My Lords, this has been an interesting debate. All speakers have sought to be helpful to the Minister, perhaps seeking to protect the Government from themselves by this amendment—they were certainly not trying to be a nuisance or annoyance in identifying so many difficult issues that arise here. So I do not expect to have an IPNA taken out against us but, on the balance of the judgment that is in the legislation before us, I suppose we should wait and see. This debate strikes at the very heart of the issue, and the contributions that we have heard today reflect the balance of opinion at Second Reading.
The noble Baroness, Lady Mallalieu, made a very powerful case and addressed a number of the concerns that were raised, including the concerns of those who have argued against the amendment. Like the noble and learned Lord, Lord Morris of Aberavon, I spent a number of years as an MP, although not as many as he did. Anti-social behaviour was then and remains a very serious issue. I recall that many of those dealing with the problem welcomed ASBOs, despite some of the failings and problems we have heard about, and I think that ASBOs have improved with time and experience. The test of “harassment, alarm and distress” was rightly a higher bar than we see before us today, because it recognises the seriousness of the issue, but it also recognises the penalties for breaches of the order. That is an important point to make in the context of this debate.
I find it very interesting that, in the Second Reading debate and again today, the anti-social behaviour orders gained support from distinguished Members of your Lordships’ House with expertise in law, policing and the magistracy. There were criticisms, and I still have some criticisms about the implementation of anti-social behaviour orders and measures. There are those who do not understand how seriously and dreadfully victims
of anti-social behaviour are affected. Unless you have suffered yourself or have spoken to people who have been through that totally debilitating experience, it can be hard to understand how that constant, unrelenting pressure of harassment, intimidating behaviour or excessive noise can leave people terrified of living in their own homes and very distressed. I remember one lady who I spoke to at great length on many occasions. She was so distressed by what some might regard as kids mucking around, but very seriously so, that she was terrified to live in her own home. We are now seeing ASBOs being more appropriately used and we have seen a reduction, as we have heard, in their breaches.
We have also heard that there can be injunctions for anti-social behaviour under housing legislation and that the test of causing nuisance and annoyance already exists, but that is in very limited and specific circumstances. The noble Baroness, Lady Mallalieu, made that very clear in her comments. Anti-social behaviour injunctions were brought in in 2003 and have been used sensibly and wisely since then. Today, we have all had correspondence from housing associations—in many cases, very similar letters—explaining why they want to retain the power they have and explaining the benefits they have been able to bring to their tenants, in many cases, very vulnerable tenants, because of those powers. Their letters highlight a problem referred to by the noble Lord, Lord Harris, a few moments ago, and by others; a problem which the Government have created by trying to rationalise the number of orders, procedures and interventions that can be taken against anti-social behaviour. Clearly, housing associations with very vulnerable tenants welcome the powers they have, but these are not appropriate for every single case of anti-social behaviour. We are not against all forms of injunctions but we are against making this test—on the balance of probability, for nuisance and annoyance—the test that should be applied in all cases where somebody complains about something that they consider to be anti-social behaviour.
In some cases there has been a misunderstanding that only small areas are covered; perhaps only social housing estates or council estates. In fact, anti-social behaviour, and certainly the test that the Government wish to apply, of nuisance or annoyance, is much wider spread than that. In many cases, injunctions to prevent nuisance and annoyance can involve similar and indeed wider matters than those raised in current ASBO applications. They can address relatively minor issues involving nuisance neighbours and minor disorder. Because as an order an ASBO can represent a serious slight upon the reputation of a respondent, as well as carrying serious consequences for breach, it is completely inappropriate for something of that seriousness to have a lower standard of proof to apply.
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We should also note that ASBOs can impose only prohibitions. These injunctions could include positive requirements, and I welcome that, but of indefinite duration, which would be the equivalent to or more serious than many community sentences that we see people getting at present following criminal convictions. That raises the question of whether those procedural
guarantees in the criminal process protected by Article 6(3) of the European Convention on Human Rights and the criminal standard should therefore be applied in this legislation.
There is also enormous concern, as we have heard, that although this low and pretty vague test that has been applied by the Government does not automatically bring a criminal sanction, it can lead to imprisonment and detention orders, including for under-18s. The test is not the original behaviour but the breach of the injunction, but it is a long leap from “nuisance and annoyance” and the balance of probabilities to someone receiving a detention order. As we have heard today from your Lordships’ House, that is something that causes enormous concern. The IPNA test is far too low. We are in danger of seeing behaviour that ought to be accommodated and dealt with in a far more reasonable and appropriate way becoming subject to injunction.
I refer to a comment that was made by the noble Lord, Lord Dear, who referred to this in his powerful Second Reading speech; I have gone back and looked at the points that he raised, and I share his concerns. His point was that the vagueness of the definition in the legislation and in the guidance could lead to courts making decisions that will vary. The draft guidance says:
“On the balance of probabilities, the respondent has engaged or is threatening to engage in conduct capable of causing nuisance or annoyance to any person”,
and:
“The court considers it is just and convenient to grant the injunction to stop the anti-social behaviour”.
We are going to find that decision being left to the courts to make, and cases will be taken to court far more readily because there is such a low level in the test. We will find practitioners taking those cases to court and waiting for the court to make a decision.
The Government have created a problem here but there are a number of suggestions, including the amendments today, that could help to address it. I hope that the Minister has taken careful note and will come back with a positive response.