CIVIL REMEDY (Hansard, 18 December 1996)

The First Deputy Chairman
I remind the Committee that with this we are discussing 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'.

§ Sir Ivan Lawrence (Burton)
I thought it right, as a courtesy to you, Sir Geoffrey, and to the Committee, to reappear to continue the speech that I started yesterday evening. I must say, however, that any thoughts that I had on amendments Nos. 14 and 25 have, with the passage of time, become a little cloudy. I cannot quite remember why I was so enthusiastic to address the Committee on them. Furthermore, I notice from the clock that I am due any second to chair the proceedings of the Select Committee on Home Affairs, so the Committee will be pleased to hear that I shall not detain it for long.
I shall detain it only long enough to make the observation that amendment No. 14 requires a court to have primary regard to whether an injunction is necessary for the protection of what the court considers are the victim's legitimate interests. That seems to me to be nonsense, because it is totally unnecessary. Of course, any civil court considering an injunction will have primary regard to whether an injunction was necessary for the protection of the victim.
Amendment No. 25 invites the Scottish court to have primary regard to whether such an order is necessary for the protection of what the court considers are the pursuer's legitimate interests". That is the stalker.

§ Mr. Beith
It is the plaintiff.

§ Sir Ivan Lawrence
That just shows the effect that the passage of a few hours and much political activity have upon the mind of even the acutest of lawyers who address hon. Members on such an important matter.
967 I am bound to conclude that, if the point on the Scottish interest advanced by Opposition Members is the same as that advanced by Opposition Members representing the English and Welsh interest, my observation about amendment No. 14 applies exactly to amendment No. 25. It is unnecessary to remind a court in a civil action for an injunction that its primary obligation is to have regard to the interests of the victim before making such an order.
In the climate of yesterday night, I intended to observe that, as the amendments were totally unnecessary and otiose, they must have been tabled either as probing ones—I understand that that was not the intention—or to waste time. As we are interested in maintaining an even keel between the parties, however, I shall forbear to repeat the observation that I intended to make last evening and satisfy myself with my observation about the totally unnecessary nature of amendments Nos. 14 and 25.

§ The Parliamentary Secretary, Lord Chancellor's Department (Mr. Gary Streeter)
The debate on this group of amendments has been useful, lively and action-packed.
Amendment No. 14 could be intended to focus the court's mind on the needs of the victim or on the liberty of the defendant; but, either way, the amendment is unnecessary. The court will decide whether to make an injunction on the evidence produced by the victim and the defendant. If it finds that the victim's claim in respect of harassment is made out, it will include in any order that it makes whatever terms are appropriate for the necessary protection of the victim. It will also have in mind the need for any restraints that the order places on the defendant to be reasonable. A defendant who feels that the injunction contains terms that are not necessary for the protection of the victim or that are an unfair restraint may appeal against the order. The amendment therefore adds no benefit to the victim, the defendant or the powers of the court.
Amendment No. 29 seeks to ensure that civil claims in respect of harassment cannot be referred to arbitration without the consent of all parties. Section 64 of the County Courts Act 1984 enables rules to be made requiring the referral of county court cases to arbitration and, technically, harassment cases could be covered by those arrangements. It is, however, impossible to envisage circumstances in which referral to arbitration could be appropriate, because an arbitrator cannot grant an injunction—only the courts can do that.
The consent of the parties to arbitration is a rather hollow condition, because it would clearly be unpalatable to a victim who was seeking an injunction to accept a reference to arbitration. The effect would be to deny the victim's claim without hearing it. I hope that at goes without saying that there is no intention of introducing rules requiring harassment to be dealt with by arbitration, but, because it anticipates circumstances that it is impossible to conceive of, the amendment is unnecessary.
Amendment No. 4 is bad. The provisions that it cuts out of the Bill are part of the important protection that we seek to give to victims of harassment. The effect would be to place on the victim's shoulders the responsibility for collecting evidence of the breach and bringing the matter back to court. It may be that, in some cases, the victim would prefer to proceed against a defendant who breached a civil injunction by restoring the proceedings to the civil court and seeking the court's sanction for contempt; but the amendment would make that compulsory.
968 The amendment would also mean that, as long as the defendant remained at large, the harassment could continue. By contrast, the provisions that the amendment would delete would enable the police to act promptly and decisively on behalf of the victim—

§ Mr. Andrew F. Bennett (Denton and Reddish)
Will the Minister confirm that the tests in civil courts are not nearly as strict as those in the criminal courts? In fact, injunctions can be granted without the person against whom the injunction is being sought being present in court. Is he confident that, under the procedure in the Bill of using a civil injunction and enforcing it through the criminal courts, the rights of the individual to know exactly what is occurring will be protected?

§ Mr. Streeter
The hon. Gentleman is right to say that, in a criminal court, the test applied is "beyond all reasonable doubt", whereas in the civil courts it is "the balance of probabilities". One of the main reasons for introducing the civil tort is to gain access to that lesser test, so that more victims or potential victims might be protected. I am confident that the courts will always act in a way that protects the civil liberties of those involved in a case.
To return to the sentence that I was halfway through: by contrast, the provisions that the amendment would delete would enable the police to act promptly and decisively on behalf of the victim, to arrest a defendant who breaches an injunction and to investigate the circumstances of that breach and collect the necessary evidence. A defendant who does not breach the court's order has nothing to fear from those provisions, but deleting them substantially diminishes the protection that we want to give to victims.
Amendment No. 25 attempts to do for Scotland what amendment No. 14 would do for England and Wales, but interdict provides good protection for a victim or potential victim. For example, it can prohibit a stalker from taking a specific action, such as writing to the victim. Interdict is a remedy that is well used and familiar both to the courts and to those who need the protection that it can give. As a matter of course, in considering whether to grant interdict or interim interdict, a Scottish court would take fully into account the interests of the victim or potential victim. There is no need to place any further duty on the court, so, like amendment No. 14, amendment No. 25 is unnecessary.
I ask the hon. Member for Rossendale and Darwen (Ms Anderson) to withdraw her amendment.

§ Ms Janet Anderson (Rossendale and Darwen)
We have had a useful debate, and it is not our intention to delay the Committee, because we are anxious that the Bill should make speedy progress. When discussing these matters, it is important that we pay particular attention to the interests of victims. Nevertheless, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3, as amended, ordered to stand part of the Bill.
Clause 4 ordered to stand part of the Bill.