Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Elton: Perhaps I may put a thought in the Minister's mind. Far be it from me to try to judge between the desirability of my noble friend's amendment and those of the noble Lord, Lord Clement-Jones. But both attach the requirement of reasonableness to the behaviour. I have met people whose mission in life is to be annoyed and upset. In fact, it is addressing only one half of the problem. At Third Reading there should be some requirement for reasonableness in the person who is to be annoyed. When I was a child everybody who was annoyed with me was unreasonably annoyed. But now I regret that as an adult and as a man of more mature judgment, I still find some people's annoyance with me to be unreasonable and that should be somewhere in the Bill.

Baroness Hamwee: Perhaps that will be the Mildrew amendment. I speak to the amendments which are in my name. I notice that the noble and learned Lord, Lord Brightman, is longing to intervene. It may be more helpful to the Committee if he is able to bring his expertise to all the amendments rather than to just the ones which have been spoken to so far.

I speak to Amendments Nos. 12, 14, 19, 27, 28, 29, 30, 32, 33 and 34. The general point is the same. Amendment No. 12 is to apply to the new Section 153A conduct which is capable of causing nuisance or serious or repeated annoyance. The words "serious or repeated" are the subject of the amendment. Following the entirely correct point made by my noble friend Lord Phillips of Sudbury, who made this proposal originally, we have not sought to qualify the term "nuisance". I will come to that in a moment.

Amendment No. 14 would narrow the condition required to be fulfilled to conduct fitting the description which I have just given. Amendment No. 19 is to apply

23 Oct 2003 : Column 1785

the same description to conduct which entitles a landlord to apply for an injunction. Amendment No. 27 is similarly to define or limit behaviour which is the subject of the 1985 and 1988 Housing Acts, which deal with possession proceedings. Amendments Nos. 28, 29 and 30 similarly are concerned with the annoyance which the court must take into account when it is considering the effect of a proposed possession order under the 1985 Act. Amendments Nos. 32, 33 and 34 are similar amendments regarding the 1988 Act. I was not quick enough to spot that, for consistency, I should have tabled the same amendment to the Minister's Amendment No. 69.

At the previous stage of the Bill we were challenged by the Minister, as my noble friend Lord Clement-Jones, has said. He felt we were being rather soft. We were aiming to get the legislation to express accurately what the Government mean.

I do not regard it as an adequate response to a problem which my senior partner would have called sloppy drafting. We were told that "nuisance" and "annoyance" were adequate—a reliance on the judiciary. To say that it is sloppy drafting is not intended as a criticism of the Parliamentary counsel who dealt with it. I believe that it is slightly sloppy thinking because counsel will have reflected the Government's instructions.

The Minister told us to take a reality check. We have done so and we still find the Bill wanting in that regard. As my noble friend Lord Phillips of Sudbury said, "nuisance" is a term which is well-known in law and in its application by the courts. It does not need qualifying and should not be so. But "annoyance" is a term not known to common law in the same way. It is unsupported to any great extent by case law. It is not defined or described by the Bill. It is all very well to say that the courts will not grant an injunction or make a possession order if the behaviour in question is merely irritating. But I do not believe that we should be promoting legislation which allows for a disproportionate response and which relies on the courts to apply the reasonableness which the Government should apply in the first instance.

"Annoyance" is different from "nuisance", which is self-evident, otherwise it would not be necessary to use the two terms. It is evident to me that it is something less than "nuisance". The noble Baroness, Lady Scotland, referred to it in a letter, for which I thank her. She wrote,

    "Although 'annoyance' is perhaps something less than 'nuisance' the difference is slight".

She provided details of some cases which have considered the term "annoyance", but I believe only three referred to it rather than "nuisance". That is not very many considering our judicial history. The most relevant concerns the case of Tod-Heatly v Benham 1988. Lord Justice Bowen stated,

    "the expression 'annoyance' is wider than 'nuisance', and a thing that reasonably troubles the mind and pleasure—not of a fanciful person or of a skilled person who knows the truth"—

so perhaps not Victor Mildrew—

    "but of the ordinary sensible inhabitant of a house, seems to me to be an annoyance, although it may not appear to amount to a physical detriment to comfort".

23 Oct 2003 : Column 1786

That is a pretty low test to pass and too low for the legislation we are considering. I thank the Minister for the letter, but it passes the buck to the judiciary in an inappropriate way. It is not necessary because we have found ways of dealing with the term which strikes the right balance on the face of the Bill.

Finally, in her letter the noble Baroness, Lady Scotland, said,

    "It would not be in the landlord's interest to proceed with cases based on trivial complaints".

That is quite right. She went on to say,

    "Local authority landlords could lay themselves open to judicial review if they misused their powers in this way".

That is heading into a porridge of confusion which we can avoid. I hope that the Minister will take the suggestions which are being offered.

4 p.m.

Lord Brightman: My Lords, I must confess that I am a little confused by the proposed amendment. As the subsection stands, it reads:

    "This section applies to conduct—

    (a) which is capable of causing nuisance or annoyance to any person".

The amendment would read:

    "This section applies to unreasonable conduct—

    (a) which is capable of causing nuisance or annoyance to any person".

Like the late Mr Fowler, I am not enamoured of adjectives unless they are essential, but I wonder whether the noble Lord, Lord Dixon-Smith, could help by giving an example of reasonable conduct which is capable of causing nuisance or annoyance and unreasonable conduct which is capable of causing nuisance or annoyance. I could then see whether I feel that the adjective would satisfy the standards of Mr Fowler.

Lord Phillips of Sudbury: My Lords, I thought that my noble friend Lady Hamwee put the case extremely well and there is little more that needs saying. The difference between being irritated and annoyed is no difference at all. The noble Baroness, Lady Scotland, wrote after the previous debate when I moved the amendment. It is fair to say that the judgment of landlords is not always perfect. It is by no means impossible that if the test remains simply that of annoyance, there could be a feud between tenants leading to sustained pressure on the social landlord to bring action against one or more tenants on the grounds of, "I and my family are being annoyed".

A simple issue of good parliamentary draftsmanship is involved, while accepting that the issue derives from the instructions given by government. It is not good parliamentary draftsmanship to harness together nuisance on one hand and annoyance on the other. That is so largely for the reasons explained by my noble friend Lady Hamwee; that nuisance is a well-defined term. Moreover, the nuisance test at common law is strict. One cannot waltz into court and claim nuisance on the kind of grounds that will be available if, as an alternative, you can plead on grounds of

23 Oct 2003 : Column 1787

annoyance. That is my main complaint. Left on its own, annoyance could encourage thoroughly ill-considered, ill-advised and sometimes pressured court action on behalf of people who are grinding an axe.

Then one must consider what would be the position of the judge if he or she had to apply Section 153A without the amendments now being argued for. There is a limited discretion on the part of the judge if annoyance, plain and simple, is proven. I believe that we have a duty to try to make life as easy and practical as possible for the judiciary. That effect would be achieved by inserting "serious or repeated". That formula is common in employment contracts and is used to overcome precisely the problems we are contending with here. Dismissal is frequently expressed in contracts of employment as being possible where there is a serious or repeated breach of the terms of the contract. One realises that many terms of a contract, if breached on their own, should not be such as to entitle a severe remedy.

We are dealing here with severe remedies. We are dealing with injunctions and, in subsection (6), the fact that once the injunction has been granted the person against whom it has been granted shall not,

    "engage in conduct to which the section applies".

I suggest that not only must judges construe what "annoyance" means in this context, but so will members of the public. I believe that they do understand "serious or repeated" annoyance. If no qualification is made in the manner suggested, someone against whom there is an injunction is left in a wholly unsatisfactory position.

Finally, I agree with the noble and learned Lord, Lord Brightman, in the challenge he posed to the noble Lord, Lord Dixon-Smith. It was a nifty challenge because my good friend Lord Dixon-Smith will have some problem in answering it effectively. Furthermore—dare I say it?—considering the other amendment tabled by my noble friend Lord Clement-Jones, inserting the words,

    "reckless as to whether it causes",

annoyance, I am not sure that it is an easily applied test. The test of recklessness might be a little too high in relation to what I understand the legislation is directed at. "Reckless" is a very high test.

We on these Benches do not want to frustrate or impede the underlying intent of the clause, with which we wholly agree. I am not in business to shoot down amendments from our own side. However, I merely put in the mind of the House and the Minister that if he had to choose between the three amendments tabled, this might be the more practical and concrete.

Next Section Back to Table of Contents Lords Hansard Home Page