Criminalising “Annoyance”

On Wednesday the 8th of January, the government’s proposed Anti-Social Behaviour, Crime and Policing Bill was defeated in the House of Lords by a margin of 128 votes. Such an emphatic rejection should be welcomed. But, of course, the House of Lords is ultimately impotent: its powers only limited and advisory. It is worth examining this proposed bill, then, even if it is written in a soporific style apparently designed to deter even the most resolute reader.

This bill is intended to replace Anti Social Behaviour Orders with Injunctions to Prevent Nuisance and Annoyance (IPNAs). The threshold for criminal behaviour should be lowered, it is suggested, to encompass not just any activity that demonstrably causes “nuisance or annoyance” (as if that were too narrow a definition of punishable behaviour) but also any behaviour that may reasonably be believed to potentially cause irritation. It should be clear that the introduction of such legislation would amount to the criminalisation of a lot of ordinary, even quotidian, behaviour – from protesting to public speaking to the way we dress.

Certain caveats are stipulated: “prohibitions and requirements in an injunction under this section must, so far as practicable, be such to avoid any conflict with the respondent’s religious beliefs.” Nor should an injunction, if possible, compromise the ability to attend school, university or work. The first of these exceptions deserves, I think, a little attention. It is frankly extraordinary that provision is made for the right to express opinions or observe practices so long as they are religious in nature while no such protections are explicitly afforded to freedom of expression more generally. True, freedom of expression can be invoked from other legislative sources such as the European Court of Human Rights. But the fact that religious belief is treated with such deference as to be the only kind of expression invoked – and guaranteed against these proposed IPNAs – is extremely troubling.

It seems reasonable to me that somebody who falls victim to one of these petty injunctions should be allowed to visit a place of worship, for example. But the bill insists that any conflict with religious belief needs to be avoided. Is there really a reliable method of discerning between the religious rights of the serious and pious and those that may be invented and feigned in a bid to avoid an IPNA? Nevertheless, it is not my view that the religious rights of a recipient of an IPNA ought to be curtailed; but it is strange and anomalous for these rights to be the only kind to be protected.

The exaggerated respect accorded to religious beliefs and rights is only one aspect of the issue though, however important and telling. What is really risible is that authors of this bill and its signatories and sponsors – including Theresa May and David Cameron – are attempting to render annoying behaviour potentially criminal. Lord Faulks observed that IPNAs had to be applied for through, for example, a local authority and that this process would provide “an important filter.” Of course, not all applications for these injunctions would be successful but this misses the point. Any injunction against somebody indulging in behaviour that may be deemed to even potentially cause annoyance could be granted and it is a central principle of political freedom – expressed by Friedrich Hayek and many others – that we, as citizens, ought to be able to predict how the state will react to certain behaviours. Under this bill, the state’s use of power would begin to look something close to arbitrary and that would represent a serious depletion in freedom for all of us.