Lords Sitting of 16 July 1986

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Lincoln.

The Lord Bishop of Chelmsford
John, Lord Bishop of Chelmsford—Was (in the usual manner) introduced between the Lord Bishop of Carlisle and the Lord Bishop of Saint Albans.

Unemployment Levels
2.42 p.m.
Lord Dean of Beswick: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government when they expect a reversal of the present underlying trends in unemployment.
The Secretary of State for Employment (Lord Young of Graffham): My Lords, in common with previous governments, I do not believe that forecasting unemployment levels is useful. If jobs are to be created, it is essential that our goods and services compete effectively on price, quality and delivery.
Lord Dean of Beswick: My Lords, I am grateful for that reply from the noble Lord the Secretary of State, but I find very little comfort in it. May I ask the Secretary of State whether he can tell us what are the latest figures available to him and whether they show a further diminution in our manufacturing base? If they do, does this not, in conjunction with the fall in the price of oil to less than nine dollars a barrel, bode ill for our economic future?
Lord Young of Graffham: My Lords, the noble Lord, Lord Dean of Beswick, alas will have to contain himself until tomorrow when the next unemployment figures and employment figures are announced. We have seen a constant decline in the number of people employed in manufacturing industry since 1966. That has been proceeding at a fairly constant rate. It acceler-ated during 1980–81; and it is now back to that steady rate. It is a phenomenon which is seen all over the industrialised world.
Lord Bruce of Donington: My Lords, can the noble Lord give the House some indication as to whether the figures that will be announced tomorrow will contain yet a further statistical adjustment?
Lord Young of Graffham: No, my Lords. I can give no indication of what the figures to be released tomorrow will contain. Patience is a virtue.
Lord Gisborough: My Lords, in regard to unemployment in the North-East, which is very large,
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is my noble friend aware that, in spite of all the efforts for training schemes there, firms are still having to advertise nationally to find people with the skills that they need? Does this not show that there is a still greater need to integrate the skills which are being taught to the industrial needs so that some improvement can be made?
Lord Young of Graffham: My Lords, we have made considerable advances over the past four or five years in the provision of skills training for those who leave school; hopefully, in the acquisition of usable skills for those in school; and in taking great strides towards retraining adults. Nevertheless, this puzzling phenomenon of shortage of people even in areas of high unemployment persists and it is something to which I am giving great attention.
Lord Avebury: My Lords, although the decline in the price of oil is beneficial to employment change both in reducing other costs of manufacturing industry and also in causing the pound to fall, thereby increasing our export competitiveness, can the noble Lord tell the House what the Treasury's economic model says about the changes in employment resulting from each dollar per barrel fall in the price of oil?
Lord Young of Graffham: My Lords, the initial reaction of the Treasury to the fall in the price of oil was that its first effects would be bad for employment—and we have seen considerable losses of employment in the North Sea industry and in the energy-producing industries. But it is thought that in the second half of this year and next year we will see a growth in employment. I am not aware that the Treasury has a model which is capable of looking at unemployment or at employment effects per dollar fall in the price of oil. I shall certainly make inquiries. I suspect that the whole future price of oil is so uncertain that it would be profitless to work out such models.
Lord Cledwyn of Penrhos: My Lords, does the noble Lord agree that unemployment remains the major problem facing this country at the present time? Leaving out all considerations of party politics, will he recall the recommendations of the committee chaired by the noble Lord, Lord Aldington, and the practical recommendations of the committee chaired by the noble Baroness, Lady Seear? Is he aware that the Government have taken no notice of any of those practical recommendations? Will he tell the House why, and whether the Government are still considering those two outstanding reports?
Lord Young of Graffham: My Lords, it is absolutely true to say that employment and unemployment are the major preoccupations of the Government of the United Kingdom, as they are of the Governments of France, Germany, Italy, Spain and all the other countries in Europe. The aggregate is some 16 million people who are out of work. We must look at that as a very real and very serious problem. The Select Committee of your Lordships' House headed by my noble friend Lord Aldington was the subject of a debate in this House and the Government's response was, I think, freely explored at that time. I do not think I could actually do more in the course of an answer.
Lord Bauer: My Lords, does my noble friend recognise that neither the policies mentioned here today, nor the adoption of the recommendations of the Aldington Committee, nor changes in the price of oil, nor increased rates of growth, will much reduce unemployment without more labour-intensive patterns of consumption and production, which require major reforms in the labour market, in the housing market and in social security arrangements?
Lord Young of Graffham: My Lords, I would agree with my noble friend. My principal source of concern, looking at the future of employment in manufacturing industry, is the simple fact that we appear to be giving ourselves 7½ per cent. pay increases in the past year, when, if you look at the tax and price index, the rise in pay to maintain living standards should have been no more than one halfpenny in the pound.
Baroness Seear: My Lords, would the Secretary of State reconsider the Government's attitude towards adult training? While the Government have put a great deal of money into the training of school leavers and the YTS, there is a tendency (is there not?) for the Government to say that a great deal of the burden of adult training should be borne by employers. Would it not be appropriate that more government money should go into adult training, having regard to the fact that while employers will train and should train their own labour force, it is improbable that they will be prepared to train for other people's labour forces?
Lord Young of Graffham: My Lords, I am grateful to the noble Baroness, Lady Seear. The unfortunate truth is that too many employers have trained for the benefit of other people; because what we have seen are a few employers training and many other employers, I suspect, poaching trained staff. That is a very real problem. It has been the preoccupation not only of this Government but of all governments. We are looking urgently at the position. I believe we have made signal advances in the training systems of this country, but no one will pretend they are perfect. What we are trying to do, within the confines of the adult training strategy, is to bring home the sheer economic need for a better trained workforce. I have hopes that that message is beginning to get home.
Lord Mellish: My Lords, is it not economic madness to expend almost the whole of our North Sea oil reserves—something like £3 billion a year—keeping people on unemployment benefit? Is it not absolutely mad that such money should be paid to people for doing nothing? Could there not be a reversal of that policy?
Lord Young of Graffham: My Lords, I keep hearing about different ways in which North Sea revenues are spent. Perhaps I may remind your Lordships that in 1979 the net overseas investments of the United Kingdom represented £8 billion, and at the time of the budget the figure was £79 billion. A considerable amount no doubt came out of profits generated in the United Kingdom, including oil reserves. We must not hypothecate oil revenues but get people back to work; and in order to do that we must see that industry is competitive, we must design and sell goods for
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markets that want them. Until we do that no wands waved by any government can get people back to work.
Lord Maude of Stratford-upon-Avon: My Lords, if we are talking about jobs for the future, is not the real problem of this country still the fact that the rate of innovation is far too low and that outside the defence field the amount devoted to research and development is much less than is urgently necessary?
Lord Young of Graffham: My Lords, it is true that we are a conservative nation (with a small "c" for the comfort of noble Lords opposite) and we appear to resent change too much. It is true that we have won far more Nobel prizes than any other nation of our size, but I suspect that we have not won any prizes for the proper marketing and development of the many inventions which have originated in this country. That should be a source of regret to us all.
Lord Blyton: My Lords, is the Minister aware that at the last election the Conservative manifesto said, "There will be secure jobs for all"; yet we now have the highest unemployment that I have known ever since I came out of the Navy in 1919?
Lord Young of Graffham: My Lords, I do not think it serves any useful purpose to debate at what point in the history of our nation we have had the highest level of unemployment. What we should be doing is looking forward to an increased level of employment and to the creation of secure jobs for the future. No amount of platitudes and no amount of words will help us unless we create the jobs ourselves.
Lord Blyton: My Lords, has the noble Lord been on Tyneside?
Lord Moyne: My Lords, could not employment most rapidly be increased by providing additional funds to the Housing Corporation, earmarked for building for letting in areas of high employment, so that people could move from areas of low employment, while at the same time creating employment in the building industry?
Lord Young of Graffham: My Lords, house prices in the southern half of this country are a source of concern to many and so is the question of the availability of planning permission. We must have planning permission for land before we can build houses. It is not a matter for central government; it is very much a matter for local government, at a local level, as to whether or not planning permission is granted. That is the area to which we should address these questions.
Lord Stallard: My Lords, with regard to the first reply which the noble Lord made to my noble friend Lord Dean, in which he mentioned the dangers of forecasting, does he recall that a few weeks ago, in reply to a similar Question from me, he in fact forecast that there would be an improvement by Christmas in the unemployment situation? The noble Lord repeated that forecast a few days ago in a speech

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outside the House. Is he now saying that we should ignore that forecast because he has realised the dangers of it?
Lord Young of Graffham: My Lords, I shall repeat for the fifth or sixth time the forecast which I made. It was that by Christmas, when we have the figures, we shall see the numbers of the long-term unemployed come down. At no time have I ever expressed any forecast about the level of unemployment itself.
If we look at unemployment, the source of concern for all of us surely must be those who have been out of work for more than a year. Of all those who lose their jobs, on average one in four are back in work within a month; one in two are back in work within a quarter; two-thirds are back in work within six months; but at the end of a year two out of 10 are still looking for work. That is why we have the restart programme and that is why we are concentrating our efforts on those who have been out of work for over a year. I made the forecast—and I stand by it—that when we see the figures for Christmas I hope very much we shall see that they are down.
Lord Underhill: My Lords, does the answer of the Secretary of State on the availability of land mean that he is ignoring the fact that there are great housing problems in the Midlands, the North, and Scotland? A vast amount of infrastructure is required. Is he ignoring that factor?
Lord Young of Graffham: No, my Lords, I was simply answering the question put to me—which is actually a very good habit. The subjects we are now getting on to are a very long way indeed from the Question on the Order Paper.

Jobclubs: Expansion Plans
2.56 p.m.
Lord Sandys: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how many Jobclubs have been established and whether there are plans to create more.
Lord Young of Graffham: My Lords, at the end of June there were 130 Jobclubs in operation. As part of the Government's Action for Jobs campaign, the Manpower Services Commission now has plans to expand to around 300 Jobclubs by the end or December 1986 and to 450 Jobclubs by the end of April 1987. This is faster than had earlier been expected, in view of the increased need.
Lord Sandys: My Lords, I thank my noble friend for that very encouraging Answer. Can he say whether this rate of expansion will be accompanied by links with the other programmes involved in a whole pattern of employment measures?
Lord Young of Graffham: My Lords, I am grateful to my noble friend. Of course, Jobclubs form one of the eight opportunities offered to those who have been out
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of work for a year or more under the restart programme, and so far they have appeared to be remarkably successful. Of those leaving Jobclubs, 63 per cent. have started work; a further 18 per cent. have left to take places on either the Government's community programme or one of our training courses. We are talking here specifically about those who have been out of work for more than a year. The situation is very encouraging, and for that reason we are acceler-ating the expansion of Jobclubs.

Criminal Injuries: Compensation Case Backlog
Lord Taylor of Blackburn: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what further steps are being take to reduce the number of outstanding cases dealt with by the Criminal Injuries Compensation Board.
The Parliamentary Under-Secretary of State, Home Office (Lord Glenarthur): My Lords, the Home Office agreed last month to provide the board with five more staff. This is in addition to the planned increase of 13 which I mentioned during the proceedings on the noble Lord's Question on 8th April. We are continuing to consider what provision can be made in future years.
Lord Taylor of Blackburn: My Lords, while thanking the Minister for that reply and having seen the increase in the staff of the department, does the Minister not think it is time the department introduced more modern technology in the form of office machinery, and so on, to try to alleviate the difficulties within the department?
Lord Glenarthur: My Lords, I agree with the noble Lord. The Home Office computing division is on the point of completing a feasibility study into the possible computerisation of some of the routine aspects of the board's work. If it is cost-effective, we certainly intend that the greatest possible use should be made of technological changes such as that. There is also scope for improvement on the procedural aspects.

Commonwealth Conference Educational Initiatives
2.57 p.m.
Lord Gladwyn: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what steps they are taking to further the "innovative measures in the education field" proposed at the Commonwealth Conference of Prime Ministers at their recent meeting in Nassau.
The Minister of State, Foreign and Commonwealth Office (Baroness Young): My Lords, we have agreed to finance a consultancy commissioned by the Commonwealth Secretariat to examine distance learning within the Commonwealth and identify areas for new initiatives.
Lord Gladwyn: My Lords, I suppose I must thank the noble Baroness for a moderately satisfactory reply. Would she not, however, agree that of the many innovative measures, as they are called, agreed in Nassau—there were, I think, no less than eight—only a few are now being vigorously pursued? Would the noble Baroness also agree that at the moment when the Commonwealth seems to be in some danger of disintegration it is all the more important to proceed with measures which, even if they may not be of the first importance, are designed in the long run to encourage greater unity among Commonwealth members?
More specifically, could the noble Baroness tell us something more about a project in which I have rather a special interest, namely, distance education? These are special programmes devoted to broadcast instruction in elementary procedures and the English language which are received by transistor radios in various outlying parts of the world.
Baroness Young: My Lords, I am sorry that the noble Lord should feel that I did not answer his Question. It seemed to me that I had given him an Answer precisely to the Question which he had asked. But perhaps I might confirm that the scope of the consultancy programme is wide. It will report on open learning facilities already in existence throughout the Commonwealth operating at national, regional and international levels; higher, further and continuing education facilities will be examined; the range of actual and potential beneficiaries and methods and structures of organisations will be covered, and the consultants will also identify potential areas for new initiatives. So far as open and distance learning is concerned, I share the noble Lord's interest in this matter. Much is going on. The Open University is in the forefront of the development of distance learning and has more students than ever before, while the Open Tech programme has funded no fewer than 140 projects to develop open learning materials and services.
Lord Oram: My Lords, can the noble Baroness say what money is involved in the provision of the survey?
Baroness Young: My Lords, we expect the cost to be approximately £90,000.
Lord Oram: Then, my Lords, can that initiative not be described in the same way that the Prime Minister described her concessions about sanctions at Nassau; namely, is it not teeny weeny?
Baroness Young: No, my Lords.
Lord Beloff: My Lords, does my noble friend the Minister agree that there is very considerable indignation in this country at the blackmailing of Her Majesty's Government by certain Commonwealth
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Governments in withdrawing from the Edinburgh Games, and that this is hardly the moment to press this country to make further expenditure on these matters?
Baroness Young: My Lords, I think my noble friend will understand that the point that he raises is one which is wide of the Question on the Order Paper. What I have indicated on the Question which is before us is that we are contributing to what we believe to be something which will be of value to a great many young people throughout the Commonwealth.
Lord Alport: My Lords, is my noble friend aware that there are a very great many people in this country who are deeply concerned with the continuing unity of the Commonwealth, and wish that everything could be done by Her Majesty's Government to ensure that, whatever may be the difficulties with which they are faced, that unity continues in the future?
Lord Glenamara: My Lords, will the noble Baroness agree that the Open University, which she has already mentioned, with its wonderful techniques and material, combined with modern satellite telecommunications, could transform educational development in the third world, including the Commonwealth?
Baroness Young: Yes, my Lords. I am quite certain that there is a very great deal that can be learned from these new techniques. My understanding of the position is that the new consultancy which is to be set up will be able to explore how these techniques might be used, as well as identifying what is being done at the present time.
Lord Cledwyn of Penrhos: My Lords, will the noble Baroness be kind enough to answer the very important question put to her by her noble friend Lord Alport?
Baroness Young: My Lords, I do not think that this is a time for having a major debate about the Commonwealth. I would say to my noble friend that I think that the point that he raised is wide of the Question on the Order Paper.
Baroness Vickers: My Lords, may I go back to the Question on the Order Paper? Will the noble Baroness the Minister state whether the split-site and split-level courses for specialised studies are proving useful, especially for students away from their home countries?
Baroness Young: Yes, my Lords. Split-site courses are already encouraged under the aid programme, wherever this is appropriate and viable. In many cases where permission is given for students to work at PhD level under the aid programme, agreement from the ODA is conditional on split-site study.
Lord Bottomley: My Lords, will the Minister agree that the intemperate remarks by the noble Lord, Lord Beloff, in no way represent the view of the Government, and certainly not the view of the majority of Members of this noble House?
Baroness Young: My Lords, I think that every Member of your Lordships' House is perfectly entitled, about all these matters, to express views which are deeply held. My only concern is that we should keep to matters on the Order Paper.
Lord Ritchie of Dundee: My Lords, if we may return to what we were discussing earlier, may I ask the Minister how much exchange of information exists within Commonwealth countries as to courses and resources that exist in other Commonwealth countries?
Baroness Young: My Lords, I do not believe that I can give the noble Lord a precise answer to the question he has asked, because I understand that one of the functions of this consultancy will be to identify what open learning facilities are currently available. But if he is thinking of the sort of problems that are raised by exchanges throughout the Commonwealth on equivalence of qualifications and so on, that is a very complex matter and I am not sure that there is a detailed breakdown of the figures.
Lord Ritchie of Dundee: My Lords, I was seeking information on how much accurate knowledge is disseminated throughout the Commonwealth of what is currently available in other parts of the Commonwealth.
Baroness Young: My Lords, if the noble Lord has in mind precise courses in different countries of the Commonwealth, then, so far as British institutions are concerned, the knowledge of these is available and, to the best of my knowledge, is distributed quite widely through British Missions, through the British Council and through the ODA overseas. But if the noble Lord has a specific point in mind, then if he will let me know I will, of course, write to him about it.

Business
Lord Denham: My Lords, it may be for the convenience of the House if I announce that the Committee stage of the Public Order Bill will be adjourned at approximately 7 p.m. for approximately one hour and that during this adjournment the Patronage (Benefices) Measure, the Consideration of the Commons Amendments to the Outer Space Bill and the Weights and Measures Act 1963 (Miscellaneous Foods) (Amendment) Order 1986 will be taken.

Lords Expenses
The Minister of State, Ministry of Agriculture Fisheries and Food (Lord Belstead)The Minister of State, Ministry of Agriculture Fisheries and Food (Lord Belstead) rose to move That this House approves that the first resolution of this House of 26th July 1984 should have effect as if—

(a)under paragraph (l)(c) (limit on office, secretarial and research allowance) the appropriate amount for expenses incurred in the year beginning with 1st August 1985 had remained at £19·00;

(b) under paragraph (l)(d) (limit on office holders' secretarial allowance) the limit for that year had remained at £2,202·00; and

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(c) the relevant percentage for the year beginning with 1st August 1986 were 6 per cent.

The noble Lord said: My Lords, I beg to move the Motion standing on the Order Paper in the name of my noble friend the Leader of the House. I think it will be for the convenience of the House if I explain the purpose of this Motion. As many noble Lords will be aware, the House agreed in July 1984 that allowances payable to Lords in respect of secretarial costs, postage and certain additional expenses, and the secretarial allowance for Ministers and other paid office holders in this House, should be uprated annually on 1st August. The uprating, it was agreed, would be equal to the increase in the maximum point of the pay scale, excluding allowances and overtime, for a senior personal secretary in the Civil Service in receipt of inner London weighting.
A restructuring of the Civil Service secretarial grades in March 1986 had the effect of subsuming a number of proficiency allowances within the pay scale. As a result, the application of the uprating formula this year would produce an increase in the allowance of about 18 per cent. This is clearly a distortion of what was intended by the 1984 resolution. The Motion that I now move has the effect of amending the 1984 resolution so far as regards this year's uprating and sets it at 6 per cent., which is in line with the general pay increase for the Civil Service. I am sure that noble Lords will agree that this is entirely fair. My Lords, I beg to move.
Moved, That this House approves that the first resolution of this House of 26th July 1984 should have effect as if—

(a)under paragraph (l)(c) (limit on office, secretarial and research allowance) the appropriate amount for expenses incurred in the year beginning with 1st August 1985 had remained at £19·00:

(b) under paragraph (1)(d) (limit on office holders' secretarial allowance) the limit for that year had remained at £2,202·00; and

(c) the relevant percentage for the year beginning with 1st August 1986 were 6 per cent.—(Lord Belstead.)

On Question, Motion agreed to.

Crown Agents (Amendment) Bill
Baroness Young: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Baroness Young.)
On Question, Motion agreed to.

Latent Damage Bill [H.L.]
3.9 p.m.
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered.—(The Lord Chancellor. ]
On Question, Motion agreed to.

COMMONS AMENDMENTS
References are to [Bill 161] as first printed for the Commons]
1 Clause 1, page 2, line 14, leave out "any potential plaintiff first had" and insert the plaintiff or any person in whom the cause of action was vested before him first had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such an action.
(5A) In subsection (5) above "the knowledge required for bringing an action for damages in respect of the relevant damage" means".
2 Page 2, leave out lines 19 to 23.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 1 and 2, which are drafting amendments. In this House the noble Lord, Lord Hacking, on the Cross-Benches and in another place Mr. Alex Carlile expressed doubts about the meaning of the words "potential plaintiff" in the clause to which the amendments relate. I promised to consult the draftsman. I did consult the draftsman and the Law Society, and the amendments are the result.
The amendments make no change to the intention, which is to make clear that only the knowledge of the person who had the same cause of action as the plaintiff will count against the plaintiff for the purposes of the limitation period, and that the damage in queston must be the plaintiffs damage. I beg to move.
Moved, That the House do agree with the Commons in the said amendments. (The Lord Chancellor.)
Lord Denning: My Lords, my trouble is that I cannot fit the amendments as printed into the Bill. That may be my mistake. I have written the amendments in my own hand, and with Amendment No. 1, I cannot make sense of the whole clause as it then reads. There must be some mistake in the printing but I find it impossible to read the amendment into the clause. Perhaps there is some printing error, but I cannot make sense of it.
Lord Scarman: My Lords, unlike my noble and learned friend, I find the amendment a great improvement and a great clarification of the meaning of the clause. I rise only to draw attention to the valuable contribution towards that clarification made by the Law Society and by the noble Lord, Lord Hacking.
Lord Hacking: My Lords, for those of your Lordships who did not hear the earlier performances from Chapter 27 of the Book of Genesis, I should explain that the noble and learned Lord cast himself in the role of Isaac and cast me variously in the roles of Esau and Jacob. Without knowing whether I have been cast today in the role of Esau or of Jacob, and without making any indelicate references to the gross infirmities of the aged Isaac, when he was taken in by the ruse played upon him by Rebecca and Jacob, I
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express gratitude that the voice of the Law Society has now been heard through the amendment that I moved both in Committee and on Report.
I am sorry that the amendment was not accepted in the simplicity that I moved it in Committee and on Report, which was merely to take out the words "any potential" before the word "plaintiff" and to replace it by the word "the". However, I understand why a slightly wider amendment has now been moved by the noble and learned Lord the Lord Chancellor.
This is the final stage of the Bill, the Commons having now sent their amendments to your Lordships' House. I will just say, as the Bill finally passes through your Lordships' House to Royal Assent, that I am sorry that the other amendments which I moved in Committee and on Report, that sought to make the Bill more precise, more clear and more usable were not accepted by the Government. I am concerned also that the matter raised by the noble and learned Lord, Lord Wilberforce, concerning "deliberate concealment," was also not taken up by the Government. I fear that this may present problems for the future.
I shall mention one other matter to your Lordships. There remains concern among the construction industries that the submissions that they made through myself and through other noble Lords have also not been heard during the passage of the Bill. However, all those matters can go to another day. Certainly the construction industries intend that the matters which worry them shall be clearly heard. They are organised now and they have developed their articulateness. With that, I shall leave those matters to be dealt with on another day.
3.15 p.m.
Lord Broxbourne: My Lords, I rise briefly to associate myself with the remarks of the noble Lord, Lord Hacking, as to his disappointment at the failure to incorporate in the Bill some of the amendments that he moved. I agree with him that problems lie ahead in that context. I do not know that I should not regard that with some degree of philosophy, as the author of Walker-Smith on the Standard Forms of Building Contract, whose study and sales will no doubt be promoted by those problems. However, as a legislator, I would rather it was otherwise.
Lord Wilberforce: My Lords, I may be very stupid, or I may have the wrong printed version, or both those matters may be true, but can the noble and learned Lord confirm that in the third line of the first amendment the word "him" is correct? I find it very puzzling, if that is so.
Lord Silkin of Dulwich: My Lords, if one is permitted to define what is the intention of the amendment even though the printed word does not seem to follow that intention precisely, then certainly the Opposition supports it. It is in our view a valuable clarifying amendment. However, before it becomes clarifying it seems plain from the remarks of the noble and learned Lords, Lord Denning and Lord Wilber-force, that some adjustment will have to be made to the printed word.
The Lord Chancellor: My Lords, unfortunately I have only a typescript of the amendments. The amendment as it appears in the typescript reads:
"Page 2, line 14, leave out 'any potential plaintiff first had' and insert 'the plaintiff or any person in whom the cause of action was vested before him first had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such an action'.".
That seems to me to make sense. I shall examine the printed version later.
Lord Denning: My Lords, I want to know whether lines 14 to 18 are still included in the Bill. There is nothing in the amendment to say that they are. It appears as though they remain. Apparently, lines 14 to 18 will remain in the Bill. I cannot fit in those lines with the words that are now being inserted. I suppose that I am wrong, but I could not make head nor tail of it.
The Lord Chancellor: My Lords, the noble and learned Lord is wrong for once, but he can get wisdom from the noble Lord immediately behind him. I have read out what the amendment is intended to be and I think that it corresponds with the printed words. So far as concerns the other matters, they hardly arise on the amendments and so I cannot say anything more about them. The Opposition supported the amendments in the Commons, and in this House through the noble and learned Lord, Lord Silkin. The Law Society and the noble and learned Lord, Lord Scarman, also had the benefit of consulting the draftsman. I am very much in the hands of the draftsman in the case of technical matters, and I have no reason to believe that she has made a mistake.
On Question, Motion agreed to.

COMMONS AMENDMENTS
3 Page 6, line 8, after "above", insert "sections 1 and 2 of.
4 Page 6, line 11, at end insert—
"(3) Section 3 of this Act shall only apply in cases where an interest in damaged property is acquired after this Act comes into force but shall so apply, subject to subsection (4) below, irrespective of whether the original cause of action accrued before or after this Act comes into force.
(4) Where—

(a) a person acquires an interest in damaged property in circumstances to which section 3 would apart from this subsection apply; but

(b) the original cause of action accrued more than six years before this Act comes into force;

a cause of action shall not accrue to that person by virtue of subsection (1) of that section unless section 32(1)(b) of the 1980 Act (postponement of limitation period in case of deliberate concealment of relevant facts) would apply to any action founded on the original cause of action.".

The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 3 and 4. The amendments are purely transitional. Clause 3 creates, as the House will remember, a new action in tort to remove the effect of the law as set forth in Perry v. Tendring, that an already accrued right of action in negligence is not transferred to a purchaser who acquires without knowledge of the accrued damage.
The new cause of action applies only to property acquired after the commencement of the Act, but it turns in substance on the original cause of action, hich may be time passed by. The amendments
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ensure that a plaintiff who is a purchaser under Clause 3 has as good a right of action as his vendor but no better a cause of action than his vendor.
To achieve this subsection (3) ensures that Clause 3 applies only to post-commencement acquisitions. Subsection (4) excludes accrual where the original cause of action accrued more than six years before commencement. But subsection (4) excludes from that six-year bar cases to which Section 32(1)(b) of the 1980 Act applies. These are really only transitional and technical amendments. I beg to move.
Moved, That the House do agree with the Commons in the said amendments.—(The Lord Chancellor.)
On Question, Motion agreed to.

Public Order Bill
3.20 p.m.
Lord Glenarthur: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Glenarthur.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD WELLS-PESTELL in the Chair.]
Clause 1 [Riot]:
Lord Gifford Lord Gifford moved Amendment No. 1:
Page 1, line 9, leave out ("is such as would cause") and insert ("causes").
The noble Lord said: We are about to enter the Committee stage of a Bill which I believe to be of the greatest importance to the expression of democratic freedom. The Bill, from the first clause onwards, grants to the police a great number of new powers, new legislative weapons. They are in possession already of a number of physical weapons and we are asked to approve an armoury of legal weapons. Many people have written to us expressing concern about whether a free society freely expressing dissent can exist when so many powers are given to the police. The amendment which I seek to move as Amendment No. 1 highlights an example of what seems to me to be an extended power.
I spent the past five months examining relationships between the police and a community of people in Tottenham. What was obvious was a remarkable variation in the attitude and approaches of different police officers to questions relating to public order and to community grievances. Some officers showed intense interest and concern and a readiness to listen to and work with whose who had grievances to express. Other officers, of high rank and low, acted oppressively, roughly and in ways which were motivated by prejudice. There is no question of saying that laws such as this are going to be used well by the police or badly by the police, but in looking at this Bill we must avoid the danger of thinking of the police as some kind of monolithic entity.
With Amendment No. 1, I propose to take Amendments Nos. 2, 4 and 5 because they have a

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common theme. The first two amendment concern the offence of riot and the second pair concern the offence of unlawful violence. In each case, they seek to address what appears to be a remarkable innovation in the Bill. Both these offences, and particularly the offence of riot, are offences of the greatest seriousness. We shall be debating in a short while the penalty for riot. It is to be life, according to the Bill, or not exceeding 10 years, according to the proposed amendment. For unlawful violence, it is to be five years.
Yet there appears in both these clauses a provision—subsection (4) in the case of Clause 1 and subsection (3) in the case of Clause 2—to the like effect, namely:
"No person of reasonable firmness need actually be, or be likely to be, present at the scene",
when one of these offences is committed. In other words, we are being asked to approve that offences carrying these heavy penalties may be committed although there is no person on the scene, no person likely to be on the scene, no victim therefore of the unlawful violence and no likely victim of the unlawful violence or the violence of riot.
That seems to be extraordinary. I can understand the provision when it comes to the offence of affray in Clause 3. The offence of affray is committed when people fight with each other. It may well be that when people fight with each other it is right that there should be no other parties present on the scene. But the offence of riot and the offence of unlawful assembly are meant to be the most serious offences where public tranquility and order are disturbed. My amendment seeks to delete the statement in Clause 1(4) that,
"No person of reasonable firmness need… be… present at the scene",
and amend the first subsection by saying that riot happens,
"Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as causes"—
that is my amendment—
"a person of reasonable firmness present at the scene to fear for his personal safety".
There is always going to be someone present. "A person of reasonable firmness" would of course include a police officer if the object of the riot was the police and it was the police who were put in fear. For these heavy offences to be brought out when there is no likely victim gives, in my submission to the Committee, far too much leeway for the prosecuting authorities to bring charges under these serious offences where there is no need. I beg to move Amendment No. 1.
Lord Renton: Like the noble Lord, Lord Gifford, I too believe that this Bill is important because it will strengthen democratic freedom. But I hold that view for reasons which may differ from those of the noble Lord. I take the view that you cannot have freedom without order. There is too much disorder in our society and it is our duty to strengthen the law in the hope that we have more order and less disorder. It is in the light of that that I think we have to consider this first clause and the noble Lord's amendments.
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Let us consider what the effect of the first amendment would be. The noble Lord wished to leave out the words,
"is such as would cause",
and insert "causes". But if we read from the beginning of this subsection I am afraid we find that the noble Lord's amendment would undermine the effect of it. The subsection states:
"Where 12 or more persons who are present together use or threaten unlawful violence".
The amendment is inconsistent with the concept of threatening unlawful violence because, in the nature of things, when a threat is made you should not have to wait until you know the cause of it before somebody is held to be guilty of the threat. Therefore, I say that the first amendment simply does not fit into subsection (1).
So we come to the second amendment, which is to leave out subsection (4) altogether. I find that subsection (4) is, in the context of the clause, perfectly reasonable. It states:
"No person of reasonable firmness need actually be, or be likely to be, present at the scene."
It has been established for many years in the common law that, for example, merely threatening, causing fear, offering violence in a general way to people to whom these threats are directed can in itself be an offence. For us to say that no people need actually be present at the scene of the threat seems to me to be reasonable, and to eliminate the words in subsection (4) could, in certain circumstances—comparatively rare circumstances—cause difficulty when it is clear that there should be prosecution.
I do not think it is necessary for me to comment on the other two amendments to which the noble Lord referred, except to mention that his Amendment No. 5 has been superseded by his manuscript amendment and therefore we should ignore Amendment No. 5, as printed, and go by the manuscript amendment, which turns it into Amendment No. 5ZA. That means that instead of subsection (2) of Clause 2 being omitted, it is to be subsection (3).
Lord Gifford: The noble Lord is absolutely right. I should have made it clear that there has been a misprint, which is corrected by the manuscript amendment.
Lord Renton: I am grateful to the noble Lord. I turn, therefore, to subsection (3) of Clause 2. We find that it is in exactly the same terms as subsection (3) of Clause 1, and my comments would hold in the same way. I do not think that my noble friends on the Front Bench can reasonably accept this group of amendments.
3.30 p.m.
Lord Glenarthur: The purpose of the amendments, as the noble Lord explained, is to replace what is known as the hypothetical bystander test in Clauses 1 and 2—but, curiously enough, not in Clause 3—with a requirement that there must be present a person of reasonable firmness who actually fears for his personal safety.

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The need for the hypothetical bystander test is explained in paragraphs 3.31 to 3.39 and 5.35 of the Law Commission's report. Briefly, it establishes a common minimum threshold for these offences. If bystanders must be present then the success of any prosecution would depend, first, on third parties being present, and secondly, on their degree of fortitude
I am sure that that would lead to variable results. Where, for example, violent disorder was witnessed only by the police or by bystanders of unusual fortitude, no offence would be committed; while the same degree of violence might lead to a conviction if witnessed by someone easily put in fear, such as an elderly or frail person. It seems wrong that conviction for a serious indictable offence should turn on the timidity or temerity of who happens to be there. That seems to be largely the practical effect of the concern expressed by my noble friend Lord Renton.
These amendments seek to avoid this consequence by requiring that the bystander caused fear should still be one of reasonable firmness. But the commonest raction to mob violence is to make one self scarce. Anyone who deliberately stays at the scene of a riot is likely to be a person of more than reasonable firmness or perhaps less than reasonable common sense. If these amendments were passed and the police could not find a bystander of reasonable firmness who had stayed to witness the riot, then those involved would escape the consequences of their action.
The noble Lord suggested that the person of reasonable firmness present at the scene could be a police officer. That may be so, but the courts may find that a police officer is of more than reasonable firmness: hence his testimony would not be sufficient. In such a case, someone else would be required to be present. I hope that in the light of that explanation of the reasons lying behind the hypothetical bystander case, the noble Lord will feel able to withdraw his amendment.
Lord Gifford: I certainly do not agree with the noble Lord's last point. A police officer would be the person who a jury could quite capably find to be a person of reasonable firmness. Nor do I agree with his point about the people who run off in fear of the approaching riot, because they are precisely the people who fear for their safety. No doubt they could be called to give evidence.
I find it very worrying that we are strengthening within the law an offence which does not have to have a victim. 1 fully see the force of the point which is made about the mob surrounding an old lady. I do not intend to press these amendments at this stage, but I shall go away and think about that point and also the first point made by the noble Lord, Lord Renton. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 2 not moved. ]
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 2A:
Page 2, line 9, leave out ("life") and insert a ("a term not exceeding 10 years").
The noble and learned Lord said: Clause 1, as the Committee has already heard, deals with riot.
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Subsection (6) of Clause 1 makes a person guilty of riot liable on conviction on indictment to imprisonment for life, or a fine, or both. I submit that riot is not so grave an offence that it should attract the penalty of life imprisonment. That is reserved as a penalty for the gravest of criminal offences: for murder or for the most serious offences against personal property.
I call in aid the view of the Law Commission on this matter which recommended a term of 10 years—and that, heaven knows, is a pretty severe sentence—as nearer the mark. It is that figure which I have inserted in my amendment. It is only fair that I should add, in eager anticipation of what the noble Lord, Lord Glenarthur, is going to say, that on Second Reading he said that the Government do not have a closed mind on this matter. I have reason to hope that since then his mind has indeed become more open and that the amendment I have proposed will meet that openness of mind and that requirement of justice. I beg to move.
Lord Renton: The view put forward by the noble and learned Lord, Lord Elwyn-Jones, having previously been put forward by the Law Commission, naturally commands respect. But we have had very serious riots in this country from time to time. If a riot causes death, great destruction of property, injury and disturbance of the lives of many people, we should think in terms of a very stiff penalty for it.
We must remember that when fixing maximum penalties we are intending only to cover the worst possible case that may arise. I should have thought that it would be very rare indeed for life imprisonment to be awarded as a sentence of the court after a conviction for riot. Nevertheless, one can imagine, in view of some of the very ugly riots there have been in recent years, in this country as well, that there could be the occasional case where life imprisonment might be appropriate. It could be in a case where it is not possible to prove murder or manslaughter but where, nevertheless, death, serious unjury and dislocation of life occurs. I hope that the Government will therefore say that they have this right in the first place.
Lord Hutchinson of Lullington: I should like to support the amendment. I say straightaway to the noble Lord, Lord Renton, that if he were to look at appendix C on page 22 of the Law Commission Report he would see some very surprising statistics on the sentences that have been passed over the five years covered—the worst possible offences under the public order situation. Apart from the years covered there, the maximum sentence ever passed in common law was in the neighbourhood of seven years, and there is one of those. Otherwise, there are few of five years, and all the rest are under five years.
The Law Commission said, I suggest very wisely, that when deciding the penalties of public order offences, first, they should relate to the current practice in the courts in regard to similar or parallel offences and, secondly, that they should be assessed in relation to the evidence that is necessary to prove a conviction.
As far as affray is concerned there is no need for anyone to be present, mere threats are enough, and three years is the maximum. As regards violent disorder, which is more serious and involves a combination of people, threatening violence is

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sufficient, and five years is the maximum. When it comes to riot, which is the major disturbance with 12 or more people combining together, no one need actually be injured, no property need actually be damaged and there is no need for any offence such as grievous bodily harm or actual bodily harm, although they may of course arise in the course of a riot. The maximum penalty, I would suggest, and as the Law Commission says, should be less than for the most serious possible offence of causing grievous bodily harm and, of course, that of murder.
I suspect that life sentence was included in the Bill because of a certain sentence that was passed at the Central Criminal Court, a sentence which appeared to everybody who knew anything about the situation to be completely irrational and which, I understand, has been reduced, since the time when the Bill was before another place, to something like two years.
Lord Renton: Would the noble Lord care to confirm that the Law Commission's statistics on sentences awarded were all of them statistics for riot under the common law? May not the position have changed somewhat when the Bill comes into force because, instead of merely three people being enough to constitute riot under the common law, under the Bill no fewer than 12 people will have to be proved to have taken part, which surely alters the situation somewhat?
Baroness Macleod of Borve: I have always thought with regard to somebody going out to make a riot that, if he were given a deterrent in the shape of a very severe sentence, it might possibly deter him. One knows that it deters murderers. This has been proved: when they go out with a gun and kill somebody, afterwards they say that they wish they had never had a gun.
I feel that the maximum possible sentence should be included in the Bill because the judges in their wisdom will then impose whatever sentence they think right at the particular time for the particular offence. In view of the fact that 10 years is rapidly reduced to just over two years by the parole board, one realises that some of those who had gone out to take part in a riot would probably soon be out of prison to take part in yet another riot. I do not think that it would be fair on the judges to inhibit their sentencing to only 10 years. Like my noble friend Lord Renton, I am certain that the maximum penalty of life would hardly ever be imposed, but I feel very strongly that the judges should be able to impose it.
3.45 p.m.
Lord Harris of Greenwich: I was surprised to hear the noble Baroness, Lady Macleod, who was one of my colleagues on the parole board, give some rather unusual statistics a few moments ago. As I understood it, she said that a 10-year sentence could become two years as a result of some decision by the parole board; but, of course, that is entirely inconsistent with the present parole scheme. There is no way in which the parole board could make such a recommendation.
Baroness Macleod of Borve: I was talking perhaps slightly off the cuff and my mathematics were wrong.
Lord Harris of Greenwich: The Committee can be assured then that that problem will not present itself.
Secondly, if the parole board makes any form of recommendation, Ministers are entitled to disagree with it, and no doubt they would in appropriate circumstances.
I hope that the Committee will hesitate before providing another maximum sentence of life imprisonment. Primarily the life sentence is for people convicted of murder and, in some cases, manslaughter. In certain special circumstances, of course, a person who has been repeatedly convicted of arson can be sentenced to life imprisonment, and on some occasions people repeatedly sentenced for offences of rape will be given a sentence of life imprisonment.
Recently your Lordships' House decided—I think rightly, although I am bound to say that I hesitated at the time—that in certain cases the courts could impose a life sentence for an offence of trafficking in category A drugs. On balance, I think that we were right to do that. However, I hope that we are not going to move into a situation where, in order to demonstrate our disapproval of certain types of behaviour, we automatically accept the argument that the only way in which we can demonstrate that disapproval is to create a maximum sentence of life imprisonment.
There are, I think, real risks involved in this approach. In some cases, I think that there is a danger that in a curious way it almost trivialises convictions for the ultimate offence of murder. If we constantly add one type of offence to another for inclusion in the category for which courts can give sentences of life imprisonment, there is a risk that that would take place.
Lastly, I hope that the Committee will hesitate before overruling the Law Commission on this matter. The Law Commission examined this situation with considerable care and attention—indeed, my noble friend Lord Hutchinson dealt with this matter a few moments ago—and provided, I think, a very persuasive argument as to why 10 years was right. Obviously, it is for Parliament to make the final decision, but I am bound to say that at present I have heard nothing that would justify overruling the Law Commission in this matter. I therefore very much hope that the House will pass the amendment.
Lord Hylton: I would be grateful if the noble Lord the Minister would consider the following case, and I apologise for not having given him warning of it.
Let us assume that a riot takes place and that somebody is severely injured or killed and that some or all of those who were behaving riotously are arrested, but the person who did the killing or injury gets away scot free. Surely it would be a very great injustice if a sentence as severe as life imprisonment was imposed on those who were behaving in a riotous manner but the actual killers or those who inflicted injury were not apprehended.
Lord Somers: With the greatest possible respect to the noble Lords who have put their name to this amendment, and that is not merely formal praise because I do have the very greatest respect for them, I find myself practically in total agreement with what

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has been said by the noble Lord, Lord Renton. In view of the present record of absolutely unbearable violence, including outrageous attacks on the elderly and the infirm, I cannot think that any desire to be kind to the criminal is any longer justifiable. I should have had some reason to think the amendment tolerable if it had mentioned a term of not less than 10 years—I know that that is not usual in our legal practice—but I cannot think that anything less is really suitable for the offences that one comes across today.
The Earl of Halsbury: May I ask the noble Lord the Minister in his reply to clarify the following point. If this amendment were allowed, what sanction would the courts have against the persistent offender, the bully-boy, the rent-a-mobster and the nasty brigade who make this their practice?
Lord Boyd-Carpenter: Following on that point, may I ask this specific question of my noble friend: If this amendment were adopted, would a second offence of riot also carry a sentence limited to 10 years? Your Lordships know that there are people in our society who are deeply involved in this kind of thing. Your Lordships could well envisage a case where someone is convicted and sentenced to 10 years imprisonment and, thanks to the parole board—here I take up the point of the noble Baroness—he is released well before the end of that 10 years and commits a second offence. If this amendment is accepted, for the second offence of riot would the court similarly be restricted to the imposition of only 10 years?
Perhaps I may make a final comment. One knows that there are certain organisations in this country, notably the National Council for Civil Liberties, who want to whittle away a good many of the strengths of this Bill, and the penalties that it imposes. I myself should be very disappointed if, on our first series of amendments, we started that process.
Lord Glenarthur: As the noble and learned Lord, Lord Elwyn-Jones, explained, supported, as he was, by the noble Lord, Lord Hutchinson of Lullington, 10 years was the maximum sentence recommended for riot by the Law Commission, and the Government accepted that recommendation in the White Paper that was published last May. We did so in the knowledge that the recommendation was in line with current sentencing practice as set out in Appendix B to the Law Commission's report. However, as the noble Lord, Lord Hutchinson of Lullington, has indicated, in November last year a sentence was passed at the Old Bailey which suggested that a 10-year maximum might not be in line with current sentencing practice. That sentence was a life sentence passed on a Chelsea football fan.
The sentence was made the subject of an appeal and the Government thought it right to keep the position open pending the hearing of that appeal. For that reason the proposed maximum sentence for riot which appeared in the Bill on its introduction in another place was life imprisonment; but we made it clear then, and I am certain that I made it clear at Second Reading and at other stages' of the Bill, that the Government had an open mind on the subject, and that we wanted to study with care the judgment of the Court of Appeal and listen to the views expressed in
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Parliament before coming to a final decision. The Court of Appeal heard this particular case on 19th May and the sentence for riot in this case was reduced to three years.
My noble friend Lord Renton was particularly concerned with the specific harm that might arise for any particular offence. I can assure him that if there is evidence of specific difficulty in cases of grievous bodily harm, arson, criminal damage with intent to endanger life and that sort of offence, then life imprisonment will still be available as it is covered by another statute. I think that answers the point raised by the noble Lord, Lord Hylton, as well.
My noble friend Lord Boyd-Carpenter raised the question of second offenders. It would be a matter of 10 years being available every time and not a greater amount because it is a second offence. At Second Reading, a number of noble Lords urged us to return to a maximum of 10 years, and whilst I accept the strong arguments that have been put by the noble Lord, Lord Somers, and by my noble friend Lady Macleod, that there is some feeling on this issue, in the light of the Court of Appeal's recent judgment and the views that have been clearly expressed, both here and in another place, we believe that 10 years is the right maximum sentence for riot. Therefore I am happy to accept the amendment of the noble and learned Lord.
Lord Elwyn-Jones: I am grateful to the noble Lord for taking the view that he has so firmly expressed. I am bound to say that I was surprised, if not appalled, by some of the remarks that have been made. If a murder or a wounding has occurred in the course of a riot, then of course the police will seek out the offender and try him for those offences, which can carry a life sentence. Of course that will be the procedure that will be followed. The noble Lord, Lord Boyd-Carpenter, does not love the parole board, does he? It is a hypothetical situation. As the noble Lord, Lord Harris of Greenwich, has said, when a 10 year sentence has been passed, the idea of release after two years and a quick return to riotous behaviour is so fanciful and unreal that it ought not to disturb your Lordships.
Lord Boyd-Carpenter: If the noble and learned Lord will allow me, is he really saying that in the case of a second serious offence of riot he feels that, even then, the sentence should be 10 years or less?
Lord Elwyn-Jones: I feel that the term of 10 years for riot, even in the case of a second offence, is the right sentence. Ten years is 10 years is 10 years. It is not a small, trivial term that can be readily laughed off. I think that the Committee has a responsibility to give responsible advice in this difficult field. With very great respect, the recommendation of the Law Commission was considered with great care by a distinguished body, which is not famous for taking less than full responsibility. I support that recommend-dation, coupled with the practical arguments that have been made, that life imprisonment should be reserved as the special, severest penalty the law can provide. We have abolished the death penalty, and the sentence of life imprisonment, as has been said, should not be diminished in significance by being used for something less than the most grievous form of crime.
Lord Renton: Your Lordships will no doubt accept the advice given by my noble friend Lord Glenarthur. Perhaps I may say that in the light of his comments I, too, accept his advice, but I express the hope that there will not be serious riots in which death and injury take place and the offenders cannot be found. In the riots, the deaths and injuries that occur will no doubt have been caused by those who started the riots.
On Question, amendment agreed to.
Clause 1, as amended, agreed to.
Clause 2 [Violent disorder]:
[Amendments Nos. 3 to 5ZA not moved.]
Clause 2 agreed to. Clause 3 agreed to.
Clause 4 [Fear or provocation of violence]:
[Amendments Nos. 5A to 6 not moved.]
4 p.m.
Lord Plant Lord Plant moved Amendment No. 7:
Page 3, line 15, leave out from ("another") to ("or") in line 18.
The noble Lord said: The law as it stands with regard to threatening, abusive and insulting behaviour is contained in Section 5 of the Public Order Act 1936. It stands on two legs and is stated in relatively unequivocal terms. One leg demands an intent to cause a breach of the peace, while the other focuses on the consequences of the behaviour rather than the state of mind of the perpetrator—that is,
"whereby a breach of the peace is likely to be occasioned".
I suggest that it is on this latter leg that the great majority of arrests and prosecutions are based. That suggestion is supported by the High Court judgment in Parkin v. Norman 1982, which clearly states inter alia:
"It is not necessary to prove an intent to use threatening, abusive or insulting words or behaviour".
That briefly is the existing state of the law.
A close look at the combined effects of Clauses 4, 5 and 6 of the Bill will show, I suggest, a subtle but dramatic change in the burden of proof for offences of disorderly behaviour. Clearly the intent or the state of the offender's mind must be proved in order to substantiate an offence under Clause 4. I recognise that the Government are anxious to maintain what is fashionably called a balanced view, but I suggest that the balance has been tilted too far in favour of the defendant against the needs of an orderly, peaceful society.
Clause 4 states:
"A person is guilty of an offence if he"—
and the conduct is then outlined, followed by what we see as the gravamen of the argument:
"with intent to cause that person to believe that immediate unlawful violence will be used against him or another by any person, or to provoke the immediate use of unlawful violence by that person or another, or whereby that person is likely to believe that such violence will be used or it is likely that such violence will be provoked".
A constable will be required to show and to prove one of two impossibles: either what was in the mind of the offender or what was in the mind of the victim. The legal niceties are fine when presented in the calm
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atmosphere of a court room or a debating chamber, but in the rough and tumble of a disorderly or violent situation on inner-city streets they can only present a massive obstacle to a young constable doing his best to keep the peace.
The necessity to show what was in the mind of the offender is reinforced by Clause 6(3). That states, in some of the plainest language of the Bill:
"A person is guilty of an offence under section 4 only if he intends his words or behaviour, or the writing, sign or other visible representation, to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting".
I stress the words:
"only if he intends",
and,
"or is aware that it may be".
Plainly that, coupled with the wording of Clause 4, will definitely rob the police of this country of one of their most useful weapons in their fight to maintain the public peace and to deal with disorder. The purpose of the amendment is to attempt to preserve the present situation. I beg to move.
Lord Gifford: It may be convenient if I speak to Amendment No. 9, which also seeks to reduce the long-windedness of Clause 4 in a slightly different way. Although the noble Lord, Lord Plant, and I have had differing views over many matters relating to public order, I think that we agree on this. It is essential that a clause like this, which will be operated day after day, both by police officers on the streets and by magistrates in magistrates' courts, should be clear in its terms.
We have Section 5 of the Public Order Act 1936, which has been operated for many years and which is much clearer in its terms. It says quite simply that it is an offence to use,
"threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned".
Those words have been interpreted by magistrates in case after case, because this is a most important small-scale public order offence.
Now we are to substitute for that a much more complex provision in Clause 4(1) of the Bill. There are four quite separate alternative ingredients in the offence. The first two have the element of intent and so to some extent replicate the old law. The last one,
"or it is likely that such violence will be provoked",
to some extent replicates the second limb of the existing law. The third one, which my amendment would remove, introduces new criteria—
"whereby that person is likely to believe that such violence will be used"—
which I submit would be wholly unworkable in the ordinary rough and tumble of the situations for which the provision is designed, as the noble Lord, Lord Plant, said.
Exactly which of the proposed amendments is right—and there is another one in the name of the noble Lord, Lord Foot—I am not quite sure. But I hope that the Minister will agree to look at them all to see whether we can at the end of the day simplify what is a quite unnecessary, convoluted clause. It is much more complicated than the one proposed by the Law Commission in its draft Bill, and if it is not amended,

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improved, streamlined and clarified, it will cause enormous difficulties for magistrates' courts up and down the country.
Lord Hutchinson of Lullington: Perhaps I may add a word or two on these amendments before referring to Amendment No. 10, which stands in my name and in the names of my noble friend Lord Foot and the noble Lord, Lord Mishcon. I have a lot of sympathy with the difficulties of the noble Lord, Lord Plant, in relation to what the police will have to do when faced with disorder on the streets. We would seek to remove in due course those words which involve the term "is likely to believe". When there is a phrase such as:
"whereby that person is likely to believe that … violence will be used or it is likely that such violence will be provoked",
it requires an entirely subjective judgment by the police and by the court that has to try the matter later. Our view is that those words in Clause 4 are directly bound up with similar words used in Clause 5.
Our view about the two clauses is that words which are so broad and so vague as those should not be in a clause which carries imprisonment as a penalty. We see that there is a point in using those words in regard to an offence which is only triable summarily and for which the penalty is only a fine, for quick justice in magistrates' courts where it will not perhaps matter so significantly if such broad phrases are used. The two clauses lie together.
If I were to move my Amendment No. 10, I should do so with a view to Amendment No. 13 being considered in due course. That gives me the opportunity to say to the Committee that Amendment No. 13 is one of a number of amendments which have been put down in relation to Clause 5 for the improvement of that clause, if it is capable of improvement.
The intention is clearly expressed on the Marshalled List that certain noble Lords will in due course oppose the Question that Clause 5 shall stand part of the Bill. In a desire to save time, and in view of what has been said in relation to the time taken in Committee on Bills that come before us, we intend not to move those amendments which try to improve Clause 5—I say that because Clause 4 goes with it—because all those matters will be subsumed in the debate which the Committee will have on whether Clause 5 shall stand part of the Bill.
I hope that the Committee will appreciate that the intention is merely to ask. Members not to rehearse the arguments on specific matters in Clause 5 which merely make Clause 5 an unviable clause in total, so that the whole discussion can take place at one time. I do not intend to move Amendment No. 10.
4.15 p.m.
Lord Foot: I wonder whether I may say a few words in support of my noble friend Lord Hutchinson. I also think that it would be convenient if we also consider Amendment No. 10, which stands in his name and mine. All the matters spoken to by the noble Lord, Lord Plant, and others and this matter are all part of the same issue.
Clause 4 replaces Section 5 of the Public Order Act 1936. Clause 4 and the 1936 Act deal with behaviour
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of one kind or another which is threatening, abusive or insulting. Under the 1936 Act it is necessary to prove one of two things: first, that there is an intent to provoke a breach of the peace; or, regardless of intent, the conduct is such that a breach of the peace is likely to be occasioned.
Clause 4 gets rid of the breach of the peace test and substitutes a test of whether the conduct complained of is aimed at a particular person, and, secondly, whether it is intended to cause that person to believe that violence will be used against him or some other person, or is intended to provoke the use of unlawful violence by that person or another.
The purpose of the new test provided in Clause 4, by eliminating the breach of the peace element from consideration, is much to be preferred. One can easily think of circumstances in which unacceptable threatening words or behaviour occur without there being any likelihood of there being a breach of the peace. It has long since been recognised, as I understand it, that the 1936 Act is defective in that regard. It makes the only test whether there is likely to be a breach of the peace. Clause 4 does not stop there. It goes on to provide that it shall also be an offence if the threatening behaviour is such that the person against whom it is directed is likely to believe that such violence will be used.
Those are the words to which everyone who has contributed to this debate object. They are new. They require the court to consider whether the behaviour was likely to lead to unlawful violence or the fear of unlawful violence and likely to provoke such unlawful violence—essentially objective tests—and in the absence of sufficient proof of intent to consider what the effect of the behaviour was likely to be on the mind of the person or persons against whom the behaviour was directed. That is, as my noble friend said, a highly subjective test. It imposes an almost intolerable burden on the courts. It introduces a new element of uncertainty. It extends the court's inquiry not only into the state of mind of the accused person but also into the effect on the mind of the person against whom the behaviour was directed.
There is no need for the inclusion of such a provision. The difference between Clause 5 and Clause 4 is that in Clause 5 an offence of using insulting, abusive or threatening behaviour is created which is complete without any proof of intent on the part of the person engaged in that behaviour.
If we were to eliminate from Clause 4 the words to which objection is taken, under Clause 4—the much more serious offence—there would be an obligation on every occasion for the prosecution to prove to the satisfaction of the court that there was a guilty intent. In cases where that could not be sustained, it would be open to the prosecution to charge a person under Clause 5. In that event the test is purely objective and has nothing to do with the intention in the mind of the alleged offender.
I hope that it may be possible for us to dispose of the whole of this matter on that basis, so that when we come to Amendment No. 10 I can agree with my noble friend that it should not be moved.
Lord Renton: I hope that it will not distress noble Lords opposite if I say that I am in some measure of agreement with them.
Noble Lords: Hear, hear!
Lord Renton: It seems to me that, although the intent behind Clause 4 is sound and good, it is going to cause trouble, especially in the magistrates' courts. Those conducting the prosecution on behalf of the police will find themselves in a position that is not entirely unusual of having to prove either the intention of the alleged offender or the likely effect upon the mind of the intended victim. It is not entirely unusual for either of those things to have to be proved in court under various provisions of existing law. But when one tries to unravel the formula contained in lines 14 to 19 of Clause 4, one can see that lay people especially, and indeed sometimes lawyers, will have a good deal about which to argue.
My plea therefore to my noble friend on the Front Bench is to take this away, to consider all that has been said, and to see whether he cannot get the formula simplified by the draftsman between now and the Report stage.
Lord Silkin of Dulwich: I hope that the noble Lord, Lord Renton, will not feel aggrieved if I say that I agree entirely with all that he has said. It seems to me that where the draftsman has fallen into pardonable error is that he has tried to bring everything into the clause that he could think of, to cover all possible events that could conceivably happen. In doing so—it is entirely praiseworthy—he has made the clause extremely difficult either to construe or to operate in practice. Although noble Lords from this side of the Committee spoke, as usual, with great clarity and lucidity, they made me feel that if I was a member of a bench of magistrates, seeking, in a particular case, to dissect the facts in the light of the views that they have expressed as to the meaning of the clause, as it now stands, I would have very great difficulty.
Accepting that the draftsman had a purpose in adding these extra pieces to subsection (1), I agree with the suggestion of the noble Lord, Lord Renton, that the Minister should look at the clause again to see whether there is a way of effecting the purpose of the draftsman without the complications that the clause undoubtedly now contains.
Lord Denning: I can understand the desire to improve Section 5 of the 1936 Act, which talks about insulting words and so on likely to cause a breach of the peace. This clause is a very good attempt to get the matter clear. On the other hand, it is not perhaps as clear as it should be. I agree that it would be better if the clause was reconsidered because of the difficulties of the prosecution, sometimes, in proving the likelihood of what a person believes or not. I support the view that the clause should be taken back and reconsidered.
Lord Monson: There is little that I can add to the criticisms already made. I agree with everything stated by my noble and learned friend Lord Denning, by the noble Lords, Lord Renton and Lord Foot, and by the noble and learned Lord, Lord Silkin, in relation to the matter.
Lord Glenarthur: It appears from what I understood to have been the arrangements on grouping, reached
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through the usual channels, that there have been some changes. In responding now to Amendment No. 7, I believe that it is the feeling of the Committee that I should respond also to Amendments Nos. 9 and 10 and that the noble Lord, Lord Hutchinson, will not be moving Amendment No. 13 as that would be subsumed in the Question whether Clause 5 shall stand part.
Lord Hutchinson of Lullington: I shall not be moving that amendment.
Lord Glenarthur: I am grateful. I shall therefore cover a certain amount of ground. The noble Lord, Lord Plant, has explained his concern that Clause 4, which is intended to be a restatement of the existing offence of threatening behaviour, was becoming unduly complicated. That was the burden, too, of remarks made by other noble Lords recently. The noble Lord went on to say that the police would find it more difficult to understand than the offence in Section 5 of the Public Order Act 1936 which it is designed to replace. I can understand his concern, but I am afraid I do not believe that his amendment would help matters. Indeed I fear that it would significantly reduce the usefulness of the offence to the police. I do not believe that this is what he wishes.
In seeking to shorten the wording of Clause 4(l)(b), the noble Lord's amendment deletes certain elements of the offence which must be retained if Clause 4 is to have broadly the same scope as Section 5 of the 1936 Act. Clause 4 seeks to cover a wide range of situations, and in taking, really, his axe to it in this case the noble Lord, perhaps unwittingly, would cause severe damage to its scope. His amendment, if carried, would exclude the situation in which a defendant taunts the police and this leads his associates to attack the police. It would exclude the defendant who hurls threats, abuse or insults at someone with intent to provoke him into violence, although the recipient in fact remains unmoved, and it would exclude the situation where the defendant's aggressive conduct is likely to cause fear of violence in the recipient.
I now turn to Amendments Nos. 9 and 10. As the noble Lord, Lord Hutchinson, has explained, his amendment would delete the tailpiece of Clause 4(1) which is the likelihood limb of the offence. Prosecutors would be required to prove that a defendant's conduct was intended to cause fear of violence or to provoke someone into violence. This would seriously weaken the offence. It is often possible to show that violence is likely to result if someone persists in aggressive behaviour; it is less easy to prove that that was necessarily the defendant's intent. The defendant may not have given much thought to the likely consequence. But if violence is the likely consequence of his threatening, abusive or insulting behaviour, we believe that he should be guilty of an offence. For him to be found guilty under Clause 4, that means retaining the likelihood limb of the offence.
In couching Clause 4 in terms of intent or likelihood we are not, as I am sure the noble Lord realises, breaking new ground. Clause 4 is modelled on Section 5 of the Public Order Act 1936, which penalises threatening behaviour which is intended or likely to occasion a breach of the peace. Section 5 was, in turn, modelled on Section 54(13) of the Metropolitan Police

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Act 1839, which penalises threatening behaviour with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned. Certainly, the likelihood limb of the offence has a long pedigree, and I am not convinced that it has led to injustice.
What has sometimes led to injustice has been the rather loose interpretation on occasion of what constitutes a breach of the peace. We took to heart the Law Commission's strictures that breach of the peace should no longer be an ingredient of a modern statutory offence. The result is the rather more complicated wording about fear of provocation of violence of which the noble Lord, Lord Plant, complained. But I hope that the noble Lord, Lord Hutchinson, will give us credit at least for spelling out in clearer terms the conduct which is prohibited by this offence, and that he might accept that with this classification of what constitutes a breach of the peace, it is justifiable to retain the likelihood limb of the offence.
The noble Lord, Lord Gifford, follows the noble Lord, Lord Hutchinson, some way down the same path. He would like to delete the likely limb of the offence in so far as it relates to the victim of the threatening behaviour being likely to fear that violence will be used. Again, this would represent a significant weakening of the offence. This limb of the clause is intended to protect those who are subject to fearsome insults or abuse and who are not provoked into fighting back but are frightened and believe that they themselves are about to be attacked. An example would be a gang of youths hurling racialist abuse at an Asian woman who is most unlikely herself to respond with violence. But if the abuse is sufficiently threatening, or if the area has a history of racial attacks, she may well fear that the taunts will be followed by violence.
Another example would be workers running the gauntlet of shouting pickets. Where the strike breakers are heavily outnumbered they are most unlikely to respond with violence; but if the pickets are sufficiently numerous and threatening, that may well cause them to fear violence. In either case we believe that the law should enable the police to intervene, but they would be powerless to do so under Clause 4 if the amendment of the noble Lord were to be accepted.
Lord Gifford: Would not both those examples be covered by either the first limb—the intent to cause a person to believe that immediate violence is going to be used against him—or the "likelihood" limb in the last clause? Does not my amendment in fact pick out the one difficult area which is not necessary without jettisoning the "likelihood" test?
4.30 p.m.
Lord Glenarthur: I do not think it does. I shall reflect upon the words of the noble Lord, if I may. But both the noble Lord, Lord Foot, and the noble Lord, Lord Gifford, objected to the element whereby that person is,
"likely to believe that such violence will be used".
If we excluded those words, we would exclude threatening behaviour which intimidates another. The Law Commission report stated in paragraph 5.17:
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"Section 5 does not cover conduct which intimidates another, and it is that conduct which we think should be clearly stated to be a criminal offence".
I note the concern that other noble Lords have expressed, supported by the noble and learned Lord, Lord Denning, that this is complex. I agree that it is. It is what we believe the police require. I hope that this will also help the noble Lord, Lord Renton. I shall certainly consider whether or not we can make it any shorter. I believe that the policy is valid. We are trying to help the police here and to right what might otherwise be a very serious mischief. I cannot give my noble friend an unqualified assurance that we shall be able to improve it. I shall certainly look at it and see what can be done. I hope that in the light of that the noble Lord will not feel it necessary to press his amendment.
Lord Denning: May I add one word. Having heard what my noble friend Lord Glenarthur has said I have come round quite a lot. It may be very necessary in regard to an apprehended breach of the peace to consider the "likelihood", especially with regard to the person who is intimidated. There may not be any better words for doing it. This is a genuine attempt to meet a difficult situation by the law.
Lord Hutchinson of Lullington: May I ask the Minister this question before he finally sits down? Does he agree—and will he look into the matter when he considering this part of the clause—that one of the ridiculous outcomes of the wording at the moment is that someone could be convicted of this offence when the person does not believe that there will be any violence at all?
Lord Glenarthur: I wonder whether I may roll that up in my consideration as to whether or not the clause could be shortened? I shall certainly look at that point. I do not believe that that is the effect, but I shall study it with great care.
Viscount Colville of Culross: I wonder whether my noble friend in his consideration will address his mind to the interrelationship that I think the noble Lord, Lord Hutchinson mentioned, with Clause 6(3). It is not only the primary intent of the offender—although that has been very fully explained, and 1 quite understand and agree with the noble and learned Lord, Lord Denning, that we have to go further than that. We then get into the situation about "likelihood", which primarily depends upon somebody else thinking that something is going to happen. It may be the policeman or the Asian lady, or whoever. They will not respond themselves; nevertheless they think that what is happening may cause violence somewhere else.
One then goes on to the "awareness" test, which I appreciate is the restatement of recklessness in Clause 6(3). On the "likelihood" limb one has two different mental ingredients, as I understand it. One has the victim—or somebody who anticipates that somebody else will be a victim of violence—on the one hand, and also the offender himself, who has to be reckless about what will happen. This burden of proof has to be explained to the magistrates. I think that it ought to be made a little clearer in the Bill, before it finally goes on the statute book, as to how it will work. I do not

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disagree with my noble friend that we are covering the right material here; but it is the combination of these two which seems to me to be likely to cause as much difficulty as anything else.
Lord Foot: May I make one point in support of what the noble Viscount, Lord Colville, has been saying. It seems to me that under Clause 4 as it is drawn at the present moment the offence which is dealt with there can be committed in two ways. One way is if a party which has intent to cause the person to believe that immediate unlawful violence will be used then uses language or behaviour of the kind which is prohibited here. That part of the clause creates an offence which is absolutely dependent upon there being a wrongful intent on the part of the offender. But when one goes to the test,
"whereby that person is likely to believe that such violence will be used",
it appears to me that the whole criminal intent has been eliminated and one has an offence which occurs regardless of the intent on the part of the alleged offender.
As the noble Viscount, Lord Colville, has pointed out, when one turns to Clause 6(3) one sees the remarkable statement that there cannot be any offence under the clause unless the person is proved to have had a guilty intent. I imagine that Clause 6(3) was probably amended at some stage in the other place and that that is the reason why we have this apparent contradiction. I hope that the noble Lord will be able to look at that.
Lord Silkin of Dulwich: I want to add only one word. I am grateful to the noble Lord, Lord Glenarthur, for agreeing to look at this again, with a view to shortening it, as the noble Lord said. I would sooner say that it be with a view to clarifying it.
I seems to me, as I said in my earlier remarks, that the draftsman may be quite right in wishing to cover the situations, but what he has done is to make it difficult to follow. If the noble Lord can find a way in which, for example, the intent referred to by the noble Lord, Lord Foot, as opposed to the latter part of subsection (1), can be distinguished so that they do not cause confusion, then a few extra words will be worthwhile.
Lord Glenarthur: Of course I shall do my best to clarify as well as shorten. I shall also look at the point of my noble friend Lord Colville about the relationship between this clause and Clause 6(3).
Lord Plant: I have listened very carefully to what the noble Lord the Minister has said. I understand that he will be reflecting on many of the points that have been put to him. There is a good deal of feeling running through this amendment and the consequences of it. Quite clearly it will be wrong for me to press the amendment at this stage. I want to read as carefully as possible what the noble Lord the Minister has said. I think some of it is extremely important. He said that the police require the powers mentioned in relation to the amendment which I have moved. My amendment has been agreed with the Police Federation and so they
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want it. Therefore, I would cross swords with the Minister on that issue. However, I shall beg leave to withdraw the amendment. I shall not press it at this stage, but I reserve my position as regards later stages.
Amendment, by leave, withdrawn.
[Amendments Nos. 8, 9 and 10 not moved.]
On Question, Whether Clause 4 shall stand part of the Bill?
Lord Hylton: I should just like to raise a small point. In both Clauses 4 and 5 an exception is made which says that no offence is committed where the acts take place within a dwelling. I should like to ask what is the reasoning behind that exception, and why it says inside a dwelling and not inside a building? It seems to me that the situation may be rather worse where the behaviour takes place inside a private house or flat as compared with some other kind of building.
Lord Glenarthur: I shall endeavour to answer the noble Lord's point. Clause 8 contains the definition of a dwelling, and if the noble Lord refers to that clause on page 5 of the Bill I hope that he will find that the position is elucidated.
Clause 4 agreed to.
Clause 5 [Harassment, alarm or distress]:
Lord Monson Lord Monson moved Amendment No. 10A:
Page 3, line 33, after first ("or") insert ("seriously").
The noble Lord said: I must first apologise to the Committee for not having been present when Amendments Nos. 5A and 5B were called. Like a number of other noble Lords, I was engaged in acquatic pursuits at the time and we were running a little late. However, no doubt if this amendment is agreed to we can extend the same principle to Clause 4 when we return to it at the next stage of the Bill. I should also like to speak to Amendment No. 11 A, and I should like to touch upon Amendments Nos. 56A, 56E and 56H although it will probably be sensible to return to them next week because I understand that we shall not be dealing with Part III of the Bill until next week.
The purpose of Amendments No. 10A and 11A is self-evident. I imagine that 99 per cent. of us would agree on what is threatening and on what is abusive. On the other hand, what people consider to be insulting is extremely subjective. I gave a number of instances on Second Reading, and I shall not bore the Committee with them again today except to remind you that quite recently it appears that a number of people were quite gravely insulted by a photograph of the Labour parliamentary candidate for Fulham with his wife and children which appeared in an election address. That was considered to be grossly insulting to homosexuals. Therefore, nowadays people are insulted by very strange things.
As people can be sent to prison if convicted for offences under Clauses 4 and 5—and indeed the later clauses which I mentioned—it is extremely important that they should not risk being sent to prison for what most people would consider an extremely trivial insult. Therefore the reason for suggesting the insertion of the word "seriously" is to make clear that

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it is an insult which most normal people would regard as a genuine insult and not something trivial. I beg to move.
4.45 p.m.
Lord Glenarthur: The noble Lord has argued that "insulting" is a weak word, unlike "threatening" or "abusive", and that it needs to be qualified before it can be allowed as one of the elements in the low-level public order offences in Clauses 4 and 5, or as one of the elements in the offences of incitement to racial hatred in Part III of the Bill, which we shall reach before too long.
The noble Lord suggests that while "threatening" or "abusive" can be left unqualified, no prosecution should be brought in relation to insulting words or behaviour unless it can be shown that they were "seriously insulting".
The approach adopted by the higher courts has consistently been that the words "threatening", "abusive" or "insulting" are, as Lord Chief Justice Parker emphasised in Jordan v. Burgoyne, "all very strong words", which do not require further elaboration. Lord Reid made the same point in Brutus v. Cozens when he said:
"Vigorous and it may be distasteful or unmannerly speech or behaviour is permitted so long as it does not go beyond any of these limits. It must not be threatening. It must not be abusive. It must not be insulting. I see no reason why any of these should be construed as having a specially wide or specially narrow meaning. They are limits easily recognisable by the ordinary man".
Words or behaviour which are rude or offensive are not necessarily insulting. In the Jordan case which I mentioned Lord Chief Justice Parker said that "insult" was used in the Public Order Act in the sense of "hit by words", which is what I believe the United States case law refers to as "fighting talk". It has to be distinguished from the strong expression of one's own views and criticism of opponents and their policies. Annoyance is not a reaction sufficient to justify describing the cause of the annoyance as "insulting". I could continue to refer to another quotation, but I think that I had better leave it there.
I hope that I have been able to persuade the noble Lord that "insulting" has always been interpreted by the courts as a strong word, but that it does not mean merely rude or annoying; and that it does not need to be qualified by "seriously" in the Bill. I hope that the noble Lord will withdraw his amendment.
Lord Monson: The case' histories referred to by the noble Lord, Lord Glenarthur, give me some confidence. I must say that I should have thought that something which was strongly insulting in the way that he suggests the word is normally interpreted would also tend to be abusive as well; but perhaps there is some fine distinction which eludes a layman like myself. In view of what the noble Lord has said and in the absence of any comment from any other quarter of the Committee, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 11 and 11A not moved.]
The Deputy Chairman of Committees (Lord Nugent of Guildford): Before calling Amendment No. 12, I
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should explain to the Committee that if that amendment is agreed to, I shall not be able to call Amendment No. 13.
Lord Plant Lord Plant moved Amendment No. 12:
Page 3, line 37, leave out from beginning to ("harassment") and insert ("likely to cause").
The noble Lord said: In reality, this clause owes its origin to a vain attempt by the Government to deal with the type of behaviour outlined in paragraphs 3.22 to 3.25 of their White Paper of last year. Paragraph 3.22 says:
"Instances of such behaviour might include: hooligans on housing estates causing disturbances in the common parts of blocks of flats, blockading entrances, throwing things down the stairs, banging on doors, peering in at windows, and knocking over dustbins; groups of youths persistently shouting abuse and obscenities or pestering people waiting to catch public transport or to enter a hall or cinema; someone turning out the lights in a crowded dance hall, in a way likely to cause panic; rowdy behaviour in the streets late at night which alarms local residents".
Paragraph 3.23 says:
"Concern over hooliganism of this kind has frequently been expressed at meetings held under the new police consultative machinery. The Government believes that the police should have adequate powers to control this sort of behaviour. This control is particularly needed when the behaviour is directed at the elderly and others who may feel especially vulnerable, including members of the ethnic minority communities. These people may not only feel unable to take action themselves to remove the nuisance, but may also be intimidated by the disturbance from taking part in activities in which they have every right to engage, or indeed from leaving their houses at all. The Government is concerned that the law should provide sufficient protection for those in this position".
Paragraph 3.26 of the White Paper says:
"The main elements of a new offence intended to cover disorderly conduct which falls outside the scope of section 5 as amended might be as follows: (a) threatening, abusive, insulting or disorderly words or behaviour in or within view of a public place; (b) which causes substantial alarm, harassment or distress.
"It is not easy to define the offence in a manner which conforms with the normally precise definitions of the criminal law, but which at the same time is sufficiently general to catch the variety of the conduct aimed at. The Government recognises that there would be justifiable objections to a wide extension of the criminal law which might catch conduct not deserving of criminal sanctions. For this reason the offence contains the safeguard that the behaviour must actually cause someone to feel alarmed, harassed or distressed (not that it is merely likely to do so). Any degree of annoyance or disturbance will not suffice: because the offence would be concerned primarily to protect the weak and vulnerable, the proposed definition requires evidence that the victim suffered substantial alarm, harassment or distress. The Government would welcome comments on the suggestion that a new offence on the lines described above should be created, and whether any further mischiefs or safeguards should be incorporated into it. If there were to be such an offence, it would not seem necessary for it to carry a specific power of arrest, and a sufficient maximum penalty might be a fine of £100".
It is apparent that the type of conduct which the Government are seeking to control, judging from their concern as expressed, is mainly rowdyism which causes alarm, harassment or distress. I stress the word "causes" because it is the consequences of certain behaviour that they are seeking to control, not the state of mind of either the offender or the victim. I suggest that the less than clear wording of this clause requires the importation of some independent evidence from that person likely to be caused harassment. Fear of court procedures—and worse, fear of reprisals—will, I suggest, have a serious deterrent effect upon elderly or weak victims in providing the necessary independent evidence.
The simple amendment proposed would have the effect of removing unambiguously the necessity for independent evidence to be adduced, which would give a great deal of reassurance to the elderly, the weak and the vulnerable. I beg to move.
Lord Denning: I have a good deal of sympathy for this proposal, especially when one considers Clause 6(4), which provides that a person is guilty of an offence by intent. In those circumstances, it seems to me that it is unnecessary to have the actual person who is caused distress. Without the amendment, the clause reads:
"within the hearing or sight of a person likely to be caused harassment".
It might be said that that person has to be called to give evidence. I think that would be undesirable in the case of old or infirm people who might be rather afraid to give evidence. Surely it would be sufficient to state,
"likely to cause harassment, alarm or distress".
I should be quite content to let the amendment be and to remove those words from the clause.
Lord Glenarthur: The noble Lord's amendment would delete the requirement of a victim. That was inserted on Report in another place, as I am sure the noble Lord will recall. The burden of the remarks of the noble Lord, Lord Plant, suggests that he feels this would complicate the task of the police, that it would make the offence harder to prove and that it would require the victim to come to court to give evidence. That would undermine prosecutions because many victims would be reluctant to give evidence and thereby run the risk of further persecution.
With respect to the noble Lord, that is precisely why we did not go quite so far in another place as some people would have liked us to go and why we stopped short of requiring proof of actual alarm, harassment or distress. The clause merely requires that there is someone within sight or hearing who is likely to be caused harassment, alarm or distress. That will not oblige the prosecution to produce such a person in every case, but the prosecution must identify in each case who was likely to be harassed, alarmed or distressed. I hope that to some extent that is an answer to the noble and learned Lord, Lord Denning.
It will not be enough for the magistrates to feel that they would themselves have been alarmed or distressed or that someone else might have been, if present at the scene. They must ascertain who was there and whether that person (or persons) was likely to be alarmed, harassed or distressed by the defendant's conduct. There is no need for independent evidence of a witness, other than the police, in Clause 5 as drafted. That is why we have retained,
"a person likely to be caused harassment"
etc., which were the words suggested by the noble and learned Lord, Lord Denning.
We do not believe that it is unduly burdensome for the prosecution to do what is suggested. The Association of Chief Police Officers is satisfied with the revised formulation of the offence. I am sorry that the Police Federation, in which I know the noble Lord, Lord Plant, has an interest, is still unable to accept it.
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We are not prepared to remove the requirement for a victim, which we regard as a significant improvement to the offence. It is an important new safeguard which should help to quell any remaining fears that the disorderly conduct offence is a revival of "sus". Remarks like that have certainly been made at various stages throughout the passage of the Bill and I hope that what has been said will quell that particular concern. I hope the noble Lord will understand the force of what has been said and will feel able to withdraw his amendment.
Lord Plant: I thank the Minister for that explanation. I cannot be overjoyed at what he has said. I still think my amendment is right, but in view of the comments that have been made I shall not proceed with the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman: Before calling Amendment No. 13, I should explain that if Amendment No. 13 is agreed to I shall not be able to call Amendment No.14A.
[Amendments Nos. 13 and 14 not moved.]
5 p.m.
Lord Monson Lord Monson moved Amendment No. 14A:
Page 3, line 38, after ("or") insert ("acute").
The noble Lord said: This is by way of a compromise amendment between Amendment No. 14, which to my surprise is not being moved, and the Government's own position, which is presumably to leave the Bill exactly as it is. In my view, harassment and alarm, even without any qualification whatsoever, are quite serious and unpleasant things to be on the receiving end of. I strongly back the Government in their presumed view that there is no need to weaken or qualify those words in any way.
Distress is a very different matter. It is rather like insult. People can be distressed by what other people consider to be quite trivial matters. A person of puritanical disposition might be distressed by somebody wearing a rather rude T-shirt. Other people might be distressed by somebody wearing a T-shirt with a political slogan on it which is very much contrary to their point of view. That is the reason for the proposed insertion of the word "acute" before "distress". I use "acute" rather than "serious" because it seems to me to be better English, but I am not wedded to that word and if the Government consider that "serious" is more appropriate in a statute, that is fine with me. The intention is that, for the subsection to operate, the stress caused would have to be not trivial distress but distress of a fairly acute nature. I beg to move.
Lord Broxbourne: If I may intervene for a brief moment, the object of the amendment of the noble Lord, Lord Monson, as I understand it, is to qualify and clarify the reference to "harassment". I had hoped—
Lord Monson: No, just "distress".
Lord Broxbourne: I see. Only "distress". In that case, I shall not pursue the point; but I had hoped that

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the noble Lord, Lord Hutchinson, was going to move his Amendment No. 13. Do I understand that that is not to be moved?
Lord Glenarthur: It is not moved.
Lord Broxbourne: I am sorry it is not moved. I was going to venture to say a word in support of it in giving greater clarity, but no doubt the noble Lord applies the principle of non tali auxiliu, nec defensoribus isis and has decided not to proceed.
Lord Glenarthur: As I think I have said before to my noble friend Lord Broxbourne, I cannot possibly translate the last part of his remarks; I wish I were able to do so. What I think is going to happen is that the noble Lord, Lord Hutchinson of Lullington, may raise some of the points that he was going to raise on an earlier amendment, perhaps when it comes to the debate on the Question, that Clause 5 stand part, or subsequently.
Lord Hutchinson of Lullington: I intend to raise those matters in the English tongue.
Lord Glenarthur: I, for one, am only too delighted to hear that.
Lord Elwyn-Jones: I cannot undertake not to break into Welsh!
Lord Glenarthur: To return to the amendment of the noble Lord, Lord Monson, the noble Lord has proposed that instead of inserting a requirement of "substantial", which was one of the suggestions in an amendment that has not been moved, we might instead have the requirement of acuteness. We did not want to catch conduct which is merely trivial, which is why we originally toyed with the idea of including "substantial". That is why we have strenuously resisted suggestions that "annoyance" or "disturbance" should be included among the possible consequences.
We were eventually persuaded to drop "substantial" because it was suggested that it would present the courts with an impossible task of measurement. That applies very much to Lord Monson's amendment, which, of the three words, would qualify "distress" alone by the word "acute". But when does "distress" become "substantial distress" or "acute distress"? As the Law Society has commented, one can imagine some sharp cross-examination of a victim on this point. On reflection, we felt that "alarm, harassment and distress" were all strong words, in rather the same way as I described earlier, and that they did not need further qualification.
Lord Monson: I am not nearly as happy about the Minister's reply this time as I was last time. I still feel that people could be caught as a result of having offended somebody in what a reasonable man, a worldly man, would consider extremely trivial. I think that the sensible thing is to wait to see what happens to this clause when we debate whether Clause 5 shall stand part. While reserving the right, possibly, to bring up this matter again, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 14B not moved.]
On Question, Whether Clause 5 shall stand part of the Bill?
Lord Elwyn-Jones: I rise to oppose that Clause 5 shall stand part of the Bill. In my submission, Clause 5 creates a new offence in wide and vague terms which, I submit, extends the bounds of criminality much too far. I am comforted in raising the question by the thought that I am to be followed by the noble and learned Lord, Lord Scarman, whose experience in dealing with these matters publicly and judiciously has no equal in this country; and that will enable me to shorten my observation so that more expert advice may be given to the Committee.
The offence of disorderly behaviour, which is at the heart of Clause 5, covers, as the Committee will see from the terms of the clause:
"A person is guilty of an offence if he uses threatening, abusive or insulting words or behaviour"—
and I should have paused at, "if he uses threatening, abusive or insulting words". They will suffice. There is no indication as to intent and no indication as to who is to be aimed at—mere words! Then we come to,
"or behaviour, or disorderly behaviour"—
not a phrase previously known as establishing a crime in itself in our criminal law. Then we come to:
"within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby".
In my submission, this offence creates a wide extension of the criminal law. There is no need to be in the presence of anyone to be actually alarmed, harassed or distressed, or for the offence likely to be caused to be serious or substantial. If offensive conduct is repeated after a warning by a police officer, or a further offensive act is committed, the offender can be arrested without warrant. That is provided for in Clause 5(4).
The penalty for the offence is a fine of £400 which can be imposed by magistrates; so that there is no right to trial by jury in respect of this new offence and it may well be that a person accused would have to face the court without legal representation. The concept of the offence of disorderly behaviour was first tentatively put forward in May of last year in the Home Office White Paper, Review of Public Order Law. No such proposal has been made by the Law Commission in its report on offences relating to public order. It is significant that the White Paper recognised that there would be justifiable objections as to wider extension of the criminal law which might catch conduct not deserving of criminal sanctions. Indeed, the draft offence in the White Paper contained the safeguard that disorderly conduct must actually cause someone to feel alarmed, harassed or distressed and that the degree of annoyance or disturbance should be substan-tial. The White Paper also stated that it was not necessary for the offence to carry a specific power of arrest and that a sufficient maximum penalty might be a fine of £100. Those safeguards have been dropped by the Government, as one sees from the terms of the Bill.
There has been widespread fear expressed that this new offence will inhibit freedom of speech covering, as it does, words and that political and public protest would run the risk of being classified as disorderly behaviour. Real anxiety has been widely expressed

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about that risk and that possibility. The offence of disorderly behaviour has been put forward as a method of dealing with hooligans, but already destruc-tive behaviour which involves damage or attempted damage to property is covered by the Criminal Damage Act, and behaviour which involves violence or threats of violence is covered by Clause 4 of the present Bill.
I submit it is very significant that the National Association of Probation Officers, a responsible body with much experience of dealing with alleged offenders in this field, has produced a report, having carried out a survey of probation officers in inner city areas. They say they were unanimous in their belief that the new offence would create conflict in the streets. They state:
"the Association of Probation Officers acknowledges that the apparent increase in disorderly behaviour causes all responsible people concern. However, it is our belief that the new offence of disorderly behaviour will place many of our clients prone to boister-ous and extrovert behaviour at risk of arrest by over-reactive policing".
Probation officers are not sentimental characters: they have heavy responsibilities which they carry out responsibly. It is at any rate their opinion that the offence will create a new breed of potential criminal, particularly among young people.
In my submission, this new offence will create more problems than it will solve. It is far removed from what should be a minimum test of public disorder, namely, the threat of damage to persons or property, which rightly concerns the public today as well as the police and the Home Office. I believe it will have a detrimental effect on police and community relations and could well divert police activity from the more serious areas of crime which disturb our community in this dangerous period of rising serious crime.
5.15 p.m.
Lord Denning: I hope the clause will remain as it is, because it is high time that our law did something to put down disorderly behaviour. I will give your Lordships a series of cases which have come before the courts. Let me take first the case of Brutus v. Cozens in 1973. What happened there was that a game of tennis was being played on No. 2 court at Wimbledon and while that was all going on very peaceably Mr. Brutus jumped over the fence, ran on to the court and stopped the proceedings by issuing leaflets and the like. Ten other people followed him. They stopped the whole game, to the great annoyance of all the spectators. There it was. Brutus was charged under the Public Order Act 1936 and I am afraid he got off, because it was said that his words were not insulting. Let us hope that situation can be reversed. Lord Reid in this Chamber said that he thought perhaps it ought to be punishable but, on the other hand, the statute then did not cover it. I would say that anyone who interferes in such matters—for instance, people have run on to a cricket pitch, pulled up the stumps, walked off with them and stopped the game (and this man said he did it because of apartheid which had nothing to do with the game of tennis at all)—should be convicted, and the man would have been convicted had this section been in force.
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The next case we had concerned an electricity board in Cornwall. There they were not going to make a nuclear power station but their intention was to make a survey to see whether the site was suitable for a nuclear power station: that was all. It was quite a remote area of ground: nothing spectacular at all. They went on to the ground with their rigs, lorries and machines; and they started digging a bit. Then some protestors, banding themselves together, went in and stopped the whole process. They sat on the rigs and prevented digging; they laid down in front of the lorries and stopped them; and work could not go on at all. The Devon and Cornwall police, I am afraid, said they could not do anything. It was not a breach of the peace. The people were not threatening to break the peace at all; they were only stopping the work.
There it was. The police were quite nonplussed and they did not know what to do to deal with these men. They came to the Court of Appeal eventually and there we managed to get a compromise solution. But surely that was disorderly behaviour, which was punishable. Surely they ought to have been taken off to the magistrates and perhaps bound over or fined a few pounds, or something like that, just to show that disorderly behaviour of that kind could not be permitted.
After I think of those two cases which came before the courts, I think also of Wapping. Lorries having a perfect right to go and take the newspapers from that depot to be delivered are met by thousands of people thronging the streets and trying to stop them—and succeeding to a large extent in stopping them. Is not that disorderly behaviour? There is also the matter of pickets. When men have a right to work and to go to work, are they to be harassed by insulting words, and not only insulting words but prevented by disorderly behaviour from going to their work? Is it not right that there should be an offence of disorderly behaviour?
I would even go so far as to refer to the recent activities concerning hippies in this connection. What could be more disorderly than invading a person's land, as they did, against the owner's will, creating a whole nuisance and not going off the land when they knew they had no right there? Surely that is all disorderly behaviour which the law ought to be able to stop.
I would even go so far as to include those students who would do all they could to stop freedom of speech in the universities and who behave in the most disorderly way—shouting and so on. Is not that disorderly behaviour, and do not the illustrations I have given to your Lordships come within the words which we have now got in the Bill? I would say it is unfortunate that we have not previously had them in a Bill. In nearly every case which I have cited, your Lordships will see that those concerned used threatening, abusive or insulting words or behaviour, or disorderly behaviour.
Is it not right that this should now be a punishable offence? I do not say it is a grave offence, but one for which, if they go on with it, a police constable should be able to arrest them and take them before the magistrates, with perhaps a small fine being imposed. In other words, I would suggest the time has now come when we should have the law made strong enough to

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prevent misconduct and disorderly behaviour of this kind so that the police can operate in cases of emergency—involving not a large fine, but perhaps involving being taken before the magistrates, so that good order can be kept.
So I ask the Committee to support this clause. Although it was not in the Law Commission's report, I suggest that the Government have done very well to bring this clause forward for Parliament to pass. I support the clause and think that it should stand.
Lord Scarman: 1 follow the noble and learned Lord, Lord Elwyn-Jones, in submitting that this clause should not stand part of the Bill. A very good reason for that submission I find in the entertaining and fascinating account of cases that the noble and learned Lord, Lord Denning, has just given to the Committee. The Committee will have noted the extraordinary range of activities which are covered by those cases and which it is said that this clause would cover.
One of the main objections to this clause is that it is far too general. Are we really going to entrust to magistrates a general roving commission over what can be included in disorderly behaviour? Of course, disorderly behaviour can be very serious, can be very criminal and can be a real threat to public order; but disorderly behaviour may also be far from criminal, and, although not to be encouraged, equally ought not to be made a subject of the criminal law.
The more general is the argument that is developed in favour of the presence of this clause in the Bill, the more the Committee should look at it with suspicion. It is a salutary warning that we should not expect the whole of our lives, in public places or elsewhere, to be regulated in detail by a series of offences and punishments emanating from a clause of the most general application.
I remember, in a different branch of the law, the fury with which judges before our time attacked the general warrant. I have even heard the noble and learned Lord, Lord Denning, indicate the importance that warrants should be specific. That is a great tradition of the English common law. It is an equal, parallel tradition that criminal offences should be specific and this clause cannot stand against that criterion. So much for the generalities.
I implore the Committee not to be misled by our current preoccupation with public order into legislating in a way which may lead magistrates' courts to impose criminal offences for matters which are no more than offences against our idea of morals. If it is more than that, it gets into the criminal sphere.
I shall not be long, because I agree with what the noble and learned Lord, Lord Elwyn-Jones, has said, but I should like to say just a few words about the place of this clause in this Bill. This Bill is essentially concerned with public order and the four offences that precede this offence in Part I of the Bill are essential to enable the police to control our public places, to prevent, if they can, disorder breaking out and, if it does, to give them the powers to suppress it. These are very important matters indeed, dealing with the possibility of the development of serious disorder.
The offence in Clause 5 does not really have anything at all to do with that picture. Indeed, I think
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I can tell the Committee that during the Brixton inquiry it was made quite plain to me by a number of police officers that they were quite content with the law as it then stood. I have no doubt that they would welcome its reformulation and restatement, which is what we discover in the earlier clauses of Part I, but they felt it was adequate and that they could, together with their common law powers in relation to breaches of the peace, handle the matter from the point of view of law perfectly well. Their problems were very different, dealing with operations against riotous crowds and so forth, but the law, they thought, was adequate for their purposes.
Clause 5 does not really deal with the disorder situation which can lead into riot. Clause 5 has an origin with which I myself have some sympathy, and I expect others of the Committee have sympathy as well. Clause 5 is there to protect a weak individual—an old lady, an old man or a child—who finds himself or herself harassed or put into a state of alarm and distress in the street; a situation which is completely overwhelmed in major, or indeed minor, disorders of the street. This is a situation that can occur where there is really no disorder at all, but there is an incident occurring in the street which ought not, in our view, to occur.
There is police power to handle that, if it comes to the attention of a policeman. If there is no policeman there, it does not much matter what the law is. The weak does not prevail against the strong. If there is a policeman there, he already has sufficient common law powers, and has exercised them for centuries, to intervene and prevent what is going on. So one asks: if this does not really add anything to the powers of the police to deal with what can be a pathetic and worrying situation for individuals, and therefore for all of us, is it a deterrent? The deterrence here is in being found out by the police. It is not really the prospect that there might be a fine not exceeding level 3 on the standard scale. There really is not here a problem that ought to trouble our courts unless, when there is an intervention to prevent it, something criminal supervenes.
It is because I believe that this clause will in no way help to control serious disorder or to prevent riot, because it is really not needed to deal with the street scenes which it contemplates, that I fall back on the general principle that it ought not to be part of our law, because it is too much of an omnibus, gather-all offence, and as such liable, I fear, to abuse and to developments which we might find very distasteful indeed. There is a real problem—the protection of the weak. There are ways and means by which the police, and others of us, can protect the weak. This clause is not needed and, for the reasons I have indicated, it is undesirable and inconsistent—and I say this in the presence of the noble and learned Lord. Lord Denning—with the true development of English law.
5.30 p.m.
Viscount Colville of Culross: Before the noble and learned Lord sits down, I listened very carefully to what he said about this. He said that there are powers now in the common law to deal with this sort of thing. It would be of very great interest to the Committee if, from the enormous experience that he has not only

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judicially but from his other public duties, he could explain a little more about that. Some of the powers of the police to deal with what used to be breaches of the peace or anticipated offences were codified in the Criminal Law Act 1967. Some of them were codified in the Police and Criminal Evidence Act which we passed in 1984. Among those who have to try to enforce this law, there is now some doubt about what is left by way of common law, not least when it comes to going into private premises—for instance, the staircases or lifts in large tower blocks. What can the police and the private citizen still do under the common law to deal with the problems that the noble and learned Lord talked about? If the noble and learned Lord can throw some light on that I believe he will do an enormous service to the Committee.
Lord Scarman: The noble Viscount is quite right to suggest that recent developments in statute law indicate that there may be a gap. The last thing I wish to do is to mislead the Committee or the House. If I have doubts, the Committee and the House are going to hear of them. I share the concern that the common law powers which one has known for a long time may have suffered some erosion. If so, to that extent the power of my argument is diminished. Of course it is. But I would say that we must face that directly. We should not try to bridge a gap which may or may not be there. It has to be looked at much more carefully than we can do this evening. We must not try to bridge that gap by enacting an offence with trivial judicial consequences in terms so broad that a great number of people may find themselves criminals where, on any view of it, they would not be guilty of criminal conduct.
Lord Boyd-Carpenter: I am sure the Committee is greatly indebted to my noble friend Lord Colville of Culross for eliciting those further remarks from the noble and learned Lord, Lord Scarman. Naturally, your Lordships listen with very great respect—I say this most sincerely—to anything the noble and learned Lord, Lord Scarman, says, as indeed to what is said by the noble and learned Lord, Lord Elwyn-Jones. But certainly both those noble and learned Lords left me with an uncertainty which is very much connected with the intervention of my noble friend Lord Colville of Culross.
We know that, as a matter of fact, there have been and continue to be very serious disorders in many parts of this country. There have been continuing disorders and I shall come to one of them in particular which I think is relevant to this amendment. That therefore poses this dilemma to those who take the line of the noble and learned Lord, Lord Scarman. Either, as he was suggesting in his speech, the powers of the police are adequate to deal with this matter, in which case he is driven to the conclusion that the police are falling down on the job because they are not maintain-ing order; or there is, as he said in reply to my noble friend behind me, some doubt as to whether they have the powers. That is a very different situation.
One of the major purposes of the Bill is to try to secure that our police, faced as they are with what we all acknowledge to be situations of enormous difficulty and personal danger, shall at least be reinforced by
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knowledge that they have the appropriate legal powers. Noble Lords will have noticed that it has not been so far mentioned in the debate on this amendment that one of the features of the clause in question is the giving of the power to arrest without warrant. I suggest to the Committee that that of itself in the context of these disorders is a very important thing.
The noble and learned Lord, Lord Elywn-Jones, was inclined to suggest that there was nothing in this clause to indicate what the intent of the accused person needed to be. With respect, I think that that suggests that the noble and learned Lord has not turned over the page and looked at subsection (4) of Clause 6, which lays down quite clearly that the offence is committed only if there is the intention contained in that subsection.
But I want to come back to the general disorder. I take the case, because it is a very good example, of the long continuing organised disorder that takes place in Wapping near where certain newspapers are produced. At Second Reading I had to declare an interest because at that time my daughter worked on one of those newspapers. She now works elsewhere and so I have no interest to declare. But I do know directly from that and from other sources that for months those people trying to earn their living, in producing in this particu-lar case probably the greatest newspaper in the world, have had to struggle through alarming, disorderly scenes, getting through only with the help of the police and sometimes unable to get through at all. One of these journalists told me only the other day that when trying to get back to her office it was quite impossible to get in at all. She had had to give up her attempt to return to her own office in Wapping to do her job. In a civilised society that is an intolerable state of affairs.
No system can prevent occasional outbreaks of disturbance in various places which produce that situation for a day or so. But to have that kind of thing going on month after month with the police engaged very heavily in struggling with it—with police and other people being hurt month after month; people in trying to go about their ordinary business and earn their living being inhibited by violent conduct by a certain number of people—is intolerable in a civilised society. As I understand it, it is one of the purposes of this Bill to make quite sure that this kind of thing does not continue.
The noble and learned Lord, Lord Elwyn-Jones, said that this clause would divert police efforts from apparently more serious duties. I do not know whether the noble and learned Lord knows of the enormous number of police who have been on the streets of Wapping for months, struggling to the best of their very gallant ability to deal with all this outrageous behaviour. To give them, what I gather the noble and learned Lord, Lord Scarman, now concedes may well be further powers in order to deal with this problem, is not going to divert their efforts; on the contrary, I would suggest to the Committee that it is going to make their efforts more likely to be effective. Therefore I very much hope that this very important clause will survive in the Bill.
Lord Grimond: Will the noble Lord allow me?
Lord Boyd-Carpenter: With the greatest of pleasure.
Lord Grimond: I am obliged to the noble Lord. Speaking as a layman—I am an out-of-date and defunct lawyer—I am sure that he has some reason to offer as to why these very serious matters at Wapping which he has mentioned cannot be dealt with under Clauses 3 and 4. If the noble Lord can explain why that is, I shall be most grateful.
Lord Boyd-Carpenter: It is not for me to explain the operation of other clauses. I shall simply confine myself to the argument, which I hope that the noble Lord, Lord Grimond, will accept, that the Wapping situation seems to be one to which Clause 5 would be highly relevant. If that be so, and unless it can be established negatively that Clause 5 has nothing whatsoever to do with the Wapping situation, which no one has so far seen fit to argue, then the Wapping argument is relevant. If there are further clauses in the Bill that are relevant in this regard, as I know there are, then so much the better. After all, such is the main purpose of the Bill.
I hope therefore that despite the criticisms that have been levelled at Clause 5 from very distinguished sources, the Committee will feel that the measures in question, and Clause 5 in particular, should go into our law. I concede to the noble Lord, Lord Grimond, that Clause 5 will not of itself cure the situation—of course it will not—but the carrying of a Bill of this kind, including Clause 5, will give a clear indication to the evil-doers on the one hand, and to the police on the other, of the determination of Parliament to see that the kind of incidents that have been occurring in our streets in the past year or two are not permissible and will not be permitted to continue.
I said on an earlier occasion—although my noble friend on the Front Bench appeared to be rather unreceptive to the point—that I knew that there were organisations outside who wished to erode and weaken the Bill. I am sure that that is for the highest of motives and I attribute no ill-intentioned motives to those organisations. However, there is a clear conflict of view between them and those who say, as some of us argued on Second Reading, that, faced with organised disorder, it is essential that the balance of the law should be moved a little in favour of the general provisions that the noble and learned Lord, Lord Scarman, does not like, and a little away from the strict libertarian views' that we are able to afford in more law-abiding times, and a little more towards strengthening, at least marginally, the legal position and the legal powers of those responsible for maintain-ing order. I see Clause 5 as being very relevant to that argument.
Lord Scarman: I rise for a moment, before the noble Lord, Lord Hutchinson, speaks, to make a personal statement. I apologise to the Committee for having at this very moment to leave the Chamber. I do so for urgent family reasons. I had hoped to stay to listen to the whole debate, which will be a very interesting one, but for family reasons I cannot do so. I make my apologies to the Committee and to the noble Lord, Lord Glenarthur.
5.45 p.m.
Lord Hutchinson of Lullington: My name appears among those who gave notice that they wished to oppose Clause 5 standing part of the Bill. I should therefore like to say a few words. I shall say them with modesty, and now with great sympathy and affection, following the noble and learned Lord, Lord Scarman.
I may say at once to the noble Lord, Lord Boyd-Carpenter, and to the noble Viscount, Lord Colville, that we are not opposing this clause because we do not appreciate on these Benches the appalling situation that has already been described, or because we do not wish the law to be effective and to be a law that the police can understand and that the courts can understand and administer. That is common ground.
I must say that Clause 5 is not really relevant to disturbances of the kind that have occurred in Wapping of which the noble Lord, Lord Boyd-Carpenter, has made mention. As the noble Lord, Lord Grimond, has argued, such disturbances should be dealt with by other clauses in the Bill, and can be so dealt with. We are here dealing with matters that go outside violence and outside threats and which bring into the criminal law, in relation to public order, matters of social behaviour.
I ask the Committee to consider seriously the wording of Clause 5. The question for the Committee is whether the wording of the clause does not go far too wide and criminalises behaviour that no one in this Chamber would want to see criminalised. There are a number of amendments put down by myself and other noble Lords to get rid of disorderly behaviour, to delete "harassment, alarm or distress", to insert the word "substantial", and so on. None of those amendments has been moved because, as I have already explained, we wanted to save the time of the Committee and not rehearse the arguments that can be rehearsed on this Question. I therefore ask for the indulgence of the Committee in rehearsing one or two of the arguments that cover the general question of Clause 5 standing part of the Bill.
In the White Paper, as has already been mentioned, the Government spelt out in terms how difficult they have found it to define any offence that would catch what they described as minor acts of hooliganism and that would at the same time conform with the normally precise definitions of the criminal law. I quote from the White Paper:
"The Government recognises that there would be justifiable objections to a wide extension of the criminal law which might catch conduct not deserving of criminal sanctions".
I ask the Committee to bear in mind those words while considering Clause 5, because the Government, in the White Paper then went on to state—very rightly, I suggest—that:
"It was therefore essential to build in safeguards".
They then spelt out those safeguards.
There were four of them. The first was that someone must actually be caused to feel alarm, and that it must not be merely conduct likely to arouse alarm. Somebody must be alarmed. Secondly, the alarm must be substantial. They emphasised that by saying that they wanted to deal not with a victim of normal firmness, as in other parts of the Bill, but with the weak and the vulnerable.

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Thirdly, there should be no power of arrest. That mirrors, if I may say so, the unease and the suspicion to which the noble and learned Lord, Lord Scarman, referred on Second Reading, when he saw a power of arrest in a public order Bill wedded to a clause that does not carry imprisonment. The fourth safeguard was to impose a small fine for such an offence of a maximum of £100.
Those safeguards have, in Clause 5 as presently drafted, all gone—and not only that; I shall refer, if I may, to what was said by the noble Lord, Lord Boyd-Carpenter, about the defendant and what was required in the way of intention as set out in the Bill. If the noble Lord will read the Bill even more carefully, he will find that on the vital matter of reasonableness and knowledge, which is the very essence of the alleged offence, the burden of proof is, astonishingly, reversed. So not only are those words so broad, and not only are those new criminal offences created, but in this particular case the accused person is to be forced into the witness box to establish his innocence.
I know that Members of the Committee will therefore understand the implications of this clause which refers to disorderly behaviour. There is no definition of disorderly behaviour among the definitions. What is disorderly behaviour? the dictionary states that it is absence of order; confused; irregular; untidy; violating constituted authority or recognised rule; unruly. Any abuse or insult, spoken or written, likely to cause alarm or distress amounts, under this clause, to a criminal offence. No victim has to give evidence, whereas of course the accused, as I have said, must give evidence in order to meet the shift in the onus of proof.
As the noble and learned Lord, Lord Scarman, said at Second Reading, it may be easy—I cannot remember who it was who said at one stage that we all know what abuse is—but the judges have found it extremely difficult to decide what is an insult and what is or is not an abuse in the circumstances in which those matters arise.
May I just try a litmus paper on the Committee's prejudices in relation to this clause? Would any Members of the Committee be distressed by a march through their residential area of gays and lesbians, of punks or hippies? Would any Members of the Committee be alarmed by the overexuberance of scruffy students on a rag day, or harassed by overenthusiastic sellers of lottery tickets outside a cinema, and so on? Would any Members of the Committee be alarmed by semi-inebriated groups of under-graduates or, may I say, Irishmen or West Indians leaving a public house in the evening?
Is such behaviour to be criminalised because a vulnerable member of society complains to the police? Are such citizens to be open to street arrest, bundled into the wagon and locked up for the night? As the noble and learned Lord, Lord Scarman, with his great experience of these matters, said at Second Reading, he observed in his inquiries an increasing tendency by the police in situations of disorder to use the method of arresting persons, taking them off to the police station and keeping them in custody before releasing them eight or ten hours later without charge. That, of
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course, is one of the dangers of giving a power of arrest unless that power of arrest is connected with something very clear as to the person's behaviour.
I suggest that this clause gives to the police on the streets an unacceptable power which will lead in all certainty to an exacerbation of the sensitive situation in the inner cities. Indeed, whatever the noble Lord the Minister says, it will lead to the same kind of mistrust which we all remember under the "sus" laws; and that is a very serious danger.
The National Association of Probation Officers has been mentioned. The association views this clause as one of great danger for young persons and juveniles who, more than ever, will come before the courts. Everyone now involved in these matters agrees that the best cure for crime among the young at this sort of level is prevention, caution, and trying to deal with the young not by bringing them to the courts at an early stage or arresting them, bringing them up and sending them into custody, but by trying to prevent these matters at an early stage.
I suggest that it is basically fear of violence and threats of violence which we wish to meet—fear of a breach of the peace, in that time-honoured phrase. The Law Commission pointed out that that is now insufficient and that we should replace it with "fear of violence" and "fear of threats". It is essential that this clause should be taken out of the Bill. The Government should go away and come back with a clause which we can all agree is clear and definite and will meet the mischief which all of us recognise exists.
Lord Campbell of Alloway: I make a brief intervention? First, I apologise for not having been here when the debate on clause stand part was opened. It was my intention to be here and I offer my apologies.
The first point is that surely this is not a question of prejudice, on whether one is in favour of gays, offended by gays or lesbians, or sellers of lottery tickets. It is not that at all. Surely it is merely a question of how any of these people behave. Therefore, with respect to the noble Lord, Lord Hutchinson, the point of prejudice does not arise. Where I agree with the noble Lord—
Lord Hutchinson of Lullington: I was referring to distress.
Lord Campbell of Alloway: The clause is related to behaviour. The point I make is that it is the behaviour of gays and lesbians or the lottery ticket sellers, or whoever else it may be, that is relevant, and not the prejudice that any member of the public, or indeed any Member of the Committee, may have one way or another in that context.
Where I agree with the noble Lord and the noble Lord, Lord Grimond, is that I cannot see that this clause has anything to do with the Wapping saga. There are of course other clauses which are designed for that situation and I think one only has to look fairly at the defences under subsection (3) and the level of fine under subsection (6)—which I believe is £400 maximum—to realise that certainly this clause is not designed to meet the Wapping situation and that there are far more appropriate means with which that can be dealt.

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Having made that concession, I should have thought this clause ought to stand part of the Bill for the reason which emerged in the common ground between my noble friend Lord Colville of Culross and the noble and learned Lord, Lord Scarman, that clearly there is a gap. It is common ground that there is a gap. It is common ground that that gap ought to be bridged. It is common ground that it is the weak who are exposed. As no other way has yet been devised to provide a bridge and as this is a provision which, at all events, affords a modest minimum penalty, I commend it to the Committee as being of value, and in being of some value in filling that gap it ought not to be rejected.
Lord Gifford: Nearly the whole debate so far has been about the part of this clause concerning disorderly behaviour. So far as that is concerned, I would not want to add one word to the immensely thoughtful speech of the noble and learned Lord, Lord Scarman.
Before the Minister replies, we must remember that this clause goes far wider than disorderly behaviour. It takes within its scope,
"threatening, abusive or insulting words … writing, sign or other visible representation which is … abusive or insulting".
It raises the further issue of the right of free speech. We know that in the rough and tumble of political debate, in public meetings, at Speakers Corner and during processions things are said, placards are exhibited and effigies are made up which insult and abuse. There is a long enough tradition in English public life starting well before the cartoons of Rowlandson and Gillray of insults and abuse being directed in pursuit of serious political purposes; yet if a police officer takes the view that such a placard or words spoken are insulting or abusive and may distress a person present, that police officer has the right under the law to dictate to the person to take the placard down or to stop the speech. Then it is left to the defendant in the magistrates' court under Clause 5(3)(c) to argue that his or her conduct was reasonable. We will have the magistrates' court become the forum of debate as to whether a certain placard, certain words or effigies were reasonably exhibited.
The noble and learned Lord, Lord Denning, has left his seat, but he was also the champion of individual rights in another case, the case of the Prebble pickets where people stood without violence outside an estate agents and held up placards. The placards were highly uncomplimentary to the estate agent and may have caused distress because, in troubled times and times of argument and conflict, the expression of one view can cause distress; the expression of it in a sharp or strong way on a placard can cause distress. But, if there is no violence and if there is no breach of the peace, is the power to be given to a single police officer who may receive a complaint or may even imagine that of that kind of political debate, the censor of what may or may not be displayed or carried by way of writing or circulated by way of leaflet?
That is a further breadth of the clause which I suggest to the Committee is wholly objectional and is in addition to the very strong objections that I support to the breadth of the offence of disorderly behaviour.
6 p.m.
Lord Butterworth: I hope that we shall accept the clause because I regard it as extremely important in the armoury of the police against hooliganism.
It has been suggested that the clause is too widely drawn and we have had much reference to disorderly behaviour; but in the courts disorderly behaviour is no new concept. I speak as a magistrate. Courts have no problem in determining what it means to be drunk and disorderly. Disorderly conduct is well known in the courts. Indeed, there is a rather splendid sentence in the White Paper at paragraph 3.24, which I should like to quote:
"If a person who causes this type of disturbance is drunk, he may be charged with the offence of being drunk and disorderly; but there is no corresponding offence to cover similar conduct by a person who is not drunk, even though the nuisance caused is no less, and may be thought of as more culpable in someone who is sober".
I would have thought that we should congratulate the draftsman on the clause. I think that it is a well drafted and well-balanced clause. If I may, I should like to explain why I think that.
One has the police confronting the hooligan and it is said that the "sus" danger may be repeated, but when one turns to Clause 5(4) one sees how limited is the power of arrest. First, the constable must warn the offender and ask him to stop. If the offender then engages in further offensive conduct immediately or shortly after the warning, then the constable may arrest. He will take him away from the unpleasant, distressful situation. But, if it is a young offender whose character is not blemished, he has to come before the court and, under Clause 5(1), the offence has to be strictly proved. More than that, under subsection (3), three special defences are given to the accused.
It is for those reasons that I say that I think this new offence has been enclosed in a clause that is magnificently drafted, and we should congratulat the draftsman.
Lord Grimond: I speak with some diffidence as a non-lawyer, but I am a politician. As has been said, the clause has great relevance to the conduct of politics in this country. Before I come to that, may I thank the noble Lord, Lord Campbell of Alloway, for supporting my view that the clause has little or nothing to do with the disturbances at Wapping. I do not believe that it can be right to repeat ineffectually in a Bill what is already in the Bill with far more potential effect.
Lord Boyd-Carpenter: Is not what has been happening in these past few months on the road to Wapping exactly what is described in the clause?
Lord Grimond: In my view it is dealt with in Clauses 3 and 4, and very adequately dealt with if in fact it is not already dealt with under the common law and other statutes, which I strongly suspect it is.
To return to the main point I wish to make, it relates to threatening, abusive behaviour or insulting words. Anybody who has been in politics any length of time will have been at innumerable public meetings at which threatening, abusive and insulting words are used. In fact, many people consider that their public meeting has been a failure unless they are used. Of

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course, they have to be in the hearing or sight of someone likely to be caused distress. As has already been said, distress is pretty wide in meaning, and such words do cause distress very often—not to the speaker and not to the platform but to the people in the audience. Therefore, a criminal offence is committed. I cannot believe that that is right.
Having been in Parliament for some time, I may say that there have been occasions, much as I regret to mention it within this great Palace of Westminster, on which abusive words have been used and have caused distress. They have caused distress because they are now repeated over the wireless and, indeed, over the television.
There may be reasons for dealing with disorderly behaviour, although I should have thought that they are adequately dealt with in Clauses 3 and 4. I do not believe, however, that the Bill should go through with the inclusion of the words used in Clause 5(4)(a) with their possible repercussions upon the conduct of public debate in this country.
Lord Broxbourne: When I had the privilege of addressing noble Lords on the Second Reading of the Bill, I confined my observations primarily to Part II. I said then by way of preface that I wholly support Part I of the Bill, and that of course includes Clause 5. That support still stands in spite of the persuausve words of my noble and learned friend Lord Scarman, whom I hold in such very high personal regard.
Against the background of that general support I want to make only two brief observations. First, the Committee will note that Clause 5(2) states that:
"An offence under this section may be committed in a public or a private place".
Those words are in stark contrast to the approach in Part II of the Bill dealing with public assemblies. If I may, I shall revert to this point when we come to the amendment standing in the name of the noble Lord, Lord Stanley of Alderley, and the amendment tabled in the names of my noble friend Lord Middleton and myself. For the moment I simply indicate that there is an onus of explanation on Ministers to explain this dichotomy.
My second point concerns the use of the word "harassment". As I indicated to the Committee when a slight misapprehension took place earlier in the proceedings, I was ready to testify in support of the amendment which was on the Marshalled List in the name of the noble Lord, Lord Hutchinson, but which was not moved by him. I need hardly tell the Committee that it is a great deprivation to be denied the rare and refreshing pleasure of being in accord with propositions coming from the Alliance Benches. I hope that the noble Lord will not take it amiss if I say that I hope he is as eager to disavow mistaken policies and suggestions as he has been to disavow a point with which some of us are inclined to agree. As it is, I can only echo the words of the Morning Standard in 1846 when commenting on the change of front of Sir Robert Peel in regard to the Cora Laws: He has convinced others; how comes it he has not convinced himself?
The substitution of the words proposed in his abortive amendment would have been an improvement, because in my respectful submission
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the word "harassment" is not a satisfactory word for statutory usage. The difficulty is that it is not clear. The Oxford English Dictionary gives two basic meanings for the word "harassment": the active meaning of the action of harassing and the passive meaning of the fact of being harassed. No doubt the second meaning is intended here. I cannot say to the Committee that the use of the term is grammatically incorrect, but I think that more usually it signifies an active sense—that is, the action of being harassed, rather than the fact of being harassed.
I think that this ambiguity is liable to cause doubt and uncertainty, at any rate to those who are not professionally engaged in the interpretation of statutes. As this provision comes within the context of the criminal law, it is obviously desirable to avoid ambiguity and uncertainty and that so far as possible "he who runs may read". There is no definition of harassment in the Bill, which is all the more surprising as there are definitions of "violence", "offensive conduct" and even "intoxication", as to which one would have thought that a definition was less necessary than in the case of "harassment".
Therefore, while expressing support for the clause, I respectfully ask my noble friend to consider before the next stage of the Bill whether some alternative form of drafting—possibly in the words of the noble Lord, Lord Hutchinson, or otherwise as may be appropriate—may be substituted for this ambiguous and unsatisfactory expression.
6.15 p.m.
Lord Hunt: I shall not prolong the very long discussion of the Committee, and I rise for only a brief moment to take up and possibly reinforce one or two points that have been made. I am one of those people who are quite seriously concerned that if this clause were to stand part of the Bill, in more than one respect it would create more problems than it would solve. The particular problem that I should like to underline at this stage in the Committee's discussion—and it has already been touched on—is the problem in regard to the police on the one hand and the probation service on the other.
It is worth remembering that it is not only the police who are charged with upholding the law and the legislation at which we are now looking; it is also the probation service, which is a court service. It is essential that, among others, those two services in particular should work in harmony. By and large they do so. They have their respective tasks and their respective ways of performing them. As has already been made clear, the probation service deals with clients who in many cases are alienated, extremely difficult and irresponsible. The task of the probation service (which I have reason to know it performs with extreme skill) is to lead such people in the direction of more social behaviour and to bring them back into the mainstream of society; and it does so with considerable success.
By labelling such acts as criminal behaviour or criminal acts, this clause as drafted—I am looking at the words in Clause 5(1) (a)—will have the effect of strengthening the hands of the police at the expense of the work of the probation service. It will risk creating disharmony between them. It will weaken the

949
probation service, and what is even more important, it will further alienate those young people in particular who are already against society. In my view it is very important that we should not push them further along the road of criminality by turning some of the words and actions contained in this clause into criminal acts.
Lord Peyton of Yeovil: I should like to say that, like the noble Lord, Lord Grimond, I am a somewhat "defunct" lawyer. What worries me about this debate is that one speaker after another is able to point out with great lucidity the difficulties and objections which may arise from a clause such as this, and yet I have not heard any of those who oppose this clause produce some more effective way in which those minor acts of bullying can be brought within the compass of the criminal law.
I do not wish to speak at any great length, but there were two comments from the noble and learned Lord, Lord Scarman, which caused me some concern. It is difficult in his well-understood absence to put an exact construction on his words, but what he said was that we should not be misled by our current preoccupation with public order into taking action of this kind. I wondered whether he was suggesting that perhaps our current preoccupation with public order is somehow misplaced. I myself do not think it is. At any rate, the noble and learned Lord went on to say that the purpose of Clause 5 was to protect the weak, and he then said that there were other ways in which the police and others could do that. My noble friend Lord Colville of Culross intervened and I do not think that the noble and learned Lord, Lord Scarman, fully answered the anxiety which my noble friend then expressed, which is an anxiety that I share.
I am no great admirer of our modern contributions to the statute book. Most of them have considerable defects. They are hard to understand and certainly they create problems. I do not think that this clause should be singled out for opposition on those grounds. I believe that it is a genuine attempt to cope with a need.
I take the point made by the noble Lord, Lord Hunt, that we must seek to avoid alienating further those who already feel themselves at a distance from society, but we must give careful thought to the weak, who find themselves on the receiving end of these minor acts of bullying. It is for that reason that I express the hope, despite the misgivings that many members of the Committee have expressed with such eloquence, that we should allow the clause to stand part of the Bill.
Lord Wigoder: Depite the extraordinarily wide nature of the clause as drafted, I shall make a speech that consists of only one sentence. A man and his wife are walking along the street, they have an argument, one of them uses an expression which is abusive to the other, intending it to be abusive, and the other is momentarily distressed. Do members of the Committee appreciate that that would then be a criminal offence under the clause?
Lord Beloff: Have not the noble Lord who has just spoken and others who are lawyers consistently diverted our attention during the debate from the core of it, which is a need to defend persons in our society
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who are so vulnerable that even words may affect their being? I do not think that the robust language of the hustings in Orkney and Shetland, which was for long enjoyed by the noble Lord, Lord Grimond, is at all what we are thinking of. I consider, for instance, the position of members of the ethnic minorities in parts of our great cities who, as daily evidence shows, are subject to abuse, calculated abuse and threats, not necessarily resulting in violence but to an extent which makes them feel alienated from our society (and we have much evidence of that) and who come to us with complaints that the law is not doing enough to protect them.
It seems to me that the clause at least endeavours to give them some protection by saying that words which are intended to wound can be regarded as a breach of the law and subject therefore to criminal sanctions. To oppose the clause is to disregard the vulnerable in the interests of legal perfectionism. I hope that the Committee will not be convinced by those objections.
Lord Donaldson of Kingsbridge: I must say a word or two more in the debate. It is important that the view of either side should not be misunderstood. My noble friends who propose that the clause should not stand part of the Bill are perfectly clear in their minds that there has to be a provision which does what both sides want but without doing very much more. We do not ask that people should be allowed to do what they like and commit acts of hooliganism without interference. We are asking that, after this long and extremely interesting debate, the Government should go away to see whether they can do something rather more effective and rather less dangerous than the provisions in the clause.
It is important that the two sides should understand one another. We do not want to see happening any of the examples that have been given, even the Wimbledon one, which certainly has nothing to do with the weak. We do not want hooliganism to succeed, but we do not want to make criminals out of tiresome young people.
Lord Moyne: Let me make one small point. I do not speak against the clause or the objectors, but it reads:
"A person is guilty of an offence if he … displays any writing … within the … sight of a person likely to be caused … distress".
Surely that covers publication in a newspaper. The provision could be used to violate the freedom of the press. I am sure that that is not intended. But I echo a little what the noble Lord, Lord Donaldson, said, that the Government ought to think again about the clause before the legislation is finalised.
Lord Glenarthur: We have had a long and full debate on one of the most important clauses in the Bill. The noble and learned Lords, Lord Elwyn-Jones and Lord Scarman, have concentrated on what they see as the dangers and difficulties with the clause, and I shall return to those points shortly. Let me repeat at the outset what the noble Lord, Lord Hutchinson. has already said, that we have always recognised that it was important to frame a new offence very carefully indeed. During the passage of the Bill we have listened to the doubts expressed and, as a result, we have introduced important new safeguards to protect the interests of defendants.

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The Opposition in another place accepted the need for a new offence, and that broadly has been the thrust of many of the comments made this afternoon. They welcomed the Government's attempt to provide the police with more effective powers against hooliganism. We remain convinced that the new low-level offence is vital if we are to fulfil our clear duty to provide additional protection for citizens from the mindless hooliganism which increasingly affects their daily lives and to which my noble friend Lord Beloff referred. Sadly, we live in an age when courtesy and regard for others appear to be on the decline. Hardly a day goes by without our reading about elderly people who are terrified to leave their homes at night, or of ethnic minority families who have to move house to escape persistent harassment which makes their lives a torment.
Public order is not concerned just with riots and demonstrations. It is also about public tranquillity, which is a point made by my noble friend Lord Renton and added to by my noble friend Lord Peyton of Yeovil in different words. For many people in this country their public tranquillity and the quality of their daily lives are being blighted by petty, mindless hooliganism. I do not believe that anyone can realistically feel otherwise, despite the concern expressed by the noble and learned Lord, Lord Scarman. We are not talking just about boisterous behaviour, to which I thought the noble and learned Lord, Lord Elwyn-Jones, was referring when he drew attention to the National Association of Probation Officers.
The blighting of people's lives by these activities is a point which the police have stressed to us time and time again from their daily experience of policing the communities in their charge. As the noble and learned Lord, Lord Scarman, said, when violence, damage or assaults occur, the law is, by and large, adequate and the police have the power to act. But the evil at which the new offence is aimed is largely outside the grasp of the law. With all respect to the noble and learned Lord, I do not think that he fully answered the point put to him by my noble friend Lord Colville of Culross. The new offence does not address violent crime but the sort of behaviour which has imposed a climate of fear and misery on many of our housing estates.
Gangs of youths terrorise the elderly residents. They think nothing of loud, boisterous behaviour at 2 o'clock in the morning. They tip refuse through people's letterboxes and bang on their windows and doors. As my noble friend Lord Campbell of Alloway said, those are the matters that can lead to distress to those who are within sight or hearing. The Government do not believe that that is acceptable behaviour. It cannot be. People should not continue to be frightened in that way. It is intolerable that they should suffer such behaviour. That is why a new offence is needed and why it has been warmly welcomed by the police.
As I said, we do not believe that it is right to penalise simple high spirits. We are alive to the need to ensure that the new offence is not a replacement for "sus". The most important difference is that the Clause 5 offence requires a victim. That is one of the major changes that the Government made in another place.
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The prosecution will have to show that there was someone present within sight or hearing of the accused who was likely to be caused alarm, harassment or distress by the accused's behaviour. The court will have to ascertain who that person was and whether he or she was likely to be alarmed, harassed or distressed by the behaviour in question.
The noble and learned Lord, Lord Elwyn-Jones, supported by the noble Lord, Lord Hutchinson, thought that the word "disorderly" was too wide. As my noble friend Lord Butterworth has said, that is not a new term in our statute law. For many years we have had an offence of being drunk and disorderly. It is now in Section 91 of the Criminal Justice Act 1967. The courts have no difficulty in deciding what constitutes disorderly behaviour in that context. I cannot spell that out more succinctly or with more attention to logic than my noble friend did.
The police have power at common law to deal with breaches of the peace. That does not always enable them to protect other citizens from aggressive behaviour. We have deliberately proposed disorderly behaviour as one element in the new offence in Clause 5, at a slightly lower threshold than breach of the peace. The courts have also suggested that "disorderly" indicates less aggressive conduct than would be required to constitute a breach of the peace. That is part of the rationale of the new offence.
If there is a breach of the peace, the police have power to intervene and if necessary to make an arrest. The difficulty so often revealed in case law is that when the police are called to a disturbance—often late at night—they have no power beyond that of asking the participants to go home. If the revellers refuse to do so, there is little that the police can do, for as the Committee will know far better than I, a disturbance of the peace is not a breach of the peace.
Contrary to popular belief, the police have no general power to move people on. Before the police can intervene there must have been or be likely to be a breach of the peace, or a criminal offence must have been committed.
Disorderly conduct, and particularly the disorderly element of the offence, fills a gap in the law where at present the police have to rely on their powers of persuasion and bluff. We hope that they will continue to rely on their powers of persuasion, but when those fail and their bluff is called, and the revellers refuse to go home, or the youths continue to run through the shopping precinct, we think that the police should be able to act more effectively than they can at present. That is why we have added "disorderly" to the other elements in the offence and why we have included a power of arrest if someone ignores a police warning to stop. Of course, disorderly behaviour on its own is not sufficient to commit the offence; it must be disorderly behaviour committed within the sight or hearing of someone who is likely to be alarmed or distressed.
The offence also contains important safeguards. The accused must intend or be aware that his conduct is threatening, abusive, insulting or disorderly. Secondly, if the defendant was unaware or had no reasonable cause to believe that his conduct was likely to cause another harassment, alarm or distress, he will not be guilty of the offence. Thirdly, there is a general defence for the accused to prove that his conduct was reasonable.

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My noble friend Lord Broxbourne mentioned harassment. Harassment can have the active and passive features to which he referred. We were conscious of that when preparing Clause 5, but as my noble friend acknowledged, it is a proper use of the word to use it to describe the consequences of behaviour set out in Clause 5(1)(a) and (b). It is because the word aptly describes the mischief that we seek to catch that we have used it on this occasion.
The noble Lord, Lord Gifford, mentioned the writing of signs and so on. He raised the general matter of free speech. We thought hard and long before extending Clause 5 to writing signs, and so on, for the reasons that the noble Lord gave. We decided to do so because of our particular concern to catch instances of racial harassment—a matter which I am sure the noble Lord will feel is a proper one to be dealt with. They can often take the form of racialist graffiti or the daubing or displaying of different slogans. I am sure that the noble Lord will agree that such racial harassment is a serious mischief and one which should be accounted for by the clause.
Lord Gifford: Is not racial harassment dealt with in Clause 19? If it is not, we can improve the clause. Clause 19 deals with words or gestures which are threatening, abusive or insulting which are either intended or likely to stir up racial hatred. It is an apt description of the real grievance which I agree should be included in legislation and which the noble Lord intends to include in the Bill.
Lord Glenarthur: I do not think that it goes as far as the writing of signs or the daubing of slogans. I do not believe that that would be encompassed by the use of the word "gestures". I shall look at the point that the noble Lord makes. I do not believe that Clause 19 goes as far as he suggests.
The noble Lord, Lord Hutchinson of Lullington, mentioned powers of arrest. If a gang of youths is persecuting an elderly person or an Asian family in its home and does not stop when required to do so by a constable, then of course there should be a power of arrest. I am not sure what the noble Lord's point was. Was he saying that hooligans should be allowed to carry on regardless? I cannot believe that he was. I am sure that he will realise that the power of arrest is limited. There is a further safeguard in the power of arrest. No one can be arrested for this offence unless he has refused to stop his mischievous behaviour on being warned to do so by a policeman.
Lord-Hutchinson of Lullington: The Minister asked what I meant. The White Paper went out of its way to say that there should be no power of arrest, because of the dangers of having a power of arrest for offences of this kind which deal with such a low level of criminality. Perhaps he can explain.
Lord Glenarthur: It is surely important in that case that safeguards are built in. I should have thought that that was the answer to the noble Lord's concern.
Perhaps I may return briefly to add to the answer that I gave to the noble Lord, Lord Gifford, on Clause 19 and the relevance of Clause 5 to racial hatred. Clause 19 deals with incitement to racial hatred and
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not harassment, as in Clause 5. I hope that that explains the point.
My noble friend Lord Boyd-Carpenter mentioned Wapping. It is true, as he said, that there have been the most appalling scenes of disorder at Wapping. They would be caught by Clause 5. It is equally true, as my noble friend Lord Campbell of Alloway and the noble Lord, Lord Grimond, pointed out, that a range of other public order offences are committed. Threatening or violent pickets will offend against Clause 2 or Clause 4 of the Bill and against Section 7 of the Conspiracy and Protection of Property Act 1875—the offence of intimidation.
The police have made large numbers of arrests at Wapping under the existing law, and in cases of low-level disorderly behaviour they might in future occasionally use Clause 5. But to deal with scenes like Wapping is not the main justification of the new offence which is directed much more to the matters that I described earlier and that were described, too, by my noble friend Lord Colville.
We recognise the concern expressed about the possible scope of this new offence. But, as I said at the beginning, the Opposition agreed in another place that there was a need for a new offence to deal with hooliganism provided that it had proper safeguards. We believe that we have incorporated sufficient safeguards and that we have now got the balance right. This is an important new protection for the victims of harassment and other forms of hooligan behaviour. It is behaviour that strikes at the heart of many people who deserve the sort of protection that this Bill tries to achieve. I hope that the Committee will agree that Clause 5 should stand part of the Bill.
Lord Elwyn-Jones: The Committee has fully ventilated and discussed all the relevant issues arising from this clause. Accordingly, it is time, I believe, to take the opinion of the Committee upon it.
6.41 p.m.
On Question, Whether Clause 5 shall stand part of the Bill?
Their Lordships divided: Contents, 131; Not-Contents, 82.

DIVISION NO. 1

CONTENTS

Abinger, L.

Cameron of Lochbroom, L.

Airey of Abingdon, B.

Campbell of Alloway, L.

Alexander of Tunis, E.

Carnegy of Lour, B.

Allenby of Megiddo, V.

Carnock, L.

Allerton, L.

Coleraine, L.

Ashbourne, L.

Colwyn, L.

Auckland, L.

Constantine of Stanmore, L.

Bauer, L.

Cork and Orrery, E.

Beaverbrook, L.

Cowley, E.

Belhaven and Stenton, L.

Craigmyle, L.

Beloff, L.

Craigton, L.

Belstead, L.

Croft, L.

Bessborough, E.

Cullen of Ashbourne, L.

Boyd-Carpenter, L.

Davidson, V.

Barbazon of Tara, L.

De La Warr, E.

Broxbourne, L.

Denham, L. [Teller.]

Butterworth, L.

Denning, L.

Buxton of Alsa, L.

Dilhorne, V.

Caccia, L.

Drumalbyn, L.

Caithness, E.

Elles, B.

955

Elliott of Morpeth, L.

Montagu of Beaulieu, L.

Fanshawe of Richmond, L.

Montgomery of Alamein, V.

Ferrier, L.

Morris, L.

Fortescue, E.

Mottistone, L.

Gainford, L.

Moyne, L.

Gisborough, L.

Munster, E.

Glanusk, L.

Newall, L.

Glenarthur, L.

Norrie, L.

Gloucester, Bp.

Nugent of Guildford, L.

Gray, L.

Orkney, E.

Greenway, L.

Orr-Ewing, L.

Hailsham of Saint

Pender, L.

Marylebone, L.

Peyton of Yeovil, L.

Hardinge of Penshurst, L.

Plant, L.

Harmar-Nicholls, L.

Portland, D.

Harvington, L.

Quinton, L.

Hemphill, L.

Radnor, E.

Henley, L.

Rankeillour, L.

Hives, L.

Rochdale, V.

Home of the Hirsel, L.

Russell of Liverpool, L.

Hooper, B.

St. Aldwyn, E.

Hunter of Newington, L.

St. Davids, V.

Hylton-Foster, B.

Sanderson of Bowden, L.

Kimball, L.

Sandford, L.

Kinloss, Ly.

Selborne, E.

Lauderdale, E.

Shannon, E.

Lawrence, L.

Sherfield, L.

Layton, L.

Skelmersdale, L.

Lindsay, E.

Stanley of Alderley, L.

Lindsey and Abingdon, E.

Stodart of Leaston, L.

Long, V.

Strathclyde, L.

Lucas of Chilworth, L

Swinfen, L.

Lurgan, L.

Swinton, E. [Teller.]

McAlpine of West Green, L.

Terrington, L.

Macleod of Borve, B.

Teviot, L.

Malmesbury, E.

Thomas of Swynnerton, L.

Mancroft, L.

Tonypandy, V.

Margadale, L.

Ullswater, V.

Marshall of Leeds, L.

Vaux of Harrowden, L.

Massereene and Ferrard, V.

Vickers, B.

Merrivale, L.

Vivian, L.

Mersey, V.

Whitelaw, V.

Middleton, L.

Windlesham, L.

Molson, L.

Wise, L.

Monk Bretton, L.

Young, B.

Monson, L.

Zouche of Haryngworth, L.

NOT-CONTENTS

Addington, L.

Hampton, L.

Amherst, E.

Hatch of Lusby, L.

Ardwick, L.

Hunt, L.

Avebury, L.

Hutchinson of Lullington, L.

Aylestone, L.

Hylton, L.

Barnett, L.

Jacques, L.

Birk, B.

Jeger, B.

Boston of Faversham, L.

Jenkins of Putney, L.

Bottomley, L.

John-Mackie, L.

Carmichael of Kelvingrove, L.

Kagan, L.

Chitnis, L.

Kilbracken, L.

Cledwyn of Penrhos, L.

Kirkhill, L.

David, B.

Lincoln, Bp.

Dean of Beswick, L.

Llewelyn-Davies of Hastoe, B.

Denbigh, E.

Lloyd of Kilgerran, L.

Denington, B.

Lovell-Davis, L.

Diamond, L.

Mackie of Benshie, L.

Donaldson of Kingsbridge, L.

McNair, L.

Donoughue, L.

Mayhew, L.

Elwyn-Jones, L.

Melchett, L.

Ennals, L.

Morton of Shuna, L.

Ewart-Biggs, B.

Nicol, B.

Falkender, B.

Northfield, L.

Foot, L.

Oram, L.

Gallacher, L.

Pitt of Hampstead, L.

Gifford, L.

Ponsonby of Shulbrede, L.

Gladwyn, L.

[Teller.]

Glenamara, L.

Prys-Davies, L.

Graham of Edmonton, L.

Ritchie of Dundee, L.

[Teller.]

Rochester, L.

Gregson, L.

Ross of Marnock, L.

Grey, E.

Seear, B.

Grimond, L.

Sefton of Garston, L.

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Serota, B.

Wallace of Coslany, L.

Shackleton, L.

Walston, L.

Silkin of Dulwich, L.

Whaddon, L.

Stallard, L.

White, B.

Stoddart of Swindon, L.

Wigoder, L.

Taylor of Blackburn, L.

Williams of Elvel, L.

Taylor of Gryfe, L.

Wilson of Rievaulx, L.

Taylor of Mansfield, L.

Winstanley, L.

Underhill, L.

Ypres, E.

Resolved in the affirmative, and Clause 5 agreed to accordingly.
6.51 p.m.
Lord Plant Lord Plant: moved Amendment No. 15:
After Clause 5 insert the following new clause:
(Offences involving missiles.

.—(1) A person is guilty of an offence if he possesses, manufactures, assists in the manufacture, throws or attempts to throw any missile containing a combustible liquid material, with the intention of causing an explosion or conflagration.

(2) Offences under this section can be committed in private as well as public places.

(3) A person guilty of an offence under this section is liable on conviction on indictment to imprisonment for life or a fine, or both or on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.").

The noble Lord said: I think it might be agreeable and convenient to noble Lords if I move Amendments Nos. 15 and 16 together. One deals with missiles, and the other with fire bombs. Mr. Justice Popplewell in his interim report on football ground safety resulting from the tragic Bradford fire disaster recommended that missile throwing per se should be a criminal offence. He later modified his stand, suggesting that it could be caught by the provisions of Clause 5. This, I believe, will be stretching Clause 5 beyond the bounds of common sense into the realms of what could be described as the "Chipping Sodbury Barbed Wire Act". The potential of this type of offence to spark off large-scale public disorder needs no cataloguing from me. I therefore argue that it is an offence of such a nature as to merit individual recognition and should be included in this Bill as a specific offence.
As noble Lords will see from subsection (3) of the new clause this offence is envisaged as a relatively minor one and only to be tried summarily. Dealing with the second new clause relating to fire bombs, most noble Lords will realise that the illegal use of petrol bombs or similar explosive devices would be covered by criminal offences created by the explosives legislation. May I remind noble Lords that almost every facet of this Bill is similarly covered by the existing law. This is a consolidating and modernising Bill. I therefore contend that an Act of 1871 may equally need revision and a specific offence of manufacturing, possessing or throwing a device similar to a petrol bomb should be—nay, demands to be—included in this Bill.
The premeditated preparation, availability and use of these awesome devices in inner city riots—especially in the view of the Police Federation—demand special recognition. The awful consequences of their use, as demonstrated at Handsworth—where, I need not remind members of the Committee, two lives were lost as a direct result of the use of petrol bombs—and Broadwater Farm are such that we feel public repugnance should be shown by the availability of a prison sentence for any person

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convicted of possessing or using such an article. My amendment was drafted to include prison sentence for life. However, in the light of what noble Lords have decided earlier this afternoon, the Government may feel that they would wish to revise the prison sentence for life which I have included to perhaps the 10 years which we agreed earlier. I beg to move.
Lord Denning: May I say a word in favour of this clause. I can well understand that there are many offences which are already covered by the law. This may well be covered by the Explosives Act. But petrol bombs are a new danger in our time causing conflagration and trouble. I see no reason whatever why we should not specifically put on the statute book a clause to prohibit them and to punish severely those who take part in their use. Therefore although it may not be necessary, it is a very good thing to have on the statute book a clear and specific clause against evils of this kind.
Lord Silkin of Dulwich: Nobody in this Chamber would in any way wish to condone the type of conduct about which the noble Lord, Lord Plant, has been speaking, or to water it down in any way. The doubt which I have about these clauses is not related to the need for condign punishment for those who make use of the practice described here. It is simply a question of whether this is the proper place to deal with it, and whether it is necessary to deal with it, or whether it is already in the offences dealt with in the explosive substances legislation. That is legislation which, my memory tells me, is always subject to the necessity to obtain the consent of the Attorney-General for prosecution because some instances of this kind of conduct that I remember coming across were not worthy of imprisonment for life—or indeed in some cases any imprisonment at all—whereas others were extraordinarily serious. There is therefore that safeguard in the explosive substances legislation.
If these clauses were passed into law, with regard to these clauses in this legislation, that safeguard would immediately disappear because they are not subject to the same safeguard. Quite apart from that, do they make provision for any matter which is not included already? I hope that the Minister will be able to tell us. If they make such provision would it not be appropri-ate, if more is needed, to include it in the specific legislation rather than in a Public Order Act. People can do all kinds of things which are in breach of public order. If every single one of them formed a part of a Public Order Act then the Act would spread to several volumes. The question is: what is special about this type of conduct that requires it to be put into a Public Order Act rather than to find its place in that part of the statute law to which Parliament has consigned it in the past?
7 p.m.
Lord Harmar-Nicholls: The factor that makes this special is that there has to be premeditation. Many other implements are used which are frightening the public now—and with very good reason. It could well be that one could have the weapon and various items but not necessarily with the intent of using it for a purpose that falls foul of the law.
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As regards this amendment there must be some premeditation. For example, you must have acquired the liquid, you must have mixed it with something else; you must have prepared it. I believe that the premeditation aspect makes this a clause which ought to be looked at with some sympathy. I understand the problem of trying to identify every missile and so on, but the premeditation aspect gives the amendment special significance and that is perhaps slightly different from what the noble and learned Lord has just said from the Dispatch Box.
Lord Glenarthur: I fully understand the anxiety which lies behind these new offences and I know that the Committee will join with me in paying tribute to the courage of the policemen last year who had to face a hail of petrol bombs at Handsworth, Tottenham and Brixton. The manufacture and throwing of petrol bombs at the police is an intolerable evil which needs to be punished vigorously. However, I have to say to the noble Lord, Lord Plant, that—rather as the noble and learned Lord, Lord Silkin, was suggesting—there is no point in Parliament creating new criminal offences to deal with acts which are already criminal, and I say that despite the comments of the noble and learned Lord, Lord Denning, on this point.
Each of the elements in the noble Lord's proposed offence is already covered by the criminal law. Those who manufacture—and that presumably covers intent in the way in which my noble friend described it—or possess petrol bombs are generally charged under Sections 3 or 4 of the Explosive Substances Act 1983. Section 3 carries a maximum of life imprisonment, as does Section 2, which can be charged against those who throw petrol bombs. As an example, a young man who was convicted of manufacturing petrol bombs during the 1981 riots in Leeds was sentenced to four years' imprisonment.
Despite the singular and hideous menace of petrol bombs and petrol bombers, we are not aware of any gaps in the law which have caused difficulty either to prosecutors or to the police. After last year's riots the Home Office made inquiries of the police forces most directly involved about the adequacy of the law against petrol bombs. All the forces concerned had made arrests for petrol bomb offences and none had experienced any difficulties in bringing charges. However, if the noble Lord, Lord Plant, can show that there is a gap in the law—and, with respect, I do not think that he has demonstrated that—it is naturally something that we would want to look at urgently. My honourable friend in another place indicated his willingness to look at precisely that point.
Similar considerations apply to the second new clause moved by the noble Lord. The police service have been asking for some time for a specific offence of missile-throwing. They argued their case to the Home Affairs Select Committee of another place who concluded that there was insufficient detailed evidence to justify recommending the creation of a new offence.
Knowing the matter was of particular concern to the police, we specifically addressed the problem of missile-throwing in the White Paper, and we described there the difficulties which the police reported to us. The difficulty is simply stated: it is that when people throw missiles, whether during a riot, or at a football

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match, it is not always possible to prove where the missiles land. The definition of violence in Clause 8 has been designed to meet this difficulty. It specifically includes as an example of unlawful violence:
"throwing at or towards a person a missile of a kind capable of causing injury which does not hit or fails short".
As a result the new public order offences should meet the case where at football matches and similar occasions people pick up and throw missiles in circumstances where the injury or damage cannot always be identified. The single missile-thrower should be capable of being charged either with possessing an offensive weapon or under Clause 4 of the Bill; and in serious cases of group violence the prosecution can, where appropriate, charge missile-throwers with violent disorder, which would expose them to a maximum penalty of five years' imprisonment. Again we need the evidence if we are to proceed with that.
So far as the Bill being a consolidating Bill is concerned, we are only consolidating public order law: the common law public order offences in the statute law and the Public Order Act 1936. We cannot consolidate all the law relating to other offences—assault, wounding, offensive weapons and so on—which may be committed in the course of public disorder, without having a Bill of quite inordinate length.
As regards the Popplewell recommendations, the noble Lord was right in saying that in paragraph 4.7 of his report Mr. Justice Popplewell, as he was then, was clearly of the view that missile-throwing should constitute an offence. We believe that it does. In particular the Bill makes it clear that throwing a missile at or towards a person will be caught by the offences in Clauses 1 to 4 of the Bill. The alcohol legislation, which we passed last year, made it an offence to possess cans and bottles on the terraces. This Bill extends the offence to fireworks. If in future it appears that there are further gaps in the law, naturally we will consider the matter again.
Lord Hylton: Is the Minister able to tell the Committee the maximum penalty that can be imposed on a person who throws a petrol bomb into a building, either destroying it or severely damaging it without necessarily injuring any person inside the building? I ask that because it has become a powerful means of intimidation in Northern Ireland and one fears that those practices may be copied in England.
Lord Glenarthur: The answer is, life.
Lord Plant: I thank the noble Minister for his explanation. It appears that if I pursue this amendment to a vote I shall be mangled between my own Front Bench and the Government forces. Therefore, I shall not pursue the amendment at this stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 16 not moved.]
Viscount Davidson: Before moving that the House do now resume, I suggest that we do not resume this Committee stage before 8.5 p.m. I beg to move that the House do now resume.
Moved, accordingly, and, on Question, Motion agreed to.
House resumed.

Patronage (Benefices) Measure
7.7 p.m.
Lord Denham: My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Patronage (Benefices) Measure, has consented to place her prerogative and interest, so far as they are affected by the Measure, at the disposal of Parliament for the purposes of the Measure.
The Lord Bishop of Gloucesterrose to move, That this House do direct that, in accordance with the Church of England Assembly (Powers) Act 1919, the Measure be presented to Her Majesty for the Royal Assent.
The right reverend Prelate said: My Lords, I beg to move the Motion standing in my name on the Order Paper. I hope it may be helpful to your Lordships if I explain briefly the background to this Measure and the main changes in the existing law which it proposes. May I say at the outset that it has no relevance or application to the appointment of bishops or other dignitaries in the Church but only to the appointment of incumbents; that is to say, the vicars or rectors of parishes.
It is a fairly long Measure. It contains 42 Clauses and 5 schedules, but a good deal of it is in fact tidying up the existing law and gathering into one place the accumulated legislation to do with patronage. It repeals 10 Acts or Measures and amends 25 others. One hopes that that in itself is advantageous to all concerned, and not least to private patrons and their solicitors who face the responsibility of making the appointment of a new incumbent to a parish. At the moment the existing law is scattered in many places. If this Measure is passed it should provide one compendium in which most of the existing law on patronage can be found and there will be a code of practice to help those who have to administer the Measure.
The Church has been divided for a long time over the principle of private patronage. Dr. Johnson declared in 1772:
"It should be settled one way or the other.".
However, since then very little progress has been made, with the possible exception of a Measure in 1923 which forbade the sale of advowsons; that is to say, the right of patronage for money.
The Measure before us first appeared at the General Synod of 1978. In its original form it attempted to accommodate the divisions between those who wanted to retain private patronage and those who wanted to abolish it by giving to every parish the right to decide either to retain its patron or to opt for a quite different system of appointing a new incumbent. In that form of dual system the Measure was sent to the dioceses for their reactions. In the light of these the Synod decided that there was not sufficient support for proceeding even with the selective abolition of private

961
patronage. So the present Measure retains private patronage in every case. No patron will be deprived of his patronage by the Measure and advowsons can still be freely transferred from one person to another.
The measure contains three innovations. The first provides for the creation and maintenance in each diocese of a central register of the patrons of the livings in that diocese. It may perhaps be a surprise to your Lordships that no such register exists at the present time, but it is so. Part I of the Measure lays down the regulations determining how the register shall be established, and once this has been done entry in the register will be effective proof of title to any patronage.
The second innovation is that although anyone can be a patron under the Measure, only an actual communicant member of the Church of England or of a church in communion with it can present a priest to the bishop for institution. The implication of this is that when a vacancy occurs in a parish the registered patron will be invited to make a declaration that he is a communicant member of the Church. If he (or she) is unable to make the declaration, he is to nominate someone of his own choosing to act for him in the vacancy who can so declare. It follows from this that the particular disabilities which up to now have been imposed only on Roman Catholics and Jews in this matter will disappear if the Measure is enacted.
I hope I shall not be wasting your Lordships' time by pointing out that a patron who cannot make the declaration does not thereby lose his status or rights as a patron. He merely renders himself unable to present the candidate for this particular vacancy in the parish for which he is responsible. If he becomes able at a later date to make the declaration, he can then act independently of any nominee. If he decided to give or bequeath his rights as a patron to some other member of his family or transfer them elsewhere where the declaration can be made, no nominee would be required. I believe it is right to say that in the General Synod there was widespread satisfaction that the peculiar disabilities which Roman Catholics and Jews have suffered in this matter in the past would be done away with by this new Measure. There was also a broad recognition that it is appropriate that the person who actually presents a new incumbent to the bishop and to the parish should himself or herself be a member of the Church of England.
The third innovation is that a patron under the new Measure is required to obtain the agreement of the churchwardens or some other representatives of the parish, as well as the agreement of the bishop, to his nomination before proceeding to offer the incumbency to the priest of his choice. Existing law gives the bishop little or no power in the matter and gives to the churchwardens only a limited right to make represent-ations against the patron's nominee if they so desire. It is, thankfully, now increasingly the practice for patrons to obtain the goodwill and agreement of both churchwardens and the bishop before proceeding to make an appointment, so that in most cases this new Measure will simply legalise existing practice.
Finally, I should perhaps report that at the final approval stage of this Measure in the General Synod in February last year the voting figures were 270 votes in favour and four against. Earlier this year the Ecclesiastical Committee of Parliament considered the
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Measure and found it to be expedient. I have pleasure, therefore, in commending it to your Lordships' House. I beg to move.
Moved, That this House do direct that, in accordance with the Church of England Assembly (Powers) Act 1919, the Measure be presented to Her Majesty for the Royal Assent.—(The Lord Bishop of Gloucester.)
7.15 p.m.
Lord Williams of Elvel: My Lords, I apologise for my voice, but I am suffering from a cold. I think I have to declare an interest because I am a financial adviser to Christ Church, Oxford, which, as the right reverend Prelate will know, is a substantial holder of patronages. Having said that, I hope it will not deflect the comments that I should like to make on the Measure.
The register is obviously welcome. The restriction of the ability to present an incumbent to the bishop by communicants is also obviously welcome, as is what the right reverend Prelate said about lining up the legislation with that prevailing in the case of Roman Catholics and Jews.
With regard to the consultation with the parochial church council, I should like to ask the right reverend Prelate two questions concerning Clause 11 of the Measure. Clause 11 sets out the requirements as to meetings of the parochial church council. The parochial church council shall have a meeting to allow the,
"preparing [of] a statement describing the conditions, needs and traditions of the parish".
That is subsection (1)(a). Subsection (1)(e) reads:
"deciding whether to request a statement in writing from the bishop describing in relation to the benefice the needs of the diocese and the wider interests of the Church".
My question in respect of both these statements is this. What are the responsibilities? What responsibilities does the Church place on the parochial church council and on the bishop of the diocese to ensure that these statements are (if I may use prospectus-type language) "a true and fair view" of what is happening in the parish? It is not for me to go into the various arrange-ments that different political parties make about their selections, but I have known parties which from time to time in inviting candidates to apply have written reports about their own constituencies which bear little relationship to the truth of the matter.
I suspect that there may be in some unknown world—I am myself a member of a parochial church council and it is not in my world—a parochial church council which might prepare a statement,
"describing the conditions, needs and traditions of the parish".
That bears little relationship to the reality of events. I hope that the right reverend Prelate can give us some assurance on that.
The second point is the question of what the bishop should say when he is requested to prepare a statement in writing describing in relation to the benefice,
"the needs of the diocese and the wider interests of the Church".
It is well known in your Lordship's House that the wider interests of the Church range across a very considerable spectrum. How is the general public, and

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how are we as practising members of the Church of England, to determine that the bishop is writing a statement on the needs of the diocese and the wider interests on the Church that truly reflects not a sectarian point of view but the wider interests of the Church? I should be grateful if the right reverend Prelate can comment on that.
Having said all that, speaking as one of those communicants whom I hope in the course of time will be able to present an incumbent I wish the Measure well and should not stand in its way.
The Lord Bishop of Gloucester: My Lords, I thank the noble Lord for his comments. I shall do my best to answer at rather short notice the important points he raises about Clause 11. It may help to refer him to subsection (1) (d), which states that the parochial church council, as well as preparing its own statement of the conditions, needs and traditions of the parish and deciding whether to request a statement in writing from the bishop, is also to decide,
"whether to request a meeting under section 12".
The meeting under Clause 12, if requested by any of the parties concerned, brings together in one place the representatives of the parish, the bishop and the faithful for some kind of discussion. One can only hope that by bringing what might be contrasting, if not conflicting, interpretations of the particular needs of this parish, and perhaps even the wider interests of the Church as well, some near approximation to the truth may emerge simply by coming together. It would in fact be a kind of synod because a synod is technically a coming together of different points of view. But there is no way in which—there is no final court of adjudication, I believe, by which—these statements of the perceived needs of the situation can be judged, as it were, objectively. Clearly, there will be a code of practice which will obviously guide a PCC in the kind of comments that they would be asked to make under 11 (a).
They will be encouraged to take a broader view, for example, than the very narrow needs which the individual members of that council may have. I fully recognise, as I think would most bishops, that it is unhappily possible for a parish to become almost in the grip of a small clique who may comprise the majority of the church council at that time. One can only hope that the patron, taking advice also from the bishop and others, may be guided not to give too much weight to such a narrow view. So although I am afraid that I cannot offer from the Measure any kind of final arbiter in these matters, one hopes that good sense and a bringing together of the parties would succeed.
As to whether the bishop can safely be relied upon to voice at the meeting the wider interests of the Church, something of the same subjectivity of course applies; but I suppose that it is part of the theological tradition of any episcopal church that bishops stand for and symbolise the wider Church—indeed, the whole catholic church—and it is at least their responsibility to bear in mind in all they do the needs of the whole Church rather than one segment of it.
What are partly involved here would be such factors as the ecumenical situation in that particular town or parish, the needs perhaps of priests returning from
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overseas who need to find appointments in the Church of England on their return. There are a number of ways in which a bishop inevitably sees a slightly wider scene than those whose jobs it is simply to represent the parish. I think that that is the underlying suggestion here. An episcopal church, unlike a congregational church, needs to have a slightly broader perspective in making appointments than simply: "Who would be the best man to serve our parish?" That in the end would be simply a congregationalist approach; and an episcopal church always, I think, will try to look a little wider than that. I hope that those are in some way suitable responses.
On Question, Motion agreed to.

Outer Space Bill [H.L.]
7.24 p.m.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Lucas of Chilworth): My Lords, I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered.—(Lord Lucas of Chilworth.
On Question, Motion agreed to.

COMMONS AMENDMENTS
[References are to [Bill 99] as first printed for the Commons.]
1 Clause 2, page 1, line 16, at end insert ", a British National (Overseas)"
2 Clause 15, page 8, line 14, at end insert—
"( ) The Secretary of State may appoint a later day for the commencement of so much of section 2(2)(a) as refers to the status of British National (Overseas)."
Lord Lucas of Chilworth: My Lords, I beg to move that the House do agree with the Commons in their amendments. Perhaps it may be for the convenience of your Lordships if I remind the House that the amendment refers to the 16th line on page 1 of the Bill. This is incorrectly printed on the face as "15". I do not think that that will imperil our considerations of the Commons amendments. I think perhaps that it would be for your Lordships' convenience if I move both Amendments Nos. 1 and 2 together.
The House will recall that at the Second Reading in February of this year we were discussing the fact that the Bill essentially fulfils international obligations concerning private sector activities in outer space. The Bill will provide the legal framework within which private-sector companies will have to plan their space projects. It sets up a licensing system which will enable us to exercise the required measure of supervision.
The two amendments which we are considering are purely technical and are to take account of the fact that since your Lordships considered this Bill, the Hong Kong (British Nationality) Order has been made. This order creates a new category of British nationality whose holders will be known as British Nationals (Overseas). Amendment No. 1 includes these persons in the definition of "United Kingdom nationals" for the purpose of this Act in order to ensure that they will be "persons to whom this Act applies", since we shall be responsible for any outer-space activities carried on by British Nationals (Overseas).

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Amendment No. 2 is consequential upon the first in dealing with a possible problem of timing. Since the Hong Kong (British Nationality) Order does not come into effect until 1st July 1987, and whereas this Bill may be effected earlier, the amendment allows for a later commencement date with reference to British Nationals (Overseas), as specified in Clause 2(2)(a) of the Bill. Therefore, when this new category of British Nationals comes into existence, we can commence the Clause 2(2)(a) provision and thereby make persons falling within it persons to whom "this Act applies". I hope that that is reasonably clear. I assure the House that this is essentially a technical matter. I beg to move that this House do agree with the Commons in their Amendments Nos. 1 and 2.
Moved, That the House do agree with the Commons in the said amendments.—(Lord Lucas of Chilworth.)
Lord Williams of Elvel: My Lords, we have no objection to these amendments which, as the noble Lord has said, are consequential upon certain other things that have happened. However, I cannot let the occasion pass without objecting yet again to the expression "British National (Overseas)". However, I am not going to oppose the amendments simply for that objection which is an objection of principle and not an objection that relates to this particular Bill.
On Question, Motion agreed to.

Weights and Measures Act 1963 (Miscellaneous Foods) (Amendment) Order 1986
7.29 p.m.
Lord Lucas of Chilworth Lord Lucas of Chilworth rose to move, That the draft order laid before the House on 30th June be approved. [29th Report from the Joint Committee.]
The noble Lord said: My Lords, I beg to move the draft order which stands in my name on the Order Paper be approved. The draft order, if your Lordships approve it, would amend detailed weights and measures provisions for the sale of food and drink contained in the Weights and Measures Act 1963 (Miscellaneous Foods) Order. This was approved by your Lordships' House in August 1984. Amendment is necessary from time to time to take account of changes in EC legislation in this area and of developments in the marketplace. The order which I bring before your Lordships this evening is the third such amending order and, although necessary, is of limited effect.
The first three amendments stem from recent European Community legislation. If approved, the draft order would implement provisions in three council directives which have introduced or amended Community standards of composition and labelling for caseins and caseinates (that is to say, milk proteins), preserved milk and coffee and chicory extracts. It would require edible caseins and caseinates and preserved milk to be prepacked only in a container marked with the net weight of the contents. I should
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perhaps explain that existing United Kingdom legislation allows a declaration of net weight or capacity measure. However, this order would allow the quantity declaration to be given in a document accompanying the product when it is sold otherwise than by retail and in a quantity of 10 kilogrammes or 22 lbs. or thereabouts or more.
Two further amendments are concerned with the provisions governing sales of coffee extracts and chicory extracts. Use of the existing prescribed quantity of 300 grammes, which is currently available for both coffee and chicory extracts, is to be restricted solely to coffee extracts and a new size of 250 grammes is to be introduced from mixtures of coffee extracts and chicory extracts.
I should perhaps reassure your Lordships that this arrangement will not be so confusing as might at first appear since only a very little of the mixed product is sold in this country. It is very much more popular on the Continent, and the size was introduced at the request of packers in France and Germany. Domestic packers will continue to be able to market their pure coffee extract in the sizes to which we in the United Kingdom have all become accustomed.
The draft order would also reduce the limit below which prepacks of coffee extracts and chicory extracts need no longer carry a statement of weight—this from 8 grammes, which is the level set in 1977 by the original directive, to 5 grammes, which is the general level set in 1979 by the food labelling directive.
Finally, the draft order would reinstate a requirement—I have to confess this with perhaps just a modest amount of embarrassement—that was inadvertently omitted when the previous legislation was consolidated in 1984: that is, that chocolate or cocoa products, when sold loose in a quantity of 50 grammes or more—that is, 2 oz., which is not really very much—must be sold only by net weight.
The combined effect of the minor amendment to weights and measures law proposed in the order would be essentially to discharge the United Kingdom's obligations under European law without increasing significantly the burdens on business and enforcement authorities, nor reducing the effective protection afforded to consumers. As such, the amendments do have the support of consumers, traders, and enforce-ment authorities.
Finally, I am sure your Lordships will wish to know that the order was considered by the Joint Committee on Statutory Instruments and the committee did not draw the special attention of your Lordships' House to it. With that explanation, I beg to move the draft order.
Moved, that the draft order laid before the House on 30th June be approved [29th Report from the Joint Committee].—(Lord Lucas of Chilworth.)
Lord Williams of Elvel: My Lords, I am most grateful to the noble Lord the Minister for his succinct and clear explanation of this draft order. I am very glad to hear that its provisions are not, to use his words, as confusing as "might at first appear", because to somebody coming new to these things it appears to be somewhat confusing. However, if he tells us that it

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is all the fault of the French, I suppose we can recognise that the matter of confusion will come into it. I also understand the noble Lord's clear embarrass-ment about the omission from the consolidation in 1984.
Having said all that, from our side we have no particular objection to this draft order and we would not wish to oppose it.
On Question, Motion agreed to.
Lord Brabazon of Tara: My Lords, I beg to move that the House do now adjourn during pleasure until five minutes past eight o'clock.
Moved accordingly and, on Question, Motion agreed to.
[The Sitting was suspended from 7.35 until 8.5 p.m.]

Public Order Bill
House again in Committee.
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 17:
After clause 5, insert the following new clause:
("Disorder and damage to property by trespassers.

.—(1) A person is guilty of an offence under this section if:—

(a) he enters or attempts to enter on private land as a trespasser with one or more persons, with the intention of depriving the person entitled to the ownership or occupation of the land of the use and enjoyment of it, and

(b)

(i) the entry or attempted entry on the land may result in serious public disorder or serious damage to property, or

(ii) his conduct in attempting to enter the land or his presence on the land is such as to be likely to cause harassment, alarm or distress to persons present at the scene.

(2) For the purposes of subsection (l)(b)(ii) above, no person other than the trespassers need actually be, or be likely to be, present at the scene.

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

(4) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.").

The noble Lord said: I hope it will be for the convenience of the Committee if I speak to both of my Amendments, Nos. 17 and 18. Because of the publicity that these amendments seem to have attracted, I should like to remind your Lordships of the background to the problem of certain types of trespass.
In 1982, the problem of access and trespass was raised on the Administration of Justice Act and my noble and learned friend the Lord Chancellor was kind enough to listen. Maybe as a result, he brought the Occupiers' Liability Act before the House in 1983, which went some way to help landowners and farmers give better access to the public with less chance of finding themselves sued for negligence by those who come on to our farms. The question of trespass was discussed, but the matter was not pursued though it was recognised as a problem. It was also recognised that irresponsible trespass, if I may call it that, made farmers less willing to welcome responsible and law-abiding walkers.
I mention this history so as to put the record straight. I have not brought these amendments before the Committee as a panic reaction to the unfortunate case of Mr. Les Attwell. I have brought them because I want the Committee to recognise that there is a problem which will not go away. I hope that I may be able to convince the majority of the Committee that there is such a problem and that it must be tackled. I also hope that the Committee will be able to help me with my amendments to solve this problem.
So much for the background. May I draw the Committee's attention to the problem? The problem is perfectly simple and can be summed up by saying that, as each year has gone by, the farming community has been increasingly concerned by the activities of fringe organisations, such as militant animal activists, anti-vivisectionists and others, who trespass on farms with the intention, among other things, of causing injury to the occupier or indeed damage to the property. To me, these people are the most tiresome—indeed, the most dangerous—of those who come uninvited onto our farms to the great detriment of those whom we welcome.
Then, of course, there are the well-publicised actitivities of the recent peace convoy which, as your Lordships will remember, caused great distress to Mr. Les Attwell and put him in a most difficult position because of the damage caused to his farm and, indeed, by reason of the legal costs in getting the peace convoy off his land. I believe that the actions of these two types of trespasser should be better controlled so as to allow farmers to work and, indeed, live in peace.
The existing law just does not provide such protection; first, because obtaining possession of land by way of action in the civil courts is both time consuming and costly—costly to the farmer, but perhaps not to the legal profession. I have to remind the Committee that the farming industry is going through a period of financial crisis, and farmers really have better things to do than to have to go to court to ask to be allowed to continue to work. Secondly, although Clauses 4 and 5 of the Bill help, they will not help in the majority of cases where the offenders cannot be identified, which is a most common occurrence in these matters. Thirdly, there is no remedy under the existing criminal law against those who simply enter the land as trespassers and set up camp against the occupier's wishes.
My amendments would solve these problems, including the problem of trespass by three or more vehicles. At this stage I do not intend to delay the Committee by spelling out the exact deails of my amendments—after all, noble Lords can read—for I am trying now to persuade the Committee that there is a problem. However, if the Committee feels that there are technical problems or difficulties to my amendments, I shall be happy to try to answer them. But I shall answer them as a citizen and as a farmer, not as a lawyer, for not for the first time I have to remind the Committee that I believe the law and indeed the lawyer are there to serve me, the person, and not the other way round.
However, before leaving the details of my amendments, I should point out that there are safeguards in them for those who trespass innocently without harmful intent. So my amendments will

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deprive neither the walker nor indeed the field sportsman, both of whom I have been in the past, and still am, keen to encourage; for I recognise only too well the great privilege I have personally of living in the country. I really do believe that the majority of farmers are only too happy to see our town cousins relax in peace on our farms.
It may be that I have not described correctly the background to the problem. It may be that the details in my amendments need improvement. But I would say that these are minor problems which the Committee, I hope, can correct. What I must do, and I hope I have done it, is to convince the Committee that there is a problem which must be solved. I have to remind the Committee that I am pleased to say that my right honourable friend the Prime Minister, the Home Office, and in particular my noble friend Lord Glenarthur, have all accepted that there is a problem. I should like to thank the Government for listening so carefully over the past few months to those organisations that have put this problem to them. I hope therefore that the Committee will also see that there is a problem.
I ask the Committee to accept that the present law makes it difficult—in fact I would say almost impossible; no, that goes too far: impracticable—for the working farmer to deal with the kind of trespass and trespasser that I have mentioned in this amendment. I ask the Committee to accept that farmers have a right to work without such harassment, if you can call it that; I ask the Committee not to say that all is well and then set about destroying the small print of my amendments with no constructive alterna-tive. Anyone can knock down; it is building that is so much more difficult, albeit more satisfying. I therefore ask the Committee to accept my amendments as a way forward to solving these problems. I beg to move.
8.15 p.m.
Lord Denning: I should like to support this amendment, or, at all events, the principle underlying it. Perhaps I may say a little about the law. At common law trespass was not a criminal offence. It was simply a ground for a civil action. One of the textbooks from which I learned, Sir Frederick Pollock's book on torts, said that the notice "trespassers will be prosecuted" was just a wooden falsehood. You could not prosecute a trespasser. Trespass was not a criminal offence except—and this is how it developed—trespass in pursuit of game, which was by statute made an offence. That was to catch the poachers. It remained a civil matter only until we had the trouble with the squatters.
The squatters came in, and under the civil law as it then was, in order to get them out you had to launch a civil action and you had to name the actual people who were squatting in order to issue a writ against them. That was bad enough when you could not find out who they were. You were often stultified because after you had obtained your writ those named people would go out and other named people would come in and squat, so you were baulked every time in trying to get an injunction to get them out.
We got over that by altering the rules of court, saying that you need not name the individuals; you could name the occupiers or the squatters and put the
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notice on the premises. They you could get an injunction to get them out. But it took time and money to do it. You had to give them five days' notice at least; the case had to come up and be heard. It took time and money to get those squatters out, and what a trouble it was.
Now we have this new problem. Gypsies have to be properly accommodated by the local authority. Proper accommodation has to be provided for genuine gypsies. But these are not genuine gypsies. These are just maurauders trespassing on land and doing damage without any vestige of right whatsoever.
What is to be done? Surely the time has come when wilful trespass on land, knowing you have no right there, and, as the amendment says, doing it,
"with the intention of depriving the person …of the use and enjoyment of it",
and all other matters set out in the amendment, should be dealt with not merely by the civil courts, but that the police should have their hand strengthened so as to be able to evict or arrest or move the people on without the owner having to go to the expense of civil proceedings. That is, I gather, the objective of the amendment. While the wording might be complained of, how sensible is the amendment:
"A person is guilty of an offence … if he enters or attempts to enter on private land … with the intention of depriving the person entitled to the ownership"
of that land. That is different from an ordinary rambler or walker. One is talking about people who intend to deprive the owner of his land.
There is also an offence if such action,
"may result in serious public disorder or serious damage to property".
Surely all those actions ought to be made criminal offences. We have seen the evil and mischief coming from the hippies, and we have seen the plight of Mr. Les Attwell. It is time that the law was brought up to date. There may be a difficulty with the definition but we ought to be able to overcome that.
Subject only to a proper definition, I hope that the Committee will agree that depriving an owner of the use and occupation of his land ought to be made a criminal offence. It need not be heavily punishable, but the police should be allowed to enter to clear the land. Let the person concerned be taken to the magistrates if need be, to be dealt with at all events by the criminal law, and not have the matter left to the rather unwieldy process of civil law.
Viscount Massereene and Ferrard: As we all know—
Noble Lords: Order!
Lord Montagu of Beaulieu: In our Second Reading debate I warmly welcomed the assurance of my noble friend Lord Glenarthur that the Government would be looking carefully at the arguments I put forward in favour of creating an offence of trespass, and I have looked forward to debating a government amendment in Committee. However, in the continuing absence of such an amendment from the Government themselves, I have put my name to Amendments Nos. 17 and 18 in order to provide protection for the rights

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of landowners from the actions of those who have no regard, and who indeed take pride in having no regard, for those rights.
While I fully understand and sympathise with the Government's desire, and I believe the desire of the Opposition as well, to ensure that those who trespass accidentally and without any threat to the landowner should not be at risk of prosecution, it must be recognised that in recent years there has been an arrogant and flamboyant disregard for the rights of landowners, resulting in damage to flora and fauna and to the environment as a whole. It is becoming an increasingly serious problem. As the opportunity provided by this Bill to deal with it may not arise again for some time, let us address ourselves to it now.
When I spoke on Second Reading, I explained that as chairman of British Heritage I was particularly concerned to ensure that we shall be able to fulfil our statutory duties to protect ancient monuments. Since such historic sites have increasingly become the target of travellers such as the peace convoy, it is essential to ensure that trespass on such sites should be a criminal offence. Experience shows us that travellers such as those often camp on land that is only partly the site of an ancient monument or that may adjoin a monument. However, in such situations the risk to the monument may be just as great as if the trespass was on the site itself.
If we have to go to court on every single occasion, as the noble and learned Lord said, to spend time and money in order to protect our monuments, which we have a statutory duty to do laid on us by Parliament, then surely there is something seriously wrong with the law. It is clear to me that landowners, be they private, corporate, the National Trust or even quasi government organisations, deserve the protection of the law against those who deliberately set out to disregard their rights to enjoy the benefit of that land, or who pose a threat to our ancient monuments or SSSIs.
Moreover, I believe that those whose position we seek to safeguard in creating such an offence, such as ramblers or the hunting fraternity, will share that view. However, there is no doubt—and I speak now particu-larly to Amendment No. 18—that one of the greatest threats to the countryside today is from the improper use of the motor vehicle. As the noble and learned Lord, Lord Denning, said, the old days of the gypsy caravan were quite different. Nowadays, not only are vehicles that trespass unlicensed and uninsured and have no MoT certificate, but money is spent instead on specially reinforcing them in order that they can drive through hedges and gates. While on the land, they pollute it with oil spills, and it takes many years to eradicate the ruts.
We are not concerned tonight, I hope, with the innocent caravanner. He will no doubt be a member of the excellent Caravan Club of Great Britain, which lays down very strict rules for its members. They will go where they are asked to go, and they will leave when they are asked to leave, too. They do not chop down trees or kill sheep, and they pick up the litter when they depart. If one studies serious cases of trespass in recent years, be it at Stonehenge or other places, one finds
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that they have been a result of the misuse of vehicles. I believe that the control of vehicles will go half-way to solving the situation.
I hope that the Committee will support the principles of the amendments, because even if they are defective in their wording they surely represent the right way to go. I feel certain that the amendments will enjoy support from all sides of the Committee.
The Earl of Radnor: I rise to—
Viscount Massereene and Ferrard: As we all know, such damage is only a civil offence at the moment. The real question is how one really gauges damage. I have often experienced occasions when harmless trespassers have walked through a field and left the gate open, so that the cattle or horses got out. It is almost impossible to find the individual responsible, and probably he did not mean to do it anyway. So one cannot really make such instances a criminal offence. However, if someone trespasses onto private property and sets fire to a wood or to the corn, then that is a different matter.
Under the 1948 Act, one is allowed to walk anywhere in England and Wales where there is unenclosed country such as moorland or hill land. Funnily enough, that does not apply to Scotland. Nobody appears to know that, and somewhat naturally the tourist offices always hide the fact; but the 1948 Act does not apply to open land in Scotland. Therefore, anyone walking on the hills in Scotland is committing a trespass and he can be turned off that land. It is of course a question of who is the stronger. But provided such a person is not doing any damage, one naturally would not think of turning him off the land.
We must remember that in this country we now have a population approaching 60 million. We are one of the most overcrowded countries in Europe, although Belgium is close to us in that respect. We lead the world in population per square mile. Nearly everyone has a car. I understand that there are well over 30 million motor road vehicles. They roar out into the countryside and can do a tremendous amount of damage. Two or three years ago, I had an experience involving some young men who stole a car. They drove into the parks and smashed all the gates. The car went on fire and then all the cattle got out. Those young men then returned to steal another car. They did that three times and caused the most appalling damage.
The police eventually found those young men. They were sent to an approved school, where the person in charge gave them some pocket money and put them on parole. They went out and did the same thing again, I think in Hampshire or in Sussex. In any event, they were again arrested and went to borstal. Such incidents are serious because land, and especially arable land, is a very precious asset. If hordes of people are to be found camping on that land, that will be a very serious matter. I back the amendment most strongly and I am sure the Government will take note of it.
I give landlords a tip about poachers—and tourists, for that matter. It is quite hopeless putting up notices saying that trespassers will be prosecuted. However, what is most effective is putting up a notice saying

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"Beware of the agapanthus", which is a blue flower. It is far better than a notice saying "Beware of the bull" because often rude things are written on it. However, I support the amendment.
8.30 p.m.
Lord Middleton: My noble friend Lord Stanley has referred to some real problems. I welcome the fact that he has moved these amendments because my noble friend on the Front Bench said at Second Reading that the Government would look into the question of whether any change was required in the law on trespass. These amendments will surely give him an opportunity to give a clear indication of the Government's thinking, either now or at a later stage. Therefore, I welcome these amendments.
There are undoubted pitfalls in the way of a change in the law of trespass. I recognise that. Some of the pitfalls were referred to at Second Reading by my noble friend on the Front Bench. The argument is that you should not criminalise the activities of ramblers, bird watchers and gypsies. My noble friend Lord Stanley has told us that his amendment will not do so but I am not too sure that it will not. I am not sure that the ramblers and bird watchers are sufficiently protected against being criminalised by this amendment.
I hesitate, in view of what the noble and learned Lord, Lord Denning, said, to say this but I should have thought that it would be perfectly possible for the person entitled to the ownership or occupation of the land to say that his use and enjoyment precluded it being walked over, or having people rushing to photograph a rare bird over his land, and that it could be shown that they intended to deprive him of that particular enjoyment. I should have thought it would be very easy to say that he was suffering alarm and distress. Therefore, I am worried that the walker, rambler or bird watcher may not in this particular amendment be sufficiently protected. For that reason it would be a great pity if the amendment were to go through in this form.
The Earl of Radnor: As I have put my name to the second of these two amendments, perhaps I might be allowed briefly to speak to it. 1 should like to make quite clear that it is the second amendment I favour and not the first. The presence of vehicles is of considerable importance, and the first amendment is spread rather too widely for my liking.
I speak with some trepidation in front of noble and learned Lords on a matter which is essentially a legal one, and I know little about the law, but since 1974 I have had the bad experience of noticing these so-called hippies in that they have been on and off my land in lesser and greater numbers. I feel it might be of value to the Committee if I describe how the matter developed and how I think, as the law stands at the moment with it being a civil affair, that this nuisance—it is more than a nuisance—will always be perpetuated.
In 1974, when caravans started arriving on my place, most unfortunately—the noble and learned
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Lord, Lord Denning, brought out this point—Wiltshire did not have the statutory number of places for gypsies and itinerant people to go to. So this small start of caravans acted like a magnet to others, sometimes more at one time of the year and sometimes less, until eventually—I suppose in the late 1970s—Wiltshire had enough places for itinerant people.
By that time there were about 70 caravans and a heap of filth and rubbish such as the Committee would not believe. I would not be wrong in saying that the police were perpetually around the place investigating misdemeanours of one sort or another—whether it was to do with child care, theft, or whatever. There was an interesting agricultural aspect, from my point of view: in our temperate climate they found cannabis being sown and grown happily in one of my fields. The whole affair was a perfect nuisance.
Then the trouble came and during this period the local council offered temporary accommodation. However, when the places had been provided for the gypsies and itinerant people, the so-called hippies would not go to those places. What is more, the few gypsies already there would not accept them. The two peoples are like oil and water—they just do not mix.
I am told that it cost a lot of money to shift them. They were on a green lane on which I own the soil to half way and my neighbour owns the soil the other way. I believe that the highway authority, in the form of the district council, owns the rest. The highway authority, I suppose because it had a conscience for not providing the places for itinerant people, paid the bill. I am told it was a very large bill. Then what happened? They all moved on to somewhere else and someone else had to repeat the process. So it goes on. That is the crucial point: it goes on and on.
I give one more example—the recent performance at Stoney Cross in the New Forest. A splinter group came, not on to a green lane but right on to my land. It came at night and settled down, quite amusingly, around the farm manager's house in four or five buses. The buses then spawned an enormous wigwam, and the wigwam spawned the almost inevitable mass of rubbish, rather grubby children, and lots of dogs. We had to take out an order and my people had to come to court in London. We shifted the splinter group. They moved on, still on the farm and still in Wiltshire to a green lane. Once more the highway authority was involved. So what had been gone through on one Friday had to be gone through again the following Monday.
My farm lies on the Wiltshire-Hampshire boundary. On Monday they moved again, into Hampshire on to the land of one of my neighbours— and he did not exactly thank me for it. I believe he has now shifted them. So it will go on. The last operation I have described cost me, I am told £1,300 visibly in bills, and probably a lot more in office time, talking to these itinerant people, receiving abuse, being in contact with the police, and so on. I do not think that this on-going performance can be stopped until it is made a criminal offence, as described—perhaps not very well described or precisely described—in this amendment.

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I hope that something of this sort to do with vehicles settling on a place can be drafted so that the police can move in when it is right to do so and not just move the people on but immediately take some action. Until that happens, I do not think that this nuisance, which is a growing not diminishing nuisance, will go away. To that extent, I support the second of the two amendments.
Baroness Macleod of Borve: I wonder whether I may be permitted to keep the Minister for a moment or two? I should like to thank my noble friends Lord Stanley, Lord Montagu and Lord Radnor for bringing forward these two amendments. I have a feeling that this might well be one of the opportunities that we have to draw the attention of the Government to what is happening.
Some members of our society, some Members of this Committee—and in fact most people—want to support conservation; but we are now having the exact opposite in parts of the countryside. Within 30 miles of this place, in an area which I know very well indeed, the local authority, since it came into being, has been responsible for a roadside patch on which there is a relatively small group of itinerant tinkers—I do not call them gypsies because I like gypsies and I do not like these people. The squalor in that place has to be seen to be believed and the smell has to be experienced to be believed. The local authority, I understand, occasionally gets rents from the caravan dwellers. I say caravans, but they are not proper caravans; they are a lot of huts surrounded by broken-up lorries and cars and scrap metal of all kinds. There is room for only 12 of those dwellings. For the 12 there is one standpipe and one Elsan.
To my knowledge, every caravan dwelling has several children, and it does not need much mathematical prowess to see that that number of people is obviously too great for the one Elsan. So what happens? The owner of the woods backing on to this site has had his woods absolutely ruined; not the whole length of them (I will not say that) but much of the woods is ruined. The trees are cut down. They are burnt and sometimes they are sold as logs by the side of the road. The woods themselves are also used instead of the Elsan. For that number of people in the height of summer, or indeed in the winter, it is a health hazard, and something needs to be sorted out properly.
Added to that, the motor bikes owned by the local young people go through the com crops and round the woods at all times of the day and night, making a great deal of noise and of course smell. The break-up yard is full to capacity. No one seems to take away the rubbish, certainly not the local authority. I feel, as do my noble friends who have already spoken, that something more could be done.
I have been handed this evening a copy of the Trespass (Scotland) Act 1865. I wonder whether we can use that, with government help, in this country. Section 3 says:
"Every person who lodges in any premises, or occupies or encamps on any land, being private property, without the consent
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and permission of the owner or legal occupier of such premises or land, and every person who encamps or lights a fire on or near any private road or enclosed or cultivated land, or in or near any plantation, without the consent and permission of the owner or legal occupier of such road, land, or plantation … shall be guilty of an offence punishable as hereinafter provided."
That seems almost to encompass what we want the Government to do, but we still have to get the local authority and the police to implement the laws, if we are able to bring them into being.
I felt that I had to speak as I know of this matter very well. That is why I have taken up a moment or two of the Committee's time tonight.
8.45 p.m.
Lord Mackie of Benshie: I think the point that has been brought up is an extremely important one, not for many of the reasons so far adduced on the other side of the Committee (though they are also good reasons) but because the law is completely out of date.
In the old days, before communications were what they are now, if such a nuisance occurred in Scotland the landlord or farmer who was being annoyed or whose property was being destroyed could take out an interdict against the person concerned. That was his defence, and it would normally stop the damage being done. However, today one does not know who may be doing the damage. Indeed—and I am talking about Scotland—there are groups in Glasgow and Edinburgh who, if one of their number has an interdict taken against him for damaging a property, will immediately arrange quite happily to send another 30 and after that another 60 until a point is reached where the law is so out of date that nothing can be done without enormous expense. In fact, it becomes impossible to stop deliberate malevolent damage being done against a certain farmer or landowner.
We live in a time when the poorest person can get hold of transport and can travel 100 or 200 miles and enjoy himself, if he wants to, in this strange way of cutting down trees, lighting fires, setting fire to the heather or any other particularly unpleasant pastime, and he can go back again and no one knows who he is. People can do that in large numbers. If there is some strange group that says, "We'll all gather on George Mackie's farm in the middle of his strawberry field", the media will say how terrible this is, but they still publish it, and from the four corners of the earth come these people in their motor cars to descend on George Mackie's strawberry field. If they come to pick his strawberries, that is all right, but if they come to destroy them, as they may well do, that is all wrong.
I think that the law as it is at present is creaking. It was built for a different age. It is obvious that the procedures must come up to date. I think that that is the main point of the amendment—that something has to be done to make the law effective in protection of the legitimate rights of the landlord and the farmer. Of course, the legitimate rights of the public to walk in the countryside and enjoy nature must be protected against the landlord, but the unfortunate owner needs protection, too. At present, with modern-day systems of communications and travel, he has no protection whatsoever.

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That is why I think that the amendment should stimulate—if that is possible—the Government to do something about it, though personally I think that they should accept the amendment.
Lord Broxbourne: I am glad that the noble Lord, Lord Mackie of Benshie, has made his interesting intervention. Up until then, there had been a steady sequence of speakers from the Government side of the Committee. I would hesitate to term it an embarras de richesses—any such thought is dispelled when I rise to my feet—but we shall no doubt have riches later from the noble and learned Lord, Lord Silkin, when it may be said, in the words of Mr. Wackford Squeers,
"Here is riches".
This is an amendment of good intent. I hope that my noble friend will not regard that as too discour-aging a description, having regard to the destination that the proverb assigns to good intentions. It is of good intent. It seeks to fill an undoubted lacuna in the law—the absence of powers in the Bill to control assemblies and demonstrations on private land held without the consent of the owner or occupier. The loophole is clear. It is also illogical, since the definition of public assembly in Clause 16 restricts the operation of Clause 14, which deals with this type of assembly, to gatherings in a public place.
The illogicality is all the more striking since it is in contrast, as indicated in the earlier debate on clause stand part, to Part I of the Bill, where Clauses 1, 2 and 3 specifically provide that riot, violent disorder and affray may be committed in private as well as in public places. Indeed, the detached observer might well think that unauthorised entry on to private land is an a fortiori case since if powers of control are given in respect of assemblies in public places, as they are, and if they are given in respect of assemblies on private land that are held with the consent of the owner occupier, as they are, why should there be no powers where there is no consent? Therefore, I think it is an open and shut case that the Bill clearly requires supplementation and improvement in this regard.
The new clause seeks to fill this gap and make this improvement, and its purpose and motive are therefore cordially to be welcomed. However, we then come to the 64,000 dollar question which is not just about ends, on which we can agree, but about means. The question is: is criminal trespass as proposed in this new clause the right approach? Of course, it is true that, as the noble and learned Lord, Lord Denning, with his great authority has reminded us, the tort of trespass with the civil remedies attaching thereto is inadequate in this regard. I ventured to make the same point with infinitely less authority at Second Reading debate on this topic. Nevertheless, I adhere to the view that it is preferable to find remedies within the framework of the Bill rather than to institute so radical an innovation in our constitutional procedures as the introduction by, as it were, a side wind, of the novel doctrine of criminal trespass.
Perhaps I may be permitted to remind the Committee of something that I said at Second Reading debate. I give an unqualified undertaking that this is
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the only passage from my Second Reading speech to which I shall refer.
"Trespass has remained…"
Lord Renton: May I ask which column?
Lord Broxbourne: It is column 561. I am obliged to my noble friend for the interest that he is taking in this matter. I said:
"Trespass has remained through the generations a tort attracting civil remedies, and those only. It would not be in accordance with our approach to the law to introduce by a side wind, as it were, a new criminal offence without full, detailed and informed consideration. So far there has not been such consideration. It has not been in the terms of reference, so far as I know, of any of the reports on which this Bill is based."—[Official Report, 13/6/86; col. 561.]
Therefore, I still doubt whether it is the right approach to make such an innovation, at any rate without prior reference to the Law Commission and with the benefit of its consideration. My preface is reinforced—I do not want to speak in critical words—by imperfections or perhaps imprecisions in the drafting of the proposed new clause. I shall not trouble the Committee with them but in the new clause there is required not only proof of intent but proof of hypothetical circumstances, two interpretations of the generalised "serious" and also interpretation of the phrase, "likely to cause".
I have already said something to your Lordships during the earlier discussions on whether the clause should stand part of the Bill on the matter of harassment. I think that the new Clause 2 also reads oddly. I appreciate that it is taken from Clauses 1 to 3 of the Bill; but, with respect, trespass is not precisely in consimili casu with matters of riot and affray, to which the Bill applies.
My noble friend the Minister referred, when speaking on the question of whether the clause should stand part of the Bill, to a hypothetical bystander test. This is in supplementation to the well known—well known to lawyers anyway—test of the officious bystander, used for quite a different purpose to test whether or not one should imply terms into a contract. The hypothetical bystander seems to be a sort of second cousin to the officious bystander, and I should have thought fairly far removed at that. So, if I may make my submission to the Committee, for reasons both of principle and of drafting I should prefer a simpler solution within the framework of this Bill to do what this new clause very properly seeks to do. Fortunately, a solution along these lines is easy. Amendment No. 55, which stands in the names of my noble friend Lord Middleton and myself, does all that is required simply, shortly and without complexities of drafting or constitutional innovation. I referred to this matter at Second Reading, and I shall not repeat my arguments now. The Committee will clearly see that it stops up the loophole, the lacuna in this Bill, without any necessity to introduce the law of criminal trespass.
I hope that in his reply my noble friend the Minister will deal with both aspects of this matter and with these alternative possibilities in order to meet what is a clear and generally accepted need. The two possibilities are criminal trespass as advocated by my

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noble friend, and the extension of the Clause 14 remedies to private land as suggested in our amendment.
Perhaps I may end by giving a word of advice to both parties: to noble friends who are the proponents of this amendment and to my noble friend the Minister. When I offer to give a word of advice, I am conscious of the dictum that free advice is worth what you pay for it. So perhaps I shall use a different analogy and envisage myself for a moment as what continental lawyers call an aimable compositeur. Assuming that role, I would make this award: this amendment, the new clause embodied in Amendment No. 17, be withdrawn by its proponents on a Government undertaking of the acceptance of Amendment No. 55, which fills the gap within the provisions of the Bill by applying Clause 14. I think that Ministers should couple that with an undertaking to look further into the possible limited introduction of criminal trespass after consideration by the Law Commission or other experts, if it turns out, as I think is unlikely, that in spite of the improvement of the Bill which will follow from the acceptance of Amendment No. 55 it is still required.
Baroness Stedman: I hesitate to intervene in this debate. I have no landed estates and no itinerant tinkers at the bottom of my garden; I have no trouble with poachers, and there are no warning notices about the dangers from agapanthus. However, some 11 years ago for my sins as a junior Minister I was the chairman of the working party on pop festivals, which now seem to be very much a thing of the past. One of my first experiences was with a young man who was a very avid pop festival attender who complained to me that the police were overbearing and domineering. I said, "In what way?" He said, "When I went to the last festival they frisked me". I replied, "I suppose they would. If you come to the Palace of Westminster you will be frisked for your own safety and that of other people". He said, "Yes, but they took away my axe". I replied, "I hope that they did, because it is an offensive weapon. What were you doing with an axe when you were going to a pop festival?". He said, "You just don't understand. When we congregate at pop festivals we do not go to hear the music. We go to sit around a camp fire and commune with nature, and we need an axe to chop down the trees in order to have a camp fire".
I was reminded of that tonight when I heard of the experiences of other Members of the Committee. I have a lot of sympathy with the motives behind the amendment. We have to look at the law of trespass. It perhaps cannot be done in the way that the noble Lord, Lord Stanley, is asking at the moment. I hope that the Minister, having heard the views of the Committee from all sides, will say that he will have a look at the problem to see whether we can do something to tidy up the law on trespass either in this Bill or in another one soon to be presented to the House.
9 p.m.
Lord Silkin of Dulwich: I have no doubt that every Member of the Committee will have great sympathy with the problems that affect the farmer in particular and landowners generally, whether from hippies, those who frequent pop festivals or anybody else. The Committee will want the Government to continue—I hope that I may say "to continue"—to look at the matter and come to a helpful view, bearing in mind that the problems are not on one side only, as one noble Lord reminded us. There are the problems of walkers and of those who own a piece of land, and the problems that will afflict magistrates if they have to go into such questions in the criminal courts. One must not assume that the problems are all on one side and that they can be dealt with simply by a new provision in the criminal law.
Over very many years, when the problem has come up in one form or another, whether in relation to residential squatters, foreign embassies, or whatever, Parliament has shrunk from making a general offence of criminal trespass on land and confined itself to a set of circumstances that it felt needed to be dealt with at the time. That is highly significant. One does not necessarily have to be conservative, with a small or a large "c". At least one ought to take note of the fact that that has been the trend, and unless there is a good reason to move away from it, one ought to follow the pattern. That is one problem.
Another problem, which I have no doubt will have been in the mind of the Minister and about which, no doubt, he will say something, is one that came up in relation to the last set of amendments moved by the noble Lord, Lord Plant, which I and the Minister have also mentioned; that is, the question of whether this is an appropriate piece of legislation for such a provision which deals with agriculture and farming land generally and which is only remotely connected, despite the efforts of the noble Lord, Lord Broxbourne, with public order. Indeed, as I remarked on that occasion, almost anything can be involved in public order, but that does not mean that almost anything should be brought in to such a piece of legislation. It is much better to confine it to genuine public order questions and to deal in proper areas with matters tangentially connected with a particular situation.
But, as I said at the outset, there is a problem, and one which has reared its head particularly in recent weeks or months, or at least attracted a great deal of publicity—the problem of the hippy convoy and the difficulty which is apparently found by some in dealing with it. The right place to tackle such a problem undoubtedly is within the civil law. If it does not provide an effective remedy, it ought to be improved. Many improvements have taken place. It is possible now to get an injunctive remedy very rapidly indeed by going direct to a judge, and not necessarily to a High Court judge, if a speedy solution is needed, as it was in the sort of case to which I refer and in the case of those who wished to go to Stonehenge. That remedy was obtained and there was an exclusion zone built around Stonehenge as a result.
The problem can be dealt with very quickly indeed, and it need not be an expensive procedure. There may

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be a genuine reason why the farmer, I hope properly advised by those of his friends who have an acquaint-ance with the law and courts, cannot go direct to the judge to obtain an immediate injunction if he has good grounds. He may like to have somebody to hold his hand. That is understandable. I should not wish to prevent the other branch of my profession from having that benefit.
Lord Mackie of Benshie: Does the noble and learned Lord mean that if a procession of caravans approaches and enters a field, the farmer has to get a civil injunction to get it out and there should be no criminal law which enables him to stop it? How long would that procedure take if, for example, a convoy of 200 vehicles entered a field of wheat?
Lord Silkin of Dulwich: I do not know enough about the law of Scotland to answer in regard to an interdict, but for England and Wales the civil remedy by way of injunction could take as long to get as it took the landlord or his representative to find and to give the facts to a judge. It takes no longer than that. If I am asked whether that remedy will be as effective as the remedies that we are invited to agree to in these amendments, I should put this to the Committee: if an injunction is disobeyed, one can go to the judge and say to him, "There has been a contempt of court". If the judge so wishes, he can have the people concerned brought before him and can imprison them.
The Committee must ask itself how that compares with the provisions which the noble Lord, Lord Stanley of Alderley, has placed before it, no doubt on advice and after proper consideration where the appropriate penalty which he puts forward for the offences is a fine not exceeding the third level. Will it be a more effective way of dealing with 100 hippies with their caravans to require them to pay fines of £100 or £200 rather than to go to a judge to obtain an injunction? That is the type of question which no doubt the Government will consider when they study the whole subject of criminal trespass.
Leaving all that aside, and those are the difficulties which must be surmounted—I am not seeking to throw cold water on the whole idea of criminal trespass—I suggest, and I am sure that the Government have it in mind, that whatever is done, it must be done within the context of how land generally is dealt with and not, as these amendments appear to, by taking a circumstance out of the general land law and seeking to engraft it on to an unsuitable Bill.
Much as I have sympathy with the noble Lord, not least perhaps because I have been a country dweller for several years and I do not want to suffer from the problem from which he has suffered, I do not see this as an effective and satisfactory solution. There should be a solution. If the civil law is inadequate, it must be improved. If, even when improved, it cannot do the job, we should have to look at the criminal law. At the moment, I am not satisfied that we have reached that situation. I hope that the Minister will be able to inform us more satisfactorily.
Lord Monson: Will the noble Lord—
Lord Margadale: I have been bobbing up and down for a while and I promise to be brief. I understand that I am in order. I support the words of the noble Lord, Lord Middleton, and the noble Earl, Lord Radnor. I should like to thank Her Majesty's Government for bringing forward a much-needed Bill. I live within 10 miles of Stonehenge. I probably know a little more about how important the Bill is. I have a letter from a good friend who is a distinguished QC and who is unhappy with the wording of the amendment.
I do not know what the Minister will say, but I hope that after the noble Lord has heard him he might see his way to withdraw the amendment and to have it thrashed out and possibly brought forward again later in this place.
Lord Monson: On Second Reading, I drew the attention of the House to the fact that since 3rd May 1979, when the present Administration came to power, considerably more than 300 new offences had been created for which people could be fined or sent to prison. I suggested that it would be undesirable, to say the least, to add to that number if some satisfactory alternative method of dealing with the problems that we are discussing could be found. I have subsequently become convinced by the type of argument which has been deployed tonight that there is almost certainly no satisfactory civil alternative available, despite what the noble and learned Lord, Lord Silkin, says. Speed is often of the essence in these matters. I cannot see how, particularly at weekends, the civil remedy which he suggests can be effective.
I shall therefore support one of the two amendments, probably Amendment No. 18. for the reasons given by the noble Earl, Lord Radnor, in principle if not necessarily in every detail.
Lord Taylor of Gryfe: I think we are operating in a difficult area. No one will defend the abuses that have been so graphically described tonight. At the same time, we are passing a law which affects access to the countryside and which may be applied much more generally than merely to control abuses by a few hippies. We should be careful about what we are doing.
I followed the father of the noble Earl, Lord Radnor, as chairman of the Forestry Commission. I suppose, in that respect, I was the biggest landlord in this country, responsible for 3 million acres. Apart from moving the headquarters to Edinburgh, my other major achieve-ment as chairman was to provide greater access to the Forestry Commission estate. As a result, millions of people now enter the Forestry Commission estate. We have laid down rules and codes of conduct, and negotiated local agreements. No substantial offence is created. In addition, in the dedication arrangements with private owners who seek approval of dedication for the purpose of government financial support in their planting programmes, we have tried at all times to incorporate in those agreements an access agreement within private forestry ownership. I regard these things as very important. I would not wish any generalised legislation that might be passed because people are naturally indignant about certain abuses to

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endanger in any way that major social achievement. Millions of people go rambling in the Forestry Commission estate and private estates as a result of these agreements.
I notice that the Committee is taking two agreements together, although they are distinctly different. One refers to the liability of a person who is guilty. That is Amendment No. 17. But a person only becomes guilty in Amendment No. 18 if he is in or on a vehicle. That is an important distinction. Where a person is guilty of an offence, the interpretation of,
"depriving the person entitled to the ownership or occupation of the land of the use and enjoyment of it",
is very broad. One might argue that a rambler making his way through the estate to reach the hilltops to do some climbing is upsetting the sporting enjoyment of the owner of the land, although it may not be the season for enjoying sporting activities. So we have to be very careful about generalised phrases that could be interpreted in a way that would be quite offensive.
I assume that the Minister intends to have another look at this amendment, and that he is not going to accept it. I hope that, in the process of looking at it and bringing it back, he will have discussions with the Ramblers Association to see how far the interests of people who want to enjoy access to the countryside may be protected. I hope that the noble Lord will discuss also with the Forestry Commission the codes of conduct and arrangements that make it possible for people to gain access to private and state land without destroying or disturbing in the way that has been described.
9.15 p.m.
Viscount St. Davids: Before the noble Lord sits down, can he say whether the Forestry Commission regulations have any statutory weight and whether, if anyone breaks them, that is a criminal offence?
Lord Taylor of Gryfe: I cannot say. Our own rules on access to the countryside have no statutory power, I suspect. If you are a farmer planting within an area you would put up a fence or a notice; but you would not take people before the criminal courts.
Lord Glenarthur: I am grateful to my noble friend Lord Stanley of Alderley for raising a matter that is of the greatest public concern and obviously of concern to the Committee. No one watching the movements of the so-called peace convoy in recent months could remain other than horrified at the havoc that they have inflicted on the communities through which they have passed. No one could feel anything but anger at the ordeal suffered by the farmers whose land they have occupied and, in some cases, damaged, or indeed be anything but disgusted by their revolting habits, as described by my noble friend Lady Macleod.
As the noble and learned Lords, Lord Denning and Lord Silkin, have reminded us, there is already a civil law and indeed a speedy procedure for the recovery of the possession of land. My noble and learned friend
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the Lord Chancellor has been urgently considering ways in which the civil law procedures might be further streamlined. I understand that a number of proposals submitted to him by the Country Landowners' Association will shortly be put to the appropriate rules committee. My right honourable friend the Home Secretary announced last month that the Government were urgently considering whether some further strengthening of the law was required beyond the changes to which I have referred in speeding up the civil law and already proposed in the Bill. He said then that if further changes were required we should not hesitate to introduce them.
The noble and learned Lord, Lord Silkin, wonders whether or not this legislation might be the appropri-ate vehicle for it. I think that the matter we are considering here is a most serious one. It is one which hits the headlines more at some times of the year than at others. It then lapses back into relative insignificance while we wait for the next summer solstice. However, it is important.
Since my right honourable friend's announcement we have been discussing with the police and other interested parties—such as the National Farmers' Union, the Country Landowners' Association, and others who have made their views perfectly clear to us including the Ramblers Association—what form any changes to the law might take. Our ideas are beginning to take shape. We have no desire to criminalise simple trespass. I do not think that my noble friend Lord Stanley of Alderley was looking for that either.
We are conscious of the implications of any changes in the law for gypsies. We are therefore looking, as is my noble friend, for a provision which will prove effective against certain forms of aggravated trespass. Some of the ideas which we are considering bear a close similarity to the two amendments of my noble friend. But the provision is not at all easy to draft, as I think my noble friends Lord Stanley and Lord Montagu will appreciate. That is one of the reasons for the delay to which my noble friend Lord Montagu referred.
Noble Lords will want to know as much as possible about the Government's proposals and I shall do my best to indicate how our minds are working. What we have in mind is not so much a criminal offence—for which the amendments of my noble friends provide—as a new police power to evict trespassers in certain circumstances, with a back-up offence if the trespassers refuse to obey a police direction to leave. A police power to evict trespassers and their vehicles in our view may provide a more immediate and effective redress for the landowner, but it clearly needs to be backed up with criminal sanctions and also a power of arrest, although we are not sure that the power of arrest needs to be quite as wide as that which my noble friend Lord Stanley proposes.
The circumstances we envisage which would trigger the police power would be similar to elements in my noble friend's amendments: entry as a trespasser, with a refusal to leave on request, coupled with a risk of causing serious damage to property and harassment or intimidation of the lawful occupier. My noble friend Lord Stanley proposes an additional test of intention to deprive the owner of the use of the land. We shall

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look at that, but we feel that it may be difficult to prove. An alternative might be found instead in adopting the test in Section 10 of the Caravan Sites Act 1968, of intending to reside for any period. We shall also need to think further about an alternative test based on the number of vehicles used by the trespassers as proposed in my noble friend's second new clause.
Perhaps I can say to my noble friend Lord Montagu that it is an offence to drive an unlicensed or unroadworthy vehicle on the road but there is no power to stop or impound unroadworthy vehicles except for heavy goods and public service vehicles. Whether there should be wider power for the police to impound such vehicles is a matter being examined by the Road Traffic Law Review Committee chaired by Dr. North. That committee is due to report at the turn of the year.
Lord Silkin of Dulwich: I wonder whether the noble Lord can help me. I appreciate that this is still very much a matter under consideration. At present is it proposed that the power of the police should be "in the air", and left to their own decision, or a back-up power to a provision of the civil courts? In other words, will they be left to take the risk that they may be wrong, or are they going to act only when a civil court has said, "Yes, you can go ahead"?
Lord Glenarthur: It would be a separate police power: that is the way in which our minds are turning at the moment. As I understand it, the civil law would still remain. No doubt there would be other difficulties which the civil law may be used to remedy. However, according to the way in which our minds are turning at the moment—and I stress to the noble and learned Lord that we are still developing our thoughts on this matter—what I have said holds good.
The lines which I have described are those upon which we are working at present; namely, a police power to evict trespassers in certain limited circumstances where they intend to reside on the land, refuse to leave, and threaten to cause serious damage to property and harassment or intimidation of the lawful occupier. We do not have closed minds on the precise elements which might be required. Indeed, our debate this evening has been extremely useful. It has ventilated ideas and exposed some of the difficulties involved. I have to say that we are still wrestling with these difficulties and it may yet be that we shall have substantially to revise our approach, and it would be unfair for me to indicate otherwise. However, I thought it right, in view of the very strong interest expressed in the problem of mass trespass, to explain in as much detail as possible how our minds are working.
My noble friend Lord Montagu raised the question of heritage land. As he will be aware, there are specific offences concerning the defacing or damaging of ancient monuments. My noble friend referred to the damage caused to heritage land by a convoy knocking down gates or causing ruts by driving their vehicles over the land. Damage is one of the matters that we are
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looking at as a possible element in our new offence or police power, and I shall certainly consider carefully what my noble friend has said about that this evening.
We are aware of the offence in Scotland which was referred to by my noble friend Lady Macleod. It is one of the precedents at which we are looking. In particu-lar, the element of lodging or camping may help to exclude temporary trespassers, such as bird watchers or ramblers. However, as I am sure my noble friend will appreciate, the situation in Scotland is slightly different. Prosecutions under the 1865 Act can only be brought by the procurator fiscal, and I believe that it is unusual to use this offence against illegal encamp-ments of less than 12 vehicles. That also is a practice that we should perhaps consider and I am grateful to my noble friend for drawing this particular precedent to our attention.
There is clearly a connection between my noble friend's new clauses and the proposal to extend the new controls over assemblies in Clause 14 to assemblies on private land, as my noble friend Lord Broxbourne described. Indeed, I agree with him that his amendment is a great deal simpler on the face of it than that which is proposed by my noble friend Lord Stanley. The subject is for separate debate on another day and I shall of course return to it in detail then.
My noble friend asked why the offences in Part I extend to private places, but the police powers in Part II do not. The answer is that the public order problems caused by processions and assemblies have in the main been confined to public places. The police themselves are opposed to any extension of their powers to private places and, despite my noble friend's concern, I think that we should have to think very hard before conferring new powers on the police in a way that they do not want. However, I understand the force of my noble friend's arguments and we shall of course return to the matter next week.
I should tell the Committee how soon we hope to come forward with our own proposals. We hope to draft these as soon as possible with a view to introducing the necessary amendments on Report. If time permits, we shall naturally consult with interested parties about our proposals. I cannot make any firm promises about consultation because much depends on the timing. But if we have something drafted reasonably soon we shall consult as widely as possible in the time available to us.
My noble friend Lord Stanley of Alderley is right: there is a problem. Indeed, in that regard I agree with the noble Lord, Lord Mackie of Benshie, that the law does to some extent creak on this particular issue. However, I hope that, on the basis of what I have said and the account that I have given of our intentions, my noble friend, and indeed the Committee as a whole, will appreciate our concern for the matters that have been raised and that my noble friend will see fit to withdraw his amendment.
9.30 p.m.
Earl De La Warr: I should like to enter this debate for the first time to welcome what my noble friend has

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said. It is quite clear that the Government are seized of this problem and that they will take some action. I should like to make two suggestions to my noble friend. First, I think a lot of advice has been given to him to be very careful that the legislation he will introduce is not too wide. We are dealing, I hope, with what I call the Attwell type of offence. If the legislation we come up with errs one way or the other, I should prefer it to err on the narrow rather than on the wide. We must be extremely careful not to get into the emotive, and rightly emotive, issues of the freedom of people to enjoy the open spaces. That is my first point.
I am sure that my noble friend will agree with my second point. Do not let us allow the lawyers to make the legislation too complicated.
Lord Broxbourne: They do the reverse.
Earl De La Warr: There are some of us who remember only recently a schedule that was 11 pages long. We want to be careful that we shall not have something which is so "nice" that the law becomes complex.
Having said that, I should like to thank my noble friend for the helpful way he has answered my noble friend's amendment. I am sure we all look forward to seeing what the Government will come up with.
Lord Stanley of Alderley: I should like to thank all noble Lords for the great trouble and effort they have taken in participating in this debate. I must reply to one or two of the remarks that have been made. First, I thank the noble and learned Lord, Lord Denning, for his very helpful remarks. As he said, it is a question of time and money and trouble. There is the difficulty of finding the squatter, and that is why I feel it must be a criminal offence, which I think the noble and learned Lord felt too. He pointed out correctly that these people are totally different from the rambler, to whom I shall come in a moment. It is time that the law was changed. He said—I think I quote him correctly—that we should be able to overcome the difficulties. It sounds from the remarks of my noble friend on the Front Bench that that is just what my noble friend is trying to do. I thank him very much.
I must deal for a moment with the problem raised by my noble friend Lord Middleton. It was also raised by my noble friends Lord Margadale and Lord De La Warr and by the noble Lord, Lord Taylor. It is the question of catching the right fish—which is not catching the rambler. I know who my noble friend on the Front Bench does not want to catch and who I do not want to catch. For the benefit of my noble friend Lord Glenarthur I want to point out how I tried in my amendment not to catch the rambler and how my lawyers say I have not caught him. Under Amendment No. 17 a person will not commit a criminal offence unless he first trespasses. Then he has to deprive the person entitled to the ownership or occupation of the land of the use and enjoyment of it. He has to do that
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in every case. Then he has to cause either public disorder or serious damage. Of course the rambler will not do that. You could argue, as my noble friend said, that he could harass me, or I could get so upset over a rambler that I would go to court and say that he harassed me. I accept that; but I do not think that the rambler could be caught, bearing in mind that he also has to deprive me of the ownership. I put that to the Commitee as the reason why I am fairly happy that it does not catch the rambler, and I leave it with my noble friend on the Front Bench to think whether I have got it right or whether I have not. I am sure that he will do so.
I am sure everybody was interested by my noble friend Lord Brabazon's horrific story about the effort of trying to enforce the civil law. In a minute, I shall talk to the noble Lord, Lord Silkin, on this. I am sure that we were interested in my noble friend Lady Macleod's problems with the difference between gypsies, tinkers and hippies. I realise, and the whole Committee realises, that these three sets of people are totally different. I am not a sociologist, and here we come across the problem of what we are going to do with them. I could give the Committee suggestions but I am really not qualified to tell the House how to deal with the difference between these people.
The noble Lord, Lord Mackie of Benshie, I am glad to say, brought out strongly that the law is out of date. I think that every speaker said that it was out of date and that we need to deal with it.
I must say something to the noble Lord, Lord Silkin. I could only just stay still, as he probably realised, when he was making his speech. I will answer him as a farmer and not as a lawyer, although I have to tell him that I have in front of me a lawyer's brief to say that he was totally wrong in his argument. But I am not going down that street. I know that I should lose the argument because I am not a lawyer, although I am perfectly convinced that the advice that I have here is correct.
I will tell him why he was wrong as a farmer. He made one mistake after another; he wants to use the civil law. He said it is speedy. As the noble Lord, Lord Monson, said, what happens if the incident happens on a Saturday? Where then is the High Court judge? Anyhow, the farmer has to go there. He is a small farmer. Who is going to milk the cows? Who is going to milk the cows when there is only one person on that farm? Then, according to the noble Lord, he has to go again. Who, again, is going to milk the cows? I come back to my original speech. It is a question of time for this farmer; he should be allowed to continue his work. I am sorry to speak so strongly to the noble Lord on the Front Bench opposite but he is totally misguided.
Finally, would say to my noble friend Lord Glenarthur that, obviously, I wasted my breath in trying to convince him that there was a problem. From the way in which he answered, he seems to see the problem far more clearly than I. He pointed out that both of us want to deal with what he called aggravated trespass. It is very important that we get this right. I am sure my noble friend will get this right between now

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and September, when we come back. We must be able to get it correct. I see the difficulty in drafting it and in my notes I have put a couple of exclamation marks on the page. We had considerable difficulty.
I am very encouraged by my noble friend's reply and interested in the details he gives us and the way he is thinking It is really very helpful for us all to think about it between now and when it goes on to the statute book. I thank him very much for looking at this so carefully and I thank every Member of the Committee who has spoken. I beg leave to withdraw this amendment.
Amendment, by leave withdrawn.
[Amendment No. 18 not moved.]
Clause 6 [Mental element: miscellaneous]:
The Deputy Chairman of Committees: Before I call Amendment No. 19,1 have to inform the Committee that this amendment should read,
"Page 4, line 26, leave out from ("violence") to end of line."
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 19:
Page 4, line 26, leave out from ("violence") to end of line.
The noble and learned Lord said: I think it will be convenient to take, with Amendment No. 19, Amendments Nos. 20, 21, 22, 23, 25, 26 and possibly Amendments Nos. 27 and 28. In this way at least we shall have the benefit of rendering some hope that we shall get to bed before midnight.
These amendments raise one question of law. It turns on the use of the phrase—and it may be better to deal first with amendment No. 19, which identifies it—
"or is aware that his conduct may be violent or threaten violence".
That phrase runs through all the amendments I have identified. There is therefore introduced into this Bill in a big way the concept of awareness, as proof of guilt, that a man's conduct may be violent. That is in addition to intention and something different from reckless. So far as I know, this is new in a criminal statute, but I may be wrong about that and perhaps we can get some help on the point. However, I would ask: what does it add to "intent"? Then comes the question: is "awareness" capable of proof in any event?
My noble friend Lord Plant is suggesting the use of the word "reckless" and it will be interesting to learn from the noble Lord how he proposes to distinguish between being aware, and so on, and being reckless. I am afraid I am putting some legal conundrums to him, with which I know he is perfectly capable of dealing. That runs through these amendments.
However, Amendments Nos. 27 and 28, were it not for the seriousness of the matter, really verge on the grotesque. Amendment No. 27 proposes to leave out subsection (5) and also subsection (6). Clause 6(5) reads as follows:
"For the purposes of this section a person whose awareness is impaired by intoxication shall be taken to be aware of that of which
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he would be aware if not intoxicated, unless he shows either that his intoxication was not self-induced or that it was caused solely by the taking or administration of a substance in the course of medical treatment".
Then in subsection (6), just to add glory to this provision, we have:
"In subsection (5) 'intoxication' means any intoxication, whether caused by drink, drugs or other means, or by a combination of means".
Really, must we have this nonsense, and must it all be included in the language that is found in the Bill? In these circumstances I await with interest the response of the Minister to these questions. I beg to move.
Lord Hutchinson of Lullington: May I add a word in supporting this amendment? The words in this clause involve, as the noble and learned Lord has said, the mental element in Part I offences. The Law Commission wrestled with this problem at length. They pointed out that in "affray" the matter had never arisen in a decided case because, when fighting, it is highly unlikely that you do so by accident unless of course you are under the influence of alcohol.
As regards offences under the Offences Against the Person Acts, assaults, woundings and so on, and offences under the Criminal Damage Act, where the victim is property, the judges, I regret to say—and the noble Earl, Lord De La Warr, who is not here, will not be surprised to hear this—have got into a muddle. In one group they have held that "intent" can amount to foreseeing the possibility of harm and taking a risk, and in another they have come to the conclusion that not caring whether or not you notice that there is a risk and you continue on, can amount to an intent.
Here, therefore, there is a muddle and this has given birth, I suspect, to the use of the word "awareness" in this and in the other clauses. I suggest to the Committee that that is rather a lawyer's nonsense, because a lawyer finds it hard to leave this matter alone. The possible confusion offends his tidy mind and so, in attempting to remove the confusion, as so often happens we are going to get further confusion for the reason that the noble and learned Lord has already put forward, that this is a new concept in the criminal law. We are going to have endless argument about what "awareness" means, as opposed to "recklessness", as opposed to "complete unawareness of a risk", as opposed to "foresight of a risk". So the argument will go on.
I suggest that the sensible way of dealing with these offences is to get rid of these words and simply leave the matter for the judge to sum up, in a perfectly normal way, on what "intent" means in relation to the offence charged. Leave it to the judge to sum up sensibly, according to whatever the precedent may have established in relation to that offence, and do not introduce yet another lawyer's muddle.
9.45 p.m.
Lord Denning: As this is a legal point, may I say that I hope the Committee will not accept this amendment. In the criminal law, it is vital that there should be a guilty mind of the accused and that the prosecution

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should prove it. We had great difficulties when a man was completely drunk and then murdered or did a great deal of wounding. You can imagine all the controversy we had. I remember that I sat on some of the cases in your Lordships' House and considered whether the accused would have had the necessary intent to wound, to injure or whatever it may be.
The lawyers have argued time after time about this question of intent, and sometimes they have talked about the man being reckless or careless about whether he did something. The word "reckless" was introduced and that gave rise to divisions of opinion right up to this House. Could there be anything more simple, if you are talking to a jury, than saying, "A person is guilty of a riot only if he intends to use violence, or if he is aware that his conduct may be violent."? If he is aware of it, he is equally guilty. He has the guilty mind and he is aware of it. In other words, it is a simple test which can be applied quite easily, and keeping it only to intent would be much too limiting. A lot of people with a guilty mind might be getting away with it. The Bill is very good as it is and I would leave the words,
"or is aware that his conduct may be violent."
I would resist the amendment.
Lord Renton: I agree with what the noble and learned Lord, Lord Denning, has said, but as a postscript to that perhaps I may make a suggestion. It is quite clear from the speeches of the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Hutchinson of Lullington, that what they are worried about is the proof of intent in relation to these words. If I may invite the Committee's attention to, for example, line 26 on page 4, if the word "intended" had been inserted before the word "conduct", the matter would have been much more clear and that would have expressed better what the Government—if I may use the word in another context—intended. The same applies in line 28. Again, if the word "intended" had been inserted before the word "conduct", some of the fears expressed by noble Lords opposite would not perhaps have arisen. It is interesting to read on and find in relation to subsections (3) and (4) that the awareness is covered by the use of the word "intends". We see that word used at the beginning of line 31, and that clearly is carried forward to the last line of subsection (3) which the noble Lord seeks to leave out. We see the word "intends" at the beginning of line 35 and we find it again in line 38. In both those cases, it is appropriately used and explains the awareness. With the suggestion that we need the word "intended" in subsections (1) and (2), I too hope that the Government will leave the clause as it is.
Lord Gifford: I put my name to these amendments because I could not understand why we were introducing into the criminal law this concept of awarenes. With the greatest respect to the noble and learned Lord, Lord Denning, I do not yet understand it.
Surely if someone is aware that his conduct may be violent and he goes on to use violence, every jury in the
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country considering that issue will find that he intended to use violence. A defence lawyer who tried to argue that his client, although aware that his conduct was going to be violent, nevertheless did not intend it, will not get very far with the juries who interpret this kind of issue day after day, particularly in the context of violent conduct.
We have a very common section under the 1861 Act dealing with intent to cause grievous bodily harm. No one, so far as I know, has ever indicated that that law which is essential to protect people from violence is lacking because there is not attached to it a provision that someone is also guilty if he is aware that his conduct is going to cause grievous bodily harm. In this Bill, the matter is even more curious when one looks at the definition of violence in Clause 8. Someone who intends to use violence is defined in Clause 8 as someone who intends either violent conduct towards property or persons or any other violent conduct not limited to causing injury or damage. Anyone who intends any of those things would be guilty of riot or violent disorder or whatever it may be. Why do we need a complicated new limb of a legal definition that is introduced in this clause?
Viscount Colville of Culross: Surely we need it because, as the noble Lord, Lord Hutchinson, has said, there has been a certain amount of confusion about this element in the law. If one introduces a collection of new offences which are drawn to some extent from material which has been litigated in the criminal courts for some time, and one is faced with the proposition that one has to elaborate what is the criminal intent—the mens rea—that is necessary, surely Parliament ought to address itself to some encapsulation or qualification of what it means.
Those are going to be terms of art. If you have a term of art in this Bill—it may be new, but it cannot be the first time that there has been something new—it will not be very long before a body of law springs up (I should not be very surprised if some of the textbooks address themselves to it pretty quickly) and you will not have to do what the noble Lord, Lord Hutchinson, said, which is to wait for an enormous number of summings up and directions to juries to be elaborated upon by the Court of Appeal before you get back to the state which we could have achieved quite quickly by putting something into the Bill. The trouble with this amendment—and it is the first amendment which raises this issue—is that it removes the opportunity for Parliament to express itself on this matter. I should have thought that Parliament should do so.
Lord Hutchinson of Lullington: I wonder whether the noble Viscount will address his mind to this point? Will he tell the Committee why the word "awareness" will be any improvement on the simple intent? If one uses the word "awareness", one immediately starts argument as to whether recklessness is awareness; is foresight awareness? One will be back exactly where one was at the beginning. Would it not be much better to leave the simple intent, as the noble Lord, Lord Gifford, has said? We have got along with that

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perfectly well on all matters of violence for so long. One would simply be adding a further, third or fourth, confusion.
Viscount Colville of Culross: I should have thought not, because Parliament would then have expressed itself on the subject. Something will have to be made of it, and that will have to be different from what we had before.
Lord Glenarthur: The mental element as established in Clause 6 is drawn almost entirely from the Law Commission's recommendations. In so far as it applies to riot, violent disorder and affray, a similar provision is to be found in Clause 5 of the commission's draft Bill. I also refer the Committee to paragraphs 3.41 to 3.54 of the commission's report, which explain why it felt that it was necessary to set out the mental element in statute, and why the commission proposed that particular formulation.
I have to say to the noble Lord, Lord Gifford, that the mental element chosen by the commission corresponds with the mental element required in the common law offences of assault and battery, and with the mental element of intention or recklessness that applies to the various offences of assault in the Offences Against the Person Act 1861, to which he referred. It is not new in the sense that the noble and learned Lord, Lord Elwyn-Jones, indicated that it was.
The 1861 Act defines the more serious offences in terms of their being committed maliciously. That, as the noble Lord, Lord Gifford, will know—I have now reached the interesting point where I cannot read my own brief. In any event, I do not believe that it applies in quite the way that the noble Lord intends. So it is just not right to say, as I believe the noble Lord did, that there is no awareness in Clause 6 or no norm for awareness in Clause 6, alongside intention.
The Law Commission's thinking was that where defendants are charged with one of the more serious public order offences—riot, violent disorder or affray—the most likely charges to be included in addition to the indictment are the various categories of assault. It would be very confusing in such circumstances if the jury had to be directed on two different mental elements in relation to those two different kinds of offence. The Law Commission therefore proposed, and the Government have accepted, that the mental element for the public order offences and for assault should be the same.
The amendments spoken to by the noble and learned Lord, Lord Elwyn-Jones, would restrict the test to one of simple intention; those are Amendments Nos. 19, 20, 21, 23, and 25. They would also delete any element of recklessness, however defined. That would be a radical departure that would exclude from those offences all participants in disorder who were reckless, whether their conduct was violent or threatened violence. That is not an approach adopted in relation to other serious criminal offences.
In case the noble and learned Lord opposite seeks to stand by the claim that the mental element we propose
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is dangerously wide, I shall refer him to the passage in paragraph 3.30 of the Law Commission's report, at the top of page 31, where it is stated:
"In reaching our conclusion we have, therefore, chosen that mental element which accords with closely related common law and statutory offences against the person which is the most favourable to the defendant".
The Government have adopted the same test, and the noble and learned Lord, Lord Elwyn-Jones, cannot seriously maintain that that is unfavourable or unfair.
In answer to the noble and learned Lord, Lord Elwyn-Jones, so far as we know there are no other examples of a mental element provision in statute based on a test of awareness, but the difficulties over the use of the term "reckless" have, I understand, arisen only recently in case law—I believe in Caldwell in 1982, which was a decision of the House of Lords.
I listened with care to my noble friend Lord Renton and his suggestion about how we might meet his concern in the way we placed the word "intended". I must say to my noble friend that I do not think that his proposal is quite right or would achieve the purpose we are looking for. It is not a person's intended conduct—that is, future conduct—that is at issue here. It is awareness of his present conduct, and that is the recklessness element that we are dealing with.
When the noble and learned Lord moved his amendment 1 believe he indicated that he was speaking also to Amendments Nos. 22 and 26. The noble Lord, Lord Plant, has his name down to those amendments and perhaps he wishes to comment on them as he has not referred to them; or perhaps he would like me to refer to them now.
10 p.m.
Lord Plant: I am in some difficulty. If the noble Lord the Minister wishes to refer to them, I shall be perfectly happy.
Lord Glenarthur: In that case, I shall mention them, in the interests of speed.
Lord Elwyn-Jones: I apologise to my noble friend Lord Plant. The point came up indirectly but 1 did not wish to shift him from the privilege of moving the amendments.
Lord Renton: In deference to the noble Lord, Lord Plant, I should have thought that his two amendments raise a somewhat separate point from that of awareness.
Lord Elwyn-Jones: The noble Lord has finished, but what I was about to say may be of assistance to him. I have come to the conclusion, having heard the argument, that having stirred a lawyers' hornets' nest I had better let it lie for a while and come back at the next stage of the Bill. In those circumstances, I ask leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 20 and 21 not moved.]
Lord Plant Lord Plant moved Amendment No. 22:
Page 4, line 33, at end insert ("or is reckless as to the consequences").
The noble Lord said: It would be useful if I also dealt with Amendment No. 26. I will be brief. These two amendments insert,
"or is reckless as to the consequences".
Clause 6(3) and (4) state:
"if he intends his words or behaviour".
These quite plainly require the arresting officer to inquire into the mind of a defendant and inevitably, as is regrettably the case with most current legislation, this opens the door to interminable fine legal arguments, often with perverse results for the police officer and, worse still, for the public he is paid to serve.
The purpose of the amendments is to demonstrate that it is recklessness as to the consequences of the behaviour rather than the actual intent of the perpetrator or state of mind of the victim which is the important factor. I think this phrasing would be an improvement. I beg to move.
Lord Glenarthur: We return to the mental element in relation to Clauses 4 and 5. Here we have adopted the same test of intention or awareness which applies to Clauses 1 to 3 and the noble Lord invites us to add the words,
"or is reckless as to the consequences".
From what he said it appears to me that his concern is to simplify matters for the police. But his amendment takes us straight into a legal minefield, and nothing less. The case law on recklessness is sufficiently complicated for the Law Commission to devote seven pages of its report to the subject. It deliberately avoided using the words in the draft Bill to avoid some of these complications.
The noble Lord's amendment, if accepted, would cause immense confusion and, far from simplifying the task of the police, would greatly complicate it. I hope that, with that simple explanation, the noble Lord might see fit to withdraw the amendment.
Lord Plant: Like my noble friend Lord Elwyn-Jones, I do not want to tread into a legal minefield. The noble Lord the Minister has made it clear that there will be some difficulties here. I will not, therefore, press the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 23 not moved.]
The Deputy Chairman of Committees: I have to inform the Committee that, if Amendment No. 24 is agreed to, I cannot call Amendment No. 25.
[Amendments Nos. 24 to 28 not moved.]
Clause 6 agreed to.
Clause 7 agreed to.
Clause 8 [Interpretation]:
Lord Silkin of Dulwich Lord Silkin of Dulwich moved Amendment No. 29:
Page 5, line 29, after ("others") insert ("and any garden, garage, outhouse or yard exclusively occupied therewith").
The noble and learned Lord said: With this diminishing attendance, we have now reached the interpretation clause of this part of the Bill. The amendment deals with the meaning of the word "dwelling". I should perhaps remind the Committee that this is relevant to the offence dealt with in Clause 4 which is not to be committed by virtue of subsection (2) in the circumstances there set out, where persons are within a dwelling. Similarly, in Clause 5 it is a defence for the defendant to show that he was inside a dwelling and that other matters set out in the subsection were the fact. It is clearly of great importance to know what is meant by "dwelling" in this context. No doubt that is why the interpretation clause defines it at some length.
As to what is omitted from that definition—and I am indebted to Justice for a point involved in the amendment—although it deals with structures or parts of structures which are occupied as a person's home or other living accommodation, and although it excludes structures such as tents, caravans and vehicles, it does not deal with the garden, garage, outhouse or yard of the dwelling exclusively occupied with it. One has to consider whether that should be within or without the definition of "dwelling" in this part of the Bill, bearing in mind that, if it is within the definition of "dwelling", it is excluded from those two clauses. If it is not included within "dwelling", although the defendant may be in a garden, garage, outhouse or yard, he is still committing an offence.
As is indicated by the wording of all the clauses to which I have referred, I am sure that there is no intention here to include matters which are dealt with in the privacy of a person's home or his neighbour's, such as a quarrel between two neighbours across a boundary or, say, disorderly conduct. Surely it is not the intention that that kind of episode of disorderly conduct, the sort of conduct which some people may find disorderly in a private garden—and the example of nude sunbathing has been put forward—should be involved in the criminal law in these clauses to which I have referred.
That of course is not to say that if conduct starts within the dwellinghouse or the garden and so on, and then goes outside the dwellinghouse or garden on to the public highway, because of the effect on people on the public highway and what follows from that, it does not follow that in those circumstances those clauses should not operate. But then, they would operate irrespective of the definition of "dwelling" because clearly one would have gone outside the dwelling in those cases. I am referring to something which starts and remains within the dwelling, and with that in mind I suggest to the Minister that it is entirely proper, as suggested by Justice, that the dwelling should be regarded as including the garden, garage, outhouse or yard which is exclusively occupied with the dwelling. I hope that that minor improvement will be acceptable. I beg to move.
Lord Renton: I very much hope that my noble friend Lord Glenarthur will consider this amendment sympathetically. It seems to me to be quite absurd that the provisions which I think arise principally on Clause 4 in relation to a dwelling should be restricted to the actual activity inside the structure and that for someone standing just outside his front doorstep or in his front or back garden an entirely different situation should arise.
Surely common sense and common humanity would indicate that somehow we have to treat a person's home as something that includes his garden, his garage and so on. Therefore I consider that a point has been made which is worthy of the Government's attention. I have not checked on whether the exact definition used by the noble and learned Lord, Lord Silkin, has a precedent. There may be one or two precedents in the law which would enable his purpose to be achieved. I hope that the Government will do something about it.
Lord Glenarthur: The noble and learned Lord has stressed the importance of excluding disputes between neighbours from the scope of the Clause 4 and Clause 5 offences. The purpose of the amendment is therefore to exclude from the scope of these offences gardens, land, garages or other buildings used exclusively as living accommodation. We certainly share the noble and learned Lord's aim of excluding domestic disputes. None of us wishes to see undue interference in people's private lives in their own homes, and that is why we have made specific provision for occasions where offensive behaviour takes place in dwellings.
During the drafting of the Bill we thought hard about whether the offences should stop at the front gate rather than at the front door, which I think basically is the point at issue in these amendments, but our experience of the miners' strike persuaded us against such a course. During that strike miners and their families were occasionally threatened by men who did not stay on the pavement but entered their front gardens to intimidate them and their families. It seems wrong that one should be capable of committing the offence of threatening behaviour when out in the street but be immune when one steps inside the front gate. Surely that is a rather strange notion.
Clause 5 also needs to extend to gardens. The type of behaviour that we need to catch is dustbins being knocked over, rubbish being pushed through people's letterboxes, and so on. We are particularly concerned to provide better protection to ethnic minority families who are persistently harassed by such behaviour or by the drawing of unpleasant slogans or banging on their windows and doors. The perpetrators of such harassment often have to enter the victim's garden, and we cannot exclude them from the net.
We accept that there will be anomalies wherever we draw the line, but the miners' strike gave us the opportunity to witness at first hand a mischief which we do not wish to see repeated. The fact that Clauses
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4 and 5 of the Bill extend to gardens is not an infringement on the private lives of those who own them but is intended to provide additional protection for them in their own homes.
I hope that my noble friend Lord Renton will understand the force of that argument. I shall read his comments in the Official Report with particular concern. I hope, too, that the noble and learned Lord will see fit to withdraw his amendment.
10.15 p.m.
Lord Silkin of Dulwich: The Minister indicated clearly that wherever the boundary line is drawn there will be anomalies. I understand the point that he makes. It relates more to a foreign element invading a person's dwelling area than to what the person does within his dwelling area. If one is thinking solely of what the person does within his dwelling area, it seems to me that the amendment is perfectly proper. But I can see the force of the argument directed to somebody from outside who comes in.
There is a point that is worthy of further consideration. The Lord Advocate nods agreement. I hope that that is not due entirely to the time of night and that the Government will look at that between now and the next stage of the Bill.
Lord Renton: I am awfully sorry that I do not have the reference, but there is a statutory provision somewhere in our landlord and tenant law, if I remember rightly, which indicates that a dwelling includes more than the mere structure. If we could import that definition, we may well succeed in this context.
Lord Silkin of Dulwich: There are useful definitions in planning law, for example, as to what a dwelling includes. I welcome that help, but I am not sure that it gets over the difficulty which the Minister has put forward and which arises only where someone comes in from outside.
Lord Glenarthur: I shall have to study with great care the point that my noble friend Lord Renton made about the landlord and tenant legislation, or whatever other legislation it might be. One way to exclude disputes between neighbours may be to extend Clauses 4 and 5 to offensive behaviour in gardens where the person concerned resides in the dwelling to which the garden belongs. That may be broadly in line with the search powers in Section 1(4) of the Police and Criminal Evidence Act. That may be the legislation to which my noble friend refers. The best thing that I can do is to consider the point that has been raised by the noble and learned Lord and by my noble friend. With that undertaking I hope that the noble and learned Lord will feel able to withdraw his amendment.
Lord Silkin of Dulwich: I am much obliged to the Minister. With that undertaking I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Silkin of Dulwich Lord Silkin of Dulwich moved Amendment No. 30:
Page 5, line 37, leave out from ("conduct") to end of line 41 and insert ("which actually causes or is intended to cause injury or damage").
The noble and learned Lord said: This amendment is directed to the interpretation clause again and the term "violence". It refers to a matter which the Minister mentioned in discussing an earlier amendment. The purpose of this amendment is to simplify the definition of "violence" which is contained in Clause 8. In particular, it seeks to simplify it by providing that "violence" means any violent conduct:
"which actually causes or is intended to cause injury or damage",
rather than the double definition that we now have which includes violent conduct towards property as well as violent conduct towards persons. In addition, it is not restricted to conduct causing or intended to cause injury or damage, but includes any other violent conduct. It then sets out some examples. I follow why those examples were included from what the Minister said in reply to an earlier debate.
By amplifying the definition—as I think unnecessarily—in that way, it is more likely to cause confusion than a fairly straightforward and simple definition. I can see nothing in paragraphs (a) and (b) which takes us beyond the wording, "which causes or is intended to cause injury or damage." The rest of paragraphs (a) and (b) seems to be either example or elaboration. For that reason, and in the spirit of seeking to simplify, I beg to move.
Lord Hutchinson of Lullington: Before the Minister replies, does he agree that it is not appropriate in a penal statute such as this to have an example? The amendment gets rid of those words and has much more simple phraseology. One does not expect to find an example given, because there may have been 100 other examples.
Lord Glenarthur: The definition of "violence" is drawn from the Law Commission's draft Bill and is deliberately open-ended. It is based on the premise that it is for the jury or the magistrates to decide whether the conduct described in evidence amounts to "violence". Any alternative definition based on the consequences of the defendant's action runs the risk that in some cases the judge would have to direct the jury that even though it felt that the defendant's conduct was violent, it was not in law so, because there was insufficient evidence as to the likely effect or intention of the conduct in question. In situations of public disorder it can sometimes be very difficult to adduce the necessary evidence of the effect of the defendant's action, where for example a missile is thrown but the police do not see where it lands.
Whether a defendant has actually been violent is a matter of fact for the court to determine. Therefore Clause 8 does not provide a cut and dried definition but offers guidance about the sort of conduct that might be considered violent. So except in the case of affray, it includes violence to property; it is not restricted to action causing or intended to cause injury or damage; and throwing missiles is specifically mentioned as being an example of violent conduct.
Given that the definition as a whole is geared towards providing useful signposts for the courts, we
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believe that the use of the example of missile throwing is valuable but it is that example which in essence the noble Lord's amendment would delete.
The noble Lord, Lord Hutchinson of Lullington, objects to legislating by example in this case; but I can assure him that while unusual it is not perverse or improper. There are precedents. For example, Section 2 of the Occupiers' Liability Act 1957, Section 3 of the Bees Act 1980, and others, provide statutory precedents. My noble friend Lord Hives will be able to elucidate on the Bees Act.
The police have stressed to us the difficulty of proving where missiles have landed, especially in situations of serious disorder, where many missiles are being thrown. We heard about their strength of feeling on this issue when we discussed the earlier amendments. By spelling out that missile throwing is an example of violent conduct, we put beyond doubt that in these circumstances the police need only to prove that the accused actually threw the missile, not the effect that action had; nor what was the intention of the accused at the time.
The noble and learned Lord, Lord Silkin, suggested that where missiles are thrown and there is no intention to cause anyone injury, that should not be considered to be violent conduct; at least I believe that is what the noble and learned Lord was suggesting. If so, this type of behaviour can cause major problems. For example, at a football match, if someone throws a bottle towards a group of fans and it falls short, it may well precipitate a major flare-up. It is at least threatening behaviour.
I have endeavoured to give an explanation of why it is necessary to have this particular definition described in the way that it is in Clause 8. I hope that on the basis of that explanation the noble and learned Lord will feel able to withdraw his amendment.
Lord Silkin of Dulwich: The last observation of the Minister put a new complexion on the existing definition within the interpretation clause that I must confess I had not been aware of. I had thought that the example was put there because it meant throwing at or towards a person a missile of a kind capable of causing injury that was intended to cause injury but that did not hit or fell short. I gather now from the Minister that that is riot intended; that is to say, that the example given is intended to be within the mischief of violence even if there was never any intention that it should hit or that it should arrive at its target or apparent target. That seems to me to widen considerably the definition of violence. It is something that I would want to consider further.
Even as I originally understood the existing definition, it seemed to me to be unnecessary. Now it may well be too wide. While I am happy, particularly at this hour of the night, to beg leave to withdraw the amendment, the Minister must take it that he has given further rather than less food for thought about the definition.
Amendment, by leave, withdrawn.
Clause 8 agreed to.
Clause 9 agreed to.
Clause 10 [Construction of other instruments]:
Baroness Stedman Baroness Stedman moved Amendment No. 30A:
Page 6, line 16, leave out subsection (1) and insert—
("(1) The Riot (Damages) Act 1886 and section 515 of The Merchant Shipping Act 1984 are repealed.").
The noble Baroness said: It is a little late to start talking about repealing existing legislation, but I promise that I shall be brief. The two Acts referred to in my amendment provide for compensation to be paid from public funds for property damaged by riots. I understand from the Association of County Councils that it has been concerned because there is, the association alleges, a technical anomaly and the compensation under the Acts is not recognised by the Home Office as being eligible for police grant.
I can understand the Government's concern about removing the Bill's protection from people who might otherwise suffer severe hardship. But the Association of County Councils believes that the Acts do not take account of present-day conditions and that they are based perhaps on assumptions that are somewhat out-dated—first, that a significant number of people do not insure their property and, secondly, that riot damages are attributable to default or negligence by the police authority.
Most property today is insured. Indeed, I am advised that about 98 per cent. of the owner-occupied property is now covered by insurance. Certainly, some of those policies exclude cover for riot damage—but this is only because of the continued existence, I believe, of the 1886 and the 1984 Acts. If the amendment was to be accepted and the two Acts were to be repealed, market forces would ensure that the exclusion clauses where they still exist would disappear.
I am given to understand that the various local authority associations have been trying to resolve the problem for over 60 years. They tell me that they started in 1923. Successive governments with whom they have taken it up have said that although the associations probably have a valid case, the opportunity for legislation was not present. I believe, and the associations believe, that we now have the opportunity in this Bill. I hope the Government will look kindly on this amendment. I beg to move.
10.30 p.m.
Lord Gifford: Since the noble Baroness has raised the question of the 1886 Act, I should like to place on record, first, my opposition to her proposal and, secondly, a problem which occurred during the inquiry that I have been carrying out into the disturbances at Broadwater Farm. People came to me and said, not that there should not be a Riot (Damages) Act but that it was not comprehensive enough. In particular a great number of people suffered loss and damage to their vehicles. The Riot (Damages) Act refers only to premises. They had taken the matter up with the police, having lost their cars, which were not properly or fully insured, and found that they could not get any compensation for them.
I hope that we shall keep this protection for those who quite innocently suffer damage through riot. I hope—although I have not given notice of this—that the Minister might consider over the summer Recess
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whether the Act could be made more effective by the inclusion of vehicles as well as premises.
Lord Glenarthur: Perhaps I may start by acknowl-edging the argument of the noble Lord, Lord Gifford. I fear that in extending what the noble Baroness, Lady Stedman, proposes to repeal it is somewhat different and goes rather wider than this Bill, but I shall certainly look at the point that he raised.
The noble Baroness will not be surprised to hear that I accept much of what she said about the Riot (Damages) Act 1886. We have been through the arguments more than once in recent years. I think that the noble Baroness acknowledges that we agree the Act is an archaic piece of legislation, and we acknowledged that last year in the White Paper that preceded this Bill. We no longer accept the basic assumption of the Act that riots are a failure to provide adequate policing. But the noble Baroness will know that whereas her conclusion from that is that the Act should be repealed, there are equally strong feelings in some quarters that it should be modernised and extended. Indeed, the noble Lord, Lord Gifford, has given us one example.
As a general rule, the Government see no case to compensate from public funds those who suffer damage to their property as a result of criminal acts. Insurance is generally available for the victims of crimes such as burglary or car theft, and where the offender is apprehended and convicted there is the possibility of receiving compensation through the courts.
But riot damage is a special case. Riots occur most commonly in inner city areas and the Riot (Damages) Act provides a safety net for businesses and householders in those areas. It is an unfortunate fact that obtaining insurance at an economic price is not easy in the inner cities because the incidence of burglary and vandalism is so much higher there than elsewhere.
But the inner cities need to retain businesses and householders if they are to have a chance of flourishing. In the absence of the Riot (Damages) Act major disturbances could ruin many small businesses, because of the difficulty of getting insurance cover. By killing off commercial activity such destruction could deprive and indeed impoverish a much wider area. So while we accept that the Act is archaic, and not an ideal way to provide a safety net, we are loath to withdraw it at this stage. Sadly, we cannot guarantee that there is no possibility of further riots in the inner cities in the years ahead, though it depresses one to think that that is even a possibility.
On the question of the payment of police grant on expenditure on riot damage compensation payments, we do not consider that such expenditure qualifies for grant at present since it is not, as the Police Act 1964 and the Police (Grant) Order 1966 require, expenditure "by a police authority for police purposes". Legislation would be required. We are not convinced that payment from local funds is entirely justified in principle; and it would be difficult for us to introduce legislation to extend this dubious principle to central government. We have made central funds available in certain circumstances on an ad hoc basis: for example, we agreed to provide central government

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help with claims arising from the Handsworth riot last year. We shall continue to consider long-term funding arrangements in our consideration of the long-term future of riot damage compensation. But for the present I cannot hold out to the noble Baroness the prospect of legislation to allow police grant to be payable to compensation authorities for riot damage compensation.
Clause 10(1) merely clarifies the effect of the new statutory offence of riot on the Riot (Damages) and Merchant Shipping Acts. It does not affect the operation of those Acts, nor will it make any substan-tial difference to the circumstances in which compensation is available. I certainly understand why the noble Baroness has taken this opportunity to express the strong views which she has about the Act and I can assure her that we shall continue to keep the situation under review for the future. I hope that, in the light of that assurance, the noble Baroness will feel able to withdraw her amendment.
Baroness Stedman: I am most grateful to the noble Lord. I am delighted with his assurance that the Government are still looking at the Act and perhaps trying to modernise it. I hope that while that work is being carried out there will be consultation with the local authorities so that they will have some say about the payment and how it operates within their areas. On the basis of the assurance from the Minister that the matter is under review and that the Government hope at some future time to be able to modernise the Riot (Damages) Act, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 10 agreed to.
Viscount Davidson: I believe that this would be a convenient moment to stop for the evening. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at twenty-three minutes before eleven o'clock.