“Annoying” behaviour – Baroness Sally Hamwee responds

On Wednesday the House of Lords debated the first part of the Anti-Social Behaviour, Crime and Policing Bill. As has been reported [here], the main issue discussed concerned the definition that will be used in the new ‘Injunction to prevent anti-social behaviour’ of IPNAs that will replace ASBOs. The Government was proposing the IPNAs can be issued against behaviour that can reasonably be expected to cause ‘nuisance or annoyance’.

However, an amendment by Lord Dear proposed changing this test (except when it comes to social housing) likely to cause ‘harassment, alarm and distress’.

I know many Lib Dem Voice readers feel a lot of sympathy towards Lord Dear’s proposals, so, as the Peer leading for our Group in the Lords on the Bill, I wanted to explain what happened and why most Lib Dems in the Lords supported the Government.

First of all, I doubt many people would defend ASBOs (except the Labour Party who regard the Government’s approach to anti-social behaviour as insufficiently authoritarian), and certainly not most Lib Dems. That is why Lib Dems in the Lords agree with the new IPNA system created by the Bill that seeks to prevent anti-social behaviour escalating, nipping it in the bud, but without pushing the offender (frequently a young person) on to the often slippery slope of the criminal justice system.

Yesterday’s amendment, supported by some Lib Dems but opposed by most of us, was not the defence of human rights that understandably, on an initial reading, it may seem. I was satisfied, as was leading human rights lawyer and colleague Anthony Lester, by an additional safeguard included in a Government amendment which in the event could not be called, which would have added a new ‘reasonableness’ test to be met before an IPNA could be granted. But even without this, the Bill incorporates the concepts of proportionality, reasonable and appropriateness, and is subject to the Human Rights Act.

The terms “nuisance” and “annoyance” were criticised on the basis they are imprecise and too low a threshold to prompt an injunction against the behaviour in question. However, these terms are well understood in the civil courts because they have been used in housing injunctions since 1996. In fact, even Lord Dear’s amendment recognised this and continues to apply the ‘nuisance or annoyance’ test to social housing. On the other hand the test of “harassment, alarm or distress” which is currently used for ASBOs and for public order offences has previously only been used in the criminal law and so the courts haven’t properly considered how it would apply in the civil law.

All this means that we (and more importantly the many people who are affected by anti-social behaviour) now have something of a muddle: a two-tier system – and a higher threshold if you are an owner-occupier or live in the private sector.

In the end it was clear that ultimately the Government did need to reconsider what test would be used. That is why the Minister actually told Lord Dear at the end of the debate he would come back with an amendment to meet the concerns expressed later in the Bill’s process. However, unusually for the Lords, Lord Dear refused to withdraw his amendment and called a vote- who knows where we will end up now as a result?

Of course there are different views as to the balance to be struck between a system that protects the right of us all to lead our lives as we wish and that enables anti-social behaviour to be tackled. I don’t say this is the best Bill ever, but nor is it the attack on our liberties that has been painted. I will continue to defend our individual freedoms – and also defend my colleagues who were not, as projected, illiberal, but who voted to support discussions to find a formula that satisfied everyone. Whatever test is ultimately used, I very much hope we will, in the end, bring the new IPNA system into force so that we can replace the ASBO system that has led to the needless criminalisation of so many people.

* Sally Hamwee is a Liberal Democrat member of the House of Lords, and the Co-Chair of the Liberal Democrat Parliamentary Party Committee on Home Affairs, Justice and Equalities.

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22 Comments

  • Reasonable explanation. The option to re-examine and find an agreeable formula should have been accepted.

    Those of us who live comfortably in locations rarely troubled by the kind of behaviour targeted by this legislation need to be careful not to get too holy about this. The test will be how the legislation is applied in practice more than the precise words used.

  • Nick T Nick Thornsby 10th Jan '14 - 4:11pm

    Baroness Hamwee,

    Thank you for doing this piece. A few questions come to mind having read it…

    It seems to me that the argument re the disparity between social/private landlords is something of a non-sequitur. The reason for the injunction regime when it comes to social housing is so that social landlords have a less draconian option to tackling problem behaviour than possession proceedings, recognising that it is beneficial for them to have a greater range of options.

    Yet of course this bill (as I read it) does not give parity (as it should not), because private landlords or homeowners are not in the class of people who are able to apply for an injunction.

    On the point about interpretation, it is fine to say that the courts have deliberated on the meaning of the word “annoyance” in relation to injunctions, but that in itself does not provide a liberal justification for extending the power to seek such injunctions to a whole new range of institutions.

    If we as a party are to support such powers, we must explain *why* we think we think these people should be able to seek injunctions for such behaviour.

    In your last paragraph you say:

    “I don’t say this is the best Bill ever…”

    I am happy to be corrected on this point, but isn’t this Bill the responsibility (or at least this part of it) of Norman Baker – our man in the Home Office?

    If so, what are we doing to make it a better bill?

  • A Social Liberal 10th Jan '14 - 4:15pm

    “who knows where we will end up now as a result”

    Hopefully without IPNAs

  • “I will continue to defend our individual freedoms …”

    So do you take back your support for people being prevented from “sitting around with a can of lager” – not because there is any reason for others to apprehensive about it, but because “they just do not like people sitting around drinking cans of lager in public”?

    How is preventing someone from doing something simply because someone else doesn’t like them doing it consistent with any meaningful concept of individual liberty?

  • Nick T Nick Thornsby 10th Jan '14 - 4:33pm

    Another quick point if I may…

    To grant an injunction under the proposed bill, the court only has to be satisfied that doing so is “just and convenient” (a low threshold), whereas under the old regime the court had to be satisfied that it was “necessary” in order to prevent the anti-social behaviour. Have we considered retaining the “necessary” condition? Particularly given that the standard will be the much lower civil “balance of probabilities” test.

  • Nick T Nick Thornsby 10th Jan '14 - 4:38pm

    Just to summarise on the last point, while it will be good to get rid of ASBOs and the criminalisation aspect, the bill it seems to me makes it much easier to get injunctions in three ways:

    1) The new definition of anti-social behaviour (nuisance and annoyance).

    2) The new standard of proof (civil rather than criminal).

    3) The new test (“just and convenient” rather than “necessary”).

  • “How is preventing someone from doing something simply because someone else doesn’t like them doing it consistent with any meaningful concept of individual liberty?”

    +1

  • Baroness Hamwee wrote:

    “but without pushing the offender (frequently a young person) on to the often slippery slope of the criminal justice system.”

    How does it do that? What is going to happen to people who breach these injunctions? They’ll be fined or go to jail, won’t they? OK, you can say they’ll be fined or locked up for breach of a civil injunction, not for committing a crime, but to me that is a distinction without a difference.

    Lord Dear’s amendment would restrict the use of these orders to situations comparable to those that come under the Protection from Harassment Act. They would be limited to the suppression of behaviour that is actually abusive and threatening.They could not be used against people who exercise their dogs on Barnes Common or row their boats on the Thames, or anything else that happens to meet with the disapproval of whomever sits beneath the portable palm tree.

    Politicians can assure us that a bill has no malign intent until the cows come home and after. What actually matters is what the bill says and what it allows the state to do.

  • Baroness Hamwee – Thank you for taking the time to respond to the unease of the readers of LibDem Voice. I have to admit that I have not studied the Bill, but what made me really upset, and angry, was your response to Lord Forsyth’s request for examples of something that would be prevented by the Bill (as quoted by Richard Wingfield). I live on an estate and am fortunate enough to have a large open space in front of my house which in the plans for the estate 30 years ago was designated a kickabout area. Obviously kids use it to play football and cricket, and it can be irritating when they kick balls against my garage and come knocking on the door to get their ball back. In the evening in the summer teenagers sit under the trees and drink lager or smoke dope, and sometimes – like when they have finished their exams – things can get rowdy into the night. I get woken up some mornings by dogs barking as they run around outside. But I am a Liberal: I live in a community; that means there are other people living around me who are living their lives too. I don’t have a right to live amongst other people in complete peace and quiet, or to decide what activities on a public open space are acceptable to me. My neighbour got the council to remove a seat from that open space because it encouraged young people to congregate, and he almost persuaded them to landscape the area so that it could no longer be used for kicking a ball around. You are putting a weapon into the hands of people like him, and appear to be happy to be doing so. That is a really sad thing for a liberal to be doing.

  • Liberal Neil 10th Jan '14 - 7:48pm

    Thank you for explaining your position.

    My concern is that the law has already gone far too far down the route of stopping people doing things because others disaprove rather than because they are actually doing any harm.

    I had a complaint from a family in my ward from a family who were asked to put out a BBQ on some public land by the river nearby by the local PCSOs because ‘someone had complained and thought it might be teenagers’. When I challenged this I was met with a response that suggested the ppolice thought it was their job to halt behaviour someone else disappproved of rather than defend the freedom of the family having a BBQ (or teenagers for that matter).

    It is this general attitude that is the problem and I want to see the whole approach rolled back, not just fiddled with at the edges.

  • And what, exactly, gave you the right to make laws? It wasn’t a democratic mandate, was it?

  • This is a poor explanation of support for a poor Bill. The idea that an alleged nuisance should have to conjure complex Human Rights arguments in court when arraigned for an injunction is ludicrous. Would they have legal aid for this process?

    It is a sad state of affairs when the citizens of this country have to be protected by an unelected House largely packed with chums of political Leaders.

  • Sally Hamwee 10th Jan '14 - 10:39pm

    Thanks for comments.

    Social landlords – I don’t think there should be different tests depending on housing tenure. (Let’s hope I’m saying the same thing as I typed a few minutes ago, before I lost the connection! Don’t know whether previous comments lost or saved)

    I agree that the fact something has previously been interpreted by the courts is not a justification for it. The argument was about clarity and certainty, and case law is relevant to this.

    The test of “necessity” – I had an amendment at the previous stage which would have incorporated this, but made no headway. (In the Lords, unlike the Commons, we have literally hundreds of amendments, all of which we debate – some get picked up and changes get made, Compromises get made. Many prompt explanations from the government as to why they are not necessary for instance because the provision is made elsewhere, or of course because they take a different view, Some get reassurances as to steps to be taken outside the legislation. Few get voted on – the whole thing would come to a grinding halt. One of my amendments for instance that the government has agreed to is that no under-18 should be evicted from his own home.)

    There’s no doubt that some behaviour makes people’s lives a misery, and people have difference levels of tolerance. I got into a real tangle with examples, largely because I got confused over the questions. I had in mind one experience when a neighbour was getting upset about a group of men sitting around drinking – I thought we shouldn’t stress over what they had chosen to do. The difficulty is finding the balance between individual freedoms and seeking to ensure people feel secure in their communities. Failing to tackle anti-social behaviour at an early stage does not do the right thing by the “offender” – the whole object of injunctions is to halt a slide towards a criminal conviction, which can ruin the offender’s own life. (Another of my amendments was to require a serious talk from a senior police officer, on the lines of some Irish legislation – it was suggested by a Lib Dem with considerable knowledge of the subject. That too got nowhere, and though we have not been able to amend the bill to create a radically different approach we have had a number of assurances as to the detail of guidance for how all the relevant authorities should apply the legislation.)

    As regards Norman (who incidentally was not at the Home Office when the bill started), he has been very effective (for instance on including a “reasonableness” test). Would that it were possible to get every piece of legislation in exactly the form we want it. There have to be compromises, and you have to pick your fights.

    Should the unelected Lords vote on legislation? This bill, and others, would be a good deal worse without the Lords (not just the Lib Dems). I stood for election as a councillor (and held my seat)after I went into the Lords because it was the only electoral mandate available, and have always voted for a democratically elected second chamber. Believe me, if all the Lib Dems decided not to take part in legislation in the Lords, it wouldn’t stop the other parties.

  • Before creating any new law, legislators should be obliged to explain what defect exists in the current system of law that makes it urgently necessary for a new law to be made. As far as I can tell, nobody has seriously tried to answer this question.

  • “Before creating any new law, legislators should be obliged to explain what defect exists in the current system of law that makes it urgently necessary for a new law to be made. As far as I can tell, nobody has seriously tried to answer this question.”

    Indeed. I think the Lib Dems would be in far less of a mess if they had tried to resist the general tendency for governments to be continually grinding out reams of new legislation. That is what has caused them to ‘compromise’ endlessly with the Tories on measures that go well beyond the coalition agreement. If the result of that is that Lib Dem parliamentarians are defending illiberal legislation with the half-hearted excuse that “I don’t say this is the best Bill ever”, then they would have done better simply to say “No, we haven’t agreed to this, and as liberals we are against this sort of thing, so we won’t support it”.

    In general terms, there is never going to be a shortage of people willing to come up with plausible-sounding arguments in support of the state controlling the citizen’s every action. Someone needs to be on the other side of the argument, and if parliamentarians elected (or appointed) as liberals aren’t on the other side, what is the point of having them?

  • “I got in a real tangle with examples ” – says it all really. Still no examples provided.

  • I take the comment above to mean that Baroness Hamwee didn’t mean to express support for preventing people from “sitting around with a can of lager” in the circumstances described.

    If that’s what it does mean, the clarification is to be welcomed (though it would have been better if the clarification had been clearer!).

  • Michael Parsons 11th Jan '14 - 11:33am

    All seemws very convoluted.
    If I distributed leaflets explaining that girls have a rightto choose their husbands or not to marry, to dress as they please and mix with other company of their own choosing, and to have abortions at will, would I be charged with causing annoyance and distress if a compainer (or even a mob of complainers) turnd up|?

  • Sally Hamwee 11th Jan '14 - 3:47pm

    I have quite often wondered aloud with colleagues whether any government would be brave enough to hold off from all legislation for a year. We criticised Labour for the number of new criminal offences it introduced – as it happens, this bill would replace 19 different anti-social behaviour provisions with six (the lowest level of which is not criminal).

  • Richard Wingfield 11th Jan '14 - 6:22pm

    We did criticise Labour for introducing far too many criminal offences, and I actually support the principle of the new Anti-Social Behaviour Bill in that it simplifies the existing system and removes the new IPNAs from the criminal justice system (although those who breach IPNAs could still end up in prison which mitigates the improvements somewhat).

    Thank you, Sally, for your clarification. There is, of course, a spectrum of behaviour which is a nuisance which can range from that which should obviously not be prohibited by the state ( e.g. a neighbour singing loudly (and badly) in his shower such that you can occasionally hear him) to that which is not necessarily criminal but extremely anti-social (e,g, a neighbour who is constantly having loud parties with people spilling over and drinking in the streets and making a mess). My belief is that IPNAs should only be used for those types of behaviour which are at the very highest end of the spectrum. I think it’s important to tackle such behaviour and to do so without resorting to the criminal justice system. But my worry is that the new test of “nuisance and annoyance”, even if applied objectively, is far too low on the threshhold.

    To take one example, it is objectively a nuisance and/or annoying for a next door neighbour’s kid who is football-obsessed accidentally to kick his football over the fence every couple of days. But it is difficult to say that such behaviour is distressing (or capable of causing harassment or alarm). Should a 10 year old really be subjected to a civil order preventing him from playing football in his garden with the possibility of fine and/or prison if he does? That is the kind of activity the new test will cover, and it covers simply far too much behaviour which (though a nuisance or annoying) is simply what we have to accept in a free society.

  • Sally Hamwee 12th Jan '14 - 9:42pm

    I agree, Richard. That’s why I have been referring to other provisions in the bill – the bill itself sets out the test the court has to apply before granting an injunction (that it is “just and convenient”, legal speak which incorporates proportional, reasonable etc). I’m not suggesting all annoying behaviour should be looked at by a court , obviously, but the authorities would have to bear that test in mind themselves. Anyway, we now have to see what the government does about this.

  • Tony Dawson 10th Jan ’14 – 10:23pm
    It is a sad state of affairs when the citizens of this country have to be protected by an unelected House largely packed with chums of political Leaders.

    Tony, Do pay attention, it has little to do with chumminess and much to do with cash.

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