The Reform Clause 1 campaign succeeded in its aim to amend Clause 1. The change is now incorporated in Section 1 of the Anti-Social Behaviour Crime and Policing Act 2014 and came into force in October 2014.


December 12, 2013

Last week Home Office minister Norman Baker emailed MPs attacking the Reform Clause 1 campaign. He claimed that some of our concerns were “utter nonsense”, despite those concerns being shared by former Director of Public Prosecutions Lord Macdonald QC, the Association of Chief Police Officers, civil liberties, religious and secular groups, and parliamentarians across the political spectrum. We duly responded to put the record straight. Read our response below.

Former DPP: Clause 1 safeguards are “shockingly low”

Mr Baker’s letter did not engage with the thirteen page legal advice issued by his Liberal Democrat colleague, the former Director of Public Prosecutions Lord Macdonald QC, who says:

“it is difficult to imagine a broader concept than causing ‘nuisance’ or ‘annoyance’. The phrase is apt to catch a vast range of everyday behaviours to an extent that may have serious implications for the rule of law.” [Para. 29]

“In my view, the combination of a low and vague threshold for the behavioural trigger, coupled with the civil standard of proof, creates an unacceptable risk that individuals will inappropriately be made subject of a highly intrusive measure that may greatly impact on their fundamental rights.” [Para. 36]

“The danger in this Bill is that it potentially empowers State interference against such activities in the face of shockingly low safeguards and little apparent acknowledgment of the potential effect of its provisions on the ability of citizens to exercise core rights without undue interference.” [Para. 48]

You can read his full legal opinion here.

The minister quotes a Law Society parliamentary brief in support of his position. It is not a legal opinion and does not refer to Lord Macdonald’s arguments. Crucially, it focuses entirely on housing law – see below.

Home Office: Judges won’t outlaw your annoying behaviour unless it’s ‘convenient’

Mr Baker says:

“It is not enough to show that the individual’s behaviour caused nuisance and annoyance. We all suffer annoyance in our daily lives and, of course, there is no place for the criminal or civil law to regulate behaviour simply because it is annoying. The second part of the test means that the court will also need to be satisfied that it is ‘just and convenient’ to grant an injunction to prevent the individual from engaging in anti-social behaviour.”

Mr Baker effectively admits that ordinary annoyance could be enough to satisfy the first part of the test. He relies heavily on the second part of the test. This argument is, in part, circular because “anti-social behaviour” is defined as “conduct capable of causing nuisance or annoyance to any person”.

Most worrying is his insistence that we must trust the courts. The Home Office wants to burden judges with implementing a law of immense vagueness and breadth that allows them to forbid people from any conduct “capable of causing nuisance or annoyance to any person”. They will, apparently, only apply it when it is “just and convenient” – a test that is even more vague and meaningless than “nuisance or annoyance”.

Borrowing a threshold from housing law doesn’t mean it will work everywhere else

The Home Office makes much of the fact that the ‘annoyance’ threshold currently operates in Anti-social Behaviour Injunctions (ASBIs) that apply to social housing. But, as Lord Macdonald’s opinion argues (see paragraphs 9 to 15 and 37 to 38), there are other safeguards that apply in that context – not least the fact that only housing providers can apply for them, and then only in relation to their housing management functions.

Annoyance from a neighbour’s loud music, which you cannot get away from, is quite different to annoyance from someone preaching or protesting in the high street. ASBIs don’t apply to the public square; anti-annoyance orders will. It is worrying that the Home Office cannot see the difference.

The Law Society briefing to which Mr Baker refers supports the retention of the nuisance and annoyance test in the housing context. We agree with this, hence the amendments we support would only apply to conduct outside of the housing context. Where injunctions are sought against conduct in the broader public square, our amendments would raise the threshold from “nuisance or annoyance” to “harassment, alarm or distress” (the same as the current ASBO). This change is advocated by the Association of Chief Police Officers (see para.10).

We also favour retaining the ASBO’s “reasonableness” defence. In every other way, our amendments would leave the Government’s attempts to streamline anti-social behaviour law intact.

The Reform Clause 1 campaign to amend IPNAs to protect free speech is supported by the same alliance of politicians, civil liberties, religious and secular groups that backed last year’s successful campaign to reform Section 5 of the Public Order Act.

An amendment to remove the term ‘insulting’ from its scope was passed in the Lords despite opposition from the Government. The Government later accepted the amendment, which comes into force on 1 February 2014.

You can read Norman Baker’s letter here.