§ The Second Deputy Chairman of Ways and Means (Dame Janet Fookes)
With this, it will be convenient to discuss also the following amendments: No. 22, in page 1, line 10, leave out subsection (2).
821 No. 12, in page 1, line 13, at end insert—'(2A) Without prejudice to the generality of subsection 2 above, a person pursues a course of conduct amounting to harassment if he:No. 5, in clause 4, clause 4, page 2, line 27, leave out 'or ought to know'.
so as to be reasonably likely to cause that other person to feel harassed, alarmed, distressed or to fear for his safety or for that of one or more third persons to whom he has a duty of protection or with whom he is associated.'.
- (a) follows, loiters near, watches or approaches another person;
- (b) telephones (which for the avoidance of doubt shall include telephoning a person but remaining silent during the call), contacts by other electronic means, or otherwise contacts another person;
- (c) loiters near, watches, approaches or enters a place where another person lives works or repeatedly visits;
- (d) interferes with property which does not belong to him and is in the possession of another person;
- (e) leaves offensive, unwarranted or unsolicited material at a place where another person lives, works or regularly visits; or
- (f) gives offensive, unwarranted or unsolicited material to another person
No. 23, in clause 4, page 2, line 29, leave out subsection (2).
No. 18, in clause 4, page 2, line 33, at end insert—`(2A) Without prejudice to the generality of subsection (2) above, a person pursues a course of conduct for the purposes of this section when he persistently behaves in any of the ways mentioned in section 1 (2) or (2A) above'.No. 9, in clause 7, clause 7, page 3, leave out lines 39 and 40.
No. 10, in clause 7, page 3, line 41, leave out 'two' and insert 'three'.
§ Mr. Bennett
This brings us straight back to one of the central issues that featured on Second Reading—the question whether the Government's approach is the best, or whether something clearer and more specific is needed.
Clause 1(1)(b) states that a person must not pursue a course of conduct "which he knows" amounts to harassment. There is clearly no problem with that except when someone wishes to prosecute, when it will be extremely difficult to prove intent. The Government therefore added the catch-all "or ought to know"—which poses the difficult question of what someone "ought to know". That is made conditional on subsection (2), which deals with the word "harassment", and on subsection (3), which deals with the question of reversing proof and proving that what was done was reasonable. That was the basis of the castigation that we heard from the hon. and learned Member for Burton (Mr. Lawrence).
I do not think that the Government's approach is the best. I think that it would be far better for us to try to provide certainty in legislation, rather than leaving it to be provided in case law resulting from a series of cases based on what constitutes harassment, what is reasonable and what someone ought to know.
Obviously, there are alternative approaches. Amendment No. 12 puts back the list that was in the Bill of my hon. Friend the Member for Rossendale and Darwen (Ms Anderson). If the Government really want to deal with the problem, they should consider a compromise between their approach and that of my hon. Friend, 822 making it easy for a person to understand that, if he pursues a certain course of conduct, he can be accused of harassment, that he will have committed an offence and that he can be punished for it.
The Home Secretary has argued that, if a list is included, the court must take notice of it, and will take less notice of any catch-all at the end of the list. If he really feels that he cannot put such a list in the Bill, he should look to the various devices that Parliament comes up with—codes of practice, regulations and guidance—so that, if he insists on a catch-all phrase, there is a simple way for a police officer to explain to someone that, if he continues to behave in such a way, he will be involved in harassment, and a lawyer giving advice will have a document allowing him to say, "This looks as though it would fall foul of the law." Therefore, in practice, the Government have not really solved the problems by going for a wide definition using the phrases "ought to know", "harassment" and "reasonable". That will be a marvellous area for lawyers to work over for many years. Instead of solving the problems of someone being stalked, it may mean that persons face much more upset and worry because their court case will become long running.
I therefore hope that, in responding to this group of amendments, the Government will recognise that there is a problem with the clause and will clarify it.
§ 8 pm
§ Mr. Maclean
Amendment No. 1 would fundamentally damage the Bill's effectiveness. The great difficulty in using existing law to prevent harassing conduct is that the stalker will not always intend to cause harassment. That is why we ensured in clause 1 that a person is prohibited from pursuing a course of conduct, not only where he knows that it causes harassment, but where he ought to know that harassment would be caused. A person ought to know that that course of conduct would amount to harassment in circumstances where a reasonable person, in possession of the same information, would think that the course of conduct amounted to harassment of the other person.
The amendment serves to ensure merely that the offence of causing harassment will apply only where intent could be proved. That would go no further than existing laws, which both victims' organisations and the police agree are inadequate to deal with stalkers who claim that they do not intend to cause harassment to their victim. Victims of stalking need protection against such stalkers. Clause 1 provides it. We cannot accept any amendment that weakens that position.
The hon. Member for Denton and Reddish (Mr. Bennett) commented that the Home Secretary had said that the list system would mean that the courts would take less notice of the catch-all at the end of the list. That is not exactly the correct interpretation. It is not that the courts would take less notice of the so-called catch-all at the end of the list, but that, under the courts' rules of construction and interpretation, they would interpret that catch-all as being in the same generic list as the actual list. It would cease, therefore, to be a general catch-all and be regarded as a narrowly defined catch-all of exactly the activities specified in the list.
823 I cannot accept the hon. Gentleman's amendment, which would fundamentally weaken the Bill, and I hope that he will see fit to withdraw it.
§ Mr. Bennett
On a point of order, Dame Janet. From the list that I have, I thought that a whole series of other amendments were grouped with amendment No. 1. Is that correct?
The Second Deputy Chairman
Yes it is. Indeed the hon. Gentleman will recall that, when I first called amendment No. 1 out, I mentioned that it was grouped with others. It is not a matter for the occupant of the Chair to decide how much a Member or a Minister shall say about the other amendments in the group.
§ Mr. Bennett
Further to that point of order, Dame Janet. The point was that I had thought that my hon. Friends on the Front Bench might have wanted to speak to their amendments that are grouped with amendment No. 1. I was not sure that they were aware that they were.
§ Ms Janet Anderson
We do not intend to press this to a vote, but we would like to explore the thinking behind the Bill's definition and how the Government think that it might work in practice.
Given some of the comments by Conservative Members about our amendments, may I specifically refer them to a letter from the Association of County Councils, which says that itsworry about the Bill as drafted is that it is drawn in very wide terms. For example, 'harassment' is not specifically defined, and it appears that the Bill covers harassment whether in the home, the workplace, on the streets, etc. I am not saying that this is wrong, merely that it does not seem clear.I have already mentioned that the Guild of British Newspaper Editors is concerned about the effect on the media.
May I also reiterate the views of the Suzy Lamplugh Trust, which, as we all know, has long taken an interest in this issue. A letter from Anne Strahan, the trust's projects and research manager, apologises to me for her comments to the Daily Mail.
§ Ms Anderson
Yes, but, believe me, it is worth repeating, if the Minister will just be patient.
The letter states:At the time of speaking to the Daily Mail yesterday, I misunderstood the intention of the amendments within the Bill, assuming these amendments to override the more general nature of the Bill. As an extra provision to the Bill, these amendments would in fact strengthen rather than weaken the Bill.The Trust is very pleased that Labour are still working to improve the Bill".I hope therefore that Minister will understand that that is the spirit in which I have tabled the amendments.
The amendments seek to add to the definitions laid out for the lower offence of harassment and the higher offence of causing fear of violence. I know that the Home 824 Secretary recognises the need to get the definition right when legislating to combat the menace of stalking. On 10 May, in an interview on "The World at One", he said:Stalking is a particularly difficult thing to define, which is why we are taking some care to make sure that we get it right. As soon as we have a workable definition of the crime we will legislate";so, as I say, we would like to explore with the Minister whether the Bill's definition is workable, which, presumably, he considers it to be. That is why we have tabled the amendments.
Basically, the Government definitions, as laid out in clause 1(2) and clause 4(2), say that, if a court reasonably believes that someone's actions constitute harassment or are causing fear of violence, then they are. As the hon. and learned Member for Burton (Sir I. Lawrence) said, it is not inconceivable—I know that this might be welcomed by Conservative Members and indeed by some Labour Members—that that could generate much additional work for lawyers.
As the Bill stands, theoretically, people engaging in innocent activities, of which a judge happens to disapprove, could be caught. They may include shouting at a referee from the terraces at a football match on more than one occasion. I hope that the Minister will reassure us about that.
It is some two and a half years since the hon. Member for Sutton and Cheam (Lady Olga Maitland) first moved an amendment to the Criminal Justice and Public Order Act 1994 to seek to establish a criminal offence of stalking. As, I am sure, the Minister knows, that amendment had been drafted for her by the Police Federation, which had long called for such a criminal offence.
The definition that we are seeking to add to the Government's Bill is not exhaustive. It would strengthen the Bill. I admit I am not a lawyer but, whatever Conservative Members say, they have not yet answered whether they think that our Bill—essentially we are seeking to put the majority of my definition into the Government's Bill—is too wide or too narrow. Perhaps the Minister will deal with that again when he responds.
The purpose of amendments Nos. 12 and 18 is to give guidance to the courts. If judges are to apply this Bill, they will need clearer terms of reference than the Government have provided. Otherwise, we estimate a possible rash of costly and time-consuming appeals, which is presumably why the hon. and learned Member for Burton said that it would provide work for lawyers.
Other countries, such as the United States, Canada and Australia, have all introduced laws to combat stalking and we know that the Government have been considering those laws closely in their efforts to find the workable definition that the Home Secretary was after. We also considered the experience of those countries when drawing up our stalking Bill. The relevant law in those countries often gives greater guidance to the courts as to what might constitute stalking. Activities such as pursuing or following a person, unwarranted surveillance, lying in wait for someone, non-consensual communication and trespass all feature in the definitions used in those countries.
The Minister said in written answers to me that the Government did not feel the need to have such a list system. One of their reasons was that many of those activities were already offences in Britain. I should be 825 grateful if the Minister would go through the activities that are specified in other countries' legislation and tell us precisely where they are offences in Britain.
We based amendments Nos. 12 and 18 on the definition employed in Queensland, Australia, and elements of the best practice of the US and Canada. It is virtually the same as the definition in the Stalking Bill and lays out the most common examples of stalking activity.
It is not our intention to detract in any way from the proposals in the Government's Bill. We merely seek to give greater guidance to the courts when they implement the Bill's provisions.
§ Mr. Maclean
It may not be the Opposition's intention to detract in any way from the Bill's provisions, but the unintended effect of their amendment is that it diminishes the protections in the Bill. It is not just a matter of my opinion. It is a matter of the technicalities of construction of statute law. The danger with the list system is that the court will have to construe the provision according to the items on the list. If a phrase such as "and any other activity" is inserted, the court, under the ejusdem generis rule, must construe those other activities narrowly, according to the general characteristics that have already been given in the long list that the hon. Lady provided.
There is another practical difficulty. I do not know how anyone present in the Chamber could face a victim in a couple of years. After the Bill has had its Third Reading and comes back from another place, we will all be making speeches and saying that we have now given victims protection and that never again will poor, innocent victims be subject to stalkers. In a couple of years we will find that some weirdo is stalking women and abusing some activity that has not been caught in the list. That is the danger.
The hon. Lady said that her list was not exhaustive. Of course it is not exhaustive, nor is it complete. I would be more relaxed about a list system if I thought that it could be complete. Unfortunately, we are dealing with people who have some very weird ideas, and there are potentially hundreds of such people, or thousands if the Bill does not deter them. They can get up to pretty weird activities. It is impossible to define all the stalking activities that people could get up to. That is why it is best to stick to the harassment definition and concentrate on the effect of the weird activity on the victim.
§ Mrs. Maria Fyfe (Glasgow, Maryhill)
The opening phrase of amendment No. 2 states:Without prejudice to the generality of subsection 2".Surely that covers the Minister's objection. The Labour amendment simply expands on that point.
§ Mr. Maclean
For the umpteenth time: no, it does not. Adding a catch-all at the end does not achieve what it seems to achieve. Judges must interpret catch-ails at the end of lists in statute according to certain rules that the courts have developed for the way in which they go about interpretation. The ejusdem generis rule assumes that, if Parliament added a catch-all, Parliament intended it to be interpreted according to the other characteristics in the list. It is not a wide-ranging catch-all. The best catch-all is to stick to the word "harassment".
That is not just my opinion; it is the opinion that we got after consultation. The Government did not pluck out of thin air the idea of plain, bald harassment, without 826 considering any other ideas or suggestions. That is the suggestion that we put in our consultation paper. Following that wide-ranging consultation, there was widespread support for the proposal to use the concept of harassment and to concentrate on the effect of the activity on the victim, making that the criminal offence, rather than trying to define a list of activities that Parliament thought bad at one particular time, knowing full well that stalkers and those who harass victims are, by their very nature, dashed clever at finding other weird activities.
I shall quote what my right hon. and learned Friend the Home Secretary said when he quoted a victim at the Suzy Lamplugh Trust conference. Those words should be burned on our brains before we come to a view on this part of the Bill. That victim—not a politician or a lawyer—said:If you have a list of activities which you ban, my stalker will simply sit down and work out another activity with which to torment me.I do not want to stand in the House in two years or write letters to my constituents or those of other hon. Members, explaining how the law was inadequate because we went for a list and some weirdo got round the list and made life hell for another victim. We do not have to do that, because the proposals in the Bill represent the best way of tackling the problem.
Let us not worry about what any one of a thousand activities might be. Let us worry about the effect on the victim. If the effect is to cause harassment to the victim, we can trigger the offence and the provisions in the Bill for civil remedy and criminal defences.
I could say more on the clause. I have not discussed some of the other amendments, which I do not think have been moved. I give way to the hon. Member for Denton and Reddish (Mr. Bennett), then I shall conclude.
§ Mr. Bennett
Does the Minister realise that, as a result of fairly recent judgments, what Ministers say in the House can be taken into account by the courts? Will he go through the list in amendment No. 12 and tell us which activities he would expect not to be covered, so that it is on the record in the House that he thinks that proposed subsections (a) to (f) are covered by his definition?
§ Mr. Maclean
The hon. Gentleman misunderstands the ruling in Pepper v. Hart, which suggested that the comments of Ministers may be taken into account if there is ambiguity. However, when a Bill states that something is black, it is no good a Minister saying that it is white. The court will still interpret the word as "black". We cannot use our words, however nimbly we put them across, to change the meaning of the Bill, if the meaning is crystal clear; nor can I make any comment at the Dispatch Box that would influence the way in which judges use the long-established rules of interpretation to interpret a list.
The hon. Gentleman is trying to make bricks without straw. I understand his reasons. He has tabled all the Liberty amendments. It may be legitimate for him to take that position, but his amendments would pull the teeth of the Bill. There would be nothing left to give protection to victims. I do not go so far as to say that the amendment tabled by the official Opposition would fundamentally 827 destroy the Bill, as the hon. Gentleman's amendments would—there would be no Bill left. The Opposition amendment would narrow the scope of this part of the Bill to a narrowly defined list.
Stalkers do not stick to the activities on a list. Stalkers and other weirdos who pursue women, cause racial harassment and annoy their neighbours have a wide range of activity which it is impossible to define. The result of our consultation exercise suggested overwhelmingly that the approach in the Bill is the best one. Therefore, I am not persuaded to fly in the face of the consultation exercise, the expert advice that we received and the views of victims of stalking, especially a victim who told us clearly:If you have a list of activities which you ban, my stalker will simply sit down and work out another activity with which to torment me.For those reasons, and that one in particular, I cannot accept the amendment.
§ Mrs. Fyfe
I have lost of count of the Government Bills that I have seen which began with the preamble that,without prejudice to the generalityof a particular section, the following detailed provisions would apply. After his remarks to the Committee, will the Minister and his colleagues revise all the legislation that has been passed in the past umpteen years to remove such particulars? That is the logic of what he has said.
If the Minster's objective is to avoid rendering judges obtuse or stupid in their interpretation of the legislation, I suggest that amendment No. 12 would help. A judge would not be able to say that following someone, loitering near them, telephoning them and making flattering remarks, or sending them presents, was not harassment. Even the thickest of those on judicial benches would regard such behaviour as harassment.
§ Mr. Maclean
Looking down the list, I was immediately struck by its deficiency. For example—off the top of my head—it omits such activities as driving past a victim's house. That is not contained in the amendment, although loitering and watching are. What about the person who continually drives past someone's house, or harassment by direct speech, letters to the press, acts committed against a third party—such as the victim's spouse or children—or acts committed by a third party? Those examples are not covered. I have already provided half a dozen examples, and there may be others.
I do not consider myself to be a weirdo—although others may disagree—so I have not thought of all the weird permutations of behaviour that could be used to get round a list. However, if hon. Members have already found deficiencies in the list, within hours of reading the amendments, we can bet our bottom dollar that stalkers out there somewhere would change and refine their activities to get round it.
We should not be in any doubt that some activities, such as driving past a victim's house, is not caught by the amendment. Other activities may be caught, or they may not be. We should bear in mind that deterrence will be one of the best effects of the legislation. Police officers have said that their current difficulty is that they cannot tell a stalker, "Stop it, sonny, because you're breaking the 828 law." Stalkers know that certain actions do not necessarily break the law. The Bill's provisions will enable police to advise many people that, if they persist with their conduct, they will be breaking the law.
"Harassment" catches a wide range of conduct and potentially allows such behaviour to be considered as breaking the law. A narrow list will enable police to tick off, reprimand and deter only those whose activities exactly match those on the list. It is not good enough to have grey areas or to say, "Driving past a victim's house may or may not be caught." A list system creates such ambiguity. Some conduct will be excluded directly, but other conduct will have an ambiguous status. That is my answer to the hon. Member for Glasgow, Maryhill (Mrs. Fyfe).
§ Mr. Bennett
I am disappointed by the Minister's response, because I thought that the purpose of the Bill's Committee stage was to try to achieve constructive results. I understand the difficulty that an offence will be extremely difficult to prove if, as my amendments propose, we say "knowingly" and remove "ought to know" because of the issue of intent. Equally, it is a pretty good principle in law that, so far as possible, we should make it clear to people that they are in danger of breaking the law. Therefore, we should be trying to achieve clarity. I understand that difficulty, and I appreciate the way in which the Minister has made the point that, as soon as we make a list, there will be a problem with people who deliberately try to get round it. I accept that.
When I moved my amendment, I suggested to the Minister the development of a code of practice or regulations that would provide the necessary interpretation. I can also understand the difficulties with that approach, but I should have thought that he could at least provide the Committee with a firm list of such behaviour. As he said, a judge would not have to take specific notice of a list, but such a list would at least clearly express the Government's views.
In the course of proceedings on the Bill, I hope that Ministers will make it clear that they accept the list in amendment No. 12. If the Minister or his advisers can think of other examples of such behaviour, they should be included—so that people are at least provided with some clarification of the law on which to base their conduct.
I understand the Minister's argument that a police officer should be able to say, "Because of this general rule on harassment, that behaviour is covered." But, as the Minister has already pointed out, some of those people are extremely awkward, persistent and cussed, and they will not be deterred merely because a police officer says that a course of conduct is covered. They will be very tempted to pursue the matter through the courts. Such uncertainty will continue until there is a series of court judgments clarifying what is meant in the clause by "harassment" and what is meant by "reasonable".
I appeal to the Minister to look again for some way in which to provide general guidance stating that the conduct listed in amendment No. 12 and the conduct that he mentioned are clearly examples of harassment. The guidance should make it clear that, if one persists with such activities, they will be caught by the clause, and it should not close the door on including those activities. I should have thought that the Minister could come up with guidance that is sufficiently inventive to meet the 829 need of clarifying the legislation, so that people are clear that certain activities will be treated as harassment and that others may also be so treated.
I do not want to press my amendment to a vote, but I should have thought that—tomorrow, during the Bill's Report stage—many Opposition Members will want to return to the subject. Therefore, I ask the Minister to think whether guidance can be given, without, as he suggested might happen, narrowing the definition of the offence. On that basis, I beg to ask leave to withdraw amendment No. 1.
Amendment, by leave, withdrawn.
§ Ms Janet Anderson
Dame Janet, may I reply to the speech of my hon. Friend the Member for Denton and Reddish (Mr. Bennett)?
The Second Deputy Chairman
Unfortunately, it is not possible to have further debate on that group of amendments as amendment No. 1 has been withdrawn. If the hon. Lady wishes to move amendment No. 12 formally, she may do so.
§ Mrs. Maddock
I beg to move amendment No. 30, in page 1, line 15, leave out from 'shows' to 'under' in line 17 and insert,`that in the particular circumstances the pursuit of the course of conduct was reasonable—(a) for the purpose of preventing and detecting crime, or'.
The Second Deputy Chairman
With this, it will be convenient to discuss the following amendments: No. 31, in page 1, line 19, leave out from 'enactment' to end of line 21.
No. 28, in page 1, line 21, at end insert 'or(d) that it was pursued for the purpose of investigating a tort, suspected civil wrong or other matter, where a bona fide investigation is required in the interests of justice.'.No. 6, in clause 4, clause 4, page 2, line 41, leave out from 'reasonable' to end of line 43.
§ Mrs. Maddock
Before the Minister replies to my speech and points out the flaws in my amendments, I should like to mention again the speed with which we had to draft them. I regret that, because of my speed in doing so, the amendments do not achieve what they were intended to do. They were intended to deal with the issue of "reasonableness", which has already been mentioned in the debate.
In clauses 1 and 4, immunity from prosecution is provided to people if they can demonstrate that they were acting for purposes of preventing or detecting crime—as all hon. Members would think sensible. Obviously, in many circumstances, tailing a suspected criminal is justified, and my intention was not to interfere with that provision. However, the Bill's wording caused me to be concerned about whether it would allow people acting to prevent or detect crime to harass other people to an unacceptable or unreasonable degree. The Bill seems to contain no such qualification.
830 That issue has already been mentioned by the hon. Member for Walsall, South (Mr. George), who spoke about private detectives engaging in such behaviour. Another example which has already been mentioned in the debate is bailiffs, who may find that they are able to harass people on the basis of subsections (a) and (b). I hope that the Minister will reassure us on that matter. He has already briefly spoken about the issue of "reasonableness". The amendments' purpose was to probe that issue and to seek reassurances from the Government that people are not able to claim that they are carrying out some other, legitimate purpose when they are, in fact, harassing other people.
§ Mr. George
I shall speak to amendment No. 28, which is another probing amendment. I should like assurances from the Minister about the position of various people who conduct a range of legitimate investigations—they may be called private investigators, but other, more disparaging expressions, have also been used regularly. Their names do not always appear in the Yellow Pages as private investigators, but they frequently pursue investigations on behalf of the Crown—directly or indirectly—or on behalf of other organisations or individuals. I am not yet convinced—I hope to be convinced by the Minister—that sufficient thought has been given to provide the necessary defences for anyone pursuing a legitimate investigation.
I tabled the amendment to allow the Minister to discuss with his civil servants the point that many private eyes undertake investigations with no criminal connotations. I mentioned earlier a list—I know that putting down a list is not conducive to gaining the Minister's support—of activities that are not directed to criminal investigations. The list includes investigating industrial accidents, matrimonial inquiries, the taking of statements, interviewing for witness statements, tracing missing persons and process serving.
I have looked at a text book on private investigation written by a gentleman named Ackroyd. On page 104 of his book, "The Investigator", he says, on the subject of process serving:To make what is termed a 'good service' it is only necessary to touch some part of the individual's body with the actual document.I wonder whether touching an individual with a document, even though it may be a copy of a document provided by a court, might be considered harassment, resulting in the bailiff, the process server or the investigator being called to the attention of the police.
The list of activities that may not have criminal connotations also includes providing evidence for a local authority on anti-social neighbours, the vetting of potential and existing staff, and debt recovery. I hope to convince the Minister of the necessity of a stronger defence than that provided by the clause. The defence of an action in subsection (3)(a)—that it was pursued for the purpose of preventing or detecting crime"—might appear fine, but the argument of what is reasonable is problematic.
The Minister speaks with some knowledge on the private security industry, although his views may not always correspond to mine. He knows that some people 831 might say that certain activities of the private security industry were reasonable and others might consider the same activities definitely unreasonable. Whether many of the manifold duties of a private investigator were reasonable may have to be tested in court. A judge's definition of what was reasonable might be a matter of considerable controversy. It would be easier—I shall not go into detail on this—for professional private investigators to argue their case if their profession was regulated and they conformed to standards laid down by law. Being a licensed investigator would provide a greater defence for certain activities.
Many, if not the majority, of the activities of private investigators are not related to criminal proceedings. The Bill is imprecise—indeed, confusing. Subsection (3)(c) might exempt investigators whose investigations were proved reasonable, but that is too vague and could lead to some legitimate investigators being subject to civil and perhaps even criminal action.
I do not believe that that was the objective of the Home Office in drawing up the legislation. The consultation paper issued in July said:There is a risk that if the scope of any new legislation to deal with stalking is not carefully defined"—I do not think that it has been—it will criminalise the everyday behaviour of innocent people".I do not want to argue about whether the definition is too wide or too narrow. I shall say only that when I was in the academic profession I often set the same examination question, asking students to consider a statement such as, "Legislation is more the function of the Executive than of the legislature." If I were pitched once again—against my will—into the profession that I willingly left, I might have to revise that statement to, "Legislation is as much the function of the judiciary as of the legislature." The broad definition bestows an enormous responsibility on the courts to do what we are unwilling or unable to do.
I have said that we need clarification on what is reasonable for private investigators. Obviously, investigators want to know whether it would be reasonable to pursue a party suspected of making a fraudulent personal injury insurance claim. They would want to know at the outset whether the suspicion was justified. The only way to establish the truth would be to keep the individual under surveillance.
In a second example, investigators might also justifiably want to know whether it would be considered reasonable to keep surveillance on an individual suspected by his employer of working for a third party or on a freelance basis. The investigator would not know the truth until the observations had been completed.
In a third example, investigators might also want to know whether it would be reasonable to keep observations on an estranged spouse who was claiming maintenance on the premise that she was not cohabiting with a third party or was not in gainful employment. The investigator would not know whether the maintenance claim was justified without establishing whether the estranged spouse was cohabiting or was employed.
A fourth problem is whether it would be considered reasonable to keep observations on a person to be able to serve that individual with some form of legal process such 832 as a High Court writ or an injunction. Occasionally, it would be necessary to stake out a person's residence to effect service of legal documents when the subject was evasive.
Many other examples that occur daily in the lives of investigators have arisen from my consultations. Without the ability to keep people and their homes under surveillance, it will not be possible to establish the truth in a case.
Investigators frequently act in legal aid cases when the Legal Aid Board is seeking the recovery of money from litigants. Unless investigators have exemptions from the Bill, they will be unable to fulfil effectively the assignments given to them by the courts, inevitably inhibiting the ability of the Legal Aid Board to recover outstanding costs.
Virtually all surveillance activities by private investigators are of a covert nature. As long as the surveillance is legitimate, one hopes that the target does not know that it has taken place until it has been concluded and a report appears before them or the person who hired the investigator.
However, that cannot always happen. Sometimes the subject becomes aware of the surveillance. In such cases, the surveillance is discontinued or postponed until the target's fears have been allayed. It is important to clarify how the Bill will affect private investigators conducting legitimate investigations on behalf of their clients.
It is principally the legitimate investigator who has a problem with the measure, not the criminal element in the profession, which will not be deterred by new laws. I am assured that legitimate investigators are anxious to work within the law. However, if the Bill is passed without clarification of clause 1(3)(c) or adequate assurances from the Minister, it will be regarded as confusing and damaging by legitimate investigators who do a good job within the law.
Good, legal investigators, hon. Members and the overwhelming majority of public opinion support the principle of the Bill and applaud any measure that deters stalkers and protects the innocent from harassment. However, in the interests of justice, there must be some provision to protect legitimate investigators conducting bona fide inquiries from prosecution and civil action. I am not trying to destroy the Bill's intention and I hope that I can get assurances. In those circumstances, I would freely withdraw my amendment.
§ Mr. Bennett
My amendment No. 6 is in this group. As the Minister is keen to keep the Bill as general as possible to catch all forms of possible harassment, why cannot he keep the possible defence equally general under clause 4(3)(c)? It seems much better to havethe pursuit of his course of conduct was reasonablethan to qualify it as he has done.
§ Mr. Maclean
Amendments Nos. 30 and 31 are unacceptable. They would prevent any activity that is not carried on reasonably for the prevention or detection of crime or under any enactment. Many activities, such as journalism, doorstep selling and political canvassing, may cause harassment but are legitimate if undertaken reasonably. We proposed in our consultation paper, which was published in the summer, that such activities should 833 be protected, and the response was overwhelming agreement. The Bill recognises that and safeguards those activities by providing a defence for any activities that, in the particular circumstances, were reasonable. The amendments would do away with that safeguard and make illegal all sorts of legitimate activities, which would make the scope of the Bill far too wide. That is why we cannot accept the amendments.
I listened closely to the hon. Member for Walsall, South (Mr. George), and I have considered amendment No. 28 carefully. The civil law relates to disputes between two parties; there is no question of public policy being involved. When investigators are examining a matter of tort, it would be wrong to give either party to a dispute special privileges under the criminal law. The amendment does not wreck the Bill but it is unnecessary. If the action of a party to a dispute is reasonable, it will be covered by the general defence provided in clause 1(3)(c):that in the particular circumstances the pursuit of the course of conduct was reasonable.That would apply to whole categories of people, such as journalists, politicians, doorstep sellers and people who canvass on religious matters. It would certainly cover, in the legitimate course of conduct, the activities of private investigators and security guards. It comes down to whether someone's activity is reasonable.
Furthermore, someone must claim that they have been harassed. Many of the activities of private investigators mentioned by the hon. Member for Walsall, South involved the person under investigation being unaware of the presence of the private investigator. That person could not fear alarm or distress; there is no harassment and no need for a defence. Only if a person under investigation became aware of being followed, or claimed that he was being stalked, and it happened a second time and the person tried to take action, would it be for a court to decide whether the activities of the private investigator were reasonable.
I cannot give precise examples—the hon. Gentleman quoted many—but it would always depend on the facts of the case: how the private investigator went about the activity that is challenged in court. As so many activities could be undertaken and challenged, I cannot give examples of whether one activity was reasonable and another not; it would depend on the actions of the person concerned and the effect that they had on the victim.
Clause 1(3)(c) is adequate for all those involved in legitimate crime prevention activity, such as private investigators or private security personnel; that would also apply to all other people. On Second Reading, we discussed whether it would be legitimate conduct for a Member of Parliament to badger an organisation to get an answer for a constituent. If constituents tried to solve problems, could they badger someone? Of course they could. If someone tried to claim that such a constituent's activity was unreasonable, it would be for a court, if it ever came to it, to decide whether the behaviour involved in an attempt to badger an organisation for an answer—or get something fixed, or goods delivered on time or services provided—was reasonable.
Amendment No. 6 would provide a general defence to the offence of pursuing a course of conduct that causes another to fear violence. The Bill already provides 834 defences to that offence where the conduct of the person was: for the purpose of preventing or detecting crime; under any enactment or rule of law; or reasonable for the protection of himself or another or for the protection of his or another's property. The amendment would extend the defences to any circumstances in which the conduct was reasonable. That cannot be accepted.
The similar general defence of acting reasonably in the case of the lower-level offence of causing harassment has been provided in recognition of activities such as journalism and political proselytising, which may cause harassment but are legitimate and should be protected. That consideration does not apply to the higher-level offence of causing fear of violence. It is clearly not reasonable to put someone in fear of violence through doorstep selling or religious or political proselytising. We should keep that defence for exceptional circumstances, and those circumstances are clearly set out in the Bill. For the reasons that I have given, I hope that hon. Members will withdraw their amendments.
§ Mrs. Maddock
I accept from the way in which the Minister gently rejected my amendments, given the vigour with which he has rejected others, that he understood my points. I listened carefully to his remarks about what constitutes reasonable conduct. I hope that his reassurances are right. I suspect that questions about what is reasonable conduct will be raised again in another place. In view of his comments, and of the time, I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Question proposed, That the clause stand part of the Bill.
§ Mr. Bennett
I have some doubt about the words "A person" at the very beginning of the clause. On Second Reading, the Government were keen to suggest that the Bill covered harassment not only by individuals but by groups. Opposition Members were especially concerned about racial harassment, in which a group of people could be either actively or passively involved. Can the Minister explain how the phrase "A person" covers activities, such as racial harassment or families warring with their neighbours, for which groups are responsible? Should not we perhaps use a phrase such as "a group of persons acting with common intent"?
§ Mr. Maclean
We believe that the wording is adequate to deal with those cases in which individuals may be harassing someone, perhaps for racial motives. It is best to leave the wording "A person", bearing in mind that the majority of the classic stalking problems that we are dealing with involve individuals. Even in neighbour disputes, with families involved, and in racial harassment, it should be possible to identify the one individual, or the various individuals in the group, who are causing the problems.
I do not know of any instances in which courts convict people in groups. Even if half a dozen people are engaged in a robbery, murder or other crime, they must be served with a summons, charged and sentenced individually; and often they get different sentences. In those circumstances, the language in the Bill is adequate to catch the bulk of 835 individual, targeted, classic stalking activity, and should also catch those who may be involved in neighbour disruption or racial harassment.
§ Mr. Bennett
That answer is helpful, but does not fulfil the promise that was made on Second Reading. As I understand it, if a family is causing trouble to the next-door neighbours, it is not sufficient to serve the head of the household with an order; each individual has to be named.
§ Mr. Maclean
I can see no difficulty in that whatever. It would be justice, because if a family generally is causing trouble, one member of that family may not be involved. It would not be acceptable in British law—and certainly not in the European Court of Human Rights—to tarnish or convict a whole family, when individuals in it are innocent of the charge. If one did that, why stop at this law? To take the idea to extremes, why not convict whole families of murder, robbery or drug dealing when one member or a few members of it are involved?
§ Mr. Maclean
My hon. Friend is tempting me into a commitment. If I had the prison places, I might consider it.
Seriously, though, what the hon. Gentleman is suggesting is not necessary; the provisions in the Bill catch the activity to which he refers. If we want to deal with half a dozen people in a family who are causing trouble, we have to get the individuals by name; we have to do that in any case to get any conviction under any rule of law of which I am aware.
§ Question put and agreed to.
§ Clause 1 ordered to stand part of the Bill.