§ 4.12 p.m.
§ Mr. Phillip Whitehead (Derby, North)I beg to move,
That leave be given to bring a Bill to amend the Justices of the Peace Act 1361.This Act was passed in the reign of Edward III to deal with the problem of the unemployed in the drastic fashion of those days. In this case the unemployed were soldiers returning from the wars with France after Edward III's Poitiers campaign who had become "pillers and robbers" in the words of the statute. So far, so good. We are against pillage and robbery. However, the Act goes wider than that. It has been put to many strange uses over the centuries. Even now the Royal Commission on Criminal Justice does not consider the Act to be within its terms of reference. That might have been one opportunity for considering it and amending it.The Act charges the justices to restrain and arrest those who are called "rioters and barrators" and to take various other measures and levy fines and terms of imprisonment. To none of that would I object. Much of it has been consolidated into other statutes. But the Act then goes on—and the House will have to pardon my Norman French—
de pndre de touz ceux [qui sont] de bone fame, ou ils sront trovez, souffisant seurete & meinprise de lo bon port, devs le Roi & son poeple, & les cuts duement punir".That, approximately translated, means:to take all of them that be of good fame,"—or not of good fame—where they shall be found, sufficient surety and mainprise of their good behaviour towards the King and his people, and other duly to punish".No one seems to know exactly what is the official version. There is dispute whether the person described in the statute is of good fame or not. The word "not" does not appear in the official statute. But this person, whether of good fame or not, can be bound over to be of good behaviour or to keep the peace without any charge being brought against him in circumstances that I shall outline.Financial sureties can be demanded and anyone who refuses to be bound over can be sent to prison for up to six months, even though he has committed no crime. 46 This ancient power has been used by the justices against eavesdroppers, night walkers, and common scolds. It was used in the last century against Salvation Army marchers. It was used against the leader of the hunger marchers, Tom Mann, and, more recently, against a mixed bag of parking fine protesters, nuclear disarmament campaigners, transvestites and Left-wing politicians.
One attempt to amend the Act in this House over 20 years ago was denounced by the present Lord Rawlinson as a charter for
those ugly gentlemen—and they are not so uncommon—whose practice it is to find a place from which they can watch a maiden lady disrobe."—[Official Report, 26th January 1960; Vol. 616, c. 55–6.]But such offenders can be charged with an offence. For example, they can be charged with conduct likely to lead to a breach of the peace and in such circumstances, if charged and convicted, they can still be bound over. The binding-over power in common law is not something I would wish to abolish, and this Bill does not seek to do that. It seeks to limit the power of the magistrates to confine or harass those whose conduct is not unlawful but of whom they may disapprove.Professor Glanville Williams, writing in the Modern Law Review, on cases where no breach of the law, actual or threatened, had taken place comments:
It is extraordinary that the humblest judicial functionaries should thus be able to indulge their fancy by formulating their own standards of behaviour for those who come before them.The case of Valerie Waters will be fresh in the minds of right hon. and hon. Members. On 13th November 1976, Mrs. Waters had been one of a number of antifoxhunting demonstrators at a meeting of the Atherstone Hunt. Driving away from the meet she was ambushed by a number of the hunting fraternity and physically attacked. Her car was damaged. As a result, four of the attackers were later charged with criminal damage and with conduct likely to lead to a breach of the peace. In court the following April they all pleaded guilty, were fined and bound over.Mrs. Waters was in court that day only as a prosecution witness, but the magistrates decided to bind her over, too. She refused and said that she was not on 47 trial. She was sent back into court and was sentenced to a month's imprisonment for refusing to be bound over. She lost her appeal and found herself in Risley as a criminal prisoner. I hope that hon. Members will agree with me that that procedure is neither right nor tolerable.
In the Lansbury case many years ago the justices, on hearing the appeal, made much of Blackstone's phrase that
preventive justice consists in obliging those persons whom there is probable ground to suspect of future misbehaviour, to stipulate with and give full assurance to the public that such offence as is apprehended shall not happen.But is it seriously our view that the law should compel a person to abjure conduct that is not unlawful and the deep personal convictions that go with it, or face imprisonment without any charge whatever being brought against him?I hope that the House will agree with me that binding over should apply only to those who are brought into court and charged with an offence. That will be the effect of the Bill. It will leave, perfectly properly, the other powers for dealing with troublemakers involved in the 1361 Act and other related legislation. The 1361 Act will still end sonorously—and this time I shall speak in English—with
the intent that the people be not by such rioters or rebels troubled nor endamaged, nor the peace blemished.But the law would then operate according to the principle enunciated by Dicey, which I commend to Conservative Members who might have some atavistic urge to oppose this Bill. It is thatno man is punishable or can be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.That is what this Bill seeks to establish and I ask leave of the House to bring it in.
§ 4.18 p.m.
§ Mr. Roger Sims (Chislehurst) rose—
§ Mr. SpeakerDoes the hon. Gentleman wish to oppose the Bill?
§ Mr. SimsYes, I do, Mr. Speaker.
I have great respect for the hon. Member for Derby, North (Mr. Whitehead), and for the energy and dili- 48 gence that he applies to various causes that he espouses. I suggest, however, that on this occasion his enthusiasm is misplaced. He has produced, after 600 years of the operation of this Act, one unfortunate case. It has been well said that hard cases make had law. The hon. Gentleman quoted from the Act, and I intend to do tile same, but in English. The opening words of the Act explain that its purpose is to assign certain persons
for the keeping of the peace".The object of the Act in assigning justices of the peace and indicating their powers was not only to deal with offenders but to deal with potential breaches of the peace so that if the justices considered that such a breach was likely they would have the power to bind that person over.This has been an extremely useful power. On average it is used in some 10,000 cases a year, the vast majority in circumstances where no actual offence has been charged against the individual involved. It has been of value to the courts in dealing with quarrelling neighbours, one of whom has taken out proceedings against the other and where, when they come to court, both they and the court realise that, far better than go through all the various arguments and differences of opinion that have led to the quarrel, they should both be hound over to keep the peace.
It is important to emphasise that if the justices are considering binding a person over, that person must be told what is going through the justices' minds and must be given an opportunity to make representations. Further, if he is bound over he has the right of appeal to a higher court.
No law-abiding person would need much persuasion to agree to be bound over to keep the peace, but surely if he does refuse, the court must have some sort of sanction. As to the person being "of good fame" or "not of good fame", the justices must in any case consider whether the person appears likely to disturb tile peace, taking into account his or her past conduct and any threats that he or she may have made. Whether the person is considered to he "of good fame", as the Act puts it, may not be relevant if there is a possible threat to peace. If it is to be necessary, as the hon. Member for Derby, North suggests, to prove that the person is not "of good fame", without 49 which proof such a binding over could not be made, this would make it extremely difficult for the courts to implement this sort of legislation. It would make it impracticable to use the binding-over power in the domestic disputes proceedings to which I have referred.
I oppose the Bill on the ground that the present powers serve a useful purpose. I also point out that the Royal Commission on Criminal Procedure is at present sitting and may well have something to say on the matter. We should not anticipate its report. Any change, in any case, should not be made in a piecemeal fashion.
§ This power has existed for 600 years. It has worked extremely well. It has given rise to very few causes for concern and should not be abolished in 10 minutes. On this ground, and on the ground that the Royal Commission's report is pending, I invite the House to deny the hon. Member for Derby, North the introduction of his Bill.
§ Question put, pursuant to Standing Order No. 13 (Motions for leave to bring in Bills and Nomination of Select Committees at Commencement of Public Business):—
§ The House divided: Ayes 94, Noes 117.
51| Division No. 227 | AYES | [4.23 p.m. |
| Allaun, Frank | Fletcher, Ted (Darlington) | Price, C. (Lewisham W) |
| Ashley, Jack | Foot, Rt Hon Michael | Roberts, Gwilym (Cannock) |
| Atkins, Ronald (Preston N) | Fowler, Gerald (The Wrekin) | Robinson, Geoffrey |
| Atkinson, Norman (H'gey, Tott'ham) | Graham, Ted | Rodgers, George (Chorley) |
| Bates, Alf | Grant, George (Morpeth) | Rooker, J. W. |
| Bell, Ronald | Hamilton, W. W. (Central Fife) | Rose, Paul B. |
| Bidwell, Sydney | Harper, Joseph | Ross, Rt Hon W. (Kilmarnock) |
| Bradley, Tom | Heffer, Eric S. | Ryman, John |
| Buchan, Norman | Hoyle, Doug (Nelson) | Sedgemore, Brian |
| Butler, Mrs Joyce (Wood Green) | Hughes, Rt Hon C. (Anglesey) | Sever, John |
| Cant, R. B. | Hughes, Robert (Aberdeen N) | Shaw, Arnold (Ilford South) |
| Cartwright, John | Hunter, Adam | Sheldon, Rt Hon Robert |
| Clemitson, Ivor | Jackson, Miss Margaret (Lincoln) | Silverman, Julius |
| Coleman, Donald | Janner, Greville | Skinner, Dennis |
| Cowans, Harry | Jones, Alec (Rhondda) | Stewart, Rt Hon M. (Fulham) |
| Cox, Thomas (Tooting) | Jones, Barry (East Flint) | Stott, Roger |
| Crawshaw, Richard | Jones, Dan (Burnley) | Taylor, Mrs Ann (Bolton W) |
| Crowther, Stan (Rotherham) | Lamborn, Harry | Thomas, Mike (Newcastle E) |
| Cunningham, G. (Islington S) | Latham, Arthur (Paddington) | Tilley, John |
| Dalyell, Tam | Lewis, Ron (Carlisle) | Wainwright, Edwin (Dearne V) |
| Davies, Rt Hon Denzil | McDonald, Dr Oonagh | Watkinson, John |
| Dean, Joseph (Leeds West) | MacFarquhar, Roderick | Whitlock, William |
| Dewar, Donald | McNamara, Kevin | Willey, Rt Hon Frederick |
| Doig, Peter | Maynard, Miss Joan | Williams, Alan Lee (Hornch'ch) |
| Dunnett, Jack | Mitchell, Austin (Grimsby) | Wilson, William (Coventry SE) |
| Eadle, Alex | Molloy, William | Wise, Mrs Audrey |
| Edwards, Robert (Wolv SE) | Newens, Stanley | Woodall, Alec |
| Ellis, Tom (Wrexham) | Noble, Mike | Wrlgglesworth, Ian |
| English, Michael | Oakes, Gordon | |
| Evans, Ioan (Aberdare) | Orbacn, Maurice | TELLERS FOR THE AYES: |
| Evans, John (Newton) | Palmer, Arthur | Mr. Max Madden and |
| Faulds, Andrew | Parker, John | Mr. Stan Thorne. |
| Fernyhough, Rt Hon E. | Prescott, John | |
| NOES | ||
| Adley, Robert | Fairgrieve, Russell | Joseph, Rt Hon Sir Keith |
| Atkins, Rt Hon H. (Spelthorne) | Fletcher, Alex (Edinburgh N) | Kimball, Marcus |
| Beith, A. J. | Fletcher-Cooke, Charles | King, Tom (Bridgwater) |
| Bennett, Sir Frederic (Torbay) | Forman, Nigel | Knight, Mrs Jill |
| Berry, Hon Anthony | Freud, Clement | Lamont, Norman |
| Blaker, Peter | Gilmour, Rt Hon Sir Ian (Chesham) | Lawrence, Ivan |
| Boscawen, Hon Robert | Gow, Ian (Eastbourne) | Lawson, Nigel |
| Bottomley, Peter | Grant, Anthony (Harrow C) | Le Marchant, Spencer |
| Brotherton, Michael | Gray, Hamish | Lewis, Kenneth (Rutland) |
| Buchanan-Smith, Allck | Grylls, Michael | Mabon, Rt Hon Dr J. Dickson |
| Buck, Antony | Hamilton, Archibald (Epsom & Ewell) | McNair-Wilson, M. (Newbury) |
| Butler, Adam (Bosworth) | Hamilton, Michael (Salisbury) | McNair-Wilson, P. (New Forest) |
| Cocks, Rt Hon Michael (Bristol S) | Hannam, John | Marten, Nell |
| Cope, John | Harrison, Rt Hon Walter | Mates, Michael |
| Crouch, David | Hastings, Stephen | Mather, Carol |
| Davies, Rt Hon J. (Knutsford) | Holland, Philip | Mawby, Ray |
| Dormand, J. D. | Hooson, Emlyn | Mayhew, Patrick |
| Douglas-Hamilton, Lord James | Howell, Ralph (North Norfolk) | Molyneaux, James |
| Dunlop, John | Hunt, John (Ravensbourne) | Monro, Hector |
| Durant, Tony | Jenkin, Rt Hon P. (Wanst'd&W'df'd) | Morris, Michael (Northampton S) |
| Edwards, Nicholas (Pembroke) | Jessel, Toby | Morrison, Hon Peter (Chester) |
| Elliott, Sir William | Johnson Smith, G. (E Grinstead) | Mudd, David |
| Eyre, Reginald | Jopling, Michael | Neave, Airey |
| Nelson, Anthony | Rhys, Williams, Sir Brandon | Tapsell, Peter |
| Normanton, Tom | Ridley, Hon Nicholas | Tebbit, Norman |
| Nott, John | Rifkind, Malcolm | Thatcher, Rt Hon Margaret |
| Onslow, Cranley | Roberts, Michael (Cardiff NW) | Trotter, Neville |
| Page, John (Harrow West) | Ross, Stephen (Isle of Wight) | Walker, Rt Hon P. (Worcester) |
| Page, Rt Hon R. Graham (Crosby) | Ross, William (Londonderry) | Walters, Dennis |
| Page, Richard (Workington) | Rost, Peter (SE Derbyshire) | Weatherill, Bernard |
| Pardoe, John | Scott-Hopkins, James | Whitelaw, Rt Hon William |
| Pattie, Geoffrey | Shelton, William (Streatham) | Whitney, Raymond |
| Penhaligon, David | Shepherd, Colin | Winterton, Nicholas |
| Percival, Ian | Shersby, Michael | Wrigglesworth, Ian |
| Peyton, Rt Hon John | Silvester, Fred | Young, Sir G. (Ealing, Acton) |
| Rathbone, Tim | Smith, Cyril (Rochdale) | |
| Rees, Rt Hon Merlyn (Leeds S) | Stainton, Keith | TELLERS FOR THE NOES: |
| Rees, Peter (Dover & Deal) | Stanley, John | Mr. Roger Sims and |
| Rees-Davies, W. R. | Steel, Rt Hon David | Mr. Nick Budgen. |
| Renton, Rt Hon Sir D. (Hunts) | Steen, Anthony (Wavertree) | |
| Renton, Tim (Mid-Sussex) | Summerskill, Hon Dr Shiney |
§ Question according negatived.