§ House again in Committee.
Lord Stanley of Alderley moved Amendment No. 17:
After clause 5, insert the following new clause:
§ ("Disorder and damage to property by trespassers.
§ 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.968
§ 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 969 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 970 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 ownershipof 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.
§ 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 971 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 972 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.
§ 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 973 "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 974 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.
975 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 976 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.
977 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 978 the only passage from my Second Reading speech to which I shall refer.Trespass has remained…
§ 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 979 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 981 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 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 983 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 984 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 985 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 986 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 987 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.
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 988 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 989 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 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
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 991 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 992 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 993 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 994 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 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.]995
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.996
§ Clause 8 [Interpretation]:
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.997
§ 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 998 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 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 1000 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.1001
§ Clause 10 [Construction of other instruments]:
Baroness Stedman moved Amendment No. 30A:
Page 6, line 16, leave out subsection (1) and insert—
§ 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 1002 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 1003 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.