The first day of the House of Lords consideration on report of the Anti-social Behaviour, Crime and Policing Bill, (the “ASBO Bill”), began with a substantial Government defeat when, after over two hours of debate, the Government was defeated on a basic issue of definition.
Clause 1 of the Bill begins as follows:
“1 Power to grant injunctions
(1 ) A court may grant an injunction under this section against a person aged 10 or over (“the respondent”) if two conditions are met.
(2) The first condition is that the court is satisfied, on the balance of probabilities, that the respondent has engaged or threatens to engage in conduct capable of causing nuisance or annoyance to any person (“anti-social behaviour”).
(3) The second condition is that the court considers it just and convenient to grant the injunction for the purpose of preventing the respondent from engaging in anti-social behaviour” (our italics).
Amendment 1, proposed by Lord Dear, (CB), Baroness Mallalieu, (L), Lord Mackay of Clashfern, (C), and Lord Morris of Aberavon, (L), would remove the contentious words “nuisance or annoyance” from clause 1(2) and amend it to read as follows:
“(2) The first condition is that the court is satisfied, on the balance of probabilities, that the respondent has engaged or threatens to engage in 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
(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” (our italics again).
The amendment was agreed: Contents 306; Not-Contents 178: you can read the debate here. Readers will recall that in a similar context, the word “insulting” was removed from section 5 of the Public Order Act 1986 as a result of an amendment by Lord Dear, [HL 12 Dec 2012 : Col. 1119], which was carried a majority of almost 100.
Comment: The original wording caused considerable concern to some religious organisations worried that it such activities as street preaching would be banned if there were complaints. The Salvation Army, in particular, with its tradition of open-air singing and brass bands, thought that its activities might be curtailed. Other potentially affected groups that were identified by Lord Dear include
“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, [HL 8 Jan 2014 : Col. 1515]”.
He maintained that
“[n]uisance or annoyance … 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.”
The version agreed by the Lords makes that less likely. Whether it survives the Commons is another matter. The second day of the Report stage is scheduled for 13 January, (note new date), and the amendments that remain to be debated are here, here, and here. The Third Reading has been provisionally scheduled for 27 January.
David Pocklington and Frank Cranmer