that is not the intention of the Government. I understand our function to be to ensure that the Bill means something precise and can be taken to mean only that. At present it does not appear to be in that form, and therefore I also support the amendment.

Lord Mishcon

My observation will be brief, and is a question. Is my noble friend the Minister aware, as I am sure that he is, of the anxiety within the legal profession to see that we have a precise definition of what is involved, in view, especially, of the penalty invoked by the Bill? Whether on this amendment or any other amendment, is my noble friend satisfied with the definition or would he wish to think again?

Lord Avebury

People's susceptibility to "harassment, alarm or distress" varies enormously. It might vary regionally, and between places which are inhabited by people of a certain class or ethnic origin. Therefore the interpretation of the clause could vary according to the demographic nature of the area in which the acts are performed. As I understand it, Clause 1(4), which refers to the anti-social behaviour order, points back to subsection (1). The reason for using the anti-social behaviour order is merely because the "prohibition of acts likely to cause harassment, alarm or distress order", would be a mouthful.

The anti-social behaviour order is merely a shorthand which includes all such conduct. I must confess that I am worried by the point raised by the noble Lord on what is "reasonable", and whether people should be susceptible to the causing of harassment, alarm or distress, because that will be a difficult concept for the courts to deal with. It is a highly subjective idea and. as I say, could be different in one part of the country than another.

Lord Renton

Does the noble Lord agree that if the word "anti-social" had to be interpreted by the courts, that would cause even more problems?

Lord Avebury

It probably would. I am disposed to agree with the noble Lord.

Lord Williams of Mostyn

The noble Lord, Lord Henley, was good enough to say that he welcomed the Government's approach in setting out the reasons for amendments as fully as possible. He helpfully indicated that he was not confining his opening remarks to Amendments Nos. 2 and 6, but was casting his net rather wider in the context of the whole of Clause 1. I entirely accept the spirit in which he put that, and can perhaps respond in the same way, bearing in mind that other Members of the Committee similarly raised rather wider questions than immediately derived from the amendments. I do not say that in any critical sense, because that is a useful way to proceed. The Government's stance is that if there are amendments which are so argued as to be convincing, then plainly we would wish to accept them.

As the noble Lord, Lord Henley, raised the general question of Clause 1, perhaps I may trespass on the Committee's time, thinking that it may save time in the end, to indicate the Government's thinking behind this part of the Bill.

Antisocial behaviour, as defined precisely—that is to say, acts which cause or are likely to cause harassment, alarm or distress to two or more persons not of the same household as himself—is a significant social vice for large numbers of people who live in this country. They do not live in the leafy green suburbs. They live on mean streets. The Government have a duty to protect them where they sensibly can, consistent with the rights and obligations of others who live in our country.

That is what we set out in our manifesto; that is what this part of the Bill is intended to deliver. I have stretched a little beyond the precise words of the amendments in specific response—I hope helpful—to what the noble Lord, Lord Henley, said, because he said that my response on the principled philosophy behind Clause 1 might affect his attitude as to the debate on Clause 1 stand part.

The important point about this proposed order is that it is a prohibitory order. I entirely agree with the noble Lord, Lord Renton, who said that it was a new order, perhaps even a new concept. The prohibited activity is to be limited only in so far as it is necessary to protect people in the area concerned from harassment, alarm or distress. That is to say, it will preserve the basic right of any citizen in our society to be protected; to have the opportunity which governments should provide to us all—namely, to have a calm life.

The Government take that duty seriously. It is not something that was fabricated on the back of an envelope in the Home Office. It has been considered for a long time, was the subject of widespread consultation, and was a specific manifesto commitment; and we regard it as a moral obligation.

I turn to the specifics. On the one hand, it is said that the definition is precise: harassment, alarm or distress to two or more persons". On the other hand, it is said that it is vague. It is not vague. The noble Lord, Lord Henley, was right when he said that one has similar words in other legislation which has been dealt with satisfactorily by juries up and down the country. For my own part—I think that I can say this having had rather more years than I care presently to recall dealing with juries and magistrates—I believe that they have no difficulty in understanding concepts, when they have to be focused on the facts of a particular case.

We believe that acting in an anti-social manner is something which is not consistent with the responsibilities of a citizen who derives rights and benefits from living in our society. I stress again that many of the persons who would be "the complainants" on these occasions are poor, vulnerable, inarticulate and often living lonely lives. Who is to protect them if not the Government by passing the Bill?

At present such people have no protection. They cannot afford to look for civil injunctions. I go further: in many well-documented cases, they are afraid to do that. This offers the shield of the Government, through the appropriate authorities, to assist people who need assistance. They may need assistance because they are old, disabled, vulnerable, poor, or from a particular ethnic minority group.

My noble friend Lord Mishcon raised the question of anxiety in legal circles. I am aware of that. I suggest that it is misconceived. This anti-social behaviour order is merely a prohibition. It is analogous to an injunction. What does an injunction do in normal circumstances? It forbids the person to whom it is directed to act in a way which would otherwise be unlawful. It is not a criminal sanction. It says to Mr. X or Ms Y, "You must not maltreat your neighbours so as to harass them; distress them; or to alarm them". What on earth could be wrong with that as a concept? It is shameful that those remedies for those people have not been available as part of the spectrum of what our law can provide.

I repeat: this is a prohibitory order. It requires the subject of it to do no more—I paraphrase bluntly—than to behave in a decent way to the fellow citizens of our country. There is nothing vague about the description. The antisocial behaviour order is, as the noble Lord, Lord Renton, rightly observed, in the rubric at the side of the clause. When one turns to paragraph (b), the phrase "anti-social acts" is qualified by the adjective "further"—plainly referring back to Clause 1(1)(a).

There is of course the distinct question raised by the noble Lord, Lord Avebury, as to whether some of these matters might not be unduly subjective. I take his point. I hope that he will find it fully reflected and respected in Amendment No. 13, to which I shall come in due time. I agree that some people's subjective alarm or distress might be unreasonable in all the circumstances. I might well have a neighbour who did not speak Welsh or vote Labour, but if I were alarmed or distressed I do not believe that the local magistrates' court would come to my immediate assistance.

I have deliberately been longer than anticipated in dealing with these two short amendments in order that we may go to our rest and cocoa at a sensible time tonight. I have specifically sought to respond to the spirit of the approach of the noble Lord, Lord Henley. I hope that I have dealt with queries, observations and resentments to your Lordships' satisfaction.

3.30 p.m.

Lord Renton

Perhaps your Lordships will realise that the noble Lord, Lord Williams of Mostyn, has made a convincing case for the use of the words, "cause harassment, alarm or distress-. However, those words are so clear and precise and can be so well understood that there is no need to introduce the wider and vague concept of anti-social behaviour. Could he not between now and the Report stage consider the drafting of the subsection? After all, it is a drafting matter which does not affect the substance and motives behind Part I of the Bill. As the noble Lord, Lord Mishcon, pointed out, we must try to get the matter clear.

Lord Williams of Mostyn

It is clear. I can think of no words clearer than, an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress". We wish the objectionable nature of that behaviour, which will underpin the prohibitory order, to be properly described as "anti-social"; that is to say, acting in an anti-social manner. I respectfully suggest that that is simple and plain.

Lord Hardy of Wath

Will my noble friend consider the fact that some people in the areas to which he referred have for a long time put up with anti-social behaviour? They may not have had cause for harassment; they may not have had cause to feel distressed; they may not have been alarmed; but they may have been caused fury, frustration and disgust over a long period. The quality of their lives may have been made wretched by anti-social behaviour. If my noble friend were to accept the amendment and restrict the action to cases in which harassment, alarm and distress had been caused the Government would not be meeting the broader need which, sadly, exists in many parts of the country.

Lord Windlesham

The Minister has given a sketch of the general context of Part I, and that has been helpful. He spoke eloquently of the need to protect the individual citizen who is faced with such behaviour, however it is described; the Bill describes it as "anti-social". However, he left the Committee with the impression—indeed, I believe that he used the words—that the citizen can go to the courts to enforce the right by way of a civil injunction. In order to fill out his explanation, should he not make clear that the individual complainant does not have access to the courts? The individual complainant must persuade either the local authority or the police to take action, and therefore there is an intermediate stage.

Lord Williams of Mostyn

I said deliberately and specifically that action would be taken via the appropriate authorities. I am happy to clarify that issue. The noble Lord is right in saying that the appropriate authorities would be the local authority or the police.

I may have to disappoint my noble friend Lord Hardy, although I never like to turn away support. We wished to provide a description of an anti-social manner and anti-social behaviour. Within that description, we have included the meaning: that is to say, in a manner that caused or was likely to cause harassment, alarm or distress". It is not simply the virtue of a propagandist description. We want it to be clearly understood, first, by our community generally and, secondly, by those who behave in ways which cause to some people indescribable and unimaginable harm in their own homes and communities, that such behaviour will not be tolerated because it is anti-social as described further in Clause 1(1)(a) as: likely to cause harassment, alarm or distress to two or more persons not of the same household". I believe that the argument is proper not because it is in a government Bill but because we have got it right. I say to the Committee—not specifically to the noble Lord, Lord Renton, because I do not wish to encourage hopes—that, in respect of every dot, comma, colon and semi-colon of the Bill, if genuine improvement is available we shall look to take the opportunity to achieve it.

Lord Brightman

I do not know whether I have missed something, but I do not see the remotest difficulty with paragraph (a). "An anti-social manner" is merely an abbreviation which is defined by the words which follow. The Bill states: an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment", and so forth. That is perfectly clear and there is no problem.

Lord Beloff

Does the Minister agree that, in order to make things clear, respect for the English language is important? I can see that one can cause distress or alarm, but I am baffled by the idea of causing harassment. To harass someone is a positive fact. I come here in order to harass noble Lords opposite, but I do not come here to cause them harassment. Would it not be possible to revise the wording so as to make clear the difference between causing alarm and causing harassment? That seems to me to be an odd concept.

Lord Williams of Mostyn

It is part of the criminal law. I readily accept that the noble Lord, Lord Beloff, does not come here to harass me. On the other hand, he often causes me harassment.

Lord Milverton

I have listened to the debate and I believe that the Minister answered well. I would not rush to support the amendment tabled by my noble friend on the Front Bench.

Lord Ackner

To what extent is the test to be applied to subsection (1)(a) objective or subjective? Does the supersensitive person who is caused distress give rise to the prospect that an application will be made, or is the test to be that the behaviour must be such as to cause the distress or alarm to persons of reasonable fortitude?

Lord Williams of Mostyn

It is a factual issue of whether the behaviour has caused or is likely to cause harassment, alarm or distress to two or more persons not of the same household. As the noble and learned Lord will see, my Amendment No. 13 provides that: For the purpose of determining whether the condition mentioned in subsection (I)(a) above is fulfilled, the court shall disregard any act of the defendant which he shows was reasonable in the circumstances". I respectfully return to my proposition that magistrates' courts and juries up and down the land are perfectly able to deal with such concepts, bearing in mind that they do not find criminal liability but are the basis for a prohibitory order.

Lord Ackner

With respect, I do not believe that the Minister has answered my question. Is the test to be objective or subjective? The question must permit of an answer and I invite the noble Lord to provide it.

Lord Williams of Mostyn

I do not believe that one looks at those concepts in quite that legalistic way, if I may say so with all humility. The magistrates will deal with matters in their area. For example, if one has a particularly vulnerable old lady, it seems to me that the test will have to be applied to "two or more persons". It is the circumstances of those two or more persons which will have to be looked at.

If they are unusually susceptible to harassment, alarm or distress, the court will have to draw a balance as to what is suitable in all the circumstances. That does not depend on the purely legalistic question of whether it is subjective or objective. That is far too narrow and unhelpful a question.

Lord Henley

I thank my noble friend Lord Milverton for his fulsome support for my amendment. I assure him that I did not intend to press this to a Division of the Committee. It is an amendment tabled to probe the Government's intentions.

I thank the noble Lord, Lord Williams, for giving us a very full reply to the points which Members of the Committee have raised. That is useful. We should all like to finish this day of Committee stage in time for early bed and cocoa, or something stronger, as the noble Lord puts it.

I should also add that we accept entirely, and in no way did I wish to imply otherwise, that anti-social behaviour can be a very real problem for large numbers of people throughout the country. Equally, it can be a problem whether or not they live in leafy suburbs. It can be a problem wherever they live.

Having said that, I believe that my amendment and the discussion that we have had arising from it have given rise to real problems. I note the point made by the noble and learned Lord, Lord Brightman, that the words, anti-social manner, that is to say", are perfectly well defined by the words, cause harassment, alarm or distress", and therefore were not superfluous. But there is that further use of "anti-social acts" as pointed out by the noble Lord, Lord Thomas of Gresford, in subsection (1)(b) where they are not so limited. That still creates a number of problems which need to be addressed.

The noble Lord, Lord Mishcon, rightly pointed out that such a clause could lead to extremely heavy penalties indeed being imposed on individuals who act in breach of what the noble Lord, Lord Williams, described as a "mere prohibitory order". I remind the noble Lord that if he looks at subsection (4), he will see that the courts have the power to prohibit the defendant, from doing anything described in the order". The courts can go a very long way and can make that decision on evidence which has been accepted merely on the balance of probabilities and not beyond reasonable doubt. Therefore, an order made on such a basis can go as far as one cares to see. It is possible for that order then to be breached and, as a result of that, very severe penalties may be imposed. For that reason, it is important to make sure that the definitions within Clause 1 are tightly drawn so that the individual knows to what he is subject and everybody knows exactly how the clause can be interpreted.

As I made clear, I have no plans to test the opinion of the Committee at the moment. It may be that I am completely wrong to suggest that the words, in an anti-social manner, that is to say", should be removed from the Bill. I believe that we need to hear more on this. The noble Lord did not address the point, to which I may wish to return later, of what precise mischief the clause is designed to address that would not be covered already by public order legislation and covered by those words, cause harassment, alarm or distress".

Lord Williams of Mostyn

I intervene only to be helpful in specific response to a question from the noble Lord. The whole point of this scheme is that it is not part of a criminal regime. If there is a prosecution under the public order Acts or the Protection from Harassment Act, it means that the prosecution has gone one stage beyond this prohibitory order stage.

Many, many people are afraid to be complainants in court when they have to make public allegations against their neighbours and against people who have made their lives an absolute misery. We are saying that prosecutions under the public order legislation and the Protection from Harassment Act have their place. But this is prior to that. I repeat that it is to endeavour to safeguard the vulnerable in our society, those who have their lives made a daily misery. I regret to say that at the moment our law does not protect them. Therefore, this is a much more considered remedy for a real social evil.

Lord Henley

I understand that we are not going as far as the criminal law in this case, although the noble Lord will appreciate that the penalties can be severe. Nevertheless, the words to be used are exactly the same and refer to causing "harassment, alarm or distress". That seems to imply that the same activities are being covered by both. That is why I have considerable doubts and why I wish to return to this matter either in our further deliberations on the clause or at a later stage of the Bill. As I made clear, at this stage I do not intend to press this matter to a Division, but it will require further thought. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Williams of Mostyn

I beg to move that the House do now resume, bearing in mind the indication that we had earlier from the Chief Whip that at a convenient time to your Lordships, a Statement would be repeated.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

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