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Lord Mottistone: I am very taken with the argument of the noble Baroness, Lady Hollis. I sympathise greatly with much of what she said. However, when she tabled her amendments they greatly alarmed the National Schizophrenia Fellowship, which advises me on these matters. When I entered the Chamber during the debate on Amendment No. 256, I was interested to hear the noble Baroness, Lady Hollis, among others, saying how important it was for severely mentally ill people not to be harmed by the measures under discussion.

Although I believe that something like the proposals in this group of amendments could usefully be included in the Bill, my fear is that severely mentally ill people need protection from them. The problem is that conduct likely to cause a nuisance or annoyance under the new Ground 17 to Schedule 2 to the Housing Act 1985 can result from severe mental illness as well as from drug taking or dealing. Court proceedings are sometimes initiated now under that type of ground against people suffering from schizophrenia who cause a nuisance when in a severe psychotic state; for example, by incessantly playing music at night. In such cases at present a court may order possession but is not required to do so.

Amendments Nos. 263ZAF and 263ZAG introduce draconian new powers which would mean that any tenant guilty of "serious anti-social behaviour" in the locality where he or she lives must be evicted. By virtue of Amendments Nos. 263ZAD and 263ZAE no notice would be required of that action.

Subsection (1B) of Amendment No. 263ZAE would turn the screw further by suggesting that if the court dismissed a claim for possession under the ground proposed in Amendments Nos. 263ZAF and 263ZAG it should consider making an order for possession under Grounds 1 to 4 of Schedule 2 to the 1985 Housing Act, and doing so without notice.

I and the NSF do not condone severe anti-social behaviour; nor do we wish to minimise the unpleasant repercussions for those at the receiving end. However, we think it important to emphasise that an illness like schizophrenia can cause someone to behave in a way which results in disturbance, damage to property and occasionally violence and that sometimes behaviour of the same or similar nature is repeated. Summary eviction of a person who is ill cannot be in his or her best interests.

The provisions of Parts II and III of Schedule 2 to the 1985 Act should apply. They empower a court to order possession if suitable alternative accommodation is available. That, of course, is what various noble Lords and the noble Baroness, Lady Hollis, were talking about earlier. But the noble Baroness has not put it in her amendments. That is where it needs to be. That accommodation might need to be provided by health or social services authorities rather than a housing authority or private landlord, as more intensive care and support could well be needed under the circumstances which I described.

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I have some examples of the kinds of people about whom we are talking but I am sure the Committee is well aware of the kinds of people who can cause such trouble. I simply say that, if the Government are minded to pursue the line that the noble Baroness, Lady Hollis, invited us to follow, they should qualify it by including protection for the severely mentally ill, which is not provided in these amendments. It is an awful pity that it is not.

Earl Russell: When one proposes to this Chamber an amendment, one needs to try to show four things. One needs to show first, that there is a problem to be solved; secondly, that the amendment will purchase on that problem; thirdly, that the amendment will not accidentally purchase on all kinds of other problems on which it is not intended to purchase; and fourthly, that the cure is not worse than the disease.

I shall stipulate that the noble Baroness has abundantly proved the first of those points. She has proved that there is a problem. She is undoubtedly right about the right to quiet enjoyment of one's own property. That is vital to preservation of the peace. She is clearly right that that is now far too often under threat. She is clearly right that attempts to put it right sometimes lead to intimidation. So, if I may, I shall stipulate that she has established the existence of a problem.

I am not so certain about the other tests that the amendment has to pass. To some extent, the amendment purchases on the problem; but the point made by the noble Lord, Lord Mottistone, is well taken: there must be somewhere else for the people to go instead. In some cases, which may involve mental illness, we may have to say, not for the first time, that the policy of closure of long-stay mental hospitals can be overdone. But there are people--the noble Baroness has already drawn attention to them--who are simply anti-social or criminally disposed. Those people will go somewhere else. We shall have to pay attention to where else they will go and whether they may cause as much trouble all over again as where they went in the first place.

As to whether the amendment will purchase on other problems as well as the ones that it is designed to meet, when I look at the drafting I have some anxiety on that score. Let me take first Amendment No. 263ZAC. I entirely accept the problem to which that amendment is directed. Line 3 of the amendment brackets together the similar propositions that:


    "witnesses are or may be intimidated".
From a legal point of view those are two fundamentally different propositions. If it can be proved that the witnesses are being intimidated, that is a conspiracy to pervert the course of justice. It is also threatening behaviour. It is a crime in its own right, and I believe that the law has power to deal with it. But to say that witnesses "may be intimidated" is rather like my favourite crime story from my childhood of the people who were prosecuted for loitering with intent to press button B. There was no proof that any crime had ever

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been committed. I really could not accept a drafting which took witnesses being intimidated or "may be intimidated" as two interchangeable propositions.

In the later part of the amendment there seems to me to be a contradiction between the proposition that they can proceed if there is no direct evidence that any person has actually caused a nuisance and that the only evidence available is from police officers or employees. I am not particularly worried about who the evidence is from, but there must be evidence that a nuisance has been caused. If there is any doubt about whether an offence has been committed, then no proceedings should be taken. It is the old proposition of Perry Mason: the prosecution must first prove the corpus delicti.As this amendment stands, it does not prove the corpus delicti. That, I find, is something I really could not accept. "No notice" has been commented on. I say no more about it at present.

The noble Baroness herself touched upon the case for making orders mandatory under Amendment No. 263ZAG. I understand the point she makes, but she cannot have it both ways. Either she has to have the proceedings mandatory and then the grounds have to be made less all-inclusive because no discretion is allowed or, if she wants the ground spread wide, to cast her net wide to catch all the possible offences, then it cannot be mandatory.

Perhaps I may explain what I mean. Amendment No. 263ZAG, referring to "serious anti-social behaviour"--which is, incidentally, a term of sociology rather than of law--goes on to state in paragraph (b) that this shall include,


    "any damage to property in the locality".
I should declare an interest. When my son was under 10 years of age and fancied himself both as a cricketer and as a footballer he would, under this clause, have got me evicted from four consecutive properties and his grandparents from one. Any 10 year-old breaking a window would be covered by that clause. It is the effect of the amendment, and can only be the effect of the amendment, as I understand it, to have mandatory eviction every time that a 10 year-old breaks a window.

I know that there should be more school playgrounds; I have said so quite often--but to evict a family every time a 10 year-old breaks a window! That is what the amendment says and if the noble Baroness does not mean it I hope that she will come back with a better amendment at a later stage. The amendment is unacceptable and I am not convinced that it purchases effectively on the problem.

Also, as always, we cannot assume that if we intend a power to be used for a particular purpose it will never be used for any other. I remind the noble Baroness of what I said about an earlier amendment, that legislation is like using a shotgun with pellets going lots of places where they are not intended to go. I consider the effect of this amendment if it were to be applied in an American township where the Ku-Klux-Klan is powerful. It may be said that we do not have that here. I would be reluctant to legislate on the assumption that we never will. That is the way in which bad legislation

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is passed. This is the sort of use of powers under which one gets what is proverbially and, indeed, literally, known as a witch hunt.

When I was arguing with the right honourable friend of the noble Baroness, Mr. Straw, on "A Week at Westminster" a couple of weeks ago, he argued at some length that the powers he was proposing could not possibly be arbitrary because they were not being exercised from the top down but by the community. But Mill was quite right that the people may desire to oppress a part of their number.

Power exercised by the community, as anybody who has been run out of town in the United States knows painfully well, can be just as arbitrary as any power exercised by any despot of whom we have ever heard. There is a problem. We do not have a solution. I am perfectly happy to sit down round a table and try and work out what the solution may be; but I do not believe it to be this one.


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