HC Deb 17 December 1996 vol 287 cc836-53
Mrs. Maddock

I beg to move amendment No. 33, in page 2, line 6, after 'claim', insert 'for an actual breach.'

The purpose of the amendment is to make explicit what we believe is the Government's intention anyway—that damages are not awardable where there has been only an apprehended breach but no actual breach of section 1. I seek reassurance from the Government.

Mr. Streeter

I am afraid that I am unable to give the hon. Lady the assurance she seeks, because, if the amendment were accepted, it might be thought that damages claims should be limited to cases in which harassment had actually occurred. On the face of it, it is not easy to see how it could be claimed that damages should be awarded for something that has not—or at least not yet—happened. Part of our problem is that we are trying to legislate for a wide range of behaviour. It is conceivable, for example, that even the anticipation of harassment could, in particularly vulnerable people, cause anxiety or loss. A situation may build up over a period of time and be about to reach boiling point.

The Government would prefer to leave it to the courts to decide in the individual case whether the award of damages was appropriate. The courts are very good at considering specific circumstances and tailoring the order to meet a particular set of facts. The courts' existing powers enable that to happen effectively. Before the court awards damages, it must first be persuaded that the victim has—under this legislation—suffered anxiety or loss. The court will not award damages unless it is persuaded on the evidence that that has happened. A defendant who feels that the court's judgment in that regard is wrong may, of course, appeal against the judgment.

Although the Government recognise the point that the hon. Member for Christchurch (Mrs. Maddock) is trying to make in the amendment, we think that the courts' existing powers cover the point adequately and that the amendment is therefore unnecessary.

Mrs. Maddock

In view of the Minister's comments, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9 pm

Mr. George Howarth

I beg to move amendment No. 13, in page 2, line 8, at end insert— '(2A) In proceedings under this section a court may, if it appears just and appropriate to do so, order that the person who has been found to have pursued the course of conduct amounting to harassment, to attend a course of counselling with a named person or organisation for the purpose of persuading him not to harass the victim or any other person in the future.'.

The Chairman

With this, it will be convenient to discuss also the following amendments: No. 15, in clause 5, page 3, line 21, at end insert— '(2A) The order may, for the purpose of persuading the defendant not to pursue a course of conduct likely to cause harassment to the victim of the offence or any other person in the future, provide that the defendant attend a course of counselling with a named person or organisation.'. No. 16, in clause 5, page 3, line 26, after 'defendant', insert 'fails to do anything which he has been ordered to do or'. No. 24, in clause 8, clause 8, page 4, line 36, at end insert— `(c) grant an order, if it appears just and appropriate to do so, requiring the defender to attend a course of counselling with a named person or organisation for the purpose of persuading him not to harass the pursuer or any other person in the future'. No. 26, in clause 11, clause 11, page 6, line 41, at end insert— '(6A) A non-harassment order may, for the purpose of persuading the defendant not to pursue a course of conduct likely to cause harassment to the victim of the offence or any other person in the future, provide that the offender attend a course of counselling with a named person or organisation'. No. 19, in clause 14, clause 14, page 7, line 13, at beginning insert 'Subject to subsection (2A) below,'. No. 20, in clause 14, page 7, line 15, at beginning insert `Subject to subsection (2A) below,'. No. 21, in clause 14, page 7, line 16, at end insert— '(2A) The Secretary of State or, as the case may be, the Lord Chancellor, may provide that section 3(2A) or section 5(2A) shall come into force in different areas of England and Wales in different ways.'.

Mr. Howarth

Amendment No. 13 and those associated with it cover the issue of counselling for those who are convicted of stalking or harassment in one form or another.

I should make it clear what the Opposition mean by counselling. We mean not some pleasant chat over a cup of tea between the perpetrator and some qualified counsellor, but the sort of counselling that forces offenders to face up to their offending behaviour, the effects that it has had and what its consequences can be. I will cite some examples of what I mean by that later.

The amendments are basically permissive; they give the courts the option to rule as part of an order or sentence that some form of counselling will take place. At present, the civil courts have no such power and the amendments provide a constructive remedy, especially in "sad cases" where a criminal conviction may be inappropriate.

The Government's definition of harassment, as set out in clause 1, says that what the defendant knows or ought to know amounts to harassment". It is therefore clear that the defendant, even once convicted, may genuinely believe that his or her behaviour was quite reasonable.

Amazing though that may seem to reasonable people such as hon. Members, there are circumstances in which people simply do not realise that what they have done is wrong. That attitude is typical of those who commit offences that are directed toward another person—a good example being a rapist, who will cite the fact that the victim was "provocatively dressed" or that the victim said no, but really meant yes. Even more bizarre to many of us, but which happens, is the child abuser who argues that they were led on by the child.

All of us know, because we are reasonable and coherent people, that such statements are neither sufficient excuses nor reasonable explanations for such behaviour. The truth, with which the Prison Service has had to come to terms, is that people often delude themselves into believing that an incident was not their fault. The point of programmes which are already very successful in some prisons is that they remove any reason for people to continue with the self-delusion that they were in some way not responsible for the actions that they perpetrated. By introducing the concept of counselling into the Bill, we hope that those who have committed an offence will have to address the root causes of the problems that they have created by the nature of their behaviour. That, simply, is what we seek to do.

Of course, there will also be stalkers who are well aware of the impact of their behaviour on victims. They, too, should be forced to confront their offending behaviour. Merely placing restrictive orders on them may or may not be sufficient to remedy the problem.

If the Minister can give me assurances that our concerns can be taken into account, and that remedies along the lines that I have described will be available, we may reconsider our position. None the less, at this stage I want to register the fact that we regard this matter as vital, and that I shall probably wish to press it to a Division.

There are many examples of stalkers convicted of offences such as breaches of the peace, or making nuisance telephone calls, who learn to restrict their behaviour and keep just within the law. That is a worrying phenomenon, and the Bill as presently constructed may allow such people to slip through the net.

The most effective way to stop harassment is to remove the root cause. A stalker who has been forced to address his own offending behaviour and no longer wishes to harass the victim is far less of a threat than one whose only motive in not committing further offences is the fear of legal retribution, important though that is. We owe it to the victims of harassment to ensure that stalkers are forced to confront their behaviour, and that an order imposed by the court can make them undertake such activity.

There are many examples. I shall not labour them, because all the cases have been mentioned in earlier debates, but they all help to make the case. Vanessa Kennedy, a resident of Lewisham, was subjected to an eight-year ordeal that she describes as psychological torture. She lives in fear of a man who has forced her to change her identity, has destroyed her family and driven her to move house. Vanessa Kennedy has attempted suicide four times, and claims that the perpetrator, Laurence Hammond, threatened to cut her into pieces and make her pay for rejecting him. He would describe in detail how he would torture her and other women, and the images still live in her nightmares. That man has never been forced to address the impact of his offending. Clearly, if the Bill allowed such things to continue without redress, it would not be adequate.

Secondly, I cite the case of Dennis Chambers, which has already been mentioned. The case came to trial earlier this year, and the defendant was acquitted when a jury was not convinced that he had caused "serious or really serious" psychological harm to Margaret Bent. The court was told that he had waited outside her home with a machete on two occasions, and had barricaded her into her office. Chambers admitted to the police that he had registered his car in Miss Bent's name and ensured that she received a string of parking tickets, followed by summonses and visits by bailiffs threatening to seize her property if fines went unpaid. He also admitted kicking her office door open, but denied that that amounted to affray. He said that it was a mere act of instinctive criminal damage". The drip, drip, drip effect of those incidents was not sufficient to achieve a criminal conviction, so there have been no consequences for that man. He has not been forced to face up to his offending behaviour.

The Government may say that proposals to force stalkers to confront their offending behaviour are uncosted and may prove expensive. However, the section of the explanatory and financial memorandum headed "Financial Effects of the Bill", says: It is anticipated that approximately 200 extra criminal cases a year will arise". We do not propose that every one, even of that small number of people, would be compelled to have counselling, so very few cases would be involved.

Amendment No. 21 would provide for counselling to be piloted, so any cost implications could be closely monitored, and would be extremely limited in scope. Moreover, the purpose of counselling would be to prevent further offending, and could therefore reduce future legal costs.

Amendment No. 15 provides the criminal court with the power to order offenders to undergo counselling on conviction. Although magistrates courts can theoretically issue similar orders already, it does us no harm to reiterate the point. The clause also reflects the wording of amendment No. 13. There are examples of cases that highlight the benefit of making stalkers address their offending behaviour, such as the case of Anthony Burstow, who, in March 1996, was jailed for three years for inflicting psychological grievous bodily harm following a three-year hate campaign against a former colleague, Tracey Sant.

The harassment began when Miss Sant decided to end their friendship, but Mr. Burstow refused to accept that. His activities included sending her a soiled sanitary towel, stealing her underwear from a washing line, pouring solvent over her car and writing her sinister notes. This was the first case in which a stalker was convicted of grievous bodily harm, but it took five days of tortuous legal wrangling before the court was able to reach a decision.

A similar example is Perry Southall of east London, who was subjected to an eight-month campaign—involving more than 200 separate incidents—by convicted rapist Clarence Morris, until his conviction in September of this year. Morris was finally convicted of two assault charges after a case in which his barrister, David Stanton, said: Is it fair that a young lady who dresses to attract, the queen bee attracting the drones, the queen bee that dresses to kill … cries foul because somebody finds her attractive? I think that we would all take issue with that statement. In response to that case, the Home Secretary promised that the proposed Bill would have the effect of providing proper safeguards against stalking. It is difficult to envisage how those proper safeguards against further stalking can be provided without making some effort to prevent the root causes of the offence.

I will not detain the Committee with a description of the remaining amendments, which are consequential and follow the same line of argument. Although the Bill starts to provide some remedies, unless and until the unacceptable attitudes that people use to justify some appalling behaviour—mainly towards women—are confronted, and until the offenders are counselled and forced to confront their offending behaviour and the faults in their approach to other people, the root causes of some of the problems will not be adequately dealt with. This is an important issue and an important principle, and it is one that I hope the Committee will accept if it conies to a vote. We must make sure that the root causes of offensive behaviour are tackled properly by making provision within the Bill for counselling to take place on a statutory basis.

Mr. Streeter

I am afraid that the Government cannot accept the amendment. There is an element of confusion in the mind of the hon. Member for Knowsley, North (Mr. Howarth), although I recognise that he has tabled the amendment for the best possible motives. He is seeking to give a civil court the ability to grant an order for counselling, but all the examples that he provided would almost certainly be dealt with by the criminal courts when the Bill becomes an Act. The Bill has been introduced to deal with cases such as the Kennedy case, the Chambers case, the Burstow case and the Perry Southall case. They would be criminal cases, and the criminal courts have a full panoply of powers available to them to deal with the very points that the hon. Gentleman has raised.

Amendments Nos. 13 and 24—which seek to empower the civil courts, when making an order under either clause 3 or clause 8, to order that a defendant receives counselling—are not acceptable for the following three clear reasons.

First, the purpose of the civil remedy is to enable a victim to obtain protection from harassment or anticipated harassment, not to provide a forum for determining appropriate treatment for the defendant. A civil court is not normally expected to make what amounts to a treatment order. Such an order is analogous to a punishment order and is not really appropriate for a civil court.

Mr. Bennett

Does the Minister not recognise that he is pushing the Bill that bit further to deal with neighbour disputes where harassment is involved? Surely there is a role for counselling when two neighbours are at war with each other and each is probably harassing the other? In such cases, can the Minister not see the advantages of the court being able to tell the parties involved to sit down and talk sensibly to someone who can persuade them that continuing that line of behaviour will not only be illegal, but damaging to themselves and to their neighbours?

9.15 pm
Mr. Streeter

The hon. Gentleman knows that a panoply of provision, including counselling, is already available in the multi-agency approach that tends to be taken in respect of such matters these days. Social services might well already be involved in disputes such as he describes, and therefore counselling would be available. Under the existing arrangements, if a court dealing with such a case was persuaded that an undertaking from a defendant to attend a course of counselling was sufficient protection for the victim, either in itself or in addition to other forms of protection, the court could consider that undertaking in deciding what order to make.

We must recognise that it would be a major departure to empower civil courts in the way that is suggested in the amendment. Even if we were minded to accept that civil courts should have the ability to make a treatment order, that order should not be limited to counselling, but should include the full range of provision currently available under the criminal jurisdiction. Singling out counselling, which is only one of a wide range of matters which might feature in a civil court's order, is unhelpful.

Amendment No. 15 and its Scottish equivalent, amendment No. 26, are also unnecessary. Whereas the previous amendments are intended to confer powers on civil courts to direct that a person receives counselling, these amendments would give such powers to criminal courts. However, that adds nothing to the powers of the courts—either under existing law or as provided in the Crime (Sentences) Bill—to order medical treatment that is likely to be effective in addressing offending behaviour. Courts already have extensive powers under the Mental Health Act 1984 and the Criminal Justice Acts to make hospital orders or to attach conditions of treatment, including therapy by a psychologist, to probation orders. Again, isolating counselling among the wide range of matters which might feature in a restraining order is unhelpful.

With regard to amendment No. 16, the purpose of a restraining order is to set out clearly those activities which are prohibited, and that is the extent to which we consider that restraining orders should go. In addition, to require a person to do certain things is out of keeping with an order which carries a strict liability offence, carrying a maximum penalty of five years imprisonment. I presume that amendment No. 16 is consequential on amendment No. 15 and that it is intended to ensure that a convicted stalker abides by the terms of any order requiring counselling to take place. As I have said, I consider amendment No. 15 to be misguided, and it follows that amendment No. 16 should fall with it.

Amendments Nos. 19 to 21 are consequential on amendments Nos. 13 and 15. I ask that Opposition Members should not press them, or the amendments to which I have just spoken.

Mr. George Howarth

I listened carefully to the Minister's remarks. In the conclusion to my opening speech, I said that we considered this to be an issue of principle. Through the availability of counselling, we seek to nip in the bud, in many instances, a sequence of events which might lead to a serious court case and possibly a prison sentence. We want to be able to move in swiftly and deal with the problem at an early stage so that it does not go too far.

The second part of our argument is that there is strong evidence that in cases such as those that we are discussing today people who somehow delude themselves into believing that their behaviour is acceptable and not beyond the bounds of reason should be forced to confront their offending behaviour.

The Committee needs to send out a powerful message which builds on the Bill's provisions. That message should be that, at the earliest possible stage, and on all subsequent occasions, offending behaviour will be confronted, and, if necessary, that that will be done on a statutory basis. I would feel more comfortable if that were a statutory provision in the Bill. I therefore urge my hon. Friends and others to join us in the Lobby to put it there.

Question put, That the amendment be made:—

The Committee divided: Ayes 179, Noes 172.

Division No. 32] [9.19 pm
Adams, Mrs Irene Hill, Keith (Streatham)
Ainger, Nick Hodge, Ms Margaret
Ainsworth, Robert (Cov'try NE) Hoey, Kate
Anderson, Donald (Swansea E) Home Robertson, John
Anderson, Ms Janet (Ros'dale) Howarth, Alan (Stratf'd-on-A)
Armstrong, Ms Hilary Howarth, George (Knowsley N)
Austin-Walker, John Howells, Dr Kim
Barnes, Harry Hoyle, Doug
Battle, John Hughes, Kevin (Doncaster N)
Beith, A J Hutton, John
Bennett, Andrew F Illsley, Eric
Benton, Joe Jackson, Ms Glenda (Hampst'd)
Bermingham, Gerald Jamieson, David
Berry, Roger Jenkins, Brian D (SE Staffs)
Betts, Clive Jones, Barry (Alyn & D'side)
Boateng, Paul Jones, Ieuan Wyn (Ynys Môn)
Bradley, Keith Jones, Martyn (Clwyd SW)
Bray, Dr Jeremy Jones, Nigel (Cheltenham)
Brown, Nicholas (Newcastle E) Jowell, Ms Tessa
Burden, Richard Keen, Alan
Byers, Stephen Kennedy, Charles (Ross C & S)
Callaghan, Jim Kennedy, Mrs Jane (Broadgreen)
Campbell, Mrs Anne (C'bridge) Khabra, Piara S
Campbell, Menzies (Fife NE) Kilfoyle, Peter
Campbell, Ronnie (Blyth V) Kirkwood, Archy
Campbell-Savours, D N Liddell, Mrs Helen
Cann, Jamie Litherland, Robert
Chidgey, David Livingstone, Ken
Chisholm, Malcolm Lloyd, Tony (Stretf'd)
Clapham, Michael Loyden, Eddie
Clarke, Eric (Midlothian) Lynne, Ms Liz
Clwyd, Mrs Ann McAllion, John
Coffey, Ms Ann McAvoy, Thomas
Cohen, Harry Macdonald, Calum
Connarty, Michael McFall, John
Cox, Tom McKelvey, William
Cummings, John McLeish, Henry
Cunliffe, Lawrence McMaster, Gordon
Cunningham, Jim (Cov'try SE) McNamara, Kevin
Dafis, Cynog MacShane, Denis
Dalyell, Tam McWilliam, John
Darling, Alistair Madden, Max
Davidson, Ian Maddock, Mrs Diana
Davies, Bryan (Oldham C) Mahon, Mrs Alice
Davies, Chris (Littleborough) Mandelson, Peter
Davis, Terry (B'ham Hodge H) Marshall, David (Shettleston)
Denham, John Marshall, Jim (Leicester S)
Dixon, Don Martin, Michael J (Springburn)
Dobson, Frank Maxton, John
Donohoe, Brian H Michael, Alun
Eastham, Ken Michie, Mrs Ray (Argyll Bute)
Ennis, Jeffrey Milburn, Alan
Etherington, Bill Miller, Andrew
Evans, John (St Helens N) Moonie, Dr Lewis
Faulds, Andrew Morley, Elliot
Field, Frank (Birkenhead) Morris, Ms Estelle (B'ham Yardley)
Fisher, Mark Morris, John (Aberavon)
Flynn, Paul Mudie, George
Foster, Derek Mullin, Chris
Foster, Don (Bath) Nicholson, Miss Emma (W Devon)
Foulkes, George O'Brien, Mike (N Warks)
Fyfe, Mrs Maria O'Brien, William (Normanton)
Galbraith, Sam O'Hara, Edward
Gapes, Mike Olner, Bill
George, Bruce O'Neill, Martin
Gerrard, Neil Pearson, Ian
Golding, Mrs Llin Pickthall, Colin
Griffiths, Nigel (Edinburgh S) Pike, Peter L
Griffiths, Win (Bridgend) Prentice, Mrs B (Lewisham E)
Grocott, Bruce Prentice, Gordon (Pendle)
Gunnell, John Primarolo, Ms Dawn
Hall, Mike Purchase, Ken
Harvey, Nick Quin, Ms Joyce
Raynsford, Nick Timms, Stephen
Rendel, David Tipping, Paddy
Robertson, George (Hamilton) Turner, Dennis
Rooker, Jeff Tyler, Paul
Rooney, Terry Wardell, Gareth (Gower)
Ross, Ernie (Dundee W) Watson, Mike
Ruddock, Ms Joan Welsh, Andrew
Simpson, Alan Wicks, Malcolm
Skinner, Dennis Williams, Alan W (Carmarthen)
Smith Andrew (Oxford E) Wilson, Brian
Winnick, David
Smith, Llew (Blaenau Gwent) Wise, Mrs Audrey
Soley, Clive Worthington, Tony
Spearing, Nigel Wray, Jimmy
Squire, Ms R (Dunfermline W) Wright, Dr Tony
Steinberg, Gerry
Sutcliffe, Gerry Tellers for the Ayes:
Taylor, Mrs Ann (Dewsbury) Ms Angela Eagle and
Thurnham, Peter Mr. Greg Pope.
Ainsworth, Peter (E Surrey) Fox, Dr Liam (Woodspring)
Alison, Michael (Selby) Freeman, Roger
Arnold, Jacques (Gravesham) French, Douglas
Ashby, David Fry, Sir Peter
Atkins, Robert Gallie, Phil
Atkinson, Peter (Hexham) Garel-Jones, Tristan
Baldry, Tony Garnier, Edward
Banks, Matthew (Southport) Gillan, Mrs Cheryl
Bates, Michael Goodlad, Alastair
Beggs, Roy Goodson-Wickes, Dr Charles
Bellingham, Henry Greenway, John (Ryedale)
Bendall, Vivian Grylls, Sir Michael
Bonsor, Sir Nicholas Gummer, John
Booth, Hartley Hague, William
Boswell, Tim Hamilton, Sir Archibald
Bottomley, Peter (Eltham) Harris, David
Bowis, John Hawkins, Nick
Brandreth, Gyles Hawksley, Warren
Brazier, Julian Heald, Oliver
Bright, Sir Graham Heathcoat-Amory, David
Browning, Mrs Angela Hendry, Charles
Burt, Alistair Hill, Sir James (Southampton Test)
Butcher, John Horam, John
Carlisle, Sir Kenneth (Linc'n) Howell, Sir Ralph (N Norfolk)
Carrington, Matthew Hughes, Robert G (Harrow W)
Carttiss, Michael Hunt, David (Wirral W)
Chapman, Sir Sydney Jack, Michael
Coe, Sebastian Jenkin, Bernard (Colchester N)
Congdon, David Jessel, Toby
Conway, Derek Jones, Gwilym (Cardiff N)
Coombs, Anthony (Wyre F) Jones, Robert B (W Herts)
Cope, Sir John Kirkhope, Timothy
Cran, James Knight, Mrs Angela (Erewash)
Davies, Quentin (Stamf'd) Knight, Dame Jill (Edgbaston)
Davis, David (Boothferry) Knox, Sir David
Deva, Nirj Joseph Kynoch, George
Dorrell, Stephen Lait, Mrs Jacqui
Douglas-Hamilton, Lord James Lawrence, Sir Ivan
Dover, Den Leigh, Edward
Duncan, Alan Lennox-Boyd, Sir Mark
Duncan Smith, Iain Lidington, David
Durant, Sir Anthony Lloyd, Sir Peter (Fareham)
Dykes, Hugh Luff, Peter
Eggar, Tim Lyell, Sir Nicholas
Elletson, Harold MacKay, Andrew
Evans, Jonathan (Brecon) Maclean, David
Evans, Nigel (Ribble V) McLoughlin, Patrick
Evennett, David Maitland, Lady Olga
Fabricant, Michael Malone, Gerald
Fenner, Dame Peggy Mans, Keith
Fishburn, Dudley Marshall, Sir Michael (Arundel)
Forman, Nigel Martin, David (Portsmouth S)
Forsyth, Michael (Stirling) Mawhinney, Dr Brian
Forsythe, Clifford (S Antrim) Merchant, Piers
Forth, Eric Mills, Iain
Mitchell, Andrew (Gedling) Spink, Dr Robert
Montgomery, Sir Fergus Sproat, Iain
Nelson, Anthony Squire, Robin (Hornchurch)
Neubert, Sir Michael Stanley, Sir John
Newton, Tony Stephen, Michael
Nicholls, Patrick Streeter, Gary
Norris, Steve Sumberg, David
Onslow, Sir Cranley Sweeney, Walter
Oppenheim, Phillip Taylor, Ian (Esher)
Ottaway, Richard Taylor, Sir Teddy
Page, Richard Temple-Morris, Peter
Paice, James Thomason, Roy
Patnick, Sir Irvine Thompson, Sir Donald (Calder V)
Pawsey, James Thompson, Patrick (Norwich N)
Pickles, Eric Townsend, Cyril D (Bexl'yh'th)
Porter, David Trotter, Neville
Powell, William (Corby) Twinn, Dr Ian
Redwood, John Walker, Bill (N Tayside)
Renton, Tim Waller, Gary
Richards, Rod Wardle, Charles (Bexhill)
Roberts, Sir Wyn Waterson, Nigel
Robertson, Raymond S (Ab'd'n S) Watts, John
Robinson, Mark (Somerton) Wheeler, Sir John
Ross, William (E Lond'y) Whitney, Ray
Rumbold, Dame Angela Whittingdale, John
Shaw, David (Dover) Willetts, David
Shaw, Sir Giles (Pudsey) Winterton, Mrs Ann (Congleton)
Shepherd, Sir Colin (Heref'd) Winterton, Nicholas (Macclesf'ld)
Shersby, Sir Michael Wood, Timothy
Sims, Sir Roger
Smith, Sir Dudley (Warwick) Tellers for the Noes:
Spicer, Sir Jim (W Dorset) Mr. Roger Knapman and
Spicer, Sir Michael (S Worcs) Mr. Bowen Wells.

Question accordingly agreed to.

Ms Janet Anderson

I beg to move amendment No. 14, in page 2, line 8, at end insert— '(2B) In considering whether to order an injunction in proceedings under this section, a court shall have primary regard to whether such an order is necessary for the protection of what the court considers are the victim's legitimate interests.'.

The Chairman of Ways and Means (Mr. Michael Morris)

With this, it will be convenient to discuss the following amendments: No. 29, in page 2, line 8, at end insert— '(2A) Civil proceedings which include a claim under this section for an injunction shall not be referred to arbitration (whether under section 64 of the County Courts Act 1984, or otherwise) without the consent of all the parties to the action.'. No. 4, in page 2, leave out lines 9 to 24.

No. 25, in clause 8, page 4, line 36, at end insert— '(5B) In considering whether to order an interdict or interim interdict in proceedings under this section, a court shall have primary regard to whether such an order is necessary for the protection of what the court considers are the pursuer's legitimate interests'.

Ms Anderson

Amendment No. 14 would make the test for whether to issue an injunction under civil proceedings as favourable as realistically possible to the victim. It would make it more likely that county court judges would issue civil injunctions in strong prima facie cases of harassment. The Bill seeks to provide a remedy against behaviour that would often otherwise be considered lawful—for example, using the postal system, the public highway, or the telephone would be rendered a civil or criminal offence under the Bill by the effect on the victim. [Interruption.] At present, when deciding whether to issue injunctions, the courts are naturally inclined to attach too much weight to potential interference with a harasser's civil liberties. [Interruption.]

The Chairman

Order. I apologise for interrupting the hon. Lady. I ask those hon. Members who wish to take part in the Committee to listen to the proceedings, and those hon. Members who wish to talk about other matters to do so outside the Chamber.

Ms Anderson

The amendment would guide a court to consider primarily the victim's point of view during its deliberations. We believe that that is particularly appropriate under this legislation, because a typical injunction would involve only a small interference with the harasser's civil liberties but would serve to set a victim's mind at rest as well as protect the victim from potential future harassment.

The amendment would mean that, for example, when a person goes to court seeking an injunction and the court thinks that, on the balance of probability, the case is pretty 50:50 as to whether an order should be granted, the court should find in favour of the alleged victim and grant the injunction. The amendment's test of considering a victim's legitimate interest was approved by the Court of Appeal, which included the Master of the Rolls, in the judgment handed down in the Burris v. Azadani stalking case in July 1995. If the amendment were passed, we believe that the judgment in that case would provide excellent guidance for judges hearing similar applications for injunctions under the Act.

Mr. A. J. Beith (Berwick-upon-Tweed)

On a point of order, Mr. Morris. I seek your help. In view of the way in which the Bill is being proceeded with, there may not be an interval between the Committee and Report stages. I am slightly concerned that, following their recent defeat, the Government might decide to introduce an amendment on Report to reverse our decision this evening. Can you afford some facility to Ministers, who appear to be consulting busily with each other and with civil servants, so that they may give notice to the Committee if they intend to move on Report an amendment—which will probably have to be a manuscript amendment—that will affect our decision?

The Chairman

As far as I am concerned, I am dealing with the Committee stage at the moment. We have a little way to go yet.

Mr. Bennett

Further to that point of order, Mr. Morris. I seek your assistance. It is difficult to table amendments on Report when we do not have a copy of the amended Bill. The order of the Bill will change, because Government and Opposition amendments have been carried. How do we table amendments on Report? Do we make them to the Bill before us or to the Bill as amended? I am sure that you appreciate that it is rare for amendments to be carried in Committee on the Floor of the House. We need some certainty, as the debate could end fairly suddenly and we would be on Report. We need to know how to proceed.

The Chairman

Committee stages on the Floor of the House are often interesting. As far as the Chair is concerned, when the time comes, the order will be intelligible to the House.

Mr. Bennett

My amendment No. 4 is in this group of amendments. It is difficult to bring the Committee back to considering the amendments, as it is fairly unprecedented for the Government to be defeated in this manner. The sooner a Minister comes to the Dispatch Box to tell us how we shall proceed, the better.

I turn to the construction of clause 3, which begins with a civil remedy and builds a criminal offence on to that civil remedy. It is fairly unusual in this country for legislation to muddle criminal and civil court procedures, and I think that there are good reasons for keeping the two separate. The civil courts must balance the differing and conflicting interests of the two parties to the case. They have to decide between the two parties on the question of fairness. That is often extremely difficult, because the difference between the measure of proof on one side and the other may be fairly slim. The alternative approach of the criminal courts is that someone must be found guilty beyond all reasonable doubt.

I am worried about the fact that the issue will first be dealt with by civil proceedings, and if someone is in breach of those proceedings, instead of ensuring that the matter is taken up by the courts as a contempt of court, we are creating a criminal offence. If we make a breach of an action in a civil court a criminal offence, we must make it clear that the same tests should be applied to the civil proceedings as would be applied in the criminal court. The standard of proof in the civil court should not be weaker than that applied in the criminal court.

I suggest that the Government think seriously about the way in which subsections (3), (4), (5) and (6) of clause 3 fit in with the civil remedy. I shall listen with interest to the Minister.

Mrs. Maddock

The amendment would ensure that civil proceedings on a claim for an injunction under the clause would not be referred to arbitration without the consent of all the parties. The purpose of the amendment is to ensure that people can afford to deal with the situation in which they find themselves.

Most civil proceedings take place in the county court. A system of arbitration without lawyers' fees was created 20 years ago. As we all know, that system is the small claims court, and its original jurisdiction was claims of £100. That was subsequently increased to £500 and then to £1,000, and recently to £3,000. Claims under that limit, with some exceptions, are compulsorily referred to arbitration.

Until recently, it had been thought that the rules on exceptions meant that claims for injunctions would not be referred, but a court decision has now ruled otherwise. That is already causing problems in disrepair cases. A minor, but inadequate, alleviation to the rules has been made, so that it is a little easier for a case to come back from arbitration, and for a fixed sum of £270 for legal costs to be allowed in an injunction. That is well below the costs of preparing papers and appearing at a hearing—and, possibly, at a return date.

That has had a knock-on effect on legal aid. It may be that the lack of costs recovery in such a case would not prevent legal aid. The purpose of the amendment is to ensure that practical access to the courts remains available, and I hope that the Government will look favourably on it.

Mr. Robert G. Hughes (Harrow, West)

One of the problems of debating amendments in this atmosphere is that we end up with legislation with holes in it. That does not seem to matter to Opposition parties. The amendment that has just been passed undoubtedly weakens the Bill and seeks to drive a coach and horses through it.

The Chairman

Order. We have already discussed the previous amendment—I do not think that the hon. Member was present at the time. We are now on amendment No. 14, which he should be addressing.

Mr. Hughes

You are quite right, Sir Michael.

The Chairman

No, just Chairman or Mr. Morris.

Mr. Alan Duncan (Rutland and Melton)

For 10 more days.

Mr. Hughes

That is disgraceful. You should call my hon. Friend to order, Mr. Morris. I was obviously dazzled by your bow tie.

I was making a point in parenthesis, and alluding to the fact that the Opposition are trying to soften the Bill. Here they go again—this is a good example of that. The hon. Member for Blackburn (Mr. Straw) makes long, tough speeches about how Labour will be tough on law and order and will crack down on this and that. He says that, if only the Government would do something, we could get rid of this crime. Then we come to the Committee stage of the Bill, and what happens? The Opposition are concerned not about the victims of these crimes but about what they regard as civil rights. By that, they mean the civil rights of the people who are perpetrating these crimes. That runs through the four amendments that are grouped.

Mr. Michael Fabricant (Mid-Staffordshire)

Does my hon. Friend agree that at least one charge that cannot be made against the Labour party is that of inconsistency? Have not Labour Members been consistent in opposing all measures in which we have tried to crack down on crime, and, indeed, on terrorism? They either vote against such measures—

The Chairman

Order. The Bill has absolutely nothing to do with terrorism.

9.45 pm
Mr. Hughes

That was indeed a disgraceful intervention, but my hon. Friend is right. Bills that are currently being delayed in Committee—I shall not list them—could be rushed through the House if we could take the Labour party at its word.

Amendment No. 4 proposes that we leave out a whole lump of the Bill. Why are those exclusions in the Bill in the first place? I think that it comes down to something that we see time and again. In this place, it is easy to be critical of judges and magistrates and the arguments advanced by lawyers, and to say, "Surely they must have understood what we were trying to do; surely they understand what sort of criminals we are trying to catch. Why have they interpreted the law in that way?"

We all know that it is sometimes difficult to understand the exact intent of a Bill. That does not imply that Ministers do not mean to introduce clauses whose intent is clear, or that the lawyers—the parliamentary draftsmen—do not sweat blood to try to ensure that clauses are comprehensible and will have the desired effect. In the lines that the Labour party wants to leave out, exclusions have been made with the aim of clarifying the legislation, so that matters will be clear when a case comes to court—so that we know why and how people will be convicted, and there will be no let-out in the small print of the Bill.

The hon. Member for Denton and Reddish (Mr. Bennett) wants to leave out those lines, and, for all I know, he is supported by Opposition Front Benchers. If he is not, Opposition Front Benchers will no doubt explain why. The hon. Gentleman seeks to make a muddle of what is currently a very clear Bill.

Amendment No. 25 would insert in clause 8, at line 36, the words: In considering whether to order an interdict or interim interdict in proceedings under this section, a court shall have primary regard to whether such an order is necessary for the protection of what the court considers are the pursuer's legitimate interests". We all see what those who tabled the amendment are trying to protect. We all know that people who could come into that category might well have a legitimate interest, although some of us would find it rather hard to believe that certain journalists have a legitimate interest, given the pursuing that they do.

Because of the form in which those who tabled the amendment are seeking to insert it in the Bill, however, it would have a wrecking effect—although, in procedural terms, it is not a wrecking amendment. I hope that the Committee will resist it, and that the Labour party will not seek to press it. Labour Members found themselves in a numerical majority earlier tonight, and no doubt they are now seeking to make hay with that; but seeking to add amendments such as this to the Bill, and to delete important parts of it, is highly irresponsible.

Mr. Nicholas Winterton (Macclesfield)

I have been following my hon. Friend's interesting argument. Does he not accept that the Bill has widespread support, not only in the House but outside, and that hon. Members on both sides of the Chamber—indeed, members of all parties—seek to enact it as early as possible, establishing clear, firm law? Why does he think that the amendments were tabled? They certainly do not add to the strength or reason of the Bill.

Mr. Hughes

Characteristically, my hon. Friend makes his points clearly. He is a clear-spoken man. He knows what he wants, sets out to achieve those things and is much admired in the House of Commons for that.

Mr. Duncan

On a point of order, Mr. Morris. I am confused by the drafting of the amendments, which is self-contradictory. Amendment No. 14 talks about the protection of what the court considers are the victim's legitimate interests. Amendment No. 25 talks about the protection of what the court considers are the pursuer's legitimate interests". I fully understand that that may refer to someone pursuing something in a court of law, but it is highly ambiguous in the context of someone referring to stalking, as it is called, because the pursuer may be seen in the court as a person who is persistently harassing someone. Are we not therefore deliberately and wilfully drawing up ambiguous legislation that may be misinterpreted in a court of law?

The Chairman

In relation to my selection, the guiding factor is whether the amendments are sufficiently cognate to be discussed together, and they are.

Mr. Straw

On a point of order, Mr. Morris. I wish to raise an important point of order for the whole Committee.

As you know, a few minutes ago, the Government were defeated on amendment No. 13, the effect of which is to require county courts to be able to order, where they so wish, counselling with a view to requiring the offenders to confront their offending behaviour. The aim is for the provision to be piloted by courts before coming fully into force throughout Britain. It is unusual, first, for the Government to be defeated by seven votes, as they have been, and, secondly, for progress without agreement to be made so swiftly on a Bill.

As we know, the Report stage will take place tomorrow. In view of that, Mr. Morris, do you agree that, before the 10 o'clock motion, we need a statement from Ministers explaining what their provisional attitude is to the amendment—after all, they have had many days to consider the amendment since it was tabled—and what their intentions are tomorrow when they come before the House? Do they intend to accept the amendment which, properly drafted, can be incorporated into the Bill or to try to remove it?

The Chairman

This is not a matter for the occupant of the Chair, but those on the Treasury Bench will have heard the hon. Gentleman and will seek to respond as they believe appropriate.

Mr. Straw

Further to that point of order, Mr. Morris. The Minister of State has now come into the Chamber. He is in charge of the Committee proceedings on the Bill. That part of the proceedings is due to finish at 10 o'clock. May we hear from him whether he intends to make a statement tonight, bearing it in mind that, for the convenience of the House, amendments for the Report stage will need to be tabled tonight or, at the latest, tomorrow morning? May I have your clarification on that as well?

The Chairman

Hon. Members will have heard my ruling, and it remains unchanged.

Mr. Bennett

On a point of order, Mr. Morris.

The Chairman

Is this another point of order?

Mr. Bennett

Yes, it is. It is on the proceedings of the House.

I understand that amendments for Report stage cannot be tabled until the Committee has reported. That means, therefore, that Members have to have, in manuscript form, the amendments that they would like to table, to hand in as soon as you move from one Chair to another. At that point, it is necessary for the House to have some idea of what is going to happen. I should have thought that it would be helpful, in making the selection, for the occupant of the Chair to have some idea of what is going to happen. It would appear to be difficult for the occupant of the Chair, in moving from one Chair to the other to start the Report stage, to make the selection, as it were, on the hoof. Would you give us some guidance on how we can make sensible progress on this issue?

The Chairman

I am grateful to the hon. Gentleman for showing such concern for the Chair. I confirm that what he said on procedure is entirely correct, but I learned long ago to cross bridges when they are in front of me, not in anticipation of them.

Sir Ivan Lawrence

On a point of order, Mr. Morris. To those of us sitting here, it rather looks as though the Opposition do not want to carry on with the Bill. I do not know whether they are inviting you to do something to stop the proceedings, but if they are, the country ought to know that the Opposition are opposing an extremely important Bill.

The Chairman

I wish to make it absolutely clear that the Chair is here to serve the House until such hour as the House chooses to cease its debate.

Several hon. Members


The Chairman

Order all round. I have given some helpful rulings, I think, and fair points of order have been raised. I would rather get on with the Bill, but if there are new dimensions to discuss, I will accept further points of order. They had better be new ones.

Mr. Fabricant

On a point of order, Mr. Morris. I have scanned the Bill and I can see no definition of the word "pursuer". Could you enlighten the House whether pursuer—

The Chairman

Order. That is nothing to do with the Chair.

Mr. Straw

I crave your indulgence, Mr. Morris, on one more occasion. Further to that point of order, and in response to the point raised by the hon. and learned Member for Burton (Sir I. Lawrence), may I make it clear that we have agreed, and we stick by the agreement, to co-operate with the Government in getting the Bill through? However, it is also for the Government to co-operate with the House in ensuring that the Bill gets through. The Committee has expressed its will this evening by 179 votes to 172 in respect of amendment No. 13. It is incumbent on Ministers on the Treasury Bench to facilitate progress on the Bill tomorrow.

Mr. Maclean

I have heard all the points of order. The Government will ensure that the Bill is dealt with as expeditiously as possible on the Floor of the House, but I will not be bounced by the hon. Member for Blackburn (Mr. Straw) into making a pronouncement from the Dispatch Box now on the result of the vote that we just heard. I assure hon. Members that we shall make the Government's view plain to the House at the earliest opportunity, in accordance with the rules of the House and our customs and conventions, to give hon. Members the maximum time within our rules to consider the announcement that we shall make in due course.

The Chairman

Mr. Robert G. Hughes had the floor.

Mr. Hughes

Thank you, Mr. Morris. My hon. Friend the Member for Macclesfield (Mr. Winterton), to whose intervention I was responding, had his points answered by the hon. Member for Blackburn. It is clear that this group of amendments, like others, is designed to delay the Bill or to weaken it. The message must go out clearly from the Committee that the Labour party, aided and abetted by the Liberals, wants to weaken the Bill and delay it for as long as possible. That is what they voted for tonight. They cannot escape from their actions.

Mr. George Howarth

On a point of order, Mr. Morris. Is it in order for an hon. Member, who was not even present during the events that he is describing, to accuse the Opposition of trying to delay the Bill? My hon. Friend the Member for Blackburn (Mr. Straw) has made it clear that the Opposition remain willing to co-operate with the Government, as they have throughout, to bring the Bill on to the statute book. The Government's incompetence, not the Opposition, has got them into their present position.

Mr. Beith

On a point of order, Mr. Morris. The views expressed from the Government Benches suggest that we might not continue to make progress on the Bill tonight. Will you confirm that, in order to do so, it will be necessary for the Government to move the 10 o'clock motion in two minutes? Will you be careful to ensure that, if a Whip moves the 10 o'clock motion, you notice him? Otherwise, we will not be able to make further progress.

The Chairman

I assure the right hon. Gentleman that I will try to do my duty to the best of my ability. Not much gets by.

Mr. Hughes

Given the dual evidence of the amendments on the amendment paper and the outrageous protestations of Opposition Members, it is clear that they want to delay and weaken the Bill. I do not want to delay it any further, so I shall sit down.

Sir Ivan Lawrence

Mr. Morris, I left the Chamber for a moment to go to have something to eat. When I returned, I found the place in complete disorder—

The Chairman

Order. The hon. Gentleman clearly had a very good dinner.

Sir Ivan Lawrence

I do, of course, apologise, Mr. Morris. I did not mean that this place—over which you preside—was in disorder, but that the Opposition's entire approach to the Bill was in disorder. My attention has been drawn to a list of amendments, which seems to be absolutely preposterous. On the basis that they are trying to improve the Bill, why on earth have the Opposition tabled an amendment to consider the victim's legitimate interests—

The Chairman


It being Ten o'clock, THE CHAIRMAN left the Chair to report progress and ask leave to sit again.

Committee report progress; to sit again tomorrow.

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