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.
