Legislative Scrutiny: Anti-Social Behaviour, Crime and Policing Bill (second Report) - Human Rights Joint Committee Contents


2  Anti-social Behaviour (Parts 1-6)

Injunctions to prevent nuisance and annoyance

LEGAL CERTAINTY

4. In our first Report, we considered that the definition of "anti-social behaviour" in the Bill's provisions relating to the new civil injunction to prevent nuisance and annoyance ("IPNAs") was too broad and unclear.[3] In our view, "conduct capable of causing nuisance or annoyance to any person" is not a sufficiently precise definition to satisfy the requirement of legal certainty demanded by both the common law and human rights law, because it does not provide enough guidance to people, including children, as to what behaviour is expected of them to avoid the risk of an injunction. We recommended that the test be amended to make it more precise, by inserting an objective requirement that the conduct "might reasonably be regarded as" causing nuisance or annoyance.[4]

5. The Government, in its response to our first Report, did not accept our recommendation.[5] It argues that the test for anti-social behaviour is already well understood in the context of the housing legislation where it has been in use since 2004. It also argues that the drafting of the clause already "sets an objective threshold for 'nuisance and annoyance', by the inclusion of the words "capable of". This wording, the Government says, means that "it is not necessary to prove whether or not the conduct actually did cause nuisance or annoyance, instead a judge can objectively consider whether the threshold has been satisfied, rather than relying on a variable standard based, subjectively, on how much a victim can take before they are annoyed or feel they have been subjected to nuisance."

6. The House of Lords Constitution Committee has also sought clarification from the Government in relation to this issue.[6] It wrote to the Government on 6 November expressing its concern that the wording of clause 1 of the Bill may not meet the constitutional requirement of legal certainty, because it is unclear what conduct may be capable of causing annoyance to any person. It thought that the wide scope of clause 1 "may make it difficult for individuals (including parents and guardians of minors) to predict whether certain conduct might attract an IPNA. It therefore asked the Government for an explanation of the rationale for introducing the broad test in clause 1, and of why it was not considered appropriate for there to be an objective element to the test.

7. The Government responded to the Constitution Committee's concerns in a letter dated 21 November. It said that it is satisfied that this part of the test for an IPNA "is not arbitrary, but, rather, it satisfies the common law principle of legal certainty and human rights law." In support of that position it says that the test is well known in the civil courts in the housing context; the court will have regard to the principles of proportionality, reasonableness and fairness in deciding whether to grant an injunction; and the draft guidance for frontline professionals makes clear that IPNAs "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. For example, children simply playing in a park or outside, or young people lawfully gathering or socialising in a particular place may be 'annoying' to some, but are not in themselves anti-social."

8. On 11 December the House of Lords Constitution Committee wrote again to the Government about clause 1 of the Bill, to say that the Government's reliance on the draft guidance does not meet its concern about the lack of legal certainty on the face of the Bill.[7]

    "It is insufficient for necessary safeguards to be contained in guidance rather than in statute. This is because it is possible for professionals to depart from the guidance and, of course, it may be repealed or replaced subsequently."

9. Our recommended amendment was debated in Committee in the Lords,[8] and the Government indicated in response that it is willing to consider introducing a reasonableness element into the test for obtaining an IPNA.[9] So far, however, no Government amendment has been forthcoming.

10. We have considered the Government's reasons for rejecting our recommendation that the Bill be amended to introduce an objective element into the definition of anti-social behaviour. We are not persuaded that the inclusion of the words "capable of" causing nuisance or annoyance meets our concerns about the lack of legal certainty. It is true that these words mean that an injunction could still be obtained where there is no "victim" of the anti-social behaviour because the only people exposed to the behaviour had an unusually high tolerance threshold, and to this extent there is an objective element in the definition. However, the words do not prevent an injunction being applied for or granted in the opposite situation, when unusually sensitive people claim to have been exposed to nuisance or annoyance by particular behaviour, and this is the essence of our concern about the lack of objectivity in the clause as currently drafted.

11. Nor are we persuaded that the lack of legal certainty is made up for in the draft guidance for frontline professionals which has been published alongside the Bill. Like the House of Lords Constitution Committee, we consider that statutes should not be drafted in such broad terms that they give rise to legal uncertainty which has to be resolved by reading the statutory language alongside administrative guidance. To satisfy the legal requirements of accessibility and foreseeability, the wording of the legislation itself should reflect the Government's intention.

12. We welcome the Government's indication that IPNAs should not be used to stop reasonable, trivial or benign behaviours, but this intention is not so far reflected in the wording of the Bill. We therefore maintain our recommendation that the Bill be amended to introduce an objective element into the definition of anti-social behaviour in Part 1 of the Bill, by inserting a requirement that the conduct in question "might reasonably be regarded as" causing nuisance or annoyance.

RISK OF CONFLICT WITH RELIGIOUS BELIEFS

13. In our first Report on the Bill,[10] we questioned why it is necessary to expressly provide that prohibitions and requirements in an IPNA and a Criminal Behaviour Order ("CBO") must, "so far as practicable", avoid any conflict with religious belief.[11] We pointed out that under Article 9 ECHR, justifiable interferences with the freedom to manifest one's religion or belief are permissible, but the right to hold religious beliefs is an absolute right under Article 9(1) and interferences with it are therefore not permitted. We were not persuaded as to why it is necessary to single out religious belief for protection, particularly as the freedom to hold religious beliefs is an absolute right, and we recommended that these provisions be deleted from the Bill.

14. The Government wrote to us on 18 November assuring us that it is not the Government's intention to allow a court to interfere with a person's religious beliefs, acknowledging that the right to hold such beliefs is absolute. It explained that the form of these provisions follow a number of precedents in existing legislation, including in the Crime and Disorder Act 1998 and the Policing and Crime Act 2009. The Government indicated that it was happy to consider further the suggestion that these clauses be amended to refer explicitly to the respondent's right to manifest his or her religion or belief.

15. We welcome the Government's clear assurance that it is not the intention of Clause 1(5) and Clause 21(9) of the Bill to interfere with the absolute right to hold religious beliefs. We welcome the Government's willingness to consider amendments to these provisions, but it has not so far explained why singling out religious belief for special protection in this provision is necessary. In the absence of such an explanation, we consider that the existing protections for religious beliefs in sections 6(1) and 13 of the Human Rights Act should be sufficient, and we therefore invite the Government to consider whether any legal protection for religious freedom would be lost by accepting our original recommendation that the two provisions in question be deleted from the Bill.

16. However, if the Government remains of the view that this provision is required, notwithstanding the protection provided by the Human Rights Act, we recommend that the current wording is revised to ensure that the absolute right to religious belief must not be interfered with under any circumstances (rather than "so far as practicable"). In our view, legislative provisions should be drafted in a way that accurately reflects legal requirements, rather than leaves them to be interpreted compatibly by judges. The following amendments to the Bill would give effect to this recommendation:

Clause 1, page 2, delete line 6, and after line 11 insert:

";

and must avoid any conflict with the respondent's religious beliefs."

Clause 21, page 12, delete line 16, and after line 20 insert:

";

and must avoid any conflict with the offender's religious beliefs."

Eviction for riot-related anti-social behaviour (Part 5)

17. In our first Report, we expressed our concern about the inclusion in the Bill of a new discretionary ground of possession for riot-related anti-social behaviour which would enable landlords to evict tenants who had been convicted of a riot-related offence committed anywhere in the UK.[12] We were concerned about its potentially serious and disproportionate impact on family members, including women and children, and, given the Government's emphasis on deterrence as the rationale for the measure, it seemed clear to us that it amounts to a punishment rather than a means of preventing harm to others. We recognised the seriousness of riot-related offences, but we considered the custodial sentences imposed by courts to be a sufficient deterrent. We therefore recommended that the provision be deleted from the Bill.

18. In the Government's response to our first Report, the Government repeated its intention "that the proposal will send a strong signal and have a deterrent effect on potential rioters who are tenants or members of their household."[13] It envisaged that such evictions would only happen "exceptionally", and since the new ground was discretionary not mandatory, the courts could be relied upon to ensure that the rights of other family members, including children, would be taken into account when considering whether it is "reasonable" to make a possession order. Nevertheless, the Government said that, in light of the concerns we had raised, it would "reflect carefully on the views expressed during the Committee stage in the House of Lords.

19. In its response to the debate in Committee on our recommendation that the clause be deleted, however, the Government showed no sign of such further reflection, repeating the reasons it gave to us in writing for rejecting our recommendation.[14] "It sends out a strong and important message for the future that if you get involved in a riot, whether that is near your home or not, there may be consequences for your tenancy."

20. We have considered the Government's reasons for insisting that the Bill continues to provide for eviction for riot-related anti-social behaviour. We note the importance of what it describes as "messaging" in the Government's rationale for the provision: sending a signal about what conduct is acceptable by providing for sanctions if conduct falls below that standard. In our view it is the job of the criminal law, not the civil law, to deter riot-related offences and to administer sanctions when such offences are committed. Nor do we consider the existence of judicial discretion to be a satisfactory answer to our concern about the disproportionate impact of eviction on other members of the household who have not engaged in such behaviour. We maintain our recommendation that clause 91 be deleted from the Bill.



3   JCHR first Report on the Bill, paras 21-33. Back

4   Ibid., para. 26. Back

5   Letter dated 11 November 2013 from Norman Baker MP, Minister for Crime Prevention. Back

6   Letter dated 6 November 2013 from the Chair of the House of Lords Constitution Committee to Lord Taylor of Holbeach (available on the Constitution Committee's website). Back

7   Letter dated 11 December from Chair of the House of Lords Constitution Committee to Lord Taylor of Holbeach (available on Constitution Committee's website). Back

8   HL Deb 18 Nov 2013 cols 784-792. Back

9   Ibid. at col 790. Back

10   JCHR first Report on the Bill, paras 38-40 and57. Back

11   Clauses 1(5) and 21(9) of the Bill. Back

12   JCHR first Report on the Bill, paras 71-76. Back

13   Letter dated 11 November from Norman Baker MP, Minister for Crime Prevention. Back

14   HL Deb 2 Dec 2013 cols 63-64. Back


 
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Prepared 6 January 2014