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Lord Campbell of Alloway: My Lords, it seems to me that the distinction between "nuisance" and "annoyance" is absolutely clear. "Nuisance" has ever been one of the old forms of action in tort: "annoyance" has not been. We are here dealing with a statute. If you are using "nuisance" you do not need to qualify it. But of course, as the noble Lord said, you do

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not just walk into court and obtain an injunction saying that something is a nuisance. It must be a substantial nuisance; a reasonable complaint.

"Annoyance" is different. It must be qualified as being reasonable. If you do not, you are placing too high a burden and it would be impossible to administer fairly. That is only my opinion.

Lord Hylton: My Lords, when the Minister comes to reply for the Government, will he bear in mind that Members of the House on all sides want to restrain anti-social behaviour, but to do so without many unnecessary cases having to come before the courts?

Lord Bassam of Brighton: My Lords, this has been a wide-ranging discussion about definitional issues and I understand why that might be the case. Colleagues on the Liberal Democrat Benches were irritated—perhaps slightly wound up—by some of the responses given during the Committee stage. They are perhaps annoyed, finding it a nuisance, worried about it being trivial and certainly they do not want to be reckless today.

I can well understand the noble and learned Lord, Lord Brightman, being confused. Having listened to responses from the Liberal Democrat Benches, I am slightly confused as to where they are coming from and not altogether certain whether they are playing on the same football field. I was not entirely convinced—ultimately, not convinced at all—by their range of arguments, interesting though they were.

I thought that the noble Baroness, Lady Hamwee, began to put her finger on the issue. Initially, she appeared to be concerned about sloppy draftsmen. She then let the parliamentary draftsmen off the hook by saying that it was sloppy thinking. Presumably, she believes that it is sloppy policy thinking. I disagree with that. This is not sloppy policy thinking—we know exactly why we are here and what we are trying to achieve.

I can see that the Liberal Democrats in particular have a difficulty with this whole approach and strategy and with the Government's drive against anti-social behaviour. What they are trying to do—and I can understand why they are doing it—is to pick away at the policy. That is what they do not like—they do not like the thinking behind what is here.

Lord Phillips of Sudbury: My Lords—

Lord Bassam of Brighton: My Lords, perhaps the noble Lord will let me finish the point. I shall deal in turn with his comments, and I remind him that we are on Report. I understand some of the amendments in terms of their desire for perfection and for getting things absolutely right. I certainly understand why the noble Lord, Lord Clement-Jones, made his observations. He rightly said that I was sympathetic to the points that he made. It is simply that, ultimately, I disagree with the means that he chooses to achieve a desirable understanding of people who have a

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condition such as autism or Asperger's syndrome, and so on. I well understand that and the practical difficulties that it can create for the courts.

I want to go through very carefully—

Lord Phillips of Sudbury: My Lords—

Lord Bassam of Brighton: My Lords, I am reluctant to give way. This is a long group of amendments containing many different points, and I want to give them time and pay due respect to them. I am not sure that I can do so if I am constantly interrupted by the noble Lord. I shall give way this once.

Lord Phillips of Sudbury: My Lords, I am most grateful. The noble Lord will not be constantly interrupted so long as he does not make misleading remarks, such as he has just done. There has been no suggestion at all from this side that we are in disagreement with the policy objective. In fact, I believe that everyone has gone out of their way—during this and the previous stage of the Bill—to say that we agree with the policy objective. Therefore, I hope that the Minister will not base his argument on a misrepresentation of where we stand.

Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord. Am I now receiving fulsome support for our anti-social behaviour strategy? If I am, then that rather differs from the impression that I had previously. However, perhaps I may make progress.

I believe that Amendments Nos. 10, 11, 12, 13, 14 and 19 are all in the name of the noble Lord, Lord Dixon-Smith. Essentially, they seek to make it harder for social landlords to obtain injunctions forbidding anti-social behaviour. New Section 153A deliberately widens the definition of "anti-social conduct" to include behaviour that is "capable" of causing nuisance and annoyance. That will enable social landlords to be more proactive in their management of anti-social behaviour and, in our view, will avoid legal arguments about the exact severity or likelihood of anti-social behaviour causing nuisance and annoyance.

Amendment No. 10 introduces a new criterion which must be proved in court: that the behaviour complained of is unreasonable. We do not consider that amendment to be necessary. When an application for an injunction comes before the court, the judge considers whether it is reasonable, given all the circumstances, to grant that injunction. That will include a consideration of whether the behaviour was reasonable.

There is no objective test of what is "reasonable behaviour" in all circumstances. As another noble Lord stated, something may be reasonable in a house but not in a flat. It may be reasonable at 6.30 p.m. but unreasonable at 10.30 p.m., 11.30 p.m. or midnight. It always depends on context, and that is what judges will have to consider.

The amendment would also affect the court's power to grant a demotion order and force it to consider "reasonableness" twice—first, in relation to the

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conduct alone and then in relation to the order as a whole, as required by new Section 82A(4) of the Housing Act 1985 and new Section 6A(4) of the Housing Act 1988.

We believe that the concept of reasonableness in respect of both injunctions and demotion orders applies in relation to whether it is reasonable to grant the order in all the circumstances of the case. That is already reflected in the level of discretion given to the courts by the provisions introduced by Clauses 13 and 14 of the Bill.

Amendments Nos. 11 and 13 narrow the circumstances so that the perpetrator of anti-social behaviour needs to be actively reckless rather than simply acting in a way capable of causing nuisance or annoyance. The word "reckless" implies some sort of test as to the defendant's state of mind, as appears in criminal cases. We believe that inquiring into the state of mind of the perpetrator is particularly unhelpful. If someone plays music until 4 a.m. and disturbs his neighbour, then the neighbour does not care whether the perpetrator has thought about whether he might be causing nuisance or annoyance to those around him, or even that he might have thought about it but chose to ignore the possibility. He simply wants the music to stop.

These amendments suggest that landlords should be required to provide evidence akin to that required to establish recklessness in criminal proceedings in order to obtain a civil injunction. We do not believe that that is right. In fact, in a sense, I agree with the point made by the noble Lord, Lord Phillips of Sudbury. We do not consider that higher test to be the right one in those circumstances.

An injunction is simply an order of the court asking someone to stop doing something. It is not a punishment in itself, although I believe that it has been misinterpreted by some as being that and, accordingly, it does not need to be restricted in the way that it can be necessary to restrict criminal sanctions. Mixing up civil and criminal concepts in the way that the amendment would—and it has been suggested that it might—has the potential to make the application of anti-social injunctions far too restrictive and would lead civil courts into highly complex inquiries as to the state of mind of the perpetrator. I do not consider that to be helpful.

I want to make one or two other comments, in particular with regard to the observations made by the noble Lord, Lord Clement-Jones, whose contribution I greatly respect. I can well appreciate the difficult circumstances that might arise from these processes being put in place when someone who suffers from a form of autism or Asperger's syndrome, or one such behavioural syndrome, is introduced into the court scenario.

I believe that the noble Lord was alluding to the fact that much of the work and preparation in bringing forward these orders must be undertaken. During that process, the authorities involved—whether they be the police, the housing authority or the local authority—will want to give very careful thought to the

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appropriateness of going along this route. I believe that is where the important work will be done. Because of that, matters such as guidance, the way in which the guidance is phrased and the way in which we, as government, consult on the quality of that guidance will make a profound difference.

I do not believe that chiselling away to put perfect words on the face of the Bill is necessarily the right way to approach the problem. However, I understand the points that the noble Lord made. We certainly understood them when he made them at an earlier stage in the Bill, and those considerations will have to be carefully thought through. Therefore, it is not that there is a lack of interest or a lack of seriousness in relation to this matter; I simply do not believe that this is the appropriate way to deal with it. However, I can see the temptation to do so and I applaud the noble Lord's efforts to bring forward that argument into this debate because clearly it is an important consideration.

Perhaps I may go into more detail and turn to Amendments Nos. 12, 14 and 19. Again, these amendments narrow the circumstances in which an anti-social behaviour injunction can be ordered. They require the conduct to be a nuisance or, if it is an annoyance, to be serious or repeated.

Amendments Nos. 27, 28, 29, 30, 32, 33 and 34 place the same additional consideration upon the judges in deciding a possession case. The judge will be required to consider separately whether the conduct comes within the meaning of nuisance or annoyance and, if it is an annoyance, whether it is serious or repeated. The effect of these amendments would be to split up a phrase which already has legal meaning. "Nuisance or annoyance" is a well-established legal test which the courts are perfectly comfortable to use. We do not believe that it is necessary to re-write it. The amendments distinguish between nuisance and annoyance in an artificial and unhelpful way. When the courts consider nuisance and annoyance, they automatically take into account whether the conduct has been serious and on how many occasions it has occurred. I argue that the proposed amendments introduce extraneous new tests which, in reality, would achieve little.

Amendment No. 47 in the names of the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Linklater, would change the definition of "anti-social behaviour" for the clauses relating to parenting orders and contracts. That would make parenting orders under the Bill inconsistent with those under the Crime and Disorder Act. The amendment could also hamper agencies seeking to improve people's daily lives and the communities in which they live.

I also suggest to your Lordships that this change is not applicable or necessary in the case of parenting orders or contracts because the child or young person is not on trial. Indeed, these free-standing parenting orders are intended as an early form of intervention to help to change behaviour so that children do not end up in court.

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The Bill allows parenting orders and contracts to be used to tackle misconduct by children below the age of criminal responsibility who are deemed not to have the moral and intellectual maturity to understand the consequences of their actions. The amendment, by requiring recklessness to be proved, could prevent parents of under 10 year-olds, as well as parents of older children, from receiving from youth offending teams the early intervention support that they need before behaviour becomes entrenched and leads on to more serious problems. That amendment could have a very unfortunate consequence.

I detected head-shaking and nodding on the use of the term "nuisance and annoyance", so perhaps I should explain the situation more fully. We consider the use of the term "nuisance and annoyance" to have a useful history. It is used in existing injunctions and it is worth reminding the House that those injunctions exist under Sections 152 and 153 of the Housing Act 1996. I believe I made that point in Grand Committee so there is an understanding there. Of course, the term is also used in possession proceedings under the Housing Act 1985 and more recently under the Housing Act 1988.

I do not accept that the term is not understood by the courts; they understand it. Placing the words together makes it clear to the courts that the word "nuisance" is being used in a usual everyday sense, not as a legal, technical form of jargon. The courts do not usually consider words in isolation from one another. It is clear from the cases that the "nuisance or annoyance" must be such as to annoy an ordinary, reasonable person, not one who is unusually sensitive. I believe that the terminology is well understood by the courts and it is for that reason that we want to insist on it in this legislation.

The noble Lord, Lord Hylton, in his short observation, tried to suggest that we are talking about behaviour that is used to restrain. That is right. I believe that he was trying to suggest to us that we should reflect on that and ensure that we are not excessive in what we are trying to achieve here. We have thought very carefully about the powers that we wish to take in this legislation. We believe that we are on the side of the public. This is not a populist gesture on our part. Our proposals are a response to a very real and perceived set and range of problems. We have tried to hone the legislation and its wording so that they are perfected and match particular circumstances. That is why we have adopted this approach. In bringing forward this legislation we have listened carefully and we have consulted widely and extensively on the way in which it will work and we believe that we have support for this general approach.

If during the course of our exchanges on this part of the Bill we have, at times, irritated some Members of your Lordships' House, it is because we believe that we have the matter about right. We want to ensure that we can get the Bill through so that people are provided in their homes and in their communities with the right level of protection from what most in your Lordships' House would accept is unreasonable and anti-social behaviour. If we have better law that can be used

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flexibly, it can be used for the benefit of the public. Having heard those points I hope that the noble Lord will feel able to withdraw the amendment.


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