PICKETING OF COURTS (Hansard, 20 March 1979)

§ Mr. Rifkind
I beg to move, That the clause be read a Second time.
I am well aware that the question of picketing is controversial and goes well beyond this dispute and the question of the closure of the courts. Nevertheless, we are dealing with an emergency Bill, and the matter before the Committee at this stage is the appropriate procedure that should be permitted during this emergency.
We know that outside a large number of the courts in Scotland officials who normally work within the courts are seeking, by normal picketing methods, to prevent the entry into the courts of justice of persons seeking entry therein.
This is happening in two quite distinct sets of circumstances. On the one hand, it is happening in respect of sheriff courts and other buildings which are empty because of the strike and where the picketing is not significantly different from the picketing of any industrial premises during any industrial action. But picketing of a different nature is also taking place, and that is in those circumstances where legal actions of various kinds, albeit of a restrictive nature, are continuing.
For example, in the Court of Session and in the High Court of Justiciary a number of legal matters are still being determined by judges, and bail appeals 1451 are being heard by judges in certain of the courts. In certain of the sheriff courts trials are proceeding, sometimes because the sheriff clerks have not come out on strike and on other occasions because, although industrial action has been taken, it has not been completely successful. In those circumstances, the picketing of courts where legal procedures of various kinds are continuing to take place seems to me to be particularly objectionable. It is against the public interest and it is a form of picketing which cannot be justified, even in the present circumstances.
If, in a particular court, it has been possible to proceed with, say, a summary trial, and pickets outside that court are carrying out normal picketing, they are coming dangerously close to interfering with the administration of justice. What is the purpose of the picket, other than to try to prevent someone who has a legitimate purpose in entering the court from carrying out that legitimate purpose? If, in a particular sheriff court, there is a summary trial, or even a jury trial—in one or two of the sheriff courts this may still be possible—and that court is being picketed, what is the purpose of the picket?
Who are the pickets trying to prevent from entering the court? Presumably they will seek to dissuade the judge from entering the court. If they are unsuccessful in that respect, they will seek to dissuade both the prosecuting lawyers and the defence lawyers from crossing the picket line. If they are unsuccessful with the lawyers, presumably even the accused, if he has been out on bail, is a person who has to cross the picket line. Ministers are shaking their heads, but that is exactly what is happening in Scotland. Perhaps if they visited Scotland and realised what is happening in the courts north of the border—these things are not happening in England and Wales—they would realise the seriousness of the situation.
10.45 p.m.
If a summary trial is being held—as it is in several sheriff courts in Scotland—and if the court is being picketed, the accused has to go through the picket line, with all the problems that that involves. It is not simply the accused, because there are witnesses who are being called, either by the prosecution or by the defence. They have to take a very important decision whether to fulfil their legal requirements 1452 to attend the court as they have been summoned to do, and thereby cross the picket line. If they are trade unionists, it may be very difficult for them to decide whether to accept the request of the pickets and refuse to enter the court, thereby risking the wrath of the court and possibly being dealt with for contempt of court for refusing to attend.
If there are the occasional jury trials still being held in the sheriff courts, the people called for jury service also have to face the problem whether to cross the picket line and report for jury service and thereby be seen to help the administration of the courts or to accept that they should not cross that picket line.
It is not a decision that a judge, juryman, lawyer, witness or accused should have to make. Picketing a court of justice is different from picketing any other establishment. There is no problem if nothing is happening in that court. If the building is empty, no one is particularly aggrieved. But where legal proceedings are continuing, in however truncated a form, it should be a specific offence for a person to picket that court. At present, persons seeking to prevent others from entering court might already be coming perilously close to breaking the law, and I should be interested to hear the Lord Advocate's view.

§ The Lord Advocate
Has the hon. Member had a report from anyone who has been stopped by a picket from entering a court of law?

§ Mr. Rifkind
I had hoped that the Lord Advocate would answer my point. He has evaded the question and put a separate matter. In Edinburgh the sheriff court, Court of Session and High Court have been regularly picketed each and every day for a greater part of the day. On each occasion there have been legal proceedings inside the court.
The Lord Advocate has the ultimate responsibility. Is he satisfied that lawyers, judges and other members of the public should have to choose whether to cross a picket line or possibly break the law by failing to turn up in court? If not, how will the Government respond to that problem? We do not know whether it is already a criminal offence to seek to persuade someone against responding to a summons to appear in court. It is a legal matter. If it is already an offence, the new clause 1453 may be unnecessary. If not, why does the Lord Advocate feel that the Government need not act?

§ Mr. Sproat
I support most strongly the plea of my hon. Friend the Member for Edinburgh, Pentlands (Mr. Rifkind). If the Lord Advocate indicates his view, it may not be necessary to have the new clause. Picketing of courts is the most objectionable kind of picketing that can be imagined.
The Lord Advocate asked for examples. I have had no evidence so far of anyone who has been stopped from entering a court, but we have heard that the strike could go on for weeks or months. If tempers get inflamed and the strike becomes more bitter, one could imagine that happening in one's more nightmare moments. Those who work in court might decide every two or three years that they are underpaid, and strikes could become a regular feature of our way of life. If that happened, pickets could well take it into their heads to seek to persuade people not to enter court and bring improper pressure to bear.
We have already this year experienced other sorts of pickets outside places of work, taking people's names and threatening to ensure that in future they are blacked. Pickets could begin to black people entering the courts, in the same way as they black road hauliers and companies using those hauliers. The new clause is designed to prevent that.
I hope that the Lord Advocate will either accept the spirit of the new clause or tell us that any sort of picketing of the courts of law is illegal, and that if evidence were brought of pickets trying to interfere with the course of justice those concerned would be subject to legal action.

§ Mr. Millan
It would be unwise for the Committee to accept a new clause of this sort. The law of picketing is difficult and controversial. It would be very unwise for me to agree to amend it, even if I accepted the merits of the new clause, which I do not.
The new clause is defective anyway, because it provides for an offence without a penalty. I do not want to see that written into Scottish law. It is an interesting concept, but I do not want to consider it at this hour of the night.

§ Mr. Fairbairn
If I may twist the tail of the Secretary of State back in his own face, may I ask him whether there are any other premises in the land where, if a picket persuades someone attempting to enter that he should not do so, he becomes the subject of a criminal penalty? If there is not, we are not inventing a crime without a penalty, but a penalty without a crime.

§ Mr. Millan
That is inaccurate and has nothing to do with that point that I was making about the clause being defective. Even if it were not defective, I would not be in favour of it.
It is unwise to attempt to right the law of picketing in this way. Picketing is allowable if it is peaceful. The Lord Advocate made a statement about the law of Scotland on picketing in a written answer on 31 January. That answer bears reading because it sets out the position clearly.
People are free to cross picket lines at any time. There is no legal right to turn people away. Therefore, there is no question of a picket at a court of law compelling anyone who wishes to cross the picket line not to do so. The Lord Advocate asked the hon. Member for Edinburgh, Pentlands (Mr Rifkind) whether he has any information of illegal picketing, intimidation, or of people being turned away from the courts unreasonably or improperly, whether they were judges, sheriffs, police, witnesses or accused. He did not answer that, so I assume that there is no such evidence. If there were any evidence of improper or illegal picketing in this dispute, the right course would be to give that evidence to the police, who would then be able to see that the law was upheld.
It would be very unwise to put this new clause in the Bill, and in the circumstances I do not recommend it.

§ Mr. Rifkind
The Secretary of State has given an unsatisfactory reply. He has stated that he has received no evidence of any illegal picketing or intimidation being carried on outside the courts of Scotland. At no time did I suggest that there had been, and that was not the point of my new clause. The picketing that I have seen in Edinburgh has been entirely peaceful, within the present law and without the unfortunate 1455 features that there have been in other disputes.
The point that I was making, which obviously failed to penetrate, was that even peaceful persuasion outside a court of law, when there are proceedings going on within the court, is improper and should not be permitted. The purpose of picketing—even peaceful persuasion—is to seek to persuade witnesses, the accused or others involved to fail to perform their public and legal duty of appearing in court. The Secretary of State is putting members of the public in an invidious position—particularly ardent trade unionists. He is saying that if they are required by law to attend as a witness any court during the course of the dispute, and if in order to enter that court they have to cross a picket line—albeit of peaceful persuasion—they have to choose between going against their principles and crossing the picket line, and maintaining their principles and thereby incurring the strong likelihood of being fined for contempt of court. A trade unionist may feel strongly about crossing picket lines—unlike the Secretary of State—and the choice is unfair.
The choice is more likely to have to be made as a result of the emergency legislation, because the point of the Bill is to facilitate a greater number of court proceedings than there have been in the last few weeks. If the Bill has any effect, the possibility of people being required to attend court will increase, and therefore the number of people expected to cross a picket line in order to fulfil their legal duty will also increase.
The Secretary of State has failed to understand the purpose of the new clause, much less to answer it. He is showing gross insensitivity to the problems of those members of the public in Scotland who have to cross a picket line to fulfil their legal duty.

Mr. Deputy Speaker (Mr. Bryant Godman Irvine)
I should inform the House that Mr. Speaker has selected the manuscript amendment in the names of the hon. Member for North Angus and Mearns (Mr. Buchanan-Smith) and the 1456 hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn).