HC Deb 14 March 2001 vol 364 cc1045-59

—(1) In section 7 of the Protection from Harassment Act 1997 (interpretation of sections 1 to 5), there shall be inserted the following subsection— (3A) A person's conduct on any occasion shall be taken, if aided, abetted, counselled or procured by another—

  1. (a) to be conduct on that occasion of the other (as well as conduct of the person whose conduct it is); and
  2. (b) to be conduct in relation to which the other's knowledge and purpose, and what he ought to have known, are the same as they were in relation to what was contemplated or reasonably foreseeable at the time of the aiding, abetting, counselling or procuring.".

(2) This section has effect in relation to any aiding, abetting, counselling or procuring that takes place after the coming into force of this section.'.—[Mr. Charles Clarke.]

Brought up, and read the First time.

4.58 pm
The Minister of State, Home Office (Mr. Charles Clarke)

I beg to move, That the clause be read a Second time.

Madam Deputy Speaker (Mrs. Sylvia Heal)

With this it will be convenient to discuss the following amendments: No. 60, in clause 43, page 34, line 31, after "the", insert "immediate".

No. 61, in page 35, line 1, after "cause", insert "serious".

No. 62, in page 35, line 1, after "or", insert "serious".

No. 63, in page 35, line 6, after "any", insert "serious".

No. 64, in page 35, line 6, after "or", insert "serious".

Mr. Clarke

New clause 13 follows the debate in Committee, when, during the debate on new clauses to tackle the problems caused by animal rights extremists, I undertook to consider further whether the Protection from Harassment Act 1997 gave adequate protection against acts of collective harassment. My hon. Friends the Members for South Thanet (Dr. Ladyman) and for Peterborough (Mrs. Brinton) made powerful and effective speeches in favour of that re-examination, and Opposition Members also spoke in favour of it. I undertook that, if the Act needed improvement in this respect, I would come back on Report with an amendment. This is what I now do.

It is already an offence for a group of people to arrange for one person to engage in a course of conduct that harasses another. What is less clear is whether it is an offence for a group to arrange for, say, each member to do just one act of harassment. For instance, one person might order an unwanted taxi to call for the victim, and another might arrange for an unwanted consignment of gravel to be dumped in the victim's driveway, as in the example given in Committee by the hon. Member for North-East Hertfordshire (Mr. Heald). In such a case, the victim is at the receiving end of a series of harassing experiences, but no offence may have been committed by any one person.

We believe that, in practice, it is indeed possible that such a group would have to engage in some sort of course of conduct to make and check the necessary arrangements and that, in doing so, its members could well be liable to prosecution directly under the 1997 Act. However, we have concluded that it is prudent to make it explicitly clear that collective harassment of such a nature is no less an offence than a campaign of harassment by one person—a point made by my hon. Friends the Members for South Thanet and for Peterborough.

Subsection (1) amends section 7 of the 1997 Act, which defines "conduct" and "course of conduct" in sections 1 to 5. It will insert new subsection (3A), which adds to the definition of "conduct". Paragraph (a) provides that conduct by one person shall be taken, at the time it occurs, also to be conduct by another if it is aided, abetted, counselled or procured by that other person.

Ms Julia Drown (South Swindon)

I understand that the new clause has been introduced because of the problems relating to animal experimentation, but it does not refer to animal experimentation. Could it have a wider remit? Many of my constituents suffer from antisocial behaviour associated with prostitution, which sometimes involves harassment from a number of people. Could the new clause help them? They welcome, too, the measures to deal with the problems associated with kerb crawling, which they have called for for a long time.

Mr. Clarke

My hon. Friend is right to suggest that the new clause is not limited to animal rights and could apply in relation to other issues. I pay public tribute to her for her exceptionally energetic campaigning on dealing with prostitution and kerb crawling in her constituency and more generally.

As my hon. Friend knows, other measures which we considered in Committee will introduce new offences to address those matters, and the Government have allocated resources to fight the effects of prostitution through other programmes. I can confirm that the new clause will have general application, though I shall be surprised if it is applied directly to prostitution in the way she suggests. However, I hope that other measures will give at least some reward for her energetic campaign on behalf of her constituents.

Mr. Nick Hawkins (Surrey Heath)

The Minister fairly pays tribute to the hon. Members for Peterborough (Mrs. Brinton) and for South Thanet (Dr. Ladyman) for their contributions in Committee.

On animal rights extremists, the Minister knows that we greatly welcome the fact that the Government have responded to what we said in Committee about the need further to amend the law and we are grateful to him for introducing the new clause, but has he addressed the issue in relation to conspiracy, which we raised in Committee? Organisations such as the Research Defence Society and the Association of the British Pharmaceutical Industry are concerned about it.

Mr. Clarke

I shall come to that point, but we have not addressed it in the way the hon. Gentleman suggests, for reasons that I shall give in a moment.

Paragraph (b) provides that the knowledge and purpose of those who aid, abet, counsel or procure such conduct relate to the moment at which the conduct was aided, abetted, counselled or procured, not to when it took place. That will enable knowledge and purpose to be considered in relation to what was planned or should have been expected at the time of planning. Thus the new clause still allows for a defence of reasonableness.

We believe that the new clause will add a valuable measure of protection for individuals such as members of the scientific community against a concerted campaign of harassment. If the 1997 Act were not amended, the perpetrators could escape prosecution; I agree with all members of the Committee who mo ved amendments and spoke in the debates on those matters that that is unacceptable. That is why we have introduced the measure. We believe profoundly and strongly that we must take all the action we can to protect legal research in this country and ensure that those who engage in that research are properly protected and free from intimidation.

Mr. Simon Hughes (Southwark, North and Bermondsey)

Will the Minister give way?

Mr. Clarke

In a moment. First, I shall respond to the point raised by the hon. Member for Surrey Heath (Mr. Hawkins). We indeed considered confirming collective harassment as an offence by amending the conspiracy provisions in the Criminal Law Act 1977. We have weighed in the balance the points put in Committee, which were made with integrity by all sides. We have concluded, however, that we shall be able to provide more comprehensive protection for scientists and others involved in such work by using the concept of aiding, abetting, counselling or procuring an act of harassment. We feel that that is a more efficacious way of achieving the end desired by Committee members. In fact, I think that the alternatives were proposed as probing amendments.

Mr. Hughes

I do not dissent from the purpose of the new clause, but can the Minister tell us why, as well as rejecting the idea of governing this particular mischief by means of a conspiracy approach, the ordinary law of aiding and abetting does not cover what the Minister seeks to do? The new clause does not create a new offence; it merely adds an interpretation provision to the 1997 Act. Surely it would always have been possible for anyone to be prosecuted for aiding, abetting, counselling or procuring the substantive offence, and to be liable to the same penalty as would have been incurred following prosecution under the original Act.

Mr. Clarke

We considered that point, and I think there is some merit in it. That is why I said earlier that we believe that, in practice, it is likely that such a group would have to engage in some course of conduct to make and check the necessary arrangements, and that in so doing its members could well be liable to prosecution directly under the 1997 Act. We concluded, however—I tried to respond to representations by Members on both sides, although those of my hon. Friends were particularly powerful—that it would be prudent to specify that collective harassment of that nature is no less an offence than a campaign of harassment by One person.

I suppose that the hon. Gentleman's point endorses the point that he continually makes—with which I have a great deal of sympathy—that the codification processes could clarify some of the issues over time.

We believe that amendments Nos. 60 to 64 are inspired by an attempt to produce what those who tabled them consider a better balance between people's rights to engage in peaceful process and the need to protect people in their homes, but that they fail to achieve their aim. As we said in Committee, we feel that the insertion of the word "immediate" adds nothing to the term "vicinity"; its only effect would be the creation of a greater opportunity for arguments in court. The insertion of the word "serious" would present similar opportunities for argument in court about how serious the distress or alarm would be. We think that the effect, although not the intent, of the amendments would be a loss of clarity.

I hope the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) will consider withdrawing his proposals.

Mr. Hawkins

Let me again stress the unhappiness of Conservative Members about the limited amount of time we have in which to consider no fewer than 11 groups of new clauses and amendments. We have just a fraction over three and a half hours to debate them all, which means that if we did so—although I greatly fear that we shall not be able to—we should have less than 20 minutes to discuss each group. That is wholly inadequate. There is a long history of disputes between the two sides about time; now there is a problem again. In our view, proper scrutiny by Parliament is once more being bypassed.

As I made clear in my intervention on the Minister, we greatly welcome the Government's positive response to the points that I and my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) made in Committee and which were supported by the hon. Members for Peterborough (Mrs. Brinton) and for South Thanet (Dr. Ladyman). Speaking not only for ourselves but on behalf of those in the scientific research community, we felt that there was a need to toughen up the law more than the Government were proposing to do in the Bill—specifically, in what started out, in Committee, as new clauses 6 and 7. Those new clauses were the Government's response to the very powerful speech made on Second Reading by the former Prime Minister, my right hon. Friend the Member for Huntingdon (Mr. Major).

There is no doubt that the type of intimidation and harassment that has been inflicted on so many law-abiding employees of research companies such as Huntingdon Life Sciences is wholly unacceptable. The issue's importance is highlighted by the nature of the attacks, some of which have occurred in my own county and even in my own constituency, where the research facilities of two companies have been targeted by extremists and terrorists. The attacks have included the fire-bombing of people's cars when those cars were parked next to their houses, the fire-bombing of sheds, sledgehammer attacks on people's cars while they were still inside them, bomb attacks on cars, the smashing of windows in people's houses, the spraying of cleaning fluid into people's eyes, other physical assaults, and, as the Minister mentioned, the ordering of gravel deliveries and hearses to people's houses.

The attacks were committed by people who are campaigning supposedly for the welfare of animals. Such behaviour is entirely unacceptable and can never be justified. I am sure that all hon. Members support proper animal welfare standards. However, the supposed defence of animal rights can never justify attacking or threatening the life of a human being.

In Committee, Opposition Members felt that the Government's proposals did not address two specific issues—conspiracy, and rotating harassment. As I said, we are very grateful that the Government have taken on board our concerns. I also echo the Minister's comment that, on both sides of the Committee, there was an extremely serious and proper debate on these very serious matters.

We are, however, concerned that the Government have come down only on the aiding and abetting side of the equation. If the provisions are enacted and experience subsequently shows that they are not effective or sufficient, and particularly if organisations such as the Research Defence Society, the Association of the British Pharmaceutical Industry and others that have written to me—including the British Pharmacological Society and the Biotechnology Industry Association—feel that it is necessary to re-examine the offence of conspiracy, we would be grateful if the Government took account of those facts. Of course I expect, however, that it will be an incoming Conservative Government who will have to respond to that matter.

The provisions undoubtedly address a very important issue. I reiterate that we are very pleased that the Minister responded to the points that we made in Committee. He described the discussions that he had had with officials on how to balance the issues, saying that they had only narrowly decided not to seek to amend the Criminal Law Act 1977 and conspiracy law as we had suggested. I am slightly surprised that they chose to pursue the aiding and abetting approach rather than the conspiracy approach. Nevertheless, we welcome that approach, and we feel sure that the organisations whose specific representations we expressed in Committee will welcome it.

I should like to speak briefly to amendments Nos. 60 to 64, which were tabled by Liberal Democrat Members. We fear that the amendments would weaken the ability to determine the "vicinity" of a place where harassment was occurring.

5.15 pm

The Minister will recall that my hon. Friend the Member for North-East Hertfordshire referred in Committee to the serious concerns of the National Farmers Union, of which the House should be aware. The NFU's excellent head of parliamentary affairs, Barney Holbeche, has been in touch with my hon. Friend and me to express concerns arising from the fact that the dwelling of a farmer or someone employed by him invariably forms part of the premises of the farm. That happens for obvious reasons to do with the maintenance of high animal welfare standards.

The original new clause 6 gave constables wide powers to direct anyone seeking to harass a victim to bring that treatment to a halt. That power would be available where a person was present outside any premises used by the victim, at his dwelling or in its vicinity. The Liberal Democrats seek to weaken that provision by restricting it to the "immediate" vicinity. That would water down the Government's proposals and increase the concerns of the NFU at a time when, in the light of the foot and mouth crisis, we should not want to give our farmers any less protection.

I share the NFU's concerns about how "vicinity" might be interpreted, even under the amended Bill. Farmers want an assurance that the direction of a constable cannot be flouted by animal rights terrorists being able simply to walk to another side of the premises and continue their intimidatory activity In subsection (5) of the original new clause 6, which the Government introduced in Committee, it was anticipated that constable could make exceptions to his direction, including conditions regarding the distance from the premises or the location at which people who did not leave the vicinity must remain. Does that mean that a constable would have the power to direct persons to leave the premises and to stay at a significant distance—at least a mile, say—where they would be out of range when it cane to intimidatory behaviour?

The NFU has drawn a comparison between that provision and a provision in the Criminal Justice and Public Order Act 1994; both my hon. Friend the Member for North-East Hertfordshire and I sat on the Standing Committee that conesidered it. That Act includes a power to direct a person who is within five miles of the boundary of the site of a rave not to proceed in the direction of the rave. There is, therefore, a precedent for setting a clear distance, to be found in a piece of legislation introduced by the Conservatives.

The NFU is also concerned that the Bill does not make clear for how long a direction would be valid. Clearly, the value of a direction would be limited if it would be lawful for a person to return to the scene only an hour later, once the police had left. The NFU again draws a parallel, this time with the Countryside and Rights of Way Act 2000, under which a person transgressing the law while exercising the Government's so-called right to roam could be banished from the access land in question for 72 hours. The NFU is concern ed that there may be a lacuna in the Bill before us.

We would not support the Liberal Democrat proposals to water down what the Government have done by specifying the "immediate" vicinity. The Liberal Democrats are clearly wrong on that, and we shall be interested to hear what the Minister has to say about the NFU's genuine concerns on behalf of all farmers. I conclude by repeating that we welcome new clause 13.

Dr. Stephen Ladyman (South Thanet)

I, too, welcome new clause 13. I thank the Minister of State, Home Office, my hon. Friend the Member for Norwich, South (Mr. Clarke), for his complimentary remarks about the contributions made in Committee by my hon. Friend the Member for Peterborough (Mrs. Brinton) and by me. I also thank the hon. Member for Surrey Heath (Mr. Hawkins) for offering the same compliments. Although it might suggest that we are having a bit of a love-in, I should add that the Minister has moved considerably towards meeting the requirements put to us by the scientific community.

People accuse the Government of being inflexible, not listening or being arrogant, but the Minister's actions during our proceedings gave the lie to that: none of the amendments was in the original Bill. By strength of argument, not only from those in the scientific community and Government Members, but from Opposition Members, a case has been made to protect a group of people who are under threat. The Minister has listened to that case and has acted.

Mrs. Helen Brinton (Peterborough)

Has my hon. Friend, like me, received several letters from just some of those scientific organisations that he has described, making such points and thanking the Government for moving so swiftly?

Dr. Ladyman

I have indeed. All my contacts in the scientific community are absolutely delighted by the progress that has been made, and feel that there is now light at the end of the tunnel not just for those who experiment on animals but for scientists in general, who have come under threat in recent months.

In the light of that openness, may I put it to my hon. Friend the Minister that there are opportunities even beyond Report to table further amendments in order to improve the work that has been done? I ask him to keep an open mind, to keep reviewing the changes that have been made and not entirely to close his mind to the line of action suggested by Conservative Front Benchers on conspiracy legislation. There may be some work in that area that could improve the Bill further.

I certainly very much welcome new clause 13. As I am not a lawyer, I found it almost impenetrable. It is only because I know what it is meant to achieve that I could work out what it is trying to achieve. I shudder to think how some poor judge will try to wade his way through it.

Mr. Charles Clarke

My hon. Friend has already made some nice remarks, but if he lists the poor judges whom he knows, he will benefit the whole House.

Dr. Ladyman

I withdraw the comment. I would not want ever in my political career to mislead the House. I clearly have done so if I have given the impression that there are any poor judges. Let us say that unfortunate judges will have to interpret the semantics of the provision.

I can more or less work out proposed subsection (3A)(a) to the Protection from Harassment Act 1997, but I find proposed paragraph (b) fairly complex, to say the least. I ask my hon. Friend the Minister to consider the paragraph again in order to ensure that it will achieve what he wants. If my interpretation is right, the offence is committed if an individual procures somebody to carry out an act of harassment, but he will be judged according to what he knew at the time that he carried out that procurement.

I worry a little that if the person subsequently realises that an act of harassment has been procured—perhaps he has asked somebody to demonstrate at a particular address—and becomes aware that the address is very close to a scientist's home, or if he subsequently becomes aware that others have also procured people to carry out acts of harassment, he will be able to defend himself on the basis that he did not know when procuring the act that others had procured similar acts. If he does not make any attempt to stop the act of harassment that he procured, he may be able to defend himself under the paragraph. I might have got that around my neck, and parliamentary draftsmen and lawyers might assure my hon. Friend that people will not be able to defend themselves in that way, but, just in case, I ask him to continue to monitor the provision as the Bill proceeds.

I conclude by once again thanking my hon. Friend the Minister on behalf of scientists for the steps that he has taken so far, but ask him to continue to keep an open mind as the Bill proceeds to any other ways in which we can work together to protect scientists further.

Mr. Simon Hughes

I shall comment first on new clause 13. I am grateful for the Minister's letter honouring the undertaking that he gladly gave in Committee to review the legislation on harassment and intimidation. It is dated 12 March and it covers various Acts, including the Public Order Act 1986, the Protection from Harassment Act 1997 and section 241 of the Trade Union and Labour Relations (Consolidation) Act 1992. Various provisions on obstruction appear in the Highways Act 1990, the Metropolitan Police Act 1839 and the Town Police Clauses Act 1847. In addition, there is common law provision on breach of the peace, which does not need a statute. The Minister also helpfully dealt with the fact that it is open to people to take civil proceedings.

The Minister was kind enough to acknowledge that one of the things that I try to ensure is that we do not pass unnecessary laws. Every time anything happens out there in the big wide world, there is a tendency to think that there is a need for a new law to deal with it. In such circumstances, people often do not check whether a law exists or what the existing law means in practice. It is one of the jobs of the Government, questioned by the legislature, to ensure that we do not already have sufficient provision, however old it might be.

The new legislation proposed in new clause 13 in effect interprets the Protection from Harassment Act. The most reasonable argument for it is that under existing legislation someone must have pursued a course of conduct. Under the new clause, individual activities can constitute harassment, intimidation and threat. That seems to be a proper extension of the law, which was why my hon. Friend the Member for Taunton (Jackie Ballard) and I supported in Committee the principle of the new clause that has now become clause 43.

New clause 13(2) sensibly provides that the amendment to the law is prospective, not retrospective. It is important to include that in the Bill—some legislation is not clear on the point. There should be no case for retrospective legislation, unless there is a particular and extremely important reason that commands great consensus—for example, the War Crimes Act 1991, although its retrospective nature raised questions.

I do not intend to vote against new clause 13, but I am not entirely persuaded that the existing law is insufficient. I understand the argument that new clause 13 inserts into existing legislation an explanation of who might be covered by it. That is helpful, but those of us who have been here for a little while know that Ministers often resist writing things into legislation: decisions about what is inserted in Bills are a little subjective. I do not object to the new clause because we want the law to be clear, for reasons that Members such as the hon. Members for South Thanet (Dr. Ladyman) and for Peterborough (Mrs. Brinton) and the right hon. Member for Huntingdon (Mr. Major), as well as colleagues of mine such as my hon. Friends the Members for Harrogate and Knaresborough (Mr. Willis), for Oxford, West and Abingdon (Dr. Harris) and others have made plain. It is helpful that people understand what they are not allowed to do and that being part of a group that is doing something is sufficient to be in breach of the law, even if they try to put themselves at one or two removes from the group of people who intimidate. Liberal Democrats believe that civil protest is right and proper and that expressing a view in opposition to whatever the subject might be, including experimentation, is valid as a political and personal position. There is, however, a limit—when someone starts to intimidate and harass a person who is participating in lawful activity. On the general issue, we are happy to find ourselves in the same position as the majority of Members, if not all of them.

5.30 pm

Amendments Nos. 60 to 64 turn on whether clause 43 is sufficiently tightly drawn so as not to be dangerous in achieving the balance between civil liberties and the protection of potential victims. I do not propose to press amendment No. 60. I hope that that shows the relatively flexible and, I hope, intelligent way in which we have all tried to conduct the debate, when we have been allowed to have it, but that is a separate issue.

Our decision to table an amendment to insert "immediate" stemmed from the argument about whether vicinity needs to be more tightly defined. There is an argument that vicinity should be defined, but it is met in part by the rest of the clause, which requires that it is for the police to decide whether the place where someone perpetrated the offence is near enough to cause harassment or intimidation. I am as persuaded as I can be that, for the time being at least, it is proper not to define the law on vicinity more tightly, and to allow the police to have discretion.

I do not take the same view about the threshold, whereby, however low it may be, someone could be convicted even if all that he did was to cause the victim alarm or distress. The Minister will recall from our debate in Committee that there are alternatives. A conviction could be secured either if someone did something that complied with all other conditions, but was likely to result in the harassment of the victim, or, in the absence of harassment, something likely to result in harassment or cause alarm or distress.

We believe that we must all expect and be expected to put up with some alarm or distress in certain circumstances, but that there must be a threshold.

Mrs. Anne Campbell (Cambridge)

I appreciate what the hon. Gentleman is trying to do, but his argument is subjective. Alarm or distress is experienced by the victim, who will interpret whether that alarm or distress is serious. That is not likely to be affected by particular actions. Two of my constituents have had protesters outside their home. The woman is often alone in the house at night, and she has felt very alarmed and very distressed by protesters simply standing outside the home. That might not be interpreted by a court as something likely to cause serious alarm or distress, but it certainly has that effect on that individual.

Mr. Hughes

I understand that valid point. I believe that the hon. Lady used the words "very alarmed and very distressed". If someone is very alarmed and very distressed, and the view is taken that the action caused, or might have caused, the individual to be very alarmed or very distressed, I would accept that it would fall within the higher category of serious alarm or serious distress.

An recent example was given in Committee, albeit in a different context—the protest against the President of China when he came to this country by people arguing for a free Tibet.

Mr. Charles Clarke

That is irrelevant.

Mr. Hughes

It is a relevant political example. The President of China might have been caused alarm or distress because he did not like people protesting against his actions. Our debate is about the extent to which people are affected.

The Bill asks the court and the relevant police officer to judge whether an action is likely to cause alarm or distress. There is a danger of our becoming over-authoritarian if we argue that any action that is likely to cause any alarm or distress, no matter how slight or for how short a period, is sufficient to constitute an offence. That runs the risk of criminalising a person who is charged with the offence.

Mr. Hawkins

The hon. Gentleman recognises that, under the Bill, the alarm or distress must be occasioned by harassment. There is a danger that his proposal, which would water down the measure, would allow extremist protesters to get away with their actions in court, as the hon. Member for Cambridge (Mrs. Campbell) suggested. We do not want to pass a law that extremist campaigners can get round, and thus achieve a triumph of publicity to add to the distress and alarm that they have caused.

Mr. Hughes

The hon. Gentleman's premise is wrong. Clause 43 states that, first, the person must be present outside or in the vicinity of any premises". Secondly, the constable must believe, on reasonable grounds, that the person is present there for the purpose … of representing to the victim or another individual … or of persuading the victim or such another individual … that he should not do something that he is entitled or required to do; or … that he should do something that he is not under any obligation to do". That is followed by what I described as the third hurdle, which is that the person's presence

amounts to, or is likely to result in, the harassment of the victim; or … is likely to cause alarm or distress". The interpretation of the hon. Member for Surrey Heath (Mr. Hawkins) is usually correct. However, in the case that we considering, harassment is not required; the other grounds are sufficient. The courts could deem actions that were likely to cause alarm or distress, however slight, sufficient. Like many colleagues, I have argued such matters in court, and I know that the words will be debated, whether they are "alarm", "distress", "serious alarm" or "serious distress". If the defendant pleads not guilty, such a debate will be held, and the verdict will depend on the interpretation of the threshold.

Dr. Ladyman

Will the hon. Gentleman give way?

Mr. Hughes

I shall give way shortly, but I do not want to take much time.

I am simply anxious to get the balance right. We must proceed carefully with the new measure to ensure that we protect victims—we all support that—but that in doing so we do not prevent people from protesting. We might have a society that prohibits protest if we legislate on the basis that someone might be caused alarm or distress by it. If we do that, we will make great inroads into the right to protest. We must strike the right balance. Without the higher qualification that we propose, the balance swings against the civil rights of the protester and overly and unnecessarily towards the protection of a victim, who does not need matters to go that far.

Mrs. Brinton

Will the hon. Gentleman give way?

Mr. Hughes

No, I have promised to give way to the hon. Member for South Thanet (Dr. Ladyman).

Dr. Ladyman

The hon. Gentleman makes an important point. I do not want to restrict people's rights to protest properly. However, the letter that the Minister provided at the hon. Gentleman's request mentions the Public Order Act 1986. The Minister's interpretation of section 5 is that an action that is committed in someone's hearing, and is likely to cause alarm or distress, or be interpreted as insulting, could be an offence, unless it is demonstrated to be reasonable. Political protest would be deemed reasonable. All that the Bill does is to prevent people from staging a demonstration, which might be reasonable under some circumstances, outside people's homes, where it is clearly not reasonable.

Mr. Hughes

This is as good and sensible a debate as we had upstairs. I understand that point, but it is equally possible to argue the alternative view—the Minister's letter was helpful in going over the matter—which is that, whereas current law allows people to put in the defence of reasonableness, the proposed new law does not. The Government would get rid of the defence of reasonableness, but keep the threshold of alarm or distress, as in, among other things, the Public Order Act. If there were still a reasonableness defence, it would be much more acceptable to have the unqualified alarm or distress threshold.

I understand the point, but if the Government get rid of the defence of reasonableness altogether and someone turns up in court and says, "I was distressed" or "I was alarmed"—how could the court say that he was not?—that could be sufficient to render someone else guilty of a crime. That is where we must be careful. The balance is therefore tilting in the wrong direction.

I accept that the logical conclusion of trying to get the law right—the Minister reminded us that the Government intend eventually to codify the law; it was mentioned in the 10-year plan announced the other day, which we support—is that we go through similar legislation and ensure that there is a consistent threshold. It might be either the lower threshold, if that is what the Parliament of the day thought appropriate, or the higher threshold, if it supports my view. At least we would have a common threshold. We could then weigh up which, if any, needed a reasonableness defence.

I understand the debate. There is no reasonableness defence in the Bill and people do not need to prove harassment. If we are going to convict someone, we should ensure that they are doing something that is more than just a little bit distressing, and is causing or is likely to cause more than a little bit of alarm or distress. Therefore, if the opportunity were to arise—I realise that the amendment will be voted on after the new clauses—we would like to test the mood of the House on the matter later in the proceedings.

Mrs. Anne Campbell

I do not intend to detain the House long. I want to express my strong support for new clause 13 and to thank the Minister for the measures that have been taken. In my constituency, the issue is considered important as I have a number of constituents who work on experiments with animals.

I reiterate the point that I made in an intervention on the hon. Member for Southwark, North and Bermondsey (Mr. Hughes). I cannot support, and hope that the House will not support, the weakening of the measure by including the word "serious" to describe alarm and distress. As I said, the word "serious" should be interpreted by the victim, rather than by the perpetrator.

Mr. Oliver Heald (North-East Hertfordshire)

May I say how much I agree with the hon. Lady? Does she agree that, whenever the word "serious" is used in the law, there is quite a battle in court over what it means? Serious bodily harm is a classic example, of which there have been numerous cases. I strongly support the hon. Lady on that point.

Mrs. Campbell

The hon. Gentleman is a barrister, which I am not, and I would not like to generalise beyond this particular point, although I am pleased to have his support and I thank him for the point that he has made. I hope that the House will not support the amendments that have been tabled by the Liberal Democrats. I strongly support new clause 13.

5.45 pm
Mr. Charles Clarke

Some interesting points have been raised in the debate. On the question of timing, I had not intended to return to private grief. However, in the light of the remarks of the hon. Members for Surrey Heath (Mr. Hawkins) and for Southwark, North and Bermondsey (Mr. Hughes), I should place on record the fact that in the 55 or so minutes that we have been debating this new clause—described by the hon. Member for North-East Hertfordshire (Mr. Heald) as covering one of the most important, if not the most important, aspects of the Bill—there has not been a single Member of the Opposition in the Chamber, other than those who served on the Committee. [Interruption.] I apologise; one Member was here for a few minutes at the beginning. However, that fact weakens the general argument about timing. I appreciate the comments from some of my hon. Friends about the approach of the Government. We are determined to resolve this matter positively.

We had an entertaining exchange on the meaning of the word "poor". My hon. Friend the Member for South Thanet (Dr. Ladyman) referred to poor judges, using the word to mean "unfortunate". I intervened, using the word poor to mean "impoverished". He responded by taking it that I had meant "incompetent" judges; of course that is an oxymoron, or, as one of my officials advised me, a two-word paradox.

Dr. Ladyman

I would not like it to go in the Official Report that I had not understood my hon. Friend's joke. I realised that he meant "impoverished".

Mr. Clarke

Perhaps it could go on the record simply as a very poor joke and part of the general attack on lawyers for which the Government are now becoming famous.

Mr. Heald


Mr. Clarke

I give way to a lawyer.

Mr. Heald

I hope not to annoy the Minister too much, but does he agree that five Labour Back Benchers—apart from his Parliamentary Private Secretary—two Conservatives and two Liberal Democrats in the Chamber is not very different from the balance in the House?

Mr. Clarke

I was referring to the argument—made with a lot of sound and fury—that the Government have been tyrannical in not allowing time for debate.

On the question of the word "vicinity", I was grateful to the hon. Member for Southwark, North and Bermondsey, who indicated that he was listening to what we said about the use of the words "immediate vicinity". There is nothing further I want to say, except that it is open to the police officer concerned to give whatever directions he considers necessary to prevent harassment, alarm or distress in the circumstances. It is an offence to refuse to follow those directions, including those about distance from premises.

On the points made by my hon. Friend the Member for South Thanet on conspiracy, the new clause deliberately puts knowledge and purpose on the part of the person aiding, abetting, counselling or procuring an act of harassment back to the time that the act was planned. We do not want to catch those who, at the time, had a valid reason for their actions, which is why the wording is as it is. If there were a genuine coincidence between one person's aiding and abetting an act and other acts which resulted in harassment, it is right that no offence should arise if the coincidence were genuine.

Dr. Ladyman

If, having planned the act and initiated it by getting somebody to commit the act for me, I subsequently became aware that circumstances had changed and did not try to stop the act, would I have a defence or—as I would prefer—could I be prosecuted?

Mr. Clarke

If my hon. Friend did not have a defence, he could be prosecuted. However, I will take note of that point and write to him, as I would not want to mislead him.

Conspiracy—a matter raised by the hon. Member for Surrey Heath—will already be an offence if two or more people agree on a course of conduct which would in itself be an offence. The drawback of the Opposition amendment in Committee was that it would have caught the conspirators only if one person carried out at least two acts of harassment. Where that was the case, there would already be an offence under either section 1 of the Criminal Law Act 1977, under common law or in relation to the aiding, abetting, counselling or procuring of an offence.

The Government amendment is preferable because it relates to each bit of conduct that we are discussing which makes up a course of conduct. Someone who encourages or agrees with others to carry out acts of harassment will be responsible in law for each of those acts. That is why I give the answer I do to my hon. Friend the Member for South Thanet, with the qualification that I will write to him.

Finally, the hon. Member for Southwark, North and Bermondsey raised the issue of harassment. First, let me emphasise that it is not an offence under clause 43 to cause alarm and distress in itself. The offence is in failing to comply with the direction. The direction will not be not to cause distress, but for example, to go half a mile away, to stop shouting or to leave the area. I strongly support the point that my hon. Friend the Member for Cambridge (Mrs. Campbell) made extremely powerfully. It is the Government's view that individuals should have the opportunity to live in their homes with their families without having to suffer any alarm or distress, serious or otherwise, from protesters. There is a galaxy of ways in our democracy for people to hold a peaceful protest which does not involve loitering around somebody's house in circumstances which can cause alarm and distress.

To deal with a point that my hon. Friend the Member for South Thanet raised in an intervention, the qualification of alarm and distress with the word "serious" would create a higher test than currently applies in section 5 of the Public Order Act 1986, which covers a person causing harassment, alarm or distress by using threatening, abusive or insulting words or behaviour. It would also require a higher test than under the Protection from Harassment Act 1997, which also requires only harassment, alarm or distress.

With the assurance that the hon. Member for Surrey Heath sought—that we will keep the matter under review and look at the situation as we move forward—I urge right hon. and hon. Members to support new clause 13. I urge the hon. Member for Southwark, North and Bermondsey to think again before he decides to divide the House on the introduction of the word "serious". I think that it would give encouragement to those who want to protest in that way and I urge him to think about it most carefully.

Question put and agreed to.

Clause read a Sec and time, and added to the Bill.

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