Lord Dear is a former Chief Constable of the West Midlands Police
In 1986 there was a change in the law. At the time it was seen as a tidying up exercise of legislation from half a century ago. To its critics, it was the legislative response to the miners’ strikes. Either way, it gave the police the power to arrest those who behaved in an aggressive, threatening, or insulting way – even if it was unintentional.
Over time this legislation evolved from something designed for the heat of civil unrest into a catch-all law. Almost anything could be seen as insulting – even a street preacher reciting the Bible, a student telling a police officer his horse looked “gay” and an atheist with a sign saying religions are “fairy tales”.
No wonder it led to around 20,000 arrests in 2009 and 18,000 prosecutions, and had a chilling effect on free speech and the ability of many people to protest.
Next month, my colleagues in the House of Lords will finally be successful in amending this widely abused law. An amendment inserted by them against the wishes of the Government comes into force on 1st February, deleting the law against unintentional insults. It should be a cause for much celebration by the most unlikely of coalitions, which not only crossed the political divide, but included diverse groups and individuals such as the Christian Institute, National Secular Society, Big Brotherwatch and Peter Tatchell – but it is not.
This unlikely coalition has instead re-formed to challenge an even more dangerous piece of legislation, the Anti Social Behaviour, Crime and Policing Bill. The draft legislation, although containing many sensible measures which aim to deal with the invidious problem of yobbish and loutish behaviour, something I personally encountered many times in my 40 year career in the police, nonetheless plans to make annoying and nuisance behaviour illegal.
It seeks to do this by scrapping ASBOs and replacing them with Injunctions to Prevent Nuisance and Annoyance, or IPNAs. Now, outlawing nuisance and annoying behaviour might sound like a jolly good thing to many people, but the definition of what is annoying and a nuisance, is so wide that it risks outlawing many hitherto reasonable and lawful acts.
Even the former DPP, Lord MacDonald concluded that the legislation constitutes “gross state interference”, and that the wide remit could lead to many ordinary people facing court action. His point and the concern of campaigners is that the draft legislation is so badly worded that literally anyone and any action is capable of being annoying, or causing a nuisance to someone. And the eleventh hour amendment tabled by the Government last month, was too little too late.
And it’s not just civil liberty groups and peers calling for substantial changes. The Association of Chief Police Officers has joined them, apparently recognising it would put officers into an almost impossible position.
The low evidence thresholds and lack of safeguards means a lone individual standing outside the entrance to a bank holding a sign objecting to its role in the financial crisis could, in the words of Lord MacDonald, “meet the criteria and threshold for an IPNA”. The bank could argue that such a protester was annoying and causing a nuisance to their customers.
A busker outside a shopping centre, a street preacher proclaiming the end of days to passers-by, or a member of the public protesting outside a politician’s office for the way they abused their expenses may all be capable of causing nuisance and annoyance to some person and therefore could all find themselves on the wrong side of this law. Even if the Courts do throw some ridiculous cases out, the judicial process can seem unwieldy and overly oppressive to those hauled before the Court and prohibitively expensive to those with just well off enough to miss out on legal aid.
Setting this aside the fact is that the police and indeed local authorities have better things to do with their time. It is right that they work to tackle actual anti social behavior, vandalism, loutishness and thuggery, but the scrapping of ASBOs and their replacement with IPNAs junks more than a decade of work by the these agencies, the Courts and others. It wipes clean the legal understanding and framework of this area of law, which could well mean the guilty slipping through the net, while the innocent get caught.
Previously a cross party groups of MPs and peers had asked the Government to use the current definition of anti-social behaviour, “conduct that has caused, or is likely to cause, harassment, alarm or distress to any person” – but the Government has determined to press on, forcing a showdown with the House of Lords.
Campaigners, civil liberty groups and politicians of every hue had hoped to avoid this type of confrontation preferring compromise and negotiation. So today my colleagues in the House of Lords and I will seek to move an amendment with a heavy heart. If we win the vote it will probably force the Government into an embarrassing climb down. If we fail, then the Government will have succeeded in extending its reach into almost every area of our lives. It will be able to regulate and outlaw our behaviour on an unprecedented scale.