§ 11.38 p.m.
§ The Parliamentary Under-Secretary of State, Home Office (Lord Glenarthur)
My Lords, I beg to move that this Bill be now read a second time.
It is 50 years since in order to counter the specific threat posed by the rise of fascism and the violence and intimidation engendered by it, Parliament passed the Public Order Act 1936. It has served us well. It has for a long time provided a structure of public order law. But with all the changes in the last half century the Government thought it right to take a hard look at the new problems confronting us today and take new powers to provide additional protection for the citizens of this country from the violence and disorder that increasingly impinge upon our lives. The Bill is the result. The long list of speakers is evidence of the interest in the problem, and of course we all look forward to the maiden speeches of my noble friends Lord Beaverbrook and Lord Brocket.
This Bill is not a hasty response to any one particular problem. My noble friend the Lord President of the Council, when he was Home Secretary in 1979, initiated a review of public order law in the wake of disturbances during an election meeting at Southall in that year. In the course of that review the Government took the opportunity to consult widely on their proposals. A number of important reports also became available in the intervening period. The Law Commission produced a report on offences relating to public order in 1983, which has proved invaluable in helping us frame the public order offences in Part I of the Bill. The Select Committee on Home Affairs in another place similarly had important points to make on the law relating to public order in their 1980 report. And we have taken account of the full and important report of the noble and learned Lord, Lord Scarman, on the Brixton disorders in 1981.
As the review proceeded we also took account of the growing public disorder which emerged in a number of different spheres; on the picket lines, we all witnessed the disgraceful scenes at Warrington and during the miners' dispute, we saw the blight of football hooliganism culminate in the tragedy at the Heysel stadium; and we witnessed riots in our inner cities in 1981 and again last year. Above all we all share an 514 increasing concern at the growth of petty, mindless hooliganism which causes so many of our citizens, particularly the elderly, to live in a constant state of apprehension, frightened to leave the safety of their own homes.
A major duty of any Government must be to protect their citizens from violence and disorder. It is only when there is order in society and people can go about their lives free from intimidation, violence and fear, that democracy and civilisation can flourish. But similarly we have kept firmly in mind during our review of public order law the rich tradition this country has in preserving and enjoying democratic freedoms and liberties. Freedom of assembly and of speech, and the right to demonstrate peacefully and lawfully are at the heart of a democratic and free society. Any steps that affect those freedoms have to be taken soberly and carefully. Yet these rights can never be absolute, as the European Convention on Human Rights makes clear. The rights of the demonstrator have to he balanced with the rights of the wider community to go about its lawful business.
This Bill has already been subjected to thorough scrutiny in another place. A number of changes were made there to strengthen its purpose and hone its application. The Government welcomed that scrutiny and look forward to your Lordships' careful consideration. But I would not seek to disguise the fact that the Bill does raise points of principle. They deserve the fullest possible debate, but I have no doubt that it will be possible to work constructively in examining the detail of the Bill.
Part I draws heavily on the Law Commission's report on the offences relating to public order. The common law offences of riot, rout, unlawful assembly and affray will be abolished and replaced by new statutory offences of riot, violent disorder and affray.
The Law Commission proposed, and the Government accepted in the White Paper, that the maximum sentence for riot should be 10 years' imprisonment. But before the Bill was introduced a sentence of life imprisonment for riot was imposed on a football hooligan. The Government believed that it would be wrong to be seen in advance of any appeal that might be lodged against that sentence to appear to pass comment on it by forecasting a reduction in the maximum sentence available for riot to 10 years. We also wished to take the views of Parliament and to take into account any judgment of the Court of Appeal before settling our minds on what the correct maximum sentence should be. Hence, while the Bill preserves the existing maximum sentence under common law for riot of life imprisonment, the Government do not have a closed mind on this and I look forward to hearing your Lordships' views about it.
The existing offence of threatening behaviour currently contained in Section 5 of the Public Order Act 1936 is replaced by Clause 4 of the Bill. It is different in two respects from that offence. First, it extends to private land, so it will be able to be used where trespassers such as those who call themselves the peace convoy invade and behave in a threatening way on farmers' lands. Secondly, Clause 4 adopts the Law Commission's reformulation of breach of the peace which appears in its offence of conduct intended 515 or likely to cause fear or provoke violence. Recent case law suggests that in certain circumstances intimidatory conduct may not be caught by Section 5 if the victim (for example an elderly lady) is someone who is not likely to be provoked into violence by the defendant's behaviour. Clearly, this is a loophole which the Law Commission's reformulation will close.
Clause 5 of the Bill introduces the new offence of disorderly conduct which also extends to private land. The aim of the new offence is to provide additional protection for vulnerable members of society from hooliganism which is not in itself violent but which nonetheless makes their lives a misery. We have in mind in particular the elderly living alone on housing estates in inner city areas who are frightened to leave their home, or members of ethnic minorities who are subject to persistent harassment. Your Lordships will need no exhortation from me in adopting the principle behind the new offence as a worthy one. But, as the Government have made clear, the offence has not been easy to frame. None of us wish to resurrect the old discredited "sus" laws or penalise high spirits. That is why the White Paper proposed that the offence should be framed in terms of someone actually causing another alarm, harassment or distress. But we have been advised by the police and by the Magistrates' Association, among others, that if we were to require victims to give evidence in court in every case, which the White Paper formulation almost certainly would have required, those for whom protection is most necessary, the vulnerable and the elderly, would not enjoy the protection of the new offence because they would be unwilling to face their persecutors in court. In introducing the offence in another place, my right honourable friend the Home Secretary made clear that the Government wished to remove this difficulty and would welcome views on how best to frame the new offence and how to strike the right balance.
The new offence has been recast and I believe substantially improved by another place. There is no possibility of a resurrection of "sus", because the offence now requires there to be someone within sight or hearing of the accused's behaviour who is likely to be alarmed, harassed or distressed by it. Thus the new offence requires a victim, and the prosecution will have to prove that this victim was present. But the victim himself need not always give evidence, because the court needs to be satisfied only that he was likely to suffer alarm, et cetera, rather than actually to have suffered in this way.
I turn now to that part of the Bill which perhaps raises most fundamental points of principle—Part II. The Government have been accused of unnecessarily interfering with traditional democratic rights and civil liberties. That is nonsense. This Government fully uphold and will continue to protect the traditional rights to assemble, to demonstrate or to picket peacefully and lawfully. But we will also protect the rights of individuals against groups who use sheer weight of numbers as a legitimate excuse to intimidate others, or who use violence against others and unnecessarily disrupt and bring chaos into their daily lives.
Clause 11 of the Bill requires organisers of processions to give six clear days' notice of the 516 procession to the police. The aim is to encourage discussions between organisers and the police so that the march can pass off in the right spirit. Most organisers of processions are already in contact with the police and discussions between them are fruitful and constructive. We should expect and encourage such discussions to continue in future. The advance notice requirement was amended in another place, first to exclude from its scope processions with the sole aim of getting from A to B—school crocodiles, for example—and to enable advance notice to be given by post. The opportunity was also taken to make clearer that in the case of spontaneous processions when it is not practicable for notice to be given, none need be given.
The existing powers of the police to impose conditions on public processions are extended in Clause 12. Under the 1936 Act the police may impose conditions on processions which they believe will result in serious public disorder. Three new tests will be added to the existing criteria: serious damage to property, serious disruption to the life of the community or the intimidation of individuals. These are all stiff tests. Mere annoyance or inconvenience will be insufficient to trigger the powers. The serious disruption test was proposed by the Select Committee. It will enable the police to reroute a march to limit the resulting congestion of traffic, or to avoid city centres being brought to a standstill. The intimidation test is a safeguard to prevent demonstrations being used by those whose real purpose is to intimidate and coerce. The White Paper gives the example of a National Front march in a racially sensitive area.
Clause 14 extends the powers to impose conditions to assemblies held in the open air in public places. Public assemblies can just as often be the occasion of serious disorder as marches. The Government believe, with the Select Committee, that it is unacceptable for such gatherings to be outside the Public Order Act framework of controls. The Bill originally extended to assemblies consisting of three or more persons; but the Government accepted an Opposition amendment so that the Clause 14 powers will now only extend to assemblies consisting of more than 20 persons. Clause 13 preserves the existing procedure for banning processions. There will be no powers to ban assemblies; nor will advance notice of assemblies be required.
Peaceful demonstrators need have no fears of these provisions. They are important powers which will enable the police to prevent marches and assemblies from getting out of hand and leading to disorder and chaos. It must be proper for the right of someone who wishes to go lawfully about his business to be protected against those who would mass together and intimidate him and his family. It is not unreasonable to ask demonstrators who wish to get a message across to heed and respect the rights of others and their right not to demonstrate or to take an opposite view. And it does not seem sensible that the police should have powers to prevent marches resulting in serious disorder but be powerless to prevent that serious disorder should it arise from an assembly instead. At present they have to wait until disorder is imminent or has occurred before they can act.
517 Perhaps I may mention in the context of the new controls on assemblies the problem of the so-called "peace convoy". The Government fully share the public concern about the activities of the convoy. No one could have watched the ordeal of Mr. Attwell without a feeling of anger, and it is plainly not acceptable that deliberate trespassers can inflict such harm on innocent farmers. But of course the law of the land does not accept such behaviour. Mr. Attwell obtained his remedy in the civil courts, within a week, and my noble and learned friend the Lord Chancellor is considering how the civil law procedures might be further streamlined to grant more speedy recovery of the possession of land.
But the question that has been put to us is whether the criminal law might have a more important part to play. The police already have wide powers to take action where there is an imminent risk of a breach of the peace, and to prevent obstruction of the highway, and to arrest for offences like criminal damage. We have strengthened those powers in both the Police and Criminal Evidence Act and this Bill. Under the Police and Criminal Evidence Act, the police have more effective powers to arrest offenders, in particular against people who fail to give a satisfactory name and address; and this Bill, if enacted, will also help by extending the public order offences in Clauses 4 and 5 of the Bill—that is, threatening behaviour and disorderly conduct—to offences committed on private land, as I mentioned earlier.
However, quite understandably people have asked, particularly in the light of the suffering caused to Mr. Attwell, whether new police powers are required, and in particular whether any change is required to the law of trespass. There are strong arguments against making simple trespass a criminal offence. No one wants to criminalise the activities of ramblers and birdwatchers, and no one wants to harass genuine gypsies. But we are discussing with the police and, in meetings held last week, with the National Farmers' Union and the Country Landowners' Association whether some further strengthening of the law is required, and if so what form that change should take. They have urged upon us extending the Clause 14 powers to cover assemblies on private land, which is why I mention the subject at this point. An alternative would be some limited form of criminal trespass. I cannot say at this stage precisely what changes in the law we have in mind; and it may be that wider consultation will be required. What I can say is that we are fully aware of the strength of feeling on this issue, that we have the matter very much in hand, and that I hope that when we reach the Committee stage I shall be able to give a clearer indication of our thinking on this very important matter.
Part III of the Bill substantially strengthens and improves the existing offence of incitement to racial hatred in Section 5A of the 1936 Act. While other parts of this Bill may be controversial, I would expect your Lordships to welcome this part in particular. The existing offence is tied to where the likely effect of a person's behaviour or the publication or distribution of inflammatory material by him is to incite racial hatred. There have been cases where, because of the level headed nature of those who receive this obnoxious material, racial hatred is unlikely to have 518 been stirred up. So we are extending the offence to where it is the intention of the accused to stir up such hatred.
Clause 18 provides a new offence of possession of racially inflammatory material. And Clause 19, which replaces that part of Section 5A which penalises the use of threatening, abusive or insulting words, likely to stir up racial hatred, will be extended to cover the use of such words in private places—at present it is restricted to public places and public meetings—except dwellings. It will also carry for the first time a power of arrest. I hope that your Lordships will agree that these measures represent a significant strengthening of the existing law in this field and will provide additional and welcome protection for members of the ethnic minorities who are often subject to this kind of affront. We also intend at a later stage of the Bill to bring certain other media within the scope of the Part III offences; for example, video and soundtapes and films.
Part IV of the Bill contains new measures designed to further curb the menace of football hooliganism. It will provide the courts with the power to exclude from football matches those convicted of football-related offences. Of course we accept that the exclusion order scheme cannot be enforced 100 per cent. effectively. But it will be an important deterrent measure, and anyone defying the ban imposed on him will be liable to spend a month in jail.
Of the provisions contained in the schedules, I should perhaps just mention briefly one matter that I know is of some concern to your Lordships and upon which we dwelt at length last summer. When, with generous assistance from all sides of your Lordships' House, the Government introduced the controls on the sale and possession of alcohol at football matches, I said that we would ensure that the Public Order Bill was drawn widely enough to enable amendments to be made to the Sporting Events (Control of Alcohol Etc.) Act 1985. The aim in particular was to ensure that if there was a case for relaxation of control on the sale and possession of alcohol in executive boxes, this could be accomplished in the Bill. Schedule 1 to the Bill provides for such relaxation. The dry period within which alcohol will not be able to be sold or consumed in executive boxes is being reduced from approximately four hours 40 minutes to two hours 10 minutes; and there is provision for the Secretary of State to reduce this dry period still further by order, should events justify this.
This Bill contains an important package of proposals. They are designed above all else to provide additional protection for the citizen from those who would intimidate him or use violence and disorder to disrupt his daily life. It is a balanced package and provides only such new powers as the police need to deal effectively with the contemporary public order mischiefs they have to face. It represents no threat to traditional democratic rights and freedoms. But it does threaten the bully boys and the thugs of our society who seek to impose their views on others by numbers, by violence and by force. I commend the Bill to your Lordships, and I beg to move.
§ Moved, That the Bill be now read a second time.—(Lord Glenarthur.)519
§ 11.59 a.m.
§ Lord Elwyn-Jones
My Lords, the House will be grateful to the noble Lord for taking us over the course of this complex and obviously very important Bill. I share with him the pleasure that I am sure we shall enjoy of hearing the maiden speeches of the noble Lords, Lord Beaverbrook and Lord Brocket, in the course of the debate. I hope that they will not be too dismayed by having to wait rather longer than is usual for maiden speeches. But good luck to them.
The Bill comes to the House after a marathon course in another place where its Committee stage took up 34 sittings and 80 hours. I notice that the Government Chief Whip is absent. Perhaps that information would depress him unduly. I hope that we shall not take quite so long. Its duration there and the fact that no fewer than 26 noble Lords are to speak today marks the importance and, if I may say so, the difficulties in this Bill.
It is obviously a highly important Bill because it involves the need to maintain a proper balance between, on the one hand, the important necessity of protecting public order and, on the other, the no less vital need to preserve and if possible to extend the classic liberties of the subject, such as the rights to freedom of speech and of lawful protest and the rights of public assembly and of procession—rights which have been fought for through the centuries. In many respects, this Bill fails to maintain the proper balance that is required and it does so to the detriment of the rights of the individual citizen and of the public.
There is at least one comfort in studying the proceedings of the Bill in another place. The strenuous opposition that was put up there—and if I may say so, the willingness of the Minister of State at the Home Office to make several concessions that were asked for—holds out some comfort for what we may expect here also. We know that the noble Lord, Lord Glenarthur, is sensitive to what is said in the House. I am at least comforted by his indications already that on some of the disputed matters the Government apparently have an open mind. We shall seek to make it even more open and to improve the Bill.
The Bill comes before the House at a time of grave concern about the mounting level of serious crime in our community. Last year, more than 4 million serious crimes were committed in this country. Despite the determined efforts of the police, the clear-up rates have fallen in recent years. In 1985, the perpetrators of nearly two out of every three crimes got away with their crimes; five out of seven burglars escaped with their loot. In that situation, the support and involvement of the whole community in the fight against crime is called for. It cannot be left to the police.
In that situation, friendly and co-operative relations between the police and the public are vital. Yet there are disturbing signs that in the very areas where the highest level of crime exists there is evidence of a divide between the police and the local people. While concern about public order is real, we must look carefully at the provisions of this Bill to ensure that they do not and will not bring new risks of conflict between the police and the public without improving public order. Unless the Bill is amended in some 520 important respects we fear that this may well be the result.
There is a further fear that the Bill could penalise the work of peaceful voluntary organisations and fail to distinguish between reprehensible conduct of those bent on violence and ordinary citizens who may wish to ventilate publicly their disapproval of government policies, whatever government there may be.
Part I of the Bill deals with the offences relating to public order. It starts with the trumpet sound of the possibility of imprisonment for life for the offence of riot. The noble Lord has indicated how that came to pass and I anticipate from what he said that that will be abandoned. Riot is not murder. Your Lordships may think that the Law Commission in its report on this subject was wise in recommending that the maximum penalty for riot ought not to be as high as that which may be imposed for the most serious offences against personal property. The Law Commission recommended 10 years, which I should have thought is nearer the mark. However, I am glad to hear that the Government do not have a closed mind on this and we shall obviously discuss it with care. I think it is a bad start that it is in the Bill at the moment, although the circumstances, as the noble Lord has indicated, may be the explanation.
The new offence in Clause 5 of the Bill of disorderly behaviour has been widely criticised as unsatisfactory. In our view the Government would have been better advised to follow the original proposals in their White Paper Review of Public Order Law. Paragraph 3.26 of the White Paper states:The Government recognises that there would be justifiable objections to a wide extension of the criminal law which might catch conduct not deserving of criminal sanctions. For this reason the offence contains the safeguard that the behaviour must actually cause someone to feel alarmed, harassed or distressed (not that it is merely likely to do so)".That creeps into the definition of the Bill at the moment.
The paragraph goes on to say:Any degree of annoyance or disturbance will not suffice: because the offence would be concerned primarily to protect the weak and vulnerable, the proposed definition requires evidence that the victim suffered substantial alarm, harassment or distress".The italicising of the word "substantial" is important and, alas, it does not appear in the language of the Bill. The offence as it is defined in Clause 5(1)(a) is too vague, and I am glad that it is to be reconsidered. It will also extend the offence to private places. The noble Lord has indicated already that the prosecution will not have to produce in court the person who is likely to have been alarmed, harassed or distressed.
In any event, the making of causing distress a crime is surely far too vague to constitute a crime. The law, after all, should allow room for some tolerance. All sorts of things can distress us. Each of us has his favourite forms of distress—the use of a car horn on a Sunday afternoon when one is trying to relax; playing a tape-recorder in the garden; even singing in the streets on a Saturday night after a football match. That would never offend Cardiff but I can imagine that many might well be offended and even distressed.
If the standard is to be applied to any distress or alarm, depending on the sturdiness or otherwise of the person alarmed, would that definition of the crime not 521 greatly extend the criminal law and bring us back again into the field which was so much attacked when we dealt with the discredited "sus" law. I shall be interested to hear in due course the observations of the noble and learned Lord, Lord Scarman, on this matter.
Part II of the Bill has given rise to serious concern because of the new and unprecedented powers that are given to the police over public processions and public assemblies. As the Government's White Paper points out:Marches and processions are a traditional form of celebration and protest in our society".However, there is no recognition in the Bill of the right to demonstrate peacefully. Nor is there any adequate remedy for the citizen against mistaken or arbitrary use of the powers in Part II, which are conferred on the police should that occur.
I agree with the view expressed by Justice, the all-party lawyers' organisation, that there is a need in the Bill for provision for quick, informed review of the merits of the police decisions in this sphere by a judicial authority which is familiar with local conditions. Crown court judges or magistrates' courts could well perform this duty. In our view, the availability of judicial review in that situation is not enough. After all judicial review determines only the question whether the decisions have been properly reached. It does not involve the merits of the decisions themselves, and in my view the availability of judicial review is inadequate as a safeguard for the public.
In this connection, I should like to ask the Minister this question. Am I right in understanding from the Hansard reports of what went on in another place that the Minister at the Home Office has undertaken to issue guidance to the police on the way in which Clause 5 is enforced? Are there to be similar directions or guidance as to the use of police powers over assemblies and processions? If there are, should they not be given statutory or obligatory form by one means or another?
The key feature of Part II of the Bill is the requirement of advance notice of public processions. At present there is no national requirement to give advance notice of public marches and processions to the police, although I understand that 92 local authority areas do require advance notice of marches of between 36 hours and five days. Many other areas have no notice requirements at all. The Bill proposes a national requirement for organisers to give written advance notice of marches and processions six days before the event or, if that is not reasonably practicable, to give written notice as soon as is reasonably practicable.
March organisers are made subject to the criminal law. One notes in Clause 12(4) of the Bill:A person who organises a public procession and knowingly fails to comply with a condition imposed under this section is guilty of an offence, but it is a defence for him to prove that the failure arose from circumstances beyond his control".I am not sure where that leaves the burden of proof, but perhaps we can go into that in committee.
However, what is significant is that a person guilty of an offence under that subsection is liable on summary conviction to go to prison for a term not exceeding 522 three months, or a fine is imposed. There is no indication of a right to trial by jury. We shall have to look at this very carefully. It adds a new terror to organising processions or public meetings.
The criteria in Clause 12 for imposing conditions on public processions is also a matter which we shall have to examine very carefully. The view of the Association of Metropolitan Authorities, which has responsibilities and experience in this field, is that the provisions in Clause 12 are likely to give primacy to the needs of motorists and traders, and to give second place to the right of peaceful procession and protest.
Clause 14 deals with the new powers given to the police to impose conditions on public assemblies and public meetings. Those who may organise a street-corner meeting on a new issue that may suddenly have sprung up calling for public protest had better beware if Part II of the Bill as it now stands becomes law. I note with great pleasure that my noble friend Lord Soper is to speak in the course of this debate. Perhaps he too should take care. How many present at his meetings will make it an illegal assembly? I am sure that my noble friend will riot be troubled by such fears, but nevertheless this needs to be looked at. The test seems to be whether his or other people's meetings will constitute serious disruption to the life of the community. The words are as broad as that and may give rise to a peril for those who organise public meetings and protests, which, thank God, are an important part of our democracy. Dictators do not allow them; we do. We shall seek to ensure that they continue.
Incidentally, it is perhaps not irrelevant to remember that Article 11 of the European Convention on Human Rights provides that everyone has the right to freedom to peaceful assembly, and I pray that this Bill will not affect that. However, Clause 14 as it now stands imposes rigorous constitutional limitations on public assemblies and could well prevent and frustrate public meetings to the point of those meetings losing their impact, and could bring about a serious diminution of the civil rights of the public to make known their views by peaceful means.
I have wondered whether the police have really wanted all of these powers and what consultation there has been. As I say, we must not project them into the political arena as this part of the Bill may well have the effect of doing. I venture to ask this question: are local authorities to have no say in relation to processions, marches and open-air meetings? Indeed, the role of local authorities in this whole field is notable by its absence from the provisions of the Bill. I submit that throughout the Bill puts far too much of the burden on the police and too little on local authorities and local folk.
I now turn briefly, happily, to a more acceptable part of the Bill; namely, Part III dealing with provisions to control and prevent racial hatred, which of course we greatly welcome. Indeed, the provisions include some of the strongest statutory provisions ever introduced against the odious promotion of racial hatred. I ask in passing: should not the proposals be expressly extended to broadcasting? However, perhaps we can go into that again in Committee. The old statutory provisions requiring proof that the defendant intended, by the offending publication, to stir up racial 523 hatred presented difficulties, as I remember from the days when it fell to me, as an attorney, to bring those charges before the courts. However, now the position of the prosecution has been strengthened by Clause 17(1)(b) of the Bill, and a person is guilty of an offence if,having regard to all the circumstances racial hatred is likely to be stirred up as a result of the publication or distribution".Clause 19(5) is noteworthy because for the first time it gives a constable—and this has been much asked for in the areas which have suffered from those who promote racial hatred—power to arrest,without warrant anyone he reasonably suspects is committing an offence under this sectionwho intends by the use of words or gestures to stir up racial hatred.
Therefore this Bill, like the famous curate's egg, is a Bill which is good in parts, but as I ventured to indicate, it is bad—and seriously bad—in others. I hope therefore that the indication (slightly faint) that we have had of an open mind on the part of the Government on this matter will prove that we can turn what is potentially a dangerous Bill into a beneficial one.
§ 12.20 p.m.
§ Lord Hutchinson of Lullington
My Lords, from these Benches I also should like to welcome the two maiden speakers who are to speak in this debate. It will be of interest to see how they manage to be non-controversial about a subject so controversial as public order. Part I of this Bill is founded on the work and the recommendations of the Law Commission, as your Lordships have heard. In their report there is a key sentence, and I quote:This area of the law is closely concerned with the exercise of the fundamental liberties of the subject, and it is therefore necessary to move with caution in considering the ambit of any new offences.The noble and learned Lord Scarman, whose contribution to this debate we look forward to with keen anticipation, in his report in 1981 displayed the same wisdom. He welcomed a modern re-statement of the law, but in view of the substantial array of offences and arrest powers already in existence he at that time saw no urgent need for the creation of new public order crimes. In so far as the Bill codifies, clarifies and simplifies the common law we on these Benches give it a broad welcome, as indeed we do to Part III, the control of racial hatred, an area close to the hearts of all members of the Alliance.
However—and here I echo the words of the noble and learned Lord, Lord Elwyn-Jones—it would seem that in some crucial clauses in Parts I and II of this Bill caution has been abandoned, new offences have been created bringing behaviour which may be no more than an inconvenience, or socially undesirable, into the ambit of the criminal law. There are catch-all provisions in this Bill which will criminalise new areas of public behaviour, will draw young men and women and juveniles into an extended area of delinquency, and which may well seriously compromise, or appear to compromise, the vital impartiality of the police.
We do not share the view of the Minister that the liberties of the subject have nothing to fear from this 524 Bill. It is intolerable that those who live in the inner cities or on run-down estates should suffer from the offensive, violent or threatening behaviour of groups of young thugs or louts, and that people anywhere should be put in fear when going to work or going about their lawful occasions. Their rights, their fundamental freedoms, are the real and genuine concern of all those on these Benches, and have repeatedly been shown so to be.
However, at the same time we recognise that public order is a particularly sensitive area of the criminal law. Many of those who abuse their right of peaceful protest, and their right to assembly, who sometimes trample on the rights and freedoms of others, are not criminals as such. Those few who commit arson or criminal damage, who loot or commit serious assaults, must no doubt be treated as criminals; but to get the matter into proportion I would advise all those of your Lordships interested in the matter to have a look at Appendix B in the Law Commission's Report which sets out the public order offences of riot and unlawful assembly recorded by the police between 1973 and 1981, and the sentences passed by the courts in those nine or 10 years.
It is clear that there was only a minute number compared to the number of crimes. They vary, in riot, between 18 and 30 in each of the years; of unlawful assembly, between seven and 19, and so on. Throughout that period there is no sentence—and this is relevant to the life sentence which it is suggested should be appropriate to the new offence of riot—of more than five years for any offence under the public order provisions. It is important to get these matters into proper proportion.
The noble and learned Lord, Lord Scarman, emphasised in his report that much of the violence on the streets in the inner cities cannot be understood—and I would add cannot be contained or prevented—unless it is seen in the context of the complex social and economic factors that exist. In this Bill the Government, in Parts I and II, have fallen into the temptation of creating new offences, extending the powers of the police to interfere and control, in the belief that this is the route to the achievement of public tranquility. It is the duty of the police to enforce the law that we create, and law enforcement in itself can cause friction and division within the community. In a robust and tolerant society there are other great dangers in multiplying criminal offences to cover behaviour which really is no more than an affront, or an upset, or an anger, or distress, to some members of society. Some parts of Clauses 5, 11, 12 and 14 of this Bill do just that.
The Law Commission made a further point, and made it strongly, that public order offences should penalise only the actual conduct of the offender. Accordingly in the draft Bill they carefully separated acts of violence from mere threats, and the sentences in their Bill reflected the differentiation between those two types of conduct with, as we have already heard, a ceiling of 10 years for the most serious and worst offence. I would suggest that it is a pity that this Bill has not followed those precepts. Clause 2 embraces in one offence the use of violence or of threats, the maximum penalty of five years being equally applicable to each. It would also appear—and I would ask the Minister to 525 clarify this—that violent disorder by threats alone could consist of the use of words alone.
In Clause 8 we have a definition of "violence" which is used throughout the Bill. When one looks at that definition what does one find but that "violence" means "any violent conduct"? Furthermore, that definition section goes on to say thatit is not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct (for example, throwing at or towards a person a missile of a kind capable of causing injury)which may not actually hit, or falls short. It is somewhat surprising to find an example as part of a penal statute. Nevertheless, it is a definition, as so many things are in this Part of the Bill, which I would suggest is far too loose for a penal statute dealing with public order.
Clause 1 in the Bill follows exactly the Law Commission's draft offence, except for the penalty of life imprisonment which they suggested was 10 years. I do not know whether the Minister appreciates, having regard to what he said, that the sentence of life imprisonment which was passed at the Central Criminal Court—which was perfectly obvious to anyone who knows anything about these affairs was on the face of it ludicrous sentence—was reduced by the Court of Appeal many weeks ago. I sincerely hope, as the noble and learned Lord who spoke before me, that this sentence of life imprisonment, which is entirely out of proportion to related offences, will be reduced in Committee.
I find the language of Clause 1 a little difficult to follow. I would ask the Minister's assistance as to what would happen at a trial where four of the 12 persons were acquitted on grounds of self-defence? That would mean that only eight could have been using the necessary unlawful violence. Would it therefore mean that all the defendants would then have to be acquitted?
Equally, I find Clause 7 extremely difficult to understand and I should be grateful if the Minister could give guidance on this when he winds up this debate. Clause 6(7) has to be read with Clause 1 which states that these subsectionsdo not affect the determination for the purposes of riot … of the number of persons who use or threaten violence.If that means that the mental element in this offence of those participating is entirely irrelevant, then how do you prove that they all had a common purpose? I appreciate that this is a Committee point, but it is vital to the proof of Clause 1 and I should be grateful if the Minister could give guidance upon it.
It is, as the noble and learned Lord has already said, Clause 5 that is so loosely drawn as surely to be unacceptable in its present form. It contributes this new concept of disorderly behaviour and makes it criminal if it causes "harassment, alarm or distress". At common law threatening, abusive or insulting words or behaviour can only be an offence if there is a likelihood of a breach of the peace. In the Law Commission's draft Bill it can only be an offence—I agree with the drafting—if there is a fear of violence. But here mere alarm or distress are to trigger off criminality. Surely, in a plural society living in freedom under the law, we must be prepared to tolerate all sorts and kinds of disorderly behaviour 526 which may cause some of us harassment, alarm or distress. Examples have been given. I add to them: a student rag-day; a Saturday exodus from a pub; protests and vigils outside premises; abuse at meetings—I, too, fear for the future of the noble Lord, Lord Soper—the picketing of a shop allegedly selling South African produce; banners bearing words such as "Child Murderers in Libya".
Are really all these manifestations now to be criminalised? I fear that if this all-embracing offence remains as it is drawn we may well be on the way—here I differ from what the noble Lord the Minister said—to a return of the old sus situation: the police evidence alone suffices; the onus is shifted to the defence to prove innocence; a power of arrest on the say-so of a constable; no trial by jury and, almost certainly having regard to the penalty, no legal aid. Although the Minister draws attention to the amendment in another place that a victim is being brought into the definition, in reality it is only the say-so of the constable concerned who will say that there were within view of these youths making this noise two old ladies who looked extremely upset. That amendment makes very little difference to the situation under this clause.
As has already been pointed out—and I shall not repeat it—in the White Paper, there were four vital safeguards for this new offence. Every one of those safeguards in the Bill as drawn has disappeared. It is our view, subject to anything the Minister has to say, that the offence of disorderly behaviour should either be removed from this Bill or fundamentally redefined.
Finally, I pass to Part II of the Bill dealing with advance notice of processions and assemblies and the imposition of conditions by the police. Under Clauses 12 and 14 a police officer is given the widest powers to impose conditions "as appear to him necessary", before a meeting or a march takes place, if he reasonably believes that serious public disorder may result which is, no doubt, acceptable but in addition ifserious disruption to the life of the communityis foreseen. How can those words be defined in a court of law? The blocking of a pavement, the snarl-up of traffic, the shouting of slogans, the vigil outside premises—all these may disrupt some part of a community's life, the shoppers or the inhabitants. The judgment is purely subjective. In a spontaneous procession or assembly it will be the senior officer present, however junior, who with no obligation to consult and with no form of appeal will have to make these difficult decisions. All those taking part, and knowing that a condition is not being precisely observed, commit a criminal offence. Anybody who gets someone else to take part in such a march or such a meeting, is liable, as the noble and learned Lord has already pointed out, to three months' imprisonment. One must ask: is it really necessary? Is it sensible to erect such an edifice of criminality in the circumstance of a protest or celebratory meeting or march? To criminalise the actions of maybe hundreds of citizens in circumstances of deeply held concern when there is factually little possibility of mass prosecutions is surely, as the miners' strike so vividly showed, a most damaging and hollow policy to pursue. Unlike the Minister I believe that that surely very seriously erodes the freedom of the citizen to meet or to march.
527 What in the Bill is "a procession"? Once again, one looks to the appropriate clause, Clause 16, to find guidance. "Public procession" is defined as:a procession in a public place".That is not very much more help than the last definition that I drew to your Lordships' attention. Quite apart from the definition of a procession, the clause which makes these offences, Clause 11(1), uses these words:to hold a public procession intended … to demonstrate support for or oppositon to the views or actions of any person or body of persons … to publicise a cause or campaign or … to mark or commemorate an event".One is bound to ask what people will come under those words: a group of ramblers opening another stretch of the South Downs Way, or mothers pushing prams when making a demonstration in favour of a new zebra crossing, or a sponsored run or walk which collects a large following? I ask the Minister: Is it really to be said that there is a situation now obtaining in this country that such draconian and such widely-drawn powers have suddenly become a necessity? This surely is all miles away from stopping and containing chaos.
These clauses in their present form look, do they not? like steamrollers employed to crack a fairly fragile nut—and a nut which hitherto in the vast majority of cases has been cracked by mutual discussion and consultation between the police and those organising the marches and demonstrations. This Bill sets out to clarify the law, to make it more sure and to make it more easily enforceable. In so far as it does these things and makes the enjoyment of individual rights more secure, improves the relationship of police and public and secures the impartiality of the police, so we will give it our support from these Benches.
But where it criminalises acceptable public behaviour, creates unnecessary criminal offences and makes more difficult the crucial co-operation and mutual respect of police and public, we shall seek to amend or remove the offending clauses in an area of the criminal law which is particularly sensitive and would affect, one way or another, every member of the community.
§ 12.42 p.m.
The Lord Bishop of Rochester
My Lords, we are dealing in this Bill with what I believe is one of the cherished inheritances of our country, the maintenance of the Queen's peace, which enables the ordinary citizen to go unhindered and unmolested about his lawful business throughout the length and breadth of the land. Some of us can remember the events of half a century ago when the law had to be strengthened in Section 5 of the Public Order Act 1936 to deal with the political dissent on the streets of London which led to grievous violence at that time. I do not believe that anything quite as organised or quite as menacing as those events has been repeated in recent times. But there are clearly various other developments which make a review of the law necessary at the present time, as the Minister explained to us in his introductory speech.
I think that these developments can be summed up in one word: pluralism. Our society now embraces a 528 wider range of views, not just among those with different racial origins but also across the various geographical regions of the United Kingdom and among the different economic groups in our society. The report Faith in the City: a call for action by Church and nation, after quoting the noble and learned Lord, Lord Scarman, the Lord Chief Justice and the Commissioner of Police, suggested that a consensus view is developing that crime policy cannot be successfully formulated in isolation from the community, and that the community should be involved in a programme which has as its aim the prevention of crime.
I think that this view presupposes that the community, however you define it, regards the law as a friend and that general respect for the forces of law and order arises from the sense that the law is framed to protect inalienable human rights. So long as all new legislation continues to seem compatible with these principles, then I believe that respect for the law may reasonably be expected from everyone. But we know, as the noble and learned Lord, Lord Elwyn-Jones, has reminded us already, that in some places this is not so. But I think that we need to remember that there are other encouraging signs as well that we must not overlook. Several initiatives of the probation service have an essentially community approach, as does the new importance given to local policing and to the community-based improvement schemes on certain housing estates. I hope that we can keep these wider aspects of law and order in mind as we look carefully at the provisions of this Bill.
Reference has already been made more than once to the widespread concern which has been aroused by the offence of harassment, referred to in Clause 5 of the Bill. I take some reassurance from Clause 6(4) which says:A person is guilty of an offence under Section 5 only if he intends his words or behaviour … to be threatening … or is aware that it may be".None the less, I am bound to say that I think that this offence seems to be drawn very widely and, as The Times suggested in a leading article, police application of this power will require tough monitoring.
I should like to ask the Minister—and I think that he has been asked already—whether he does not think that it will be important that there is a code of practice worked out at an early date and even meanwhile perhaps a circular of guidance for the police on this question of harassment, similar to that which is proposed in a later Part of the Bill. The clauses in the second Part of the Bill dealing with processions and assemblies touch on matters that are intimately bound up with what we are proud in our better moments to call our British democratic process. The history of the gradual development of the freedom of the citizen against the Royal Prerogative, against tyrannical local leaders, and even against tiresome prelates, involves debate, assembly and procession at many points.
As the Minister has said today, a balance has surely to be struck between maintaining freedom for all sections of the community to go about their lawful business and permitting sections of the whole community to declare jointly, and to demonstrate by procession, their convictions; and to do this as a means of making them known to others. These clauses affect 529 not just the rights of pickets and of political parties, but also those of religious bodies to hold vigils for peace, for human rights, or to demonstrate against identified social ills. Very considerable sensitivity will need to be shown by the police in implementing these clauses. I think that this is recognised by the fact that the Home Office has promised to issue a circular reminding the police, when considering their use of these new powers, of the right of people to assemble and to demonstrate peacefully.
I hope that when the time comes at the Committee stage we shall look very carefully at the provisions of Clause 14 and particularly, as has been suggested already, at the use of the phrase, "serious disruption to the life of the community". I really think this is a rather unfortunate phrase which could drive a wedge unwarrantably between a community and a public assembly. I do not think it will be easy for policemen to decide, for instance, whether the rights of people to queue for a No. 24 bus in Trafalgar Square in order to come to lobby Parliament are greater than those of people who want to demonstrate at that same spot in front of the South African Embassy. And both groups might be held to be interfering with the right of other citizens lawfully to proceed to St. Martin-in-the-Fields to take part in a vigil of prayer for peace. Perhaps these examples may serve to highlight the importance of a proper definition of "seriousness" and of the need for guidance to be given to the police, preferably in a code of conduct.
Many of the matters in this Bill touch upon individual freedom and for that reason I hope that those in your Lordships' House who have more knowledge and expertise in this field than any of us on these Benches would presume to claim, will scrutinise the provisions of this Bill very closely indeed, lest we present both our democratic processes and the police, upon whom we rely for our protection, with legal dilemmas that will prove too great for them.
§ 12.50 p.m.
§ Lord Beaverbrook
My Lords, as I stand here with a certain trepidation, embarking upon my first speech in your Lordships' House, I can assure noble Lords that I shall not unduly tax your patience. Today is Friday the 13th, and it would certainly be unwise for me to tempt fate any more than is strictly necessary!
We are today debating proposed changes in the law of public order. From time to time it is necessary to look at the rules under which we carry on an orderly society within our great nation. These rules must tread a narrow path between preventing oppression of opinion, protecting freedom, protecting minorities against victimisation and protecting the majority against unduly vociferous and intimidating minorities—a fine balance, but one which this country has achieved for a very long time, perhaps even for hundreds of years.
I believe that we have been the most progressive nation in the world in the protection of freedom under the rule of law. We even fought two world wars as a result of our conviction that freedom must prevail. Today's Bill amends many parts of the Public Order Act 1936. That Bill was enacted in response to the threat of serious public disorder on a national basis which threatened our cherished freedoms if the 530 objectives of that disorderly behaviour had been achieved. The Fascist movement, with all its paramilitary behaviour, gained support in Britain at an alarming speed. Equally, the concern and the fear of the then government and all right-minded citizens grew swiftly. That was before the salutary hindsight of the Second World War and before the birth of television, which would eventually give us immediate awareness of disturbing factors in our community.
The 1936 Act was never used against those who made it necessary, but it has served the nation well for 50 years. In relation to this new Bill, there has been much comment on why it is necessary. "As a reaction to changing circumstances" is undoubtedly the most widely-expressed reason, I should like to explore briefly what I believe to be two examples of fundamental changes in our society over the last half century which have contributed to making an update of public order laws an advisable move.
The first example concerns the different social and economic conditions that we live in today compared to 1936. We have a larger population; we have seen our great welfare state reduce poverty and improve health care for all. Our education system is both more extensive and better; we have a higher standard of living; we have more leisure and more money to spend on it. We have greater mobility within our country; we even have more ethnic and other minority groups. I believe that all the above changes enable our people more readily to indulge in causes in which they believe. This leads to a greater frequency and size of public meeting, march or assembly; so inevitably a greater strain will fall on the police, who must enforce the law regardless of the number of people present at a gathering. Related to this aspect of change is an increased tendency for a peaceful protest to be hijacked by a trouble-making minority, who react to the slightest excuse for violence. The police then have a most delicate job to prevent escalation. When public violence does erupt it causes great worry to people throughout the country.
This brings me to the second change of circumstance that I wish to mention: that of the media. There is a very considerable increase in communication and information available to every household in the land and to every citizen. This media revolution is apparent even over the past 10 years, let alone the past 50. At the time of the 1936 Public Order Bill, newspapers were the principal medium in this country. They provided for a broad range of tastes, political or social, but collectively they probably formed some reflection of public mood. Then, as today, social issues were the key to the thin veneer of ordered behaviour. As your Lordships will be well aware, even the least contentious gatherings can contain widely differing views, stances and opinions. This is only revealed by dialogue and publication. The changed circumstance before us now is that television, the telephone and other electronic media eliminate a potential filter on news coverage. I choose my words carefully here, but I very much doubt whether even my grandfather, the first Lord Beaverbrook, would have got very far in suppressing comment on the events leading to the abdication crisis in 1936 if he had had to contend with the media industry that we have today.
531 So news of breaches of public order, even on a local scale, now reach the people of this country faster and more vividly. This tends to cause terrible concern to many people over relatively minor and perhaps short-lived events, so inevitably increasing the call by public opinion for a review of public order laws. Furthermore the presence of the media, particularly television, at public meetings, at sporting events, on picket lines and in other places, hoping to film a newsworthy happening, can indeed be self-fulfilling. Today the media are often unwittingly used as an instrument for promotion of sometimes dubious causes.
My Lords, I have attempted to outline merely two instances of changed circumstances that have occurred since the last Public Order Bill. There have been other important changes, both evolutionary and revolutionary, and I am sure that your Lordships will mention many of them. I undertook not to detain your Lordships so I must shortly sit down, but I should like to emphasise how vital it is to safeguard the freedoms that we have in this country, many of which are not enjoyed in other places in the world. We must continue to demonstrate great tolerance and patience within a rule of law that is enshrined in inviolable, enforceable and understandable legislation. I am sure this will be the case, and I welcome this opportunity afforded to us of reviewing the public order laws. I shall be most interested to hear the views of other noble Lords today.
§ 12.59 p.m.
§ Lord Soper
My Lords, it is my privilege and pleasure to be the first to congratulate the noble Lord, Lord Beaverbrook, on his maiden speech and to assure him that when he remembers it he will think of it more auspiciously than ever on Friday the 13th. I am particularly grateful, as I am sure the House will be, for the kind of panoramic historical survey out of which this particular emergency and this particular Bill arise. Let me particularly thank the noble Lord for the last sentence of his speech, which seemed to me totally admirable. I hope we shall hear many more speeches as well-tuned and as carefully prepared as that to which we have listened from him today.
I think no one could possibly object to the introduction of measures to contain and to reduce the ever-increasing violence in contemporary society. In that regard, I welcome a Bill and I welcome certain elements in this particular Bill, because I believe that this violence has to be dealt with radically and basically. As a minor contribution to the argument against the Bill, may I say that I believe it would have been far more effective had it gone much more deeply into the causes of social disorder, and propounded rather more carefully those parameters of public debate and of association in which I believe a new kind of authority can arise and a new sort of authority can prevail. I will confine what I have to say to the areas of the Bill which are primarily concerned with demonstrations of one sort or another, and outdoor exercises, equally, of one sort or another, and I would claim that I have some experience in these matters over a long period.
Your Lordships may allow me, first, to say why I ventured into demonstrations and have so continued. 532 The answer is simple. I was sent as a young probationary minister to the Old Kent Road and it was my intention to preach the Gospel there, but practically nobody attended the church to which I was appointed. If I were therefore to be effective in any way I had to go to people where they were, not where I would have preferred them to be, and most of them were not in church. In that regard I have persisted over a very long period now, because one of the essential characteristics of any kind of evangelism, or the prospecting of those matters which are of public interest, is that it has to be undertaken in a realistic recognition that unless you are working within the environment of those whom you wish to influence you are wasting your time.
In the first instance, I find that this particular and necessary part of public speaking and the cherishing of freedom of speech is impaired, where the actual location of the speech is determined not necessarily in terms of the appositeness or the importance of the issue but in terms of certain other regards to which I will come later on. I find that where an immediate issue is localised in a particular part of London, a particular street or a particular place, where there are certain issues to be resolved, it is impossible to support any kind of Bill which says that if there is likely to be some kind of disorderly conduct, then you must move the demonstration away from the spark fire of such discontent and re-route that procession so that it will avoid the approximation of those problems to which you are endeavouring to make your claim or to present your case.
Furthermore, here is one of the illustrations of that fundamental difference which is now increasing almost day by day between the North and the South, between those who have and those who have not—the fact that there is a world of difference between Gateshead and Guildford. Unless we are prepared to recognise that, unless we have the opportunity of spending our evangelical exercises in that kind of area where it can have the maximum impact, we shall be impairing that very necessary part of public propaganda and public witness.
Furthermore—and this is just as important—unless we recognise, and are allowed to recognise, what we are doing in public exercises, such as public meetings and the general propagation of what we believe, within a framework which is actual and realistic, we are indeed being inhibited from the real purposes to which we ought to be committed. It is in those regards that I believe that the attitude taken in this Bill in many respects to the propositions that are included in public assemblies, demonstrations and marches has to be revised and has to be altered. I hope that it can be altered in Committee and I believe that it must be.
I turn now to disorderly conduct and ask myself: are you really asking a parson not to seek to alarm his congregation? Are you really asking somebody to be careful not so to upset the feelings of others that they will feel any measure of distress? As for harassing people, I have a very healthy regard for the prospect of harassing people—mentally, of course, and not physically—because I believe that many people are resistant to almost every other kind of appeal except for harassment which jogs them out of their contemporary sense of ease and well-being and 533 presents them with the real facts of the case. That is exactly what happens when you compare Gateshead with Guildford.
I reject in toto the idea that in order to preserve the sort of conduct in public affairs which avoids great disorder, it is necessary to stimulate a kind of reticence about matters of distress or, indeed, of alarm. I am not at this moment talking of alarm in the eternal sense, so much as the alarm which is very proper to those who look out on the contemporary scene and see what ravages there are in the lives of so many people, and how easy it is for those who are well-off and already well-contented to avoid any kind of unpleasant reaction to something which, unless we take it to them, they can very easily ignore.
What bothers me most of all is the problem of the way in which a police force, which should, I think, be restricted to the application of the law, is now required in many cases to interpret it. Let me tell your Lordships a true story. Not so long ago I was arrested on Tower Hill. I was about my normal avocation and I noticed a uniformed officer, who told me that I must get down because I was creating some kind of disturbance. He said further that I was preventing access. I asked: "What is this particular offence of which I am guilty?", and he replied, "You are preventing people from their lawful occasions in the Tower of London." I found that quite unacceptable and I said, "I am not prepared to get down." I was promptly arrested and told to wait for the wagon. A wagon did not turn up, but a senior officer did. He was fairly apologetic and said that a mistake had been made. I, with what I hope was magnanimity, said that I hoped that the constable would not be prosecuted or penalised. He said, "No, he will not be penalised; he will be informed."
That raises a question. I can understand a policeman being informed on a clear-cut proposition of law or the enforcement of it. What I believe this Bill, in many respects, does is to criminalise in complex situations those who, in what they do, go far beyond the precise information which a police force at any particular time can muster. It is, in my judgment, a very dangerous thing, not because it is necessarily malevolent, but because it is fragile mentally and in many other ways, to increase the powers of a police force to interpret a complex social situation. It is in that regard that so much of this Bill, in its relation to voluntary bodies, is a Bill which is imprecise and which, time and time again, demands from those who would put it into effect an interpretation which may or may not be obvious and in many cases is highly complex. I hope, therefore, that in Committee these questions which vitally affect the freedom of public utterance, to which I have been addicted for a long time now, can be considered.
I would ask your Lordships to permit me to make a final comment. I have spoken in the open air at Yarrow Bank in Melbourne, at Domain in Sydney, and in various places in the United States of America. I cherish the greater freedom and the greater civilised acceptance of public meetings that is still, I believe, a curious treasure of the country to which I belong and which I love. I am more than ever convinced that we have an imperishable virtue in our determination in very large measure to create something and to 534 maintain something that I would presume to call a fellowship of controversy. That fellowship of controversy, if it is carried within the framework of non-violence, produces effects. I will characterise one of them.
I am not gay but I have many friends who are. I ask your Lordships to believe me when I say that there has been, in a fellowship of controversy, a change in which, in Hyde Park on Sunday afternoons now, the gay community is free, or relatively free, to present its justifiable case against the absurd and iniquitous nonsense about the Old Testament characterising homosexuality as being itself a sin. That is a great virtue, which has been attained in a fellowship of controversy rather than in the deadpan attitude that either one agrees, or one is sinful or destitute of moral understanding if one does not.
I hope that that fellowship of controversy can be enshrined in a far better way than the difference that is now expressed, as between a breach of the peace and causing distress or alarm, or indeed harassment. I believe that it can. I myself have had the experience over the past six months of the deploying of quite an amount of violence in Hyde Park. It is now finished and it is over, and it is over because there has been recognition that it is better to take the risk of occasional disorder rather than so to impose upon the presentation of one's case the kind of parameters that will prevent either its prosecution, or the understanding that we can well disagree, and still remain within the framework of a general consensus of appeal and desire for a better world in which we could all live.
That is a claim; it is a plea. In many respects I support this Bill, but in the various matters to which I have given some comment I believe that the Bill is flawed, and I hope that it will be radically transformed in Committee in order that the better parts of it may prevail.
§ 1.13 p.m.
§ Lord Brocket
My Lords, this is my first speech in your Lordships' House and I hope that your Lordships will forgive any shortcomings on my part. I should like to address myself to the problem of trespass, which has been highlighted by recent events. I believe that the law must change but that the proposed amendments may not overcome the basic problem. I should like to look at the principle as I see it.
Not long ago we boasted in Britain that an Englishman's home was his castle, and "private" was a word that we learnt at school, and the meaning of which we understood. Today, things have changed, and quite frankly I believe that they have become a little muddled. In the old days, the population was smaller and there was more common land. Bands of people roamed from place to place providing essential labour to farms and businesses, and they camped peacefully. That still happens to a certain extent today—for instance, with the annual hop-picking.
Today the population is far larger and land is well accounted for. In living with our population density it is becoming increasingly necessary to abide by a set of rules, to create a framework within which to live. We have in Britain what really amounts to a social 535 contract. In exchange for the security and protection offered by our legal system and police, we undertake to restrict our behaviour within certain limits. We contribute to a system so that if we are ill we receive proper care; if we are homeless we receive shelter; and if we are without work we receive certain benefits. That, then, is our social contract.
Recent events have brought to light the other side of the coin: people who take the cherries and the cream off the pudding but leave the rest. They claim the benefits but demand the right to flout laws that do not suit them. We seem as a country to be able to grasp that to enter someone's house when they have gone out shopping is somehow wrong, but that to enter someone's field when they are actually standing in it is somehow all right. For those who are not in a rush to legislate against such behaviour, their attitude soon changes if one mentions, for instance, occupying their garden. The principle seems to have become linked with size: big areas of land are fair game but small areas, such as gardens, are not.
The trouble is that we have already set off in one direction and have created a precedent by giving one group of people rights that the rest of the population do not have. Travellers may have land rent-free, but if I and my friends are in caravans, we may not. Travellers may leave scrap and rubbish all over the road, but I may not. There is one rule for some and another rule for others.
The present situation is rather a nonsense. It goes against all the values for which, I was always taught, this country stood and fought. In most situations the police are left sitting piggy in the middle, looking helpless and often ridiculous. Occupying someone's garden, allotment or field is not a criminal offence, so the police cannot act. Breaking down fences or destroying crops is criminal, but proving which individuals were responsible is almost impossible, so that is of little help. A typical example occurred last year, when 20 to 30 caravans smashed through a fence and moved onto a field of mine let to a farmer who was muckspreading at the time. The farmer was stopped because the intruders threatened assault. The police were called because criminal damage had occurred and a breach of the peace was imminent. The police could not prevent the farmer from fertilising his field, they could not prove the damage, and they could not ask the convoy to move on.
Forty policemen in riot gear stood there for an hour looking quite ridiculous, and were powerless to act. The farmer eventually went home, prevented from doing his work, and he was deprived of part of his livelihood until such time as the convoy elected to move on. The farmer could not afford a court order. When the intruders moved on, they smashed up the fields of neighbouring farmers. Similarly, public land at Stoney Cross was occupied and considerable damage caused. Trees were cut down, land was polluted and sheep were killed.
Good legislation prevents trouble; bad legislation causes trouble. The proposed legislation in the Public Order Bill relating to trespass will, I believe, be counterproductive. The problem will tend to shift from public land to private land, and I cannot 536 understand the reference to numbers of people in relation to criminal trespass or committing criminal acts. Are we suggesting that two people committing the same act as 40 people is somehow something different? Principle, surely, is what we are dealing with. People of any number causing a nuisance, damage or offence on public land should surely be held responsible. If trespass is deliberate, the degree of trespass is academic. Deliberate trespass in someone's home, garden or land must surely be wrong.
Recent talk of hunts, ramblers and bird-watchers objecting to trespass becoming criminal I find a little puzzling. If they are not supposed to be there and they are asked to move, then surely they will move. If they do not, we should expect and receive immediate remedy under the law.
From discussions in other places I get the distinct impression that practicality is having too much say over principle and that it is thought that police manpower will be stretched further by changes in the law. I believe that the opposite will be the case. If trespass—that is, deliberate trespass—becomes a criminal offence everyone will know where they stand and the police will be able to spend more time attending to more important matters. People will cease to take wholesale advantage of the gap in the law as they do now and an Englishman's home, however modest, will once more be his castle.
§ 1.20 p.m.
§ Lord Scarman
My Lords, I know the House would wish me at once to congratulate the noble Lord, Lord Brocket, on his interesting and excellent maiden speech. We have heard two admirable maiden speeches in what so far has been, even for your Lordships' House, a debate of very high standard and quality.
The noble Lord, Lord Beaverbrook, in a speech as notable for its brevity as for its lucidity and impact, made the point which is surely a very important one, and which was elaborated upon by the noble Lord, Lord Soper, that the time is ripe for a new legislative look at public order. He reminded us that the Public Order Act 1936 is 50 years old and that men and times, and women, have changed very much during those 50 years. We must now really tackle, as I foresaw in the Brixton report, a modern restatement of the law.
The noble Lord, Lord Brocket, in his equally excellent maiden speech has given us a view—perhaps to some of us a fresh view because not all of us are countrymen—of the problems of the landowner confronted with deliberate and sometimes destructive and damaging trespass to property. The lesson which I hope the House will learn from the speech of the noble Lord, Lord Brocket, may be a lesson already fully absorbed by the Government; namely, that they should approach the reform of the law in this very difficult area very slowly and carefully indeed. Never have I appreciated so powerfully in this context as I do now, having heard the noble Lord, Lord Brocket, and the noble Lord, Lord Glenarthur, that the essence of speed and effectiveness is to make haste slowly.
Coming to the immediate subject of our debate, let me say at once that, like the noble Lord, Lord Soper, and the right reverend Prelate the Bishop of Rochester, 537 I welcome the attempt to restate the law relating to public order. I welcome the Bill but I have misgivings. It is not a Bill to which I can offer three cheers. It is a Bill some aspects of which I applaud and other aspects of which cause me most profound misgivings. As is to be implied in all the speeches that have so far followed the opening of the debate by the noble Lord, Lord Glenarthur, this is a Bill which, at whatever cost in time, must be examined in Committee in certain respects very strictly and very severely. Unless that scrutiny is given, there is a risk that the Bill will encourage—although it is certainly not the intention of Her Majesty's Government that it should encourage—a creeping invasion of our common law civil rights and liberties.
Common law follows the admirable principle that anyone may do or say anything that he or she likes so long as it is not contrary to law. That is an admirable principle and may well be the reason why common law has survived for so long. However, in today's society we are finding that legislation which is passed to restrict some of those rights and freedoms in the interests of public order or some other cause may encourage not only judges and juries but the public to look to the restrictions rather than to look to the substantive rights upon which they are, at best, no more than limitations.
There is the risk of an unwarrantable extension of criminalisation in this Bill, particularly in the new offence of disorderly conduct in Clause 5 and in some of the provisions governing the power of the police, and in some cases the local authorities and the Secretary of State, to impose restrictions upon the conduct of public processions and public assemblies.
I make one further general comment here. There has been a stalwart attempt in the other place to introduce into the text of the Bill certain provisions limiting the restrictions on civil liberties and rights involved in certain of the offences formulated in this Bill. These, of course are not enough. We do not have in our law a formulation of the right of free speech, although the general common law protects it. We do not have in our law a formulation of the right of public protest or the right of public demonstration. Indeed, we do not have the right of association, the right of assembly in a public place or the right to strike. All those rights, it can be said, are recognised by our law, but they are, in a strange way, the unspoken part of the law. They can get forgotten when courts and others start to have to consider a statute, even a statutory code, imposing one restriction after another and creating one offence after another.
It may occur to some of your Lordships—I am sure that it will occur to my noble friend Lord Broxbourne—that this Bill would be a much safer legislative exercise if, in another place, passage is given to a Bill, the Human Rights and Fundamental Freedoms Bill, which was introduced by my noble friend and which succeeded in passing through all its stages in this House. Together, the two Bills would achieve a statutory balance in our law. We should then have a positive parliamentary affirmation of our fundamental civil rights and liberties that would stand together with a Public Order Bill which, of necessity, to some extent has to be a restriction and a limitation upon the exercise of those rights.
538 So much for my general approach. I think that I can be very much briefer than otherwise I should have been because I find myself in total agreement with the general approach of the right reverend Prelate and the noble Lord, Lord Soper. One does not have to agree with every detail but surely that is the correct approach. I find myself continually harking back to what the noble Lord, Lord Beaverbrook, said about changing conditions. We are in a different world now. It could be said that our society has become so complicated and our representative system of government so remote to many fellow citizens, that there has to be an alternative way of expressing dissent other than the constitutional way of doing it through representative institutions. Of course, representative democracy must continue and develop. At the same time if all views are to have access to the immensely powerful media which control men's minds to a large extent, there has to be in our community an alternative approach to the public ear: alternative democracy, if you like, or, if you belong as I almost do to the steam age, a safety valve.
We are concerned here, in the interests of public tranquility, to impose certain restrictions and limitations upon that exercise in alternative democracy, or upon that safety valve; and let us not do it unless we are quite sure that our representative institutions give voice to everybody in time. No one can be sure of that; the Athenians never were, the Swiss are not, and I do not think that we can be.
I now come to the two or three specific points that I wish to make on the Bill. First, with the exception of Clause 5, I broadly welcome Part I of the Bill, which creates the new offences. The Law Commission was absolutely right to recommend the abolition of the complex old common law offences of riot, rout, unlawful assembly and affray, and to put forward—which the Government have substantially accepted—a modern reformulation of those offences. Like the noble and learned Lord, Lord Elwyn-Jones, and for the reasons that he indicated, I should like to ask the Government to take another look—indeed, I think they are doing so—at the maximum penalty of "life" for riot. But by and large the new offences put forward, the statutory offences of riot, violent disorder, and affray, and the reformulation of the Public Order Act offence of harassment—the Section 5 offence in the Public Order Act 1936—are acceptable.
I am a little troubled, and I always have been, by the Public Order Act Section 5 offence which is now the offence formulated, and on the whole well formulated, in Clause 4 of the Bill. My problem with it is that it is of course a summary offence, and to ascertain commission of the offence a number of somewhat complex facts are required to be established by evidence. To be criminal or offensive the conduct must be directed against someone. It must be such—and I use these words for brevity only—as to cause or be likely to cause or provoke a breach of the peace. If lay justices come to the prosecution case strictly and judge it on the evidence by reference to the exact language of the clause, I shall have no difficulty. But of course, it is a summary offence and therefore it is essentially left to magistrates.
I turn now to Clause 5. With respect, the Clause 5 offence seems to me to be extending the bounds of 539 criminality further than we can accept, given the importance of the alternative democracy to which I have referred. First of all, the offence can be committed by using offensive words alone. Secondly, even the adjective "threatening", (which of course is used together with "insulting" and "abusive") is vague. If one looks at the reformulation of the common law offences, when the adjective "threatening" is used, it is always threatening unlawful violence, express or implied. We are now extending into the criminal law an offence which does not require a violent intent. It requires merely a threatening intent. Threatening what? I am troubled, and I hope that this matter will be looked at.
Similarly, in the context of Clause 5 the words "abusive" and "insulting" are of course without objects. Now "abuse" and "insult" may be clear to some minds but the same language may not appear to others as anything other than a strong, powerful exercise of freedom of speech and comment. Magistrates have to decide where is the dividing line between what is abusive or insulting and what is acceptable as an exercise of the right of freedom of speech.
It has never been easy, even for High Court judges, to determine what is an insult and what is not. Although I need not remind the lawyers among your Lordships, I tell the laymen that a distinguished and witty 19th century judge, when he was faced with a complaint of a certain word being used by a sea captain—a word which most magistrates would think was insulting if applied to themselves or to anyone else—said "Ah, but remember sea captains and remember this one's record in particular. He has used the same word to describe the weather, his dog and the meal, and indeed he uses it as a term of endearment".
Any noble Lord who may guess what the word is—I shall certainly not allow it to pass my lips in this august Chamber—and anyone who like me and like the noble Lord, Lord Soper, has personal knowledge of the East End of London, will know that that word, insulting even in today's Chelsea—well, I rather doubt that; let us say, Kensington—would be regarded there as a perfectly normal use of the English language. I tell that little story merely to indicate that we are leaving all this to magistrates, because it is a summary offence. I go along very much with what has been said by the noble Lord, Lord Hutchinson of Lullington, as to the dangers in the vagueness of this offence.
I remain doubtful whether the offence is necessary. I follow the argument elegantly put by the noble Lord, Lord Glenarthur, but I was of the view—this was mentioned by the noble Lord, Lord Hutchinson—when writing the Brixton report that there was no need to add to the criminal offences protecting public order; that Section 5 of the Public Order Act, now this Bill's Clause 4, dealt with it and that nothing further was needed. That remains very much my opinion. But if we must have this offence, I implore your Lordships to look at it extremely carefully in Committee.
There is one other factor about Clause 5 which troubles me. It is the power in certain circumstances, which are defined, of a police constable to arrest 540 without warrant. Let us bear in mind that the maximum penalty for a Clause 5 offence is a fine. When I find in the law a criminal offence created which does not carry with it the possibility of imprisonment as a penalty, I view with the utmost suspicion a power, if the statute should give it, to a constable to arrest for that offence without warrant.
We all know that the police at the moment are finding it convenient when faced with disorder to arrest and then thereafter to bring no charges. I am bound to ask whether the enthusiasm for this clause exhibited in some areas is an enthusiasm for that practice, which means, as the noble Lord, Lord Soper, pointed out in another context, that we are leaving that area of the law to be administered by the police, without the likelihood of review in a magistrate's court and subject only to the dim possibility of the thing getting within the scope of judicial review in the High Court.
I come now to Part II of the Bill, that part dealing with public processions and assemblies. Here I applaud the clause requiring advance notice of public processions. I thought that the situation was wrong when I investigated the Red Lion Square disorders. I had come to the conclusion that such a provision was needed when I investigated and reported on the Brixton disorders. I do not see advance notice, particularly as formulated in Clause 11 of the Bill, I think it is, as being any threat to a spontaneous and immediate demonstration, which is a right which we must continue. If there is any threat, contrary to my provisional view, let us eliminate it in Committee, but do not let us do away with advance notice.
My experience in the Red Lion Square inquiry and in the Brixton inquiry was that everybody, both those who organised processions and the police who had to control them, like advance notice being given; people like the opportunity to confer with the police. There is not the slightest reason why that should not now be put into statute as a statutory requirement, always assuming, as I think the Bill does, that the spontaneous, immediate demonstration in reaction to something that has happend—and of course the demonstration has to be immediate to be effective—is protected.
My misgivings about police control of public processions and assemblies is the introduction of this new criterion for the exercise of the power to give directions—the criterion of serious disruption in the life of the community. Who is to judge what is the life of the community? Who is to judge what is a serious disruption of it? Are the police to tell us what is the life of the community? Is a local authority to tell us that, or is the Secretary of State to tell us? I fear that many, particularly those who are as well dressed as the noble Lords and noble Baronesses of this House, will say that the life of the community is the ability to walk down the street unmolested, go quietly into the supermarket, watch your husband or your wife buy what you then have to pay for, and then come out and go home. That is part of the life of the community but it is not all of it.
I find that that criterion could lead the police away from the likelihood of disorder and of violence being caused or provoked into a realm where they would be 541 handling values which they are no better able to assess than any other one of us in our individual capacities and which are not values which ought to determine whether restrictions should be put on the right of free speech, of demonstration and of assembly. Let us bear in mind that in our world today, with its alternative democracy, the right of public demonstration, protest and assembly are all part of the life of the community.
There is one matter on which I think that the Bill could be strengthened. It is Clause 13; it is the power to ban processions. There is no power to ban a single procession. There was not in the Public Order Act 1936. There is no such power proposed in this Bill. In the Brixton report I said that I thought there should be such a power so long as it was exercised only if the Secretary of State were satisfied that there was a risk of incitment to racial hatred.
I can see no reason whatever why, given that criterion, there should not be a power to ban a single procession without having to ban either all processions in a district for a certain period or a class of procession. I think that I know enough about the ethnic minority communities in some parts of our country to be able to tell your Lordships that no single amendment to the Bill would bring greater comfort to them than if Clause 13 were amended so as to empower the Secretary of State to authorise a ban on a single procession.
I have talked for far too long. I apologise. My conclusion is that the Bill is a Bill of immense importance. It touches upon rights and liberties of immense importance. It suffers in certain respects from a lack of balance, which can be corrected in Committee, but it suffers from a more fundamental lack of balance which can only be corrected if Parliament has the courage at last to enact a human rights and fundamental freedoms Bill or a Bill of rights.
§ 1.52 p.m.
§ Lord Boyd-Carpenter
My Lords, like the noble and learned Lord, Lord Scarman, I have great pleasure in beginning by congratulating my two noble friends, Lord Beaverbrook and Lord Brocket, on their immensely impressive and effective maiden speeches. I hope that I may be allowed, as one who was a great admirer of Lord Beaverbrook's distinguished grand-father and who had much kindness from him, and who was a colleague in another place with my noble friend's father, to say how pleased I know that those two great men would be if, in the workings of Providence, they could know that their son and grandson was making such an effective entry into the debates of this House.
As the noble and learned Lord, Lord Scarman, has so rightly said, this is a Bill of major importance. After all, it concerns itself with what is the basic, fundamental duty of government—with the question for which governments were evolved in the first place—the securing to the individual of freedom and of safety for his person and his property. That, if one goes back to the dawn of history, is the purpose for which governments were created.
As the noble and learned Lord, Lord Elwyn-Jones reminded us, it is 50 years since Parliament legislated on this subject. It is only too painfully obvious that 542 those 50 years have seen the development of a situation which makes further legislation necessary. I should go so far as to say that if the government of the day were not introducing legislation of this kind—I shall not go into the detail of it—they would be failing in their duty. It is the duty of government, faced with the situations with which we are now faced, to seek to bring up to date our legislation on these matters so as to give society in general and our hard-pressed police in particular better means of coping with the dangerous and difficult situations with which they have to cope.
One need only remind your Lordships of the reference made by the noble and learned Lord, Lord Elwyn-Jones, to the fact that five out of seven burglaries do not end up by being successfully investigated and the perpetrators brought to book. We know also of the violence which has erupted in various directions, to which the noble and learned Lord, Lord Scarman, referred—the violence and harassment which lasted throughout the year or so of the miners' strike and the violence which is going on now in other parts of our society.
Unless the Government were to make an attempt to improve the legislative means of dealing with those matters they would be in default. That is not to say that any of us necessarily agrees with any particular aspect of the Bill. In what I hope will be a brief speech, I shall have occasion to press one matter on which it seems to me that improvement could be found. I was impressed by what the noble and learned Lord, Lord Scarman, said about Clause 13 in his antepenultimate paragraph. An amendment along the lines that he suggested should be seriously considered. I was, on the other hand—and I hope the noble and learned Lord will not mind my saying this—a little disturbed by his reiterated reference to the need to provide for an alternative democracy.
As I understood the noble and learned Lord, that meant that there must be full facility for demonstrations to enable an alternative to our system of representative democracy to be effective. I find such a concept coming from so distinguished a source a trifle alarming. I feel that it is essential in this country fully to maintain and support the view that the proper method of securing change in what one wishes done in public affairs is through our representative democracy.
I had the advantage, which the noble and learned Lord has not had, of being in another place for a number of years and therefore of having contact with a parliamentary constituency. Those of your Lordships who have had that experience well know that any point of view, however extreme, eccentric or odd, can be and is frequently put to each Member of another place in his constituency. It is now the practice of Members of all parties in another place to hold regular surgeries—I think that is the technical term—at which their constituents can see them. The amount of mail pouring in to the other end of this Palace gives full vehicle for the expression of views.
I hope that nothing coming from this House, particularly from so eminent a source, will give any encouragement to the idea that one should be prepared to by-pass our ordinary, well-tried system of representative democracy. The right and effective way 543 for people who have strong views on any public topic to express them is to and through their Member of another place. If they happen to know Members of this House, so much the better. I have no doubt that many of your Lordships have found, particularly since the advent of television, that a surprisingly large number of members of the public—I see that the noble Lord, Lord Mishcon, agrees with me—exercise that perfectly proper right to communicate with us and to express their views on public issues.
My purpose is to ask one or two questions of my noble friend as to the effect of the Bill. First, is it going to deal with what one might call the Wapping situation? I would here declare an interest as I have a daughter who works for The Times. Week after week, month after month, those who have worked in that part of the world, and indeed those who live in that part of the world, have been subjected to organised disorder. Night after night, noisy crowds have assembled. It has been necessary for a large police presence to be there. The theory is that these are peaceful pickets peacefully objecting to what Mr. Murdoch has done in respect of their previous employment.
However, those who organise these gatherings now know perfectly well that they are going to cause disorder and that they are going to attract many people who, I understand, have nothing to do with the printing or newspaper industry but who see the opportunity to take part in a riot. I should like to know whether those who deliberately organise these gatherings, knowing this as they do, cannot be brought, if this Bill becomes an Act, within the ambit of the criminal law. If it does not do that, the Bill will be failing in what should be a substantial purpose.
Similarly, does it cope with cases—Greenham Common is an example—in which perfectly proper peaceful demonstrations are organised regularly outside military establishments and then those responsible organise break-ins to those establishments and damage the wire in an attempt to get close to important military equipment? It seems to me that if the Bill does not cope with that situation and those who organise and perpetrate that kind of violent action, then, again, it requires some further consideration.
I pick up the very important point made by my noble friend Lord Brocket in his maiden speech. That is, basically, the adequacy or otherwise of the proposals in the Bill to deal with the hippy convoy situation. My noble friend the Minister will have seen in The Times a few days ago an interesting letter from the president of the Country Landowners' Association in which he points out that according to his understanding of the Bill—it was also, I think, my noble friend Lord Brocket's understanding—those who, in an organised body, proceed to occupy someone else's land, do not for that reason commit any criminal offence and that the only remedies are in the civil law. I understand that in another place an attempt was made to clarify this position but that it was not wholly successful. I should be grateful if my noble friend would say a word or two about this. It is certainly a matter that seems to have attracted some attention.
544 I have a letter from the National Council for Civil Liberties, not very usual correspondents of mine. I am bound to say that a letter from that source I read with peculiar interest. Here the argument is made that it is quite right that only civil remedies should be available. The writer of the letter, apparently based on the fact that the National Council for Civil Liberties got hold of a speakers' list for today's debate—this is stated in the letter and it would be interesting to know how such information was obtained—says:The clause as amended will give the landowner the power to go to a police officer and say, 'Look, there are people on my land and they are causing serious disruption to me'. The officer will be able to order the people to leave and if they fail to do so, arrest them".The writer of the letter suggests that this should simply continue to be a civil matter and that all that the aggrieved person has to do is to go to the county court and get an order for possession or go to the High Court for possession under the Rules of the Supreme Court Order 113. How is a small farmer in the depths of the country at the week-end to regard that as an immediate and practical step? In this case, Mr. Attwell, apart from being a sick man, was taken completely by surprise—I think at the weekend—when these people came and occupied his land. It is all very well for organisations backed by plenty of lawyers and plenty of money, with access to solicitors and so on, to be told that it is perfectly easy to go to the High Court and get an injunction. But, in the practical world in the country, this is really not the case. The result, as my noble friend Lord Brocket said, is that the police have to stand by unless actual criminal damage is done. And yet the police could, if the law was so amended as to make this a crime, simply remove the trespassers quickly and with the minimum of damage done.
We are warned from various sources today that taking this measure through the House will be a considerable effort. It was certainly a massive one in the other place. If the Government are to go through that effort of legislating to improve our law in these matters to deal with contemporary problems, it would seem that we are missing a considerable opportunity if we do not take steps to prevent a repetition of this hippy convoy business by bringing it within the ambit of the criminal law. I hope that my noble friend will indicate in his reply whether or not the Government are beginning to look favourably at this approach.
The problem with which this Bill seeks to deal is as the noble and learned Lord, Lord Elwyn-Jones, rightly said a matter of balance. You have in each generation to seek to balance the civil and political rights of the individual against the wellbeing of other individuals and the stability and safety of society. If one is a realist about it, the point of balance will vary from time to time and in accordance with circumstances. I hope I do not offend any of your Lordships when I say that the contemporary situation, with its widespread crime and its widespread violence, indicates that the balance requires to be shifted in favour of the forces of law and order, at any rate for the time being. It is surely the experience of human organisation through the centuries that the need for strong, perhaps all but oppressive laws, is created when violence is used against society, and equally those laws can be relaxed when there exists a law abiding, civilised and orderly society.
545 We are, alas, as noble Lords recognise only too well, in a situation in which our police are under very great pressure indeed. I take the opportunity of expressing my immense admiration for the courage and sense of duty with which they are working throughout the country. There is so much crime and violence that this is an occasion when it is necessary to shift the balance further in favour of the forces of law and order and therefore to some extent against the liberties of the individual citizen.
How far exactly we do it, how technically we do it, is a matter of judgment which no doubt will emerge in Committee; but I approach this Bill with that view and based on the old saying:Kings will be tyrants from policy, when subjects are rebels from principle".
§ 2.11 p.m.
§ Baroness Phillips
My Lords, I should like to add my congratulations to our two maiden speakers. I am very sorry that the noble Lord, Lord Brocket, is not in his place because when I listened to his speech I felt that I need not have remained to make mine. The noble Lord, Lord Boyd-Carpenter, has also picked up this point.
The Minister will be relieved to know that I intend to concentrate on one point only—the question of trespass. I have said many times before that the law of trespass is totally inadequate to deal with various situations. Trespass must be made a criminal offence. I would say to the noble and learned Lord, Lord Scarman, that on this occasion he need not worry about the Government hastening slowly—they could not have been slower. There was a consultation paper in 1983, Trespass in Residential Premises. The noble Earl, Lord Onslow, introduced a Bill in 1983 and again in 1984 to which the Government appeared to have given their blessing, so I cannot understand why they have not grasped the nettle and included such a provision in this Bill. There is never much danger of bringing in laws too fast—that is not my experience after 22 years in the House. I can think of a number of matters that have been raised over a period of 10 years. Eventually it penetrates governments that something has to be done about it.
I should like to put forward a slightly different aspect of this problem. We have heard about the rural situation. I know that to be true because I was in Devon two weeks ago and heard many cases of this kind. I endorse what was said by the noble Lord who has just spoken, that it always seems so easy to solve somebody else's problems. But the people who are so benign and radical have only to have someone come into their garden and they take a totally different approach.
In 1984 I cited another aspect of this problem, and this has actually become worse. This is an example of an urban centre suffering trespassers. I could give the House a large number of examples but I shall not do so. I shall give one or two classic ones. I am sorry that the noble Lord, Lord Hutchinson, is not in his place because this would perhaps give some fuel to his fire. This document comes from a large shopping centre in the Midlands. It says:Following our efforts to make the centre more conducive to family shopping"—546 not unreasonable the noble and learned Lord may think—recently two youths aged 19 and 17 years were running about the upper part of the centre kicking cans, shouting, knocking into people and using abusive language".We all know what abusive language is, from whatever class of society we come.When they finally knocked into two elderly ladies"—and this is the classic example given by the noble Lord, Lord Hutchinson, of how unimportant this would be—they were taken up. So many complaints were received from other members of the public that they were finally charged".At the magistrates' court they were found not guilty of threatening behaviour, which was the only charge which could be brought against them, the magistrates saying that swearing and threatening was unpleasant, but was not in fact threatening behaviour as they understood it. This seemed to be a total nonsense because the two youths promptly went straight back and continued behaving as they had before. That is a clear case where the law of trespass could have been used.
I give another example; I am only picking out the classic examples. This took place in the North of England in a large shop. The letter states:We are presently faced with a a group of youths, around 20 in number, who frequent our restaurant.Apparently they never purchase any refreshments but they have annoyed a number of customers. They have been asked to leave but refuse to do so. They abuse and insult the staff and they remain in the restaurant for up to three hours a day, constantly irritating and harassing customers, who are ceasing to come to the restaurant. That is the point. Why should people have to submit to harassment? I would take issue with the noble and learned Lord when he said that it is not enough just to be able to go the supermarket and to purchase one's goods. I would say that every citizen should be entitled to go about his or her business or pleasure without harassment or threats from anyone.
The document continues:We have informed the police of these youths but have been told that unless they are committing an arrestable offence, they are unable to take action. As the youths are also on private property the police are unable to intervene",so they must continue to suffer it.
As one manager said to me the other day, there seems to be a tendency in society to focus on television screen football violence—this is highly political from a government point of view—and to ignore a growing conviction that the city centres where people would like to go are rapidly becoming places where one goes only if one has to because of the threat that is both implied and often explicit.
It has often been said that it is difficult to frame a law of trespass without embroiling innocent parties. As the noble Lord, Lord Boyd-Carpenter, mentioned, I too received a copy of this communication saying that I was a speaker and I too am mystified to know how they knew that I was a speaker as I only knew this morning who was actually speaking, apart from myself. Therefore, they obviously have a very good mole in one of the offices here.
In the document they make the point about bird watchers and picnickers. We all know about the 547 innocent walker. I would be the last to want to prevent anyone walking across a farmer's land. However, the Canadians seem to have been able to grasp this nettle. They have an offence of trespass on property, which is designed to deter individuals from engaging in prohibited activities, even when they enter lawfully. In other words, they erect notices saying that a person may hike but may not hunt. Therefore, if you enter with the apparent intention of hiking and then you commence to hunt, you have committed an offence.
It is not impossible to frame some kind of law or table an amendment to one of these clauses which would make that possible. So far as I can see, neither Clause 4 nor Clause 5 meet the points raised by the retailers. Civil law is slow, costly and absolutely unworkable for the average citizen. No one could seriously suggest that that is the way to deal with this.
That is the only point I want to raise. It is one which I have raised before on many occasions. It is one which I shall raise again. I hope that during the course of the Bill the Government will see whether there is some way in which they can make it possible for people to go about their business without harassment. I find it strange that the legal people in our society cannot determine what are harassment and threats. As a lay magistrate I never found any difficulty, but then I live in the real world and perhaps this does make some difference. I wish this Bill a speedy passage and I hope that during its course we can make some useful amendments to it.
§ 2.19 p.m.
My Lords, I rise in the knowledge that no part of this Bill is applicable to Northern Ireland. However, I make so bold as to speak in the hope that the provisions of what in many ways is an excellent piece of legislation will be applied to the law of Northern Ireland in the not too distant future.
I look first to Part II. I would not only accept but I would defend, and strongly defend, the right of anyone to protest. I would defend the right of anyone to withdraw his labour. I would defend the right of anyone to close his business if he wanted to do so as a form of protest. But equally strongly I would defend the right of anyone who does not want to participate in that particular protest to go about his normal business. I think of the so-called day of action in Northern Ireland on 3rd March. The noble and learned Lord, Lord Scarman, who unfortunately is not in his place, questioned what serious disruption in the life of the community means. I fully respect a question of that kind from such a learned and experienced source. There was no doubt whatever in Northern Ireland on 3rd March what serious disruption meant.
In Clause 12, in Part II, the word "intimidation" is mentioned. There was no doubt at all about intimidation in Northern Ireland on that day. I knew people who wanted to go to work, and set out in good faith to go to work having been assured that there was going to be nothing but a peaceful protest and orderly picketing. That was not the way it worked. Trees were felled across the roads so that traffic physically could not get through. In other places road blocks were set up by gangs of louts who intimidated people and told 548 them that they would subsequently suffer if they defied the orders of those who told them to turn back.
Indeed, one politician was so incautious as to quote the citation that is used on Remembrance Day. He said:At the going down of the sun and in the morning, we will remember them".That was the kind of intimidation to which people were subjected on that occasion. The natural reaction of the ordinary small farmer or shopkeeper is to keep his head down. He does not want to make himself conspicuous because he does not want his place of business burnt or vandalised, or destroyed. He does not want to have a brick through his front window.
The provisions of this Bill are admirable, they are all very well, but if they cannot be enforced they are only going to fall into derision; and I sincerely hope that in the maintenance of public order on a future occasion—which I hope will not happen—intimidation and disruption of public life will not be allowed to occur again.
Turning to Part III, which deals with racial hatred, on 15th January last I ventured to propose a rather laboriously titled Bill, the Public Order (Northern Ireland) Order 1981 (Incitement to Hatred) (Amendment) Bill, and on that date your Lordships were good enough to give it a Second Reading. I agreed on that occasion not to press for a Committee stage if in fact legislation in Northern Ireland would be brought up to date on the lines of this present Public Order Bill, which at that time had just received a Second Reading in another place.
I adhere to that view, and I should be grateful to have an assurance from the noble Lord that in the light of the Public Order Bill legislation in Northern Ireland will be brought up to date, because, as I explained on 15th January, there are many ways in which it could be improved; and when this Bill has gone through all its stages I hope that the law in Northern Ireland will be revised accordingly.
To refresh the memories of your Lordships, the purpose of my Bill on that occasion was that the necessity to prove intent to incite hatred should be removed. Therefore I welcome Clause 19, in Part III of this Bill, because the word "likely" is employed, and that is the important word. What in fact I said in my Bill was that an offence will be caused by,
A person who… publishes or distributes written or other matter which is threatening, abusive or insulting; or… uses in any public place or at any public meeting words which are threatening, abusive or insulting, being matter or words likely, having regard to all the circumstances, to stir up hatred, violence, contempt or hostility against or arouse fear of any section of the public in Northern Ireland on grounds of religious belief, colour, race or ethnic origins".If I may be presumptuous enough to ask the noble Lord the Minister to give an assurance that the law will be looked at in Northern Ireland along the lines of the Bill which was read a second time, taking into account some of the very worthwhile provisions in the present Bill before your Lordships' House, I should be very happy to withdraw. If not, I think that I shall have to ask for a Committee stage.
I should add, in conclusion, that perhaps rationalisation of the law, so far as incitement to hatred is concerned, is perhaps even more important now that the Northern Ireland Assembly, in my view 549 quite rightly, has been dissolved, because the self-fulfilling prophecy is the threat with which we are always faced. I am sure your Lordships may have read some of the statements that have been made. Now that the Government have scrapped the Assembly we shall not be able to stop our people taking politics on to the streets, and that can be a self-fulfilling prophecy whatever way it is worded.
Therefore I hope the noble Lord will give consideration to what I have said, and I look forward to hearing his reaction when he winds up.
§ 2.27 p.m.
§ Lord Peyton of Yeovil
My Lords, in echoing the congratulations which have already been proffered to my noble friends, Lord Beaverbrook and Lord Brocket, I should not wish to be limited in any way by the conventional requirements of courtesy. I should like to say to both of them how much, like others in your Lordships' House, I enjoyed those two speeches and how much I hope we shall hear from them both again frequently. My noble friend Lord Beaverbrook outlined his requirements for an Act of Parliament: that it should be viable, enforceable and intelligible. Indeed, he has set himself a very high target. I shall immensely enjoy his efforts to clean up the statute book, though I hope he has realised what an arduous task he will be undertaking in making that messy volume intelligible.
I have long had only a qualified admiration for our legislative procedures. They seem to me to have three unfortunate effects in that they highlight the differences which exist between us; they diminish and erode any sense of common purpose; and, too often, the end product is both complex and uncertain. I should like to state at this point that, even though I have misgivings about our procedures, I have even greater misgivings about the call made just now by the noble and learned Lord, Lord Scarman, for an alternative democracy. Frail though our system may be, I believe that the search for an alternative democracy could well open up opportunities for people with whom I think the noble and learned Lord would not wish to be particularly associated.
This Bill at least attempts to sort out the law and to update it but I think that to an extent it reflects an ambivalence of attitude which is often to be found in our country today. In the first place, while it is generally accepted that people have a right to be protected against injury to themselves and damage to their property, nevertheless our enforcement of those rights is often both sluggish and uncertain.
I should like to make here the point to which my noble friend Lord Boyd-Carpenter referred. I should like to take the opportunity at this time, when the police are so often subjected to a stream of accusation, misrepresentation and abuse, to say that they still stand comparison with any other force anywhere in the world; and, secondly, to say that no other force comes under more strict scrutiny, some of it of a very irresponsible kind. It is also generally accepted that the police have a duty to uphold the law. It is accepted, too, that for that purpose they need appropriate powers and that in the exercise of those powers they should be subject to certain clear rules.
550 As the noble and learned Lord, Lord Elwyn-Jones, said from the Front Bench opposite, we need to strike a balance and it is vital that we should do so—a balance between a sensible restraint on the exercise of police powers and a degree of hobbling the police as to render them wholly ineffective. Mr. Atwell has already been referred to. I make no apologies for bringing up his name again. He was at one time both a constituent and a very near neighbour of mine. I knew him well. I do not think that it would be possible for any reasonable person to withhold sympathy from Mr. Atwell and, particularly, we should draw attention to the fact, as did my noble friend Lord Boyd-Carpenter, that Mr. Atwell's remedies were slow in coming and expensive when they did.
In my view, it would be quite unfair to blame the police for their handling of that situation, for they faced the problems of lack of power and uncertainty as to where their duty lay. This Bill in some parts appears to throw the net unduly wide; in others it seems to be in danger of defeating its own purposes. Clauses 4 and 6 relate to intent. I cannot think that it is very easy in circumstances of violent disorder to prove intent unless the mere presence on the scene of such a disorder is to be taken as evidence of intent. The Bill does not state that, but I imagine that the general view would be that such a presumption of intent would be highly undesirable.
It was said in another place that London had become the demonstration capital of the world. It is perfectly right and proper that in these dignified and calm surroundings we should stress the importance of retaining the rights long enjoyed by the public to make manifest their anxieties and, on occasion, their indignation—provided of course that they do so peacefully. But I wonder whether some of the comments we have heard today in your Lordships' House do not go a little too far—so far indeed as to suggest that the right to demonstrate, to protest and to march is somehow more important than the right of ordinary citizens not to be alarmed or frustrated in making use of the highway which plays an important part in their everyday lives.
I should like to conclude my remarks by echoing what has already been said, that the police have been recently under very heavy pressure indeed. Violence has become a more frequent occurrence in public places. It is in those circumstances particularly important that the police should be given a reasonable opportuntity to perform their duty in an effective manner.
§ 2.37 p.m.
§ Lord Graham of Edmonton
My Lords, like every other preceding speaker, I rise to begin what I have to say by offering my sincere congratulations to the two noble Lords who have given us their maiden speeches today. I think I can best describe them by saying that it has been an enjoyable experience. All of us who have gone through this process will understand the tensions and the preparation involved but if at the end of the day, or on any other occasion, colleagues come up to one and say, "I enjoyed what you had to say", I believe that is an accolade. I enjoyed what I heard from our two maiden speakers today and I look forward to hearing from them again.
551 I want to begin by echoing the words of my noble and learned friend Lord Elwyn-Jones. I would also repeat the comment, made more than once, that while the thrust of the Bill is to be welcomed, the Bill itself is like the curate's egg: good in parts. The noble and learned Lord, Lord Elwyn-Jones, promised the House that at the Committee stage we would tease out of the Bill a number of areas in which he and, I am certain, others of your Lordships can see the Bill can be improved. I am certainly looking forward to that process. I believe that one of the most effective contributions we have heard today came from the noble Lord, Lord Soper. I was particularly struck by what he called a plea for the fellowship of controversy within a framework of non-violence. If we can keep that not only as the main purpose of the Bill but also as the main purpose of those who criticise it, I believe we shall have a very productive Committee stage indeed.
The Minister who introduced the Bill claimed that it is an answer to public disorder. However, in my view there is a grave risk that it will penalise the work of peaceful voluntary organisations and make little distinction between the reprehensible conduct of persons bent on causing violence and ordinary citizens concerned over the direction of certain policies of the Government, who wish to display that concern in public and to oppose those policies.
I also want to enter into this debate the severe caveats of the trade union movement. I have been a trade unionist all my life, and continue to be a proud and happy member of my own trade union. The TUC have drawn my attention to what they term their "serious concern" about the Bill. In the view of the TUC, the Bill as it stands will adversely affect civil liberties. All the Bill's provisions appear to be restrictive of civil liberties and none protects or extends civil liberties. In other words, the Bill is unbalanced, and "unbalanced" is a word that has been used more than once during the debate.
Although the Government's decision to send a circular to chief constables on civil liberties is welcome, this obviously cannot compensate for the restrictions imposed by the Bill. The TUC say, in particular, that the Bill's provisions taken together will place stiff restrictions on the right of assembly, which is a basic human right enshrined in a number of international conventions. As has been said by more than one noble Lord, although the right to assemble is not written in British statute law, it is still widely understood and accepted as part of a free society. I believe that we shall come back increasingly to the points that I shall be very happy to make at the Committee stage on behalf of the trade union movement.
Like a number of other speakers, I have received a brief from the National Council for Civil Liberties, and although we still have the Committee stage ahead of us I wonder whether the Minister can deal even now—or, if not now, certainly at the Committee stage—with one or two of the points that they make in their brief. For example, the organisers of a picket outside a department store selling South African goods could find that conditions were imposed, because the 552 police believed that the demonstration would disrupt persons going to and from the store and to the surrounding shops, or it would intimidate customers or mean that there was a risk of property being damaged by slogans sprayed on walls. The police decision could result in the rally being limited to six people, being moved to the outskirts of a city and being limited to 30 minutes. Could the Minister or his advisers tell us whether that is a proper interpretation of a situation of that kind?
The NCCL also told me that in June 1984 the Friends of the Earth, in Halvergate Marshes, Norfolk, sat down in front of bulldozers to preserve rare plants and flowers in a field. Much publicity was given to that and the policy was subsequently changed. We in this House have been kept well abreast of this change and helped to bring it about. If the Public Order Bill had been law at the time, the demonstrators could have been moved from the area and the purpose of their demonstration to save rare wild plants would have been defeated. That is another illustration of the concern that the Bill could result in situations of that kind.
A group of tenants in residents' associations may have known for a month that the local authority were about to take a decision to widen a road between their estates, which they believed would make the area less safe for children to play nearby, but they may have reached agreement with all the bodies involved to have a demonstration only six days before the event. If the police decided that the advance notice was not as soon as was reasonably practicable, then the threat of prosecution and a fine of £400 may well inhibit parents who would otherwise organise such a peaceful demonstration. If those are some of the consequences of the new law, then I believe that they are very bad indeed.
The National Association of Probation Officers have also sent me their views on these matters. What particularly concerns that association is the proposal to retain the power to sentence a person to life imprisonment for the offence of riot. In introducing the Bill earlier today, the Minister pointed out the particular dilemma that exists there, but the National Association of Probation Officers believes that such a sentence should be retained exclusively for extremely serious offences such as murder. Although the Minister has told the House that, subject to the appeal against the life sentence imposed in 1985, for public order offences arising from a football match the Government would be well advised to consider leaving the situation as it is.
I recognise that the apparent increase in disorderly behaviour causes all responsible people concern, and that the fear of perceived harassment, alarm or distress is a matter that needs proper attention. However, the offences described in Clause 5 extend the power of the police and would place many young people prone to boisterous and extrovert behaviour at risk of arrest.
My good friend Alan Mattingley, who is the secretary of the Ramblers Association, draws to my attention another aspect of the very sad and disgraceful impact that fell upon Mr. Atwell on his farm in the past two weeks. Certainly the Ramblers Association shares my concern that something should be done about it. What needs to be done is the issue. 553 The association is very concerned at the possibility that there could be hasty action, with unforeseen consequences for the millions of innocent people who regularly enjoy a walk in the countryside, if there is to be a change in the law of trespass.
From time to time ramblers do trespass, either because their path is not clearly marked or, not infrequently, because the farmer has shown scant respect for the public's right and has blocked the path with barbed wire or with crops. If the public were then to be threatened with prosecution for finding a way around such obstructions, the resulting bad feeling would cause lasting damage to relations in the countryside, and a serious injustice would have been done.
I understand that the Home Secretary, Mr. Douglas Hurd, has recently said:We are fully seized of the arguments against making simple trespass a criminal offence and have no intention of going down that road. We certainly do not wish to make life difficult for ramblers, bird watchers and other genuine lovers of the countryside".I simply say to the Minister that I will watch with care and with sympathy for the drafting of any changes which may take account of the position but which should also protect the point that I have made.
In conclusion, I believe that the police have more than enough powers, especially now that the police and criminal evidence legislation has been implemented. The Bill demonstrates an unhealthy bias against the legitimate expression of protest by the public, who will have the greatest difficulty in challenging police decisions. It represents a real threat to the expression of dissent through traditional channels. It is evident that the Government contemplate the solution to social problems in the rather limited terms of law and order. In my view, it would be unacceptable to allow the Government's ideology, coupled with public anxiety about recent events, to act as a catalyst for the creation of offences that are altogether more serious than is really necessary to meet the exigencies with which they are designed to deal.
§ 2.49 p.m.
§ Lord Hooson
My Lords, I have cast aside the speech that I intended to make because it is late on Friday afternoon. I do not know what it is that invites us all to make longer speeches on Fridays than we otherwise might.
§ Lord Hooson
Perhaps not all, my Lords. Instead, I shall make a few general observations on the background to the Bill. I may first say that I very much agree with the speech made by my noble friend Lord Hutchinson of Lullington. I will add just one point that I know he would have added. We entirely agree with the noble and learned Lord, Lord Scarman, that the greatest single improvement to the Bill would be an amendment to Clause 13 to allow the Secretary of State to ban certain marches and protestations. I say the Secretary of State because that would, under the normal procedures of the Commons, allow emergency debates, if approved of by the Speaker, to be raised to challenge that decision. That seems to be an extremely effective way of handling the matter.
554 If I may borrow a phrase, one of the dilemmas of democracy is that we have to tolerate a great deal of what we do not like in order to preserve what we do like. Nothing so illustrates that problem than dealing with the question of public order. We all agree that one of the chief functions of the state is to maintain public order and to make people law-abiding, and so on. Nevertheless, there is a great danger that in this sphere, as in this Bill, we legislate in a way that will create more difficulties than are solved. In this sphere it is important that the less legislation we have the better, and the fewer laws we have the better. Those laws that we do have should be precise and easily interpreted. The worst element in this kind of law is the large element of discretion and imprecision which so abounds in this Bill. One will have a totally different law in Devon, Cornwall or Montgomeryshire from that in the East End of London.
I have in mind the altercation (if that is the description I should give to it) that occurred between the noble and learned Lord, Lord Scarman and the noble Lord, Lord Boyd-Carpenter, on the alternative democracy. I should like to give an illustration of what actually happens. Unlike the noble Lord, Lord Soper, I have never been a demonstrator or a marcher, save when it was compulsory upon me; and I have never thought of it in my particular part of the country as an effective form of political expression.
Nevertheless, when I was a Member in the other place, as was the noble Lord, Lord Boyd-Carpenter, I represented an agricultural constituency where my constituents were, by and large, law abiding people who thoroughly disapproved of marching, demonstrations and violence. There then came an economic crisis in the agricultural community. Many of your Lordships will remember it. It was at the time when we had a Labour Government. There were demonstrations all over the country.
In my area I saw normal, law-abiding citizens—some of then even JPs—resorting to demonstrations and putting tractors on railway crossings to prevent the trains coming from Ireland which carried beef cattle, and so on. There was very little protest from Members on the opposite Benches. My constituents were entering into a form of alternative democracy which quite shocked me at the time although I had great sympathy with their plight. We tend sometimes to judge these questions of demonstration according to our own political viewpoint. We should bear that in the back of our minds when dealing with this very important Public Order Bill.
I give another illustration that we should bear in mind. I remember in my earlier days in the other place a very senior police officer—senior, that is, in age and experience; he was a constable—told me a story of how he had been taken to help control a demonstration. The police, anxious to avoid violence, had linked arms to prevent pressure being imposed upon them from the outside. Suddenly he felt an incredible pain in the back of his leg. Someone had pushed into the back of his knee the pointed end of a pair of compasses—the type used by children in schools. He immediately whipped round and struck with his truncheon the man who was pressing against him. The man promptly punched him and there was a general fracas in which other police officers were involved.
555 In the end they concluded that someone else had crawled along under the feet of the persons who were demonstrating and had succeeded in escalating the violence by provoking a violent reaction from the police officer and an equally violent reaction from the innocent victim. I ask your Lordships to bear in mind that it is not the organisers of these demonstrations who are by and large the people one has to fear. It is those who exploit the situation. That is very common.
I have often been puzzled as to why at rugby matches—I am a devotee of rugby, and in my experience there is great consumption of alcohol as well as a feeling of comradeship at these matches—one never encounters the kind of violence among the crowds that has so marred football matches. I believe that one of the reasons is that football matches and football crowds have been exploited. They have been targeted. One of the great dilemmas with which we are faced—and I make these remarks simply as a general observation on the background—is how on earth to preserve the right to demonstrate and march and yet prevent so far as is possible exploitation of demonstrators by minority groups who are targeted on them. I do not think that this Bill begins to deal with the real problem of what happens.
The noble Lord, Lord Boyd-Carpenter, mentioned Wapping. I think it is right to say that many people go there to demonstrate peacefully; equally, I have no doubt at all that others go there to exploit the demonstrators, and do exploit them. In those circumstances the question of where to draw the balance is a difficult one.
Criticism was made of the old Act because it was passed in the wake of the Black Shirt marches and the countermarches, and there was no great love of the Public Order Act 1936 by the Bar. It is right to say that it is a bad time to pass such legislation in the wake of the kind of disorder that we are seeing at the present time. One has every sympathy with the farmer and landowner in the South of England, who no doubt at enormous personal cost will have to deal with what was imposed upon him. I seek only to say that there are many general considerations which at the Committee stage of this Bill should point your Lordships in the direction of the need to have far greater preciseness and far less vagueness than exists in the Bill at the present time.
§ 2.58 p.m.
§ Lord Monson
My Lords, may I first of all join other noble Lords in warmly congratulating our two maiden speakers. The speeches were shrewd and pertinent as well as being beautifully delivered, and both speakers surmounted with ease the ominous hurdle of Friday the 13th, which I am sure I should never have been able to do in similar circumstances.
It seems to me to be generally expected by the press and others that one should make some comment on the so-called hippy convoy in so far as it relates to this Bill. I shall only say that the so-called hippies have been described by the Home Secretary as mediaeval brigands, which I have to say seems to invest them with a certain glamour that am not sure they deserve. They have subsequently been described by a chief of 556 police as rebels and anarchists. The latter may well be true, but that is not the point.
What should concern the law is whether those in a convoy are harming individuals by causing criminal damage to crops and fences, are allowing their dogs to worry sheep or are harming the community at large by depositing litter, fiddling their social security benefits or driving round in an unlicensed and uninsured vehicle. Whether their principles or mental attitudes are rebellious or anarchic is neither here nor there; nor is their dress, degree of cleanliness or hirsuteness. It is only their deeds, not their thoughts or their appearance, that should concern the law, civil or criminal.
As I have said on other occasions, far too many new offences for which people can be fined or imprisoned have been created since 3rd May 1979 and far too few have been repealed. The ratio is in the order of 300 to 1. For that reason I wonder whether we could not try enforcing the existing law fully first, together with greatly speeding up and reducing the costs of the civil procedure for regaining possession, before thinking of introducing yet another criminal offence.
But if in the end the existing law proves inadequate—and the noble Lords, Lord Brocket and Lord Boyd-Carpenter, gave us examples to suggest that it might be—I would favour the suggestion that it should be made a criminal offence for a trespasser to refuse to leave private property if requested to do so by the owner in the presence of a constable.
Now to the Bill before us. In general I understand and approve of the purpose of Part I of the Bill, but, like my noble and learned friend Lord Scarman, I am worried that the wording of Clauses 4 and 5 casts the net too wide, and for this reason. At least 95 per cent. of us can agree on the definition of the words "threatening" and "abusing" respectively but the word "insulting" is a very different matter. It is subjective in the extreme.
We live in a most curious age when, if there are not already chips on people's shoulders, there are always plenty of organisations anxious to rush in and place them there; so people can deem themselves insulted nowadays by the most extraordinary things—Miss World contests, advertisements in Underground stations, Irish jokes and photographs of Labour parliamentary candidates in the presence of their wives and children. The consequence is that anyone rash enough to wave page 3 of the Sun at a militant feminist might well find himself accused of an offence under Clause 5(1)(b), and if the feminist in question is really militant, under Clause 4(1)(b) as well.
Noble Lords may consider that to be a rather far-fetched example. Very well; let me give another one. A pedestrian crosses a street when the lights are in his favour. Halfway across he is almost knocked down by a motorist who has driven through a red light and then squeals to a halt. The pedestrian rushes up to the motorist and says, "You bloody fool! Why don't you learn how to drive? You almost killed me". The motorist, taking any reflection upon his driving ability as a slur upon his virility, as motorists tend to do, gets out of his car and aims a punch at the pedestrian. I do not know under what statute the motorist may be accused, but it seems rather unfair that the pedestrian 557 should find himself open to prosecution under the provisions of Clause 4. I seriously believe that some safeguard is needed such as the insertion of the word "seriously" before the word "insulting", both in those two clauses and throughout the Bill.
Turning to Part II of the Bill, which deals with processions and assemblies, I think that one ought to consider carefully some fundamental principles. We constantly hear the wholly unchallenged slogans: "The Englishman's basic right to protest" and "The Englishman's basic right to demonstrate". But what does that right mean? If it means free speech, one can agree totally, without hesitation. If it means dignified, peaceful, orderly, considerate and preferably static demonstrations, that is fine too. But if it means noisy and aggressive marches, 12 abreast, though the centre of our cities, paralysing traffic, causing thousands of engines to overheat, wasting thousands of gallons of petrol and polluting the atmosphere, and causing thousands of people to miss their trains, planes, business meetings and job interviews, I do not think that that is acceptable at all. The marchers, in demanding the right to use and to monopolise the Queen's highway, are depriving countless other citizens of their right to use that same highway.
It is a funny thing that in this country a large group or a mob nearly always finds it easier to get away with things than a small group or individual. A bearded, besandaled individual, walking down the middle of Piccadilly, carrying a placard announcing "God is love" or "Jesus saves", will almost certainly be arrested, hauled off and charged with obstruction. In contrast, a group of 2,000 people and bearded, besandaled or otherwise, marching down Piccadilly waving placards and chanting, "Disembowel Reagan", or "Hang Thatcher"—I have seen such placards—is at present normally given every consideration by the authorities. However, the ordinary citizen going about his or her lawful business has to play second fiddle to the demonstrators and risks missing business or holiday flights and being late for work, dentists' appointments, hospital visits and so on.
That is why I welcome so warmly the emphatic assertion by the Minister of State at the Home Office, Mr. Giles Shaw, on 30th April in another place (at col. 1073 of Hansard), which was echoed by the noble Lord, Lord Glenarthur, this afternoon, that the rights of demonstrators must always be balanced against the rights of others to live their lives peacefully, and that the Government rejected the notion that because a person formed part of an organised group that conferred special privileges upon him.
As a counterbalance to those restrictions on noisy and too often disorderly processions, I should like to see much greater official tolerance of dignified, peaceful forms of protest which do not cause obstruction in the popularly accepted sense and do not cause inconvenience to members of the public. Ideally, I should like to see every large town and city obliged to set aside a public open space where any individual or group could freely express opinions, however unusual or unpopular—the equivalent of Speakers' Corner at Marble Arch.
Pending that, one hopes for no repetition of the scene that I witnessed in Kensington High Street some 558 weeks ago, when on a wide and uncrowded stretch of pavement, a small group of extremely quiet and polite young Iranians—members of some Socialist group, I think—was handing our leaflets protesting about the torture and oppression in Khomeini's Iran. No one was offended, unless there happened to be some supporters of the Ayatollah passing by, which I do not thing there were, and yet those students were smartly moved on by the police. That seems wrong. It would be reassuring to have confirmed that such a quite and dignified method of disseminating information is legal and should not be interfered with.
Lastly, I should like to mention Part III of the Bill. In his opening speech, the noble Lord, Lord Glenarthur, seemed to be expressing the hope that it would go through on the nod. The difficulty is that everyone is desperately anxious to be seen to be on the side of the angels with regard to this Part of the Bill. I hope that I am not too far removed from that heavenly host, but although I naturally fully endorse the overall intention of this Part of the Bill, I am worried that as drafted certain clauses could in future be misused to gag legitimate expressions of opinion.
It is not the deliberate stirring up of racial hatred that causes problems. We can be unanimous in opposing that, but racial hatred might be provoked incidentally in the course of making some other point. I shall give two examples. The Sikhs, whom the noble and learned Lords in their wisdom deemed to be a separate racial group, decide to hold a march through a Hindu district on the anniversary of the assassination of Mrs. Gandhi, chanting slogans in favour of an independent Sikh State. Their behaviour is undoubtedly insulting and provocative, but it is not intended to stir up racial hatred, although it may well do so.
My second example is that of a newspaper which on the 30th anniversary of legislation restricting mass immigration into this country, decides to publish a powerful article attacking those who, by doing everything in their power to frustrate such legislation, allowed hundreds of thousands of people to slip into this country under the barrier, as it were. It accuses those politicians, churchmen and academics of the 1960s of being criminally shortsighted and self-indulgent with an arrogant disregard for the sentiments of the mass of the British people. Those words are undoubtedly abusive but they are not abusive of a different racial group but of people in the same racial group as the author. Such an article could fall foul of Clause 17 on the argument that bringing the whole immigration controversy into the open once again is likely to reawaken latent racial antagonisms.
Some noble Lords may argue that the fact that the Attorney-General's consent is required before prosecutions can be brought is a safeguard against the misuse of those powers. I do not doubt that this is so at the present time, but before the end of the century it could just be that we have an Attorney General who is a member of the Militant Tendency. Stranger things have happened. I am also very worried about the extraordinary provision in Clauses 17 and 18 whereby an individual risks prosecution if he quotes from a straightforward report of court proceedings unless those proceedings are very recent. With those provisos, I am happy to welcome the Bill as a whole.
§ 3.10 p.m.
§ Lord Broxbourne
My Lords, I, too, should like to start my remarks with a sincere tribute and congratulations to my noble friends on their excellent and felicitous maiden speeches. Like my noble friend Lord Boyd-Carpenter, I had the privilege of enjoying the acquaintance and listening to the always stimulating conversation of the grandfather of my noble friend Lord Beaverbrook and also, of course, of his distinguished father. I had the privilege also of the acquaintance of the grandfather of my noble friend Lord Brocket in the county of Hertfordshire, part of which I had the privilege for so many years of representing. I am tempted to embark upon a catalogue, "Grandfathers whom I have known", but I feel that if I did so your Lordships would begin to wonder, in so far as you have not already done so, why I am still alive. I see my noble and learned friend Lord Denning looking at me. For the avoidance of doubt, I must make clear that I did not have the privilege of knowing his grandfather.
This is a wide ranging Bill. Its five parts exceed by two the three parts in which Cicero told us that all Gaul was divided. If it be not too abrupt a transition from the classical to the culinary, I would adopt the verdict of the noble and learned Lord, Lord Elwyn-Jones, that it is a curate's egg of a Bill. The least appetising and digestible part, I would think, is Part II, to which I propose to confine my remarks, with the short preparatory statement that on the Bill as a whole I congratulate Ministers on their approach and for giving expression in statute law to the view of their White Paper in 1985. I accord a particular welcome to Part I of the Bill that gives statutory definition to the complex common law relating to riot and associated offences. I would therefore ask your Lordships to accept that any comment that I may have on Part II of the Bill that is necessarily of a somewhat critical nature should not be taken to overlook or derogate from my recognition of the valuable contribution made by the Bill as a whole.
Part II seeks to provide a solution to the problem of what the White Paper repeatedly and perhaps rather quaintly refers to as sedentary demonstrations—language that the Bill translates into the more appropriate statutory language of public assemblies. This matter, as your Lordships know, received the attention of the Select Committee of the other place, and the Government's views, partly though not wholly, endorsed the recommendations of that committee. Time has passed, however, since then. We have now to consider what is required of the law and whether it is sufficient in present circumstances and in the predictable future. Before coming to this, I would just say that I do not intend to pass any moral judgment on the attitude or state of mind of those who, by their rejection of society, have created or at any rate exacerbated these problems. Enough has been said on this matter by others. The noble Lord, Lord Monson, has quoted some of it just now and I propose to follow the maxim:Judge not that ye be not judged".History shows that the rejection of society by certain elements is not unique, although it may well be hard to find a precedent for the simultaneous rejection of society and the enjoyment of its benefits. History also 560 shows that this country has succeeded in dealing with such problems by way of achieving the highest common factor of the preservation of order under the rule of law and the minimum interference with individual liberty. The key to this problem is to be found on page two of the White Paper:to regulate these freedoms to the minimum extent necessary to preserve order and protect the rights of others".In the striking phrase used just now by the noble Lord, Lord Soper, what is wanted is a fellowship of controversy in a context of non-violence. Our approach is and must be governed by Article 11 of the European Convention on Human Rights to which we are internationally committed and which, if the House of Commons emulates the wisdom of your Lordships and gives effect to the Bill which your Lordships have passed, will have the force of law in the United Kingdom and the jurisdiction of the British courts. I endorse what my noble and learned friend Lord Scarman said on this matter and I am happy to inform your Lordships that the Bill is about to be presented in the House of Commons under the distinguished auspices of Sir Edward Gardner, Queen's Counsel, with all-party backing.
The noble and learned Lord, Lord Elwyn-Jones, made reference to this article but, if I may respectfully say so, in a somewhat over-simplified form. He omitted to mention that the convention makes clear that the right to freedom of assembly is subject to the imposition of restrictions required for the protection of the rights and freedoms of others. What we have to consider is whether the Bill as drafted meets this test and gives adequate protection to the rights and freedom of others—in this case specifically the owners and occupiers of land—while imposing the minimum necessary restrictions on the rights of peaceful assembly. The Bill seeks to make this requirement in Clause 14, a single clause compared with three clauses devoted to the subject of public processions. This clause is of vital importance because on its adequacy depends the protection of the rights which English law and the European convention alike require.
The only other protection available is by invoking remedies for tort—the tort of trespass. It is true, of course, as your Lordships know, that every unlawful entry on the land of another is in law a trespass for which an action lies, but the remedies by way of trespass are inadequate to deal with mass invasion and occupation of land. In law, an owner or occupier of land whose request to leave his land is rejected may remove the trespasser, using no more force than is reasonably necessary. But in this context, surely, this right is academic, since a single person is hardly likely to invoke or be able to enforce such a right against a mass invasion. Nominally, the owner of land can recover damages if damage is sustained, which in such cases it is likely to be; but again this is an academic remedy since the entitlement to damages is hardly likely to be followed by the recovery of damages, owing to the means or lack thereof of the trespassers. Again, he may apply to the court for an order for possession and an injunction. Again, that requires an initiative by the landower, who has the inevitable delay, costs and uncertainty of such a proceeding.
Therefore one must conclude that the remedies of trespass are clearly inadequate and they have to be 561 found in this Bill. Alas, I have to tell my noble friend on the Front Bench that Clause 14 is inadequate to provide sufficient protection. Clause 14 gives such powers in regard to public assemblies which may result in serious damage to property. "Public assembly" is defined in Clause 16 as:an assembly of 20 or more persons in a public place which is wholly or partly open to the air"."Public place" is defined as:any place to which the public … has access on payment or otherwise, as of right or by virtue of express or implied permission".By confining the powers and remedies in this way the clause excludes the category of case which is causing concern, since these assemblies are not taking place on land to which the public has a right of access either by express or implied permission or at all. It follows that on its present wording Clause 14 provides no protection for private land, and therefore no solution to the particular problem which has arisen.
There are two other perhaps less basic defects, but nonetheless significant ones. There is no requirement of advance notice to the police in Clause 14, and that of course severely limits their capacity to give appropriate directions to those organising the assembly. This omission is the more surprising as the Select Committee specifically recommended a requirement of 72 hours' advance notice—a recommendation rejected by the Government in their White Paper as being unnecessary. However, that is simply a bald assertion unsupported by reasoning or evidence, and perhaps my noble friend will see fit to fill that gap in his reply and explain this somewhat paradoxical and unexpected deviation from the recommendation of the Select Committee.
The third defect is an ambiguity in the drafting of Clause 14(4), which provides a defence for a person charged with a breach of a prescribed condition in organising a public assembly that it,arose from circumstances beyond his control".What sort of circumstances are envisaged? Will it be enought to mount a successful defence, to plead force majeure? Will he be able to say "I am but one and they are many. How can I be expected to control my numerous and determined associates?"
If this be a sufficient defence—and in the wording it certainly seems possible—then the prescribed conditions would be difficult of enforcement and of little value. This being so, Clause 14 in its present form is clearly inadequate and needs supplementation. It has been suggested—I think by my noble friend Lord Boyd-Carpenter, among others—that such supplementations should include a degree of criminal trespass.
This is supported by the Country Landowners' Association, which on the kind initiative of my noble friend Lord Middleton has been good enough to send me its views. I sympathise with most of what it has to say as I hope my speech has shown, but I do not think it is appropriate to seek to include provisions for criminal trespass in this Bill. Indeed, I doubt whether they would come within the Long Title of the Bill at all, though on that matter the learned Clerks at the Table can speak more authoritatively than I.
Trespass has remained through the generations a tort attracting civil remedies, and those only. It would 562 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.
I do not say that such a development must be excluded from consideration for all time. In the words of Sir Winston, "It is an unwise politician who ever uses the word 'never' ". But the first step should be to make a reference of the matter to the Law Commission so as to gain the authoritative guidance that the importance of the matter so clearly requires. In the light of such report, the question of legislation can then be considered in its proper setting.
Fortunately it is not necessary to make so radical and precipitate a change in the law of trespass if this Bill, and Clause 14 in particular, can be suitably amended. If that is not done, the landowner or occupier is left in the invidious position that he is liable, under the law dating at least as long ago as the old case of Rylands v. Fletcher, for any nuisance caused to adjoining land from his land, however unintentional and inadvertent on his part, but he would be denied remedy for injury done to his land from outside. Surely the law should not contemplate so paradoxical and inequitable a position. Our law is not based on paradoxes such as that. It speaks, and always speaks—or seeks to speak—the language of logic and equity, and in the name of those principles I invite my noble friend the Minister to introduce the necessary amendments on the Committee stage of this Bill.
§ 3.27 p.m.
§ Lord Denning
My Lords, I listened with some dismay to some of the observations of my noble and learned friend Lord Scarman. He spoke about alternative democracy. We have in this country the best form of democracy that civilisation has yet seen. I would ask your Lordships not to consider any alternative even at the instance of my noble and learned friend. My noble and learned friend gave no cheers to this Bill. On the contrary, he found 50 or more misgivings. In answer, I would give it three cheers, with few if any misgivings.
The vital importance for all law-abiding citizens in this country is that we should have peace and lawful good order for all law-abiding citizens. We should not allow that peace and good order to be disrupted by law-breaking citizens. As I read this Bill, it seeks to achieve law and good order in our community.
May I also say this in favour of the police. They are the people who are entrusted with preserving our good order. They are the people who have to contend with robbers, thieves, and the like. It is the duty of all law-abiding citizens to support the police in their task. But how different it is today; so different from my young days. If a police officer was put into the witness box I did not dare cross-examine him to show that he was unreliable, because the jury had complete confidence in the police and I would lose my case if I went against the police.
Nowadays in many sections of society when they do wrong and the police go to arrest them, they have no 563 answer, but they turn round and say, "Police brutality" or, "Police this, that, and the other". Whole sections of the community are turning against the police. We should all condemn it. We should all support the police in their difficult and important duties. This Bill is an attempt to give the police much of the power which they ought to have. As indeed Winston Churchill once said, "Give us the tools and we'll finish the job". Give the police the right laws, give them proper powers of enforcement and that will do a great deal of good to help restore good order to our community.
In the first part of the Bill the old offences of riot, unlawful assembly, affray and so forth were not contained in any statute. They were contained in our common law. They could only be dealt with by being taken on indictment before a jury. It was very ill defined. Those old judges did their best with the common law of riot, unlawful assembly and affray, but it was out of date. The Law Commission did a first rate job in going through that old law and bringing it up to date so as to define what are "unlawful assembly", "riot", and "affray".
Clause 4 is good. In the old days it had to be three or more people to make unlawful assembly. To create fear of violence also came under unlawful assembly. That was brought up to date in those first four clauses. The new one which the Law Commission did not recommend because it did not consider it, is Clause 5 about which my noble and learned friend Lord Scarman expressed such disquiet. It is necessary to have some such clause as Clause 5 to deal with disorderly conduct which is so prevalent today.
Let me give an illustration which we had in the Court of Appeal where the law could not do anything about it. In Cornwall there was a proposal to make a survey to see whether there should be a nuclear installation there. No work had been done but the surveyors had to go in with their tools and their jigs and so forth to try to ascertain whether it was a suitable site. Then a group of protestors came. They tried to stop that survey. When a lorry tried to go into the site they lay down in front of it so the lorry could not be used. When there was a small jib working they would sit on it so that it could not be worked. They prevented that important survey being carried out.
What was the law to do about it? The police said they could not do anything. There was not a breach of the peace. They had not threatened anything, but had merely stopped the work being done. Therefore it was stopped altogether and the police could do nothing. The case came to our court. It was quite right. No criminal offence had been committed and so they could have committed that offence indefinitely. We managed to make an order to get the police constable to do something, but that is by the way. There was no criminal offence being committed.
Surely the law should be altered to make such conduct punishable. It need not be serious, or anything of that kind. Let them be taken off before the magistrates and given a small fine. That is the way to deal with it. That is the way that Clause 5 would operate in cases of disorderly conduct, in that and many other similar cases. We might have another illustration of a man who rushed on to a cricket field. 564 He disrupted the whole thing by pulling up the stumps and running off with them. I should have thought that that was disorderly conduct all right and that it caused alarm, harassment or whatever. At all events, for what might be called minor cases like that there ought to be provision in the law.
Clause 5 deals with the person who uses abusive, insulting and threatening words. That is perfectly all right. The magistrates know exactly what those are. Lord Reid once said. "There's free speech all right; but you mustn't use threatening, abusive or insulting words because they are apt to lead to violence". So there it is. They are treating it as though it is a serious offence triable by jury and all that. That is a very important new procedure. Let them be taken before the magistrate and given a small fine. So I would endorse the first Part. There may have to be minor amendments, perhaps, in Committee, but I would endorse the first Part fully.
As for the second Part, about processions and assemblies, people talk about this right to demonstrate. It has never been stated in our law or defined at all by the judges. We have had a few cases lately in which it has been said, "There is a right to demonstrate". We have never defined what it is. A right to demonstrate does not carry with it a right to disrupt the life of the community. A right to demonstrate is a right peacefully to persuade others to your point of view, to meet together and persuade; but not to try to compel people to do what they have or have not a right to do. Take the matter of those massed pickets when men wanted to go to work; and they had a right to go to work. Surely, it was wrong for pickets to gather together and stop them or try to stop them from exercising that lawful right. One could go to case after case.
Take Wapping and the like. Why is that firm not entitled to send its lorries to and fro and carry on its lawful business? What right has anyone to try to disrupt such lawful activity. These people are not trying to persuade at all; they are trying to compel the person not to do that which he has a lawful right to do. I come back to what I have said before about disorderly conduct. What about those people, the hippies and the like? Is that not disorderly conduct of the worst kind? Does it not cause harassment, alarm and the like? The Act is not yet in force. There is going to be a remedy. This conduct is so disorderly and so disruptive that I would be all in favour of framing a law so as to make that kind of thing a trespass punishable by a criminal court—not seriously taken before a magistrate and sent to prison or before a jury or anything like that. It is better to send them before a magistrate. Arrest them and take them there and award a small fine or a bind-over. But the law ought to be strengthened in all these respects so that the police can be given the powers to enable ordinary people lawfully to live their lives in peace and prevent others from disrupting the good order of our country.
I will not go into all the details but, by and large, as I said at the beginning, I give three cheers to this Bill and hope that it will go through virtually unamended, but subject to minor things. I hope that it will go with speed through your Lordships' House so that this important measure can get on to the statute book.
§ 3.39 p.m.
§ Lord Teviot
My Lords, it is a pleasure to follow the noble and learned Lord, Lord Denning. I am quite sure that he will return to many points on the Committee stage. My own contribution has to do entirely with Part 11. I intended to confine my comments entirely to that subject but I might veer off slightly later. However, I shall start by so doing. In this Bill among other things we consider the democratic rights of people in this country to proclaim their views on many subjects by way of processions and demonstrations. We are jealous of the rights of the individual although we are not unmindful that liberties granted to one person may place constraints on many others. This is recognised in the Bill so far as aggressive behaviour is concerned. However, with the massive growth of public demonstrations—dealt with in Part II—it is necessary to see that everything possible is done to minimise inconvenience caused to the public in general.
Your Lordships are aware of my experience in the bus industry, and I am conscious that this is one industry greatly affected by processions of pedestrians blocking the normal flow of traffic. Let me make it clear that when I speak of the bus industry, my concern is ultimately for its users. They are the sufferers, whether it be by delay or increased operating costs—which at the end of the day are passed to them as fare-payers, or possibly as tax-payers.
May I give one example of an experience told me by some people of my acquaintance? This occurred last November when they were trying to take a bus from Oxford Street to South London. They, like the considerable queue at the bus stop, had no knowledge of an assembly formed by processions to Trafalgar Square. They waited one hour in a freezing north wind blowing down Orchard Street; and, along with the others waiting, they blamed London Transport for its inefficiency. When the next bus arrived they were able to get on; but their next experience was a diversion from Piccadilly Circus to the southern—or is it eastern?—end of Lambeth bridge, which added a mile and a half to the journey on congested roads, sometimes through unsuitable back streets. This frustrating crawl added a further hour to the delay. In due course it transpired that the problem lay with the demonstration and not with the bus company. My Lords, what an image to give the passenger!
I made inquiries of London Transport regarding this delay, who, let one say, praised the police for their co-operation. They calculated that the cost to them of this one occasion was over £5,000, without taking account of the considerable overtime paid to crews for finishing late or of the cost of publicity—which it would seem was too late and insufficient to reach the majority of their passengers. If one takes account of the great inconvenience caused to the travelling public, the cost to the police and other authorities, it can be seen that there is a very heavy price to be paid for every demonstration of this sort—and this is but one example. I would remind your Lordships that the bus industry carries 6,200 million passengers every year. This is a great number of people to be inconvenienced by the views of those who choose to exercise their right to demonstrate.
566 It would be wrong to seek to prevent people from using the public highways for the lawful purpose of passing and re-passing—although an individual carrying a banner down the middle of the road may well be prosecuted for jay-walking. This brings me to the purpose of my intervention in this Second Reading debate. We must try to achieve a balance between the freedom of one set of individuals and the freedom of the remainder also to pass and repass. I intend to return to this subject at the Committee stage, when I shall table amendments which will enable your Lordships to consider this balance in more detail.
One is concerned that bus operators should be given proper notice of all processions and demonstrations affecting the routes over which they operate so that they can at least plan to reduce to a minimum the disruption of services to passengers. One is also concerned about the cost of demonstrations and, although it may not be possible to place financial responsibility on the organisers of demonstrations, we should perhaps look at the implications.
One was at first puzzled by the requirement to give notice of a procession but not of a public assembly. It seemed illogical. Yet, having made inquiries one is satisfied that in practice—which is what matters—the distinction is justified: that is, provided all police forces remember to take account of, and consult with, other interested parties. I hope my noble friend the Minister can reassure me in this respect.
I should like now to follow the noble Lord, Lord Graham of Edmonton, who referred to Mr. Alan Mattingley of the Ramblers' Association. I declare an interest here because I am president of the Sussex branch of that organisation. I agree with what the noble Lord said, that he had sympathy with Mr. Attwell in Somerset and also with the views of Mr. Alan Mattingley—and I speak as a walker. Legislation in that area is very secure and one would not like to see it departed from. But, speaking as a lone walker, I do not think that anybody would get very cross if one trespassed. One should be able to follow a map, but if one apologises and is fairly humble the person who has stopped one is usually sympathetic. That is an area to be looked at. But I am not quite so worried as the noble Lord, and I am sure that any amendments in that direction will be dealt with.
In conclusion, I come to the most pleasant thing I have to say. I should like to welcome the amendment to the Sporting Events (Control of Alcohol etc.) Act made by Schedule 1 to this Bill. When that legislation came before your Lordships last year, I expressed concern that voluntary controls introduced by coach operators were leading the hooligan element to hire minibuses, and that these vehicles were not covered by the very necessary requirements in respect of certain sporting events. I am grateful to the Government and, in particular, to my noble friend who has to deal with the Bill at short notice, for the fact that this matter has been put right.
§ 3.46 p.m.
§ Lord Middleton
My Lords, the need to increase the powers of the police to control assemblies which make use of land in ways which constitute risks of public disorder is a long-standing one, and I listened with 567 great attention to what my noble friend Lord Brocket had to say on the subject. I listened with equal pleasure to the speech of my noble friend Lord Beaverbrook and I hope that we shall hear both of them again before long and on frequent occasions. This need of increased powers has been highlighted by recent events in the south-west to which many noble Lords have referred. It is met to a great extent by this Bill and my noble friend Lord Glenarthur confirmed this by referring to the extension to public order offences that are made in the Bill to offences committed on private land. My noble friend Lord Glenarthur has rightly pointed out the difficulties surrounding the law of trespass, but he has given an assurance that this will be looked into by the Government. These difficulties have, of course, been touched on by my noble friend Lord Broxbourne.
I shall be very brief and will confine what I have to say to one issue, an issue that has already been taken up by my noble friends Lord Boyd-Carpenter and Lord Broxbourne. As the Bill now is, there is a very large loophole in the provisions dealing with public assemblies, and, as my noble friend Lord Boyd-Carpenter has referred to it, I shall refer also to the letter to The Times that appeared last Wednesday from the president of the CLA, in which he stated his fear that convoys and others with good legal advice would be very quick to jump through it.
As my noble friend Lord Broxbourne has described so clearly, the loophole exists because police powers to impose preventive conditions on assemblies which threaten disorder, damage or disruption apply only to assemblies which are held on land to which the public, or a section of the public, is expressly or impliedly granted access. My noble friend Lord Broxbourne has, with his great knowledge and expertise, dealt with the present inadequacy in this respect of Clause 14, so I will only echo him by saying that these important preventive powers ought to be extended to cover land on to which the public has not been invited. Until this is done, the "hippy" convoys are presented by this Bill with an open inducement to occupy land where the owner's or occupier's consent has not been given. Until that is done, the police will be hindered, and potential damage to property will be greater as the convoys are encouraged to trespass to avoid the imposition of those conditions that apply to private land to which the public do have access by right or by express or implied consent.
If, as we hear, the Government are serious in introducing a limited form of criminal trespass, then it would be illogical to do that and not at the same time close the loophole in the Bill that will encourage trespass. Having heard what the noble Lord, Lord Graham of Edmonton, and my noble friend Lord Teviot have said, perhaps I should comment that if the closing of the Clause 14 loophole should give rise to fears that it would penalise ramblers or other users of the countryside, then I believe—and perhaps my noble friend will confirm this, if I am right—that this will be the position. Under Clause 14, no criminal element arises until, first, one of three serious risks arises; damage, disorder, or disruption; secondly, the senior police officer has imposed conditions; finally, those conditions have been wilfully flouted. I do not believe 568 that ramblers would act in any way that would require Clause 14 to operate in their case.
My noble friend Lord Peyton and other noble Lords have referred to the case of Mr. Attwell. When his 100-acre farm near Yeovil was invaded by a convoy of 250 itinerants in buses and vans, causing him a heart attack and severe financial loss, it took seven days to shift them. It cost Mr. Attwell much more than he could afford to seek a High Court possession order so that the police could act. It was encouraging to hear that my noble and learned friend the Lord Chancellor is considering whether civil law procedures might be streamlined in order to grant more speedy recovery of possession of land.
It may be, as my noble friend the Minister has suggested, that the criminal law will have a stronger part to play. However, Mr. Attwell's invasion by hippies, and the ruin to his health and business, could not have been prevented under this Bill as presently drawn. I can think of no better illustration of the need to apply Clauses 14 to 16 to all land. I hope very much that we can improve the Bill in that respect in Committee.
§ 3.53 p.m.
§ Lord Beloff
My Lords, I rise to speak about this Bill with, if I may say so, a certain proprietorial sense. It is 48 years ago, long before the births of our two excellent maiden speakers this afternoon, that I published my first book under the title of Public Order and Popular Disturbances. Before noble Lords rush off to the bookshops to seek illumination, perhaps I might enter two caveats. First, I believe that the book is long out of print; secondly, it deals only with the period 1660 to 1714. Nevertheless, having been plunged at a relatively early age into this subject, it has led me to conclusions that are different from those of noble Lords who have hitherto spoken in this debate.
It gives me a certain historical perspective that I feel has sometimes been lacking on the part of noble Lords who believe that the subject began with the Public Order Act of a mere half century ago. The conclusion that I come to is that the causes of disturbance, protest and riot do not differ a great deal. In the late 17th century, there were attacks upon foreigners who were presumed to be taking the jobs of native-born Englishmen. There were attacks upon people who were believed to be unnecessarily raising the price of provisions—the common give and take and discontent of all societies. The difference was that in those days there was no alternative to that form of protest. The mass of the people were disfranchised. Many were illiterate and the possibility of reaching the centres of power, which were very restricting, was very limited indeed. It is not surprising that protest, demonstration, marches and assembly came to be regarded as the normal outlet for popular sentiment.
However, we now live in a very different set of circumstances. We have a basically elected legislature. We have elected organisations of local government. We have universal franchise. We have a whole series of organisations, trade unions, co-operative societies, voluntary bodies, through all of which opinion even of the ordinary citizen can adequately be expressed. Therefore I do not think that we should put quite the 569 accent that has been put on the tradition of assembly, the tradition of marching, the tradition of open-air protest as though the fact that those things were necessary in past ages is a guide to us today.
The argument for tradition was put forward by the noble and learned Lord, Lord Elwyn-Jones. If he were here I would remind him that one of his eminent predecessors on the Woolsack less than 200 years ago was talking as though hanging a man for stealing a sheep or a child for stealing a handkerchief was a necessary part of the British legal tradition. We must look at these matters afresh. I am surprised—as indeed many noble Lords have been—by the suggestion, perhaps thrown out in a moment of thoughtlessness, by the noble and learned Lord, Lord Scarman, that in a country which enjoys parliamentary institutions there could be an alternative form of democracy—the democracy of the street.
All of us speaking today have, I gather, received voluminous material from a body that calls itself the National Council for Civil Liberties. It is national, perhaps, because it is not local, but civil liberties appear in the eyes of that body and, I judge by the pack of material that has been sent, to be confined to a very small number of liberties: namely, the liberties to march, to protest, to hang banners and to demonstrate outside the normal channels of political activity.
I should have thought that there are civil liberties far more important than any of those. They are the liberties perhaps best summed up for all time in the words of the American Declaration of Independence:Life, liberty and the pursuit of happiness".Those can only be enjoyed by individuals. Life is the life of an individual. Liberty is the individual's capacity for following his avocation and for expressing his opinions. The pursuit of happiness, though good governments will avoid impeding it, is nevertheless again an individual pursuit.
The point that I should like to emphasise to noble Lords is that in my view the guaranteeing of the ability of the individual citizen to pursue his lawful avocation, to move freely about the streets of his city and to avoid interruption to the ordinary amenities of daily life, is of infinitely greater importance than guaranteeing the right to hold meetings in public places, to march in processions or to perform any of those other activities. While no doubt those activities can be useful—I have no doubt that people will benefit from hearing the noble Lord, Lord Soper, preach in the open air; and indeed I am prepared to see a special clause exempting him from any provision of this Bill which, if passed, might be thought to impede his ministry—nevertheless I maintain that it is not, as many noble Lords have argued, a question of balancing one matter of prime importance against another.
The matter of prime importance is the security of the individual in his life, his liberty and his pursuit of happiness, which involves, as has been said, access to the free use of his own property. The others in their way no doubt are respectable ambitions but they should be subordinate if they are found to be an impediment to those primary civil liberties which are the liberties of the individual.
§ 4.2 p.m.
§ Earl Russell
My Lords, my main objection to this Bill is that the spirit of it is wrong. It will create a "we-they" atmosphere which will provoke civil discord, as some Labour spokesmen have been saying. As long as the authorities have such wide power to take away liberties on all sides, the condition of the British people will continue to deteriorate. As a result of the extreme intolerance encouraged by the police, the British people will develop an introverted instead of an extroverted personality.
We have the reputation of being the most violent nation in Europe; but disturbances such as occurred in the Heysel Stadium are a reaction to the violence instituted by our own authorities. The people involved ought to have been encouraged to have kind impulses toward their fellow men and not given bruising, oppressive and negative experiences by all the authorities in Britain, high or low, that make them want to be negative or destructive. Like everyone else they are best treated with kindness.
Under this Bill those demonstrating against the obscenity of nuclear weapons could be imprisoned for life. We must unite with such people and support them in the interests of preserving the lives of us all. The authorities should side with the supporters of CND and not make their endeavours look trivial. They should take them seriously, or the recent hope of reconciliation raised by Gorbachev and Reagan bringing an end to the Cold War will be wrecked. The United Kingdom should endeavour to make Europe into a happy community, disowning both Reagan and Gorbachev, and allowing everyone in Europe, young and old, to live their lives freely without fear of punishment, arrest, indoctrination, intimidation or brain-washing. Let us put our energies on the side of life.
As Amnesty International has proved, one prison anywhere diminishes us all. We should free the prisoners, and learn to have fun. After all, it is happiness not depression that is the hope of our existence. To spend 11 years in solitary confinement is to know Big Brother and to be able to speak from a really informed and authoritative position. The truth is that prisons and punishment do no good. They are the wrong methods and should be abolished.
The Public Order Bill proposes to increase the powers of the police, but as the entire public knows, the increase in police power has not benefited us in the past 30 years and is even less likely to do so in the next decades. The police have not brought social advance but its opposite, so why should they be given more power? By insisting with such oppressive force that the nation should be non-violent and never rebel, Mrs. Thatcher confesses herself a member of CND. Violence ought not to be suppressed by authority; it is part of nature and necessary to mankind.
As the noble Baroness, Lady Cox, has written, the conditions of life here are so bad for most people that there will have to be armed conflicts with the police. As every positive person can see, the solution is a peaceful revolution all over England and Europe, with kind Eurocommunism, without dictatorship, instituted, with the young people in charge of it and no sort of oppression of slavery lingering from the past.
571 So, no public order, my Lords, public kindness instead. It is the only practicable remedy. People should look after themselves or they cannot look after others. But they should look after others or they cannot look after themselves. If you do not look after other people, you have chosen suicide yourself. Now, Reagan and Gorbachev look after each other and create nuclear disarmament, give up this ridiculous hostility, go on with your rapprochement and bring it off. Once world peace has arrived, public order will be irrelevant, and no one will even propose a public order Act.
Again, the whole spirit of the Reagan-Thatcher policy against terrorism, just like the spirit of the proposed Bill, is the wrong spirit. You should not oppress people so that they become terrorists: you should always make for reconciliation and peace.
The Government would not have proposed this Bill if they were not mentally diseased. Think repression and violence and you get repression and violence. You are conjuring into being the very nightmare that you fear. Live in peace with people, and they will live in peace with you.
§ 4.6 p.m.
My Lords, I think it is a little late to make ordinary speeches at this stage, at least from my point of view. I think that more properly I can make just one relevant point. I am sure that the noble Earl will allow me to say that if I were to reply to his speech it would take quite a time, and the hour is late. He probably will not think it discourteous of me if I do not deal with his speech now.
I wish to make one point only, and that is to refer to the practical side of the policing which comes up in this Bill and which came up a few months ago when we debated the Police and Criminal Evidence Bill. Clarification of the law has come up many times during the debate, and I am pleased that it has. We have had many attempts at precise clarification, but we must not forget the practical side. The duties of police officers are frequently extremely difficult and decisions often have to be taken by junior officers. We must realise that. We are not thinking only of the police constable of 25 years' service but more of the junior whose service can be measured in weeks, not in years. That is particularly relevant to Clause 5 of the Bill. Noble Lords may agree with me that one of the best ways for the Bill to work is if it can forestall difficulties, rather than follow behind troubles that may happen.
The authority of the police constable is quite different from that of the soldier, but people are apt to forget that. That point is particularly relevant when the police constable is young. He has wide discretion. We have a tradition in this country whereby the police attempt to use that discretion to the maximum so that it may have the maximum after-effect. Again, there are differences in the way that the police operate in big towns and in the country. In particular that applies to the role and training of reserves for major operations for the police in big towns, compared to much of the routine work that we think about especially in country districts.
572 Earlier in the debate I heard a reference to drawing together the police and the public, which is so important. We have brought that up a number of times over the past year. That is one area in which we have to make an effort—the police on one side and the public on the other. We should not forget that. I hope that the public will be drawn more closely to the police and that the police will open their doors to the many people who are anxious to know their ways better. We want to see an improvement in the feeling of involvement which we have in this country but which many other countries do not have.
§ 4.10 p.m.
§ Lord Montagu of Beaulieu
My Lords, I must apologise because circumstances prevented me from being in the House for the start of this important debate. I wish that it could have been otherwise so that I could have heard the maiden speeches of my noble friends Lord Beaverbrook and Lord Brocket. A long-standing official engagement made that impossible. It is only because I came by helicopter that I am here.
I made a special effort to be here because of the important implications that the Bill has for the Historic Buildings and Monuments Commission or, to use its popular title, English Heritage, of which I am chairman. I must therefore declare an interest. I hope that I shall not be tediously repeating points made by previous speakers. I wish only to speak briefly to those provisions in Part II of the Bill which relate to processions, assemblies and mass trespass in general.
As a landowner, I naturally share the widespread concern and anxiety about the damage to land and property which can result from acts of mass trespass. As a member of the public, I naturally share the sense of outrage, as have many noble Lords, felt by so many of us over the fate of poor Mr. Attwell and his farmland. We should not forget the many others who have suffered in previous years.
What I feel it my duty to say today stems from the statutory responsibility placed by Parliament on English Heritage by the National Heritage Act 1983. In that Act we are charged with doing everything in our power to protect ancient monuments in England. The picture which many people have of a typical ancient monument may be of a substantial castle or a standing stone ruin, but nevertheless solid and durable, which has survived for many centuries and looks like surviving for many more. That is far from the typical monument.
Many of our monuments are field monuments—barrows or tumuli, the remains of ancient field systems or the foundations of mediaeval villages. To the uninstructed eye, they may be hardly noticeable. They are fragile and vulnerable to threats of many kinds—development, deep ploughing and many others. A mass incursion onto land containing such monuments has been seen to cause incalculable harm to those irreplaceable relics of our past, particularly if vehicles park for a long time or camping is established and includes the digging of pits and the lighting of fires.
The land around Stonehenge is among the richest in the country containing relics of our ancient past. Since the mid-1970s, it has been the site of an annual so-called pop festival which was growing annually in size 573 and duration. In 1984, it lasted for six weeks and at times involved as many as 40,000 people. Your Lordships will know that in 1985 we supported the National Trust in its decision that it could no longer allow such an event to take place on that archaeologically sensitive land which it owns for the benefit of the nation as a whole. Not only was great damage caused, but £100,000 fell on the commission to provide essential facilities, to compensate the tenant farmer and clean up afterwards. That was money which was badly needed for other conservation projects.
When the decision to stop the festival had been taken, we found it almost impossible to invoke the law to carry it out. Although we had made it abundantly clear by advertising and in public statements that no festival would he permitted on the land in our care or near Stonehenge, people continued widely to advertise their intention to hold such a festival. It was therefore necessary for us to go through the difficult and expensive process of obtaining High Court injunctions against people who we believed intended to try to go to Stonehenge against our wishes.
Our advice was that if we had not done that we should be unable to invoke the law to protect our land against mass incursion and damage. Continued public advertising urging defiance of those injunctions, and the violent scenes which then ensued, were deeply deplored and regretted by us in English Heritage. We also very much regretted the necessity to close Stonehenge at the time of the solstice and to deny access to it to those individuals and groups who wanted to he there at the time of the solstice for spiritual or religious reasons or because it was the tradition to do so.
During the second half of last year, we went so far as to use our good offices and had several meetings with persons who claimed to represent the hippie groups to see whether it might be possible to find a nearby site for people to stay—for instance, a disused airfield—so they might be able to come to Stonehenge only on the night of the solstice. Only when those attempts failed did we decide in consultation with the National Trust and others that it would again be necessary to take legal steps to protect the monument and the surrounding land at this time.
But in spite of those injunctions the peace convoy and others made plain that they intended to ignore the injunctions and advertised widely the festival, urging others to join them. The question of advertising events on other people's land without their permission is perhaps a separate point which no doubt the Government may wish to consider. There can perhaps be discussions at Committee stage. But to my lay mind this must surely be a conspiracy to commit an offence. I find it strange that I could advertise a garden party next week in the garden of my noble friend the Minister and there would be nothing that he could do about it until my guests go there. Then he would have seven days to get them out.
I have told this story as background to our consideration of the provisions of the Bill. It demonstrates the difficult position in which English Heritage was placed in seeking to discharge its statutory responsibilities by the inadequate state of the 574 law both on assemblies and on mass trespass and conspiracy to trespass. Our initial reaction was to press for a change in the law to make it a criminal offence for some number, say, 20 or more, to trespass on land containing a scheduled monument and to stay there for 24 hours or more against the wishes of the owner or legal occupier where there is actual or potential damage to the ancient monument. We would have been content to see a provision with such strict tests in it because we are conscious that there is strong feeling in some quarters that it would be wrong to make a criminal offence of a simple act of going on to land.
We want to make clear our respect for that view, although many people outside this House and, I think, some in it find it difficult to subscribe to the view that it is impossible to differentiate between the modest rambler who has lost his way or the hiker who camps for one day in a field and the mass incursion that the peace convoy has done recently. However, we reluctantly concluded that the Government were unlikely to accept our view. We welcome, therefore, the provisions in Part II which would enable public assemblies to be controlled and we support most strongly the campaign led by the CLA to ensure that those provisions could be invoked when such assemblies take place on any land, public or private.
I should, however, like to ask the noble Lord whether we are right in understanding that Clause 14 as drafted could be invoked to control an assembly that is taking place on our land immediately around the monument at Stonehenge because we admit the public but not where it has happened on National Trust land on the other side of the road to which the public are not normally admitted. If the answer is yes, that is a direct incentive to trespass on private land. I am certain that we should remove it from the Bill as proposed when this was discussed in another place. Having studied comments made on behalf of the Government last week and having been informed as to what was said by my noble friend who moved the Second Reading earlier, I am now much more optimistic that a general provision will be brought forward at a later stage that will enable us in English Heritage to be confident that the general law enables us to carry out the duty of protecting ancient monuments.
If this does not happen, I must warn my noble friend that I shall have no hesitation in moving an amendment to make a specific provision designed to prevent trespass on land containing ancient monuments. I hope that I shall have support from all sides of the House for that amendment. We must be assured in English Heritage that we can fulfil our statutory responsibility towards the protection of ancient monuments. In any event, I regard it as imperative that Clause 14 should be widened as I have indicated. In conclusion, I give a general welcome to the Bill and urge that the provisions should be widened in Part II in the ways that I have suggested.
§ 4.19 p.m.
§ Lord Mishcon
My Lords, woe to the Membership of your Lordships' House whose duty it is to wind up a debate on an important Bill at 20 minutes past four on a Friday afternoon, and gallant indeed are the courteous few who have stayed to listen to the closing 575 speeches. I think that the noble Lord the Minister would want to join me in expresssing our appreciation to them, including the two maiden speakers, whom I would want to congratulate from these Benches. If I say no more it is only because of the ruling of the Procedure Committee that words of appreciation to maiden speakers should be limited to the next succeeding speakers.
I listened with attention to all the speeches that have been made in this debate. I certainly listened as I always do to the noble Lord, Lord Beloff. He told your Lordships that the tome that he has contributed to the library of the world was irrelevant to this Bill because it merely covered the years 1660 to 1714. May I tell him that he understated the value of his contribution to learning because if he will turn, as I invite your Lordships to do, to Clause 9 of the Bill he will find that, possibly belatedly, noble Lords will, if they pass the Bill, be abolishing in Clause 9(2)(a);section 1 of the Tumultuous Petitioning Act 1661 (presentation of petition to monarch or Parliament accompanied by excessive number of persons)".I am sure your Lordships will feel that you are doing something quite up to date in abolishing this measure, if indeed your Lordships had ever known that such an offence existed in our criminal law.
I listened with rapt attention, as he deserved, to the last speaker, the noble Lord, Lord Montagu of Beaulieu, who dealt with the vital matter of trespass relating to heritage, as indeed other speakers have spoken in sympathy for those who have recently suffered in country areas from trespass. The noble Lord, Lord Teviot, said that his experience as a rambler was that if he ever found he had been misled by his map and he had trespassed on some farmer's land all he had to do was to apologise and that was the end of the matter. He was courteously received.
While the noble Lord was speaking my recollection went back to early motoring days. I was driving in Sussex when a vehicle approached me at what in those days was deemed to be alarming speed. I do not think it would be so interpreted now. I had to swerve violently to get out of the way. My car overturned twice, went over a hedge and landed in a field. I just managed to get out, dazed and bruised, only to be faced by a farmer who said to me, "What are you doing on my land?" I feel that the noble Lord, Lord Teviot, was much more fortunate than I.
At this hour one ought to concentrate only upon the major matters which have been dealt with in this debate. There is a general welcome to the provisions of this Bill. There is a general feeling, as the noble and learned Lord, Lord Denning, said, and indeed as the noble and learned Lord, Lord Scarman, said—they both agreed upon this—that there is a need to look with the eye of 1986 upon the last measure of 1936,50 years ago. As was said in the course of the debate, conditions have indeed changed over those 50 years. However, I make no apology for repeating that as we see it on these Benches, it is the duty of Parliament to use a sense of balance and not to be carried away, possibly erroneously, in finding a path which puts some of our liberties at peril.
I notice that some participants in this debate—and there is no need to name them—felt that the balance 576 had become out of proportion, and that there were more important liberties than, for example, that of public lawful assembly and the right to demonstrate. It is a point of view that can be put forward and debated. I would merely say to your Lordships that the power to demonstrate, the right to hold a public assembly, has possibly rescued this country, especially at this moment, from abuses which we would all decry. If noble Lords curtail that right, they do so at the country's peril.
People have very strong views, views that are not satisfied merely by relaying their messages through proper democratic channels to their Member of Parliament, as has been suggested. If there is a Vietnam or a Korea, if there are other matters of vital importance to the world, or if there is the battle of the debate on nuclear armament or disarmament, it is not sufficient for some people, merely to see a Member of Parliament in his surgery, to which reference has been made in the course of the debate, or even, if one is literate, to correspond with him and hope that the view will be looked at by the Member of Parliament and possibly voiced.
Your Lordships well know that at the moment we live in an age not only of vital questions as to whether or not the world will survive but of more limited questions as to whether or not the dignity of families will survive in a era of mass unemployment. I believe that the Government fully recognise (I certainly hope they do) that the right to demonstrate and the right to march allow those of us in our communities who wish to register a point of view to do so in order that the public at large can see us do it and possibly be convinced, either by debate in a public assembly or by the banners that are borne in a demonstration. Therefore, let us interfere with those rights at our peril and let us respect the old traditions that we value so much in this context.
The danger inherent in this part of the Bill is the way in which the police are being introduced in order that they may make certain decisions as to whether it is likely that the demonstration or the public assembly will or will not be desirable if conditions are not imposed; and they have the right to impose conditions. I and my noble friends have the greatest regard and respect for the police of this country, but it is completely unfair to them to impose what after all in most cases is a political decision. It is quite unfair to them to impose a strain upon their relationships with the public, or with a section of the public, by making them responsible for imposing conditions or restrictions, whether it be on the route of the march or the way in which it can be held, and so on.
If I left it at that, your Lordships would feel that that was rather a destructive way of handling what we all know to be a perfectly proper matter for this Bill to deal with. I do not leave it with a destructive comment; I merely say that some alternative must be found. I throw this out merely as an example and not by way of a formal forecast of amendments yet to come, but should we not think in terms of an alternative: for example, an ad hoc tribunal in each area which could be called together at quick notice, consisting of perhaps a lawyer, plus a member of the majority party properly appointed and elected in the local authority, plus a member of the opposition party properly 577 nominated and elected from the local authority, and a representative of the police?
If there were such a local body so appointed, be it by the Lord Chancellor or by the Home Secretary, the police would be taken out of the firing line, and you would impose upon that little body, which is very representative and knowing the locality as they do, the job of seeing whether or not conditions or restrictions should be imposed. That seems to me at least to be an example by way of an alternative. In your wisdom your Lordships may think of a far better way of dealing with it when we come to other stages of the Bill. I merely ask for an alternative to be thought of rather than what we have at the moment.
§ Lord Broxbourne
My Lords, I must rise to the noble Lord, and thank him for his characteristic courtesy. Is the noble Lord satisfied that his alternative would come within the Long Title of the Bill? I would doubt it.
§ Lord Mishcon
My Lords, I should have thought that the Long Title of the Bill, which deals with regulation of assemblies, and so on, would be able to encompass the way in which this legislation would be able to deal with how these matters could be decided. I obviously defer to the noble Lord, whose authority on these matters I respect, but at this time of the afternoon I merely wish to leave the matter there, he registering his view and I registering mine, with the optimistic hope that mine is right.
As I said, I deal in conclusion with one other clause of this Bill which has caused disquiet in various parts of your Lordships' House and from an authoritative source on the Cross-Benches, and I refer of course to the noble and learned Lord, Lord Scarman. We are fortunate in this House to have great debaters and great experts. I supose it is a matter of great enjoyment, more civilised than that in ancient Rome in the arena, when we see the noble and learned Lord, Lord Denning, crossing swords with the noble and learned Lord, Lord Scarman. It is a gladiatorial battle that all of us enjoy. I am sure that most of us decide that if we take a course halfway between, we are most likely to enjoy the greatest possible wisdom.
§ Lord Boyd-Carpenter
My Lords, would the noble Lord identify which is the lion and which is the Christian?
§ Lord Mishcon
My Lords, it would be singularly inappropriate for me, of all people, to make that diagnosis.
I was saying that I wanted to deal finally with the clause that has caused concern in all parts of your Lordships' House. I refer to Clause 5. I say this with a little amusement. I ask your Lordships—those who had the privilege, as I did not have, of being members of another place or if you are in my position of merely imagining that you are listening to "Today in Parliament" on a certain day of the week,—to picture Prime Minister's Question Time. I now ask noble Lords to read Clause 5 of this BillA person is guilty of an offence if he … uses threatening, abusive or insulting words or behaviour, or disorderly behaviour"—578 I then go on to finish the offence which is created by this clause—within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby".As I said, you look at the vagueness of these words and every single word that I have read out would apply, in my judgment, to a typical Prime Minister's Question Time. I ask myself whether the introduction into our criminal law by Parliament is done in the case of Clause 5 with a full realisation of the offences which might occur within Parliament itself, since the clause applies to a private place, or whether Parliament rather selfishly says that the offence can be committed with impugnity within its own precincts, but it is a criminal offence capable of all the rigours of our criminal law if it is committed outside Parliament.
I turn seriously to what I really mean by this submission: it is that these words are undoubtedly much too vague. They have to be used with the greatest of care before there is any question at all of our importing them into our criminal law. But something of this kind may be necessary to deal with people who suffer fear, and genuine fear I understand. My last submission on this clause before I sit down is that I find it very unsatisfactory, as indeed does the noble and learned Lord, Lord Scarman—I believe I am right in saying that my noble and learned friend Lord Elwyn-Jones introduced this into his eloquent speech earlier—that there should be an offence of this kind capable of being proved to the satisfaction of a criminal court, because of the way in which this clause is worded, merely upon one police officer's evidence alone. I take the point about the difficulty of getting a victim into court. I do not take the point that there is no alternative by way of saying that there must be some corroborative evidence by some other person there who saw the incident and who saw that the person concerned was likely to be caused fear, apprehension, anxiety or whatever words are used in the final evolution of this clause. There is a need for us to be extremely careful when we come to the later stages of this Bill. At this stage I welcome the Second Reading and the way in which the noble Lord the Minister introduced it.
§ 4.39 p.m.
§ Lord Glenarthur
My Lords, we have had a long, useful and thorough exploration of the purpose and principles behind the Bill. I am grateful to those who have welcomed the Bill, either in part or in whole, and I hope that I may persuade those with reservations that their fears are unfounded.
Before I deal with some of the points raised, I should like first to add my congratulations to those already extended to the two maiden speakers. My noble friend Lord Beaverbrook has made an impressive debut. That he also spoke in favour of the Bill, and without controversy in a difficult area, to my mind merely adds distinction to an excellent speech. My noble friend Lord Brocket, also in an excellent speech, gave us the benefit of his views on trespass as uncontentiously as anyone possibly could. He did so in a forthright and balanced way citing his own experiences and that of tenant farmers in Hertfordshire. I hope that he will accept from me that the important points that he touched on loom large in the consideration that we are 579 giving that important matter. I shall return to it later. We look forward to hearing both my noble friends' views on a wide range of issues in the years to come.
Many points have been raised and I shall deal with as many as I can without, I hope, wearying your Lordships at this time on a Friday afternoon. Some of the points that have been raised are Committee points but I shall concentrate, as did the noble Lord, Lord Mishcon, on the major ones. I am grateful for the views expressed by the noble and learned Lord, Lord Elwyn-Jones, and the noble and learned Lord, Lord Scarman, on what should be the correct maximum sentence for riot. I said in my opening remarks that the Government do not have a closed mind and that we shall consider carefully what has been said. However, I would remind your Lordships that the argument is not completely one-sided. The existing maximum sentence for the common law offence of riot is life imprisonment. We are to some extent raising the threshold for when the offence may be committed by raising the number of persons from three to 12 and providing that only someone using violence may be guilty of the offence.
I turn now to the matter of Clause 5 in a variety of different ways. There were those who suggested—and among them, to some extent, the noble and learned Lord, Lord Elwyn-Jones, and I think also the noble Lord, Lord Hutchinson—that perhaps this clause raised the matter of "sus" by another name. They expressed more general doubts about the clause. There is no intention to penalise simple high-spiritedness or behaviour which might be a nuisance but cannot be considered to be anything more than that. The new offence in no way represents a resurrection of "sus". Unlike "sus", the offence requires the presence of a victim. The prosecution will have to prove beyond reasonable doubt that there was someone within sight or hearing of the accused's behaviour who was likely to be alarmed, harassed or distressed by it. For an offence to have been committed, the accused must either have intended or have been aware that his conduct was or might be threatening, abusive, insulting or disorderly; and by virtue of Clause 5(3)(c) it is a defence for the accused to show that his behaviour was reasonable.
The Government do not believe that is too much to ask that people let off steam without causing misery to others—and misery it often is; or that providing additional protection for the victim of the hooliganism is other than a wholly proper course of action. The noble and learned Lord, Lord Elwyn-Jones, suggested that the concept of "substantial" in this regard was too vague. We decided to omit the qualification, "substantial" which was proposed in the White paper because—if I use shorthand—first, harassment, alarm and distress are all in themselves strong words and, secondly, a number of organisations when they were consulted, including the Law Society, questioned what the courts would make of "substantial" and whether it added anything. We decided on reflection that it added very little and was better omitted. The Opposition in another place accepted the need for a new offence and did not question the elements of alarm, harassment or distress. If they now think that they can improve on "distress" I certainly look forward to hearing what 580 those proposals might be. I should also mention that the examples given by the noble Baroness, Lady Phillips, of anti-social behaviour, although she related them more to trespass, are very largely met by what is written into Clause 5 of the Bill.
As to the suggestion by the noble and learned Lord, Lord Elwyn-Jones, that there should be a statutory right to demonstrate, it may have been suggested by some that the Bill should incorporate that right; but in public order law, as in other aspects of the law in this country, it is a basic assumption that anyone is free to do something unless there is a specific rule to the contrary. If we were to provide a specific right in statute to demonstrate or march, that would undermine the presumption—an important presumption at that—that the law gives to others rights which might, by implication, narrow the liberties we all enjoy. I think that might be counter productive and go even beyond what is suggested in relation to some of the worries that have been raised today.
I listened with care to the remarks about the right to protest and the concern expressed by the noble Lord, Lord Hutchinson of Lullington, that advance notice is a serious infringement of it. The advance notice requirement is a purely regulatory measure. An advance notice requirement already exists in many local Acts, and most organisers already inform the police before a march takes place. No change will result from formalising these arrangements for responsible march organisers but a number of marches are not known to the police in advance and, because of that, they may lead to greater disruption than either the police or the marchers themselves intend. The advance notice requirement will trigger discussions between the police and the organisers; and that surely must be to the benefit of both.
The Select Committee in another place and the noble and learned Lord, Lord Scarman, in his report both accepted that there was now a need for advance notice of all marches. Because the majority of organisers tell the police about their plans in advance, that does not dispense with the need for a statutory requirement to extend these arrangements to the irresponsible few. Judging from the support given to this proposal by the majority of commentators on the Green Paper, it seems unlikely that those who currently give advance notice will have any reason to object to a statutory requirement. It is no more than a formalisation of what most regard as good practice, which exists now. As for the definition, over which concern has been expressed. I can only say to the noble Lord, Lord Hutchinson, that the definition of "procession" in Clause 16 re-enacts that which has served us well for the past 50 years or so in Section 9 of the Public Order Act 1936.
It was suggested that the new powers to impose conditions on assemblies might be a serious erosion of civil liberties, and I shall deal with this at some length. I said in my opening remarks that it was nonsense to suggest that the provisions in Part II of the Bill were any threat to traditional democratic rights, including the right to march, demonstrate, or picket peacefully and lawfully. It was suggested that we should produce evidence to support the extension of the Public Order Act controls to static assemblies. This is set out in full 581 in the White Paper (paragraphs 5.1 and 5.2) but, briefly, between 1974 and 1980, of the 17 events in the Metropolitan Police district at which serious public disorder occurred, eight were processions, three were meetings and six were assemblies.
Since 1980, some of the most serious public order problems have been associated with static demonstrations, most notably of course during the miners' dispute. The Government therefore believe, like the Select Committee on Home Affairs, in the light of the major disorder associated with static demonstrations in recent years, that it is no longer acceptable that they should be completely exempt from the Public Order Act framework of controls.
But conditions are imposed on marches under the 1936 Act very rarely indeed, and we do not expect the powers with respect to assemblies to be used frequently. That is because the tests which need to be satisfied before conditions can be imposed are indeed tough ones. Most of the examples given of petty inconvenience occasioned by marches or assemblies would simply fail to satisfy those tests. Mere inconvenience and simple disturbance really will not be sufficient. The senior officer needs to form a reasonable belief, challengeable in the courts under the judicial review procedure, that a march or assembly is likely to result in serious public disorder, serious damage to property, serious disruption to the life of the community or the intimidation of individuals.
Of course, both the Government and the community at large accept that any demonstration will cause some disturbance and might annoy a few people. That is a fair price to pay for an important democratic freedom. As for the suggestion that the noble Lord, Lord Soper, might be moved on if there is a risk that a crowd of 20 attracted to a meeting would be likely to result in serious public disorder, the noble Lord, Lord Soper, who sadly is not here—he let me know that he has gone to alarm and harass some sinners—always speaks with particular conviction and wisdom, and I should have thought that, with his enormous power and following, he would be the last person to do anything likely to provoke serious public disorder. I should have thought, with the words he has at his command, that he was much more likely to be able to prevent it.
As to the question of relocating assemblies, the police cannot relocate an assembly merely because of the risk of some sort of disorderly conduct. Again, it comes back to the test of serious public disorder. The noble Lord, Lord Graham of Edmonton, gave a couple of examples and I shall, of course, explain them to him more fully in writing. He was basically correct, but since he is not here I shall not go into it in any more detail.
Advance notice was an important point raised by my noble friend Lord Broxbourne. Advance notice of assemblies is covered in paragraph 5.4 of the White Paper. The police do not want it, because they would he swamped with paper to little benefit. Taken over the country as a whole I am sure my noble friend will see the force of that argument. Equally, no government or the people it serves could accept that rights to demonstrate or protest are absolute and outweigh the rights of others to live their lives free 582 from violence and chaos. As I said earlier, there is a balance to be struck.
The evidence of the past decade or so is that there is perhaps, a growing willingness on the part of some to use violence or weight of numbers to secure their aims, and the serious disruption that the effective deployment of such numbers can cause, to prevent people from going about their business, or to force them to do what they have no wish to do. There is no clearer example than some of the disgraceful intimidatory tactics employed during the miners' dispute, but it is equally apparent in provocative marches by right wing extremists in areas of high ethnic concentration, or anarchist marches, like those designed to "Stop the City". At present, the police can act if a breach of the peace is occasioned or is imminent, or if an obstruction is caused. The Government believe that the citizen deserves greater protection than this and the police effective powers to prevent such mischief before it occurs.
It was suggested by the noble and learned Lord, Lord Elwyn-Jones, that perhaps advance notice should be given to the local authority and not to the police. The whole purpose of the advance notice provision is to ensure that those responsible for policing demonstrations and keeping the Queen's peace will be able to make proper plans. The local authority has no responsibility for maintaining public order. If they received advance notice they would only pass the information on to the police, so that I do not think it would do precisely what is intended. As to the question of judicial review, which was also raised by the noble and learned Lord, Lord Elwyn-Jones, the new statutory powers to impose conditions will need to be capable of exercise on the spot. Where the police can foresee serious disorder and disruption, they will be able to impose conditions in advance. The conditions imposed in this way will be subject to judicial review. But occasions will arise when the police need to divert a march on the day because of a bomb scare, a burst water main, or something of that kind, or to move an assembly.
Here again, there can be no immediate recourse to judicial review, but on occasion the organisers may wish to mount an action for judicial review after the event—for example, because they propose to organise a similar event in the future and fear that the police will impose similar conditions.
As to the matter of trial by jury, which was an important point also raised by the noble and learned Lord, in relation to Clause 14, the breach of conditions imposed under Section 3 of the Public Order Act 1936 is a summary offence with a maximum of 3 months' imprisonment or a £1,000 fine. We have adopted the same penalty for breaches by organisers and incitors of conditions imposed under Clauses 12 and 14. But, in relation to the rank and file, we have removed the power of imprisonment and have reduced the maximum penalty to a fine of £400.
Those are the right penalties for relatively minor summary offences. To introduce a right of trial by jury, we should have to consider increasing the penalty to one more appropriate for indictable offences. I do not believe that that is what the noble and learned Lord would want.
583 Before concluding, I should like to answer some of the important but disjointed comments that have been made—disjointed only because I have not been able to stitch them into the speech that I reckoned that I should probably have had to make. I shall need to study other points very carefully in Hansard later. I will begin with the noble Lord, Lord Hutchinson of Lullington, on the question of the definition of violence. I will simply say that this is a long and complex provision. We do not dispute that, but it is a provision that is the product of very careful thought as a result of undertakings in Committee in another place. I am sure that the noble Lord will recognise that we have reached the same conclusions as the Law Commission. Indeed, Clause 8 follows the Law Commission's draft Bill in that respect.
As to the question of violent disorder, and whether or not a threat could consist of words alone, the answer is that, yes it could—as long as they are so ferocious as to cause a person of reasonable firmness, if present, to fear for his personal safety. That may not fully satisfy the noble and learned Lord, Lord Scarman, but I suggest to him that it is a pretty strong test. I do not believe that he could sensibly hold that that word, which he did not actually tell the House, would on its own cause a person fear for his personal safety.
The noble Lord, Lord Hutchinson, asked, in relation to riots, whether or not the numbers found not guilty because they used violence in self-defence would affect whether or not the remaining number would still be guilty. No, they would not. The offence requires 12 people to be using or threatening unlawful violence. Self-defence is not unlawful, and so if four persons were found not guilty, there would be only eight persons using or threatening unlawful violence. That would be sufficient, but they would then be guilty of violent disorder.
My noble friend Lord Middleton asked for a specific assurance on whether or not the three tests would be sufficient in the case that he proposed. I can give my noble friend that assurance. It largely related to the matters to do with the so-called peace convoy that were raised by many noble Lords and to which I referred in my opening remarks. I said then that the Government are fully aware of the strength of feeling on those matters. We are considering whether the police need new powers or whether the law should be changed in some way.
Of the options that have been put to us, one is to extend Clause 14 to private land, and we shall look at that. However, I am not yet sure whether it would be effective in dealing with a convoy or that it would not catch those whom we do not want to catch. The example given in the letter from the NCCL to my noble friend Lord Boyd-Carpenter and to the noble Baroness, Lady Phillips, is something of a red herring. I am advised that, where the trespass affects only a single landowner, that is most unlikely to be a sufficient mischief to pass the threshold established by the test of serious disruption to the life of the community. The test is far stiffer than that.
There are other options, including a new offence of some form of trespass. We are looking at all the options and we are consulting widely on them, but it 584 would be wrong of me to pre-empt that consideration and those discussions at this stage. We are alive to the difficulties and I hope I shall be able, as I said earlier, to give a clearer indication of our thinking on this very important matter during the Committee stage. The remarks that have been made by your Lordships today will of course be taken fully into account in considering precisely where we go.
On the point raised towards the end of the debate by my noble friend Lord Montagu of Beaulieu, the powers in Clause 14 certainly do extend to English Heritage land at Stonehenge, which is a public place, for the purposes of Clause 16, but the powers do not extend to any other land there to which the public have no right or permission of access. However, I note the very serious points which my noble friend raised about the heritage and I can assure him that we will not lose sight of the point that he raised.
The noble Lord, Lord Dunleath, in citing his experiences in Northern Ireland, asked whether or not there was any hope of extending this Bill, or something similar to it, to Northern Ireland. I can say that I understand my right honourable friend the Secretary of State for Northern Ireland will be reviewing the law there in the light of the passing of this Bill. I hope that will satisfy the noble Lord.
The right reverend Prelate the Bishop of Rochester and others asked about guidance to the police and about codes of practice. The Home Office will issue a circular to the police about the Bill. It will remind the police of the importance of the traditional rights of free assembly and the European Convention on Human Rights. A copy of the circular will be placed in the Library. I can accept that the police should be reminded of these points by way of a Home Office circular but not that we should attempt to bind the police rigidly, in the judgments which they have to make, through the issue of some statutory code or other restrictions. I understand the force of the right reverend Prelate's arguments and those of the noble and learned Lord, Lord Elwyn-Jones, but I believe that our proposals are the best way to proceed. Your Lordships will no doubt comment on that circular when it is placed in the Library.
I turn now to two matters raised by my noble friend Lord Boyd-Carpenter—Wapping and the anti-nuclear protestors. All responsible people will deplore the violence and disorder seen at Wapping. Over 330 police officers have been injured during the dispute. It is clear that some demonstrators have come prepared for, and have been intent on, violence. I am sure we all agree that that is wholly unacceptable. The Bill's provisions may go some way towards helping the police in such situations, particularly those provisions relating to the control of public assemblies. However, the way forward in this particular dispute lies in sensible co-operation between the police and the organisers of the demonstrations to reduce disorder and prevent violence, which only the troublemakers want.
Regarding the anti-nuclear protesters, the Government recognise their valued right to peacefully demonstrate, but we certainly condemn the wholesale flouting of the law and the frequent acts of criminal damage which have occurred, particularly at some 585 military bases. Again, the Bill's provisions may be of some help to the police with the new powers that it provides for the control of static demonstrations.
The Government believe it is essential that our public order framework is made adequate to deal with the public order problems that arise today, and flexible enough to cater adequately for changes in the law. That is the purpose behind this measure. The Public Order Act 1936 has done its job for 50 years and on the whole has done it well. The common law public order offences are of even greater antiquity. This Bill will bring both up to date and will give the police the powers they need. I agree with my noble friend Lord Peyton and others that they deserve our full support.
In Part I of the Bill we are concerned to ensure that there is a range of public order offences to deal with everything, from petty hooliganism which eats away at the tranquility of people's lives to riots where groups of people use ferocity and violence to effect their common purpose. We have been concerned that these offences are clearly stated in a language which can be understood by layman and lawyer alike.
In Part II of the Bill we have kept firmly in mind the need to strike a balance between the rights of those who wish to demonstrate and the interests of the wider community. We will be providing the police with effective preventive powers.
In Parts III and IV we are dealing with specific mischiefs that plague our modern society. Football hooligans and racists intent on stirring up hatred and disorder have few friends anywhere and none in your Lordships' House.
There is a common thread which runs through this Bill. It has been clearly spelt out by my noble friend, Lord Beaverbrook, and it is that the liberties we all cherish can only be enjoyed when there is order in society. No one doubts the value to a democratic society of plurality of views; of the freedom to assemble to protest against the decisions of Government or others; or of the simple capacity to seek to persuade others to a point of view. Here, I agree with the noble Lord, Lord Dunleath, and the noble and learned Lord, Lord Denning. But such rights are an illusion unless they are underpinned by respect for others and other people's rights not to demonstrate, or to stick to their own views, or simply to go about their business in peace. So, like the noble and learned Lord, Lord Denning, and my noble friend Lord Beloff, I viewed the ideas of the noble and learned Lord, Lord Scarman, for an alternative society with great dismay and not a little sorrow.
There is no special virtue attached to collecting together in groups, whether as a picket or a demonstration, that confers special rights and privileges on those who do so, so that they can ride roughshod over the right of the individual to live his life as he wishes. 586 Freedom can never be the excuse for tyranny of the individual by the mob. Good order is the guarantor of freedom because it preserves a balance of rights. On that basis I commend the Bill to your Lordships.
§ Lord Mishcon
My Lords, before the noble Lord the Minister sits down may I rectify an omission of which I am guilty? I was charged by my noble and learned friend Lord Elwyn-Jones to apologise to your Lordships for his absence from the closing speeches because he had important public duties to fulfil outside London.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.