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Lord Williams of Mostyn: If that proposition is put to the footballers they have the perfect opportunity to say, "Oh! come on, look at Amendment 13 of the noble Lord, Lord Williams, which is a model of perfect parliamentary drafting, because it is perfectly reasonable in the circumstances". I take up the illustrations given by the noble Lords, Lord Dholakia and Lord Henley, which are not fanciful. We have a couple of black households living in a street, wishing only for their own private domestic contentment and order. Skinhead youths constantly play games such as baseball, football and loud games and make the lives of the people in the black households a misery. Why should that be subject, not to the sanction of immediate criminal prosecution, but a warning to them, "This country will not stand for that"?
Why cannot it be said to them, "Therefore, you will be subject to a regime which is carefully crafted and constructed to deal"--and I repeat--"with real social harm?" As the noble Lord rightly observed--and I regret it if I have not made it abundantly clear--this is not a remedy for the individual aggrieved, but one that has to go through a filtering authority; namely, the police and the local authority. So that takes away the opportunity simply of the malevolent, obsessive individual who feels wronged. We have put in a filter.
The second filter is that it must go through the court process. We trust the courts, to use the phrase of the noble Lord, Lord Goodhart. We do not expect them to impose these orders on a trivial basis. They are subject to appeal. If there is difficulty and inconsistency, the appeal mechanism will bring about consistency. Amendment No. 13 has been designed with a view to meeting, if not perfectly, at least the thrust of the objections of the noble Lord, Lord Goodhart.
We believe that harassment, alarm and distress are perfectly simple words, which are frequently construed by courts on necessary occasions. It is perhaps noteworthy that the basic offence in Section 1 of the Protection from Harassment Act 1997--which is even more contemporaneous than that mentioned by the noble Lord, Lord Thomas of Gresford, which was 1994 and quite ancient--does not include the word "serious".
I recapitulate briefly what we have done here. We know that there is serious harm to vulnerable people. They presently cry for remedy without redress and that is a scandal. We want to put it right, but we realise that there may be problems. Therefore, we introduce a regime, which has the dual filtering of the police and the local authority added to the necessity for an application to a court. Further added to that is Amendment No. 13 which gives the defendant the right to say that his conduct was reasonable in all circumstances. All of this applies no criminal sanction whatever. It gives a warning that if the order is breached--which can be proved on a criminal basis in criminal proceedings where the defendant will be legally aided and represented, as appropriate--and in some circumstances the offences are so wicked, and I choose that word carefully because it goes to the heart of people's lives, then they should be met with criminal sanction. That is my answer to the noble Lord, Lord Goodhart.
I shall not seek to repeat my propositions as regards each subsequent amendment. On the particular amendments, I believe that we have got it right. We do not need these qualifying words. The conclusion of the noble Lord, Lord Goodhart, would be that the harassment had to be serious and the qualifying words to "alarm or distress" would be "reasonable and serious alarm" or "reasonable and serious distress". I am not sure that I entirely follow that.
Lord Elton: I am not sure that the noble Lord realises that we are all on his side in preventing the mischief which he has so eloquently described. In this House we have a duty to prevent such remedies spreading beyond the mischief to which they are intended to apply. When orders are made I suspect that most of those appearing
Lord Williams of Mostyn: I entirely accept that. As I believe I said at Second Reading, it was gratifying that the general scope and thrust of this Bill had had such general acceptance and strong approval in principle. I do not dismiss these points. As I said earlier, Amendment No. 13 was designed to meet what we thought were the reasonable objections of the noble Lord, Lord Goodhart. We believe that the general safeguards we have written into the regime, particularly bearing in mind the present context of legislation, gets it about right. I regret that we cannot accept this amendment. I accept, and will continue to do so, that these amendments propose improvements. But we are unable to agree that they would be improvements.
Baroness Warnock: Going beyond the actual amendment, the noble Lord, Lord Williams of Mostyn, used the word "malevolent" as a way of defining the objectionable conduct. That suggests very strongly that some such word as "intentional" should be brought in before the description of the alarm, harassment and fear caused. The courts are very well accustomed to trying to determine whether a series of acts was intentional. I cannot see any reason not to put in the "intentional" in this context. It would itself limit the application of the order.
Lord Thomas of Gresford: I agree entirely with what the noble Baroness said a moment ago. In order to defeat the argument advanced by my noble friend, the noble Lord, Lord Williams of Mostyn, used the expression "malevolence" which indicates a subjective intention in the mind of the person against whom the order is made. When one looks at a situation where, for example, there is malevolent playing of football outside the houses of two young, robust white households, the heads of those households can go to the local authority and say, "They are malevolently playing football outside my house. I want an order". In another situation, the people playing football outside the houses may not be doing so malevolently, but those who live in the households may be two elderly white couples--I do not want to introduce a racist element--who are distressed and who then go to the local authority saying, "Please may we have an order?"
The noble and learned Lord, Lord Ackner, raised this issue at the beginning of this Committee stage when he asked whether the test is to be objective or subjective. It seems to me that the noble Lord, Lord Williams of Mostyn, is now putting it forward in two ways:
Lord Mishcon: I intervene shortly to say that one's experience of the racial incitement legislation, which is already on the statute book and where the question of intention was a necessary ingredient, is that the courts have found the gravest difficulty (because of the onus on the prosecution in regard to those matters) and there have been acquittals where no acquittals were ever intended by Parliament, I am sure, when passing the original legislation.
Viscount Bledisloe: I would understand the argument of those proposing the amendments if it did not appear that there are already two filters in the Bill. Those proposing the amendments have spoken as though the over-fussy old lady has only to prove some harassment to get an order automatically. Surely that is wrong. First, she has to persuade the relevant authority that it ought to apply. It does not have to apply; Clause 1(1) is permissive. Secondly, even if the relevant authority does apply, the magistrates' court has the discretion to make an order. Surely those two discretions are perfectly adequate to filter out the footling and inadequate complaint and to solve the problem of people being subjected to an order just because a couple of extremely fussy old ladies do not like street football.
Lord Williams of Mostyn: We are trying to sort out a reasoned response to Amendments Nos. 3 and 4 which deal with the insertion of "serious" and of "or reasonable and serious". We are not trying to sort out whether one needs to demonstrate malevolent intent. The question of intent is irrelevant to the mischief at which the order is directed. We are talking about an antisocial behaviour order. The question whether unintentional harassment which is unreasonable should be allowed to continue unabated. We suggest not. I am most grateful to the noble Viscount, Lord Colville of Culross, who has daily--
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