Public Order Bill

HL Deb 06 October 1986 vol 480 cc9-109

2.58 p.m.

The Earl of Caithness

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

It may be for the convenience of the House if I say a few words about the handling of Part III of the Bill. Part III, as your Lordships will be aware, deals with incitement to racial hatred. As my noble friend Lord Glenarthur explained to the House at Second Reading, the Government agreed during proceedings in another place to amend that part of the Bill so as to extend its provisions to broadcasting and to other media. That concession—and it was a concession to the arguments put forward by the Opposition—proved very difficult to draft. Indeed, it required radical redrafting of the whole part of the Bill, with the result that the amendment was not published until last Wednesday.

I understand that noble Lords on the Front Benches opposite would like more time to consider the amendments we have proposed. I should therefore like to suggest that, if the House agrees, we consider the Government's amendments formally today so that for ease of subsequent handling they may be written into the Bill, but that to give the House further opportunity to reflect on the amendments we recommit Part III of the Bill and take the recommitment immediately before we begin the Report stage. I beg to move.

Moved, That the House do now again resolve itself into Committee—(The Earl of Caithness.)

Lord Mishcon

My Lords, perhaps I may at once express—

The Lord Chancellor

My Lords, I must first put the Question. The Question is that the House do now again resolve itself into Committee on this Bill.

Lord Mishcon

My Lords, I was interrupted in the middle of a non-controversial statement. It was to thank the noble Earl for his suggestion, which we readily adopt on our side. Indeed, I am sure he would agree that for any other procedure to be adopted and for us to attempt to take Part III today would make a mockery of the Committee stage. I am grateful to him for his suggestion.

Lord Tordoff

My Lords, may I support that? The fact that it is a concession to Opposition approaches earlier in the Bill does not necessarily mean that it is always a concession that will be accepted. The wording does have to be looked at, particularly when an amendment reaches six or seven pages in the Marshalled List. I hope that there will be opportunity between the recommittal and the appropriate part of the Report stage, if necessary, for further amendments to be put down. I think that a look at the timetable may be necessary to achieve that. But we are grateful for this change in the Government's thinking.

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD NUGENT OF GUILDFORD in the Chair.]

Clause 12 [Imposing conditions on public processions]:

Lord Elwyn-Jones

moved Amendment No. 36: Page 8, line 10, after ("disorder") insert ("or"). The noble and learned Lord said: Clause 12 of the Bill imposes conditions on public processions. Public processing has been over the ages an important part of our democratic process. Clause 12(1) of the Bill provides: If the senior police officer, having regard to the time or place at which and the circumstances in which any public procession is being held or is intended to he held and to its route or proposed route, reasonably believes— (a) it may result in serious public disorder, serious damage to property or serious disruption to the life of the community, he may, in those circumstances, give the directions indicated in the clause.

We on this side of the Committee have no objection to the imposition of conditions in circumstances where the proposed procession may result in serious public disorder or serious damage to property, but we object to the addition of the words: or serious disruption to the life of the community". This Bill is about public order and those words—that provision—go far beyond the requirements of public order. The real mischief is set out in the previous words: public disorder [or] serious damage to property". They remain. They are the real mischief that should be legislated against and we submit that they are adequate to deal with the very mischief at which the Bill is aimed. The word "disruption" which is introduced in the clause appears to be a new word in English statutory law—at least as far as I recollect—and I ask: what does, serious disruption to the life of the community", precisely mean? Does any temporary traffic disturbance or diversion come within that context? It is not clear what is aimed at; and that which is obscure should be no part of public order legislation.

We propose other linked amendments. Amendment No. 36, which I am moving, and Amendment No. 37 go together; and Amendment No. 38B leaves out the word "disruption". The phrase, serious disruption to the life of the community", occurs again in Clause 14(1)(a) and, accordingly, Amendments Nos. 48AA and 48AB propose leaving out those words.

This matter can, I think, be dealt with briefly, but it is of major importance. I hope that we may hear acceptable noises from the Front Bench. It would be an admirable initial gesture on the part of the Government Front Bench and, indeed, an admirable gesture on the part of the noble Earl if he were to say, "Yes, indeed" to this amendment. I beg to move.

Lord Denning

Perhaps I may propose that the words remain and that we reject the proposed amendment. I can illustrate the point by referring to the sometimes long and tedious processions which obstruct the traffic and life of the community. A little while ago I hired a cab to take me from Lincoln's Inn to Victoria Station and allowed 25 minutes for the purpose. But, lo and behold, when we got towards Whitehall there was going along a procession of indefinite length, and I missed my train. Surely that is, serious disruption to the life of the community", and it is a very good thing that those words should be kept in the Bill as they are now.

Lord Hutchinson of Lullington

I should like to support this amendment and I should like to take the opportunity also from these Benches to welcome the noble Earl to his baptism of fire, and water, perhaps—a baptism normally involving the use of the purest form of water. But I am afraid that there is a lot of brackish water in this Bill and I hope that he will not be tempted to drink of it.

I say at once that I express my sorrow that the noble and learned Lord, Lord Denning, missed his train, but I am sure that he would have missed his train equally had there been a royal procession on that particular day, or had there been a head of government visiting on that particular day. If I may say so, that illustrates the danger of the words which are being used in this clause at the moment.

What does the phrase, serious disruption to the life of the community mean? What is it that amounts to a, serious disruption to the life of the community"? In this Bill the person who judges that will be a police officer who will make a clearly subjective judgment upon something on which he is in no better position than anyone else to make the judgment. It involves an assessment of values. What values will he apply? It will depend, will it not, in reality on the area in which he is operating? In his own community, it will be all right to have a serious disruption for some purposes in the East End of London or in Toxteth, but not for the same purposes, perhaps, in Mill Hill or in South Kensington.

The likelihood is that the values will be the values of a middle-class, respectable section of the community, and the police officer will be under the greatest possible pressure in his locality to impose this sort of condition on these processions because it will be a pressure from the type of person who happens to live in that particular community. I would suggest that we cannot place and determine the limits of free speech and assembly on values such as that and on subjective judgments such as those.

When one realises that the powers of the police officer which are set out in the next few lines of the clause allow him to give directions such as appear to him to be necessary to prevent whatever disruption he may foresee in any conditions—not the limited conditions that appear in this Bill but any conditions that appear necessary—one sees that the situation is that the officer makes a subjective judgment as to whether what is happening is in fact disrupting the life of the local community. If the officer decides that this is the case, he can then impose any conditions he likes which appear to him to be necessary. I suggest that when one puts these words in the context of the rest of this clause and sees the powers placed in the officer's hands, one realises that they are far too broad and that the only real answer here is to remove these powers from the clause.

Lord Campbell of Alloway

I take the point of the noble and learned Lord, Lord Elwyn-Jones, that serious disruption goes beyond what is ordinarily understood as being within the ambit of public disorder, or that it may well do so. However, Amendment No. 36 with its grouped amendments, if carried, would nonetheless remove an important proposed safeguard for the reasonable enjoyment of the amenities of life in any community which attracts a public procession. Notably, of course, these will be the densely populated urban communities. As to the point taken by the noble Lord, Lord Hutchinson of Lullington, concerning the words, as appear to him necessary", surely that is the subject of the next set of grouped amendments and perhaps it should be dealt with then.

Serious disruption to the life of the community without any serious public disorder or without any damage to property at all could arise in the context of the closure of roads to traffic (as was mentioned by the noble and learned Lord, Lord Denning), shopping facilities, means of access to private houses, the loss of trade to business premises and so forth. It is reasonable in this day and age that the senior police officer should be in a position to give appropriate directions to ensure that there should be no serious disruption to the life of the community. I take the validity of the point raised by the noble and learned Lord, Lord Elwyn-Jones, but surely this is an appropriate occasion upon which to make this extension by way of safeguard.

3.15 p.m.

The Earl of Caithness

I step up to the Dispatch Box with great trepidation to reply on matters of law when I am a non-lawyer and face such formidable opposition and when many of the points which we are to discuss will be technical, legal points. Unfortunately, like my noble friend Lord Glenarthur, I do not speak Latin or Welsh and if the noble and learned Lord bursts into that language I am afraid he will leave me even further behind than I shall be in any case.

The noble and learned Lord, Lord Elwyn-Jones, ably followed by the noble Lord, Lord Hutchinson of Lullington, explained that the purpose of these amendments is to remove the serious disruption test from Clauses 12 and 14. This test is one which was proposed originally by the Select Committee on Home Affairs in another place in paragraph 26 of its report on the law relating to public order. It explained graphically in the preceding paragraph of the report the necessity for such a test as follows: It is clear that … the number and size of marches frequently occasions considerable inconvenience and delay which affect businesses, public transport and the general life of the community. We were told, for example, by the Metropolitan Police that a fairly average procession of 2,500 people will take some 15 minutes to pass a given point, and since traffic congestion clears much more slowly than it builds up the resultant jams would take about an hour to disperse. In the words of their submission: 'Imagine the number of aeroplanes and trains missed, business appointments spoilt and social arrangements completely ruined. Bear in mind also the bus passengers waiting for an hour or so in the confined space of one bus crawling along the road' ". With regard to buses, my noble friend Lord Teviot can, I know, elucidate further, but we have been given examples of traffic jams by the noble and learned Lord, Lord Denning.

The Government accept that most, if not all, demonstrations, whether processions or assemblies, will cause inconvenience and perhaps annoyance to some and a degree of disruption. That is inevitable and a small price to pay by the wider community for the exercise of an important freedom. But it seems wrong to derive from this an argument that the police should have no powers to re-route a procession or relocate an assembly in order to limit traffic congestion or to prevent a bridge from being blocked. Some demonstrations, through their size or location, can cause unnecessary and severe dislocation to those who live and work in the areas affected. We believe the police should be able to deal with this.

Both the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Hutchinson, asked what "serious disruption" means. The noble Lord, Lord Hutchinson, said that it was for the senior officers to decide. That is true, but it is also open to challenge and it will be a matter for the courts to determine if police conditions are challenged. We gave some examples in the White Paper of the provisions' possible use: to discourage marches being held through major shopping areas on Saturdays or through city centres during the rush hour. We believe that the police should have power to re-route a march which threatens to bring a city centre to a standstill. Some demonstrations, such as the "Stop the City" demonstrations in London and Leeds in 1983 and 1984, have the explicit purpose of seriously disrupting the community. Marchers and protesters will still have the right to bring their views to the notice of their fellow citizens, but not at the expense of preventing them from going about their business.

The Government therefore agreed with the Select Committee that a new test was required. They also agreed that this should be a balanced test; mere inconvenience or annoyance will not suffice to satisfy it. There must be disruption which has to be serious before the police can intervene. To suggest, as these amendments do, that the police should have no powers in this respect is to propose that the rights of the minority to demonstrate and protest outweigh the rights of others, the majority, to go about their normal lives. That imbalance goes against the grain of the whole purpose of the Bill, which is to provide the police with adequate powers to work with organisers of large public marches or assemblies in ensuring that their demonstration passes off smoothly and with the minimum of disruption to the rest of the community.

It is a keynote of sensible public order policing that the police strive at every demonstration to work as much as possible with the organisers and through the organisers rather than against them. It is only when discussions break down, which happens extremely rarely, that resort to conditions should be necessary. But when that happens, and demonstrators insist on broadcasting their message by inflicting unnecessary disruption on the lives of others, then we believe that the police should have powers to intervene. We hope that these powers will seldom be used; but we certainly believe they are necessary.

Lord Elwyn-Jones

I regret that in his maiden speech in his new office the noble Earl was not able to meet us. The amendment would give to the senior police officer the power to give the relevant directions if he believed that the proposed procession would result in serious public disorder or serious damage to property. The right to process and the fact of processing have been features of the democratic life of this country through the ages. It is a way in which the public can express its point of view, quite apart from public meetings. Any restriction of this right on the say-so, however responsible, of a senior police officer who imposes, such conditions as appear to him necessary is a serious incursion into an important aspect of civil liberty.

The words, serious disruption to the life of the community", are words new to the law, as I recollect and understand it, and are an excessive reaction to the occasional obstruction of a person (if the noble and learned Lord, Lord Denning, permits me), however eminent, whose obstruction might be regarded by some as in itself a serious disruption to the life of the community. But that might not necessarily be regarded as a universal point of view.

Therefore, I seriously invite the Committee to consider that if we go on this road it is a dangerous road. It is a concept not hitherto embodied in our law. It is an excessive conferring of what might well prove to be an embarrassing power on a senior police offficer. Accordingly, as it would seem that the Government are not giving way on this, I invite the Committee to express its view upon the matter.

3.20 p.m.

On Question, Whether the said amendment (No. 36) shall be agreed to?

Their Lordships divided: Contents, 81; Not-Contents, 95.

DIVISION NO. 1
CONTENTS
Amherst, E.	Graham of Edmonton, L.
Ardwick, L.	Grimond, L.
Attlee, E.	Hanworth, V.
Aylestone, L.	Hooson, L.
Banks, L.	Houghton of Sowerby, L.
Bernstein, L.	Hunt, L.
Blease, L.	Hutchinson of Lullington, L.
Blyton, L.	Jenkins of Putney, L.
Bottomley, L.	Kearton, L.
Brockway, L.	Kennet, L.
Bruce of Donington, L.	Kilbracken, L.
Carmichael of Kelvingrove, L.	Kilmarnock, L.
Cledwyn of Penrhos, L.	Leatherland, L.
Collison, L.	Llewelyn-Davies of Hastoe, B.
David, B.	Lloyd of Hampstead, L.
Dean of Beswick, L.	Lloyd of Kilgerran, L.
Diamond, L.	McNair, L.
Donaldson of Kingsbridge, L.	Mais, L.
Elwyn-Jones, L.	Mayhew, L.
Ewart-Biggs, B.	Mishcon, L.
Falkland, V.	Molloy, L.
Fitt, L.	Morton of Shuna, L.
Flether, L.	Nicol, B.
Gallacher, L.	Oram, L.
Gladwyn, L.	Paget of Northampton, L.

Parry, L.	Stewart of Fulham, L.
Phillips, B.	Stoddart of Swindon, L.
Ponsonby of Shulbrede, L.	[Teller.]
[Teller.]	Strabolgi, L.
Rathcreedan, L.	Taylor of Blackburn, L.
Rea, L.	Taylor of Gryfe, L.
Reilly, L.	Tordoff, L.
Ritchie of Dundee, L.	Tweeddale, M.
Roberthall, L.	Underhill, L.
Ross of Marnock, L.	Wallace of Coslany, L.
Sainsbury, L.	Walston, L.
Seear, B.	Williams of Elvel, L.
Serota, B.	Wilson of Langside, L.
Silkin of Dulwich, L.	Wilson of Rievaulx, L.
Simon, V.	Winstanley, L.
Stallard, L.	Winterbottom, L.
Stedman, B.

NOT-CONTENTS
Ampthill, L.	Lauderdale, E.
Annan, L.	Long, V.
Auckland, L.	Lucas of Chilworth, L.
Beaverbrook, L.	Luke, L.
Belhaven and Stenton, L.	McFadzean, L.
Beloff, L.	Macleod of Borve, B.
Belstead, L.	Malmesbury, E.
Bessborough, E.	Mancroft, L.
Boyd-Carpenter, L.	Margadale, L.
Brabazon of Tara, L.	Merrivale, L.
Brougham and Vaux, L.	Mersey, V.
Butterworth, L.	Middleton, L.
Caithness, E.	Monson, L.
Campbell of Alloway, L.	Moran, L.
Cawley, L.	Morris, L.
Cottesloe, L.	Munster, E.
Cullen of Ashbourne, L.	Newall, L.
Davidson, V. [Teller.]	Norfolk, D.
De Freyne, L.	Nugent of Gulidford, L.
Denham, L. [Teller.]	Orkney, E.
Denning, L.	Plummer of St Marylebone,
Derwent, L.	L.
Dundee, E.	Porritt, L.
Effingham, E.	Radnor, E.
Elliot of Harwood, B.	Reay, L.
Enniskillen, E.	Rodney, L.
Faithfull, B.	St. Davids, V.
Fraser of Kilmorack, L.	Sandford, L.
Gainford, L.	Seebohm, L.
Glanusk, L.	Shannon, E.
Glenarthur, L.	Skelmersdale, L.
Gridley, L.	Somers, L.
Hailsham of Saint	Stanley of Alderley, L.
Marylebone, L.	Strathcarron, L.
Halsbury, E.	Strathcona and Mount Royal,
Hayter, L.	L.
Henderson of Brompton, L.	Strathspey, L.
Hesketh, L.	Sudeley, L
Hives, L.	Teviot, L.
Hood, V.	Thorneycroft, L.
Hooper, B.	Trenchard, V.
Hylton, L.	Trumpington, B.
Hylton-Foster, B.	Vickers, B.
Ironside, L.	Vivian, L.
Jessel, L.	Ward of Witley, V.
Kinloss, Ly.	Westbury, L.
Kinnoull, E.	Whitelaw, V.
Knollys, V.	Young, B.
Lane-Fox, B.	Young of Graffham, L.

Resolved in the negative, to accordingly.

3.28 p.m.

[Amendment No. 37 not moved.]

Lord Hutchinson of Lullington

moved Amendment No. 38: Page 8, line 18, after ("as") insert ("reasonably"). The noble Lord said: This amendment suggests that the word "reasonably" is inserted in Clause 12 in the following manner. As we saw when discussing the last amendment, the relevant police officer has powers to give directions imposing on the persons organising or taking part in the procession such conditions as appear to him necessary to prevent disorder, damage, disruption or intimidation. This amendment seeks to insert the word "reasonably", so that the sentence would read: such conditions as reasonably appear to him necessary". I say at once that the next amendment in the name of the noble Lord, Lord Monson, which suggests that the words to be inserted should be: he with reasonable cause believes to be", is another way of saying the same thing. If the Committee thought that those words were more acceptable, we should be perfectly prepared to accept them.

As I have already said to the Committee, as drafted the power given to the police officer is quite unlimited. He may impose any conditions which in his opinion are necessary in the circumstances. It must be obvious to anybody reading these words that such a power can amount quite easily to a power to ban the procession altogether so far as its purpose is concerned. If the purpose of the procession is to make a protest in a certain area or in front of a certain building, by imposing a condition that you may not pass such and such a building or you may only go down such and such a road you can render the whole procession pointless. That would amount to a ban on the procession. I suggest to the Committee that the word "reasonably" is an important one which should come in at this point in the clause.

Another reason for putting in the word is that it would involve an appeal to the judges and would enable the Divisional Court to go not into the merits of the condition itself—which it would not be prepared to do—but to discuss and decide whether the condition was legal or illegal, rational or irrational or whether it was in fact improperly imposed. The court on appeal would not go into whether it was sensible to go down one road or another road—it would not possibly discuss such a question—but if the word "reasonably" is inserted it would be possible to appeal against the condition on that basis. I suggest that it is therefore doubly important to put the word into the clause.

If the Committee looks carefully at Clause 12 it will see that the word "reasonably" appears earlier in it. The clause reads: If the senior police officer, having regard to the time or place at which and the circumstances in which any public procession is being held or is intended to be held and to its route or proposed route, reasonably believes that—

1. (a) it may result in serious public disorder".

So in making the original decision he has to believe reasonably that it will amount to some form of disorder. If that is the view taken, surely it is equally important that, having formed the reasonable suspicion, the condition which he makes equally should be a reasonable one. The purpose of the amendment therefore is to limit the power of the officer to any condition which would reasonably appear to be necessary in all the circumstances. I beg to move.

Lord Elwyn-Jones

I rise to—

The Lord Chancellor

I am so sorry. I was only trying to sort my papers into some kind of order.

Lord Elwyn-Jones

I thought that we were going to have the benefit at an early stage of the noble and learned Lord's lucubrations.

I rise to support the amendment. It is necessary to ensure that any conditions which a police officer imposes are objectively justifiable rather than risk that they may be merely the result of a whim or caprice on the part of the officer. The curious thing, as the noble Lord said in moving the amendment, is that in other clauses the word "reasonably" appears. As the noble Lord pointed out, the word actually appears in Clause 12 itself. Clause 13(1) provides: If at any time the chief officer of police reasonably believes that, because of particular circumstances existing in any district or part of a district". So we have the reasonable belief—the objective test in other words—appearing there. Again, lo! and behold, in Clause 14 we find the same formula. It provides: If the senior police officer … reasonably believes". Therefore there is a recognition of the need for objectivity as a test in this matter, and it would provide both consistency and good sense for it to be included as the amendment proposes.

Lord Campbell of Alloway

On analysis, surely Amendment No. 38 could negative its own purpose. Could it not water down the safeguard in the Bill as drafted? Surely this is how it would happen. If directions given were such that no senior police officer acting reasonably within his statutory duties could have given directions, they would be set aside by the Divisional Court irrespective of whether or not the directions appeared to him to be reasonable. The amendment seeks to import a subjective test which will derogate from that safeguard of the objective test, using the concept, as the noble and learned Lord, Lord Elwyn-Jones, put it, of what is objectively justified.

As the noble Lord, Lord Hutchinson, remarked, Amendment No. 38A says much the same thing. Although it is true that in other parts of the Bill a subjective test is imported, maximum security is achieved by retaining the objective test which would be applied by the Divisional Court irrespective of the belief, which is subjective, of the police officer who gave the directions. I support the spirit behind the amendment; but, with respect, it does not seem to achieve its purpose.

Lord Denning

I hope that the Committee will not accept the amendment. There is a short distinction in point of law. If the statute speaks about "reasonable belief", that decision can be challenged by process of judicial review in the law courts. The process of judicial review is well established. When it only applies to what appears to the individual, that is the state of mind of him and cannot in the ordinary way be challenged by the process of judicial review. Surely this process of judicial review has gone quite far enough of late in the courts. We do not want it to go any further, and I should have thought that it is quite unnecessary to allow a judical review as to the conditions to be put in. In other words, I feel that the Bill is perfectly good as it stands and there is no need for this amendment.

Lord Somers

The amendment would result in very bad English if inserted. Surely the Bill should read: as appear to him to be reasonably necessary. Apart from that, why should we always assume that the police are going to be unreasonable unless we take very great care that they are not? In my experience, the very reverse is the case. Public order is in such a precarious position at present that I should have thought it a great mistake to put anything in the Bill which would put any curbs on police discretion. Therefore, I oppose this amendment.

Lord Monson

It may be for the convenience of the Committee if I speak now to Amendment No. 38A, which, as the noble Lord, Lord Hutchinson, pointed out, tries to achieve the same objectives but with slightly different wording. I take this opportunity to add my congratulations to the noble Earl on his appointment.

Amendment No. 38 provides for a wholly objective test, whereas Amendment No. 38A produces a slight element of subjective judgment. I have no particularly strong feelings either way. Amendment No. 38A was suggested by the NCCL, for what that is worth. It is worth pointing out that during the Standing Committee stage on this Bill in another place the Minister apparently accepted that objectivity is a necessary and sensible requirement.

3.45 p.m.

The Lord Chancellor

I am grateful to those noble Lords who have played a part in this debate. I must tell the noble Lord, Lord Hutchinson, and also, with respect, the noble and learned Lord on the Opposition Front Bench, that in the view which certainly I have formed, and the Government have formed, the amendment involves a serious constitutional solecism. The Bill as it stands, without the amendment, already achieves the purpose which, if I understand him correctly, the noble Lord, Lord Hutchinson, desires to achieve but without committing that solecism.

Broadly speaking, I would back up what my noble friend Lord Campbell said on the subject, and I endorse what was said by the noble and learned Lord, Lord Denning. The point is this. As the Bill stands, unamended, the whole of Clause 12, although not in exactly the same degree, is subject, at least in my opinion and that of the Government, to judicial review. That is a process which, as the noble and learned Lord, Lord Denning, has pointed out, has already made a great deal of progress in the past 20 to 30 years, from the time when the noble and learned Lord, Lord Elwyn-Jones, and I were happy young juniors.

The amendment raises a serious constitutional issue which I do not think was perceived by the noble Lord, Lord Hutchinson. In a recent case, the late Lord Diplock said that it cannot be too strongly emphasised that the British constitution, though largely unwritten, is firmly based—is still firmly based I would have added—on the separation of powers. The way in which the courts have worked that out in relation to judicial review exactly takes account of that important distinction.

In order to elaborate the point—and I do so with due modesty—I must quote the authority of the case in which I had the honour to sit in my judicial capacity. The leading judgment, which I endorsed, was given by my noble and learned friend Lord Brightman. He said: Judicial review, as the words imply, is not an appeal from a decision but a review of the manner in which the decision was made.". I think that very succinctly puts the point, which I also made in the course of my speech and judgment on that case.

That was quite correctly stated, as I understood him, by the noble Lord, Lord Hutchinson, in his opening speech. The point of demarcation is that the court will never, even now after 20 or 30 years of judicial review, substitute its own judgment for the judgment of the executive as to what is right and what is wrong as a matter of fact. However, it will interfere—and I accept that it is right to interfere—in three instances. Those were set out by Lord Diplock in another case—a case which is familiar to many noble Lords more in a political than a legal context—when he outlined quite plainly the three sets of circumstance in which the Divisional Court will intervene between the executive and the subject, or the aggrieved group of subjects.

I shall summarise, because it is a long passage, what was said by Lord Diplock. It was to the effect that although the court will never substitute its own judgment for that of the executive officer whose conduct is under review, whoever he may be, it will examine what he has done and reverse or vary his judgment on any one of three grounds. One ground is irrationality. Irrationality does not mean a judgment as to whether he was right or wrong in imposing, in this instance, particular conditions, but irrationality in the sense of whether a reasonable person in the office which the executive officer held could conceivably have come to the decision that he came to. That is rather compendiously known, in the jargon of the trade, as Wednesbury conditions. That refers to the name of the case where the doctrine was initiated.

The second ground is procedural impropriety. That, of course, is virtually the same thing as has developed under a rather different system in European law under the general doctrine of détournement de pouvoir or abus de pouvoir.

Thirdly, of course, there is illegality itself. This means either that the officer in question exceeded the powers which he was given by Parliament or took into account—not necessarily dishonestly but, of course, including dishonestly—factors which were irrelevant to the exercise of the power; or refused to take into account factors which were manifestly relevant—the illegality, procedural impropriety and irrationality.

As the Bill stands, judicial review on those grounds already exists under the clause sought to be amended. The relevant place—about which the noble and learned Lord rightly reminded us, and I believe that the noble Lord, Lord Hutchinson, also rightly reminded us about it—where the word "reasonably" occurs is as to the state of mind of the officer at the beginning of the whole process, whether he reasonably considers that there is a state of public disorder.

I am afraid that I have been a little technical about this matter, but there are times when pedantry is a virtue and not a vice. I should respectfully say to the noble Lord, Lord Hutchinson, and to those who support him that, broadly for the reasons given by my noble and learned friend Lord Denning and by my noble friend Lord Campbell of Alloway, this amendment is unnecessary to achieve the purpose which I think the noble Lord, Lord Hutchinson, had in mind and, if it were passed, it would create a constitutional solecism. I hope for that reason, and without in any way criticising the motives underlying it, that will perhaps on reflection lead the noble Lord not to press his amendment.

Lord Hutchinson of Lullington

Before he sits down, I wonder whether the noble and learned Lord can help us on the constitutional position that he has set out. Twice in this clause the police officer has to make a decision. The first time he has to make a decision as to his belief: does he believe that the procession may result in serious public disorder? If he does, is his belief reasonable?

As the noble and learned Lord said, that decision would be subject to judicial review. Having made that decision, the police officer then has to go on to make the crucial decision as to whether he should impose a condition on the procession and, if so, whether that decision is necessary. Will the noble and learned Lord explain to the Committee why, if the decision that he makes is one that results in the total banning of the purposes of the procession and one which would appear to any reasonable person as irrational and improper in that it has set at nought the whole purpose of the procession, it should not be subject to judicial review just as much as his original belief as to whether there was going to be disorder? I suggest that it would appear to most people that this second decision is the crucial one.

The Lord Chancellor

I do not need to have not sat down in order to reply to that point because we are in Committee. I start by explaining that because I shall have to repeat some part of what I have said. The second, and what the noble Lord describes as the crucial—I should have said not the only crucial—decision which the police officer must have arrived at is already subject to judicial review as the Bill stands. It is subject to judicial review in the three sets of circumstance which I sought to summarise from Lord Diplock's judgment.

One of those is irrationality, but it means, as I tried to explain but no doubt failed to do so with adequate clarity for the noble Lord, what is called Wednesbury irrationality; namely, that no reasonable person in the position of the police officer concerned could conceivably have arrived at the decision. That is what it means in the second, and what the noble Lord, Lord Hutchinson, has referred to as the crucial decision, whether he is right or wrong about its being the only crucial decision.

In the first state of mind which the court may have to consider on judicial review in subsection (1) the word "reasonably"—the subjective test—is deliberately inserted because it is that which starts the officer off on his course. Although the court is not entitled to substitute the police officer's ultimate decision on the operational conditions to be imposed on the procession, and would not wish to do so because of the separation of powers, in the first set of circumstances contained in subsection (1) in the Government's view the court would be entitled, without substituting its own operational decision on what was actually to be done in the circumstances, to inquire as to whether the subjective state of mind of the police officer was reasonable or unreasonable.

It seems to me that we have the balance here exactly right and that that balance would be upset if we were to accept the amendment. It is for that reason—and although I expressed it in somewhat different words I believe that I was getting at the same point—that I supported what was said by way of criticism by my noble friend Lord Campbell of Alloway and my noble and learned friend Lord Denning.

Lord Hutchinson of Lullington

I must say in this slightly David and Goliath situation that I am not totally convinced, although I say that with the greatest possible trepidation. Having stirred up this enormous constitutional hornets' nest by what appeared to be on the face of it a very simple amendment which inserted one word into a long clause, at this stage I do not think it would be sensible or wise to divide the Committee, but I may come back to the matter at a later stage when I have looked further into the depths of the nest.

The Lord Chancellor

Out of courtesy I should have said to the noble Lord, Lord Monson, that I did not deal with his amendment separately because I think that it achieves the same object and there is no rational distinction between the two amendments.

Amendment, by leave, withdrawn.

[Amendments Nos. 38A and 38B not moved.]

Viscount St. Davids moved Amendment No. 39:

Page 8, line 22, at end insert— (" ( ) A condition which may be imposed under subsection (1) above is that no person taking part in the procession shall be dressed in such a manner as to disguise his identity.").

The noble Viscount said: I move Amendment No. 39 and speak also to Amendment No. 50 which goes with it. This point is a bit of a novelty. It is one which has a certain amount of support. If a man marches in a procession it is because he is signifying his opinion by the presence of his face that the purpose of the procession is right. He is doing so just as much as if he were writing a letter to The Times and signing it with his name. An anonymous letter written to The Times would not have the same effect. It is the man showing himself and saying, "Here am I", which demonstrates the honesty of the purpose.

If someone is marching in a procession with a masked face he is saying that he does not have the proper purpose of the procession in mind; he has a totally different purpose, which is a bad one. I therefore think that we have every right to say that people who march in such processions should show their faces. When a man covers his face he is saying, "I am about to do a bad act." That at once throws suspicion on him.

This amendment is also some protection for those who organise processions. They have honest purposes. If people marching in a procession have their faces covered, they are not there for the purpose of the procession. They may very well be there for the purpose of disrupting it. Many processions in recent years have been damaged by people entering the procession for totally different purposes to those that the organisers of the procession intended—people who were there for the sole purpose of destroying the procession. This amendment will be valuable in revealing the bad man before he manages to do any harm and in protecting the honest procession from the dishonest man who wishes to destroy it. I beg to move.

4 p.m.

Lord Silkin of Dulwich

On this side of the Committee we have a good deal of sympathy with the objective behind the amendment moved by the noble Viscount. It will be seen from the second part of Amendment No. 39A and a subsequent amendment to another clause that my noble friends and myself have put down proposals very much along the lines of Amendment No. 39. However, the amendment to which I wish to address myself contains two separate parts. It looks back to the provisions of the Act of 1936. It seeks to introduce into the present Bill wording that is in line with the provisions of the 1936 Act. The first paragraph deals with the display of flags and banners. This is not a point with which the noble Viscount deals in his amendment. We feel, however, that it would be logical to put these matters into an amendment that deals with disguise.

Section 3 of the 1936 Act which deals with processions and is in similar form to the clause with which the Committee is now dealing, contains the proviso that, no conditions restricting the display of flags, banners or emblems shall be imposed under this subsection except such as are reasonably necessary to prevent risk of a breach of the peace". That part of Amendment No. 39A dealing with flags, banners and emblems is in similar form except that, instead of breach of the peace, we echo the words of the clause at the moment relating to serious public disorder or serious damage to property. We have not included, serious disruption to the life of the community". We were hoping that that would have been removed by now. But that can be done if necessary at a later stage.

It is, of course, a traditional form of expressing oneself in a procession that those taking part should hold flags, banners and other emblems. On the whole, it is a right that does no harm. Of course, it can do harm in particular circumstances, especially if the flag, banner or emblem contains matter that is offensive to the people in the area through which the procession passes. But that sort of situation would be covered by the risk of "serious public disorder" or "serious damage to property" which would enable the police officer to impose conditions. If that risk does not exist, we believe that the carrying of flags, banners and emblems should be freely exercised.

It may be argued that it is not necessary to put in such a proviso at all. It may not have been necessary to put it into Section 3 of the Public Order Act 1936. However, it is there, and it has been there for 50 years. If there were not included in this clause a provision in similar form dealing with the same subject matter, there would at least be considerable doubt as to whether the conditions could justifiably restrict the display of flags, banners or emblems even if their display was not likely to cause serious public disorder. I justify, therefore, this part of the amendment in that way.

The second part of the amendment deals precisely with the area covered by the amendment moved by the noble Viscount. It has regard to the existing law; namely, the provisions of Section 1 of the Public Order Act 1936, which deals with the wearing of uniforms in particular, and incorporates the provisions of that section into this Bill. However, it goes somewhat further than the noble Viscount's amendment which deals only with the position of a person who is dressed in such a manner as to disguise his identity. This amendment deals with the wearing of clothing or the use of some other disguise to conceal the identity of the person taking part. It is therefore more embracing, if I may use that term, than the noble Viscount's amendment.

We believe that if there is to be a prohibition of this kind, it should go as far as it can to prevent the mischief that the noble Viscount's amendment seeks to prevent; that is, people taking part in a procession disguising themselves by the wearing of clothing or in some other way so that their identity is not obvious to those who see the procession. I hope that, with this explanation, the noble Earl will feel able to accept the amendment.

The Marquess of Tweeddale

I am sorry to have to disagree with my noble friend Lord St. Davids. He seems, however, to have left out of account the fact that there may be occasions when people have good reason for disguising themselves. I think particularly of people from countries such as Iran who, if they take part in an anti-Khomeini demonstration and are identifiable, might find themselves in considerable difficulty when they return; or their relations at home might find themselves in great distress.

Lord Cawley

I do not think that the noble Viscount has taken into account the activities of the Ku-Klux-Klan who terrorised the southern states of America in the 1920s, who were hooded and who did not disclose their identity. That supports, I believe, what the noble Viscount has said.

Lord Harmar-Nicholls

I would not have thought that there was any need to give advice in statute as to what a senior police officer should have regard to. I feel that there are certain dangers in trying to find words that separate the risks. The noble Viscount referred to the wicked man who may disguise himself. Let us suppose, however, that the person concerned, in terms of political and general activities, is a well-known blonde. If she chooses on that day, as so many do, to become a brunette, is she disguising herself? Does she come within the ambit of the possible discretion that the police officer should use? It may be that the wicked man referred to is clean shaven one week but the following week has a beard. Is that to be deemed a disguise? As soon as one tries to spell out in detail the considerations that a senior officer has to take into account before he feels there is danger in what is being done in a procession, one gets into difficulty. I would have felt the discretion of the police officer who would take into account the sort of clothes, and the sort of disguises—which I have said may be innocent or otherwise—is much the best way of Parliament leaving the statute. How it is operated after that is completely in the control of the police officers on the spot, and I would have thought that was the better way of Parliament doing its duty in this very important field.

Baroness Seear

Perhaps I may ask the noble Lord, Lord Harmar-Nicholls, this question. If the disguise is successful, the police constable will not know, will he?

Lord Harmar-Nicholls

That is precisely my point. If somebody wants to effectively disguise themselves, that does not necessarily mean that they have to put on funny clothes. There are many ways of doing it. But even when they have put on the clothes, the police officer forms some kind of a judgment from what knowledge he could have—he would not know entirely. Similarly, with dyed hair or the growing of a beard, the fact that we make reference in a statute does not make it easier for him to recognise the situation. At the end of the day, if we accept the amendment it is still left to the police officer's discretion, having taken this point into account, whether he feels that there is a danger involved. I do not like writing unnecessary words and giving too much guidance from the Benches of Parliament to the people on the street who eventually have to do the job.

Lord Silkin of Dulwich

I do not know whether the noble Lord has in his mind the point that is being made. It is that nobody is suggesting that the mere use of disguise is a bad thing. All that the amendment does is to give the police power to impose a condition in circumstances where they think it necessary to do so: where there is a real belief that disguise will be used in order to conceal the identity of people taking part in the procession. That is surely something that he would regard as being improper.

Lord Harmar-Nicholls

I do, but I am saying it is already covered by normal usage. We have no need to spell out the detail that the police officer must look for. We ask him to use his experience and knowledge to have regard to the general situation. To write in these words does not give him the power; it helps him to arrive at a decision as to whether the power should eventually be used. I am saying he does not need that guidance from the distance that Parliament always is from the actual incident that would be involved if there were any disruption.

Lord Mishcon

I wonder whether we are not misleading ourselves a little about this point. First, there is no question of any amendment suggesting that it is ordinarily an offence for anyone to disguise his identity. What we are dealing with is a condition which may be imposed by the police in certain circumstances where they feel it appropriate. The noble Lord opposite raised the very important point of the Ku-Klux-Klan experience, and some of us know a little bit about IRA experience in regard to hooded faces.

The doubt at the moment is whether or not a condition of this kind imposed by the police without it being in the Bill would be a lawful condition. The Government cannot prove to us that we need not worry because there is not the slightest doubt about the legality of this condition. One of the difficulties, if we do not cover it in our consideration, is that, as we have already heard from the noble and learned Lord the Lord Chancellor and others, these conditions can be looked at from the point of view of judicial review, and possibly an appeal procedure; but we are not dealing with the question of appeal at this moment. The point about the amendment is that there may be circumstances, as the noble Lord, Lord Harmar-Nicholls, admits, where this condition ought to be imposed. The amendment merely says because this is in the Bill there is no doubt about the legality with which it is imposed, and that is the only issue before the Committee.

4.15 p.m.

Lord Monson

As we appear to be debating Amendment No. 39A as well as Amendment No. 39, may I point out that paragraph 2 of Amendment No. 39A appears to be extremely ambiguously worded. I take it what the noble and learned Lord, Lord Silkin, and his colleagues have in mind is that only clothing which has the effect of concealing somebody's identity should be prohibited or restricted. But that is not how the sentence actually reads. If the amendment is passed as it stands, it appears that conditions could be imposed prohibiting the wearing of clothing full stop.

The Earl of Caithness

As I understand it, we are not only talking to Amendment No. 39 but also to Amendments Nos. 39A, 50, and 50A which cover the same points. I am grateful to the noble Viscount, Lord St. Davids, and to the noble and learned Lord, Lord Silkin, for raising this issue which I know causes considerable concern. The main target of the noble Viscount's amendments are militants or activists who attend demonstrations wearing hoods to avoid identification. From what he said, I believe he was referring to those people. The noble and learned Lord's amendments also address this problem; and they seek to reinstate in part the saving which appears in Section 3 of the Public Order Act 1936, that no conditions can be imposed restricting the display of flags or emblems except such as are necessary to prevent a risk of a breach of the peace.

Perhaps I could deal first with the question of flags and emblems. We considered whether we should retain the existing saving which appears in the 1936 Act, but we eventually decided not to do so because in our view it added nothing to the police's current powers. Banners might on occasion be used during marches to cause serious public disorder, serious damage, or to serve as an intimidatory purpose. We see no reason why the police should not be able to protect the community in such circumstances. I invite the Committee to leave the police free to impose conditions restricting the display of flags if that is necessary to prevent such a mischief, and we believe that it is there in the Bill at the moment.

I turn now to the question of disguises. We have consulted the police about the utility to them of a change in the law of the kind proposed by the noble Viscount, Lord St. Davids, and the noble and learned Lord, Lord Silkin. The Metropolitan Police, who have the greatest experience of policing demonstrations, reported no problems with demonstrators wearing disguises, and were quite content with their existing powers. A provincial force thought that the amendments might be useful in dealing with animal rights activists; but they added that although animal liberationists often wear masks when raiding chicken farms and the like, they have not been known to wear disguises on demonstrations.

Our conclusion from that is that there is at present no mischief which the noble Lords' amendments are needed to prevent. It would certainly be going too far to prohibit the wearing of masks altogether at demonstrations. Some demonstrators, such as the Libyan or, as the noble Marquess mentioned, Iranian students in this country, wear disquises when demonstrating against their governments for fear of reprisals against their families back home. Other demonstrations may involve elements of street theatre, such as CND demonstrators appearing dressed as skeletons, or circus and carnival processions where clowns may be present. We would not wish to stop either of those things.

Lord Silkin of Dulwich

I do not know whether the noble Earl would be kind enough to explain the point which arises from what my noble friend Lord Mishcon said. The noble Earl seems to be saying not that there is already inherent in the clause a power to make such a condition, but rather it would not be necessary anyhow and therefore not be put in the Bill for that reason. Is my interpretation of his view correct?

The Earl of Caithness

I was just coming on to the point—having put the background into perspective—that we believe that the police already have adequate powers to make necessary impositions on marches, should they need to do so. If the police believe that the wearing of disguises is so provocative or threatening as to constitute a threat to the peace, they may take action to prevent that threat by requiring those concerned to remove their disguise. If the masks constitute a uniform, they will be caught by Section 1 of the Public Order Act 1936, which prohibits the wearing in public of uniforms denoting association with any political organisation or with the promotion of any political object. The Committee may know that IRA supporters have in the past been prosecuted under this section. Lastly, of course under Clause 12 of the Bill the police may impose any condition which is necessary to prevent serious public disorder, serious damage to property or the intimidation and coercion of individuals: where necessary, this could include ordering demonstrators to remove their masks.

We are convinced that we have the right powers at the moment. We have talked to the police about this. I believe that the noble Lord, Lord Mishcon, summarised it succinctly when he said that what the Government need to ask is, "Have we got the powers?". Yes, we believe we have.

Viscount St. Davids

In view of the noble Earl's excellent explanation and the fact that the police do not seem to need these powers, although no doubt later it might be possible to do something about it if they did, and bearing in mind, as he said, that under Section 12 they already have powers which would cover this point, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 39A not moved.]

Lord Morton of Shuna

moved Amendment No. 40: Page 8, line 27, after ("scene") insert ("not being below the rank of Inspector"). The noble Lord said: This amendment is listed with Amendment No. 51 and it is directed to the definition of "the senior police officer". The position is that under Clause 12(2) "the senior police officer" means: in relation to a procession intended to be held … the chief officer of police or, more strictly, the chief constable outside London; then: in relation to a procession being held, or to a procession intended to be held in a case where persons are assembling with a view to taking part in it, the most senior in rank of the police officers present at the scene". It is after the word "scene" that my amendments suggest inserting: not being below the rank of Inspector". Under this clause and Clause 11 the position appears to be that in England and Wales, a procession, in order to be legal, will have had to obtain permission from the chief constable. In Scotland, as the noble Earl will be well aware, it has, under the Civic Government Act, and will have under the Civic Government Act as amended by this clause, to get permission from the chief constable and the local authority. The chief constable in England and Wales and the chief constable in the local authority in Scotland can impose conditions as he thinks fit. Then, with the permission of the chief constable, the procession can take place.

The most senior in rank of the police officers present at the scene can impose other conditions which may be completely contrary to those imposed by the chief constable on the permission. In Scotland, as the noble Earl will also be aware, for the last three years there has been a right of appeal to the sheriff. Therefore, the sheriff can impose conditions on intended processions.

We have the situation where a special constable or probationary constable may come along and override the decision either of a judge in the shape of a sheriff or of a chief constable. Although I fully accept that there may be conditions and situations where this is necessary—that a situation can arise where, to the police officer at the scene, the situation has changed and there is a danger of some sort of disruption or disorder—that should not be dealt with by a junior police officer but by a senior police officer. For this situation to develop at all I would suggest that it has to be dealt with by someone of at least promoted rank, and that is the purpose of this amendment. It would be quite wrong to have a junior police officer take a decision contrary to a decision which has already been taken by a chief constable or a judge. I beg to move.

Lord Boyd-Carpenter

I hope that my noble friend will not accept this amendment. I entirely agree with the noble Lord on the Front Bench opposite that in dealing with these difficult and sensitive situations it is highly desirable that the police officer concerned should be as senior as possible. I do not think that any Member of the Committee would have difficulty in accepting that view.

However, unhappily, it has certainly been our experience in recent years that sudden, unexpected disorders have arisen, sometimes simultaneously with disorders in other parts of the area, and that is not always accidental. It would seem quite wrong that the powers which this Bill purports to give, and I hope does give, to the senior police officer on the scene should be restricted to police officers of a certain rank or above. What will happen if no officer of that rank is present? Is nothing at all to happen? Is the disorder, the disruption, if I may use the word in which the noble and learned Lord, Lord Elwyn-Jones, is so interested, the riot, or whatever it may be, to be allowed to take place simply because there is not immediately available an officer of the relevant rank? It seems to me that this amendment would put an unnecessary rigidity into the system, and a rigidity which in some cases might be highly dangerous.

The Earl of Caithness

As the Committee is aware, the nature of the police presence at any demonstration will depend entirely upon the size of the event and the problems which are anticipated. It is likely that officers of higher rank will be present at large-scale gatherings, but there are small demonstrations or pickets which may often be attended by a single constable. Indeed both the noble Lord, Lord Morton of Shuna, and my noble friend Lord Boyd-Carpenter mentioned these one-off situations. It cannot be altogether ruled out that there may be occasions in these cases where, for example, the fourth test of intimidation might be breached and the officer present might need to intervene to prevent demonstrators overstepping the mark. If they are to prevent the mischief occurring they need to act quickly and it might not be possible in the time available to send for a more senior officer.

Indeed, one can think of situations where a very experienced sergeant is on duty who deliberately does not want to go further up the police hierarchy; he may be a man of great experience who knows the situation and knows how to handle it. By the amendment of the noble Lord, Lord Morton of Shuna, a very able person may be prevented from taking the necessary decision on the spot at the time.

In the vast majority of cases where the police believe it is necessary to use these powers senior officers will be present. However, we are not yet convinced that this covers all such occasions and it might be contrary to the preventive spirit of the clauses to introduce this loophole regarding small demonstrations or marches policed by more junior officers.

The police try to keep as low a profile as possible at all demonstrations both in order to use their resources efficiently and to keep relations with the demonstra- tors as harmonious and constructive as possible. There is a danger that the amendments would oblige the police to take a higher profile, which we believe may be wasteful of resources and counter-productive in that it might create tension where the objective is to minimise it. I should stress that police exercise of their statutory powers at the scene is not likely to occur very often. The significance of the Public Order Act 1936 was that it gave the police preventive powers which they could exercise in the days before the event. Likewise with this Bill: the main importance of Clauses 12 and 14 is the preventive power to impose conditions in advance.

Here we do have safeguards about the rank of the officer who can exercise the power. Because these are important powers, we propose in both Clause 12 and Clause 14 that they should he exercised by the chief officer of police—by the chief constable. Clause 15 allows the chief constable to delegate his powers to a deputy or assistant chief constable if he so chooses, but he may prefer to reserve the power to himself.

I think the noble Lord, Lord Morton of Shuna, inadvertently misled the Committee, because no procession requires permission from anybody in order to take place. Under Clause 11, all that is required is that the organisers give notice of the intention to process if the procession is of a kind falling within Clause 11(1); and similarly there is no permission needed to march in Scotland, either. There, an advance notice requirement exists as well. I believe that we need the necessary flexibility as built into the Bill. I understand the noble Lord's concerns but I believe that the other side of the argument is stronger.

Lord Morton of Shuna

I apologise to the Committee if I misled it. What I intended to say was that the difficulty could arise that conditions imposed—and of course conditions could be imposed by the chief constable, or in Scotland by a judge as well as the chief constable—on intended processions could be varied by the police officer on the scene, who might be a very junior officer.

I should have thought that in the days when most police officers carry radios the difficulty of obtaining an inspector's presence is not insurmountable on those occasions. However, I should prefer to read carefully what the noble Earl has said, and in the circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.30 p.m.

The Earl of Caithness

moved Amendment No. 41: Page 8, line 31, leave out ("police officer") and insert ("officer of police"). The noble Earl said: This is a technical amendment. I beg to move.

Lord Mishcon

It is with great pleasure that we accept the first amendment, I believe, that the noble Earl has moved in this Chamber on this Bill.

The Earl of Caithness

I am grateful to the noble Lord.

On Question, amendment agreed to.

Lord Hutchinson of Lullington

moved Amendment No. 42: Page 8, line 37, leave out subsection (5). The noble Lord said: I beg to move this important amendment. It raises the question of whether we really wish to criminalise all those who take part in a procession who knowingly fail to comply with any condition that has been imposed. Subsection (4) of the clause makes the organisers guilty of an offence and liable to three months' imprisonment and a fine of up to £1,000 if they knowingly fail to comply with any condition. So be it. They are the organisers.

Subsection (7) gives power to arrest without warrant every participant who knowingly fails to comply under subsection (5), and such a person is liable to be fined. Therefore, at a stroke this subsection makes criminals of possibly hundreds of persons, ordinary members of the public who are taking part, whom the ordinary person would call innocent people. Everyone of those people is open to arrest by the police.

Here is the mischief that the noble and learned Lord, Lord Scarman, referred to at Second Reading. He pointed out from his experience the mischief of police officers using their powers during some form of disturbance in a procession to pick people out of a procession and put them into a Black Maria, and take them off after a long period of incarceration to the police station, keep them in the police station while matters are sorted out, and then after maybe many hours release them without charge.

It is quite unnecessary to criminalise those persons taking part in a procession if in fact they continue to take part in the procession and breach some condition that has been imposed. One has only to look at the reality of the matter. The organisers of a march are told by a senior police officer that they are not to turn left at the top of a road and pass the embassy in front of which they intend to protest. When the 100, 200 or 500 people marching along get to the corner someone will say, "The police are stopping us from asserting our rights" and so on, but people in the march will in fact follow on behind other people and will go to the left, no doubt because the purpose of the march was to protest in front of that particular embassy.

It is not wise to create martyrs in this way. It is not wise to make into criminals people who are, in the view of the public, ordinary lay people and who are, on the face of it, innocent. It is always unwise to do that.

It is noticeable that under Clause 11 there is no such offence; that is, if people march knowing that no notice has been given, and knowing therefore that the police have been prevented from imposing any conditions because no notice has been given to them for the march, only the organisers are criminalised under Clause 11(7). That, I would suggest, was very wise.

However, you will have the position that if you march and do not notify the police, and you are a member of that procession and you know those are the circumstances, only the organisers will be open to be prosecuted. But, on the other hand, if you told the police and those people march, and they impose any of the conditions, however trivial, all those people who are marching are open to prosecution, and, far more serious, open to arrest. To make it possible to arrest any member of a procession in those circumstances is not wise. Surely there is no higher authority to which I can appeal than that of the noble and learned Lord, Lord Scarman, with his unequalled experience. Unfortunately he is not in his place today, but in his Second Reading speech he specifically mentioned this mischief which now arises and which causes far more trouble and makes martyrs out of people marching in circumstances where emotions are bound to run high.

This amendment is a sensible amendment. It is an amendment which will make the duties of the police easier rather than more difficult, and will bring the clause into line with the powers under the other clause in relation to notice. At the same time, I speak also to Amendments Nos. 42ZA, ZB and ZC. They cover subsection (6) of Clause 12 and bring in the incitement to commit an offence. If the Committee agrees that this power should not be given to the police, then of course subsection (6) would fall also with the incitement to commit an offence under subsection (5).

The same considerations apply to incitement. As the Committee will appreciate if a father says to his son, or a trade union official says to a member of the union, "The police are trying to stop us marching in front of the embassy, or down the road we want to march down, but we are going to go on and assert our rights", that is an incitement, and anybody who continued in those circumstances would be equally guilty of an offence. Once again it is only in that way that you will make martyrs out of, on the face of it, apparently totally innocent people, in circumstances which were such that it would be far better to omit subsection (5), omit the other provisions which would follow under the other amendments, and bring this into line with the other part of the Bill relating to giving notice of marches. I beg to move.

Lord Boyd-Carpenter

The noble Lord, Lord Hutchinson of Lullington, was quite right when he said that this was an important amendment. Personally I regard it as a very important one because if the Committee were to accept it, it would drive quite a large hole into the structure of the Bill. That, no doubt, is its purpose.

The subsection as it stands seems to me very carefully and fairly balanced. It refers to a person who takes part in a public procession and knowingly fails to comply with the condition imposed under the clause and gives him in addition a defence if he can show that the failure to comply arose from circumstances beyond his control. If the Committee accepts this amendment, as I understand it, where in any of these demonstrations there is a breach of the conditions which the police under the earlier part of the clause have laid down, only the organiser will be guilty of an offence and the ordinary person taking part, who knowingly and deliberately acts against the police prohibition, or and the noble Lord referred to subsection (6)-incites someone else to do so, will go scot free.

It is very easy for the noble Lord to talk about making martyrs of people, but the deliberate defiance of the law by an individual is not on the whole a view which most theologians would accept as being tantamount to martyrdom. This is deliberate defiance of the law as laid down by Parliament. In those circumstances it is surely ridiculous, when the police have to cope with one of these innumerable demonstrations with which we are faced nowadays, to strip them of the power which the Bill would give them, first, to arrest under a following subsection and, secondly, if they see fit, to put on trial for an offence those who deliberately defy the orders which have been given.

I hope very much that the Committee, accepting the view of the noble Lord, Lord Hutchinson of Lullington, that this is an important amendment, will feel that it is even more important to reject it.

Lord Renton

I am sure that my noble friend Lord Boyd-Carpenter is right about this. I should go a little further and say that if this amendment were to be accepted, we would be making a dead letter of the provisions which I think are broadly agreed to be necessary under Clause 12 which, as we are told in the explanatory notes, substantially re-enact the provisions of Section 2(1) of the Public Order Act 1936. I am ashamed to say that I have not turned up that Act to see whether it contains a very similar provision to subsection (5). If it does not, I should have said that there was an omission from that Act. If there is a provision already in the law, there seems to me to be no good reason for dropping it.

4.45 p.m.

Lord Mishcon

I always appreciate the contributions made by the noble Lords, Lord Boyd-Carpenter and Lord Renton. But I wonder whether against the background that I seek to remind the Committee exists in this part of the Bill it is right to treat this amendment in the way that they did.

We are dealing with processions. We are dealing with a form of protest which, as the noble and learned Lord, Lord Elwyn-Jones, said a moment ago, is inherent in our traditions: the right to process. We have found latterly—the noble Lord, Lord Boyd-Carpenter, was fair to make this point—that this privilege can be, and has been, taken advantage of, and in some cases has constituted a grave nuisance and annoyance, if not more. We all appreciate that.

There are in our country today many people who bless the fact that they are able to enter into our communal life and, remaining as foreigners, are able to do what they cannot do in their native lands, which is to march, to protest and to demonstrate. So, because of a minority of people who abuse this right, we have had to consider certain provisions, as we are doing in this Bill. We are not talking about riot. Anyone who takes part in a riot is guilty of an offence, whether or not he is organising a demonstration or a procession. We are not talking about people behaving in a manner likely to constitute a breach of the peace. The law exists in regard to that, and if a police officer finds somebody behaving in a way likely to constitute a breach of the peace, that person can be detained and prevented from continuing that act. We are not dealing with somebody in a procession who is obstructing a police officer in the course of his duty. That, too, is an offence, and in those circumstances the police can arrest the person and deal with the matter. We are dealing with what for a long, long time has been a right which we are now circumscribing, as may, though not all, local authorities have done in the past by seeing to it that permission has to be granted before a procession can take place where that is practicable. The police have the right now to impose conditions which have to be observed. We are not dealing, I repeat, with a breach of the peace or stopping a police officer in the course of his duty. There are some people who knowingly breach that condition, but presumably it does not constitute what may be a breach of the peace or obstructing a police officer in the course of his duty. Do we really want to go so far with this precious right of demonstration and procession, quite apart from the organiser who has to be held responsible? The noble Lord, Lord Hutchinson, was not opposing that clause at all. Are we really to go to the other extreme in regard to somebody—forgive the repetition—who is not breaching the peace or obstructing a police officer in the course of his duty? If he does turn left and does so with a couple of other people, are we really now making this a crime?

I ask the Committee to consider this from the point of view of balance and to bear in mind that we are very proud of the liberties that we have in this country. Unfortunately, we have had to circumscribe them in quite a bit of legislation of late. Do not let us go too far.

Lord Renton

The noble Lord has used an argument which was not put forward, if I understood him correctly, by the noble Lord, Lord Hutchinson of Lullington. I ask him to consider this. If he is going simply to ask the police to rely upon the offence of causing a breach of the peace in these circumstances, will he bear in mind that in practice the courts have found that it is only when a breach of the peace has actually been caused that the charge will stick?

If there is behaviour which has not caused a breach of the peace but which might do so, it is not very useful for the police to proceed in that way. If the noble Lord's views are to prevail, here we have a situation in which people who have knowingly flouted the law but have not yet reached the stage of causing a breach of the peace are to have nothing done against them until the breach of the peace actually occurs. That cannot be right, surely.

Lord Elystan-Morgan

I am sure that no Member of the Committee would disagree in relation to criminal legislation about three fundamental precepts. First, one should never define a criminal prohibition wider than the circumstances properly demand; secondly, one should never define a criminal offence in such a way as to make thousands and thousands of persons criminals but in circumstances where the police have not the slightest hope of exercising a proper sanction against them; and, thirdly, one should never define a criminal offence in such a way that it is flagrantly and blatantly inconsistent with other provisions either in the same statute or in similar legislation.

Let us look for a moment at this amendment in the light of those three precepts. I venture to hope that the Committee will accept the broad principles that I have sought to put forward. First, is the amendment necessary? My respectful submission would be that there is not the slightest chance of the police wishing to proceed against anybody unless that person is a deliberate, cold-blooded organiser either of a march or a procession that is wholly banned or he is cold-bloodedly organising it in such a way as to be in breach of conditions specifically imposed. The only other persons that the police will want to deal with will be those who are committing substantive criminal offences—offences of affray, offences of violent disorder, offences arising out of the use of threatening, abusive or insulting words or behaviour under Clauses 4 and 5 of the Bill, and indeed a number of other kindred offences such as assault, unlawful wounding and such like. Therefore, in my submission the amendment falls under the first principle; it goes much wider than is necessary.

It is repugnant to the second principle in that we are dealing with a body of people whom it would be ludicrous, and indeed to the utter contempt of law and order in practice, to make criminals when the police cannot touch them in practice. Thirdly, in my submission—and this is really the force of the argument put forward by the noble Lord, Lord Hutchinson of Lullington—the amendment is utterly inconsistent with what has been done in Clause 11.

In Clause 11 if thousands of people march knowing that there is not the slightest permission and the most deliberate and specific prohibition, they do not commit a criminal offence unless they are involved in organising that march. In other words, if they are not caught by that specific provision, they do not commit a criminal offence; they do not commit the greater offence. I am sure that every Member of the Committee will agree that it is a greater offence to march deliberately where there is no permission at all or where there is a total prohibition than to march where there is permission but in breach of a condition. That is the illogicality of the amendment. It would punish the person who is there by mere presence in relation to a mere condition but not the person who by mere presence involves himself where there is a specific and total prohibition.

Lord Harmar-Nicholls

I accept absolutely the message given by the noble Lord, Lord Mishcon. We want to preserve the right to process. I do not know how many noble Lords in their political career have processed. I have often done so. When we had elections in the Midlands, where politics come from the heart, we processed. Sometimes we were advised not to walk in procession past the Labour club and the Labour procession which came afterwards was advised not to run past the Conservative club because of the risk of the things that may grow out of that due to all the emotions that were there. But the ordinary procession we must preserve. As the noble Lord, Lord Mishcon, said, it is part of our way of life and it is an event attended by many other people. It it not that sort of procession that we are talking about.

But there can be, as we have seen over recent years, dangerous processions which can develop into something which is not wanted by anybody who wishes to see law and order properly obeyed. It is that dangerous procession that in looking at this statute I believe we ought to have in mind. I believe that if we remove subsection (5), as this amendment would, we are opening a gap in the all-embracing defence provided by Clause 12.

I ask Members of the Committee to forget the innocent, genuine procession of which both the noble Lord, Lord Mishcon, and I approve and applaud. I ask them to confine their thinking to the dangerous processions and to keep in mind the cunning thinking that is behind the dangerous procession. I was very impressed with the example that the noble Lord, Lord Hutchinson, gave. He said that the organisers would be walking and they would be told not to turn left past the embassy because of the dangers. The official organisers agree that they will not and they turn right. But the noble Lord says that somebody else, in all innocence, lower down the procession may say, "We set out to walk past the embassy and we are going to do it". They are the innocent people, he said, who can be turned into martyrs.

I tell the Committee in all seriousness that when the dangerous procession that we are out to circumscribe is being thought of in the backrooms, the organisers will read the example given by the noble Lord if this amendment is accepted. What they will do—as in similar circumstances they have done in many instances in the past—is to say in anticipation of being told officially that they ought not to turn left, "We, the known organisers who applied for permission or who let them know that we were coming, will turn right. But we shall see that further down the procession, at a strategic point, there is somebody placed, someone who is innocent and nothing to do with the organisation, who will turn left on the 'innocent-marcher' approach and set out to go past the embassy. And we will still do that".

I beg the Committee not to feel that I am exaggerating. The cunning organiser who wants disruption will use every little lever that he can to widen the gap and to get in. I believe that the example that the noble Lord, Lord Hutchinson, gave will be taken up again and again. These people would not be martyrs, although they may give that impression. They would be people placed lower down in the procession, deliberately instructed to do the very thing that would absolve the organisers from being accused of having been in breach of the legislation. If we remove this subsection, we are opening a very big gap in the protection that by statute we are trying to put in to prevent dangerous processions.

The Earl of Caithness

Before I reply I should like to clarify with Members of the Committee opposite whether they are happy that I speak also to Amendments Nos. 42ZA, 42ZB and 42ZC or whether they would like to move those separately.

Lord Mishcon

The noble Earl may by all means do so.

5 p.m.

The Earl of Caithness

I am grateful to the noble Lord. The noble Lord, Lord Mishcon, wanted to preserve the right to process, and I am sure that every single one of us here wants to preserve that right, because there is no need to have permission to march in this country and long may that remain. That is absolutely fundamental, and I believe that there is a misunderstanding on the part of some noble Lords who have spoken that it is an offence to march without permission. I want to refute that absolutely, as I did on the last amendment. Conditions will have been imposed on a march or procession only in order to prevent serious public disorder, serious damage to property, serious disruption to the life of the community or the intimidation and coercion of individuals. Anyone knowingly disobeying a condition is running the risk of contributing to serious disorder or disruption and is deliberately flouting the authority of the police.

The noble Lord, Lord Hutchinson of Lullington, referred to those who took part in a procession in what I consider, if I may say so with due respect, to be slightly intemperate terms as "martyrs and criminals". If that is the case, they have been such for the last 50 years because they have been caught under Section 3(4) of the Public Order Act 1936. Anyone taking part in a march and failing to comply with conditions imposed by the police is guilty of an offence; so there is nothing new in what we are trying to do. We are not criminalising. We are not making martyrs of people, and I am sorry the noble Lord used that language, because it is not true.

Where we differ from the 1936 Act is that that Act fails to draw a distinction between organisers and inciters on the one hand and the rank and file on the other. All are subject to the same maximum penalty of three months in prison and/or a fine of £1,000. We believe that those who organise processions or incite others to disobey conditions bear a greater responsibility than the rank and file. By splitting up the existing offence into three offences we have been able to reduce the penalty for the rank and file. The maximum for them will henceforth be a fine of £400, with no powers of imprisonment. The existing more severe penalty will be retained only for organisers and for those who incite others to breach police conditions. However, in view of what the noble Lord, Lord Hutchinson, has said I shall look again at that particular point, if he wants it strengthened.

Amendments Nos. 42 and 42ZA would go much further than this and would make the imposition of conditions by the police unenforceable on the rank and file, who in most cases will be the vast majority of the marchers, or on those others in the crowd who, while not the organisers of a demonstration, incite others to disobey conditions. Only the organisers would run the risk of prosecution. In many cases it is not the organisers but the outside elements who stir up trouble. Indeed, at the Red Lion Square demonstration in 1974 a group in the body of the procession deliberately turned left or right, thus causing major public disorder, instead of following the orders of the procession organisers.

Under the proposals of the noble Lord, Lord Hutchinson, nothing happens to those who deliberately flout the orders of the organisers. I believe that to be wrong, and in view of the serious public disorder that such a situation creates it would be wrong for this Committee not to take steps to remedy it. In the past year major demonstrations organised by the CND and the anti-apartheid movement have been followed by disorder, sparked off by the anarchist element for whom the organisers were not responsible.

If these amendments were carried, these deliberate trouble-makers would get off scot-free because only the organisers could be held to be responsible for breaching police conditions. It seems to me unfair for us to say, "Yes, we will penalise the organisers" when they are not responsible for a group of trouble-makers who are using the umbrella of that procession to make trouble deliberately. We have a right to keep the power which has been in existence for the last 50 years for the police, but in view of what the noble Lord, Lord Hutchinson, has said, I shall look again at the penalties to see whether revision is necessary.

Lord Mishcon

I wonder whether the noble Earl would consider a submission I am going to make to him—one which does not apply only to this amendment. I think many of us realise that in this country there are troublesome organisations in regard to which this legislation is possibly very necessary. I think it would not be seemly, if he will forgive my saying so, to pick out organisations as though they are the ones to which we are mainly directing our attention, when they have at least the benefit of great ideals sincerely held. Many of us are thinking of fascists who have disrupted neighbourhoods and terrorised people, and on this side we are thinking of such organisations and demonstrations. I hope the noble Earl will forgive me, but I do not think it is very useful, in seeking unanimity in this Committee, if organisations of the kind he mentioned are singled out as being the trouble-makers to whom our attention is directed. He singled out the anti-apartheid movement and the CND, and it did not meet with a very warm response in various parts of the Committee.

The Earl of Caithness

I apologise if I gave the impression that I singled them out as the only ones that suffered. I mentioned them as examples of where people had used them and their perfectly legitimate processions as an umbrella for what they particularly wanted to do. I was not picking out CND or antiapartheid movements. Equally, I would thoroughly support the points made by the noble Lord, Lord Mishcon, regarding whoever organises a procession finding there are trouble-makers over whom they have no control. That was the point I was trying to make.

Lord Hutchinson of Lullington

It is no good denying that one is unhappy about this, and it may well be that the debate we have had indicates a fundamental division between the two sides of this Committee. Over and over again, if I may say so, in a career at the criminal Bar I have seen the type of situation in which many people—sometimes 10, 20 or 30, sometimes 100—could be indicated and could be charged as aiders and abettors of those who commit the offence about which we are really concerned. Over and over again you can criminalise—and I use the word without emotion and quite deliberately—large sections of the public in crime every day of the week. There are innumerable criminal offences for which people can be brought to court as aiders and abettors and suchlike to those who commit these sometimes trivial and sometimes important offences.

I would suggest that it is most important in society not to bring those people to court because otherwise you create martyrs at the top or anger, fury and feelings of injustice lower down. I would suggest that it is really unwise to give the police powers, as the noble and learned Lord, Lord Scarman, said—powers to arrest in a situation such as the one we have all been discussing where there are numbers of people passionately involved in the justice of the cause they are marching for or meeting about, who technically commit a criminal offence, but one which we all know will simply be a basis for more and more trouble if you start to use the heavy hand of the law, pile them into "black marias" and take them off to police stations. That creates a situation which those people will remember for the rest of their lives, but which to the police is merely one day in their job.

The difference between Clause 11 and this clause is that in Clause 11 those who have drafted this Bill have not made it possible for people to flout the law. It would have been perfectly simple to have done so, and then the noble Lords opposite would have got up and said: "It is disgraceful and these people must be brought to court because they are flouting the law and marching without notice to the police". That has not been made possible and we are saying in this amendment that it should not be made possible here either.

I am flattered to hear the noble Lord, Lord Harmar-Nicholls, say that the clever and subtle organisers of such marches will all have read my speech in the Committee stages of this Bill, but I do not think it is likely. In all the circumstances and having regard to what the Minister said about penalties, I do not wish at this stage to press the amendment to a Division.

Amendment, by leave, withdrawn.

[Amendments Nos. 42ZA, 42ZB and 42ZC not moved.]

Clause 12, as amended, agreed to.

Clause 13 [Prohibiting public processions]:

Baroness Stedman

moved Amendment No. 42A: Page 9, line 22, at end insert ("metropolitan"). The noble Baroness said: I must declare an interest in that I am a vice-president of the Association of County Councils and they have been particularly concerned in these amendments.

I speak to Amendments Nos. 42A, 43A, 43B and 44A because the clause as it is drafted at present provides that the orders banning public processions should be made by a district council at the request of a chief constable. The Association of County Councils, which represents the shire counties in this country, believes that the decision to make such an order ought to be taken by a body that is not only democratically accountable and which has local knowledge but which is also the body which has the responsibility for the expenditure or resources involved and has a particular interest in the maintenance of the peace. I tend to agree with this view. This Government have a preoccupation with making authorities accountable and I do not quarrel with that. They properly place very considerable weight on the need to be accountable for expenditure and I believe that the concept of an authority making a decision which involves the expenditure by another authority and with absolutely no accountability of large sums of money is unsatisfactory. Therefore, I agree with the view of the Association of County Councils that in the present circumstances it should be the county councils which are responsible for making the orders rather than the district councils.

I hope that the Government thought of these points before drafting the legislation. At this stage I am putting the amendments forward only as probing amendments, unless the noble Earl decides that I have a point and the association has a point and accepts the amendments. I beg to move.

5.15 p.m.

The Earl of Caithness

The noble Baroness has an attractive argument and it is possible that the framers of the 1936 Act, had they legislated after the Police Act of 1964, might have considered a role for the police authorities or county councils. The difficulty now is that the district councils have performed this role very satisfactorily for the last 50 years and there is no strong demand for a change.

We did specifically ask in the Green Paper in Paragraph 53 whether this was a function which should now be transferred to county councils. There was only one body which felt that it should—the Association of County Councils. There was also one body which was emphatically against the change—the Association of District Councils. In support of the change no one was able to point to any practical difficulties which had arisen as a result of this power resting with district councils, such as the need for the police to apply for a ban in several different districts. Nor was anyone able to identify any occasion when a district council had behaved irresponsibly in exercising the banning power. We therefore concluded that since the present arrangement worked well and since there was no strong demand for change, it was best to leave matters as they were.

This decision was not taken on purely pragmatic grounds but was supported also by an argument of principle. District councils are a great deal closer to the local community than are county councils. Where there is a question, for example, of banning marches in a particular district of a city, we believe that the city council may well be better placed to judge local feeling and the risk of disorder than the county council. In the light of that explanation, I hope that the noble Baroness will withdraw the amendment.

Baroness Stedman

As I have said, these are probing amendments to find out the thinking behind the legislation. I note what the noble Earl has said and at this point in time I beg leave to withdraw the amendment and I will take further advice before the next stage.

Amendment, by leave, withdrawn.

Lord Hutchinson of Lullington

moved Amendment No. 43: Page 9, line 24, after ("of") insert ("one or more"). The noble Lord said: The purpose of this amendment is very straightforward. Clause 13 gives a chief officer of police the power to apply to a district council for an order prohibiting all public processions in the district for up to three months. Under Clause 13(4) the same power is given to the Commissioner of the Metropolitan Police; however, in that case he has power which he exercises only with the consent of the Secretary of State. The wording means that the only power which the police officer has is the power to apply for a blanket prohibition in the area of all processions for a period of time. The purpose of this amendment is to give the chief officer or the Commissioner of the Metropolitan Police the power to apply for the banning of one procession or more than one and not to have to apply, if he feels a procession should be banned, to ban all processions. The situation as it obtains under the clause is one which is manifestly unfair. All common sense and equity surely demand that if there is one procession which is obviously one which the police think should not take place at all, then it should be within their power, not to ban it themselves, but to apply that it should be banned. What happens now and what will continue to happen is that any organisation wishing to put a stop to a rival oganisation's procession or march has only to propose a provocative counter-march or a pre-emptive march to get the original march effectively banned. In that way, by using a ruse, they can ensure that the only thing the police can do is to say that all marches must be banned for that period in that area.

The Government White Paper put the matter very clearly in paragraph 4. I will not read it out now but they drew attention to that specific injustice and sought to remedy it. However, the Government apparently changed their mind at some stage because the police feared that they would be accused of making political decisions if they sought to ban a particular procession rather than applying for a blanket ban.

Surely in these circumstances in 1986 the police must be more robust about this matter. We have moved on from the situation in 1936, and now under this amendment all that the police have to do is to apply—they do not make the decision—for the march to be banned. Equally, the Commissioner of the Metropolitan Police will only be able to ban a march if he receives the consent of the Secretary of State.

It is rather ingenuous to object on this basis because if an application is made to have a blanket ban in relation to a date and a period then everybody will know, and everybody does know, why the application has been made. It has been made because a certain organisation wants to march on that day. Therefore, the blanket ban simply does not protect the political chastity of the police because everybody knows why the ban was applied for.

I suggest that the time has now come to face up to this situation, to get rid of the injustice which this position brings about; that the police and equally the Commissioner of the Metropolitan police, quite simply should have the right to apply for a specific ban; and that the matter should be brought out into the open and the decision made in a perfectly normal and straightforward way. The other amendments which go with the one on which I speak are all consequential in other clauses of the Bill. I beg to move.

Lord Silkin of Dulwich

I rise to support the amendment moved by the noble Lord, Lord Hutchinson of Lullington. We regard this as a matter of very great importance, as I am quite sure, judging by the discussion in the White Paper, the Government do. But we do not arrive at the same conclusion as the Government have arrived at, very much for the reasons which the noble Lord has given.

There clearly are cases where the real danger arises not from the possibility of processions generally being held in a particular area, but from the intention to hold a particular procession. I recall when I was in another place going with a deputation from my own local borough council to see the then Commissioner of Police of the Metropolis when the intention was announced by the British Union of Fascists or some such organisation to hold a procession which would take it past a well-known market where there were many coloured people. After that intention had been announced, people who held a diametrically opposite political view announced their intention of marching so that the two processions would probably meet at that market place. The danger which could have resulted from that could only be speculated upon.

The Commissioner of Police was very sympathetic; but the danger in his mind was that arising from the possible banning of processions altogether, when the reality was that it was that particular procession, with probably a particular purpose in view, which was likely to cause the harm. He resolved the issue by diverting the march so that it would not pass the market place. Unfortunately, in doing so it went through an area where there were a great many coloured people. I do not complain about that because he was trying very hard to find a solution to a difficulty which was not an easy one to resolve. That is the sort of case that we have in mind.

The clause deals with the holding of public processions generally. It deals with the holding of any class of public procession. But quite clearly from the language used it does not deal with the holding of a particular public procession which may cause mischief, when all other processions, whether of a particular class or not, would not be likely to do so. I can understand the anxiety that there must be if the suggestion is made that the law might be used in some kind of political way. Certainly that anxiety is likely to arise if there is the possibility of banning a single procession as opposed to others which are in no way affected by that single one. But this clause covers that anxiety very thoroughly indeed because it does not give the police, who might be alleged to be political, the power to ban processions themselves. The only power which they have is to make application to the local authority. Nor does it give the local authority the power to ban a procession, which again might be alleged to be done for political motives, because their power is circumscribed by the need for the consent of the Secretary of State which may be given with modification.

We have as strong a set of bonds around this procedure as it is possible to have. The Secretary of State, the local authority and the chief officer of police must all together combine in making this order. Those being the circumstances, it seems to me that the danger of creating the anxiety of a political decision is minimised to the smallest possible degree and is so small that it ought to be completely outweighed by the situation to which I referred in the example that I gave. In that case, an individual procession may do incalculable damage in a particular area, and the only way to prevent it, under the clause as it stands, is to ban all processions in the area for a substantial period of time.

Lord Hooson

I very much support this amendment and I do so on rather different grounds. When one looks at the wording of Clause 13, it is obvious that a serious situation must have arisen. First, the reasonable opinion of the chief of police must be that the powers under Clause 12 are not sufficient to prevent disorder arising if a certain procession is allowed. Therefore he is enjoined to apply to the local authority—or, in the case of London, to the Secretary of State—and it is the local authority who make the decision with a supervisory power in the Secretary of State. It seems to me that this power, though a very serious one, is necessary if, because of particular circumstances existing in any district or part of a district". I quote the words of the clause.

So you have a three-stage process—the decision of the chief of police, the application to the local authority and then the considered view of the Secretary of State on the decision of the local authority, provided that it is in the affirmative. I see no reason whatsoever why the chief of police should not be empowered to apply in the alternative. It may be that in certain circumstances a blanket prohibition would be the only means of dealing with a situation in a certain district, but in most cases that I can envisage it would not be. It seems to me that the chief of police could very reasonably say, "I want to ban that particular procession, but I will submit it to the local authority and the local authority can decide in the alternative. I can make an application for a blanket ban and I can make an application for a particular ban, or a particular ban on two or more processions".

The chief of police and the local authority and the Secretary of State have to contemplate that one body of persons might seek, whatever the procession, to interrupt that procession; and that may be a case for a blanket ban over a certain period. But in most cases I should have thought that the chief of police would himself want to be more selective, and so would the local authority. This amendment would enable the authorities and the chief of police to be so.

5.30 p.m.

The Earl of Caithness

The noble Lord, Lord Hutchinson of Lullington, has rightly reminded us that the White Paper proposed (in paragraph 4.14) that there should be power to ban a single march. It is also fair to add that this proposal commanded considerable support on consultation. But one of our chief concerns both in the White Paper and in the Bill was to propose only such powers as would be of practical value to the police; and I have to tell the Committee that the police have expressed considerable reservations on this matter.

The Metropolitan Police were worried about organisers changing their names or the title of the procession to avoid a ban; and that the power might create in the eyes of the public a political perception of the police which was neither true nor desirable. The Association of Chief Police Officers also stressed how important it was that the impartiality of the police should be manifestly apparent in all matters connected with public order. Chief constables in the cities feared that the power would pose problems in practice, because of the eagerness of some councils to ban marches by their political opponents and reluctance to ban those of their supporters. At present the political balance is maintained because when rival factions organise counter-demonstrations there is no option but to ban all marches. Chief constables already come under pressure to ban unpopular marches; metropolitan chief constables feared this new power would add to these pressures.

In the light of the police's reservations we thought again about our proposal and tested it against situations where it might have been useful. But when we looked at recent examples of banning orders we found it difficult to find any where the power to ban a single march would have helped and some where it would have been extremely difficult to apply. Perhaps I can best explain this by giving an example. A recent banning order arose as a result of a proposed National Front march in Nottinghamshire on 27th April last year. To celebrate St George's Day the National Front planned to march through Arnold, a suburb of Nottingham, where one of their members was an election candidate. A consortium of Left-wing groups organised a counter-march. Because it was impossible in a place the size of Arnold (which had only one main shopping street) to keep the two factions apart, the police applied to the Gedling Borough Council for a ban, which was granted. The Nottingham anti-fascist group, having mobilised their supporters, then decided to hold a demonstration in the centre of Nottingham. The National Front promptly announced their intention of marching in the city centre; this led to a further application for a ban to the Nottingham City Council, which was also granted.

In the White Paper we suggested that the power to ban a single march would help to prevent the manipulation of the present system whereby one group can effectively stop another from marching by indicating an intention to march itself at the same time. The Nottingham example shows this to be a false hope, for two reasons. Armed with their new powers, the police would be most unlikely to apply for a ban restricted to the anti-fascist march in Arnold, or the National Front march in Nottingham, because of the accusations of political partiality to which they would be subject; and if they had sought to confine the ban to the opposition, it would not have prevented disorder, because the opposition could still have appeared as a static counter-demonstration and harassed the marchers at various points along their routes. It is difficult to envisage any circumstances when rival groups are jostling in this way where the police would want to ban one group and not another. But if there were power to ban a single march, the police would undoubtedly come under greater pressure to ban only the rival group: at the moment blanket bans in these situations seem to be broadly accepted.

We doubt therefore whether the power to ban a single march would ever be used in situations of political rivalry. The only other circumstances where the power might be useful is where a third party march might otherwise fall foul of the ban. In our view the price of having an even-handed system is that it may on occasion result in the banning of innocent marches.

It is important to note the attitude of my right honourable friend the Home Secretary. He has made clear that when exercising his consent to any banning order he will seek wherever possible to ensure that it is framed as narrowly as possible, both as to the area and the types of procession included. In recent years bans have been limited to a single day and confined to one London borough; and my right honourable friend will continue to scrutinise banning orders very carefully to ensure whenever possible that innocent third-party marches are not caught. I should think that any Home Secretary would follow the same advice as that set out by my right honourable friend and which he in turn has followed from his predecessors. That attitude covers the point made by the noble Lord, Lord Hooson, because, as the Bill points out, a march can be prohibited for such period not exceeding three months; so it can vary from one day up to three months.

I apologise for speaking at such length, but when a government put forward a proposal and then retract it, it is only right to explain why we changed our minds. When the Public Order Act 1936 was passed Parliament deliberately withheld power to single out a specific march for a ban. We have come to appreciate the wisdom in that limitation, and believe that it should be continued. I hope that I have persuaded noble Lords opposite that our view is now the right one.

Lord Hutchinson of Lullington

In my view this is an amendment on which the views of the Committee should be tested. The Government have replied and have shown, if I may say so, great weakness over this matter. The White Paper used these words: The present procedure is one which causes the innocent to suffer with the guilty". I say, with great respect, that for this Chamber to allow to go forward in a Bill a clause which permits a procedure which causes the innocent to suffer equally with the guilty is hardly a proper view for this Chamber to take.

There was considerable support in the Government's consultation for the sense of this amendment; and, if I may say so, the Nottingham case was surely just a supreme example of where no doubt there was a good case for a blanket ban. It does not mean to say that the chief officer of police should not have a discretion. It does not prove in any way that the district council should not have a discretion. It does not show in any way that the Secretary of State should have a discretion. Surely we have grown up now, in 1986, so that the power for the specific ban of a specific march should be quite straightforwardly granted and everybody should know the reasons and the purpose of it. I seek to test the feeling of the Committee on this matter. I beg to move.

5.39 p.m.

On Question, Whether the said amendment (No. 43) shall be agreed to?

Their Lordships divided: Contents, 81; Not-Contents, 114.

DIVISON NO. 2
CONTENTS
Airedale, L.	McIntosh of Haringey, L.
Ardwick, L.	McNair, L.
Attlee, E.	Mayhew, L.
Ayleston, L.	Mishcon, L.
Banks, L.	Molloy, L.
Blease, L.	Morton of Shuna, L.
Blyton, L.	Nicol, B.
Bonham-Carter, L.	Ogmore, L.
Bottomley, L.	Oram, L.
Briginshaw, L.	Paget of Northampton, L.
Brockway, L.	Parry, L.
Bruce of Donington, L.	Phillips, B.
Carmichael of Kelvingrove, L.	Pitt of Hampstead, L.
Cledwyn of Penrhos, L.	Ponsonby of Shulbrede, L.
David, B.	[Teller.]
Dean of Beswick, L.	Ritchie of Dundee, L.
Diamond, L.	Roberthall, L.
Donaldson of Kingsbridge, L.	Ross of Marnock, L.
Elwyn-Jones, L.	Seear, B.
Elystan-Morgan, L.	Serota, B.
Ennals, L.	Shepherd, L.
Foot, L.	Silkin of Dulwich, L.
Gallacher, L.	Simon, V.
Galpern, L.	Stallard, L.
Graham of Edmonton, L.	Stedman, B. [Teller.]
Grey, E.	Stewart of Fulham, L.
Grimond, L.	Stoddart of Swindon, L.
Hanworth, V.	Strabolgi, L.
Heycock, L.	Taylor of Blackburn, L.
Hooson, L.	Taylor of Gryfe, L.
Houghton of Sowerby, L.	Taylor of Mansfield, L.
Hughes, L.	Tordoff, L.
Hunt, L.	Underhill, L.
Hutchinson of Lullington, L.	Wallace of Coslany, L.
Jeger, B.	Walston, L.
Kilbracken, L.	Wells-Pestell, L.
Kilmarnock, L.	Williams of Elvel, L.
Leatherland, L.	Wilson of Langside, L.
Llewelyn-Davies of Hastoe, B.	Wilson of Rievaulx, L.
Longford, E.	Winstanley, L.
McGregor of Durris, L.	Ypres, E.

NOT-CONTENTS
Aldington, L.	Dilhorne, V.
Alexander of Tunis, E.	Dundee, E.
Allen of Abbeydale, L.	Eccles, V.
Allenby of Meggido, V.	Ellenborough, L.
Auckland, L.	Elliot of Harwood, B.
Beaverbrook, L.	Elliott of Morpeth, L.
Belhaven and Stenton, L.	Elton, L.
Beloff, L.	Enniskillen, E.
Belstead, L.	Faithfull, B.
Bessborough, E.	Fanshawe of Richmond, L.
Birdwood, L.	Fraser of Kilmorack, L.
Blyth, L.	Gainford, L.
Boardman, L.	Geddes, L.
Boyd-Carpenter, L.	Glanusk, L.
Brabazon of Tara, L.	Glenarthur, L.
Brougham and Vaux, L.	Gormanston, V.
Broxbourne, L.	Gridley, L.
Butterworth, L.	Hailsham of Saint
Caithness, E.	Marylebone, L.
Cameron of Lochbroom, L.	Halsbury, E.
Campbell of Alloway, L.	Harmar-Nicholls, L.
Cawley, L.	Hemphill, L.
Chelwood, L.	Henderson of Brompton, L.
Colaraine, L.	Hesketh, L.
Cottesloe, L.	Hives, L.
Cowley, L.	Holderness, L.
Craigavon, E.	Hooper, B.
Cullen of Ashbourne, L.	Hylton, L.
Davidson, V. [Teller.]	Hylton-Foster, B.
Denham, L. [Teller.]	Knollys, V.
Denning, L.	Lane-Fox, B.

Lauderdale, E.	Renton, L.
Lawrence, L.	Renwick, L.
Layton, L.	Ridley, V.
Lindsey and Abingdon, E.	Rodney, L.
Lloyd of Hampstead, L.	St. Davids, V.
Long, V.	Sandford, L.
Lothian, M.	Shannon, E.
Lucas of Chilworth, L.	Sharples, B.
Luke, L.	Skelmersdale, L.
Lyell, L.	Somers, L.
McFadzean, L.	Stanley of Alderley, L.
Macleod of Borve, B.	Strathcona and Mount Royal,
Malmesbury, E.	L.
Mancroft, L.	Strathspey, L.
Manton, L.	Sudeley, L.
Margadale, L.	Terrington, L.
Merrivale, L.	Teviot, L.
Mersey, V.	Thorneycroft, L.
Middleton, L.	Tranmire, L.
Monson, L.	Trenchard, V.
Murton of Lindisfarne, L.	Trumpington, B.
Norfolk, D.	Vickers, B.
Nugent of Guildford, L.	Vivian, L.
Pender, L.	Ward of Witley, V.
Portland, D.	Westbury, L.
Radnor, E.	Whitelaw, V.
Reay, L.	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

5.47 p.m.

[Amendments Nos. 43A, 43B, 44 and 44A not moved.]

Lord Elwyn-Jones

moved Amendment No. 45: Page 9, line 32, after ("order") insert ("in writing") The noble and learned Lord said: This is a short point. It relates to important orders that are issuable, as the Committee will see, at line 32, page 9, of the Bill. A council may make an order prohibiting public processions. The amendment simply inserts a requirement that the orders should be in writing. On the face of it, this may be an unnecessary underlining, but that is the purpose of the amendment. There is the risk that a council may have a tumultuous meeting and nothing is in writing or published. That would be very unsatisfactory. I beg to move.

The Earl of Caithness

I understand the arguments of the noble and learned Lord and I accept that it is entirely reasonable that banning orders should wherever possible be in writing, but, as I am sure he will be the first to understand, that is not always possible. Banning orders are imposed rarely and only as a last resort, and sometimes at the last moment. When a ban is applied for at the eleventh hour it may not always be possible to put the banning order in writing.

Perhaps I could illustrate the practical difficulties by giving two examples. On the evening of Friday 22nd March last year the Metropolitan Police Commissioner sought the Home Secretary's consent to a ban because of the threat of serious public disorder arising from a National Front march due to be held the following day in Greenwich. Because of the proximity of Scotland Yard to the Home Office there was no difficulty in the proposed banning order being submitted to the Home Secretary in writing. But overnight the National Front decided to march in Dartford in Kent at 11 a.m. the following morning. The chief constable applied to Dartford Borough Council for a ban, and on the Saturday morning both parties approached the Home Office to seek the Home Secretary's consent by telephone. In the event, the Home Secretary withheld his consent because he was not satisfied that the National Front's proposed march in Dartford created an unavoidable risk of serious public disorder and the march passed off without incident. In those circumstances it would have been difficult for a banning order to have been put to the Home Secretary in writing, had that been necessary.

My second example is drawn from a proposed National Front march in Nottinghamshire, which I mentioned on the last amendment. The first ban was in writing but the second had to be handled on the telephone, followed by a telex. There are difficulties. I appreciate the concern of the noble and learned Lord. There may be an avenue whereby we can consider this matter—that the ban should be qualified in writing wherever practicable. I should like to consider that point if the noble and learned Lord is happy that I take it away.

Lord Elwyn-Jones

In the light of that suggestion, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 46, 47 and 48 not moved.]

Clause 13 agreed to.

Clause 14 [Imposing conditions on public assemblies]:

Lord Monson

moved Amendment No. 48A: Page 10, line 30, after ("assembly") insert (" (other than one intended to be held in that section of a park where assemblies are customarily held) "). The noble Lord said: Clumsily worded though the amendment unavoidably is, I trust that its purpose will be clear to the Committee. It is to ensure that traditional, open-air meeting and debating places such as Speakers' Corner in Hyde Park are allowed to continue their traditional role without hindrance and without bureaucratic interference, although always subject to the ordinary, common law restrictions on actions likely to lead to a breach of the peace.

I do not imagine that it was ever the Government's intention to circumscribe meetings at Speakers' Corner and similar traditional open-air meeting places. The amendment is designed to avoid such a danger, although I fully accept that its wording will almost certainly need to be tidied up. I beg to move.

Lord Mishcon

It is to be expected that there would be support from these Benches for such a liberal amendment, if I may put it that way, but on reflection one has to decide either that the Bill's provisions are necessary to deal with assemblies which are a menace or that they are not necessary.

If the provisions are necessary, then to except Hyde Park Corner or assemblies in parks would be to drive a horse and carriage and a few donkeys as well through the whole of the Bill. All that a rather nasty organisation would have to do would be to decide to hold all its future meetings and assemblies in the parks at places where it is customary for meetings to be held. I therefore say with deep regret that I do not think that is is unintentional that the Bill omits the exception which is embodied in the noble Lord's amendment.

The Earl of Caithness

The noble Lord, Lord Mishcon, puts the matter succinctly and it does not behove me to follow him in great detail because he encapsulated most of the points of my argument.

Hyde Park was the scene of serious riots on several occasions in the 19th century; and in fact it was after the 1955 riots, caused no less by the subject of Sunday trading, that its policing was handed over to the Metropolitan Police. I believe that we should be fair and even handed. Although we all wish to see areas such as Speakers' Corner continue to provide a platform for speakers of various views, we believe that it would be wrong to accept the noble Lord's amendment.

Lord Monson

I do not seem to have received much support for this amendment. I am fascinated to know that there were riots in 1955 over Sunday trading. One lives and learns. In view of the lack of support, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 48AA and 48AB not moved.]

Baroness Stedman

moved Amendment No. 48B. Page 10, line 41, after ("may") insert ("or may not"). The noble Baroness said: I looked at the Government's amendment, No. 62BA, in the hope that it might cover the point of my amendment and that I might not have to move it. I wish to voice the concern of the non-metropolitan police authorities in England and Wales—again from the shire counties—because they are especially concerned about the problems of the band of travellers known as the "peace convoy".

Although the "peace convoy" when travelling from place to place is a procession, it is doubtful whether it falls within the definition of a "public procession" in the Bill. The amendment seeks to add to the conditions which the police might impose on public assemblies a further condition that such a procession should not take place at all in a particular place, if that is what they wish.

Under the Bill, when imposing conditions upon assemblies, the police can direct the course of a procession, but unless this amendment or something similar is accepted the police do not appear to be able to direct the position of any public assembly and to say that it shall or shall not be held in a certain place. I beg to move.

The Earl of Caithness

An amendment identical to the amendment moved by the noble Baroness was moved in Committee in another place but for very different reasons, as I understand it. It was taken into account by the Government, who brought forward an amendment on Report in another place. They substituted a revised power enabling the police to impose conditions as to the location of an assembly, and the Committee will find that on line 40, page 10. That provision will allow the police to give negative instructions of the sort which the noble Baroness requires. I hope therefore that she will accept that we have taken care of her point.

Baroness Stedman

I am most grateful to the noble Earl. In view of what he says, I shall withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 49, 50, 50A and 51 not moved.]

Clause 14 agreed to.

The Earl of Halsburymoved Amendment No. 52: After Clause 14, insert the following new clause:

("Persistent offences

.If on more than one occasion within a period of 12 months a person be convicted of having committed any one or more of the offences under sections 11 to 14 of this Act, the court may without derogation from such other penalty as may be imposed, order such person not to organise or take part in any public assembly or procession to which this part of this Act applies for a period which shall not exceed 3 years; and on conviction of a person subject to such order or any offence under sections 11 to 14 of this Act, the court may without derogation from such other penalty as may be imposed, impose a fine which shall not exceed level 5 on the standard scale or a term of imprisonment which shall not exceed 6 months, or both.").

The noble Earl said: This is an attempt by myself and my noble friends to legislate for the persistent offender of the type we describe as bully boys, rent-a-mob lads, flying pickets and the "nasty brigade" generally.

The purpose of the amendment is to take a man who has had a second conviction within 12 months and empower a court to place an embargo on him taking part in any further processions, demonstrations and so forth for a period not exceeding three years. If during the period when the embargo is in force he takes part in a procession, commits an offence and is convicted for the third time, a severe penalty can be imposed upon him and he can be sent to prison for a period not exceeding six months.

This is an attempt to put some teeth into the Bill's provisions at this point. I am greatly obliged to my noble friend Lord Campbell of Alloway for helping with the drafting and to my noble friend Lord Allen of Abbeydale for the support that he has given me. I shall leave him to speak on his own account on this matter if he wishes. The amendment is a simple one. I shall be interested to see what the Committee thinks of it. I beg to move.

6 p.m.

Lord Allen of Abbeydale

I should like to say a few words in support of the amendment. For good or bad, I was concerned with the problems covered by the Bill over a long period. Indeed, although it hardly bears thinking about, I had some slight involvement with the 1936 Act. One aspect that has bothered me throughout has been the contribution to disorder made by those who attach themselves to any march or demonstration that is going, not because they have any concern with the object of the march or demonstration, but simply in the hope of making trouble themselves or joining in the trouble that anyone else starts.

One consequence of the new clause will be to provide a means, modest enough in all conscience, to try to deal with those who persistently follow such practices. There is something of a precedent, although not an exact one, in the totting-up procedure for road offences—a procedure that seems to work reasonably well.

Looking again at the drafting of the amendment, I wonder whether the period of 12 months during which we suggest that the qualifying convictions have to be acquired may be rather too short. Anyway, I have been around for too long to suppose that the rest of the drafting will necessarily be acceptable to the Government. Nevertheless, I hope that even if the details have to be looked at again at a later stage, the Government will be able to express some sympathy with the ideas underlying the amendment. If they cannot, I hope that the Minister will be able to explain pretty clearly why they cannot.

Lord Silkin of Dulwich

I hope that the Committee will not accept the new clause. We, on these Benches, believe that it is undesirable in principle and probably impracticable to enforce. Before coming to the main objection, may I take up a point referred to about the drafting? I am not myself clear as to what, in practice, the penalty would refer. The words are, not to organise or take part in any public assembly or procession to which this part of this Act applies". Does that mean a public assembly or procession in respect of which some order or direction has been made; or does it mean all public assemblies or processions that might fall within the ambit of this part of the Bill, irrespective of whether a direction or order has been made or has not been made? The first alternative would certainly be very limiting. The second would be so broad that it would be difficult and indeed, unfair.

In principle, I am not sure whether it is a particularly good idea that we should stretch out indefinitely the powers of the court to ban people from doing certain things. For a long time virtually the only one, and certainly the best known, although there may have been others, was banning from driving. That was a very proper form of ban. Lately we have added to that to some extent. We exclude people, or may exclude people from football matches. The question is whether we should now go into what is a very political field. If such an order were made, there is no doubt that there would be grave anxiety in many cases that the order might be thought to have been made for political reasons. One can see a situation in which some well-known person—I refrain from mentioning examples—in the political field were made subject to such an order with a fairly light punishment apart from the order. It would undoubtedly be said that this was being done merely to shut him up. The very possibility that such a criticism might be made, and might be made in particular of the courts, means, it seems to us, that one should be extremely careful before accepting that such a power be given to the courts.

Apart from the drafting problem, which no doubt can be put right, how practicable is it to ask the police to enforce a ban for up to three years on a particular person not merely organising but taking part in any public assembly or procession to which this part of the Bill applies? To ask the police to monitor such an order and to follow people around to see whether they take part, either in the more limited form of assembly or procession in respect of which a direction has been made or, much more so, any procession or assembly in respect of which a direction might have been made, would be an impossible task. It is not one, I am sure, that the police would welcome. Indeed, this is very much in line with their opposition to the amendment to which I spoke earlier. While the White Paper took one view, it appeared to me, from what the Minister said, that, due very much to the opposition of the police, the Government had gone back on what they suggested in the White Paper.

I imagine that the police would be most reluctant to seek to enforce a clause of this nature which might mean that for three years they were looking out for a particular person to see whether he was taking part in processions or public assemblies. This is, I suggest, an impossible and absurd task to put upon them when they should be doing other things. We would need to be seriously convinced of the utility of this provision before we could even think of giving it our support. At the moment we are very much inclined to oppose it.

Lord Hutchinson of Lullington

I would also oppose the amendment as a matter of principle. It is very dangerous to pursue a course whereby, for an offence that has been made punishable only by a fine, there is introduced a term of imprisonment for an aggravated number of times of committing that offence. That is extremely dangerous. To do that, one must have two offences—one the fineable offence and the second the aggravated offence that carries imprisonment. Over and over again courts are intensely irritated by people constantly coming back having committed an offence that is only fineable and who have to go on being fined. It is very dangerous to say that it is all right to commit the offence twice but that if it is committed three times, the offender goes to prison. It happens, of course, with prostitution and so on, where, over and over again, this situation arises.

Very easily the courts can become irritated by individuals and impose imprisonment when imprisonment is not justified by the offence itself. After all, many of the offences here are extremely trivial. They involve making a mistake in regard to the route, giving the wrong address, being an organiser twice in a year, being wrong as to the time of the procession, and so on. All could give rise to a term of imprisonment for six months. That would not be right.

Lord Campbell of Alloway

I should like to apologise to the Committee for not having been in my place when this matter was raised. As my name is on the amendment, perhaps Members of the Committee will grant me the indulgence to say a word about it.

I take the point that any new form of legislation warrants very careful justification. I do not take the point made by the noble and learned Lord, Lord Silkin, that this is undesirable. In some form something is desirable for a persistent offender in this particular situation. Nor do I take the point, with respect to him, that it is impracticable; maybe it is impracticable in the form in which it is cast, but the concept is far from impracticable. The object of the amendment is to increase available sanctions under the preventive measures, which they are indeed, in Part II of this Bill in the case of the persistent offender. The range of offences falls within Clauses 11 to 14. Clauses 12 and 14, as the Committee appreciates, do not apply to Northern Ireland, and this amendment is subservient to Clause 35 which so provides.

The common factor which runs through Clauses 11 to 14 is the prevention of public disorder. There are various degrees of gravity depending upon the circumstances and upon the number of previous occasions upon which a person has been convicted of such offences, which goes to gravity. At the moment under Clauses 11 to 14 there are two levels of penalty: organising, which is under Clause 11; taking part which is under Clauses 12 and 14—with a maximum fine of £400, which is level 3. Organising, under Clauses 13 and 14; incitement, under Clauses 12 and 14; incitement, under Clauses 13 and 14—with a maximum fine of £1,000, three months, or both, which is level 4.

I would respectfully suggest that these levels of penalty are inadequate to give the courts powers to deal with the persistent offender. Subject to certain safeguards, certain available sanctions should be akin to those provided by Clause 4 of the Bill for fear of provocation of violence. That is to say, as proposed by this amendment, six months' imprisonment, a fine of £2,000, which is level 5, or both. The safeguards envisaged—and there are safeguards—are such that this sanction should only be available on the third conviction for any one or more of the Clauses 11 to 14 offences, limited construction, on conviction, where on any second such conviction within a period of time, say 12 months as in the amendment, a prohibition order which shall never exceed three years has been made. Then on the third or subsequent conviction that constitutes a breach of that order and brings into play the increased sanction proposed by the amendment.

In answer to the noble Lord, Lord Hutchinson, the making of the prohibition order in the first place is wholly discretionary, and unless it is made the two levels of penalty under the Bill as it stands remain. If by effective initial action under Part II of this Bill a Wapping-type situation can be avoided or the risk curtailed, an increased available sanction for persistent offenders would be justified in principle. But Wapping is not the only situation where the thin blue line was stretched to all but breaking point. As the Committee knows, on a single day there were 175 officers injured; 43 required hospital treatment; and over the whole period there was 660 injured and 27 on sick leave.

As to the practicability, the persistent offenders are well known to the police. There are two types of persistent offender in this context of public processions and assemblies who are disposed to flout the provisions of the law. There are the trouble makers who have no concern with the object of the procession or the assembly; and there are those who have such concern but seek to attain the object by intimidation, violence and other unlawful means. To take the Wapping statistics, for example, they only confirm that out of 1,061 arrested, more than one half had nothing whatever to do with the dispute and included unemployed, probation officers, local government officials, social workers and others who came from all parts of the country. In these circumstances in these days, it is respectfully suggested that the persistent offender of whichever type can but manifest a total contempt for due government and the rule of law. If the available sanction of six months' imprisonment and even a £2,000 fine were to be imposed on those who indulge in persistently offending, this would serve as an aid to prevention. One has to bear in mind that the fines are all too often paid by those whose cause the offender supports.

Prevention is the priority of all priorities in any system of law enforcement. It is the principle which I ask my noble friend the Minister to take back and consider, obviously taking into account the criticisms that have been made in Committee of the various aspects of the problems which arise. The drafting as such is, if I may say so, always suspect. Behind it there is the germ of what I respectfully suggest is a worthwhile idea, a sensible preventive measure. All that I am asking is that my noble friend the Minister should consider how it may be improved.

6.15 p.m.

The Earl of Caithness

The purpose of this new clause as the noble Earl, Lord Halsbury, has explained, is to provide enhanced penalties for those who persistently commit offences under Part II. I can see the logic in saying that where someone persistently and deliberately disobeys the law in this way he should be treated more firmly than a first offender. But that is what happens already in practice.

The general principle employed by the courts in exercising their sentencing powers is that when dealing with a first offender, they take into account his previous good conduct and mitigate the sentence accordingly. The second time he appears there is no such mitigation and he is likely to be treated more severely than before. This might mean being fined more heavily or, if he has committed one of the more serious offences in Clauses 11 to 14, being sent to prison. The maximum sentences reflect what is the appropriate and proportionate sentence for someone who commits either a serious example of the offence, or is persistent in his offending. So in setting the maximum sentences we aim to give the courts sufficient powers to deal with offenders who come before them a second time for the same type of offence.

In the past the statute book took a different approach and used to contain a number of enhanced penalties. But these have nearly all been swept away, most recently by the Criminal Justice Act 1982. All that remains are these express exemptions in Sections 33 to 36 of the Sexual Offences Act 1956, and Section 1(2) of the Street Offences Act 1959. Therefore, those are the categories with which we would link these people even if this amendment was accepted.

Even if we were prepared to put into reverse modern sentencing principles, and accept that subsequent offenders convicted of offences under Part II should be subject to enhanced penalties, I could not possibly accept the prohibition order contained in this amendment. It would enable a court to prohibit someone from taking part in any public assembly or procession for a period of up to three years. That would be an extraordinary restriction on his liberties. A public procession is any procession in a public place; and a public assembly is defined as any assembly of 20 or more persons in a public place in the open air. A prohibition order would thus prevent someone not just from attending demonstrations but from taking part in activities like marching in the band of the Boys Brigade, or going to open air concerts, cricket matches, or even standing in the Mall to watch the Royal wedding—all would be out of bounds.

My noble friend Lord Campbell of Alloway went to the kernel of the problem when he said that he is really concerned whether we have pitched at the right level the maximum sentence for the offences under Part II. We propose that organisers who breach police conditions or banning orders, or those who incite others to do so, should be liable to a maximum sentence of three months' imprisonment and/or a fine of £1,000. That is the present maximum under the Public Order Act 1936; and that in the Government's view is the right level for the mischief involved. The nearest analogy is the offence of obstructing a police constable in the execution of his duty, which is subject to a maximum of one month's imprisonment and/or a fine of £400. So for organisers and inciters we are already proposing a heavier sentence than for the offence of obstructing the police. And if in addition they commit offences of threatening behaviour or of violence, or incite others to do so, then they will be subject to the more severe penalties for the public order offences in Part I of the Bill: six months' imprisonment or £2,000 for threatening behaviour, and three years' or five years' imprisonment and/or an unlimited fine on conviction on indictment for affray or violent disorder.

I could not help smiling when the noble and learned Lord, Lord Silkin of Dulwich, said that in principle he was against this amendment of enhanced penalties, because that is exactly what the Opposition wish to put forward when we come to Amendment No. 57 on Part III of the Bill, which we shall be discussing perhaps in more detail at a later stage and on a later day. In our view the enhanced penalties provided for in the noble Earl's new clause are therefore unnecessary and the power to prohibit someone from attending any procession or public assembly is wholly disproportionate and an unacceptable infringement of an individual's liberties. In the light of what I have said, I hope that the noble Earl might consider withdrawing his amendment.

Lord Harmar-Nicholls

My noble friend may well have satisfied the legal purists, particularly on the other side of the Committee, but I do not think that he will have given much satisfaction to the general public. The general public, particularly those who are the victims of these persistent professional interventionists in processions, should like to think that someone who is seen to be doing this persistently ought to have it dealt with as a misdemeanour by the court itself.

A few years ago we had a series of processions in Grosvenor Square, and my noble friend will have read how the people who lived in Grosvenor Square and worked in the offices there could look through their windows and always see the same people, whatever the procession was about and whatever the principle behind it. The most truculent were always those who could not be identified with any particular principle. Although this amendment has been conceded, even by the mover, I must say that I do not think that the wording is necessarily correct. Like my noble friend, I should have liked a clearer indication from the Government Dispatch Box showing that they recognise the dangers and the disruption which the persistent offender causes, and that itself ought to be a separate indictment with which the courts have power to deal.

The noble and learned Lord, Lord Silkin, said that the police could not do it. The noble Lord, Lord Hutchinson, said that it would mean fishing them out. We do not have to do that with people who have lost their licence to drive a motorcar. It simply means that if they are driving having lost their licence and they are discovered, they are that much more likely to be dealt with firmly than if that was not the case. Therefore, I should like a clearer indication from the Government Front Bench that, although they cannot accept the amendment—and I understand that—they recognise the danger of the professional disrupter of processions which invariably leads to some degree of disorder. If the people in power—and at the moment this Government are in power—cannot use a Bill of this sort to cater for the nation's needs, there will be some disquiet in the minds of people who want to continue to support this Government.

The Earl of Caithness

I hope that it does not cause that amount of disquiet because, on reflection, I hope that my noble friend will read what I said about the increased penalties for someone who commits a greater degree of mischief. Indeed, the persistent offender is probably one such person. If that is what he does and he is caught and punished, he will receive a graver and more serious punishment than he would receive for a lesser mischief.

However, if we are to go down the road which my noble friend wants, we must look very carefully at all aspects of the law. As I have said, I am not a lawyer, but I believe that we shall be opening a Pandora's Box of analogies that will need to be examined. If we say that on this particular subject the persistent offender needs a firmer penalty, then we shall have to look at the analogy which I gave of the offence of obstructing a police constable in the execution of his duty, and so on. Although my noble friend has the support of a number of people, I believe that we should be doing a grave injustice in singling out the particular perpertrators of this mischief in this Bill at this time.

The Earl of Halsbury

On an original and far-reaching amendment of this kind I would not wish to divide the Committee as opposed to withdrawing the amendment, while reserving my right to return to the matter in the future. Naturally I shall study very carefully everything which the noble and learned Lord, Lord Silkin, has said and also the remarks of the noble Earl who speaks on behalf of the Government. The idea that the police should chase people around if they are not committing disorders, because of the embargo order, was not part of my original intention. It was to couple the embargo in the sense of "You have been warned", with a very severe penalty if a third offence is committed.

I do not want to indulge in a Second Reading speech, but one must remember that these offenders are subsidised. The thought behind this was to make it unprofitable to subsidise people to break the law. I cannot of course prove that that is the case, but there is a very wide belief that many of these offenders are subsidised.

I should not wish anyone to suppose that I am against displays, processions and so on. Animal ethnologists recognise a form of group display in which a whole colony tells the rest of the world "Here we are; we are such as we are". If noble Lords have ever visited a ternery where terns breed, they will have found that the entire colony suddenly wheels out to sea in mass formation and then they come back to their nests and continue fluttering, squawking and fishing for sand eels.

The object of all these displays in nature is to substitute a mock combat for a real one. When one of our processions collapses into disorder it means that the protective mechanism has broken down and therefore we must not be over-liberal in our attitude to try to rebuild that protective mechanism by enforcing peaceful behaviour on people in crowds. Having said that, I beg leave to withdraw the amendment standing in my name.

Amendment, by leave, withdrawn.

Clause 15 agreed to.

6.30 p.m.

Lord Teviot moved Amendment No. 53: After Clause 15, insert the following new clause:

("Cost of processions.

.—(1) The person organising a procession shall be liable to reimburse one half of the costs incurred as a direct result of the procession by—

1. (a) provision of a police escort and other services by the police,
2. (b) variation of a bus service which would normally at the time of the procession operate over the route or a section of the route along which the procession is held, or
3. (c) any other person who has a duty, not being a commercial duty, to provide a service on or adjacent to the route of the procession.

(2) In subsection (1) "bus service" means—

1. (a) a local service as defined in section 2 of the Transport Act 1985 and registered in accordance with section 6 of that Act, or
2. (b) a London local service as defined in section 34 of that Act.

(3) A claimant of costs under subsection (1) of this section shall serve on the organiser of the procession at the address specified in the notice given in accordance with section 11 above a statement of account certified, except in the case of the police, by his auditor and unless an appeal is lodged in accordance with the provisions of subsection (3) of this section the organisers shall pay the amount demanded within 28 days of receiving the statement, thereafter the amount may be recovered by process of law.

(4) Within 21 days of receiving a statement of account the organiser may appeal to the Transport Tribunal against the amount of costs claimed on the grounds that they are unreasonable; and the appeal must be made in the prescribed manner.").

The noble Lord said: I beg to move Amendment No. 53, which is a new clause, and very different from the previous new clause, and with it speak to Amendment No. 65. Despite the Marshalled List it seems to me that the clause would fit better after Clause 14. I should also mention that in subsection (3) of the clause the reference to subsection (3) should be to subsection (4).

In introducing this new clause I must first refer to paragraphs 6 and 16 to 19 of the White Paper, Review of Public Order Law, Cmd. 9510. They are summed up in proposal No. 32, which states: The possibility should be explored of introducing a power to enable a police authority to recover policing costs from the organisers through civil proceedings where conditions imposed by the police on a demonstration had been breached.".

I emphasise that Her Majesty's Government wish this possibility to be explored, and would point out that in the 16 months since the White Paper was issued this House has done nothing to assist the Government. Undoubtedly this nettle could give us a nasty sting, so maybe we should not grasp it, but let us at least examine it. Maybe it should be grasped but I may say that the amendment will not be pressed. However, one should open up this debate on this particular subject on a broader basis than the White Paper.

Let us look first at the cost of policing demonstrations. For London alone in 1984 it was nearly £6 million, and a single demonstration sometimes involved more than 1,000 police officers, with costs exceeding £100,000. The White Paper tells us that the cost of policing Greenham Common over the 1983 Easter weekend was more than one third of a million pounds. Then we have the so-called pickets. These figures take no account of the cost of crimes perpetrated while the police were diverted from routine duties.

On the other hand sometimes the policing is of occasions which are largely ceremonial and traditional and part of our heritage. The cost is still great, but where should we draw the line? Or should we draw the line? To overcome the greater problem maybe public authorities should meet the cost even if, sometimes, it is only to transfer money from one pocket to another. The money for the police must come from somewhere and already, apart from the rates, charges are made for the presence of police officers on private property such as sports grounds. Every little helps, while our generosity to demonstrators may be seen as a bonus for the criminal.

I have spoken about the police but let me make it clear that I do not speak for them. Let me also pay tribute to them for their dedication to their job, including public order. They are fair-minded and generous in their attitude to demonstrations, and would be the last to seek to curb the democratic freedom of the communities they serve. I do not have the answers but the question still needs to be asked because the problem does not stop with the police. Processions prevent others from performing their public duty and cost them money too.

In considering this part of the Bill, I have earlier referred to the problem of public transport being increasingly disrupted by these walking road blocks. I have also given examples at Second Reading of costs of many thousands of pounds for a single procession. Overall, processions are extremely damaging to the bus industry because it can neither afford the financial cost nor the less-definable cost to the public's image of its reliability.

Under Clause 11 we considered the benefits of direct notification to the bus management by organisers of processions. One sincerely hopes that Clause 11 will result in improved communications and a lessening of disruption, but will it be enough? The Civic Government (Scotland) Act 1982 was the first measure to introduce notification. My advice regarding the working of this Act is that it has improved arrangements for dealing with diversions, and in some cases bus operators have been able to influence the times or routes suggested for processions. However, such success has been very limited and it prompts one to ask whether legislation has yet gone far enough in protecting the man—to use a good old cliché—on the Clapham omnibus from the high spirits of his peers—albeit a small minority of them.

I am sure we do not doubt the importance of our public transport systems. I am sure that we do not wish to make it more difficult for them to perform their public service, but year by year it is becoming more difficult because of the growth in the number of demonstrations. I think it is right that we should address ourselves to these problems.

Nor does it stop there. There are others who have a duty to provide services on or adjacent to the routes followed by these processions. I confess that I cannot begin to provide a wholly comprehensive list but it seems to me that—although the needs of such services cannot be forecast—our ambulances and our fire engines may be delayed even at the cost of life. One cannot put a price on that, but if a cost can be established the right to claim is just as great as for the police and for bus services.

Because of the difficulties of definition, I have deliberately made paragraph (c) of subsection (1) a "catch-all", though even I doubt the wisdom of extending such a provision to purely commercial services, however much businesses may claim they have a duty to their customers. So, I have tried to cover the range of legitimate public concern regarding the cost of public processions. As I have indicated, I have introduced this new clause as a basis of debate but, should it find favour with the Committee, I am sure I shall be told that, in pursuit of such a complex and delicate provision, the drafting of the clause is deficient. I would not argue with that, not in respect of subsection (1). I have some confidence in subsection (2), but again I would not argue in respect of the remainder of the clause, which seeks to introduce a basis of appeal on the grounds that a claim is unreasonable.

I have always emphasised the need for balance in dealing with the problems of demonstrations and this underlies the provisions of subsections (3) and (4). I can find no better vehicle for the appeal than the Transport Tribunal, although others more learned in this field may bring forward more satisfactory alternatives. Nevertheless, in the clause, with its consequential amendment, No. 65, to Schedule 2, I believe I have introduced a necessary element in the overall concept.

Who can fail to recognise the difficulties of this problem? Indeed I begin to wonder whether it is a minefield rather than a bed of nettles, but problems have to be faced. They do not go away if we merely ignore them and, in the field of public order, we are going through a phase where problems are increasing. I am sure, however, that this is an area where we progress in cycles and if today the problem is on the increase, tomorrow it will recede to some extent. We must therefore not overreact but at the same time we must do everything possible to reverse the present trend.

It is in this spirit that I introduce this new clause. I ask the Committee to give it serious consideration and at least to see whether it can help us to find better directions for the future. I am sure that my efforts will incur criticism. I hope however that it will not be merely negative criticism, and that from our debate we may draw knowledge which will assist us to improve the environment in which we live. I beg to move Amendment No. 53, which is a new clause.

Lord Denning

I hope that the Committee will give careful consideration to this proposed amendment. I think it was in 1925 or 1926 that the very problem——and it is a constitutional problem—came before the courts. The position is that every British subject owes a duty of allegiance to the Queen, to the Crown. But corresponding to the subject's duty of allegiance is the Crown's duty to protect the public. Protect it according to law. For that purpose the Crown must provide a police force and the expense of it all to protect Her Majesty's subjects here, and that is done every day.

If a burglar comes and you call the police, of course you do not have to pay them. If there is trouble or a riot outside and the police are called, they do not have to be paid. The problem came to light in the 1920s when a colliery company had trouble inside its works and called the police to help to put it down and restore order. It came as far as this House, because the police authority said that the mining company should pay for the service.

It was a matter of principle. The House of Lords judicially said that for all ordinary services of the police and extraordinary duties to protect the public they are not to be paid and have no right to payment. But there are special circumstances in special situations when the police or the police authority ought to be remunerated for their services. The House did not define what those special services might be.

I suggest that this amendment is an arguable case for special consideration. We all know what happens. A procession is organised deliberately and the police have to line the route and go to and fro with the marchers; they are taken off their other duties to keep the procession in order; buses have to be diverted, and there is expense to everyone. Is this not a special case where those responsible for the disturbance ought to make a contribution to help to pay for the expense to which the country is put in providing police protection?

In constitutional principle I say there is a case for regarding this as a special circumstance, enforceable in the civil courts, where the police authorities might receive some compensation for the services they have rendered. I suggest that this is a matter for careful consideration.

Lord Mishcon

I am sure that the Committee is indebted to the noble Lord, Lord Teviot, for the careful way in which he has prepared his case, in which he obviously and sincerely believes. I intend to be very brief. This provision is impracticable, if it is right, and I do not believe it to be right. It is impracticable because it applies, as the noble Lord will appreciate, to every procession.

A procession is defined in the Bill as a public procession in a public place. Therefore the provision would apply to all lawful processions—to school children and to the Salvation Army, and I am not at all sure that it would not apply to Trooping the Colour. It certainly would apply to all processions, and it is a charge to be made against the organiser of the procession. I immediately see that all the processions we dislike will have nominee organisers, all of them men of straw, and it would be hard to define them.

The costs they would have to pay would not only be the police costs—a completely unknown quantity and one which would be dependent on the decision of the police as to how many men to have on duty and how long they stay there. There would also be a charge—I do not know whether it would be alternative or additional—for public transport that might be deviated. I hesitate to hazard a guess on the length of time that that would take, with lawyers and accountants engaged on the matter by way of dispute.

Any other public person, not being a commercial enterprise, might think he had a loss as a result of a procession. I do not understand the logic, if the noble Lord will forgive me, especially as he is sitting on those Benches, as to why the poor private trader or other person who has lost money as a result of a procession is not also to be made a claimant. However, it is not my duty from these Benches to put such thoughts into the noble Lord's head, but I do not see the justice of the exclusion of private people or private traders.

But now let me turn to the question of whether the provision is right or wrong. I say this with the greatest deference to the noble and learned Lord, Lord Denning. Of course the police are there to protect Her Majesty's subjects. But they are also there—I remind the noble and learned Lord most respectfully—to protect those who are exercising a perfectly proper legal right. I wonder whether all of us realise what we have been saved from in this country as a result of our being able publicly to assemble and express our views and publicly to demonstrate and to march. We have been spared the horrors in other places of riots and other things. I know to our shame that we have experienced them in certain parts of our country, but even then we have been saved a great deal.

I wonder what the noble and learned Lord would expect of the unemployed if they could not march and protest. I wonder what he thinks would have happened in the days of Jarrow if they could not have marched or protested without paying charges they could not possibly have afforded. The police are doing something—I am sure they will do it justly—to safeguard a liberty and a right. Nobody ought to pay for that except in their ordinary rates and taxes.

6.45 p.m.

The Earl of Caithness

My noble friend has explained that his purpose in part was to pursue a suggestion made in the White Paper about the possible recovery of policing costs from demonstration organisers; and I am grateful to him for raising this so that I can report the response to the Government's proposal. The suggestion floated in the White Paper was the limited proposal that, where police conditions had been breached, the police should be able to recover costs from the demonstration organisers. But this limited proposal received very little support on consultation. In particular, it received no support from the local authority associations representing police authorities which would have been its financial beneficiaries.

My noble friend's proposal goes much wider, since it would apply to all processions; and it would enable merely the police but other services to claim compensation from the organisers of a procession. There is no limit in his amendment on the kind of procession which is covered, so that state visits and processions like the Lord Mayor's Show would all be caught by the provision.

But a general provision of this kind, even if restricted to demonstrations, would give rise to formidable practical difficulties in identifying who was responsible and in enforcing payment. Where more than one organisation was involved, it would be difficult to apportion the costs between them. Even where a demonstration was on behalf of a single organisation, the sort of groups which organise demonstrations often have no legal status, still less any assets lying behind them, as the noble Lord, Lord Mishcon, said. Nor would it always be fair to charge the organisers, because a heavy police presence is sometimes required not because of the procession but because of the degree of opposition to it; or because of elements in the procession outside the organisers' control.

For these reasons, the Government concluded that it would not be possible to devise a general provision for recovering costs from demonstration organisers which would be workable in practice. I am afraid nothing I have heard today has persuaded me that we were wrong in that conclusion. We have already discussed the disruption which demonstrations, especially the bigger marches, can cause; and I hope that my noble friend agrees that the provisions we have already debated represent an improvement on what we had before.

Lord Denning

I appreciate the arguments of the noble Lord, Lord Mishcon, and the noble Earl, Lord Caithness. I agree with them and I do not support the amendment any more!

Lord Teviot

That saves me the time of arguing the arguments between the noble Lord, Lord Mishcon, and the noble and learned Lord, Lord Denning. However, I come back to the first point made by the noble Lord, Lord Mishcon, and also touched on by my noble friend, about these great state occasions and whether they should or should not be paid for. We are living in a world where things have to be paid for and accounted for. Whatever occasions they may be and however prestigious, there should not be a nod and wink and a feeling that they are cosy.

However, I have listened to the arguments and I am quite sure that this is not the occasion to pursue these remarks; but there might be occasion for future legislation in one year's, five years' or 10 years' time when one may return to them. I am not totally satisfied with the arguments since I feel that such people as public transport operators and those of other services which are not privatised and never will be privatised have to account for them and that this is something which is far beond their concern. It is very unfortunate for them. I shall not take up further parliamentary time on this occasion, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Elwyn-Jones moved Amendment No. 54: Insert the following new clause:

("Revocation or variation of orders under section 12, 13(1) and 14.

.—(1) A person on whom any conditions have been imposed under section 12 or section 14 of this Act may apply to a magistrate's court or to a judge of the Crown Court and on the hearing of the application the court or judge may revoke or vary the conditions and may impose any conditions which the senior police officer might have imposed.

(2) Any person included in the electoral roll of the district in respect of which an order under section 13(1) of this Act has been made may apply to a magistrate's court or to a judge of the Crown Court and on the hearing of the application the court or judge may revoke or vary the order and in particular may so vary the order as to include, conditionally or otherwise, any particular public procession from the operation of the order.

(3) This section is without prejudice to any power of the High Court on an application for judicial review under section 3 of the Supreme Court Act 1981.").

The noble and learned Lord said: Powers granted to the police under Clauses 12, 13 and 14 are significant intrusions on liberty, however justified some of them may be. My submission, and the point of this amendment, is that it is inappropriate that serious derogations from civil liberty shall be wholly and finally in the hands of the police, as is the case with Clauses 12, 13 and 14. It is true that the provisions of the Bill do not affect the right to judicial review; indeed, this is expressly provided for in the amendment in subsection (3).

However, as we were reminded by the noble and learned Lord the Lord Chancellor earlier today, judicial review only directs itself to the question of whether the decisions that are complained about have been properly reached. It does not involve the merits of the decisions themselves. Therefore, it is all the more important that those discretionary powers that are given to the police in this Bill are carefully defined and contain safeguards within them so as to ensure that reasonable use is being made of them and to enable an effective form of appeal to the Judiciary to take place. What is needed, I submit, is a procedure for quick, informal review, when the need arises, of the merits of the police decision by a judicial authority which is familiar with local conditions. High Court judges are for the most part based on London. Crown Court judges would therefore fulfil this role better, but perhaps magistrates would be even more familiar with local conditions, and I put them first in the amendment.

The amendment would permit access to the Judiciary for all cases except where the conditions are imposed on the spot by the senior police officer, as in Clause 13(7). It is not the case that the doctrine of separation of powers or practical considerations make it improper for courts to decide these things. For example, one may look at the extensive appeals system incorporated by Parliament into schedules to the Local Government Act 1982 dealing with street trading and licensing. My noble friend Lord Morton of Shuna has drawn my attention to the provision in the Civic Government (Scotland) Act 1982 whereby the sheriff may uphold an appeal under the section—and that is the section dealing with the power of councils in relation to processions—only if he considers that the regional or islands council in arriving at their decision to make the order erred in law, or based their decision on any incorrect material fact, or exercised their discretion in an unreasonable manner, or otherwise acted beyond their powers.

That is a statutory precedent for what is proposed in this amendment. I think it is an important one. I believe that it will reassure the public about the powers we are giving to the police and that it should not hinder the police themselves. They ought to be able to meet any proceedings in the courts of justice. I beg to move.

The Earl of Caithness

This amendment would provide a right of appeal to either a magistrates' court or to the Crown Court against conditions imposed by the police under Clauses 12 or 14; and it confers a similar right of appeal against a banning order imposed under Clause 13(1), but the right is confined to local electors in the district concerned. Banning orders in London would not be subject to appeal. On appeal, the courts would be able to revoke or vary conditions imposed by the police, or the terms of a banning order; and in the case of a ban the court could spell out that it applied to a particular procession.

The essential question posed in this amendment is whether there should be a right of appeal against police operational decisions. As your Lordships' Committee is aware, police decisions in imposing conditions or seeking a banning order will in any case be subject to challenge in the courts under the judicial review procedure. This is a sensible and necessary safeguard. It will enable the courts to ensure that the police took account of all relevant conditions and did not exceed their powers.

The Green Paper explained the difference between judicial review and a right of appeal in paragraphs 56 and 57, as follows: It seems necessary at the outset to distinguish two concepts: judicial review of whether decisions have been properly reached; and judicial involvement in the merits of the decisions themselves.… Judicial involvement in the merits of decisions … would be a new departure in this field … the courts would be involved in examining not the procedural propriety of a decision but its, actual merits …the arguments [against such a novel departure] are substantial. In addition to practical questions they include the objections of principle that the courts are not best placed to take decisions about major public order matters and that they should not be involved in making decisions about political or administrative matters as opposed to questions of law". If we were to accept this amendment, we would be asking the courts to make a decision not on a question of law but on a matter of policy. We would be asking them to second-guess the operational experience of the police, and to substitute their own decision. We do not believe it is appropriate for the courts to perform that function; nor do we believe they are well equipped to do so. What they are well equipped to do is to pass a judgment on whether the police were acting within their powers (including as to the "reasonableness" of the decision, using that term in the sense the courts do in the matter of judicial review), and whether they followed proper procedures in coming to their decision. That is the scrutiny the courts bring to bear in applicatons for judicial review; and we do not believe that it would be right to go further than this and invite the courts to substitute their own judgment for that of the police.

There is also a practical difficulty in establishing a right of appeal. The difficulty is the time factor. The police very rarely impose conditions at present, and are unlikely to do so much more frequently in future. They impose conditions only when they fail to reach agreement through negotiation with the organisers. Often they will negotiate until the last moment and impose conditions only as a last resort. They may also need to impose conditions on the spot to deal with circumstances that have arisen in the course of an assembly or procession. A right of appeal is wholly impractical in those circumstances, and it is likely to be impractical where conditions are imposed a short time before the event.

In summing up I cannot do better than quote from the noble and learned Lord, Lord Scarman, in his report on Red Lion Square: It is best that a decision to ban a march should require the consent of a politically responsible Minister such as the Home Secretary which under the existing law it does". In the Green Paper, we suggested that it would be inappropriate for the merits of a decision of the Secretary of State under the 1936 Act—as against its procedural propriety—to be subject to appeal to the courts; and that it was difficult to see on what basis the court could determine an appeal except by setting its judgment on what would not be a legal question beside that of the Minister.

None of the comments we have received on the Green Paper or the White Paper has persuaded us that our preliminary view was wrong. In relation to the banning procedure the courts would not only be second-guessing the judgment of my right honourable friend but of the police and of district councils as well. We do not believe that is the proper function of the courts or one that they are well equipped to discharge. I hope that the noble and learned Lord will withdraw his amendment, but I fear that if he does not I shall have to ask the Committee to vote against it.

7 p.m.

Lord Hutchinson of Lullington

I wish to interrupt this debate for one moment to ask where have we got to on this question of appeal now, having regard to what the Minister has said? We have been told that so far as imposing conditions is concerned you can go for a review on the question of whether the police officer had a reasonable belief that what was going to happen would cause disorder or damage. He has to have that reasonable view. That is appealable; that is subject to judicial review; and whatever the Minister may say about time, impracticability, and so on, before he ever imposes a condition his "reasonable belief' is subject to review. That answers that question.

Then comes the condition. Supposing he imposes a totally unreasonable condition, in the view of an ordinary person. Supposing he says, "You have permission to do so and so but I impose a condition that you cannot go up that street; you have to go up another street which will take you out into the country and you can have your procession in the woods and fields"—whereas the purpose of the procession is to protest against something which is happening in the city.

Supposing that happens, we have been told today by the noble and learned Lord the Lord Chancellor that there is no review of that so far as the Divisional Court is concerned. Is there to be no review and no appeal of any sort or kind? If a police officer imposes a condition which is ridiculous is there to be no appeal? When the Minister, with the greatest respect, says that the magistrates' courts are not equipped to deal with administrative matters, I say that of course they deal with administrative matters repeatedly. They are dealing with administrative matters, in that sense, in the licensing world. They are putting their minds to licensing matters all the time. On street trading, they are putting their minds to those things all the time. It is no problem for that court to deal with the question: is this condition in our locality a reasonable and sensible condition or is it an outrageous condition?

That surely is a matter precisely in the ambit of the local magistrates for decision, and I ask the Minister to tell us once and for all: is it the situation in this Bill that if a police officer imposes a condition which any reasonable person would say was ridiculous, that must go forward without any form of appeal?

The Earl of Caithness

This is a very technical area of the law and I now wish I had my noble and learned friend beside me to answer that particular point. I hope the noble Lord, Lord Hutchinson, will read the Official Report very carefully, because what he has said gives a flaw in his argument. He asked: if the police impose unreasonable or ridiculous conditions, what are we going to do about it? That is exactly the point my noble and learned friend took up earlier this afternoon on Amendment No. 38. There is judicial review on the grounds of a police officer making a decision irrationally and illegally or with procedural impropriety. So in the case that the noble Lord has just mentioned of course there is judicial review.

Lord Elwyn-Jones

The whole point is that judicial review is not adequate to deal with the situation. Judicial review is only directed to the question of whether decisions have been properly reached and whether there have been the proper consultations, and so on. It does not go at all to the merits of the decisions themselves.

What I find so disappointing is the non-reaction of the Minister. This is a difficult field. If I may say so without being patronising, he has my full sympathy in this; but the Civic Government (Scotland) Act of 1982 was a piece of Conservative administration. It is given to the sheriff to uphold appeals in respect of orders imposing conditions on processions. Those appeals have taken place and they have been done satisfactorily in Scotland. I have little doubt that the Minister has not been instructed about this. It may be that between now and the next stage of the Bill the information will be made available to him.

There is nothing unique about this or anything inherently difficult about it. There may be some comforting answer—I do not know—but magistrates' courts, as the noble Lord, Lord Hutchinson, made clear in his admirable speech, handle these things if not from day to day certainly from week to week. I therefore implore the Minister to look again at this. However, at this hour I do not think that I should incur the goodwill of the Committee if I were to put the matter for opinion. I certainly intend to return to it and I hope that in the meantime the noble Earl will be properly briefed upon it.

The Earl of Caithness

Before the noble and learned Lord withdraws his amendment, of course I know something—but, not being a lawyer, I do not know in great detail about Section 64 of the Civic Government (Scotland) Act. However, the substance of the right of appeal in that Act is equivalent to our judicial review; namely, the sheriff has to decide whether the council have erred in law, based their decision on any incorrect material fact and exercised their discretion in an unreasonable manner or acted beyond their powers. So there is a similarity; but of course I shall look at this again. It is a very detailed and complex area and I do not hold out much hope of being able to give the noble and learned Lord the favourable response that he would want tonight.

Lord Elwyn-Jones

I do not want to continue this argument across the floor, but Section 64(4) provides that the sheriff can uphold an appeal if he considers that the relevant council in their decision to make the order erred in law, if they based their decision on an incorrect material fact, exercised their discretion in an unreasonable manner or otherwise acted beyond their powers. Most of those matters go to merit and not merely to force. However, we shall return to the matter and I hope that next time round we shall get a better answer. In the circumstances, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Caithness

Perhaps this is a good moment for us to adjourn for dinner and, in moving that we adjourn, perhaps it would be for the convenience of the Committee if I were to say that we shall not return to this Bill until ten minutes past eight o'clock. I beg to move that the Committee do now adjourn.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 7.10 to 8.10 p.m.]

House again in Committee.

Clause 16 [Interpretation]:

Lord Middleton

had given notice of his intention to move Amendment No. 55: Page 12, line 9, leave out ("a public") and insert ("any"). The noble Lord said: The object of this amendment was to use Clauses 14 and 16 for the protection of rural land and communities from the threat posed by large and disorderly gatherings as typified by the so-called "peace convoy" which caused so much damage and disruption during the past summer. However, during the recess the Government have made great efforts in consultation with interested bodies and have drafted a clause which would give power to the police in certain limited circumstances to direct trespassers to leave land. In case I forget to pay tribute to my noble friend's department when we come to debate that clause, I do so now for the work that it has done.

The new clause is proposed in Amendment No. 62BA and if it is agreed to it will, in my opinion, deal adequately with the problem. I understand that that is also the view of the noble Baroness, Lady Stedman, whose name stands with mine on the amendment. I shall therefore not move Amendment No. 55.

[Amendment No. 55 not moved.]

Lord Hutchinson of Lullington

moved Amendment No. 56: Page 12, line 15, after ("public") insert ("at the material time"). The noble Lord said: This amendment to Clause 16 is merely suggesting that the words "at the material time" are inserted after the words to which the public has access". The only point of putting in these words is to fill a possible gap. Any assembly or procession taking place on land to which the public have on a previous occasion had access, even on payment or with permission, might be caught unless the words "at the material time" are inserted to make it perfectly clear that it is that time one is talking about and that permission beforehand would be insufficient. The purpose of this amendment is to make the position completely clear and to avoid what might become a sterile and ingenious argument if—I say with some reluctance—it got into the hands of lawyers. I beg to move.

The Earl of Caithness

The Bill, as introduced in another place, included a definition of "public place" which is currently found in Section 9 of the Public Order Act 1936. That definition incorporated the phrase "at the material time". We were persuaded by the Opposition to replace that definition by one based on Section 1(1)(a) of the Police and Criminal Evidence Act 1984 which does not include the phrase.

It does not come as a surprise to some of us that the Opposition have now changed their minds and that the Alliance is now pulling in a different direction, but we have no strong objections. Indeed, the Government thought it a useful phrase in the first place.

I cannot accept the amendment as it stands, because the draughtsman will have to have a look at it, but I am happy to take it away and reconsider the matter.

Lord Hutchinson of Lullington

I am grateful to the Minister and surprised that he thinks that the Alliance always pulls in the same direction as the other party. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16 agreed to.

The Earl of Caithness moved Amendment No. 56ZA: Before Clause 17, insert the following new clause:

("Meaning of "racial hatred".

. In this Part "racial hatred" means hatred against a group of persons in Great Britain defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins.")

The noble Earl said: With Amendment No. 56ZA I shall speak also to Amendments Nos. 56ZB to 56ZM, inclusive, 64A, 64B, 64C, 68A and 68B. This is the new Part III of the Bill and for the convenience of the Committee it was decided earlier and announced this afternoon that this would be recommitted to a Committee of the House immediately before Report stage. I therefore beg to move.

Lord Mishcon

May I make a comment for clarification? What the noble Earl has said is absolutely right and this is an agreement among all parties interested in this part of the Bill. He probably has noticed that in Schedules 2 and 3 there are references by way of definition which I relate back to Part III. I want to confirm for the sake of tidiness that when we reach Schedules 2 and 3 and incorporate them into the Bill (because there is no point in debating them) the same conditions apply as clearly apply to Part III.

The Earl of Caithness

I am happy to confirm that.

On Question, amendment agreed to.

The Earl of Caithness moved Amendments Nos. 56ZB to 56ZM: Before Clause 17, insert the following new clause:

("Use of words or behaviour or display of written material.

.—(1) A person who uses threatening, abusive or insulting words or behaviour, or displays any written material which is threatening, abusive or insulting, is guilty of an offence if—

1. (a) he intends thereby to stir up racial hatred, or
2. (b) having regard to all the circumstances racial hatred is likely to be stirred up thereby.

(2) An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the written material is displayed, by a person inside a dwelling and are not heard or seen except by other persons in that or another dwelling.

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

(4) In proceedings for an offence under this section it is a defence for the accused to prove that he was inside a dwelling and had no reason to believe that the words of behaviour used, or the written material displayed, would be heard or seen by a person outside that or any other dwelling.

(5) A person who is not shown to have intended to stir up racial hatred is not guilty of an offence under this section if he did not intend his words of behaviour, or the written material, to be, and was not aware that it might be, threatening, abusive or insulting.

(6) This section does not apply to words or behaviour used, or written material displayed, solely for the purpose of being included in a programme broadcast or included in a cable programme service.")

Before Clause 17, insert the following new clause:

("Publishing or distributing written material.

.—(1) A person who publishes or distributes written material which is threatening, abusive or insulting is guilty of an offence if

1. (a) he intends thereby to stir up racial hatred, or
2. (b) having regard to all the circumstances racial hatred is likely to be strired up thereby.

(2) In proceedings for an offence under this section it is a defence for an accused who is not shown to have intended to stir up racial hatred to prove that he was not aware of the content of the material and did not suspect, and had no reason to suspect, that it was threatening, abusive or insulting.

(3) References in this Part to the publication or distribution of written material are to its publication or distribution to the public or a section of the public.")

Before Clause 17, insert the following new clause:

("Public performance of play.

.—(1) If a public performance of a play is given which involves the use of threatening, abusive or insulting words or behaviour, any person who presents or directs the performance is guilty of an offence if—

1. (a) he intends thereby to stir up racial hatred, or
2. (b) having regard to all the circumstances, racial hatred is likely to be stirred up thereby.

(2) This section does not apply to a performance given solely or primarily for one or more of the following purposes—

1. (a) rehearsal,
2. (b) making a recording of the performance, or
3. (c) enabling the performance to be broadcast or included in a cable programme service;

but if it is proved that the performance was attended by persons other than those directly connected with the giving of the performance or the doing in relation to it of the things mentioned in paragraph (b) or (c), the performance shall, unless the contrary is shown. be taken not to have been given solely or primarily for the purposes mentioned above.

(3) For the purposes of this section—

1. (a) a person shall not be treated as presenting a performance of a play by reason only of his taking part in it as a performer,
2. (b) a person taking part as a performer in a performance directed by another shall be treated as a person who directed the performance if without reasonable excuse he performs otherwise than in accordance with that person's direction, and
3. (c) a person shall be taken to have directed a performance of a play given under his direction notwithstanding that he was not present during the performance;

and a person shall not be treated as aiding or abetting the commission of an offence under this section by reason only of his taking part in a performance as a performer.

(4) In this section "play" and "public performance" have the same meaning as in the Theatres Act 1968.

(5) The following provisions of the Theatres Act 1968 apply in relation to an offence under this section as they apply to an offence under section 2 of that Act—

• section 9 (script as evidence of what was performed),
• section 10 (power to make copies of script),
• section 15 (powers of entry and inspection).").

Before Clause 17, insert the following new clause:

("Distributing, showing or playing a recording.

.—(1) A person who distributes, or shows or plays, a recording of visual images or sounds which are threatening, abusive or insulting is guilty of an offence if—

1. (a) he intends thereby to stir up racial hatred, or
2. (b) having regard to all the circumstances racial hatred is likely to be stirred up thereby.

(2) In this Part "recording" means any record from which visual images or sounds may, by any means, be reproduced; and references to the distribution, showing or playing of a recording are to its distribution, showing or playing to the public or a section of the public.

(3) In proceedings for an offence under this section it is a defence for an accused who is not shown to have intended to stir up racial hatred to prove that he was not aware of the content of the recording and did not suspect, and had no reason to suspect, that it was threatening, abusive or insulting.

(4) This section does not apply to the showing or playing of a recording solely for the purpose of enabling the recording to be broadcast or included in a cable programme service.").

Before Clause 17, insert the following new clause:

("Broadcasting or including programme in cable programme service.

.—(1) If a programme involving threatening, abusive or insulting visual images or sounds is broadcast, or included in a cable programme service, each of the persons mentioned in subsection (2) is guilty of an offence if—

1. (a) he intends thereby to stir up racial hatred, or
2. (b) having regard to all the circumstances racial hatred is likely to be stirred up thereby.

(2) The persons are—

1. (a) the person providing the broadcasting or cable programme service,
2. (b) any person by whom the programme is produced or directed, and
3. (c) any person by whom offending words or behaviour are used.

(3) If the person providing the service, or a person by whom the programme was produced or directed, is not shown to have intended to stir up racial hatred, it is a defence for him to prove that—

1. (a) he did not know and had no reason to suspect that the programme would involve the offending material, and
2. (b) having regard to the circumstances in which the programme was broadcast, or included in a cable programme service, it was not reasonably practicable for him to secure the removal of the material.

(4) It is a defence for a person by whom the programme was produced or directed who is not shown to have intended to stir up racial hatred to prove that he did not know and had no reason to suspect—

1. (a) that the programme would be broadcast or included in a cable programme service, or
2. (b) that the circumstances in which the programme would be broadcast or so included would be such that racial hatred would be likely to be stirred up.

(5) It is a defence for a person by whom offending words or behaviour were used and who is not shown to have intended to stir up racial hatred to prove that he did not know and had no reason to suspect—

1. (a) that a programme involving the use of the offending material would be broadcast or included in a cable programme service, or
2. (b) that the circumstances in which a programme involving the use of the offending material would be broadcast or so included, or in which a programme broadcast or so included would involve the use of the offending material, would be such that racial hatred would be likely to be stirred up.

(6) A person who is not shown to have intended to stir up racial hatred is not guilty of an offence under this section if he did not know, and had no reason to suspect, that the offending material was threatening, abusive or insulting.

(7) This section does not apply—

1. (a) to the broadcasting of a programme by the British Broadcasting Corporation or the Independent Broadcasting Authority, or
2. (b) to the inclusion of a programme in a cable programme service by the reception and immediate re-transmission of a broadcast by either of those authorities.").

Before Clause 17, insert the following new clause:

("Possession of racially inflammatory material.

.—(1) A person who has in his possession written material which is threatening, abusive or insulting, or a recording of visual images or sounds which are threatening, abusive or insulting, with a view to—

1. (a) in the case of written material, its being displayed, published, distributed, broadcast or included in a cable programme service, whether by himself or another, or
2. (b) in the case of a recording, its being distributed, shown, played, broadcast or included in a cable programme service, whether by himself or another,

is guilty of an offence if he intends racial hatred to be stirred up thereby or, having regard to all the circumstances, racial hatred is likely to be stirred up thereby.

(2) For this purpose regard shall be had to such display, publication, distribution, showing, playing, broadcasting or inclusion in a cable programme service as he has, or it may reasonably be inferred that he has, in view.

(3) In proceedings for an offence under this section it is a defence for an accused who is not shown to have intended to stir up racial hatred to prove that he was not aware of the content of the written material or recording and did not suspect, and had no reason to suspect, that it was threatening, abusive or insulting.

(4) This section does not apply to the possession of written material or a recording by or on behalf of the British Broadcasting Corporation or the Independent Broadcasting Authority or with a view to its being broadcast by either of those authorities.").

Before Clause 17, insert the following new clause:

("Powers of entry and search.

.—(1) If in England and Wales a justice of the peace is satisfied by information on oath laid by a constable that there are reasonable grounds for suspecting that a person has possession of written material or a recording in contravention of section (Possession of racially inflammatory material), the justice may issue a warrant under his hand authorising any constable to enter and search the premises where it is suspected the material or recording is situated.

(2) If in Scotland a sheriff or justice of the peace is satisfied by the evidence on oath that there are reasonable grounds for suspecting that a person has possession of written material or a recording in contravention of section (Possession of racially inflammatory material), the sheriff or justice may issue a warrant authorising any constable to enter and search the premises where it is suspected the material or recording is situated.

(3) A constable entering or searching premises in pursuance of a warrant issued under this section may use reasonable force if necessary.

(4) In this section "premises" means any place and, in particular, includes—

1. (a) any vehicle, vessel, aircraft or hovercraft,
2. (b) any offshore installation as defined in section 1(3)(b) of the Mineral Workings (Offshore Installations) Act 1971, and
3. (c) any tent or moveable structure.")

Before Clause 17, insert the following new clause:

("Power to order forfeiture.

.—(1) A Court by or before which a person is convicted of—

1. (a) an offence under section (Use of words or behaviour or display of written material) relating to the display of written material, or
2. (b) an offence under section (Publishing or distributing written material), (Distributing, playing or showing a recording) or (Possession of racially inflammatory material),

shall order to be forfeited any written material or recording produced to the court and shown to its satisfaction to be written material or a recording to which the offence relates.

(2) An order made under this section shall not take effect—

1. (a) in the case of an order made in proceedings in England and Wales, until the expiry of the ordinary time within which an appeal may be instituted or, where an appeal if duly instituted, until it is finally decided or abandoned;
2. (b) in the case of an order made in proceedings in Scotland, until the expiration of the time within which, by virtue of any statute, an appeal may be instituted or, where such an appeal if duly instituted, until the appeal is finally decided or abandoned.

(3) For the purposes of subsection (2)(a)—

1. (a) an application for a case stated or for leave to appeal shall be treated as the institution of an appeal, and
2. (b) where a decision on appeal is subject to a further appeal, the appeal is not finally determined until the expiry of the ordinary time within which a further appeal may be instituted or, where a further appeal is duly instituted, until the further appeal is finally decided or abandoned.

(4) For the purposes of subsection (2) (b) the lodging of an application for a stated case or note of appeal against sentence shall be treated as the institution of an appeal.")

Before Clause 17, insert the following new clause:

("Savings for reports of parliamentary or judicial proceedings.

.—(1) Nothing in this Part applies to a fair and accurate report of proceedings in Parliament.

(2) Nothing in this Part applies to a fair and accurate report of proceedings publicly heard before a court or tribunal exercising judicial authority where the report is published contemporaneously with the proceedings or, if it is not reasonably practicable or would be unlawful to publish a report of them contemporaneously, as soon as publication is reasonably practicable and lawful.")

Before Clause 17, insert the following new clause:

("Procedure and punishment.

.—(1) No proceedings for an offence under this Part may be instituted in England and Wales except by or with the consent of the Attorney General.

(2) For the purposes of the rules in England and Wales against charging more than one offence in the same count or information, each of sections (Use of words or behaviour or display of written material), (Publishing or distributing written material), (Public performance of play), (Distributing, showing or playing a recording), (Broadcasting or including programme in cable programme service), and (Possession of racially inflammatory material) creates one offence.

(3) A person guilty of an offence under this Part is liable—

1. (a) on conviction on indictment to imprisonment for a term not exceeding two years or a fine or both;
2. (b) on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the stautory maximum or both.")

Before Clause 17, insert the following clause:

("Offences by corporations.

.—(1) Where a body corporate is guilty of an offence under this Part and it is shown that the offence was committed with the consent or connivance of a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity, he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with his functions of management as it applies to a director.")

Before Clause 17, insert the following new clause:

("Interpretation.

. In this Part— broadcast" means broadcast by wireless telegraphy (within the meaning of the Wireless Telegraphy Act 1949) for general reception, whether by way of sound broadcasting or television; cable programme service" has the same meaning as in the Cable and Broadcasting Act 1984; distribute", and related expressions, shall be construed in accordance with section (Publishing or distributing written material) (3) (written material) and section (Distributing, showing or playing a recording) (2) (recordings); dwelling" means any structure or part of a structure occupied as a person's home or other living accommodation (whether the occupation is separate or shared with others) but does not include any part so occupied; and for this purpose "structure" includes a tent, caravan, vehicle, vessel or other temporary or moveable structure; programme" means any item which is broadcast or included in a cable programme service; publish", and related expressions, in relation to written material, shall be construed in accordance with section (Publishing or distributing written material) (3); racial hatred" has the meaning given by section (Meaning of "racial hatred"); recording" has the meaning given by section (Distributing, showing or playing a recording) (2), and "play" and "show", and related expressions, in relation to a recording shall be construed in accordance with that provision; written material" includes any sign or other visible representation.")

The noble Earl said: I beg to move Amendments Nos. 56ZB to 56ZM en bloc.

On Question, amendments agreed to.

[Amendment No. 56ZBA not moved].

Clause 17 [Publishing or distributing]:

[Amendments Nos. 56A, 56B and 56C not moved].

Clause 17 negatived.

Clause 18 [Possession of racially inflammatory matter]:

[Amendments Nos. 56E, 56F and 56G not moved.]

Clause 18 negatived.

Clause 19 [Words or gestures]:

[Amendments Nos. 56H and 56J not moved.]

Clause 19 negatived.

Clause 20 [Procedure or punishment]:

[Amendments Nos. 56K, 56L and 57 not moved.]

Clause 20 negatived.

Clause 21 negatived.

Clause 22 [Entry and search]:

[Amendment No. 58 not moved.]

Clause 22 negatived.

Clause 23 negatived.

Clause 24 [Interpretation]:

[Amendments Nos. 59 to 61, 61A and 62 not moved.]

Clause 24 negatived.

Clause 25 [Exclusion orders]:

Lord Elwyn-Jones

moved Amendment No. 62ZA: Page 16, after first ("order") insert (" (but not so as to constitute a requirement or condition thereof) ") The noble and learned Lord said: We are going down the alphabet very rapidly. Clause 25, which deals with the very difficult question of misbehaviour—putting it at its mildest—at football matches, is a machinery which is set up in the Bill to create exclusion orders. That football hooliganism is a problem that needs effective action will be agreed in Committee, not only because of the alarm, fear and distress which is caused to the public, but because of the specific threat that the behaviour which has been going on at some of the matches, at any rate, poses to public safety and welfare. Therefore we on this side of the Committee, and, I imagine, in the whole Chamber, have no objection to exclusion orders but there is one matter which accounts for this amendment.

While the National Association of Probation Officers, in particular, are in full support of exclusion orders they object to them being a condition of a probation order. It is not thought to be legally appropriate or to fit in with the relationship and functions of probation officers in relation to those who are brought into their care. The view that they take is that if society requires surveillance of what goes on at football matches, that is more properly a role for the police and the football authorities and is not a role for probation officers, who are trained social workers. Therefore the reason for the amendment is to meet that anxiety.

The Committee will see that on page 16 at line 29 there appear the words: An exclusion order may only be made—

1. (b) in addition to a probation order or an order discharging him absolutely or conditionally.".

They want it to be made perfectly clear that an exclusion order should not be part of a probation order imposing upon probation officers the responsibility of enforcing the exclusion. That is something outwith what they regard—and if I may say so rightly regard—as the range and nature of their duties. That is why this amendment appears on the Marshalled List.

It may well be that the noble Earl will say that that is, at any rate, the intention and I suspect that he will. But whether or not that is so, from their point of view and, rather more widely, from the point of view of determining where future responsibility to try to deal with this mischief lies, the amendment is put down in my name and in the names of my noble friends. I beg to move.

The Earl of Caithness

I have every sympathy with the purpose of this amendment, but we believe it to be unnecessary. We entirely share the views expressed that an exclusion order should not be part of a probation order. But Clause 25 states specifically that an exclusion order can only be made in addition to a sentence or one of the court orders described in subsection (3)(b). So it must be quite separate.

I am aware that the courts already have power, under Sections 4A and 4B of the Powers of Criminal Courts Act 1973, to insert positive and negative requirements in probation orders and that, in theory, a probation order could be used to keep an offender away from football matches. In practice, however, I think that very unlikely, because a probation order is not meant to he coercive and the offender's consent is necessary before an order can be made. I cannot envisage the sort of person for whom an exclusion order is intended volunteering to stay away from matches as part of a probation order. And, in any case, I do not think that a probation order—which is intended as a form of help rather than a punishment—will often be considered appropriate by the court when dealing with football hooligans. We believe Clause 25 states clearly that it is separate, but if the noble and learned Lord still has doubts I am happy to take it away and have another look.

Lord Elwyn-Jones

I do have doubts. The noble Earl has expressed clearly why it is an unsuitable field in which probation officers are to function, but it is important that the matter is put clearly and beyond peradventure. They are not happy about the matter as it now stands. Perhaps between now and the next stage the matter will be looked at again in the light of their sincere and serious concern. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 25 shall stand part of the Bill?

Lord Hylton

I wonder whether I may raise a very small point about the name of the orders provided for in this clause. It will no doubt be widely known that other exclusion orders are still possible under the Prevention of Terrorism Act. Will the noble Earl the Minister take it away and see whether he can find a different name for these less serious orders relating to football matches?

The Earl of Caithness

I am happy to do that as well, without prejudice.

Clause 25 agreed to.

Clause 26 agreed to.

Clause 27 [Effect of order]:

Lord Silkin of Dulwich

moved Amendment No. 62A: Page 17, line 32, after ("three") insert ("or more than twenty-four"). The noble and learned Lord said: We turn to the exclusion order which, if this Bill becomes law, may now be made to prevent football offenders from attending football matches. The effect of the order is set out in Clause 27 and the period during which the order is to have effect is to be not less than three months or, where somebody is already subject to an exclusion order, the three months plus the unexpired period. There is nothing, however, in the clause which puts a time limit upon the exclusion order at the other end. It is clearly intended that there should be a period, because that appears from subsection (1) of the clause.

It seems to be highly undesirable that the court should be left completely at large as to the total period and that the only restriction placed upon it is as to the minimum period which is to be three months. We feel that a reasonable maximum is 24 months. It would be pointless in the sense of making it much more difficult to police if a longer period were imposed and also pointless from the point of view of the objective to which the exclusion order seeks to give effect. One hopes that after two years' exclusion from football matches the young people who make a nuisance of themselves will have learned their lesson. They will probably have grown up a couple of years in the meantime and by then it is worth at least putting them to the test. Therefore we feel that there should be that upper limit in the clause, and that is the effect of the amendment, which I beg to move.

8.30 p.m.

The Earl of Caithness

Clause 27(1) provides that the minimum length of an exclusion order shall not be less than three months; subject to that, the period for which an order shall have effect is at the discretion of the court. That is the precedent established by orders disqualifying drivers from driving, The noble and learned Lord, Lord Silkin of Dulwich, has said that in the case of exclusion orders he does not think that it should be open to the court to make exclusion orders lasting for very long periods. I acknowledge that under the Licensed Premises (Exclusion of Certain Persons) Act 1980 the maximum period of an exclusion order is two years. But we have to bear in mind the appalling ferocity of some football-related offences and of course the risk to ordinary matchgoers that these incidents can present. Members of the Committee will have read of the incident at the Odsal stadium in Bradford recently when a chip van caught fire. In other incidents there have been episodes of vicious violence. I do not believe that it would be right then to restrict the period in respect of which an exclusion order may be made.

But there are safeguards against overlong periods of exclusion. If an offender considers that an order has been made for too long a period, he does of course have all the normal rights of appeal. In addition, in Clause 28 we have built in a right for him to apply for the termination of an order which has been in force for one year or more. On such application the court has power to terminate its earlier order, having taken account of the person's character, his conduct since the order was made, the nature of the original offence and any other relevant circumstances. In our view adequate means of reviewing lengthy orders are provided, and I therefore advise the Committee not to set a maximum period on the length of orders. In any event, I have to advise the Committee that the amendment does not deal satisfactorily with the case where an offender comes back before a court which considers making a further order against him. The court's powers as regards the maximum length of such an order are not at all clear. Therefore we would recommend that the Committee leaves the Bill as it is and does not accept the amendment.

Lord Silkin of Dulwich

I am bound to say that I am not totally satisfied with the reply given. Indeed, the very fact that one can come back after a year to apply for the termination of the order, a fact to which the noble Earl drew our attention, seems to suggest that the intention at any rate is that the period should be a relatively small one—not more than two or three years. To leave it completely at large seems to be a means of encouraging the courts to impose absurdly large orders so that people have to come back on appeal. I cannot see the need for that.

There is not really a comparison between this form of exclusion and the form of penalty which prevents people from driving, which may be the result of an offence committed at any time of their lives. We are dealing here mainly with very young people. When dealing with very young people the question is how far ahead one should tie them in order to ensure that the harm they do or have done is not repeated.

I hope that the Minister will think again about this point before we reach the next stage of the Bill. A great deal can be said for setting some time limit. However, since the Government are not prepared, at this stage, at any rate, to accept the form of the amendment, particularly as it is apparently defective, there is no point in pursuing the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 27 agreed to.

Clauses 28 to 32 agreed to.

The Earl of Caithness moved Amendment No. 62B: Before Clause 33, insert the following new clause:

("Contamination of or interference with goods with intention of causing public alarm or anxiety etc.

.—(1) It is an offence for a person, with the intention—

1. (a) of causing public alarm or anxiety, or
2. (b) of causing injury to members of the public consuming or using the goods, or
3. (c) of causing economic loss to any person by reason of the goods being shunned by members of the public or by reason of steps taken to avoid that occurring,

to contaminate or interfere with goods, or make it appear that goods have been contaminated or interfered with, or to place goods which have been contaminated or interfered with, or which appear to have been contaminated or interfered with, in a place where goods of that description are consumed, used, sold or otherwise supplied.

(2) It is also an offence for a person, with any such intention as is mentioned in paragraph (a) or (c) of subsection (1), to threaten that he or another will do, or to claim that he or another has done, any of the acts mentioned in that subsection.

(3) It is an offence for a person to be in possession of any of the following articles with a view to the commission of an offence under subsection (1)—

1. (a) materials to be used for contaminating or interfering with goods or making it appear that goods have been contaminated or interfered with, or
2. (b) goods which have been contaminated or interfered with, or which appear to have been contaminated or interfered with.

(4) A person guilty of an offence under this section is liable—

1. (a) on conviction on indictment to imprisonment for a term not exceeding 5 years or a fine or both, or
2. (b) on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.

(5) In this section "goods" includes substances whether natural or manufactured and whether or not incorporated in or mixed with other goods.

(6) The reference in subsection (2) to a person claiming that certain acts have been committed does not include a person who in good faith reports or warns that such acts have been, or appear to have been, committed.").

The noble Earl said: I beg to move Amendment No. 62B and speak at the same time to Amendments Nos. 62D and 70.

Amendment No. 62B introduces a new criminal offence to strengthen the law to deal with the contamination of consumer goods and associated threats and claims. As many Members of your Lordships' Committee will be aware, in recent years there have been a number of incidents involving the contamination of foodstuffs and other consumer products. In other incidents the mischief has taken the form of a threat to contaminate goods or a claim that goods have been contaminated.

In the best known examples, those involved have been members of extremist organisations—like extreme animal rights groups—whose purpose has been to induce companies to alter their behaviour in some way. In a number of other cases the motive has been simply extortion.

The companies who have been attacked in this way are understandably anxious to avoid unnecessary publicity. I will not, therefore, refer directly to specific incidents. But the general pattern is for goods to be contaminated, or threats or claims to be issued, in such a way as deliberately to cast doubt on the whole-someness of large numbers of items. In this way maximum dislocation and economic damage can be caused. It is often impossible for companies to check whether each individual item in a particular product range is safe, so large numbers of items may need to be withdrawn from the shelves and, possibly, destroyed. Obviously, this can give rise to substantial financial losses. Indeed, one group has apparently claimed that its activities have led to combined losses of several million pounds.

In other cases the intention is to cause public alarm or anxiety, rather than financial losses to the companies involved, or, alternatively, to cause physical harm to those consuming or using the goods. Members of the Committee may recall the tragic events in the United States when pharmaceutical goods were poisoned and consumed by members of the public with fatal consequences.

The mischiefs at which this amendment is directed should not be underestimated, and the police fully recognise the seriousness of the problem. There are a number of provisions in the existing law which, in certain circumstances, may apply to the sorts of incidents I have been describing. But none of these was designed to deal with the sort of mischief we are concerned with here and, to a large extent, it may be a matter of chance whether an offence is committed.

In the light of the serious nature of the problem and the inadequacies of the existing criminal law, we have brought forward in this amendment new provisions addressed to the mischiefs concerned. In drawing up the new clause, we have been anxious to ensure that it is properly targeted on the mischiefs concerned. The new provisions must of course be sufficiently broadly-based to cover the various areas of concern; but at the same time we have been concerned to avoid any unnecessary overlap with the existing law.

All of this makes, I am afraid, for a rather complicated structure and it may be helpful if I describe the contents of the new clause in some detail. Subsection (1) provides that the various new offences will apply only where the perpetrator intends to cause public alarm or anxiety, injury to members of the public or economic loss to those dealing in the goods through the goods being shunned by the public or through steps being taken to avoid this—for example, the goods being removed from the shelves.

Under subsection (1) it is an offence to contaminate or interfere with goods; or to make it appear that goods have been contaminated or interfered with (for example by the inclusion in the packaging of a note to the effect that the product has been poisoned); or to plant any such goods with (in each case) one of the intentions I have just mentioned.

Subsection (2) makes it an offence to threaten to do or claim to have done any of the things mentioned in subsection (1) with any of the purposes set out in that subsection. Subsection (3) creates offences of possessing items with a view to the commission of an offence under subsection (1). Again, an offence is committed only if the intention is as described in that subsection.

Subsection (4) prescribes maximum penalties of five years' imprisonment and/or an unlimited fine on conviction on indictment and six months' imprisonment or a fine at the statutory maximum (currently £2,000) on summary conviction. Subsection (5) ensures that the term "goods" covers both natural and manufactured products and that it applies to ingredients as well as to finished products. Subsection (6) ensures that the claims limb in subsection (2) does not apply to genuine reports or warnings.

Amendments Nos. 62D and 70 make changes to, respectively, the extent provisions and the Long Title. These amendments are consequential to this new clause, the amendments to Part III, and the amendment on aggravated trespass which we will be discussing a little later.

The contamination of consumer goods, together with associated threats and hoaxes, has become a serious problem in recent years. Since it is largely a fairly recent phenomenon it is not surprising that existing law does not deal adequately with it. These gaps and weaknesses can no longer be sustained. We have consulted a number of interested groups (including the CBI and the Retail Consortium) during the preparation of these new provisions and they have all welcomed them. I am grateful to them for the assistance they have provided in the drafting process. The new clause represents an important strengthening of the law. It is needed urgently if we are to ensure that the perpetrators of the sort of activities I have described can be properly dealt with. I beg to move.

8.45 p.m.

Lord Elwyn-Jones

I am sure that the Committee will fully share the concern of the public at large on this appalling new mischief of contaminating consumer products. It is calculated to injure the innocent, and indeed in some cases, as the noble Earl pointed out from American experience, it may well prove to have killed or caused the death of some of the victims.

Clearly one has to look to see, first, whether the law is already adequate to deal with this mischief. The creation of new criminal offences should be avoided if possible. We are already burdened with a whole range of criminal offences. Archbold, the handbook of criminal law, gets bigger and bigger. Therefore one's instinct is to resist adding new measures to increase its volume; quite apart from the volume of legislation itself. Therefore, the question that falls to the Committee, while fully being aware that something needs to be done to cope with these attempts, threats and claims to contaminate food and other consumer goods on sale in shops, is whether the Public Order Bill is the appropriate vehicle.

I notice that, not surprisingly, it was thought necessary to amend the Long Title, as is done in Amendment No. 70, to deal with the situation immediately by providing for the addition in the Long Title of the words: to create a new offence relating to the contamination of or interference with goods". The amendment then goes on to refer to powers to direct certain trespassers to leave land; but that is quite another story.

However, referring to contamination or interference with goods, I wonder whether there is some provision in, for example, the food and drugs Acts or in legislation covering poisons which might be relevant. In other words, could not another search be made? I note in the letter on this matter from the noble Lord, Lord Glenarthur, which I had the advantage of receiving, that examination was made of obvious potential places where one would hope to see remedies—the Food Act, the Medicines Act, the Offences Against the Person Act and the Criminal Damage Act. One might not find, at least in the interstices if not in the obvious substance of those or other measures, sufficient authority and power to found an indictment to deal with this mischief.

If we are assured by the noble Earl that after most careful consideration of these alternative possibilities there is no other way than to introduce a new and fresh statutory crime with attendant penalties, then that is something to which we would of course give the heaviest and greatest possible weight. Perhaps we can ask whether the legal authority and sources that the Government have at their disposal and have consulted are satisfied that the only way is for a new crime to be specified to deal with what is, alas, a new and increasing mischief.

Lord Hutchinson of Lullington

I support these amendments to deal with this mischief which concerns us on these Benches as much as everyone else. However, I echo what the noble and learned Lord just said about the appropriateness of putting this clause into this Bill. It is the last place that anyone looking for legislation about the contamination of food would look. The poor lawyer is not going to find his way through the Public Order Bill when trying to find out what to do about contaminated food. I ask the Minister to resist, once again, making a Bill such as this a rag bag for desirable legislation when perhaps it would be more appropriate in the food and drugs Acts, or something of that kind.

Lord Boyd-Carpenter

I very much welcome this amendment which, as my noble friend the Minister told us, is designed to deal with a particularly unpleasant modern type of crime. The only doubts that seem to have been expressed are as to the appropriateness of including the measures in this Bill.

On the general merits of that matter, this type of crime is in fact the type of crime of those who are seeking to make an onslaught on society in support of their own particular views: I believe a noble Lord referred to some of the extremist animal rights bodies. If that is so, a Bill designed to deal with the general assaults on society, as the Public Order Bill is, is the appropriate vehicle.

I have also a practical point to put to the Committee. I hope that the Bill will soon become law. This is a matter which it is urgent to deal with. If we were to follow the suggestion implied in some of the speeches we have just heard, that the provision should go into a separate Bill, at this stage of the Session there would obviously not be the slightest chance of it becoming law before the end of the Session or indeed well into the end of next year. If we put it into this Bill, as my noble friend proposes, it will soon and quickly become law. That practical question of urgency is of considerable importance in this context.

The argument about the exact appropriateness of an offence which is an attack on society is one on which two views can be held. I am not prepared to shed many tears with the noble Lord, Lord Hutchinson of Lullington, about the poor lawyer. The poor lawyer is well remunerated for his services. If he has to look in another volume or so when he is looking for the particular statute, I doubt whether it will do him any harm, and I imagine that he will merely charge his client a little more.

I welcome this measure. I think that my noble friend and the Government have done a good service in introducing it. I hope that the Committee will accept it.

Lord Campbell of Alloway

The Government are greatly to be congratulated on introducing this new clause. The point is not whether this is the appropriate Bill; the point is that something must be done about this social evil, and done about it soon. This is the moment to do it. Whether it fits the Bill or not is a totally otoise consideration.

I speak subject to correction, but the existing law does not deal with subsections (1)(a) and (1)(c). Those are both matters of considerable public importance. I take the point made by the noble and learned Lord, Lord Elwyn-Jones. My somewhat scanty knowledge of the food and drugs legislation may lead me to suppose that subsection (1)(b) could be covered, but under no circumstances do I think that subsection (1)(a), "causing public alarm or anxiety"—I am subject to correction—and subsection (1)(c), "causing economic loss to any person", would be covered by any existing legislation. For those reasons, and in the general spirit, I think that we should all congratulate the Government on having taken a firm and innovative step.

Lord Elystan-Morgan

I combine with my noble and learned friends and other noble Lords in welcoming this provision. We should be less than human were we not to chastise mildly the noble Earl for introducing the provision in perhaps not the most obvious legislation. I have been the victim of ministerial pronouncements from my own party and from the party opposite over the years here and in another place about raising a vehicular defence. so that I am tempted to use the point against ministers. This is a necessary measure. I greatly welcome it but I want to raise one point.

Whereas it may well be that many of the offences arising would be of the nuisance type—I accept what the noble Lord, Lord Campbell of Alloway, says, that it would seem that the provisions in subsection (1)(a) are entirely fresh—I am not sure whether subsection (1)(c) would be covered by certain provisions of the Criminal Damage Act 1971. Intangible losses probably would not be covered.

Situations under subsection (1)(b) may well be covered by Sections 23 or 24 of the Offences Against the Person Act 1861 with regard to administering a noxious drug or substance—a very serious offence. No doubt the most serious offences could be covered by the offences of murder or attempted murder or by those sections in the Offences Against the Person Act 1861.

The point I wish to raise relates to the maximum penalty of five years' imprisonment on indictment. There may well be situations of public alarm when thousands of items have been contaminated by a noxious substance. That section of the Offences Against the Person Act 1861 may or may not be a suitable vehicle; it may or may not be an offence committed by two or more persons, bringing in the prospect of the law of conspiracy. I humbly ask the Government to reconsider whether there might not be exceptional cases where a maximum penalty of five years' imprisonment would not be appropriate.

Lord Campbell of Alloway

May I support that? It is something that I intended to say and had forgotten. I totally join the noble Lord on the inadequacy of the penalty in the gravest possible circumstances. I am grateful to the noble Lord.

The Earl of Caithness

I shall of course consider the question of penalties mentioned by the noble Lord, Lord Elystan-Morgan, and my noble friend Lord Campbell of Alloway. The noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Hutchinson of Lullington, asked whether this was an appropriate Bill. I think that it is. Subsection (1)(a) refers to the causing of "public alarm or anxiety" and I feel that that fits rather well into a Public Order Bill. As has been said most ably by my noble friends Lord Boyd-Carpenter and Lord Campbell of Alloway, this is an imporant measure which needs to be put quickly on to the statute book. There are a number of Acts such as the Criminal Damage Act 1971, the Offences Against the Person Act 1861, the Food Act 1984 and the Medicines Act 1968 which could apply in somewhat similar circumstances. None of those were designed to deal with the type of mischief with which we are concerned here. To a large extent, it may be a matter of chance as to whether an offence is committed. The law is a little like a sieve in this respect.

I shall give the Committee an example. A person intent on placing contaminated goods on the shelves of a supermarket would be unlikely to contaminate goods already on the shelves. He would instead buy some of the products concerned and return them to the shelves having contaminated them at home. Thus, he would have damaged his own goods rather than those belonging to the supermarket. The point is important, because while simple damage to another's property is an offence under the Criminal Damage Act, damage to one's own goods is an offence under this Bill only if there is an intention to endanger life or recklessness as to whether life is endangered. Existing law therefore needs to be strengthened with regard to threats and claims. We believe that the amendment is necessary and I hope that the Committee will accept it.

Lord Elwyn-Jones

I think that the Committee will unanimously accept the need for legislation. This is a monstrous, wicked and evil form of crime. It clearly must be proceeded against. It is a facile doctrine that if there happens to be a convenient bit of legislation going through the House one can deal with problems by hitching them to something wholly unrelated. I hope that that does not become part of an established heresy in this or in another place. I can see that the Leader of the House would be fairly reluctant to allow it to prevail. However, I see, and the Committee will appreciate the need for urgent action in this matter. As we are at a parliamentary time when the very thought of introducing yet another measure is not on, we welcome the proposal. I make no apology for having raised whether another vehicle might have been chosen, but, time being of the essence, the crime being so immediate and serious, I withdraw my objection.

Lord Renton

I hope not to prolong the discussion but I must point out to the noble and learned Lord, Lord Elwyn-Jones, that causing public alarm or anxiety has something to do with public order.

Lord Elwyn-Jones

That is the only attractive part of the noble Earl's argument.

On Question, amendment agreed to.

9 p.m.

The Earl of Caithness moved Amendment No. 62BA: Before Clause 33, insert the following new clause:

("Power to direct trespassers to leave land.

.—(1) If the senior police officer reasonably believes that two or more persons have entered land as trespassers and are present there with the common purpose of residing there for any period, that reasonable steps have been taken by or on behalf of the occupier to ask them to leave and—

1. (a) that any of those persons has caused damage to property on the land or used threatening, abusive or insulting words or behaviour towards the occupier, a member of his family or an employee or agent of his, or
2. (b) that those persons have between them brought twelve or more vehicles on to the land,

he may direct those persons, or any of them, to leave the land.

(2) If a person knowing that such a direction has been given which applied to him—

1. (a) fails to leave the land as soon as reasonably practicable, or
2. (b) having Left again enters the land as a trespasser within the period of three months beginning with the day on which direction was given.

he commits an offence and is liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale, or both.

(3) A constable in uniform who reasonably suspects that a person is committing an offence under this section may arrest him without warrant.

(4) In the proceedings for an offence under this section it is a defence for the accused to show—

1. (a) that his original entry on the land was not as a trespasser, or
2. (b) that he had a reasonable excuse for failing to leave the land as soon as reasonably practicable or, as the case may be, for again entering the land as a trespasser.

(5) In this section— land" does not include buildings or land forming part of a highway; occupier" means the person entitled to possession of the land by virtue of an estate or interest held by him; property" means property within the meaning of section 10(1) of the Criminal Damage Act 1971; senior police officer" means the most senior in rank of the police officers present at the scene; trespasser", in relation to land, means a person who is a trespasser as against the occupier of the land; vehicle" includes a caravan as defined in section 29(1) of the Caravan Sites and Control of Development Act 1960.").

The noble Earl said: At this stage, I should point out a slight error on the Marshalled List. If the Committee will turn to line 47 of the amendment, it will readily be seen that the word "property" is missing between the words "means" and "within". I hope that the Committee will take it as read that the word "property" should be there and that there is a small error in the production of the Marshalled List.

When my noble friend Lord Glenarthur replied to the debate on Amendment No. 17 on 16th July, he indicated that the Government were considering whether police powers to deal with aggravated trespass were sufficient. He was responding to a good deal of concern expressed both in this House and outside about mass invasions of land by groups such as the so-called "peace convoy". No one who witnessed the depredations suffered by individuals such as Mr. Attwell at its hands could be other than angry and outraged. But we recognised that any new powers we proposed needed to be carefully framed, both to provide the protection landowners need against this type of mischief, but also, no less importantly, so as not to criminalise simple trespass or to have adverse effects on other users of the countryside such as ramblers, birdwatchers and the like.

The amendment now before the Committee represents, in our view, a carefully designed and well-balanced package. It has been difficult to draft, and there has therefore been less time for consultation than the Government would have wished. I apologise for this but thought it important to get the clause down for consideration as soon as it was ready at Committee stage.

I have written to a number of Members of the Committee and placed in the Library an explanatory note on the new clause. I hope therefore that I may be forgiven if I do not dwell at length on the detail of the provision in my opening remarks.

We have designed a police power to evict trespassers in certain limited circumstances. This is not therefore a new offence of trespass. Before the police power can be activated, a number of preconditions and tests have to be met. The aims of all these are to identify and separate out the mischiefs caused by groups like the convoy; to provide protection for the landowner against this mischief; and to ensure that it goes no wider than is strictly necessary and other users of the contryside like ramblers and birdwatchers are not brought accidentally within the net.

The preconditions that have to be satisfied are as follows. First, the senior police officer present must reasonably believe that those present have entered as trespassers. This means that the power will not be available where a landowner has given a permission for people to camp on his land which he subsequently withdraws. The mischief with which we are concerned is not that of the overstaying camper or the tenants whom a landowner wishes to evict. Civil procedures are available in such cases, and we do not regard it as right to introduce the criminal law into such situations where permission for the original entry has been given and a dispute has subsequently arisen. Secondly, the police officer will also need to have a reasonable belief that those present have the common purpose of residing on the land for any period. This is necessary in order to exclude ramblers, birdwatchers and casual or inadvertent trespassers from the scope of the power.

Thirdly, the police officer must reasonably believe that reasonable steps have been taken by or on behalf of the occupier to ask the trespassers to leave. This means that the police cannot use these powers unless and until the trespassers refuse to leave.

Even if these preconditions are met, one of a further three tests must be satisfied before the power can be activated. The police officer must reasonably believe that the trespassers have caused damage to property; or they have used threatening, abusive or insulting words or behaviour towards the occupier, a member of his family or an employee or agent of his; or the trespassers have between them brought 12 or more vehicles onto the land.

If all three preconditions and one of the further tests are met, then the police may direct any or all of the trespassers to leave the land. As long as the trespassers obey that direction, they commit no offence. Only if they knowingly refuse to obey a direction to leave as soon as reasonably practicable or re-enter the land within three months, is an offence committed. In court proceedings it will be a defence to show that the person concerned had not entered as a trespasser or that he had a reasonable excuse for being there. The maximum penalty for an offence is three months in gaol or a fine of £1,000. The offence is triable summarily only and the police will be able to arrest anyone they reasonably suspect of committing an offence.

I expect a number of your Lordships will wish to raise points of detail. Indeed, my noble friend Lord Stanley has put down a number of amendments which will help us to concentrate on such points. It may be best therefore if I conclude my opening remarks at this point. I beg to move.

Lord Stanley of Alderley moved, as an amendment to Amendment No. 62BA, Amendment No. 62BB: At the beginning insert—

("(A1) If the senior police officer reasonably believes that two or more persons are about to enter or are likely to enter land as trespassers for the common purpose of residing there for any period and

1. (a) that those persons are likely to cause damage to property on the land or use threatening, abusive or insulting words or behaviour towards the occupier, a member of his family or an employee or agent of his or
2. (b) that those persons are between them likely to take three or more vehicles on to the land,

he may direct those persons or any of them not to enter the land without the consent of the occupier").

The noble Lord said: I understand from my noble friend that he would like me to speak both to his amendment and to all of mine at the same time. I think that that is correct. If he nods I shall pursue that course. Should this take some time, the fault is entirely his and not mine.

I start by thanking the Government for the amendment. I should also like to thank my noble friend Lord Caithness for writing to me during the recess and for all the time and trouble taken by the Home Office in consulting the interested parties in order to achieve a satisfactory amendment. My noble friend stated in his letter, a copy of which is in the Library, that the amendment was not easy to draft. I certainly sympathise. The intention behind my noble friend's amendment is, I know, entirely in line with mine and indeed that of the farming community. Everyone is anxious that the innocent rambler or courting couple should not be caught. I am, however, concerned about the odd word or two in my noble friend's amendment. I have therefore tabled a series of amendments to try to clarify beyond any doubt the effect of his amendment.

The amendment does not deal with the animal rightists or anti-vivisectionists mentioned during discussion on Amendment No. 17. I accept that these problems can best be dealt with under Clause 5 of the Bill. I hope that before Report stage my noble friend will have a close look at these problems. Needless to say, I have a suggestion or two which he might be happy to consider between now and Report.

I shall now go on to deal with the amendments that I propose. Amendments Nos. 62BB, 62BD and 62BE are all consequential.

So far as I am concerned, prevention is better than cure. These amendments are designed to achieve that end. The situation that I envisage—and it has, indeed, occurred in the past—is that a so-called peace convoy has gathered and is proceeding, for example. down a cul-de-sac and obviously about to cause trouble. At the same time it is being accompanied, as was this particular convoy, by a police presence.

My amendment would allow the senior police officer to warn the convoy that unless it has permission it may not enter that land or, indeed, any site of a particular interest. My noble friend Lord Montagu was particularly worried about that, rather than having to let them enter and then trying to take action. It does not stretch the imagination far—indeed, it has happened—to envisage that when they have entered they often let their vehicles break down, if I may put it that way, and it is rather difficult to get them off.

As the Committee will note, my Amendment No. 62BB makes it necessary for the convoy to have entered without the occupier's consent. Under my Amendment No. 62BE it is a defence if that consent has been given. My noble friend may say that this amendment puts a great responsibility on the police officer. I cannot see that that is so because the police officer does not have to use this power if he does not wish. It is only a back-up power for him; but he will have it up his sleeve should he be dealing with a particularly tire-some or noxious convoy that keeps going into every gateway it passes. I believe that this extra power given to the police is very much less onerous than that given in my noble friend's amendment—that the police officer has to use his discretion as to whether he reasonably believes that a trespass as described in the Government's amendment is going to be caused. I hope that my noble friend will understand what I am trying to achieve and consider whether it would be possible to contain some such preventative provision in his amendment.

I now turn to my Amendment No. 62BC. This is much simpler to explain. It merely reduces the Government's number of 12 vehicles to three. I believe that 12 is far too large a number. Bearing in mind that many of these convoys include buses, which may well contain a whole platoon of hippies (if I may call them that) 12 vehicles would, in my opinion, amount to nearly a battalion, which would be a frightening thought.

I suggest three vehicles because, as my noble friend will know, Clause 1 of the Bill states: Where 12 or more persons … are present together, there could in certain circumstances be a riot. So I have taken it from his own Bill. Taking the optimistic view, I agree with my noble friend Lord Renton that there could be only four people in the car; as I say, that is very optimistic. If they had more than three vehicles, there would be more than 12 people; so that is why I have chosen three. If my noble friend does not like three, perhaps he will tell me why he chose 12.

I now turn to my Amendment No. 62BF. The effect of this amendment will be to put agricultural buildings in the same category as land as regards to the government amendment. The Government, I understand, omitted agricultural buildings because they believed, incorrectly, that Sections 6 and 7 of the Criminal Law Act 1977 took care of this and therefore it would be overlapped by this particular amendment. I can only say that I am advised that this is not the case and that the situation is that, as the Government's amendment stands, it would be possible for a convoy to take possession of an agricultural building with no fear of being evicted for criminal trespass—which would be a ridiculous situation.

As my noble friend Lord Caithness knows far better than I do, it is more often than not quite impossible to lock agricultural buildings and keep people out, especially in the case of sheep sheds, which are particularly cosy to hippies who want to have a sleep. So there would be no charge of breaking and entering. Hence I feel very strongly that the Government should accept this particular amendment that I have tabled.

Lastly, I turn to my Amendment No. 62BG, which I accept is a probing one. This amendment gives definition to the word "residing". Despite the fact that the word is used in the Caravans Act, and I think also in taxation legislation, I am not aware of any case law to describe what it means. Certainly the one on tax law would be totally inappropriate. Therefore, I think that we need a definition.

I have to admit that, in looking at the face value of my amendment, I am not too happy about my definition but I shall tell the Committee why I chose it. There is no definition of "reside" in the Bill, so I have taken the definition from the Oxford Dictionary, which seems to me as good an answer as any, although I do not think it is what the Government have in mind. However, at least it is a starting point and is better than nothing. If the Government do not like the Oxford Dictionary's definition, then I think we should have something else.

Perhaps my noble friend would also take this problem away and come up with a definition to include in the Bill at the Report stage. For the sake of the police and for clarity, I think that noble Lords need to put their minds to this. It may be that a new definition must be thought out which is applicable to this Bill; for example, perhaps anyone who enters and remains on land should be considered to be residing. I beg to move.

9.15 p.m.

Lord Mishcon

I believe that we start with a unanimous thought, which is that there is every reason to try to grapple with what is even more than a nuisance to many farmers throughout the country and to many owners of land who are not farmers by the invasion of hippies and people of all sorts who have no right to be on that land, who very often inflict the most terrible damage, and who make themselves a very great nuisance indeed. It is a point about which I should have thought the Committee is unanimous.

The only difference of opinion is how we deal with the matter and the care with which we have to act if we give the police a power which is, I was about to say, a very frightening power in some circumstances and before we create a criminal offence where the penalty is quite high; and, in any event, it is a criminal offence. The danger of getting hold of a clause and concentrating on the evil is that sometimes we forget that many come within the clause which we have just considered whom we would never want to fall in this category of criminal offenders and people against whom a direction of this nature can be made in default of obedience to which the crime is committed.

If ever I saw a subsection which makes that error apparent, it is the first of Lord Stanley's suggested amendments. For one moment I invite the Committee to look at that amendment. I shall come to the amendment that has been tabled by the Government in a moment. The amendment states: If the senior police officer reasonably believes that two or more persons"— and here we have been talking about ramblers. bird-watchers, or whoever they may be— are about to enter or are likely to enter land"— and I ask the Committee to observe those words— as trespassers"— which is a matter which the police officer will have to decide, but I shall revert to that in a moment— for the common purpose of residing there for any period"— and, as the noble Lord, Lord Stanley, said, "residing" is a word of no very particular art in legislation at present, but one would assume that it means that the police officer has to wonder whether they intend to stay there, by sleeping on the land, by bringing in a bed or having a caravan there— and (a) that those persons are likely to cause damage to property on the land"— and I assume that the words "are likely" govern the next sentence or part of the sentence— or use threatening, abusive or insulting words or behaviour towards the occupier, a member of his family or an employee or agent". I say in parenthesis that, "Take your ruddy hands off me" (if the Committee will permit the word I have just used) would presumably be the "threatening, abusive or insulting words or behaviour towards" an employee or agent who was trying to remove the persons concerned who felt that they were really entitled to be there.

Then the amendment goes on: or (b) that those persons are between them likely to take three or more vehicles on to the land". The difficulty for a police officer of deciding that people are likely to take onto land "three or more vehicles" that are outside it at the time reduces the situation to an absurdity.

The reason I concentrated on the language in this clause is because the noble Lord, Lord Stanley, with all the good intentions in the world, wandered into the most dangerous minefield when he sought to create a criminal offence and powers for the police in regard to a situation of that kind.

I turn now to the government amendment. The government amendment endeavours to get right away from the innocent people and to deal purely with those who are guilty of making a great nuisance of themselves, and possibly even more than a nuisance. I start by wondering whether this is the right time for the Committee to decide whether or not you need the force of the criminal law to deal with these matters. That is not a fresh thought to come before the House. We dealt with that sort of argument on a previous amendment. I remember reading the report—I was not fortunate enough to be present—of the effective speech made by my noble and learned friend Lord Silkin of Dulwich on that occasion.

The complaint about civil procedure was that it was not speedy enough and it was not effective enough. It so happens that the noble and learned Lord the Lord Chancellor is seized of the fact that the present procedure may not be speedy enough or effective enough, and he is engaged at the present moment—we are unfortunately without the privilege of his guidance this evening—in putting forward amendments to Order 113 to enable the civil law to be more efficient, more speedy, and to be effective as a weapon in removing trespassers to land.

There is a consultation period in regard to his suggestions. That consultation period does not end until 30th October. But here we are deciding remorselessly that the great machine of the criminal law must move in order to deal with what is acknowledged to be an evil. In most of the instances we are thinking about, crimes have been committed and the police have powers anyway, but what we are asked to do is to set the criminal machine in motion for the first time in regard to these matters before we have had any information at all about what the Lord Chancellor is himself doing to try to make the civil law speedier and more efficient in order to deal with this problem.

The Committee may say, "We have this clause in front of us and take it for granted that it would be better if we were to hear what the Lord Chancellor has to say after the consultation period is over. This is an effective clause and, in spite of all the arguments we have heard, we elect to treat this as a crime because we feel that the police must be brought in and that we must deal with the situation through the criminal law".

We have to be careful that what we then do is to be precise and sensible. I am looking at this clause put forward by the Government, where the direction comes into effect with the police officer able to issue it if there are people who between them have brought 12 or more vehicles onto the land. It is a crime if with 12 or more vehicles they do not obey that direction. There is no crime at all if they happen to know the law and be rather astute. A rather horrible gentleman, also being astute, may bring 11 vehicles onto the land and 11 vehicles onto the adjoining land. In fact he will have brought 22 vehicles onto land and should not have done so. By virtue of the fact that there are only 11 vehicles on each portion of the land in question, no one can give him a direction and then make it into a crime. There is no crime, whereas the man who brings 12 vehicles has committed a crime if he does not obey the direction. That is what you walk into if you walk out of civil law into criminal law.

I ask the Committee to look at the other situation in dealing with a crime. There is no question of the use of force, no question of violence such as we have in other parts of the Bill. No, if the police officer thinks trespass has been committed and that those persons who have entered onto the land—I am missing out damage to property because that might be a crime, in my view, in any event in this Bill—have used threatening, abusive and insulting words or behaviour towards the occupier, a member of his family or an employee or agent of his. That is for a crime, if you do not obey a direction, a most amazing situation. The police officer presumably has to decide whether behaviour is insulting, whether words are insulting and there is the power vested in him if he so decides. There are powers already to deal with offensive behaviour, insults and so on. We do not need this Bill to deal with the situation if anything like a breach of the peace has been committed thereby.

I end, if I may, by putting these thoughts before the Committee. The first thought is a unanimous view of the Chamber that there must be an effective remedy for the sort of situation we know we want to deal with. The second thought is that, before we create crimes or criminal offences which might turn perfectly innocent people into criminals, we as Parliament have to be extremely careful that we have not drawn those innocent people into the criminal net.

The amendment of the noble Lord, Lord Stanley, falls into that category. I am sure that on reflection he would be the first person to admit it, When we consider the Government amendment, we find elements which make it absurd, as I have said, for a crime not to be committed—I must not repeat myself—when there are 11 vehicles (or even 22 by adding some on adjoining land) but the person who has brought 12 on has presumably committed a crime if he does not obey the direction. We have these very vague words of "threatening, abusive or insulting words".

My last thought is this. Ought we to make the decision to alter the whole law of this country. which has always thought that the law of trespass is such as very often to involve such difficult questions? There are people who try to substantiate a right of way and who feel thay have honestly got that right of way. Are we not doing something highly dangerous when we know perfectly well that somebody of the ability (if I may put it in that way, humbly) of the noble and learned Lord the Lord Chancellor is at this very moment dealing with regulations which he hopes will make the civil law applicable to matters of this kind and do that effectively, efficiently and speedily?

I ask the Committee to be very careful indeed, not about throwing out (if I may use that phrase) the amendment of the noble Lord, Lord Stanley; I do not ask it to be careful about that at all. But I ask it to be careful before it endorses a clause of this nature before having at least had before it the guidance of the noble and learned Lord the Lord Chancellor and knowing what he wants to do in regard to the civil law.

9.30 p.m.

Lord Renton

I am sure that we should be grateful to the noble Lord, Lord Mishcon, because he has pinpointed the issues which arise on this. His first point is that we need an effective remedy. Of course, he does not have a short memory and he remembers very well the agony—and that is not an exaggeration—suffered by the small fanner in the West Country who happened to be in bad health when his farm was invaded by hippies. The civil law did not provide a remedy for him and we all know—those who have experience and even those who have not—that the civil law can be very cumbersome, even if you manage to find a High Court judge to grant an immediate injunction, an interim one.

I am convinced that the Government are right and that it is inevitable that they should use the moderate powers which they intend to give to the police and which are surrounded by sensible safeguards in their amendment. I think that that is an effective remedy. But to say that the criminal law has no place in this matter is, I am sorry to say, ignoring the circumstances that we have to deal with.

On this question we should not involve innocent people. I agree with the noble Lord there, and that raises a rather difficult drafting point to which my noble friend Lord Stanley as already referred. The Government have sought to overcome that difficulty by using the expression, residing there for any period", and have not defined the word "residing". They do not need to define the period because it is any period. But I, too, have consulted the Oxford English Dictionary, and, as so often, the Shorter Oxford English Dictionary gives about a dozen references for one to consider.

The one which I thought the most relevant and which is given prominence is this. The word "reside" means: To dwell permanently or for a considerable time, to have one's settled or usual abode, to live, in or at a particular place". Therefore it means that a person is taking up his dwelling when the word "reside" is used. If the courts interpret the word in that way it would be a defence to a charge under this clause for the person, whether he had three vehicles, 12 vehicles or whatever it was, to say "I am not going to reside here: I am only visiting the farm for a week". I think that the Government have to consider the exact meaning of "reside". It would be better to avoid the word altogether and to use "remain".

Lord Boyd-Carpenter

Hear, hear!

Lord Renton

We know that when bird-watchers and picnickers go to a farm they are treated in various ways. Sometimes bird-watchers—and I am a keen one myself—do not always have the best intentions. They want to see the rarest bird, for instance, that has ever visited the British Isles and they swarm in their numbers. They have sometimes caused a great many problems. I am a keen member—in fact a life member—of the RSPB and I have some sympathy with this; but we must not be carried away. We must look at this matter rationally, if I may say so, like the good legislators your Lordships always are. I do not think it is safe to continue to use the word "reside", especially if it is to be undefined. I think the word "remain" would be worth considering.

The next point I wish to make is one with which the noble Lord, Lord Mishcon, dealt, as did my noble friend. It is a very important point. It is the Government's suggestion that no offence would be committed unless a dozen vehicles invade the land. I' think that is absurd, if I may say so to my noble friends. I am doubtful whether it is right to specify any particular number if we can avoid doing so. Whichever number we choose—whether it is three, six or 12—if the "invaders", if I may use that expression, have one vehicle less than that number they are in the clear and they can stay as long as they jolly well please. I doubt whether that is a sensible way for us to be legislating.

It is perhaps rather late in the day for us to start getting down to drafting details, and God forbid that I should inflict that upon the Committee at the moment. I simply leave this thought with my noble friends and hope that an alternative way can be found.

I broadly agree that it is the Government who have the definition of the offence right and they have the procedure leading up to it right. I am sorry to say that I do not go along with my noble friend Lord Stanley on the first of his amendments but I consider that his amendment on the question of buildings is one which should engage the Government's attention: that is, No. 62BF.

The only other question that I need to ask the Government is this, and I must declare an interest in doing so. This clause could apply to Scotland according to the way in which Clause 35, the application clause, is left at the end of the day. I think the Government should say whether they intend these provisions to apply to Scotland.

Lord Campbell of Alloway

May I make five very brief suggesions? After "land", I wonder whether my noble friend the Minister would include "agricultural buildings"; and on the fourth line delete "residing", which for various reasons is wholly inappropriate, and put "remaining there contrary to the request of the occupier to leave". The third is to consider, after persons under paragraph (a) who cause damage, the person who is about to cause damage. The fourth is to delete "threatening, abusive or insulting words". The point was made by the noble Lord, Lord Mishcon, and it is one that is highly worthy of consideration.

Lord Mishcon

I do not want to interrupt the noble Lord, but he is introducing a novel procedure of moving amendments verbally in a way that I admire and envy!

Lord Campbell of Alloway

I am doing it to save time. The last involves deleting "twelve or more". It is done for the reasons that have been given by more than one noble Lord on both sides of the Chamber as being wholly inappropriate.

Baroness White

Would the noble Lord not agree that he meant "orally" rather than "verbally"?

Lord Taylor of Gryfe

The Committee will recall that when discussing this matter earlier most of us were reacting to the press report and the television picture of the vandalism created by the so-called hippy convoys. Inevitably in this Chamber there was a somewhat extreme reaction that the countryside and private property must be protected from this form of vandalism. At the same time, some of us were greatly concerned that in drafting new legislation to contain or prevent this nuisance the legitimate rights of ramblers, hill-walkers, bird-watchers and others who enjoy the countryside should not be reduced. I mentioned at that time that I had been responsible, as chairman of the Forestry Commission, for 3 million acres of land in this country and had some reasonable experience of ensuring that there should be public access to the countryside that could be contained, could be legitimate and could be useful, without in any way damaging the forests or the open spaces for which the Foresty Commission had responsibility.

I would reject the amendment of the noble Lord, Lord Stanley of Alderley, for the reasons so eloquently expressed by the noble Lord, Lord Mishcon, and I must say that I am impressed by the desire of the Government in the amendment now proposed to strike a reasonable balance between protecting the countryside from the hippy convoys and the vandalism involved in their activities and the rights of the ramblers, the hill-walkers and all of us who like to enjoy the countryside.

I know that there is a problem of whether there are 10 or 12 vehicles and that is inevitably a very difficult definition. However, in general I should like to congratulate the Minister for trying to strike a reasonable balance as he has done in this amendment, and on the information he was good enough to supply to those of us who are concerned in this matter. On the whole, I think we on these Benches would support the Government and reject the amendment of the noble Lord, Lord Stanley of Alderley, while assuming that the Minister will take account of some of the comments we have made. However, we regard it as a reasonable balance with sensible safeguards contained in the Government's amendment.

Lord Stanley of Alderley

Before the noble Lord sits down, may I say that that was only one small part of my amendment. There are three other amendments. Has he no feelings about that?

Lord Taylor of Gryfe

I am not sure.

9.45 p.m.

Baroness Macleod of Borve

I shall be brief because it is late, but I have one or two words to say. May I start by saying how much I welcome not only all the work that has been put into this amendment, but also the amendment itself. I think it is high time, from various views, that this matter was taken on board by the Government. I shall not speak at all about the peace convoys. I want to talk about a smaller sphere, coming nearer home. No one, I submit, wants to stop the odd caravan, the bird-watchers or anybody who will go across the countryside and visit the fields and woodlands of our beautiful country. Nobody wants to stop those people. But the time has come to stop the trespassers who are taking their vehicles onto other people's land and destroying it. The Government have put forward the number of 12 vehicles, and my noble friend Lord Stanley suggested the number of three. I should like to have no motorised vehicles allowed on private land.

The Government have almost gone overboard in protecting the itinerant tinkers and the people who are trespassers, in that nobody will be able to take them to court or to apprehend them until certain steps have been taken, not least by the landlord and then by the police. They are very well covered. But I know from personal experience that itinerant tinkers take far more than 12 vehicles into people's woods and they break up the vehicles in the woods. Are the Government to say that "broken up vehicles" mean a vehicle - one of 12 - or will 20 broken up vehicles count as 20 vehicles? Who is to tell? I doubt very much whether the owner of the land, the tinkers themselves or the police could tell. This is happening a very great deal to the annoyance of the owners of land.

Not only that, but there are the motor-cycles which are owned by these people. Some of them are referred to as gypsies, but that is rather too nice a name for some of them who are really itinerant tinkers. They have motor-vehicles and motor-cycles which they drive all over the corn and ruin the crops. Could it be the law that no motorised vehicles should be allowed at any time without the owner's permission? We all know that that is easy to get. The permission of the farmer or whoever is in charge of that land should be sought and I am sure would be readily given, unless there were people out to trespass.

I cannot agree with the noble Lord, Lord Stanley of Alderley. I do not think it is possible, except in the case of the hippy convoys, to tell who will stay on the land, who will be trespassers and how many vehicles there will be. This measure is very much overdue and I certainly think it will be welcome throughout the length and breadth of the country.

Lord Monson

Much as one genuinely appreciates the Government's efforts in this matter, I am bound to say that I agreed almost entirely with the detailed criticisms and suggestions of the noble Lord, Lord Stanley, for improving the proposed new clause. In particular, I strongly support—in principle, at any rate —Amendment No. 62BC.

As noble Lords have pointed out, the new clause as it stands would permit 11 buses, each containing a minimum of 50 people, to enter onto somebody's land with total impunity, provided that the occupants caused no damage and refrained from insulting the owner, the occupier, his family or his employees. The effect of the amendment of the noble Lord, Lord Stanley, whether he realises it or not, would be to limit the number of vehicles allowed to two—not to three. If we are speaking about buses it would be entirely justifiable. But if we are speaking about Ford Fiestas, or vehicles of that size, it goes a little too far. But I am sure that the new clause as it stands is not right and I agree with the noble Lord, Lord Renton, and others that perhaps the best course is to delete altogether any reference to numbers. But it cannot be allowed to stand as it is.

Lord Gifford

The noble Lord, Lord Taylor, suggested that this amendment had struck the right balance, and the noble Earl in introducing it made effectively the same claim. It is to that argument that I want to address myself; I oppose it and in doing so oppose the amendment. I do not believe that the agony, as the noble Lord, Lord Renton, described it, of a single farmer during the summer justifies our rushing to introduce the criminal law into this area.

Lord Renton

I hoped I had made it quite clear that I was merely giving that as an example.

Lord Gifford

That and similar agonies are no justification, for the simple reason that the civil law offers extremely effective remedies even now, before, as my noble friend Lord Mishcon indicated, they are to be reviewed by the noble and learned Lord.

It is possible to achieve an injunction in the space of a day. It is possible to go to court in the morning, have an injunction by the end of the morning and serve it in the afternoon. In many cases, not in regard to agricultural land but in the enforcement of other orders, I have done that. But it is not on that argument that I want to dwell, because the feeling of the Committee to the contrary is very strong.

Let us accept for one moment that the criminal law was desirable to deal with the mass trespass that has been described. My observation is that this amendment is far, far too wide and introduces the police potentially into situations in which they should never be. Let us see how it reads. It first of all provides for only two or more persons to have entered the land. That is not a mass affair; it can cover a single family. The people have to have entered the land as trespassers. That entry would be the immediate entry which had occasioned the request to leave. Someone who had been given permission to camp, perhaps for months, and whose permission is then terminated, or it is alleged that it is terminated, would be caught by this clause once that person drove out to do some shopping and came back on the land again.

There is nothing about the original entry, except possibly in subsection (4), which arises only when you get to court. Any entry as a trespasser or any alleged entry as a trespasser, even if it is of someone who has been going backwards and forwards with permission for an antecedent period, is caught by this clause. Then the entry has to be with the purpose of residing there for any period; and with all the difficulties that have been referred to, that seems to imply at the minimum a single overnight stay.

Then we get to the extra presumed safeguards in paragraphs (a) and (b). I accept that paragraph (b) imports the concept of a mass nuisance with which I had imagined this clause was intended to deal. If the provision had been limited to paragraph (b) I should not be making this objection, but when you bring in paragraph (a) the safeguard disappears entirely. It covers the situation where any of the people who are present on the land have either caused damage, however trivial, or used threatening, abusive or insulting words, even if only once, whether or not the other people on the land know it. The innocent are penalised by this. If 20 people are peaceably camped on the land and are causing no trouble at all except by the fact of their alleged trespass but the twenty-first person cuts down a tree the police may act. Those are some of the situations which could enable this clause to be invoked in circumstances far outside those which the Committee has in mind.

Before concluding, may I make a slightly wider point? We must hesitate long before bringing the power of the police into an area where hitherto the power of the courts has been of considerable effect. I believe that the vast mass of people who, for one reason or another, commit acts of trespass respect a court order when they see one. There is a public acceptability of a court order which is not present when a police force takes upon itself, without a court order, to enforce a law of this kind. We are in danger of setting the police against various minorities: those who set up camps in protest, such as peace camps, and so on; those who are travellers because they have no home; those people who perhaps should receive court orders from the owners of land, which the owners of land have every right to seek from the courts. If a court order is disobeyed it brings the justified reproach arising from disobedience of the rule of law; but a police officer being disobeyed brings nothing but conflict and potential alienation in society.

I believe that we should support the moves being made by the noble and learned Lord the Lord Chancellor to review the civil law so that the courts and not the police can be the arbiters. The respect that people have for the courts should be the final, moral compelling factor in conflicts such as arise in our troubled society.

Lord Boyd-Carpenter

The noble Lord, Lord Gifford, is the first speaker in this lengthy debate to argue that the present civil law is adequate to deal with the situation. Quite apart from the fact that the events of last summer convinced most of us that that is not the case, it seems to me that the whole of the noble Lord's argument about obtaining an injunction, and so on, is wholly unrealistic when one looks at the actual facts of the matter.

We are not dealing with large companies with their tame resident solicitors and all the facilities of big business. On the whole we are dealing with small farmers, small countrymen in the depths of the country, amost certainly at weekends, where in many cases they will be without any regular legal adviser. To say that on a Saturday morning, in the depths of the country, a small farmer will find it easy, first, to find a lawyer, secondly, to find a barrister and, thirdly, to find a judge and obtain an injuction shows, if the noble Lord does not mind my saying so, a complete lack of understanding on his part as to how people actually live.

Therefore, while I believe that there is a much more respectable argument about the Lord Chancellor's very proper investigation of the civil law, that does not seem to me to inhibit in any way the Government's proposal to introduce this very modest change in our criminal law. Indeed—and I think I am the first speaker in this debate to do so—I should like to thank my noble friend and the Government for responding as they have to the widely expressed view in this Chamber this summer that action should be taken. The fact that an amendment has been brought forward at this stage—although I criticise it in some respects—is a good indication of the willingness of my noble friend and the Government to respond to what was a very wide expression of feeling in this House and, I believe, outside in the country.

I have one criticism to make which has already been made half-a-dozen times and which I can therefore deal with very briefly. I cannot for the life of me understand why in paragraph (b) there should be 12 vehicles to be brought onto the land whereas subsection (1) relates to "two or more persons". Even in these days of the two or three-car family there seems to be a certain disparity between two persons and 12 vehicles. No doubt the noble Earl will be able to explain how that strange figure arises. It seems to me to be utterly unrealistic. My noble friend Lord Stanley of Alderley suggests three. That is probably a rather generous ration. I should have thought that the figure should have been two persons and two vehicles, but then I perhaps take a more old fashioned view of the number of cars approprate to individual families.

I hope that, having listened to the debate, my noble friend who I think realises that most of the Committee favours his approach rather than that—if I may say so with great respect—of my noble friend Lord Stanley of Alderley, also realises that nonetheless the Committee is wholly with my noble friend Lord Stanley of Alderley in his criticism of the 12-vehicle criterion. I hope that my noble friend will be able to give us some indication, without commitment, that he will look at the point before the next stage.

10 p.m.

Lord Middleton

The noble Lord, Lord Gifford, talked about the conflict and alienation that took place in the South-West as a result of the invasion as if it were the fault of the police. He can have no conception of the conflict and alienation caused by that mass trespass. The argument which is being used by the noble Lord, Lord Mishcon, and to some extent by the noble Lord, Lord Gifford, relates to whether the courts and the court procedure are adequate to deal with mass trespass.

We should look at the Attwell case.This was a small farmer in Somerset whose small amount of land was invaded, I think, during May. It took seven days for him to go through all the procedure. My noble friend Lord Boyd-Carpenter is right, that takes time. To suggest, as the noble Lord, Lord Gifford, did, that one can obtain an injunction in a day in such situation is going into the realms of cloud-cuckoo-land. It took Mr. Attwell seven days.

The noble and learned Lord the Lord Chancellor is reviewing the procedure. We have heard about the possibility of an injunction being obtained in three days. Mr. Attwell's farm was damaged on the first evening. All the conditions that the Government envisage by the amendment, whereby the police can ask the invaders to leave, were fulfilled during that evening. Surely that must show that we want something in addition to the court procedure. We want to be able to give the courts the additional power that the amendment gives. I believe that the Government have it right and should be congratulated.

I shall refer to the amendments spoken to by my noble friend Lord Stanley of Alderley. I agree entirely with the criticism made by the noble Lord, Lord Mishcon, with regard to Amendment No. 62BB. I do not think that we can possibly ask a police officer to make the kind of forecasts envisaged by Amendment No. 62BB and be fair to him. That would not be fair. The criticism of that amendment by the noble Lord. Lord Mishcon, is justified.

On the matter of the vehicles, perhaps the provision should relate to three and not to 12. On the matter of buildings, I agree with my noble friend Lord Stanley of Alderley. It would be possible for an invasion to move straight into a set of farm buildings and be outside the conditions that trigger off its removal. He has a good point there. On the matter of "residing", the noble Lord, Lord Renton, would like to see "remain" instead of "reside". When does visiting become remaining? How long does one have to remain before one commits an offence? That is a difficult point. The department must have found the same difficulty. I think that "residing" will probably do.

Although he does not want to, my noble friend Lord Stanley of Alderley would probably catch the ramblers and bird-watchers with Amendment No. 62BG. One cannot go rambling or bird-watching without being there for a period. So that amendment clearly will not do. I do not believe that my noble friend seriously wants that wording in the Bill. The Government are absolutely right. I support the Government amendment.

Lord Gifford

I should like to answer the noble Lords, Lord Middleton and Lord Boyd-Carpenter. It is not necessary to make an affidavit in person to get a remedy from the court. A farmer may ring up his solicitor, or the solicitor of his association or insurance company, and give instructions and the solicitor can type up an affidavit, go to the county court judge and obtain the necessary remedy during the day. It may be the case that Farmer Attwell took longer than he need have done. It is not necessary to take a week or even three days to get the remedies that I am describing.

Lord Boyd-Carpenter

Will the noble Lord, Lord Gifford, therefore deal with this question? How does the farmer perform this simple act on a Saturday afternoon?

Lord Gifford

He rings up a solicitor. Like the noble Lord, I have frequently been involved in obtaining remedies for those who have difficulty gaining access to the law. There are solicitors who will act over the weekend. There are judges who are on duty over the weekend. The High Court keeps a duty judge. One has only to ring up the High Court at any time of the weekend and one is put on to the duty judge. One can see the duty judge at his home over the weekend.

Lord Hutchinson of Lullington

To get away from the question of time, surely the whole basis of the issue is that this mischief must become an offence and not simply a civil wrong. This is what it boils down to, does it not? It is not really a question of ringing up solicitors, going to judges and so on. Everyone agrees that there is a mischief here. Why on earth should not this mischief now become an offence? Surely, all agree that the time for that has now arrived.

The Law Commission tried to devise an offence. It failed through being unable to find a satisfactory definition. It appears to those of us on these Benches that the Government have got as close to a satisfactory definition of an offence as has so far been reached. We welcome that. I agree entirely with the noble Lord, Lord Renton. I had already written down the word "waiting" rather than "residing". I should have thought that any court would find it quite easy to decide whether people who are trespassers on land are there waiting for a period of time or simply passing by. I should not have thought that this was a difficult question. Equally, why have numbers for vehicles? Why not, as already stated, have vehicles as such? That is the mischief.

I should like to add on behalf of my noble friend Lord Hunt that the ramblers and the British Mountaineering Council both approve of the Government amendment. The noble Lord, Lord Gifford, was concerned about families going on the land, coming off the land and going on the land. Surely, one of the good things about the Government amendment is that it concentrates upon the entry on the land ab initio, at the beginning. That is one of the reasons for being against the amendment of the noble Lord, Lord Stanley. The concentration is on the entry upon the land originally not the coming and going. I should have thought this one of the advantages of the clause as drafted.

The only thing I should like to ask the noble Minister is this. Where persons trespass, go on the land, behave perfectly properly and politely but remain there, do the Government, in those circumstances, envisage that that would be only a civil wrong and that the civil procedure is to be followed? I cannot speak for the noble Lord, Lord Montagu, the National Trust, English Heritage, and so on; but what will be the situation if a large number of people go on the land as trespassers, sit down, do no damage, behave perfectly politely, but remain there? They are not caught. They have not committed any offence. I should like to ask the Minister whether that has been envisaged, and whether it is the view of the Government that this should be a crime only if there is abuse and so on, whether there have to be motor vehicles, or whether that was just an omission.

Lord Montagu of Beaulieu

I should like warmly to welcome the action the Government have taken in tabling this amendment. It certainly seeks to remedy a very pernicious state of affairs over the past years—not just with one farmer last summer—whereby groups of people have deliberately set out to disregard the rights of owners and occupiers to enjoy the benefit of their land and have posed a great threat not only to land but, so far as I understand, most importantly, to monuments on it. There is the distress of owners, and it is also our concern as English Heritage to protect those monuments which have stood for hundreds of years as part of our cultural heritage. Therefore, I believe that the Government amendment which has now been tabled will greatly reduce that risk and will lead to action should that risk occur. Therefore I warmly welcome the amendment.

I have just one or two points to ask about. First, what is proposed relates to the trigger which enables the police to direct people to leave the land. The trigger is laid down in the legislation, but I am concerned that that test relates only to places where damage actually has been caused. The monuments for which I am responsible are really unique and irreplaceable, and at that stage I think the action is too late. Of course those who perpetrate the damage can be removed, but at that stage the damage has been done. I am as concerned to try to ensure that damage is prevented as I am that action is taken once it has occurred. It would seem to me therefore to strengthen the provision greatly if it were to provide for action to be taken in a place where it appeared that damage could be caused. I realise that this may mean difficulties, but basically I feel that the provision should be explicit rather than rely upon a set of circumstances.

Secondly, like other noble Lords, I certainly think the idea of 12 vehicles is absurd. I should like to know why buildings have been excluded. I am very concerned about this because many of our ancient monuments are in fact semi-buildings.

I listened with interest to the noble Lords, Lord Mishcon and Lord Gifford, talking about the possibility of civil action, and the noble Lord, Lord Middleton, has told us about the farm in the West country. But one point that has not been raised tonight is rather typical. The lawyers have not mentioned it; it is the question of cost. It is a very real problem for a very small farmer to employ QCs and lawyers. Why should small farmers have to face bills for £1,000 to get people off their land when they are causing great damage to their livelihood? So I should like to respond warmly to this amendment and hope that the noble Earl will answer the questions I have raised.

The Earl of Radnor

I should like to add my welcome to this amendment. I have had practical experience of a hippie convoy. It was first of all stationary for a number of years, and subsequently a splinter group went to Stoney Cross. It seems to me, as the noble Lord opposite said, that in this instance the Government have got it as right as they possibly can, that there is in fact a nuisance, and that there is no reason why, with all the safeguards that are built in, that this clause should not be a criminal affair.

As regards the civil law, I must be honest and say that I am a little mystified that Mr. Attwell took seven days, but equally I think that it is impracticable to operate over a weekend. I should like to take up very strongly the point made by the noble Lord, Lord Montagu. It is an extremely expensive operation, and I have been through it more than once. I do not see why anyone should do it, whether or not he has means.

However, the matter which perturbs me more than anything is that going through the civil courts seems to perpetuate the situation. For instance, I go up to London, with all the panoply of the law, and then plaster a part of the countryside with little notes saying that Lord Chief Justice so and so says that you must not camp here, and they go straight to my neighbour. Then he goes up, and so it goes on, without end.

I have a feeling that if this became a criminal affair, with all the safeguards that are built in and all the preliminary performances that have to be gone through, this perpetuation of the nuisance would not take place. I am not able to follow my noble friend Lord Stanley in his amendments, which were criticised by the noble Lord, Lord Mishcon. However, I agree with my noble friend, as I do with many other Members of the Committee, about the number of vehicles. I believe that 12 vehicles is ridiculous, and that three, two or some such number would be better. The point has been made that the sort of vehicles which tend to arrive are very large indeed.

I should also like to re-emphasise the point about agricultural buildings. It perhaps has not been emphasised strongly enough that, if this clause becomes law and people are not allowed to camp on land, they will be more likely to go to the buildings. These days many of our buildings are suitable to camp in; they are large and some are open-fronted. What is more, the modern ones tend to be easily accessible because the lorries have become so large that none of us can afford to build buildings within our farms; we build them close to public roads, so that the public road is worn out and not our own. All in all, I should like to welcome this amendment.

10.15 p.m.

Lord Hylton

I speak with experience of a case of completely unauthorised camping and occupation on common land in Surrey. There legal remedies were sought and were eventually successful through the courts, but they were extremely expensive and they were extremely slow. It was not a question of seven days but of a period in excess of seven weeks. I am extremely grateful to the Government for producing their amendment for discussion, and I am very grateful to the noble Lord, Lord Stanley, for his efforts to tighten up the wording and to bring in prevention before anything happens rather than action after it has occurred. As has been pointed out, the noble Lord found himself in something of a minefield about probability, and I sympathise with him. I should like to support what the noble Lords, Lord Middleton and Lord Boyd-Carpenter, were saying.

I conclude by throwing into the pool of possible words in relation to Amendment No. 62BG the word "occupying" rather than "residing".

The Earl of Caithness

I fear that I may take a little time. This is somewhat of a Second Reading summary, but it is so important that I ought to deal with many of the points raised. If I do not deal with the points raised by noble and learned Lords, I shall write to them between now and a later stage.

My noble friend Lord Stanley explained what lies behind his various amendments. The major change which he proposes is that, as a supplement to our proposed power of eviction, the police should be given powers to prevent trespassers entering land. This is achieved by the proposed Amendment No. 62BB and the consequential amendments BD and BE.

In so far as my noble friend is attempting to bolster the old adage "prevention is better than cure" we should of course support his proposal. Indeed, I fully acknowledge my noble friend's concern and the reasons that lie behind his amendment. However, I am afraid that I too, like the noble Lord, Lord Mishcon, see significant flaws to his scheme.

What we are attempting to do is to strike a balance. We recognise the need to provide a practical remedy to a real mischief, and provide a way whereby landowners who are unwelcome hosts to such inaptly named convoys as the peace convoy can be rid of them fairly swiftly. But we have to tread extremely carefully in introducing the criminal law in this area. We want to give the police practical powers which they will feel able to use; but we do not want to involve the police or the criminal law at too early a stage or to create an offence of criminal trespass.

We were all I think outraged at the scenes we saw earlier this summer and the sheer misery caused to the farmer Mr. Attwell. There is I think a fair measure of consensus about the need to do something about that specific problem. I welcome, and am grateful for, the kind remarks that Members of the Committee have made about the work that my department has undertaken since that horrific event occurred.

But the police already have some preventive powers, which my noble friend seeks to increase. For example, under the common law they have a duty to take action to prevent a breach of the peace, and where trespassers cause damage on entering land they may be committing an offence under the Criminal Damage Act 1971. So there is not as obvious a difficulty in preventing aggravated trespass as in dealing with it once it has occurred. What we have proposed therefore is to give the police the power to act where there is a clear problem where aggravated trespass is taking place for which the landowner has at present no speedy remedy.

My noble friend's amendment would enable the police to act where there was no clear problem and to impose directions in the absence of any mischief to the occupier having been caused, and crucially whether or not he was even aware of the situation. That is, in the Government's view, a much too major extension of the criminal law.

I have also to tell my noble friend that I do not believe that his provision is practicable. It requires the police to form a reasonable belief about whether people are about to enter land somewhere, and whether they have a common purpose of residing there, and whether they are likely to damage property or harass and intimidate an occupier of the land they may enter, or whether they are going to stay together in groups of more than three vehicles.

This would in many cases prove a difficult if not impossible job of prophecy for the police to take on. The Government's new clause by contrast is dependent largely on tangible facts on which the police can take a reasonable view; for example if the trespassers have caused damage there will be evidence of this; if there are 12 vehicles on the land the police can see this; if reasonable steps have been taken to ask the trespassers to leave, that is fairly easy to judge. My noble friend's second amendment, Amendment No. 62BC, would reduce the test in subsection (1)(b) from 12 to three vehicles. This was a point picked up by many Members of the Committee. The objective of the test in subsection (1)(b) is to stop mass trespass. This is not to say that where trespassers bring less than 12 vehicles onto the land the new power cannot bite. If they cause damage to property or threaten the occupier the police can still direct them to leave. The test in subsection (1)(b) is in a sense a back-up to this. If that test were reduced to three vehicles, then, rather than addressing the problem of mass trespass, in many cases there would be no need for the alternative tests in subsection (1)(a) at all. It is therefore a question of balance, when mere presence of large numbers alone is sufficient to trigger the power, irrespective of the conduct of those present.

There is a further point: the Government have made clear that they do not wish to harass genuine gypsies. Setting the threshold for the test in subsection (1)(b) at 12 vehicles means that where gypsies travel in smaller groups than that, they will not be caught unless they commit acts of damage or threaten or harass the occupier. My noble friend's amendment would bear much more heavily on small groups of genuine gypsies. This would go beyond the mischief with which this clause is concerned.

I turn next to Amendment No. 62BG. This defines "residing" as meaning to be present on the land for any period". The suggestion is that "reside" is inappropriate where the trespassers may intend to remain for only a short period. This, too, raised a number of comments from the Committee. The phrase "reside for any period" in our new clause is taken from Section 10 of the Caravan Sites Act 1968, which makes it an offence in certain circumstances to station a caravan for the purpose of residing for any period. This clause is targeted against persons who are coming onto the land with their homes with them. We think that they can be said to be residing wherever they station their vehicles, unless they are stationed in a particular place for some wholly temporary purpose such as shopping. We believe that even though they may intend only an overnight stop the police could reasonably believe that they intended to reside there.

As I outlined in my opening remarks, we believe that this precondition must exclude ramblers, bird-watchers and others from the scope of the new power. By contrast, my noble friend's suggested definition would include them: present on the land for any period means simply being there. That, too, covers the point raised by my noble friend Lord Renton and similar comments by the noble Lord, Lord Hutchinson of Lullington; to substitute "remain" for "reside" would present equally difficult problems.

Lord Renton

I hope my noble friend will not overlook the difficulty caused by the use of the word "reside", to which other noble Lords have also referred.

The Earl of Caithness

I shall try not to overlook anything and I shall make sure that I pay particular attention to that in the days to come.

I turn finally among my noble friend's amendments to Amendment No. 62BF. This seeks to include agricultural buildings within the scope of the new power. The mischief at which the new provision is targeted is that caused by the invasion of largely agricultural land by the hippy convoy. They do not as a rule invade buildings and to that extent there is no need to cater for buildings in the new provision. In addition, Section 7 of the Criminal Law Act 1977 provides redress against trespass in residential premises; and Section 6 of that Act prohibits the use of force in gaining entry to any premises. We do not wish to cut across those provisions. Neither do we wish to see this power used for situations for which it was not designed. If we were to include all buildings, the new provision might have implications for factory or student sit-ins and similar items.

That I hope satisfies my noble friend Lord Montagu of Beaulieu as to why we have excluded buildings. Such matters as I have just mentioned may be mischievous but they are not the type of public order problem that this Bill is dealing with. However, my noble friend Lord Stanley has recognised these problems and asked that we include only agricultural buildings. I shall consider that, and with that assurance I hope that he will be satisfied on that point.

The noble Lord, Lord Hutchinson, asked what will happen if people behave themselves and do not commit any of the mischiefs included in the proposed new clause. This situation will be the same as today; civil remedies will be available, but they will not be caught under the proposed legislation.

My noble friend Lord Renton asked about the application of the proposed new clause to Scotland. It will not, as I understand it, cover Scotland as Scotland already has a criminal offence in its statute law which catches the type of behaviour that will be caught by our amendment.

My noble friend Lady Macleod of Borve asked about taking vehicles on to land. I am sure she will appreciate that it is an offence under Section 36 of the Road Traffic Act 1972 to take a vehicle without authority onto any land other than a highway, so that tinkers that she mentioned are already breaking the law.

The noble Lord, Lord Hutchinson of Lullington, asked: "Why bother to have a limit of any vehicles of all?" That is a point that I should like to look at in due course. I am grateful for the support from the noble Lord, Lord Taylor of Gryfe, from the noble Lord, Lord Hylton, and from the noble Lord, Lord Monson, for the way in which we have tried to tackle this rather difficult problem. As far as the noble Lord, Lord Gifford, is concerned, I think his point was very adequately dealt with by the noble Lord, Lord Hutchinson of Lullington, and by my noble friends Lord Middleton and Lord Boyd-Carpenter.

I turn lastly to the points raised by the noble Lord, Lord Mishcon, because I think that he raised some very important matters and brought our attention to some of the difficulties that we have encountered. The new clause deals with only a subset of trespass; namely, aggravated trespass. Order 113 is much wider than this, so that, while my noble and learned friend the Lord Chancellor is looking at the general civil law procedure dealing with the law of trespass, we are concerned with a much narrower question, aggravated trespass, which goes far beyond a mere nuisance. So, while it is true that a speedier civil law procedure might provide some help, where trespass is as aggravated as it was in Mr. Attwell's case, we have to make extra provision to deal with that specific problem.

I wish to discuss many of the points that have been raised tonight with my noble and learned friend the Lord Chancellor. It would be wrong for me to comment on some of the detailed points that the noble Lord, Lord Mishcon, raised on criminal law. I hope that he will take it from me that I will look seriously at all the points. I know that my noble and learned friend would like to be involved and that he has obviously been very involved in discussions to date. I hope that, given that assurance and the assurance that I will look at all the points raised by Members in the course of our debate, the Government amendment will be accepted.

10.30 p.m.

Lord Mishcon

I think that the noble Earl has been extremely gracious in his remarks. The Committee will have noted that he is going to look at all the points that have been raised. Some of us think they are rather important points. I know therefore that it will not be misunderstood if there is no cry of "Not-Content" when the Question is put. It will be known that we have certain reservations although we are anxious to cure the evil. In those circumstances, I am grateful to the noble Earl for what he has said.

Lord Montagu of Beaulieu

May I ask my noble friend one question? Will he please remember that I have been dealing with protecting scheduled ancient monuments so far as agriculture is concerned? I hope that he will look particularly at that point.

The Earl of Caithness

I am sorry. It is one of the points that I omitted accidentally. Of course I shall look at that point.

Lord Stanley of Alderley

It will probably be convenient if I comment very briefly on the four amendments that I have down, first of all, No. 62BB, which was my "prevention rather than cure" amendment. From what I understand from my noble friend, he accepts the principle that it would be a good idea but believes it is too difficult to draft. Listening to Members, I accept that point. I am sorry that it is too difficult to draft, because even the noble Lord, Lord Mishcon, will agree that as a principle it is better to prevent if you cannot cure. If we cannot cure, then I am prepared to accept that. As far as Amendment No. 62BC, which deals with the number of vehicles, is concerned, I understand that my noble friend is going to look at it again—and perhaps he will confirm this—and that possibly the answer, as has been suggested by Members, is that we should not have any number in at all. I think that maybe that is right.

So far as the word "reside" is concerned, I think that I got no change from my noble friend on the Front Bench. I must ask him whether he will look at some form of definition that will clear up this particular point between now and Report. I am worried and I know that other Members of the Committee are concerned about what we should put in here. I accept that my point was not right. I just took it out of the dictionary and that might be what was interpreted. My noble friend Lord Renton took another bit of the dictionary. Both, I think, are inapplicable in this case.

Lastly, I think I understood my noble friend to say that he will look between now and Report at the question of agricultural buildings. I am therefore very grateful to him for all the work he has done on this and for the contributions made by all the Members of the Committee to try to get this amendment as near right as possible. I beg leave to withdraw the amendment.

Amendment to the amendment, by leave, withdrawn.

[Amendments Nos. 62BC, 62BD, 62BE, 62BF and 62BG to Amendment No. 62BA not moved.]

On Question, Amendment No. 62BA agreed to.

[Amendment No. 62C had been withdrawn from the Marshalled List.]

Clauses 33 and 34 agreed to.

Clause 35 [Extent]:

The Earl of Caithness moved Amendment No. 62D: Page 21, line 1, leave out subsections (1) to (4) and insert—

(" (1) The provisions of this Act extend to England and Wales except so far as they—

1. (a) amend or repeal an enactment which does not so extend, or
2. (b) relate to the extent of provisions to Scotland or Northern Ireland

(2) The following provisions of this Act extend to Scotland— in Part I, section 9(2) except paragraph (a); in Part II, sections 12 and 14 to 16; Part III; Part V, except sections (Contamination of or interference with goods with intention of causing public alarm or anxiety, &c.), (Power to direct trespassers to leave), 33(4), subsections (1) and (3) of this section and any provision amending or repealing an enactment which does not extend to Scotland.

(3) The following provisions of this Act extend to Northern Ireland— sections (Contamination of or interference with goods with intention of causing public alarm or anxiety, &c.), 34, this subsection and section 36.")

The noble Earl said: This amendment is consequential on Amendment No. 62B. I beg to move.

On Question, amendment agreed to.

Clause 35, as amended, agreed to.

Remaining clause agreed to.

[Amendments Nos. 63 and 64 had been withdrawn from the Marshalled List.]

Schedule 1 agreed to.

Schedule 2 [Other amendments]:

The Earl of Caithness moved Amendments Nos. 64A, 64B and 64C:

Page 28, leave out lines 18 to 22.

Page 30, line 35, at end insert— (" . In section 28 (amendment of the law of defamation), at the end insert— (6) In this section "words" includes pictures, visual images, gestures and other methods of signifying meaning.".")

Page 30, line 36, leave out from beginning to end of line 3 on page 32.

The noble Earl said: I beg to move these amendments en bloc. I spoke to these with Amendment No. 56ZA.

On Question, amendments agreed to.

[Amendment No. 65 not moved.]

Schedule 2, as amended, agreed to.

Schedule 3 [Repeals]:

The Earl of Caithness moved Amendment No. 66: Page 33, line 18, at end insert—

("3 Edw. 7. c.ccl.

Erith Tramways and Improvement Act 1903.

Section 171.")

The noble Earl said: I beg to move Amendment No. 66 and to speak at the same time to Amendment No. 68. Clause 11 introduces a new national advance notice requirement. Clearly if there were to be both a national and a local advance notice requirement in some areas this would place an unnecessary and confusing burden on the organisers of processions. This clarifies the position. I beg to move.

On Question, amendment agreed to.

Lord Hutchinson of Lullington moved Amendment No. 67: Page 33, line 18, at end insert—

("1908 8 Edw. 7. c. 66.

Public Meeting Act 1908.

Section 1.")

The noble Lord said: I should like, in a couple of sentences, to ask the Government why they have not repealed the Public Meeting Act 1908 with the other Acts that they have repealed. This Act says that any person who at a lawful public meeting acts in a disorderly manner for the purpose of preventing the transaction for which the meeting has been called suffers a penalty of up to six months' imprisonment or a fine of £1,000. The police may arrest if the chairman of the meeting requires them to ask for the person's name and address and he fails to give it. I do not understand why politicians are still going to be specially protected. I beg to move.

The Earl of Caithness

The reason we have not repealed it is that it is still a very useful piece of legislation. The 1908 Act is designed to cater for a specific mischief. We are not here considering disorderly behaviour likely to cause alarm, harassment or distress, such as will be dealt with under Clause 5, but disorderly behaviour that is aimed quite deliberately at preventing meetings transacting their business. People who behave in such a way are abusing the privilege of a meeting being open to the public in order not to put a point of view but to disrupt that meeting to the point of making it futile. It does not necessarily involve just politicians. It involves all sorts of meetings, and for that reason it remains an essential and useful part of the statute.

Lord Hutchinson of Lullington

The Minister has made it quite clear that politicians are the most tender members of society and I suppose I have to accept that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Caithness moved Amendment No. 68: Page 33, line 32, at end insert—

("7 & 8 Geo. 6. c. xxi.

Middlesex County Council Act 1944.

Section 309.")

The noble Earl said: I spoke earlier to Amendment No. 68. I beg to move.

On Question, amendment agreed to.

The Earl of Caithness moved Amendments Nos. 68A and 68B: Page 33, line 35, at end insert—

("1968 c. 54.

Theatres Act 1968.

Section 5. In sections 7(2), 8, 9(1), 10(1)(a) and (b), 15(1)(a) and 18(2), the references to section 5.")

Page 34, line 28, at end insert—

("1984 c. 46.

Cable and Broadcasting Act 1984.

Section 27.

In section 33(2), the words "an offence under section 27 above or".")

The noble Earl said: I beg to move Amendments Nos. 68A and 68B together. I spoke to them on Amendment No. 56ZA.

On Question, amendments agreed to.

Schedule 3, as amended, agreed to.

In the Title:

Lord Stanley of Alderley had given notice of his intention to move Amendment No. 69: Line 4, after ("order") insert ("and trespass").

The noble Lord said: I understand that Amendment No. 70 deals with this point. I shall therefore not move this amendment.

[Amendment No. 69 not moved.]

[Amendment No. 69A had been withdrawn from the Marshalled List.]

The Earl of Caithness moved Amendment No. 70: Line 7, after ("events") insert ("to create a new offence relating to the contamination of or interference with goods; to confer power to direct certain trespassers to leave land:").

The noble Earl said: I beg to move this amendment, which is consequential upon Amendment No. 62B.

On Question, amendment agreed to.

Title, as amended, agreed to.

The Deputy Chairman of Committees (Lord Ampthill)

The Question is, That I report the Bill to the House with amendments.

Lord Mishcon

I only ask for guidance, but where there is a recommitment, and therefore the whole of the Bill is not yet ready for the Report stage, is that a correct Motion at this stage?

Lord Denham

Yes, it is possible for the Bill to be recommitted at any point. Therefore, we carry on at this moment, as has been suggested.

Lord Mishcon

I am grateful.

House resumed: Bill reported with amendments.

House adjourned at seventeen minutes before eleven o'clock.