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Lord Henley: My Lords, I obviously agreed with much of what the noble Lord said. That was before he started to address the amendment itself. I accept that there are evils and mischiefs here which need to be addressed. That is why I made it quite clear that, generally speaking, we are content with the thinking behind Clause 1. That is why we accept that there should be antisocial behaviour orders.

As I thought I made clear, and as my noble friend Lord Renton made clearer, we believe that it would be better to have the wording which we have suggested; that is, if we keep to "harassment, alarm or distress" and use those three words in Clause 1(1)(a) and (b).

However, it seems that I have failed to persuade the noble Lord. It matters not much because I accept that we still have the words "harassment, alarm or distress" and, as I understand the noble Lord's explanation, the antisocial behaviour will be limited to that. The antisocial behaviour cannot go beyond "harassment, alarm or distress".

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I know that this is Report stage but I ask the noble Lord to accept that that is the case. It would probably be possible for me to withdraw the amendment on the basis that the antisocial behaviour is so limited.

Lord Williams of Mostyn: My Lords, bearing in mind that this is Report stage, I am trying to be helpful. I do not believe that the drafting could be clearer than it is in Clause 1(1)(a) which states:

    "that the person has acted ... in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress".

I do not believe that it could be plainer as a matter of drafting and I am happy to give that assurance.

Lord Henley: My Lords, I thank the noble Lord for that assurance. I am sorry that he is not prepared to accept the amendment, but in the light of his considerable reasonableness on later amendments, it is right that I should withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Henley moved Amendment No. 2:

Page 1, line 15, leave out ("two") and insert ("one").

The noble Lord said: My Lords, as I said, I am grateful that the noble Lord has been able to add his name to the amendment. I always understood that only four noble Lords could add their names to an amendment, but on this occasion I am grateful that a fifth has been permitted so we are quite clear that the noble Lord accepts the amendment that we put forward and has agreed that the amendment should go on the statute book.

I am grateful to the noble Lord for taking the trouble to write to me and other noble Lords in his letter of 4th March in which he set out why, on balance, after considering those matters, he was prepared to accept the amendment.

We had a considerable debate about this in Committee. A number of noble Lords made the case very clearly that there may be occasions when those suffering from the mischief were solitary individuals, rather than two or more persons, and that those persons would not necessarily have the benefit of the protection provided by the Protection From Harassment Act 1997. Therefore, the protection which orders of this sort can provide may also be appropriate for them.

As I said, I am extremely grateful to the noble Lord for accepting our arguments and adding his name to the amendment. I beg to move.

Viscount Tenby: My Lords, as the noble Lord will be only too well aware, it takes a lot to silence a Welshman. However, on this occasion I shall summon enough air into my lungs to give him a very warm "thank you" in eager anticipation of his answer.

Lord Williams of Mostyn: My Lords, I have never heard such an aspersion cast against my fellow countrymen in the past.

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Amendments Nos. 2 and 26 are grouped together and it may be convenient if I speak to them now. We had a very focused debate on this issue in Committee. We promised that we would think about the matter very carefully. It seemed to those of us on this side who were listening to that debate that there was a good deal of virtue and point in what was being said. All three of us undertook, when we started this Bill, to listen genuinely with an open mind and we said that if the Bill could be improved, consistent with its philosophy and structure, we should accept amendments. Therefore, I am more than happy to do so.

The noble Lord said that I had written to him on occasions and I did so on 11th and 12th March. I was able to say then, so that I shall not return to congratulate us all subsequently, that on 11 separate issues, we have tabled amendments on Report to give effect to points raised in Committee. Therefore, that is not the mark of absolute Neanderthal resistance to all possible suggestions of improvement. In fact, quite the opposite, if I may respectfully say so.

Originally we thought that this should better be cast as two and not one. My noble friend Lord Mishcon gave examples which we thought were important and other noble Lords assisted. It was thought that that remedy might be of general validity if it were cast in the way for which the noble Lord, Lord Henley, contended. I am more than happy to accept his amendment, to which I have attached my name, and also to indicate that in due time, having addressed the issue, I shall formally move Amendment No. 26 which is along the same lines.

Lord Windlesham: My Lords, before we leave this amendment, the moment should not go unrecorded. This is the sixth day in Committee and on Report and I believe it is right to say that this is the first amendment, other than those tabled by the Government, which has been accepted. Therefore, it is an important moment.

I acknowledge what the noble Lord, Lord Williams, has just said; namely, that he gave undertakings on numerous occasions throughout the Committee stage to look again at matters that had been raised. As he has just told us, there are 11 separate matters on which he will be accepting amendments today. I welcome that.

My feeling is that it could have come a little earlier in Committee. I do not say that necessarily in a spirit of censure but, if it is not out of order to make those points about the handling of the Bill, it is better to have repentance now rather than to look forward to it in the future.

On Question, amendment agreed to.

[Amendment No. 3 not moved.]

Lord Goodhart moved Amendment No. 4:

Page 2, line 7, at end insert--
("( ) A person shall not be treated under subsection (1) above as having acted in an anti-social manner if his acts are neither motivated by an intention to harass or cause alarm or distress to other persons nor likely to cause serious and justified alarm or distress to other persons.").

The noble Lord said: My Lords, this is an important amendment; indeed, I suggest that it is a most important one. Like a number of other noble Lords, I expressed a

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view both on Second Reading and in Committee that the definition in the Bill of acting in "an anti-social manner" in Clause 1 is dangerously wide. An antisocial behaviour order is a very powerful weapon indeed. As it stands, and subject to debate on other amendments on the Marshalled List, it must be imposed for a minimum period of two years during which time it cannot be discharged without the consent of the local council or of the police. A breach of an antisocial behaviour order is a criminal offence and may result in a five-year gaol term. The order may be imposed as a result of conduct which is not at all criminal, or as a result of criminal conduct carrying a maximum penalty of very much less than five years.

I accept that there are some circumstances in which such an order would be justified. Such circumstances could be persistent threatening and abusive behaviour, whether it affects a neighbourhood generally or specific individuals within it. Such conduct needs to be controlled. So, indeed, does seriously disturbing behaviour, even if it is not threatening and abusive, such as frequent, rowdy late-night parties in a block of flats with inadequate sound proofing.

However, an order as powerful as the antisocial behaviour order in the Bill needs a correspondingly serious level of misbehaviour to trigger it. All that is required at present to trigger the order is that the defendant has acted,

    "in a manner that caused or was likely to cause harassment, alarm or distress".

There is no test of the seriousness of the alarm or distress and no requirement that the alarm or distress felt by the victim should be objectively justified. We think of neighbours from hell as abusive, drunken, drug-dealing households which play loud music and hold all-night parties. But there is another type of neighbour from hell; namely, the over-sensitive neighbour who objects to the noise of normal children or who complains whenever a television set is switched on, however low the sound may be, after nine o'clock in the evening. The distress of such households may be genuine--indeed, it frequently is--but it cannot justify the making of an antisocial behaviour order.

It is possible to say--and no doubt the Minister will do so--that, in such a case, the council or the police are unlikely to apply for an order and that, if they did so, a court would be unlikely to grant it. However, I believe that there are two answers in that respect. First, harassment by councils or the police in the sense of taking unjustifiable action against local residents is not unknown, especially against people who are unpopular for many reasons, some good and some bad, in the community in which they live. Secondly, if the conduct does not deserve a penalty, then the law should not make it potentially subject to such a penalty. One should not be penalised by law and unpenalised by the exercise of discretion.

I have revised the amendments which I tabled in Committee. I hope that the amendment now before the House is clearer and better expressed, although I accept that it is no doubt capable of further improvement. The proposed new subsection, as set out in the amendment, is in my view reasonably self-explanatory. It would

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tighten the definition of acting, "in an anti-social manner", and would divide conduct into two classes. The first is where the motive of action is itself to cause the alarm or distress. That might be described as bullying. In that case, I accept that the seriousness of the alarm or distress is irrelevant, so long as at least some is caused or likely to be caused.

However, that probably applies to a relatively small number of cases. Indeed, in most other cases the causing of alarm or distress is not actually the motive for the conduct. In such cases, I believe that the alarm or distress must be serious and justified; that is to say, the conduct of the defendant must be such as would cause alarm or distress to a reasonable person.

I find it very difficult indeed to accept that, if one or other of those tests is not satisfied, an antisocial behaviour order can be justified. Without those tests the order is over-strict, rigid and inflexible. The trouble with the definition--to borrow a phrase from another context--is that it allows no margin of appreciation. I believe that the circumstances which trigger an antisocial behaviour order should be modified in the way proposed in my amendment. That would greatly improve the application of the order as it now stands in the Bill. I beg to move.

3.30 p.m.

Lord Renton: My Lords, I have always had great respect for the learning of the noble Lord, Lord Goodhart, whom I have known as another member of the Bar for many years. However, I have very grave doubts about his proposed amendment. Under the Bill as it stands, we find in subsection (10) that, on indictment--which means that a jury considers the matter--there may be imprisonment for five years. We must consider this in a way that will ensure that the court can enable the jury to understand the matter; in other words, to understand what has happened. Indeed, the matter is positively expressed as it stands in subsection (1), with or without the amendment proposed by my noble friend Lord Henley, for which much can be said. However, if we were to accept Amendment No. 4, we would find that subsection (1) would be paraphrased in a somewhat negative way.

There is the further disadvantage in that in subsection (1) an antisocial manner is defined as,

    "a manner that caused or was likely to cause harassment, alarm or distress".

If the noble Lord's amendment were accepted, a subjective test would be introduced; namely, whether the antisocial manner was motivated by an intention to harass or cause alarm or distress. I can imagine a jury becoming most confused when faced with both those options. I believe that members of a jury could become confused if they had to be advised on the exact meaning of both those expressions as regards what underlies the offence.

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