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Lord Bassam of Brighton: I am happy to confirm that I shall write further on the matter.

Lord Clement-Jones: I thought that at points the Minister's reply verged not only on the patronising, but also on the unsympathetic. "Verging" is perhaps even too mild a word. As regards the unsympathetic, it seemed to be the good cop and bad cop routine. In the previous set of amendments, the noble Baroness

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understood the issue about the balance to be maintained. I do not think that the Minister has taken that on board. He asked a number of Members of the Committee to reflect; I think that he might reflect on how the wording could be improved in the light of that. My noble friend Lady Hamwee suggested that the use of the word "recklessness"—a kind of mens rea in its own way, which is a term recognised in criminal law, not going as far as intent—might be a way forward. I found the Minister's response to the types of issues that I raised, which received a sympathetic response in the previous set of amendments, completely unsympathetic and unattractive to many members of the organisations concerned.

Lord Bassam of Brighton: I apologise to the noble Lord. Goodness, far be it from me to be a bad cop and patronising. I live with a solicitor so I have to be very careful when I do that in the company of lawyers, and particularly solicitors. I apologise if I gave offence. It was not my intention. Nor was it my intention to give offence to the groups on whose behalf the noble Lord, Lord Clement-Jones, was speaking. We recognise that there are real difficulties for people who have Asperger's syndrome or learning difficulties or who are affected in the way that he described earlier, and the way in which they might come under this legislation. Of course, we are sympathetic to that.

Ironically, our local courts in Brighton dealt with a case concerning precisely those aspects of an anti-social behaviour order only last week. I am well aware of those issues. We understand the sensitivity required when dealing with people who suffer from particular syndromes, which contribute to their appearing in court, to be dealt with in the way in which this legislation will deal with them. I do not want the noble Lord to leave thinking that I am patronising, a bad cop or unsympathetic—I am not usually. I understand the points entirely.

Lord Clement-Jones: That was a much more sympathetic intervention.

Lord Dixon-Smith: I am most pleased that I tabled my original amendment and that it has led to a thoroughly useful discussion. We should clear up one misapprehension. The noble Lord, Lord Bassam, responded in tones which led me to suppose he thought that the Bill was perfect and that the rest of us were trying to ruin it. That was not the intention. The intention was to make the Bill better in its purpose and in the way it works for ordinary people. The Bill was welcomed at Second Reading. That welcome is no less in Committee because we have tabled amendments which try to alter specific meanings. Therefore, I think that the noble Lord, Lord Bassam, did not do himself a service.

We must look at the realities of injunctions against anti-social behaviour. I accept entirely that a person who plays music loudly in a flat until 4 a.m. is likely to raise everyone's temper beyond boiling point. If he or she does that once, should we really go to court to obtain an injunction to prevent a repetition? I agree

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that if it were repeated, there might be some point in going to court to obtain an injunction. In dealing with the case of a rave in a courtyard of a block of flats by a group of youths, that is unlikely to be easily planned so that one can go to court to obtain an injunction to prevent it. By the time it is over, it is too late. The youths are unlikely to do it again.

What are we talking about? We are not talking about occasional annoyance. We are talking about persistent annoyance. The Minister used the words "persistent" and "over time". I agree that every now and again some individual is quite likely to do something which will cause immense irritation to his neighbours. We are all capable of doing that. The question is whether that is a sufficient offence to take before the courts to obtain an injunction to prevent it happening again. Bear in mind that this is a precursor, ultimately, to the possibility of losing tenancy. A one-off incident will not result in an injunction—in my view of the courts. As I said at Second Reading, thank heavens for the courts, which will have to make sense of what is not a well-worded part of the Bill.

Criticism has come from all round the Committee. There is no argument or quarrel over the intention lying behind the Bill. We all accept the need for something to be done when a real problem arises, but the real problem is not a one-off event. In the light of this debate I ask the Minister to think carefully, as he has invited us to think carefully, about the wording in this part of the Bill.

I am quite prepared to admit that my use of the words "persistent" and "unreasonable" has been an extremely useful cock-shy, set up to provoke a good and interesting debate which has helped to highlight some of the problems. The Minister should not try to insist that there are no problems because it is clear from the debate that the opinion of the Committee is such that, if it came to a vote, he would probably be left the loser. But of course that is not our intention at this point.

I am grateful to all noble Lords who have contributed to this useful discussion. Our purpose is to try to improve the Bill. I finish by saying that we all need to think about the wording here. At the moment I do not think that it is satisfactory. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5 p.m.

[Amendments Nos. 31 to 36 not moved.]

Lord Dixon-Smith moved Amendment No. 37:

    Page 10, line 19, leave out "or" and insert "and"

The noble Lord said: The Minister may have a wry chuckle at this point because earlier in the proceedings I tabled an amendment that sought to leave out "and" and insert "or", while here I seek to leave out "or" and insert "and". I suppose that I may be open to the charge of inconsistency.

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We are still considering anti-social behaviour injunctions. New Section 153A(4) states that:

    "The second condition is that the conduct is capable of causing nuisance or annoyance to any of the following—

    (a) a person residing in housing accommodation owned or managed by the relevant landlord;

    (b) a person visiting the housing accommodation".

We have come back to the question of nuisance or annoyance argued by the noble Lord, Lord Phillips of Sudbury. Is this nuisance or annoyance or is it nuisance and annoyance? In this situation we felt that the word "and" was perhaps more appropriate.

Amendment No. 43 in this grouping adds a paragraph specifying that:

    "'Nuisance and annoyance' includes conduct which intrudes unreasonably into the peaceful occupation of the properties".

Amendment No. 45 seeks to insert the word "any" into new Section 153A(6).

The amendments continue to mark the concerns expressed in our previous debate. While "nuisance" is clearly understood, in the Bill the concept has been widened with the word "annoyance", which is more difficult. Again, we think that the wording could and should be improved and believe that these amendments would help the Government rather than hinder them. I beg to move.

Lord Bassam of Brighton: We have had much of this debate on earlier amendments. I shall not go over the same ground, but I wish to make one or two observations on each of the amendments before I invite the noble Lord to withdraw them.

As the noble Lord has explained, Amendment No. 37 seeks to ensure that both "nuisance" and "annoyance" would have to be proved in order for the injunction to be granted, rather than it being on the ground of nuisance or annoyance. We have already debated the "and/or" question.

Amendment No. 43 seeks to define a nuisance and an annoyance. We see a danger in doing that because the amendment may focus too specifically on one particular group which is intended to be protected; namely, tenants and their visitors. That is not the only group the clause is intended to protect. For example, we also intend to protect staff and others engaged in lawful activity in the locality, perhaps providing services in one form or another.

I made this point in a previous amendment, but I shall make it again: the wording "nuisance or annoyance" has been readily understood by the courts in connection with the existing housing injunctions made under the Housing Act 1996, an Act with which the noble Lord is no doubt familiar. The legislation was put in place when his party was in office. It was convenient to use the terminology then and we find it useful for legislation that we are introducing now. Further, the nuisance grounds for possession applicable to secure and assured tenants relate to that legislation.

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To change this wording would imply a change in the criteria under which an injunction can be sought and may make it harder to get an injunction. For example, defendants could argue that only nuisance or only annoyance had been caused and hence an injunction should not be granted. As I said earlier, the courts have held in this context that "nuisance or annoyance" should be interpreted widely. The behaviour must be such as to annoy an ordinary person, not necessarily one who is ultra-sensitive.

Again, I should remind noble Lords that case law suggests that it can be difficult to distinguish between the words, but if both are used, "annoyance" is assumed to mean something less than "nuisance" and to have a wider meaning. Further, "annoyance" has been described as a thing that reasonably troubles the mind and pleasure, although it may not appear to amount to a physical detriment to comfort. Taking noise nuisance, which may occur on only one occasion but which carries on for a long period of time, then that is a nuisance and something which someone may well wish to bring to a stop by using an injunction. So I think that the noble Lord will need to address that issue.

Amendment No. 45 changes the wording in new Section 153A(6) of the Housing Act 1996 from,

    "prohibits the person . . . from engaging in conduct"

to read as,

    "prohibits the person . . . from engaging in any conduct".

We would argue that the notion of "any conduct" is implied in the word "conduct".

Amendments Nos. 73, 74 and 74A would mean that a court hearing possession proceedings would be required only to consider the impact of nuisance or annoyance if that nuisance or annoyance was "deliberately intended". I dealt earlier with the issue so far as the victim is concerned, and I think that the same argument holds. The courts, when considering the actions of the perpetrator of anti-social behaviour, will be looking to see what is reasonable in all the circumstances of the case. They will consider the intention to cause nuisance or annoyance in order to justify a possession order. However, requiring landlords to prove someone's motives would make possession extremely difficult to obtain, akin to establishing intent in criminal proceedings.

I hope that the noble Lord will take on board those points. They have been made before but I think that they are worth repeating because, in our view, they go very much to the heart of the issue and need to be taken seriously. In that light, I hope that the noble Lord will feel able to withdraw his amendment.

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