After Clause 136

HC Deb 20 October 1994 vol 248 cc487-503

Lords amendment: No. 132, to insert the following new clause—Offence of causing intentional harassment, alarm or distress— In Part I of the Public Order Act 1986 (offences relating to public order), after section 4, there shall be inserted the following section—

"Intentional harassment, alarm or distress.

4A.—(1) A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he—

1. (a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
2. (b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,

thereby causing that or another person harassment, alarm or distress.

(2) An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the person who is harassed, alarmed or distressed is also inside that or another dwelling.

(3) It is a defence for the accused to prove—

1. (a) that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or
2. (b) that his conduct was reasonable.

(4) A constable may arrest without warrant anyone he reasonably suspects is committing an offence under this section.

(5) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale or both.".")

Read a Second time.

7 pm

Mr. Simon Hughes

I beg to move amendment (a) to the Lords amendment, in line 5, after 'if, insert `recklessly or'.

Madam Deputy Speaker

With this, it will be convenient to take amendment (b) to the Lords amendment.

Mr. Hughes

The amendments are to a new clause that was introduced into the Bill in Committee in the other place. The new clause is entitled "Harassment, alarm or distress". It seeks to amend the Public Order Act 1986 to create a new offence. The original debate on the matter arose after much pressure and lobbying, and engaged a lot of interest. The new clause inserts a new section into the Public Order Act 1986, which states: a person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he—

1. (a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
2. (b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,

thereby causing that or another person harassment, alarm or distress. There follows a definition of where that offence can be committed. The section says:

An offence … may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the person who is harassed, alarmed or distressed is also inside that or another dwelling. The mischief against which this new clause is intended to act is committed when one person is outside a dwelling and another person is also outside, or when one person is outside and another is inside. Put simply, if someone lives in a property in, say, Deptford, Bermondsey or Rotherhithe, and someone outside in the street acts in such a way as intentionally to alarm, harass or distress that person through the use of language, behaviour or writing, they commit the offence. That is absolutely acceptable to me. I am sure that it is acceptable to the hon. Member for Lewisham, Deptford (Ms Ruddock) and I hope that it is acceptable to the House. There will be no dissent from the fact that we must act against people who behave in such a way that they interfere in the private lives of other people by harassing them or causing them alarm or distress.

Some people doubt whether the clause is tough enough. The general view held by the communities in urban constituencies is that it is not. The general view is that it is difficult to nail people for what the Prime Minister calls "the yob culture" and extreme anti-social behaviour. It is often difficult to pursue people to the courts and secure a conviction for such crimes. Although the clause is welcome and will improve matters, it will certainly not be the end of the story because it will not be tough enough.

Mr. Corbyn

I thank [...]the hon. Gentleman for giving way and I agree with what he has said thus far, but I am puzzled as to why the new clause does not specifically include a criminal act of racial harassment, racial violence or incitement to racial hatred. I cannot understand the thinking behind a clause of this importance not addressing specifically an issue of enormous concern and danger to many people, particularly in inner urban areas such as the hon. Gentleman and I represent.

Mr. Hughes

That is a matter of dispute around the House. The hon. Gentleman is right, and my hon. Friend the Member for Rochdale (Ms Lynne) has similar experiences, probably almost as regularly as we do. The hon. Member for Finchley (Mr. Booth) has introduced a Bill that has all-party support and seeks expressly to provide for an offence of racially motivated crime. We must not be mealy mouthed about the matter—racially motivated crime exists. Those of us who represent inner urban areas—actually, it applies throughout the country—know perfectly well that people are willing to express racist views and, when people are not looking, behave in a racist way, often egged on by others. The most undermining activity of which anyone can be a victim is that which singles one out for aggression, abuse or intimidation for something that one cannot change—something that concerns the victim, not how he or she behaves. The law must be tough on activity based on a discriminatory view of other people which in the mind of the perpetrator justifies that behaviour. Such behaviour happens in my constituency and I am ashamed about it. It also happens in many others, if not all others, represented in the House.

It can therefore be argued that we need an offence of racially motivated crime. The answer given by the Government is that a better way to deal with it is to increase the sentence if the crime is seen to be racially motivated. This issue will not go away and no matter whether the new clause is accepted by the House today and becomes law, as I believe that it will within the next few days, the matter will come back because many people will not feel that the law goes far enough.

Having understood the debate in another place and had perfectly courteous discussions with the Minister's predecessor about the issue, I anticipated that at this stage we would not move the Government on this issue. I have therefore chosen two much simpler amendments which, even at this stage, I hope to persuade the Minister to accept. I realise that Ministers come to these debates with briefs prepared by civil servants and give wonderful lists of arguments why such amendments should not be accepted. The Under-Secretary of State did a good job in his previous post and I welcome him to his new post. I hope that he will be brave and, once he has heard the arguments, say that the two amendments can be accepted because they deal with two specific but important points.

First, let us accept that the clause deals with harassment, alarm and distress generally, without singling out racism. I want the Minister to accept that there are two ways—intentionally or recklessly—in which someone could cause that harassment, alarm and distress.

I have been trained as a lawyer. Something that a criminal lawyer learns almost ad nauseam is the difference between the states of mind that people have to be in if there is to be a conviction. For a conviction of intent, ultimately a jury or the magistrates have to find not just that an activity happened, but that the accused intended it to happen. Often, that is difficult to prove. It is much easier to prove that someone has behaved in a way that was careless as to the consequence or that was not thinking as to the consequence, because we can then draw an inference that any reasonable person would have known what the consequence would be.

I want the Government to change the law so that it provides that if anyone uses threatening, abusive or insulting words or behaviour, disorderly behaviour, writes graffiti, racist comments or whatever, or by using signs or other acts behaves in a way that is abusive, threatening or insulting, and he is aware that that might just cause harassment, alarm or distress, he should be found guilty.

For example, someone may approach a house in Peckham, Bermondsey, Rotherhithe, Deptford, Rochdale, Islington, Stalybridge or your constituency, Madam Deputy Speaker. He may not know whether anyone is in the house, but he knows that, for example, a black family, an Asian family, a mentally disordered person such as an adult with learning difficulties, someone who is physically disabled or other people in all sorts of circumstances used to live there. Perhaps somebody who was anti-social—a difficult and cantankerous individual—used to live there. He may not say, "I want to get the person in that house", but he is careless and mindless of the consequences of his action and should be guilty of an offence. That is the only way that we can be sure that we deal with such people effectively.

If intent has to be proved in a court, I can guarantee that many cases will not be proceeded with by the police and the Crown Prosecution Service, so they will not get to court and people will not learn a lesson. They will get away with their behaviour when they should be convicted. I make this serious plea from my recollection of how the law works—I remember it all too well—and my understanding of how society works, which is something that we all have as Members of this House.

The second amendment is similarly simple and, I hope, persuasive. It would remove from line 19 the two simple words "or another". I want to make it possible for someone to be guilty of causing harassment, alarm or distress if he is in one building but is having a go at somebody in another building. The House held a debate last year on the question of neighbour noise and noise nuisance. The Mail on Sunday has run a good campaign and an increasing amount of publicity is being given to the issue. A fringe meeting at the Conservative party conference that debated it was very well attended. Neighbour noise is the bane of people's lives. It can literally drive people mad or to suicide.

Some weeks ago, I attended a press conference on the issue in the Jubilee Room. Spike Milligan and others were there on behalf of the campaign for peace and quiet. The hon. Member for Erit[...] and Crayford (Mr. Evennett) was there. Other colleagues, such as the hon. Member for Brent, East (Mr. Livingstone), support the campaign, the aim of which is to clamp down on rowdy, nuisance neighbours. There are plenty of them and they behave as though there was nobody else on God's planet. They yell out of windows, sometimes throw cans and rubbish out of windows, and have hi-fi's or stereos blasting out of windows, especially in summer.

It must be made absolutely clear to people that if they own or occupy a property and they behave not necessarily with intent, but in a car[...]less and mindless way, are not bothered whether they keep their neighbours up all night, and blast the person on the other side of the estate, in the block opposite, or on the other side of the street. they should be nicked.

I take a tough view of such behaviour: not only should such people be nicked, but their property should be confiscated. We need to modify the law to make it tougher. There could be a first and a second warning, but then such people should be taken away and put overnight in a place that will remind them that blasting the diving daylights out of their community is not acceptable.

7.15 pm

If the law is toughened in the way that the Government propose, all that it will allow is somebody to be nicked if he is in the street and the victim of the nuisance is in the house. However, that is not what usually happens. I accept that an offence is caused if noisy drunkards run up and down a street shouting. That happens occasionally in Bermondsey and other places. However, it is more often the case that somebody in a property is blasting his stereo or yelling out of the window and making life a nuisance. I want that person to be prosecuted. Tough legislation would signal our intent and we would make progress.

I know that the Government are consulting on the issue—that is always their defence. When my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beth) wanted to introduce legislation on payment of interest on debt, the Government said that they opposed that because they were consulting on the issue. They have been consulting for decades; yet everybody knows that it would be a good idea. The Government have issued a consultation paper on noise and I am grateful for that. However, we now have an opportunity to move in a way that I believe will unite the House, provide legislation that will work and not preclude debates on what else we do after that.

I want noisy neighbours to be aware that they are acting criminally, not just anti-socially. If such behaviour is clearly illegal, police, environmental health officers and others can act to make communities places worth living in again.

People have been driven to suicide, driven mental or driven to attacking others in their home by noisy neighbours and anti-social behaviour. I do not think that that applies to any particular part of the country—it is applicable to all areas. It is as applicable to Luton, where I have been many times, as to anywhere else. I see that the hon. Member for Luton, North (Mr. Carlisle) is in the Chamber.

I hope that the Minister will say, "It is not o[...]r idea; we would not have gone so far, so quickly, but it is a good point." I hope that the Minister will at least concede that the argument is valid. Even if he needs a minute or two to take advice, I hope that he will then say that the Government will accept the amendment. I advise him to be brave. He will then become the most popular Minister in the Government today—[Interruption.] I accept that on this day, of all days, that is not saying a lot. However, if he accepts both amendments he will be one step ahead and his future will be assured.

Sir Ivan Lawrence

I thank the Government for their response to the Select Committee's report and its recommendations on racial harassment. I want to flag my concern on behalf of the Committee about the one element that the Government have not seen fit to support: what we said about intent. Through amendment No. 132, the Government have, as we asked, taken into account the seriousness of many of the actions that make up racial harassment. They have not called it racial harassment, but it comes under the same heading—the daubing on the wall, the swastika and other such appalling behaviour.

The Government have also created an arrestable offence, which is what the Committee recommended and they have increased the maximum penalty from a fine to imprisonment, again as we recommended. I am grateful for that.

But we also said that police officers at Plumstead considered that the requirement of an intent, which is present in Lords amendment No. 132, made it difficult for them to bring effective charges—few criminal charges for harassment of any sort have ever been brought or, if brought, have succeeded. That issue is relevant to the contribution of the hon. Member for Southwark and Bermondsey (Mr. Hughes). The police told us that they considered it a drawback as it was so easy for an accused person to say, "I had no idea that my words were likely to or may have caused that offence." Such a line meant that magistrates often gave those accused of the offence the benefit of the doubt. More importantly, the Crown Prosecution Service would often think that there was not sufficient evidence to bring a prosecution.

We therefore suggested that it was not necessary to have a subjective test and that it was preferable to have an objective test as to whether a reasonable man would have considered his actions likely to have that effect. The police in Plumstead said that that would help them considerably. I understand that the Government have not been keen to adopt such a policy.

I have not had an opportunity to discuss the subject with the hon. Member for Southwark and Bermondsey, but I understand that "recklessness" would provide a halfway house between dropping the necessity for intent, and intent. If I am right on that, I must say on behalf of the Select Committee on Home Affairs that I have some sympathy with the submission made by the hon. Member for Southwark and Bermondsey.

One issue that I am sure about—as was the Select Committee on Home Affairs—is that the legislation on the subject needed to be toughened up. There will inevitably come a time when the pressures of immigration and asylum on these shores will be even greater because of what is happening in the rest of Europe. In those circumstances, from time to time, the reaction of the indigenous community will, alas, be to revert more frequently to racial hatred and the sort of response that follows. Now is the time to dig in our defences and prepare ourselves so that the law is adequate to the task of protecting people, whether black or white, against the sort of sickening harassment that now occurs in our society less frequently that it may do in future.

I thank my hon. Friend the Minister for the action that he has taken to support the recommendations of the Select Committee on Home Affairs. But I ask him to take seriously the important need to strengthen this aspect of the law—if not now, in the future—so that it provides adequate protection for those whom it is our task and duty to protect.

Ms Joan Ruddock (Lewisham, Deptford)

We have some sympathy with th[...] words and the amendments of the hon. Member for Southwark and Bermondsey (Mr. Hughes), and look forward to hearing the Minister's response. We have not been completely satisfied in any way and cannot echo the sentiments of the hon. and learned Member for Burton (Sir I. Lawrence) who believed that we had been given an adequate response to the case involving the problems of racial violence made in the House and in the Select Committee.

In response to Opposition and all-party amendments, Government spokespeople, both in Parliament and outside, have repeatedly expressed concern about racially motivated crime. But the undertaking given in the House and acted on in another place has produced nothing more than a tougher version of the existing public order offence in section 5 of the Public Order Act 1986. Standing alone, that is totally inadequate to the task of dealing with the huge and rising tide of racial violence.

I cannot remind the House too often that there were an estimated 150,000 to 200,000 racial incidents in England and Wales last year. Those incidents range from daubing, spitting and graffiti to the most severe violence and, indeed, murder. Yet, by the Government's own admission, only one in 20 such incidents are reported to the police. Those that are reported must be recorded as racial incidents, but there is no requirement to record the clear-up rates, which makes it difficult to judge the effectiveness of existing law.

The one sector for which we have figures for prosecutions and convictions under public order legislation involves cases of incitement to racial hatred, where the figures are not impressive. In 1990, there were 45 prosecutions for incitement to racial hatred and only four convictions. In 1991, there were 65 prosecutions and only three convictions. Against that backdrop of inaction, the Minister will not be surprised to learn that the Lords amendment hardly inspires confidence.

The Government's failure to specify racial harassment and racial violence in any of their Lords amendments sends a more powerful signal to our ethnic minority communities than any crocodile tears of sympathy for victims.

Mr. Stephen

Does the hon. Lady accept that, where a criminal court is dealing with any criminal offence and racial motivation is proved, under existing law the court has the right to treat that as an aggravating factor and impose a more severe penalty than it would otherwise?

Ms Ruddock

The hon. Gentleman makes a good point, but I think that he will know that amendments were tabled in the House that would have made it mandatory to seek out any racial motivation and bring it to the courts. The problem is that often such motivation is not properly examined or researched, and the evidence is not brought to the courts. The procedure suggested by the hon. Gentleman can often not be applied in practice. Many examples of that have been cited in previous debates.

In another place Lord Ferrers sought to justify the omission of the issue of race. He said:

Proving motivation … is particularly difficult."—[Official Report, House of Lords, 16 June 1994; Vol. 555, c. 1864.] As the hon. and learned Member for Burton has said, the amendment requires proof of intent. Does the Minister honestly believe that intent is less difficult to prove than racial motivation? Will he put his explanation on the record tonight, as it will be important to those who try to bring cases under the new legislation?

Lord Ferrers also sought to justify the exclusion of race on the ground that the same punishment should be available for behaviour causing the same distress. He illustrated his point by citing offensive behaviour directed at people in wheelchairs. In doing so, he was not comparing one individual with another individual, but citing a class of people. He implied that the legislation must apply equally where the victim is harassed because he or she belongs to a definable group. Will the Minister confirm that, by virtue of not containing the term "racial", the amendment applies equally to sexual harassment, harassment on the grounds of sexuality or disability, as well as to race? It is important that we have an explanation. Those organisations that represent the large numbers of victims of those various forms of harassment will take a keen interest in the Minister's response.

Finally, I should like further clarification of the Government's intentions. I recently received a report from the Lewisham racial equality council, which stated that in just eight months it had found 175 cases of racial harassment on local housing estates in that borough alone. The report cites examples that I shall read to the House. It states that one family received a total of 10 threatening notes, one of which included the words: How many times do we have to say it. Leave as quick as you came, niggers are not welcome, especially when they drive fancy cars".

7.30 pm

The report continues: Two maisonettes were daubed with racist graffiti; two eight year olds were chased by a boy with a knife; one youth estimated he was harassed every single week for 2 years; people were called "nigger", "black bitch" as a matter of routine; people had stones and eggs thrown at them; one woman had a lighted match thrown in her face, families had their windows were smashed; dog excrement was smeared over doors and cars. Will the Minister reassure those victims that the amendment provides the means of ending their misery? Will he explain to us how we will know whether it has? He knows that although there are tens of thousands of incidents recorded under section 5 of the Public Order Act 1986, there is no record or analysis of those that are deemed to be racially motivated offences. Therefore, I submit that the amendment, which takes the form of a new clause, has the great weakness that it is a "catch-all clause", although that might be regarded as a strength. The fact remains that the Government came to the House proposing to deal with racially motivated offences and offering us the amendment. How will we know how effective it is if, as at present, there is no mechanism for describing the different types of offences that occur under section 5? If there is to be no monitoring of the racially motivated nature of some offences, no one will be able to judge whether the Government's stated intentions have been realised. Will the Minister clarify that point?

The Government have chosen to ignore all the proposals to deal with racial harassment and racial violence made by the Opposition, most of those made by the Select Committee on Home Affairs and those from numerous expert organisations, including the Commission for Racial Equality, the Board of Deputies of British Jews, the Anti-Racist Alliance and other interested community groups.

We appreciate the fact that something has been done. We shall not oppose the amendment. The stronger powers of arrest and greater penalties are much to be welcomed, but experience leads us to doubt the Government's commitment and intention to deal with racism. Many hon. Members and many more people outside will not rest until the scourge of racism has been removed from our society. Legislation has a part to play, but much more needs to be done. However, legislation can send a powerful signal to victims and potential victims, to perpetrators and potential perpetrators. I have no doubt that the amendment will prove inadequate to the task. I have no doubt that we shall make further attempts to amend the law to make it more powerful in dealing with racial harassment and violence, but the Minister now has the opportunity to tell us how he believes that the amendment will deal with the misery, violence and cruelty inflicted on people of different colour and different race.

Mr. Corbyn

It is a pleasure to follow my hon. Friend the Member for Lewisham, Deptford (Ms Ruddock) who has spoken on this matter many times and who will no doubt continue to do so until we manage to change the law.

I find the amendment rather strange. It contains some truisms about harassment—no one is ever in favour of harassment—but it is weak in dealing with the crucial factor.

Like my hon. Friend the Member for Deptford and the hon. Member for Southwark and Bermondsey (Mr. Hughes), I represent a multi-racial, inner-city community where, tragically, although racial violence and harassment is not rife it does exist. Much of it goes unreported because, as in some areas outside London, there is either a lack of confidence that the police will investigate or a belief that nothing can be done.

Asian families are afraid to walk the streets at night; black people are afraid to go down certain streets or into certain areas; Indian families have excreta pushed through their letter boxes; people are sent firebombs and phone threats, abuse and hate mail but feel wholly unable to do anything about it. They feel constantly harassed throughout their lives and believe that there is no redress or support.

My hon. Friend the Member for Deptford said that there were more than 100,000 reported cases of racial harassment in Britain last year. I suspect that the figure is very much higher for cases that could be reported or in which action could be taken if there were, a specific offence of racial violence rather than, as the hon. Member for Shoreham (Mr. Stephen) said in an intervention, courts being able merely to consider race as an exacerbating factor once the case had gone to court. My point is that it is extremely difficult to get such cases to court in the first place.

Racial harassment is a Europe-wide phenomenon. It is increasing not only in this country but especially in France, Germany and Scandinavia. The introduction of a proper law to deal with racial violence would have two effects. The first is that all police stations would be forced to take racial cases seriously rather than simply recording them if that is the wish of those "either side of the counter", so to speak. Secondly, such a law would perhaps mean that a prosecution could be brought more quickly. At present, it is often difficult to acquire proof in, for example, cases of harassment of neighbours. I hope that the Minister will tell us exactly how the Government plan to deal with racism and racial violence.

The hon. Member for Southwark and Bermondsey also mentioned problems between neighbours. There are many problems facing people who live in high-density, urban areas housing. They include harassment caused by noise, disturbance, differing life styles or—dare I say it—even by building design. Many flats and houses are ludicrously designed. Housing in my area is largely late Victorian and was built cheaply in the first place; often, conversions are done cheaply and, for that reason, there is no soundproofing or sound insulation. It means that what one family consider normal behaviour can be terrorism for the family above or below, even though such behaviour can simply be the problem of five or six-year-old children running around a flat.

People who live in detached or semi-detached houses might find it difficult to understand what it is like for people who live in the kind of environment that I have described. I have no truck whatsoever with people who play loud music out of their windows, who threaten violence or harassment or who attack their neighbours to such an extent that they are frightened to go near the police, Members of Parliament, councillors or clergymen, but we should also consider what causes the problems in the first place.

This particularly awful legislation could have provided us with an opportunity to do some good for one group of especially victimised people in our society—those who are racially attacked or harassed—but the opportunity appears to have been completely lost. However, people outside the House have noticed that fact and realised that something must be done. We cannot go on watching the daily toll of racial violence and harassment while nothing is done by those in positions of power. We cannot allow that to continue. It is wrong that anyone should feel fear when walking the streets of his or her own community, or should feel afraid of going out in the morning. It is wrong that children should feel afraid at school. That situation can turn into copycat racial violence. The opportunity has been missed in the Bill, but I hope that we shall be able to return to it in the new Session. Opposition Members will keep returning to it until we can remove the scourge of racism and racial violence from our society.

The Parliamentary Under-Secretary of State for the Home Department (Mr. Nicholas Baker)

We have had a good debate, and I must say at once that the Government share the concern about racial harassment and the other forms of harassment mentioned in the debate. As the hon. Member for Southwark and Bermondsey (Mr. Hughes) said, the clause is tough, and that toughness may have been underestimated in the debate. It closes a gap in the law and creates an offence of intentional harassment, which will enable the courts and the police to deal more effectively with serious forms of deliberate racial harassment. The new offence provides the police with an immediate power of arrest, thereby enabling them to take swift action against the perpetrators of those odious crimes. A maximum penalty of six months' imprisonment and/or a fine of £5,000 is also provided for.

In order to justify those increased powers and penalties, it will be necessary to prove that the action of the defendant was intentional and that someone was actually harassed. Although the offence is clearly aimed at combating racial harassment, race is not mentioned in the clause. The explicit inclusion of race would require that the racial motivation of the defendant be proved. In saying that, I believe that I am responding to two of the main concerns expressed in the debate.

Motivation is extremely difficult to prove. It is a subjective matter, far more difficult than intent. To prove racial motivation is difficult, too, and it is right that other forms of harassment are also covered by the clause—the hon. Member for Lewisham, Deptford (Ms Ruddock) mentioned that. For example, disabled people and homosexuals should be covered by the offence, and they are.

We examined the Select Committee's report carefully, and have accepted a good number of its recommendations, including the further action needed to alert the Crown Prosecution Service and other arms of the legal weaponry of the judiciary, so that they are aware of, and on the lookout for, racial harassment. We share the determination to do everything that we can to stop it.

I shall now deal with some specific points that were raised. I do not quite share the concern of my hon. and learned Friend the Member for Burton (Sir I. Lawrence), the Chairman of the Select Committee, about intent being all that difficult to prove. Indeed, the police say to us that they do not regard it as such. Where conduct is deliberate, malicious and targeted, such as regular abuse, it displays clear intent, and should not be difficult to punish by using the new tough weapon provided by the clause.

Mr. Simon Hughes

Will the Minister give way?

Mr. Baker

I should be grateful if I could go on, because I am about to answer the hon. Gentleman's question.

Sir Ivan Lawrence

Before my hon. Friend goes on to answer the hon. Gentleman's question, may I ask one? It is obvious that some police officers—those whom the Select Committee saw—thought that intent was an obstacle to prosecution and conviction. Other police officers—those who have advised my hon. Friend and the other Ministers—think the contrary. The proof of the pudding will be in the eating. Will my hon. Friend assure us that, should the number of prosecutions and convictions under the harassment provisions added to the Bill not be substantially larger than the nu[...]ber taking place now, the Government will undertake to reconsider the matter with a view to toughening the provision, perhaps by removing the requirement of intent? If my hon. Friend agreed to that, it would give some comfort to those of us who are slightly dissatisfied with the Government's response.

7.45 pm

Mr. Baker

I understand my hon. and learned Friend's concern, and although I cannot give an undertaking on future action, I can assure him that we shall keep the matter under close review, and will watch to see precisely what the new offence achieves. That undertaking also meets one of the concerns of the hon. Member for Deptford.

Ms Ruddock

May I clarify that point? The purpose of the hon. and learned Member for Burton (Sir I. Lawrence) would be served if statistics were produced, and we could make a comparison between what is happening now and what happens in future. My argument adds to that the need to distinguish between different kinds of offence within the group. It is important to us to know whether it is racial incidents or other kinds of incident that are dealt with in that way.

Mr. Baker

I hope that, in examining how the offence works in practice, we shall consider all kinds of harassment. I cannot say how those will be categorised, but I hear the hon. Lady's request, and of course we shall consider the matter closely, because it is important.

Several hon. Members said that the offence should mention racial harassment in particular. I must tell the hon. Member for Islington, North (Mr. Corbyn) and others that we believe that avoiding a specific reference to racial harassment will make it easier to secure prosecutions. As I have said, it would be very hard to prove racial motivation. I should not like, and I am sure the hon. Gentleman would not like, to see prosecutions fail for that reason.

Mr. Corbyn

Unfortunately, many attempts at prosecution and eviction by local authorities for racial violence and racial harassment have failed precisely because there is no specific law dealing with that. There is nothing on earth to stop a subsection saying, "and a motive based on racial hatred or incitement to racial hatred" being added to the clause. That would be an addition to the armoury of the law against such people. I fail to understand what point the Minister is making. Again, he seems to be trying to avoid the basic issue that we need a law that outlaws racial harassment and racial violence, and makes them a criminal offence, as they should be.

Mr. Baker

The clause covers that kind of harassment, as it does others. If one tries to prove racial motivation one makes it harder to get a prosecution, and that is not what the hon. Gentleman would want. I believe it right that there should be similar penalties for other forms of harassment, and I believe that the hon. Member for Deptford is with me on that. My hon. Friend the Member for Shoreham (Mr. Stephen) made a sensible point when he said, rightly, that in other crimes racial motivation is well recognised as an aggravating factor that the courts should take into account. That point has got rather left behind.

Now I shall speak briefly about the amendments, and the reason why I cannot accept them. Amendment (a) to Lords amendment No. 132 would weaken the test of intent by including within the offence behaviour that was reckless, but not actually intended to cause harassment. The test of intent was included in the new offence in order to distinguish it from the existing offence under section 5 of the Public Order Act 1986, and to justify a custodial sentence. Not just from having spent a great deal of my life in Peckham, but from living in London generally and having heard many examples of neighbourhood noise, I do not regard a custodial sentence as the right remedy for such neighbour problems. Indeed, there are remedies under the Public Order Act 1986.

Mr. Simon Hughes

I put it to the Minister that resisting the addition of the word "recklessly" does not meet the concern. The Minister [...]nows my borough. In the past few weeks, I have had at my surgery a black family, a gay couple and some disabled people who have all been badly harassed. Let us imagine that somebody had attacked the homes of those people when they were not in them, careless as to whether they were in them or not and believing that that is where they might have been. Such attackers should be convicted if they were careless or reckless about whether someone was there or not. One could not convict them if one had to prove that they intended that the person who lived there should be the victim. That is the present weakness.

The hon. and learned Member for Burton (Sir I. Lawrence), supporting the argument, has sought to persuade the Minister—I still seek to persuade him—that such an action is deserving of custody, whether of a short or long period. A person deserves custody if he or she is not bothered about whether somebody is being harassed by his or her actions. That seems to be a perfectly reasonable consequence.

Mr. Baker

The word "recklessly" applies to a far lighter kind of behaviour than does the word "intent". Yet if conduct were deliberate, as I have said, malicious and targeted, which could certainly cover the type of conduct that the hon. Member for Southwark and Bermondsey has described, it would, no doubt rightly, be caught by the new clause proposed in Lords amendment No. 132.

Amendment (b) would make the offence inconsistent with other public order offences by extending its scope to include private acts committed when the defendant and victim were in different dwellings. That is why we have to be careful before invading neighbourhood disputes with a new clause as heavyweight as this. If we accepted the amendments, the result would be legislation that was neither clearly designed to tackle a specific type of crime nor consistent with public order provisions. I am afraid that I cannot, therefore, recommend to the House that we should accept the amendments. I urge the House to reject both amendments and to agree with the Lords amendment, which would add the new clause.

Mr. Stephen

On the point of conduct in one dwelling affecting people in another dwelling, I have in my constituency many elderly people who live in flats or in semi-detached houses whose lives are made a misery by behaviour in the next-door flat or house. The behaviour may be shouting or screaming, playing loud music or banging on the wall. Those people are affected by the behaviour in the adjoining dwelling. I ask my hon. Friend the Minister and the Government to keep the matter under review because it causes serious distress to many people, particularly elderly people.

Mr. Simon Hughes

The Minister has not dealt with many of the matters that have been brought to him. To start with the least important first, he has not said when the Government intend to do anything else about the general issue of nuisance, neighbours, noise and so on. I gave him the peg to hang that on because I put to him the fact that there was a consultation paper. We have not been told that there is a deadline or an end in sight.

Secondly, the one undertaking that the Minister has given is the mildest undertaking that Ministers can give—to keep things under review. There has not even been an undertaking—the debate in the House of Lords was clear about the need for it—that the Government will look at the issue, at what the Select Committee has proposed and at what all the organisations to which the hon. Member for Lewisham, Deptford (Ms Ruddock) referred have proposed, and that they will have the issue specifically on their agenda in the near future.

Thirdly, there have clearly been two concerns in the debate. One has been that under the general law—the hon. Member for Shoreham (Mr. Stephen) made the point that we can all make perfectly properly, and in which we support him—many of our constituents, particularly the vulnerable, often elderly single people, are effectively powerless. They find themselves at a huge disadvantage relative to the person next door, the person across the road or the person above or below. They need much more support.

Sometimes, the only way in which the neighbours understand the position is if they are threatened with losing their liberty. Custody need not be for six months; it could be for six days or for one night. Just as on the football field a player is told that he will not play in the next match, the courts could say, "You will be locked up for the weekend." The Dutch do that regularly. Their gaols are not nearly as full as ours because they send loads of people away for short periods. They give people a short, sharp shock. That is one point that we should have heard from the Minister.

Fourthly, there is a huge concern that the law will not be tough enough in dealing with harassment against minority communities in our society. I have learnt a lesson in this place—[Laughter]. This is an important point. The only people who can judge—

The Lords Commissioner to the Treasury (Mr. Derek Conway)

I am here all the time.

Mr. Hughes

I know that the hon. Gentleman is here all the time and some of the London Members seem to be here most of the time, too.

The only way in which one can judge whether people feel that they are harassed or that the law is not tough enough is to ask them. White people, for example, cannot speak for the feelings of the black community or of Asian people. If such people say to us that the law is not tough enough, we must accept that. That was the lesson that some of us learnt, and which others did not learn, from the debate over the age of consent. If people say, "We feel discriminated against," it is not for the rest of us to say, "Oh no you don't." We are not the 16, 17 or 18-year-olds protesting outside the House of Commons. We are talking about people saying to the House, "The law needs to be toughened."

The Government are moving the goalposts. We concede that the Government have come up with some legislation that is better. However, we are saying—the House of Lords debate was clear—that this legislation will not ensure that we clobber people as we should. I am strongly of the view that the matter should be left for the House to decide. Therefore, I will not seek to withdraw the amendment.

Question put, That the amendment to the Lords amendment be made—

The House divided: Ayes 55, Noes 183.

Division No. 312]	[7.58 pm
AYES
Austin-Walker, John	Maddock, Diana
Barnes, Harry	McFall, John
Bayley, Hugh	Michael, Alun
Beith, Rt Hon A. J.	Milburn, Alan
Bennett, Andrew F.	Murphy, Paul
Brown, N. (N'c'tle upon Tyne E)	O'Brien, Michael (N W'kshire)
Bruce, Malcolm (Gordon)	Olner, William
Burden, Richard	Pendry, Tom
Corbyn, Jeremy	Pickthall, Colin
Corston, Jean	Powell, Ray (Ogmore)
Dafis, Cynog	Prentice, Gordon (Pendle)
Dalyell, Tam	Primarolo, Dawn
Dixon, Don	Reid, Dr John
Dobson, Frank	Rendel, David
Etherington, Bill	Ruddock, Joan
Ewing, Mrs Margaret	Salmond, Alex
Foster, Don (Bath)	Skinner, Dennis
Godman, Dr Norman A.	Steel, Rt Hon Sir David
Harvey, Nick	Taylor, Matthew (Truro)
Hill, Keith (Streatham)	Vaz, Keith
Home Robertson, John	Wallace, James
Howarth, George (Knowsley N)	Wareing, Robert N
Hughes, Simon (Southwark)	Welsh, Andrew
Hutton, John	Winnick, David
Jones, Lynne (B'ham S O)	Wise, Audrey
Jones, Martyn (Clwyd, SW)	Wray, Jimmy
Lawrence, Sir Ivan	Tellers for the Ayes:
Livingstone, Ken	Mr. Archie Kirkwood and
Mackinlay, Andrew	Ms Liz Lynne.

NOES
Ainsworth, Peter (East Surrey)	Baldry, Tony
Alison, Rt Hon Michael (Selby)	Banks, Matthew (Southport)
Amess, David	Batiste, Spencer
Ancram, Michael	Bellingham, Henry
Arbuthnot, James	Beresford, Sir Paul
Arnold, Jacques (Gravesham)	Biffen, Rt Hon John
Arnold, Sir Thomas (Hazel Grv)	Booth, Hartley
Aspinwall, Jack	Boswell, Tim
Atkins, Robert	Bowis, John
Atkinson, Peter (Hexham)	Brandreth, Gyles
Baker, Nicholas (Dorset North)	Brazier, Julian
Baker, Rt Hon K. (Mole Valley)	Bright, Sir Graham

Brooke, Rt Hon Peter	Key, Robert
Browning, Mrs. Angela	King, Rt Hon Tom
Burns, Simon	Kirkhope, Timothy
Butler, Peter	Knapman, Roger
Carlisle, John (Luton North)	Knight, Dame Jill (Bir'm E'st'n)
Carlisle, Sir Kenneth (Lincoln)	Knight, Greg (Derby N)
Carttiss, Michael	Knight, Mrs Angela (Erewash)
Cash, William	Kynoch, George (Kincardine)
Chapman, Sydney	Lait, Mrs Jacqui
Clappison, James	Lang, Rt Hon Ian
Clark, Dr Michael (Rochford)	Legg, Barry
Clifton-Brown, Geoffrey	Leigh, Edward
Coe, Sebastian	Lidington, David
Colvin, Michael	Lilley, Rt Hon Peter
Congdon, David	Lloyd, Rt Hon Peter (Fareham)
Conway, Derek	Lord, Michael
Coombs, Simon (Swindon)	Luff, Peter
Cope, Rt Hon Sir John	MacGregor, Rt Hon John
Cran, James	MacKay, Andrew
Currie, Mrs Edwina (S D'by'ire)	Maclean, David
Curry, David (Skipton & Ripon)	Malone, Gerald
Davies, Quentin (Stamford)	Mates, Michael
Day, Stephen	Mawhinney, Rt Hon Dr Brian
Deva, Nirj Joseph	Merchant, Piers
Dorrell, Rt Hon Stephen	Mills, Iain
Douglas-Hamilton, Lord James	Mitchell, Andrew (Gedling)
Dover, Den	Mitchell, Sir David (Hants NW)
Duncan, Alan	Monro, Sir Hector
Duncan-Smith, Iain	Neubert, Sir Michael
Dunn, Bob	Nicholson, David (Taunton)
Dykes, Hugh	Nicholson, Emma (Devon West)
Eggar, Tim	Norris, Steve
Elletson, Harold	Oppenheim, Phillip
Evans, David (Welwyn Hatfield)	Ottaway, Richard
Evans, Jonathan (Brecon)	Paice, James
Evans, Nigel (Ribble Valley)	Patten, Rt Hon John
Evans, Roger (Monmouth)	Pattie, Rt Hon Sir Geoffrey
Evennett, David	Pickles, Eric
Faber, David	Portillo, Rt Hon Michael
Fishburn, Dudley	Renton, Rt Hon Tim
Forman, Nigel	Richards, Rod
Forsyth, Michael (Stirling)	Riddick, Graham
Fowler, Rt Hon Sir Norman	Roberts, Rt Hon Sir Wyn
Fox, Dr Liam (Woodspring)	Robertson, Raymond (Ab'd'n S)
Freeman, Rt Hon Roger	Robinson, Mark (Somerton)
French, Douglas	Rowe, Andrew (Mid Kent)
Gale, Roger	Ryder, Rt Hon Richard
Gallie, Phil	Sackville, Tom
Gill, Christopher	Shaw, David (Dover)
Gillan, Cheryl	Shaw, Sir Giles (Pudsey)
Goodlad, Rt Hon Alastair	Shepherd, Colin (Hereford)
Goodson-Wickes, Dr Charles	Shersby, Michael
Gorman, Mrs Teresa	Sims, Roger
Greenway, Harry (Ealing N)	Smith, Sir Dudley (Warwick)
Greenway, John (Ryedale)	Spencer, Sir Derek
Griffiths, Peter (Portsmouth, N)	Spicer, Michael (S Worcs)
Hague, William	Squire, Robin (Hornchurch)
Hampson, Dr Keith	Stanley, Rt Hon Sir John
Harris, David	Stephen, Michael
Hawksley, Warren	Sweeney, Walter
Hayes, Jerry	Sykes, John
Heald, Oliver	Taylor, Ian (Esher)
Heathcoat-Amory, David	Taylor, John M. (Solihull)
Hendry, Charles	Taylor, Sir Teddy (Southend, E)
Hicks, Robert	Temple-Morris, Peter
Hill, James (Southampton Test)	Thomason, Roy
Hogg, Rt Hon Douglas (G'tham)	Thompson, Patrick (Norwich N)
Hordern, Rt Hon Sir Peter	Townsend, Cyril D. (Bexl'yh'th)
Howard, Rt Hon Michael	Tredinnick, David
Hughes Robert G. (Harrow W)	Trend, Michael
Hunt, Sir John (Ravensbourne)	Twinn, Dr Ian
Jack, Michael	Vaughan, Sir Gerard
Jackson, Robert (Wantage)	Walker, Bill (N Tayside)
Jenkin, Bernard	Ward, John
Jones, Robert B. (W Hertfdshr)	Wardle, Charles (Bexhill)
Jopling, Rt Hon Michael	Waterson, Nigel

Watts, John	Wolfson, Mark
Wells, Bowen	Young, Rt Hon Sir George
Whittingdale, John	Tellers for the Noes:
Wiggin, Sir Jerry	Mr. Timothy Wood and
Willetts, David	Mr. Michael Bates.

Question accordingly negatived.

Lords amendment agreed to.

Subsequent Lords amendments agreed to.