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House of Lords

Wednesday, 8 January 2014.

3 pm

Prayers—read by the Lord Bishop of Ripon and Leeds.



3.07 pm

Asked by Lord Greaves

To ask Her Majesty’s Government what action they are taking to deliver their commitments made in the statement on peatlands by the Ministers from the Department for Environment, Food and Rural Affairs, the Welsh Government, the Northern Ireland Executive and the Scottish Government on 5 February 2013, in particular those on peatland restoration, land management policies to protect peatlands, and the inclusion of peatland restoration in national greenhouse gas emissions reporting.

The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord De Mauley) (Con): My Lords, we are undertaking a number of actions supporting the restoration of peatlands, including working with the International Union for Conservation of Nature on the pilot peatland code, research to determine best practice in peatland restoration, and establishing three government-funded nature improvement areas. We are also investing more than £3 billion in a more targeted successor scheme to environmental stewardship, with the potential to include peatland restoration, and we are funding research on greenhouse gas emissions from lowland peat.

Lord Greaves (LD): My Lords, that was quite a positive response. Is the Minister aware of the recent report by the Institute of Biological and Environmental Sciences at Aberdeen University, which found that building wind farms on undegraded peatland will not reduce net carbon emissions, and that they should not be built there? Many peatlands are in wild, remote, often upland areas, with large stocks of soil carbon. Developing them usually involves substantial excavation and draining of peat, which offsets the gains from wind power. Will the Government take these matters into account when considering their future energy strategy for the UK in conjunction with the devolved Administrations?

Lord De Mauley: Yes, my Lords. Applicants for consent for major energy infrastructure projects must provide assessments of potential biodiversity and geological impacts, including the effects of locating infrastructure on peatland. The decision-making authority must take such impacts into account before making its decision. Much can be done, through project design, to minimise and mitigate impacts. However, if there is damage that cannot be avoided, it is for the planning authorities to judge whether the benefits of the wind farm development outweigh those impacts.

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Lord Krebs (CB): My Lords, I would like to ask the Minister about the impacts of climate change on upland peat. As he will know, the report of the Adaptation Sub-Committee of the Committee on Climate Change, which I happen to chair, reported this year that only 4% of upland deep peat in England is in active, peat-forming good condition. Furthermore, only one-third of upland deep peat has a management plan in place. Will he inform the House what he intends to do about the other two-thirds of upland peat that has no management plan in place to improve its quality?

Lord De Mauley: Yes, my Lords—and I should take this opportunity to thank the noble Lord for the work he does with the Adaptation Sub-Committee; it is extremely important to us. The peatland code, which was launched in September, provides a basis for business sponsorship of peatland restoration; that is a key plank in what we are doing. We are also undertaking a considerable amount of important and relevant research. Environmental stewardship, which I referred to in my initial Answer, has for many years benefited peatlands, but the new ELMS will be more focused on environmental outcomes and therefore will be more directly beneficial to peatland restoration. The three nature improvement areas that have peatlands are working hard on improving their habitats.

Lord Cormack (Con): My Lords, is not the best way in which to answer the plea of the noble Lord, Lord Greaves, to ensure that these unreliable, uneconomic and unsightly wind farms are not built on land anywhere?

Lord De Mauley: My Lords, of course, we have to take all factors into account in these decisions, but I shall pass on my noble friend’s comments to my colleagues at the Department of Energy and Climate Change.

Lord Knight of Weymouth (Lab): My Lords, as the noble Lord, Lord Krebs, reminded us, only around 4% of our deep peat is in sufficiently good condition still to be actively forming peat. That is a decline from 6% in 2003. We also know that Birmingham, Exeter, Leeds, Liverpool, Manchester and Sheffield, as well as all of Cornwall, rely on peat catchments for their water. The Peak District peatlands alone supply 4 million people. Will the Minister therefore tell us what estimate the Government have made of the costs that could be avoided if the water storage and purification services provided by upland peat were restored?

Lord De Mauley: My Lords, the noble Lord will not be surprised to hear that I do not have a figure for that, but the gist of his question is entirely right. Peatlands perform an absolutely essential function in ensuring that we have clean and pure water supplies.

The Earl of Courtown (Con): My Lords—

Viscount Ridley (Con): My Lords—

Noble Lords: This side.

Baroness Parminter (LD): My Lords, the poor condition of upland blanket peat bogs causes nearly 300,000 tonnes of CO2 to be released into the atmosphere every year. Can the Minister say at what date the Government intend to increase peatland restoration in the national greenhouse gas emissions reporting?

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Lord De Mauley: I was not quite sure which noble friend was going to ask me a question then. The point on greenhouse gas emission reporting is that the metrics and technology are at a relatively early stage. We are still working on that, but noble Lords may rest assured that it is a key focus for us, and we will not rest until we have achieved that.

Lord Berkeley (Lab): My Lords, the Minister said that they were looking for sponsorship for the management of these peatland areas. Does that mean that the only new areas that will get managed will be those sponsored by McDonald’s, et cetera?

Lord De Mauley: No, my Lords; that is why I mentioned the new environmental land management scheme.

Viscount Ridley: My Lords, is the Minister aware that it is not only in this country and not only with wind farms that some renewable energy projects are proving to be worse for carbon emissions, because of their effect on peat? For example, a study from Leicester University showed that biomass production from tropical peatland forests can worsen the effect of carbon dioxide emission.

Lord De Mauley: That is a very interesting point, but it strays a little wide of the Question.

The Earl of Courtown: I have got there in the end. I am looking at a slightly different part of this Question—at the end user of much of this peat, particularly the horticultural user. Would my noble friend agree that it would be wise for Her Majesty’s Government to look at the labelling of peat products for sale in garden centres, where peat material is sold as being low in peat when at least 50% of it is made up of peat?

Lord De Mauley: My Lords, that is an important point, too, because that is essentially—or at least a major reason—why our peatlands have been so badly destroyed in the past. A road map or plan has been produced from the work of the Sustainable Growing Media Task Force, which sets out recommendations on how a transition to sustainable growing media can be achieved. The Government responded in January 2013. As part of that, a growing media panel was established to oversee and co-ordinate delivery of the plan and to report on progress. The policy review will take place in 2015 to assess progress.

Ofsted: Annual Report 2012-13


3.15 pm

Asked by Baroness Perry of Southwark

To ask Her Majesty’s Government what assessment they have made of the remarks about “lucky children” made by the Chief Executive of Ofsted during the launch of that organisation’s Annual Report 2012–13.

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The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con): My Lords, I am delighted that the chief inspector has focused attention on “lucky children”. Although 78% of schools are now good or outstanding—compared to 68% when we came into office—there are still too many unlucky children. Many of them attend schools up and down the country that have been failing for years and which we are now turning into sponsored academies. The performance of sponsored academies far outstrips that of other state schools. For instance, sponsored academies open for three years improved their GCSE results by 12% versus 5% for local authority schools. The Government’s extensive programme of reform is aimed at ensuring that all children are lucky enough to go to a good school.

Baroness Perry of Southwark (Con): My Lords, I thank my noble friend for that heartening reply. Would he also join me in welcoming the chief inspector’s finding that children’s success in education is determined not by their background but by the quality of the school they attend and that lucky children are simply those who attend good schools? Does this not offer an end to the climate of low expectations for children from disadvantaged backgrounds, which for too long has bedevilled their opportunities?

Lord Nash: My noble friend is quite right. When the new chief inspector came into office, one thing that I thought he did very well was to abolish the appalling low-expectation term “satisfactory” and set much higher expectations for schools. It has clearly been proved through the academies programme and other schools that setting higher expectations for our children does work.

Baroness Massey of Darwen (Lab): My Lords, the report implies that increased testing of children may improve attainment. Many teachers and educationalists believe and state that excessive testing takes time away from teaching. Do the Government agree?

Lord Nash: Assessment, as opposed to testing, is obviously crucial to ensure effective accountability and to work out whether pupils are making progress, which is an issue that I know Ofsted is very focused on. We have held a public consultation on proposals for key stage 1 assessment, whose results have not been published. As far as key stage 3 tests are concerned, we have no plans to reintroduce key stage 3 tests but we expect all schools to be able to demonstrate to Ofsted, through whatever assessment mechanism they use, that their pupils are making progress.

Lord Sutherland of Houndwood (CB): My Lords, would the Minister agree that, while the use of the word “lucky” is good shock tactics—and, possibly, good politics—the primary responsibility of Government, and all of us who are involved in education, is to improve the quality of schools and teaching and to take luck completely out of the picture?

Lord Nash: I agree entirely with the noble Lord. That is what we aim to do.

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The Lord Bishop of Ripon and Leeds: My Lords, in view of the difficulties often experienced in recruiting governors for schools, especially but not only in disadvantaged areas, what more can the Government do to encourage people to take on that role and to reduce the bureaucratic pressures that governors so often face?

Lord Nash: The right reverend Prelate is quite right to focus on governance. I put that right at the top of my agenda when I came into office because it seems to me that, whether a school is maintained by a local authority or is an academy, the key decisions are often made by the governing body, so we need to raise the quality of governance. Last year, we focused governors’ responsibility on three key functions: on setting the school’s strategy and vision; on holding the head teacher to account for pupils’ progression and for the performance management of the staff; and on money. It is important to focus governors on a limited number of tasks, but we are also dramatically beefing up recruitment, including by working with business to recruit more business governors.

Baroness Garden of Frognal (LD): My Lords, the chief inspector highlights as a key challenge that pupils do not see English and other school subjects as relevant to their daily lives. Would the Minister agree that lucky children are those who have early exposure to the world of work and make the link between lessons and future aspirations? If so, what steps are the Government taking to support and enhance careers advice throughout primary and secondary schooling?

Lord Nash: I agree with my noble friend that this is very important. It is essential that schools work closely and engage with their local businesses. Many excellent models are emerging up and down the country—I am continually coming across new ones—including: the Business in the Community business class, which aims to work with 500 schools; the Ahead Partnership in Leeds, which runs a very good organisation called “Make the Grade” that builds partnerships between businesses and schools; and Inspiring the Future as well as a number of other models that are emerging. All schools should allow their pupils a window on work through engagement with their local business communities.

Baroness Morgan of Huyton (Lab): My Lords, the progress of schools in London, particularly sponsored academies, was particularly marked in the report. What lessons will the Government take from the London experience of introducing sponsored academies with very strong leadership, good teaching and strong governance, also backed up by the framework of the London Challenge? I draw attention to my entries in the register.

Lord Nash: The noble Baroness makes a good point, and I am grateful to her for her work as chair of Ofsted. There are two lessons from the point she made. One is that school-to-school support is the key model. We are focusing the academy programme on a regional, school-to-school cluster basis—whether that involves national chains operating regionally or local schools supporting

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local schools. Those are the absolute key things that we learn from the London Challenge and the academy focus. It has to be done on a local basis.

Baroness Hughes of Stretford (Lab): My Lords, at the same time as publishing his report the inspector also said that grammar schools are acting as a brake on social mobility and there should be no more of them. Do the Government agree with that as well?

Lord Nash: The Government are prepared to approve expansion of grammar schools but we are not in favour of new grammar schools.



3.22 pm

Asked by Lord Sherbourne of Didsbury

To ask Her Majesty’s Government what steps they are taking to encourage more United Kingdom businesses to export goods and services.

The Minister of State, Department for Business, Innovation and Skills & Foreign and Commonwealth Office (Lord Livingston of Parkhead) (Con): My Lords, the Government have significantly increased their support for exporters. UKTI expects to assist 40,000 businesses in this fiscal year, an increase of 50% over the past two years. The Government have also provided additional funding to increase support for exporters in key fast-growing markets such as India and China. In addition, the Chancellor recently announced a significant increase in UK Export Finance’s capacity to support our exporters.

Lord Sherbourne of Didsbury (Con): My Lords, I welcome that. In particular, I welcome what my noble friend said just before Christmas about consulting medium-sized companies on what further help they might need. When he does that, will he have in mind the additional support that can and should be provided by chambers of commerce and other business organisations? Will he also look carefully at what lessons we can learn in that regard from other successful exporting countries such as Germany?

Lord Livingston of Parkhead: My noble friend makes a very good point. We have indeed looked at successful exporting countries such as Germany, Japan and the US. One feature in a number of them is, and has been over the past 20 or 30 years, the use of chambers to assist companies in overseas markets; we are indeed adopting this model. We have targeted 41 more-difficult-to-reach markets where chambers will assist us in providing support for particularly our smaller exporters, as well as the large companies that are often represented. In addition, we are looking at the success of middle-sized companies in Germany, where the UK does not do as well, and there will be a number of initiatives with them. In addition to the chambers, we are working closely with the Institute of Directors, the CBI and the Federation of Small Businesses—to name three organisations.

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Lord Giddens (Lab): My Lords, we are in the early stages of some of the greatest transformations possibly ever to affect manufacturing and even service industries, with the advent of digital production. By that I mean 3D printing, what has come to be called by some 4D printing and beyond. As a result, it may be possible for us not only to make many things here that are at the moment made abroad but to export them to other countries. What are the Government doing to ensure that the UK is in the forefront of these extraordinary possible transformations?

Lord Livingston of Parkhead: The noble Lord is indeed correct that we are seeing much change in manufacturing capability. The Government are investing significantly and have ring-fenced a science budget to assist in many UK projects. We have the “eight great technologies” that we will be investing in, and we are increasing the links between companies and universities; I commend the universities on that. We are certainly supporting the advanced manufacturing capabilities as well as a number of other technologies that we believe will really help the UK to go forward, investing in the right industries that will grow in the future.

Lord Naseby (Con): Is the Minister aware that the extra resources being put into exports are enormously welcome, but that the weakness is still the marketing of those resources and the facilities that they provide, particularly on export finance to the SME market in general? Secondly, the Queen’s award for exports is looking exceedingly tired and is long overdue a revamp. Finally, if we are sending and attending conferences overseas on exports, can we please appoint a Minister early in the process and not turn up at the last moment, as my poor noble friend Lord Marland had to do in Colombo? He still did a very good job, but it was late in the day.

Lord Livingston of Parkhead: There are a number of questions there. At this point, I am probably not looking to rebrand the Queen’s award for exports, as the Queen does seem to be the right person to award it. In terms of UK Export Finance, my noble friend does make a good point; UK Export Finance has predominately supported larger companies. We have, however, doubled the number of regional advisers for UK Export Finance, and we have launched a new product aimed at assisting smaller companies. In fact, I was at the meeting of the all-party parliamentary group on this issue, and I heard a number of small and medium-sized businesses commending the work of UK Export Finance, but there is more work to be done.

Lord Stevenson of Balmacara (Lab): My Lords, I welcome the noble Lord to his Front-Bench appearance and look forward to working with him in future. He will be aware of the publication of Good Business in September 2013, which is welcome because it puts into effect the Government’s commitment to implement the UN guiding principles on human rights. It is somewhat long on rhetoric, and a bit short on action, but one of the commitments it makes is to adjust government rules to allow human rights-related matters to be reflected in the procurement of public goods, works and services. Will he explain what is happening on this matter?

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Lord Livingston of Parkhead: In terms of procurement rules—and I will talk in relation to exports, as procurement within the UK will be a different matter—we absolutely look at human rights, and discuss the subject regularly with many of the NGOs involved. We look at the relevant UN guidelines, and we will of course look to and abide by the appropriate and relevant guidelines from the UN. Government procurement is another matter and perhaps should be left for a different question.

Lord Wright of Richmond (CB): My Lords, does the Minister accept that it is wrong to talk about encouraging businesses to export without drawing attention to the worldwide resource provided by the Diplomatic Service? It is very anxious to do everything it can to help both businesses and chambers of commerce wherever they want that help.

Lord Livingston of Parkhead: That is an excellent point. I commend the ambassadorial network; I have seen its work both as a Minister and as an exporter. Its enthusiasm and positivity to assist the UK in increasing exports is to be commended. In fact, the work of the FCO and its focus on our export efforts has been excellent. We will continue to work very closely; of course, as a Minister I am part of FCO as well as being part of BIS, and that reflects the important role that the Foreign Office has in exports.

Lord Stoneham of Droxford (LD): The Government have set out a system of trade ambassadors to promote exports in particular countries, involving a number of Members of this House. Has an assessment been made of the effectiveness of this system and initiative, and what plans are there for its future expansion?

Lord Livingston of Parkhead: Trade envoys have been established to assist in countries to which government Ministers do not make regular visits. I commend the various Members of the House who act as trade envoys and thank them for their hard work. We are reviewing the success of the trade envoy programme, and how we could perhaps expand it slightly into new areas. When it works well, it is certainly helpful. We combine enthusiasm, expertise and knowledge in particular countries to assist us in increasing our overall exports and relationships with those countries.

Legal Aid


3.30 pm

Asked by Lord Clinton-Davis

To ask Her Majesty’s Government what is their response to the protests by lawyers on 6 January concerning further cuts to legal aid.

Lord Ahmad of Wimbledon (Con): My Lords, we have engaged constructively with lawyers over a period of many months and we continue to do so. However, the fact remains that we have one of the most expensive

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legal aid systems in the world and in the current economic climate this is not sustainable for taxpayers, who fund it. We have to find efficiencies to ensure that legal aid is sustained and available for those most in need of a lawyer.

Lord Clinton-Davis (Lab): I thank the Minister for that uninformative Answer. Does he recognise that the Justice Alliance, representing a large number of people and organisations and many senior judges, has expressed its concern about these proposals? Is it not the case that these cuts will lead to more, not less, expenditure, that cases will be bound to last much longer when people are unrepresented, that there will be a reduction in standards and that there will be more miscarriages of justice and an inevitable increase in guilty pleas? Is not the Minister concerned about all those things, as expressed by reputable organisations?

Lord Ahmad of Wimbledon: My Lords, the Government have undertaken to listen, consult and work with the profession, and we continue to do so. However, in the current economic climate and indeed with the crisis that we inherited, we needed to look across the board to ensure that efficiencies could be had. Even with the efficiencies that we will be making from this series of cuts, £1.5 billion will continue to be spent on legal aid—a figure that is among the highest in the world.

Baroness Butler-Sloss (CB): My Lords, does the Minister appreciate that the figures that the Government have been giving for the incomes of members of the criminal Bar refer to turnover before VAT, tax and chambers expenses are taken off, and that therefore these figures are utterly misleading?

Lord Ahmad of Wimbledon: My Lords, the Government and indeed my honourable friend Shailesh Vara, who is the legal aid Minister, have made it quite clear that when we have referred to these figures—for example, the average figure of £84,000—they have related to fee income. The Government recognise that costs are to be taken from that fee income, and we have talked about that.

Lord Anderson of Swansea (Lab): My Lords, one feature of the stand-off is that the representatives of the criminal Bar and the Government are quoting very different figures for earnings—not just the net and gross earnings. Would it not be helpful as a basis for negotiation to try to agree with the representatives of the criminal Bar a common basis for the actual earnings?

Lord Ahmad of Wimbledon: I repeat my assurance to noble Lords that the Government continue to consult. Indeed, we have just had close to 2,000 responses to the latest consultation on legal aid. As part of those discussions, I am sure that we will take on board the noble Lord’s comment, which seems a very sensible suggestion.

Lord Elystan-Morgan (CB): My Lords, does the Minister accept that over the past few years when there have been discussions concerning cuts in legal aid on a broad basis, the Government have accepted

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that there are massive downstream costs which greatly erode what otherwise might seem to be an attractive saving? Can the Minister tell the House what surveys have been made of such downstream costs and what the results of those surveys are, and, in the event that such surveys were not made, how any Government could have been so monumentally imprudent as to jump into the dark in such a situation?

Lord Ahmad of Wimbledon: My Lords, I am afraid that I do not agree with the noble Lord. This is not a jump into the dark; it is a recognition of the current situation that the Government face across the board and across every department. We are seeking to focus legal aid spending on those who most need it. Spending on legal aid in the UK amounts to about £39 per head. I reiterate that one should look at some of the figures, even making international comparisons. Compared with like-for-like systems—for example, New Zealand at £18, Canada at £10 and Ireland, next door to us, at £20 per head—our legal system will, after the efficiencies are made, still remain one of the best in the world.

Lord Howarth of Newport (Lab): My Lords, the Minister has just spoken of efficiencies. How is it efficient to impair the quality of justice?

Lord Ahmad of Wimbledon: Again, I disagree with the noble Lord. Looking around the world, and speaking for the Benches behind me, I believe that our justice system is one of the best in the world and will continue to be so, despite the efficiencies being made. I do not agree with the picture that the noble Lord paints.

Lord Phillips of Sudbury (LD): My Lords, does my noble friend recognise that solicitors are also essential to criminal advocacy and that there are growing deserts in this country, which will be much accelerated by the cuts, where people will not be able to find solicitors for miles? What is he going to do about that?

Lord Ahmad of Wimbledon: Having just returned from Dubai, I can perhaps relate physically to the picture of a desert, but not in the sense of the legal aid environment. Of course my noble friend is correct to say that solicitors play and will continue to play a crucial and important part, and the Legal Aid Agency will ensure that representation for those who need it will be available.

Lord Forsyth of Drumlean (Con): My Lords, while supporting the Government—

Lord Beecham (Lab): My Lords—

The Chancellor of the Duchy of Lancaster (Lord Hill of Oareford) (Con): My Lords, it is this side.

Noble Lords: No.

Lord Hill of Oareford: It is this side.

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Lord Forsyth of Drumlean: I give way to the noble Lord.

Lord Beecham: I am most obliged to the noble Lord.

My Lords, does the Minister agree that VAT and expenses, to which reference has been made, actually account for 40% of the fees that are currently being quoted? What is his response to those members of the judiciary who are concerned about future recruitment of judges to deal with criminal cases in the likely event of a decline in the quantity and quality of the criminal Bar?

Lord Ahmad of Wimbledon: I believe that I have already answered the noble Lord’s question. The Government recognise that there are costs that are taken across, which is why we quote fee income. As for recruitment into the profession, and as I said, we believe that after these efficiencies are made, the criminal Bar and indeed the legal profession as a whole will continue to be an attractive proposition. We will continue to work with the profession to ensure that the standards and quality of legal representation in our country remain among the best in the world.

Severe Weather

Private Notice Question

3.37 pm

Asked by Lord Wigley

To ask Her Majesty’s Government what additional financial resources they will make available to enable the various relevant public authorities in each part of the United Kingdom to respond to the impact of the recent severe storms.

Lord Wigley (PC): My Lords, I beg leave to ask a Question of which I have given private notice.

The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Stowell of Beeston) (Con): My Lords, I hope that your Lordships will allow me to provide an Answer to the noble Lord that is slightly longer than is customary. Noble Lords might welcome an update on the current situation in line with that given by my right honourable friend the Prime Minister in the other place earlier today.

In doing that, I must first pay tribute to the emergency services, Environment Agency staff, local authorities, voluntary organisations and many members of the public who contributed to the response to the flooding over Christmas and the new year. Tragically, seven fatalities in England between 23 December and 5 January are associated with the severe weather conditions. I am sure that the House will want to join me in expressing our deepest sympathy to their families and friends.

There are currently 104 flood warnings and 186 flood alerts in place across England and Wales. Although the weather has improved, river and ground water levels remain so high that further flooding could come at short notice. There are a number of particular concerns,

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including in Dorset, Wiltshire, Hampshire, Somerset and on the Thames in Oxfordshire. Given these ongoing threats, COBRA continues to meet and is doing so this afternoon.

Recognising the seriousness of the situation, my right honourable friend the Secretary of State for Communities and Local Government announced a Bellwin scheme to support local authorities with the costs associated with the immediate response to protect lives and properties. As of 7 January, my department has received 22 notifications from local authorities that they intend to make a claim under Bellwin for the severe weather events dating from the 6 December east coast tidal surge until now. Equivalent funding for Welsh and Scottish local authorities is a matter for the devolved Administrations.

Lord Wigley: My Lords, I am grateful to the Lord Speaker for permitting this Question, particularly as there was a Statement in the other place on Monday which we were not able to have repeated in this Chamber. I am grateful to the Minister for the Answer that she has given. Perhaps I may associate myself with the sympathy she has expressed to those families that have suffered bereavements in these tragic circumstances.

Does the Minister accept that in some areas, such as Aberystwyth and other parts of the Ceredigion coast, and, indeed, the Pembrokeshire coast, the damage was so acute that it may run into many millions of pounds to put right, well beyond the resources of small local authorities, and that the National Assembly for Wales has a very limited contingency reserve capacity? Can she give an assurance that the Treasury will help out on a basis of the needs of such areas and that that principle will be applied not only in Wales but throughout the United Kingdom?

Baroness Stowell of Beeston: The noble Lord raises a question on support and funding which goes beyond the immediate process that is available to local authorities. As he knows, and as he indicated in the question that he has just put to me, the funding that local authorities in Wales may require is very much part of the Welsh Assembly’s arrangements. The funding that they may receive from a similar kind of Bellwin scheme in Wales would be a matter for the Welsh Assembly. I am not in a position to offer any further information at this time as to what the Government might do beyond the Bellwin scheme.

Lord Morris of Aberavon (Lab): My Lords, in the event of the Treasury providing assistance for England, will it provide an increased amount to meet the Welsh Assembly’s need for expenditure in Wales?

Baroness Stowell of Beeston: As I said, the normal response to situations of the kind we are experiencing at this time is for the Bellwin scheme to come into force. As noble Lords will know, this is a tried and tested scheme that has been in place for a substantial period of time and has worked well. The noble Lord is suggesting something in addition to that and I am not in a position at this time even to suggest that it is necessary for us to go beyond the Bellwin scheme.

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Lord Deben (Con): Does my noble friend accept that the costs of cleaning up after floods are considerably greater than the costs of protection from floods? Therefore, now that the Prime Minister, the Leader of the Opposition and the official spokesman for the Liberal Democrat Party in the House of Commons have admitted the connection between climate change and flooding, can we expect that the Government will re-assess the on-going spending on flood prevention in the United Kingdom?

Baroness Stowell of Beeston: My noble friend raises an important point. On our investment in flood defences, it is important to make the point that this Government’s overall investment is higher than ever before. We announced in the Autumn Statement before Christmas—this has not happened before—a commitment to a protected, long-term, six-year capital settlement for flood defences. This will lead to £400 million a year by 2021 and will mean that a further 300,000 other properties are protected beyond those that already are.

Lord McKenzie of Luton (Lab): My Lords, we join in paying tribute to all of those who are working in difficult circumstances to tackle these dreadful adverse consequences of our weather conditions and welcome the Bellwin scheme announcements. However, we have obtained figures in a Parliamentary Answer which make it clear that the Government have reduced investment in flood defences by as much as £100 million in real terms, lower than the level they inherited, from £646 million in 2010 to £527 million this year and £546 million in 2015. How does the Minister justify the claim that has just been made? How does she justify the proposed one-third cut in the budget of local flood authorities for 2015-16 that has just been announced in the local government finance settlement?

Baroness Stowell of Beeston: On the noble Lord’s first point, as I have said, this Government are investing more than £2.3 billion on flood defences in this spending review period and the overall investment, when that is combined with local authority and private sector expenditure, is higher than in the previous four years. As for any reductions in budgets, as the noble Lord will know, because he will have heard my honourable friends make the same point, in any reductions to budgets, necessary budget cuts that we have had to make because of economic situations, front-line flooding services are not affected.

Lord Elystan-Morgan (CB): My Lords, as one who lives near Aberystwyth and is proud, indeed, to have been born in that town, I suggest to the Minister that the situation not just in Aberystwyth but in many other places on the Welsh coast that have been so badly hit is far more desperate than the Government seem to appreciate. The scale of storm destruction is such that it is impossible for local authorities or, indeed, the Welsh Assembly to render proper remedy. Although Westminster exercises sovereignty over the land and nation of Wales, with that sovereignty there is also a high and heavy moral responsibility to assist in situations of crisis such as these.

Baroness Stowell of Beeston: I understand the point that the noble Lord is raising. In responding to the situation and ensuring that those who are affected are

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properly supported, we would expect that to be the same whoever is affected and wherever in the United Kingdom they may be. As I have made clear, and as the noble Lord understands, this is a devolved matter. The Government are at the present time introducing the Bellwin scheme. We believe that that is the proper approach and we look to the Welsh Assembly to consider what action it should take.

Baroness Parminter (LD): My Lords, my family was one of the 750,000 in this country without power for some time over the Christmas and new year period—in our case for four days, on and off, including Christmas Eve and Christmas Day. I pay tribute to the companies, local authorities and volunteers who kept our local community in Godalming going. I applaud the Government for their decision last year not to merge the Environment Agency and Natural England. That would have resulted in a critical loss of focus by the Environment Agency from its core function of responding to flood defences. That was a wise move. However, bearing in mind the need to ensure that we plan in the future for such inevitable further extreme weather events, will the Department for Environment, Food and Rural Affairs soon be in a position to say which policies and programmes it will have to cut in order to make the savings of £300 million in the next two years so that we can plan properly for any future emergency events?

Baroness Stowell of Beeston: First, I echo my noble friend’s points about the real, serious effects that some people have had to contend with, particularly those in some parts of the country who were without power for substantial periods. It is worth my saying, as the Prime Minister made clear earlier today, that while the overall response to these situations has been good, a small number of organisations have not been good enough in their response. There are lessons to be learnt and we will ensure that they are. I can inform the House that the Secretary of State for Energy and Climate Change is meeting distribution network operators and Ofgem today to discuss power.

In response to my noble friend’s specific point, I make the same point that I made earlier, which is that in the savings that are being made in the Environment Agency, the chief executive of that agency has assured my right honourable friend that he has every intention of protecting front-line services concerned with flooding.

Anti-social Behaviour, Crime and Policing Bill

Report (1st Day)

3.49 pm

Clause 1: Power to grant injunctions

Amendment 1

Moved by Lord Dear

1: Clause 1, page 1, line 8, leave out from “in” to end of line 9 and insert “anti-social behaviour.

( ) Anti-social behaviour is—

(a) conduct that has caused, or is likely to cause, harassment, alarm or distress to any person, or

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(b) in the case of an application for an injunction under this section by a housing provider or by a local authority when exercising similar housing management functions, conduct capable of causing nuisance or annoyance to any person.”

Lord Dear (CB): My Lords, in moving Amendment 1, I want to be absolutely clear on one thing: anti-social behaviour can be, and often is, a blight on society and on those who suffer as victims of individuals who care only for themselves—people who are thoughtless, selfish or deliberately provocative. I believe, as many in your Lordships’ House will, too, that the law should continue to try to prevent that happening and to offer relief to those who suffer from that sort of behaviour. Their well-being is precious. On the other hand, civil liberty is precious, too, and a balance has to be struck between those two requirements.

My amendment is largely concerned with that balance and with a search for certainty, precision and clarity. It is concerned with the legal requirement that the law should be precise and not undermine fundamental human freedoms. The amendment is of course also about anti-social behaviour but the primary issue is an important and very long-established jurisprudential principle. From at least the days of Halsbury, it has been recognised that the law should be clear, reasonable, precise and unambiguous. People must know what the law demands of and grants to them. That principle is followed in all developed democracies. For example, in the USA the void for vagueness doctrine allows a statute to be struck down if it lacks sufficient definiteness or specificity so that:

“Men of common intelligence cannot be required to guess at the meaning of the enactment”.

That is from the case of Winters v New York in 1948.

Existing ASBO and public order legislation addresses anti-social behaviour by defining it in those circumstances as conduct that causes harassment, alarm or distress—a threshold test accepted by lawyers and lay people alike that has been well understood after years of judicial interpretation and never seriously challenged or openly criticised as too restrictive in scope. The Bill before us seeks to replace that three-word threshold test of harassment, alarm or distress with two new words: “nuisance or annoyance”. In so doing, it will open the door to uncertainty, confusion and legal injustice. Most of Clause 1 is concerned with the mechanics of the new injunctive procedure but the threshold test is the pivotal point around which everything else revolves. To put it another way, it is the foundation upon which all that is new will be based. The present threshold test of harassment, alarm or distress is about to be replaced with the altogether more imprecise words “nuisance or annoyance”. In other words, the net is being cast much wider—far too wide, in my opinion.

I am grateful to those who have supported me in tabling this amendment. The noble and learned Lord, Lord Mackay of Clashfern, was one of the most respected Lord Chancellors in the past half-century. The noble and learned Lord, Lord Morris of Aberavon, was an eminent Attorney-General. Both are signatories. So, too, is the noble Baroness, Lady Mallalieu, who brings a wealth of experience at the Bar as a practising QC and who spoke on 18 November in Committee on my behalf when I was unavoidably prevented from

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being in my place. That day, she tabled in my name a very similar amendment to the one we consider now. I am grateful to her for setting out the proposition with great skill—cogently, powerfully and persuasively.

She reflected that the law should be precise and not undermine fundamental human freedoms. She recognised that anti-social behaviour was a serious problem but that action to deal with it should be balanced against the need to preserve civil liberties. She reminded the House that the Commons Home Affairs Committee had said that Clause 1 of the Bill is “far too broad”. She paid tribute, as I do now, to the opinion—widely circulated in your Lordships’ House—of the noble Lord, Lord Macdonald of River Glaven, a former Director of Public Prosecutions, who roundly attacked the Bill saying that, “Nuisance or annoyance”, is a phrase,

“apt to catch a vast range of everyday behaviours to an extent that may have serious implications for the rule of law”.

He went on to say:

“In my view, the combination of a low and vague threshold for the behavioural trigger, coupled with the civil standard of proof, creates an unacceptable risk that individuals will inappropriately be made subject of a highly intrusive measure that may greatly impact on their fundamental rights”.

It is not only Members of this House and of the other place who are concerned. A wide, and even disparate, range of organisations and civil liberty groups have expressed the same opposition. Justice, Liberty, the Criminal Justice Alliance, the Standing Committee for Youth Justice, Big Brother Watch, the National Secular Society on the one hand, the Christian Institute on the other, the Association of Chief Police Officers and many more have all said the same thing. A letter was published in the Times on 10 June last year in which around two dozen organisations expressed opposition to the phrase “nuisance or annoyance”. It reminded us that an injunction in those terms could be applied to anyone over the age of 10. It reminded us that it was subject to a new burden of proof, lowered to the civil burden on the balance of probabilities. It reminded us that it is open to indefinite duration and does not require any form of intent, and that a breach of the injunction can result in serious sanctions, including imprisonment.

I have a distinct feeling of déjà vu in speaking to this amendment, for it was only just over 12 months ago, on 12 December 2012, that I proposed an amendment to remove the word “insulting” from Section 5 of the Public Order Act 1986. The ingredients of that debate were strikingly similar to the issues today. Again, an important legal freedom was then at stake. The word “insulting” had been employed more and more to curb the exercise of free speech in public. That fundamental right was being abused. More and more, police and prosecutors were unwilling to exercise discretion—some might say that they were unwilling to exercise common sense—and they increasingly deferred to the courts for a decision. That increased the growth of the chilling effect, the definition of the word “insulting” became blurred, injustice increased and confusion reigned. Your Lordships agreed that amendment, voting 3:1 with a majority of almost 100 to strike “insulting” from the statute on the ground that it was no longer precise enough. The only real difference in that exercise a year ago and today is

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that then I was able to cite a very long catalogue of examples of the results of poor legislation, and today we can only anticipate that such a list will develop—albeit an anticipation with some confidence.

No doubt it is to avoid an identical problem that the Association of Chief Police Officers has advised that, although it broadly supports the new IPNA, it believes that the suggested threshold is unreasonably low and it, too, advocates a return to the “harassment, alarm or distress” test.

With all those examples of the results of imprecise and vague legislation, I am frankly at a loss to understand why the Home Office is so eager to repeat the exercise, yet again facing a solid wall of resistance from experienced groups and learned individuals. I can but recall the words of the 1960s protest song—“When will they ever learn?”.

The phrase “nuisance or annoyance” has been borrowed, or perhaps lifted, from the context of existing housing legislation, which involves of course neighbours living in close proximity. In those special housing circumstances it is clearly almost impossible simply to move out or to look the other way or pay no attention. The present test in the housing sphere is restricted to conduct affecting the management functions of the landlord. What is appropriate in an environment with two-inch-thick party walls, or with 10 or more front doors opening onto a balcony on the fifth floor of a tower block, or with cramped lifts and common parts, all of that is clearly inappropriate, surely, in a public square.

Nuisance or annoyance, I would maintain, cannot and should not be applied to the countryside, the public park, shopping malls, sports grounds, the high street, Parliament Square, Speakers’ Corner and so on, because that risks it being used against any of us and against anyone in society. That risks it being used against those who seek to protest peacefully, noisy children in the street, street preachers, canvassers, carol singers, trick-or-treaters, church bell ringers, clay pigeon shooters and nudists—yes, they, too, have raised objections with me and, I know, other Members of your Lordships’ House.

4 pm

We live on a crowded island and we must surely exercise a degree of tolerance and forbearance. I shall continue to be privately annoyed by those who jump the bus queue, those who stand smoking in large groups outside their office, drinkers who block the footpath outside a pub on a summer’s evening, those who put their feet on the seats on public transport, those who protest noisily outside Parliament or my local bank, but none of that should risk an injunctive procedure on the grounds of nuisance or annoyance. I and those who support me are content to leave the test of nuisance and annoyance in place in the housing context, where it is well tried and proven. We strongly resist its use elsewhere and do not see our concession to housing law as a weakness in our case. Rather, we see it as a strength, distinguishing, as it does, the essential difference between the two environments.

I said that I would be brief. In conclusion, I pay a small tribute to the Minister, who has tabled an amendment introducing a test of reasonableness. I applaud his concern but not the practicality, because

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that test, too, suffers from a problem of definition. I do not believe that it is enough to rely on a court considering it,

“just and convenient to grant the injunction”,

as set out in the second limb of Clause 1, or on the draft guidance for front-line professionals published in October last year, or on the insertion of the word “reasonable”. None of these will overcome the inherent flaw in the new test: the pivotal words “nuisance or annoyance” are vague and imprecise. The only certainty is that practitioners will leave it to the courts to decide, and thus introduce a chilling effect on lawful conduct, as they did for years when faced with the word “insulting” in the Public Order Act. We know only too well what difficulties that caused. Even in the court room, “reasonable” is itself subjective, and coupled with the lower burden of proof and vague and imprecise terminology, employing words that are hitherto untested in the courts, we will set the scene for confusion and inequity, for courts cluttered with inappropriate actions and for a wave of unintended consequences.

I conclude with the point with which I began. The amendment is about certainty and clarity, with the legal requirement that the law should be precise and should not undermine fundamental human freedoms. I contend that the Bill as drafted does not comply with that.

One last thought: in Charles Dickens’s novel Bleak House, when the case of Jarndyce v Jarndyce was in question, the cynical lawyer Mr Vholes commented:

“The one great principle of English law is, to make business for itself. There is no other principle … maintained”.

As it stands, the Bill will certainly expand the business of law. That should not be our aim today; our aim should be a search for precision, clarity and certainty. I beg to move.

The Lord Speaker (Baroness D'Souza): I should perhaps remind your Lordships that if this amendment is agreed to, I cannot call Amendment 2 by reason of pre-emption.

Baroness Mallalieu (Lab): My Lords, my name has been added to this amendment. The noble Lord, Lord Dear, moved it with his customary reason and calm; I fear that I shall not be following in quite the same vein.

Whoever thought up Clause 1 and managed to slip it under the radar of the other place is a strong contender for some kind of award. Perhaps it should be a citation for attempting to increase the power of the state to interfere in people’s lives; perhaps a golden globe for providing the authorities with a new and easy-to-discharge weapon in the war against inconvenient and annoying expressions of dissent; or perhaps even an Oscar for thinking up a way to take out those who are a nuisance or annoyance in any one of a thousand unspecified ways—and doing it in a manner that admits virtually no defence or safeguard and that requires the minimum of evidence.

Those on whom the Government propose to confer this extraordinary power are fully set out in Clause 4. Apart from the housing providers, to whom I will come shortly, they include the Environment Agency, all local authorities, British Transport Police, Transport for London, the Secretary of State for Health—and, of

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course, the police themselves. In other words, they are in every single case an arm of the state. The proposed definition in Clause 1(2), that the respondent must be someone who,

“has engaged or threatens to engage in conduct capable of causing nuisance or annoyance to any person”,

has been adopted, as we have just been told, from a very limited provision, carefully restricted to conduct affecting the housing management functions of the relevant landlord. Both the applicant and the respondent are carefully defined. It is intended to assist a housing provider to control the behaviour of neighbours—tenants—living in close proximity who, as has been said, cannot simply look the other way, pay no attention or move easily—and in a situation where, because of fear, evidence may be hard to obtain.

The Government propose to take this particular power, designed for the particular problem of anti-social neighbours, and give it to a wide range of state bodies for use without restriction against absolutely anyone. The amendment of the noble Lord, Lord Dear, recognises the force with which many housing providers have lobbied us between Committee and today. They wish to retain that power in their own very limited and special context. Under this amendment, they would do so.

In Committee—and I anticipate more of the same later when the Minister replies—the response of the noble Lord, Lord Taylor, to my similar amendment on the ASBO definition that this amendment seeks to retain, was, “You are not thinking about the victims”. By that he clearly means those who are on the receiving end of anti-social behaviour. I have to say that he is wholly wrong in that. It is precisely because we are concerned about those who are harassed in our hospitals, caused alarm on public transport, or distressed by the conduct of others in the street that we want to see this legislation targeted at that behaviour.

In reality, most anti-social behaviour that the public worry about is already covered by existing criminal law offences under criminal damage, public order and harassment laws. There are unquestionably problems of court delays at present—and not just with ASBO applications. Inadequate resources for police, prosecuting authorities and courts are all factors. Ironically, by making IPNAs so much easier to obtain than ASBOs, for a far wider range of behaviour, and with a lower evidential burden, there is a real prospect that Clause 1 will slow down the courts by clogging them with myriad IPNA applications and will be of little help to real victims in need of urgent help.

I also remind the Minister that there are other victims of whom he appeared to take no account. They include those against whom an allegation is made that is unfair, unwarranted or untrue, or without any proper evidential basis. There is no defence of necessity or lack of intent in the Bill. I see no compensation provisions for a wrongful injunction, or any of the safeguards that normally attach to a civil injunction, especially when the defendant is not present at the initial hearing. This is all worrying, but particularly worrying for me is the lower burden of proof that is now proposed. However, my main concern is the extent to which lowering the threshold to behaviour,

“capable of causing nuisance or annoyance to any person”,

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has the potential to undermine our fundamental freedoms, and in particular the way in which the proposed law might be used to curb protest and freedom of expression.

In exercising my personal right to protest in the past, I readily accept that I have on a number of occasions been guilty of conduct capable of annoying someone. Every march that delays traffic, every rally that overcrowds public transport or pavements, and every demonstration with loudspeakers, whistles and horns is no doubt capable of causing nuisance or annoyance to someone, and is usually a headache for the authorities, too. I suppose that there are Members of your Lordships’ House who have never attended a rally, demonstration or protest march, but I would place a small wager that they are in the minority. In a lifetime of attending protests, from Aldermaston as a child to the countryside march and many in between, if I have caused annoyance or nuisance, I hope that I have never caused harassment, alarm or distress to anyone.

Quite simply, the Bill currently sets the barrier too low. It threatens fundamental freedoms and, importantly, it undermines tolerance, which is surely an essential quality for living happily in an overcrowded island such as ours. Speaking in a rather different context but saying what I think is appropriate, Lord Justice Sedley some years ago put it rather well. He said:

“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having”.

To try to prohibit behaviour that is capable of annoying someone is a step far too far, and I hope that this House will do what the other place overlooked and stop it.

Lord Mackay of Clashfern (Con): My Lords, I support this amendment; I have signed it and I believe that it is amply justified. As the noble Baroness has just said, one of our fundamental freedoms is the freedom of speech. Surely it is clear that in exercising that freedom, one may annoy one or more other people. From time to time in this House I have witnessed a Minister explaining his present difficulty by reference to the behaviour of the previous Government, and one immediately senses annoyance on the opposite Benches. If I have an opinion which I know some or many people will disagree with, surely I am entitled to come out with it. Do I have to reasonably consider whether it will cause annoyance to somebody else, and if it would, what should be the consequence? Am I to muzzle my point of view to placate people who might be annoyed? It is absolutely plain that “annoyance” in this context, with a wide application, is inappropriate for this purpose.

The position taken up by the Government hitherto, so far as I understand it, is that this definition has been tried and tested in the courts for some 15 years. But definitions in their application are subject to the context in which they are used, and this use has been in the context of social housing and its enforcement has been in the hands of the responsible authorities for social housing. You cannot imagine an authority in that field trying to stop a street preacher, for example, on the basis that he was annoying the passers-by by the denunciations that he was pronouncing against their acknowledged conduct. It is not the same context at all, and the context influences the proper interpretation.

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4.15 pm

It is certainly possible to consider amendments. The Government have come out with one in which they replace the clause which was in the Bill originally by “reasonably be expected to occasion annoyance”. I do not see that that helps in the slightest because the real difficulty is the definition of what is reasonably caused, not whether it is reasonably caused. Indeed, in some aspects this could be regarded as slightly widening the context of what was in the Bill before in the sense that it does not actually need to cause so long as it is reasonably expected to cause. That is a very small point that occurred to me just looking through it.

“Just and convenient” is used as a condition of the granting of this injunction. I find that hard to apply in the circumstances of this case. If something is just, does it not go forward because it is inconvenient to the respondent? That does not seem very sensible. I do not think the condition that it should be just and convenient adds anything to provide against the effect of the basic definition.

The use of the word “reasonably” has been suggested in relation to later amendments as a defence in this situation. But is it not reasonable for me to express my opinion even if I know that somebody will disagree with it? Earlier I gave an illustration from this House of a Minister on this side blaming the previous Government for whatever is the cause of the difficulty. Certainly such a view could be reasonably anticipated to cause annoyance on the other Benches—one has seen it often enough. The difficulty is in relation to the definition and to the absence of any safeguards which would prevent the application of that definition to inappropriate circumstances. There are various ways in which this might be approached and I strongly urge your Lordships to support this amendment unless my noble friend is able to indicate that these matters will be considered further.

I understand that the Government do not intend this to apply, for example, to street preachers, but the problem is that the definition as stated would, for the reasons which we have heard, quite clearly encompass that kind of conduct. The idea that guidance can deal with this seems to be quite aside from the real difficulty, because I do not believe that guidance can alter the substantial issue raised by the statute. The idea of the Home Office giving guidance to the courts strikes me as a slightly difficult concept for the courts to accept. Apart from the kind of interpretation which is given as a result of statements made in this House when an amendment is put forward, guidance to the courts by the Executive would be regarded as being of a rather doubtful constitutional propriety. Unless something can be done to alter this definition or the circumstances of its application, I urge your Lordships to support this amendment if, in due course, the noble Lord, Lord Dear, decides to test the opinion of the House.

Lord Morris of Aberavon (Lab): My Lords, I have added my name to the amendment tabled by the noble Lord, Lord Dear. Like him, for as long as I can remember the Home Office has been bringing forward ill thought-out proposals with little regard for the consequences. Parliament scrutinises them, and they are from time to time defeated. I, like the noble Lord,

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thought that some lessons would have been learnt from our debate on “insulting”. I fear that from time to time the Home Office does not fulfil its purpose as the guardian of our liberties and a watchtower against the infringement of those liberties. I can go back a long time. Over the decades, Parliament has been concerned with loads of proposals of this kind which have not been thought out because they emerge from the fortress mentality of the Home Office, which imprisons so many Home Secretaries of all parties.

We have heard many objections, which I shall not repeat, to these proposals to lower the threshold and inevitably catch a much larger number of people than Parliament would want. As a lifelong criminal law practitioner, I, like the noble Lord, Lord Dear, give the highest of values to the importance of certainty, and the European Convention on Human Rights affirms the common law. When she agreed to the removal of the word “insulting” from Section 5 of the Public Order Act, the Home Secretary, informed Parliament that:

“There is always a careful balance to be struck between protecting our proud tradition of free speech and taking action against those who cause widespread offence with their actions”.—[OfficialReport, Commons, 14/1/13; col. 642.]

I agree wholeheartedly with the need for a careful balance. This proposal, including the Government’s amendment, is the wrong side of that balance. “Harassment, alarm or distress” is well tested by the courts and in its application. “Nuisance or annoyance” is such an elastic term that it could, if it were applied widely, be used as open-ended machinery to catch all sorts of people who really should not be before the courts. Somebody with a placard saying that the end of the world is nigh, a preacher or maybe a politician on the street during an election may well be caught because they will certainly cause annoyance to someone. Are those the kinds of people that we want to haul before the courts?

The Government say that their formula is hallowed and supported by 15 years of case law and is readily understood. The reality is that it has been tested only within the narrow confines of housing-related cases, and there are limitations on who can bring such actions. Like all former constituency Members, I have experience of dealing with housing problems. I can affirm that there is sometimes a need for strong action to be taken in cases where people are stable and cannot move. You have to do something to try to remedy that situation. There may be strong arguments for a lower threshold there, but to extend that lower threshold in a situation which has been tested only in the housing section is a bridge too far.

I fear that the Government’s amendment does not help us; it merely underlines the situation and may indeed make it worse. The test to be satisfied is the balance of probabilities. I heartily disapprove of such a test, which can ultimately lead to a loss of liberty for the individual for disobedience. The court must consider and decide whether it is,

“just and convenient to grant an injunction”.

What on earth does that mean? Convenient for whom? Just is perhaps a slightly easier concept, but I wonder how far it has been tested. We are familiar with the

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concept of the interests of justice, but “just and convenient”? One is horrified that this kind of clause, these kinds of words, are put in a statute at all.

For the existing ASBOs, the test is, of course, the criminal one of proof beyond reasonable doubt. The alleged burden is well known and well established, and when it is suggested here that the order must be shown to be necessary, why do we have to depart from the long-hallowed practice, which has been tested?

I support, and pray in aid, what the noble Baroness, Lady Mallalieu, said when she quoted Lord Justice Sedley. I shall not repeat the words, which are still ringing in our ears; I shall merely say that, as the noble Baroness told us, he finished by saying:

“Freedom to speak … inoffensively is not worth having”.

We do not want to catch people who merely annoy, or merely cause a nuisance. There must be a higher threshold.

It was my duty, as Attorney-General, to consider prosecutions when anti-Semitic material was published. Even that legislation could be said to be an infringement of free speech, but over the decades there was material so unacceptable that it had to be dealt with firmly. Where my discretion had to be exercised, I tried to approach the decision with the greatest care. Deciding not to prosecute was probably more difficult than deciding to prosecute. There have been other limitations on free speech over the years, and when Parliament attempts to limit free speech, each and every one of those limitations must be considered with the utmost care. We must be ever vigilant not to breach the fundamental concept of free speech.

Lord Faulks (Con): My Lords, I fear that I am about to break the consensus. I hope that in doing so I do not cause too much nuisance or annoyance. The amendment in the name of the noble Lord, Lord Dear, and others is rather different from the one that was before your Lordships in Committee. The amendment there sought to include a requirement that anti-social behaviour had to be established beyond reasonable doubt before an injunction was obtained. Given the evidential problems that this would have created, the amendment has sensibly been altered so that it no longer requires a criminal standard of proof before a judge can order an injunction.

I tabled an amendment that reflected the views of the Joint Committee on Human Rights, of which I was a member. We had proposed that a reasonableness requirement should be imported into the definition of anti-social behaviour. In other words, there should be an objective element, to deal with the argument that the whole concept of anti-social behaviour was too subjective. The Government’s Amendments 2 and 3, particularly Amendment 2, seemed to me entirely to meet our concerns, and in this regard I am specifically authorised by my noble friend Lord Lester, who is unable to be here today, to say that he supports the Government’s position and would oppose Amendment 1.

It is clear from the speeches that we have already heard that there is concern that the obtaining of an injunction would be too easy, and that there would be a risk of freedom of speech, freedom of association,

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and the freedom to indulge in activities that some people might regard as annoying, being inhibited. Is this a realistic fear? First, it must be remembered that under Clause 4 the applications can be made only by an agency—for example a local authority, a housing provider or some other such body. That is a defence against inappropriate use. It means that a victim of anti-social behaviour has to go through the filter of a hard-working agency in order to establish the fact that there is sufficient basis to seek an anti-social behaviour order—or, in this case, an IPNA. If it were to be done on the say-so of one individual deciding, perhaps unreasonably or capriciously, that someone else had been guilty of anti-social behaviour, that indeed might be objectionable. But the use of an agency provides an important filter.

At Committee stage, and even at Second Reading, the Minister referred to the guidance. The guidance is given to the front-line professionals—not, with great respect to my noble and learned friend, the courts—to make sure that they do their job correctly. That guidance, which was then in draft, is now, according to an amendment, to be made a specific statutory provision. Page 24 of the advice says that,

“in deciding what constitutes ‘nuisance or annoyance’, applicants must be mindful that this route 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. Agencies must make proportionate and reasonable judgements before applying for an injunction. Failure to do so will increase the likelihood that an application will not be successful”.

4.30 pm

Then we have the safeguard of a judge deciding whether it is just and convenient to order an injunction. First, there is the subjective element which, if the Government accept the amendment, will be there—the reasonableness requirement. But even if the House does not accept it, the judge would have discretion whether to decide that it is just and convenient to order an IPNA. Just and convenient is a well known expression to embrace the general discretion that any judge has to decide whether to make an order. It is one of considerable pedigree, as is “nuisance or annoyance”. I simply cannot see a judge ordering an injunction for any of the sort of trivial matters referred to in the course of the argument—the suggestion that it will apply to carol singers or preachers, for example.

Lord Forsyth of Drumlean (Con): I am following my noble friend’s argument closely, but could he give an example of the kind of thing for which he thinks this provision might provide a remedy?

Lord Faulks: It would provide a remedy for myriad different circumstances—perhaps the sort of behaviour where youths gather specifically under a particular person’s window and regularly play noisy music, are aggressive and perhaps smoke cannabis, providing day by day harassment of individuals.

Lord Forsyth of Drumlean: Surely that would be covered by the present law.

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Lord Faulks: It might be, but the problem is that the test for harassment is fraught with imprecision, as is any test that any Government might provide. Whether something gets over the hurdle of harassment will be somewhat uncertain. No doubt it will be argued in a particular case that it does not go far enough to constitute harassment, but it will nevertheless be anti-social behaviour by anybody’s definition.

Lord Cormack (Con): So what is the objection to having harassment in the Bill?

Lord Faulks: The objection is that there is a risk that the hurdle will be too high and that the judge will say, “This is extremely anti-social behaviour and I profoundly sympathise with the individual but, looked at under the definition of harassment, it does not go quite that far”. That behaviour could be completely ruinous of an individual’s life, but perhaps not have that quasi-criminal description that the substitute definition has.

Lord Berkeley of Knighton (CB): Would “distress” not cover that?

Lord Faulks: The greater test will always include the lesser, but areas that may or may not be considered by a court to get over that hurdle may be profoundly distressing in the non-technical sense to the individual but may not be regarded as sufficiently distressing to come within the definition. There is inevitably a degree of vagueness about any definition, whether you choose the one that the Government choose or the one proposed in the amendment. But I fear that the test is too low.

Lord Thomas of Gresford (LD): Could my noble friend deal with a major objection? An order can be obtained on hearsay evidence, so the judge does not have to hear from somebody who says, “I’ve been distressed or annoyed”; it would be sufficient for someone to say, “I’ve heard someone else describe himself as annoyed because of the behaviour in question”.

Lord Faulks: The question of hearsay evidence is important, and I am glad that my noble friend raised it. One difficulty about the orders is that individuals are often terrified of those who are responsible for the anti-social behaviour. They are terrified of being identified as the source of the complaint. If they have to give evidence, they will not want to do so. They therefore provide their perfectly bona fide complaint to an agency. Hard-pressed agencies will have to assess whether this is de minimis or of sufficient gravity before deciding whether to proceed.

Lord Thomas of Gresford: Is my noble friend saying that the procedure can be based on an anonymous complaint?

Lord Faulks: It can be on the basis of an anonymous complaint, though a judge will need to be satisfied of its substantiality. There are individuals who simply would not seek an injunction if they thought that they could be clearly identified as the source of the procedure. Of course, judges are used to weighing up hearsay

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evidence, which has less weight than direct evidence. A judge is unlikely to make an order if they think that it is double-hearsay or comes from an unreliable source.

Before making an order, a judge also has to decide that it is proportionate and necessary, in accordance with the Human Rights Act. As I submitted, it is no light thing for the agencies to assemble the evidence necessary to satisfy a judge. The Law Society has carefully considered the arguments against Clause 1. Although more than happy to criticise government legislation—and even this Bill, in some respects—it remains absolutely firm in its support of the existence of the power described in Clause 1, fearing otherwise that the hurdle would be too high and that the power to prevent anti-social behaviour would be damaged.

Lord Greaves (LD): My Lords, I am anxious to support the Government on Clause 1, because there is a great deal to be said for the replacement of ASBOs by IPNAs. However, the noble Lord seems to be arguing that the existing test for ASBOs—harassment et cetera—is too high. Is he arguing that, at the moment, people cannot get ASBOs because the test is too high and therefore that it must therefore be reduced for the new IPNAs? In my experience, the problem with ASBOs is that they are very often given for inappropriate things.

Lord Faulks: It is a marginally lower hurdle, but as I understand it—and the Minister will confirm—the choice of words was not an arbitrary matter but the result of a very wide consultation among the professionals concerned in order to reach a test that was sufficient to establish gravity but not so high that the scourge of anti-social behaviour could not be prevented.

In its briefing on this part of the Bill, the Law Society made the point that if injunctions are used in the case of noise nuisance, as an alternative to possession proceedings, they can result in the person or family staying in their home but with restrictions on their conduct, rather than the much more drastic step of eviction. Although an IPNA can be obtained on the balance of probabilities, with or without the amendment, the criminal standard must be satisfied before any breach can be established: that is, beyond reasonable doubt. I respectfully suggest that this provides an extra safeguard, so that this will not result in people being deprived of their liberty inappropriately.

I am also concerned about how coherent Amendment 1 is. It requires “harassment, alarm or distress”—a quasi-criminal test—with the exception, which was not in the original amendment in Committee, of a housing provider or local authority in a similar housing management position. In the case of social housing, the hurdle to be surmounted appears to be lower, so there is a two-tier test for anti-social behaviour, depending on whether you are a private tenant or are in social housing, where an injunction is much more easily obtained. That is hardly a satisfactory distinction, and I wonder how enthusiastic the party is about such a classification.

I do not know, of course, how the party opposite—or at least its Front Bench—regards this amendment. It will be borne in mind that MPs on all sides in the House of Commons were at pains to stress what a scourge anti-social behaviour is to their constituents,

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and that there ought to be substantial and sensible powers to prevent it. Indeed, the shadow Home Secretary said generally of the powers in the Bill that she thought they were too weak.

We are all passionately in favour of freedom of speech, freedom of association—

Lord Elton (Con): Will my noble friend forgive me? He has just said that he cannot understand why there should be a lower test in social housing. Surely the answer is that if you are in social housing you cannot move out of the way, people are free to do what they like to you and you are trapped. Therefore, a lower standard of unsociability has a much greater effect on the person affected. It is exactly the right proportion.

Lord Faulks: Of course I entirely accept the noble Lord’s point that those in social housing may not have options and therefore certainly need the protection at a lower level. My point was that it is rather inelegant to have a different test where there might theoretically be greater room for manoeuvre if there is a private tenant. The test ought to be the same.

I was repeating the fact that I sympathise with all those who have spoken in favour of the various freedoms that we value so much in this country. If we vote in favour of the amendment—if it is put to a vote—we will of course be able to congratulate ourselves and say that we have acted in the finest traditions of freedom. I will have the good fortune of going back to my house where, at least at the moment, there is no great history of anti-social behaviour in the area. Other noble Lords will perhaps be in a similar position. But let us not forget those who are in less fortunate circumstances, who do not have room for manoeuvre and whose lives are made totally miserable by this anti-social behaviour. I fear that if we accede to this argument, we will fail to take them sufficiently into consideration and will make bad law.

Lord Cormack: My Lords, we have just heard an interesting speech from my noble friend Lord Faulks. I am sure that I speak for every Member of your Lordships’ House in congratulating him on his forthcoming move to the Front Bench—because, as we all know, he is to be Minister very soon. It is therefore hardly surprising that he should have spoken with such passion in support of the Bill.

Lord Faulks: I am grateful to my noble friend for his kind congratulations, but I should say that I spoke on this issue in Committee before I was appointed, to very much the same effect.

Lord Cormack: One is tempted to call that “cause and effect”, but I will not.

This noble House concluded its contentious business somewhat earlier than we had expected last night. I went home and turned on BBC Four, on which there was a most remarkable programme on the Salvation Army in which various officers made some extremely sincere but perhaps contentious statements. One gentleman in particular made the point that anyone who did not believe in Jesus Christ, as many of us do, was in fact

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condemned to eternal damnation. Imagine that being said on a street corner or anywhere else. Do we really want to deny people with sincere and genuine beliefs the opportunity of expressing them? I have always felt—although I did not agree with many of the things ascribed to him—that Voltaire had it right when he said, “I detest what you say, but I will defend to the death your right to say it”. That really should be implicit in all our legislation.

I find it somewhat difficult to accept that a Conservative Government or—let me correct myself—a Conservative-led Government are prepared to introduce this lower threshold in the Bill. Although my noble friend Lord Faulks said that it was different from the debate that we had on insulting a little over a year ago, and of course in some senses it is, nevertheless it is similar. It is also very different from what was implicit in the Defamation Act that came into force just a week ago today, whereby we introduced legislation—quite rightly, in my view—that makes it more difficult to engage in frivolous and vexatious complaining.

In this particular provision, in this clause of the Bill —much of which I approve of—we are seeking to lower a threshold and in the process place many people in possible danger of having their civil liberties, including their right to speak as they would, taken away from them. Of course I accept, as my noble and learned friend Lord Mackay of Clashfern accepts, that it is right that social housing should be treated differently—of course it is. In his intervention a few moments ago, my noble friend Lord Elton put that point succinctly and correctly.

4.45 pm

At the moment the definition that is in dispute is ring-fenced; here it would not be. I say to my noble friend Lord Faulks that guidance is not legally binding; guidance is not the law. I would also say to my noble friend Lord Faulks—and to my noble friend Lord Taylor, for whom I have the utmost regard—something that I said not so long ago to the Home Secretary. I do not doubt for a moment her good intentions, but it is not just the road to hell that is paved with good intentions. It is crucial that this House, one of the bastions of freedom and civil liberties through the ages, should not weaken the right of our fellow citizens to be able to speak and to annoy.

We are all frequently annoyed. The noble Baroness, Lady Mallalieu, and I were on the same side in the countryside march. As she knows, we certainly annoyed a lot of people—and those who took a different line certainly annoyed us. But would it be right to slap injunctions on them? Would it be right to curtail that freedom of speech? No, it would not. I absolutely accept that it is not the Government’s intention to catch the street preacher, the carol singer or the Countryside Alliance member, but, of course, one can say two things in response to that. First, if this provision is passed, it passes out of the control of the Government. Secondly, this Government—benign, magnificent, united as they are—are not necessarily going to be in power for ever, much as many of us may regret that.

I really believe that the proposition put before us by the noble Lord, Lord Dear, so eloquently supported by the noble Baroness, Lady Mallalieu, and my noble

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and learned friend Lord Mackay of Clashfern, is a modest proposition but one of enormous and far-reaching importance. I beg the Government to accept it, and, in accepting it, to recognise that what they seek to do in this Bill will not be damaged beyond repair; on the contrary, it will be bolstered.

Lord Blair of Boughton (CB): My Lords, I should like to take further what the noble Baroness, Lady Mallalieu, said about who is going to be involved at the beginning of this process. Whatever the noble Lord, Lord Faulks, said, it is not going to be a judge; it is probably going to be a police officer. I want to think about the use of language and I am going to give two examples of the use of language which distinguishes the word “annoying” from the language in previous Bills about distress and harassment.

I want to take your Lordships back to 1970s Soho where, as a young constable, I was patrolling with a much more streetwise officer. We were approached by a rather large Westminster councillor who was objecting to people handing out leaflets about rent rises. He said that he was really annoyed by this. The officer I was with said, “Well sir, my Aunt Mabel is annoying but I’m not going to let anybody arrest her for just being annoying”. That was in the 1970s. I now want to take your Lordships to the very top of government in 2007. The right honourable Tony Blair has announced that he is about to leave and the right honourable Gordon Brown thinks he is about to be the Prime Minister but he is still the Chancellor. I am sorry that the noble Lord, Lord Reid, is not in his place to confirm this story as he and I were involved in it when he was the Home Secretary. The Chancellor was about to move out of No. 11 with his red briefcase to announce a Budget to a particularly unstartled world when we discovered that a man was standing amid the cameras dressed in a full union jack outfit with a notice saying “John Reid for Prime Minister”. It was reported to me, as commissioner, that the Chancellor was likely to be annoyed; it was pointed out to me in very firm terms that the putative Lord Reid was going to be extremely annoyed; and, as the commissioner, I was annoyed because the Home Secretary was annoyed, but nobody used the terms “harassment”, “distress” or “alarm”.

The difference between simple words relating to annoyance and how they will be interpreted on the street by housing officers, police officers and so on is very important. This is not a matter for judges. People will be told to move on and get out of the road by people who are in authority because that is the easiest thing to do when dealing with somebody who is complaining. This is an absolutely awful piece of legislation and we should avoid it.

Lord Phillips of Sudbury (LD): My Lords, a point that has not been made sufficiently—I think that the noble Lord, Lord Dear, referred to it in his very admirable opening speech—is the extra burden that passing Clause 1 unamended would impose on the police and local authorities. No one should underestimate that. If the only gateway for getting redress for annoying conduct, which I think we all agree is so low a test as

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to be almost meaningless, is via a local authority or the police, does anyone really believe that they will not be subject to a mass of citizen inquiries and applications? Of course they will. Indeed, many people who might be thought a little obsessive will no doubt badger the poor local police endlessly until they get what they call redress—that is, an application by the police for an injunction under Clause 4. Apart from all the more important civil libertarian aspects of this issue, we should not forget the potential extra burden—and, I suggest, vexatious burden a lot of the time—that will inevitably result from Clause 1 going through unamended.

Lord Walton of Detchant (CB): My Lords, I rise briefly to give warm support to this amendment tabled and so ably presented by my noble friend Lord Dear and others. I firmly believe that the threshold in the Bill is set far too low.

I have been a lifelong supporter of Newcastle United Football Club. My friend, the noble Lord, Lord Shipley, who unfortunately is no longer in his place—and I call him “friend” in the social sense, not in the parliamentary sense—is for reasons best known to him, despite having been leader of Newcastle City Council, a Sunderland supporter. If I were to chide him and say that he is foolish to continue to support that team, which has been absolutely hopeless all season, despite beating Manchester United last night, and if I were to say that the team is in fact languishing at the foot of the Premier League and in imminent danger of relegation, I think that he would be extremely annoyed because he is a loyal supporter of Sunderland. If I persisted with that theme, he would reasonably regard me as a confounded nuisance.

If one looks at this clause and interprets it in a strictly literal sense, I would potentially be in breach of this statute if I said those things. In fact, I do not for one moment believe that he would seek an injunction; at least I hope not. Having said that, I believe that the clause is absolutely unacceptable and needs to be amended. There is even a possibility that the clause as drafted could act as a sort of charter for individuals of paranoid personality or malicious intent in leading them to seek this kind of injunction much more frequently than would ever have happened in the past. This clause is unacceptable and I strongly support the amendment.

Baroness Hamwee (LD): My Lords, in response to that I can say that frequently and over decades I have been annoyed and alarmed and distressed by Manchester City.

When I read this Bill I too was concerned about the threshold, but as someone who has something—I know—of a reputation as a fluffy liberal I understand the Bill’s architecture much better than I did when I first came to it. It meets the principles enunciated at the start of the debate. I have understood the context as well, and am reassured that the everyday annoyances that have been used as examples and of which we are all capable will not be caught. Crucially, I have understood that preventing behaviour from escalating and staying out of the criminal justice system are at the heart of this part of the Bill.

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Noble Lords have talked about the body of case law that has been built up in the housing sector; there was certainly an effective, large lobby from it at the earlier stage. I agree with my noble friend Lord Faulks about the difficulties of discriminating between two housing sectors. It is not that one is caught in social housing but not caught in owner-occupied housing—from which it may be very difficult to move—in quite the distinctive way that has been described.

Even as a lawyer I see that “convenient” in the term “just and convenient” has an everyday connotation that seems a bit baffling in this context, but the term has a pedigree, as does the case law built up in the social housing sector. It is quite a hurdle to overcome. Lawyers in this House far more experienced than me may correct me, but I understand the term to incorporate “reasonableness”, “proportionality” and “appropriateness”. I do not see the examples that have been cited as being caught within this; I have seen neither the noble Baroness, Lady Mallalieu, nor even the noble Lord, Lord Cormack, at a rally or on a march, nor many of my friends who might want to be lobbying outside the MoJ against legal aid cuts. It just does not extend in that way, because there is that protection.

Unlike the current ASBO, the IPNA takes offenders directly into the criminal justice system.

Lord Forsyth of Drumlean: I apologise for interrupting my noble friend and am grateful to her. May I ask her the same question I asked my noble friend Lord Faulks? Can she give us a specific example of something that would be prevented by the Bill as it stands?

5 pm

Baroness Hamwee: My noble friend is asking for examples of behaviour. It could be kids kicking a football around on a bit of open ground—which happens on a bit of open ground next to my house. I am lucky enough to live on the Thames but I find it extremely annoying to have discovered that rowing is the most noisy activity: one might not have expected it. It could be a bit of drinking—not drunken behaviour but people sitting around with a can of lager. I know from neighbours’ comments that they feel apprehensive about that and, although there has never been anything for them to be apprehensive about, they just do not like people sitting around drinking cans of lager in public. I also suggest dogs being exercised on the same ground where children play—there are a lot of annoyances in that kind of area. People see me and no doubt think that I am a poor old lady delivering pizza leaflets for tuppence a thousand when I am delivering political leaflets.

Lord Forsyth of Drumlean: Is my noble friend suggesting that all these examples should be capable of being stopped by the courts?

Baroness Hamwee: Of course, if people feel threatened and their lives are badly impinged upon. That is what the Government are trying to prevent by this Bill. I do not want to downplay the impact of some bad behaviour on many people who react in a way in which I would not necessarily react, but the impetus to prevent—

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Baroness O'Loan (CB): Can the noble Baroness explain precisely how judges are supposed to interpret a threat and a feeling of being threatened from the words “nuisance” and “annoyance”? Also the use of the word “threatened” would indicate a much higher threshold.

Baroness Hamwee: I would say because of the context of the Bill, the clear policy underlying it and the evidence that would have to be given. I have heard the exchange about hearsay evidence but a judge has still got to be convinced that it would be just and convenient, and therefore proportionate, as I understand it, to grant an injunction.

Lord Morris of Aberavon (Lab): When the noble Baroness uses the word “frightened” is she not arguing the case for maintaining the present position of causing harassment, alarm or distress?

Baroness Hamwee: Of course, these things are all subjective to some extent and perhaps that was an inappropriate word for what I was trying to describe. However, with what is reasonably frightening one is attempting to put objectivity into it; what may be unreasonably frightening would fall into a different category.

Perhaps I may now refer to the preventive nature of the provisions and say that, in considering whether the clause impinges on the fundamental freedoms of individuals—and we are talking here about individuals and not peaceful assembly—the convention rights, including freedom of expression, are protected in any event, as I understand them. The Minister will no doubt explain that the Government have responded to the JCHR’s concerns.

I have been critical about the reliance in the Bill on guidance. I agree with the noble and learned Lord, Lord Mackay of Clashfern, about it not being appropriate to give guidance to the courts—I made that point at the previous stage—but they would not be guided in the way that the potential applicants listed in the Bill would be, and the guidance will now be statutory.

The noble Baroness the Lord Speaker has confirmed that the second amendment—the reasonabless amendment —would fall if this amendment were agreed to. I finish by saying that I will still feel free to annoy people by delivering leaflets and by expressing minority opinions. I fear that, as a child of the 1960s, the musical exhortation has not persuaded me.

Lord Howarth of Newport (Lab): My Lords, the noble Lord, Lord Faulks, was right in this, at least in drawing attention to the scourge of anti-social behaviour. When I represented the constituency of Newport East I was all the time aware that there were households and, indeed, communities whose lives were very seriously blighted by anti-social behaviour. There is enormous political pressure on MPs representing constituents to find ways to crack down more aggressively and more effectively on such behaviour patterns. That pressure is, of course, amplified by the tabloids.

That is precisely why we should be moderate in this matter, why we need to be restrained and why we must try to get the right balance. Therefore, the provision in law that a threshold of “harassment, alarm or distress”

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must be exceeded seems to me to strike the right balance. I think that it is dangerous and improper to lower the threshold to “nuisance or annoyance”. It is surely unthinkable that we should risk introducing legislation that could impair the rights of people to go on demonstrations, as my noble friend Lady Mallalieu offered as an instance, or of kids playing football in the street, as the noble Baroness, Lady Hamwee, worried about. There are all manner of other innocent behaviours that are, indeed, annoying, but that in a free society we should not dream of legislating to prevent.

The noble Lord, Lord Faulks, did not annoy me—he never could annoy me—but he startled me with the arguments he scraped together in his gallant speech in support of the Government’s position. He asked: is it a realistic fear that people would be subject to IPNAs for trivial and inadequate reasons? He offered the thought that the requirement that applications would have to be made through an official public agency should be seen as a filter and a safeguard. The vast majority of public officials handle their responsibilities fairly, properly, scrupulously and reasonably. I hate to say this, but it is also, surely, an observation that all of us have made that if you put a man in uniform, or if you vest official authority in a person, some will find themselves tempted, and succumb to the temptation, to use power overweeningly. We have to be very careful indeed.

The noble Lord says, further, that guidance will be offered to these agencies so, again, we do not really have cause to worry. I am sure that the guidance will be a force in the right direction, but guidance is only guidance; it is flimsy and an insufficient protection. The much better protection would be not to write this risk into law. He offers a much more reassuring protection—that such injunctions could be made only at the discretion of a judge and that we can rely upon the judges to exercise common sense, decency and appropriate restraint and to be animated by a mature and wise sense of justice. In that case, why legislate? We do not need to do this. We can rely on the judges not to order injunctions against people who are merely guilty of causing trivial annoyance. It does not seem sensible, in the present circumstances in which the resources of the courts have been very attenuated, to add this burden to them.

I agree with the noble Lord, Lord Cormack. What are we here for if not to protect civil liberties? Justice and convenience are very often in tension. I suggest that what may be for the convenience of the Government politically, for the convenience of local citizens, whose annoyance threshold is perhaps rather low, or for the convenience of agencies may be very ill assorted with justice. I think that the Government’s position is unwise and I very much hope that the House will support the amendment in the name of the noble Lord, Lord Dear, and his colleagues.

Lord Mawhinney (Con): My Lords, I support this amendment. The arguments for it have been set out so clearly and persuasively by the noble Lord, Lord Dear, the noble Baroness, Lady Mallalieu, my noble and learned friend Lord Mackay and the noble and learned Lord, Lord Morris, that I will not repeat them, particularly at this late stage of our consideration. I will make three quick points as my contribution.

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First, I listened in particular to the point made by my noble friend Lord Faulks about MPs on all sides of the House complaining about and explaining the anti-social behaviour that some of their constituents face. As an MP of some 26 years’ standing, I can tell him that that is absolutely right: any MP worth his or her salt could give him numerous examples of anti-social behaviour and of the sense of inadequacy and frustration over the law seeming not to apply in those circumstances. However, one of the strengths of our bicameral arrangement is that this, your Lordships’ House, can consider such matters in a slightly different frame from the pressured one of representing constituents, some of whom are hard done by because of the law of the land. This House has the opportunity to reflect on the broader principles and bigger issues. This House sets the framework that, just occasionally, the House of Commons has not managed to get around to addressing because of the other pressures that Members of Parliament legitimately face. This is an opportunity for us to behave in a way that is in the national good and not just one that may be pleasing to some, or to some vested interest groups.

Secondly, my noble and learned friend Lord Mackay illustrated the ability to cause annoyance, and of Ministers causing annoyance to the other side of the Chamber when they blame the previous Government for problems they face today. Incidentally, I know my noble and learned friend would accept that this is a two-way street: it is not just Ministers in this Government who have blamed the previous one; Ministers in the previous Government blamed us as well. The distinction I want to leave in the minds of noble Lords is that we are a sophisticated body. I was interested in the reaction to my noble and learned friend’s point. We all smiled, nodded and were very civilised about it. Out there are people who are not as civilised, tolerant, understanding or forgiving. This legislation may be of interest to them in a way that it would not be to us. We have to bear that in mind when we cast our vote.

Thirdly, as a former chairman of the Conservative Party, I am saddened that the Government have brought forward this particular piece of legislation. It is a matter of record that I—along with the noble Lord, Lord Dear, and others—was a signatory to the legislation in December 2012 that amended by an overwhelming majority of your Lordships’ House the Public Order Act and took out the word “insulting”. Now we are offered in its place “annoyance”.

The sad fact is that it is not that surprising. I speak with some knowledge when I say that, internally, Governments occasionally believe that the combined wisdom of both Houses is not really up to scratch when compared to the wisdom of a department of state on a particular issue. I see nods on the other side of the Chamber that encourage me to understand that I am not making a party-political point at my party’s expense. It is one of the realities, and I will say something about departments of state: they have long memories. I have to say to my noble friend on the Front Bench—who is my friend in the personal sense, as we have known each other for many years—that I am saddened that I judge this to be an example of long memory.

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Your Lordships threw out “insulting”—rightly so —and annoyed a lot of people in the process. They pleased a lot of people as well. Today I hope, not out of any sense of vindictiveness, as I have been a fully paid-up member of this party for a long time, that at the end of this vote the only people who will be annoyed are those who thought to bring forward this particular piece of legislation. I hope that, under the guidance of the noble Lord, Lord Dear, we will now amend it.

5.15 pm

Lord Carswell (CB): My Lords, noble Lords who have spoken in favour of this amendment have produced a gamut of compelling reasons why your Lordships should support it. I will briefly focus on one aspect of the amendment and the original draft as produced to your Lordships, that of the court that has to interpret and apply the provisions, a function of which I have had fairly long experience in my time. The words “nuisance” and “annoyance” are what a distinguished jurisprudent called “weasel words”. They are highly subjective and are liable to be interpreted by different people in different ways, which is a recipe for judicial inconsistency and an invitation to those who wish to oppose people expressing opinions that they dislike. In my experience, that would be certain to lead to litigation and to further harassment through the courts.

I am reminded of a remark made by a former First Minister of Northern Ireland, subsequently a Member of this House, who said in his Parliament that people were offended by something that he had said that was rather controversial at the time. He added sweetly: “A lot of people came from a long distance to be offended”.

How are the courts to carry out their function of interpreting and applying the words “nuisance or annoyance”? To put oneself in the shoes of a judge, it is worth remembering that a lot of these cases, perhaps a large majority, will come before junior courts, which have neither the time nor the resources to enter into long jurisprudential arguments. I have long maintained that judges should be given discretion and that, whatever the legislation is, it should not circumscribe the discretion of a judge too closely but should leave a modicum of room for the judge to come to a proper conclusion on the facts of the instant case. However, this should operate within the parameters of reasonable certainty of the law. The principles that a court is asked to apply should be sufficiently clear for both the court and, equally important, those citizens who seek to know the obligations that the law places on them.

The provision of “just and convenient” would go no further. It would not satisfy the principle of reasonable certainty of the law. Indeed, a court should seek to achieve that in any decision, on an injunction or any other part of the law. It does not reduce the deficiencies in the substantive provision.

For those reasons, and for others that your Lordships have expressed, I strongly support the amendment. The provision in the Bill without the amendment is too uncertain and too wide. The amendment gives a proper degree of certainty and security of the law.

Baroness Howells of St Davids (Lab): My Lords—

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Lord Ahmad of Wimbledon (Con): My Lords, I am not seeking to annoy or cause a nuisance, but I believe that it may well be the will of the House now to hear from the noble Baroness, Lady Smith, on behalf of Her Majesty’s Opposition, and then the Minister.

Baroness Howells of St Davids: My Lords, it is my right to speak. People have mentioned cats and dogs; nobody has mentioned race. If this is the wish of the House, I will not.

I rise to support the amendment in the name of the noble Lord, Lord Dear. I believe that the Bill will allow the law enforcers to use subjective prejudices to harass and even charge persons as young as 10. This law does not take on board the fact that this nation is now multicultural but still has not unlearnt its racial prejudices. The clause could have as damaging an effect as the sus laws which black people have fought and struggled to have repealed. We are not unaware that the sus laws are still enforced by a change of language, as was done at the Notting Hill Carnival in 2013.

Britain is now a land of many cultures, and what one culture will subscribe to is not always acceptable to others and may easily be interpreted as annoyance and nuisance. Anyone with a racial bias could misinterpret the actions of anyone, especially someone of colour, as being offensive and feel it within their right to accuse them of breaking the law. Such actions as the Bill proposes could criminalise many innocent persons and further damage the fragile gains that we have made in this country.

A child as young as 10 may not even know that he or she is breaking a rule. This happened under sus many times—because I have worked in the community, I speak from within. This is what happens when people are given the wrong law. A group of young people speaking loudly or displaying high spirits of any kind could be accused of causing a nuisance or annoyance to others who are not aware of the culture. They could be young people gathering together to chat, especially on housing estates where there is not an awful lot of room. Young people are more prone to be victims of this law because they feel deeply and express it. Others in society, I agree, also feel deeply, but they have the means of concealing their real feelings.

I should like to quote Assistant Chief Constable Richard Bennett of Thames Valley Police, who said he would not expose anyone to the obscenities he had hurled at him at times when he was delivering the law. I worked in the community as a human being. I am not representing the black community. I know what I had hurled at me and the discomfort it caused people that I was engaged in trying to help right the wrongs that were going on.

My motive for speaking here so openly and frankly has been curtailed, and I will not delay your Lordships longer. This clause, if unchanged, will have serious effects on the black community and divisions will be even further stretched, as under the sus law.

Lord Scott of Foscote (CB): My Lords, I wish to take very little time to make a point which is worth making and has not yet been made. I express my complete support for the main thrust of paragraph (a)

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of the amendment of the noble Lord, Lord Dear, but I wish to express my reservations about paragraph (b) of that formulation. Paragraph (b) refers to anti-social behaviour being,

“in the case of an application for an injunction under this section by a housing provider”—

“housing provider” is defined in Clause 19 of the Bill—

“conduct capable of causing nuisance or annoyance to any person”.

I think that paragraph (b) is ill advised and would be better left out.

The Housing Act 1996, amended by the Anti-social Behaviour Act 2003, provided for “relevant landlords”. That expression is much the same as, but not identical to, the definition of “housing provider” in the Bill. It provided that the courts, on the application of a “relevant landlord”, could grant an anti-social behaviour injunction if the person in question, the respondent, had engaged, or threatened to engage, in housing-related conduct capable of causing a nuisance or annoyance. There we have the expression “nuisance or annoyance” in the amended 1996 Act. Housing-related conduct is defined as meaning conduct directly or indirectly relating to or affecting the housing management functions of the relevant landlord.

There is no repeal provision in the Bill, so these provisions relating to the actions that relevant landlords, as defined, can bring will remain as part of our law, notwithstanding the Bill becoming an Act. Moreover, it is common in tenancy agreements for there to be a covenant by the tenant not to engage in any conduct that might constitute nuisance or annoyance to the surrounding dwellers in flats or houses. That too will remain. There is no repeal provision so far as that is concerned either. The new right being given by this Bill to persons who suffer from the behaviour, whether it is nuisance or annoyance or, as the amendment of the noble Lord, Lord Dear, would have it,

“conduct that has caused, or is likely to cause, harassment, alarm or distress to any person”,

is new. For my part, I do not see why the actions in that regard should not apply as much to housing providers as to anybody else. If housing providers are relevant landlords they can bring the actions referred to in the 1996 Act as amended. If they are not, why should they not be in the same position as anybody else? That is the point I make. This amendment would be improved and would be more consistent with the current law if paragraph (b) was removed.

5.30 pm

Baroness Smith of Basildon (Lab): My Lords, this is one of those debates that are quite special to your Lordships’ House. I spent 13 years in the other place and I have been in your Lordships’ House for three and a half years. I think other noble Lords who served there would agree this is not the kind of debate that we often heard in the other place. This House is made all the more relevant and important because of that. It is also one of those debates that Ministers from any party in Government would perhaps refer to as “interesting” and “helpful”. It certainly has been a very interesting debate. The noble Lord, Lord Dear, the noble Baroness,

8 Jan 2014 : Column 1536

Lady Mallalieu, and the noble and learned Lords, Lord Mackay and Lord Morris, have done this House a great service by bringing forward this amendment.

I want to be clear at the outset that I think everybody who has spoken wants to see effective and swift action to tackle serious anti-social behaviour and to treat the issue with the seriousness it deserves. It is not overdramatic to recognise that, if left unchecked, anti-social behaviour can destroy lives. Ongoing anti-social behaviour can cause alarm and distress and, in some cases, leaves people feeling utterly devastated and unable to cope. It creates total misery.

In previous debates, I have spoken of my experience in supporting victims, both as a Member of Parliament and a county councillor. There is no doubt that when anti-social behaviour orders were brought in they created a significant change in the way such cases were dealt with. There were teething problems but experience has shown that they are an important tool in tackling such serious problems. That is why I just do not understand why the Government are embarking on such a dramatic change in this legislation. Obviously, improvements can always be made to any system and we would support improvements to anti-social behaviour orders. However, this really is a case of throwing the baby out with the bathwater and does not improve the position for those suffering from anti-social behaviour.

I am not a lawyer—I am perhaps in a minority among those who have spoken today—but all my experience and instincts from dealing with this issue tell me that these proposals from the Government are ill thought-out and unworkable. Noble and learned Lords with far greater experience and knowledge than I who have spoken have come to the same conclusion. As we have heard, the concern is that the Government’s new proposed threshold for granting an injunction for engaging or threatening to engage in causing nuisance or annoyance to any person on the balance of probabilities if the court considers it to be just and convenient is too vague and too broad. The noble and learned Lord, Lord Morris, described it as open-ended machinery that would catch people who should not be before the courts. The danger is that in the rush of those being brought before the courts for nuisance and annoyance we could lose focus on the serious cases of harassment, distress and alarm.

The very real concerns about how this power could be used and abused were raised at Second Reading and in Committee. In preparing for this debate, I started to draw up a list of activities that could be brought into the remit of Clause 1. I had to give up after several pages and hours. The noble Baroness, Lady Mallalieu, described it as an extraordinary power, and indeed it is. I appreciate and welcome the experienced and knowledgeable legal views but this is not just a legal issue. It is a moral issue of dealing with those people who are suffering the most. The Government are not targeting the behaviour causing the most serious problems but creating a catch-all clause that could affect almost everybody at some point. There is no doubt that some people and some activities inevitably cause some degree of nuisance and annoyance. However, is an injunction, which in most cases will be pretty weak and ineffective—although at the extreme end it

8 Jan 2014 : Column 1537

could involve custody—the most appropriate way of dealing with these cases, or should we accept that in our everyday lives some level of nuisance or annoyance is a consequence of ensuring the liberty and freedom of the individual? Liberty and freedom are not open ended. There have to be constraints and the test of harassment, alarm and distress spoken about today is the appropriate point to place those constraints.

The ACPO lead for children and young people, Jacqui Cheer, emphasised this point in November when speaking to the APPG on children. She said:

“I think we are too ready as a society, as the police and particularly with some legislation coming up on the books, to label what looks like growing up to me as anti-social behaviour”.

There have also been concerns that one person’s annoyance may be another person’s boisterous behaviour. Indeed, as the noble and learned Lords, Lord Morris and Lord Mackay, and the noble Baroness, Lady Mallalieu, said, it need not be boisterous behaviour. Exercising fundamental democratic rights of protest or even just expressing views in a forceful manner can cause nuisance or annoyance.

The Minister’s amendment suggests that behaviour has to be reasonably expected to cause nuisance and annoyance. That is an admission that the Government now recognise the unreasonableness of the clause that they have previously defended to the hilt. As the noble and learned Lord, Lord Mackay, made clear, while that change on its own may be welcome, it does not address many of the points being raised here today. It still leaves the test as nuisance and annoyance to any person on the balance of probabilities. That is not good enough. I was interested in the points made by the noble and learned Lord on “just and convenient”. I accept his assessment of the value and usefulness of that. If the boisterous behaviour to which I referred is ongoing and causes harassment, alarm or distress, then action obviously has to be taken. But as it stands, even with the government amendment, a one-off event that causes nuisance or annoyance to any person on the balance of probabilities would still lead to injunction.

In Committee the noble Lord, Lord Taylor, relied largely on the definition in the Housing Act 1996. Noble Lords have concerns about paragraph (b) of the amendment. I do not share their concerns because it is appropriate in limited circumstances for the existing law aimed at people in social housing to remain to give housing providers the tools to deal with tenants in such circumstances. No change is being sought to that position and that is what part (b) of the amendment makes clear.

I will now address some of the points made by the noble Lord, Lord Faulks, in his defence of the Government, which I am sure we will hear in due course from the Front Bench as well. One great benefit of ASBOs is how seriously anti-social behaviour is taken. The issue of alarm, harassment and distress is crucial and there are appropriate sanctions for dealing with it. We could end up with more of these orders being imposed but in most cases they will be a weaker response to dealing with anti-social behaviour. The noble Lord referred

8 Jan 2014 : Column 1538

to the guidance and he read it out very quickly. I have a copy of that guidance. It is somewhat confusing because it says, as he rightly quoted:

“It 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”.

Where in the Bill is harm referred to? Guidance is not legislation. The legislation, as it stood, referred to alarm, distress and harassment. The Bill refers to nuisance or annoyance. Guidance suggesting there has to be harm as well does not override what is in the Bill. Noble Lords who were defending the Government’s position, when asked whether they could give examples of activities that would come under the Bill’s definition of nuisance and annoyance but not cause alarm, harassment and distress, were unable to do so. Every example they gave of where action should be taken caused harassment, alarm and distress. It is quite clear that the existing legislation is the best way to define the kind of behaviour that is disrupting lives.

The noble Lord, Lord Faulks, also raised the issue of hearsay evidence. It is currently the case with anti-social behaviour orders that professionals can give advice on behalf of those suffering so that they themselves do not have to go to court to present their case. The noble Lord, Lord Phillips, made a very important point about the courts being clogged up and about the pressures on police officers having to respond to every case of nuisance and annoyance. Has the Minister given any consideration to how the police should respond with their increasingly limited resources to cries for help from people suffering what they consider to be nuisance and annoyance and whether they will then be able to deal with very serious cases of anti-social behaviour?

The existing test of harassment, alarm and distress recognises the seriousness of anti-social behaviour and the need to take action against those who breach an order. The definition proposed by the Government is too broad and the remedies are too weak. Setting the threshold so low undermines fundamental freedoms and tolerance. It is a great shame that, having had warning at Second Reading and in Committee of the great concern in your Lordships’ House, the Government did not come back today with something a bit better than the amendment being put forward. There are serious concerns about this, not just because it would catch too many people but because those who are really causing distress in our communities will not be the focus in tackling problems. I urge the Minister to accept the amendment moved by the noble Lord, Lord Dear. The only compromise that would be acceptable today would be if the Minister were to say that he accepts that there has to be a change of definition and that he can assure us that that would be “harassment, alarm and distress” and not “nuisance and annoyance”.

The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con): Well, my Lords, this has been an interesting debate. I am not particularly thick-skinned, so I am clearly sensitive to the views that have been expressed by this House. I am grateful to the noble Lord, Lord Dear, and other noble Lords who have spoken, because they have done justice to this debate by the contributions they have made. I owe it to the House to explain the Government’s position, and perhaps I can then take this issue on.

8 Jan 2014 : Column 1539

Clause 1 is clearly an important part of the Government’s reforms, and I begin by acknowledging that there has been some common ground on the need to include it in the Bill. We have indeed reached some common ground on the elements that we need to include in Clause 1 to make it effective. First, I am glad that the civil standard of proof for the new injunction has been accepted by so many noble Lords. Secondly, I welcome the tacit acceptance of the “just and convenient” limb of the test for an injunction. The noble and learned Lord, Lord Carswell, said that this is a proper consideration for courts in any case, but it is right that we should make it explicit as one of the limbs of the test.

The terms of Amendment 1, as compared with the amendments put forward in Committee, are a welcome demonstration that this House listens carefully to the evidence put before it both by noble Lords and by front-line professionals, and that it adapts its approach accordingly. The Government have also listened to the concerns expressed by noble Lords in Committee and by the Constitution Committee and the Joint Committee on Human Rights, and that is why I have tabled Amendment 2, which we believe addresses the concerns about the breadth of the “nuisance or annoyance” test. Although Amendment 2 is not part of this group, it addresses exactly the same issue—the appropriate form of the test for the grant of an injunction—and, accordingly, it is important that your Lordships consider Amendments 1 and 2 together.

As I said in the debate in Committee when my noble friend Lord Faulks tabled his amendment, I believe it is inherent in the way that the court will look at any application for an injunction to consider whether it was reasonable to grant an injunction in the circumstances of the case. I am grateful for my noble friend’s contribution, and I look forward to him joining me on this Bill before we conclude our consideration of it.

I thank my noble friend Lady Hamwee for her contribution to this debate. I also thank other noble Lords who wanted to speak but were not able to or who have forgone their right to speak in order to expedite this debate. In that I include my noble friends Lady Newlove and Lady Berridge.

5.45 pm

None the less, I can see that there is a good case for making a reasonableness test explicit in the legislation, and I undertook to reflect further on my noble friend’s amendment. In doing so, the Government have also been conscious of the fact that the reference to conduct being,

“capable of causing nuisance or annoyance”

could, arguably, cast the net far too widely, and may not be a sufficiently objective test for these purposes.

I believe that government Amendment 2 addresses both those points. Were the House to agree that amendment, the first limb of the test for the granting of an injunction would be revised, so that instead of the court having to be satisfied that the respondent,

“has engaged or threatens to engage in conduct capable of causing nuisance or annoyance to any person”,

it would now have to be satisfied that the respondent,

8 Jan 2014 : Column 1540

“has engaged or threatens to engage in conduct that could reasonably be expected to cause nuisance or annoyance to any person”.

I hope noble Lords will agree that this is an important change, which, I submit, properly addresses the concerns that have been raised about the test for the injunction.

The noble Lord, Lord Dear, has proposed an alternative amendment to address the concerns to which I have referred. I am grateful to the noble Lord for seeking to find a middle way. In an attempt to find some middle ground, he has designed a two-tier system. The “nuisance or annoyance” test is retained for any application for an injunction by a housing provider or a local authority acting in that capacity, but the “harassment, alarm or distress” test would apply to any application made by the police, a local authority when acting in a capacity other than that of a housing provider, or any of the other agencies listed in Clause 4.

The noble Lord has explained to the House the reasoning behind his approach. As I have said, I commend him for his willingness to find some middle ground. His amendment explicitly recognises that the “nuisance or annoyance” test has operated successfully for a number of years in the housing context. But I part company with him when he asserts that this test cannot be transferred across to other contexts where anti-social behaviour occurs.

The types of anti-social behaviour that a social housing provider needs to address are not unique to that housing sector. The issues that affect those living in social housing affect those in private rented accommodation and owner-occupiers too. The impact of noise nuisance, graffiti, drunken yobbish behaviour or intimidation does not, and should not, depend on where you live.

Let me now turn to what is evidently the core concern of the noble Lord, Lord Dear—the possibility that the “nuisance or annoyance” test could have a chilling effect on free speech. Noble Lords have suggested, for example, that an injunction could be sought against bell ringers, street preachers, carol singers or others engaging in perfectly normal everyday activities.

I hope that noble Lords will accept that that is clearly not the Government’s purpose. It is my belief that those concerns are misplaced. I want to make it clear that the purpose of our reforms is not to prevent people from exercising their rights to protest and free speech. We all suffer from annoyance in our daily lives, and there is, rightly, no place for the criminal or civil law to regulate behaviour just because it is annoying.

Lord Elton (Con): Will the Minister take on board the fact that our concern is not with the Government’s purpose but with the effects of the legislation?

Lord Taylor of Holbeach: I shall be coming on to that, but I felt I had to place what I was going to say in some context—and I am grateful for the discipline of the House in allowing me to do just that. Our aim is to allow decent law-abiding people to go about their daily lives, engage in normal behaviour and enjoy public and private spaces without having their own freedoms constrained by anti-social individuals.

The test for an injunction, when taken as a whole, coupled with the wider legal duty on public authorities, including the courts, to act compatibly with convention

8 Jan 2014 : Column 1541

rights, would ensure that the injunction cannot be used inappropriately or disproportionately. As I have explained, government Amendment 2 is designed to strengthen the first limb of the test so that the conduct must be such that it could reasonably be expected to cause nuisance or annoyance. This limb on its own is likely to preclude an injunction being sought or granted under this Bill to deal with bell ringers, carol singers or children playing in the street. However, there is a second part to the test.

Lord Forsyth of Drumlean: I ask my noble friend the same question that the noble Lord, Lord Faulks, was unable to answer. Can he give one example of a problem that would not be resolved by the amendment proposed by the noble Lord, Lord Dear? What is the problem that the Government are seeking to deal with? Can he give one example?

Lord Taylor of Holbeach: If I might say, it solves the problem of over-complex legislation. Having two tests for the single problem of anti-social behaviour was not the Government’s intention in drawing up this legislation.

Lord Forsyth of Drumlean: I do not want to detain my noble friend, but I am asking for an example of the kind of behaviour that would not be caught by the amendment proposed by the noble Lord, Lord Dear. We understand the Government’s intentions, but it is not clear what the problem is that they seek to remedy. Can he give one example that would not be caught under the amendment?

Lord Taylor of Holbeach: I do not intend to give any examples to my noble friend. I have given the reason why we have a single test for anti-social behaviour leading to an IPNA. I have given my reasoning, and I hope that my noble friend will accept it; I am not going to go into listing individual activities that the IPNA is intended to address. That is why we have a single test and why noble Lords will understand that I am speaking in justification of that single test.

The second part of the test is not a throwaway test, as some have suggested. It is under this limb of the test that the court will consider whether it is reasonable and proportionate in all the circumstances to grant an injunction. In making such an assessment, the court will consider the impact on the respondent’s convention rights, including the rights to freedom of speech and assembly.

I agree with the noble Lord that we should not leave it to the courts to apply these important safeguards. All these factors will weigh on the minds of front-line professionals in judging whether to apply for an injunction. Our draft guidance makes this clear. This will be backed up by a framework of professional standards and practice operated by the police, local authorities and housing providers.

Having said all that—and I apologise to my noble friend for not giving him an example—I have listened to the strength of feeling around the house on this issue. The Government’s purpose is plain: we wish to protect victims. ASB, or anti-social behaviour, ruins

8 Jan 2014 : Column 1542

lives and wrecks communities. In our legislation, we need to ensure that authorities seeking to do so have coherent and effective powers to deal with anti-social behaviour. Recognising noble Lords’ concerns, I commit to take the issue away to give myself the opportunity in discussion with the noble Lord and others to provide a solution that clarifies the use of the legislation and safeguards the objective, which I think is shared around this House, of making anti-social behaviour more difficult and protecting those who are victims of it.

On those grounds, and on the understanding that the Government will return to the issue at Third Reading, I will not move for now government Amendment 2, and I hope that on the commitment to discuss the issue the noble Lord, Lord Dear, will not press his amendment.

Lord Dear: My Lords, we have been detained for something over two hours and I shall take no more than a couple of minutes of your Lordships’ time to say what I have to say. First, I sincerely thank all those who have spoken in this debate, particularly the three signatories to my amendment and the Minister, who has had to sit through a varied and interesting debate.

Secondly, I want to pick up on the chilling effect. The experience with the word “insulting” in the Public Order Act is sufficient in itself to indicate what front-line practitioners will do. Governed as they are by very well-oiled complaints machinery, they will undoubtedly be faced with many examples when a set of circumstances are produced for them, and they will be virtually pressurised into taking some sort of action, to pursue the case and push it through to the courts to decide. That is the easy option, and it is what happened all too often with “insulting”. To take an exercise in discretion and turn around to the complainant and say, “Frankly, I think we should let this one go by”, is not an option that they will take willingly. That is undoubtedly why the Association of Chief Police Officers as one group has said that it thinks that “nuisance and annoyance” is wrong and that we should stay with the well tried formula of “harassment, alarm or distress”.

The choice between those two wordings is the pivotal point of the legislation—the absolute foundation on which everything else hangs. We can talk for as long as we like about reasonable, just, convenient, necessary and all those adjectives, and try to make it work but, if the pivot does not work, all the rest falls away. The pivot suggested by the Government is “nuisance and annoyance”. We have no knowledge of what will happen if that comes into play, but we know what will happen with “harassment, alarm or distress”; it is well proven, well tried and respected, and has never been faulted. To move way from that is a step into the dark.

We have had no examples whatever of the sort of conduct that “nuisance and annoyance” seeks, rightly, to address. I pay great tribute to the Minister, for whom I have a huge liking and respect, but unless he can satisfy me—and I suspect that this is the case with others in the Chamber, from what I pick up from the atmosphere—that he is willing to move immediately to “harassment, alarm or distress”, I must seek to divide the House. I invite him to respond to that.

8 Jan 2014 : Column 1543

Lord Taylor of Holbeach: As far as I am concerned, if I go into discussions between now and Third Reading, all the aspects that the noble Lord has related in his speech, and those expressed by other noble Lords around the House, will be on the table. I do not want to prejudge the outcome of those discussions. All that I can say is that I wish to make sure that when we come back to Third Reading we have a House that can unite behind legislation on this issue. I do not think that that is an unreasonable expectation, and I believe that it represents the sentiment in which this debate has taken place this afternoon.

Baroness Butler-Sloss: I have listened with great care to this debate, and I was undecided when I came into this Chamber as to what I would do. What I have not yet heard from the Minister, to my understanding, is what is wrong with the amendment and why it will not actually meet what needs to be done.

Lord Taylor of Holbeach: I was asked a parallel question by my noble friend Lord Forsyth. We are trying to simplify the legislation so that we make it easier for practitioners, no matter in what circumstances they are dealing with the application for an IPNA, to have a test that is capable of being applied in all areas.

I have listened to this debate. There may be ways in which the noble Lord’s amendment can be modified to advantage. It is important to recognise that he has made a very valid contribution to this debate, and I would like to have the opportunity to consider further what he is proposing in his amendment.

Lord Mackay of Clashfern: My Lords, if I understand the position that the Minister has taken up, he will have an open discussion, the precise outcome of which cannot, of course, be forecast. He will take account of all aspects of what has been put forward in the hope that we can, between us, reach an agreed solution to the problem which has the support of the whole House.

Lord Dear: My Lords, with the greatest respect to the Minister, I do not think that we can go forward on a pious hope. I beg leave to test the opinion of the House.

6 pm

Division on Amendment 1

Contents 306; Not-Contents 178.

Amendment 1 agreed.

Division No.  1


Aberdare, L.

Adams of Craigielea, B.

Adebowale, L.

Adonis, L.

Ahmed, L.

Allenby of Megiddo, V.

Alli, L.

Alton of Liverpool, L.

Anderson of Swansea, L.

Armstrong of Ilminster, L.

Baldwin of Bewdley, E.

Bassam of Brighton, L.

Beecham, L.

Berkeley, L.

Bichard, L.

Billingham, B.

Blackstone, B.

Blair of Boughton, L.

Blood, B.

Boateng, L.

Boothroyd, B.

Borrie, L.

Bragg, L.

Brennan, L.

8 Jan 2014 : Column 1544

Brooke of Alverthorpe, L.

Brookman, L.

Brown of Eaton-under-Heywood, L.

Browne of Belmont, L.

Browne of Ladyton, L.

Burnett, L.

Butler-Sloss, B.

Cameron of Dillington, L.

Carey of Clifton, L.

Carlile of Berriew, L.

Carswell, L.

Carter of Coles, L.

Chandos, V.

Chester, Bp.

Clancarty, E.

Clark of Windermere, L.

Clarke of Hampstead, L.

Clement-Jones, L.

Clinton-Davis, L.

Cobbold, L.

Cohen of Pimlico, B.

Collins of Highbury, L.

Colville of Culross, V.

Condon, L.

Cormack, L.

Corston, B.

Coussins, B.

Cox, B.

Craig of Radley, L.

Crisp, L.

Curry of Kirkharle, L.

Dannatt, L.

Davies of Oldham, L.

Davies of Stamford, L.

Dean of Thornton-le-Fylde, B.

Dear, L. [Teller]

Denham, L.

Donaghy, B.

Donoughue, L.

Drake, B.

Dubs, L.

Eden of Winton, L.

Elder, L.

Elystan-Morgan, L.

Emerton, B.

Evans of Temple Guiting, L.

Evans of Watford, L.

Falkland, V.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Fellowes, L.

Finlay of Llandaff, B.

Flather, B.

Forsyth of Drumlean, L.

Foster of Bishop Auckland, L.

Gale, B.

Gardner of Parkes, B.

Giddens, L.

Glasman, L.

Glenarthur, L.

Golding, B.

Goodhart, L.

Gordon of Strathblane, L.

Goudie, B.

Gould of Potternewton, B.

Grantchester, L.

Greengross, B.

Greenway, L.

Grenfell, L.

Grey-Thompson, B.

Griffiths of Fforestfach, L.

Grocott, L.

Hannay of Chiswick, L.

Hanworth, V.

Harries of Pentregarth, L.

Harris of Haringey, L.

Hart of Chilton, L.

Haughey, L.

Haworth, L.

Hayman, B.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Henig, B.

Hennessy of Nympsfield, L.

Hilton of Eggardon, B.

Hollick, L.

Hollis of Heigham, B.

Hope of Craighead, L.

Howard of Rising, L.

Howarth of Breckland, B.

Howarth of Newport, L.

Howe of Idlicote, B.

Howells of St Davids, B.

Howie of Troon, L.

Hoyle, L.