Public Order Bill

HL Deb 23 October 1986 vol 481 cc459-500

4.50 p.m.

Consideration of amendments on Report resumed.

Clause 16 [Interpretation]:

The Earl of Caithness moved Amendment No. 18: Page 12, line 14, after ("which") insert ("at the material time"). The noble Lord said: My Lords, I beg to move Amendment No. 18. In response to an amendment moved by the noble Lord, Lord Hutchinson of Lullington, I undertook to return on Report with an amendment to reintroduce the phrase "at the material time" into the definition of a public place. That is what this amendment does, and I beg to move.

Lord Mayhew

My Lords, I should like to say to the noble Earl how grateful I am to him for the course that he is proposing to take. Returning to the cricket analogy, I personally am pleased because my average was infinity until this afternoon and now I think that it is one for twenty, and at this level that is quite a respectable average for a modest seam bowler. I am most grateful to him.

On Question, amendment agreed to.

Lord Silkin of Dulwich moved Amendment No. 19: Page 12, line 17, after second ("procession") insert ("of 20 or more persons"). The noble and learned Lord said: My Lords, I beg to move Amendment No. 19. This amendment concerns the limits of what is a procession for the purposes of the powers under the Bill. In Committee we discussed various amendments, one of which came from this side of the Chamber, suggesting that a procession should require 100 people, and there was a further amendment from the Cross-Benches which I think suggested 50 people. We were not particularly concerned which of the two numbers should be adopted but we felt that there ought to be some limit, the reason being that otherwise there appears to be no definition of a procession. A procession could even consist of two or three people, and certainly half a dozen or so, who are walking together. It cannot be and certainly was not the intention of the Government in promulgating this legislation that in cases of that kind those concerned should have to notify the police or that the police should be worried with such matters.

In Committee no conclusion was reached about that matter and on giving further thought to it at this stage we observe that under Clause 16 of the Bill there is a specific number mentioned in relation to a public assembly. It says that: 'public assembly' means an assembly of 20 or more persons in a public place". It is extremely difficult to see why there should be a distinction in this regard between a public assembly and a public procession, which is equally something which takes place in a public place, and there seems to be very little reason, if any, why there should be any distinction so far as numbers are concerned. Twenty is at least a reasonably convenient number and if the intention is to walk from A to B with less than 20 people, that is unlikely to produce the kind of difficulties that the clause governing processions is designed to remove. For those reasons I suggest that this amendment is a very reasonable one and that the Government should regard it as helpful. I beg to move.

Lord Monson

My Lords, it seems to me that the noble and learned Lord, Lord Silkin, and his colleagues have gone to great lengths to produce a compromise which goes as far as possible in the direction that the Government would wish and I hope that the Minister will be able to accept this amendment.

The Earl of Caithness

My Lords, the noble and learned Lord, Lord Silkin of Dulwich, has explained that the purpose of this amendment is to improve upon the definition of "public procession" currently found in Clause 16. He argues that the definition there employed takes us no further forward and that it should be brought into line with the definition of a public assembly; namely, that a public procession must be one consisting of 20 or more persons.

Of course there are a number of reasons why it is quite right that there should be a distinction between the definitions of processions and assemblies. While this Bill for the first time gives the police powers in limited circumstances to impose conditions on assemblies, they have had the power to impose conditions on marches for 50 years. In exercising their powers to impose conditions on marches or to seek or make banning orders, all of which powers they use very rarely, the police employ the definition of "public procession" that appears in the Public Order Act 1936, which says that: 'public procession' means a procession in a public place". This of course is the definition that appears in this Bill. In other words, the definition that we have in the Bill is one that has been used for 50 years and one which has caused no difficulties in practice. I see no need to complicate that definition in the way proposed by this amendment. Indeed, it is a definition that has served us well for 50 years. It has caused no difficulties for the police, for march organisers or for the courts, and I do not believe, unless I misheard the noble and learned Lord, that he has presented a case for complicating matters.

Lord Silkin of Dulwich

My Lords, I must say that I am disappointed. To rely on history when promulgating legislation which is designed to bring the law up to date in various fields and presumably to assimilate one part of the law into another in the process, seems to me to be an unfortunate way of looking at a matter of this kind. However, it is a relatively small matter and we shall certainly not put it to the test.

Amendment, by leave, withdrawn.

Clause 17 [Meaning of "racial hatred"]:

5 p.m.

Lord Elwyn-Jones moved Amendment No. 19A: Page 12, line 23, at end insert— ("(2) For the purposes of subsection (1) above, gipsies are a group of persons defined by reference to race"). The noble and learned Lord said: My Lords, Part III of the Bill, with which we are again concerned, deals with racial hatred and the steps that ought to be taken to suppress or punish it. One of the groups which I submit comes clearly within the definition of an ethnic group consists of the Romany gypsies. According to the definition of racial hatred in Clause 17 of the Bill: '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 Commission for Racial Equality, which has written to many of us on this matter, is adamantly of the view that as yet under our law gypsies properly so called and defined are not protected by the law. It says that at present over one-third of the complaints that the CRE receives about hate literature relates to gypsies. They are among the most abused and insulted people in this country. It says that the language is often cruder and more offensive than the literature relating to Blacks or Jews which has been or is being prosecuted.

As I ventured to say in the debate that we had on this matter, I cannot forget the Nuremburg trials when the extermination of the European gypsies, one of the most horrific features of genocide, was dealt with. Nothing like that has happened or is liable to happen here. Nevertheless, at present no protection is given to gypsies—and I repeat the words "properly so called" in our law—unless they are to be covered by the definition in Clause 17; namely, that they are clearly: a group of persons … of ethnic or national origins". The dictionary definitions are varied. In the Oxford English Dictionary, "gypsy" is described as a corruption of the word "Egyptian". A gypsy is described as: a member of a wandering race (by themselves called Romany), of Hindu origin". According to the Oxford English Dictionary, gypsies first appeared in England at about the beginning of the 16th century. They were believed to have come from Egypt. The Collins dictionary says that gypsies migrated from North-West India from about the 9th century onwards, and: Their language, Romany, is a corrupted version of Hindi". I quoted at an earlier stage the learned doctor, Dr. T. A. Acton, who is an expert on this subject. He accepted the proposition that gypsies and their distinct languages come from a common root. They have their own Romany language. According to Dr. Acton, their long shared history in the British Isles may be traced back to the 13th century. They first appeared in legislation in an Act of King Henry VIII. Their common cultural tradition and customs deriving from their nomadic lifestyle are common knowledge.

I do not wish to go over the ground that we covered before. Your Lordships will remember that I submitted at an earlier stage the principle of who and what constitutes an ethnic group. It was considered judicially by the House in 1983 in the case of Mandla v. Dowell Lee. The analysis of that principle brings in Romany gypsies in our community.

I shall not cite it all, but the leading judgment of the noble and learned Lord, Lord Fraser—incidentally, it was a unanimous decision of your Lordships' House—set aside the decision of the noble and learned Lord, Lord Denning, and the Court of Appeal. That appeal, alas, created riotous scenes in different parts of the country. It is a pity that the noble and learned Lord, Lord Denning, is not here, because perhaps I should not be saying this behind his back. However, it cannot be helped; it is the case.

I call in aid what was said by the noble and learned Lord, Lord Roskill, who was one of the judges, but not to derogate any observations made by the noble and learned Lord, Lord Denning, whose contributions to the law of course are famous and outstanding. The noble and learned Lord, Lord Roskill, said: The speech of my noble and learned friend Lord Fraser was drafted with enormous care and thought because so much difficulty has 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 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."

Lord Roskill continued: We hoped … that we had achieved a decision which was going to work. He went on to say: it cannot be right to leave the matter as it stands at the moment in the Bill. He continued: 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?". He added the cautionary words with which I agree: To leave it as it is, I respectfully suggest, is a source of danger for the future".—[Official Report, 21/10/86; col. 172.] I feel sure that the noble Earl has given serious and helpful thought to the matter since then. I am content to give way to him now in the hope that he may have succeeded in finding some solution to this sad and difficult problem. I beg to move.

Lord Campbell of Alloway

My Lords, I sympathise with the sentiments expressed by the noble and learned Lord and share his noble sentiments without hint of qualification, but surely a problem of definition is involved here. May I ask for clarification, because I find this point difficult? What is a gypsy "properly so called" as distinct from a group of ethnic origin? If it is only a Romany gypsy, is there a gypsy other than a Romany gypsy? If it is a Romany gypsy, is he not within a group of ethnic origin? If he is, what is the need for a further definition? I do not ask those questions in a facile fashion but because we are seeking to incorporate something in statute, the spirit of which is wholly commendable. With the greatest respect to your Lordships, how do we do it, and does this amendment achieve it?

Lord Somers

My Lords, I should like to support the amendment but I agree with the noble Lord, Lord Campbell of Alloway, that there is a difficulty over the legal definition. There is no difficulty in respect of one's conscience. The true Romany gypsy is distinguishable at once, partly by feature, certainly by language and also by way of life. How are we legally to distinguish Romany gypsies from the much more numerous English tinker gypsies who are becoming rather a nuisance in some of our built-up areas? I wonder whether there is some way in which we can provide a legal definition that would be absolutely valid and workable.

The Earl of Caithness

My Lords, there is no difference between us here. We are all concerned to see that written material, words and behaviour which stir up racial hatred against gypsies, who are of a distinct ethnic group, should be penalised in the same way as they would be if they stirred up hatred against any other ethnic or racial group.

We believe that the clause as drafted achieves that aim. I am grateful to the noble and learned Lord for giving me this opportunity to make that clear. In the case of Mandla v. Dowell Lee, this House in its judicial capacity considered what an ethnic group was. In our debate on this point in Committee, the noble and learned Lord, Lord Elwyn-Jones, read out the relevant part of the speech of the noble and learned Lord, Lord Fraser, in that case. It can be found at col. 168 of Hansard. I do not think that I need detain your Lordships by reading it out again.

The Government are in no doubt that some sections of the gypsy community meet the criteria set out by the noble and learned Lord, Lord Fraser, and are a distinct ethnic group. They fall therefore within the definition of racial group in Clause 17 as it is presently drafted and the offences in Part III of the Bill bite when racial hatred is stirred up against them. There would be dangers, however, in going further and singling out these gypsies in the clause to make it clear that they were covered.

As I understand it, the concern that this amendment seeks to meet is that those responsible for instituting proceedings under this Bill take the view that gypsies cannot ever be a distinct ethnic group and that they cannot therefore benefit from the protection of Part III. The noble and learned Lord has invited me to comment, and I am happy to put on record that this is not the case. We are not, of course, concerned with those who have merely adopted the itinerant way of life. We are concerned with the genuine gypsy as, indeed, the noble and learned Lord, Lord Elwyn-Jones, is. I wrote down the noble and learned Lord's words when he said "gypsies—the Romany gypsies". The noble and learned Lord was trying to cover the genuine gypsy. It is recognised that they may be an ethnic group; and where there is evidence that activity of the kinds penalised by Part III has been directed against them, my right honourable friend the Attorney-General has authorised me to say that he will consider instituting proceedings in exactly the same way that he would in respect of any other ethnic group. I hope that, with this explanation and the assurance that I have given, the noble and learned Lord will feel able to withdraw the amendment.

Lord Elwyn-Jones

My Lords, I am most grateful to the noble Earl for the important statement that he has made. I feel that the motivation and purpose of my putting down the original amendment is now reasonably fulfilled. It is not an easy field.

The gypsy community are proud of their language. I ventured to mention on the last occasion that this matter was debated my surprise upon hearing two ladies in a tube train talking in a language that I did not understand. To my question, "What language are you speaking, please?" they said that it was their own gypsy Romany language. It is therefore very important to have it on the record that they should be recognised as an ethnic group.

I welcome the fact that there have been conversations with the Attorney-General. Of course, his dicta cannot bind the courts. But the assurance that this matter has been seriously considered and that it will be dealt with in the manner described by the Minister means that I am content in these circumstances not to press the amendment. I rely, for my purposes, on the words "ethnic group" and the conception that Romany gypsies belong to it. I believe that this represents also the view of the House. It is a good message to come from the House at a time of race hatred. I repeat, I hope without too much emotion, my memories of Nuremberg and the thousands of murdered gypsies on the Continent. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.15 p.m.

Clause 18 [Use of words or behaviour or display of written material]:

Lord Monson moved Amendment No. 19B: Page 12, line 34, leave out ("by a person inside a dwelling") and insert ("in a private place where not more than 25 persons are present"). The noble Lord said: My Lords, in moving this amendment, I should like to speak also to Amendment No. 19C, which is consequential. These are modified versions of amendments that I moved two days ago in Committee. They have been modified to meet the reservations expressed by the noble Earl, Lord Caithness, on behalf of the Government. The noble Earl was worried that without some numerical limit the passionate feelings of a large crowd could be stirred up by a skilful orator even though the meeting in question was to take place wholly in private, with admission by ticket only. The noble Earl may not have used those words, but that is, I think, what he was worried about.

It is essential to recognise three aspects of Part III of the Bill as it stands. The definition of dwelling in Clause 29 is extremely tightly drawn. It appears to exclude gardens, empty garages, tool sheds, a caravan, or a room in a dwelling-house used as an office rather than for living purposes. It is also an offence if the words in question are uttered when only two or three people are present. If the Bill had been enacted some years ago at the time of the Guildford and Birmingham pub bombings—both have been much in the news again recently—and a man mowing his garden in the presence of a neighbour had expressed the same sort of spontaneous and angry but transient sentiments that were being expressed in 10,000 public bars and saloon bars throughout the land on the lines of, "I'd like to get my hands on those blankety-blank Irish; the whole lot of them should be strung up", he could have been prosecuted under this Bill as it stands and sent to prison if convicted. That would seem to most people, I submit, utterly wrong.

Another aspect of Part III is that in this Bill, as in all Acts dealing with racial matters, race embraces nationality. Since there are at least a few representatives of almost every nationality in the world living in this country, from Armenians to Venezuelans, any insult directed against any racial or cultural group, or any nationality anywhere in the world, could be caught. At the Committee stage, I referred to the probability of Tamils and Sinhalese, Greek Cypriots and Turkish Cypriots, Arabs and Israelis—and one could even include Flemings and Walloons—insulting and abusing their rivals, or enemies, whichever way you like to put it, wholly in a private place and with none of the opposing group present. Yet they would still become liable for prosecution as the Bill stands. The noble Lord may ask how these insults and this abuse will become known to the police if all the participants at gatherings are of a like mind. The answer lies in such phenomena as infiltrators, informers, agents provocateurs, "bugs" and tape recorders.

I invite your Lordships to consider the case of a private gathering of survivors of Nazi concentration camps when some of those present start cursing the entire German race, or a renunion, in a private room above a pub, of ex-prisoners of war of the Japanese—those who survived the Burma railway—some of whom let out bitter invective against all Japanese. I am not arguing that such sentiments are desirable or that they should be encouraged. Far from it. I am merely saying that they are natural. Is it really right that people should be sent to prison for two years for expressing such emotions, however strongly, to a small group of fellow sufferers in a private place? I submit that the very idea is intolerable. I beg to move.

The Earl of Caithness

My Lords, 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 even if this would only apply to meetings of a maximum of 25 persons. 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 minds on matters concerning members of ethnic minorities, they are, I think, unlikely to be setting out to stir up racial hatred in a way which threatens public order, and any disagreement which arises at the time is likely to be on a small scale. However, when it comes to other private places, it is much more likely that people will be present who have no link of friendship between them and that there may be an intention to stir up racial hatred on a scale which does threaten public order.

The exemption in Clause 18 is about balance. It is about the balance to be struck between the freedom of expression on the one hand and the need to protect against threats to public order on the other. I hope that the noble Lord will agree that in Clause 18 we have struck a reasonable balance between protecting freedoms of expression and protecting against people who seek to stir up racial hatred in a way which threatens the peace and stability of society. It is very similar to the discussion we had at Committee two days ago on an amendment moved by the noble Lords opposite. As I said then, it is a matter of balance. None of us likes incitement to racial hatred. We believe that we have the balance right.

Lord Monson

My Lords, I do not think for one moment that the Government have the balance right at all. The Minister denies there are any links or friendships within the sort of groups I have mentioned. Indeed, there are links in almost every case I cited, possibly friendship as well, although that is perhaps neither here nor there. They are linked together because they have shared a common experience or are of a like mind. If the place where they assemble is by definition a private place, there are not likely to be any outsiders around to become incited, stirred up, or whatever. I believe that the way in which the clause is drafted at the moment is illiberal in the true sense of the word; I do not refer to the debased Americanised version of it. I cannot help but think that something has rattled the Government. I cannot believe that as recently as five years ago this clause would have gone through as it stands; something has happened—whether it be the Honeyford case, or whatever—to make them nervous. I wish that the Government would heed the words of Voltaire about disliking what people say, but defending to the death their right to say it.

Other noble Lords from various quarters of the House have, in private, expressed their broad support for my amendments. Therefore, I do not intend to withdraw them.

On Question, amendment negatived.

[Amendment No. 19C not moved.]

Lord Mishcon moved Amendment No. 19D: 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, and display of written material likely to stir up racial hatred as soon as reasonably practicable after receiving notice of the existence of such display.") The noble Lord said: My Lords, when we were dealing with the matter of processions and marches, it could have been said that there was some political division in the arguments. Perhaps one side was concentrating more than the other on the worth, value, and the principle of the right to demonstrate and to march. I should like to think that the views of all sides in Parliament do not differ when it comes to the question of trying to deal with the sorry evil of our times—that of racial hatred and racial incitement. It is in that spirit that I should like to address your Lordships on this amendment.

It is a question of judgment. I appreciate at once that the judgment could be against me, but that would not be on political grounds. If your Lordships feel, after hearing the argument, that the judgment is in my favour, I hope that that view will be expressed in all parts of the House.

At the recommitment stage I ventured to move an amendment almost in these terms, (I shall indicate in a moment where the terms differ) which I reproduced from an amendment moved in another place at Third Reading. I then pointed out that that amendment was moved with some zest, possibly far greater than that which I can present to your Lordships by a Member of the Government side, the very learned Member, Mr. Ivan Lawrence. When it was not accepted by the Government—there was no vote on it—he clearly expressed the hope that the matter would receive greater attention and sympathy in your Lordships' House. This is an amendment which deals with the duty of a local authority to remove racially offensive graffiti "as soon as is practicable", after receiving notice of the display of that graffiti.

I think that your Lordships will agree with me, as the noble Earl agreed at the recommitment stage, that this is undoubtedly an evil and that it undoubtedly causes a great deal of distress to those who suffer from that graffiti. It also has a most unpleasant habit of producing some sort of racial hatred and racial incitement. Without endeavouring in any way to appeal to your Lordships' emotions more than I should do, I pictured a black child going to school and seeing, in the presence of white friends, white fellow pupils, the sort of graffiti that we know stains certain walls in our metropolis, and in other inner city areas, such as "Out with the Wogs", or whatever the distasteful comment might be.

One would have thought that the Government would agree that, unless there were very strong arguments to the contrary, we should be failing in our duty if, under Clause 18, dealing with these racial incitement provisions, we made it an offence to put the graffiti there, thereby giving the opportunity for a prosecution and conviction, and then did nothing about the removal of the graffiti which is quite obviously the continuing offence. Therefore, one wonders what it was in the other place, and what it is now, that the Government have against this amendment.

I think I can fairly summarise the Government's view in the following way—and I know the noble Earl with his customary courtesy will tell me if I have left anything out, or put anything in that I should not have done. The first rather surprising answer was that one does not want to cast any more duties on local authorities. If the noble Earl, and indeed the Minister in another place, had not made the point in another part of their respective speeches, that may have sounded even in logic, if not in great strength of reasoning, that all decent local authorities did this anyway. If that is so, I can be forgiven if I make the rather ordinary point that in those circumstances it is hardly casting an extra duty on the good authorities. What it does is to cast a duty on bad authorities. One would have thought it was an additional duty which, if they did not carry it out, ought to be imposed upon them.

The second argument was that possibly the matter was a duty in any event because of a provision in the Race Relations Act which was brought into the argument, somewhat vaguely. Section 71 of the Race Relations Act has the duty to make good relations between people of different racial groups, that being a duty imposed on a local authority. It was thought—somewhat indirectly your Lordships might think—that it therefore casts a duty on the local authority, in order that it carries out its job of looking after good race relations, that it will at once rush round, as soon as practicable, and remove the offensive graffiti. I say with a sense of responsibility that I should have thought a prosecution upon those grounds, of a local authority relying on that section, would be a matter of great difficulty, if not impossibility. If we want to say something in a statute, is it not our duty to say it clearly and not go through vague verbal arguments to try to reach an end which can be very frankly dealt with?

The Government's third argument was that it was not very practicable, and that the means of enforcement might be rather difficult. That was because in my original amendment I included a time-limit within which this removal ought to take place, and my time-limit was 14 days. Where it may not be practicable is where it may be very difficult for a local authority to remove some graffiti within 14 days, either because it is short of labour at the time or because the painting, which was done with various instruments, might be so deep that it is impossible to remove it within 14 days.

Therefore, in the face of that argument, which had a little strength attached to it, I have put down an amendment which includes the words "as soon as reasonably practicable". I trust that none of your Lordships will throw back at me the remark that was made when those words were used in another context: that that was a lawyer's paradise. It is not a lawyer's paradise. "As soon as is reasonably practicable" means what it says and there would be no difficulty in construing it.

I am not thinking of prosecution of local authorities; I very much doubt whether any such prosecution would ever find its way into our courts. Together with my noble friends, on a completely non-political issue I want to say loud and clear from this place that we have sympathy with those in our midst, our fellow citizens, who have to put up with this racially offensive graffiti, and we want it to be laid down quite clearly that it is the local authority's job to remove it: as soon as is reasonably practicable".

I would remind the noble Earl—I hope not with a quavering voice—that at Question Time in your Lordships' House earlier this afternoon one of his noble colleagues was heard to say that he did not disagree with something, and then argued that those words meant nothing. In those circumstances, I invite the noble Earl to use precisely the same words now and to say that he does not disagree with this amendment. According to his noble colleague, it will mean nothing; but to the rest of your Lordships it will mean an agreement to a very sensible amendment. I beg to move.

5.30 p.m.

Lord Campbell of Alloway

My Lords, the logic is wholly unassailable; but are there not two short points to be made here? First, is there any provision in this Bill which imposes any duty upon a local authority? I think not. Secondly, as the noble Lord, Lord Mishcon, took the point straight away, the amendment imposes a statutory duty devoid of sanction, and that is a somewhat unusual animal. I wish to make no other points to your Lordships.

Lord Mishcon

My Lords, with your Lordships' permission—as I can only address the House once, unless I am replying to the debate—perhaps I may point out that there is the civil remedy of a mandatory injunction.

Lord Foot

My Lords, I should like to add just one point and argument to those that have been advanced by the noble Lord, Lord Mishcon. We have all seen this squalid graffiti in all parts of London, particularly in the part where I reside during the week, which is south of the river in the neighbourhood of Kennington and Brixton, where we are plagued with this evil. One virtue of the proposal which the noble Lord makes is that if this amendment is carried, we should then be in the happy position of being able to report offensive material of this kind to the local authority. At present, I do not think that the ordinary citizen knows what he can do to enable the removal of this material from walls, and so on.

Therefore, it would be very advantageous to all people who find this sort of thing thoroughly disagreeable—and I am sure that that is a sentiment which will be shared on all sides of the House—if they know how they might get the matter remedied.

The Earl of Caithness

My Lords, as the noble Lord, Lord Mishcon, has pointed out, this amendment is similar in purpose to one which we considered in Committee. As I said on that occasion, I appreciate the noble Lorld's concern that offensive graffiti, especially racially offensive graffiti, should be removed. Doing so seems at the least a sensible element in a housing management policy and we would encourage local authorities to maintain the environment of their areas in this way whenever possible. The need to do so is all the more pressing where members of ethnic minority groups are being daily offended by racist graffiti. The Government do not generally, however, believe it right to impose extra statutory duties on local authorities unless they are absolutely necessary, and I would repeat our argument which the noble Lord, Lord Mishcon, suitably encapsulated at an earlier stage. We do not believe that it would be right to impose a duty of this kind in this context. This amendment places a duty on local authorities to remove graffiti and posters and other displays which are likely to stir up racial hatred from highways for which they are responsible and from any curtilage adjacent thereto.

Leaving aside the question of how often graffiti and posters appear in the road, the amendment would give local authorities a duty to clean up certain property adjacent to the highway over which in very many instances they have or should have no control: for example, walls of gardens—perhaps the very walls to which the noble Lord, Lord Mishcon, referred. I do not think that this is right. Even in the restricted circumstances in which I believe the amendment applies, there seems to me to be an important point of principle here.

The noble Lord has said—and I wholeheartedly agree with him—that enforcement of this duty on a local authority would be extremely difficult. Recognising that, though, he suggests that simply the fact that the duty exists will be important because of the declaratory impact it will have. I am not convinced that it would be right for us to say to local authorities on the one hand, "Here is something so important that we impose on you a duty to do it"; but on the other hand, the duty is virtually unenforceable. That I think is a point which was mentioned by my noble friend Lord Campbell of Alloway. As regards the enforcement of the duty, I wonder to what extent the High Court would order the local authority to comply with its duty. Even if an order of mandamus or application for judicial review was available—and there have been cases where the court has ruled that mandamus is not available against a local authority—I very much doubt whether, say, an elector would have a sufficient locus standi to seek enforcement.

Nor is it likely that the duty could be enforceable in an action for tort of breach of statutory duty. What are members of racial groups offended by these graffiti to make of that? The noble Lord, Lord Mishcon, said that he doubts whether any prosecutions will take place; yet, if this amendment is accepted, they will have a statutory duty. Whatever may be the noble Lord's intention, it must be the case that the most concerned local authorities—those, one might suggest, which already give priority to this—would do all in their power to carry out their duty. We must recognise that in the most important cases we would have imposed virtually an endless task on them. In those areas where this kind of behaviour takes place, constantly cleared sites may well inspire graffiti writers to renewed efforts. That means that the offence given to members of racial groups vilified will also be constantly renewed.

There is yet a further difficulty with the amendment. It would require local authorities to remove written material which is likely to stir up racial hatred. However, who is to make the judgment that particular material does or does not meet that test? In the case of the offences under Part III, the judgment will be for the court to make in the particular circumstances involved. However, noble Lords opposite accept that attempts to enforce this duty before the courts will be rare in the extreme. Someone in the local authority itself will have to make the judgment. Who knows what scope extremist groups will find to make mischief by seeking to oblige local authorities to remove posters about, for example, activities of the ethnic minority communities?

We have all seen the argument that the mere presence of black people incites racial hatred against them among some of the majority community. Nobody will wish to minimise the upset that offensive graffiti can cause to members of the ethnic minority, but I think that here, as always in Part III of the Bill, we are concerned with public order—not with rudeness or offensiveness—and with balance. It is a clear message from all sides of this House that we condemn racial graffiti, and I do not think that this amendment would solve the problem.

Lord Somers

My Lords, I find the noble Earl's reply rather surprising. He begins by saying that it is necessary to remove offensive graffiti and goes on to say that he does not wish to impose anything on local government that is not strictly speaking necessary. I thought he had just said that this was necessary.

Why are we so hesitant to impose any extra duties on local government? Some authorities are extremely conscientious, but others are not too anxious to carry out measures for the welfare of their inhabitants. For instance, we recently imposed a duty on them to keep their rates down. That was most certainly necessary, but if we can do that surely we can impose a much lesser imposition by telling them to remove offensive graffiti. After all, we have just seen in this Bill that it is an offence to display offensive writing outside one's house. It is still more offensive to display it in large letters on the wall of a building. I cannot see where the noble Earl's hesitation comes from.

Lord Hutchinson of Lullington

My Lords, may I ask the noble Earl to give this matter more consideration? Surely everybody agrees that you have here a serious mischief. There is another aspect to this serious mischief. Not only is the offence constant and continuous; it is far worse than verbal abuse. Verbal abuse happens and it is over. This is abuse which continues day after day.

There is a strong crime prevention element in this. If there is this graffiti of a violent kind in a public place where members of an ethnic minority pass daily, it is a tremendous incentive to retaliation. It continues to be an incentive to retaliate, and it gives rise to people getting together and eventually retaliating by violence. There is a crime prevention point here of the greatest importance. I ask the noble Earl to give further thought to this.

Obligations and duties are constantly laid on local authorities in all sorts of Acts of Parliament. The Minister says that this is a matter for the courts and that a member of a local authority cannot make up his own mind whether it is material as described in this amendment. Surely we are all the more anxious to prevent offences and crimes before they ever get to court. It is a negative approach to say that things must go on, people must take proceedings and the courts will have to decide whether this filth on walls of a highly inflamatory nature falls within the terms of the Bill. I ask the noble Earl to take the matter away and give it further thought.

Lord Elystan-Morgan

My Lords, I join other noble Lords in making one last appeal to the Minister to reconsider his position. As the noble Lord, Lord Hutchinson of Lullington, said, it is a matter of crime prevention. Local authorities have had imposed upon them for about 150 years the obligation of removing or abating nuisances in certain circumstances. The amendment is therefore well within that well-established tradition.

The Minister draws a distinction between public order and the sensibilities of a racial group. I do not think that in practice that distinction can be drawn, for where there is this abuse, as so many Members have pointed out, there is bound to be a feeling of outrage, frustration and revulsion. That is the dry tinder for public disorder.

5.45 p.m.

Baroness Phillips

My Lords, I should like to appeal to the Minister not always to regard this matter in a rather narrow sense. His brief referred constantly to "ethnic minorities". As I understand this Bill, and particuarly this clause, we are referring to racial hatred towards any colour, race or nationality. This is apart from ethnic minorities. It is unfortunate if we emphasise all the time that we are talking about ethnic minorities.

My borough is also full of graffiti—probably not quite as much as on the other side of the river—and a lot of it is aimed at the local population. I do not know who puts it there, but it is not aimed at ethnic minorities. It is equally offensive and equally it should be taken down. When I was chairman of an amenity trust in the borough one of our great aims was to try to blot out this sort of thing on walls. Unfortunately one found so often that the walls belonged to British Rail or somebody else who did not seem to want you to do anything to their walls. However, that was our intention, and I think it is something that local authorities would cheerfully take on board. But it would be helpful if the Minister did not always refer to the one group, because there are as many insults put on walls about the people who are the native inhabitants of this island.

The Earl of Caithness

My Lords, with the leave of the House, I shall reply to some of the additional points. I take the noble Baroness's point. It was perhaps because of shortness of time that I restricted my reply. The definition in Clause 17 is the one that we always bear in mind. With regard to the noble Lords, Lord Somers, Lord Hutchinson and Lord Elystan-Morgan, of course we put obligations and duties on local authorities and we also encourage local authorities. We encourage them to do some things which are not statutorily laid out. The removal of offensive graffiti is one of the things that we have encouraged them to do as soon as practicable.

The noble Lord, Lord Somers, picked up two points in the words that I said. I hope he will look at the Official Report and see the difficulties that I enunciated on accepting this amendment and particularly the enforceability thereof. I refer him to an argument that I used in Committee but not today, not because it is not valid but in order to try not to delay your Lordships too much. It is the duty under Section 71 of the Race Relations Act that the local authorities have.

I have been asked on behalf of the Government to take this amendment away and have another look at it. At this stage of the proceedings I would not wish to do that. I have taken it from Committee stage, as the noble Lord, Lord Mishcon, knows. We have had a serious look at it; I have had a meeting with the noble Lord, Lord Mishcon, on it. I think it would be misleading of me to say that I can do any better or come up with different arguments. In view of the fact that this is Report stage, I think that we ought to put the matter to the test now, if that is the wish of the noble Lord, Lord Mishcon.

Lord Mishcon

My Lords, the noble Earl has been as frank with the House as the House has become accustomed to expect from him, and we appreciate it.

I know that the last thing in the world he would want to do is to mislead the House or one of his colleagues. It is a straight question of judgment, as I put it before. It is a question of judgment when you are dealing with a Bill—if I may say so respectfully to the noble Lord, Lord Campbell of Alloway—which includes the words "to control racial hatred". This is one of the things that we are trying to do in this amendment, trying to control it.

I told your Lordships that I am not very worried about the problems of enforcement. I have said that it could be done through the civil courts; I doubt whether there would ever be a prosecution. I have said that. The Government say, "Yes, any decent authority would do it. We want to encourage them". Shall we just have a little prod for those who are not quite so efficient and not quite so kindly? Is that not our job in dealing with Part III of this Bill which aims at reducing racial incitement and the difficulties that some ethnic groups suffer in this country?

It has been said that graffiti is possibly a continuing form of racial incitement and in those circumstances do we not want to encourage its removal? There is not an atom of politics in this. I know the House is united in trying to deal with these problems. I hope that your Lordships will feel that this, of all matters, is one where individual judgment ought to play its part and only individual judgment when we walk into the Division Lobbies.

5.52 p.m.

On Question, Whether the said amendment (No. 19D) shall be agreed to.

Their Lordships divided: Contents, 43; Not-Contents, 93.

DIVISION NO. 2
CONTENTS
Aylestone, L.	Nicol, B.
Banks, L.	Phillips, B.
Birk, B.	Ponsonby of Shulbrede, L.
Bottomley, L.	[Teller.]
Brockway, L.	Prys-Davies, L.
David, B.	Seear, B.
Dean of Beswick, L.	Shackleton, L.
Diamond, L.	Silkin of Dulwich, L.
Elwyn-Jones, L.	Somers, L.
Elystan-Morgan, L.	Stallard, L.
Fitt, L.	Stedman, B.
Foot, L.	Stoddart of Swindon, L.
Graham of Edmonton, L.	[Teller.]
Hutchinson of Lullington, L.	Strabolgi, L.
Jenkins of Putney, L.	Tordoff, L.
Listowel, E.	Turner of Camden, B.
Llewelyn-Davies of Hastoe, B.	Wallace of Coslany, L.
Lloyd of Hampstead, L.	Wells-Pestell, L.
Longford, E.	White, B.
Mais, L.	Wigoder, L.
Mishcon, L.	Williams of Elvel, L.
Molloy, L.	Wilson of Rievaulx, L.
Mountevans, L.
NOT-CONTENTS
Alexander of Tunis, E.	Broxbourne, L.
Arran, E.	Butterworth, L.
Auckland, L.	Caithness, E.
Beaverbrook, L.	Cameron of Lochbroom, L.
Belstead, L.	Campbell of Alloway, L.
Blyth, L.	Campbell of Croy, L.
Boyd-Carpenter, L.	Carnock, L.
Brabazon of Tara, L.	Clinton, L.
Brougham and Vaux, L.	Colville of Culross, V.

Cox, B.	Milverton, L.
Craigavon, V.	Molson, L.
Craigmyle, L.	Monk Bretton, L.
Crawshaw, L.	Montgomery of Alamein, V.
Cullen of Ashbourne, L.	Morris, L.
Davidson, V. [Teller.]	Moyola, L.
De La Warr, E.	Munster, E.
Denham, L. [Teller.]	Newall, L.
Dundee, E.	Nugent of Guildford, L.
Elliott of Morpeth, L.	Orr-Ewing, L.
Elton, L.	Pender, L.
Falmouth, V.	Plummer of St Marylebone,
Forester, L.	L.
Fraser of Kilmorack, L.	Radnor, E.
Gardner of Parkes, B.	Reay, L.
Glenarthur, L.	Renton, L.
Gray of Contin, L.	Renwick, L.
Hailsham of Saint	Rodney, L.
Marylebone, L.	Romney, E.
Halsbury, E.	Rugby, L.
Hesketh, L.	Russell of Liverpool, L.
Hives, L.	St. Davids, V.
Home of the Hirsel, L.	Saltoun of Abernethy, Ly.
Hooper, B.	Sandford, L.
Hylton-Foster, B.	Savile, L.
Inglewood, L.	Shannon, E.
Knollys, V.	Sherfield, L.
Lane-Fox, B.	Skelmersdale, L.
Layton, L.	Stanley of Alderley, L.
Long, V.	Strathcarron, L.
Lucas of Chilworth, L.	Sherfield, L.
Lyell, L.	Swansea, L.
McFadzean, L.	Trenchard, V.
Malmesbury, E.	Vaux of Harrowden, L.
Mancroft, L.	Vivian, L.
Maude of Stratford-upon-	Ward of Witley, V.
Avon, L.	Whitelaw, V.
Merrivale, L.	Windlesham, L.
Mersey, V.	Wolfson, L.

On Question, amendment agreed to.

Clause 20 [Public performance of play]:

5.59 p.m.

Lord Hutchinson of Lullington moved Amendment No. 19E: Page 13, line 31, after ("circumstances") insert ("and taking the performance as a whole"). The noble Lord said: My Lords, I do not want to take up the time of the House on this amendment because I understand that the noble Earl still has the matter under consideration. If that is the case, perhaps he would intervene at this stage and save the House a lot of time. If I am wrong, I shall take up more time.

The Earl of Caithness

Yes, my Lords, I can confirm that we still have this matter under consideration with a view to coming back at Third Reading. I can confirm that to your Lordships.

Lord Boyd-Carpenter

My Lords, before the noble Lord withdraws the amendment, perhaps I may express slight concern about the clause. I am not sure what the amendment does to it—whether it strengthens it or weakens it. I should perhaps declare an interest. I am on a board of a company that owns a number of theatres, including about half of those in the West End; and I should declare that. It seems to me that this clause could inhibit the production of some of the most famous plays in the book; for example, "The Merchant of Venice". That is highly racial; the whole theme throughout is strongly anti-semitic. Or there is "Othello", which is undoubtedly a play with a very racial attack on people from certain parts of the world. I wonder very much whether this clause is properly drafted or whether it might really be used to inhibit the production of some of the finest and greatest plays in our language.

Also, I am bound to say that I found it very hard to understand that, although you can be prosecuted if you put on a play which transgresses this for an audience, you apparently are perfectly free (although the audience may be only a few hundred) to put it on and have it broadcast to millions. I say again that this seems rather odd. If the amendment before us is designed to weaken the clause or in some ways to adapt it, I shall be extremely interested to hear my noble friend's explanation.

The Earl of Caithness

My Lords, with the leave of the House, we discussed this amendment two days ago and the two plays that my noble friend mentioned were the two plays mentioned on that occasion. I understand that the clause is taken from the Theatres Act 1968. The matter that is in dispute is whether these words are the right words in all the circumstances or whether the words which are in the Theatres Act as existing—"taking the performance as a whole"—should be reinstated or added. That is the point we are looking at.

Lord Hutchinson of Lullington

My Lords, as the noble Earl has said, I am optimistic that perhaps he will be giving me my pound of flesh in due course. In those circumstances, I withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Caithness moved Amendment No. 1 9F: 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—

1. (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
2. (b) that he did not know and had no reason to suspect that the offending words or behaviour were threatening, abusive or insulting, or
3. (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: My Lords, I introduced an identical amendment at Committee stage and withdrew it then, with the undertaking that I would look at it again to see whether it could be shortened. As will be apparent, we have regretfully concluded that all three paragraphs are needed in order to provide proper protection for directors and presenters and that they cannot be rolled into some general formulation or otherwise abbreviated. From our discussions in Committee and just now, on the amendment of the noble Lord, Lord Hutchinson, to Clause 20(1)(b), it is clear that noble Lords in all parts of the House share our concern that directors and presenters should be properly protected. That indeed is the object of this amendment.

As I indicated in Committee, the three component parts of the defence effectively mirror the relevant defences in Clause 22. In considering the various paragraphs, it must be remembered that the presenter or director may not be present at any particular performance of the play in question. Indeed, he may be out of the country and quite unaware of developments since he left.

It may be helpful if I say a few words about each of the three limbs of this amendment. Paragraph (a) provides a defence where the actor departs from the script in a way which was not anticipated by the presenter or director, as the case may be. Paragraph (b) provides a defence where the presenter or director was not aware that the words were threatening, abusive or insulting. This may be relevant where, for example, a particular group was present at the performance who might find particular words, which to others might be unexceptionable, insulting. Where the presenter or director was not aware of this (because, for example, it was not generally known that the words were considered insulting within that particular community) he would have a defence under paragraph (b). Paragraph (c) deals with the situation where, for example, because of outside political developments of which the presenter or director was unaware, a previously innocent play became one which was likely to stir up racial hatred.

The noble and learned Lord, Lord Elwyn-Jones, suggested in Committee that the amendment be replaced by the words: the words or behaviour used were not authorised by him".—[Official Report, 21/10/86; col. 209.] That would cover similar sorts of territory to paragraph (a); but it would not deal with the situations in paragraphs (b) and (c). I hope that, with this further explanation, the House will be prepared to agree to this amendment. I beg to move.

Lord Jenkins of Putney

My Lords, I understand and accept what the noble Earl has just said, but, as I said at an earlier stage, I am a little uneasy that this protection is provided only to directors and not also to actors or to writers. I should like to have further thoughts on this subject, but if I reach the conclusion that the protection here given to directors ought to be extended—I think there is good reason for doing so and I shall not go into it now as I have said it before—it may be that I shall ask the noble Earl to have another look at the matter in the form of an amendment on Third Reading.

Lord Elwyn-Jones

My Lords, if I may say so, I do not think that actors are caught by the provisions of this clause. The House may be surprised to know that my motivation was in the interests of brevity when I raised questions about this multiplicity of possibilities. But, having heard the noble Earl's explanation, I am quite content that they should remain on the record.

The Earl of Caithness

My Lords, I am grateful for the words spoken by the noble and learned Lord, Lord Elwyn-Jones. With regard to the remarks of the noble Lord, Lord Jenkins of Putney, I refer him to the Official Report of 21st October, at col. 207. The words are recorded there.

Lord Boyd-Carpenter

My Lords, my noble friend refers the noble Lord, Lord Jenkins, as he referred me, to the debate of two days ago. I do not think that he can rely on that as being a justification in itself, particularly in the light of what was then said, for the points I have put. It seems to me that this clause has dangers in it. There is also the peculiar point that, as I understand it, it is to be beamed only on the performing threatre while excluding broadcasting. We are entitled to a little more explanation than merely, if the Minister will allow me to say so, a rather off-the-cuff reference to a previous debate.

The Earl of Caithness

My Lords, I apologise to my noble friend if I was too brief in trying to answer him. Broadcasting, including programmes in cable programme services, is dealt with in Clause 22 of the Bill as it stands. The rearrangement of Part III of the Bill was done in order to bring all the offences with regard to publishing or distributing written material, public performances of plays, broadcasting or the possession of racially inflammatory material into one common part, which is Part III of the Bill, to make it easier for all of us who would wish to seek reference to particular points.

I fear that my noble friend's concerns about the performance of a play are not founded. I am glad to tell him that they are not founded, because the words that we have used are taken from the Theatres Act 1968; so that the plays that his company allows us to watch will be able to continue as before, provided that there is no racial hatred engendered. In particular, we do not believe that the plays the noble Lord has mentioned will be caught, because they have not been caught to date. I hope that satisfies my noble friend.

Clause 38 [Contamination of or interference with goods with intention of causing public alarm or anxiety, etc.]:

The Earl of Caithness moved Amendment No. 20: Page 23, line 32, leave out from (" public ") to end of line 33 and insert (" , or (d) of causing economic loss to any person by reason of steps taken to avoid any such alarm or anxiety, injury or loss,") The noble Earl said; My Lords, I beg to move Amendment No. 20 and to speak to Amendment No. 21.

By virtue of paragraphs (a) and (b) and the first limb of paragraph (c) of Clause 38, an offence may be committed where the intention is to cause public alarm or anxiety or physical injury or economic loss by reason of the goods being shunned. In addition, under the second limb of subsection (1)(c) as it appears in the Bill, the offences can be committed where the intention is to cause economic loss by reason of steps taken to avoid the shunning of the goods (that is, for example, the withdrawal of the goods from the shelves). It has been pointed out to us that, for consistency, the second limb should apply also where the intention is to cause economic loss by reason of the steps taken to avoid public alarm or anxiety or physical injury.

We see force in this argument, and Amendment No. 20 makes the necessary adjustment. For convenience, it provides for a new subsection (1)(d) rather than an extension to the existing subsection (1)(c). Amendment No. 21 makes the necessary consequential adjustments to subsection (2).

I hope that with this brief explanation your Lordships will be content to accept these amendments. I beg to move.

The Earl of Caithness moved Amendment No. 21: Page 24, line 2, leave out (" or (c) and insert (" , (c) or (d"). The noble Earl said: My Lords, I beg to move this amendment: I have already spoken to it.

6.15 p.m.

Lord Campbell of Alloway moved Amendment No. 21 A: Page 24, line 16, leave out ("5") and insert ("10").

The noble Lord said: My Lords, I beg to move this amendment to Clause 38(4)(a) of the Bill. It stands in my name and was intended also to stand in the name of the noble Lord, Lord Elystan-Morgan, who I am delighted to see in his place. However, something slipped up in the administration.

The object is to increase the maximum available statutory penalty to 10 years for this new offence of contamination or interference with goods so that if it were to be committed, in the most grave circumstances this would match with the relevant comparables in the scale of gravity, such as criminal damage under Section 1(1) of the Criminal Damage Act 1971: 10 years. But, if done with the intention to endanger life, then it should be life imprisonment. In the case of administering or causing any poison or destructive or noxious thing so as to endanger life or inflict grievous bodily harm, under Section 23 of the Offences against the Person Act 1861, the penalty should be 10 years.

At Committee stage the noble Lord, Lord ElystanMorgan, took the point that in the worst cases the mischief within Clause 38 could well be of comparable severity with the gravity of such offences as I have mentioned. The noble Lord questioned whether five years' imprisonment was appropriate or adequate, and I rose to share his concern.

As no noble Lord suggested that that concern was not well-founded, the principle of increasing the penalty beyond the five years appeared to be accepted and my noble friend the Minister, characteristically, undertook to look further at the question of penalties. So the question really before your Lordships is whether the 10 years is appropriate.

As I sought to mention, the proposal of 10 years, which has the full and considered support of the noble Lord, Lord Elystan-Morgan, is a fair comparable in the scale of gravity. There are no doubt certain circumstances in this new offence in particular in which the court might well conceive it to be its public duty to have to impose a deterrent sentence. The noble and learned Lord, Lord Elwyn-Jones, said at Committee stage on 6th October at col. 82 of Hansard— and I quote him because I could not begin to match his eloquence on that or any other occasion: This is a monstrous, wicked and evil form of crime". No one could have put it better! In such an event, in the gravest possible circumstances, 10 years could be the approriate scale. Such is the justification for this amendment, and the hope is that it will commend itself to a sufficient majority of your Lordships and to my noble friend the Minister. Of course it is appreciated that there are always different views about lengths of sentences and so I put it advisedly that it could commend itself, in view of the type and seriousness of the offence, to a sufficient majority of your Lordships and to my noble friend the Minister.

It is a matter of consequence that any government—and this is no political point at all—worth their salt should in present circumstances treat this new social mischief as a really serious crime; because it is. Not only that, my Lords, but there should be a sanction available to the courts to prevent or curtail its commission.

Of course, there is no doubt that offences such as to cause or threaten to cause public alarm or anxiety, injury to the public or economic loss, the possession of materials used for contamination or possession of contaminated goods with a view to the commission of the offence, are not within the existing concepts of the criminal law. In other words, although there is a degree of overlap on the relevant comparables, this is in every sense of the word a new offence to meet a new evil. On that basis, and in the hope that I can command sufficient support from your Lordships, I beg to move.

Lord Hutchinson of Lullington

My Lords, I rise to oppose this amendment and say to the noble Lord, Lord Campbell of Alloway, that uncharacteristically he has got it wrong in saying that the Offences Against the Person Act relating to poison is parallel. It is exactly not parallel, because for administering a poison or a noxious thing with intent to injure, aggrieve or annoy, the maximum sentence is five years. For doing that so as to endanger life or inflict grievous bodily harm the sentence is 10 years.

If we look at this offence, it refers to the intention of causing injury to members of the public, not to causing them grievous bodily harm, injury or death, putting them in danger of death or anything like that. The offence in the Bill is the intention of causing injury to members of the public. This is an exact parallel to the provision under the Offences Against the Person Act of administering poison with intent to injure. The parallel is therefore precise, and the penalty is five years. If the noble Lord wants a penalty of 10 years in the Bill, he must alter the offence and make it an offence worthy of 10 years. One may, of course, administer poison with intent to injure and as a result cause appalling injuries which may result in death, but this is not that offence and the noble Lord will have to find another offence if he wishes to insert 10 years. The offence, I would suggest, is exactly the same in this Bill.

Lord Elystan-Morgan

My Lords, I venture to suggest that for once the noble Lord, Lord Hutchinson of Lullington, has got it wrong and uncharacteristically so. He is concentrating upon the question of injury, and injury can be one of the ingredients of the bundle of offences with which Clause 38 deals. However, I invite the House to consider that what the clause is concerned with is public alarm and disruption.

If a person walked into a bank carrying a shoe box in which there was a half-brick and told the cashier that he had a deadly explosive in the box which he would detonate unless money was handed over, I should have thought that a learned judge would be thinking in terms of a sentence of three, four of five years for that offence alone, even if that person was immediately apprehended. It could well be that the charge would be one of assault with intent to rob with the threat of force or even a charge of attempted theft. However, the gravamen of the offence would be the substantial or potential alarm that that person had caused.

Likewise, if under Clause 38 a person rang up a well-known public international company and said, "I have injected cyanide into many of your commodities in many of your shops", and if in consequence the products which were perhaps (I give an extreme example) worth millions of pounds had to be withdrawn, does anyone say that a sentence of the order of four, five or six years would not be appropriate? If your Lordships accept my argument, I respectfully suggest that in such circumstances a level of penalty of 10 years is perhaps more appropriate than five years.

There is no way in which this argument can be proven or disproven. It is very much a matter of fine judgment and feel. I well perceive the attitude of the noble Lord, Lord Hutchinson, and of many other noble Lords who feel that Parliament should be very careful in the maxima that it applies for various types of offence. There is always a danger that, by putting a maximum too high one encourages a higher level of sentencing than would otherwise occur. I totally share those views, if I may say so. However, it does not follow, because one has a situation where the range of offences can be very great, and where one considers that future cases likely to appear before the courts may well be of a very grave nature, that if one sets a high level one encourages sentencers to apply that level universally.

In 1968, when I was a very junior Minister involved with this in the Home Office, Parliament raised the penalty for common theft from five years to 10 years. I do not think that that had any effect at all upon sentences. If sentences were increased, that was done for totally different reasons and I believe that in this situation the same will be true. I hope that the cases that will come before the courts under this provision will be few, but some will be very serious. I invite the House to consider that 10 years as a maximum, rather than five years, would be more appropriate.

Baroness Phillips

My Lords, I should like to support my noble friend. There have been very distressing incidents where chocolate has been injected with cyanide. If a child had bought that and consumed it, the child would undoubtedly have died. I think it is merely playing with words on the part of the noble Lord, Lord Hutchinson, (if I dare suggest that to one learned in the law), and even if 10 years is put in, no judge, so far as I can see, is going to give anyone 10 years nowadays. Judges will not give 10 years for rape, murder or appalling injuries, and so I do not think that the noble Lord need worry. I think your Lordships will find that this may serve to deter some people. Surely this is part of what we want to do when we write this provision into the law.

Perhaps I may ask whether this clause covers the sort of terrible incident where a certain lobby (who shall be nameless, as it is not my intention to give it support) sprayed shop windows with fluids that were dangerous and poisonous to anyone touching them. The clause uses the words "contaminated" and "interfered with" but it rather specifically refers to "goods". Perhaps the Minister can reassure me that it will cover that instance. I support the amendment.

Lord Boyd-Carpenter

My Lords, I should like to support the amendment. The offence in question is a new and singularly unpleasant one, as I think everyone agrees. It is a dangerous offence and an offence whose motivation seems to be an attempt to intimidate society for one reason or another. In those circumstances, it is appropriate not merely to consider the level of sentence, as the noble Lord, Lord Hutchinson of Lullington, has done in relation to other offences, but also to look at it in the context of the importance of Parliament marking its view regarding the seriousness of the offence.

As the noble Baroness reminded us, it is not very usual for the maximum sentence to be imposed, although the level of the maximum to some extent sets the scale which judges will apply to offences of varying gravity. But for Parliament, faced with this new offence, to indicate that it was only—and I use the word "only" deliberately—one on the five-year scale would be to give a false impression of the importance we attach to it and of the need to deter the commission of this offence, so far as sentences and potential sentences can do so. I therefore hope very much that my noble friend the Minister will accept the amendment of the noble Lord, Lord Elystan-Morgan.

The Earl of Caithness

My Lords, we agreed at Committee stage to take this point away and have a look at it. Like my noble friend Lord Campbell of Alloway, I was swayed when I read the words of the noble and learned Lord, Lord Elwyn-Jones, which my noble friend quoted. For a noble and learned Lord of his reputation to come out with such words gave us cause to think again. Indeed, we have thought quite deeply about this and have concluded that it would be appropriate to raise the maximum sentence to 10 years in line with my noble friend's amendment.

I notice that the mood of the House is such that not only my noble friend Lord Campbell of Alloway, but also the noble Lord, Lord Elystan-Morgan, my noble friend Lord Boyd-Carpenter and the noble Baroness, Lady Phillips, are all for this amendment, with only the noble Lord, Lord Hutchinson of Lullington, against it. I believe that the mood of the House is similar to that of the Government, and we accept the amendment.

Before I conclude, let me say to the noble Baroness, Lady Phillips, that the example she gave would not be covered by this Bill. The words used on page 23, line 34, are "contaminate or interfere with goods". However, depending on the circumstances, there could well be an infringement of the Criminal Damage Act and the perpetrators of the nasty incidents she mentioned could well be prosecuted under that legislation. I commend the amendment to the House.

6.30 p.m.

The Earl of Longford

My Lords, may I say one word? I should be sorry if anyone thought that the noble Lord, Lord Hutchinson, was the only Member of this House who disliked the increase in penalties. The mood of the House seems a very poor reason for a decision of this kind. The mood of the House a few years ago was in favour of lighter sentences. Then the noble Viscount, Lord Whitelaw, went to a Conservative conference and got the bird. As a result, the mood of the Conservative Party changed and heavier sentences became the fashionable prescription. Now in this mood we are told that there should be a heavier sentence. So I should like it to be known that not only I myself but many other people I know would very much dislike this increase in the sentence.

Lord Elwyn-Jones

My Lords, may I say one word? I have used a strong adjectival reference on this matter, but when I use powerful adjectives it does not necessarily follow that I am all for greater severity of sentencing.

The Earl of Caithness

My Lords, with the leave of the House, may I reply to the noble Earl, Lord Longford? I hope what I said was that the noble Lord, Lord Hutchinson of Lullington, was the only one who had spoken against the amendment at that stage. I believe, contrary to the noble Earl, that the mood of the House is all-important, because if one is to test the amendment in a Division it is the mood of the House that matters.

Lord Campbell of Alloway

My Lords, I am extremely grateful to all noble Lords who have spoken both for and against this amendment, and indeed to my noble friend the Minister for his support. There were two points taken against me, the first by the noble Lord, Lord Hutchinson. But when he says, "Injury, ergo five years", does he really consider that the type of injury caused by cyanide in chocolate as being worth five years is comparable? That is the point made by the noble Baroness, Lady Phillips.

The other point taken against me by the noble Earl was a general and broad one. It was the objection that all existing scales of sentence are too high, are too great; that we should move towards the Netherlands system and reduce maximum sentences and so on. The noble Earl may be right, but we have not yet reached that stage in this country and it is not a fair and reasonable objection in the circumstances of this case, where this offence has to be fitted within the existing structure and framework. I have to thank the noble Lord, Lord Elystan-Morgan, who put the case better than I could have put it, and also of course my noble friend Lord Boyd-Carpenter.

Clause 39 [Power to direct trespassers to leave land]:

Lord Stanley of Alderley moved Amendment No. 22: Page 24, line 30, after ("period") insert— ("or with the common purpose of demonstrating to attempt to compel the occupier to abstain from doing any act by which he earns his livelihood and which he has a legal right to do").

The noble Lord said: My Lords, in Committee I mentioned the problem that is experienced by people who appear, often in considerable numbers, to object to certain practices that are lawfully being carried out. For instance, the farming industry often suffers from the attention of animal rightists objecting to certain farming practices, and medical and veterinary researchers have similar problems from people such as the anti-vivisectionists. I am therefore moving this amendment, which would allow a police officer to protect those who are carrying out such practices, which provide their living—those practices being, of course, within the law. I have no wish—and this amendment does not do so—to allow anybody to carry on any practice that is outside the law.

My noble friend Lord Caithness may say that Clause 5 deals with my point, but I have to say to him that I am not entirely sure. For instance, what can the farmer or the medical researcher do about a gang of protesters who sit outside his place and do not, in the words of Clause 5 of the Bill, use, threatening, abusive or insulting words or behaviour, or disorderly behaviour", but who could, nevertheless, disturb and prevent the farmer or the researcher from carrying out their lawful work—maybe by preventing a food lorry going in or, indeed, deterring the lorry driver? Finally, my amendment would allow a police officer to evict such people, as opposed to Clause 5, which, as I understand it, would allow a police officer only to arrest them.

The noble Lord, Lord Mishcon, castigated me in Committee on one amendment that tried to prevent an offence before it had been committed. I have absolutely no doubt that he was right that such an amendment was very badly drafted and, indeed, was impossible to draft. But on this matter I hope he will accept that my amendment is positively dovelike, compared to the remedies that could be used under Clause 5. I beg to move.

Earl De La Warr

My Lords, I should like to support this amendment because, as my noble friend said, it covers non-violent means that can be effectively used to stop a man going about his lawful business. My noble friend mentioned stopping a lorry. I was going to mention, and will, a group of people who surround, say, a chicken battery or a breeder shed, in order to make it difficult for people to get in, store the animals and feed them, and generally make it harder for the work at the farm to go on.

Clause 39 is entitled: Power to direct trespassers to leave land. Without this amendment, it does not seem to me that a senior police officer can reasonably go in and ask people to leave, which is the procedure laid down in the clause. My noble friend said that he doubted whether this could be caught by Clause 5. I have absolutely no doubt at all that it could not be caught by Clause 5, because that deals essentially with abusive and threatening behaviour, while we are drawing the attention of the House to demonstrations which are peaceful but are nonetheless obstructive to people who are trying to get on with their jobs.

Lord Mishcon

My Lords, I rise only very briefly to deal with this amendment, with but one observation. We are dealing with criminal offences which become criminal offences for the first time in our law, and we are giving powers to the police, if this clause stands, in regard to directions and in regard to offences which may result from a failure to deal with those directions.

Have we noticed that in this amendment there occur the words: compel the occupier to abstain from doing any act by which he earns his livelihood"? Is that supposed to cover somebody who partially earns his livelihood from a certain occupation? Does it include the amateur who is doing his gardening or preparing for the season, which may be very precious to a farmer, but which the amateur does not do professionally and does not earn his livelihood from? Who is to judge these words as to whether this is the way he earns his livelihood? I repeat that this is no longer a question of a civil action—and I shall have more to say about that hereafter. This is a question of creating a crime; and look at the imprecise words that are used.

The Earl of Caithness

My Lords, as my noble friend Lord Stanley has explained, this amendment attempts to extend the scope of this clause so that the police powers of direction can be deployed against animal rights demonstrators and others who seek to prevent legitimate activities by members of the farming community on their own land. However, I have to say to my noble friend that I think the amendment goes a little wider than this.

For example, it does not exclude demonstrations in the course of an industrial dispute. Under my noble friend's formulation those demonstrating on private land in the course of an industrial dispute could be made subject, in certain circumstances, to police directions if the purpose of their demonstration was to prevent the distribution of produce, or otherwise stop the legitimate commercial activities of the occupier. This clause has been carefully designed to tackle a particular mischief and I think we must be very wary of tacking on additional provisions in an attempt to enable it to be deployed against other mischiefs for which the clause was not intended or designed.

Nevertheless, I understand the concern within the farming community about the activities to which my noble friend has referred. We all recognise the strong feelings which some of these demonstrators have. No one wishes to prevent peaceful protest within the law.

But criminal behaviour is not acceptable, whether by demonstrators or anyone else. The use of violence, or criminal damage already attracts criminal sanctions. Under Section 7 of the Conspiracy and Protection of Property Act 1875 it is an offence to intimidate someone with a view to compelling him to abstain from doing something he has a right to do or to do an act he has a right not to do. I hope that covers the point which my noble friend mentioned. Schedule 2 to this Bill strengthens that section by increasing the maximum penalty to six months' imprisonment or a fine of £2,000 or both and by conferring a power of arrest without warrant. In addition, Clauses 4 and 5 of this Bill may be particularly helpful in dealing with conduct of the kind which concerns my noble friend. I would remind my noble friend that the offences in those clauses may be committed on private as well as public land, and this represents an extension of the law, since Section 5 of the Public Order Act 1936 is confined to conduct intended or likely to cause a breach of the peace in a public place; that is to say, a place to which the public has access, whether by payment or otherwise, or at a public meeting.

With regard to a peaceful demonstration by groups such as animal rights protesters—a point raised by my noble friend Lord De La Wan—it seems unlikely in practice that an offence will be committed. I would refer my noble friend to Section 7 of the Conspiracy and Protection of Property Act 1875 and to the offence caused under that section. If anyone within the group of protesters uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, I would remind my noble friend that Clause 5 of the Bill could apply.

We believe, and I am sure that the House will support me in our view, that the criminal law should not entirely outlaw peaceful demonstrations.

6.45 p.m.

Lord Howie of Troon

My Lords, before the noble Earl sits down, will he clarify what he said about industrial disputes? We all know that industrial disputes were governed by what used to be called the "Golden Formula", in which trade unions were free from the law of tort provided that they were within the ambit of a trade dispute. But nobody ever thought that trade unions were free from the criminal law. This Bill seems to deal with criminal rather than civil actions. I wonder whether I understood the Minister.

The Earl of Caithness

My Lords, with the leave of the House, perhaps I may reply to the noble Lord, Lord Howie of Troon. The purpose and intent of this clause is certainly not to impinge upon industrial disputes. It is to cope with a serious menace of mass trespass.

Lord Stanley of Alderley

My Lords, the 1875 Act is a most interesting one. Indeed, I had never heard of it until a few weeks ago and I am sure that a great many people had not heard of it.

Lord Broxbourne

Passed by a Conservative Government, my Lords.

Lord Stanley of Alderley

My Lords, I am glad to hear that. If it is resurrected a great many people may be somewhat surprised at its contents. Indeed, perhaps even the noble Lord, Lord Mishcon, might prefer my amendment to some of the parts of that Act, but I shall leave it at that.

I should like, however, to thank my noble friend Lord Caithness for explaining why he does not like my amendment. I have to agree with a great deal of what he said. As the Bill stands, with Clause 5, and indeed with the 1875 Act, and with many other statutes regarding industrial disputes, I think I am content. I fully take the point. I do not wish to stop people demonstrating peacefully provided they do not interfere or cause harm. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mishcon moved Amendment No. 23: Page 24, line 33, after ("land") insert ("contrary to the Criminal Damage Act 1971"). The noble Lord said: My Lords, I can be extremely brief. I believe that all of us want to see that we are not creating new offences within the offence of failing to deal with a direction. All I am trying to do in Amendments Nos. 23 and 24, which, with your Lordships' leave, I am taking together, is to show that the causing of damage to property and the land is already in our criminal law—contrary to the Criminal Damage Act 1971—and that the threatening, abusive or insulting words or behaviour are also within our criminal law at the moment, contrary to the Public Order Act 1936.

My aim is purely to clarify the fact that we are dealing with existing offences and making it an offence in addition that, if you commit these acts and you fail to comply with a direction, you are committing an offence under this Bill. I beg to move.

The Earl of Caithness

My Lords, the principal purpose of this clause is to give the police an effective power to act when dealing with trespassing itinerant groups. Members of those groups may, and do, commit specific criminal acts. Where a criminal act is committed, the police do of course have power to proceed against the perpetrator, if they can identify him and obtain sufficient evidence against him. That is a very significant condition in the circumstances we are considering. In dealing with a crowd of people it is frequently difficult to identify and bring proceedings against an individual offender. The police may come across a trail of destruction left behind by one of these groups, and yet have no way of knowing who is responsible. Further, even if they can prosecute the person responsible this does not give them any power to deal with the wider group.

The clause which the Government have formulated is intended to give the police effective powers in this situation. It does not depend on there being evidence of a specific criminal offence under a particular statute because of the difficulties of identification and evidence-gathering to which I have referred. I cannot therefore advise the House to accept these amendments, which seek to introduce specific references to the Criminal Damage Act and the Public Order Act 1936. As it stands, the clause adequately sets out what we wish the senior police officer to consider. It will be relatively straightforward for him to consider whether he has reasonable grounds for believing that any of the persons present on the land "has caused damage to property". It is not necessary, and would complicate matters, for him to have to consider whether an offence under the Criminal Damage Act had been committed. Similar considerations apply to the amendment referring to the Public Order Act—Amendment No. 24. On those arguments, I would advise your Lordships not to accept these amendments.

Lord Mishcon

My Lords, I can understand the noble Earl's reasoning here. I should like to reflect on it in greater detail, if I may. In those circumstances, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 24 not moved.]

The Deputy Speaker (Lord Aberdare)

My Lords, I must point out that in Amendments Nos. 27 to 35 the page and line references are to the correction slip issued in respect of the Bill.

Lord Mishcon moved Amendment No. 25: Page 24, line 36, leave out ("or"). The noble Lord said: My Lords, here I come to a very serious point in asking for the removal of Clause 39(1)(d) from the Bill. I shall not weary your Lordships with a repetition of arguments about whether there should be criminal trespass or only civil trespass, with a civil remedy. I advanced those arguments last time. I know that you will forgive me if, possibly at a later stage in the Bill before it leaves your Lordships' House, your Lordships are bored to hear me repeat those statements because they are sincerely held.

I am not on that point at all. I am taking it for granted for the purpose of my argument that the House has agreed that there should be a criminal offence of trespass and that certain prosecutions can be brought under the criminal law to deal with what I have always admitted is a great nuisance which ought obviously to be covered by some sort of rights.

When this House, of all Houses, being a revising body and consisting, if I may say so, of careful legislators, comes to create a criminal offence, we look at it with some care and we make sure, if your Lordships will forgive my using the expression, that we do not make fools of ourselves. I am not arguing about paragraph (a), with which we have already dealt. I am arguing about paragraph (b), which relates to where persons (they have not got to be a nuisance; they have not got to do anything abusive), have between them brought twelve or more vehicles on to the land The police officer may then direct those persons to leave the land, and if they do not obey the direction they are liable to be prosecuted and a quite severe penalty exacted. Thus Parliament in all its wisdom passes a new criminal law if paragraph (b) is allowed to stand.

If one counts 11 vehicles only or if there are 13 vehicles, and before the policeman arrives, he having been summoned by telephone, two of them are removed so there are only 11 left; or if they bring 22 vehicles and, as I ventured to say on the last occasion that we discussed the clause, put 11 on one piece of land belonging to farmer A and another 11 on the adjoining land belonging to farmer B, no offence is being committed at all. We make a joke of the situation through somebody knowing the law being able thereby to skirt round it and avoid a prosecution and laugh at the police. On the other hand, somebody who does not happen to know the exact number provided by this statute walks into a prosecution and all that could follow.

I repeat that I am taking for granted criminal trespass and I am taking it for granted that there must be enforcement of certain rights in accordance with the law. I am taking it for granted that paragraph (a) is still in, and damage has got to be caused to property, or threatening, abusive or insulting words used by those with whom we are endeavouring to deal. All those things are in. As I have said, I am taking that for granted.

We must not include paragraph (b), which, as I have said, makes this precisely the same offence if a certain number of vehicles has been brought on to the land. Proper thought could not have been given to this. It would be better to remove the provision entirely and not deal with vehicles at all rather than have a situation created in criminal law that makes a laughing stock of the legislation and the legislators who pass it. I beg to move.

The Earl of Radnor

My Lords, I must oppose the amendment, because I think that from the very beginning vehicles were an integral part of many people's thinking and an integral part of the situation which provoked—if that is the right word—the original amendment. I take many of the points made by the noble Lord, Lord Mishcon, particularly that we might look extremely foolish by specifying the number 12 and finding that some went on a neighbour's land or ran away too quickly. That could of course be altered at a later stage in the Bill by reducing the number to, say, one.

My reason for opposing the amendment is that, although I have taken the point through all the stages of the Bill that it it a very serious matter to move something from civil law to criminal law, there is here a new mischief—I think that is the term usually used—which is absolutely to do with vehicles. These people who wander round the country not only travel in vehicles; they live in their vehicles, and it is from their vehicles that they do the damage: produce the abuse, throw sticks and stones as one rides by, or what have you. We would, I think, be in danger of making ourselves look foolish to the outside world in the countryside by leaving vehicles out, because everybody knows that vehicles are an integral part of the real situation. The term "peace convoy" itself implies that there are vehicles there, though I would not want to particularise as closely as that.

I should like to put in one little word at the end, having already said that I appreciate the seriousness of moving something from civil law to criminal law. It is perhaps not always realised in your Lordships' House that crime has come to the countryside. It is not just in the cities and deprived areas. I could quote large sums of money that my neighbours and I have lost. These days people rustle cattle. These days people are cruel to cattle. These days people set things on fire and come and take hay and straw from barns, which we always assumed—The noble Lord seems to think that this is irrelevant.

Lord Mishcon

No, indeed, my Lords. I have too much regard for the noble Earl and the nuisance with which we are dealing ever to infer that. I was merely saying—possibly I should have said it from a standing position and not from a seated one—that these matters are already covered and we are taking it for granted that they are agreed to.

The Earl of Radnor

My Lords, I accept that, and I fall back on my previous argument that vehicles are an integral part of the situation and shall be left in Clause 39(1)(b).

Lord Stanley of Alderley

My Lords, before my noble friend replies, I wish to say that I oppose the amendment. I hope that in Amendment No. 31 I have a way out that may help the noble Lord. We shall come to it later.

A large number of vehicles can cause considerable problems even though they may not have committed an offence under Clause 39(1)(a). That is why the proviso on 12 vehicles is included. I should have preferred to drop the number and I shall say in greater detail why I cannot when I come to my amendment. I respect the point made earlier by the noble Lord concerning Romany gypsies, and we have to be careful that we do not penalise them. Nevertheless, I am sure that subsection (1)(b) must stay in the Bill. I support the remarks made by my noble friend Lord Radnor.

7 p.m.

Lord Boyd-Carpenter

My Lords, I have a great deal of sympathy with the noble Lord, Lord Mishcon, who in his usual witty way made some fun of the clause and pointed out, perfectly properly, that as it stands you can put 11 vehicles in one field and 11 vehicles in an adjoining field belonging to another farmer, therefore mobilising, if my mathematics are right, a total of 22 vehicles for the operation, and you are perfectly all right; whereas, if you put 12 vehicles into one field you are caught by the clause. I wholly agree with the noble Lord that the clause as it stands looks very odd. I also think it looks odd for another reason.

The first part of the clause creates an offence where "two or more persons" enter land, and it seems somewhat out of line with that "two or more persons" to stipulate "twelve vehicles" in subsection (1)(b). I am told that we live in the age of the two-car family but we are hardly in the age of the six-car family, prosperous though the country is becoming under my right honourable friend's Administration. Therefore, there seems to be an extraordinary lack of balance in the clause.

I see the solution not as the noble Lord, Lord Mishcon, does, simply to take vehicles out of the clause, but by a drastic reduction in the number of vehicles. I believe that the figure of 12 is ludicrously high. Not only is it out of line with the "two or more persons" but the arrival on anybody's land of anything like that number of vehicles is an appalling intrusion. I understand that the reason for its inclusion in the Bill is the fatherly tenderness of the Home Office for the gypsies, but I am not sure that that is a sufficient reason to contemplate giving immunity to those who bring 11 vehicles without permission and put them on someone's land.

Therefore, I cannot support this amendment but accepting, as I do, that it would in one way remedy the farcical nature of the clause, I must tell my noble friend that I find the figure of 12 vehicles quite extraordinary and that it is a defect in the Bill.

The Earl of Caithness

My Lords, in Committee I was urged by a number of your Lordships to reduce the number of 12 vehicles in the clause. Various numbers were canvassed but the general thrust of comment was that the police powers of direction should not depend upon there being 12 vehicles. Indeed, I was chastised again by my noble friend Lord Boyd-Carpenter on that just now.

It does not depend absolutely on there being 12 vehicles. I invite your Lordships to look at paragraphs (a) and (b) of subsection (1), because they are alternatives. Where there is a group of fewer than 12 vehicles the police can still act if the test in paragraph (a) is satisfied; that is, that damage has been caused to property or threatening, abusive or insulting words or behaviour have been used towards the occupier, a member of his family or an employee. That is why we have "two or more persons".

The reason for paragraph (b) is that in our view it is possible to reach a point where the sheer accumulation of vehicles justifies the availability of police powers of direction, even where there has been no damage to property or no threatening behaviour in the terms of paragraph (a). That is the point made by my noble friend Lord Stanley of Alderley. The amendment seeks to remove the 12-vehicles test entirely so that the police can act only in the circumstances described in paragraph (a).

Let me say to your Lordships, and in particular to my noble friend Lord Boyd-Carpenter, that we have looked at the number of vehicles in paragraph (b) following the comments in Committee. We concluded that the number should remain at 12. There are three reasons for that. First, as I explained, the tests in paragraphs (a) and (b) are alternatives, so that groups of less than 12 vehicles may well be caught by paragraph (a). Secondly, we do not want to undermine the Government's general gypsy policy, as we feel that a number of fewer than 12 will do. We discussed gypsies at some length earlier this afternoon.

There is a third reason which I hope my noble friend Lord Boyd-Carpenter will accept as valid. The police do not want to be asked to use up their resources in pursuing small groups of relatively well-behaved gypsies from place to place. We feel that that could very well defeat the objectives of the Caravan Sites Act 1968; and that is an Act we do not want to undermine.

In Committee I was urged to ensure that the police powers of direction are available in respect of a much smaller number of vehicles than 12. The effect of the amendments would be to remove the vehicle test altogether so that in dealing with large encampments the police could act only if the test in paragraph (a) was satisfied. We have considered this in a great deal of detail and there have been many hours of discussion on it. We believe that the figure of 12 is about right. I see the possibly humorous way in which one can divide a group of more than 12 vehicles into groups of fewer than 12 vehicles, but the mischief that this clause seeks to catch will probably mean that those who seek to get round paragraph (b) will probably be caught by paragraph (a). I reiterate that those people who are invited onto land would not be trespassers and would not be caught by the clause.

Lord Mishcon

My Lords, I admire the noble Earl for having made, if I may say so, an effective speech where I should have found it quite impossible to answer this debate. I think he deserves to be congratulated by everyone in the House. As I said, I took another point of view on criminal law, but one can readily understand that an urgent situation is created by those who are being abusive, insulting or causing damage. Let me make it perfectly clear that the Bill covers all those urgent matters so that it answers those of us who asked, quite properly and reasonably, "Can you imagine a farmer caught in those circumstances being told that he ought to see his solicitor, who should be asked to apply for an injunction?". I remember the noble Lord, Lord Boyd-Carpenter, referring in somewhat caustic terms to the members, at least, of my profession on the basis that we never work over weekends.

Lord Boyd-Carpenter

My Lords, will the noble Lord allow me to intervene? I did not express it in that way. On the contrary, I took the view that members of the noble Lord's profession are so remuneratively employed over weekends that it might be difficult to get in touch with them.

Lord Mishcon

My Lords, I hope that that applies equally to the rest of the week.

Lord Broxbourne

My Lords, is not the answer to the point made by my noble friend Lord Boyd-Carpenter that members of that branch of the profession of which the noble Lord is such an ornament deliver their instructions and briefs to learned counsel late on Friday afternoons, leaving learned counsel to work over the weekends, while those in the more privileged branch of the profession are able to indulge in recreation and rest?

Lord Mishcon

My Lords, as I have had the privilege of briefing the noble Lord on previous occasions, I hope that that was not meant as a personal remark.

If I may revert to the argument that I was trying to pursue, we have now covered the urgent matters by the criminal law saying that civil proceedings will not be fast enough; but we are now dealing with a criminal offence relating to vehicles, the occupants or owners of which have not committed any damage to property at all. They have behaved themselves and have not used insulting language. The only thing with which they can be reproached is that they look as though they intend to stay in that peaceable manner on land that they are not entitled to occupy. They are trespassers, in the same way that lawyers know trespass in what have always been regarded as civil cases.

I am not saying that the farmer should have no remedy at all. Twelve vehicles are mentioned; I should object to one vehicle that goes upon land improperly and trespasses. I am saying that in those circumstances, with registration numbers shown on the vehicles and the owners able to be traced, it is the procedure of civil law that ought to be invoked. Let us not make idiots of ourselves (if I may say that without disrespect) by passing a clause which, as I said, makes it a criminal offence if 12 vehicles and their occupants but not 11 vehicles are peacefully on that land.

Especially at a time when the noble and learned Lord the Lord Chancellor is using his considerable intellect to see that civil proceedings are expedited in cases of this kind, and indeed has issued a consultation document which leads us to believe that such expedition will be very effective, is it the moment when in this House we solemnly pass an amendment of this nature? I ask your Lordships to consider the amendment most carefully and in doing so to register your voices in the Division Lobbies.

7.12 p.m.

On Question, Whether the said amendment (No. 25) shall be agreed to?

Their Lordships divided: Contents, 28; Not-Contents, 63.

DIVISION NO. 3
CONTENTS
Airedale, L.	Meston, L.
Birk, B.	Mishcon, L.
Broadbridge, L.	Nicol, B.
Brockway, L.	Phillips, B.
David B	Ponsonby of Shulbrede, L.
Dean of Beswick, L.	[Teller.]
Donoughue, L.	Seear, B.
Elwyn-Jones, L.	Shackleton, L.
Elystan-Morgan, L.	Sherfield, L.
Graham of Edmonton, L.	Silkin of Dulwich L.
[Teller]	Stoddart of Swindon, L.
Harris of Greenwich, L.	Strabolgi, L.
Hutchinson of Lullington, L.	Turner of Camden, B.
Listowel, E.	Wells-Pestell, L.
Longford, E.	White, B.
NOT-CONTENTS
Alexander of Tunis, E.	Cullen of Ashbourne, L.
Auckland, L.	Davidson, V. [Teller.]
Beaverbrook, L.	De La Warr, E.
Belstead, L.	Denham, L. [Teller.]
Boyd-Carpenter, L.	Elliott of Morpeth, L.
Brabazon of Tara, L.	Gardner of Parkes, B.
Broxbourne, L.	Glenarthur, L.
Caithness, E.	Gray of Contin, L.
Cameron of Lochbroom, L.	Greenway, L.
Campbell of Alloway, L.	Halsbury, E.
Carnock, L.	Hesketh, L.
Clinton, L.	Hives, L.
Colville of Culross, V.	Hooper, B.
Colwyn, L.	Hylton-Foster, B.
Craigavon, V.	Inglewood, L.
Craigmyle, L.	Ingrow, L.
Cross, V.	Lane-Fox, B.

Lawrence, L.	Munster, E.
Layton, L.	Napier and Ettrick, L.
Lindsey and Abingdon, E.	Newall, L.
Long, V.	Pender, L.
Lucas of Chilworth, L.	Radnor, E.
Maude of Stratford-upon-	Reay, L.
Avon, L.	Saltoun of Abernethy, Ly.
Merrivale, L.	Sandford, L.
Mersey, V.	Savile, L.
Molson, L.	Skelmersdale, L.
Monk Bretton, L.	Stanley of Alderley, L.
Monson, L.	Swansea, L.
Morris, L.	Vaux of Harrowden, L.
Mottistone, L.	Whitelaw, V.
Mountevans, L.	Ypres, E.

Resolved in the negative, and amendment disagreed to accordingly.

7.20 p.m.

[Amendment No. 26 not moved.]

Lord Mishcon moved Amendment No. 27: Page 25, line 13, at end insert— ("(c) that any or all of the conditions in subsection (1) for the giving of a direction were not fulfilled."). The noble Lord said: My Lords, after that narrow defeat on the amendment which I moved previously, may I briefly say what the point of this amendment is? It may be that a direction has been wrongly made, in that the constituent parts of the section with which we are dealing have not been properly fulfilled. I want to make it clear by this amendment that it is open to anyone who is prosecuted to say that the direction was wrongly issued.

If the noble Earl will make it abundantly clear that that defence is available, I shall not trouble the House with making a decision on my amendment. I hope that I have made my position clear. I beg to move.

The Earl of Caithness

My Lords, the noble Lord, Lord Mishcon, has, as usual, made himself clear. I am advised that, even without this new defence, a defendant will be able to challenge the lawfulness of the direction which has led to the charge against him. Moreover, I remind your Lordships that the commission of an offence arises only if the person directed to leave the land fails to do so as soon as reasonably practical or re-enters within three months. In subsection (4)(a) we have provided a defence for the accused: that his original entry was not as a trespasser. We think that that is necessary in case those who have been granted permission to camp, or are otherwise present by the permission of the occupier, are swept up in the general direction.

The proper course is for anyone subject to a direction to leave the land immediately. If he does so, he will not be liable to criminal sanctions. We think that the additional defence in this subsection might lead to delay in clearing the land by encouraging trespassers to believe that they might be able successfully to challenge the direction in the courts.

Lord Mishcon

My Lords, in the light of that explanation, for which I am most grateful, and on the basis that this will of course appear in the Official Report, I ask the leave of the House to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Stanley of Alderley moved Amendment No. 28: Page 25, line 15, leave out ("buildings or") and insert ("— (a) buildings other than agricultural buildings within the meaning of section 26(4) of the General Rate Act 1967, or (b)). The noble Lord said: My Lords, the problem caused by omitting agricultural buildings from the clause was fully discussed by many noble Lords in Committee. It would be irresponsible of me and a waste of your Lordships' time if I repeated those arguments, particularly as my noble friend Lord Caithness said that he would look at the problem. I hope that after having read and studied how strongly your Lordships supported the amendment, he will be able to persuade himself that it is a good amendment and will be able to accept it, and that of my noble friend Lord Montagu. I beg to move.

Lord Stanley of Alderley moved, as an amendment to Amendment No. 28, Amendment No. 29: Line 3, after ("1967") insert ("and buildings which are scheduled monuments within the meaning of section 61(1) of the Ancient Monuments and Archaeological Areas Act 1979"). The noble Lord said: My Lords, in the absence of my noble friend Lord Montagu of Beaulieu, I should like to move this amendment on his behalf in the same terms as those in which I moved my amendment. My noble friend explained carefully the problems that historic buildings and sites which are destroyed or damaged experience before any action can be taken to remove trespassers on those sites.

It is a serious problem. As I understand it, there is a legal obligation upon my noble friend to keep those monuments in good order, and so it seems to me that he is put in an especially embarrassing position. A provision similar to that provided for agricultural buildings should be provided for historic buildings. I beg to move.

The Earl of Caithness

My Lords, it may be for the convenience of the House if I say a few words to make the Government's position clear. With regard to the amendment moved by my noble friend Lord Stanley, we have considered and been swayed by the force of his arguments. I am happy to accept his amendment.

With regard to the amendment tabled by my noble friend Lord Montagu of Beaulieu, we are still having discussions with him and English Heritage. The last discussion I had with him was during the early hours of this morning when some of your Lordships were probably not here but were dreaming about our wonderful heritage. I promise your Lordships to take away this amendment for further consideration. I hope with that my noble friend Lord Stanley, on behalf of my noble friend Lord Montagu, will withdraw the amendment so that we can continue our discussions.

Baroness Birk

My Lords, I was pleased to hear the Minister's intervention because although, as my noble friend Lord Mishcon pointed out once again this evening, we are unhappy about criminal trespass being included in the Bill, if it is to be in, and it appears definitively to be so, it would seem to me, as someone who had considerable experience of looking after the heritage as a Minister in the Labour Government, that scheduled monuments should be included. They are fragile and far less transient than other matters that the Bill has set out to protect.

People can eventually be moved on or something can be done about them with regard to other areas specified in the Bill. The Government insist on keeping the provisions relating to cars in the Bill. It would be ridiculous, therefore, and the Government would seem to be Philistines, if they provided for everything else, including agricultural buildings, in the Bill but appeared not to care, or have any consideration, for scheduled monuments.

I was glad to hear what the Minister said. I hope that I shall have helped slightly to prod him in the right direction. Although he may word the amendment differently, I hope that on Third Reading we shall find that scheduled monuments are to be protected.

Lord Hutchinson of Lullington

My Lords, may I add from these Benches the power of our prod? I am sure that the noble Earl will not wish to be described as a Philistine.

Lord Stanley of Alderley

My Lords, I think that I am correct in replying to the amendment to the amendment first. I should like to thank my noble friend Lord Caithness for his helpful remarks. I should also like to thank the noble Lord, Lord Hutchinson, and the noble Baroness, who knows so much on this subject, for supporting the amendment. I am glad that on this occasion this Philistine can support English Heritage.

Bearing that in mind and with the assurance that I have had from my noble friend, I beg leave to withdraw the amendment to the amendment.

Amendment No. 29, as an amendment to Amendment No. 28, by leave, withdrawn.

On Question, Amendment No. 28 agreed to.

7.30 p.m.

Lord Swansea moved Amendment No. 30: Page 25, line 15, leave out from ("buildings") to end of line 16. The noble Lord said: My Lords, as your Lordships will know, my noble friend on the Front Bench pointed out to the House a couple of days ago that, through a printer's error, this amendment along with one or two others had been inadvertently omitted from the Marshalled List. Luckily, as we were not due to reach this part of the Bill until today, no harm was done. Clause 39, added in Committee, strengthens the powers of the police considerably. It will be a great comfort to occupiers of land. But it bites only in respect of private land. Highways are specifically excluded from the subsection. It is a little hard to see the reason. It may be that the police or highway authorities already have sufficient powers to move on persons parked on verges or in lay-bys causing annoyance or using threatening behaviour towards other road users.

The experience of highway authorities in Wales in recent years suggests that the existing powers could be improved. An experience recently in Dyfed with a group of people known as Mutants was that they could be moved only with the help of a High Court injunction. It would be ridiculous to have to go through that process in respect of lay-bys and highway verges when for every other kind of land the police, on request, will be able to consider whether they can issue a direction under the new power. There is no doubt that damage or harassment arises as a result of the presence of hippies in lay-bys or on highway verges The experience with the Mutants showed this only too clearly. They were abusive to passers-by, threw rubbish on to adjoining land, as well as into other property on the lay-bys, and generally made themselves unpleasant neighbours in the areas where they settled.

It can be argued that the new powers relating to public assemblies in the Bill should be adequate to deal with harassment arising in this way. But there is a difference of degree. The police might find it extremely difficult to justify action under the clause, having in mind the tests that have to be satisfied before they can impose a condition on a public assembly. It may be just as difficult to demonstrate for hippy encampments in lay-bys as for hippy encampments on private land.

The position of gypsies complicates the issue. The last thing that the Government or any other public authority want to do, or should do, is to make life more difficult for these people when they are law abiding and perhaps have nowhere else to go. At the same time it is difficult to see how the new power would make their position any different. Government policy regarding gypsies is clear. There is a code of practice among government departments, and there has been strong advice to local highway authorities. The policy is one of non-harassment.

It is extremely doubtful that there would be many instances where highway authorities would find the new power leading them to a less tolerant view of camping by gypsies on highway verges. If the highway authority felt inclined to use the new power, the police would have to be satisfied, as in the case of any other land to which this clause applied, that there were more than 12 vans or vehicles, that there was damage or threatening behaviour, and so on. One must be careful not to fall between two stools—leaning too far backwards to safeguard the traditional rights of gypsies and giving powers to the police that they might perhaps be tempted to enforce too severely. Nevertheless, I feel that the amendment might be an improvement to the Bill.

In Wales and possibly in other parts of the country, the hippy element to which I have alluded has already caused considerable annoyance to other road users. It is surely the duty of Parliament to give those road users the protection that they are entitled to demand. I hope that at this stage of the Bill it is not too late for the Government to give them this protection if it does not exist already. I hope that my noble friend might be able to assure us on this point. I beg to move.

The Earl of Caithness

My Lords, by comparison with private land, the problems which occur on highway verges and lay-bys are not of the same order. The element of damage or harassment of the landowner does not necessarily arise or, if it does, at least not to the same degree. The consequence for our general gypsy policy of extending these powers to highways would be very considerable. Your Lordships will be aware that our policy, as set out in the Caravan Sites Act 1968, is to encourage local authorities to establish sites for gypsies. Those authorities which do so are rewarded by being given enhanced powers to deal with unauthorised camp sites. I fear that extending this clause to highways will undermine our general gypsy policy, because it will reduce the incentive for local authorities to provide sites.

I do not say that problems cannot arise in lay-bys and on highway verges. Where they do, the offences in Clauses 4 and 5 are available. Moreover, and this is an important point, the powers in Clause 14 to impose conditions on assemblies will be available in respect of highways, so that if one of the four tests is satisfied in relation to an assembly there, the police will be able to act. It is for these reasons that we do not think it necessary or appropriate to extend these powers to highways.

Lord Swansea

My Lords, I thank my noble friend for what he has said. In respect of highways, the intention is not to protect the private owner of the land but to protect the travelling public where a nuisance exists. There is evidence that such a nuisance exists already. I am, however, glad to hear from my noble friend that the police have powers under another clause of the Bill to deal with nuisances of this sort. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Stanley of Alderley moved Amendment No. 31 : Page 25, line 16, at end insert— ("but includes adjacent land;").

The noble Lord said: My Lords, in moving this amendment, I should like to speak also to Amendments Nos. 32 and 33 which are consequential. The problem of the number of vehicles has been discussed at length, not least by the noble Lord, Lord Mishcon, tonight. Most noble Lords have felt that 12 is too many. My proposed number of three turned out to be only two, as the noble Lord, Lord Monson, pointed out. Following the Committee stage, my noble friend Lord Caithness was kind enough to write to me about the problem on 13th October. All noble Lords interested in the matter have, I believe, had a copy of the letter. Indeed, one was put in the Library.

As a result and following discussions on the Floor of the House—especially that which took place this evening on the amendment of the noble Lord, Lord Mishcon—I have to accept that it would be mistaken to upset the Caravan Sites Act 1968. This means, I believe, that we should keep the number of vehicles in the clause. Otherwise, we shall upset that Act. Indeed, as my noble friend Lord Caithness said, we would also upset subsection (1)(a) of Clause 39 which I accept fully is a major part of the aggravated trespass clause. I welcome that clause unreservedly. I accept therefore the figure of 12 vehicles, albeit reluctantly, as being correct and indeed reasonable.

What concerns me still is the situation where the police splits up a convoy, puts four vehicles in one field, six in another and perhaps 10 in a third. This is the point that the noble Lord, Lord Mishcon, made a few moments ago. I have therefore tabled the amendment being discussed. As I understand it, if the fields were in different ownership, the aggravated trespass clause—if I am allowed to give Clause 39 that name—could not be brought into operation and would not cover such a situation. I have tried to cover it by using the words "adjacent land". It is possible that noble Lords will query—I am sure that the noble Lord, Lord Mishcon, to judge by his expression, will do so—what is meant by adjacent land. I have consulted the Oxford dictionary. I have to say that it means "nearby, contiguous". I can see the noble Lord, Lord Mishcon, laughing.

Lord Mishcon

Smiling, my Lords.

Lord Stanley of Alderley

But, my Lords, in all seriousness, I believe that any police officer, and much more important, a magistrate, and if I may be a little naughty here, particularly a country magistrate, would be able to interpret the word "adjacent". I beg to move.

The Earl of Caithness

My Lords, I fear that I have to say straight away to my noble friend that we do not think his amendment satisfactory. We want to have a provision which is clear and effective. Perhaps I may mention briefly some of the disadvantages of my noble friend's amendment. His amendment would leave unclear what is to be regarded as adjacent land. He has tried to deal with that point; but I fear that it would not satisfy myself, nor the noble Lord, Lord Mishcon. Nor does it make it clear whether the occupiers of the land have to ask all the trespassers to leave or only one; or whether, where threatening words or behaviour are used, all the occupiers should be victims.

These are not merely points of detail. They go to the heart of the clause, and could not be addressed without unpicking it. I know that it is getting late in the Bill, but if my noble friend would like me to unpick the whole clause, which I felt he had supported, I shall see what I can do. However, I cannot guarantee anything.

In any event, we doubt whether it is necessary to cover the situation about which my noble friend is concerned in this way. Where there are fewer than 12 vehicles, the test in paragraph (a) will continue to apply. Therefore, small groups will continue to be subject to powers of direction if they commit damage to property or are threatening, abusive or insulting. This protection remains even in relation to small groups, and I hope that my noble friend will accept that it is sufficient to cover the situation for encampments on adjacent land.

With regard to Amendments Nos. 32 and 33, in the name of my noble friend, I regret to have to tell him that we do not think that these add or clarify anything.

Lord Stanley of Alderley

My Lords, I do not really thank my noble friend for that particular remark. As I said earlier when I introduced my amendment, I accept the protection in subsection (1)(a); therefore, I am moderately happy. However, I have to say to my noble friend that, when he says that my amendment makes it unclear, I feel that that really is a question of the pot calling the kettle black. If the noble Lord, Lord Boyd-Carpenter, were here, I am sure that he would say that my amendment is more satisfactory than the one referring to 12 vehicles. If it were not so late, I might even persuade the noble Lord, Lord Mishcon, that my amendment is rather more satisfactory than the 12 vehicles. The noble Lord almost nods!

Lord Mishcon

My Lords, how can one almost nod?

Lord Stanley of Alderley

My Lords, like the 12 vehicles, it is somewhat unclear! However, bearing in mind the assurances that I have had from my noble friend, and in particular the subsection (1)(a) provision in Clause 39, I beg leave to withdraw this amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 32 and 33 not moved.]

Lord Stanley of Alderley moved Amendment No. 34: Page 25, line 27, at end insert ("and a person may be regarded for the purposes of this section as having the purpose of residing in a place notwithstanding that he has a home elsewhere.").

The noble Lord said: My Lords, the interpretation of the word "reside" taxed your Lordships at Committee stage. I proposed an amendment with one meaning, and my noble friend Lord Renton suggested another meaning, both of which were taken from the Oxford Dictionary. I feel sure that my noble friend Lord Renton is well aware, as I am, that neither definition quite fitted the case so far as concerns this Bill. Since then, considerable discussion has taken place and it seems to me that to use any word other than "reside" will have as much ambiguity as the word "reside". Therefore, I reluctantly accept the Government's argument, that "reside for a period" it must be.

However, there is one loophole which I hope your Lordships and my noble friend will accept should be clarified, to prevent trespassers saying that they are not residing in that particular place because they reside perhaps for 364 days of the year elsewhere. I think I mentioned this point in Committee: the question of residence in taxation law. The definition of residence referred to in that legislation might be twisted to apply to this particular case. The trespassers give the address of their residence, and as a result they can argue that they should not be considered to be "residing for a period" in that particular field, because their residence was elsewhere. This amendment should avoid such a situation and I hope that your Lordships will be able to accept it as a minor clarification to the word "reside". I beg to move.

Lord Clinton

My Lords, I put my name down in support of a previous amendment concerning agricultural buildings. This is really because I sit on a parliamentary committee of the CLA, and I have seen the work that has been done on both these amendments which have been brought to your Lordships' House. Many reasons will obviously be given why this clause should not work; but in actual practice, I believe that it will. The need to show intent to reside for a period of time is very important to this clause. The words of the amendment support this, and define very clearly in my opinion the word "reside" in this context. The excuse, "I reside elsewhere", really cannot be used. The words used would satisfy me as a landowner. Also, I think it would be easier for a constable in uniform to interpret it as it is set out in this amendment.

The Earl of Caithness

My Lords, as my noble friend has explained, with the present wording there might be some doubt as to whether the clause catches those who have a permanent place of residence elsewhere. It is desirable to catch such people as well as those who have nowhere else to live. And certainly we do not want the police to have to investigate whether the persons concerned have a place of residence elsewhere before being able to act. That was a point well put by my noble friend Lord Clinton. This amendment places the point beyond doubt, and I am happy to accept it.

On Question, amendment agreed to.

Clause 42 [Extent]:

The Earl of Caithness moved Amendment No. 35: Page 26, line 26, leave out ("and section 43") and insert (", section 43 and paragraph 5A of Schedule 2").

The noble Lord said: This amendment is consequential to our amendments to Part III and Schedule 2 at an earlier stage. I beg to move.

On Question, amendment agreed to.