Lords Sitting of 21 October 1986

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

Securities and Investments Board
Lord Taylor of Gryfe: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what criteria are being applied by the Secretary of State for Trade and Industry in making appointments to the Securities and Investments Board under the provisions of the Financial Services Bill.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Lucas of Chilworth): My Lords, the criteria concerning the composition of the governing body of a designated agency are contained in paragraphs 2 and 3 of Schedule 7 to the Financial Services Bill. The Government will be bringing forward an amendment at Third Reading which will require the membership of the governing body to be such as to secure a proper balance between the interests of authorised persons and the general public.
Lord Taylor of Gryfe: My Lords, I should like to thank the Minister for that helpful reply. Is the Minister aware, however, that this Question is prompted by the report in the responsible financial press to the effect that Mr. John Kay, the distinguished director of the Institute of Fiscal Studies, was asked by his right honourable friend whether he would serve on the SIB but that this was vetoed by the Chancellor of the Exchequer? Since Mr. Kay is a considerable critic of government taxation policies, can I be assured that political affiliations will not influence appointments to the Securities and Investments Board?
Lord Lucas of Chilworth: My Lords, I cannot possibly comment on press speculation about who was, or who was not, considered for membership of the Securities and Investments Board. Clearly, there were many possible candidates for appointments of this nature, and clearly there must be wide consultation about possible names. The assurance that I can give the noble Lord is that all members of the governing body are men of the highest calibre.
Lord Harmar-Nicholls: My Lords, is it not a little premature to have questions asked and answered on the provisions of a Bill that has not yet been approved?
Lord Lucas of Chilworth: My Lords, there is nothing premature about my Answer. The noble Lord, Lord Taylor of Gryfe, asked me what were the criteria. The criteria are those set down in the Bill before your Lordships' House at the moment. If there were no Bill, the criteria would still obtain.
Lord Strabolgi: My Lords, why did the noble Lord say "men" of the highest calibre"? Are the Government not considering ladies as well?
Lord Lucas of Chilworth: My Lords, the noble Lord will recall that my noble friend Lord Ferrers, when asked this question some seven years ago, said that "the male embraces the female".
Lord Williams of Elvel: My Lords, is the noble Lord aware that in the light of the defeat of the Government on the composition of the SRO boards and in the light of the amendment to which the noble Lord has referred, reluctantly being brought forward by the Government on Third Reading, we on this side of the House will be pressing him in the Third Reading debate as to exactly what sort of criteria will be used for these appointments?
Lord Lucas of Chilworth: My Lords, I am grateful to the noble Lord, Lord Williams of Elvel, for having given me notice of his intention to press this matter. I shall look forward with anticipation to that debate.
Lord Diamond: My Lords, the noble Lord did not answer my noble friend's question, did he? The question was whether the appointments would be free of any political commitment, to which the noble Lord said that those appointed would be of the highest calibre. Can I have his assurance that men—and "men" embraces women—other than of the Conservative Party are possibly in the category that might be described in suitable circumstances as being of the highest calibre?
Lord Lucas of Chilworth: My Lords, I am sure that there are many men and women of the highest calibre who have political affiliations outside the Conservative Party.

Food Processing: EC Product Liability Directive
2.41 p.m.
Lord Mottistone: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether, in view of the fact that primary agricultural products are prone to defects outside the control of the producer, and that problems may arise in identifying the producer, it is reasonable that food processors who have to use these products should be held liable for any damage that such products may indirectly cause.
Lord Lucas of Chilworth: My Lords, this Question concerns the European Communities product liability directive which the Government intend to implement through primary legislation as soon as parliamentary time is available. The basic purpose of the directive is to give protection to consumers throughout the Community against defective products which have been industrially produced.

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Both food and industrial processors need to ensure that raw materials of the required quality are supplied. No doubt both will provide in their contractual relationships for any liability not covered by this directive. Member states are not permitted to exclude food processors from liability under the directive.
Lord Mottistone: My Lords, I thank my noble friend for the somewhat full Answer he has given. But is he aware that the problem has been exacerbated by the Chernobyl nuclear disaster, which had an effect on the farming land of this country? Is he aware that a side effect is that Singapore is now demanding very low or zero levels of radiation in processed foods exported there? Is he further aware that a consignment of milk chocolate was recently turned back from Singapore by way of example? Is it not wrong that there should be exemption from product liability for primary producers but not for secondary and tertiary producers who have to handle the same basic raw products?
Lord Lucas of Chilworth: My Lords, in answer to the second question of my noble friend, no, we do not believe that the current situation is wrong. With regard to his first point, he will recall that I gave a Written Answer on 6th October. Clearly my noble friend recognises that the directive does not apply to injury or damage arising from nuclear accidents, which are covered by international conventions ratified by other member states.
Lord Gallacher: My Lords, does the noble Lord agree that, even if it were possible to water down the product liability directive, the very act of so doing would reduce the value of the protection which the directive aims to give consumers? Does he further agree that the reputation of the food processing industry in this country is so high that it should be possible for it to obtain the necessary insurance at fairly modest rates?
Lord Lucas of Chilworth: My Lords, I accept both points that the noble Lord has made. As I have suggested, we intend to bring primary legislation to Parliament as soon as time is available. It would be best if we were to pursue the detailed differences of opinion during the passage of that Bill.
Lord Cledwyn of Penrhos: My Lords, in view of the considerable principles involved not only for the consumers of this country but for those abroad and for our export industry, will the noble Lord be good enough to consult his right honourable friend on producing a White Paper in advance of the Bill, which may or may not be introduced fairly soon? A White Paper would give an opportunity for this House, the other place and the country generally, to debate this issue and to be fully informed of the facts.
Lord Lucas of Chilworth: My Lords, I should be glad to accede to the request of the noble Lord, the Leader of the Opposition. I shall certainly convey his views to my right honourable friend. Perhaps I should remind your Lordships that a consultative document was produced in November 1985 following the adoption of the EC directive on 25th July. Four
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months were allowed for comments. It is upon the basis of the comments in that document that the legislation is currently being drafted.
Lord Mackie of Benshie: My Lords, does the Minister agree that the processors in the food industry are a great deal more able to bear any liability than the poor primary producer?
Lord Lucas of Chilworth: My Lords, I think that is a matter of opinion. I agree that the processing industry probably has more technology instantly available to secure the quality which it will be demanding from the primary producer.
Lord Mottistone: My Lords, may I further ask my noble friend whether he will take to heart what has been done in Singapore? Perhaps he was not aware of that situation. Is that not very important with regard to exports? I am sure he will agree that this country is utterly dependent on exporting. If our important export products are stamped on because of the situation which has been created, is this not very bad for the prosperity of this country? Should not my noble friend take this matter more seriously?
Lord Lucas of Chilworth: My Lords, the Department of Trade and Industry takes our exporting efforts most seriously. We believe in an open trade, non-protectionist policy across the world. We seek to remove artificial barriers to international trade wherever they may be erected, for whatever reason. I assure my noble friend that we take matters of this kind very seriously indeed.

Home Ownership: South-East Price Trends
2.48 p.m.
Lord Beswick: My Lords I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government to what extent their policy of encouraging home ownership is affected by the current trend in house prices in South-East England.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Skelmersdale): My Lords, none.
Noble Lords: My Lords, will the noble Lord repeat the Answer?
Lord Skelmersdale: My Lords, none.
Lord Beswick: My Lords, I try to thank the noble Lord for that Answer. His Government are claiming credit for bringing the rate of inflation down to 3 per cent. Can they escape all responsibility for the fact that house prices in the South-East of England have risen by 16 per cent. in London, by 20 per cent. and 40 per cent. in certain sectors? With these present prices, and with current immoral interest rates, is not home ownership a mockery for many deserving young

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couples; and is it not a misery for those who achieve home ownership when one in 20 are facing repossession orders?
Lord Skelmersdale: My Lords, the reduction of the inflation rate to 3 per cent.—for which the Government quite rightly claim credit—has had the effect of creating a rise in real incomes in the region to which the noble Lord refers in his Question; namely, the South-East. With regard to first time buyers, these have risen in number every year since 1980 according to the building societies' figures. In 1985 there were 175,000 compared with only 95,000 in 1980. I should have thought that these figures speak for themselves in demonstrating the success of the Government's encouragement of home ownership.
Lord Mellish: My Lords, I, at least, am thrilled about the very good demand for new housing. Is the Minister aware that one of the worst aspects of this demand is what I call the "spiv" who has moved in? He buys eight, nine, 10 or 20 houses at, say, £40,000—in docklands, for example—and then holds on to them and sells them for £70,000, £80,000 or £90,000. What can be done to stop wretched people acting in that way?
Lord Skelmersdale: My Lords, like the noble Lord, Lord Mellish, the Government do not approve of either "spivs" or "cowboys". This is obviously a situation which needs watching very carefully. But I have not had evidence to suggest that it is happening on a widespread scale. If the noble Lord, Lord Mellish, would like to produce evidence I shall consider it.
Lord Mellish: My Lords, I shall do that.
Lord Winstanley: My Lords, does not the situation to which this Question draws attention place intolerable burdens on young people who seek to further their careers by taking posts in London? Is it not a fact that in London there are far too many houses which have been renovated to such a high standard that nobody can afford to live in them, and far too many houses that are so dilapidated that they are not fit to live in? Is it not economically and urgently desirable that there should be enough ordinary houses in London for ordinary people to live in? What is being done to provide them?
Lord Skelmersdale: My Lords, that is exactly the reason why the Government are encouraging local authorities to take up the 100 per cent. allowance for capital receipts for low-cost home ownership, which I think is probably the subject which the noble Lord is covering in his supplementary question.
On a more general point, we know that estate agents do not report any difficulty in selling properties. The figures that I have announced since 1980 confirm what I have said, that at the moment there is no difficulty in selling such properties.
Lord Northfield: My Lords, is the noble Lord not misleading us about the situation in the South-East as compared to the rest of the country? I think he was giving national figures. If one takes the present average earnings in the South-East of about £200 per
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week—£10,000 a year—and if one considers the mortgage of £25,000 to £30,000 which that income should allow people to have (namely, 2½ to 3 times their annual earnings), does that not mean that people on average earnings in the South-East cannot now afford a newly built house? Is this not something to which we must pay some attention?
Lord Skelmersdale: My Lords, that surely presupposes that all houses in the South-East are newly built, which in fact is not the case.
Lord Wallace of Coslany: My Lords, is the noble Lord aware—and I am sorry to have to put it this way—that his answers so far have been shockingly inadequate on a situation which is getting well beyond control? My noble friend Lord Beswick refers to a 40 per cent. increase. He is miles out; it goes into the hundreds. Is the noble Lord aware that, unless competition is introduced by the building of an adequate number of houses at a suitable price or rent then young people will have to suffer, and face the fact that they cannot even afford to have a child?
Lord Skelmersdale: My Lords, we will not know the figures for 1986 until they are published. However, I can tell the House that in 1981 the growth in house prices was 6 per cent; in 1982 it was 2 per cent; in 1983 it was 13 per cent; in 1984 it was 10 per cent; and in 1985 it was 9 per cent. I would accept that these figures are national figures and it is very much more difficult to isolate them to particular regions.
Lord Orr-Ewing: My Lords, does my noble friend bear in mind that there has been no move, particularly from Labour Party sources, to restrict the Rent Act? If the Rent Act was eased somewhat, there would be fewer people clamouring to buy their houses and many more moving into rentable accommodation which must be made available by this Government as soon as conceivably possible. No other party has ever backed any change of any consequence in the Rent Acts.
Lord Skelmersdale: My Lords, I would agree with my noble friend that, in so far as there is a problem of dwelling accommodation, which in fact was not what I was asked in this Question, then the more units that are made available to rent must obviously help. Freeing such properties from the scope of the Rent Acts would be very much a step in the right direction.
Lord Cledwyn of Penrhos: My Lords, to move away from party propaganda to reality, is the noble Lord aware that a house in North Wales, in a pleasant situation, costing from £28,000 to £35,000 would cost something like £125,000 to £150,000 in London? How does he justify that situation?
Lord Skelmersdale: My Lords, I do not think it is for the Government to justify the situation. As I have revealed during this series of questions this afternoon, there are people in the South-East who can, and do, afford to pay the prices which are asked of them.
Lord Beswick: My Lords, following on from what the noble Lord said, will the noble Lord comment on the figure I gave, that one in 20 people are now facing repossession orders? Is not all the evidence suggesting

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that some of those who have incurred these responsibilities are living in absolute misery? Will the noble Lord dismiss what was said by my noble friend Lord Mellish about what was happening with "spivs" operating in the lower sectors?
Will the noble Lord comment on this letter which I received from a substantial firm of London estate agents:
"The owner offered us a house she thought was worth around £150,000. We advised asking for orders over £250,000. This quickly brought a bid of £260,000 and finally achieved an offer of £300,000."
Does this not suggest something unhealthy in the housing situation in London?
Lord Skelmersdale: My Lords, I do not think I can be expected, nor would the House expect me, to make an off the cuff comment on a letter that the noble Lord has read out. However, so far as repossession cases are concerned, obviously this is a worrying factor, but I do not see it as being connected to the Question that the noble Lord put on the Order Paper.
We need a situation where a lot more care is given by the building societies, banks and other lenders of mortgage funds, to make sure that the people to whom they lend the money will be able to repay that loan over the period in the contract.
Lord Seebohm: My Lords, will the Minister not agree that all that has been said recently shows the enormous need for rented accommodation? Is it not time that the Housing Corporation was topped up again so that the housing associations may continue to make a major contribution towards curing this tragic situation?
Lord Skelmersdale: My Lords, I agree with the noble Lord in the first part of his supplementary question. However, the Housing Corporation is not the only funder of housing associations, although it does certainly provide the major slice at the moment. There are also local authorities, where they choose to use that route to spend their money. Since the Building Societies Act came into force there is the opportunity for building societies to invest in that way.
Lord Graham of Edmonton: My Lords, if the Government are seriously concerned about increasing the amount of rented accommodation, is it not time that the Government stopped the nonsense of prohibiting councils from selling their capital receipts? Is it not disgraceful that the amount of public sector building in 1986 is the worst since Neville Chamberlain was in charge of housing in 1924?
Lord Skelmersdale: My Lords, I think we have been drawn down a route which is really not germane to the original Question on the Order Paper.
Lord Northfield: My Lords, the noble Lord did not answer my question. I made the point that as people with average earnings can only service a loan of about £30,000, and the price of very small new houses in the South-East is now over £45,000, are we not facing a
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situation in which people with average earnings in the South-East of England cannot now afford to go into the market for a newly built house? Is this not something to which we should pay some attention?
Lord Skelmersdale: My Lords, I said in answer to another supplementary question but referring to the noble Lord, Lord Northfield, that the figures I gave originally were countrywide. From those figures there is no evidence that the situation that the noble Lord describes in his supplementary question is putting people off buying houses.

London Air Traffic: Computer Breakdown
2.59 p.m.
Lord Mackie of Benshie: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what were the results of the breakdown of the computers governing the air traffic control system at London airports on Monday, 6th October, why the breakdown occurred, and what steps they are taking to ensure that it does not happen again.
The Parliamentary Under-Secretary of State, Department of Transport (Lord Brabazon of Tara): My Lords, on Monday, 6th October the National Air Traffic Service's London air traffic control centre had to transfer to manual operations when its computer could not handle excess data that morning. Restrictions on traffic had to be imposed for some three hours, resulting in considerable delays at Heathrow and Gatwick. The National Air Traffic Service has now modified the computer programme.
Lord Mackie of Benshie: My Lords, I thank the noble Lord the Minister for his reply. However, I wonder whether the noble Lord is showing sufficient concern over this matter. It is very disturbing indeed that, with one breakdown or one overloading of a computer programme, we had a stoppage of flights, certainly from Scotland. The noble Lord did not answer my Question as to how many flights were cancelled or delayed. This has immense implications. Surely there must be a backup system. Furthermore, it has implications for our defence. If one computer breakdown can result in this sort of delay, surely the Government must take that very seriously and look into all forms of backup and indeed a reorganisation of the whole affair.
Lord Brabazon of Tara: My Lords, perhaps I may assure the noble Lord and the House that we take this matter very seriously. I am sorry if the noble Lord's flight from Scotland was delayed. Obviously, in a situation such as that, it is easier to delay short-haul flights than to delay long-distance flights. However, we should be encouraged by the fact that the manual operations were able to take over. They operate at roughly only half the capacity of the computerised operations. Certainly in the defence situation, if the system had to go over to manual, that is what would happen.
Lord Carmichael of Kelvingrove: My Lords, does the noble Lord remember that during the passage of the Airports Bill considerable concern was expressed about the role of air traffic controllers, and particularly the hours that they work? After the events of the 6th of this month at the London airports, it strikes one that the stress, strain and tension on air traffic controllers is perhaps even greater than we had thought when we discussed the matter during the Airports Bill.
Will the noble Lord look carefully at the whole question of the hours and the manual manning by air traffic controllers, and perhaps even consider giving a higher staff complement than is normal because of the incredible importance of this matter? Had anything happened in the London area that day or had there been an accident because of the fatigue of the air traffic controllers, the result could have been quite horrendous. With the department, will the noble Lord look at the role of the manual operations of air traffic controllers?
Lord Brabazon of Tara: My Lords, obviously I shall draw the remarks of the noble Lord, Lord Carmichael, to the attention of my right honourable friend. However, I can assure the noble Lord that at no time whatever was aircraft safety endangered. It was a controlled handover to manual from computer operation and, though I accept that the results were inconvenient to a great many people, in that respect it was extremely successful in that the manual operation was able to take over from the computers, though admittedly not at the same capacity. Great credit is due to the air traffic controllers.
Lord Mackie of Benshie: My Lords, would the situation have been quite so easy if the breakdown had occurred when the heavy overnight traffic was coming in an hour earlier?
Lord Brabazon of Tara: My Lords, I am afraid that I cannot answer that question specifically, but I am assured that, even if there was a complete breakdown rather than a controlled shutdown, as this was, at no time would aircraft safety be endangered.

Business
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon my noble friend Lord Caithness will, with the leave of the House, repeat a Statement that is being made in another place on visas.
It may be for the convenience of the House if I announce that proceedings on the Public Order Bill will be adjourned at approximately 7.30 p.m. for approximately one hour and that during this adjournment the Third Reading of the York City Council Bill will be taken.

Great Yarmouth Outer Harbour Bill:
3.4 p.m.
Read a third time.
Clause 29 [For protection of British Gas Corporation]:
The Chairman of Committees (Lord Aberdare)The Chairman of Committees (Lord Aberdare) moved Amendments Nos. 1 to 5:
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Page 14, line 22, leave out from ("by") to the end of line 23 and insert ("a public gas supplier within the meaning of Part I of the Gas Act 1986").
Page 14, line 27, leave out ("the corporation") and insert ("a public gas supplier").
Page 14, line 28, leave out ("the corporation") and insert ("that supplier").
Page 14, line 38, leave out ("the corporation") where it firstly occurs and insert ("a public gas supplier").
Page 14, line 38, leave out ("the corporation") where it secondly occurs and insert ("that supplier").
The noble Lord said: My Lords with your Lordships permission, I should like to speak to and to move these five amendments en bloc. They are all drafting amendments to Clause 29 of the Bill and they are required as a result of the coming into operation on 23rd August last of Part I of the Gas Act 1986. Their effect is to transfer the protection rights contained in Clause 29 from the previous British Gas Corporation to the new British Gas plc or any other authorised supplier of gas. I beg to move.
On Question, amendments agreed to.
The Chairman of Committees: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(The Chairman of Committees.)
On Question, Bill passed, and returned to the Commons with amendments.

Housing and Planning Bill
3.6 p.m.
Lord Skelmersdale,Lord Skelmersdale,, My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the amendments for the Report stage be marshalled and considered in the following order:

Clauses 1 to 6,

Schedule 1,

Clauses 7 and 8,

Schedule 2,

Clauses 9 to 14,

Schedule 3,

Clauses 15 to 17,

Schedule 4,

Clauses 18 to 23,

Schedule 5,

Clauses 24 and 25,

Schedule 6,

Clauses 26 to 37,

Schedule 7,

Clause 38,

Schedule 8,

Clauses 39 and 49,

Schedule 9,

Clause 50,

Clause 40,

Schedule 10,

Clauses 41 to 47,

Clauses 48 and 52,

Schedule 11,

Clause 51,

Clauses 53 to 57,

Schedule 12.

—(Lord Skelmersdale.)
On Question, Motion agreed to.

Royal Assent
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified Her Royal Assent to the following Acts:
Rate Support Grants Act,
Western Isles Islands Council (Berneray Harbour) Order Confirmation Act.

Public Order Bill
3.8 p.m.
The Minister of State, Home Office (The Earl of Caithness): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill in respect of Clauses 17 to 29 and Schedules 2 and 3.
Moved, That the House do now resolve itself into Committee (on recommitment).—(The Earl of Caithness.]
On Question, Motion agreed to.
House in Committee (on recommitment) accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 17 [Meaning of "racial hatred"]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 1:
Page 12, line 21, at beginning insert ("(1)").
The noble and learned Lord said: Members of the Committee may think that Part III of the Bill is rightly directed against the stirring up of racial hatred, and the Committee may think it is right that provision should be made against that in a Bill dealing with public order. In a plural society such as ours, where groups of persons of different colour, race, nationality or ethnic or national origins live often close together on this crowded island, the stirring up of racial hatred, whether intended or likely, is a very serious matter and almost bound to lead to public disorder or worse. It has indeed all too frequently been a crucial factor in the disorders in some of our inner cities.
Clause 17 of the Bill spells out the meaning of "racial hatred". It reads:
"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 question raised in the two amendments which we are considering together—Amendments Nos. 1 and 2—is whether the definition suffices and must include gypsies. It is in order to obtain the views and intentions of the Government on this matter that my noble friends and I have put down this amendment.
It has the support of the Commission for Racial Equality. As members of the Committee know, the functions of that important commission are laid down in the race Relations Act and are:
"to work towards the elimination of discrimination; to promote equality of opportunity, and good relations, between persons of different racial groups".
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The Act of 1976 further provides that "racial group" means:
"a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person's racial group refer to any racial group into which he falls".
The view of the commission is that the gypsies, for the purposes of that definition, are an ethnic group. The treatment of gypsies as an identified group shook Europe during the Nazi period. Thousands and thousands of gypsies were murdered in the name of racial purity. They were identified, and they were murdered en masse in that appalling campaign of genocide.
The question of whether gypsies are a racial group was considered judicially by this House in 1983 in the case of Mandla v. Dowell Lee. That case was concerned with whether Sikhs are a racial group for the purposes of the Race Relations Act. The noble and learned Lord, Lord Fraser, in his speech in that case—and it is reported in 1983 Appeal Cases—set out certain characteristics to be met by a group for it to constitute an ethnic group. His words were:
"For a group to constitute an ethnic group in the sense of the 1976 Act, it must, in my opinion, regard itself, and be regarded by others as a distinct community by virtue of certain characteristics. Some of these characteristics are essential; others are not essential but one or more will be commonly found and will help to distinguish the group from the surrounding community. The conditions which appear to me to be essential are these: (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which keeps it alive; (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. In addition to those two essential characteristics the following characteristics are, in my opinion, relevant; (3) either a common geographical origin, or descent from a small number of common ancestors; (4) a common language, not necessarily peculiar to the group; (5) a common literature peculiar to the group; (6) a common religion different from that of neighbouring groups or from the general community surrounding it; (7) being a minority or being an oppressed or a dominant group within a larger community".
One of the leading academic authorities on gypsies, Dr. T. A. Acton, has accepted the proposition of the common origin of the gypsies and their distinct languages from a common root. A week or so ago in the Tube train I was interested to hear two ladies speaking in a language that I could not easily identify—I know one or two—and I asked what it was. They said "Gypsy language"; they have their language.
Their "long shared history", as Dr. Acton writes, in the British Isles may be traced to the 13th century. They first featured in legislation in an Act of King Henry VIII of 1514. Their common cultural tradition and customs deriving from their nomadic life style are common knowledge.
The only other statutory provision to which I ought to refer is in the Caravan Sites Act 1968. It provides a definition of gypsies as:
"persons of nomadic habit of life, whatever their race or origin",
and is thus, for the purposes of our present task of construing Section 16, irrelevant.
The only other modern legal authority on gypsies is the case of Mills v. Cooper in the Divisional Court in 1967. It considered the word in the context of the Highways Act 1927, which has been repealed and now mainly replaced, but without reference to gypsies. The court in that case was unable to accept that the word

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"gypsy" meant "race", because that, in the context of that Act, would have been discriminatory.
Lord Diplock defined the meaning of "gypsy" in that case as:
A person without fixed abode who leads a nomadic life dwelling in tents or other shelter or in caravans or other vehicles"—
a view broadly shared by Lord Chief Justice Parker. But in Mandla's case the noble and learned Lord, Lord Fraser, as I have said, stated that "ethnic" is more than strictly racial.
The Public Order Bill language is identical with that of the 1976 Act in this part of it. However, it appears that in the Public Order Bill the view has been taken by the Attorney-General, on the advice of the Director of Public Prosecutions, that he is not prepared to accept that gypsies are a racial group for the purposes of this provision, relying on the case of Mills v. Cooper dealing, I submit, with a different issue and a different situation.
The Commission of Racial Equality certainly wishes to go on record that it disagrees with that view. But the present situation is that over a third of the complaints that the CRE receives about hate literature relate to gypsies. They are among the most abused and insulted people in this country. Indeed, it says that often the language is cruder and more offensive than literature relating to Blacks or Jews which has been, or is being, prosecuted.
It says further that it receives about 100 complaints about published material most years and a great many of those relate to the gypsies. I shall not cite them: it would only encourage possible imitation.
In Mandla's case Lord Fraser extended the group definition by adding:
"A group defined by reference to enough of these characteristics"—
which I have quoted—
"would be capable of including converts, for example, persons who marry into the group, and of excluding apostates. Provided a person who joins the group feels himself or herself to be a member of it, and is accepted by other members, then he is, for the purposes of the Act, a member".
That would help in dealing with the problem of distinguishing between gypsies and other itinerants, although it is the opinion, and the product of the research, of Dr. Atkins that about 90 per cent. of all itinerants are in fact of gypsy stock. Therefore there is here an important issue which in my submission the Committee should adjudicate upon.
The concern of the CRE has been reported to the Home Secretary who has suggested that perhaps an administrative solution could be discovered which would leave the law to be clarified at some future time. I submit that this Bill is a suitable vehicle and is indeed suitably timed for this matter to be dealt with, for the law to be clarified and put beyond peradventure by the amendment I have suggested to Clause 17, that for the purposes of Part III of the Bill gypsies are a group. I beg to move.
Baroness Faithfull: I wonder whether I might ask the noble and learned Lord for clarification? Those of us who, under the Gypsies Act, have been involved in setting up gypsy sites through local government, have always felt very confused because there is a big
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difference between gypsies and tinkers or travellers. They are quite different sets of people with different backgrounds, coming from different places and behaving in quite a different way. I am a little confused. The noble and learned Lord says "gypsies and other itinerants", and he said that 90 per cent. were gypsies. Those of us in local government who have had to supply a gypsy site have discovered that the people concerned were not gypsies: they were travellers. Gypsies do not like being confused with the travellers and the travellers do not like being confused with the gypsies.
Lord Somers: While the motives behind the noble and learned Lord's amendment are of the highest, I think sometimes some of us are apt to forget that we, the English people, are also a race. The hatred against the English people, which is displayed sometimes by some of the minority groups which have come into our country, seems to go completely unnoticed. I draw the Committee's attention to the recent action in one North London borough where spies—not English spies, obviously—are to be introduced into the schools to detect any possible chain of what might perhaps be called racial prejudice. Lack of racial prejudice is an ideal that we must all hope for, but we shall never get it until it is mutual on both sides.
The Earl of Caithness: The noble and learned Lord, Lord Elwyn-Jones, raised the very important question of the application of Part III to the gypsy community. Indeed he has referred to the representations on this issue made to my right honourable friend the Home Secretary by the Commission for Racial Equality. Some members of the Committee may have received a circular letter from the commission, urging support for an amendment to incorporate a similar declaratory provision to that proposed by the noble and learned Lord. I appreciate that the noble and learned Lord's amendment is intended for the purposes of clarification, but I regret to have to tell him that I can not support it.
There is no doubt that some sections of the gypsy community are of different ethnic origins. Those of traditional Romany origins are, I believe, an example of such a group. Indeed, I believe that they would fit the characteristics described by the noble and learned Lord. Those who are of distinct ethnic origins will fall within the definition of a racial group as it stands in Clause 17. They will therefore benefit from the protection against incitement to racial hatred afforded to all racial groups by Part III. The noble and learned Lord's amendment will make no difference to this.
However, there is equally no doubt that some groups who have a similar lifestyle to that of gypsies are not of distinct ethnic origins: they are simply people who have chosen to live by travelling from place to place. My noble friend Lady Faithfull mentioned some of the problems that local authorities have with these people who try to be classed as gypsies but are not, and the gypsies find that they are not beneficial to their particular difficulties.
The Caravan Sites Act 1968 indeed defines "gypsies" as "persons of nomadic habit of life". To amend the definition of a racial group in Clause 17 as proposed by the noble and learned Lord whould therefore bring within the scope of the Bill at least

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some people who are distinguishable merely by lifestyle and not by racial group. This would extend Part III beyond incitement to racial hatred, and I do not think that we should do so.
Althought we find repugnant offensively expressed views about any group or individual, that is not the concern of the criminal law. Since legislation to deal with incitement to racial hatred was first introduced in 1965, successive Governments have taken the view that it is only the specific mischief of incitement to racial hatred which justifies a separate criminal offence. I do not think we should depart from that discipline.
The noble and learned Lord has referred to the disquiet expressed by the Commission for Racial Equality about what it sees as the difficulties involved in bringing a prosecution for material concerning gypsies. I understand that there have been useful discussions between the CRE and the DPP's office about this, and those discussions are continuing. One of the difficulties in bringing prosecutions is that some material is directed against individual groups of travellers rather than against gypsies as a racial group. As I have said, if such material is directed against genuine gypsies it would be caught. Therefore the noble and learned Lord's amendment would not help them in this respect. Those gypsies who are a distinct racial group will be protected by Part III as it stands. The amendment will make no difference to that. We are not persuaded that Part III should be extended to cover other itinerants and travellers.
Lord Elwyn-Jones: It seems to be conceded by the noble Earl that gypsies are and can be an identifiable ethnic group. If that is so, why should they not be provided for in the Bill to remove this confusion which presently exists between those who are so identified and the tinkers, to use the word that has been used, and itinerants who may not necessarily be gypsies—although according to the research about 90 per cent. of them are? This obscurity and indefiniteness is causing much concern to the perfectly well behaved law-abiding gypsies. They have had too much recent European experience of being exposed and unprotected; not that I am for a moment comparing anything of the kind that happened in Nazi Germany with what would or could happen here.
I wonder whether the noble Earl will consider this again in view of the anxieties expressed not only by me but by the Commission for Racial Equality which is in close touch with the gypsies?—perhaps I should say the genuine gypsies, who are a genuine ethnic group who can be so described and so identified. If the noble Earl will be good enough to say that he will at least look at this again and perhaps if necessary, consult some of the representatives of the gypsies, I should be quite content with the fact that I have raised this matter for the Committee's consideration. Perhaps the noble Earl will be kind enough to respond to my suggestion.
The Earl of Caithness: Of course I will look at this again, but without commitment. I fear that I shall not have good news for the noble and learned Lord because this matter has already been looked at in some considerable depth. However, in view of his represent-
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ations, I shall happily take it away. I think he has absolutely put his finger on the pulse, which is to differentiate between genuine gypsies and those who portray themselves as gypsies when indeed they are not.
This, I believe, will be something for the courts to decide if the matter is pursued. We remain firmly of the opinion that the genuine gypsy, with the characteristics that the noble and learned Lord mentioned earlier, is already fully protected by Part III of the Bill, but I shall look at this matter again.
3.30 p.m.
Lord Pitt of Hampstead: Will the Minister bear in mind that the question does not really concern the technical fact of whether a person is a gypsy; it is whether or not he is treated as a gypsy and, as a consequence, having things said about him and them or done to them because they are being treated as gypsies. In the discussion which the noble Earl will have, I hope that he will bear that in mind and draw that particular fact to the attention of his advisers. For several years, I was chairman of the Campaign Against Racial Discrimination and we had to face this difficulty. We decided that we had to include the gypsies because they are being discriminated against. It does not really matter that the person was not necessarily a gypsy. He was being discriminated against because he was regarded as a gypsy.
Lord Elwyn-Jones: The problem is not so much that of the individual gypsy who may have some protection in the court, but the identification of the group as a whole as being outside the bounds of decent acceptability. I have had experience of the good faith of the noble Earl and I shall be content, in view of his assurance, eventually to withdraw the amendment.
Lord Renton: While admiring the good nature of this interesting and useful discussion, I feel bound to point out that if we single out one group, whether it be an ethnic group, a racial group or another, there are certain to be other groups eventually coming along who may feel that they, too, should have been included. Therefore, with great respect, I would utter a word of caution on this matter to my noble friend.
Lord Elwyn-Jones: That could well happen. It has happened in our country, in our community. New ethnic groups have been springing up all around us. We Celts have seen it happening over a thousand years or two thousand years! The original inhabitants have looked with dismay from time to time at the influx of Angles, of Saxons and of heaven knows whom. This ought to be looked at again, and I hope that it will be so.
Lord Roskill: If I may add a word or two, I was a party to the decision in the House which my noble and learned friend Lord Elwyn-Jones mentioned. The speech of my noble and learned friend Lord Fraser was drafted with enormous care and thought because so much difficulty had arisen in the past, particularly in the Birmingham area and in relation to Sikhs. Those of your Lordships who recall the case may remember that the Court of Appeal headed by the then Master of

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the Rolls, my noble and learned friend Lord Denning, had reached a totally different decision and it was a decision which, with great respect, was causing racial disharmony.
We hoped—and perhaps the hope was wrong—that we had achieved a definition which was going to work. Indeed, a number of the letters which my noble and learned friends and I received afterwards suggested that we had achieved a measure of success because one suggested that we ought all to be made honorary Sikhs—an honour which we very greatly appreciated. But however that may be, I respectfully suggest, with great respect to the noble Earl, that it cannot be right to leave the matter as it stands at the moment in the Bill. For the reasons I have just given, one has had this bitter experience of what happened three or four years ago over the Sikhs.
One fully sees the point made by the noble Baroness, Lady Faithfull, but if somebody is not a gypsy because he cannot bring himself within Lord Fraser's description, then he will not get the protection that the Act accords. Why not put the matter right, whether in the form that the noble and learned Lord, Lord Elwyn-Jones, suggests, or in some other form if that be acceptable to the Home Office. To leave it as it is, I respectfully suggest, is a source of danger for the future.
Lord Foot: If it is still the intention of the noble and learned Lord to withdraw this amendment, may I make a purely practical point? As I understand it, the noble Earl says that there is no need to worry because the genuine gypsy is already protected under the terms set out at the beginning of Clause 17. Consider this in a purely practical way. Supposing the law remains as it is, unamended, and supposing then that somebody makes an inflammatory statement about gypsies, or a section of gypsies; that it is decided to institute a prosecution and that comes before a magistrates' court, what are they going to make of the open words of this clause, if unamended?
Are they going to ask themselves whether gypsies are members of a race or an ethnic minority or a national minority? Will they come to the conclusion to which the noble Earl says that they ought to come; that is, as he says, that, clearly, they are protected by the Bill as it stands? I very much doubt whether a magistrates' court would come to that conclusion of a certainty. It might well be that the matter might turn upon the character of the particular magistrates' court from which the conclusion came. I would earnestly entreat the Minister to consider what has just been said by the noble and learned Lord, that it is very dangerous to leave this matter in the state of uncertainty in which it now stands.
The Earl of Caithness: I am grateful to all noble Lords and noble and learned Lords for taking part in this debate. I think it shows the wisdom of taking this matter away and having another look at it.
Amendment, by leave, withdrawn.
[Amendment No. 2 not moved.]
Clause 17 agreed to.
Clause 18 [Use of words or behaviour or display of written material]:
Lord Monson Lord Monson moved Amendment No. 3:
Page 12, line 25, after ("or") insert ("seriously").
The noble Lord said: As so much time has elapsed since we last debated Part III of this Bill in any detail, I think it right briefly to reiterate and enlarge upon some remarks that I made at an earlier stage so as to avoid any possible misunderstanding. Any deliberate stirring up of hatred is abhorrent, whether it be racial hatred, religious hatred, class hatred, hatred directed against non-striking miners or print workers or hatred against doctors, scientists and laboratory technicians engaged in medical research through the use of animals. All these forms of deliberately provoked hatred in this country in recent years have led to criminal damage, arson, injury and sometimes death.
Where we have to be very careful, in my submission, is in dealing with actions that are not specifically intended to stir up hatred but which somebody considers—and it can only be a subjective judgment, after all—may nevertheless do so inadvertently. Back in July, when I introduced similar amendments to Part I where I considered the safeguards which the word "seriously" provided to be equally vital, the noble Lord, Lord Glenarthur, tried to reassure me by pointing out that the word "insulting" has a different meaning in law from that which it has for the ordinary man in the street; that, in law, seriousness is implied, if not spelt out. In other words, in law, the word "insulting" is very close indeed to the word "abusive".
Having had some months to think about this, it seems to me that this argument is all very well; but is the average British juror likely to comprehend this somewhat technical point, as in the last resort it is the jury which is going to have to decide? The noble Earl, Lord Caithness, may well reply that the Bill incorporates a safeguard in the form of the Attorney-General, whose function it will be to filter out any frivolous or borderline cases. Such an argument is reassuring only up to a point. Obviously, under this Administration, or indeed any previous administration, whether Conservative or Labour, one could rely on such a safeguard.
But just look at the way things are going in this country. One of my nieces attends a state school in north London. Recently the word "blackboard" has been outlawed in that school. That word is deemed, for some obscure and tortuous reason, to be insulting to black people. Nearly everybody laughs at anti-racialist fanatics, but the fact is that the last laugh is on them because they are winning almost every single time; and so it goes on. One has only to think of the cases of Mr. Ray Honeyford and many other persecuted teachers.
The dedicated, skilful and hard-working men and women of the hard Left who have taken over local government in inner London and elsewhere most certainly aspire to take over national government before too long; and who can seriously imagine that they may not do so before the end of the century? In their hands, this Bill could be a most dangerous weapon and in theory it could, for example, lead to people being sent to prison for two years for telling Irish jokes in their backyard, if this Bill remains unamended.
I should add that if this amendment is successful I shall of course introduce consequential amendments to insert the word "seriously" in nine other places in Part III of the Bill. I should also like to do that in Part I on Third Reading, if Standing Orders so permit. I beg to move.
The Earl of Caithness: As the noble Lord, Lord Monson, said, this covers some old ground. The arguments he has put forward today are not dissimilar from those used earlier in Committee on 16th July, where they can be found in cols. 928 to 929. Without, I hope, offending the noble Lord—because his arguments are very similar—I shall be brief.
There are two elements to the offences in Part III. It must be shown not only that the words, gestures or written matter are threatening, abusive or insulting but also that they were intended or likely to stir up racial hatred. Both elements must be satisfied.
The noble Lord referred to the court's decisions. I again remind him of the two cases of Jordan v. Burgoyne and Brutus v. Cozens, where it was made abundantly clear that the test of what is insulting is indeed a stringent one. The words "threatening, abusive or insulting" have formed part of the offences of incitement to racial hatred ever since such offences were first introduced in the Race Relations Act 1965. There has been no evidence since then to suggest that the inclusion of "insulting" without qualification has caused any difficulties. We believe that the stringency of the tests already imposed adequately meets the noble Lord's concern. I listened carefully to what he had to say, but he has not persuaded me that we should change our minds on this particular point.
Lord Monson: I suppose I must be reassured to some extent by the noble Earl's reiteration of what was said and by his reference to the earlier Act, from which it appears that so far no untoward consequences have flowed from the non-inclusion of the word "seriously" or some similar qualification. Of course I am thinking about the future—not necessarily the near future but the medium to long-term future—rather than the past. However, the noble Earl's remarks are now on the record, as are those of his predecessor, the noble Lord, Lord Glenarthur. I think that in itself may tend to inhibit frivolous or borderline prosecutions in the future. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
3.45 p.m.
Lord Monson Lord Monson moved Amendment No. 4:
Page 12, line 26, after ("behaviour") insert ("towards a racial group in Great Britain").
The noble Lord said: With the leave of the Committee, I shall speak also to Amendment No. 5, which is consequential. These amendments reintroduce a safeguard which I believe—I cannot be certain—was in the original Bill before it went to Standing Committee in another place, though possibly the words I seek to reinsert are not totally similar.
As the Bill stands at the moment, somebody could be caught even though the individual or individuals they have allegedly insulted had never been anywhere
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near this country, if the individuals who made the remarks had been referring to corruption or cruelty in some other continent, for example. Indian friends of mine who, a few months ago, made some far from complimentary remarks about Sikhs while having coffee in my garden, following some terrorist outrage in the Punjab, might easily be caught, to give one instance. Alternatively, somebody could be caught if he insulted people belonging wholly or largely to another ethnic group in Great Britain and did so in a non-racial context. One thinks of Mr. Bernie Grant, who remarked, after a policeman had been brutally hacked to death, that the police got a damned good hiding. That remark was undoubtedly an insulting one and I think it almost certainly stirred up racial hatred, certainly among the indigenous population. All the same, I feel uneasy about the idea of sending people to prison for such a remark, however terrible, except in the most extreme circumstances.
People could also, as the Bill stands, be caught if they insulted people of their own ethnic group. If somebody were to make a vitriolic attack on those Members of Parliament who had resisted immigration control during the 1960s, thereby allowing hundreds of thousands of people to slip in under the barrier, he could well be accused of stirring up latent hatred by reopening the whole immigration controversy.
Finally, somebody could be caught, as the Bill stands, even if no individual or group of individuals were insulted at all. If the leader writer of a tabloid were to declare that multi-racialism is bunk—to paraphrase Henry Ford—or if a colleague on a more upmarket organ wrote rather more thoughtfully that multi-racial societies by and large do not work, no actual individuals or groups would be insulted. Yet opinions of that sort could be found highly insulting by people who are fervently committed to multi-racialism. I cannot believe it was intended that the various examples I have cited should come within the ambit of this Bill. I beg to move.
Lord Somers: Before the noble Earl replies, perhaps I may ask him to tell your Lordships whether, if these words were included in the Bill, we (the English people) are or are not a racial group in Great Britain.
Lord Hayter: While the noble Earl is thinking about that one, perhaps I may ask whether I am right in thinking that the words in this clause are governed by the words in Clause 17, where hatred is described as being against a group of persons in Great Britain and it applies to the whole of this section. Surely that is the answer—that so far as concerns the section we are talking about a crime against people in this country.
The Earl of Caithness: I have to tell the noble Lord, Lord Monson, that the words of his amendment, or indeed similar words, were not in the original Bill, and so I fear that his information on that matter is not quite correct. As the noble Lord said, these amendments would permit the offences in Clause 18 to apply only to words, behaviour or displays of written material which are threatening, abusive or insulting to a racial group in Great Britain. We believe this would limit the effectiveness of these provisions in dealing with offensive and inflammatory material.

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The racial hatred which is intended or likely to be stirred up must of course be against a racial group in Great Britain. But these amendments would require the court to be satisfied in addition that the material or words in question were threatening, abusive or insulting towards a particular racial group in this country. Material which failed to meet that test would be exempt from the provisions of Clause 18, even though it might be threatening and might be intended, or likely, by its very nature to stir up racial hatred in this country. For example, material which was threatening in a general rather than a specific way or was threatening to a racial group outside this country would not be covered even if, because of its original tone and approach towards other races, that meant that its public order consequences might be the same as material which was threatening specifically to a racial group in Great Britain.
Our concern in this Bill is to prevent threats to public order in this country. We maintain the view, therefore, that if words are threatening, abusive or insulting, and if they pose a potential threat to public order because it is intended or likely to stir up hatred against a racial group in Great Britain, the persons using them should be caught by these provisions. We accept that most instances in which Clause 18 will apply would satisfy the doubly stringent test advocated by the noble Lord. At best then these amendments may be unnecessary. But there may be instances which would not be caught if they were carried but which would nevertheless have the likely or intended effect of inciting racial hatred in this country.
The existing racial incitement offences, and indeed those in other clauses in Part III, all proceed on the basis of leaving unqualified to whom the offending matter is threatening, abusive or insulting. We are not aware that the present law is cast too wide in criminalising conduct in this respect. We are here concerned with despicable conduct on the part of certain individuals. Their conduct seems to me no less reprehensible and would not necessarily exclude public order considerations, just because it is a group outside Great Britain for whom the words, behaviour or display is threatening, abusive or insulting.
As regards the point raised about the English being a racial group, we are indeed a racial group and the amendment does not affect that
Lord Monson: I apologise to the noble Earl for being wrong about what happened in another place. I was certain that in Standing Committee the Bill had been made more draconian or firmer (depending on your point of view) and I obviously am wrong concerning the point at which that happened. I am not nearly so reassured about the Minister's answer to this amendment as I was with his answer to the previous amendment. He has in mind certain individuals who, he says, are stirring up racial hatred, but from the way the clause is drafted it could catch all sorts of people who were not specifically intending to stir up hatred of any sort.
As I said on an earlier occasion, we have no problem with the words "abusive" and "threatening". They are clear-cut. However, the word "insulting" is incredibly subjective. I hope that none of the examples I cited will lead in practice to prosecutions. I know the noble Earl
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cannot give me an immediate answer but I wonder whether it will be possible, in the short time remaining between now and when we reach this point again at Report stage, to let me know either orally or in writing whether the four examples I quoted will be caught by the clause as it stands.
The Earl of Caithness: I shall look at those points, but I think it is up to the courts rather than me to advise the noble Lord.
Lord Monson: I see. I can only beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 5 not moved.]
The Chairman of Committees: I have to point out that if Amendment No. 6 is agreed to, I cannot call Amendments Nos. 7, 8 or 9.
Lord Silkin of Dulwich Lord Silkin of Dulwich moved Amendment No. 6:
Page 12, line 32 leave out from (" place ") to end of line 35.
The noble and learned Lord said: I beg to move Amendment No. 6 and with it, with the leave of the Committee, I will speak to Amendment No. 8, which is an alternative wording, and to Amendment No. 10, which is consequential. These amendments concern the place where offensive behaviour under Part III of the Bill can take place so as to be criminal. In the predecessor of this legislation, the Race Relations Act 1976, in Section 70, which inserted a new Section 5A into the 1936 Act, we had this position. A person committed an offence if he published or distributed written matter which was threatening, abusive or insulting—apparently anywhere—or used in any public place or any public meeting words which were threatening, abusive or insulting. That latter part was confined to a public place.
Clause 18 of the present Bill alters that situation and puts the two parts of the clause on a parallel footing. It does so by virtue of subsection (2), which provides that,
"An offence under this section may be committed in a public or a private place",
and then goes on to create an exception to the type of place. It is that with which these amendments are concerned. The exception is:
"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".
That is a rather complex exception and I move these amendments in order to seek the justification for that.
In particular what we have in mind is to understand the intention of the Government in the situation which could very well arise when a person who is inimical to a particular household (for the sake of argument, a black household) enters the house, either by leave or by force, and while inside it performs conduct which, had it been performed immediately outside the house, would have fallen within the wording of the clause as it now stands. Why in those circumstances should he have an immunity from criminal prosecution, whereas if the offence had been committed by shouting from the street he would evidently not have immunity? At the moment we do not understand the rationale behind that exception.
For that reason, the first amendment we have put down, No. 6, omits the exception altogether so that the offence could be committed either in a public or a private place. As to that, if it is considered that any real danger arises and that prosecutions may be brought inappropriately, there is a safeguard of the necessary consent of the Attorney-General before the prosecution can be brought.
Alternative to that is Amendment No. 8, in which we suggest that the person should be limited to one who is not a trespasser. I am not very enthusiastic about that as an alternative because it raises the awkward questions which we have discussed in relation to Clause 39 concerning who is and is not a trespasser. However, if the Government are prepared to swallow that camel in Clause 39 there is little reason to think that they will be unwilling to swallow the gnat in this clause. I beg to move.
Lord Donaldson of Kingsbridge: I should like to support Amendment No. 6 from these Benches. Let me give an instance which is rather at the opposite end to that of the noble and learned Lord, Lord Silkin. Suppose that I, sitting in a room in my house, have a deputation of gypsies coming to see me. I insult them; I say I have absolutely no time for the roving crowd, I cannot bear George Borrow as a writer and I want to have nothing to do with them at all. We have a fight. It seems to me that I am clearly guilty of exactly the sort of thing that we are trying to suppress. Therefore I cannot see that this clause ought to exist. The amendment, which takes out "inside a dwelling", is correct. I should like to know what the noble Earl has to say about it.
4 p.m.
The Earl of Caithness: To deal first with Amendments Nos. 6 and 10, we appreciate the concerns which have been expressed by the noble and learned Lord, Lord Silkin, and the noble Lord, Lord Donaldson, on these points. There is no doubt that the kind of behaviour which Clause 18 is designed to catch is reprehensible and undesirable wherever it takes place. That is why we rightly include both public and private places. However, the effect of these amendments would be to bring within the scope of the offences activities of a purely private nature, such as conversations and exchanges of opinion between friends. I know that noble Lords did not give those examples, but those are the sort of things that would be caught by these amendments.
It is not part of our intention in this Bill to limit freedom of thought and expression; we are concerned rather with threats to public order. I think therefore that it is right that people should be able to express their opinions to one another in their own homes, provided that their activities are not seen or heard outside where they may pose a threat to public order. Similarly, we think it is right that people expressing their opinions privately at home, or in someone else's home, should not be at risk of conviction merely because for some reason, which they had no reason to believe existed, what they said or did was seen or heard outside the dwelling.
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It has been pointed out that the clause as drafted would not catch the case where a public meeting was held in a dwelling. This may be the case, but we do not believe that that represents a significant gap in the law. I understand that there have in recent years been no prosecutions under the existing law for this kind of activity, and I do not believe that the private expression of opinion should be penalised to ensure that if such public meetings took place they would be caught. This is not a matter on which there are easy answers, but I hope the Committee will accept that we have tried to strike, and have indeed struck, the right balance between freedom to express a private opinion and the need to penalise words and behaviour which stir up racial hatred.
Turning to Amendment No. 8, I totally agree with the noble and learned Lord, Lord Silkin, that it would be wrong if the criminal law was unable to protect us in our homes from hooligans who trespassed in order to insult us with racial abuse. However, the law already catches such behaviour and thus there is no need for this specific amendment. Clearly such hooligans will use or threaten violence to effect entry and they will know that there is a person in the house who is opposed to that entry. An entry in such circumstances would be an offence under Section 6 of the Criminal Law Act 1977. The police may arrest without warrant anyone who is, or is reasonably suspected of, committing this offence. Thus the noble and learned Lord's amendment is not needed as this type of disgraceful behaviour can already be dealt with by the police.
With regard to the example which the noble and learned Lord gave where people gain entry by deception, I fear that not having the legal training of noble Lords opposite I must revert to further advice on the point. But I hope that I have been able to convince the Committee that, although it is not an easy matter, we have struck the right balance between freedom in one's own home and freedom outside.
Lord Silkin of Dulwich: There is a difficulty of borderline definition. That is where I wholly agree with the noble Earl. I do not find myself convinced by the earlier part of his remarks, but I entirely accept the intention behind what he said when he drew attention to the fact that we do not want to criminalise friends talking to one another privately. There is no doubt that we would all agree on that. But I am bound to say that it is very difficult to see a situation in which friends are talking to one another privately in a friendly way, and in the course of his remarks one of them says something which is intended to stir up racial hatred. Surely that is the very opposite of talking in a friendly way with friends. If that were not enough to rule out the possibility of prosecution there is, as I have just said, the position of the Attorney-General in sanctioning prosecution as a long-stop.
The noble Earl was unable to think of occasions when somebody might obtain entrance to a private place by deception. I have in mind someone who goes to the door and simply claims to be an official of some kind or even a political canvasser, and then having gained entry in that way, causes great offence and harassment by his subsequent behaviour. I was interested to hear that there is an offence for which

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there could be a prosecution when a trespasser enters, though I take it that it is not an offence within this part of the Bill and is presumably something of a lesser kind altogether. But it is important that this kind of behaviour should be categorised as such, and not simply by reason of the method of obtaining entry to the premises when some other offence of perhaps a lesser kind is committed.
I accept the difficulties of definition—that my amendments merely draw attention to the problem rather than provide a solution—and accept that the Government have gone some way already by changing the form of wording from that in the present Section 5A. I hope that the noble Earl will promise to look at this again and see whether something more satisfactory which comes nearer to dealing with the problem can be devised.
The Earl of Caithness: I shall take the proposal away and have another look at it. I think we have a major problem here and I cannot guarantee to Members of the Committee opposite that I shall come back with anything satisfactory. But we have the remainder of the Report stage on this Bill in a couple of days' time and perhaps we can have another crack at it then.
Lord Hutchinson of Lullington: Will the noble Earl bear in mind that private conversations can take place in a hundred places other than a dwelling-house? They can take place in motor-cars, in offices and in all sorts of other places. Will he bear that in mind when looking at the matter again?
The Earl of Caithness: We shall continue to bear it in mind. It has not escaped our notice to date.
Lord Silkin of Dulwich: I am grateful to the noble Earl for making that promise. I understand his difficulty in coming up with a solution within two days, but I hope that we shall at least be progressing towards one. With that undertaking, I beg leave to withdraw the amendment.
Amendment , by leave, withdrawn.
The Earl of Caithness: This might be a convenient moment to take the Statement. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Visas
4.9 p.m.
The Earl of Caithness: My Lords, with the leave of the House, I shall now repeat a Statement about visas which is being made in another place by my right honourable friend the Home Secretary. The Statement is as follows:
"As the House will know, I announced on 1st September that the Government had decided in principle to impose visas on citizens of Bangladesh, Ghana, India, Nigeria and Pakistan. On 6th October I announced that the change in respect of
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the Indian sub-continent would take effect from 15th October. For Ghana the date of implementation will be 23rd October. It will be some time yet before the necessary arrangements for staff and accommodation can be completed in Nigeria, and we shall announce a date later for implementation. The necessary changes to the immigration rules have been presented. I hope that my right honourable friend the Leader of the House will find time for them to be debated before Parliament is prorogued.
"Four of the five countries already require visas of British citizens. We should have preferred to continue to allow their citizens to come here without prior examination, requiring pre-entry clearance only for settlement, employment and similar purposes. But the pressure on the immigration control made that arrangement increasingly unsatisfactory and occasionally unworkable. The volume of traffic and its difficulty alike increased. Excluding British and other EC nationals, the number admitted grew from 6 million in 1981 to 8.5 million in 1985. Whereas 13,000 of these passengers were refused admission and removed from the United Kingdom in 1981, the figure was nearly 18,000 in 1985 and rose to 22,000 in the 12 months ended June 1986.
"Passengers from the five countries constituted a significant proportion of these refusals: 49 per cent. in 1985 and 53 per cent. in the year ended this June. There has been no change in the qualifications for entry or in the practice of immigration officers. So these figures reflected the growing pressure of people not eligible for admission seeking to come to this country.
"The need to examine more passengers at the port of entry in detail submitted not only them but others to delay. While passengers were being examined they had either to be given temporary admission, often at risk to the control, or to be kept in detention, neither of which was satisfactory.
"When those seeking entry from a particular country as visitors include a sizeable minority who may be trying to come here for other purposes it is much better that the necessary inquiries and authorisations should be made before the journey starts rather then under pressure at the port of entry.
"In order to safeguard the interests of bona fide visitors my right honourable and learned friend the Foreign and Commonwealth Secretary has strengthened the staff of our posts in the sub-continent so that visas can be issued in an orderly manner.
"During the four days before the introduction of visas there was a sharp increase in the number of passengers from the sub-continent arriving at London Heathrow Airport. Included among these were a substantial number of young men, particularly from Bangladesh, who were clearly trying to use the last days of the old system to take advantage of its weaknesses. Despite the acute physical difficulties, I decided that those men should not all be temporarily admitted at once, but should be examined in the usual way. I am glad to report that, thanks to much patient hard work by the immigration service, this process is now virtually

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complete. Since the introduction of the new system incoming flights have included only a handful of people from these countries without visas, and the system is now working satisfactorily.
"For the countries concerned it will now be at our overseas posts, not at the ports of entry, that the main decision will be made. The guidelines on the handling of Members' representations will in our view need altering to reflect this. At the port of entry the immigration officer will normally no longer have to exercise a judgment on whether a passenger—claiming, say, to be a visitor—is bona fide.
"That judgment will now be exercised when the visa application is considered. There is of course a right of appeal against refusal of a visa. I do not believe that in addition to this safeguard the airlines or travel operators should be led to believe that individuals arriving here without visas will be automatically admitted if a Member of this House intervenes on their behalf. This is a matter which the House will want to discuss and I shall accordingly place the necessary amendment to the guidelines in the Library and the Vote Office. I shall not implement this change until the House has had an opportunity to discuss it.
"Mr. Speaker, in conclusion I wish to record my warmest thanks to all the various services at Heathrow and elsewhere who rallied with speed, resourcefulness and efficiency to cope with the intense pressures of last week. The outcome, I believe, is that we have introduced what will prove to be a major improvement in the working of our immigration control. As the new system settles down it will improve the position of all bona fide travellers and ease the strains, particularly at Heathrow, which have gradually built up over the past year".
My Lords, that concludes the Statement.
4.15 p.m.
Lord Mishcon: My Lords, perhaps I may at once express the appreciation of the House for the courtesy of the Minister in repeating this Statement which was made by his right honourable friend in another place. Perhaps I may also immediately join him in expressing appreciation of the services, the patience and the tolerance exercised by immigration officials and police last week at Heathrow when the situation was truly dreadful. We dealt with that in this House on Friday last and I do not intend to repeat anything that I said then; nor, if I may be allowed to say so, do I wish to withdraw anything that I said then in criticism of the Government.
Why is it that the noble Earl the Minister is so intelligent and his Government are so inept? I ask that question in all seriousness because, for the purpose of my reply to this Statement, I wish to take it for granted that the Secretary of State for Home Affairs did not intend any racialist ideas at all to guide him in connection with this regulation. What an odd way of dealing with the world outside, and especially the third world; of all times to introduce this regulation when it is known that the third world is terribly anxious—I use
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an understatement—about the attitude of Her Majesty's Government in regard to South Africa. To choose this moment is inept.
The Statement then says that four out of the five countries involved have a regulation that they require visas from our citizens. When we were debating the matter of Heathrow last Friday the noble Lord, Lord Boyd-Carpenter—I am sorry he is not in his place—made the point with his usual effective tones that what is sauce for the goose is sauce for the gander. Why were the Government so inept that they did not make a regulation, if that was their intention, which merely said that as from now Her Majesty's Government will insist upon visas being obtained by those citizens of those countries which require them from the citizens of this country? There would then have been no racial overtones and no protest from the Prime Minister of India—a perfectly sensible regulation whether or not one wishes it to be imposed. No, the Government have to speak of five countries, all of whose citizens or most of whose citizens are obviously black.
What about the figures? The Statement contains figures which according to my information are rather misleading. I should like to deal—only for a moment, I promise your Lordships—with the figures I have in regard to the five countries involved. My figures show that last year Britain had half a million visitors from the five countries concerned, and of all those the Home Office could find only 222 who had absconded. If the idea here is to save ourselves from those who have absconded, what is to prevent anyone who has a visa from absconding? What have we done in that connection by these regulations which have produced so much ill-will?
My last point is this. I am informed—and I invite the noble Earl the Minister to refute this if I am wrong; I have, as he knows, given him notice of this figure although the notice I gave him was only a matter of minutes—that the figure required to pay for the new arrangements in the five countries involved is £14 million. That £14 million would pay for just over 1,000 more immigration officers in the United Kingdom. That would cure all queues we have of immigrants, visa holders or non-visa holders, from the five countries, and indeed the whole world. I imagine it might considerably improve the impression that we give to visitors from overseas, from whatever country they come.
My final request to the Government is this. This is a very important matter that many of your Lordships will wish to discuss; a debate in which your Lordships will wish to participate and certainly listen to. I ask the Minister to help the arrangements through the usual channels to see that we have as early a date as possible for such a debate.
Lord Avebury: My Lords, is the Minister aware that the justification given for the imposition of visas is woefully inadequate, and that the figures provided certainly do not go to show that there was any need for this panic measure? Is not the increase in the number of passengers who have been refused admission as much a reflection of the strictness of the tests applied by immigration officers and the degree of suspiciousness that they entertain of persons coming

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here from the five countries as it is of the preparedness of those passengers to evade the immigration rules? Could not the figures be interpreted either way? Is it not correct to say that the Government have not made out a case to show that this increase in the number of refusals is the result of an increased attempt by those passengers to evade our immigration rules?
Similarly, the Statement refers to those not eligible for admission. Is not that simply an expression of the opinion of the immigration officers concerned, which has not been tested by any kind of judicial process since only a tiny fraction of those refused admission as visitors bother to exercise their minimal rights of appeal from their country of origin?
The Statement refers to the risk to control and says that temporary admission is granted often at risk to control. What does the noble Earl say about the figures given by the noble Lord, Lord Mishcon, that only 220 persons from these visa countries have absconded over a whole year compared with the many hundreds of thousands of visitors who arrive in this country?
The Statement refers to a sizeable minority of persons who may be trying to come here for other purposes, and says that it is better that the necessary inquiries be made before the journey starts. Is it not a fact that we imposed such a requirement on dependants in 1969, who have to obtain entry certificates in the countries of origin, and that, nevertheless, this system has not proved to be more reliable? For example, in the case of Bangladesh some 38 per cent. of the appeals from persons refused leave to enter as a result of the process which is now being introduced for visitors are, in fact, successful; that the decisions made by the entry certificate officers in Bangladesh are wrong in well over a third of the cases submitted to appeal. How are we to know that, similarly, bona fide visitors are not going to be refused in large numbers under these procedures?
The Statement refers to the system working satisfactorily. How can that possibly be claimed after six days? Does not the Minister agree that, in all conscience, it would have been a little more appropriate and sensible for the Secretary of State to have waited until a reasonable period had elapsed while these procedures were tested—or at least to have been evaluated by both Houses of Parliament—before making such an extravagant claim?
Finally, I have two more questions. As regards the airlines having to pay for those persons who are refused admission, if someone is granted temporary admission and is subsequently found not to have any grounds for his claim to enter and is sent back, would not the airline normally be responsible for the payment of the necessary fare? Could not that still be done notwithstanding the fact that the person arrives here without a visa and is granted temporary leave to enter?
As regards representations, is it not a fact that in settlement cases where the decisions are now made, as the Statement says, in the countries of origin, the Secretary of State always has been prepared to entertain representations from Members of either House and to grant temporary admission in appropriate cases while that is being done? Therefore, what is the difference between those cases of settlement and the cases we now have of visitors arriving without a
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visa? What is the justification for removing the rights of Members to make representations in one case when the Secretary of State has not done so in another?
The Earl of Caithness: My Lords, I am grateful to the noble Lord, Lord Mishcon, for welcoming the Statement. The noble Lord asked why we do not impose visa requirements on every country which imposes visa requirements on this country. We impose visa requirements to meet an operational or other need. We do not believe that it would serve any useful purpose to retaliate against a country that imposed a visa restriction on this country. Generally, because of our geographical situation, we are in the happy position of being able to rely on our system of control of visitors at the ports. This works well in most cases and is the cheapest of the very different types of immigration control arrangements.
The noble Lord asked about the extra cost and I confirm that it will be in the order of £14 million. However, I disagree with him about the number of immigration officers that amount would pay for. The £14 million is about equivalent to the staff costs of 700 immigration service staff. However, providing more staff at the ports would not have solved the problems. Airport facilities are not designed for the type of problems we are experiencing. The cost of new terminals would have been out of all proportion to the problem now facing us. Other facilities, such as extra detention accommodation, would be required. The £14 million is a gross cost and some of it will be recouped from visa fees.
The noble Lord, Lord Mishcon, also referred to race relations. Again, I do not withdraw anything that I said on Friday. I believe that it would be quite wrong to say that requiring visas must inevitably damage race relations. Were that so the same effect would have been caused by four of the five countries imposing visas on British citizens. Visas should improve port conditions not only for visa holders but for all travellers. Ending the scenes that have recently been commonplace at Heathrow cannot but be good, rather than bad, for race relations.
Both the noble Lord, Lord Mishcon, and the noble Lord, Lord Avebury, mentioned absconders, but absconding rates are by no means the whole story. The increase from 255 at Terminal 3 in 1985 to 430 in the year to June 1986 is disturbing enough. The point is that granting temporary admission is an unsatisfactory expedient. While better than prolonged detention for the passenger, it represents a loss of effectiveness in control. People are being let into the country whose claims for admission have not been fully examined or established.
The noble Lord, Lord Mishcon, also put the point about people absconding when they have a visa. That, I admit, is a problem, but the main problem—and the problem which we are trying to solve—relates to those who are trying to beat the immigration rules. The citizens who are given a visa are, in the vast majority of cases, visitors whom we would certainly welcome to this country.
One can give a number of examples of people who have tried to beat the system. There is a recent example of a person who purchased a British passport and tried to enter this country illegally in 1984. He was

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detained and removed from the country. Indeed, the same person has tried in the last few days to beat the rush, but by the vigilance of the immigration service, to which we pay great tribute, he has been caught.
To sum up, I think that all that has been said by the noble Lord, Lord Avebury, is best expressed in the question: Do we want an immigration system or do we not? The noble Lord does not seem to want an immigration service. Noble Lords opposite felt in 1968 that it was right to have one, but unfortunately, because of a small but increasing minority of people, the one that we have at the moment has been abused. We believe that that abuse, which is detrimental to race relations and to the bona fide visitor, should no longer continue. We therefore believe that we are absolutely right to ask for visas from the five countries that I have mentioned.
4.30 p.m.
Lord Renton: My Lords, is my noble friend aware that since the Immigration Act 1962 it has been acknowledged by all parties and it has been the practice that there should be a reasonably strict immigration control but that in spite of that this country has one of the most generous immigration policies in the world, which has been proved by experience? Is my noble friend further aware that most of the people who come to settle here want to settle in England rather than in other parts of the United Kingdom? England is one of the most densely populated countries in the world, if we leave aside the small island and city states. Does he not agree that the Government have a responsibility for ensuring that we do not add in any way to our problems of unemployment, education, health and housing and that the people of this country expect the Government to exercise the kind of reasonable authority which they have attempted to assert in regard to this matter?
The Earl of Caithness: My Lords, I am grateful to my noble friend for his remarks. Indeed I know that there are people who wish to come here to settle not only in England but in Wales, Scotland and Northern Ireland as well, and we welcome them. My noble friend is absolutely right. From the party opposite and ourselves there has come agreement that the immigration system must work properly. Unfortunately—and, as I said, it is regrettable—we have had to impose visas because our system, which was one of the most liberal in the world, was not working in that an increasing minority of people sought to abuse it.
Lord Mishcon: My Lords, does the noble Earl agree that the noble Lord, Lord Renton, whose contributions we always welcome, must not confuse the issue because it makes the conduct of the Opposition in such matters somewhat confused in itself?
Lord Renton: My Lords, I am not confusing—
Lord Mishcon: My Lords, perhaps I may deal with the point I wanted to make, which is that we have made it abundantly clear that regretfully strict
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immigration control is necessary. We are not dealing at all today with any debate or statement about immigration. We are dealing with the question of visas for genuine visitors to this country who ought to be welcomed.
Lord Harmar-Nicholls: My Lords, is my noble friend aware that if all sides agree that immigration rules are necessary most reasonable people would say that in applying those rules it is much better that they should be applied at the beginning rather than at the end of the process when expense and difficulties have been allowed to accumulate? With regard to the question of whether or not people feel inferior when they have a visa, I wonder whether the Leader of the Labour Party felt inferior when he had to have a visa attached to his passport before he could enter India a month ago.
Lady Saltoun of Abernethy: My Lords, is it not the case that I have to have a visa if I want to go to Australia? What is racist about that? What is all the fuss about?
The Earl of Caithness: I agree with the noble Lady. I do not see anything racist in this measure. When I went to Australia I did not need a visa yet it does not worry me now that I need a visa to go to America. With regard to the remarks of my noble friend Lord Harmar-Nicholls, I do not think I can add anything to the comment I have already made that we wish to make the system workable. I think that the noble Lord, Lord Mishcon, somewhat confused me by changing the emphasis slightly. However, immigration has been seriously put at risk, as have the enjoyable visits of bona fide visitors, by an increasing minority who wish to come here and who abuse the immigration system.
Lord Pitt of Hampstead: My Lords, if it is accepted that we want to make the immigration system work, will the Minister explain why it was not possible for the Home Secretary to indicate that visas would be required, to negotiate through his Foreign Office colleagues with the governments in question so that they could encourage their citizens to obtain visas before they come, and then later to fix the date after which nobody would be admitted without a visa? Would that not have prevented what we have been experiencing? Can the noble Earl tell me why it was necessary to take this action in the way in which it was carried out?
The Earl of Caithness: My Lords, in an ideal world the noble Lord would be right. Indeed, in an ideal world we should not have to have visas. But as I explained on Friday, and as my right honourable friend the Home Secretary has said on many occasions, it is the continual and growing pressure on the immigration service by this increasing minority that has forced us to take the action that we have taken.
Lord Pitt of Hampstead: My Lords, that does not answer my question. Let me give your Lordships an illustration of what I mean. I had lunch today with a lady from Pakistan who knows the consul-general there. Months ago when she was leaving Pakistan she

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asked him about a visa and he said that she would not need a visa and it would be a long time before such a thing was required. When she arrived in Geneva the question of a visa had already arisen. She had to go to the embassy there and she was told that she had better stay another couple of days so that she could obtain one. I am trying to point out that if that woman had taken the advice of the consul-general in Pakistan she would have been in that crowd.
The Earl of Caithness: My Lords, there comes a time when every government have to take action. The noble Lord has rightly pointed to one circumstance where inconvenience could have been caused and we regret that inconvenience. There is no doubt in our mind, and it is clear from the evidence, that there was a continual and growing problem, to such an extent that my right honourable friend had to act and act quickly.
Lord Boyd-Carpenter: My Lords, is it not an interesting commentary on the contrast between our society and that of the communist world that we have to take steps to keep people out whereas it expends great energy on keeping people in?
Lord Ardwick: My Lords, can the noble Earl say anything about the physical conditions for the applicants? For example, will they have to stand in long queues under the hot sun to apply for visas after perhaps rather long journeys?
The Earl of Caithness: My Lords, I do not think it would be right for me to comment on that situation yet because they may be able to apply for their visas by post or other means if they so desired. With regard to the point raised by my noble friend Lord Boyd-Carpenter, I think his comment is a rather useful one at this stage.
Baroness White: My Lords, can the noble Earl give an assurance that if the requirement for visas is extended to other parts of the Commonwealth—or the rest of the world for that matter—really adequate notice will be given so that we do not have a repetition of what happened last week? The date by which visas will be essential should be notified well in advance so that people can make their dispositions and we do not have a repetition of the appalling situation that arose at Heathrow.
The Earl of Caithness: My Lords, I think we come back to the ground we were covering on Friday. Whenever one draws the line or says that one intends to introduce visas, one is open to criticism. We believe that the situation was deteriorating and the pressure of those wishing to beat the system and clog the wheels was making life so difficult that we had to act and act quickly.
Lord Auckland: My Lords, is my noble friend the Minister aware that the vast majority of people in this country will agree with the measures that Her Majesty's Government are taking? Should not, however, the Home Office consult perhaps all the embassies and High Commissions concerned with the whole problem of issuing visas? As the noble Lady,
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Lady Saltoun, said, people going to Australia have to have visas but people coming from Australia do not; and people going to the United States of America have to have visas but this does not apply in the other direction. Is it not time that the Government looked into the whole question of issuing visas—leaving aside the merits of this case—to ease the lot not only of the embassies and High Commissions concerned but also of those who are involved through the necessity to issue these visas?
The Earl of Caithness: My Lords, I am grateful to my noble friend for his points. I am sure that it will be seen—when some of the emotion that is, I fear, clouding the issue at the moment dies down—that the Government took the right decision. Of course, I shall pass on to my right honourable friend the Home Secretary my noble friend's points about looking at the whole of the visa system.
4.41 p.m.

Public Order Bill
House again in Committee (on recommitment) on Clause 18.
Lord Monson Lord Monson moved Amendment No. 7:
Page 12, line 34, leave out ("by a person inside a dwelling") and insert ("in a private place").
The noble Lord said: It may be for the convenience of the Committee if, in moving this amendment, I speak also to Amendment No. 9. Subsection (2) of Clause 18 is amazingly intrusive upon traditional British freedoms. This is particularly so since prosecutions can be brought even if as few as two people are involved; that is to say, the person making the insulting remark alleged to inspire hatred and the person who comprises his or her audience. I am not sure whether this is generally realised.
If these two amendments are not agreed to, it will be illegal to make insulting statements in the private office of a political, national or ethnic organisation. In other words, within the four walls of their private office with the front door firmly closed, those in a Tamil organisation could not be insulting about Sinhalese, or the other way round; Arabs could not be offensive about Israelis, or the other way around; and Greek Cypriots could not insult Turkish Cypriots, or vice versa. Nor could people speak freely, albeit insultingly, among themselves in a room above a pub or in a hall hired by a particular political, national or ethnic organisation for the evening. As the clause stands, people cannot even speak freely in their gardens or anywhere outside their dwelling even if there are no third parties present. For example, two Greenham Common women chanting outside their tents, or even inside their tents, since the walls are so thin that passers-by would hear, "Yankee murderers go home" following the American bombing raid on Libya, would certainly be caught by the clause, even though no American serviceman was anywhere within earshot.
Once again, the subsection as it stands goes much too far, I submit, in this instance to the detriment of traditional concepts of privacy and traditional British freedoms. I remind the Committee that traditional British freedoms include the right to voice attitudes

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and opinions—robust and even coarse—of the sort found in working men's clubs, public bars, saloon bars and even wine bars and inevitably found distasteful by the liberal establishment. The rest of us may also, from time to time, find some or all of these attitudes and opinions distasteful. But that is part of the price that one pays for a free society. I beg to move.
The Earl of Caithness: It is not the purpose of Part III to affect the private expression of opinion of an individual in his own home. For this reason, the use of words or behaviour in a private dwelling is not covered by Clause 18. We do not believe, however, that this exemption should be extended to private places other than dwellings. In the general order of things, conversations in a dwelling will be between an individual and his friends or relatives. Even if they are not of like mind on matters concerning members of ethnic minorities, they are unlikely to be said to be setting out to stir up racial hatred in a way that threatens public order. Any disagreement that arises at the time is likely to be on a small scale.
However, when it comes to private places, it is much more likely that people will be present who have no link of friendship between them, and there may be an intention to stir up racial hatred on a scale that threatens public order. Indeed, if, as may well be the case, people of differing views are present, the threat may be immediate. We believe that this situation should be covered. It will be agreed, I hope, that we have struck a reasonable balance between protecting freedom of opinion and protecting against people who seek to stir up racial hatred in a way that threatens the peace and stability of society.
Once again, it is a matter of balance, very similar to the situation when I was responding to the noble and learned Lord, Lord Silkin of Dulwich, on Amendment No. 6. Both amendments look at a similar problem from different viewpoints. Having said that I shall take away and have another look at the amendment proposed by the noble and learned Lord, Lord Silkin of Dulwich, it would be totally wrong were I not to agree to examine the amendment of the noble Lord, Lord Monson, as well.
Lord Monson: I am mollified at least by the last sentence of the noble Earl. I do not believe that the Government are living in a real world. We have to face the fact that the world, unfortunately, is full of people who resent one another for historical reasons or because of what is happening in various parts of the world. The idea that people in their offices, clubs, or whatever, cannot voice their irritation or anger with other people is preposterous. The noble Earl has referred again to people who seek to stir up hatred. I have already mentioned that people who seek deliberately to stir up hatred leading to violence should come under the provisions of this part of the Bill. I must, however, remind the noble Earl that we are also referring to people who, while expressing strong views, are not specifically seeking to stir up hatred but who may be considered to do so, though it is a matter of fine judgment.
I do not believe that the subsection strikes a reasonable balance as it stands. I hope that the noble
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Earl will look seriously at what I have said before the next stage of the Bill. On that supposition, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments 8 to 10 not moved.]
Lord Mishcon Lord Mishcon moved Amendment No. 11:
Page 13, line 8, leave out subsection (6).
The noble Lord said: The purpose of the amendment is to obtain clarification before we move on to other amendments, either at this stage or at Report stage, that deal with radio, cable and television. The Committee will observe that Clause 18(6) reads:
"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".
The position was simple under the original Bill. There was a bare reference in Schedule 2 to the Cable and Broadcasting Act 1984. One amendment was made. Pursuant to an undertaking that was given in another place the situation in regard to the broadcasting system and the cable programme service was looked at again in order that they might be brought within the purview of the Bill. We now have a most complicated exercise in Schedule 2. If members of the Committee will kindly refer to that section of the Bill they will see that there is the most complicated reference to various provisions which are now to affect these media, cable and broadcasting. Members of the Committee will find the new provisions in the Marshalled List under Amendment No. 27. If any layman looks at that Schedule 2 he will certainly be confused; and I believe that confusion would certainly extend to any member of the legal profession too.
Members of the Committee will see that one starts off with the words, "Omit section 27" of the Cable and Broadcasting Act 1984. I promise not to go through the whole of this. In Section 28 one has to add words in the definition clause. In Amendment No. 27 under Clause 5A under that schedule one amends it as it extends to Northern Ireland; and so it continues. Instead of that confusing series of provisions in Schedule 2 I thought that it would be useful to this Committee if we heard very clearly from the Minister why we cannot merely say that Clause 18 applies to a programme broadcast or included in a cable programme service, and why we have to have to have these complicated provisions in the schedule.
At the moment therefore I merely move the amendment which seeks to withdraw subsection (6) and will listen to the Minister with that appreciation that I always do while he explains why we could not have that simple amendment instead of the complicated provisions which are now going to be before us.
The Earl of Caithness: Subsection (6) has the effect of exempting from prosecution under Clause 18 words spoken or conduct resorted to solely for the purpose of a programme to be broadcast or transmitted by cable. We believe that this is correct. What we should be concerned about when the words or conduct are used solely for the purpose of the programme is what happens when the programme is transmitted; and the Bill already gives us adequate powers to deal with the

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latter. Perhaps I may refer members of the Committee to Clause 22. This clause creates offences for which the broadcaster, programme producer and the actor may be liable.
When, for instance, a television panel game is being broadcast but a studio audience is present then Clause 18 is relevant in relation to words spoken in the course of the game and which the audience hear. So Clause 18(6) does not exempt all words spoken, and conduct resorted to, which are broadcast. It does so only where the sole purpose of their use is their inclusion in a broadcast or cable transmission. In such circumstances Clause 22, and in particular Clause 22(2)(c), are relevant.
I hope that has clarified this point for the noble Lord, Lord Mishcon. However, I am sure that when it is portrayed like that he and the whole of the legal profession will now be at ease.
Lord Mishcon: I am most grateful to the noble Earl. I still think that there is a simpler way of dealing with this question, but this is not the appropriate time. That should obviously be by way of a suggested amendment, either to the schedule or to later provisions of the Bill. In those circumstances, I ask the leave of the Committee to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mishcon Lord Mishcon moved Amendment No. 12:
Page 13, line 11, at end insert—
("(7) The local authority responsible for maintaining any public highway or passage-way shall remove therefrom, or from any curtilage adjacent thereto, any display of written material as is referred to in subsection (1) within fourteen days of receiving notice of the existence of such material").
The noble Lord said: I hope that members of the Committee will think this a very important amendment. Clause 18 of the Bill says that a person commits a criminal offence if—and I am leaving out the irrelevant words—
"a person … displays any written material which is threatening, abusive or insulting"
in regard to race matters. That offence is obviously committed by offensive graffiti being inscribed upon walls, usually in an urban area. Members of the Committee will appreciate that a conviction may result, but the graffiti stays there. I know of few things that are more damaging and painful to racial minorities—and especially to the children among those minorities as they walk to school, possibly with a white friend—than see upon the walls, "Out with the wogs" or whatever the wretched graffiti may be. How do we deal with that? The only way is that which was adopted in the other place at Third Reading of this Bill: to impose upon a local authority the duty within a reasonable period, of removing the offensive graffiti.
That amendment was moved in the other place at Third Reading by a learned, and obviously very much respected, Member of the Government, Mr Ivan Lawrence. He was supported from another part of the House. Perhaps I may paraphrase the answer of the Minister. I am perfectly willing to quote it. It appears at col. 1055 of the proceedings of the other place on 30th April. The Minister welcomed not only the spirit of the amendment, but the amendment itself. However, he said that he felt it was the wrong moment
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to impose yet one more duty upon a local authority, and indeed that there might be difficulties in enforcing it.
I understand that I must not quote the exact words of Mr Lawrence, but I am allowed to paraphrase his reply. It was not one of great gratitude to the Minister, but he expressed the hope that the matter might have a better acceptance in another place. It has now reached another place. I am moving this amendment in the hope that this great barrier in the way of good relationships in many urban areas is removed by the offensive graffiti being removed by the local authority as a matter of duty. I ought to say in fairness to the Minister that he implied that he thought good local authorities would most likely remove it anyway. I have heard that reply before. I have no doubt that it would be true that good local authorities would remove the graffiti anyway. I am thinking of the medium-good and bad local authorities. One wants to make it a mandatory duty upon authorities to adopt this course in the real interests of proper race relations in this country. I beg to move.
5.00 p.m.
Lord Hutchinson of Lullington: I should like strongly to support this amendment. Graffiti is one of the major nuisances of today—one of the menaces of the paint gun and the paint spray. In the old days one would find graffiti only in gentlemen's lavatories. Nowadays it is spread all over every free surface in most towns. I regret to say that in the United States of America it has become an art form. Happily, over here it has not yet found its way into our picture galleries.
The perpetrators of graffiti are very rarely caught. I would like to support what the noble Lord, Lord Mishcon, said about the offensive nature of graffiti in the context of racialism. It is far worse than many public nuisances, because it continues on, whereas many public nuisances which are dealt with in all sorts of legislation are over very quickly.
The Earl of Caithness: I agree with what the noble Lord, Lord Mishcon said, that this is an important amendment. On one small point I may have misheard the noble Lord; my honourable and learned friend Mr. Lawrence is not a member of the Government, but to be technically correct is a member of the Government's party in another place.
Lord Mishcon: I was only forecasting!
The Earl of Caithness: As this is an important amendment, I appreciate the concern of the noble Lord, Lord Mishcon, and that of the noble Lord, Lord Hutchinson of Lullington, that the responsible authority should take the necessary steps to remove offensive graffiti as soon as possible. This applies especially to racially inflammatory graffiti which may be particularly and continuously disturbing.
Some local authorities in areas where there are ethnic minority communities already make it a priority to remove such graffiti as soon as possible. The Government encourage all local authorities to recognise the effect that such graffiti may have on the lives of people who see it, and to take appropriate action. We hope that they will remember that they

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have a duty under Section 71 of the Race Relations Act to make good relations between people of different racial groups, and to consider the effect of such graffiti on that. Removing graffiti generally seems a sensible part of housing management policy which any local authority will have in mind when allocating resources. Whenever practicable we would certainly encourage local authorities to maintain the local environment in this way.
I do not think that I can support the noble Lord's amendment. Local authorities already have many statutory duties and it is not the Government's policy to impose new ones on them unless absolutely necessary. Here at least I am consistent with my honourable friend in another place. In this case I do not think there is a necessity for an extra duty. Moreover enforcement through the courts of such duty on an unwilling authority could well prove difficult.
In any event, the amendment would not achieve the noble Lord's aim since it would not deal with the graffiti on highways which the local authority had no responsibility to maintain, and also graffiti in places removed from the highway to which the public have access. I have in mind such places as the underground, an airport, British Rail, or the gable end of a privately owned house. The only legal consideration there is whether the owners were concerned in committing the offence under Clause 18 of displaying the written material.
I agree that it is an important amendment. I can see exactly what the noble Lord, Lord Mishcon, is driving at. However, I do not think that it covers all the points. Given the local authority's duty under Section 71 of the Race Relations Act and the encouragement that the Government are giving the local authorities in this matter, I hope that he will not wish to pursue this amendment further.
Lord Donaldson of Kingsbridge: I am unhappy at this reply because what the Minister has said in effect is that this amendment does not go far enough. If that is so, let him take it away and produce an amendment which does. Merely to say that one cannot ask the local authority to do something which they ought to do seems to me not an answer at all.
Lord Mishcon: I think the Minister himself was almost hesitating as he addressed the Committee on this matter. Usually the waves come over between us fairly clearly. However, on this occasion I did not detect any strong resolve in his own mind that this amendment should be resisted.
As this is an important amendment perhaps I may analyse what he said: Yes, it is a very good thing to try and do this. Yes, the effect on race relations is a very bad thing if you do not. Sorry, but it would add an additional duty to a local authority. That was an extraordinary debating argument because in another part of his address I thought he was saying that they already performed that duty. If that is the situation, it cannot be an, addition to a duty on a local authority which in any way affects the issue. He then went on to say that there is a section of an Act which tells the local authority to do all that they can in regard to race
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relations. If I may say so, I do not think it is very clever to reply upon that rather vague power.
Lastly, on the point that the noble Lord, Lord Donaldson, took up, I understood he was saying that one would not be covering everything and one cannot cover everything, because it is not possible, for example, to cover Underground stations. For heaven's sake, let us cover what we can. I think this amendment is one that the Government ought to have accepted. I am sorry that they did not. There is no party politics in this at all, and I hope the members of the Committee will realise that when the movers ask for this matter to be tested.
5.7 p.m.
On Question, Whether the said amendment (No. 12) shall be agreed to?
Their Lordships divided: Contents, 92; Not-Contents, 105.

DIVISION NO. 1

CONTENTS

Amherst, E.

Llewelyn-Davies of Hastoe, B.

Ardwick, L.

Lloyd of Kilgerran, L.

Aylestone, L.

Lockwood, B.

Banks, L.

Longford, E.

Beswick, L.

Lovell-Davis, L.

Blyton, L.

Mackie of Benshie, L.

Bonham-Carter, L.

McNair, L.

Boston of Faversham, L.

Mishcon, L.

Bottomley, L.

Morton of Shuna, L.

Bruce of Donington, L.

Mountevans, L.

Carmichael of Kelvingrove, L.

Mulley, L.

Cledwyn of Penrhos, L.

Nicol, B.

David, B.

Northfield, L.

Dean of Beswick, L.

Oram, L.

Diamond, L.

Phillips, B.

Donaldson of Kingsbridge, L.

Pitt of Hampstead, L.

Elwyn-Jones, L.

Ponsonby of Shulbrede, L. [Teller.]

Elystan-Morgan, L.

Ennals, L.

Prys-Davies, L.

Ewart-Biggs, B.

Rhodes, L.

Ezra, L.

Ritchie of Dundee, L.

Falkender, B.

Roberthall, L.

Foot, L.

Rochester, L.

Gallacher, L.

Ross of Marnock, L.

Galpern, L.

Seear, B.

Glenamara, L.

Serota, B.

Graham of Edmonton, L.

Shepherd, L.

Grey, E.

Somers, L.

Grimond, L.

Stallard, L.

Hampton, L.

Stedman, B.

Hayter, L.

Stoddart of Swindon, L.

Heycock, L.

Strabolgi, L.

Hughes, L.

Taylor of Gryfe, L.

Hutchinson of Lullington, L. [Teller.]

Taylor of Mansfield, L.

Tordoff, L.

Ilchester, E.

Turner of Camden, B.

Irving of Dartford, L.

Vernon, L.

Jacques, L.

Wallace of Coslany, L.

Jeger, B.

Walston, L.

Jenkins of Putney, L.

Wells-Pestell, L.

John-Mackie, L.

Whaddon, L.

Kilbracken, L.

White, B.

Kilmarnock, L.

Wilberforce, L.

Kinloss, Ly.

Williams of Elvel, L.

Kirkhill, L.

Wilson of Langside, L.

Lawrence, L.

Winstanley, L.

Leatherland, L.

Winterbottom, L.

NOT-CONTENTS

Alport, L.

Belstead, L.

Auckland, L.

Bessborough, E.

Beaverbrook, L.

Brabazon of Tara, L.

Belhaven and Stenton, L.

Brougham and Vaux, L.

Beloff, L.

Broxbourne, L.

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Butterworth, L.

Long, V.

Caithness, E.

Lucas of Chilworth, L.

Cameron of Lochbroom, L.

McAlpine of West Green, L.

Campbell of Alloway, L.

McFadzean, L.

Campbell of Croy, L.

Macleod of Borve, B.

Carnegy of Lour, B.

Mancroft, L.

Carnock, L.

Manton, L.

Cathcart, E.

Margadale, L.

Constantine of Stanmore, L.

Marshall of Leeds, L.

Craigavon, V.

Maude of Stratford-upon-Avon, L.

Cullen of Ashbourne, L.

Davidson, V. [Teller.]

Merrivale, L.

Denham, L. [Teller.]

Mersey, V.

Derwent, L.

Milverton, L.

Dilhorne, V.

Molson, L.

Donegall, M.

Monckton of Brenchley, V.

Duncan-Sandys, L.

Montgomery of Alamein, V.

Elibank, L.

Munster, E.

Elliott of Morpeth, L.

Norfolk, D.

Elton, L.

Nugent of Guildford, L.

Faithfull, B.

Orkney, E.

Fanshawe of Richmond, L.

Pender, L.

Fortescue, E.

Penrhyn, L.

Fraser of Kilmorack, L.

Peyton of Yeovil, L.

Gainford, L.

Portland, D.

Gardner of Parkes, B.

Reay, L.

Gisborough, L.

Renton, L.

Glanusk, L.

Rodney, L.

Glenarthur, L.

Rugby, L.

Gray of Contin, L.

St. Aldwyn, E.

Gridley, L.

Saltoun of Abernethy, Ly.

Hailsham of Saint Marylebone, L.

Sandford, L.

Savile, L.

Halsbury, E.

Sherfield, L.

Harmar-Nicholls, L.

Skelmersdale, L.

Harvington, L.

Sudeley, L.

Henderson of Brompton, L.

Swansea, L.

Hesketh, L.

Swinton, E.

Hives, L.

Teynham, L.

Holderness, L.

Thorneycroft, L.

Home of the Hirsel, L.

Tranmire, L.

Hood, V.

Trenchard, V.

Hooper, B.

Trumpington, B.

Hylton-Foster, B.

Vaux of Harrowden, L.

Kaberry of Adel, L.

Vickers, B.

Knollys, V.

Vivian, L.

Lane-Fox, B.

Ward of Witley, V.

Lauderdale, E.

Whitelaw, V.

Layton, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.15 p.m.
Clause 18 agreed to.
Clause 19 [Publishing or distributing written material]:
Lord Mishcon Lord Mishcon moved Amendment No. 13:
Page 13, line 25, at end insert ("(including a member of the public)").
The noble Lord said: I think that I can be fairly brief over this amendment. As the Committee will see, Clause 19(3) says:
"References in this Part"—
that is, this part of the Bill—
"to the publication or distribution of written material are to its publication or distribution to the public or a section of the public".
There the Bill stops. This amendment seeks to add the words:
"including a member of the public".
This is necessary because there was the case of R v. Britton, which was decided in 1967. Without wearying the Members of the Committee with too many facts,
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let me say that it involved a prosecution by virtue of the fact that a Member of Parliament, when at home with his family, heard the crash of the glass panel in his front door being broken. He saw the appellant running away, and pursued and caught him. On returning to his house the Member of Parliament found stuck on the door a pamphlet with the words on it, in large black letters, "Blacks not wanted here". Four or five other similar pamphlets had been left in the porch, and nearby was a beer bottle round which another pamphlet had been wrapped.
The appellant was duly convicted, but the case came before the Court of Appeal. Lord Parker, the Lord Chief Justice at that time, delivered a judgment in which he said that the conviction had to be quashed by virtue of the fact that a distribution had not been made to a section of the public. I quote but a couple of sentences from his judgment:
"Nor, as it seems to this court, can one say, and indeed counsel for the Crown has not suggested it before us, that the member of Parliament or his family were a section of the public within the meaning of the definition clause. The words 'any section of the public not consisting exclusively of members of an association of which the person publishing or distributing is a member', connote the idea of an identifiable section of the public who, but for those words, might be said not to be members of the public at large, in other words members of a club or of an association".
Therefore, by virtue of that decision, I ask for these words to be added. I beg to move.
Lord Monson: I wonder whether the noble Lord, Lord Mishcon, can explain to the Committee why, as an alternative, the perpetrator of this most unpleasant deed was not charged with causing criminal damage, the penalties for which could be quite severe?
Lord Mishcon: Someone much more learned than I whispered to me as 1 rose: "because that would only be an offence under an Act of 1971, and this occurred in 1967."
Lord Monson: I am most grateful to the noble Lord.
The Earl of Caithness: I appreciate the noble Lord's concern that the publishers and distributers of racially inflammatory material should be caught no matter how few people the material is distributed to. However, we believe that Clause 19 and 21 as currently framed already meet that concern. For example, a person may be distributing leaflets in the street but he may give out only one because there is only one passer-by at the time. In such circumstances the court could hold that that passer-by was a section of the public. Similarly if only one member of the public attended a public meeting at which a racially inflammatory recording was shown, that individual might be held to be a section of the public. At the end of the day it is a matter for the courts to decide in the light of the particular circumstances.
We believe it is right to ensure that purely private transactions such as a personal letter from one person to another, or a private showing of a recording, are not affected by this clause. It is not the purpose of Part III to affect private expressions of opinion. It is for this reason the Clauses 19 and 21 refer to distribution or publication or distribution, showing or playing to the public or a section of it. I think it is right that it should

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be for the courts to decide in the light of the circumstances whether a particular act of distribution, showing or playing constitutes distribution, showing or playing to the public or a section of it.
I take note of what the noble Lord, Lord Mishcon, said about the case of R v Britton, in 1967, but the point of Part III is whether it is a question of public order, and that is the difference between us. If the person is inciting racial hatred, expressing to the public or a section of the public, we believe that one individual can be caught, which rather differs from the interpretation that the noble Lord has put on the Britton case.
Lord Mishcon: I propose to consider what the noble Earl has said. At the moment I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 19 agreed to.
Clause 20 [Public performance of play]:
Lord Hutchinson of Lullington Lord Hutchinson of Lullington moved Amendment No. 14:
Page 13, line 31, after ("circumstances") insert ("and taking the performance as a whole").
The noble Lord said: I hope that the Minister will have little difficulty in accepting this amendment. In Schedule 3 on page 36 of the Bill Section 5 of the Theatres Act 1968 is repealed. This clause, Clause 20, has been substituted for it. It deals with the situation of the public performance of a play.
The old section, Section 5, reads very much the same as the new clause. But when it reached the point at which guilt was spelt out the words were these:
"shall be guilty of an offence under this section if—
(a)he did so with intent to stir up hatred"
et cetera. This is the relevant provision:
"(b) that performance, taken as a whole, is likely to stir up hatred against that section on grounds of colour, race or ethnic or national origins".
The essential words in that Act were "taken as a whole".
In this clause, instead of those words, we find
"(b) having regard to all the circumstances, racial hatred is likely to be stirred up thereby".
The amendment simply wishes to add what I suggest are the crucial words:
"having regard to all the circumstances, and taking the performance as a whole racial hatred is likely to be stirred up".
These words are important, A character in a play may use words which, taken in isolation, would be likely to stir up racial hatred. You have only to think of "The Merchant of Venice" and the remarks made about Shylock. You have only to think of Alf Garnett, who would be in a great deal of trouble, one would think, under this clause. It is essential that words spoken by a character in a play should be looked at in the context of the whole play and the place in the scheme of the play that the character is fulfilling. The character may be depicted as a racist.
The words "having regard to all the circumstances", I would suggest, are not apt to meet the situation. To
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look at lines spoken in a play in the context of the play as a whole is in no way a circumstance to which a court can have regard. For instance, outsiders attending a rehearsal would be a circumstance; or failure to make a cut would be a circumstance; or disobeying the instructions of a director of a play would be a circumstance. But to look at the words in the context of the play as a whole could hardly be described as a circumstance.
Parliament inserted these very words in Section 1 of the Obscene Publications Act, where the material complained of:
"shall be deemed to be obscene … if taken as a whole, [its effect is] such as to deprave and corrupt".
Clearly there it has been found essential, when examining allegedly obscene passages in plays, to look upon them in the whole context of the play, and that of course is always done. Exactly the same principle should apply when judging the effect, prima facie, of racist material. I beg to move.
Lord Elystan-Morgan: I invite the Committee to accept the arguments of the noble Lord. I believe that they are utterly unanswerable. I am sure that it was never the intention of Her Majesty's Government that there should be any catching of a phrase or a sentence, or even a speech, in a play without looking at the play as a whole.
If that was the intention of Parliament from the very beginning, I am sure that the noble Lord, Lord Hutchinson, is correct when he says that the phrase "having regard to all the circumstances" might well not achieve that; the danger being that when the courts have to interpret the meaning of the words they would obviously look to the Obscene Publications Act 1959—which has the fundamental provenance, as the noble Lord pointed out—and at the Theatres Act 1968, which has that formula in a number of its sections, and not only in relation to racial hatred but in relation to obscene publications as well.
The courts will inevitably place significance upon the fact that a well-known, accepted form of words has been deliberately left out, and might well draw the wrong conclusions from that. If I am wrong, that it never was the intention of the Government that it would operate in this way, there is even greater force in the noble Lord's submissions.
Dramatists from classical times onwards, from Sophocles to Bernard Shaw, in order to show how ridiculous and unworthy a sentiment is, have placed that sentiment in the mouth of an impossible character. The absurdity of the submission is then compounded, as it were, by the unworthiness of that character. The danger will be that that form of dramatisation, one of the most powerful forms known to literature, will become dangerous unless it is spelt out in the way the amendment suggests.
5.30 p.m.
Lord Monson: As I have been largely at odds with Members of the Committee on the Opposition Benches so far this afternoon, I should say that I believe this to be an extremely sensible and indeed vital amendment.
Lord Jenkins of Putney: I add one word to this subject before we have the reply. It is my hope, as in the case of the noble Lord, Lord Hutchinson, that we are knocking at an open door. I hope that we are, but in case an extra word would be helpful in getting the answer which I believe we are entitled to expect, I add that unless we have the words "taken as a whole" we shall be in great difficulty. I cannot see that it would be possible to put on any future performance of "Othello", for example, without being in danger of serious trouble. It is only the whole of the situation which emerges at the end of a play that enables one to say that this is a great play and that it is not morally contemptible. We must be careful about this. My noble friend Lord Strauss, who introduced the Theatres Act, was wise in taking the right advice. He was told that the words "taken as a whole" were the right words to ensure that the thing went far enough and not too far.
I hope that we shall hear from the Government that they recognise that these words have stood the test of time and that we should be very foolish not to incorporate them in this piece of legislation.
The Earl of Caithness: We are all grateful to the noble Lord, Lord Hutchinson of Lullington, for explaining the purpose of his amendment. As he pointed out, under Section 5(1)(b) of the Theatres Act 1968, in determining whether racial hatred is likely to be stirred up by a performance, the performance must be considered as a whole. The noble Lord wonders why in shifting the provisions on racial incitement in the Theatres Act into Clause 20 of this Bill "taken as a whole" has fallen by the wayside to be replaced by "in all the circumstances". The answer is that we thought it sensible to bring Clause 20 into line in this respect with other provisions in this part of the Bill. Clauses 18 to 19 and 21 to 23 all employ the words "having regard to all the circumstances". In doing so they follow existing law.
In the case of Clause 20 it seems clear to us that "circumstances" include the play as a whole. The advantage of referring to "all the circumstances" is that account can also be taken of the nature of the audience, outside political events and so forth. Members of the Committee opposite may perhaps agree with me so far, but they may well ask whether it is not prudent to include both "taken as a whole" and "in all the circumstances" That indeed is the effect of this amendment.
As I have explained, although I do not believe that "as a whole" would add anything, to try to help the noble Lord I was tempted to accept the amendment if Clause 20 could be looked at in isolation, but that I am afraid is the rub. It seems to me that the difficulty with a belt and braces approach is that it casts doubt on other provisions in Part III. There is no express requirement in, for example, Clause 22 for a television programme to be taken as a whole or in Clause 19 to say that a newspaper article should be taken as a whole. In the latter case it is difficult to see how such a requirement could be included.
I believe that as the Bill stands it will be clear that "all the circumstances" includes the whole of a programme, play or newspaper article as the case may be, and covers such plays as "The Merchant of
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Venice" or "Othello". But doubt would surely be cast on this if Clause 20 referred to the performance "taken as a whole" and other clauses contained no similar requirement.
To sum up, "in all the circumstances" seems more apt than "taken as a whole" and in our view covers all the ground and more covered by "taken as a whole". Further, it appears to us that if we were to accept this amendment we should be tending to cast doubt rather than to promote certainty. This is because, if we were to destroy the symmetry between Clause 20 and the remainder of Part III, we should be suggesting, contrary to our intentions, that these provisions should be interpreted differently.
The noble Lord, Lord Elystan-Morgan, argued that the arguments of the noble Lord, Lord Hutchinson of Lullington, were utterly unanswerable. I hope I have tried to answer them, but I fear that some Members of the Committee may not agree.
Lord Grimond: I am one of those who ventures not to agree. It seemed to me listening to the case made for this amendment that it was indeed unanswerable. It does not seem now that the Minister has answered the main point, which is that the phrase "all the circumstances" is not the same thing as "taken as a whole". I do not think he answered that point. I understand that he was inclined to accept this amendment and his only reason for not accepting it was that it would mean amending other parts of the Bill. Why not do that? If it is important or sensible to have this amendment what is to prevent the Government from amending the other parts of the Bill, which I think may well be improved by similar amendment? Without it, as has been said, it seems to me that the courts will believe that this provision has been deliberately omitted and it will make it extremely difficult for them to interpret the Bill in the way that both the Government and the mover of the amendment want it interpreted.
The Earl of Caithness: I should tell the noble Lord, Lord Grimond, that I said that the words "in all the circumstances" were more apt than "taken as a whole" and in our view cover all the ground and more than the words "taken as a whole", so there was another strand to my argument.
Lord Hutchinson of Lullington: With the greatest respect to the noble Earl, he completely misses the point of this amendment. The situation in the theatre and in a play broadcast on television or sound radio is totally and completely different from the situation covered by Clauses 18 and 19. If one is saying things in public, in private in the street or wherever else, there is nothing to take into account except the situation at the time where you are making the observation or using the insulting, abusive or threatening words.
A play is completely different. When something is said in a play you do not take it as it stands at that time, looking at the circumstances surrounding the phrase at that moment. As has already been said, if you were to do that all sorts of great plays, taking a line at a time, would be clearly within these clauses. A play is something which continues for a long period of time and has a message in it; it is to be looked at as a whole,

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and the phrase which is being used or the behaviour of the actor must be looked at in the whole long context of the play. This is a one-off situation and cannot possibly relate to the earlier clauses in any shape or form.
With the greatest respect to the Government, I ask the Minister to agree to take this back and to consult those who are involved in this world. I do not know whether he can tell us if they have been consulted, because this is for the theatre a very serious matter indeed. I urge upon the Minister that this is a matter which affects the whole world of the theatre, be it in the live theatre or through the media. It is a one-off situation and surely taking this debate as a whole everything that has been said about this clause has been said in one direction only. Unless the Minister can give me some assurance that the matter will be looked at again and that those who know about those matters will be consulted, I feel that I am bound to take the view of the Committee on this matter.
Lord Mishcon: I should like to add a brief word to the very strong submission that was made by the noble Lord, Lord Hutchinson, and others who participated in this debate. I hope that my short point will persuade the noble Earl that he must take this matter back unless he wishes to face a Division. The first part of the alleged offence is that the person who presents or directs the performance intends thereby to stir up racial hatred. May we take it for granted that any look at this play would immediately acquit the person concerned of the charge that that is what he intended? Then may we take it for granted that there is a play at the end of which complete and absolute mockery is made of the character who stirs up the racial hatred; but that it is such an awful play that three-quarters of the audience walk out at the interval?
In those circumstances, since they have never heard the rest of the play, where all this is refuted, the poor judge, the poor magistrate, who is trying this case says: "In all the circumstances that are before me, three-quarters of that audience having heard this dreadful part will undoubtedly have had racial hatred stirred up within them. And they did not hear the other part. In all the circumstances, I am afraid that I have got to convict". This really raised the absurdity, if I may say so, of resisting this very sensible amendment. With the noble Lord, Lord Hutchinson, I hope that at the very least, having heard this debate, the noble Earl the Minister will go back and will not use those precautionary words, "I can't hold out very much hope".
Lord Elystan-Morgan: Before the noble Earl replies, perhaps I may urge him, as a person who is a monument of good sense and patience, to consider two arguments, one which has already been put forward with some force by the noble Lord, Lord Hutchinson, and by my noble friend Lord Mishcon. A play is a comprehensive totality in a way in which the situations under Clauses 18 and 19 are not. Secondly, if the clause remains in its present form the result in law, as I apprehend it, will be that under the Theatres Act 1968, Section 2(1), which deals with an obscene publication, will enjoin a court to look at the
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performance as a whole for the purposes of obscenity. But that same court will not be enjoined to look at the performance as a whole in relation to engendering racial hatred. That will make a thorough mess of that piece of legislation.
In the light of that second point alone, never mind the stronger and more comprehensive argument in relation to the first matter, I urgently ask the Minister to reconsider the situation.
The Earl of Caithness: With due respect, I think that the noble Lord, Lord Hutchinson of Lullington, was wrong when he said that Clause 20 could be distinguished from the rest of Part III. I do not believe that that is the case; because the offence in Clause 20 is that of giving a performance of a play and it is therefore similar to the mischief in Clause 18 and the publishing in Clause 19. The noble Lord, Lord Mishcon, gave a very good example of a play where a lot of the audience walked out after, say, three-quarters of the play. I would only reiterate that our very best advice is that the words which we have suggested—"in all the circumstances"—would mean that the judge would have to take the play as a whole from the beginning to the end. Not only that, but he could also take account of the nature of the audience, outside political events and so forth. We believe that what we propose is slightly better than "taken as a whole". I am sorry to disagree with noble Lords opposite, but we believe that the judge should have no difficulty in situations such as those envisaged by the noble Lord, Lord Mishcon, in directing the jury to look at the play as a whole, from the beginning of the first scene to the end.
5.45 p.m.
Lord Foot: Before this matter is taken to a vote—and I certainly hope that my noble friend will do that because I think the answer that we have received is entirely unsatisfactory—perhaps I may take the point which has just been made by the noble Earl. I make this point. If you look at Clause 18, it would be ludicrous to put in there the words which are going to be put into Section 20. It would be ludicrous to say:
"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…he intends thereby to stir up racial hatred, or…having regard to all the circumstances".
and add the words "taking the performance as a whole". That would be absurd.
It would be equally absurd to put those words into Clause 19. But when you go to the other clauses which follow, there it is necessary to put in words of the same kind as are required by this amendment, because Clause 21 deals with,
"a person who distributes, or shows or plays, a recording of visual images".
Why should that not be taken as a whole when it is being considered what is to be done? If you go on to Section 22, that again deals with broadcasting or a programme in cable programme service. Why should we not there (as my noble friend Lord Grimond has suggested) put in these same words: "taken as a whole"? This is one of those subjects upon which I should have thought the Government would be

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delighted to have the assistance and advice of the Committee. It is to be noted that the noble Earl has not received any support from the people behind him.
Lord Beloff: If I may explain why the noble Earl the Minister has not received any support from the people behind him, it is because his arguments are without value. We on this side of the Committee cannot always be relied upon to support any ministerial argument, however fatuous. It is true, as has been said over and over again, that plays are different because (I think this is the most powerful argument) they express the views of the characters.
My own co-religionists over many years have from time to time objected to "The Merchant of Venice". They have always been answered by others of their co-religionists that this is wrong, that although in this play things are said which any Jew hearing them would find hurtful, the ultimate impact of the play is not such. Surely for once the Minister must find that he can at least go back to his experts to see whether he can find someone with knowledge of literature and the theatre who is prepared to support him; because no one in this Committee, where our knowledge is of the law and politics, can support him on this point.
The Earl of Caithness: I agree entirely with the noble Lord, Lord Foot, that using the words "taken as a whole" in Clause 18 would be ridiculous. That is what I said earlier. What I have said is that the words that we have used—"in all the circumstances"—are the same as and cover the same ground as "taken as a whole". Contrary to what my noble friend Lord Beloff has said, I think that I will take this matter back to have another look at it. It will not be the first point in this Bill that I have taken back to have a look at. I have already taken back a number of matters this afternoon, as well as at earlier stages. I promise to have another look at this one.
Lord Hutchinson of Lullington: I think I heard the noble Earl say that he is going to agree to take this back. If I heard him aright, in those circumstances and in spite of every word that has been spoken on this amendment having been one way, I am content to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Caithness The Earl of Caithness moved Amendment No. 15:
Page 13, line 32, at end insert—
("( ) If a person presenting or directing the performance is not shown to have intended to stir up racial hatred, it is a defence for him to prove—

(a) that he did not know and had no reason to suspect that the performance would involve the use of the offending words or behaviour, or

(b) that he did not know and had no reason to suspect that the offending words or behaviour were threatening, abusive or insulting, or

(c) that he did not know and had no reason to suspect that the circumstances in which the performance would be given would be such that racial hatred would be likely to be stirred up").

The noble Earl said: This amendment provides defences for the director or presenter of a play the performance of which was likely to stir up racial hatred, who can prove broadly either that he had no reason to suspect that was likely or that he had no
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reason to suspect that the words or behaviour were threatening, abusive or insulting; or, where the performers depart from the script, that he had no reason to suspect that such words or behaviour would be used. It is broadly comparable to subsections (3), (4) and (6) of Clause 22. I beg to move.
Lord Elwyn-Jones: I confess that I am somewhat puzzled by this amendment. It says:
"If a person presenting or directing the performance is not shown to have intended to stir up racial hatred, it is a defence for him to prove",
first,
"that he did not know and had no reason to suspect that the performance would involve the use of the offending words".
But he is the director or the producer.
Then paragraph (b)says:
"that he did not know and had no reason to suspect that the offending words or behaviour were threatening, abusive or insulting".
But surely he can read. He can read the script, he being the person presenting or directing the performance. Also, I am not sure about the third point:
"that he did not know and had no reason to suspect that the circumstances in which the performance would be given would be such that racial hatred would be likely to be stirred up".
Does he not command the circumstances? Of course he may decide to withdraw the play everywhere except to selected audiences made available beforehand. I am sorry, but I do not see the sense of this at all.
The Earl of Caithness: I think that the argument used against me in the last amendment with regard to the words spoken in "The Merchant of Venice", would provide the defence that the director or presenter needed. There is also the case where the actor may depart from the script and the director may not be present, or he may be totally unaware of the circumstances in which the actor was going to depart from the script. We have tried to protect the innocent presenter or director in such circumstances.
Lord Elystan-Morgan: If the noble Earl the Minister is really concerned, as I suspect he is, with situations of ad libbing, I venture to suggest to him that where one has to choose between two evils—that is, between an innocent director (innocent in the sense that he has no knowledge that the words are going to be used) or the other evil that substantial racial hatred would be engendered (and I prefer that word to the term "stirring up")—I should have thought the lesser evil would be to make the director responsible. But of course in such a situation any court would regard that as a massively substantial factor in mitigation. I am not sure whether that is what the Minister had in mind, but if he had a different situation in mind I should be very grateful if he would spell out to us exactly what he had in mind.
Lord Jenkins of Putney: I find myself equally puzzled about this matter. I have no knowledge of the source of the amendment or anything of that kind, but I ask: why is the director thought to be in need of special protection? One can see that a director might falsify the intention of the writer, and therefore one might perhaps wish to protect the writer who writes words but, in the hands of a wicked director, finds

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himself having expressed racial hatred, which he had no intention of doing. Or what about an innocent actor who, directed by the malicious director, finds himself expressing racial hatred in a series of actions or gestures which he is instructed by the director to carry out and which, taken as a whole, express racial hatred?
I think we are in some difficulty and some genuine puzzlement here. I should personally like to hear from the noble Earl, Lord Caithness, something which I have not heard yet; that is: what is the object of the exercise? Where does it come from? Why is the director in need of special protection? If he is in such need, then it seems to me there are others who are in even greater need of special protection. They are, first, the writer, and, secondly, the performer.
The Earl of Caithness: It slightly troubles me that noble Lords opposite are taking a different attitude on this amendment from that which they took on Amendment No. 14. I should have thought that, to be consistent, they would welcome the amendment. All one is doing in this instance is saying that there is to be a defence for a presenter or director in various circumstances where he did not know or had no reason to suspect that various offences would be committed. Surely that is a logical protection for a presenter or director. It will be for the courts to decide whether he would have known; but one can well imagine a situation where an actor ad libs and his words create a situation which engenders racial hatred. I do not think that in those circumstances the person presenting or directing the performance should be held responsible. When it comes to the writer, I would point out to the noble Lord, Lord Jenkins of Putney, that the writer would fall within Part III of the Bill.
Lord Monson: I can understand the point of paragraph (a), which protects a director where an actor ad libs, and I can understand paragraph (c), which has to do with the composition of the audience, of which the director obviously can have no foreknowledge. But I cannot understand the purpose of paragraph (b). How can it be that the director would not know that any words or behaviour were threatening or insulting? It could only happen if he were directing a play in a foreign language which he did not understand. I suppose that can be the only explanation.
The Earl of Caithness: No. The purpose of paragraph (b) is to cover the situation where the actor deviates from the script; in which case how could the presenter or director know what the offending words or behaviour were going to be?
Lord Hutchinson of Lullington: I am afraid that I take a rather different view from that of my noble friends on the Labour Benches about this matter. It seems to me perfectly straightforward that if somebody ad libs in a play and introduces words which are not in the script or behaves on the stage in a way that the director never directed him to do, the director should have some protection. Surely all this does is protect the director in those circumstances. So far as the—
Lord Elystan-Morgan: If the noble Lord will give way on that matter before he moves to the next point, perhaps I may say that surely the protection in practice for a director in that situation is in Clause 27—one which of course requires the consent of the Attorney-General before a prosecution can be embarked upon.
Lord Hutchinson of Lullington: Surely it is bad in principle. One has heard so often that everything will be all right because the law will be administered sensibly. Surely all of us who practise in the courts know that the law is not administered sensibly, over and over again. I cannot see why the noble Lord, Lord Jenkins of Putney, should be so upset that the director should be given a special defence. He is the person upon whom the responsibility rests in the production of a play. Surely he will not attend every performance of a play. After he has put the play on, the actors may get up to all sorts of tricks and may ad-lib and behave in a way about which the director knows nothing. Surely in those circumstances he should be given protection.
So far as the actor himself is concerned, he surely is covered by Clause 20(3). For the purposes of the clause,
"a performer in a performance directed by another shall be treated as a person who directed the performance".
He is therefore covered.
6 p.m.
Lord Jenkins of Putney: May I explain for the benefit of the noble Lord, Lord Hutchinson, why I am worried about this? I am not worried because the director has protection. I think that is very reasonable. I am worried about the picking out of the director for protection which is apparently not afforded to others. The noble Lord believes that it is, but I venture to suggest that for every occasion on which an actor does something which a director does not want him to do, there are many occasions on which an actor is required to do something which he would rather not do unless the director had told him to do it. This draws special attention to Amendment No. 15(b) which states,
"that he did not know and had no reason to suspect that the offending words or behaviour were threatening, abusive or insulting …".
I cannot see how it would be possible for a director not to know that the words which he already knew about were not as they were.
I am not objecting to this clause as such, but I am worried about the idea that the director is the chap who needs protection and that neither the writer nor the actor do. If the clause could be reconsidered and we could be assured that the protection afforded to one responsible area was spread over other possibly responsible areas, I should feel much happier with it.
Lord Hutchinson of Lullington: Will the noble Lord not agree that subsection (3) covers that?
Lord Elwyn-Jones: While my noble friend ponders that question, may I submit that this is making terribly heavy weather. We have now discovered that all we are

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concerned with is to protect the director from the adlibber—and the liberal too, apparently! Surely the matter can be covered by language such as,
"the words or behaviour used were not authorised by him".
That covers everything. This tortuous and complex surplusage of words would not be necessary. May I present that offering to the Minister for further thought?
The Earl of Caithness: I take that offering in the same spirit in which it was offered, if that is the right terminology. I hope that the Committee will accept the amendment because of the arguments which I have elucidated, but I shall of course take the noble and learned Lord's point and see whether it can be refined.
The Deputy Chairman of Committees (Lord Alport): The Question is that Amendment No. 15 be agreed to. As many as are of that opinion will say Content—
Lord Elwyn-Jones: I am sorry. Has the noble Earl moved Amendment No. 15 as it stands? I am sorry to challenge the Chair.
The Earl of Caithness: I have moved Amendment No. 15, yes.
Lord Elwyn-Jones: I understood that the noble Earl was undertaking to look again at the language of Amendment No. 15. Perhaps I am guilty of optimism—not for the first time.
The Earl of Caithness: I said that I hoped the Committee would accept the amendment but that I would look at the noble and learned Lord's point to see whether it could be refined.
Lord Mishcon: Will the noble Earl bear with me for a moment? We are very short of time in the programming of this Bill and the Minister has been good enough to say on a number of occasions that he would look again at various amendments that have been put. The difficulty is that, with the greatest of good will so far as he is concerned, looking at it will entail a response either by way of letter or by other means which may not reach those of us who have moved amendments until the closing stages of this Bill. One knows that certain rules apply to amendments at Third Reading.
I make that point on this occasion because it is obvious that in the debate a number of ideas have cropped up and it is the first time we have had an opportunity of discussing the noble Earl's amendment. Would it not be sensible (and I think that this is what my noble and learned friend Lord Elwyn-Jones was anticipating) if he would say that because of discussions, in the same way that we have withdrawn amendments so that the noble Earl can consider the matter, he will withdraw his amendment? Obviously he can put it in at a later stage if he feels he has to, but perhaps he can look at the whole question in the meantime. That is what we have done and I ask him to consider doing the same in reciprocation.
The Earl of Caithness: I am conscious of the time and it was for that reason that I phrased my reply to
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the noble and learned Lord, Lord Elwyn-Jones, as I did. My suggestion was to accept it now and I would then look at it to see whether it could be refined. If that is not acceptable to noble Lords opposite, I think it is something I ought to take away and look at. I had hoped we could deal with it by accepting it and looking at it at the same time, but if that is not acceptable to the noble Lords then I will have another look at it.
Lord Mishcon: I thank the noble Earl very much.
The Earl of Caithness: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 16 and 17 not moved.]
Clause 20 agreed to.
Clause 21 [Distributing, showing or playing a recording]:
Lord Mishcon Lord Mishcon moved Amendment No. 18:
Page 14, line 33, after ("record") insert ("(including a film)").
The noble Lord said: This is a quick point. I could not be sure, in looking at the Bill as it now stands, that a film was included and I ask the noble Earl whether it is included: if so, how? If not, why not? I beg to move.
The Earl of Caithness: The quick answer is "yes". The word "record" does not merely mean a disk. On the contrary, Clause 21 is intended to cover films, videos, gramophone records, sound recordings and anything else from which one can reproduce visual images or sounds. We are thus concerned with the means of storing images and sounds, and that covers film. I hope that that satisfies the noble Lord.
Lord Mishcon: It does, and I am most grateful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 19 not moved.]
Lord Mishcon Lord Mishcon moved Amendment No. 20:
Page 14, line 43, leave out subsection (4).
The noble Lord said: I hope I can be equally brief with regard to Clause 21(4) which says:
"This section does not apply to the showing or playing of a recording solely for the purposes of enabling the recording to be broadcast or included in a cable programme service".
Could the noble Earl spell out the reason for this exception and what the exception covers? I beg to move.
The Earl of Caithness: Clause 21 is concerned with showing films or videotapes. Clause 22 is concerned with broadcasts and cable transmissions. Clearly some programmes which are broadcast or transmitted by cable originate on film or videotape which in due course are shown or played. The purpose of Clause 21(4) is to limit overlap between the two offences. In other words, if a cable company were in showing to transmit a racially inciting film, simply to transmit it the company should be prosecuted for the act of transmission under Clause 22.

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I would draw your Lordships' attention to the fact that subsection (4) includes the words "solely for the purpose". It would not, for example, absolve the cable or television company which showed to the public racially inciting films at the same time as they were being transmitted. Then there is a mischief which Clause 21 can address. It is to stop the overlap that we have worded it as we have.
Lord Mishcon: I wonder whether the noble Earl will forgive me for asking this question on this important subsection, because it contains an exception to the general rule. If it got as far as being seen by the employees of the cable company concerned—obviously, it had not reached the transmission stage—and it was racially offensive to those employees, would the exception operate in his view? It seems to me that it would. Again, I am throwing this at the noble Earl from one Dispatch Box to another, which is not very fair. It may very well be that the answer is available, but if not I shall be content if he would care to write to me.
The Earl of Caithness: I think it would be better if I wrote to the noble Lord on this point.
Lord Mishcon: I am most grateful. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 21 agreed to.
Clause 22 [Broadcasting or including programme in cable programme service]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 21:
Page 16, line 11, leave out subsection (7).
The noble and learned Lord said: Clause 22 deals with the position as indicated in subsection (1), which reads:
"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—

(a) he intends thereby to stir up racial hatred, or

(b) having regard to all the circumstances racial hatred is likely to be stirred up thereby."

So we are dealing with a serious business. Why is it that in subsection (7) it is stated baldly:
"This section does not apply—
(a) to the broadcasting of a programme by the British Broadcasting Corporation or the Independent Broadcasting Authority"?
I think that the Committee is entitled to some explanation and some indication of what alternative protection is provided and will be provided in the various bits of legislation in this field; for example, the Broadcasting Act. To what should we look for adequate alternatives to Clause 22 which applies to cable programmes? Why not consolidate the legislation that is relevant in the same Bill? I agree that it would have to be a longish clause, but why not consolidate the protection that is provided for the BBC and the IBA?
We may be told: "You need not worry. The BBC and the IBA programmes are never guilty of the wicked things that are suggested in Clause 22(1)." I hope that is so. I do not know whether the noble Earl would care to go on oath to say that, but we are not on oath in these proceedings and perhaps that is an irrelevant hypothesis. But we are entitled to some explanation.
It is not wholly enough to say: "The internal regulations of the BBC protect the public all right." Has the moment come when there should be less hole in the corner protection and more clearly stated statutory provision for the protection of the BBC and the IBA, in view of the enormous power of the media these days? They operate in almost every home in the land with remarkable and immediate effect.
I do not know whether I have given sufficient time in my observations to enable the Minister to answer these rather broad questions. But I think that the public would be interested to know the answers, which is why I put down the amendment. I beg to move.
6.15 p.m.
The Earl of Caithness: Responsibility for what is broadcast on radio and television rests with the broadcasting authorities—the BBC, the IBA and the Welsh fourth channel authority, S4C—whose governing bodies are appointed as trustees for the public interest in broadcasting. In carrying out their responsibilities, they have the duty to inform, educate and entertain and to ensure that programmes maintain a high general standard. In addition they have specific obligations concerning the content of programmes.
Under the Broadcasting Act 1981 the IBA and S4C must satisfy themselves, so far as possible, that nothing in their programmes offends against good taste and decency, is likely to encourage or incite to crime, lead to disorder or is offensive to public feeling. The BBC's board of governors has given a similar undertaking which is published in the annex to the corporation's Licence and Agreement.
These obligations, we believe, are stricter than the definition of "offence" in Clause 22 and have proved effective in keeping off the screen material of a racially offensive nature. They are capable of dealing with matter which would not in itself constitute an offence, but which would be undesirable to be shown on television. I hope that with that explanation I have answered the global point of the noble and learned Lord about why they have been exempted from the Bill.
Lord Elwyn-Jones: It is useful to have that on the public record. I have no reason to think that the powers are abused in the way that we are seeking to protect the public from potential damage. It is good that this degree of public education should be communicated as the Minister has just done. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Caithness The Earl of Caithness moved Amendment No. 22:
Page 16, line 17, at end insert—
("(8) The following provisions of the Cable and Broadcasting Act 1984 apply to an offence under this section as they apply to a "relevant offence" as defined in section 33(2) of that Act—
section 33 (scripts as evidence),
section 34 (power to make copies of scripts and records),
section 35 (availability of visual and sound records);
and sections 33 and 34 of that Act apply to an offence under this section in connection with the broadcasting of a programme as they apply to an offence in connection with the inclusion of a programme in a cable programme service").
The noble Earl said: These provisions of the Cable and Broadcasting Act 1984 are concerned with ensuring that scripts and recordings of programmes may be obtained and, in the case of scripts, are evidence of what was included in a programme. Schedule 3 to the Bill inadvertently repeals these provisions in their application to the offence of transmitting by cable racially inflammatory programmes. This amendment now reinstates them.
Had we had a little more time to put down the amendment—noble Lords will be aware that we put it down in order to give maximum time—we would have picked up this mistake and I apologise for this not having been done earlier. As well as reinstating these provisions for cable programmes, the amendment achieves a similar result for broadcasts by extending Sections 33 and 34 to broadcasting. I beg to move.
On Question, amendment agreed to.
Clause 22, as amended, agreed to.
Clause 23 [Possession of racially inflammatory material]:
[Amendment No. 23 not moved.]
Clause 23 agreed to.
Clause 24 [Powers of entry and search]:
Lord Mishcon Lord Mishcon moved Amendment No. 24:
Page 17, line 4, leave out from ("oath") to ("that").
The noble Lord said: If Members of the Committee will be kind enough to turn to Clause 24—and this is a very simple point—they will find that on a justice of the peace being:
"satisfied by information on oath by a constable that there are reasonable grounds for suspecting that a person has possession of written material",
and so on, he can issue a warrant authorising any constable to enter and search the premises.
I do not know why the information on oath has to be sworn by a constable before the justice of the peace can issue his warrant. Why should not a member of the public be able to do this? Why should not a representative of an organisation, whether it is the commission dealing with race relations or whatever, be entitled to send a representative to satisfy the court by information on oath? Why has a constable always to be obtained in order to do this? I repeat that before the warrant is issued the justice of the peace has to be satisfied, so there is no question of a warrant being issued recklessly. I beg to move.
The Earl of Caithness: I appreciate the points which the noble Lord has just made in moving this
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amendment. There may well be occasions when an individual has information which leads him to believe that another person has possession of matter in contravention of Clause 23. In such circumstances it is right that a warrant should be issued to the police to search the premises where the material is held. But in such a case, we consider that the individual should in the first instance make his suspicions known to the police. If a warrant is to be executed by the police, it is appropriate that the police should apply for it.
The issue of search warrants to the police in England and Wales under any Act (which will include Clause 24 of this Bill if it receives Royal Assent) is governed by Sections 15 and 16 of the Police and Criminal Evidence Act 1984. Section 15 provides certain safeguards in that it lays down the procedure to be followed. These statutory safeguards would not apply if another person were to apply for a warrant to be issued. Section 16 also provides a number of safeguards concerning the execution of the warrant. It is right that the safeguards contained in these sections should apply when warrants are required for the purposes of Clause 24. The intention behind Sections 15 and 16 of the Police and Criminal Evidence Act is clearly that the safeguards they contain should apply in all cases when the police require a search warrant. We therefore consider it appropriate that under Clause 24 the police should apply for the warrant, and the safeguards in the Police and Criminal Evidence Act should automatically come into effect.
In practical terms we see no advantage in providing a justice of the peace with the power to issue a warrant to the police on the basis of information provided by another person. As the police will execute the warrant, it is right that the relevant information should first be made available to them and that they should apply for the warrant.
We have looked seriously at this matter and have considered some of the cases that could occur if the amendment were accepted—a member of the National Front might deliberately go to seek a warrant without giving the information to the police. We were reminded when we looked at this matter in close detail that it was the government which the noble Lord, Lord Mishcon, supported in 1967—the Wilson Government of the day—who introduced the Criminal Justice Act. This amended Section 3 of the Obscene Publications Act 1959 so that only the police could seek warrants under it. That came about because of difficulties. We envisage similar difficulties with this Bill, and we hope that it will become an Act for the good that it can do. Although we have considered the point of the noble Lord's amendment we have come down on the side that it should be the police who give the information on oath and not the individual.
Lord Hutchinson of Lullington: Before the noble Lord, Lord Mishcon, presses his amendment, will he take on board the possible results of informers scurrying around informing against people and giving information that in their bottom drawer there is a good deal of material which should be examined? Exactly the same matter arose with the Obscene Publications Act. I am sure that the noble Lord recollects the problems which arise from having

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private prosecutions in that area. Surely the same thing is liable to apply here if he presses his amendment.
Lord Mischon: I confess that I am not happy, but the Committee does not exist in order to make me happy. I feel that there is a difficulty here where there is an urgent need to obtain a warrant and where it may be very difficult in the circumstances—time may be of the essence—to convince a perfectly able police constable, who I am sure would want to take a very full note and then apply to his superior for authority as to whether information should be sworn. This shows little faith in the justice of the peace, who would not issue a warrant unless it were proper for him to do so—unless one takes the view of a justice of the peace that a constable has only to appear before him and he will automatically do it, which, again, is not complimentary to the justice of the peace. But I see that there is division in the Committee, and from a learned source as well. I do not intend therefore to press the matter at this stage. I ask the leave of the Committee to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 24 agreed to.
Clause 25 agreed to.
Clause 26 [Savings for reports of parliamentary or judicial proceedings]:
Lord Monson Lord Monson moved Amendment No. 25:
Page 18, line 18, leave out from ("authority") to end of line 22.
The noble Lord said: There may be some reasonable explanation for the extremely severe limitations imposed by this subsection but on the face of it it seems to be an extraordinary restriction upon freedom of speech and freedom of the printed word. How can restrictions on the publication of proceedings in a court of law be justified? Why is such a sweeping step necessary? I await a satisfactory answer from the noble Earl, and I beg to move.
The Earl of Caithness: I appreciate the concern of the noble Lord, Lord Monson, in raising for debate an aspect of the general exemptions provided in Clause 26 for the publication of fair and accurate reports of court proceedings. I hope that I can persuade the Committee that it is necessary to retain the present effect of this clause by explaining that the noble Lord's amendments would open a loophole in the offences which those who have been convicted of offences under these clauses, or their supporters, would be ready to exploit.
The Government do not wish, of course, to place any unwarranted restriction on the proper reporting of court proceedings concerning offences of incitement to racial hatred. For this reason, the clause in question provides that no offence is committed under Part III—for example, by publishing material likely to incite racial hatred—where the material consists of, or is contained in, a fair and accurate report of proceedings publicly heard before a court or tribunal exercising judicial authority. But this exemption applies only where the report is published contemporaneously with the proceedings in question
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or as soon as is reasonably practicable or lawful thereafter. There are two important elements to this exemption then: the report must be fair and accurate; and it must be published contemporaneously. The noble Lord's amendment by deleting this second element would allow reports to be published at any time.
Without the limitation of contemporaneous reporting, there would be a serious danger that, when a person had been convicted of an offence under Part III his supporters would seek to use a report of the trial as a means of giving continuing publicity to his original words. This would allow words or material which had been proven to be material to a criminal offence to be used again and again. The Committee will note that, under Clause 25, the courts are required to order the forfeiture of any written material or recording produced to the court and shown to be matter to which an offence relates. The purpose of this is to prevent such material being used again at some future date. But this purpose would be defeated if it were permissible to reproduce the substance of material at any time in the guise of a report of the court proceedings.
This is not to say that such proceedings should not be reported or referred to after the event. But when a person chooses to report or describe such proceedings at a later date, he should not be able to do so intending to stir up racial hatred or, indeed, in circumstances likely to do so. He will, in other words, be required to exercise reasonable discretion. Such discretion must be exercised at all times by those reporting events other than court proceedings; and it seems right that it should be exercised by those who report criminal trials weeks, months or years after the event. I might add that the restrictions in Clause 26 are not unique to this Bill. Similar limitations apply, and for similar reasons, to the reporting of proceedings concerning defamation.
I hope I have been able to convince the noble Lord, Lord Monson, of the serious loophole that, perhaps inadvertently, he would open if he succeeded with this amendment.
6.30 p.m.
Lord Monson: I am grateful to the noble Earl for that explanation but I shall put one question to him before I decide what to do with the amendment. Let us suppose that someone clips out a report of court proceedings and keeps the clipping in his bottom drawer. Five years later it is discovered by a policeman, who accuses him of intending to publish it. What happens then? Would he not be caught by some other clause of the Bill?
The Earl of Caithness: I should have thought that in those circumstances the person would be able to justify to the police officer that he was not intending to publish it. It would be a matter for the courts to decide, if it ever got that far.
Lord Monson: I am grateful to the noble Earl, but it seems to me that the Government are indulging in an

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extraordinary degree of overkill in this part of the Bill. Nevertheless, in the absence of any support from other quarters, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 26 agreed to.
Clause 27 [Procedure and punishment]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 26:
Page 18, line 31, at end insert ("or in the case of a second or subsequent conviction, 5 years or a fine or both").
The noble and learned Lord said: Part III of the Bill deals with very grave matters; namely, incitement to racial hatred using,
"threatening, abusive or insulting words or behaviour"
and intending to stir up racial hatred. That is in Clause 18. Clause 19 deals with,
"A person who publishes or distributes written material which is threatening, abusive or insulting",
intending,
"thereby to stir up racial hatred".
Clause 20 refers to the public performance of a play fulfilling the same purpose.
In this part of the Bill we are dealing with a very dangerous subject. The incitement to racial hatred, in certain conditions, could have—and I must not overdramatise—a deadly or near-deadly effect. In our view, while for the first offence on indictment a sentence of two years may be enough—though some may think that a judge should have the power to inflict more in this dangerous field, even for a first offence—in the case of subsequent or persistent offenders in such a dangerous field where riots can be stimulated and fires started, we believe that the power should be for the court, in an appropriate case, on a second or subsequent conviction, to impose a sentence of five years, or a fine, or both. I beg to move.
Lord Donaldson of Kingsbridge: I am not happy about this matter. I have spent the past 25 years trying to get shorter sentences and it is perfectly clear to me that a man who feels race hatred so bitterly is not going to be deterred by a longer sentence. The kind of opinion we are apt to hear expressed from certain people elsewhere is that we must have longer sentences. However, we have spent our lives explaining to them that on the best evidence a longer sentence does not deter.
It seems to me that two years is a longish sentence for anyone. My own view is that it would be a great mistake to increase the sentence at this stage. If the position becomes much worse—and in many ways it now seems to be getting better—one may think about it again, but to put it into the Bill at this stage seems to be entirely wrong.
Lord Elystan-Morgan: The noble Lord, Lord Donaldson of Kingsbridge, as always puts his arguments in a most attractive and forceful way. While I have every sympathy with his general proposition that sentences should be kept to the minimum that is necessary, I do not think it follows in any way that that should affect the maximum term for a specific offence.
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No doubt judges can be exhorted in relation to theft to consider—as indeed the Court of Appeal set forward generally in the case of Bibby some years ago—what the appropriate sentence should be in common or garden cases of theft; but nothing would be achieved towards that end by reducing the maximum penalty for theft from 10 years to a lower figure.
What we are concerned with is the possibility that there will be some grave situations calling for a level of punishment higher than that now envisaged in the Bill in relation to Part III. I totally endorse the argument of my noble and learned friend Lord Elwyn-Jones, who says that some situations will arise which are so grave that there will be a necessity for the courts to have that exceptional power. It is not suggested that it should be lightly used. I am in total agreement with the general comments of the noble Lord, Lord Donaldson, and I have no doubt that in these particular cases, quite apart from the general principle enunciated by the noble Lord, the wise sentencer will all the time consider the danger of martyrdom, which will be totally counter-productive, and will perhaps think of lenient sentences far more than one would do generally.
However, that is not the case. There is a strong case for marking the horror of society in relation to the gravity of this offence with the power to impose a sentence of up to five years on a second or subsequent conviction and also to deal with the rare, exceptional case that merits a very high sentence.
Lord Monson: I should like to support the noble Lord, Lord Donaldson. I was interested in what the noble and learned Lord, Lord Elwyn-Jones, said in introducing this amendment, because, as I understand it, the Labour Party has generally taken the view in recent years that prison sentences provided for and imposed in this country are far too severe, especially when compared with those in other European countries.
I should like to quote from an article published a few days ago in the Daily Telegraph concerning the Financial Services Bill, which was debated in this Chamber last night. Part of the article reads:
"Insider trading used to be a minor irritation until it was made a criminal offence. Now it is generally thought to be rife."
The article continues that with,
"penalties so Draconian that evidence must be watertight, there is minimal risk of getting caught."
If one provides what the average man in the street would consider to be disproportionate sentences, one either finds it more difficult to secure a conviction or, if one does secure a conviction, runs the risk of creating martyrs. Indeed, martyrdom has already been mentioned. As a layman perhaps I may stick my neck out and say that I imagine that if the offence were a really severe one, as the noble and learned Lord has suggested might occur, leading to large-scale violence, the person involved could be charged with sedition.
Lord Mishcon: I wonder whether I may interpose with what I promise will be a few brief remarks. If it were the general policy of Parliament, as advocated by the noble Lord, Lord Donaldson, and very often advocated from these Benches as he quite correctly

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said, that there should be shorter terms of imprisonment imposed because of the various circumstances that have been dealt with when we debated these matters, it would be proper to say that this offence ought to be taken together with all the others. However, where there are maximum sentences which are set in a statute in regard to all criminal offences, one has to look at the situation as it affects society at large, and ask: How do you weigh the gravity of the offence that is being considered?
As my noble friend Lord Elystan-Morgan said, in no way does one say then to the judges: "You ought to impose greater sentences. You are merely looking at society, the harm that can be done to society and at the present moment making that the criterion on which it is judged what a maximum sentence should be".
I can think of no graver crimes committed in our society at this moment than the ones we are dealing with in Part III as regards their effects upon society. We have seen riots, disturbances, unhappiness, and claims of all kinds as to what people who incite to racial hatred are doing to our nation as a whole. That in no way in any reference of mine excuses aggressive or violent behaviour, but we have to root out the cause of a great evil in society. The man who is absolutely dedicating his life, as it were, to committing such damage must be discouraged from undertaking that course of conduct and if there is a second offence after the first the court ought to be enabled—and I underline the word "enabled"—to say: "This is so serious to our society and especially at this time that I intend to use the powers given to me by Parliament". That is all that this amendment says, and I think it needs support especially at this hour.
6.45 p.m.
The Earl of Caithness: The Committee will recall that we considered the general question of enhanced penalties for second or subsequent conviction in our debate on Clause 14 (and this can be found in the Official Report for 6th October in cols. 49 to 56). The reasons I advanced at that time for resisting the introduction of enhanced penalties must apply also to this amendment. Under Clause 27(3)(a) as it stands, the maximum penalty available to the Crown Court for offences of incitement to racial hatred is two years' imprisonment, or a fine or both. No doubt many Members of the Committee will have seen some of the unpleasant and offensive material to which Part III is likely to apply. These are serious offences, and this must be reflected by appropriately heavy penalties. The maximum penalty for offences under Part III is already higher than for any offences under the Bill other than riot, violent disorder, affray and contamination of goods. It is in this context that the appropriate maxima have to be considered, and I think that Clause 27(3)(a) strikes the right balance.
Under Clause 27 the courts have sufficient and appropriate powers to deal with those who are convicted of offences of incitement to racial hatred. The powers proposed in this amendment would be disproportionate and over-punitive. For example, it would mean that an offender would be liable to the same maximum penalty for incitement to racial hatred as for violent disorder under Clause 2.
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Although incitement to racial hatred is a serious offence—and I do not dispute that in any way at all—I do not consider that it is on a par with the use or threat of unlawful violence causing a person to fear for his personal safety. We must ensure that the punishment fits the crime.
Aside from the importance of ensuring that the penalty is proportionate to the offence, the introduction of an enhanced penalty would be inconsistent with the general principle that an offender should be dealt with for the offence which has brought him to court and not for his past conduct. As the Committee will be aware, the statute book used to contain a number of enhanced penalties similar to the one proposed here. I am glad to say that they have nearly all been removed, mostly by Sections 35 and 36 of the Criminal Justice Act 1982. I regret to have to tell the noble and learned Lord that for those reasons I cannot accept his amendment.
Lord Jenkins of Putney: Perhaps I may take a leaf out of the book of the noble Lord, Lord Beloff, and say that on this occasion I am persuaded by the arguments put forward by the Government and I hope that my noble friend will not press his amendment.
Lord Foot: Perhaps I may say, too, on behalf of myself and, I, believe, on behalf of the majority at any rate of my noble friends, that we agree with the argument of the noble Lord, Lord Donaldson of Kingsbridge, and very much hope that this amendment will not be carried to a Division.
Lord Elwyn-Jones: It is common ground that we are dealing here with a very serious feature of our social life; namely, the stirring up and incitement to racial hatred which can cause appalling disorder and chaos. In this amendment it is suggested that where someone who has already been dealt with and convicted of an offence offends again, in an appropriate case society ought to give the judge the power to make a decision. This is a power given to the judge. It is not in any sense an automatic power; on the contrary.
I agree that severe sentences should be imposed only in extreme cases but I should have thought that the gravity of such misbehaviour and such criminal misconduct in our society has now reached a stage where it ought to be recognised as the serious disturber of the calm of our community which we have been suffering in recent years. Certainly I am neither a hanger nor a punisher for its own sake. It may seem surprising to some of my noble friends who know that I have taken a somewhat different view on punishment, but there are exceptional crimes for which I think that a judge, who has the facts and the evidence before him, should have this power. There is a great demand for increased power in another aspect of criminal conduct, which I shall not go into because it is not comparable.
However, I do not wish to go against the flow of opinion in the Committee or to appear to be a mere punisher. All I can say is that I hope we shall not regret refusing to pass this amendment. All I hope is that in the future there will be no such disorders, fires and the consequences that can burn up communities when mad racialists deliberately set out to create racial

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hatred. I hope that that will not happen. In the circumstances, in view of the current of opinion in the Committee I shall not move the amendment.
Amendment, by leave, withdrawn.
Clause 27 agreed to.
Clauses 28 and 29 agreed to.
Schedule 2 [Other amendments]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 27:
Page 35, line 36, leave out paragraph 5 and insert—
("5.—(1) The Cable and Broadcasting Act 1984 as it extends to England and Wales and Scotland is amended as follows.
(2) Omit section 27 (inclusion of programme in cable programme service likely to stir up racial hatred).
(3) In section 28 (amendment of the law of defamation), at the end add—
("(6) In this section "words" includes pictures, visual images, gestures and other methods of signifying meaning.".
(4) In section 33(2), in the definition of "relevant offence" omit "an offence under section 27 above or".
5A.—(1) Section 27 of the Cable and Broadcasting Act 1984 as it extends to Northern Ireland is amended as follows.
(2) For subsections (1) to (5) substitute—
"(1) If a programme involving threatening, abusive or insulting visual images or sounds is included in a cable programme service, each of the persons mentioned in subsection (2) below is guilty of an offence if—

(a) he intends thereby to stir up racial hatred, or

(b) having regard to all the circumstances racial hatred is likely to be stirred up thereby.

(2) The persons are—

(a) the person providing the cable programme service,

(b) any person by whom the programme is produced or directed, and

(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—

(a) he did not know and had no reason to suspect that the programme would involve the offending material, and

(b) having regard to the circumstances in which the programme was 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—

(a) that the programme would be included in a cable programme service, or

(b) that the circumstances in which the programme would be 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—

(a) that a programme involving the use of the offending material would be included in a cable programme service, or

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

(5A) 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.
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(5B) A person guilty of an offence under this section is liable—

(a) on conviction on indictment to imprisonment for a term not exceeding two years or a fine or both;

(b) on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.".

(3) In subsection (8) (consents to prosecutions), for the words from "shall not be instituted" to the end substitute "shall not be instituted except by or with the consent of the Attorney General for Northern Ireland.".
(4) In subsection (9) (interpretation) for " 'racial group' means a group of persons" substitute " 'racial hatred' means hatred against a group of persons in Northern Ireland".
(5) After subsection (10) insert—
"(11) This section extends to Northern Ireland only").
The noble Earl said: This technical amendment follows on from our revision of Part III. The racial incitement offences in Part III apply to Great Britain only, and they incorporate and extend the offence of incitement under the Cable and Broadcasting Act 1984. This amendment removes those offences from the 1984 Act in the case of Great Britain and establishes a separate offence for Northern Ireland, which is not covered by Part III of the Bill, but which corresponds to the cable offence in Clause 22. I hope that, with that explanation, and in view of the earlier comments of the noble Lord, Lord Mishcon, the situation is clarified. I beg to move.
Lord Mishcon: I thank the Minister for those courteous words. He has explained the matter to me and I now understand things much better.
On Question, amendment agreed to.
Schedule 2, as amended, agreed to,
Remaining Schedule agreed to.
House resumed: Bill reported (in respect of Clauses 17 to 29 and Schedules 2 and 3) with amendments.
Then, Standing Order No. 43 having been dispensed with (pursuant to Resolution of 9th October):
The Earl of Caithness: My Lords, I beg to move that this Report be now received. This is perhaps a convenient moment to apologise for a printing error on the Marshalled List. Six amendments, Amendments Nos. 30 to 35, have been omitted from the Marshalled List due to the printing error that I have just mentioned. The amendments omitted are those of my noble friends Lord Swansea, Lord Stanley of Alderley and Lord Clinton and of myself. The amendments relate to parts of the Bill that will not be reached until Thursday. They will, of course, be printed in the revised Marshalled List for that day. I beg to move.
Moved, That the Report be now received.—(The Earl of Caithness.)
On Question, Motion agreed to.
Report received.
Clause 4 [Fear or provocation of violence]:
7 p.m.
Lord Hutchinson of Lullington Lord Hutchinson of Lullington moved Amendment No. 1:
Page 3, line 17, leave out from ("another") to end of line 19.
The noble Lord said: My Lords, in moving this amendment, I should like to speak also to

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Amendment No. 3. This is a considered attempt to improve Clauses 4 and 5 which deal largely with problems of hooliganism. At the Committee stage there was, I believe, agreement on all sides about the mischief, spelt out by the Minister at the time. The mischief was one of defenceless or wholly innocent people being put in fear by the aggressive behaviour of others. It was generally agreed that the mischief was a very real one. The only differences that arose were the limit of the criminal sanctions being proposed in the two clauses.
Your Lordships will probably remember that the Government said in the White Paper,
"There would be justifiable objections to a wide extension of the criminal law which might catch conduct not deserving of criminal sanctions".
It is against that background that the House should, I suggest, consider these two amendments. Neither amendment was moved in Committee. As your Lordships will remember, it was decided that they would be subsumed in the debate on the question that Clause 5 stand part of the Bill. As that clause remains in the Bill, I now wish to put forward these two amendments that were not put forward at Committee stage.
The first amendment removes words from Clause 4(1) at line 17 in the sense that a person is guilty of an offence if he uses towards another person threatening, abusive or insulting words or behaviour with intent—I disregard paragraph (b) for the moment—to cause that person to believe that immediate unlawful violence will be used against him or another by any person, or to provoke the immediate use of unlawful violence by that person or another. There follow the words that we wish to remove, namely:
"or whereby that person is likely to believe that such violence will be used or it is likely that such violence will be provoked".
This offence under Clause 4 carries the penalty of a fine or six months' imprisonment. There was much criticism on both sides in relation to these words. I hope that I assess fairly the essence of that criticism when I say that if these words are left in the Bill, the police officer and the magistrates will first have to consider the intent of the defendant, the intent to cause the person to believe that immediate unlawful violence will be used—his state of mind. They will then have to consider the belief of the victim, that is, whereby the person
"is likely to believe that such violence will be used".
So they will have to consider the intent of the accused person. And they will then also have to consider, appropriately, the belief of the victim as to whether violence would be used. This means the state of mind of the accused person and the state of mind of the victim, remembering that there is no necessity to call the victim as a witness. In assessing this, one will be deciding the matter on the evidence given by the witness for the prosecution who, in all probability, will be a police officer.
The noble Viscount, Lord Colville—I am sorry that he is not in his place at the moment—drew the attention of the Committee most forcefully to Clause 6(3) which says,
"A person is guilty of an offence under section 4"—
that is the one that we are discussing—
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"only if he intends his words or behaviour …to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting".
So the third matter that the court or police officer will have to consider is the defendant's awareness—a new concept, so far as I know, in the criminal law. As the noble Viscount, Lord Colville, pointed out, the court would have to consider in addition the likelihood of the victim's belief, and/or the likelihood in the police officer's mind, that violence would be provoked.
It is very difficult to read that without seeming to be a lawyer who is trying to confuse the issue; I hope that I have not appeared as such. However, it appears—and this was the nature of the criticism from both sides of the Committee—that it is an impossible task and a lawyer's bean-feast if these words are left in this clause. If one gets rid of the words,
"or whereby that person is likely to believe that such violence will be used or it is likely that such violence will be provoked",
there is a perfectly straightforward job for the police officer or the magistrate to do. They will simply have to see whether the person used the threatening, abusive or insulting words. It would have to be decided in the normal way whether the words or the behaviour used were such that it was done with an intent to cause a person to believe that immediate unlawful violence would be used, and then a decision would have to be made on guilt or innocence.
The amendments which we have put down seek to make out of Clauses 4 and 5 two perfectly simple and straightforward offences. Clause 4 involves intent; and Clause 5 does not require intent. I am sad to see that the noble Lord, Lord Renton, is not in his place this evening. If I remember rightly, the noble Lord also found those words far too complex. Even the noble and learned Lord, Lord Denning, added his voice. The noble Lord, Lord Renton, asked the Minister to take the matter away and come back on Report with something simpler. It is a great sadness that that does not appear to have been done.
Clause 4 is modelled on Section 5 of the Public Order Act, which penalises threatening behaviour whereby a breach of the peace may be occasioned. The Law Commission pointed out that threatening behaviour did not always occasion a breach of the peace. Hence the new wording in this clause, which we support, because abusive or threatening behaviour is not always liable to cause a breach of the peace. The Minister said in Committee, in view of the criticism about these words, that he would look at the matter to see what could be done.
Moving to Clause 5, the lesser offence, it reads in this way:
"A person is guilty of an offence if he—

(a) uses threatening abusive or insulting words or behaviour, or disorderly behaviour, or

(b) displays any writing"—

and so on—
"within the hearing or sight of a person likely to be caused harassment, alarm or distress".
It is the words "caused harassment, alarm or distress" which we seek to remove in this amendment and to substitute for them "put in fear of violence". In this clause there is no need to have a victim; and there is no intent. It is merely the,
"threatening, abusive or insulting words or behaviour…within the hearing or sight of a person likely to be put in fear of violence,"

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which would make the offence. This offence carries no imprisonment.
In this amendment we seek to remove the words "caused harassment, alarm or distress" because, as was pointed out again on both sides of the Committee, they are so broad in their meaning that they would bring in behaviour which should never be made criminal. With this amendment the police officer or the court would simply be able to concentrate on the likely consequences of the defendant's behaviour; that is, to make an objective judgment. It would also be a convenient procedure for a summary offence, carrying no power to impose imprisonment and no need to prove any intent.
The noble Lord, Lord Broxbourne, alas, is not in his place this evening. Your Lordships will remember that it was he who in Committee was so upset that the amendment was not moved that he broke into Latin and protested that he was denied the rare and refreshing pleasure of being able to be in accord with those of us on the Alliance Benches. If my recollection is right he invited the Minister to come back on Report with a redrafted clause more in line with this amendment. I was looking forward to being able to say to the noble Lord that his cup is full this evening because here is the amendment and he would have been able to join with us and support it.
The amendment makes the task of the police officer and the court perfectly straightforward, and is simple. I suggest that it meets the mischief which was spelt out in Committee by the Minister. The essence of the effect of hooliganism—of threats, abuse, insults and gangs—is putting somebody in fear. Surely that is the essence of what we are trying to meet. It is the fear that is engendered in the weak and the old by abuse, threats violence and hooliganism. It boils down to fear—of what? It boils down to fear of some kind of physical violence; a fear that if you protest—if you come out of your flat, if you try to stop people doing what they are doing—you will be assaulted in some way.
The essence is not the words as they have been drawn of causing "harassment, alarm or distress". In ordinary life all kinds of behaviour cause the ordinary person alarm and distress which should never be made a criminal offence. It is a part of all our lives that we are caused alarm or distress very often by other people's behaviour. Within these clauses of the Public Order Bill the essence of this whole question is surely fear of some form of physical violence. If these words "put in fear of violence" are inserted in this clause one has two neat, perfectly straightforward clauses.
Clause 4 deals with the more serious matter when someone specifically intends to cause somebody else to believe that they are going to be treated in a violent way. Clause 5 provides for a summary offence before a magistrates' court without imprisonment. One does not have to go into the question of intent. One simply has to look at the behaviour and decide whether it is such as to be likely to put someone in fear of violence without these complicated contortions through which I suggest, in all seriousness, the court and the police officer would have to go if the words are left as they appear in the Bill. I beg to move.
Lord Somers: My Lords, I hope the House will remember that there are many occasions on which it is
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absolutely impossible to tell what has sparked off violence. Your Lordships may remember an occasion in Brixton some years ago when a policeman went merely to examine the licence of a car which was standing by the kerb. He was immediately set upon by two youths, and as far as I can remember, was injured. That sort of situation frequently arises. Perhaps it is not an exaggeration to say that innocent actions are more likely to spark off violence than guilty actions. However, I leave that to the judgment of the House. It is a pity to lose sight of the fact that the motive may be perfectly innocent.
The Earl of Caithness: My Lords, perhaps before answering the noble Lord, Lord Hutchinson, in detail, I may take up one point that he made with regard to awareness. Although I am sure he does not need to be reminded, perhaps I may say that awareness is not a new concept in criminal law. It is an element of the reckless test, recklessness being a mental element in various offences—for example, the Offences Against The Person Act 1861.
Returning in detail to Amendments Nos. 1 and 3 we discussed these matters during Committee in a debate initiated by the late Lord Plant. Perhaps I may begin my reply to this debate by adding my regrets on the untimely death of the noble Lord. I am sure we shall all miss his intelligence and quick humour. He was a very useful member of this House.
Clause 4 is intended to be a restatement of the existing offence of threatening behaviour in Section 5 of the Public Order Act 1936. Section 5 penalises the use of threatening, abusive or insulting words or behaviour intended or likely to occasion a breach of the peace. Section 5 was itself modelled on Section 54(13) of the Metropolitan Police Act 1839, which penalises threatening behaviour with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned. So the likelihood limb of this offence has been in force a long time.
This amendment would delete the tailpiece of Clause 4(1)(b) which is the likelihood limb of the restated offence. Prosecutors would be required to prove the defendant's conduct was intended to cause fear of violence, or to provoke someone into violence. This would seriously weaken the offence and make it much narrower than Section 5 which it replaces. It is often possible to show that where a person uses threatening behaviour, violence is likely to result. It is less easy to prove that that was necessarily the defendant's intent. Perhaps I may be allowed to give an example to prove the point. A person approaches a couple in the street and insults the woman in an obscene way. She may not react violently. But her companion may very well do so. It is unlikely that it could be proved that the accused intended to provoke the man to hit him. It is relatively easy to prove that this was the likely result. If the noble Lords' amendment were accepted the accused would get off scot-free.
Surely if a person has used threatening, abusive or insulting conduct, with the result that someone is likely to be provoked to use violence or is put in fear that violence will be used, that is a mischief that must be dealt with. To deal with it we must retain the

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likelihood limb of the offence. I would advise the House therefore to reject the noble Lord's first amendment.
Lord Hutchinson of Lullington: Perhaps I may interrupt the noble Earl. The Minister says that the offender will get off scot-free. One would precede against him under Clause 5.
7.15 p.m.
The Earl of Caithness: My Lords, perhaps I may deal later with the noble Lord's amendment with regard to Clause 5 in order to clarify the point. Before doing so, it is right that I should say a few words about the reply of my noble friend Lord Glenarthur at an earlier stage, when he undertook, without commitment, to see whether Clause 4 could be improved and to discuss the whole of the matter with the Association of Chief Police Officers. I have to advise the House that we did not believe that the clause could be improved. I am sorry that the explanation for that decision is rather complicated. However, I will try to put it succinctly.
Clause 4 is intended to replicate Section 5 of the Public Order Act 1936 save that the breach of the peace test used there is replaced by the Law Commission's proposed alternative test of fear of, or provocation of, violence. Clause 4 of the Bill as introduced in another place thus provided that a person would be guilty of an offence if he used offensive conduct towards another person intended or likely either to cause the other to believe that immediate violence would be used or to provoke the immediate use of violence by him.
By spelling out the parties to the breach of the peace in this way, and their respective roles, Clause 4 was inadvertently narrower than Section 5. ACPO were rightly very concerned about this. In particular, it did not catch the following situations both of which are caught by Section 5: first, where the offender's conduct is directed at someone but leads to violence by the victim's associates (for example, where a wife is insulted and her husband responds with violence); secondly, where the offender's words lead to violence by his asssociates (for example, where the leader of the gang taunts the police and his friends then attack the police).
To catch these situations we had to spell out the range of intended or likely reactions that might constitute the offence. That is why at first blush, Clause 4 looks long and complex. However, in the absence of specific mention of all the various reactions of the various parties there is a danger that these examples I have given would not be caught. I am able to reconfirm that we have discussed this with ACPO. They do not believe that the clause will be unduly difficult to work in practice. They would prefer it to stay in its present form.
I turn to Amendment No. 3. The noble Lord has explained that in his view a person's conduct is only criminal in a public order context if he is likely to provoke violence or create a fear of violence. The noble Lord has agreed that this is a similar threshold to that established by the breach of peace test at common law. By contrast, the noble Lord argues that Clause 5
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goes too far in penalising conduct which is likely to cause alarm, harassment or distress. He argues that those words are too vague and set too low a threshold.
I hope that the noble Lord, Lord Hutchinson of Lullington, would agree that if we were to accept this amendment, and Amendment No. 2, that we are shortly to discuss, we would in effect create an offence remarkably similar in many respects to that which is in Clause 4 of the Bill: namely, the use of threatening, abusive or insulting behaviour likely to put another in fear of violence. I think that the noble Lord would agree then that taken as a package his amendments are simply designed to wreck Clause 5.
Clause 5 which your Lordships have already accepted overwhelmingly should stand part of the Bill, is a new low-level offence designed to fill a gap in the law in order to combat hooliganism. It gives additional protection for those of our citizens whose lives are made a misery by this modern plight. Among other things it will help to deal with the abusive harassment of our ethnic minorities; the thugs who alarm shoppers in shopping precincts; and the uncaring hooligans who rush about housing estates, creating noise and mayhem in the early hours of the morning, causing much distress to residents, particularly the elderly, living alone.
The noble Lord has said that his alternative to our test of alarm, harassment or distress is basically a restatement of the old breach of the peace test. But such a test does not extend to behaviour which is aggressive behaviour without more. That is why Clause 5 deals with a slightly lower threshold than a breach of the peace. As I said in the last debate, the difficulty is that when the police are called to such a disturbance they often have no powers with which to act.
We are of course debating where behaviour ceases to be merely annoying and when it becomes a criminal mischief. The noble Lord, Lord Hutchinson of Lullington, has passionately argued that it is only when conduct has a potential violent outcome or causes another to fear such does it become criminal. We cannot agree with that. We fail to see why, if hooligans are throwing lids and bottles about outside an old people's home at two o'clock in the morning, causing distress to the residents but not causing them to fear violence, the police should be powerless to act. Nor do I accept that racist abuse and harassment that afflicts so many ethnic minority families is acceptable behaviour as long as these families do not expect actual violence to occur.
Clause 5 as it stands strikes a careful balance approved on an earlier occasion by your Lordships. It is designed to provide protection for citizens against specific mischiefs not already covered by the law. However, it is a low-level offence carrying a maximum penalty of a £400 fine. It also contains important safeguards: the accused must intend or be aware that his conduct is threatening, abusive, insulting or disorderly; if the defendant had no reason to believe that there was anyone within sight or hearing who was likely to be caused harassment alarm or distress, he will be not guilty of the offence; nor will he be guilty if he can show that his conduct was reasonable.
That careful balance would be undermined by the noble Lord's amendment. In short, the clause would

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not achieve its objective of providing greater protection against hooliganism. By contrast this amendment would be confirming the present state of affairs as setting an acceptable level of hooliganism. That is not good enough.
Lord Monson: My Lords, although I have mixed feelings about Amendment No. 3 in that I would still prefer the highly subjective word "distress" to be qualified by the word "acute" or the word "severe", nonetheless perhaps I may try to come to the aid of the noble Earl the Minister as regards Amendment No. 1.
Is it not the case that Clause 4 as it stands exactly mirrors Clause 18, which deals with the stirring up of racial hatred? Just as a person is caught under Clause 18, whether or not he actually intends to start racial hatred, so someone is caught under Clause 4, whether or not he actually intends to stir up violence. Is it not quite illogical to support Clause 18 as it stands and not to support Clause 4 as it stands?
Lord Foot: My Lords, I am not at all sure that I can add very much to the arguments that have been addressed to the House by my noble friend Lord Hutchinson. This is a very important matter, but it is also an extremely complicated matter. I very much doubt whether those of your Lordships who have not had the opportunity to study this matter in some detail will be able to come to any really informed opinion upon these matters. However, at the same time I cannot help thinking that they are indeed of very considerable importance.
I should like to try to draw your Lordships' attention to the difficulties which will be encountered by the courts if this Bill remains as it stands. As my noble friend has pointed out, a person is guilty of an offence under Clause 4 if he:
"uses towards another person threatening, abusive or insulting words or behaviour",
etc., in two separate circumstances. One is if he does that:
"with intent to cause that person to believe that immediate unlawful violence will be used",
etc. In other words, under that leg there has to be proved a criminal intent—mens rea. The clause then goes on to say that if the intent is not there, nevertheless he can be convicted of the offence if he engages in conduct "whereby that person"—that is, the potential victim—
"is likely to believe that such violence will be used or it is likely that such violence will be provoked".
In other words, the accused person can be convicted of that offence without it being proved that he had any intention to cause violence if only the court is satisfied that the potential victim was likely to believe that violence would be used. Therefore, we can have an offence under Clause 4 either with an intention or without an intention if there has been an effect upon the mind of the potential victim.
The matter does not stop there because it is more complicated when we look at the provisions of Clause 6(3), which states that:
"A person is guilty of an offence under section 4 only if he intends"
to use or threatens violence, or is aware that his conduct may be violent or threatens violence.
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Therefore, under that provision in some curious way we are putting back into Clause 4 the need for there to be an intention or an awareness on the part of the accused. So we are reversing in Clause 6(3) what we have specifically provided in Clause 4, where we have said that there is no need necessarily to prove an intention; all we have to prove is that the victim thought that something was likely to happen to him or her.
I suggest that the courts will have the greatest possible difficulty in weaving a way through these complicated provisions. It would be my hope that the noble Earl the Minister might be able to say that this is one of those many points which he will look at again.
Perhaps I may conclude by saying that I do not think the noble Earl took in the essential point that was being made by my noble friend. In these two amendments we are seeking, first, to make it necessary for the serious offence under Clause 4 to be proved to show mens rea and a malicious intention. We are then saying that in dealing with lesser offences—for example, matters of hooliganism and the rest—where possibly the prosecution cannot prove intent, there is no need for them to prove intent; they have only to prove that there was:
"threatening, abusive or insulting words or behaviour, or…displays to another person [of] writing, sign or other visible representation which is threatening, abusive or insulting"
within the sight of a person likely to be put in fear. We do not have to prove intention there, but we have the safeguard that the penalty there is limited to a fine; it cannot be a penalty of imprisonment. Therefore, a person against whom we cannot prove an evil intention should not be liable to the risk of being imprisoned.
As I understand it, that is the framework of these two amendments, and I cannot help thinking that we should have got things very much clearer if the noble Earl was able to accept the amendments which we propose.
Lord Hutchinson of Lullington: My Lords, as my noble friend Lord Foot has just said, it is perfectly clear that the noble Earl—and I say this with the greatest possible respect to him—has not taken on board the basis of these two amendments. Throughout his reply he never dealt in any shape or form with the complexities of the question of the state of mind of the victim, the state of mind of the accused, the question of the awareness of the accused, the question of the belief in the mind of the police officer and, finally, the defence which can be put forward by the defendant that his behaviour was reasonable.
All these matters, to anyone who has been in a criminal court, are matters of such complexity and are such a field day for a lawyer that one would have expected a rather more detailed reply from the Minister as to how the Government visualised a court of law, a court of magistrates, having to sit back and decide no fewer than possibly four questions at the same time about the state of mind of the persons concerned in the case; remembering always that the victim does not have to be called at all and that what they will be inquiring into will be states of mind inferred from the evidence of a prosecution witness, a police officer.

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However, it is clear that this is a matter of the greatest possible complexity. I cannot begin to pretend that I have been satisfied at all by the reply of the Minister. To say that this is a wrecking amendment to Clause 5 is not to appreciate the essence of these two amendments. As I ventured to suggest when I interrupted the Minister, if you could not get home on Clause 4 in the circumstances that he set out, then clearly you get home under Clause 5. That was the whole purpose of these two amendments: so that if you failed on one you could proceed on the other.
However, it is clear that there is very little support in the House at this hour of the night. It is a great sadness that none of the three distinguished lawyers on the government side of the House who in one way or another supported in Committee much of what we are saying in putting forward these amendments, is here tonight. It would have been of the greatest assistance to the noble Earl if he had been able to hear their arguments in the House. But there it is. We have very little support in the House, and in those circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Caithness: My Lords, this may be a convenient moment for us to adjourn for a short period. I beg to move that further consideration on Report be now adjourned, and that we should not come back to this Bill until twenty-five minutes before nine o'clock.
Moved accordingly, and, on Question, Motion agreed to.

York City Council Bill [H.L.]
7.33 p.m.
Read a third time.
Lord Somers: My Lords, it is with great hesitation that I make any complaint about the findings of the committee which considered this Bill, and of course I am not thinking of moving any amendment. But I sincerely hope that whatever is said in the House tonight will be considered by the committee—
Lord Denham: My Lords, if the noble Lord will forgive me, there is no Question before the House, because the Third Reading has been accepted. Therefore, I think that my noble friend will have to move that the Bill do now pass. The noble Lord now on the Woolsack will put the Question, and then the noble Lord will be in order in making his speech.
The Chairman of Committees: My Lords, I am grateful to the Chief Whip. I move that the Bill do now pass.
Moved, That the Bill do now pass.—(The Chairman of Committees.)
Lord Somers: My Lords, I go on to say that I have no intention of moving any amendment, but I hope that the committee which deals with the Bill in another place will take note of what is said tonight.
I am dealing principally with Part VI of this Bill, which provides for the virtual confiscation of certain
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lands which belong by right to the freemen of the City of York. These lands are known as The Strays, and they have been the property of the freemen for centuries. The mere fact that the council hold the freehold of these lands is quite misleading because they hold that freehold merely in trust for the freemen.
Bureaucratic confiscation of this kind is unworthy of any government or council who call themselves democratic. Freemen's rights and property have been defended by successive governments ever since the Reform Bill 1835. Notable examples are the Act of 1935 and the Local Government Act 1972. With your Lordships' permission, I should like to quote Section 248 of that Act. It says:
"Subject to the following provisions of this section, nothing in this Act shall affect any person's status, or the right of any person to be admitted, as a freeman of a place which is an existing borough; and in this section any such place is referred to as a city or town."
It goes on later, in subsection (4), to say:
"After 31st March 1974—

(a) a freeman of a city or town,

(b) any person who by marriage, descent, employment or otherwise is or has been related to or associated with a freeman of a city or town, and

(c) any person who is or has been related by marriage to the widow or a child of a freeman of a city or town,

shall have and enjoy the same rights, whether in respect of property or otherwise, as were held and enjoyed on that date by a freeman of that city or town, by a person correspondingly related to or associated with such a freeman or, as the case may be, by a person correspondingly related by marriage to the widow or a child of such a freeman".
That seems to me to put it pretty definitely. It emphasises Parliament's intention that the freemen's personal rights and property should not be affected or prejudiced in any way. If Part VI was included it would be a dangerous and indeed a fatal precedent, for other city councils would naturally assume that they are free to do the same. The freemen are an admirable institution whose purpose it is to benefit the community in which they live; and to inflict such an insulting deprivation of rights is to my mind inexcusable.
7.38 p.m.
Lady Kinloss: My Lords, although I do not live in York, for the past 20 years I have lived in a village 11 miles from the city centre. My husband lectured formerly in its university and is now an honorary fellow. Although the university is on the outskirts of the city it has several properties within it. But my connection goes back nearly 700 years, when my collateral ancestor, William Grenville, was archbishop, after he had sat in this House as Lord Chancellor. I thus have a great fondness for this historic city with its traditions which are so beautifully maintained by different bodies among its citizens.
I have read with great care the parts of the transcript relevant to what I am going to say. I am obliged to say, after reading them and the Bill, that I could not have come to any other conclusions than those of the Select Committee. I only heard of this matter quite by accident a short time ago, long after the Select Committee had met. I did not know that there was considerable local feeling, most especially among the freemen of the city. Nor did I realise the extent to which this is a national issue. During that time matters had been brought to my attention by responsible persons which were not brought properly before the Select Committee, as they ought to have been.

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This is not an occasion for a Second Reading speech, and I shall not make one. I merely draw your Lordships' attention to certain facts. The freemen fear that the effect of this Bill will be to dispossess them of ancient and lawful entitlements—their present statutory rights. The Bill does not mention the existence of the freemen's statutory rights in and over the Botham, Walgate and Monk Strays. Such rights were awarded by various acts of Parliament between the 17th and 19th centuries. Although much of the Bill concerns freemen, it is a matter of fact that at no stage during its preparation were they consulted. Their first knowledge that such a Bill was contemplated was the statutory notice published on 3rd October 1985 in a local newspaper. As I have already said, there was at no stage local consultation with the freemen. This seems hardly fair. Rightly or wrongly the freemen consider that the Bill has been pushed through by York City Council in a cavalier and high-handed fashion.
There are freemen with rights similar to the rights of the freemen of York in many other cities in the United Kingdom. Parliament has been careful to preserve their rights, most recently by the Local Government Act 1972. Can the Chairman of Committees say whether there has been any change of government policy with regard to the freemen's rights?
I could not help but think of the Queen of Sheba's visit to Solomon. I paraphrase what the Bible says. She said to the king:
"The report was true. I heard in my own land of your affairs, but I did not believe it until I came and mine own eyes had seen it. Behold the half was not told me".
Is that not what has happened to the Select Committee through no possible fault of its own?
7.42 p.m.
Baroness Hylton-Foster: My Lords, my reasons for intervening tonight are, first, that my husband was the Member for York and therefore one is always interested in things that happen in that lovely city; and, secondly, that Lord Elliott of Morpeth asked me to say how very distressed he was that he could not be here tonight to take part in this debate. Unfortunately he is tied up with a very long-standing engagement which he could not, with any decency, get out of. He wanted me to draw the attention of your Lordships to the freemen of Newcastle-upon-Tyne who are most active and work closely with the city council in a very independent way. They would take exception to the idea that they are out of date and should be abolished.
Clause 6 of the York City Council Bill is worrying freemen in towns and cities all over the country in case it is the thin end of the wedge and therefore may involve the loss of ancient rights. This Bill is setting a precedent and another Bill has already been prepared. I should also like to ask whether it is right for a local authority to take over a registered charity's rights and land without consultation? I know that compensation was refused. If the York council is to take over the management of the Strays and for a charitable trust should it not be on behalf of the guilds?
Halsbury's Laws of England Volume 5 paragraph 717 states that civil corporations may hold property on special trust for the benefit of the borough freemen. Does this also apply to land?
7.45 p.m.
Lord Graham of Edmonton: My Lords, I intervene cautiously and tread warily in this matter. This is one of those occasions when if procedures had allowed me to do so I should very much have liked to listen to the noble Earl who is to follow me. Undoubtedly he is not only in possession of a great many more of the facts than I am, but I am also certain that he can give us the right flavour and atmosphere, although I have not spoken to him this evening on the matter.
I am intrigued by the point made by the noble Lady, Lady Kinloss. As I understand it, what she said was that on reading the report (which is what we are debating), the Bill and the transcripts—here we have them—she could have come to no other conclusion than that to which the Select Committee came. If that is the case that is a mark on the side of support. But then in absolute candour she drew attention to the fact, without the detail, that she had changed her mind as a result of the out-of-court conversations which from her experience, from where she lives and from her friendships she has managed to have. She also made the distressing point to me that she had been made privy to so little information about this matter before the event that the friends who were able to give her advice afterwards had not, in my view, the gumption, knowing her status in the community, to bring to her their concerns, whatever they were, before the event. One has to say that this perhaps is part of the problem.
The only evidence I have is a letter from a body called the Freemen of England. This drew my attention to the matter. I was deputed by my colleagues to sit and listen, and that is what I intended to do. But on page 2 I read:
"It is true that, during the period after World War II, the Freemen of York were somewhat lax in their control of their lands, and allowed the City to take on certain management responsibilities".
I await with interest to learn what the phrase "somewhat lax in their control" means. What is this group of people who have control and who are lax in exercising their control to such an extent that they allowed the city to take on certain management responsibilities?
I confess that I have not read this in detail, but was it confiscation or arrogant assumption on the part of the council? I have experience as a leader of a council. I know Newcastle, the freemen and the relationships. I am frankly puzzled about the ambiance that existed among the freemen of the City of York and the local authority, whatever the changes over the years, which apparently led to such a situation. How can people with centuries' old rights and responsibilities be so lax in their control of those responsibilities that, according to this letter, they allowed the city to take over certain management responsibilities?
I listened carefully to the words of the noble Baroness, Lady Hylton-Foster. I respect her deep knowledge of York, the city and its environs. She used phrases such as "the thin end of the wedge" and "a precedent". I heard the noble Lord, Lord Somers, talk about fears that the same thing would happen elsewhere. If the circumstances exist I can well imagine the same thing happening. But the information I have gleaned from this letter leads me to believe that all was not well with the previous situation.

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I am never frightened by people who talk about precedents and the thin end of the wedge because I take the view that if there are two exactly comparable situations the precedent may be a good one. I was glad that the noble Lord, Lord Elliott of Morpeth, expressed his concern to the noble Baroness. I cannot believe that a council willingly wants to take away from a group of people a right which they are exercising profitably (I do not mean making money) for the good and the welfare of the people. It is a proper right. The freemen of a town—this ancient tradition and pageantry and rights and responsibilities—are all part of what I hold dear in our local government nexus.
Viscount Long: My Lords, I hesitate to interrupt but it is the noble Lord, Lord Somers. I think that the noble Lord has his name wrong.
Lord Graham of Edmonton: My Lords, yes, it is the noble Lord, Lord Somers. That is all right. I think the noble Viscount has his name on the record. So far as I am concerned, I await to listen to the noble Earl, Lord Halsbury.
The Earl of Halsbury: My Lords, I shall try to help the House to see this matter in its proper perspective and answer the point that has been made. The committee sat for four days and at the end we were of the unanimous opinion on what our result should be, that the Bill should proceed. I had with me the noble Lord, Lord Airedale, the noble Viscount, Lord Hood, the noble Lords, Lord Jacques and Lord Wise, and we were unanimous about it. We sat on Tuesday, Wednesday, Thursday and the following Monday and we listened to arguments deployed by counsel for the petitioners, and of course by the promoters too.
The history of this matter starts with the Enclosure Acts in the middle of the 18th Century proceedings through to the early 19th Century when the freeholds of certain lands were assigned to the City of York in trust for such freemen as inhabited ancient messuages in the City of York. A messuage is a building and the land that goes round it, outbuildings and so on. The rights involved were grazing rights over the strays; and strays are in Yorkshire what a common is in England. The rights concerned were rights of pasture and the somewhat lesser right of average which is the right of pasture after the first crop of hay has been mown. It does not run the whole way through the year.
The two key points in all this are, first of all, the ravages of time and change are such that the ancient messuages can no longer be identified. No freeman can point to his house and say. "This is an ancient messuage as it was when the awards under the Enclosures Acts were passed". So the beneficiaries of these trusts cannot be identified; and this creates the situation of what is called a redundant trust.
The next thing is that the rights under these trusts are not being exercised. No one in fact is pasturing their beasts on any of these strays any longer. At one point in the proceedings, I turned to counsel for the petitioners and—if I may read a little of the transcript—said:
"These points of law are being argued before the wrong court. This is not a court of law. This is a committee in the Lords' House
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of the High Court of Parliament; and what Parliament grants it can rescind. The Bill in respect of Part IV does not alter the status of freemen. It does not remove the rights of freemen"
Then I went on and said:
"Can you find a freeman who can come before us and say on oath, 'I am exercising my grazing rights and have been doing so for years past as my father did before me and I am a freeman resident in an ancient messuage in such-and-such a ward'?"
Of course, nobody could be produced who could say that; so that the rights are not being exercised and the beneficiaries are beneficiaries under redundant trusts because they cannot be identified.
That is the situation which the city fathers of York have to deal with following a number of agreements made between the freemen of the wards starting in 1947 and going through to 1958 for the management of the strays. And they have stray managers, pasture masters and so on. They came to an agreement with the freemen that the council would nominate these pasture masters and the freemen would nominally elect them. The whole thing has been managed by the corporation with respect to different strays of different dates and between 1947, 1948 and 1958, three main strays came under the management of the council which resulted in quite a substantial negative cash flow, taking one year with another. The freemen, whether they lived in ancient messuages or not, had no plans whatsoever to meet this negative cash flow on the management of the strays.
The City of York wants, as it were, to rejuvenate the trusts by dedicating the strays to recreational facilities for the whole citizens of York. This of course has been partly anticipated because one of the strays, the Micklegate Stray, has its own Act of Parliament of 1907. It is under those circumstances that York racecourse was built on the Micklegate Stray. What you have built a racecourse and a grandstand upon is no longer available for grazing rights.
On another of the strays is a golf course; and there have been irregularities in the past which have been connived at and ought to be put straight. There have been encroachments on the strays. People's gardens have encroached but so long ago that the people who now own these gardens and houses bought them in good faith and would not be at all happy at the idea that their gardens must be ploughed up and returned to pastureland in order that the strays can be used as grazing rights for people who no longer graze on them. Some of them are grazed because the council has power to lease out grazing rights to farmers in business in pastoral agriculture, and so on.
This is the situation that we had to face. The City of York is trying to regularise a rather messy legal situation involving all sorts of ambiguous terminology. I hope very much that the House will agree that this Bill should pass because we shall be in a very considerable embarrassment if it does not. Under the 1972 Local Government Act, the City of York has until December of this year to clean up all this rather untidy administration of the past years and so I must assure your Lordships that nothing is being taken away from anybody who can be identified as having a right in it and no right is being abolished that is currently in use.
With that, I hope that I have answered the points made by my noble friend Lord Somers and by my

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noble friend Lady Kinloss, and I hope that I have satisfied some of the curiosity of the noble Lord, Lord Graham, who spoke from the Front Opposition Bench. I hope that your Lordships will agree that the Bill should pass.
The Chairman of Committees: My Lords, we have had an interesting short debate. I have every sympathy with the noble Lord, Lord Graham, in not having been able to hear the noble Earl, Lord Halsbury, before he spoke in this debate. I think that I should like to express my great gratitude to the noble Earl, Lord Halsbury. He was the most competent chairman of this committee and he has told us how very carefully the Select Committee went into all aspects of the case that was put to them by counsel on behalf of the petitioners, and that they decided unanimously that the Bill should not be amended.
It would be most unusual for this House not to agree with a recommendation of this sort from a Select Committee. The whole of our Private Bill procedure follows the course that the House discusses a matter on the Second Reading and remits it to a committee which is far more able to go into all the intricate difficulties behind the particular petition. As the noble Earl has said, this is a complicated matter. The Select Committee had every opportunity of going carefully into it, advised by counsel on both sides, and I really do not think that this House should interfere with the recommendations that they have made. If the freemen wish to pursue their case, then the right place to do so is in the House of Commons where the Bill will proceed once it has passed this House.
On Question, Bill passed, and sent to the Commons.
Viscount Long: I beg to move that this House do now adjourn during pleasure until 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The sitting was suspended from 7.59 to 8.35 p.m.].

Public Order Bill
Consideration of amendments on Report resumed.
Clause 5 [Harassment, alarm or distress]:
Lord Hutchinson of Lullington Lord Hutchinson of Lullington moved Amendment No. 2:
Page 3, line 34, leave out ("or disorderly behaviour").
The noble Lord said: My Lords, the understatement of the year would be to say that the House is sparse at the moment. Nonetheless I rise to move this amendment, which is an amendment which was put down in Committee but not moved, for the same reasons as the other amendment I referred to: because it was subsumed in the debate on Clause 5 stand part.
In a further attempt to improve the Bill and this clause, I suggest that these words be added to the historic words "threatening, abusive or insulting words or behaviour": that is, "or disorderly behaviour". In this amendment we suggest that the words "or disorderly behaviour" should be removed from the Bill. They are so wide that again, I would suggest, they will become a beanfeast for the lawyer in court.
It must surely be clear to everybody that to criminalise behaviour which is "disorderly" is casting a net which is incredibly wide in our society today. If one looks up the word "disorderly" in the dictionary—because of course there is no definition of it in the Bill—it is:
"absence of order, untidy, unruly, violating constituted authority".
Of course we can all give examples of disorder upon which one might indeed found a criminal offence. One of the troubles in our debates on this Bill has been that it is so easy to give examples of various kinds of behaviour at the worst end of the spectrum which might fit the words which have been put in the Bill.
Of course one can think of forms of disorder which it would be right or might be easily justifiable to criminalise. But, as the noble and learned Lord, Lord Scarman, said in Committee, the criminal offences in the criminal law should be specific. He said that these words create "an omnibus gather-all offence". He described them as undesirable and inconsistent with the true development of English law. It is a great pity that the noble and learned Lord cannot be here this evening, but he has authorised me to say that he stands four-square behind what he said in Committee about this clause and in fact he has authorised me to quote the words which he then used.
When a learned judge of the greatest possible eminence and with unrivalled experience in the application of the criminal law to public order situations uses words such as these, and says that they are inconsistent with the true development of English law, are we really in this House simply to listen to him and then ignore what he says?
Is the citizen's public behaviour to be controlled and regulated by an umbrella offence of such wide general application? One can think of a thousand examples of behaviour which is not orderly and likely to cause another person distress every day when we live and go out on the streets. Of course behaviour is not orderly. Thank goodness it is not orderly always! There are a thousand things which can distress all of us. Are we really to criminalise all such behaviour? It is no wonder the National Association of Probation Officers is deeply disturbed at the inclusion of these words in this Bill. It is no wonder there is very general alarm among all those who have care of young people, particularly young blacks, at these words being included in this Bill.
Here is a really clear possibility of a return, I would suggest, to the sus legislation. I say that as someone who, as a young man, has been involved repeatedly in cases (as I am sure the noble Lord, Lord Mishcon, has also) under the suspected person's provisions of the old law. The mischief there—and one saw it during all those years it was on the statute book—time after time was that the case depended entirely on the say-so of a police officer.
In the end it got to such a state of disrespect that of course the legislation was repealed. But what are we faced with here with these words? The words are that a person—
"uses threatening, abusive or insulting words or behaviour, or disorderly behaviour,… within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby."
What the Minister said in Committee was, "Ah, but this is very different from the sus legislation because

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there has to be a victim." There does not have to be a victim. It is yet again simply the word of the observing police officer, and just as in the sus legislation, the officer has only to say, "I saw these two black youths behaving in this way within the hearing and the sight of someone who was on the pavement". That person never has to be called. No one has to check up. There is simply the word of the observing police officer. That was the mischief in the sus legislation, and if these words "disorderly behaviour" remain it will give powers to the police which, I regret to say, will simply put the clock back. Young people will be picked up for disorderly behaviour which it will be said in court was behaviour which was perpetrated within the sight of some unknown other member of the public who will never be seen or be heard from.
There are two other things I wish to say. In Committee two points were made regarding the criticism levelled against these words. It was said, "We already have the offence of drunk and disorderly. The courts are well used to the concept of disorderly behaviour. How much worse it is for a sober person to behave in a disorderly manner than for a drunk person to behave in a disorderly manner". That was the most specious of arguments. The point about the word "disorderly", when it is linked to a person who is drunk, is that it is a drunk person who is unable to look after himself and is wandering or lurching about. One does not catch the person who is drunk while he is asleep, lying down or quietly sitting somewhere. One catches the person who is drunk, lurching about and bumping into people. Disorderliness is linked directly to drunkenness. No one in their wildest dreams would suggest that that sort of behaviour should be a criminal offence in someone who was not drunk. The comparison has absolutely nothing to do with the context of this particular clause containing that word.
The other point that was made concerned the powers which the police have to deal with hooligans and gangs of people who commit this mischief about which we are all agreed. That question was put to the noble and learned Lord, Lord Scarman. The answer of course is that there is a whole array of powers. There are breach of the peace powers, criminal damage powers, obstruction powers, indecency legislation, nuisance and intimidation powers under the Conspiracy and Protection of Property Acts, assault legislation, Clauses 1, 2, 3 and 4 of this Bill, and there is now the trespass clause. There is an array of powers in the hands of the police already to deal with this mischief and I sincerely suggest to the House that this Bill would be far better without these words. When the noble and learned Lord, Lord Scarman, says that these words are offensive to our concept of English law, we should listen and agree. We should remove the words from the clause. I beg to move.
8.45 p.m.
Lord Mishcon: My Lords, I would like to support Amendment No. 2 which has been so eloquently moved by the noble Lord, Lord Hutchinson of Lullington. Indeed, silence from these Benches does not mean that we have not approved of the other amendments which he has moved, including Amendments Nos. 1 and 3. I want to add something
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to what the noble Lord has said, and not simply to repeat his argument or the arguments of the noble and learned Lord, Lord Scarman. I ask myself this question: Is it worthwhile to introduce words which we have already heard are extremely vague and which smell of the sus offence which all of us find so objectionable, when the number of cases must be minimal in which disorderly behaviour, as the noble Lord the Minister would describe it, is not covered already by the other words used in this subsection? For example, if somebody uses threatening, abusive or insulting language or behaves in a threatening, abusive or insulting manner, within the hearing or sight of a person likely to be caused harassment, alarm or distress, the number of cases that the noble Earl can think of are, I am sure, few and far between where the case is not covered by the other words in this subsection. I ask, forgetting any other arguments (and there are weighty arguments to which the noble Lord, Lord Hutchinson, has referred), is it worth while to introduce these vague words which are objectionable in regard to a criminal offence when nearly every single case that would be covered by the words "disorderly behaviour" would be covered by the words already existing in the Bill?
Lord Foot: My Lords, I wonder whether I may add two comments to what has already been said. It is sometimes supposed that we in the legal profession welcome uncertainty being written into the law, because we can subsequently make a field day of it. I do not believe that that is true of the profession; but certainly whenever unnecessary uncertainty is introduced into our law it is quite contrary to the public interest because it enables people to put up false defences and to obscure the real issue. It is not only in the interests of the profession; it is also in the interests of the public that the law should be as explicit and certain as it can be made.
The first criticism of these words "disorderly behaviour" is therefore that they introduce unnecessary uncertainty and, as the noble Lord, Lord Mishcon, has just said, all sorts of conduct which you can think of are already amply covered by the other words in the subsection. The other objection I have is that it is ungrammatical. It is very unpleasant to find in what will be an Act of Parliament the words:
"A person is guilty of an offence if he … uses … disorderly behaviour".
I do not know how you use disorderly behaviour. It is certainly something that ought not to appear in an Act of Parliament. It only brings the Legislature into disrepute if we treat the English language in that fashion.
On both scores, therefore, I suggest that we ought to accept this amendment.
Lord Silkin of Dulwich: My Lords, I apologise to the noble Lord, Lord Hutchinson, for not being here at the beginning of his speech. What I heard of it was certainly very persuasive and excellent. I want to add only one word to what was said, particularly by my noble friend Lord Mishcon, who pointed out that there is very little indeed—it is difficult to think of anything—which does not fall within the wording of the offence, excluding the words "disorderly

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behaviour". It goes a little further than that, because when one comes to the defences which are set out in subsection (3), among those is the defence that the defendant's conduct was reasonable. So we have disorderly behaviour reduced still further to disorderly behaviour which is not reasonable. To find examples of that, over and above the other wording which is contained in the clause, is beyond my powers.
The Earl of Caithness: My Lords, the noble Lord, Lord Hutchinson of Lullington, said quite rightly that this amendment was not moved at Committee stage, but he foreshadowed in the clause stand part debate the areas of his concern; so the arguments of the noble Lord are familiar to your Lordships, and indeed those arguments failed to persuade the Committee that the clause should not stand part of the Bill. I hope that those arguments will not persuade the House to accept Amendments Nos. 2 and 4.
The noble Lord, Lord Hutchinson, said that the term "disorderly behaviour" covers a multitude of sins. Indeed, he argued that it is so wide it is difficult to see what it means. I have to say to him, as my noble friend Lord Butterworth said on that previous occasion, that it has to be for the courts ultimately to determine what the term means. But that should not be too difficult. They already do so in other contexts.
The next argument that I shall recount to your Lordships has already been described by the noble Lord, Lord Hutchinson, as a specious argument, because I repeated quite a lot of what my noble friend Lord Glenarthur said. "Disorderly" is not a new term in our statute law. We have had for a number of years an offence of being drunk and disorderly, which is now found in Section 91 of the Criminal Justice Act 1967. Indeed, I can take the noble Lord further back. I can take him back to Section 1 of the Public Meeting Act 1908, which has the words "disorderly manner", and I can take him further back still to the Glasgow Police Act 1866, Section 133(5), which refers to "disorderly behaviour".
Much of the noble Lord's comments on this amendment, and indeed on the last amendment when he accused me of not replying to him in detail, are fundamentally attacking the existing law rather than anything new that we are bringing into the law. On the last occasion it was the 1936 Act. Now it is words that have been used in legislation for 100 years. The courts have so far had no difficulty in deciding what constitutes disorderly behaviour in the context that I have submitted to your Lordships, and neither, we believe, will they in this context. The courts have suggested that "disorderly" indicates less aggressive conduct than would be required to constitute a breach of the peace and that is part of the rationale of the new offence.
The difficulty so often revealed in case law is that when the police are called to a disturbance, often late at night, they have no power beyond asking the participants to go home. If the troublemakers refuse to do so, there is very little that the police can do. A breach of the peace requires actual or threatened violence. But what is generally complained of is noise, dustbins being tipped over, bottles being smashed in the street late at night by groups of youths running through the common areas of blocks of flats and the
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like. This sort of behaviour falls short of a breach of the peace and is not generally threatening, abusive or insulting. But the police have continually stressed in their discussions with us the misery such behaviour causes to ordinary citizens. Not only are the police expected to deal with it but, in our view, they ought to be able to deal with it.
I am sorry that the noble Lord, Lord Mellish, is not here, because at Question Time not so long ago he raised the very same point and asked for something to be done about it. Disorderly conduct and in particular the disorderly element in the new offence therefore fails to fill a gap in the law. We think that when troublemakers refuse to move along or hooligans continue to run amok through housing estates in the early hours of the morning, the police should be able to act more effectively than they can at present to protect ordinary people who have to suffer this appalling behaviour. That is why we have added "disorderly" to the other elements in this offence and that is why we have included a power of arrest if someone ignores a police warning to stop.
The noble Lord, Lord Hutchinson of Lullington, went back and said that all we have done is to revise the sus laws. That is not true. I shall only repeat, and will doubtless have to repeat again to the noble Lord, that his interpretation of this part of the Bill is wrong. In preparing Clause 5, the Government have been anxious not to recreate sus. The Government believe, particularly in view of the amendments made to the clause on Report in the Commons, that the offence cannot be so characterised. Under subsection (4) of Clause 5, a power of arrest is conferred on a constable if a person engages in conduct which the constable reasonably believes to be an offence under that clause, and having been warned to stop that conduct the person concerned engages in further such conduct immediately or shortly after the warning. So if a person who is banging dustbin lids in the common parts of a block of flats is told to stop by a constable, and he either bangs the lids again or starts to kick milk bottles about, the power of arrest arises.
But there is an important safeguard built in. It is not enough merely for such conduct to be resorted to. The offence is only committed if the use of threatening (and such other words) behaviour, the use of disorderly behaviour or the conduct falling within paragraph (b) of Clause 5(1) is within the hearing or sight of a person likely to be caused harassment, alarm or distress. The significance of that is that there must be a victim of the accused's conduct. I hope that that will satisfy the noble Lord that there has to be a victim and the police just cannot pick on two people unless there is a victim present.
It is not enough that the loutish disorderly behaviour takes place when no one else is around. The police cannot arrest in such a case unless they themselves are the victims. The police must reasonably suspect that the conduct occurred within the hearing or sight of a particular person. We have not, however, gone on to provide that the victim must prove to have been harassed, alarmed or distressed. That would require the victim to be produced to give evidence in court in every case—a prospect he may well be unwilling to contemplate.

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Instead, it is enough that the court is shown that the victim was likely to be harassed, alarmed or distressed, so the prosecution will have to give evidence of who the victim was and the court will decide whether the person would be likely to have been caused harassment, alarm or distress by the conduct that is proved to have taken place. That is a situation very different from the sus laws and I hope the House will firmly reject these amendments.
9 p.m.
Lord Mishcon: My Lords, I wonder whether the noble Earl will follow his argument through. He says that if you leave out the words "disorderly behaviour" the existing words do not cover what he has in mind, which is a group of youngsters—hooligans, one may call them—who in the early hours of the morning are banging dustbin lids. Nobody in his senses will defend such conduct. We are dealing now with a criminal offence. I should have thought that such an offence would be likely to cause a breach of the peace and would give rise to certain rights, but I am not even going to argue that.
If the noble Earl will follow his argument through, which one of the constituent elements does he say is the one brought into being by the noise of the dustbin lids so far as another person is concerned? It certainly would not be harassment; it certainly would not be alarm; it might conceivably be a nuisance, causing people to say, "Well, I wish to God they would go away. I want to go to sleep". But I should have thought that it was highly arguable as to whether it caused distress.
The words are right, even in the noble Earl's example of the dustbin lids (which is the only one he could produce), because everything else I can think of would be insulting, abusive or threatening. Does the noble Earl really think that the case of the dustbin lids would be caught by the fact that the court could infer from that that somebody was being caused distress as against a nuisance?
The Earl of Caithness: My Lords, having carefully considered the situation beforehand. I should like to reflect further on what the noble Lord has said. But I believe on the best advice that I have that the existing law does not cover such a situation as I described. It is for that reason that we do not require these words to be omitted. I should have asked for the leave of the House; I apologise for not asking for it beforehand.
Lord Hutchinson of Lullington: My Lords, I find it depressing that again the main thrust of the argument has not been dealt with. I say that with the greatest respect. The noble and learned Lord, Lord Scarman, says that these words are undesirable and inconsistent with the concept of English law but we have heard absolutely nothing to show in any shape or form that those words were not true and should not be acted upon. That is my first point.
Secondly, on the question of the sus legislation of old and in regard to "a suspected person loitering with intent", why was it brought into disrepute? It was brought into disrepute because it depended entirely on a police officer saying that his suspicions were aroused
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and that he saw the person loitering, to which the defendant could do nothing but say "I wasn't". On that basis many young men were brought into court, and in the end the matter fell into disrepute.
The exact equivalent is to be found here, because however much the noble Earl says there has to be a victim, the answer is that there does not have to be a victim. All there has to be is a say-so that there was a victim. The victim does not have to be produced; nobody has to see the victim; the victim is not to be questioned. The victim is the say-so of the police officer. It is an almost exact replica of the old law. The only difference is that in one the police officer said that his suspicions were aroused, that he saw the thing happen more than once and that the person was loitering. Now all the has to say is that the young man was doing this, that and the other and that there was a person on the pavement. That is all that has to be done. In regard to the powers that are given to bring someone into court on the basis that he was behaving in a disorderly manner, the sky is the limit.
Once again—and I say it with no disrespect—the noble Earl gave examples of dustbin lids, broken bottles and so on. But we cannot have public behaviour controlled on that basis. Surely the essence of the complaint is that people cower in their flats, they are frightened in their passages and they are frightened in their blocks of flats because of these hooligans banging and crashing around; and they know that if they protest, complain or go into court they are liable to be assaulted. That is what this is all about. It is not the noise of the broken bottles. We cannot control society on that basis.
We all have to put up with such things in life. The fear which is engendered is the mischief to which the Public Order Bill should be directing itself. I must say that I do not know how many noble Lords would have sleepless nights if the criminal law were not based on the views of the noble Lord, Lord Mellish. Speaking for myself, I would not have very many sleepless nights, but there we are.
I am not at all satisfied with the noble Earl's reply, but at this late hour of the night, and in a thinly attended House, it would be completely pointless to divide the House. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 3 not moved.]
Clause 6 [Mental element: miscellaneous]:
[Amendment No. 4 not moved.]
Clause 11 [Advance notice of public processions]:
Lord Silkin of Dulwich Lord Silkin of Dulwich moved Amendment No. 5:
Page 7, line 18, leave out ("each area") and insert ("the area where it is intended to start it").
The noble and learned Lord said: My Lords, in Committee we discussed the question of whether the organisers of a procession which is going through a number of different police areas should be required to give notice to each one of them. I believe that there was a certain amount of sympathy expressed for the view that that is putting the organisers to too much trouble. However, I think the Committee was not clear as to

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how the difficulty could be avoided while at the same time ensuring that proper notice was given.
The amendment seeks to ensure that is done, in a reasonably simple way, by providing that in such circumstances it is the duty of the organisers of the procession to give notice to a police station in the area where it is intended to start the procession. Subsection (3) requires that,
"The notice must specify the date when it is intended to hold the procession, the time when it is intended to start it, its proposed route"
and so on. The police station to which notice is given will be advised of the date, the time and the route and from that, knowing far better than the organisers of the procession which police areas the route will pass through, it can inform the other police areas concerned.
I cannot see that that is putting an undue burden on the police. If one puts the burden on the organisers of a procession, which may contain a very small number of people who have no idea of anything other than the time and place and the intended route, and certainly no idea of the police area boundaries, one is asking for something unreasonable and unnecessary. Therefore, I ask the noble Earl to consider whether this very small amendment would not be to the general advantage and whether he can accept it. I beg to move.
The Earl of Caithness: My Lords, as the noble and learned Lord, Lord Silkin of Dulwich, explained, this amendment is designed to reduce the burden on organisers of processions which pass through more than one police force area. Clause 11(4)(b) requires them to deliver a separate notice in each area. This amendment would relax this requirement to enable delivery of a notice only in the police area in which the procession is due to start.
Such marches will of course be very much the exception rather than the rule. Given the size of police force areas in England and Wales, the vast majority of processions will take place within the boundaries of a single force, and there will be no need to deliver more than one notice. But the police tell us that marches going from one force area to another, rare as they are, have occasionally caused difficulties in the past. They attach importance, therefore, to separate notice being given in each area so that each force can make its own preparations and enter into discussions with the organisers.
I am happy to inform your Lordships that while co-operation between police forces is excellent, nonetheless it is for each individual chief constable to assess operational needs in his own area. In reaching such decisions, the chief constable draws on his considerable local experience and knowledge. Consequently the chief constable of a particular area will have knowledge which will be of benefit to organisers of marches who may well be unfamiliar with the area themselves, especially if they come from a long way away. We believe therefore that organisers should get in touch directly with individual forces, rather than rely on other forces to pass on the message. Of course it would be unduly burdensome to require organisers to deliver notice by hand in each area, although that is what the Bill as introduced required. But the Government have since agreed that notice
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may be delivered by post, and this is now provided for in Clause 11(6).
The organisers will be aware well in advance of the route they intend to take and will commonly, among other things, have made arrangements for billeting for the night. Frankly, I do not think it is too much in these circumstances to expect them to send a separate notice to each police area; or that this is an unreasonable burden on organisers.
Lord Morton of Shuna: My Lords, with respect to the noble Earl, it would seem from listening to him that he is unaware of the invention of the telephone. Surely if a notice is served in the area of one chief constable and he notices from that advice that the route is going into another police area it is possible for that police force to communicate with the other. That regularly happens. It is much easier for the police to know their particular boundaries than it is for the members of the public.
Lord Silkin of Dulwich: My Lords, I think that the Government are being unreasonable about this point. It is a quite minor concession that is being requested and one which cannot really put the police in difficulty. Where the police are aware that somebody will commit an offence and will be likely to travel along a certain route, for example, I cannot imagine that they are not astute enough immediately to inform the police areas along that route. Why in the world that same astuteness should not apply in this case is beyond my comprehension.
I gathered from the noble Earl's remarks that the police themselves are the people who are objecting to having this small extra burden placed upon them in exchange for a slightly smaller burden on those who organise processions. I may say that such processions may have to be organised fairly suddenly and there may not be much time for the study which would result in it becoming known to the organisers that they will go through two or three police areas. It is not a heavy burden on the police and I should have thought that it was something which could be conceded. At any rate I hope that the noble Earl will take the view that it is not sufficient that chief officers of police say that this will be helpful to them, and that as a Minister of the Home Office he will independently think again and, if necessary, agree to overrule them on this particular matter. I am asking him to consider thinking again about this particular amendment.
The Earl of Caithness: My Lords, with the leave of the House, I have taken quite a lot back to think about and, as the noble Lord, Lord Mishcon, said, we are short of time. If I continue to take back too much, I think we may overburden ourselves and just delay points until Third Reading. However, in this instance I shall not only consider but I shall take it back.
Lord Silkin of Dulwich: My Lords, I am grateful to the noble Earl. I am sure that he wishes always to be reasonable, and in that spirit I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.15 p.m.
Clause 12 [Imposing conditions on public processions]:
Lord Silkin of Dulwich Lord Silkin of Dulwich moved Amendment No. 6:
Page 8, line 13, leave out from third ("the") to end of paragraph (b) and insert ("unlawful intimidation of others").
The noble and learned Lord said: My Lords, this amendment to Clause 12 relates to subsection (1)(b) and has regard to the reasonable belief that a senior police officer is required to have in order to found his powers in respect of processions and to give directions and so on. There is no quarrel at all about paragraph (a)—that he fears and reasonably believes that the circumstances may be such that serious public disorder and so on may result. Paragraph (b) goes further and provides that as a condition of his powers he may reasonably believe that:
"the purpose of the persons organizing … [the procession] is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do"
We do not in any way object to the police having their powers in those circumstances. We say that paragraph (b) concentrates the mind on a particular form of unlawful intimidation when there are other forms of unlawful intimidation which may be equally obnoxious. The reason why it concentrates on the particular form is without doubt the fact that within the last year or two in particular there has been a great deal of industrial trouble which has brought before the public the possibility that people are being intimidated to compel them not to do an act that they have a right to do or to do an act that they have a right not to do. That is understandable. But to concentrate on that form of intimidation seems to us to be wrong for two reasons; first, because, as I have said, there are many other forms of unlawful intimidation that should be embraced and, secondly, because it gives the impression—no doubt an undeserved impression—that the Government and Parliament are concerned only with the industrial type of intimidation and not with any other type of intimidation. It is to avoid that impression, to simplify the language and to make it more embracing and wider than it is at the moment that this amendment proposes to delete the wording that relates to industrial matters and to substitute the simple words,
"the unlawful intimidation of others".
It may be said that any intimidation is unlawful. If so, it would be said wrongly. There are certain forms of intimidation that may be lawful and others that may be unlawful. It is in order to catch the unlawful forms, which is the right way of dealing with this, that the amendment has been drafted. I beg to move.
The Earl of Caithness: My Lords, under Section 7 of the Conspiracy and Protection of Property Act 1875 it is an offence for anyone to intimidate another with a view to compelling him not to do something that he has a legal right to do or to do something that he has a legal right not to do. Our intimidation test is modelled on this. It may be argued that the amendment of the noble and learned Lord, Lord Silkin, wholly absorbs ours. But we cannot be sure.
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Section 7 is concerned with individual acts of intimidation by one person against another.
While those taking part in an assembly or procession may well intimidate others in the sense of Section 7, that may not be the purpose of the organisers in organising the demonstration. Similarly, someone on a picket line may well intimidate a worker by using threatening behaviour likely to cause a breach of the peace. That would be unlawful intimidation. But can it be said that the purpose of the organisers in organising the picket is unlawfully to intimidate others, because that would be the result?
Further, asking the police to decide if the purpose is intimidation amounting in the circumstances to the commission of a criminal offence, when the whole object of the power is to act before the mischief arises, is asking the police to decide a difficult question even where, as in these clauses, the police need form only a reasonable belief.
There was much more that I could have said, particularly with regard to racial hatred—which I thought that the noble and learned Lord was going to major in. I hope, however, that I have explained that our objections to the amendment are based on practicalities. I am not convinced that the police would be able to use the test in practice. The amendment may be a recipe for uncertainty and confusion and may be both narrower and wider than any of us would wish. I hope that the noble and learned Lord will take that point.
Lord Silkin of Dulwich: My Lords, my reaction to the noble Earl's explanation is that it is extremely unlikely that the effect of my words could be narrower than the words at the moment in the Bill. The words in the Bill contain two elements; first, that there must be intimidation, which is common to both of us, and, secondly, that it must be a particular sort of intimidation. If the noble Earl is saying that that form of intimidation may not be unlawful, I can understand his argument, although it is difficult to see why, if it is intimidation that would not be unlawful, these powers should be available to the police. However, if he is accepting that the form of intimidation referred to in paragraph (b) is unlawful intimidation of one kind, it is difficult for me to follow why he rejects the gift from the gods that I am offering of other forms of unlawful intimidation. However, if the Government feel that they wish to reject that gift then it is not for me to force them to accept it. Does the noble Lord wish to intervene?
Lord Inglewood: My Lords, perhaps I may make one simple comment. It concerns the word "practical", which the noble Earl mentioned in his last few sentences. I have always felt from contacts with police in this country and elsewhere that it is extremely difficult for any man to get these subtleties exactly right on the spur of the moment. The matter can be so clear for the most able criminal lawyers in the country. But it is the common sense, knowledge and dignity of the police constable or sergeant on which these questions depend.
I have been listening to similar discussions earlier today. I do not want to make an issue of this matter at

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this time of night. But I hope that the noble Earl will mention this point tonight or the next time this Bill is discussed, because I feel that it is very important.
Lord Silkin of Dulwich: My Lords, I am obliged to the noble Lord. I entirely agree with him that one has to try to put into the legislation that which is practical and practicable. I certainly wish to have that in mind. I am bound to say on this clause that the requirement is that the police officer should reasonably believe that the purpose of the persons organising it is, first, the intimidation of other people; and, secondly, that the purpose of that intimidation is to compel those other people not to do an act which they have a right to do, or to do an act that they have a right not to do. He has therefore to work out in his mind all kinds of questions of law.
I am not convinced that, as it stands, the clause is a very practicable one or one that makes easy provisions for the police to implement. I am not convinced that it would be any more difficult for them if the simple form of words "unlawful intimidation of others" were used. However, as I have said, since the Government are not disposed to look the gift horse in the mouth or at any rate to accept the gift, at this stage it would be desirable that I should withdraw the amendment.
Amendment. by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 7:
Page 8, line 30, at end insert—
("( ) A direction shall not be given by virtue of this section by an officer below the rank of Inspector unless it is not reasonably practicable for such an officer to be present at the scene in sufficient time to give the direction.").
The noble Lord said: My Lords, I beg to move Amendment No. 7, standing in the names of the noble and learned Lord, Lord Elwyn-Jones, and myself, the noble and learned Lord, Lord Silkin, and the noble Lord, Lord Hutchinson. This amendment adds to Clause 12 at line 30—that is, subsection (2)—the words:
"A direction shall not be given by virtue of this section by an officer below the rank of Inspector unless it is not reasonably practicable for such an officer to be present at the scene".
In this section, any imposition of conditions on a procession prior to its assembling has to be by the chief constable. One then gets to the situation narrated in subsection (2)(a), which provides that,
"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".
I moved a slightly different amendment in Committee, without the element of reasonable practicability. One can have a situation where conditions have been imposed on the procession by the chief constable, and then a police officer, who happens to be the senior in rank of those present, for various reasons can change those conditions or give certain directions. This amendment seeks to suggest that where at all practicable this should be done by a promoted officer of a certain seniority. The difficulty and the hostility that may arise can be easily envisaged, if a junior or unpromoted officer gives such directions in the face of conditions allowed by the chief constable.
The difficulties that the noble Earl has dealt with so far mainly appear to come from the senior police officers' organisation, which seems to take the view that it has no facilities such as radio or telephone, or anything else. However, any police officer attending a procession will almost certainly be in uniform, if he is going to give instructions of this kind, and will have radio communication with his base. I would suggest that the difficulty of getting an inspector present at the type of situation that is envisaged is minimal. Also one can easily envisage the danger which may arise if a special constable with little experience, or a police officer who, for good reasons has not been promoted during his 30 years' service and who may have certain biases, is present on such an occasion. I would suggest, and hope, that the Government will accept this amendment which I beg to move.
Lord Monson: My Lords, perhaps I may say that I believe the noble Lord has made out a very convincing case for this amendment, and I would certainly be very happy to support it.
The Earl of Caithness: My Lords, perhaps I may welcome the noble Lord, Lord Morton of Shuna, to our deliberations, and another change of bowling on the other side.
Lord Elwyn-Jones: My Lords, fresh as a daisy!
9.30 p.m.
The Earl of Caithness: My Lords, it is good for us all to have a fresh voice among us.
We have to some extent covered this ground before in our discussions, and I apologise to your Lordships if I seem to be repeating myself. As the noble Lord has explained, these amendments would allow only officers of the rank of inspector or above to impose conditions when an assembly or procession is in progress, unless it were not reasonably practicable for one to reach the scene in time to do so. I appreciate that in introducing this qualification, the noble Lords opposite have sought to respond to the points that I made when we last discussed this idea, but I regret that I am not persuaded that this qualification makes the amendments any more acceptable.
As I explained to your Lordships when we discussed this before on 6th October (it can be found in the Official Report cols. 27 to 29) the nature of the police presence at any demonstration will depend entirely upon the size of the event and the sort of 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. It cannot altogether be 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 need to intervene to prevent demonstrators overstepping the mark. If they are to prevent the mischief occurring they need to act quickly and I believe that the amendments we are discussing would make this duty more difficult notwithstanding the fact that one has modern communications and it is hoped a reasonable means of transport to get the senior officer to the site.
The officer on the spot would need not only to decide whether conditions were necessary to prevent

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the mischief, but also whether he had time to get an inspector to the scene to give those directions for him. The delay in getting a senior officer to the scene might be small, but I would suggest that any delay in imposing conditions which are intended to be of a preventive nature would be too long. Moreover, I believe that the requirement would have a largely cosmetic effect. Faced with a request to urgently attend an event that he has not been policing, and to respond immediately to avert a potential mischief, the senior officer will have only the judgment of his junior colleague to rely on, and he is thus unlikely to do anything radically different from the action that his junior officer proposes.
I am also very unhappy about the form these amendments take. The amendments state that directions shall not be given under Clauses 12 and 14 by an officer below the rank of inspector, unless this is not reasonably practicable. Presumably therefore where any conditions imposed by a more junior officer are defied by protesters and a charge is brought, an extra defence is available to the accused, who may seek to prove that those conditions were not lawfully imposed because it would have been reasonably practicable for an inspector to have been called to the scene.
In the vast majority of cases where the police believe it is necessary to use these powers, senior officers will
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be present. However, the police try to keep as low a profile as possible at all demonstrations, and there are small demonstrations where only one or two officers will be present. I believe that in these cases it will hardly ever be reasonably practicable for an inspector to be called in to impose directions, and that by introducing this amendment we would be incorporating a rather unnecessary and limiting requirement which would simply serve to create uncertainty for the officer on the ground.
Lord Morton of Shuna: My Lords, as perhaps is usual, that is a very disappointing reply. If one has the situation—and I use a Scottish simile because the noble Earl has Scottish connections—of a pipe band going along Prince's Street and a police officer considers that it is causing serious disruption to the life of the community, as it undoubtedly does every day of the Festival, is that officer to have the right to say, in defiance of the chief constable, "No, today you will go along some other street and there will be no pipe procession"? In effect, that is what the noble Earl is saying is open to any junior officer, however practicable or impracticable it may be.
However, because of the lateness of the hour, I do not think that it is worth dividing the House and wasting the time of the House. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mishcon Lord Mishcon moved Amendment No. 8:
Page 8, line 32, at end insert ("and a direction given by virtue of subsection (2)(a) shall he given or confirmed in writing unless it is not reasonably practicable so to do.")
The noble Lord said: My Lords, I come to the Dispatch Box with a gleam of hope in my eye that at last we have reached an amendment which the Government are prepared to accept. We are dealing with a very serious direction and this amendment could not be more carefully worded in order to protect every possible contingency if writing is not possible at the time. The direction should he given in writing if possible. If it is not practicable, then it can he confirmed in writing, but it does not have to be confirmed in writing,
"unless it is not reasonably practicable so to do".
I can go no further in reasonableness. I wonder how far the Government intend to go in reasonableness in reply.
Lord Monson: My Lords, once again I am very happy to support an amendment from the Opposition Benches which I hope is not open to the same objections as the previous one.
The Earl of Caithness: No, my Lords, it is open to different ones. These amendments seek to establish a requirement that all conditions imposed by police officers on those organising or participating in marches and assemblies under Clauses 12 and 14 should be given or confirmed in writing wherever practicable. Clause 12(3) and Clause 14(3) already require that such directions should he given in writing where they are made in advance of the event. I believe that any extension of this requirement, to cover the giving of directions by the police officer at the scene, would be wholly impractical. The amendments try to recognise this by stipulating that the requirement should apply only where it is reasonably practicable. However, I would suggest that it is unlikely ever to be practicable for an officer policing a demonstration which threatens to breach one of the four tests, to take out his notebook and write out the directions he feels are necessary to avert that consequence, and then to hand this to the organiser and participants.
The power to impose conditions at the scene is intended to enable the police to respond immediately, in a preventive capacity, to changing circumstances. If the senior officer is required to pause and write down his directions, whether it be to inform the demonstrators of his directions, or to confirm a direction he has just given orally, I believe that we would be hampering that officer in the performance of his duty.
The amendment suggests that the direction might be confirmed in writing if not actually given in writing. I assume that this is a very reasonable attempt to meet the operational difficulties that I have described, but I do not think that it does so. Where it is necessary to impose conditions on the spot this will usually be done by loud hailer, either directly by the police or through the organisers. In the nature of things this cannot subsequently be confirmed in writing to all those who
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heard it. That seems to me a convincing argument for refusing these amendments.
Lord Mishcon: My Lords, the gleam has gone out of my eye, and if your Lordships find a rather blank expression on my face your Lordships will understand why and sympathise. I have often heard it said that among the praises that rightly are given to civil servants there is one reservation that one makes, and one does it still with gratitude. It is that they have a problem for every solution. That is the phrase I should like to use on this occasion.
People have to have a right to protest—no more than protest, if you like—that somebody gave a very unreasonable direction. You cannot protest about the direction that was given if, of course, there is a dispute about the direction. Therefore, merely to give one example of why this is necessary, one says, "Look, if you possibly can, if you have all the time in the world, give the direction in writing." You may have decided about it ten minutes ago, and it could he done. But if you cannot do that, then at least let the organiser know, by way of confirmation in writing, what that condition was so that there is no doubt about it, and if somebody wants it confirmed in writing they ought to be able to obtain it.
But then there is the further safeguard I gave the Minister, which was that in some circumstances it might not be practicable even to confirm the direction in writing, although such a direction was requested. He has that protection too. Really, we are getting to the stage of absurdity with regard to amendments which are put down with every single point covered so far as the Government might wish, and still we are refused. The noble Earl referred to the fact that there was a fresh howler. May I tell him that the batsman has remained the same. He has a Boycott attitude to all the bowling directed to him. It is a very straight bat, but the situation is getting awfully boring.
I suppose that here again I am allowed one last plea to the Minister. In the light of that eloquent submission that I have just made, is the Minister prepared at least to count this among those that he will consider in view of the remarks that have been made, and the fact that there is a 100 per cent. support from the Cross-Benches? Would he in those circumstances agree at least to reconsider?
Lord Swinfen: My Lords, may I put in a word here? Surely the question of what is, or is not, "reasonably practicable" is purely a charter for members of the legal profession to earn vast fees in various courts one after another arguing on that one point? What is practicable one day may not be practicable on another, and the situation is impossible. It is just a lawyer's charter.
The Earl of Caithness: My Lords, with the leave of the House, may I say that although the noble Lord opposite has 100 per cent. support, it looks as though I have got 1,000 per cent. support. Although the hat might be a little hit straight, I can say that of course I shall look at this again. I see exactly what the noble

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Lord is trying to achieve. He has been extremely reasonable. As I said, I think it poses many problems. Although one might accuse the civil servants of bringing up a difficulty to a proposed solution, that is exactly one of their functions, and I think they do it admirably. I am grateful for all their hard work. I am sure we all commend them. But it is precisely by their bringing that sort of thing to our attention that we save difficulties later on. But of course I shall look at this point.
Lord Mishcon: My Lords, in view of that very courteous response, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.45 p.m.
Lord Hutchinson of Lullington Lord Hutchinson of Lullington moved Amendment No. 9:
Page 8, line 38, after ("imposed") insert ("upon him").
The noble Lord said: My Lords, I must apologise for the delay. I had taken my sweater and was on the boundary. Nevertheless I shall have a go at trying to shift the noble Earl, Lord Boycott of Caithness.
Amendment No. 9 seeks to insert the words "upon him" in the sentence:
"a person who takes part in a public procession and knowingly fails to comply with a condition imposed under this section is guilty of an offence".
We seek to make it read:
"fails to comply with a condition imposed upon him under this section is guilty of an offence."
In Committee I moved an amendment to get rid of subsection (5) of this clause altogether on the basis that it would appear to criminalise many hundreds of people who may be taking part in a public procession and who would be involved in all turning right, as it were, when it was a condition of the march that they should turn left. I urged then that it was not a good idea to have an offence making many people criminals, either to prosecute them, which would be impossible, or not to prosecute them, which would bring the law into disrespect. However, that amendment was not accepted by the Committee and this is an attempt somewhat to limit the onus which is placed on the person taking part in a public procession.
Would it not be perfectly fair—I ask the Minister—that a person who takes part in a procession and knowingly fails to comply with the conditions should be prosecuted and indeed arrested, as he may be under this clause, only if it is shown that the condition imposed applied to him? If it were shown that the condition applied to him it would justify a prosecution. The Bill should not criminalise all those other people taking part in a procession. I suggest it would be a sensible amendment and I beg to move.
Lord Silkin of Dulwich: My Lords, I support the noble Lord in this amendment. I have been puzzled by the first part of this clause for some time. In certain
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circumstances it provides that a senior police officer may give directions,
"imposing on the persons organising or taking part in the procession such conditions as appear to him necessary".
What does that mean? Does it give him the right to give the directions to the persons organising or the persons taking part at his will? Or is he required to give the directions to both those who organise and those who take part? If it is the former and he gives directions to the organisers, are those directions binding upon those who take part whether or not they were aware of them? The form of that part of the clause seems to be highly confusing and certainly not such as to enable those who are affected by the direction—those who may organise or take part in the procession—to have clear knowledge of whether they are people who are required to act.
The noble Earl, in discussing an earlier amendment, said that very often the police officer will use a loudhailer to give the directions. If he does so, he may or may not (depending on the time in relation to the start of the procession and that sort of thing), physically give them to both the organisers and those who take part. He may do one or he may do the other. But the word "or" is the word which puzzles me in this part of the clause. It is in relation to that that the amendment moved by the noble Lord, Lord Hutchinson, comes into play.
He seeks to ensure that, whatever the word "or" may mean, the person who takes part in a public procession is not committing an offence unless it is clear that the condition has been imposed upon him and not simply imposed upon the organisers; or it may be imposed upon some other part of the procession. One can conceive of the possibility, or even probably the likelihood, of a procession where there is an interruption of some kind in the course of the procession and where the police may say that the first part of it, or the rear part of it, must take the next turning to the right in order to avoid the trouble.
Does that apply to the whole of the procession, to the members of the front part or the members of some other part of it which is not intended to be affected? It may not be clear whether the direction was given to them or not given to them. There seem to me—without making difficulties and certainly without falling into the trap that the noble Lord suggested when we discussed the last amendment of lawyers trying to make work for themselves—to be genuine difficulties here. I do not know whether the noble Earl has seriously studied them and can tell me what is the clear answer to them all.
On neither side of the House do we want to have a situation where there will be doubt and where those who organise the procession and the police and those who take part in it, and most of all the courts, are not certain of the outcome of the sequence of events. It is in that spirit that I support the noble Lord's amendment.
The Earl of Caithness: My Lords, the noble Lord's amendment would mean that any direction imposing a condition given by the police would be given in turn to each individual participant who was to be subject to the condition. If one stops and thinks about it, I am

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sure that all Members of your Lordships' House would agree that that is really impracticable. Conditions may be imposed in advance or on the spot. Where they are imposed in advance, clearly the police cannot be expected to know exactly who will participate in the march or assembly; so the condition imposed will have to be expressed in more general terms.
For example, no one participating in a march can go down X street. But again I can assure noble Lords opposite that there is protection for a person who is unaware that a condition applies to him. He can only commit an offence if he knowingly fails to comply with a direction. That is a matter for the prosecution to prove. Ignorance is an excuse on this occasion.
Again we are discussing something that is really very well known to the legal profession because Clause 12 in stating that directions may be given,
"imposing on the persons organising or taking part in the procession",
repeats Section 3 of the Public Order Act 1936. So far as I understand it, that has not given rise to any difficulties in the past 50 years, and I do not believe that the Bill as it stands will give rise to difficulties in the next 50 years—at least I hope it will not do so.
Lord Hutchinson of Lullington: My Lords, in view of the Minister's reply, I do not wish to press the amendment and I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 13 [Prohibiting public processions]:
Lord Silkin of Dulwich Lord Silkin of Dulwich moved Amendment No. 10:
Page 9, line 29, leave out ("class of").
The noble and learned Lord said: My Lords, I beg to move Amendment No. 10, and with the leave of the House perhaps we might discuss Amendment No. 11. This is an amendment to Clause 13 and it deals with the prohibition of public processions. The provisions of the clause as it stands are that, given the circumstances set out, the chief officer of police may apply to the council of the district concerned,
"for an order prohibiting for such period … as may be specified in the application the holding of all public processions (or of any class of public procession so specified)".
It is therefore for the chief officer of police to say: "I apply to you (the district council) for an order prohibiting within the period in question either all public processions or (as the clause now stands) any class of public procession."
The amendment would leave out the words "class of" and would therefore enable the chief officer of police to apply for the prohibition of either all public processions or of a single one or more than one public procession. It widens the power of application by the chief officer of police. Of course it is still for the district council to decide whether it considers it right to accede to the application with the consent of the Secretary of State. A modification may be approved by the Secretary of State. This amendment would widen the alternatives available to the council and accordingly, in the application, for the chief officer of police. However, it would be subject to the view of the council and the Secretary of State as to whether the prohibition would affect all processions, classes of
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processions or one or more procession. That width of flexibility is surely desirable.
We had some discussion of this during Committee stage but reference was then made to the difficulties that arose in a particular case. What was said on that occasion did not seem to me to rule out the desirability of a controlled flexibility giving the chief officer power to ask for something but giving the council the power to agree, modify or refuse it, subject to the consent of the Secretary of State. If it was felt that too much was being asked for or that it was unreasonable because it was too confined, that could then be controlled by the Secretary of State. We seek in this amendment to make the course of the Government in accepting the principle of what we propose easier than with the amendments which were moved at Committee stage. This is a very simple amendment involving moving two words and, in doing so, creating a flexibility which I should hope that both sides of the House would regard as desirable. I beg to move.
The Earl of Caithness: My Lords, from our earlier discussions your Lordships are aware that the police are concerned that their impartiality should be manifestly apparent in all matters connected with public order. The Metropolitan Police are also concerned that organisers might change their names or the titles of processions to avoid a ban. I think this important point is one that perhaps has not been given due weight which I feel it ought to have been given be noble Lords opposite.
Once again we have tested the proposed amendment against situations where it might have been useful, but we have found it difficult to find any recent examples where the power to ban a single march would have helped and we have found some where it would have been extremely difficult to apply. I gave an example of this during our earlier debate which I shall not repeat, for the sake of convenience, at this time. As I explained then, we doubt whether the power to ban a single march would ever be used in situations of political rivalry.
The only other circumstances where it 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 marchers. However, my right honourable friend the Home Secretary made it 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 type of procession included, to ensure wherever possible that innocent third-party marchers are not caught.
Some are concerned that the innocent may suffer with the guilty. We recognise this and it is unfortunate, but I believe it is unavoidable, given that we are not persuaded that a power to ban a single march or a class of march would be a preferable alternative. As I have explained, we do not wish to expose the police to accusations of bias. Nor do we want the situation to arise where organisers evade the ban on their march by forming another march or joining a different one. We are not persuaded that it would be an improvement to accept the amendments.
Lord Silkin of Dulwich: My Lords, in view of the time and for no other reason, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 11 not moved.]
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 12:
Page 10, line 4, at end insert—
(" that is, in accordance with subsections (1) and (2) or subsection (4), as the case may be.
(5A) Any order under this section shall, if not made in writing, be recorded in writing as soon as practicable after being made.")
The noble and learned Lord said: My Lords, a victory at last! It is a victory by prearrangement, in correspondence with the Minister before we arrived today. I can see the noble Lord, Lord Boyd-Carpenter, looking very worried. A plot is afoot! What has happened is that, persuaded by what was said on the last occasion, the noble Earl suggested to me the draft which now appears on the Marshalled List over the names of myself, my noble friend Lord Mishcon and my noble and learned friend Lord Silkin of Dulwich. It is in the very terms that the Minister was good enough to suggest as a suitable compromise for dealing with the situation where, up to that point and up to the correspondence, he had taken a resolute position of refusal. On the receipt of the billet-doux I was glad to concede and now the amendment which is before your Lordships has the advanced commitment of the noble Earl. I would be surprised if he were now to seek to withdraw it.
The Earl of Caithness: My Lords, once again the Government have shown how reasonable they are. After many hours of toiling and burning the midnight oil in order to seek solutions and compromises to satisfy the Opposition. I am happy to accept this amendment.
On Question, amendment agreed to.
Clause 14 [Imposing conditions on public assemblies]:
[Amendments Nos. 13 and 14 not moved.]
Lord Mishcon Lord Mishcon had given notice of his intention to move Amendment No. 15:
Page 11, line 9, at end insert ("and a direction given by virtue of subsection (2)(a) shall be given or confirmed in writing unless it is not reasonably practicable so to do.")
The noble Lord said: My Lords, I take it for granted that the noble Earl in his kindness will reconsider this matter in the same way that he indicated he would look at the other matter.
[Amendment No. 15 not moved.]
[Amendment No. 16 not moved.]
Lord Beaverbrook: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at seven minutes past ten o'clock.