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Lord Williams of Mostyn: The ingenuity of the legal mind knows no bounds! Perhaps I may point out gently that possibly there has been undue focus on Clause 1(1)(a) without full appreciation of the totality
of what Clause 1 is intended to deal with. I respectfully repeat that this is an antisocial behaviour order. One must pass over the hurdle in Clause 1(1)(a) before one comes to the point of the order in subsection (1)(b). The court may make the order if it finds the condition fulfilled in Clause 1(1)(a), over which we have pored for a little while, and if under subsection (1)(b)
- "such an order is necessary to protect persons in the local government area in which the harassment, alarm or distress was caused or was likely to be caused from further anti-social acts by him".
The whole point of the order is that it is not individualised in terms of a single individual complainant. It is designed to be a community measure. Therefore, (a) and (b), the latter not having been looked at so far this evening, go together. For that reason one has the filters referred to earlier by the noble Viscount: first, the police and the local authorities; and, secondly, the court. There will be individual disputes not covered by this particular remedy: for instance, frequent, indeed notorious, neighbour disputes about who has planted Leyland cypress where, how long ago and to what height--more money has been spent on Leyland cypress than any other living vegetable--or whether or not the cockerel next door is too noisy, rowdy or rampant at six o'clock in the morning. That is not what this Bill is intended to deal with. The Bill is concerned with behaviour which is in effect antisocial and anti-community.
We believe that where an individual is harassed that is covered by the Protection from Harassment Act 1997. That is a criminal offence. We do not expect the police, the local authority and the court to take part in individual disputes of the kind that have been cited by way of example. In answer to the noble Lord, Lord Henley, this is not an evidential problem but a conceptual difference. Nor is the illustration of affray given by the noble Lord, Lord Renton, to the point because here a magistrates' court will not arrive at a finding of not guilty because there is only one person adversely affected. Guilt or otherwise does not enter into it. The simple question is that if only one person is affected, or is likely to be affected, the police and the local authority will not even make an application to the court. If they did so wrongly or the court was not satisfied, an order would not be made.
The key to this matter is that one looks at the scheme of subsections (1)(a) and (1)(b) together. It is an entire scheme. It is intended to deal with a particular mischief in a particularly considered way; it is not intended to deal with all harm that happens to individuals. Single individuals, particularly the elderly or the handicapped, living on their own, have been mentioned. The Protection from Harassment Act, new on the statute book as it is, can be used for that purpose, but that is not the vice at which the Bill is aimed. It is different. That is why we have constructed it in this way. I hope, on the basis of that explanation of a considered policy stance, the noble Lord will feel content and happy to withdraw the amendment.
5.30 p.m.
Lord Ackner: I thought that one of the reasons for the provision in Clause 1 was to protect the person who is frightened to make the application herself, and, if she made the application, who would be the subject matter of victimisation by those against whom she made the application. If that is so, then the advantage of this clause is seriously cut down.
I do not understand the reference to subsection (1)(b) as being of any particular relevance. Paragraphs (a) and (b) are both conditions precedent to the making of an application. Unless both paragraphs (a) and (b) are satisfied, there can be no valid application, and that has been recently accepted, as one would expect, by the Minister. If the application were made without the two conditions precedent being satisfied, it would be thrown out. Therefore the Minister has not answered the criticism: how do you protect the individual who is scared stiff to take the initiative to make the application herself?
Lord Renton: The Minister made clear the Government's intention here. If the amendment is accepted, the Government's intention will still be fulfilled, because we shall have the expression, "one or more persons". It is extraordinary--is it not?--if we are to have protection of more than one person only and have to rely entirely upon the proposition that individuals do not need to be protected, because they are protected elsewhere in the law.
I take the point the Minister made about the Protection from Harassment Act. He is right about that, but Clause 1(1)(a) goes beyond causing harassment; it refers to "alarm or distress". I must confess that I do not know of any details in statutes which would give the kind of protection which the Bill would give, where mere alarm or distress is caused. If there are such examples in our legislation, we must be told about them. I should like to know.
As for the problem that the Minister mentioned relating to paragraph (b), that is easily overcome. If one looks at the first line on page 2, if the amendment were to be accepted, it would require consequential amendment which could be done on Report, putting before the word "persons", the words "a person or". That does the trick. I hope that the Minister will keep an open mind about this, because a strong case has been made for the amendment.
Lord Mishcon: Perhaps I may return to the point that I tried to make earlier when I gave the instance of the gentleman, or the lady, who was black, living alone in a street where all the occupants were white; and there are a few of those white occupants making the life of that person absolute hell. Are we legislating--I ask this most respectfully of my noble friend--on the basis that we know that there is an existing Act of which people do not take advantage because they are often frightened to do so, and we are passing some fresh legislation which will remove that fear, because the local authority and the police are brought in? Are we legislating now on the basis that, if on my example, it were a husband
and wife, they would be entitled to see the local authority, and prima facie the conditions for bringing this matter before the magistrates' court would exist? If it is a husband and wife, they can make an application. If the husband dies the day before, the widow cannot do so.
Lord Elton: Perhaps I may add another point which has not been raised. I welcomed what the Minister said when he spoke to the earlier amendments, because he said that the provision was replacing recourse to an injunction for people who could not afford one. Single people cannot afford an injunction any more than couples or neighbours. In this case, I take it that the cost falls on the relevant authority, so it makes the law available to people who cannot afford it. That is important. Under the 1997 Act, the costs of course fall to the applicant. That does not bring the law to people who cannot afford it. So this remedy is needed, despite the existence of the 1997 statute. I hope that the Minister will look carefully at what he has been asked to do.
The Earl of Onslow: I am sorry to return to this again. The Minister answered my first question clearly, and I thank him for that. What the Minister is trying to do is a good thing. I do not know whether Conservatives are allowed to say that about Labour politicians, but this one is going to say it. It is unfair to leave out the weakest possible people. At least if there are two of you, you can moan and whinge together about the little so-and-so who is misbehaving outside. The person who is alone and frightened should have greater protection. The Minister has a great deal of support for this measure. I hope that he will think again. We are trying to help the weakest people. If this place cannot do that, we should all be abolished.
Lord Williams of Mostyn: I am grateful for the general spirit in which the questions have been put. The answer to my noble friend Lord Mishcon is that a single person would be without remedy in this clause, because this is not a clause which is presently intended to deal with all ills that befall individuals. It is an antisocial behaviour order cast on a much wider basis and, as Members of the Committee observed earlier, completely new to our law.
However, I recognise that the amendments are not drafting amendments to improve what we have already determined; they are much more fundamental in asking us to cast the net much wider. The Government's present view is that the antisocial behaviour order is intended to be a wider remedy rather than individualised. I raise no hopes, because I know conventionally in the past that when Ministers have said, "We will give it careful consideration", that has been almost an implied promise, capable of being sued on. I am not saying that at all. I am just making it plain that I listened with care to the questions that have been put, to the propositions that have been offered, and I shall ensure that those observations are considered. It is more likely than not, even as regards the civil balance, that on the next occasion I shall say that we wish to retain our present position. That is perfectly likely and I do not
wish to mislead anyone. However, I have listened to the debate with care and will transmit the feeling of a significant majority of your Lordships to the Secretary of State.
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