HL Deb 21 October 1986 vol 481 cc237-59

Consideration of amendments on Report resumed.

Clause 5 [Harassment, alarm or distress]:

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 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 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 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 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.

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 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 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 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 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 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.

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 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 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 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 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 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 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 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 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 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 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 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 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 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 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.