“Christ, Dad – you’re so annoying” is usually the response at any refusal by me (a) to be an on-call taxi service (b) to lend money as against a promise to empty the dishwasher for a week, starting at some ill-defined date in the future or (c) to decamp from the sitting room so that the big TV can be used to host an Xbox games evening. Troubling as these woes might be for my children, should they really leave me exposed to potential legal liability?
Laughable surely? Not quite – not really. Having made its way reasonably stealthily through Parliament, the Anti-social Behaviour, Crime and Policing Bill nears its end point. It has its Committee stage on the floor of the House of Lords tomorrow, 12th November. It’s already passed through the Commons. What has this got to do with my moaning teenage offspring? If the Bill becomes law, though I would not be exposed (for reasons set out below), other forms of annoyance could well be captured. Section 1 permits a court to grant an injunction if it is
satisfied, on the balance of probabilities, that [X] has engaged or threatens to engage in conduct capable of causing nuisance or annoyance to any person (“anti-social behaviour”).
I would be exempt from action – or almost certainly so – if I dropped below the standards expected by children of their parents since the power to seek an injunction rests only with certain, and various, public bodies, such as local authorities, housing providers and the police (clause 4). As is the modern way, this list is capable of extension by ministerial order which, in turn, would invoke very limited parliamentary scrutiny at best as a statutory instrument.
What is – I would hope obviously – more of a worry is the effect on free speech, on campaigning and protesting. There is little point in engaging in many forms of political activity if no one is going to be disturbed, if no one is going to notice. In by now a reasonably well-known incantation in the early days of the HRA, in 1999, (in Redmond-Bate at ), Sedley LJ offered the view that
Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.
In this short post, I just want to offer a few thoughts.
First, it must be very hard indeed to predict, in advance, what sort of behaviour will be captured, targeted indeed. At the very least, such a wording must raise real concerns for the “prescribed by law” test at the heart of the protection of free speech and peaceful protest under the HRA, in Arts. 10-11, and indeed – to use less “foreign” phrasing (!) –with the underlying tenets of the rule of law. Recent history has shown the problems caused when statutory terms are ill- or un-defined. Anti-social behaviour orders, ASBOs, under s.1 of the Crime and Disorder Act 1998 are a good case in point: see evidence collated by Statewatch, here).
Second, it seems to undermine the good work achieved by removing the trigger of “insulting” from s.5 of the POA. It is surely far easier, to be “annoying” or “causing nuisance” than it is to insult, easy as that was under the former provisions. While of course, it is true that the new IPNAs (injunctions to prevent nuisance and annoyance) are civil only, there is the power in cl 3 to attach a power of arrest for breach leaving the annoyance-maker or nuisance-provider liable to summary arrest on reasonable suspicion, under cl 8. For most campaigners a chilling restriction is a chill, no matter its provenance – whether criminal or civil.
Third, there is protection for religious rights (cl 1(5)(a): “prohibitions and requirements in an injunction … must, so far as practicable, be such as to avoid (a) any conflict with the respondent’s religious beliefs.” It is hard to fathom why that has been carved out for special treatment and nothing for the trestle-table campaigner or leafleter in everyone’s way on a Saturday, let alone more obviously “annoying” protesters. While there is a 2nd element that the court must address before deciding to grant an injunction – that it considers it “just and convenient to grant the injunction for the purpose of preventing the respondent from engaging in anti-social behaviour” (cl 1(3)), that is a long way from a fully-fledged protection for all Convention rights, and specifically for those wishing to engage and participate politically. While, clearly it would allow a court to “read in” protection for free speech (using s.3 of the HRA) or, indeed, would be obliged to bear in mind those rights given its public authority status under s.6, giving a clear adjuration – “nothing in this section is intended to limit the right of free speech and peaceful assembly under Articles 10 and 11 of the ECHR” would have provided greater re-assurance to those legitimately worried by the threat it poses. After all, there is a statutory defence in s.1(3) of the Protection from Harassment Act 1997 – that the course of conduct was reasonable in all the circumstances – and that has not prevented its application to a host of campaigning protesting and direct action groups such as animal rights activists, anti-GM campaigners, arms protesters and those opposed to airport expansion. In fact, judges have found it hard to dissimilate lawful protest from unlawful harassment. During the long-running litigation surrounding the development of the Oxford research lab – when the university sought PFHA injunctions (Broughtonat ), Treacy J commented that in his judgment, “interaction, even by a limited number of people, is likely to have the effect of amounting to intimidation and harassment.” If that is so, how much easier will it be to show annoyance or nuisance?
Last, it is objectionable as a matter of principle, surely, for the state to seek to define, and then to control, what is and is not “annoying” – heavily-loaded, almost entirely subjective terms, as the introduction to this blog attests. The threshold is placed so low that it is little more than a competition of constitutes good taste and decency. It is a point I have made before – and the words are not mine by Professor David Feldman’s – but is now not the time for some “coerced toleration”, as the price to be paid for living in a heterogeneous society?
A short post is not the place properly to explore the issues but, given the imminence of debate in Parliament, I thought it might be useful to make clear some views. One last point, unless there is some movement by the Government, the Bill, if passed, will sound the death knell yet further for the coalition’s promise (p.11) to “restore the right to non-violent protest” – time perhaps to put money where the mouth is?