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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,


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

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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 l3 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".

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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

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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

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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.

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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.


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