§ Search for offensive weapons
7.30 pm§ Mr. Norman Buchan (Renfrewshire, West)I beg to move amendment No. 18, in page 5, line 43, at end add—
'(5) Nothing in subsection (1) above shall authorise any constable to search any person or persons on a random or group basis.'.Throughout the protracted Committee stage we turned repeatedly to the new police powers in relation to the names 583 of witnesses, detention, and, above all, the powers of search. The last was a measure that we resisted most strongly. It is precisely because of our concern for the preservation of law and order that we are disturbed about these new powers. Law and order require a willing co-operation between the authorites and the community, and our anxiety throughout has been that if the powers of search go ahead as proposed they will lead to a breaking down of law and order because they would create conflict between the young people in our cities and the police.That kind of power—one that would have led to indiscriminate or group search—was argued for by the Conservative Party during the election and by Conservative Members during the course of the proceedings on the Labour Government's Bill. Let me quote the words of the Solicitor-General for Scotland—it will be the only time that I quote him—
§ Mr. Donald Stewart (Western Isles)No, no, no. Do not deprive us.
§ Mr. BuchanYes, I shall be moderate in my quotations tonight. This will be the only time. I give testimony to the hon. and learned Gentleman's assistance on another matter affecting another piece of law over the past day or two. He has been extremely helpful on that. In his approach to these new proposed powers, however, he is wrong-headed and reactionary. The quotation demonstrates the Conservative view on the powers of search and the reason for our initial anxieties. Speaking to an amendment he had moved he said in Committee on the last Government's Bill
under the amendment the police could search all the people in the dance hall if necessary in order to eradicate the knife from further use".The right hon. Gentleman was describing a situation in which a knife had been used. He continued:Let me take another example—a gang of youths forming a mob. There are more cases now than there used to be. If a policeman saw a mob of youths shouting 'Up the Yogi'—or whatever funny gang they belonged to—he would be entitled, seeing their mood, to search them to ensure that none was carrying a weapon.In the first place that policeman would be a braver man than I if he decided to institute a search in such a situation. At that time the Conservatives envisaged the powers of search as permitting the random searching or frisking of young people. We 584 believe that that would lead to a breakdown of law and order and of relationships between young people and the police.We were doubly anxious because the then leader of the Conservative Party in Scotland—now translated to being the hon. Member for Southend, East (Mr. Taylor)—said the same thing on the same Bill. He, too, spoke of a disturbance in a dance hall. The Tory Party has an obsession with dance halls. Presumably Conservative Members think that no Tory voters go to dance halls. The hon. Member said:
if there were a disturbance in, say, a dance hall, the police should have the power to search all those involved and coming out. That is different from the present position and that is what we are aiming at in the amendment."—[Official Report, First Scottish Standing Committee, 25 January 1979; c. 69-82.]Therefore, our anxiety always was whether the provisions in this Bill would lead to the indiscriminate search that the Tories were calling for in opposition. The position altered during discussion on the Bill. The Under-Secretary, explaining this clause, said very firmly:It is not the Government's intention that the police should have random powers of search, either for ordinary members of the public or for members of the public who have in the past transgressed the criminal law. Therefore, we are not dealing with the realms of random search, either for the general public or for any individual. There must be reasonable suspicion that on the occasion in question the individual whom the police wish to search is carrying an offensive weapon. That is the important point.So the emphasis had altered. The concern now is in relation to individual rather than group search, and the Under-Secretary claimed that that was what the Bill sought. He went further and said:before the police use this power their suspicion should have crystallised on an individual or individualsHe repeated that phrase, a good phrase, and said:So the police must have their suspicion crystallised on an individual or individuals whom they propose to search before the power would be appropriate.Those were the assurances that were given. The Government had therefore resiled from the position on which they had fought the law and order ticket in the election. They have resiled from the position they put forward on the Labour Government's Bill when they sought a portmanteau or random search. Now 585 they say that the power of search would be used only where the suspicion had "crystallised" on a particular individual.The Opposition, who are, not unnaturally, suspicious, because the general tenor of the Bill is punitive, repressive and reactionary, probed further. We pointed out that the Conservatives had changed their tune. We suggested that if the Bill sought to provide what the Government were now proposing that should be written specifically into the Bill. We sought to make an amendment to write in "any one particular person", but it was rejected by the Under-Secretary. He said, however:
I emphasise two things … First the Government's intention is that there should not be random powers of search; secondly where more than one person may be being searched at a particular time, it is necessary for the police to have reasonable suspicion that each person whom they search may be the person who is carrying the weapon at the time in question.But he also added:because of the concern expressed by the Opposition, we will look at it again and let the Opposition know our conclusions on the matter.We wish to hear the Government's conclusions on this because I see no amendment tabled to spell out more firmly and more clearly the Government's view that suspicion must be "crystallised" on a particular individual.We have reason for pursuing this matter now. The Government said that they would look at it and have presumably done so. Even so. they have not seen fit to introduce an amendment to spell out in the Bill the provision that suspicion must be "crystallised" on an individual and that they would reject indiscriminate frisking and random group search.
Again, the Under-Secretary said
Let us assume a situation which very often applies, where there is a small group of people and one may have reasonable cause to believe they are acting in concert—three or four people, perhaps a gang.There are problems in that. Some of us asked "How big is a gang?" It is rather like asking "How long is a piece of string?" Could all those present in a dance hall be considered to be a gang in that sense? Clement Attlee gave a classic definition when he said that one cannot define an elephant but that one can recognise one when it comes through 586 the door. We have received no clarification of the meaning of "group". The Minister said:That is why I say that it depends on how one defines a group."—[Official Report, First Scottish Standing Committee, 22 May 1980, c. 533-53.]It does indeed depend on that.We are especially anxious because legislation does not depend upon the assurances of Ministers. It depends upon the wording of the Bill and its interpretation by the courts. When we discussed posters advertising the new law the Minister said:
It is not for posters to interpret the law. Indeed, it is not for Ministers to interpret the law. Once Parliament has approved the clause, the courts interpret the law. As has often been said—by the Labour Members as much as by anyone else—while ministerial interpretations of what Governments intend the law to be may clarify matters for purposes of debate, it is what is in the clause, as approved by Parliament, that matters."—[Official Report, First Scottish Standing Committee, 3 June 1980; c. 603.]We cannot simply take the assurances of Ministers. Although we accept that that is their intention, we are now giving them the opportunity to spell it out.We sought to use the phrase "any one person", which was not accepted when it was debated in Committee. Amendment No. 18 seeks to add a subsection which states:
'(5) Nothing in subsection (1) above shall authorise any constable to search any person or persons on a random or group basis.'.Nothing could be clearer. I am not sure how legalistically perfect the suggested provision is, but it spells out exactly what the Ministers said in Committee. We wanted to arrive at a form of words that used that very good phrase about suspicion crystallising on an individual. The amendment is clear. It puts into the legislation what the Government said was their intention, namely, that it should apply not only to an individual and not to random or group searches. If it were accepted, we should be delighted. We want to hear what the Minister has to say. The attitude towards the Bill, and the earlier understanding that existed about the clause, was that it should allow group search. I remember only too vividly that for a year demands were placed upon me to introduce such a power. I refused to do so. The power sought by the police, which they thought they 587 would obtain—and which is now being provided by the Government—was the power of random group search of the sort described by the previous leader of the Conservative Party in Scotland, the hon. Member for Southend, East and the Under-Secretary, but which was rebutted in Committee.I want to hear the Solicitor-General for Scotland say clearly tonight either that the Government accept the amendment or that it is unnecessary because they will make it crystal clear—to use a favourite expression of the hon. Member for Southend, East—to the community at large, and especially to the police, that if the power is used in that way it will transgress the intention of the law. I hope that the Solicitor-General for Scotland will spell out tonight the way in which that could transgress the letter of the law.
§ Mr. Dennis Canavan (West Stirlingshire)I rise briefly to support the amendment. There is a great deal of justifiable fear throughout Scotland that instead of improving police and community relations the Bill will hinder them. I refer especially to the powers of search that will be given to the police under this clause. The amendment will go some way to alleviate a position that may come about if the clause is passed unamended. It would be fair to make a distinction between searching an individual person where there is clear evidence that he is carrying an offensive weapon and the position where the police take part in an indiscriminate group search.
I agree with my hon. Friend the Member for Renfrewshire, West (Mr. Buchan) that the Tory Party is obsessed with the possibility of youngsters carrying offensive weapons, with offensive weapons being carried in dance halls and discos, and with youngsters roaming the streets while carrying dangerous weapons. I have seen some Conservative Members carrying something that could be used as a dangerous weapon. I have seen the Solicitor-General with a big stick. On a group basis, I have seen bands of Tories and their supporters taking part in blood sports and carrying dangerous weapons—for example, fox hunting and grouse shooting. In such circumstances there is clear evidence that people are 588 carrying dangerous weapons, whether guns or riding crops, that they may use against others. The police should take action against them. It is unfair to imagine that it is only youngsters who are guilty of carrying dangerous weapons.
§ Mr. John MacKay (Argyll)Will the hon. Gentleman say how many people in Scotland have been charged with murder resulting either from the use of a riding crop or from a gun ostensibly to be used for grouse shooting? Will he contrast that with the number of people who have been charged with murder resulting from the use of offensive weapons, such as knives, carried in dance halls?
§ Mr. CanavanThe hon. Gentleman may not have been following the recent case in the sheriff courts at Linlithgow and Falkirk involving the West Lothian and Stirlingshire hunt. Certain supporters and participants of the hunt—most of whom are known Tory supporters—used riding crops against innocent people who wanted to protect the fox. The police should be given every encouragement to intervene in such cases. To show that I have no party bias in the matter, I shall cite an incident that took place in my constituency only last month. A lunatic militant fringe group of the Scottish National Party marched through part of my constituency on their way to a rally at Bannockburn carrying broad swords. Such a group activity should be made illegal and the police should be given every encouragement to take action. Those are cases where there is clear evidence that individuals within a group are carrying offensive weapons.
Under the terms of the Bill, I understand that action may be taken against a group of people where the police suspect that a person within that group is carrying an offensive weapon. It may turn out that nobody within that group is carrying an offensive weapon. It may be that every person within that group is innocent. With the unemployment figures announced yesterday, inevitably there will be more and more youngsters roaming the streets with nothing to do. I fear that the repressive measures contained in the clause will encourage provocative action to be taken against youngsters, many of whom have committed no offence.
589 The amendment would provide some safeguard in that position. It would also safeguard the relationships between the police and youngsters, especially those youngsters who are being given no opportunity for a reasonable future because of the policies of this rotten Conservative Government. It now appears that they intend to initiate more and more repressive measures against them. The police have a difficult enough job to do without the House expecting them to use such measures as these against young people or, indeed, any group of people, unless there is absolutely clear evidence that the individuals concerned are carrying offensive weapons.
§ Mr. John Maxton (Glasgow, Cathcart)I take slight issue with my hon. Friend the Member for Renfrewshire, West (Mr. Buchan), who said that he would be delighted if the Government were to accept the amendment. I would be pleased, because it would be a small step in the right direction. I think that the word "delighted" is a little too strong, because the only delight that I would have would be if the clause was totally removed from the Bill. I am sure that my hon. Friend agrees with me.
§ Mr. BuchanI was merely trying to encourage the Solicitor-General for Scotland.
§ Mr. MaxtonI accept that my hon. Friend is trying to encourage the hon. and learned Gentleman, but he will have a difficult task getting any blood out of the stones on the Government Front Bench.
We believe that the amendment should be accepted by the Government, because in Committee a clear commitment was given by the Under-Secretary that the intention of the clause was that the powers of search should be limited to those in respect of whom there were reasonable grounds for suspicion. That commitment was given, and my hon. Friend has clearly spelt out that that was the case.
The Minister made it clear that Ministers do not interpret the law. It is the courts that do so. I believe that without the amendment the courts could interpret the clause as allowing random searching in specific circumstances and areas within our inner cities. The Solicitor-General for 590 Scotland shakes his head, but the clause as drafted states:
Where a constable has reasonable grounds for suspecting that any person is carrying an offensive weapon".We get into difficulty when we try to define what "reasonable grounds" are. That is a pretty broad phrase, which perhaps is not capable of strict legal definition. The nearest we have come to it is in the report of the Advisory Committee on Drug Dependence, in 1970, which dealt with the powers of arrest and search in relation to drug offenders. That report said that there was anunwritten code which is familiar to every police officer, but much less familiar to the publicas to how the police define "reasonable cause". I assume that "reasonable grounds" is roughly the same as "reasonable cause". That unwritten code refers to:the demeanour of the suspect; the gait and manner of the suspect; any knowledge the officer may have of the suspect's character or background".To me that implies that if a constable knows that a person has carried an offensive weapon in the past, that person could be searched on a random basis, simply because he has a record. The code also uses the phrase:whether the suspect is carrying anything, and the nature of what he is carrying".If a person is carrying a bag late at night, that person can be stopped and searched on that basis. The code also refers to the person's mode of dress and bulges in clothing. If someone is a pipe smoker, and carries a pipe in his pocket while walking the streets late at night, a constable may think that he is carrying a gun. He will therefore have reasonable grounds for stopping and searching such a person. The code also stipulates "the time of observation". Therefore, one is more likely to be stopped late at night.If that is the sort of unwritten code that police constables in Scotland will use, it could lead to a situation—whatever the Solicitor-General for Scotland or the Under-Secretary may say—where random searching essentially takes place. Unfortunately, that could occur even if the amendment were accepted. That would certainly cover groups of youths who look suspicious late at night in certain streets of our inner city areas.
591 The powers of search in relation to drug abuse give us an indication of what this leads to. We know of the unwritten code that is used by the police in terms of drug abuse. It is reasonable to expect that a similiar unwrittten code will be used with regard to the powers of search for offensive weapons.
In the South of England and certain other parts of England, random searching goes on with regard to drugs, although the police must have reasonable cause for suspicion. The statistics show that that is so. In Scotland, a higher proportion of people are searched than those on whom drugs are found. Therefore, a large number of people who are searched do not carry drugs. As a result, an alienation takes place between those young people and the police. For example, many young people who do not use drugs frequent places where the police believe that drugs are carried, and frequently they are searched. That cannot be good for society.
In my view, the same thing will happen if the power of search is introduced in Scotland in respect of offensive weapons. I believe that there will be an alienation particularly among innocent young people who are stopped and searched. In my opinion, that will create worse law and order, not better.
What worries me is that both in regard to this clause and the detention powers contained in other parts of the Bill, when the law and order situation deteriorates the Government's response will not be that these new powers are not working but, rather, that they are not strong enough and, therefore, should be extended even further. I believe that they will argue that we must have random searching or, as the hon. Member for Perth and East Perthshire (Mr. Walker) said last night, an even longer period of detention. That is the way in which the Government will respond. The amendment is a small step, which will improve the Bill, but it is not the whole answer. I hope that the Minister will accept it. If he does not, I shall give my support to it.
§ Mr. Gordon Wilson (Dundee, East)The House has been told that in Committee the Under-Secretary gave an assurance that there would be no random searching. I, and I suspect other hon. Members, do not know how many chief 592 constables, superintendents, chief inspectors, inspectors, sergeants and constables will read the Hansard Committee reports. In those circumstances, perhaps the Solicitor-General for Scotland will indicate whether he is prepared to issue a circular to chief constables through one of his colleagues in the Scottish Office stating that the Government's intention is that the clause should be used only where reasonable grounds have crystallised, rather than in a random way. If he does not do so, there may be a vestige of doubt in the minds of hon. Members that in time police practice, without a definitive expression of opinion from the Scottish Office, may be extended to cover random searching.
§ 8 pm
§ The Solicitor-General for Scotland (Mr. Nicholas Fairbairn)This is a serious matter. No one who has had my experience—I say this with great respect to the hon. Member for West Stirlingshire (Mr. Canavan)—of seeing the tragedy of persons who have been stabbed to death because people took a weapon out at night, or the tragedy of seeing the parents of the child or teenager who has been convicted of such a crime and the destruction of those young lives because of the carrying of a weapon as an act of risk, bravado or folly, and eventually as an act of regret, will do other than regard it as a matter of appalling tragedy for all those involved.
I appreciate the anxiety of the hon. Member for Renfrewshire, West (Mr. Buchan) that there should not be random or group searches. I agree that nothing would be worse than an alienation of the police from any member of the public as a result of what becomes an irritation or, apparently, psychologically, a persecution or victimisation. That would be wrong, and I am certain that all chief constables understand that that must be guarded against.
It is not possible to conduct a random search under these provisions, because the constable must have reasonable grounds for suspecing that a person is carrying an offensive weapon. Only then may he search that person without warrant. It is specific that there is no need for guidance from the Secretary of State, any more than there is a need for the guidance of the Secretary of State in 593 the Road Traffic Act where, again, there is no random breathalysation.
Under the Road Traffic Act there is, of course, a greater risk of that, because a constable has a right to stop a motor car and tell the driver that he is conducting a routine check and that he is looking for bank robbers or stolen cars. Having made that routine check, if a constable smells drink he will have established one ground for having reasonable cause to believe that the person has been drinking. That is a ground which, in a way, allows random breathalyser tests. But that does not happen, and there would be no risk in the case of searches for offensive weapons.
§ Mr. Harry Ewing (Stirling, Falkirk and Grangemouth)Before the Solicitor-General moves on from that point, may we take it that he is against random breath tests?
§ The Solicitor-General for ScotlandI do not wish to go into that now. We have 40 groups of amendments to discuss and I understand that hon. Members wish to proceed as rapidly as possible. My views on a matter that is not before the House are irrelevant.
To those hon. Members who have any anxiety about the use or meaning of the words "reasonable cause to believe" or "suspect", I point out that those words are used in the Prevention of Crime Act, about which there has never been any complaint. I trust that I have excluded the possibility of random tests, because that is contrary to the clause.
The word "group" can mean anything that is more than one. It could mean two people. For instance, if two men are seen running from a house in which the victims have been stabbed, a constable has reasonable cause to suppose that one or other of the two men has a weapon. That is a reasonable ground on which to suspect. One could say that those two men were a group.
The use of the word "group" would exclude what is essential in law, namely, that in each case the matter must be judged, but it must meet the requirement and judgment of the clause. The constable has to justify his opinion that he has reasonable grounds for suspecting that a person is carrying an offensive weapon. I do not believe—these words will go out 594 to them—that chief constables will be other than very harsh when any person in their force departs from the requirements of the clause and indulges in searches without reasonable grounds.
It was said that Conservative Members have an obsession with the idea that people carry weapons. I do not find it an obsession. I wish that people did not carry weapons. There are many emotional and psychological reasons why people carry weapons, but the practice creates an abominable amount of tragedy in many families in Scotland, and if we can do anything to stop it, we must do so.
§ Mr. Donald Dewar (Glasgow, Garscadden)The Solicitor-General will recall that in earlier speeches he gave the impression—perhaps inadvertently—that he was thinking in terms of searches in a particular locus. The shorthand way of illustrating that is that a constable may think that a person has carried a weapon into a dance hall, where there may be 200 or 300 people. He may think that there is reasonable cause for suspicion that somewhere in that large crowd someone is carrying a weapon, and that that would justify sealing the hall and searching everyone inside. I understand the Solicitor-General's point, but he is definitively ruling out a wider dragnet operation which may give rise to friction.
§ The Solicitor-General for ScotlandCertainly, and that may be self-defeating, unless the first person searched was the one carrying the weapon. The person who was carrying the weapon may have disposed of it quickly. I exclude that sort of carpet bombing concept. If I may use a wartime term, it must be pinpoint bombing, rather than carpet bombing. However, let us remember the tragedy that arises from the carrying of offensive weapons, and let the message go out from this House tonight that no hon. Member approves the carrying of weapons. It brings great tragedy to many people.
§ Mr. Bruce Millan (Glasgow, Craigton)The Solicitor-General's remarks have been helpful. I am at one with him in respect of the tragedies caused by people carrying offensive weapons. They are tragedies to both the victims and the assailants, because what may start as a 595 friendly argument sometimes ends in tragedy.
Nevertheless, the Opposition do not like this clause. They are extremely apprehensive about it, and at the end of the day they believe that it will do more harm than good. It is a pity that the Government did not accept the recommendations of the Scottish Council on Crime, which recommended that this provision should come into effect for a trial period. The Solicitor-General will appreciate that all hon. Members, as Members of Parliament and ordinary citizens, will look carefully at the way in which the clause is used in practice. I do not like the idea of the Secretary of State—even if he has the authority, which I doubt—giving guidance to chief constables. That is something that we ought to avoid.
Nevertheless, what has been said by my hon. Friends and by the Solicitor-General is extremely useful in getting it over to chief constables and members of the force that the provision is not in any way intended to allow random or group searches or anything of that kind, but that there has to be a reasonable suspicion that the person being searched is carrying a weapon.
I am not sure what my hon. Friend the Member for Renfrewshire, West (Mr. Buchan) will want to do about the amendment. My hope is that, with the assurances from the Solicitor-General, he will in due course, after he has made his comments, ask leave to withdraw the amendment.
The debate has been extremely useful, and I hope that it will go out from all parts of the House that whatever our different views about the principle—and we shall not agree on that now—we shall be looking extremely carefully at the way in which the clause is to be implemented in practice. I hope that if we find that it is being abused, representations to the Government will be sympathetically received. If the clause were to be abused there is no doubt that it could do extremely serious damage to police and community relations.
§ Mr. BuchanI, too, am pleased with what the Solicitor-General said; indeed, he said what I hoped he would say. He made it perfectly clear that he would except the chief constable of Scotland to deal harshly with any person who departs 596 from the meaning and significance of the clause. He has made it perfectly clear that the meaning and significance of the clause have nothing to do with random or group searching. He has reiterated that it must only be where there are reasonable grounds for suspecting the person. He has rejected the concept of the hypothetical case, where a knife has been seen in a dance hall, which could provide an argument for making a search. I am pleased that the Solicitor-General has made this statement. He will recognise, however, that I still object to the clause as a whole.
I am pleased to hear that the hon. Member for Dundee, East (Mr. Wilson) is on the side of the angels. One recalls that a year ago his amendment about search precipitated the inclusion of the clause in the Bill.
The hon. Member made a point in relation to circulars to chief constables. My understanding is that the Government are so firm on this matter that they are saying, in effect, that there is not even a necessity for circulars; it is absolutely clear that the clause prevents any group or random searching from taking place.
I hope that the Solicitor-General's statement will be read by chief constables. I also hope that in meeting them and in discussions with them he will ensure that they know exactly what has been said here tonight. So keen were they to make the clause known that they considered having posters displayed throughout Scotland warning young people that they might be subject to search. It would therefore be useful if chief constables and local authorities were made aware of what has been said by the Solicitor-General this evening.
Knowing my intense moderation, hon. Members will know that I shall be seeking to ask leave to withdraw my amendment, although I do not like the clause. I do not believe in hollow victories; I believe even less in hollow defeats. The Solicitor-General has done much more than I could have achieved by a defeat in the Lobbies on my amendment. If not delighted, we are certainly pleased with what he said.
§ I beg to ask leave to withdraw the amendment.
§ Amendment, by leave withdrawn.