HC Deb 13 April 1994 vol 241 cc293-7
Mr. John Fraser (Norwood)

I beg to move amendment No. 255, in page 36, line 29, leave out 'are trespassing on land' and insert 'have entered land as trespassers'.

Mr. Deputy Speaker (Mr. Michael Morris)

With this, it will be convenient to discuss the following amendments: No. 64, in page 36, line 30, after 'period', insert 'exceeding 48 hours'.

No. 65, in page 36, line 34, leave out 'or used threatening, abusive or insulting behaviour towards the occupier, a member of his family or an employee or agent of his.'.

No. 256, in page 36, leave out lines 41 to 46.

Government amendments Nos. 150, 151, 156, 157 and 152 to 155.

Mr. Fraser

I should like to speak about amendment No. 255 to clause 51; I will leave my Scottish friends to deal with amendments Nos. 64 and 65, and the Government to deal with their own amendments, because they do not entirely hang together.

Clause 51 is said to be directed at mass trespass, although, when the Government have cut the number down to six vehicles, I think that it should only count as a macro trespass. Clause 51 makes it a criminal offence not to leave land, having been requested to do so by a police officer, in certain circumstances, including where six or more vehicles, not people, are involved in the trespass. I suppose that that could be described as a macro trespass.

The clause also applies to more limited circumstances. For instance, it would apply to two people alone who trespass and cause damage. For instance, they may have crushed grass or hay while camping, or they may have caused nominal damage by cutting a square of turf in order to light a fire. They would be committing a criminal offence under this clause if they were requested, and then, having entered the premises as trespassers and been asked to leave, they did not do so in a reasonable time.

Amendment No. 255 restricts the offence to those who originally entered the land as trespassers, and does not apply it to those who subsequently became trespassers because the original permission that they were given to enter the land had been ended or withdrawn.

We do not want to take up too much time on this, but let me give one example of how it might work in a quite unexpected way. Let us take the example of two people who live in a caravan, with permission, on a caravan site, intending to be there for roughly the summer season. The owner of the site then imposes a condition—for example, something which is not uncommon on caravan sites, that they must buy a new caravan through the agency of the owner of the site.

Alternatively, the owner might raise an unreasonable service charge for the site. He might then say to the two people living in the caravan that their permission to occupy the site has been terminated, notwithstanding their anticipation of being there for the entire season.

The two people involved might, quite understandably, give the site owner a bit of "verbal", which is described as threatening, abusive or insulting language. In the circumstances, I might be tempted to do the same. Yet in those circumstances, although the people did not enter the site as trespassers, and although they had permission to be there originally, they would be caught and become criminals if they did not immediately leave the site with their caravan when requested by a police officer to do so. It could involve considerable stress, loss and inconvenience to the people involved.

If we are to have the clause at all—I am unhappy about it anyway—it ought to be restricted to an invasive trespass and not be applied to what may subsequently become a trespass. If the House does not accept the amendment, the police will be placed in the invidious position of trying to decide when certain events creating a trespass took place. One can envisage an example such as I have given where relations had gone sour, anticipated arrangements had collapsed and the police were drawn into one side or other of the dispute.

We know what mischief the clause is intended to attack. I do not agree with every proposal in the clause, but we know what it is aimed at: a macro trespass or a mass trespass by vehicles. It should not be directed to the ending of a previous contractual arrangement. I hope that the Minister can sensibly accept the amendment.

Mr. Warren Hawksley (Halesowen and Stourbridge)

I congratulate the Government on tabling amendments Nos. 150 and 151, which deal with trespass on common land, about which I had previously been in touch with the Home Secretary, and amendments Nos. 156 and 157, which deal with trespass on rights of way. Both are necessary and desirable.

The point that I should like to make, as one who in a previous incarnation in the House was involved with seeing section 39 of the Public Order Act 1986 on to the statute book, is my concern about whether this power will be used. The previous power under section 39, which allowed officers to respond when 12 vehicles were present, has not been used by them to any great extent. I gather that the Association of Chief Police Officers has discouraged chief constables from using this power.

8.45 pm

I wonder whether the Minister can reassure the House that the new power, in its better and more easily used form, will be available. I have come across police officers who have been involved in the problem in mid-Wales and in the west midlands, who have been told not to use section 39 of the 1986 Act. What are we doing to make sure that the new clause will be used by officers? I hope that the Minister can reassure us that he has an assurance from ACPO that it will do nothing to discourage the use of this section. Provided that he can do so, I whole-heartedly welcome the amendments.

Mr. Maclean

The Opposition amendments in this grouping constitute attempts to restrict the application of clause 51, and hence its effectiveness. Amendments Nos. 255 and 256 would do so by disapplying the clause to persons who did not enter land as trespassers but who became such subsequently. Clause 51 is a restatement and a strengthening of section 39 of the Public Order Act 1986.

The Government have become concerned that section 39 does not provide adequate protection for a landowner who may have invited people on to his land, but who has had his hospitality abused as the welcome is outstayed or the activities of those on his land become unbearable. The massive invasion at Newtown, Powys in the summer of 1992 is a case in point. There, I understand, the farmer was willing to allow the odd traveller on to his land, but, when the masses arrived, he did not have available the protection of section 39. Clause 51 represents a useful addition to the powers against those who cause blight in the countryside, and I cannot accept the Opposition's amendments.

The hon. Member for Norwood (Mr. Fraser) gave an interesting example. I merely remind him that the powers of the police under this clause are discretionary. If the constable forms a reasonable belief, he may exercise his powers. I suspect that, in other hypothetical cases such as the one that the hon. Gentleman suggested—where there might be a dispute about whether they had a lease or a right to stay in a caravan on an official site—the police might be reluctant to use their powers.

In each case, there must be an interpretation of the facts at the scene as the police see them. Amendment No. 64 would prevent the police from directing travellers to leave land under the terms of clause 51 unless the police believed that the travellers were going to stay for at least 48 hours. The Government cannot accept that amendment, either.

Amendment No. 65 seeks to remove one of the triggers for the police powers to direct trespassers to leave land which are contained in clause 51. If it were carried, the fact that trespassers use threatening, abusive or insulting behaviour towards the occupier, a member of his family or an employee or agent of his would no longer be grounds for the police to take action. I find it difficult to see why the amendment should have been tabled.

New age travellers and others who trespass on land without any regard for the rights and feelings of those communities they invade are, as all sectors of the House agree, a menace.

Mr. Brian Wilson (Cunninghame, North)

If the measure is directed against new age travellers—I by no means accept the rationale for that—why are not they mentioned in the Bill? Why are no categories mentioned? Does the Minister agree with the Scottish Landowners Federation, which has taken the view that "specific mischiefs" should be defined in the Bill?

Mr. Maclean

I do not agree. The measure is not directed particularly, solely or only at new age travellers. In many parts of England—I accept that it is not a great problem in Scotland yet—it is a problem, and new age travellers are the main offenders, although there may be others invading land.

I do not particularly like the laundry list approach to legislation—in other words, trying to define lists or categories of people. If we try to do that, the categories will inevitably change next day, next week or next year, and the law is constantly trying to chase them up. I would not care to try to define a new age traveller.

Mr. Wilson

Is not the opposite of the laundry list approach the catch-all approach?

Mr. Maclean

It is not exactly the opposite, because it is circumscribed by certain powers, rights and duties. The police have a discretionary power, but it is not a power which they can exercise at will or willy-nilly. I do not agree with the Scottish Landowners Federation view that the laundry list is the best approach.

I will not go on at length. I understand that the view of the House is perhaps to have a much more wide-ranging debate, including some Scottish elements, later. I hope that I shall be able to lay to rest some of the misconceptions which are rife in Scotland now about what may happen to the odd rambler who goes astray in the Scottish mountains. We will deal with that in another grouping.

Mr. Hawksley

Will my hon. Friend give way?

Mr. Maclean

I will certainly take up the point raised by my hon. Friend.

It is the Government's view that, whenever we bring in new legislation, it should be operated and used, and we except the legislation to be used. We have not gone through months in Committee and the past few days in the House to pass the new powers, and then have the police not use them. It is inevitable that there will be some circular or guidance before the legislation or its various parts comes into effect. We would expect it to be used in appropriate circumstances.

We expect the present powers in the Public Order Act 1986 to be used. We will not want any excuses from any quarter about why the existing powers should not be used.

Finally, I will merely mention Government amendments Nos. 150 to 155, which seek to clarify the police powers to remove trespassers from private and common land. I was asked in Committee to do something about common land—we have done so. Government amendments Nos. 156 and 157 are technical, and seek to clarify what types of highway are covered by clauses relating to trespass and aggravated trespass and what are not. I was also pressed on that matter in Committee, and there is a clarifying amendment which I hope the House will find useful.

With those concluding remarks, I commend the Government amendments—although, unfortunately, I will not commend the Opposition amendments to the House on this occasion.

Amendment negatived.

Amendments made: No. 150, in page 37, leave out lines 22 to 26 and insert— '(7) In its application in England and Wales to common land this section has effect as if in the preceding subsections of it—

  1. (a) references to trespassing or trespassers were references to acts and persons doing acts which constitute either a trespass as against the occupier or an infringement of the commoners' rights; and
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  2. (b) references to "the occupier" included the commoners or any of them or, in the case of common land to which the public has access, the local authority as well as any commoner.

(7A) Subsection (7) above does not—

  1. (a) require action by more than one occupier; or
  2. (b) constitute persons trespassers as against any commoner or the local authority if they are permitted to be there by the other occupier.'.

No. 151, in page 37, line 27, at end insert— '"common land" means common land as defined in section 22 of the Commons Registration Act 1965; commoner" means a person with rights of common as defined in section 22 of the Commons Registration Act 1965;'.

No. 156, in page 37, line 38, after 'of where it appears for the first time insert '— (i)".'.

No. 157, in page 37, line 38, leave out from 'highway' to end of line 41 and insert— 'unless it falls within the classifications in section 54 of the Wildlife and Countryside Act 1981 (footpath, bridleway or byway open to all traffic or road used as a public path) or is a cycle track under the Highways Act 1980 or the Cycle Tracks Act 1984; or (ii) a road within the meaning of the Roads (Scotland) Act 1984 unless it falls within the definitions in section 151(2)(a)(ii) or (b) (footpaths and cycle tracks) of that Act or is a bridleway within the meaning of section 47 of the Countryside Scotland Act 1967;'.

No. 152, in page 37, leave out lines 42 to 45 and insert— 'the local authority", in relation to common land, means any local authority which has powers in relation to the land under section 9 of the Commons Registration Act 1965;'.

No. 153, in page 37, line 46, after "'occupier"', insert '(and in subsection (7A) "the other occupier").'

No. 154, in page 38, leave out lines 11 to 13.

No. 155, in page 38, line 14, leave out from beginning to end of line 20 and insert— '"trespass" means in the application of this section—

  1. (a) in England and Wales, subject to the extensions effected by subsection (6) above, trespass as against the occupier of the land;
  2. (b) in Scotland, entering, or as the case may be remaining on, land without lawful authority and without the occupier's consent; and

"trespassing" and "trespasser" shall be construed accordingly;'.—[Mr. Maclean.]

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