Lords Sitting of 24 May 1994

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

D-Day Tributes
Lord Moran Lord Moran asked Her Majesty's Government:
Whether they will take the opportunity of the forthcoming anniversary of the Normandy landings to express to Commonwealth countries the thanks of the House and of the nation for their help on D-Day and throughout the Second World War.
The Lord Privy Seal (Lord Wakeham): My Lords, the whole House will be grateful to the noble Lord, Lord Moran, for affording it the opportunity to pay tribute to the magnificent assistance which Commonwealth countries gave during the last war.
Noble Lords: Hear, hear.
Lord Wakeham: Commemorative events planned for the anniversary of the end of the Second World War next year will provide a fitting occasion to give full recognition to the contributions of Commonwealth countries and, indeed, of our other allies.
Lord Moran: My Lords, I am most grateful to the noble Lord the Leader of the House for that reply which will be widely welcomed. Does he accept that those of us who, 50 years ago, were in the Channel or in the skies over it or preparing to land on the Normandy beaches were in no doubt about the enormous debt of gratitude owed to our friends from distant parts of the Commonwealth who came to fight with us, not only in Europe, like the 3rd Canadian Division, which was to land on D-Day, but in other theatres as well? For example, is the noble Lord aware that between 1943 and 1945 the proportion of pilots in Bomber Command from Canada, Australia and New Zealand rose from 37 per cent. to 46 per cent.—nearly half—and that in 1944, when we were critically short of junior officers, the Canadians lent us, as volunteers under the Canloan scheme, 673 junior officers, who fought with British regiments from D-Day to the end of the war, suffering 75 per cent. casualties and receiving an outstanding number of awards for gallantry?
Lord Wakeham: My Lords, I echo entirely the sentiments of the noble Lord in expressing our debt of gratitude to those from Commonwealth countries who served with distinction with British regiments from D-Day through to the end of the war. The heads of state of Australia, Canada and New Zealand, together with representatives of their veterans, have been invited to the 50th anniversary D-Day commemorations which will recognise the contributions of all those allies who provided formed military units in and around Normandy on 6th June 1944.
The Earl of Lauderdale: My Lords, is my noble friend aware that the Government of New Zealand— New Zealand is the point furthest from the Polish corridor, the source of World War II—met on 1st September 1939 and decided that as from the day on which Britain was at war they would be also?
Lord Wakeham: My Lords, my noble friend is absolutely right. I know that the High Commissioner for New Zealand is aware of this occasion in your Lordships' House today and is very pleased that we are taking the opportunity to pay tribute to his country.
Lord Ennals: My Lords, I had the privilege of being a reconnaissance corps officer serving in Normandy from 6th June 1944. I had the privilege also of being a Commonwealth observer in South Africa on 10th April 1994. Therefore, the Minister will not be surprised to learn that I share totally the views expressed by the noble Lord, Lord Moran. Would not the best way of demonstrating our support for what Commonwealth countries have done in the past be to give maximum support to what the developed countries of the Commonwealth are doing today through the many practical projects which help developing countries of the Commonwealth—projects which are valued and needed by those developing countries?
Lord Wakeham: My Lords, I am sure, that the noble Lord is absolutely right. We shall continue to strive to develop relationships with the Commonwealth in the way the noble Lord suggests and in other ways. However, this Question is about one very great event in our history.
Lord Shaughnessy: My Lords, I am sure that the response of the noble Lord the Leader of the House to the Question in the name of my noble friend Lord Moran will be greeted with great pleasure by the Commonwealth forces who took part in the D-Day landings and later in Operation Overlord. I cannot speak for those of the Canadian forces who took part in the D-Day landings because I did not land on Juno beach until D-plus 23 but I should like to support the splendid celebration of 6th June to commemorate that terrific military operation, and I associate the Canadians who took part in paying tribute to the wonderful co-ordination and reciprocation of the combined efforts on the part of our British and American comrades who made such a tremendous contribution to that great operation.
Lord Wakeham: My Lords, I am sure the whole House is grateful to the noble Lord, Lord Shaughnessy, for recounting his particular experiences and for saying what he said.
Lord Williams of Elvel: My Lords, may I associate these Benches with the thoughts expressed by the noble Lord, Lord Moran, and indeed the thoughts expressed by the noble Lord the Leader of the House? I would say to the noble Lord the Leader of the House that I am particularly glad that the noble Lord, Lord Shaughnessy, mentioned the Canadian contribution, which was very important. Will the noble Lord the Leader of the House tell us what arrangements might under certain

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circumstances be made to commemorate in the same way those soldiers of former Commonwealth countries which are no longer in the Commonwealth but which we believe and hope will come back into the Commonwealth?
Lord Wakeham: My Lords, the position is that the nations invited to the D-Day celebrations are those which formed military units on 6th June. They include nations both within the Commonwealth and outside it, for example, Greece, Norway, Luxembourg, the Netherlands, Poland and Slovakia, as well as the major Commonwealth countries and the United States. There will be an opportunity of course in the VE celebrations and the VJ celebrations to widen the invitation to others and consideration will be given to exactly who the list will contain. However, I am hopeful that most of the nations your Lordships would wish to see invited will be invited.
Lord Mayhew: My Lords, in associating my noble friends and myself very closely with the tributes which have been paid, might not the tributes paid this afternoon be drawn to the attention, on an individual basis, of those Commonwealth units which took part in the fighting in Normandy?
Lord Wakeham: My Lords, that is a helpful suggestion. I believe the High Commissioners of the countries concerned know of this Question in your Lordships' House and are pleased that it is being asked. However, I shall ensure that everyone who should be told of it is told. I think we should move on fairly soon to the next Question.

Benzodiazepine Litigation: Legal Aid Costs
2.45 p.m.
Lord Boyd-Carpenter Lord Boyd-Carpenter asked Her Majesty's Government:
What was the cost to the Legal Aid Fund of the collapsed proceedings in respect of tranquillisers and other sedative drugs; and what is the total estimated cost of legal aid in the current year.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, final figures for the cost of the Benzodiazepine litigation are not yet available, and some aspects of the litigation are still continuing. This Answer can therefore only be an interim estimate. Some 13,000 legal aid certificates were granted. The Legal Aid Board estimates that the average cost per certificate where no proceedings were issued is £1,750. In cases where proceedings have been served, the average cost is estimated as £3,500. In addition there are generic costs in the region of £3 million to £4 million. The provision for legal aid for the current financial year is £1.406 billion.
Lord Boyd-Carpenter: My Lords, I thank my noble and learned friend for that interesting if rather depressing Answer. Will he say whether the real efforts
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which the House knows he is making to restrain the growth of this expenditure are being continued and will have any success?
The Lord Chancellor: My Lords, we are continuing with the efforts and I believe that they meet with a certain degree of success. The particular subject matter of the early part of this Question is difficult. The Legal Aid Board, and I hope also the Procedure Committee of the Supreme Court, will give consideration to whether the court arrangements can be improved for dealing with litigations of this type. Sadly such litigation has become more common in recent years and some new system for dealing with such cases may require to be established.
Lord Dean of Beswick: My Lords, is not the noble and learned Lord aware of some recent reports in the press which show that people who are alleged to have misappropriated large sums of money will be in receipt of legal aid? I believe in one case a sum of £2 million was referred to. If it is correct that a case is receiving such an amount of legal aid, does it not follow that that sum of money prevents people at the bottom end of the scale, who may have more minor cases but who may be more genuine, from receiving legal aid? If that is so, should not the whole system be looked at and reviewed and a different system be introduced to prevent that kind of abuse?
The Lord Chancellor: My Lords, it is easier to state the problems that face the legal aid system than to produce comprehensive solutions for them. If someone is accused of a serious crime and that person qualifies under the regulations for means, that person is entitled to legal aid. The cost of defending a person in serious proceedings may be quite substantial. On the other hand it is important that smaller cases are also properly serviced. The financial conditions for civil legal aid are of course different from those for criminal legal aid and are somewhat more stringent. My efforts have certainly been directed to try to secure, with the money available, as wide a service to the public as possible under this scheme.
Lord Cocks of Hartcliffe: My Lords, does the noble and learned Lord the Lord Chancellor recall a recent appeal, which was rejected by your Lordships' House, in which two counsel appealed against the reduction by the Taxing Master of their original claim for £107,000 for four days work to £34,000? Does he also recall that on that occasion the noble and learned Lord, Lord Templeman, said that it was up to the Bar Council to get a grip on these highly inflated figures? Has the noble and learned Lord the Lord Chancellor received any indication from the Bar Council that it is making any effort to deal with these recent highly inflated figures?
The Lord Chancellor: My Lords, as regards this Question, my principal concern is with legal aid. In relation to that matter I know that the Bar Council has always expressed concern where claims have been unduly inflated. As the noble Lord knows, there is a system for taxing or checking the fees claimed, and what is awarded is what the authority responsible for taxation considers to be reasonable. Therefore, it is not

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particularly important that larger amounts have been claimed except that it is easier for me to make satisfactory arrangements if the claims are as close as possible to what is regarded as reasonable and is ultimately awarded.
Lord Irvine of Lairg: My Lords, to revert to the original Question of the noble Lord, Lord Boyd-Carpenter, is the noble and learned Lord satisfied with the application of legal aid funds in the tranquilliser litigation? Rather than spend large sums of money on the investigation of the particular circumstances of many thousands of cases, would it not have been far preferable to have brought forward a small number of strong individual test cases in order to determine whether there was a generic case?
The Lord Chancellor: My Lords, as I said earlier, this matter goes further than merely arrangements for legal aid. The statutory arrangements for legal aid require the Legal Aid Board to consider the merits of individual claims. That is what it has done, and that is why I was able to distinguish between cases in which proceedings had been served and those in which proceedings had not been served.
Underlying the noble Lord's question is the important matter of court procedure as to whether there should be some system in the court for staying cases raising the same issue in order that strong cases might go forward. There is always difficulty in judging which are the strongest cases because most litigants have their own advisers, and to achieve a consensus view as to which are the stronger cases is not always easy. However, I believe that there may be scope for improving the procedures of the court in this connection and I hope that consideration can be given to that matter by the Supreme Court Procedure Committee and others. If any of your Lordships have good ideas as to how the matter might be handled I shall receive them with deep gratitude.
Lord Mackie of Benshie: My Lords, can the noble and learned Lord the Lord Chancellor say why legal aid costs are much lower in Scotland than in England?
The Lord Chancellor: My Lords, there are considerably fewer people in Scotland than in England and Wales and therefore considerably fewer applications for legal aid. I have no doubt that that is an important factor in the difference between the amounts spent in those countries.

Broadcasting Act 1990
2.53 p.m.
Lord Thomson of Monifieth Lord Thomson of Monifieth asked Her Majesty's Government:
What plans they have to amend the Broadcasting Act 1990.
Baroness Trumpington: None, my Lords, at present; but the Government are reviewing the rules which restrict ownership between newspapers, television companies and radio stations.
Lord Thomson of Monifieth: My Lords, I thank the noble Baroness for the latter half of her Answer. Is she aware that today the board of Channel 4 has sought amendments to the Broadcasting Act 1990 to deal with what has developed as the rather grotesque anomaly that a statutory public service corporation is; being compelled to subsidise the shareholders of ITV companies to the tune of about £38 million a year— money which, in the interests of the viewers, should be spent on the programmes?
Baroness Trumpington: My Lords, the funding arrangements were designed to safeguard Channel 4 in the long term. The arrangement has been in operation for only one year. The Government would have to be persuaded that changes were justified.
Viscount Whitelaw: My Lords, as one who has backed Channel 4 from the start, I am delighted to hear of its financial success. Will my noble friend recognise that that success should be rewarded in future financial arrangements for broadcasting?
Baroness Trumpington: My Lords, to answer my noble friend Lord Whitelaw, my right honourable friend the Secretary of State for National Heritage is meeting the chairman of Channel 4 next month to hear his views on the funding formula. I am sure that he will take account of my noble friend's views, particularly as it was he who set up Channel 4.
Lord Donoughue: My Lords, does the Minister not agree that almost any changes to the misjudged Broadcasting Act 1990 should be viewed with sympathy and, in particular, changes which would move money into programmes rather than elsewhere—although I would hope not into programmes such as the shabby Channel 4 programme on the noble Baroness, Lady Thatcher, last week? The general standard is very high. Will the Minister specifically give an assurance that any changes will not involve any movement towards privatisation of Channel 4?
Baroness Trumpington: My Lords, I can answer the noble Lord, Lord Donoughue, simply. We have no plans to do so.
Lord Orr-Ewing: My Lords, is my noble friend aware that last night Mary Whitehouse, who has done more than anyone to try to uphold the standards on all television channels, bowed out after serving for many years as the chairman of the National Viewers' and Listeners' Association? Is she also aware that in Sir Hugh Greene's time—although matters have changed very much now—he put round a notice saying that no employee of the BBC was to have any contact with Mrs. Whitehouse whatsoever? Indeed, she says in her book that for 11 years she was not invited to appear on any single programme. Her appearance last night shows that the new management has different policies.
Baroness Trumpington: My Lords, I am sure that we all wish Mrs. Whitehouse a long and happy retirement. She is a brave lady who has fought a great fight for what she believes in.
The Earl of Halsbury: My Lords, does the noble Baroness recall that in January when I moved for Papers in a debate on pornography and violence she undertook to examine the question of the watershed with a view possibly to moving it from 9 p.m. to 10.30 p.m., as is the practice in France? Has she made any progress with her studies?
Baroness Trumpington: My Lords, that question does not have much connection with the Broadcasting Act. However, I should like to reply to the noble Earl, Lord Halsbury. The regulatory authorities have specifically responded to anxieties about violence on television, and my right honourable friend the Secretary of State for National Heritage had meetings with them earlier this month. Perhaps I should point out that the programmes shown after 10.30 p.m. in France would not be allowed to be shown in England.

Corporal Punishment
2.58 p.m.
Lord Palmer Lord Palmer asked Her Majesty's Government:
Whether they have plans to reintroduce corporal punishment as a deterrent for those who commit crimes of violence and vandalism.
The Minister of State, Home Office (Earl Ferrers): My Lords, we have no such plans.
Lord Palmer: My Lords, I thank the noble Earl for that not altogether surprising answer, but does he not agree that if his Government did have such plans they would meet with widespread support throughout the country?
Earl Ferrers: My Lords, I agree with the noble Lord, Lord Palmer, that many people would like to see the return of corporal punishment. However, that does not remain part of the Government's policy simply because it would be contrary to the European Convention on Human Rights.
Viscount Mountgarret: My Lords, does my noble friend agree that the alarming and disappointing prospect of arming the police generally stems almost directly from the failure to administer proper punishment to thugs, bullies, muggers and the like? Does he agree that the practice in Arab countries, where the perpetrators of such offences as theft have their hand cut off, has succeeded remarkably well?
Earl Ferrers: My Lords, I do not know whether my noble friend suggests that we should use that kind of penalty in this country. However, I know that many people share the premise of his original question.
Lord Allen of Abbeydale: My Lords, does the Minister agree that there is some positive evidence that in this country at any rate corporal punishment may not be as effective a deterrent as is sometimes supposed? I am sure he will agree that when it was open to courts to impose lashes by the cat-o'-nine-tails for such offences as armed robbery, two separate studies showed that the subsequent criminal careers of a number of men who
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received that penalty were distinctly worse than the subsequent careers of a number of men convicted of precisely comparable offences who had not received that penalty.
Earl Ferrers: My Lords, it is always difficult to transpose the careers of one type of person with those of another, assuming that the first may have had a different punishment. I should have thought that many people would have found the punishment that the noble Lord, Lord Allen of Abbeydale, mentions a certain deterrent, but statistics may show otherwise.
Lord Wyatt of Weeford: My Lords, does the noble Earl agree that the whacking he received at Winchester improved his behaviour no end?
Earl Ferrers: My Lords, I have always wondered what it was that made me such a delightful person. I never ascribed it to that, but the noble Lord, Lord Wyatt, is probably correct.
Lord McIntosh of Haringey: My Lords, if one allows for the fact that the European Convention on Human Rights prohibits corporal punishment—in-stitutionalised violence—on the ground that it is degrading, whom do the Government consider more degraded by corporal punishment? Is it the victim, the punisher or the accused? Some of them must be degraded to a considerable extent.
Earl Ferrers: My Lords, I believe that the most degraded person is the victim on whom the violence has been perpetrated in the first place.
Lord Stoddart of Swindon: My Lords, have not recent cases abroad served to show that, even under a Tory Government, we are living in a decent, humane society which pays much attention to punishment and the effects of punishment and reform? Does it not also serve to remind those who travel abroad and violate the laws of those countries that the punishments in those countries may be cruel and vicious and that if they break the laws they should not whine when those punishments are inflicted?
Earl Ferrers: My Lords, the noble Lord, Lord Stoddart, is absolutely correct. If people go abroad they subject themselves to the laws of the country they visit. If they offend the laws of that country they get what they receive and deserve it.

Civil Rights (Disabled Persons) (No. 2) Bill [H.L.]
3.3 p.m.
Lord Ashley of Stoke: My Lords, I beg to introduce a Bill to prohibit discrimination against disabled people on the ground of their disability; and for connected purposes. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time. -(Lord Ashley of Stoke.)
On Question, Bill read a first time, and to be printed.

Business of the House: Debate, 25th May
Lord Wakeham: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the debate on the Motion in the name of the Lord Healey set down for Wednesday, 25th May, shall be limited to 5 hours.—(Lord Wakeham.)
On Question, Motion agreed to.

Church of Scotland (Properties and Investments) Order Confirmation Bill
Read a third time, and passed.
Vehicle Excise and Registration Bill [H.L.]
Report received.

Criminal Justice and Public Order Bill
3.5 p.m.
Earl Ferrers: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Earl Ferrers.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES (Lord Ampthill) in the Chair.]
Clause 55 [Powers to stop and search in anticipation of violence]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 46:
Page 39, line 19, leave out ("superintendent") and insert ("commander").
The noble Lord said: In moving Amendment No. 46, I speak also to Amendments Nos. 47, 48, 49, 51, 53 and 54. The amendments relate to Clause 55 of the Bill which comes under the general heading of "Powers of police to stop and search". Those Members of the Committee who have long memories will recall that "stop and search" is a phrase of considerable hallowed significance in the British legal system. Not so many years ago, after many years of outcry against the use of the power to stop and search—it used to be called the sus laws—the powers which existed for police to stop and search without any reasonable suspicion were abolished. They were used in many parts of the country quite conspicuously as an element of discrimination in particular against black people, but also against young people and unconventional people of all ages. Clause 55 proposes that there should be a return to stop and search procedures under certain circumstances.
I remind the Committee that the stop and search measure involves the power of arrest, detention and search, if necessary without any requirement that there should be any suspicion, let alone reasonable suspicion, of any offence having been committed. The Government have chosen to bring in the provision in Clause 55 by way of what I can only describe as a
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device. The device is to say that a police officer of or above the rank of superintendent under certain circumstances, which are entirely up to him to decide, may give an authorisation that stop and search powers -shall be given in any given locality for a period not exceeding 24 hours but capable of being extended by a further six hours. That set of procedures is fraught with uncertainty and inconsistency. I take the issues one by one and as expeditiously as I can.
First, it states in the first line of the clause that it is,
"a police officer of or above the rank of superintendent",
but in subsection (2) the provision immediately continues that such an authorisation can be given by an inspector. Therefore the provision regarding rank does not stand up well.
Then there is the question about the reasonable belief of the officer. That sounds all right because the word "reasonable" has a meaning in law. However, the provision continues that it is expedient to give an authorisation to prevent the occurrence of incidents involving serious violence. Expedience is as expedience does. Expedience can mean almost anything. Expedient is in the mind of the person who decides about expediency. It has nothing to do with whether the action is reasonable. Therefore that limitation on the powers does not survive well.
In subsection (1) (a) the phrase "serious violence" is used. What is serious violence? There is no crime of serious violence. There is a range of crimes which, in the opinion of the superintendent or inspector referred to in subsection (2), may be described as serious violence. There is no legal definition. Any restraint on that power which depends on the use of the words "serious violence" does not stand up.
Subsection (1) states that,
"the powers … conferred by this section shall be exercisable at any place within that locality".
What is a locality? A superintendent's area can be wide. A locality can be any part or all of that area. A "place" can be any part or all of that locality and therefore of that area. In other words, within the clause as drafted there is no significant geographical restriction other than the restriction of being within a superintendent's area.
It appears at the outset from subsection (1) that the restriction is for 24 hours, but further down Clause 55 we find that the 24-hour period can be extended by a further six hours. Here, a new offence is being created under Clause 55(7) which provides even for a month's imprisonment for failing to stop and agree to a search under such circumstances. No crime has been committed; there is no suspicion—reasonable or otherwise—that anyone has been involved in a crime. There is no suspicion required—reasonable or otherwise —that the person being stopped and searched has in his possession anything which might be thought to be suspicious, whether in the form of an offensive weapon, a dangerous instrument or anything else. The person could be walking, cycling, driving, riding a horse or anything. If he fails—perhaps because he has not heard of the authorisation—to stop and be searched by someone who does not produce a warrant and is not

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accusing him of anything but who just says, "I want to look in your car", he is already guilty of an offence for which he can be imprisoned for up to a month.
I suggest that here we have not merely a return to the sus laws; that would be bad enough. But we also have a return to the public order provisions which were common in the 18th and 19th centuries and probably earlier. I would rather we went back to the Riot Act where we had a magistrate appearing before a mob and reading a piece of paper which then gave the police powers to do something about the situation. That at least was an open and honest provision. But the provision which is allowed here, which permits interference with the liberty of the individual on no suspicion whatever other than the virtually untrammelled power of a police officer to make a declaration, seems to me to be excessive. I gladly give way to the noble Lord.
Lord Harmar-Nicholls: Is the noble Lord suggesting that a senior police officer shall under no circumstances be allowed to use his judgment in a possible incident which may develop into something serious? Is he never to be allowed to implement a judgment which an experienced man ought to have?
Lord McIntosh of Haringey: I suggest that all officers of police have the power to use their judgment when they have a suspicion—reasonable or not—that an offence has been committed or is about to be committed. They use their judgment under the present law. They do not need a provision like the one in Clause 55 in order to do so.
My final point is very serious. It is highly likely that the provisions in the Bill are in conflict with Articles 5 and 8 of the European Convention on Human Rights. I refer to Article 5(1) (c) of the convention which states that:
"no one shall be deprived of his liberty…save for…the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence."
That is what Article 5 says. I do not believe that it can seriously be claimed that the use of the stop and search powers given here has anything to do with reasonable suspicion of someone having committed an offence.
Article 8 of the convention provides that a person's privacy must not be interfered with unless the interference is,
"in accordance with the law [and] … necessary in a democratic society".
I suggest that the virtually untrammelled powers—I repeat the words—which are given to police officers go beyond the basis of policing in this country, which is that detention, stopping and searching are carried out only when there is reasonable suspicion of an offence being committed. The clause goes well beyond the powers which the police ought to have and need to have in a democratic and free society. It is seriously defective in those respects.
This is a revising Chamber and we have not sought to take out the entire clause. In the amendments we have sought in detail to remedy the defects of the clause to which I referred. In Amendment No. 46 we propose that the rank of superintendent should be changed to that of
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inspector or commander. In Amendment No. 47 we propose that the vague statement "serious violence" should be changed to:
"grievous bodily harm, attempted murder, [murder] or rape". In Amendment No. 48 we propose that the 24 hours should be reduced to six hours. In amendment—
Lord Hailsham of Saint Marylebone: Amendment No. 49.
Lord McIntosh of Haringey: No, I have the group. I am delighted to see that the noble and learned Lord is with me all the way. In Amendment No. 51 we propose that the provision that it should be expedient to give an authorisation should be altered. In Amendment No. 54 we propose that anything which is neither an offensive weapon nor a dangerous instrument which is found in the course of an investigation under Clause 55 should not be admissible in evidence in any other proceedings. In other words, Clause 55 should not be used as a cover for some other kind of search which ought to be carried out under other powers.
We do not wish to oppose clauses as a whole unless we have to. We believe that Clause 55 is capable of amendment for the protection of civil liberties and that this group of amendments will help to amend it. I beg to move.
3.15 p.m.
Lord Campbell of Alloway: I take a different view from the noble Lord. Serious violence has become a plague on our society, whether in demonstrations or in connection with football. Without the assistance of the police, the whole country would be at a certain degree of risk. We either trust the police or we do not trust them; if we trust them, we give them the powers to help them do what they should do to protect us and the public.
The noble Lord said that that is not open and honest. I cannot quite understand why. He said that it involved untrammelled power. The power is limited; it is limited within the reasonable belief of a police officer. If we do not trust the police officers or the police, where do we end? This is a necessary reserve power, as I see it, for the police to protect our society in the situation in which it now finds itself. Assuredly, it is not a fair analogy to suggest that it is a return to what is commonly called the sus laws.
By and large, I cannot see the objection in the amendment. The noble Lord says that Clause 55 does not stand up. With the greatest respect to him, I do not think that his criticism of it stands up.
The Minister of State, Scottish Office (Lord Fraser of Carmyllie): The purpose of Clause 55 is to give the police the power to search for offensive weapons in a particular area and for a limited period of time when they anticipate the likelihood of serious violence taking place. I listened to the noble Lord opening on the amendments with some surprise. My understanding was that when the provision was introduced in another place, not only was there a wide measure of cross-party

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support for such powers, but also, if there was any disagreement displayed, it was over who might claim the credit for the measures first being introduced.
Clause 55 is about the prevention of crime. Its provisions accordingly need to be appropriate to that purpose. I have to advise the Committee that this group of amendments would have the effect of seriously reducing the usefulness of the powers. Perhaps I might explain by reference to each amendment that has been tabled.
First, Amendment No. 46 would have the effect of increasing the level of authorisation for the exercise of the powers to stop and search from superintendent to commander, which is the first ACPO rank in London and, as I think the noble Lord will appreciate, is not a rank known outwith London. It is equivalent to assistant chief constable elsewhere. We have adopted the terminology of "commander" in this amendment. We recognise that it is important that the power to stop and search without having grounds for reasonable suspicion against an individual should be available only on the authorisation of a supervisory officer of appropriate rank. In our view the right level is that of superintendent. The superintendent is the most senior police officer with direct operational policing responsibilities. In our view, and harking back to debates on a previous Bill, it would seem that the superintendent is indeed the person who is best able to assess the local situation. His involvement will ensure a full assessment of the wider consequences in the local community. Authorisation at ACPO level would remove that important decision too far from the local community. For that reason we remain of the view that superintendent is the right level.
Amendment No. 47 would change the grounds on which the senior police officer could authorise the exercise of the powers of stop and search from where he believes that incidents involving "serious violence" may take place to where he believes that incidents involving "grievous bodily harm, attempted murder or rape" may take place.
As I have sought to explain, the purpose of Clause 55 —as my noble friend Lord Campbell of Alloway also pointed out—is to enable the police to take measures to prevent violent disorder involving the use of offensive weapons from taking place. It is not possible for the police to anticipate that particular crimes will take place, still less crimes such as rape or attempted murder. So the amendment would render the power very difficult to use unless the police—unusually —had very particular and precise intelligence as to the intentions of those involved. In our view this amendment would render the power nugatory in most cases.
Perhaps I may pass to Amendment No. 48, which would reduce the maximum period for which the exercise of the power to stop and search could be authorised from a period not exceeding "twenty four" hours to a period not exceeding "six" hours. Of course, the maximum period will not always be needed and will not always be authorised. But there will be occasions when 24 hours will be necessary and when six hours would not be sufficient. I would point out that there is no provision for a renewal or extension of the period of
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authorisation except after violent incidents have actually taken place. So again, this amendment would seriously reduce the effectiveness of the power as an important crime prevention measure.
Amendment No. 49 would remove the urgency provision that would allow an officer of the rank below superintendent to authorise the use of the power to stop and search if he believed that violent disorder was imminent and no superintendent was available. If we are giving a power to the police, then we have a duty to ensure that it is capable of being used in all the circumstances that we can reasonably anticipate Superintendents are sometimes absent from their areas. Serious trouble can blow up very suddenly. If we do not cater for these eventualities in framing the law, the public will rightly say that we have fudged our duty.
The noble Lord's amendment would also remove the provision that allows the original period of authorisation for the exercise of the power to stop and search to be; extended for a further six hours in the event that serious violence actually occurs. This provision was included precisely to reflect the views of Opposition Members in another place that powers were needed to deal retrospectively with violence that had broken out. The police are very keen to have a power of this kind. This amendment proposes to limit severely the use of the power to even fewer situations than the restricted number that we envisage. Again, it would seriously reduce the value of the power.
Amendment No. 51 is an alternative to the second part of Amendment No. 49. It would change the grounds on which the original period of authorisation could be extended for a further six hours after incidents of serious violence had actually taken place from because,
"it is expedient to do so",
to because,
"he has reasonable grounds to believe that it is necessary".
If a provision of this kind were to be made law, it would be necessary to spell out what those grounds might be related to: for example to gather evidence or to prevent further violence. With respect, I do not think that that would add anything. Given that in this situation incidents of serious violence will be known or will be reported to have taken place, there will always be such grounds. I believe, as a matter of drafting, that the present wording is clearer and simpler.
Amendment No. 53 is probably intended to refer to line 14 instead of line 12, but it would require that, where a written statement is provided to a person who has been stopped and searched under these powers, the statement would have to,
"set out the reasons why this provision was used on this occasion".
In many instances the decisions of authorising officers will be based on intelligence or other sensitive sources of information. The intention of this provision is to do no more than provide confirmation that the person concerned has been lawfully stopped and searched under these particular powers. If that person wishes to challenge the police about their use of the power—for example, by claiming false imprisonment—the proper place to do so would be in the courts, which would be able to consider questions such as the release of sensitive information.

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Finally, Amendment No. 54 would make evidence of any offence, other than the carrying of knives and other offensive weapons found during any search made under this section, inadmissible in any criminal trial. This would prevent the police from arresting a person who had been stopped under this power and found to be in possession of prohibited items other than knives or other offensive weapons; for example, drugs or suspected stolen articles. I think it is probable that the police would not wish to be diverted from searching for knives and offensive weapons to prevent an outbreak of violence in order, for example, to deal with possession of a small quantity of cannabis; but it is possible that they will discover evidence of a more serious crime and I wonder whether the public would not think that the law would be coming into disrepute if in such circumstances the police could take no action whatsoever to bring that offender to justice.
To sum up, we must ensure that the powers that we give to the police are adequate to deal with the problems that they are intended to address and to deal with all reasonably foreseeable contingencies. The effect of this group of amendments would be seriously to reduce the usefulness of the power to stop and search to prevent violence. They are not just small modifying provisions. They would bring about that effect. I can only conclude by saying, as I started, that my clear understanding is that in another place there was clear cross-party support for this measure. I invite the Committee to reject these amendments.
Lord Lester of Herne Hill: I do not go so far as the noble Lord, Lord McIntosh, does in his amendments, but I speak in support of two of them, Amendments Nos. 46 and 49, which are narrow but important.
As the Minister just indicated, the powers conferred by Clause 55 are new and important powers resulting from an all-party initiative in the other place. They are designed to enable the police to tackle a serious social problem; namely, serious violence on our streets. But because the exercise of the powers of stop and search is capable of interfering with personal liberty and personal privacy, there must be adequate safeguards against their misuse.
At Report stage of the Bill in another place the Minister of State, Mr. David Maclean, recognised that situation and pointed out that the powers proposed by a Labour Party amendment departed from the safeguards against the misuse of police powers in Section 1 of the Police and Criminal Evidence Act. Those powers may only be lawfully exercised if the police have reasonable grounds for suspecting that they will find stolen or prohibited articles.
Clause 55 abandons the safeguard that there must be reasonable suspicion before the new powers are exercised. Because it does so, I suggest that it is essential for other adequate and effective safeguards to be in place to reduce the dangers of the misuse of the new powers, especially the danger of damaging public confidence in the police service among members of
616
ethnic minorities, who were justifiably concerned about the ways in which the bad old sus law used to be misused before the enactment of PACE in 1984.
Therefore I support Amendment No. 46, tabled by the noble Lord, Lord McIntosh, because it introduces an important safeguard as to the level at which this important decision will be taken, triggering the exercise of these new powers. No doubt at that more senior level regard will be had to what the local police say is the position within the local community. In the same way, I support Amendment No. 49, which would remove the power of a police inspector to authorise the special powers of stop and search. They are draconian powers which should be exercised at above inspector level.
I do not believe that the language of Clause 55 as it stands provides adequate safeguards. The requirement that a superintendent must have a reasonable belief that incidents involving serious violence may take place in any locality in his area is indeed a safeguard; but the courts would give a very wide margin of discretion to the superintendent in deciding (in the words of Clause 55(1) (b)) whether he reasonably believes that it is expedient to give the necessary authorisation to prevent occurrence of serious violence.
The courts will only review the exercise of such a wide discretion if it has been done in bad faith or for an improper purpose, or because the superintendent had taken leave of his senses. As the Committee knows, our courts do not review whether public powers are properly exercised according to a stricter standard known as the principle of proportionality. They do not review whether the powers are exercised only to the extent necessary to enable the police to achieve their legitimate aims. In other words, the police will enjoy very wide discretionary powers under Clause 55 and be virtually immune from judicial review about their exercise. That is why I suggest that it is appropriate for key decisions to be taken only at a very senior level within the police service.
Perhaps I may add that I agree with the noble Lord, Lord McIntosh, that, if the powers were abused, there would be a serious risk of breaches of Articles 5 and 8 of the European Convention on Human Rights. I suggest that that is a further reason for doing what we can as legislators to minimise the risk of breaches of that kind.
The noble Lord, Lord Campbell of Alloway, advanced what I regard as the dangerous argument that one can trust the police. There is no question of not trusting the police service to do its job properly. But our society is one which is based on respect for human rights and the rule of law. These amendments would have the beneficial effect of providing some adequate safeguards against the possibility of abuse.
3.30 p.m.
Lord Finsberg: After listening to that speech, it occurs to me that we are looking at one issue: whether we believe that it is better to try to prevent crime than to let it happen. From the speeches of the noble Lord, Lord McIntosh, and the noble Lord who has just spoken, it seems to me that they do not share that point of view. For example, if there is no superintendent available, are

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we to wait until a superintendent is found from somewhere or is it wiser that under those circumstances an inspector should be entitled to act? Moreover, surely anybody who has nothing to hide will not object to being stopped, as suggested in this clause.
With regard to Article 8, over the past 10 years I have had to read with some care most of the judgments that came from the European Court of Human Rights. I believe that the point made by the noble Lord, Lord McIntosh, is misconceived. The noble Lord spoke of a democratic society. A democratic society is governed by parliamentary democracy. If Parliament passes a law which it believes will preserve democracy and prevent crime, I do not believe that the Commission (and now, under the new set-up, the Court) is likely to say that we are outwith the Convention on Human Rights.
For those reasons, I believe that the whole collection of amendments is misconceived and ought not to be accepted.
Lord Harmar-Nicholls: Nobody who reads these clauses and makes a fair assessment of them could in any way say that they come within the bounds of what is known as the sus law. Even the effect of that sus law, which earned such a reputation in the past, was exaggerated. I feel that it would be a grievous mistake at this stage to interfere with the clauses as they stand. Even if there were any strength in the arguments of the noble Lord, Lord McIntosh, and others about different words easing the position a little, they would reflect a reluctance on the part of Parliament to give the powers that the police need if they are to face up to the problems that we know they must face every Saturday when there is a football match, quite apart from other matters in the meantime.
I do not believe that at this time, with the circumstances that we all know exist, Parliament ought to be reluctant to recognise that in this issue the police, and particularly senior officers, have a part to play and their judgment should be allowed to stand up, quite apart from the detailed examinations that would flow from the amendments proposed by the noble Lord.
Lord McIntosh of Haringey: The Minister has done a service to the Committee in setting out more clearly and accurately than I the effect in detail of my amendments. I am sure he would agree that what both the Government and those of us who put forward the amendments are trying to do is to strike a balance. We are trying to secure public order, which we consider to be of very great importance, but not at the expense of individual liberty.
There are a number of different balances that different people will strike under different circumstances. I suggest that those who have been accustomed to having their individual liberty put at risk—in particular, young people, black people, people in inner city areas and poor people—may well take a different view from the view taken by some Members of this Committee. It is very unlikely that many Members of this Committee were stopped by the police under the sus laws when those laws were enforced. Even when they were young, it is unlikely that many Members of this Committee were stopped for anything other than possibly taking
618
policemen's helmets on Boat Race night. There seems to be a considerable difference between the way in which upper-class violence, as at Twickenham or on Boat Race night, is treated compared with the violence of people who pursue other kinds of sporting activities.
It is therefore a balance that we are seeking to strike. The fundamental difference between these Benches and the Government on this issue is the extent to which it is permissible to go beyond the principle behind both British and European law; that is, that interference with liberty, except in wholly exceptional circumstances, is confined to occasions when the police have a suspicion, or a reasonable suspicion, that a crime has been or is going to be committed. In these amendments we are saying that the extension of the ability of the police, without suspicion or reasonable suspicion, to interfere with liberty goes too far.
I take seriously the comments of the noble Lord, Lord Lester, who is so much more experienced than I both in the courts and particularly in the interpretation of European legislation. If he says to me that my amendments, other than Amendments Nos. 46 and 49, go too far—I understand that to be his position—I shall bow to his greater experience. I propose, therefore, that a decision taken on Amendment No. 46 should only be taken to apply also to Amendment No. 49, and that the other amendments in the group should not be moved. They will not be taken as part of the group and to that extent I am grateful to the noble Lord, Lord Lester, for his wise advice.
But we must draw the line somewhere. We must oppose the extension of police powers to interfere with individual liberty without suspicion or reasonable suspicion well before the line that the Government have drawn. Some restriction must be brought on Clause 55. That should be an issue which commands respect and support in all political parties and in none. On that issue I seek the opinion of the Committee.
3.42 p.m.
On Question, Whether the said amendment (No. 46) shall be agreed to?
Their Lordships divided: Contents, 99; Not-Contents, 201.

Division No. 1

CONTENTS

Airedale, L.

Donaldson of Kingsbridge, L.

Archer of Sandwell, L.

Dormand of Easington, L.

Ardwick, L.

Eatwell, L.

Avebury, L.

Ennals, L.

Barnett, L.

Ezra, L.

Beaumont of Whitley, L.

Gallacher, L.

Bonham-Carter, L.

Geraint, L.

Boston of Faversham, L.

Glasgow, E.

Bottomley, L.

Gould of Potternewton, B.

Bruce of Donington, L.

[Teller.]

Campbell of Eskan, L.

Graham of Edmonton, L

Carmichael of Kelvingrove, L.

Gregson, L.

Carter, L.

Grey, E.

Castle of Blackburn, B.

Harris of Greenwich, L.

Cledwyn of Penrhos, L.

Haskel, L.

Clinton-Davis, L.

Hilton of Eggardon, B.

Cocks of Hartcliffe, L.

Hollis of Heigham, B.

Dahrendorf, L.

Howell, L.[Teller.]

David, B.

Howie of Troon, L.

Dean of Thornton-le-Fylde, B.

Hunt, L.

Desai, L.

Hylton, L.

619

Irvine of Lairg, L.

Parry, L.

Jacques, L.

Peston, L.

Jay, L.

Plant of Highfield, L.

Jenkins of Hillhead, L.

Prys-Davies, L.

Jenkins of Putney, L.

Rea, L.

Kagan, L.

Richard, L.

Kilbracken, L.

Robson of Kiddington, B.

Kirkhill, L.

Rochester, L.

Lester of Herne Hill, L.

Sainsbury, L.

Lincoln, Bp.

Seear, B.

Listowel, E.

Sefton of Garston, L.

Liverpool, Bp.

Serota, B.

Llewelyn-Davies of Hastoe, B.

Shannon, E.

Lockwood, B.

Shepherd, L.

Longford, E.

Stallard, L.

Macaulay of Bragar, L.

Stoddart of Swindon, L.

Mackie of Benshie, L.

Strabolgi, L.

Mallalieu, B.

Taylor of Blackburn, L.

Masham of Ilton, B.

Taylor of Gryfe, L.

Mason of Bamsley, L.

Thomson of Monifieth, L.

Mayhew, L.

Tordoff, L.

McIntosh of Haringey, L.

Turner of Camden, B.

McNair, L.

Varley, L.

Merlyn-Rees, L.

Wallace of Coslany, L.

Milner of Leeds, L.

Whaddon, L.

Molloy, L.

White, B.

Morris of Castle Morris, L.

Wigoder, L.

Nicol, B.

Williams of Elvel, L.

Ogmore. L.

Williams of Mostyn, L.

NOT-CONTENTS

Aberdare, L.

Craig of Radley, L.

Ackner, L.

Cranborne, V.

Aldington, L.

Crawshaw, L.

Alexander of Tunis, E.

Cross, V.

Alexander of Weedon, L.

Cumberlege, B.

Alport, L.

Dacre of Glanton, L.

Annaly, L.

Daventry, V.

Annan, L.

Davidson, V.

Archer of Weston-Super-Mare, L.

Dean of Harptree, L.

Arran, E.

Denham, L.

Ashbourne, L.

Denton of Wakefield, B.

Astor of Hever, L.

Derwent, L.

Attlee, E.

Dixon-Smith, L.

Balfour of Inchrye, L.

Donegall, M.

Belhaven and Stenton, L.

Eccles, V.

Bellwin, L.

Ellenborough, L.

Biddulph, L.

Elles, B.

Blatch, B.

Elliott of Morpeth, L.

Blyth, L.

Elton, L.

Boardman, L.

Erroll of Hale, L.

Borthwick, L.

Fanshawe of Richmond, L.

Boyd-Carpenter, L.

Ferrers, E.

Brabazon of Tara, L.

Finsberg, L.

Brain, L.

Foley, L.

Braine of Wheatley, L.

Forbes, L.

Brightman, L.

Forteviot, L.

Brigstocke, B.

Fraser of Carmyllie, L.

Burnham, L.

Fraser of Kilmorack, L.

Burton, L.

Gainford, L.

Butterworth, L.

Gardner of Parkes, B.

Cadman, L.

Geddes, L.

Caldecote, V.

Gisborough, L.

Campbell of Alloway, L.

Goschen, V.

Campbell of Croy, L.

Gridley, L.

Camegy of Lour, B.

Grimston of Westbury, L.

Carnock, L.

Haddington, E.

Carr of Hadley, L.

Hailsham of Saint Marylebone, L.

Chalker of Wallasey, B.

Hamilton of Dalzell, L.

Chelmsford, V.

Hampden, V.

Chesham, L.

Hardinge of Penshurst, L.

Clifford of Chudleigh, L.

Harmar-Nicholls, L.

Clitheroe, L.

Harmsworth, L.

Cochrane of Cults, L.

Hayhoe, L.

Cockfield, L.

Hayter, L.

Colnbrook, L.

Henley, L.

Constantine of Stanmore, L.

Hives, L.

Courtown, E.

Holderness, L.

Coventry, E.

HolmPatrick, L.

Cox, B.

Hood, V.

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Hothfield, L.

Pym, L.

Hylton-Foster, B.

Quinton, L.

Ironside, L.

Rankeillour, L.

Johnston of Rockport, L.

Rawlinson of Ewell, L.

Kenyon, L.

Renfrew of Kaimsthorn, L.

Kimball, L.

Renton, L.

Kinloss, Ly.

Renwick, L.

Kinnaird, L.

Rippon of Hexham, L.

Kinnoull, E.

Rodger of Earlsferry, L.

Kintore, E.

Romney, E.

Lauderdale, E.

Roskill, L.

Lloyd-George of Dwyfor, E.

Salisbury, M.

Long, V.

Saltoun of Abernethy, Ly.

Lonsdale, E.

Sandford, L.

Lucas of Chilworth, L.

Savile, L.

Lyell, L.

Seccombe, B.

Mackay of Ardbrecknish, L.

Selborne, E.

Mackay of Clashfem, L. [Lord

Sempill, Ly.

Chancellor.]

Sharpies, B.

Macleod of Borve, B.

Skidelsky, L.

Macpherson of Drumochter, L.

Slim, V.

Manchester, D.

Somerset, D.

Mancroft, L.

Soulsby of Swaffham Prior, L.

Manton, L.

St. Davids, V.

Marlesford, L.

Stanley of Alderley, L.

Marsh, L.

Stodart of Leaston, L.

Melville, V.

Strange, B.

Merrivale, L.

Strathclyde, L.

Mersey, V.

Strathmore and Kinghorne, E.

Middleton, L.

[Teller.]

Milverton, L.

Sudeley, L.

Monk Bretton, L.

Swansea, L.

Monson, L.

Swinfen, L.

Montgomery of Alamein, V.

Swinton, E.

Morris, L.

Terrington, L.

Mottistone, L.

Teviot, L.

Mountgarret, V.

Thomas of Gwydir, L.

Moyola, L.

Tonypandy, V.

Munster, E.

Trefgarne, L.

Murton of Lindisfame, L.

Trevethin and Oaksey, L.

Nelson, E.

Trumpington, B.

Norfolk, D.

Ullswater, V. [Teller.]

Norrie, L.

Vaux of Harrowden, L.

Northboume, L.

Vivian, L.

Oppenheim-Barnes, B.

Wade of Chorlton, L.

Orr-Ewing, L.

Wakeham, L. [Lord Privy Seal.]

Palmer, L.

Wamock, B.

Peel, E.

Waterford, M.

Pender, L.

Whitelaw, V.

Peyton of Yeovil, L.

Wise, L.

Pike, B.

Wynford, L.

Platt of Writtle, B.

Young, B.

Plummer of St. Marylebone, L.

Resolved in the negative, and amendment disagreed to accordingly.
3.53 p.m.
[Amendments Nos. 47 to 49 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 50:
Page 39, line 27, at end insert ("a chief inspector or").
The noble and learned Lord said: In moving Amendment No. 50 I shall speak also to Amendment No. 52. The amendments are relatively minor and are designed to tighten up the drafting of Clause 55.
Amendment No. 50 would allow the emergency authorisation to be given by either a chief inspector or an inspector, in recognition of the fact that, following the decision of your Lordships' House, the rank of chief inspector is no longer to be abolished by the Police and Magistrates' Courts Bill. It makes sense to allow either a chief inspector or an inspector to give an emergency

621
authorisation because in some basic command units the second in command will be a chief inspector but in others it will be an inspector.
Amendment No. 52 seeks to amend Clause 55 to ensure that the police are able to seize any offensive weapon or dangerous item that they discover when conducting a search using this new power. Clause 55 currently empowers police officers in certain circum-stances to stop and search pedestrians and vehicles for offensive weapons or dangerous articles, but there is no express provision to allow the police to seize any such weapons or articles that they find. It is obviously desirable that such items should be immediately taken out of circulation.
I would add that we are not seeking to extend the power of seizure to other illegal items which might be found, such as drugs. The reason is that Clause 55 is narrowly addressed to the matter of offensive weapons and violence and we do not wish to go beyond the narrow purposes of the clause. I am sure your Lordships will agree that both amendments are sensible and improve the drafting of the Bill. I beg to move.
Lord McIntosh of Haringey: The Committee will be glad to have confirmation from the Minister that the Government do not intend to overturn the decision taken by your Lordships on the consideration of the Police and Magistrates' Courts Bill to retain the rank of chief inspector. We understand from the proceedings in another place that that is the case, but it is nice to have it confirmed here. We hope that the only amendments we shall have to consider when the Bill comes back from another place will be those carried by my right honourable and honourable friends.
Amendment No. 52 is welcome, but it is curious that all of this elaborate procedure for providing for stop and search powers has never extended to the power to seize a dangerous weapon. I cannot think what the draftsman must have been doing before now and how the provision got through another place without this obviously necessary amendment.
Lord Harris of Greenwich: Perhaps I may follow up that point. As I understand the position, there is no provision at the moment for giving the power to the police to seize a dangerous weapon. Is that the case? Secondly, I echo what was said by the noble Lord, Lord McIntosh. Your Lordships will recall the rather substantial debate that we had on the issue of ranks in the police service. I too welcome the fact, notwithstanding that the Government were defeated on the question in your Lordships' House, that they have now accepted the judgment of the House. That will be widely welcomed both in the House and outside it.
Lord Avebury: I understand very well what the Minister said about not wanting to widen this clause beyond the power to stop and search, but I was a little amazed to hear him say that if a substantial quantity of drugs was to be found during an operation of this kind the police could simply allow the possessor of those drugs to drive off with them. The noble and learned Lord shakes his head, so I am obviously wrong about
622
that. However, I should like a fuller explanation of what happens when in the course of a search under this clause the police find quantities of dangerous drugs.
Lord Fraser of Carmyllie: I am happy briefly to elaborate and explain the position. I understood that it was the desire of the House that this power should be kept as narrowly defined as possible. However, if other unlawful items were found the police would then have the option of arresting the person and instituting criminal proceedings. In such circumstances the arrest itself would trigger any necessary seizure powers. It seems to the Government that that is the desirable way to approach any other illegal items—not by an extension of this power.
On Question, amendment agreed to.
[Amendment No. 51 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 52:
Page 39, line 44, at end insert:
("( ) If in the course of a search under this section a constable discovers a dangerous instrument or an article which he has reasonable grounds for suspecting to be an offensive weapon, he may seize it.").
The noble and learned Lord said: I have already spoken to Amendment No. 52. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 53 and 54 not moved.]
Clause 55, as amended, agreed to.
Clause 56 [Power to remove trespassers on land]:
Baroness Mallalieu Baroness Mallalieu moved Amendment No. 55:
Page 40, line 30, leave out from ("If) to ("that") in line. 31 and insert ("a county court is satisfied").
The noble Baroness said: In moving Amendment No. 55 I shall speak also to Amendments Nos. 57, 59, 59ZB, 60, 61 and 83A. I omit Amendment No. 82 which is grouped with the other amendments because I think it is in error.
Clause 56 extends the existing powers to remove trespassers on land. The powers are currently contained in Section 39 of the Public Order Act 1986. That provision was introduced to deal with mass trespass and trespass which involved damage or offensive behaviour. The proposal in Clause 56 gives a police officer at the scene who reasonably believes that two or more people are trespassing on land with the intention of living there for any period of time after the occupier has asked them to leave and who have either caused damage or behaved in an insulting or threatening manner, or simply have six or more vehicles, the power to direct them to leave. If they fail to go as soon as is practicable or return within three months, they face penalties of up to three months' imprisonment or a substantial fine. The offences are arrestable ones.
The provisions are extended to land which adjoins highways, minor roads and bridleways as well. They also apply to Scotland. As I understand it, the reasons for the provisions in Clause 56 are an increase in mass trespass by large groups of what I understand to be the New Age traveller variety. Perhaps I may make it clear from these Benches that we have the greatest sympathy particularly with rural communities who have suffered a very real problem and with farmers who have found

623
their livelihood disrupted by trespass involving grazing land, crops and often damage, or the threat of damage, to sheep as a result of dogs which are part of such invasions of their land.
We are concerned that as a consequence of Clause 56 small family groups of gypsies and travellers are likely to be caught. The reduction from the Public Order Act minimum of 12 vehicles to six vehicles in the clause, possibly comprising three residential caravans and three towing vehicles, could affect two family groups travelling together, as they increasingly wish to do for reasons of security.
What troubles us primarily about the clause is that no court order will be required in order to direct such groups to go. A single police officer telling them to leave is to be sufficient. Your Lordships will be considering at later stages of the Bill matters concerned with the provision of caravan sites for those who choose a nomadic way of life. But it is beyond argument that in many parts of the country -I would go so far as to say that it applies in almost every part of the country-there is a shortage of official, residential and transit site accommodation for those who have a nomadic lifestyle.
Over the centuries we have tolerated small nomadic groups. That toleration must surely be the mark of a civilised society, even one which is becoming increasingly urban and suburban. Our worry about the provision is that it will extend the powers for speedy removal of small groups and thus inevitably lead to an increase in such evictions.
Clause 56 provides that a single police officer may order such a group to go even where no nuisance is being caused, no damage has been caused, and there has been no threatening, abusive or insulting behaviour, but simply because there are six vehicles present. As I indicated, we are concerned primarily about small family groups who surely need some leeway. Such groups will often require urgent access to health care, to a general practitioner; for example, to facilities in connection with childbirth and ante-natal and post-natal provision. Above all, because they are groups which more often than not have small children among them they need access to educational facilities.
Hardship, especially to family groups and those with small children, is likely to be increased by the Bill. It does not take a great deal of imagination to picture a group who stop near a village where they can have access to a local doctor when a child is ill or when a mother is about to give birth and who cause no damage on the land where they settle, who behave in no way offensively to the landowner and who at the present time would have a short breathing space while a court order was being obtained in which to find somewhere suitable to move to where they can still have access to the services they require. Under Clause 56 they would have to move as soon as practicable; otherwise they would be committing an arrestable offence for which they were liable to imprisonment. I ask this: they would have to move, but where to? We are in very real danger of putting people in Britain in 1994 in the position of the
624
road sweeper in Bleak House in the last century who was forever being told to move on but had nowhere to go.
It may be perfectly proper that in many cases those who trespass should be directed to go and go speedily, particularly where damage or harassment is being caused to others in the community. What we say-and it is the purpose of these amendments-is that it is the court that should make the order, not simply a single police officer who happens to be on duty and passing at the time. Toleration does involve sometimes tolerating a degree of inconvenience from one's neighbours. I hope that we shall hear from the Government, when they respond to these amendments, that they accept that it is a basic principle that those who choose to have a nomadic way of life are entitled to do so and that there will be provision for possibly putting up with some inconvenience. That is the mark, I say again, of a civilised society. These minor amendments make very small changes to the provision but provide some safeguard and leeway for small family groups. I commend the amendments to the Committee. I beg to move.
Lord Macaulay of Bragar: Amendment No. 83A, which applies to Clause 65 and trespassory assemblies and is tabled in my name, is designed to make sure, as my noble friend said, that it is the court which deals with these matters and not the council. The amendment deletes "a council" and inserts,
"the court after ordering intimation and hearing such representations as it deems fit".
It shall then make the appropriate order. The amendment ensures that the court will be in control of matters and that it will not be merely a case of a constable going to a member of a local authority and asking for an order, so to speak, willy-nilly without the matter being properly examined in the usual way. It will also give those affected by the order being sought the opportunity to come before the court and explain why the order should not be sought; for example, if the people are there for what appears to the court to be reasonable cause. There will be practical difficulties in carrying out intimation and hearing representations, but that should not be a barrier to justice between the parties. It certainly should not be used as an excuse to impose restrictions on individuals who are doing the community no harm. There must be some control over random applications without the application being demonstrably necessary for the interests set out in Clause 65.
This raises quite an important point. It may seem to be a minor point, but it is not because most trespassory assemblies will probably take place at the week-end. Who is going to find a member of a council at the weekend? The courts are always available because there is a duty magistrate or duty judge in every area of the country who can be dragged from his bed if necessary to consider any application. Furthermore, the Bill does not spell out who in the council will be responsible for acceding to the request for the order. Will the chief executive delegate powers so that any constable who comes along and asks him for an order can grant it off his own bat, so to speak, on behalf of the council?

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It is interesting to note in Clause 65 that the phrase "trespassory assemblies" is not defined-I am not quite sure how to pronounce the word "trespassory"-so what we have is someone seeking an order for some undefined breach of something from an undefined member of a council. It is therefore important that the courts should retain some measure of control over the fairly draconian measures that are contained in Clause 65.
Lord Stanley of Alderley: When moving her amendment, the noble Baroness, Lady Mallalieu, talked about where the travellers should be moved to. With respect, we shall deal with that matter in considerable detail later. As I understand it, Amendment No. 55 means that before moving on any travellers, a police officer would have to apply to the county court. If that is correct, the amendment is, if I may say so, a complete wrecker because in practice it would take months before the travellers could be moved on. Historically, as far as the use of Section 39 is concerned-that is what these provisions are basically replacing-police officers have been very careful before using their powers.
Lord Renton: I am bound to agree with what my noble friend Lord Stanley of Alderley says. Although I do not agree that the procedure would necessarily take months, it would be bad enough if it took only days. As the noble Baroness, Lady Mallalieu, has already made clear, she and her noble friends agree with the Government that, as stated in the clause, something must be done about people trespassing on land. I should have thought that if something is to be done, we do not want much delay. Even getting a constable could take a bit of time because he might have to come some miles from the nearest town. Alas, we no longer have a village constable in every village as we used to have.
Having to refer the matter to a court means not merely applying to a county court judge for an injunction which in civil actions, in England at any rate, is fairly easily done -indeed, one sometimes had to telephone a judge's private house at the weekend and ask him if he could come along (perhaps when he had finished a round of golf) to grant an injunction-but no, the amendment suggests that the court should be involved. That means a court hearing with both sides being heard.
If we are to make effective the power in Clause 56 to remove trespassers from land, I believe that what the Government have proposed is much more practical and realistic. I believe that the purpose of the clause would be defeated if Amendment No. 55, and those that are grouped with it, were to be accepted.
Surely the noble Lord, Lord Macaulay of Bragar, who said that a court is always readily available, must, with his knowledge of Scotland, agree on reflection that the distances in Scotland are such that one might have to go a very long way to obtain the services of even a sheriff substitute. Further delay would be involved. I very much hope that my noble friend Lord Ferrers will resist the amendment.
4.15 p.m.
Lord Hylton: Perhaps I may give two examples of nuisance and aggravation that have recently been caused in the past year by New Age travellers. One example is from Somerset and one from Avon. In the first case, some six vehicles almost blocked a public footpath and bridleway, making access along it very difficult, Furthermore, the travellers' dogs frightened young and timid walkers. In the second case, a group of travellers placed themselves in the middle of a public park which had been rather nicely landscaped by the local authority In both cases it took a very long time to remove the groups. I think that the amendment goes too far.
Lord Hooson: If there is any justification for Clause 56-from my experience, I think that there is considerable justification for it-it is that action is taken swiftly to prevent the build-up of the kind of troubles that have been experienced in Mid Wales and elsewhere. I share many of the sentiments that were expressed by the noble Baroness, Lady Mallalieu, when she moved her amendment, but when one looks at the impracticality of what is proposed with the reference to county courts and so on, one must realise that that makes a complete nonsense of Clause 56.
As I have said, I share many of the noble Baronesses' sentiments, particularly about gypsies. I think that they need to be given careful consideration as a separate body. However, that is not the basic mischief against which the clause is directed. Everybody knows the tremendous problems that have been encountered with the build-up of large conglomerations of people in caravans in the past few years. I am referring to New Age travellers. It is when those groups grow to such a size that they are totally impossible to manage that the real difficulties arise. Therefore, I am bound to say that I cannot support the amendment.
Lord Finsberg: The noble Lord, Lord Hooson, said much of what I wanted to say, so I can be brief. Having analysed what the noble Baroness, Lady Mallalieu, said, I think that she has presented some problems. I believe that the first problem that I have with the provisions is shared by many Members of the Committee. I would love to find some way of defining the Romanies so that they would not be affected in any way by this piece of legislation. I hope that it might be possible to find some way of doing that because they are the only people whom I regard as genuine nomadic travellers with a long history and culture of their own.
Most of the others who follow a nomadic lifestyle do it by choice and they are perfectly entitled to decide to do that, provided that they do not interfere with the enjoyment of other people. But the noble Baroness very clearly did not say that. I believe that the noble Baroness said something to the effect that such people are not causing trouble and that police constables should not be doing what they are doing. However, Clause 56(1) refers to the person who owns the land and who must have a right. If one is trespassing, one is interfering with the rights of somebody else. Therefore, I believe that the clause is correct as it stands.

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My last point is that having had experience both in London and elsewhere of the appalling slowness of bringing a matter to court, like many other noble Lords I do not believe that the court angle is even a starter, as the noble Lord, Lord Hooson, said.
Lord Avebury: I agree with my noble friend Lord Hooson that the procedure would be far too long-winded if an application had to be made to a country court. I also agree with those who say that a distinction ought to be made between New Age travellers and gypsies. That distinction is not apparent in the clause which hits both groups equally. If one reads the clause in conjunction with Clause 72, which we have not yet reached, but upon which the Committee will no doubt have a lot to say when we do reach it, one can imagine that gypsies may be evicted from an unauthorised site under Clause 72 and then camp on another piece of land where they become liable to victimisation under Clause 56.
The defect of Clause 56 is that it is indiscriminate in its application. It applies just as much to gypsies. I agree with the noble Lord, Lord Finsberg, that we must give them special consideration, because it is their traditional way of life. Those people who take to the road voluntarily, perhaps by acquiring a vehicle in which they reside, become nomadic, and thus fall technically within the definition of gypsies. I can assure the noble Lord that we shall deal with that point later because various amendments have been tabled making the distinction between the two categories of nomadic persons—those who are traditionally of a nomadic habit of life, and are, as he would say, genuine gypsies, and those who, like the New Age travellers, have recently adopted a nomadic way of life and who are causing all the nuisance, as the noble Lord, Lord Hylton, has described it. We all know about that. We have seen it in many counties.
The clause rightly gives the police power to put an end to those nuisances promptly instead of having to wait for the months a county court would take. I beg the Government to consider more carefully than they have done hitherto the wording of Clause 56 so that it can remedy the evil, which we all agree exists, of large numbers of people descending upon an area, or camping near a built up area, without any sanitary provision or running water, causing an enormous amount of disturbance and health risk to people in the neighbourhood. For genuine gypsies, as we shall see later, adequate provision was not made under the 1968 Act, although we are moving towards a position where we can say that there will be full provision in the near future. Will the Government undertake to consider the wording of Clause 56 between now and Report so that it touches the evil that we all agree exists of New Age travellers camping unexpectedly in large numbers in rural areas or near to villages and towns, and provides also for the genuine gypsies for whom this place and another place have always agreed special provision has to be made.
Lord Renton: Before the noble Lord sits down, will he, on reflection, agree—
Lord Clifford of Chudleigh: The amendment is totally and absolutely out of touch. People ask the police for help; but no one policeman will ever go to those described, in this ghastly terminology, as New Age travellers. I travel today, and I call this a new age compared to the last century. Those people are hippies. They are wasters. Let us be clear, if we have people coming along to a particular patch of land, the farmers want them removed. Those farmers will get together, tow the vehicles away and dump them on the highways. They have already done that.
We must also get clear the fact that if a person wants to have a mobile home, or whatever, he must be able to afford it. Such people then get social security and continue to afford their lives at the expense of those people whom we are supposed to be representing-that is to say, the majority of the country. The majority of the country knows jolly well where the hospitals and schools are. Let us not dilly dally around these people who come along and make their names with the press. Let us get a grip on this problem and not set a precedent with regard to the number of vehicles, and so forth. Those people are trespassing, as the Government have suggested.
Lord Burton: The amendment tabled by the noble Baroness is flawed, because, if I am not mistaken, this is UK legislation and there is no such thing as a county court in Scotland.
Lord Taylor of Gryfe: I presume that we shall resume this debate on Clause 72 where we deal with the provision of sites by local authorities, the point which is at the root of the problem. I am tempted to rise only because of the speech that has just been made by the noble Lord, Lord Clifford, in which New Age travellers, among others, were described as wasters. There are people in our society who prefer to opt out of the orthodox behaviour which most of us observe. We do not, as the noble Lord suggested, represent only the majority of our people; we have in our society a responsibility to protect minorities. That is what democracy is about: protecting minorities.
Lord Clifford of Chudleigh: That is why we have social security and provide minorities with the ability to live.
Lord Taylor of Gryfe: If the noble Lord reads his speech in Hansard tomorrow he will see that he described that minority collectively as wasters. As I say, there are people who prefer that way of life. It is a problem with which our society must deal. I hope that we will deal with it when we discuss Clause 72 and the provision of facilities.
I commend the interesting document which has been provided to me, among many other documents I have received, by Save the Children. It raises the important issue of the provision for children. What do we want to do when dealing with some of these cases? Do we want to take the children into care—that is the alternative of not providing facilities—and turn their parents into the occupants of cardboard city in London? We have a problem to deal with. There are people who choose that way of life. We should not consider them collectively as

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wasters. The media frequently highlight some of the extreme elements in those groups; but at the same time we have the right in a civilised society to acknowledge that that situation exists. I hope that when we come to the subject of alternative sites we will observe our right and exercise our right.
Lord Burnham: I find myself in some difficulty in agreeing with those Members of the Committee who sympathise with the gypsies, because I know of only one incident of a gypsy whom we have had anywhere near us who has kept the ground upon which he has lived for a period even remotely clean. That was a man who was prepared to clean up after those who went before him, but he is a rare beast.
I hope that the noble Baroness, Lady Mallalieu, does not suffer, as we have suffered, from lamed horses because of the glass, metal and other substances which are left behind by ordinary gypsies—I am not talking about New Age travellers—as part of their normal way of life. Their normal way of life seems to generate that rubbish.
A tenant farmer was foolish enough to leave a field empty. The gypsies got in by breaking down the gates. In the 10 days before they could be removed they caused so much damage that it cost £2,000 to make that field habitable again. This is an area where, thank goodness, we have not so far had New Age travellers, or any of that lot. Damage is caused, and it takes a long time to obtain a remedy. During that time the amount of damage increases. If one is lucky enough to catch a gang of gypsies before they have unhitched their vehicles, one can get rid of them almost at once. This is a game of grandmother's footsteps. It needs careful liaison between the farmers in the area.
It takes time to persuade a magistrates' court to take action. In south Buckinghamshire we have an efficient and sympathetic gypsy officer. If the council will take action, we can get rid of such people within four or five days. If one has to go to the county court, as the landowner has to, and an order to remove those people from the land is made, first, the landowner is responsible for the costs of so doing or of employing a contractor to do it for him. But the longer the time, the greater the expense, and the more trouble he is put to, to make his land habitable and usable for agricultural purposes.
4.30 p.m.
Lord Avebury: Will the noble Lord say how many authorised sites have been provided in south Buckinghamshire for the gypsies residing in or resorting to that area?
Lord Burnham: I believe that there are four but I am not certain. The matter is under discussion; but I can tell the noble Lord where the most prominent sites are. The amendment must make matters worse rather than better. If such people would only behave themselves and keep the place clean, no one would have any such problems.
Lord Northbourne: Will the noble Lord accept that his experience is not universal? My family has known a family of gypsies who have always wintered in a particular wood at the intersection of a Roman road and
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a Saxon road. My guess is that gypsies have been wintering there for hundreds if not thousands of years. Certainly, I am not going to be the person to turn them away. I have tucked them in behind a woodland so that people do not complain about them.
The essential point is that they should be there for only part of the year because the nature of the true gypsies is that they are nomadic. They are there by permission and they keep the site clean because they want to come back next year. The trouble arises on sites which gypsy families occupy as of right. If the site is to be kept clean, some form of discipline is necessary.
However, I believe that the New Age travellers are a different kettle of fish. The only such people to have been on land which I am privileged to own threw buckets of dog muck at me when after a long delay I asked them to move off. They broke up the local social services office because the social service payments did not arrive on time. They are, indeed, people who have opted out of our society. But surely in our society rights should carry with them some obligations.
Lord Macaulay of Bragar: Perhaps I may take up the point raised by the noble Lord, Lord Renton. I am sure that he did not mean to create the impression that Scotland is like the Wild West and that if you need a judge you jump on your horse and ride off into the sunset hoping to find one.
There are 49 sheriffdoms in Scotland, each with a resident judge. Within each sheriffdom there are district courts and there is no difficulty in accessibility to justice in Scotland. Ex parte applications can be dealt with in a matter of hours. I am advised that a 1989 Scottish Office study demonstrated that no person in Scotland is more: than 30 minutes from a legal adviser. The so-called difficulty of getting to the court to make these: applications does not exist in Scotland, whatever maybe; the case in England.
Lord Renton: Perhaps I may quickly reply. The noble Lord gave examples of easy cases, which do not always prevail bearing in mind the distances in. Scotland. In any event, if the amendments were accepted, there would have to be a court hearing and that: is quite different from asking a police officer to assume responsibility.
Lord Roskill: Perhaps I may disclose an interest. I have lived all my life in a house on the edge of a common, which my parents owned before me. We on that common have suffered again and again from New Age travellers. They leave behind an indescribable mess and filth which compares with that described by the noble Lord, Lord Northbourne. Excrement has been left everywhere and trees have been cut down. People have been frightened and dogs have been set upon anyone who tried to intervene.
The noble Baroness, Lady Mallalieu, said that people should not be evicted without a court order. In a perfect life that would be right; one can always get a court order. During my days as a Queen's Bench judge I was called out of bed in the middle of the night to grant injunctions or bail. One gladly does so when that is necessary. The problem is not to obtain an order but to

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enforce it. As one Member of the Committee said, the law's delays are quite appalling. As a Law Lord, I apologise for saying that.
Our common is managed by the local authority; there was no registered owner. That local authority had a standing High Court injunction against New Age travellers, which it enforced from time to time. However, taking advantage, the New Age travellers arrived shortly before the bank holiday weekend at either Christmas or Easter, which was a long weekend. During a bank holiday weekend nothing is more immovable than an under-sheriff's office. The result was that the travellers were able to sit there continuing to do damage for several days before anyone could do anything about it.
I respectfully agree with those who say that something must be done about it. No one wishes to penalise the gypsy, the genuine nomadic person. We all see them about the place and we have great affection for them. However, they are a very small portion of those who are causing the trouble. Those who are causing the trouble have opted out and are defying the ordinary conventions of society. Those are the people who are allowed to behave as appalling nuisances all over the south of England and elsewhere, and we must stop that. I venture to submit to the Committee that the Government are on the right lines.
Lord Ogmore: I have received personal representations about New Age travellers. We must be careful that this is not the thin end of the wedge. Certain sections of the public are worried that if we are not careful representations will be disallowed. Any protest involving more than a certain number of people could be disallowed. Many people are worried that any kind of feeling will be stamped out if we are not careful. That is why the position is causing considerable worry to some people, who are perhaps in the nature of protest but are doing so peacefully and are not causing a nuisance. Some people are worried that the provision could affect a peaceful protest or demonstration, and they are concerned that the Government should keep that in mind.
Earl Ferrers: The noble and learned Lord, Lord Roskill, made as good a defence of the reasons for keeping this clause in the Bill as one could possibly wish for. He is absolutely right. When such people appear, one must deal with them quickly. As was said by the noble Lord, Lord Hooson, if ever there were a justification for this clause—and I am glad that he said, "And there is"—it is the matter of speed.
We are dealing with large invasions of travellers and people who so upset the countryside, as experienced by the noble and learned Lord, Lord Roskill, and the noble Lord, Lord Hylton. However, the noble Baroness, Lady Mallalieu, was anxious about small groups of people. She asked for an undertaking that gypsies, if they wish, should have a nomadic way of life. Of course, the nomadic way of life is part and parcel of the lives of many people in this country. Our only stipulation is that they do that within the confines of the law. That is what we are talking about.
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The noble Baroness was concerned that there might be small groups of people, one of whom is about to have a baby, and the group wants a short breathing space. Let us recall the conditions under which such people will be moved. There must be two or more on land as trespassers; they must have had the intention of residing there; they must have caused damage to that land or used threatening, abusive or insulting words or behaviour or to have brought with them more than six vehicles and the owner has asked them to go. Only then can the provision come into effect. The noble Baroness gave an example of people wandering around and hoping to find somewhere to spend the night. If there were less than six vehicles, and they had not used abusive language they would not be caught by the provision. Here we are talking about a nuisance. The noble Lord, Lord Avebury, asks us to reconsider the words of Clause 56 so that they cover New Age travellers and not gypsies. The noble Lord, Lord Taylor of Gryfe, said that there are a few protesting minorities. The noble Lord, Lord Ogmore, referred to people protesting peacefully. Here we are talking about people who are trespassing. It does not matter whether or not they are protesting peacefully. The question here is whether they are trespassing. When they trespass, then these provisions come into force.
The amendments would restrict very considerably the ability of the police to defend local communities from the travellers and the ravers. Members of the Committee may be worried that the police are being given too much power but the powers are not mandatory; they are discretionary. The police have the power to move these people on if they have fulfilled the criteria and if the police consider that it is proper to do so.
The noble Lord, Lord Macaulay, suggests that the police should be kept out of this matter and that it should be dealt with by the courts. I agree with the noble and learned Lord, Lord Roskill, that that would delay the whole process. The police have always found that once the New Age travellers arrive and settle, the difficulties arise in relation to moving them on. Therefore, it is important to have the facility to move on those people when they have gathered in relatively small numbers in order to avoid an increase in the numbers, with all the devastation that we have seen at Castlemorton Common and elsewhere. For that reason, it is wholly appropriate that the police should take the action rather than the courts.
Baroness Mallalieu: I moved the amendment with knowledge and experience that is very similar to that of the noble and learned Lord, Lord Roskill, and the noble Lord, Lord Burnham. I come from an area of South Buckinghamshire which has a large number of gypsies and also a New Age traveller problem. The village in which or near which I live now has a common which is protectively surrounded by barricades.
Therefore, I move the amendment with a personal knowledge of the inconvenience and difficulties that such trespass can provoke. But I am concerned about two matters that I do not believe are being addressed at present.

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Under this clause, a single police officer is, in effect, being asked to discharge a judicial function. He has to make a number of decisions and the noble Earl has just indicated what they are. Some of them are easy. He must be satisfied that two or more people are trespassing. He has to be satisfied about their intentions; namely, that they are there with the intention of living there. That may not present him with too many difficulties, but it is a decision that he must take on the material before him. He must be satisfied that reasonable steps have been taken on behalf of the occupier to ask them to leave. He then has to take decisions about damage to land, abuse, numbers of vehicles and so on. Essentially he is being asked to exercise a judicial function. He is being asked to make a decision, partly no doubt on his own observation, but partly no doubt on evidence that is presented to him by other people.
If he gets it wrong and makes a mistake, under the clause there is no way in which his decision, his order that the people should leave, can be reviewed. I make it abundantly clear, because of what the noble Lord, Lord Finsberg, said, that anybody who is nomadic either by tradition or choice—and I make no distinction in that —has an obligation not to disrupt the lives of others. I do not for one second skate over that or omit that from the reasoning behind the amendments.
But the end result of the clause will not deal with the problem. The officer will merely order groups to leave; they will have to go; and they will move elsewhere to cause trouble and possibly damage in another location to another landowner or another set of people.
I am not in any way reassured by what the noble Earl said in relation to providing protection for the small family groups who have always been tolerated hitherto and about whom we are primarily concerned. But it seems to me that there are other parts of the Bill—and in particular, Clauses 72 to 75—where the basic issues will have to be debated by this Chamber. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.45 p.m.
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 55A:
Page 40, line 34, after ("leave") insert (", or where the occupier cannot be found after reasonable enquiries or is not immediately available the senior police officer present has asked them to leave.").
The noble Lord said: This clause gives the police powers to act urgently to seek control of a developing mass trespass incident. As drafted, the Bill provides that reasonable steps must have been taken by or on behalf of the occupier to ask people to leave. There may be circumstances where the occupier is not immediately available and yet the police wish to act quickly which, as we have just discussed, is very important to contain and control the situation before it gets out of hand.
This amendment seeks to allow the senior police officer present to ask trespassers to leave on behalf of the occupier. I hope that my noble friend will be able to tell me that in those circumstances, a senior police officer could take action without the occupier being present. I beg to move.
Lord McIntosh of Haringey: There have been a number of occasions on which great offence has been caused to some people when occupiers have actually invited travellers onto their land. The case of the Glastonbury festival is probably the best known example. Must the owner or occupier be around all the time? Is the noble Lord saying that in the owner's absence, people whom he has invited onto his land can be thrown off without him being contacted if he is not immediately available? I find that a very strange extension of the already draconian powers provided in this part of the Bill.
Lord Elton: As a sideline to what the noble Lord has just said, I believe that my noble friend has in mind occasions on which the persons trespassing on the land, who may be there at the invitation of the landowner, are causing considerable and grievous discomfort and unhappiness to the neighbourhood. If the landowner has so invited them, it is only right that he should be there to share that discomfort and unhappiness and defend it when the police request the removal of the people.
Lord Renton: Also, we need to consider the position where the owner is either in hospital or on a holiday or is away for some other good reason.
Lord Kenyon: In supporting my noble friend's amendment, I speak from experience. I had a case recently where the owner of a piece of derelict land lived more than 100 miles away from the land itself. He had bought it in order to develop it but was unable to obtain permission to develop it. When the council discovered where he lived, it found that he was on holiday and it took nearly three weeks to obtain the owner's permission to serve the injunction. Therefore, I support the amendment.
Lord McIntosh of Haringey: But I do not believe that the noble Lord, Lord Elton, or other noble Lords have read what the clause says. Clause 56 applies if:
"any of those persons has caused damage to the land or to property on the land or used threatening, abusive or insulting words or behaviour towards the occupier, a member of his family or an employee or agent of his".
The clause is not concerned with damage that may be caused to other people. It concerns damage caused to the occupier.
The amendment proposes that a police officer may go on to an occupier's land, assert that the occupier's interest is being damaged and kick them off without even consulting the occupier. That includes cases where the occupier may well have invited those people onto the land.
Lord Hooson: It appears to me that this amendment raises a very important point. If a landowner is away, for example on holiday, it seems to me ridiculous that the police cannot take action. The prior requirement, as stated in Clause 56(1), reads as follows:
"If the senior police officer present at the scene reasonably believes that two or more persons are trespassing on land".
If the landlord has invited them on to the land, they are obviously not trespassing. I believe there are defects in

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the proposed amendment of the noble Lord, Lord Stanley of Alderley. However, this point needs further thought and inquiry on the part of the Government.
The Marquess of Hertford: I support my noble friend Lord Stanley of Alderley with a personal example. A few years ago I happened to be here when my wife asked our local police to get rid of some people who were in our park. They said they could not do that because I was not there and my wife was not the owner.
Earl Ferrers: I am bound to say that I quite understand the anxiety of my noble friend Lord Stanley of Alderley. However, I am afraid that I believe the noble Lord, Lord McIntosh of Haringey, is right. The purpose of Clause 56 is to help occupiers to protect their land. We are dealing here with the law of trespass. I do not think one can achieve that by giving the police powers to move people on irrespective of whether the occupier himself was remotely concerned by the invasion of those people. The occupier may have disappeared off to the Caribbean and does not care what happens to his land. That may be inconvenient for his neighbours, but if people are trespassing on land and the occupier does not request them to be removed, it is difficult for the police to do that or to, as it were, be in loco parentis for the occupier.
I was surprised at what my noble friend Lord—I apologise; I was referring to my noble friend Lord Hertford. If I momentarily forgot his name it was a mental aberration that happens from time to time. I was surprised at what my noble friend Lord Hertford said. If someone goes on holiday, it is perfectly all right for him to delegate his responsibility to his agent or even to his wife to enable them to say to trespassers, "You are trespassers and you should go".
I fully appreciate what my noble friend is trying to do but I do not think that it would be justified to empower the police to remove people from land on which those people might have permission to be, or where anyhow they had certainly not been told that they should not be. This is a difficult matter but a balance needs to be achieved. I believe that the draft clause just about achieves it. We must remember that the police have ample powers as regards specific nuisances such as loud music at night, damage to land or property or in cases of theft or abusive language. However, where people have permission to stay on a property but the next-door neighbours do not like it, the travellers are in the position of being unwelcome next-door neighbours. There is nothing one can do about it when they have been given permission to stay. It is difficult to see that they ought to be removed when the landlord has not complained.
I can only repeat that we are dealing with the law of trespass. I have a great deal of sympathy with my noble friend and indeed with the experience of my noble friend Lord Kenyon, but I do not think one can alter a clause in this way to deal with the law of trespass.
Viscount Mountgarret: Before my noble friend sits down, I hope I may ask him whether there is merit in considering whether to accept some part of the
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amendment. As far as I could discover, the noble Lord, Lord Hooson, was reasonably sympathetic to this principle. However, there is a difficulty as regards defining the word "owner", as my noble friend Lord Hertford pointed out. Would it not perhaps be possible for the words "owner or agent"—I appreciate one would have to define those words—to be used? If an owner knew he was due to go away on holiday, perhaps he could delegate his wishes and authority in relation to his house, garden, estate or whatever to a recognised person. I wonder whether that might find favour with my noble friend.
Earl Ferrers: I have no reason to believe that the landlord cannot do that at the moment. I do not think we need to put it into the Bill.
Lord Stanley of Alderley: I thank the Committee for that constructive debate. I would point out to the noble Lord, Lord McIntosh, that I have tabled an amendment which deals with the very case he has brought up where a landlord or occupier has asked travellers on to his land and then later decides to turn them off. However, we shall discuss that matter a little later in the evening. The noble Lord, Lord Hooson, summed up the position pretty fairly. As my noble friend Lord Ferrers and indeed the noble Lord, Lord McIntosh, have said, I believe my amendment may be too widely drawn. I am not entirely happy as regards whether the clause would allow an occupier to delegate his responsibility. But I shall certainly look at that matter before Report. Meanwhile I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 56:
Page 40, line 39, leave out ("six") and insert ("twelve").
The noble Lord said: My noble friend Lady Mallalieu referred to this amendment when she was speaking on the group headed by Amendment No. 55. I shall not repeat her arguments on that point. I shall treat this as a probing amendment to see what the Minister says in response.
The point that my noble friend was making is that the existing law concerns itself with groups of 12 or more vehicles. The restriction to six vehicles does not single out particularly disruptive groups: it is a blanket restriction and it applies equally to—whatever one cares to call them—genuine gypsies or romanies and to so-called New Age travellers. We cannot keep worrying too much about the terminology: what we have to recognise is that all sorts of people in our society take to the roads and they have rights as well as other people. They deliberately give up some rights but they do not give up the rights to find somewhere to park their caravans. There must be some particular reason why those rights should be abrogated, but not on general principle. I suggest to the Committee that the provision that the size of the caravan (using it in its other sense) should be as low as six vehicles is a particularly restrictive condition which applies equally to romanies as to other people of nomadic habit. I beg to move.
Viscount Mountgarret: I think I am right in saying that the noble Lord, Lord McIntosh, referred three times

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to caravans. I agree with him that one cannot get too many people into a caravan. But what is the definition of a vehicle? To my mind it usually has four wheels on the ground and a steering wheel and it goes from A to B. Minibuses can carry anything up to about 18 people. If one extended the provision from six vehicles to 12 vehicles, it could cover, instead of approximately 120 people who are in a particular place illegally or are not desired to be there, some 240 people. I should have thought that that was rather a lot. I should have thought that the Bill as drafted is more appropriate.
Lord McIntosh of Haringey: I thought I had made it clear to the noble Viscount—perhaps I did not do this adequately—that when I used the word "caravan" I was using it in the sense of the battered caravanserai of The Rubaiyat of Omar Khayyam; in other words, a collective noun for vehicles of all kinds. Vehicles and caravans are adequately defined in the Bill.
Earl Ferrers: The noble Lord said that this was a probing amendment to ascertain why we were reducing the number from 12 to six. The number of vehicles which triggered this provision was originally set at 12 by the 1986 Act so as not to catch small groups of gypsies and other such people. We are still anxious not to do so under these provisions. However, over the years we have been worried that encampments which are too small to be caught by Section 39, as it now is—which refers to 12 vehicles—are nevertheless sufficiently large to cause significant discomfort for the unfortunate and unwilling people who find themselves the hosts of these itinerant characters. We therefore believe that it is right to set the number at six. That represents a sensible middle course which I commend to the Committee. I believe that it is the right figure: 12 has proved to be too many.
5 p.m.
Lord McIntosh of Haringey: That sounds very much like assertion in place of argument. I have not heard any examples of where 12 has proved to be too many.
I believe that we shall have to return to this whole issue. I appreciate the strength of numbers present in the Chamber this afternoon in favour of established landowners and against anybody of nomadic habit. I shall not press the amendment to a vote for that reason. Nevertheless, I am deeply dissatisfied with the approach of this part of the Bill. I shall find some way to seek to persuade the House at a later stage that a profound intrusion on civil liberties is brought about by this part of the Bill.
Earl Ferrers: The noble Lord says that he is profoundly dissatisfied. Am I right in interpreting his dissatisfaction as due to the fact that he wants people to continue to break the law and to trespass where the law says they should not be?
Lord McIntosh of Haringey: I want the law to be restricted to proven nuisance rather than extended to a whole range of perfectly valid alternative ways of life.
Earl Ferrers: Is the noble Lord saying that trespass is perfectly all right and that the breaking of law is acceptable under certain circumstances?
Lord McIntosh of Haringey: The Minister must not seek again to put words into my mouth. There has been a law of trespass for many years. There have been specific complaints of occasions where the present law of trespass is inadequate. Nothing that I have said has been in opposition to a law of trespass or to a law of trespass which is extended to deal with specific and well defined nuisances. My complaint is that the law of trespass is being extended very widely on the grounds of particular nuisances which have been identified in ministerial speeches and at Conservative Party conferences and that the effects of the changes in the law which are proposed are very much wider than the nuisances which have been identified. That does not mean that I am opposed to an effective law of trespass.
Earl Ferrers: I do not want to prolong this exchange, but the noble Lord cannot get away with that. He says that the law of trespass is being expanded. The law of trespass is the same. It is the abuse of the law which has been expanded. All we say is that it ought to be put into a reasonable state.
Lord McIntosh of Haringey: Perhaps I may continue, if the noble Lord, Lord Avebury, will forgive me. I shall not seek to withdraw the amendment before he has had an opportunity to speak.
We are talking about turning what has been the law of trespass into, under certain circumstances, a law of criminal trespass. It is the extent of the interpretation of criminal trespass to which we object, not the attempt to deal with certain specified, identified nuisances.
Lord Hooson: I took exception to the way in which the noble Lord, Lord McIntosh, dealt with this point. We were discussing an amendment to a specific clause of the Bill. The noble Lord referred to people's rights. There are rights and obligations. He did not at one stage mention people's obligations.
I am against a libertarian society in all its manifestations, whether in its sophisticated manifesta-tion of rave parties and so on, which we shall deal with presently, or in the form of New Age travellers who take; advantage of a situation and pay no regard to their obligations. They have rights. I believe, as do my colleagues on these Benches, that the Government have: certain obligations, which they are not discharging in this Bill, with regard to certain travellers, including New Age travellers. However, that is not the point of the amendment or of the clause. The clause deals with a specific problem which has manifested itself all over the country in recent times. If the party of the noble Lord, Lord McIntosh, were in power it would have to do something about that problem, just as the present Government are doing something about it.
Lord Avebury: I take a middle position between my noble friend and the noble Lord, Lord McIntosh, in that I did not hear the Minister say anything that justified the

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figure in the Bill. It needs to be justified on some objective grounds rather than for the Minister simply to say that that appears to be the appropriate figure.
As has been said by a number of Members of the Committee, New Age travellers tend to move around in large numbers. That is why they are so objectionable. If a hundred or so caravans descend on a quiet rural village, it is extremely disruptive and annoying for the people who live there. As I said earlier, it may even cause health hazards. However, if there are between six and 12 caravans, the nuisance is that much less. Bearing in mind that, as the noble Lord, Lord McIntosh, says, we are criminalising trespass, we have to be more objective in defining the circumstances in which those criminal penalties may be brought into play.
Therefore, without necessarily agreeing that six is the appropriate figure, I believe that consideration has to be given as to whether 12 or six should be the figure in the Bill and that we may need to return to the matter at Report stage.
Lord Hylton: In defence of the figure six, I believe that we ought to take into consideration the fact that the vehicles concerned can be, and sometimes are, coaches or buses, which can accommodate a large number of people.
Lord Peyton of Yeovil: I should like briefly to support the position which my noble friend on the Front Bench has taken and also to endorse strongly what the noble Lord, Lord Hooson, said.
Turning to what the noble Lord, Lord McIntosh, said, I very much regretted the introduction of Conservative Party conferences into the debate. It is many years since I went to one, and even longer since I enjoyed one, but for the noble Lord to suggest that these proposals were hatched at Conservative Party conferences is very wide of the mark. There is a genuine problem, and the use of loose phrases such as "valid alternative ways of life", which I believe was the phrase used by the noble Lord, does not help. Such phrases have to be carefully defined if they are to mean anything at all. I say with great respect to the noble Lord, for whom I have great regard, that I do not believe that his performance was up to his usual level today.
Lord McIntosh of Haringey: I enjoy this sort of thing. When I am attacked by both the noble Lord, Lord Hooson, and the noble Lord, Lord Peyton, not for what I say but for the way that I say it then I believe that I am striking home after all.
I do not think that I shall ever reach agreement with the noble Lords who have spoken in that way about the issues. There is a genuine difference of view between us and those who think that the rights of the established part of the community can be widely extended at the expense of minorities in our society. That is perhaps a philosophical point of view rather than a party political point of view, and clearly I shall not persuade the Committee of that point.
The noble Lord, Lord Peyton, says that I am speaking loosely. I say to him that if that is so it is a grievous fault, but it is nothing like as grievous a fault as drafting
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legislation loosely, which is happening here. The legislation is being drafted apparently in response to specific nuisances which have been identified and which are far better known to many Members of the Committee than they are to me as a town dweller. But I seek to suggest that the effect of the legislation will be very much wider than the nuisances which it seeks to remedy.
That is the fundamental point behind my objection. I sought to save time rather than anything else by referring to the general nature of my objection to these provisions in reference to this particular amendment. I do not believe that the case has been answered. There are matters which will have to be considered, but for the present I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 57and 58 not moved.]
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 58A:
Page 41, line 3, at end insert ("who may enter any vehicle for this purpose.").
The noble Lord said: With the permission of the Committee, in moving Amendment No. 58A I shall speak also to the other amendment standing in my name, Amendment No. 58B.
If Clause 56 is to work effectively, trespassers should be in no doubt that they have been given a direction to leave the land by the police. There have been cases where trespassers have hidden in their vehicles so as to claim that they have never received a direction from the police. The amendment ensures that if necessary the police could enter the vehicle for the purpose of communicating the direction. I hope that my noble friend will be able to tell me that my amendment is unnecessary and that the police have that power anyhow.
Amendment No. 58B is similar. The provision puts it beyond a legal doubt that trespassers have received a direction to leave. There may be practical difficulties for the police in communicating a direction where a large number of people and their vehicles are involved. The police may overcome that difficulty, for example, by using a loud hailer from a police helicopter. Amendment No. 58B uses exactly the same words as those contained in Clause 58(4) concerning communications directed at ravers. If it is right to have that power in Clause 58, I do not understand why it is not included in Clause 56. I beg to move.
Earl Ferrers: My noble friend encouragingly invites me to tell him that his amendment is unnecessary. I am happy to do so. I should be quite happy to tell a number of noble Lords that their amendments, too, are unnecessary, but I shall resist the temptation.
Under the terms of Clause 56 as drafted, the senior police officer present at the scene can direct people to leave land. There is no need for each person to be told individually or face to face in order for the direction to take effect. It will not be necessary for police officers to enter vehicles in order to give a direction. To give them the power to do that would run the risk of unnecessarily inflaming passions and sparking disorder.

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Amendment No. 58B would have the effect that people would be treated as having been directed to leave the site of a trespass on land if reasonable steps had been taken to bring the direction to their attention.
I do not believe that the amendment is necessary. We envisage that the police will issue a direction, for example by using a loud hailer, or even by some other methods of informing people globally of the fact that they have to leave. I do not think that it is necessary therefore to have a provision of this kind. It would mean that each person would have to be given a personal instruction to leave. I do not think that that is right.
5.15 p.m.
Lord Avebury: Let us suppose that the police come onto the site and issue the directions by loud hailer but not all the persons who own the vehicles are present at the time. Some are shopping, or are about their business in a neighbouring town, or are perhaps at work. After a while several vehicles are removed from the site. However, one is not and the person who occupies that vehicle pleads that he was not present when the directions were given by the police by loud hailer. Will the Minister say what the position would then be if an attempt is made to invoke the criminal provisions of the clause by charging the person subsequently with failure to obey the order of the police to leave the site?
Earl Ferrers: The noble Lord, Lord Avebury, stimulates my imagination. Let us suppose that there are 300 vehicles on the site, the police say that everyone has to leave and all the vehicles depart, but about 12 hours later the police return and find one vehicle on the site with no one in it. I find it extraordinary to think that the occupants of the vehicle would be so trusting as to leave their vehicle surrounded by a whole lot of other people in order to do their shopping. If that were the case, I think that the police would come back and say, "What are you doing here? There has been a direction to leave". The occupant would say, "Oh dear, I was away shopping. I didn't know". The policeman would say, "I think you had better go".
Lord Avebury: I sought clarification of the point. The Minister says that he thinks that that is what will happen. Clearly if there were 300 vehicles on the site and 299 left there would be a presumption that the occupant of the vehicle which remained had deliberately ignored the notice given by loud hailer because he would surely have been told by some of the other people on the site that those directions had been given.
However, if we consider a small number of vehicles on the site, let us say six vehicles, and five had left, with only one remaining, it could well be that by the time the occupant of that vehicle returned from his work in the neighbouring town, or from a shopping trip, he would be in ignorance of the directions that had been given. I wish to be sure that criminal penalties will not be imposed on him for something that was not his fault.
Earl Ferrers: The noble Lord continues to excite my imagination. If there were only six vehicles on the land I find it unlikely that the police would go round with a loud hailer telling the occupants that they must all go.
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With a small number, the police would probably tell the occupants individually that they should go. The point about a loud hailer is this. Where one has a huge number of people there should be no requirement for those people to say, "I have not been served with a piece of paper directly and personally". People will know—it will be up to the police to make sure that everyone on the site knows—that they have to leave. It will depend on the circumstances of the case exactly how the police will ensure that.
The Earl of Dudley: Is the noble Earl satisfied that the police and the courts will on all occasions be able effectively and as a matter of law to distinguish between night and day?
Earl Ferrers: If the police were present yesterday evening, they might have found that rather difficult. I agree with my noble friend. Where we are referring to raves there is no question about night and day. The strict answer—I shall need confirmation of it—is that night starts at sundown.
Lord Burton: Will my noble friend at some time consider the whole question about asking those persons to leave. The matter has taxed me. The position may be easier for the police who have loud speakers. However, the occupier has first to notify those people. I should not have thought that the average occupier would have a loud speaker. If there were 20 or 30 people on the site the occupier might have considerable difficulty in notifying them. The police may have difficulty but not as much as the occupier.
Earl Ferrers: I should be surprised if the ingenuity of the occupier was so stultified that if he found 20 or 30 people on his land he could not find some way of telling them that he wished them to go. That is a matter for the individual judgments of occupiers.
We cannot cater for every single conceivable scenario. The position is perfectly simple: the occupier has to tell people that they have to go, whether it is a collection of six vehicles or more. If those persons do not go then the police can come along and take such action as the Bill allows.
Lord Stanley of Alderley: I always believe every word that Ministers say. Therefore I shall take it for granted that what my noble friend says is right. I am pleased to hear that my two amendments are not needed.
I do not know whether my noble friend can answer this question. Why was it necessary to put the words used in Amendment No. 58B in Clause 58, which deals with raves, but not in Clause 56? I find that somewhat disturbing. If the Minister does not wish to answer that point now, I shall consider the matter between now and Report. I see that obviously he does not wish to answer, so I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 58B not moved.]
Lord Avebury Lord Avebury moved Amendment No. 58BA:
Page 41, line 11, leave out ("imprisonment for a term not exceeding three months or").
The noble Lord said: I have already mentioned this point in passing. It causes me immense concern.

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Throughout the whole of this part of the Bill we are creating new criminal offences at a time when the prisons are bursting at the seams and plans are having to be made for alternative provision for the people in police stations and elsewhere. Yet, under the Bill, we propose to criminalise the offence of trespass and, under later clauses, actions which have never been treated as criminal before will now be subject to three months' or, in one case, six months' imprisonment. I wonder whether that is the right way to proceed.
Is it not better to take such measures as we need against those causing nuisance? I in no way disagree with what has been said by Members of the Committee on previous amendments. The occupation of land by substantial numbers of New Age travellers is a threat to the peaceable enjoyment of a neighbourhood and it has to be countered by Parliament. However, if we go so far as to say that ultimately if someone refuses to accept a direction by a police officer to leave the site, he makes himself liable to a heavy fine, or the confiscation of his vehicle, that should be adequate. Why do we need to put him in prison as well?
What will be the result of that in terms of his future activities? Does it mean that he desists from his trespass because he has lost the vehicle? Does it mean that he behaves in a civilised and law-abiding manner in future? Alternatively, by putting him in prison for three months, do we provoke in him a sense of bitter resentment which is likely to increase the anti-social way in which he behaves, to the extent that he may be a recurrent client of the prison system?
I shall not suggest many scenarios that would cause the Minister's imagination to work overtime because the Committee can already see the dangers of the provision. We can see the dangers of increasing the numbers in our prison system and in particular putting people in prison who may be a nuisance but whose conduct has for centuries past been treated as a matter for the civil law. Surely we do not wish to expand indefinitely the number of actions or types of behaviour which render a person liable to action in the criminal courts at a time when we have perhaps the largest proportion of the population in prison of any country in Europe. I hope that the Government will think again about this retrograde and reactionary provision. I beg to move.
Lord McIntosh of Haringey: I strongly support this group of amendments. The noble Lord, Lord Avebury, is quite right in pointing out that not only are we increasing the number of criminal offences, but also at a time when we have overcrowded prisons and a high prison population anyway, we propose to put considerable numbers of people in prison. We not only put more people into prison but we put in people who do not think that they have done anything wrong. There may be disagreement about that; it may well be that people have different views. I recognise the sincerity of Members of the Committee who express the view that New Age travellers are not to be tolerated in any circumstances, and that all the provisions of the Bill are necessary in order to restrain them. But the travellers do not go on the road in order to become criminals, they do
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not believe that they have committed a criminal offence. They do so because they have chosen an alternative way of life, as I said earlier. If we are serious about putting in our prisons a significant number of people who think that they are, in effect, political prisoners, it may be good for the morale of the prison population, but it is not the right way for a society to behave.
Lord Hylton: Imprisonment seems to be a somewhat excessive penalty for a case like that. Can the Minister at least assure us that the provision would only be used in cases of persistent offenders who have also behaved violently and destructively?
Lord Harris of Greenwich: I do not agree with much that has been said in this short discussion. If the noble Lord, Lord McIntosh, will forgive me, I do not believe that such people as New Age travellers can reasonably regard themselves as political prisoners. If they are judged to be guilty of an offence it is because Parliament has decided that that constitutes the criminal law.
However, I must express my anxiety at the penalty of imprisonment. The noble Earl and I, and others, have debated on many occasions the size of the prison population. I am warmly in favour of people who breach the law rightly being punished, either by a fine or under this legislation by the confiscation of a vehicle in certain circumstances. I suspect that that will be the most effective penalty. But constantly adding new offences which are to be imprisonable, is, in my view, extraordinarily foolish at a time when there are hundreds of prisoners packed into police cells. It is absurd to do that. I hope that the Government will reflect upon the matter. A fine, yes; confiscation, yes; but imprisonment, no.
Lord McIntosh of Haringey: There are two simple answers to the noble Lord, Lord Hylton. First, the Government cannot give an assurance that the courts will not commit someone to prison in particular cases because it is the responsibility of the magistrates and the courts, not of the Government. The second answer is that if, as the noble Lord suggests, such people have committed crimes of violence, then no one—neither the noble Lord, Lord Avebury, nor I—suggests that it might not be appropriate for them to be committed to prison. The Bill proposes that they should be committed to prison for the offence of criminal trespass, not for any other offence. If the noble Lord's arguments are against the amendment, I do not believe that they hold water.
Earl Peel: I find the attitude of the two noble Lords opposite quite extraordinary. We are talking about offences which have developed and the Government are responding positively to what has happened. Is the noble Lord, Lord Avebury, saying that if new offences develop, we should not put anyone in prison and that we only put people in prison for old offences, not new ones? It seems an extraordinary attitude. The Government have considered this carefully. Many people have given clear examples where grievous offences have taken place; that is why the Government decided to make the offence criminal rather than civil. It is well proven and we should support them.
Lord Boyd-Carpenter: I do not suppose for a moment that large numbers of people would be committed to prison under this provision. Therefore, alarm about increasing the prison population seems quite uncalled for.
However, where we are concerned with providing a measure of protection for members of the public who are worried about the New Age travellers, it seems to me right that there should be an ultimate penalty of imprisonment for those who deliberately defy the law and stand out against the prohibition.
There is also the practical point that people who stand out regularly against the law, as some New Age travellers no doubt will, will have all their money taken from them, at any rate by way of fines. Therefore the only effective penalty will be imprisonment. I hope that my noble friend will stand firm on the matter.
Lord Stanley of Alderley: Before my noble friend replies I should like to follow my noble friend Lord Boyd-Carpenter on that point. The problem will be that they will not pay their fines. They will be on social security. I should like to ask my noble friend, and indeed my noble kinsman when he sums up, in that case, when they have not paid the fines, presumably it is then up to the courts to impose a prison sentence.
Lord Harris of Greenwich: That is the practical issue at the moment so far as prostitution is concerned. Prostitutes cannot be sent to prison for the offence of prostitution; but they can of course find themselves in prison, as many do, as a result of their failure to pay the fine.
5.30 p.m.
Earl Ferrers: With regard to the point that was raised by my noble friend Lord Stanley of Alderley, he is quite right. Where a court issues a fine and where the fine is not paid, the court will have to take other steps to make sure that the sentence for any offence that has been committed is carried out properly.
I congratulate the noble Lord, Lord McIntosh. He gave such an impeccable answer to the noble Lord, Lord Hylton—that does not often happen—that I wish the noble Lord would give such impeccable answers to some of the other questions that I am asked, whether by him or by others. It was a perfect answer.
Lord McIntosh of Haringey: After the next general election I will.
Earl Ferrers: The noble Lord has a long time to wait for that. His answer was so impeccable that it contrasted amazingly with what he had said. The noble Lord said that the Government were proposing to put lots of extra people into prison who do not think that they are doing any harm. Well, I will not elaborate on the question of whether they think they are doing any harm. The New Age travellers who go along and sit on other people's land in great masses and do a lot of trespassing know perfectly well what they are doing. I simply advise the noble Lord, Lord McIntosh, that he might like to have a look at the video of what was known as "the battle of the bean field", which as he may remember took place (I believe) in Wiltshire some 10 years ago. If the noble
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Lord saw what went on there he would know perfectly well that everyone knew that what they were doing was not right and was illegal.
I find it astonishing, if I may say so to the noble Lords, Lord Harris, Lord Avebury and Lord McIntosh of Haringey, that they say that measures like this should not be put into a Bill when the prisons are already bursting at the seams and people are in police cells. That argument does not hold any water whatsoever. What we are doing in legislation is saying, "These are offences which we believe will have to be punished in a certain way; it is up to the courts to decide what punishment to give, and these are the maxima". The penalties which are suggested here fit into a range of similar existing penalties.
The amendments seek to remove imprisonment as a sanction which the courts might impose on those convicted—let us be clear about this—of failing to obey a police direction to leave land where they are trespassing with intent to reside, attending or preparing for a rave or committing or intending to commit aggravated trespass or those convicted of attending a trespassory assembly.
The penalties are not new. They already exist in legislation. The penalties for the various offences of collective trespass and nuisance on land are in line with the existing legal framework which is contained in the Public Order Act 1986. The Act provides police powers to deal with trespass on land. It is correct that these penalties should be in the Bill. I hope the Committee will agree.
Lord Harris of Greenwich: Perhaps I may return to the point that the noble Earl made a few moments ago. The implication, in so far as I was able to understand it, was that if an offence is created it is always right that there should be a period of imprisonment available to the sentencing court. I hope that the noble Earl will remember that there was a great deal of disquiet about the activities of prostitutes in the streets in many residential areas of London. Disquiet was expressed, particularly in the House of Commons. Notwithstanding that, the present Government decided to make that no longer an imprisonable offence. That was what the noble Earl and his friends decided. So there were plenty of precedents for Parliament to take note of the consequences of making offences imprisonable.
The noble Earl constantly comes here and tells us how grief-stricken he is that there are hundreds of prisoners in police cells; and here he cheerfully asks the Committee to make this offence imprisonable, notwithstanding the fact that there is a provision in this section of the Bill for confiscation of vehicles, which in my view is a far more adequate penalty to direct at those who commit the offence.
Earl Ferrers: Unlike the noble Lord, I am not too familiar with the activities of prostitutes. I shall have to look at what he says. But the comparison between prostitutes and New Age travellers really does extend the imagination. I am not quite so sure as the noble Lord, Lord Avebury; there may be some connection, but I suggest that the argument that the noble Lord puts forward is very tenuous. The point here is that we

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suggest a level of fines, a level of penalties, for certain crimes. The noble Lord, Lord Harris of Greenwich, knows perfectly well that if in the event people do not pay fines for the penalties that they incur, eventually there has to be another sanction. I do not believe for a moment that the courts will use the penalty of imprisonment very often, but that is no reason why it should not be there.
Lord Avebury: We are not here to please Mr. Howard, who wants to increase the number of offences which justify imprisonment and to lengthen the time for which people are locked up. We are trying to legislate for what is undoubtedly a serious social evil; namely, the presence of large numbers of New Age travellers on land where they are trespassing and their refusal to leave on the directions of a police officer.
I challenge the Minister to say why he thinks that the penalties, as set out in the Bill, of a fine and the confiscation of a vehicle—which, after all, must be very serious for a person who is living in that vehicle and who has nowhere else to go—will not be an adequate disincentive to such a person to leave the land on the direction of a police officer.
I also point out to the Committee that we are not just talking about New Age travellers. As we said in relation to an earlier amendment, if the number of vehicles is reduced to six, a large number of groups of gypsies will be included, whom everybody says they do not want to penalise. I pointed out earlier that under Clause 72 of this Bill it will be made impossible for a gypsy to camp anywhere lawfully. He will move from one place to another, and will undoubtedly, on occasions, settle on land where he is trespassing and will render himself liable to the penalties that are imposed under this section if he is in company with members of his family numbering more than two and occupying at least six vehicles. We are not attacking simply the evil of the New Age travellers; we are rendering everybody who adopts a nomadic way of life liable to the penalties of imprisonment as an ultimate sanction.
The noble Lord, Lord Boyd-Carpenter, says that he does not think that those penalties will very often need to be used. I must say that I am bound to agree with him. If one looks at the Financial Memorandum on page xviii, one sees that there are no costs associated with the imprisonment of people under this part of the Bill. I ask the Minister to comment on that. If nobody is to be put in prison under this clause, why have it there in the first place? On the other hand, if people are to be put in prison, then as the noble Earl, Lord Ferrers, is well aware, it costs about £3,000 a week to keep somebody in an average prison establishment in England and Wales. That figure, multiplied by the number of people who will be caught under this provision, ought to have been included in the Financial Memorandum. Let us find out why it has not been included.
Obviously at this stage I shall not convince the Committee of the undesirable nature of multiplying offences without necessity. But perhaps I may remind the Committee of what Occam said: Entia non sunt multiplicanda praeter necessitatem. I say that offences
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which render a person liable to imprisonment should not be multiplied without the most severe necessity, when we have clogged up our prisons to the extent that we have. We have a larger proportion of our population in prison than any other country in Europe.
That is what the Minister proposes. It is neither extraordinary, as his noble friend on the Back Benches said, nor astonishing that some people should seek to remedy that situation by preventing the Government from embarking on a policy of multiplying offences which result in imprisonment. We make no apology for that.
I can see that this is not the moment to press the amendment to a Division. However, I shall return to it at a later stage, when I hope that the Minister will take a more reasonable view.
Earl Ferrers: Before the noble Lord withdraws his amendment, although we do not want to spend too much time on it or we shall be here until tomorrow morning, I ought to point out to him that the penalty which is appropriate for any offence is a matter for the judgment of the court. In these cases we are talking about activities which include threatening behaviour and intimidation. In my view it is appropriate that imprisonment is a facility available to the courts.
Baroness Faithfull: Before the noble Lord sits down, may I ask him what would be the alternative to imprisonment?
Lord Avebury: The alternative is set out in the Bill. There are fines at level 3 or ultimately there is the confiscation of the vehicle. As I pointed out, if a person lives in a vehicle and that is the only accommodation that he has, confiscation becomes a very severe penalty indeed. It is one which I should have thought quite sufficient without adding a period of three months in prison to it. As I said, I am not sure that we shall convince the noble Earl on the Front Bench this afternoon. We shall just have to come back to the matter at Report stage, when I hope that the Committee will have had an opportunity to reflect on not just this clause but the imprisonment provisions all the way through Part V of the Bill and the effect that they will have on the prison population.
I hope that at some point the Minister will give me an answer to my question about the Financial Memorandum and why there was nothing on page xviii which deals with Clause 56 and subsequent clauses to show what the cost will be of putting people into prison under this clause. I hope that I shall have that information before we reach Report stage. We shall then be able to discuss the matter in the light of the cost as well as the social penalties that will be inflicted, I suppose, on a large number of people by shutting them up in prison for what is at present a civil offence.
Lord Boyd-Carpenter: Before the noble Lord sits down, does he appreciate that simply to say that confiscation of the vehicle is the right penalty misses the whole point? Whereas confiscation of the vehicle may well be a penalty to the owner of the vehicle, it is not a penalty to any of the other occupants. That is why it is

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fallacious to say that confiscation rather than imprisonment should in all cases be the appropriate penalty for the severe offence.
Lord McIntosh of Haringey: It is a penalty if the people have nowhere to live.
Lord Avebury: As the noble Lord asked the question, I must tell him that I disagree with him. The other occupants of the vehicle in 99 out of 100 cases are the family of the owner of the vehicle. If they are not the family, they may be people living in other kinds of ménage. They may be the partners of the person who lives in the vehicle. Obviously they are very closely associated with the owner. If the vehicle is confiscated, they too will lose their only means of accommodation. That is a very severe penalty and one which renders homeless all the occupants of the vehicle, not just the owner of the vehicle.
Lord Donaldson of Kingsbridge: I must point out that they can get their vehicle back immediately by going away.
Lord Avebury: As I said, in view of the fact that the Minister does not wish to give me an answer on the cost and is intransigent on the main point that I am trying to get across, I shall return to the matter at a later stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 58BB not moved.]
The Deputy Chairman of Committees (Baroness Serota): I must tell the Committee that if Amendment No. 58C is agreed to, I cannot call Amendment No. 59.
5.45 p.m.
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 58C:
Page 42, leave out lines 4 to 14.
The noble Lord said: Section 39 of the Public Order Act 1986 specifically excludes all highways and land on which police can operate their powers. Clause 56 now contains an improvement in the position, in that footpaths and driveways are brought into the scope of the law. However, the Government have continued to resist the notion that powers be made available on all highways, apparently on the grounds that it is off private land and onto highways that trespassers would normally be moved, and also on the grounds of their powers under the Highways Act to remove persons obstructing highways.
I do not agree. Experience in recent years has shown that there have been several cases where travellers have parked on highway verges, causing great difficulties for adjoining occupiers but not in fact obstructing the free flow of traffic on the highway. Therefore, highway authorities as such decline to take any interest in the problem. As many Members of the Committee will know, there are instances of what I call oxbows of highway land where the main road has been improved and a large lay-by created on the old route. There is an instance on the A.249 on the Isle of Sheppey in Kent
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where there is an area of highway land near the bridge which is used by travellers and is a known trouble spat for the authorities.
I must remind the Committee that Clause 56 can only operate when the police, in their discretion, choose to use their powers. As I said, all the evidence is that they exercise great caution when contemplating doing so. Yet they are frustrated when circumstances demand their use. They cannot act because trespassers happen to be parked up on a highway land.
Under Clause 72, to which we shall come later, local authorities are given new powers to direct unauthorised campers to leave the land, whether it be unoccupied land, occupied land without the consent of the occupier or any land forming part of a highway. A highway is not defined in Clause 72. Local authorities can therefore move on campers.
Once again, I must tell my noble friend that that seems quite inconsistent with the restriction on the police use of powers in Clause 56. I believe that Clause 56 should be widened to bring it into line with Clause 72 and give the police the operational flexibility, if they so wish, to move on people in major trespass situations. I beg to move.
Lord McIntosh of Haringey: When I saw my Amendment No. 59 grouped with the amendment of the noble Lord, Lord Stanley of Alderley, for one moment I thought that we were in agreement. Much as I love the noble Lord, that would not be appropriate. In fact my amendment is the exact opposite of his amendment. His amendment seeks to bring all highways within the scope of the new criminal trespass provisions. My amendment seeks to exclude not only formal highways but also footpaths, bridleways, byways open to traffic or cycle tracks. Nobody wants to see cycle tracks or bridle paths blocked by travellers of any description, but surely it is an extension of the concept of trespass to make it cover highways and "green highways", as may be the best way to describe them.
The point of which the noble Lord, Lord Avebury, rightly continues to remind us is that in many cases travellers, including gypsy travellers, will, if Clauses 72 to 75 are agreed to, have nowhere to move to. What happens in practice is that where local authorities have not provided sites under the Caravan Sites Act, the gypsies park along the sides of the road. The noble Lord cites one example of where a nuisance is caused. But I suggest that the kind of oxbow which he describes, or the kinds of lay-by or certain parts of highway land, are the only available places for travellers, including gypsies, to go. To seek to take those out and make them subject to the provisions of criminal trespass under Clause 56 would seem to me harsh indeed.
Earl Ferrers: Clause 56 gives the police powers over lanes, bridleways and by-ways open to all traffic. My noble friend Lord Stanley wants them extended to major highways. The police already possess adequate powers in that regard. It would not be right to extend them to highways. Not only is the type of nuisance created by people camping en masse on a highway very different from that which afflicts an occupier, but the police already have perfectly adequate powers under

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highway law to clear any obstruction. The amendment would bring unwelcome duplication and confusion to the law and I hope that my noble friend will be satisfied with the knowledge that the police already possess adequate powers to deal with highways.
Amendment No. 59 seeks to achieve precisely the opposite result, by disapplying the provisions of Clause 56 to any land which forms part of a highway. That would return us to the position under Section 39 of the Public Order Act 1986 where no highways—whether roads, boats or green lanes—are covered. That is one of the areas which gave rise to so many problems in the past.
Clause 56 is intended to improve Section 39. The police and others represented to us strongly that the inability to use Section 39, where vehicles may be on footpaths or bridleways, has been a considerable hinderance to the protection of rightful occupiers. Footpaths, bridleways, green lanes and so forth are meant for the purpose of passing and re-passing. It is unacceptable that they should be camped upon with scant regard for the rights of others. Clause 56 seeks to put the matter right. I hope that my noble friend Lord Stanley will realise, when he tries to transpose the position on to major highways, that the police already hold adequate powers in that regard.
Lord Burton: There are three areas near me where the loops referred to by my noble friend occur, where the road has been straightened. They are used by New Age travellers and cause considerable problems. The police say that they are unable to move them on because the loops form part of a public highway. It may be that the situation is worse in Scotland because, under the Roads (Scotland) Act 1984, any road, including private roads, comes under that Act. I ask my noble friend to look at that point, which is even more severe than the point in relation to loops in public roads.
Earl Ferrers: I know that Scotland has all kinds of idiosyncrasies peculiar to itself which are not reflected always in England. But I shall certainly look at the point raised by my noble friend.
Lord Stanley of Alderley: I cannot agree with my noble friend. Indeed, about 10 years ago I did not agree with my noble friend Lord Glenarthur on Section 39 on this matter of the highways—it may have been my noble friend Lord Caithness, I cannot remember. I shall try to explain to my noble friend why he is wrong.
Section 137 of the Highways Act makes it an offence when a person,
"wilfully obstructs the free passage along a highway".
That person may not be so doing; he may just be on the side of the highway, in which case the provision does not cover the situation. Section 143 of the same Act allows an authority by written notice to
"require the person having control or possession of the structure to remove it",
from the highway within one month. The time period cannot be reduced.
We have been over this matter before and the Highways Act does not work. Moreover, the point is reinforced by the Powys County Council report. The
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council studied the problem, as the noble Lord, Lord Hooson, may know, after the trouble that they experienced. It recommended that Section 143 of the Highways Act be amended to allow highway authorities to serve notice to remove vehicles and structures set up upon the highway within 24 hours. It comes to a question of time, as my noble friend Lord Renton mentioned. In one month an enormous amount of harm can be done and the problem can increase tremendously. I do not know whether my noble friend wishes to comment on that, but if he does not, then I must come back to the matter on Report.
Earl Ferrers: My only comment is this. My noble friend makes out a perfectly good case and I shall certainly look at it between now and Report stage. I cannot tell him what the answer will be but I shall certainly look at what he said.
Lord Stanley of Alderley: I am grateful to my noble friend. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 59 not moved.]
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 59ZA:
Page 42, line 43, after ("vehicle") insert ("but shall exclude the personal belongings of the vehicle's owner or his family").
The noble Lord said: Amendment No. 59 refers to the definition of "vehicle" in Clause 56. It is designed to ensure that the personal belongings of anyone to whom a vehicle belongs are excluded from the definition or are not covered by the word "load" in the definition. The definition of "vehicle" reads,
"any vehicle, whether or not it is in a fit state for use on roads, and includes any chassis or body, with or without wheels, appearing to have formed part of such a vehicle, and any load carried by, and anything attached to, such a vehicle".
The amendment seeks to ensure that the power to remove the vehicle does not mean that the personal belongings of the persons to whom the vehicle belongs will also be removed; for example, clothing and tools of trade. The amendment is in keeping with other forms of diligence where people are left with a means of livelihood when other materials are taken from them. I beg to move.
Lord Stanley of Alderley: I believe I am right in saying that Amendment Nos. 59A and 59B are grouped with Amendment No. 59. Clause 56 provides the police with powers to direct trespassers to leave the land and to remove vehicles and other property that they have with them off the land. Clause 57 provides back-up powers to the police to seize and remove the vehicle that has not been removed. However, the clause does not extend to other property which might include, for example, dogs. There have been numerous incidents—I need hardly remind the Committee—of farmers' sheep being worried by such dogs. The police should be able to deal with property other than vehicles which have not been removed, but which are causing obstruction and nuisance or are a threat to persons or indeed animals.
Earl Ferrers: Amendment No. 59ZA seeks to amend the definition of "vehicle" so as to exclude the personal property of the vehicle's owner or his family.

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In so doing, where a constable exercised his power to seize a vehicle left behind by a person who had been directed to leave land under Clause 56, he could remove the vehicle but not its contents.
That is not a practical solution. We are providing the police with powers to enable them to deal promptly and effectively with those who fail to obey a direction to leave land. In practice, when most people are directed to leave land, they will comply with the direction and take their property with them, as in most cases their vehicle is their home. That is the experience under the existing legislation, which is contained in Section 39 of the Public Order Act 1986. But if someone ignores such a direction, the supplementary police powers, which are provided under Clause 57, will enable vehicles to be removed and so to end the nuisance. If the vehicle has been left behind, under this amendment the constable would have to go into the vehicle, dig out its contents and leave them on the land. I cannot believe that is what the noble Lord, Lord Macaulay, had in mind. We believe that if people are prepared to leave their property, it is right that it is removed to deal with the nuisance.
Amendments Nos. 59A and 59B in the name of my noble friend Lord Stanley address a somewhat different point. We brought in Clause 57 for use in the last resort where people disobey a police direction to leave land and to take their vehicles with them. The vehicles are the key in this situation: if the vehicles go, the trespass effectively ends. I understand why my noble friend wishes to extend this police power to "other property", but I fear that it would not work. The police would not welcome a power to remove worn out old tyres or bits of clapped out car engines. Nor would they have the ability or need to take care of goats or chickens. The Government believe that the deterrent of having their vehicles removed will be sufficient to deter all but the most hardened trespassers to leave. We therefore think that Clause 57, as drafted, is as far as we need to go.
6 p.m.
Lord Macaulay of Bragar: There is a humane object behind the amendment which is that people should not be left bereft and without the necessities of life. I note with interest the noble Earl's reply. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 56 agreed to.
Clause 57 [Supplementary powers of seizure]:
[Amendment No.59ZB not moved.]
Lord Stanley of Alderley Lord Stanley of Alderley had given notice of his intention to move Amendment No. 59A:
Page 43, line 4, after ("vehicle") insert ("or other property").
The noble Lord said: I have already spoken to this amendment and my noble friend has replied. I shall have to think about what he said. I am a little concerned that there may be a need to remove the dogs or whatever without removing the vehicles. I shall have to look at the Bill very carefully. My noble friend may well be right.
[Amendment No. 59A not moved.]
[Amendments Nos. 59AA, 59B and 59BA not moved.]
Clause 57 agreed to.
Clause 58 [Powers to remove persons attending or preparing for a rave]:
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No 59C:
Page 43, line 16, leave out ("during the night").
The noble Lord said: We move to raves. Clauses 58 to 61 provide a new range of powers to control raves which have not been properly licensed by the local authority. While Clause 58 introduces the welcome concept of causing serious distress to the inhabitants of the locality, unfortunately the police power to direct persons to leave the land to prevent the disturbance caused by the playing of amplified musk: relates only to music played during the night. The difference between day and night was raised earlier by a noble Lord and my noble friend gave a reply on which I was not too keen
Obviously, loud music is more likely to cause serious distress when played at night; but surely it could do so during the daylight hours, too, if it is very loud and if its source is close to local residents, a village or a collection of farm buildings. Moreover, there is no definition of "night". I look to noble Lords who live north of the Border where, according to my memory, it hardly gets dark at all at this time of the year. The duration varies according to the latitude and indeed the season. Although under Section 34 of the Game Act 1831 there is a statutory precedent for night—as my noble friend on the Front Bench said, one hour after sunset to one hour before sunrise—I feel that does not apply to raves. If I lived in Scotland, I do not think I would welcome being kept awake until two o'clock in the morning and woken up at three. I beg to move.
Earl Ferrers: I do not mind saying that I have a great deal of sympathy for my noble friend's amendments and for what prompted him to put them down. My difficulty is that I fear that they would be difficult to work in practice. We thought very hard indeed and carefully when drafting these clauses. The intention is to stop innocent local communities being kept awake at night. That is where the most insidious damage occurs. I accept that my noble friend does not like raves during the day—and I dare say a number of your Lordships feel that, too—but it is the constant noise at night which destroys the lives of everyone and prevents people from sleeping.
We all know what we want to stop but it is very difficult sometimes to put these things into draftsman's language which will make for easy interpretation later on. If my noble friend's amendment were carried, a whole host of events would be liable to be prohibited —barbecues with recorded music; a pub that had music being played during the day; Christmas carol collections outside a supermarket; the Notting Hill carnival; and even a Pavarotti concert. Each of those things, other than possibly a Pavarotti concert, might cause serious distress to the more genteel appreciation of music which sometimes your Lordships have and indeed many other people have too. They would be caught by virtue of the amplified music which is played even if they take place on private land, and even if they have the consent of the occupier. That kind of permission would not protect them from Clause 38.

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It is quite obvious that one cannot catch events like that. While it may be deeply unpleasant and deeply distressing to have a noisy party in a neighbour's garden, tolerance levels during the day, when most people are not trying to sleep, tend to be higher than at night. We think it is the night time noise that has to be addressed. We are giving the police wide-ranging powers and it is right that they should be provided. However, it is important too that they should not extend further than is necessary. While I have a great deal of sympathy for his personal involvement and distress, I think that to put that into law would be quite difficult.
Lord Boyd-Carpenter: Does my noble friend the Minister recognise that serious injury could be inflicted on people if loud music or other loud noises are made during the day? The essence of so many of the places where the New Age travellers go is quiet and peace. Indeed, in many of them there are a number of elderly people, perhaps invalids, who require quiet and peace if they are to be allowed to convalesce. It is a pity that we should do nothing to restrain excessive noise unless it is made during the night. I hope my noble friend will be able to think a little further about this. He will well understand what an appalling menace it could be to have loud, blaring noises—so-called music; whether it is music is perhaps a matter of opinion—for hour after hour during the day. The effect of that, particularly on elderly invalids, could be very serious indeed. With great respect, my noble friend ought to think a little further about this.
Earl Ferrers: I say to my noble friend Lord Boyd-Carpenter that I am happy to think about this matter if he will also be good enough to do so. He might like to draft a clause which would catch a rave party but would not also catch a Pavarotti concert, a barbecue or people having a dance in the early hours of the evening. It is very difficult. I entirely agree with my noble friend that some loud music is deeply offensive, but when we start to tell people that they must not play such music under any circumstances and even during the day, that is quite an intrusion into their life. The real danger comes at night-time and that is the reason why we have limited the provision to night-time. I have personal sympathy with what my noble friend said.
Lord McIntosh of Haringey: I hope that the noble Earl is not accusing Pavarotti of emitting,
"sounds wholly or predominantly characterised by the emission of a succession of repetitive beats".
Lord Harris of Greenwich: I hope that we shall also do our best to avoid sending Pavarotti to prison for three months.
Lord Avebury: Before we leave this matter perhaps I may say something in support of my noble kinsman. It may be to his astonishment, but I point out to the Minister that during the month of June it does not get dark until about 10.30 p.m. or even later in northern parts of the country. It is light at 4 o'clock in the morning. People have parties that go on during these hours. Not so long ago we had in our neighbourhood a
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party that went on all night and it was still going on at 6.30 the next morning. I believe that it was held in a house, so it probably would not have been covered by the clause. But let us suppose that it had been held in the open air and that someone had called it to the attention of the police. The police would have been unable to do anything about it because by that time it would have been broad daylight.
The phrase "during the night" needs a little careful thought. We should not allow people to flout this particular provision during the hours of daylight in the summer when many people are still trying to sleep. Perhaps I may also point out that children in civilised households go to bed between 8 p.m. and 9 p.m. and that it is still broad daylight in June at that time of the evening. If you want people to have loud parties at a time when the children are being put to bed or when people are still trying to sleep in the morning, then you should leave the clause as it is. If you want people to have a reasonable night's sleep then you might consider altering it.
Earl Ferrers: I say to the noble Lord, Lord Avebury, that I understand the problem he had with his neighbour's party which went on until 6.30 in the morning. It must have been a jolly good party and no doubt the noble Lord regretted not being invited to it. In such cases the police would not get involved, but the environmental health officer would do so because there are enhanced and speedy local authority powers which deal with noisy neighbours and noise as a problem. That comes under the jurisdiction of the environmental health officers and the local authorities. Here we are dealing with raves which are a particular and peculiar manifestation.
6.15 p.m.
Lord Monson: I venture to suggest that the noble Earl has not listened attentively to what the noble Lord, Lord Avebury, said. Some children may have to get up early to go to school the next morning and for them to be kept up to 11 p.m. in Scotland or in the north of England, because night has not occurred by then, is no laughing matter. Although I believe that the amendment of the noble Lord, Lord Stanley, goes a little too far, might it not be possible by the next stage to provide that for the purposes of this section "night" shall be deemed to start at not later than 10 p.m?
Earl Ferrers: That is certainly an interesting observation. I realise that if you live in the north of Scotland you would get no sleep there if there was such a rave party going on—you would not have very much sleep because, according to the noble Lord, Lord Monson, the party would be going on during the day! I fancy that not many people would want to have rave parties in the north of Scotland.
Noble Lords: Oh!
Earl Ferrers: Perhaps they do. That shows that many things happen in Scotland which one does not know about. I shall consider the matter because there is

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a difficulty about the definition of "night". I am not sure whether, off-the-cuff or off-hand, that will satisfy. I shall certainly look at it.
Lord Mishcon: Before we leave this matter and in considering these great nuisances which do exist, I wonder whether the noble Earl will also look at the definition of "music". He mentioned the revered name of Pavarotti. I am not going to add any jokes in regard to that matter. Does the noble Earl realise that amplified singing by about 100 people would not amount to music if no musical instrument was used or no repetitive beat occurred? Is the noble Earl aware of that? Is he equally aware what a nuisance over 100 people singing, many of them out of key, no doubt, can be to music lovers?
Baroness Carnegie of Lour: Before my noble friend replies, perhaps I may give him an example which illustrates the problem as regards an incident near where I live in Scotland which occurred during the last weekend. On Dunnichen Hill close to the site of the battle of Nechtansmere, which happened a very long time ago in the early stages of Scottish history, 700 New Age travellers (so-called Picts) encamped themselves as they have done in previous years. The drum beats from the music were amplified and could be heard all night. At present night ends at about half-past five in the morning where I live. At the same time, and only about four miles away, there is a permanent camp owned by the Girl Guides. No doubt they were having a camp fire, possibly after it got dark. So whatever my noble friend is able to do to the law to limit the one, one would have to be very careful not to limit the other because doubtless the Girl Guides were singing quite loudly too.
Lord Macaulay of Bragar: Is not the noble Baroness aware that that matter could have been dealt with very simply by applying the law of a breach of the peace in Scotland without any convoluted legislation?
Earl Ferrers: My noble friend makes a valid point which shows how difficult it is when you want to try to catch one particular problem without catching something else which you did not intend to catch. It would be a tragedy, for instance, if a Welsh male voice choir of 100 people were to be caught by this provision, which would no doubt greatly disturb the noble Lord, Lord Mishcon, even if it caught another 100 people who were singing out of tune without any repetitive beat. These are not easy matters to define. It would be wrong for us to consider that we have got them wholly right. So far we believe that we have got them in as good a position as one is likely to get them. I shall certainly consider what has been said.
Lord Hooson: Does the noble Earl appreciate that no Welsh male voice choir worthy of the name needs to be amplified?
Lord McIntosh of Haringey: Cannot the Minister come clean and admit that Clause 58(1) (b) which refers to,
"sounds wholly or predominantly characterised by the emission of a succession of repetitive beats"
is in fact drafted to cover the music of Philip Glass?
Earl Ferrers: No, I would not give such an undertaking.
Lord Stanley of Alderley: I thank all Members of the Committee for their support and that includes my noble friend on the Front Bench. I am not at all happy that the environmental health officer could deal with this problem. I am taken with the suggestion made by the noble Lord, Lord Monson, that perhaps we could try to redraft this matter. I am sure that my noble friend would be pleased to put in a time. At my home at the moment it does not get dark before about 10 o'clock at night and it is light again well before half-past three, so it is quite a short night. In Scotland it would be even shorter.
I was pleased to have support from my noble kinsman. For a change perhaps he might even be a noble friend today. I was also very pleased to get support from the noble Lord, Lord Boyd-Carpenter. He quoted a case which was almost similar to the one which occurred in Bala a few years ago when old people in the village were shaken to the core by the noise that went on. It is not acceptable. I shall leave the matter like this: my noble friend gave the Committee quite a lot of comfort to the extent that he understood the situation. I believe that the whole House understands the problem here. It is a question of drafting. I shall try to get those who draft for me to try to do better and to come back on this matter at report stage. Meanwhile, I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 59D to 61 not moved.]
Earl Ferrers Earl Ferrers moved Amendment No. 62:
Page 43, line 35, after first ("to") insert ("prepare or wait for or to").
The noble Earl said: This is a technical amendment to ensure that the direction to leave the site of a rave; applies to all those who might subsequently wish to come to such an event whether they come while it is in progress, whether they are preparing for it or whether they are waiting for it. I beg to move.
On Question, amendment agreed to.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 62A:
Page 43, line 35, after ("and") insert ("to").
The noble Lord said: This is a minor amendment which I hope will meet with the Government's acceptance. It seeks to clarify the direction given by the officer in terms of Clause 58(2), which states that the officer,
"may give a direction that those persons and any other persons who come to attend the gathering are to leave the land and remove any vehicles or other property which they have with them on the land".
That is capable of two readings: that the person who is ordered to leave the land removes the vehicles or it may by implication give the officer a power to remove the vehicles. The word that I seek to insert by this amendment has been included at line 41 of Clause 56(1). It looks as if there may have been an omission on the part of the draftsman or the printer. I beg to move.
Earl Ferrers: As befits a lawyer, the noble Lord, Lord Macaulay, has looked at this matter with great care —as I have because I thought that the noble Lord may

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have a point. The power in this clause is to direct that vehicles should be removed. The noble Lord's fear is that, as the clause stands, it does not give the police officer a power to remove. I think that such a reading is pretty far-fetched given that the powers of seizure are specifically dealt with in Clause 59. I have taken advice as to whether the amendment would be a suitable addition. I am told that it is not necessary and that the interpretation of the provisions is fairly obvious. I commend that thought to the noble Lord.
Lord Macaulay of Bragar: I thank the noble Earl for that answer. However, it is far-fetched propositions that make money for lawyers and keep the courts occupied. I wonder whether the Minister will take another look at the amendment, but, in the meantime, I beg leave to withdraw it.
Amendment, by leave, withdrawn.
[Amendment No. 63 not moved.]
Lord Avebury Lord Avebury moved Amendment No. 63A:
Page 44, line 4, leave out ("imprisonment for a term not exceeding three months or").
The noble Lord said: I can dispose of this amendment fairly briefly because the arguments on it are precisely the same as those which applied on the previous clause in which imprisonment was introduced for something that was previously a civil offence. I repeat that throughout this part of the Bill we are threatening to lock up people for something which has not previously been an imprisonable offence, and we are extending the range of criminal offences which can result in persons spending three months (or in one case six months) in prison without sufficient justification.
We have not only the imposition of fines, but also in Clause 59 the confiscation of not only vehicles but sound equipment. I warmly welcome those provisions because I can think of nothing which would hit the organisers of the raves harder than to have their expensive sound equipment confiscated. Therefore, I do not object to that provision in the slightest and nor do I object to the imposition of heavy fines on persons who are no doubt making a lot of money (as they do) from organising such events.
However, I do think that it is objectionable in principle to threaten to send such people to prison if they fail to comply with the directions of a police officer to leave the land. I repeat that the Minister has not answered the questions that I asked him. What is going to be the cost to the public purse of imprisoning large numbers (or even small numbers) of persons who fail to comply with the directions of a police officer? As I have pointed out, there is nothing in the Financial Memorandum on page xviii to indicate that the Government have even contemplated the thought that a cost would arise from that clause.
Let us not increase the number of offences which render people liable to imprisonment. Let us not clog up our prison system totally unnecessarily. Let us leave the penalties to be dealt with by means of fines and the confiscation of equipment. I beg to move.
Earl Ferrers: If I may put it in the most gentle of ways, I really think that the noble Lord, Lord Avebury,
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went a bit over the top when he spoke about clogging up the prisons. This is the same argument as we had previously on Amendment No. 58BA, and I can only tell the noble Lord what I told him then. These penalties form a range of penalties which equate with other penalties of a similar nature in the statute. The noble Lord says that I will not tell him what it will cost the Government to lock up all those people in prison, but the answer is that I do not have the slightest idea and nor does anyone else for the simple reason that we do not know how many people the courts will decide should go to prison. My guess is that there will be very few indeed, but that is a matter for the courts.
The point is, as the noble Lord knows perfectly well, that whenever you have an offence, you have to have a penalty and there is sometimes a variety of penalties, and one is sometimes imprisonment. However, that does not mean that anyone who has contravened the Act will therefore go to prison. The noble Lord seems to think that the Government are getting too enthusiastic about locking up people, but the Government do not lock them up; it is the courts that would subject people to imprisonment if they thought it necessary—and that would only be in the worst of cases.
Lord Avebury: The Government cannot slide out of their responsibilities by saying that it is the courts which lock up people. It is the Government—or rather Parliament—who lay down what the penalties are. That is why we are here. If we were not going to object to anything that the Government wanted to do, we might as well all go home and have a nice evening in front of the fire. We are here to look at the penalties which the Government propose to impose—or rather, to allow the courts to impose, if the Minister wants to make that fine distinction.
I cannot accept the noble Earl's argument that because the Government do not know how many people will be locked up under that provision, they cannot estimate the cost in the Financial Memorandum. There are many other examples in Financial Memoranda of where the Government have had only the slightest and haziest idea of what the costs would be, yet they still managed to make some estimate, even if only a range. The Minister has given a completely spurious reason for not including an amount in the Financial Memorandum. I can only conclude that the Government completely forgot that they had to calculate and include some amount and that, therefore, in default of their duty to give Parliament the necessary information that it has to have before it can reach a decision, the Minister made that spurious argument.
Before we reach Report stage, I hope that the Minister will come up with some estimate so that the House will then be able to consider the full implications of the proposal. In the meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 63B not moved.]
The Deputy Chairman of Committees: I must advise the Committee that Amendment No. 63C is to page 44, line 22, and not as it appears on the Marshalled List.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 63C:
Page 44, line 22, at end insert ("or in Scotland a licence granted in terms of Schedule 1 of the Licensing (Scotland) Act 1776").
The noble Lord said: Amendments Nos. 63C, 70B and 178A run together. The first two would be consequential upon acceptance of the third—that is, Amendment No. 178A—which is a probing amendment to inquire whether the Government have any view of whether the provisions relating to so-called "raves" should be extended to Scotland. As the Bill stands at the moment, the provisions do not apply to Scotland. There is a danger—probably a real danger—that if the law is rigorously applied in England and Wales through this legislation, there will be some cross-border transference of activity in terms of raves into Scotland and, apart from the provisions that I mentioned earlier relating to breaches of the peace, very little could be done to stop that happening.
I am puzzled, as may be other Members of the Committee, as to where the word "rave" comes from. It does not appear in the Bill's Long Title. It appears in the heading and the side note to Clause 58, but is nowhere defined. Would the Minister care to embark upon the definition of a rave? I can think of a number of ways it could be applied, apart from loud music and so on. The Committee will be aware that one of the problems is that a rave is an extension of disco dancing, lights and all the rest of it, but within the context and under the cover of a rave the drugs people move in and use the musical attraction as a vehicle for getting rid of drugs and, in particular, for supplying drugs to young people.
Unfortunately, two teenagers have died within the past two months from being supplied with drugs at a rave on the west coast of Scotland. That in itself was sufficient to sound alarm bells that there is an activity in Scotland which may require to be covered by legislation. The amendment is a probing one to allow the Minister to indicate whether any representations have been received from the police, social workers, local authorities or any other group in Scotland suggesting that there should be legislation to cover Scotland. I await the Minister's answer with interest. I beg to move.
6.30 p.m.
Lord Fraser of Carmyllie: The word "rave" does not appear other than in a side note, but if the noble Lord looks at Clause 58(1) (b) he will see that music is defined as:
"sounds wholly or predominantly characterised by the emission of a succession of repetitive beats".
Lord McIntosh of Haringey: If the noble and learned Lord will forgive me, it is not defined as that; it is defined as including that.
Lord Fraser of Carmyllie: It is time for Beethoven to roll over if that is to be the definition of "music". I am grateful to the noble Lord for giving me the opportunity to respond to the amendment. If carried, the amendment will extend to Scotland and Northern Ireland powers in relation to raves and power to retain and charge for seized vehicles and property under Clause 59.
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Our original view was that the extension of those powers to Scotland was unnecessary. Contrary to some criticism to which we have been subjected in Scotland, we had not intended that the whole of Part: V should be adopted for Scotland merely because it was perceived that there were provisions which might be useful in England and Wales unless we could ascertain that they would serve some comparably useful purpose in Scotland. For that reason, having looked at the existing powers, we concluded that they were adequate to deal with the current and estimated future scale of any problems likely to be encountered in controlling unlicensed raves.
The majority of raves in Scotland are relatively orderly events held in licensed premises. The noble: Lord referred to an unfortunate recent event where two young people in Scotland appeared to have been supplied with one or more drugs and died as a consequence. That rave took place in premises subjected to licence conditions. It was not part of the uncontrolled unlicensed activity which has been a feature of the scene: this side of the Border. Our experience is that organisers of raves in Scotland have invariably co-operated fully with the police in ensuring that the arrangements for them are satisfactory and that necessary security precautions are in place. The type of disruptive, illegal rave witnessed in parts of England which can cause considerable distress to local residents has, fortunately, not been replicated in Scotland.
Any problems or complaints resulting from open-air gatherings at which loud music is played made by local residents in Scotland are usually resolved quickly through co-operation on the site between the police and those responsible for holding the event. In extreme cases, the police have powers to seize music-making equipment where an offence has been committed under Section 54 of the Civic Government (Scotland) Act 1982, but such action has seldom been found to be necessary. The power of seizure is in itself most probably an effective deterrent to persons who might be inclined to hold illegal raves in Scotland and thus lose valuable equipment. Similarly, the existing law in Northern Ireland seems to be adequate to deal with any problems there which might be encountered with illegal raves.
However, having listened to what the noble Lord said, I would invite him not to press his amendment on the undertaking that we will reconsider the position in Scotland. I am sure that he will appreciate that that is not a promise to introduce our own amendments, but we shall take the opportunity of the gap between Committee and Report to check again with the police and others and to secure an up-to-date assessment of the risks of a growth in illegal raves of the kind that have been experienced in England. If the assessment is that there is a substantial risk, we would clearly wish to avoid it. If our existing powers are not sufficient, we know from the amendments that the noble Lord has tabled that there are provisions for Scotland that we could adopt satisfactorily.
Baroness Carnegy of Lour: Before my noble and learned friend sits down, when considering the matter

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will he bear in mind the point made by the noble Lord, Lord Macaulay, that the pressure to have illegal raves in Scotland might increase if and when the English legislation becomes law?
Lord Fraser of Carmyllie: That is a valid point. That is why I said that I should like to secure an up-to-date assessment of the possible risk of illegal raves in Scotland. Part of that assessment may be that they might be driven out of production, as it were, in England and Wales.
Lord Macaulay of Bragar: I am grateful to the Minister for the caring and thoughtful reply which he has given to this serious problem. That the two boys died in licensed premises may underline the fact that the sooner we can control raves outwith licensed premises the better it will be. I am obliged to the Minister for undertaking the review that he has promised. I look forward with interest to hearing his conclusions in due course, whether or not they are reflected in an amendment. Perhaps he will be good enough to write to me on the matter if he does not propose to put down an amendment. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Ferrers Earl Ferrers moved Amendment No. 64:
Page 44, line 31, after ("(b)") insert ("in England").
The noble Earl said: I shall speak also, if I may, to Amendments Nos. 65, 66 and 85. These are technical amendments designed to ensure that the provisions of the Bill will apply properly in Wales after the reorganisation of local government there on 1st April 1996, as a consequence of the Local Government (Wales) Bill. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendments Nos. 65 and 66:
Page 44, line 32, after ("Scilly;") insert:
("(c) in Wales, a county council or county borough council;").
Page 44, line 33, at end insert:
("(11) Until 1st April 1996, in this section "local authority" means, in Wales, a district council".").
On Question, amendments agreed to.
Clause 58, as amended, agreed to.
Clause 59 agreed to.
Clause 60 [Raves: power to stop persons from proceeding]:
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 66A:
Page 45, line 22, after ("force") insert ("or to land to which a direction under section 56(1) is in force,").
The noble Lord said: With the Committee's permission, I shall speak also to Amendments Nos. 66B and 68A. The amendments extend the five-mile exclusion zone concept applied by Clause 60 to raves under Clause 58 to trespass incidents under Clause 56. In cases of mass trespass—Castlemorton Common in 1992 was an example—the police can be faced with serious difficulties in containing and controlling large numbers of people and vehicles. It is clearly desirable that there be a means for the police to prevent what may
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already be a serious incident from becoming worse with the arrival of fresh groups of people. There is therefore just as much a case for an exclusion zone under Clause 56 trespass situations as under Clause 58 raves. I believe that Amendment No. 68 in the name of the noble Lord, Lord McIntosh, does not express similar sentiments. I beg to move.
Baroness Mallalieu: Amendment No. 68, tabled by my noble friend Lord McIntosh, merely reflects the anxiety felt by many of us that five miles by way of an exclusion zone is somewhat excessive. The amendment proposes to introduce instead 500 metres. I hope that the noble Earl will consider that five miles is excessive and involves a considerably unnecessary exclusion.
Lord Monson: I have considerable sympathy with what was said by the noble Baroness, Lady Mallalieu, but perhaps 500 metres is too small a radius. It is draconian for the police in peacetime to be able to stop people who are not committing a crime from going from A to B. It began only at the time of the miners' strike some 10 years ago and was scarcely known in this country prior to that. It may be necessary in current circumstances; indeed, I am prepared to be convinced that it is. However, the power should be used sparingly and I agree that five miles is excessive.
Earl Ferrers: Amendments Nos. 66A, 66B and 68A seek to extend the police powers to stop persons proceeding in the direction of a rave to occasions where there have been a direction to leave land under the provisions of Clause 56, which deals with trespass with intent to reside. I have some sympathy with my noble friend's intentions but I do not think that his amendments would be enforceable.
The provisions of this Bill give extensive—some might say even draconian—powers to the police to prevent raves. These are unusual in that they impose significant restrictions upon people's rights to travel and to assemble. But, such is the nuisance to whole communities of these large-scale events that we consider that the powers are justified.
Encampments of New Age travellers and the like are also a dreadful nuisance. That is why the Government have brought forward the enhanced powers which are in Clause 56. But I am not convinced that it would be right to go as far as my noble friend would wish and to give these powers over small groups of others. For all the misery which is caused by groups of New Age travellers and so forth, a simple encampment cannot be said to create the wide-scale problems of raves. As regards raves, we are dealing with a major public nuisance rather than a private wrong and it is easier to see that wider-ranging powers are required.
In the case of raves there is hard evidence on which the police can act; published leaflets give details of potential rave sites, for example. Where large numbers of New Age travellers are heading purposefully for a large gathering, our new provisions in Clause 65 against trespassing assemblies can be invoked. In the case of small groups of New Age travellers making haphazardly from place to place, there simply is not this evidence available and the police would be hard pressed to justify

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a belief that people were travelling to a particular piece of land. This would open the way for all kinds of legal arguments.
Amendment No. 68 seeks to draw the teeth of Clause 60, which enables a police officer to stop people proceeding in the direction of a rave site within five miles of that site. If this amendment were carried that distance of five miles would be reduced to 500 metres. That is hardly any distance, in particular in view of the number who are congregating. When the police are trying to stop a rave happening it is essential that they have the ability to turn people away before they gather in numbers sufficient to make a dispersal operation impractical. If the police could act only within 500 metres of the site this essential preventive power would effectively be removed. Five miles is, I believe, a reasonable distance given that these powers are envisaged for use in rural areas (and given the safeguards which will apply) and I hope that Members of the Committee will agree that the Bill is best left as it is.
6.45 p.m.
Lord Avebury: Will the Minister tell the Committee what powers the police already enjoy which they use at some large gatherings? For instance, when hippies congregate at Stonehenge, the police turn back persons whom they believe to be intending to join the gathering. Therefore, there must already be powers on the statute book. We should be told why those powers are inadequate and why the new powers given to the police to stop persons intending to join a rave within a radius of five miles are considered to be necessary.
If the types of gathering to which those persons intend going are different from those contained in the Bill, might it not be best to ensure that the two sets of powers are in harmony? Alternatively, if we are creating new powers for the police but are not repealing any of the powers that already exist, a conflict could arise and the police might be confused as to which set of powers they should use. If the Minister will explain the position we can decide whether it is necessary at a later stage to delete the other powers from the statute book or, alternatively, to ensure that they are in harmony with those that we intend to enact now.
Earl Ferrers: The police have all kinds of powers over traffic control, the movement of vehicles and so forth. However, in instances such as Stonehenge they are very different. The powers used there must be obtained under Section 13 of the Public Order Act relating to processions. That is a fairly cumbersome procedure which requires the approval of the Secretary of State.
We are now looking at a much simpler provision that is easier to deal with. We are dealing with the possibility of large numbers of people converging on a site, the result of which will be loud noise throughout the evening and congestion of the roads. Once people arrive on a site and the music begins it is difficult to prevent the congregation, as it were, appearing. We suggest in the Bill that, when the police believe that a rave is to take place on a certain site and when a constable
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reasonably believes that people are going there, it is right for him to say, "I am sorry, you cannot do so. You must turn away from there because the rave should not take place". That must be done over a reasonable distance and that is the reason why we make this proposal.
Lord Avebury: I do not necessarily object to the provision but we must be clear about what we are doing. Is it right that in the case of large gatherings, such as at Stonehenge or Glastonbury, where there is no intention on the part of the organisers—if there are any, because it may be a completely anarchic event where people come together by a process of telepathy —to have music as defined in Clause 58, the police must depend on powers which the noble Earl says are cumbersome to stop people going there? I am merely throwing this out for consideration.
Apart from the evil that we are seeking to address —the large rave concerts which cause an enormous amount of disturbance in the neighbourhood—there is also the question of the protection of ancient monuments. I should have thought that that was equally important. I am not saying that the police should necessarily have the power to stop people attending gatherings of 100 or more persons. But, if in our wisdom we see fit to give powers to the police to stop people attending large-style gatherings where music of a particular nature is to be played, then we should consider whether they should have the same power in respect of gatherings which are likely to cause damage to archaeological monuments.
Earl Ferrers: The noble Lord, Lord Avebury, is quite right to refer to that, because they are important powers. There is a distinction to be drawn. Perhaps I may take the noble Lord back historically. Some years ago those assemblies began to be held at Stonehenge. They created great problems for the police and the people in the locality before one even thinks of the problems in relation to damage caused to the site itself. Therefore, it was decided that the powers under Section 13 of the Public Order Act should be used. Those powers deal with that specific situation and require the approval of my right honourable friend the Home Secretary before they can be used.
The Bill deals with two separate matters: trespassing, and the possibility of New Age travellers suddenly converging on a place, trespassing and creating mayhem in the locality. That will cover, as I understand it, the Stonehenge case where people arrive in large numbers and trespass. Provided that they fulfil the necessary criteria, they can be moved on under the trespassing provisions in the Bill.
The third area to be dealt with is raves. It is easy to consider trespassing and New Age travellers as on a par with raves but the difference in relation to raves is that although people congregate in large numbers, the additional factor is the noise. Therefore, it is not just people in the immediate locality who are offended by the physical arrival of large numbers of people but other people who may be miles away are affected by the noise which is emitted. Therefore, there are those three distinct parts.

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I believe that I am right to say that, although Section 13 of the Public Order Act, which is used at Stonehenge, is the section that is and will be used, the people attending the raves will be caught also under the trespassing provisions which we agreed earlier. I hope that that has explained the position to the noble Lord.
Lord Moyne: Is not the distinction between Stonehenge and Glastonbury on the one hand and raves on the other that Stonehenge is always in the same place whereas raves can take place anywhere?
Earl Ferrers: That is a remarkably philosophical and intelligent distinction to draw. I cannot disagree with my noble friend. However, such a distinction rather muddies the issue in so far as raves involve music which offends the ears and the noble Lord, Lord Avebury, referred to Stonehenge, which is a site of archaeological interest and, therefore, special provisions apply.
Lord Clifford of Chudleigh: Will the Minister consider that—I coin his phrase—we are muddying the waters somewhat for the police by imposing a five mile limit? My noble friend on the Cross Benches believes that to be rather draconian. I can understand that limit being applied with regard to Stonehenge. However, people from caravan sites within counties may go to raves which are very near to those caravan sites and which may well be within the five-mile limit from the caravan site. I believe that it will cause complications to impose a five mile limit. I believe that the problem may be best addressed if the superintendent or chief constable refers back to the Secretary of State in order to alter that limit if there are any difficulties.
Lord Cochrane of Cults: May I ask the noble Lord why he picked on caravan sites? I can see the problem which he addresses but not that it originates in those circumstances. Will he clarify that point?
Lord Clifford of Chudleigh: I apologise. I was not trying merely to pick out caravan sites. I was just trying to point out that the difficulties may arise not only in relation to Stonehenge, which has been referred to, but they may arise in relation to a particular site. I was addressing the imposition of the five-mile limit.
Earl Ferrers: The poor noble Lord, Lord Clifford of Chudleigh, fell into a trap. Had he had the privilege of being here during our debates on the Sunday Trading Bill, he would have realised that my noble friend Lord Cochrane of Cults has a particular interest in caravan sites, which he tried to protect during our discussions on that Bill. Hence his sensitivity when the noble Lord, Lord Clifford of Chudleigh, dared to mention the words "caravan sites".
I know what the noble Lord, Lord Clifford, is referring to. I do not believe that it would be possible for a senior police officer to refer back to the Home Secretary to request an expansion of the distance over which he could turn people back. Raves involve a large number of people who converge from all directions. If the provision is to work and if we are to prevent raves from taking place, for all the reasons of inconvenience and environmental offensiveness which they create, the
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police must be given reasonable powers. With the greatest respect to the noble Baroness, Lady Mallalieu, it is no good allowing the police to turn people away only within only 500 yards of the site. That cannot be done if thousands of vehicles are involved. The roads will become jammed and so on. The police must have a reasonable area within which to work. That is why we have imposed a limit of five miles. That does not mean that in every case the police will choose to use that limit. They may wish to turn back people within a shorter distance but that depends upon the topography, the site in question and the view of the chief officer concerned. We are trying to provide the police with the authority to use a five-mile limit where it is necessary.
Lord Stanley of Alderley: I am extremely grateful to my noble kinsman Lord Avebury for raising the issue with regard to which powers the police will use under which part of the Bill. I am grateful, too, to my noble friend on the Front Bench for explaining so carefully the position. I shall read what he said with great care because I find it quite difficult to understand why there is a Clause 56 offence and then a different set of offences and problems under Clause 72.
Earl Ferrers: I thank my noble friend Lord Stanley for informing the Committee who is his noble kinsman. He referred to him on a number of occasions and I wondered who it was. I have been thinking about that for the past hour. At one point, I thought it was me but then it turned out not to be so. I now discover that it is the noble Lord, Lord Avebury. That is one confusion in life cleared up.
Lord Burnham: Perhaps I may say to the Minister that about half the Members of the Committee are kinsmen of the noble Lord, Lord Stanley.
Lord Stanley of Alderley: Unfortunately so.
Baroness Faithfull: What do you mean, unfortunately?
Lord Stanley of Alderley: Well perhaps fortunately. I must return to the problem. I found it difficult to understand the difference between Clauses 56 and 72 and there are also problems in relation to Clauses 60 and 56.
My amendment asks for a widening of the powers. My noble friend on the Front Bench has said, I believe, that he will consider the matter. I should point out that the police will not use the powers unnecessarily. One can see that they have used very sparingly the powers given to them under the 1986 Act.
I just feel that, as regards raves, trespass, or whatever part of the Bill we are dealing with, the police should be given as much latitude as possible. I believe that we should trust them to use it sparingly. They have done so in the past. I finish by saying that prevention is better than cure. If the chief officer of police feels it is best to stop something that is going to cause trouble at a greater distance from the place in question, I believe that he should be given that power. However, I shall certainly consider everything that the Committee has said

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between now and Report and I shall consider whether to return to this matter at a later stage. In the meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 66B not moved.]
7 p.m.
Earl Ferrers Earl Ferrers moved Amendment No. 67:
Page 45, line 26, leave out ("this section") and insert ("subsection (1) above").
The noble Earl said: In moving Amendment No. 67 I wish to speak also to Amendments Nos. 69, 70 and 86. These amendments seek to create new offences of failing to obey a constable's direction not to proceed in the direction of a rave or a "trespassory" assembly. When these matters were discussed in another place, the Government took the view that specific offences such as these were probably not necessary as anyone failing to obey a constable's direction not to proceed could, we believed, be arrested for the offence of obstructing a police officer in the execution of his duty. But, in the light of comments made in another place and of the representations of the Police Federation, we undertook to reflect on the matter. We have concluded that, in order that there can be no possible doubt, it would be sensible to create new offences of failing to obey these directions. I commend the amendments to the Committee.
On Question, amendment agreed to.
[Amendment No. 68 not moved.]
[Amendment No. 68A not moved.]
Earl Ferrers Earl Ferrers moved Amendments Nos. 69 and 70:
Page 45, line 28, leave out ("this section") and insert ("subsection (1) above").
Page 45, line 28, at end insert:
("( ) If a person knowing that a direction under subsection (1) above has been given to him fails to comply with that direction, he commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
( ) A constable in uniform who reasonably suspects that a person is committing an offence under this section may arrest him without a warrant.").
The noble Earl said: I have already spoken to these amendments with Amendment No. 67. I beg to move.
On Question, amendments agreed to.
Lord Stanley of Alderley Lord Stanley of Alderley had given notice of his intention to move Amendment No. 70A:
Page 45, line 30, at end insert:
("(5) If a person knowing that a direction has been given which applies to him under this section proceeds in the direction of the gathering or the land concerned, he commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(6) A constable in uniform who reasonably suspects that a person is committing an offence under this section may arrest him without a warrant.").
The noble Lord said: As I understand it, Amendment No. 70 in the name of my noble friend Lord Ferrers has dealt with this problem, in which case I have great pleasure in thanking him for that. I shall not move the amendment.
[Amendment No. 70A not moved.]
Clause 60, as amended, agreed to.
Clause 61 [Power of court to forfeit sound equipment]:
[Amendment No. 70B not moved.]
Clause 61 agreed to.
Clause 62 [Retention and charges for seized property]:
Earl Ferrers Earl Ferrers moved Amendment No. 71:
Page 47, line 11, at end insert ("or for different circumstances.").
The noble Earl said: This is a technical amendment to ensure that the Secretary of State has the power, subject to the negative resolution procedure, to make regulations in respect of vehicles which have been seized and retained which may differ to take account of different circumstances. I beg to move.
On Question, amendment agreed to.
Clause 62, as amended, agreed to.
Lord Ackner Lord Ackner moved Amendment No. 72:
After Clause 62, insert the following new clause:
("Breaches of privacy with intent to obtain and publish information

—(1) A person who—

(a) enters or remains on private property without the consent of the lawful occupant with intent to obtain personal information with a view to its publication, or

(b) places a surveillance device on private properly without the consent of the lawful occupant with intent to obtain personal information with a view to its publication, or

(c) uses a surveillance device (whether on private property or elsewhere) in relation to an individual who is on private property, without the consent of the individual to such use with intent to obtain personal information about that individual with a view to its publication, or

(d)takes a photograph or records the voice of an individual who is on private property without his consent to the taping or recording, with a view to its publication and with intent that the individual shall be identifiable,

commits an offence.

(2) It shall be a defence to any of the offences specified in subsection (1) above that the act was done—

(a) for the purpose of preventing, detecting or exposing the commission of a crime or other seriously anti-social conduct; or

(b) for the purpose of preventing the public from being misled by some public statement or action of the individual concerned; or

(c) for the purpose of informing the public about matters directly affecting the discharge of any public function of the individual concerned; or

(d) for the protection of public health or safety; or

(e) under any lawful authority.

(3) A person guilty of an offence under this section shall be liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding one year or a fine or both;

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

The noble and learned Lord said: The Committee on Privacy and Related Matters was set up by Mr. Douglas Hurd and was chaired by Sir David Calcutt QC. Its terms of reference were as follows:
"In the light of the recent public concern about intrusions into the private lives of individuals by certain sections of the press, to consider what measures (whether legislative or otherwise) are needed to give further protection to individual privacy from the activities of the press and improve recourse against the press for the individual citizen, taking account of existing remedies, including the law on defamation and breach of confidence; and to make recommendations".
The committee reported in June 1990. It recorded in paragraph 1.5, among other things, that,
"there have been numerous allegations of declining press standards and of growing intrusion into individual privacy".
It referred to a number of striking instances in which,

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"sections of the press had been severely criticised for intruding upon accident victims and other patients in hospital, for using stolen private correspondence or photographs and for publishing scurrilous (and sometimes false) details of individuals' private lives".
The committee dealt with the position with regard to the existing law and pointed out that there is no general criminal offence of trespass to land, although over the years there have been a number of statutory inroads. It commented that there is little protection against intrusion on private property, and that after the incidents in 1982, when an intruder entered Buckingham Palace, consideration was given to the creation in England and Wales of an offence of trespassing on residential property in a manner likely to cause the occupier alarm and distress, but that the Government had made as yet no proposal for self-regulation. It accordingly proposed, among other things, new criminal offences. It pointed out in paragraph 6.30 that,
'The main desire of a victim of physical intrusion, whether of harassment, surveillance or trespass, is for the intrusion to be stopped immediately".
It explained that the victim would,
"much prefer the police to arrest or remove those who are intruding, as can happen in Scotland".
It further stated that,
"Only the criminal law can guarantee prompt relief to the victim and provide a sufficient deterrent to the intruder".
The committee noted in particular that,
"France, West Germany, Denmark and the Netherlands all have criminal offences of physical intrusion without apparent conflict with the European Convention".
It accordingly recommended that three forms of physical intrusion should be criminal offences in England and Wales. These I have largely mirrored in the amendment which I have proposed and which I will refer to later.
At the request of the Secretary of State for the Department of National Heritage, Sir David Calcutt was asked to conduct a review of press self-regulation. He duly reported on 8th January. He said in terms that he considered that the Press Commission is not an effective regulator of the press. He said:
"It has not been set up in a way, and is not operating a code of practice, which enables it to command not only press but also public confidence".
It did not, in his view,
"hold the balance fairly between the press and the individual. It is not the truly independent body which it should be. As constituted, it is, in essence, a body set up by the industry, financed by the industry, dominated by the industry, and operating a code of practice devised by the industry and which is over-favourable to the industry".
He accordingly went back to the proposals which had been made by the committee. He suggested that, with modifications which are reflected in my amendment, they should be enacted. Accordingly, what I propose has, fortunately, no stamp of personal originality about it. It is the product of careful thought by a committee set up by the Government in order to advise on this matter.
Perhaps I may draw the Committee's attention to what is proposed in the amendment. It is to create criminal offences which will arise when a person:

"(a) enters or remains on private property without the consent of the lawful occupant with intent to obtain personal information with a view to its publication, or

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(b) places a surveillance device on private property without the consent of the lawful occupant with intent to obtain personal information with a view to its publication, or

(c) uses a surveillance device (whether on private property or elsewhere) in relation to an individual who is on private property, without the consent of the individual to such use with intent to obtain personal information about that individual with a view to its publication, or

(d) takes a photograph or records the voice of an individual who is on private property without his consent to the taping or recording, with a view to its publication and with intent that the individual shall be identifiable".

Then the defences are set out, again as proposed by the committee and subsequently endorsed by Sir David Calcutt, namely:

"(2) It shall be a defence to any of the offences specified in subsection (1) above that the act was done—

(a) for the purpose of preventing, detecting or exposing the commission of a crime or other seriously anti-social conduct; or

(b) for the purpose of preventing the public from being misled by some public statement or action of the individual concerned; or

(c) for the purpose of informing the public about matters directly affecting the discharge of any public function of the individual concerned; or

(d) for the protection of public health or safety; or

(e) under any lawful authority".

Subsection (3) sets out the situation on conviction on indictment or on summary conviction.
I accept that no government wish to lose popularity by being antagonistic to the press. The press are unforgiving and take their revenge whenever possible. Indeed, I have cautioned my wife to read no obituary of mine in due course.
The Government have been subject to such a consistent campaign of press hostility that I submit that they have little to lose and much to gain by showing that they have the courage to stand up to the press. They will improve their standing, albeit not with the media but with the electorate.
We have been told in the past that a White Paper was due to be published and that there would be a consultative document. I hesitated before putting down the amendment because I thought that I would be trumped with the usual excuse that the whole issue was under intense and close scrutiny, that one section could not be dealt with on its own, and that I should show patience and wait for the current consultation to continue and be productive. I hope that that is not correct. However, there is a growing impression that the Government's approach to this very real and increasing problem is pusillanimous and, accordingly, to test the position I put down the amendment. I beg to move.
7.15 p.m.
Lord Colnbrook: I agree entirely with the noble and learned Lord, Lord Ackner, in what he seeks to achieve with the amendment. I utterly deplore the activities described—the use of bugging devices to overhear private conversations, the taking of photographs of unsuspecting persons in their own homes and gardens with long-range cameras, and the like. I think that I am safe in saying that the overwhelming majority of people in this country feel just as I do and as he does. It is interesting that, according to their public statements, so do the press.

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I do not speak for the press in any way. They can speak for themselves. However, as it happens I am a member of the Press Complaints Commission—which I know is derided by Sir David Calcutt—which is charged with the duty of seeing that the code of practice which the press themselves have laid down is adhered to so far as possible. That code specifically states that editors should not publish material obtained by undesirable methods save in the public interest, which is defined in very much the same terms as in the noble and learned Lord's amendment.
The argument for legislation, which I wholly understand, is that the Press Complaints Commission has no power to enforce the code or to impose penalties if the code is broken, whereas an Act of Parliament would do so. It is again of passing interest to note that, according to my understanding, the press have already said that they would not object to such legislation. I certainly would not. However, I must take issue with the noble and learned Lord, Lord Ackner, and I shall tell the Committee why.
In my view his amendment goes for the wrong man. The noble and learned Lord quoted from Sir David Calcutt's first report, which referred to intrusions by the press. There is nothing about intrusions by the press in the amendment. For example, the amendment states that it would be an offence to take a photograph of:
"an individual who is on private property without his consent … with a view to its publication".
I have taken photographs of individuals on private property without their consent and so, I suggest, have many Members of the Committee. Many of us will have taken photographs at a wedding reception, although not with the intention that they should be published. I have such photographs, and I have put them in my album. If an editor came to me and said, "That's an interesting photograph. Here is Mr. X kissing Miss Y. He should not be doing so; his wife is somewhere else. Will you sell it to me?", I would not do so. Neither would any of your Lordships. Some people would, and some people do. Yet if I did so, because I did not take the photograph with a view to its publication I would escape prosecution. That cannot be right, and it cannot be what the noble and learned Lord intends.
The mischief occurs not with the taking of the photograph but with its publication. That is when the trouble arises. Just as the Press Complaints Commission's code of practice, which your Lordships may well say is weak because it cannot be enforced, refers to the duty of the editor not to publish such material, so should any Act of Parliament. There is nothing about editors in the amendment. There ought to be.
I accept that people who go on to private property and place bugs on telephones, for example, should be liable to the criminal law. However, the real trouble arises when somebody publishes the material obtained, and there is no mention of that here. One day I daresay that there will be such reference. If there is, I shall welcome it. But I cannot advise the Committee to accept the amendment as it stands.
Lord Morris: I, too, have a problem with the amendment. The amendment of the noble and learned
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Lord addresses a mischief. The mischief is a breach or invasion of privacy. This part of the Bill addresses totally different matters; namely, collective trespass and nuisance on land. The instances that he adumbrates at paragraphs (a) and (b) involve trespass, but that is, incidental to the nuisance. Paragraphs (c) and (d) do not involve such trespass. All Members of the Committee will have the utmost sympathy with the underlying point of the amendment. The noble and learned Lord was quite right to draw attention to the fact that Her Majesty's Government have been looking at this vitally important public issue over many years. Indeed they are looking into the possibility of creating a new tort of invasion of privacy. I believe that that will be welcomed throughout the land.
In the amendment the noble and learned Lord attempts to create a new crime of invasion or breach of privacy. With the greatest respect—I really mean that; I do not use those words as a buzz phrase—I believe that it is not right to place even part of that immensely important aspect of the law within the scope of this Bill. It is a huge and vitally important subject. Although the noble and learned Lord foresaw the argument against his amendment, I beseech him to await events. So far as I know there is a determined intention that that area of the law shall be comprehensively covered by Her Majesty's Government some time in the future.
Lord Lester of Herne Hill: I believe that the Committee will be grateful to the noble and learned Lord, Lord Ackner, for having raised extremely important issues in the amendment. Perhaps I may briefly explain why, like other Members of the Committee, on balance I am opposed to the amendment.
I begin by saying that the press are not above the law. I fully recognise that there is a serious social evil occasionally committed by newspapers and others when they intrude upon personal privacy in outrageous ways. I also agree that that mischief needs to be dealt with effectively.
One of the difficulties about the amendment is that it is raised in a context unlike that in Sweden, Germany, France or other countries which have criminal and civil sanctions and remedies. In those countries they guarantee a right to free speech and privacy. There is a proper constitutional framework in which courts can decide on the balance between the right to free speech and freedom of the press and the right to personal privacy.
That has not yet happened in this country, even though noble Lords have several times sought to secure that position by passing Bills to incorporate the European Convention on Human Rights into our law. The European Convention on Human Rights guarantees both freedom of expression and a personal right of privacy.
If one considers the specific proposal, one central problem about the amendment is that there is no positive statutory right to free speech and therefore it seeks to introduce criminal sanctions and penalties in an area where magistrates, juries and judges would be unguided on the need to respect freedom of expression except in the language of the defences in subsection (2). The

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magistrates or a jury would have to decide whether an offence has been committed by a journalist on the basis not of paragraph 2 of Article 10 of the European Convention—that is, whether a finding of guilt or a punishment were necessary in a democratic society for protecting the right to personal privacy—but of whether the act was done for the purpose of preventing, detecting or exposing the commission of a crime or other seriously anti-social conduct.
That was a test which, Sir David Calcutt accepted in paragraph 7.21 of his report,
"might be considered too difficult a concept for criminal legislation".
Incidentally, unlike the noble and learned Lord, Lord Ackner, Sir David Calcutt recommended that the offence should be summary only in nature, with a maximum financial penalty of the level 5 fine, whereas the amendment proposes an indictable offence. The magistrates or jury would have to decide also whether the act was done,
"for the purpose of informing the public about matters directly affecting the discharge of any public function of the individual concerned".
That is rubbery and elusive language which would have a chilling effect, I suggest, on the function of the media as gatherers and purveyors of information to the public about the workings of Government and the activities of Ministers and public officials.
Perhaps I may give a few examples. First, perhaps I may take the easy and the gross example. A popular actor lies gravely ill in hospital, attached to a life support system. His photograph is taken by intruding press photographers. That is what happened to Gordon Kaye, who obtained an injunction against the Daily Sport for its quite monstrous invasion of his privacy. The injunction, it is true, was based on malicious falsehood and not on privacy. But I would expect the Law Lords to create a tort of privacy in just such a case, as was strongly indicated by the noble and learned Lord, Lord Keith of Kinkel, in the Spycatcher case. The case relating to Gordon Kaye would also be caught, and rightly so, by the amendment of the noble and learned Lord, Lord Ackner. I am also confident that the Princess of Wales has an effective civil remedy for the again gross invasion of her personal privacy when she was working out in a private gym.
Perhaps I may quickly give the more difficult examples. What about the Minister agog with schemes to make fathers more responsible for their families who is revealed to have serial mistresses? What about another Minister's foreign holiday revealed to have come courtesy of a PLO paymaster's daughter? The proposed defences in the amendment are completely uncertain in their application to cases of that kind where many would think that the public had a right to be informed. Newspaper editors and their staff would be at a loss to know whether information about matters of that kind could lawfully be published, and, rather than risk the hazards of criminal prosecutions, they would tend to err on the side of caution and freedom of speech would be the casualty.
I suggest that the central problem is that these defences are too narrow. But if they were broadened
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they would be even more unforeseeable. For my part I would leave the courts to develop common law remedies on a case by case basis in what is a notoriously complex and hazardous area. Given the opportunity, I believe that the Law Lords would develop a right of privacy using cases on confidentiality and on private nuisance to go beyond narrow proprietary interests. I also agree with the noble Lord, Lord Colnbrook, that we should give the Press Complaints Commission a full opportunity to use non-legal sanctions too. However, in the last resort, I believe that the courts have a vital role to play.
Lord Renton: As I understand it, the amendment proposed by the noble and learned Lord happens to be within the Long Title of the Bill, which, as I said at Second Reading, is perhaps the longest Long Title in modern times. The provision confers,
"new powers on the police to take samples from or search persons"—
that is irrelevant. It makes,
"further provision in relation to persons unlawfully or without authorisation on land".
Those are wide words. I therefore do not believe that we should be afraid of the amendment merely because it seems to be beyond the scope of this part of the Bill.
The speeches of the noble Lord, Lord Lester, are always interesting, although I do not necessarily agree with them. He complained that there was no constitutional framework for what is proposed; but, my goodness!, if we needed a constitutional framework in our unwritten constitution for every proposal put before Parliament, we would not have much law enacted.
The speech of my noble friend Lord Colnbrook was interesting, especially coming from a person with his responsibilities with regard to the press. However, I point out that publication is not made an offence; doing something with the intent to publish is made an offence and that is rather different. The truth is that the noble and learned Lord's amendment is of limited application in protecting people's privacy.
7.30 p.m.
Lord Harmar-Nicholls: Will the noble Lord allow me to intervene? If the intent is carried out and the photograph is published, is that not sufficient?
Lord Renton: No, strangely enough, if my noble friend looks at the amendment carefully he will see that the offence is committed, whether or not publication follows later. The Committee may think that this is an unusual consequence, but no doubt it has been carefully thought out by the noble and learned Lord who is anxious to prevent people trespassing on private property and doing something which might infringe the law of privacy. I use broad terms now, rather than expressing the present law which is not covered by the amendment. It can be said that to trespass on someone's land or enter someone's house and take photographs or take notes of what they are up to, and similar actions, is, in broad terms and leaving aside the law, an invasion of privacy.
In passing, after the incursion into Buckingham Palace, I was one of those in your Lordships' House

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who were anxious that the Government should take steps in the matter. I went so far as to draft a Bill which was moved by my noble friend Lord Onslow some years ago. It would have dealt with the matter; but for some reason the Home Office did not like it and nothing was done.
The noble and learned Lord's amendment does not attempt to deal with that. He merely mentioned it as part of the background, to draw attention to the fact that under our law as it stands it is too easy for people to go into someone else's house, garden or elsewhere on their property and do all kinds of things without the law stepping in.
I shall not take it upon myself to say that I agree with all the details of the noble and learned Lord's amendment. In particular, I doubt whether it is necessary for subsection (2) to be as broadly drawn as it is. Subsection (1) states the intention that has to be proved. If that intention is not proved, it is in itself a defence and that is why I have doubts about subsection (2).
Without putting the press into any jeopardy at all and, to that extent, without interfering with the freedom of the press, the noble and learned Lord has put forward a suggestion which most of us would wish to find a protection in law. It is that people should not go into our homes or gardens or take photographs without consent with the kind of intentions which the noble and learned Lord expressed in subsection (1). I hope that either now or at a later stage in our parliamentary life, something on the lines of the noble and learned Lord's amendment will be made part of the law.
Lord Avebury: We have already decided that we wish to criminalise some kinds of trespass, so it is logical that in the new clause we find an extension of that principle, albeit a rather drastic one. The noble and learned Lord proposes to put people in prison for periods of up to a year, whereas so far we have only been talking about three months. I object to the proposal for the same reason as I object to the other two provisions in the Bill which I have mentioned. I do not like the great extension of criminalisation that we find all the way through the Bill, nor the submission of such a proposal in the middle of a Bill to which it does not relate. I agree with the noble Lord, Lord Renton; I have read the Long Title and the amendment falls partly within the provision that he read out.
Some matters in the new clause do not relate to trespass at all. Subsection (1) (d) regarding the offence refers to a photograph which is taken from any place. It does not have to be from within the land belonging to the person concerned. The amendment covers cases like the well-known examples of telephoto pictures being taken of members of the Royal Family from quite a distance. The surveillance devices mentioned in subsection (1) (c) defining the offence do not necessarily have to be on land so the offence could and often will be committed when no trespass has taken place. That too is to be criminalised.
One can place a surveillance device in the neighbourhood of a person's property and pick up their voice or whatever other sounds may occur within the
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premises and one is committing as great an offence and rendering oneself just as liable to imprisonment as if one had the additional ingredient of trespass.
The noble Lord, Lord Renton, said that if we waited for a constitutional framework, we would probably never have any Acts passed at all. However he missed the other point made by my noble friend that we are talking here about the interaction between the law on privacy and the law on freedom of speech. We are not talking about a general constitutional framework, but the interplay of two important principles which are not being considered together here. The defences which the noble and learned Lord proposes are specific. He is not trying to put the new clause within the context of any general provisions on freedom of speech or even to address the reconciliation of the two opposing principles.
I agree with my noble friend Lord Lester about the dangers of what he called the "rubbery and elusive" wording of subsection (2) (c). I wish to mention one instance where the subsection would lead to serious consequences. It is a defence to the accusation under the clause that one has been seeking information about a matter of public interest from the person immediately concerned. Thus, a Minister may be suspected of doing something improper and someone may reveal that in his newspaper, having obtained a tape recording of words spoken by the Minister which prove the allegation the person is making. Supposing that instead of the Minister, someone in his department, like the Permanent Secretary, who has knowledge of the improper activities of the Minister and is talking about it on his own private property. One may detect the offence by recording his words, but there is then no defence under subsection (2) (c) because it is not the words of the Minister himself that one is picking up but those of someone in his department.
We need to consider much more carefully than the noble and learned Lord has, if I may say that to him with great respect, what kinds of defence there should be which do not enormously limit the activities of whistle-blowers, which, as my noble friend pointed out have on some occasions been quite important. We need to have people in the newspapers who actively seek information about wrong-doing in the public service and frequently reveal it. I suggest that we must tolerate an element of invasion of privacy in that regard.
If sometimes the press goes much further in perfectly frivolous and unfounded acts of invasion of privacy, then let us address the problem by some other means. Again, let us not multiply the criminal offences that we find in the Bill. Let us look at privacy as a completely separate issue, and not as part of a Bill that deals with completely different matters.
Lord Harmar-Nicolls: I do not disagree with the noble Lord's last words. I do not know whether the noble and learned Lord has it in mind to push this matter to a vote. I rather doubt it. But whether he does or not, I hope that my noble friend who is representing the Government will take heed of the message that this amendment contains. There is no doubt about it, it is

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generally understood that at the moment people are being damaged by the misuse of illicit photographs that are being distributed.
I do not know whether my noble friend will give any kind of welcome to the words of this amendment, but I hope that he will not give the answer that the Government gave to my private Bill which tried to deal with one section of this matter as recently as a month ago. It is clear now that a distorted, contorted photograph is more damaging than a 1,000-word article. The photograph can be more damaging than the pen to people's reputation and to people's right to freedom. Whether this is the right Bill in which to try to make the improvements that the noble and learned Lord has in mind, I do not know. But in my Bill I attached the same argument regarding photographs to the copyright Bill. It was quite in accordance with procedures and passed all of the tests as being accurate. But people who opposed it a month ago said that the copyright Bill was not the right one. Now, I have no doubt, others will repeat what has already been said; namely, that this is not the right Bill to which to attach this particular group of amendments.
The only reason that I make a contribution is to impress upon the Government that they ought to give a lead on this issue. The explanation that they gave to my Private Member's Bill at its Second Reading was that they were already quite a way along the road of preparing a White Paper with the idea of doing something about the law of privacy generally. I have no faith in intentions of that kind. One has heard government promises to do something in general terms, and years pass and nothing is done.
I only urge my noble friends on this occasion, whatever the noble and learned Lord does with this particular amendment, to stir their stumps as a government and face up to the dangers that are thrown at people with the illicit use of such photographs. We have already had mentioned the example of the Princess of Wales. We also had the example of the Duchess of York, who had similar treatment. When she put her defence in France for preserving her freedom she received £50,000 compensation and an injunction against the intrusion being repeated. Why can we not give our people the same protection in this country? If it cannot be done by my Bill, attaching a proposal to the copyright Bill, or by the noble and learned Lord attaching his amendment to this Bill, the Government really ought to do something about producing a Bill.
The noble Lord, Lord Colnbrook, did the same as was done in regard to my Bill. The noble Lord defended the press under the general umbrella of the freedom of the press to be able to do its duty. The press and the photographer together are the problem. If certain sections of the press did not offer exorbitant amounts of money to cowboys who deliberately take distorted pictures and hawk them round because they are salacious and because the pictures have some circulation value, the problem would not occur.
Lord Colnbrook: Perhaps my noble friend will allow me to intervene. He cannot have listened very
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carefully to what I said. One of the things that I said was wrong with this amendment was that it does not cover the press, and it should do. I did not defend the press. I said that the press should be covered by the amendment too, but it is not.
Lord Harmar-Nicholls: No, the noble Lord said something else. He did say that, if he wants to stand just on that clause but he also said that the commission of which he is a member had powers to do something about the problem but that those powers were not enough.
Lord Colnbrook: No, it has no powers.
Lord Harmar-Nicholls: Self-regulation adds up to nothing. We know perfectly well that self-regulation does not meet the requirement. Profit is a much greater influence on people than self-regulation whether it be in the interests of privacy or of anything else. I urge what my noble friend claims that he said: I urge the Government to do something about this matter.
At the Second Reading of my Bill only two months ago, it was said that the Government were well on the way with a White Paper. By the time that we had reached the Report stage the announcement had been made that they had had to call off the White Paper preparation because certain things had prevented it. What were those things that prevented the White Paper going ahead? The only point that I am making, in the light of my own experience, is that I hope the Government will not hide behind the reluctance of the civil servants to have any kind of intrusion on a field that they want to keep as their own. I always felt that their objection to my Bill was just that they hoped eventually that they might get down to dealing with privacy and did not want any kind of obstacle put in its way.
Lord Burnham: I thank my noble friend for giving way. Those of us who opposed my noble friend's Bill did so for a considerable number of reasons. The basic one was that in its wording and conception it was flawed.
Lord Harmar-Nicholls: As in this case, neither the noble Lord, who represents the press—he has a personal interest—nor the Member who represented the photographers liked the Bill. In the end the House accepted the objection of the noble Lord, Lord McGregor, who is the chairman of the Press Complaints Commission, because there were not many Members here. Self-interest overcame the real need for this kind of thing to be dealt with. That is what happened in this House.
If the Government cannot override the self-interest obstacle, then they are not doing their duty. No nation could have had more evidence than we have had over the past 12 months that intrusive photographs are not only putting the country in a bad light but are damaging people unfairly and to a great extent. Even the Prime Minister could have suffered in that way. We saw the photograph of the occasion when he attended a dinner and someone proposing the Grace had made a witty speech. He was thinking of a reasonably appropriate reply, and in the process of doing so—as it was afterwards proved—he sat down. There were bottles in

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front of him (it was a dinner) and he looked intent. The photograph made it look as though he were a distraught man at the end of his tether who ought not to be in charge of a whelk-stall never mind being the Prime Minister of this country. The picture was presented in a way that was so damaging that it did the country real harm.
The only purpose of my words tonight to my noble friend—it is to him that I speak—is to urge him to take the further evidence of these amendments as a need for the Government to do something about the matter. They are the only people who can do so. If neither a copyright Bill nor this Bill is the right vehicle, then let the Government with their powers produce the legislation. They should not keep promising to do something about the matter only for us to find at the end of the day that nothing happens.
Baroness Strange: Perhaps I may intervene very briefly in support of the noble and learned Lord. Basically his amendment is about two very pernicious things: eavesdropping and Peeping-Toms. My mother once had a daily who constantly used to listen in on the telephone. My mother would say, "I am sorry but I cannot say anything to you now because Ann is listening in", and Ann would say, "I am not". The point is that my mother knew that someone was listening in and was aware of eavesdropping on her conversation. The noble and learned Lord says that people are not aware and do not know what is happening. I think therefore that they should be protected.
Baroness Mallalieu: The noble and learned Lord, Lord Ackner, raised matters which have caused concern in all parts of the Chamber. Many of the examples cause a great deal of distress and worry to many of us. However, this clause is not one that we on these Benches feel should be considered in this Bill. We believe that it should be part of a wider review of the law of privacy, which should come as soon as possible. For those reasons, sadly, we cannot support the noble and learned Lord.
Earl Ferrers: The noble Baroness has put very clearly a point of view which reflected a number of speeches made this evening on the noble and learned Lord's amendment. He described vividly the concerns which led him to table the new clause. There is no doubt that the behaviour of certain sections of the press, intruding into the personal lives of both celebrities and ordinary members of the public, has on occasion been nothing less than deplorable.
Modern technology has made it easy for people to be photographed at considerable distances and to have their private conversations listened to. I was disturbed when I heard my noble friend Lord Colnbrook say that he envisaged himself going round at weddings photographing his friends kissing the wives of other friends who were not there at the wedding; but I was delighted that he was at least gracious enough to say that, if he had done that, he would not sell them to the press.
I am sure that the Committee will be as irritated as I am at the excuses which are sometimes put forward as justification. They are generally based on some spurious
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argument of public interest. Then, when any suggestion is made that there should be legislation to curtail such activities, there is a pathetic cry of "Don't touch the press". If there is to be freedom of the press—and there should be—it is a privilege which carries a two-way responsibility. It is one which should not be abused or manipulated.
As the noble and learned Lord pointed out, the problem of physical intrusion into personal privacy by the press and possible ways of combating it have been examined a number of times over the years. Various studies which have been carried out show that there is a considerable degree of concern—as expressed by the Committee this evening—that the press cannot be trusted effectively to discipline their rogue members. The broad consensus is that Parliament will have to intervene in the absence of such discipline in order to introduce sanctions against those who intrude into the privacy of others for the purposes of publication. It is provisions of that kind which the Committee has been considering this evening.
The proposals put forward by the noble and learned Lord, Lord Ackner, are identical with those recommended by Sir David Calcutt in his review of press self-regulation. They are based on the principle that a mischief which is sufficient to justify criminal sanctions occurs when personal information is sought without the subject's consent by intrusive means and in circumstances where he has a legitimate right to privacy.
In any proposal for legislation which attempts to balance two rights, there are inevitably problems of principle and of definition which have to be resolved. It is essential that any proposals in this field should find the right balance between, on the one hand, the application of the criminal and civil law and, on the other hand, the freedom of the press and the rights of others, notably the right to privacy. Any legal formulation in this difficult and sensitive area must be defined as clearly and unambiguously as possible if we are to ensure that it catches unacceptable intrusions but that it allows legitimate investigative work to continue. I shall not conceal from the Committee that we have found it very difficult to reconcile those conflicting claims and to ensure the necessary precision in any legislative proposal.
The various efforts that have been made in the past to control the excesses of press behaviour are only too well known. The Committee is aware of how much time has passed and the fact that the Government have not yet made up their mind on these important questions. But I can assure the Committee that the Government have not been idle. It has become plain to us that the issues involved are very complex and sensitive and that they need to be considered as a whole in order to ensure that the balance is properly struck. With an issue of such importance, it is essential that we get things right and that any proposal should be the subject of fully informed and national consideration.
My noble friend Lord Harmar-Nicholls said that the Government ought to give a lead. He said that the amendment was further evidence that something ought to be done and the Government ought to act. I can understand that view and my noble friend's personal

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interest in the matter because of his Bill. I can assure him that the Government are giving a lead. We propose to issue a White Paper on the whole subject of press intrusion into privacy. In addition to dealing with the questions of self-regulation and a new civil tort, the White Paper will also consider in some detail the various questions, both of practice and of principle, to which any extension of the criminal law in this area would give rise. That will give Parliament and the public an opportunity to consider fully these complex issues.
The noble and learned Lord, Lord Ackner, said that he was hesitant to table an amendment on this subject. I admire him for his humility. He is not normally hesitant about tabling amendments, particularly on subjects about which he feels strongly. But his hesitancy came only from his feeling that he would be trumped by remarks such as, "A wide and careful scrutiny will take place", "Careful consideration is being given to these matters", "We must deal with the whole problem and not with a bit of it" and "We must wait a little longer". I do not know whether the noble and learned Lord had a look at my brief before I rose to speak. He might have chosen those words from it.
I am bound to tell him that that must be the answer that I give him. It is not a bad answer considering the speeches that have been made this evening. A number of Members have been against the proposal: my noble friend Lord Colnbrook said that he could not support the amendment; my noble friend Lord Morris said that we should wait for the Government to make some proposals; the noble Lord, Lord Lester of Herne Hill, said that he had doubts about the amendment; and my noble friend Lord Harmar-Nicholls said that it was very important to get the matter right.
I feel that this debate will be of great value. It has shown that it would be unwise to attempt to legislate in a particular area if we do not get the matter right.
I know that the noble and learned Lord, Lord Ackner, will be disappointed and possibly irritated—I hope not —that I ask him to be patient a little longer. But it is a sensitive area. In the Government's view, it would be unwise to introduce one set of controls in the form of criminal offences without considering how they interact with other possible measures. The Committee has already accepted, in the context of the Bill introduced earlier by my noble friend Lord Harmar-Nicholls, that a piecemeal approach is not the right one. The White Paper will provide an opportunity for us to take a wider and fuller view. I ask the noble and learned Lord, Lord Ackner, therefore, to be graciously patient a little longer.
8 p.m.
Lord Ackner: Before the noble Earl sits down, perhaps he can give the Committee some indication as to when the White Paper will be provided.
Earl Ferrers: It is always the short questions which are the most difficult to answer. The White Paper will be produced when it is ready and I cannot go further than that. It is unlikely to be immediate because the
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Government have yet to make up their mind. A debate such as we have had this evening will help them to consider their views. But it will be produced as soon as possible. I do not know whether the noble Lord, Lord Harris of Greenwich, wants to make an intervention.
Lord Harris of Greenwich: I was clarifying the observations about timing with my noble friend, having just returned from an important Home Office function.
Lord Renton: Before my noble friend concludes on this matter perhaps I can say that I was gratified, as I am sure we all were, to hear that the Government intend to consider the matter and produce a White Paper. But it has become customary in recent years for a Green Paper —namely, a consultative document—to be produced first. A consultative document is an open-minded document in which problems are posed and people invited to reply as to how they should be solved. On the other hand, a White Paper is rather conclusive and is usually a prelude to legislation. Does my noble friend mean that it will be a consultative document or a final document?
Earl Ferrers: I do not know that there is any virtue in going into these nuances. It is clear to my noble friend Lord Renton and the Committee that the Government have not yet made up their mind and are considering the position. The object of a White Paper is to enable the Government to say, "These are our thoughts", and find out what is the reaction of the public. That will be the purpose of the White Paper.
Lord Ackner: Perhaps I may first assure the noble Earl that I did not look at his brief. But in the short period during which I have taken a relatively active part in the affairs of this Chamber, that is a refrain that I have heard so often that it took no great imagination to anticipate that it would be repeated again tonight.
At the outset of my submissions to the Committee I was at pains to disavow the parentage of the amendment. That prevents me taking advantage of its modesty, because modest it is. It in no way seeks to fetter freedom of speech. It is not directed to freedom of speech; it is directed to intrusion into other people's property without their consent. It does not include a co-defendant, which the noble Lord, Lord Colnbrook suggested. It does not include the editor, whom the noble Lord submits ought to be a defendant either on his own or as a co-defendant. It does not include him because it is a modest amendment.
It was said in terms by the noble Lord that it is of limited application. So it is. In this field one proceeds slowly. If one had started by being ambitious one could anticipate the comments that would have been made. Basically the criticism is, "You have not gone far enough". But that is not a basis for saying, "Don't go at all". Let us build upon what is a new feature. It is rather like our recent references to the right of silence. One is introducing something quite new; let us proceed with appropriate safeguards. That is what I sought to do in this case.
I have heard what Members of the Committee said, in particular that the punishment is too severe. One of the advantages of the matter being raised at this stage is that

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it can always be altered. I heard the suggestion that one of the defences is too narrow. If that criticism can be made, the defence can be widened. It is intended to be a start. It is apparent that the Government need stimulation on this subject. If that is all I achieve at this stage in moving this amendment, then it is something. At this time I beg leave to withdraw the amendment, but with the reservation that by improving it I hope to bring it back at a later stage.
Amendment, by leave, withdrawn.
Lord Annaly: I beg to move that the House do now resume. In moving this Motion I suggest that the Committee stage begin again at five minutes past nine o'clock.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Merchant Shipping (Salvage and Pollution) Bill
8.7 p.m.
Lord Donaldson of Lymington: My Lords, I beg to move that this Bill be now read a second time. I begin by congratulating the honourable Member for St. Ives, Mr. David Harris, for taking this Bill through its earlier stages in another place. I am most grateful to him for so promptly bringing forward legislation to implement some of the interim recommendations of the inquiry which I was appointed to chair, with terms of reference to identify what further measures could be taken to protect the United Kingdom coastline from pollution. I am sure that the House will support my view that we should strive to protect the marine environment whenever it is practical to do so. But when pollution occurs we must ensure that there is a response capability to minimise the effects of that pollution.
The Bill will help to combat maritime pollution in several ways, principally by permitting the implementation of international conventions and protocols which will enhance the protection of the marine environment. Those are the 1989 Salvage Convention, the 1992 protocols and the Oil Pollution Preparedness, Response and Cooperation Convention. Ratification of the Salvage Convention and accession to the 1992 protocols were two of the interim recommendations of my inquiry's report, Safer ships, cleaner seas. By providing for the implementation of those important instruments, the Bill is an essential element in the comprehensive national and international framework to ensure that our seas are both safe and clean.
Since 1980 the Lloyd's Open Form salvage contract has provided for a regime of reward for measures taken to protect the environment called special compensation. The 1989 Salvage Convention introduces the concept of special compensation to salvage law for the first time. Clause 1 of the Bill proposes a statutory basis for such payments.
The traditional "no cure—no pay" principle will continue to apply; that is, a salvage award will still be payable only when a salvor is successful in saving
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property of some value. However, under the new convention, salvors may claim special compensation from the shipowner if the vessel or its cargo pose a pollution or safety risk to the environment. This may be payable in the absence of, or in addition to, a traditional salvage reward. The convention will therefore encourage salvors to get involved—and, what is equally important, stay involved—in salvage operations when there is a threat of marine pollution, since special compensation assures them that they will at least recover their expenses. Salvors are further encouraged to get involved by the knowledge that, if they actually do prevent or minimise damage to the environment, they may be awarded payment of special compensation up to double their expenses.
Clause 5 provides for the implementation of the 1992 protocols. The 1992 protocols amend the two International Maritime Organisation conventions which established a liability and compensation regime for oil pollution damage. The first convention, adopted in 1969, makes the owners of laden oil tankers strictly liable for oil pollution damage. Liability is, however, limited. The applicable limit depends upon the ship's tonnage. The second convention, adopted in 1971, created an international oil pollution compensation fund, whose role it is to provide additional compensation when the shipowner's liability is inadequate. There is a limit on how much compensation the fund can pay out for damage caused by one incident. The 1992 protocols will dramatically increase the limits on shipowners' liability and the limit on compensation available from the international compensation fund. The protocols also extend the geographical scope of the regime, because pollution caused some considerable distance from shore can drift and cause pollution of the coastline.
At present the total compensation available to the victims of an oil pollution incident from the shipowner and the international oil pollution compensation fund together is limited to £55 million. After entry into force of the 1992 protocols this limit will initially more than double to £125 million, and could subsequently rise to £185 million. The 1992 protocols will also allow the limits to be increased on a regular basis in order to keep them in line with inflation. The protocols will therefore ensure that there is a greater likelihood that the victims of a future oil spill will be fully compensated.
Clause 2 enables the Oil Pollution Preparedness, Response and Co-operation Convention to be im-plemented by order in council. The convention will provide a framework for international co-operation in combating oil pollution and will encourage states to upgrade pollution preparedness and response capabilities to the high level of competence that already exists in the United Kingdom and in Europe.
Clause 8 of the Bill will improve the domestic framework for combating marine pollution by providing a clear statutory basis for the Department of Transport's marine pollution control unit. This will remove any threat of a legal challenge to the unit's operations. The MPCU is responsible for the co-ordination of counter-pollution measures in response to oil and chemical pollution emergencies in the United Kingdom.

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The unit also co-ordinates the provision and maintenance of resources in readiness for such operations.
Clause 4 of the Bill will allow the United Kingdom's jurisdiction for counter-pollution measures to be extended beyond the territorial sea. This will allow better policing of the requirements of the International Convention for the Prevention of Pollution from Ships. Such an extension of jurisdiction, up to a maximum of 200 nautical miles from our coasts, is sanctioned by the United Nations Convention on the Law of the Sea, and is to be implemented as part of a co-ordinated exercise undertaken by all states bordering on the North Sea. I am very happy this evening that I am able to introduce a provision which I think meets a plea made by the noble Lord, Lord Clinton-Davis, in a letter to The Times which was published yesterday.
Clause 6 of the Bill will enhance the protection of the marine environment against pollution caused by fuel oil. At the moment, there is an anomaly in the treatment of different kinds of vessel. Only owners of laden oil tankers are strictly liable for marine pollution from oil spillages. But other ships can also pose a threat of serious oil pollution. All large ships carry fuel oil, often in very considerable quantities. This type of Gil can be thicker and more polluting than most types of oil carried in bulk as cargo. The Bill will extend strict liability for fuel oil damage to owners of all types of ships. Shipowners will be liable not only for the costs of actual damage caused, but also for the cost of measures taken to prevent such pollution occurring.
Clause 7 removes an inconsistency between the practice of the international oil pollution compensation fund and domestic legislation. It gives the fund a clear right to recover any compensation it pays when it is not in fact legally obliged to do so.
Clause 3 will save parliamentary time by aligning the procedure for making regulations concerning pollution from ships on that for regulations concerning safety on ships.
When the Bill comes before the House at the Committee stage I shall be proposing a small technical amendment. This is to make an order in council under subsection (3) of Clause 1 to implement any revision of the Salvage Convention subject to parliamentary control.
All in all I hope the House will agree that this Bill offers significant improvements on the present arrangements for protecting the United Kingdom coastline and surrounding waters. I am sure that there will be widespread support for the Bill in this House, just as there was in another place. I commend the Bill to the House.
Moved, That the Bill be now read a second time. —(Lord Donaldson of Lymington.)
8.16 p.m.
Lord Byron: My Lords, I should like to take this opportunity to thank the noble and learned Lord, Lord Donaldson, for introducing this important Bill into your Lordships' House. It is also particularly opportune that the Bill should be introduced a week after the
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publication of the major—perhaps I may say landmark —report into the prevention of pollution from merchant shipping by the inquiry in the name of the noble and learned Lord. I hope that in due course the House may have the opportunity to debate the report.
The report emphasises the vital role that the salvor plays in the whole question of safety at sea and in particular in relation to prevention of pollution. Recommendation 85 of the report invites the UK Government to set up a system to ensure that tugs with adequate salvage capacity are available at key points around the UK shores. The inquiry recommends that the tugs concerned should normally be owned, managed and manned by commercial operators but where adequate capacity cannot be provided in any other way, the UK Government should arrange for the funding of the difference between what is needed and what the private sector can provide.
These salvage services are by and large provided by the private sector and rely on salvage awards to make the whole operation economically viable. It is obviously desirable that so far as possible salvage services should be provided by the private sector and that the burden should fall on the public purse only where there is no viable alternative. It is clearly therefore in everyone's interest to encourage private salvage operators, and this Bill, enacting the 1989 Salvage Convention, the 1992 protocols and the other provisions to which the noble and learned Lord referred, is clearly an important step forward. In particular, Article 14, dealing with special compensation where damage is threatened to the environment, is a major step forward, although of course this particular provision has already been included in the 1990 LOF—the standard "no cure no pay" salvage contract.
In this context it is also worth emphasising the very important role played by the City of London and in particular the Lloyd's Open Form and its related arbitration arrangements. Statistics provided in the 1993 bulletin of the International Salvage Union show that in its survey of more than 2,400 cases over a 15-year period relating to salvage carried out in all parts of the world, 74 per cent. were carried out under a Lloyd's Open Form "no cure no pay".
Returning to the particular provisions of the Bill, there are two matters which I should like to raise. I heard the noble and learned Lord refer to a technical matter which he may wish to bring forward in Committee. Unfortunately, I did not detect that it was a technical matter in which I was particularly interested.
Concern has been expressed by a number of organisations, including the salvage committee of the BLMA and the International Salvage Union, relating to the amendment of the Supreme Court Act 1981 contained in the second schedule to the Bill in so far as it relates to the Admiralty jurisdiction of the High Court in salvage cases. The concern is that to confine the court's jurisdiction to any claim under the Salvage Convention 1989 would probably dispose of the court's present jurisdiction in respect of so-called "engaged services" or "services at request," it being arguable that the words,
"under any contract for or in relation to salvage services",

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do not cover such services. The jurisdiction of the Admiralty Court may also be ousted in respect of claims by disposed salvors other than under contract; claims relating solely to determination of whether a casualty has a salved value; and claims contesting agency of necessity in respect of engaged services or services at request.
It has been suggested that the phrase,
"or in the nature of salvage",
would serve to remedy the otherwise apparently limiting effect of Section 2. That phrase has significant historical foundation. It is of course the existing wording of the Supreme Court Act. It is a phrase which appears in the leading textbooks and in a number of Acts and it is a phrase with which salvage practitioners have long been familiar. This is a matter of considerable practical importance because, as the law now stands, if the master of a vessel asks another ship to stand by during the course of a storm or requests another vessel to fetch and anchor, and that service is carried out but for one reason or another no benefit accrues to the vessel in distress, nevertheless, a claim can be brought and the courts do recognise such a claim. It would be a pity if this important additional area of present salvage jurisdiction were to be lost as a result of this Bill coming into effect.
The second area of concern relates to life salvage. Under the provisions of Article 16 of the Salvage Convention any life salvor has to direct his claim to the property salvor rather than to the property salved itself. That is likely to present considerable problems to the professional salvor in future cases. They will either have to wait until the time limit for a claim by a potential life salvor has expired or actively promote claims by the life salvor in order to ensure that they are taken into account when assessing the property salved value. This will inevitably lead to delay which in the present economic climate the professional salvor can ill afford.
I am aware that in respect of the latter point any amendment to the Bill might well be thought to be a derogation of the UK's international obligation when it ratified the convention. In relation, however, to the jurisdiction point I am not sure that this difficulty arises.
This is not the time or the place to consider detailed amendments to the Bill, but I hope that the Government may be able to consider particular points. Perhaps the noble and learned Lord may be able to give his blessing to suitable amendments at Committee stage.
This is an important Bill which I very much welcome in your Lordships' House. (I do not know whether it is a coincidence that the Bill is being introduced on the 250th anniversary of the Baltic Exchange. I hope that no one here tonight is missing out on those celebrations as a result of being in your Lordships' House.) Therefore, I should like to take this opportunity again to thank the noble and learned Lord for his highly authoritative introduction to the Bill which has considerable significance for the world of international salvage and in relation to the prevention of pollution generally.
8.23 p.m.
Lord Clinton-Davis: My Lords, at the outset, I declare an interest: I speak also as chairman of the Advisory Committee on Protection of the Sea, which is
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a non-governmental organisation which receives reasonable—I would not say too generous—support from the Government. It was founded by my noble friend Lord Callaghan in 1952. I believe that it was very perceptive of him to do so. It has since become a notable international NGO.
This debate gives me the opportunity from these Benches to pay tribute to the noble and learned Lord, Lord Donaldson, for the incredibly able chairmanship of the committee that has produced the report which I hope will, as the noble Lord, Lord Byron, has said, enable us to debate it in the not too distant future once the Government have come forward with their response to the various recommendations which have been made. Unquestionably, it was a work of great skill under the noble and learned Lord's chairmanship and of great significance. I hope that the Government will take urgent action to bring before Parliament not only their response but the actions they propose to take as regards many of the recommendations.
Against that background, it is therefore propitious that the noble and learned Lord, Lord Donaldson, was asked to pilot this undoubtedly important Bill through this House which will have appreciated his explanation of the purposes of the Bill and of the various clauses contained in it. I know that neither the noble and learned Lord nor for that matter Mr. David Harris who piloted the Bill through another place, will take amiss—because my criticism is not aimed at either of them—my disapproval of the Government using this sort of procedure in introducing Bills which are in reality government Bills. These Bills ought to be introduced in government time. I made this criticism when the House was considering the Merchant Shipping (Regulation) Bill legislation last year. I believe it was, before the noble Lord who speaks for the Government tonight took office so he is in no way to blame for that. I said on that occasion that I thought it was a great pity that the government business managers did not take that criticism on board. I know it is not the fault of the department; maybe it could exercise a little more clout in future, but who knows?
The Bill is only part of the effort to bring into effect a number of salient IMO conventions. It enables enhanced co-operation to take effect within Europe to prevent accidental and routine pollution from shipping. It is noteworthy to say in parenthesis that contrary to public perception it is not shipping which is responsible for the greatest measure of pollution at sea. I believe in that respect that the correct calculations are of the order of 15 per cent. of the total amount of pollution, whereas it is land-based sources of marine pollution which constitute by far the greatest peril. It is appropriate of course that that issue should have been addressed at Rio. I am glad to say that the Advisory Committee on the Protection of the Sea has played a great part in seeking to produce ideas for introducing effective measures and then enforcement to deal with that particular and very complicated problem.
I notice in the briefing that was sent out by the Royal Society for the Protection of Birds and presumably not only to me, that it identified what might be, but what I do not believe is, a difference in approach between the

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Donaldson Report, with its essential emphasis of the prevention of pollution, and what they thought was the Government's emphasis on accident response—that is to say, clean up. I do not believe those things to be mutually exclusive. They are complementary and I am sure that the Minister would refute that that alleged distinction of approach exists at all.
I thought it right to refer to that not because I am critical of the RSPB. I am very grateful that it sent the briefing; and in the light of what I have said, I hope that it will not desist from doing so in future. But it is a distinction which it is unfair to draw. There must be an efficient response to accidental and even deliberate acts of pollution from ships. I know that only too well from bitter experience when holding office as shipping Minister some years ago. It is an issue which led directly to the establishment of what was then known as the marine contingencies unit.
But the RSPB is right, as ACOPS has been, in asserting that the priority has to be prevention. It is consistent with what is said in the Single European Act, in the fourth environmental action programme, in the European Year for the Environment and in the Government's own documentation about environmental policy that you must attack pollution at source and the sea can be no exception.
One cannot insulate the Bill from the entire context of the battle against unsafe practices at sea. Sub-standard ships, sub-standard crew and sub-standard operators constitute a standing menace to our coastline and those of many other countries and indeed—and quite as important—to the lives of too many seafarers, lives which are lost in great numbers each year.
Coming to the Bill and to some of the recommendations in the Donaldson Report which touch on the provisions, I should like to know whether the Government are in a position to spell out what they will be doing, pursuant to the provisions of the Bill, to claim a 200-mile exclusive economic zone so that they can take advantage of the provisions for the protection of that area in the United Nations Convention on the Law of the Sea. What is the Government's thinking about establishing compulsory routing measures for ships around the United Kingdom? Initiatives have to be undertaken, principally through the IMO; but, by being members of the European Union, we are able to exercise a little more clout and to introduce rather speedier action on the part of the IMO. In saying that, I am in no way criticising the IMO because it is bound by the will of its member states.
One of the important recommendations in the Donaldson Report related to research into shipping practice and data collection programmes which need support if appropriate actions are to be undertaken. I do not know whether the Minister is in a position to say anything about that; but it is highly relevant to many of the provisions of the Bill if the measures to be taken are to be actively and effectively implemented.
I noted that Article 8's important recommendations on the duties of the salvor and of the owner and master are dealt with in the Bill. But will those provisions wholly cover the situation of ensuring that shipowners
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will be under a duty to call for assistance—the same would apply to masters—without delay when the situation arises? I am not entirely sure that the provisions cover such situations in their entirety. I wonder whether the Minister or the noble and learned Lord can cast a little more light upon it.
In relation to salvage, it is very important that the coastguard should be given enhanced powers to initiate salvage measures if a serious risk is involved. The shipowner must be liable for the cost, providing that any such action is taken reasonably. It is idle to talk about enhanced powers in this connection unless the salvage industry in the United Kingdom is provided with adequate support to enable it to mount effective coverage, a point that was made in the noble and learned Lord's report.
In the wider context of the Bill, there is also the whole question of the training of ships' crews and marine surveyors. In my judgment, that is imperative if the United Kingdom is to make a full and substantial contribution to resolving the problems of deteriorating ship and crew standards. I hope therefore that the Government will give proper support to the institutions that are capable of rendering those important services.
The Bill has major implications for implementing the MARPOL convention. How do the Government see the value of the increased jurisdiction that the Bill provides and the improved European Union and wider international co-operation in helping to implement MARPOL? Do the Government agree or disagree with the Donaldson Report about the inadequacy of the United Kingdom's port reception facilities for the legal discharge of waste oil? I do not know whether the Minister can answer that question tonight. If he cannot, he will no doubt send me a reply in writing.
I should like to know, however, whether the Government agree with the concept of special areas which was promulgated in the report. Most of the dangers that arise from ships arise through the operations of flags of convenience with their permissive attitude towards international conventions. I know that the Government share those anxieties because they have been active in ensuring that there is enhanced port state control through the Paris Memorandum of Understanding. However, we need uniform control and monitoring throughout the European Union and in the countries that are signatories to that memorandum of understanding. I am by no means convinced that that happens at present. However, that is an important ingredient in everything that we are trying to do and which we shall partially have effected once the Bill becomes law.
In conclusion, we shall do all that we can to facilitate the progress of the Bill through the House. Once again, with the qualifications that I have uttered, I congratulate the noble and learned Lord on the steps that he has taken in seeking to pilot the Bill through this place. I am sure that he deserves not only our commendation, but our support for so doing.
8.36 p.m.
The Parliamentary Under-Secretary of State, Department of Transport (Lord Mackay of Ardbrecknish): My Lords, it is a pleasure to be able to agree with many of the remarks of the noble Lord, Lord Clinton-Davis, and, in particular, with his remarks at the beginning of his speech when he paid tribute to the noble and learned Lord, Lord Donaldson of Lymington, not only for introducing the Bill, but also for giving us the results of his inquiry into the whole question of shipping around our coast and the dangers from pollution arising out of the "Braer" incident on Shetland a year ago in January.
Perhaps I may advise those of your Lordships who have not yet read the report that it is a fairly weighty document and an extremely good read. The noble and learned Lord has covered all of the issues in a great deal of detail and laid out extremely clearly the various arguments on the issues that he addressed. We are extremely grateful to the noble and learned Lord and I am pleased to have this opportunity to pay tribute to him for his work. We did not have that opportunity when my right honourable friend the Secretary of State for Transport made a Statement on the report in the other place. Therefore, I am happy to join the noble Lord, Lord Clinton-Davis, and my noble friend Lord Byron in paying that tribute now to the noble and learned Lord.
I should like to add to the remarks of the noble and learned Lord my tribute to my honourable friend David Harris, who, because of the nature of his constituency in the south west of England, is pretty well surrounded by the sea and takes a great interest in matters relating to the sea, fishing and the ships which pass the coast of his constituency.
Merchant shipping is, by its very definition, an international industry. It has long been our belief that the rules governing shipping should be agreed and implemented internationally through the work of the International Maritime Organisation. We have always encouraged the development and implementation of IMO conventions which improve safety at sea and the marine environment. What is more, we have an excellent record of firm enforcement of such measures.
The noble Lord, Lord Clinton-Davis, rightly pointed out—I concur with him entirely on this—that any suggestion that looking at the pollution aspect means that we are oblivious to the safety aspect is totally false. The truth of the matter is that the sea is an extremely dangerous place and the idea that it could be made accident-free is false. It would be quite wrong of any government—no matter how careful they may be to make rules and regulations which try to make the sea as safe a place as possible—to ignore the necessary steps that are needed to deal with an accident should one happen.
The Bill will allow the UK to implement two new IMO conventions and two protocols amending existing conventions. The IMO instruments to which the noble and learned Lord has referred should soon have sufficient signatories to enter into force internationally. The Bill therefore provides an opportunity for the UK to play a key role in triggering those important measures.
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The House may wish to know the mechanism for entry into force of the instruments. The 1992 protocols will enter into force one year after the date on which a total of 10 states, representing both leading carriers and importers of oil, have agreed to be bound by the protocols. No state has yet formally agreed to be bound by the protocols; but measures in the Bill would enable the UK, like others, to have legislation in place to allow such a commitment to be made in the coming months.
There are at present 14 contracting states to the Oil Pollution Preparedness, Response and Co-operation Convention. The next state to agree to be bound by the convention will trigger its entry into force 12 months later. It would be, I am sure your Lordships will agree, agreeable if the UK could be the first contracting party to the 1992 protocols and also the state which triggers the entry into force of the Oil Pollution Preparedness, Response and Co-operation Convention.
Entry into force of the Salvage Convention also requires 15 contracting states. There are currently nine. Several other states have, or will soon have, the necessary legislation in place. There is widespread support for the measures contained in the Bill within the maritime community and, in particular, in the London insurance market. Commercial interests were party to the negotiation of the international agreements which the Bill will implement. They agree that the protection of the marine environment must be enhanced,, and that polluters should be liable for any additional costs that arise.
The Bill has no new public spending implications. It places no significant new requirements on the Department of Transport or any other public body. It will allow the department's Marine Pollution Control Unit to act more effectively, secure in the knowledge that the cost of its operations will—in the majority of cases—be met by the polluter. My department is working within the IMO to see that the "polluter pays" principle is extended to all forms of marine pollution.
In my opinion, the most important measure in the Bill is the power to implement the International Convention on Salvage. As my noble friend Lord Byron said, private salvors must be encouraged to maintain salvage capacity. They will do so only if they are assured of a fair rate of return for their work. The traditional "no cure, no pay" system no longer provides such an assurance in all circumstances. When ships arc. carrying petroleum products, or other dangerous or polluting substances, the costs of intervention are very high but the value of the property recovered may be comparatively low. The new Salvage Convention guarantees salvors just recompense for their efforts in those circumstances and implementation will encourage the continued existence of a private salvage industry which is able to intervene to protect shipping and the marine environment.
My noble friend Lord Byron raised the subject of the powers of the master of a vessel. The convention also gives the master of a vessel the authority to conclude salvage contracts on behalf of the owners of the ship and its cargo. The noble Lord, Lord Clinton-Davis, asked a similar question. This is crucially important, since in the

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past serious pollution has been caused while authority to conclude salvage contracts was sought, and such delays have even resulted, tragically, in loss of life.
We have clarified the position with regard to coastguards intervening if they think that it is necessary and taking steps to summon assistance when they feel that the captain of a ship is rather slow in doing so.
A number of questions were put to me, but some of the questions that the noble Lord, Lord Clinton-Davis, asked arise from the report, to which we are considering our response. He asked about the 200-mile EEZ. In accordance with the Paris declaration of North Sea states, our prevention of oil pollution regulations will be extended to cover discharge by all ships out to the 200-mile limit around the UK. On the subject of port facilities for waste to which the noble and learned Lord, Lord Donaldson, rightly drew our attention in his report, we are concerned about the position that he highlighted which contradicts some previous evidence that we received. I have asked the Marine Safety Agency to investigate as a matter of urgency what is the situation at the ports around our shores.
On the question of routeing, which formed an important part of the report, we are working on those matters largely with our European Union partners, because, due to our position, a great deal of the shipping does not call at our ports and many of the waters around the UK are shared with adjacent countries, such as the Channel with France and so forth. We believe that that is a matter which we have to look at with our European friends.
My noble friend Lord Byron asked about salvage claims and the position of the life salvor. We shall probably go into that matter in a little more detail in Committee, and I shall examine what he said, but the 1989 Salvage Convention was intended to codify the law of salvage. My understanding is that we cannot derogate from that convention.
It is a long-established rule of the sea that it is a seafarer's duty to save persons in danger and that no remuneration is due from the persons saved. The Salvage Convention restates that rule. This is a tradition of the sea which the Government and the UK and international maritime communities strongly endorse. It has however also long been the practice for life salvors to share in salvage rewards paid to salvors of property. The convention preserves that practice. The Bill also preserves a back-stop provision currently contained in a section of the Merchant Shipping Act 1894 which has to be repealed to avoid inconsistencies with the Salvage Convention. The provision gives the Secretary of State the power to make awards to life salvors who have not been able to receive a reasonable reward in any other manner, although the Secretary of State exercises that power only in rare and very exceptional circumstances. The most recent instances of such payments were in 1939 and 1951 and were for very modest sums. Nevertheless the status quo has been retained at the request of the shipping industry.
The substantive provisions of the 1992 protocols mirror exactly those of protocols adopted in 1984. Entry into force of the 1984 protocols was dependent on the
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expected participation of the United States of America. Although not party to the original regime, the US signed the 1984 protocols and legislation was even prepared to implement the protocols. However, in the wake of the "Exxon Valdez" disaster in Alaska, the US Congress decided instead to adopt unilaterally the 1990 Oil Pollution Act. To ensure that the 1992 protocols will come into effect, the entry-into-force provisions have been made less onerous. Contributions to the international oil pollution compensation fund from any one state after entry into force of the 1992 protocols are also temporarily limited to 27.5 per cent. of the total in order to ensure Japan's acceptance (Japan is the largest contributor to the fund).
It will be necessary, as the noble and learned Lord said, to amend the Bill slightly in Committee. Those amendments will improve the drafting of the Bill either to ensure that its provisions have the intended effect or to remedy oversights. The most significant of those amendments relate to the implementation of the Salvage Convention. I support the amendment that the noble and learned Lord has proposed to subject to parliamentary scrutiny subordinate legislation to implement revision of the Salvage Convention. Amendments will also be tabled in relation to what is termed in the Convention "maritime cultural property"; that is, property of prehistoric, archaeological or historical interest situated on the sea-bed. These are technical amendments intended purely to maintain the status quo.
Like all noble Lords who have spoken, I welcome this Bill.
Lord Clinton-Davis: My Lords, I am grateful to the Minister for giving way. He has responded very well to many of the points that were raised. However, the one point that he studiously avoided was the criticism that I made at the beginning of my speech. Will the Minister give an undertaking that, at the very least, he and his colleagues at the Department of Transport will use their best endeavours to ensure that government Bills are introduced by the Government in government time, and notably when this House is not particularly taxed, which is normally at the beginning or even the middle of a Session?
Lord Mackay of Ardbrecknish: My Lords, the noble Lord, Lord Clinton-Davis, invites me to go a good deal wider than my brief at the Department of Transport. I am sure that the people responsible for such matters will note what he says.
I urge the House to support the Bill, which will help to secure cleaner seas in the UK and thereby encourage other member states of IMO to follow suit. We have much to thank the noble and learned Lord, Lord Donaldson, for. Tonight we are thanking him for bringing the Bill forward and in the wider scene we are thanking him for his inquiry. I commend the noble and learned Lord's Bill to the House.
8.51 p.m.
Lord Donaldson of Lymington: My Lords, in view of the hour, perhaps I may reply briefly. I appreciate the kind words that have been said about my report. In that context, it is right that I should say that it was the work

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of a team. I had two assessors and a remarkably effective Civil Service team was seconded to help us. The report reflects a great deal of help received from industry and from the Government. But tonight we are here to talk about the Bill and not about my report.
Perhaps I may again express my great appreciation for the support that the Bill has received from all noble Lords who have spoken. The noble Lord, Lord Byron, laments the wording of paragraph 6 of Schedule 2, which would abolish the jurisdiction in respect of claims in the nature of salvage. I make no secret of the fact that I share his regret. It is quite clear that we cannot possibly derogate from the Salvage Convention and would not wish to do so. But paragraph 6 is jurisdictional; it neither adds to nor subtracts from the Salvage Convention or anything else.
Today I looked at the Supreme Court Bill, in particular the part which deals with the jurisdiction of the Admiralty Court. It is interesting that it always adds to the jurisdiction and never subtracts from it. One paragraph expressly re-enacts all the previous jurisdictions of the Admiralty Court. Furthermore, the phrase "in the nature of is not limited to salvage; it becomes a repetitive refrain. It relates also to towage and to pilotage and I believe that it would be a great mistake for the Bill to go through in a form which consigned the words "in the nature of salvage" to the dustbin. But as the noble Lord, Lord Clinton-Davis, detected with such perspicacity, I am only the surrogate parent of the Bill. It: will be necessary for me to consult the natural parent, the biological parent, the godfather—whatever the expression should be. I shall undertake the necessary consultation; indeed, I have an appointment at 10.30 tomorrow morning to begin on just that process. I commend the Bill to the House.
On Question, Bill read a second time and committed to a Committee of the Whole House.

Local Government Etc. (Scotland) Bill
Brought from the Commons; read a first time, and to be printed.
Viscount Goschen: My Lords, I beg to move that the House do now adjourn during pleasure until five past nine.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.55 to 9.5 p.m.]

Criminal Justice and Public Order Bill
House again in Committee.
Clause 63 [Offence of aggravated trespass]:
Baroness Mallalieu Baroness Mallalieu moved Amendment No. 73:
Page 47, line 31, leave out ("activity") and insert ("sport").
The noble Baroness said: In moving Amendment No. 73, I shall speak also to Amendments Nos. 77, 78 and 79 which are consequential.
The amendments all relate to the provisions of Clause 63 which creates an offence of aggravated trespass when
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a trespasser on land does anything with the intention of intimidating people engaged in a lawful activity on that land or indeed of obstructing or disrupting that activity.
As I understand it, the provision is designed to deal with increasing violence in the countryside, a matter which causes great anxiety to many of us on all sides of the Committee. That violence has arisen not just on the hunting field but also in connection with shooting, fishing and racing.
The anxiety of those of us on this side of the Committee is that a provision which was introduced to deal with violence in those areas may well, because of the way in which the clause is drafted, catch people, for example, who are protesting about road schemes, tree felling or other matters of that kind. These amendments merely confine the clause so that it deals with sports and in particular the sports which have suffered from the attention of those who attempt to disrupt them. Amendment No. 79 defines the sports in relation to which the provision would apply as:
"any activities traditionally carried out in the open air and in the countryside, and shall include hunting, shooting and fishing"
That would of course cover racing too.
We are concerned that, by its wording, what was intended as a provision to deal with violence in a particular area may well be used and extended to cover quite separate forms of protest which, as far as I am aware, the Government had not intended to cover. When the noble Earl replies, I hope that he will agree that the clause be confined to those areas with which it was designed to deal. I beg to move.
Lord Beaumont of Whitley: The first two or three clauses in Part V of the Bill target specifically the activities carried out by people protesting peacefully. A new offence of aggravated trespass will outlaw many forms of peaceful protest and peaceful gatherings will be illegal as trespassory assemblies—Clauses 65 and 66.
Clauses 63 to 66 are drafted so broadly that they could be used against anybody holding a peaceful protest on private land. As a result, ordinary people exercising their legitimate and historic right to peaceful protest may now be taken into police custody under arrest and will have to appear before the courts. There is no right written into the constitution, because we do not have a constitution, to peaceful protest but it has always been assumed that in a democratic country we can tolerate those who voice opposition in a non-violent way against activities about which they feel strongly. Peaceful protest is often one of the only ways in which the minority can voice their objections to the activities of the majority, or the weak can protest against the powerful. Many British people believe that peaceful protest which is open and public is a traditional and a legitimate right. It is often vaunted as an example of why this country has no need for a constitution.
The United Kingdom is a party to the European Convention on Human Rights. Article 11 of the European Convention provides for everyone to have the right to freedom of peaceful assembly and to freedom of association with others. The article states that any restrictions placed on that freedom should be only those necessary for the prevention of disorder or crime, in the

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interests of national security or public safety, for the protection of health or morals or for the protection of the rights and freedoms of others. Article 10 provides for freedom of expression. It includes a right to freedom to hold opinions and impart information and ideas without interference by public authority regardless of frontiers. There are many who believe that the clauses as drafted are likely to breach Articles 10 and 11.
We have been told—the noble Baroness who has just spoken has also mentioned this—that the clauses were drafted in response to concern by landowners about the activities of certain animal welfare and anti-bloodsports groups aimed at disrupting hunting and shooting, and as a result of government concerns about motorway protesters. There is as at present nothing in the clauses specifically to demonstrate this intent. The clauses will outlaw non-violent protests which would previously have been dealt with through the civil court. The civil court has traditionally been the place where breaches of individual proprietary rights have been dealt with by way of injunction and damages for trespass and nuisance.
The purpose of the criminal law is to penalise those whose anti-social behaviour is such that society needs to be protected from them. The criminal law usually penalises those whose acts specifically cause harm as opposed to nuisance. But there is nothing in these clauses which reflects the degree of harm against which the public are to be protected. These clauses will label those involved in peaceful protest as anti-society and give them a criminal record for activities such as protesting against hospital or school closures, against road schemes or shortages or in favour of nursery schools.
Let us take the instance of Friends of the Earth or Greenpeace. Those are two bodies on which Members of the Committee will hold different opinions, but on the whole the general feeling is that, while their activities may not always be such as to be commended, nevertheless they are on the side of the angels and the things that they fight for are worth fighting for. Their members are ordinary citizens; they are all volunteers and representative of all groups within society. It is those people who are in danger of being caught by these clauses if they are not amended in the way the noble Baroness outlined.
It is possible, and many people believe, that the Government have purposely drafted the clauses widely and intend to close the avenue of peaceful protest. It is up to the Government to deny that, as I hope they will want to, and to show their true purpose. If it is their true purpose to restrict the activities of anti-blood sport groups and motorway protesters then we cannot see that they would object to amendments whose purpose is to tighten up the language to reflect that. If they do object they ought to make a statement as to the true purpose of the clauses.
Clause 63 is too broad and has the potential to outlaw previously legitimate forms of peaceful protest. It does not include any safeguards against arbitrary arrest. The clause will allow a person to be arrested who is a mere trespasser upon proof of an attempt to disrupt, obstruct
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or intimidate—terms which can be very widely defined. It is likely to damage relations between the police and the community. It deals mainly with victimless crimes. The clause does not require any person to have been disrupted, obstructed or intimidated.
Current public order legislation and civil injunctions are more than adequate to deal with situations of public disorder where the public are likely to suffer some genuine harm. The Public Order Act 1986 was the result of seven years' consideration of public order law, commencing with a Green Paper in 1980 and a White Paper published in May 1985. It introduced five new offences: riot, violent disorder, affray, threatening behaviour and disorderly conduct. The latter offence penalises threatening, abusive or insulting words or behaviour or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress. It embraces behaviour which falls short of violence or the threat or fear of violence. That section extended the then existing law into areas of annoyance, inconvenience, disturbance or disruption.
Apart from criminalising the act of trespass, which is in itself deplorable, it is difficult to appreciate how these new clauses add to the existing public order legislation to their benefit.
9.15 p.m.
Lord Mancroft: I have some sympathy with the amendments as framed on the Marshalled List. Perhaps the definition may be improved by the use of the word "sport" and sporting connotations and limiting the offence to such activities.
When I first read the amendments I thought that there was no doubt that the noble Lord, Lord McIntosh, and the noble Baroness were seeking through the amendments to make the offences in this part of the Bill more workable and practicable. On that basis I was inclined to support them, and in principle am possibly still inclined to do so.
However, my worries about the amendment relate to the concerns of those in farming who consider that certain of the offences which are dealt with in this part of the Bill encompass some of their activities. That applies particularly to pig farming and chicken rearing, because the same people who commit offences in connection with country sports sometimes attempt to and occasionally commit the same offences in regard to such farming activities. That was not something of which I was aware before this issue arose, but it was raised when I took advice and discussed the matter before this evening's discussions.
I do not have a firm view on the subject, but it is worth drawing to the attention of the Committee the possibility that in limiting the offence to sporting activities, which would appear to be sensible or reasonable, we may be limiting it too much. That is undoubtedly a matter of concern.
Turning to the remarks of the noble Lord, Lord Beaumont, while listening to him carefully it appeared to me that we were living on a different planet. His description of the possible offences and the activities which had taken place as a precursor to the introduction to these offences in my view bore no resemblance to the

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offences at which the clauses are aimed. Towards the end of his remarks, the noble Lord commented that we were dealing with what he called victimless crimes. They are not victimless crimes. Over the past years many people who have been abused, intimidated or violently attacked and have ended up in hospital would not regard those crimes as victimless.
The problem to which this part of the Bill relates is much greater than the problem to which the noble Lord refers. He stated that the criminal law penalises anti-social behaviour. Such crimes involve very anti-social behaviour.
The noble Lord referred, too, to the dangers of catching those involved in non-violent protests. In order to be charged and found guilty under the provision in the Bill one has to do something which has the effect,
"of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity, of obstructing that activity, or of disrupting that activity".
That is not peaceful protest. We are not discussing peaceful protests. I accept that there is concern from all sides of the Committee that we should ensure that the two clauses deal only, as is their aim, with those who engage in violent, disruptive or intimidating behaviour. As framed at present, I cannot envisage how the provisions would encompass those engaged in peaceful protests. That is a right which the Committee should attempt to defend.
I do not believe that the noble Lord, Lord Beaumont of Whitley, is right. The way in which the provision is framed is suitable. The measure takes account of the anxiety expressed. I do not believe that the amendments are appropriate at this stage of the Bill.
Lord Burton: Is it peaceful protest when someone throws stones into a pool which is being fished by some innocent fisherman? Is it peaceful protest when someone who walks past a notice board pointing out that deer are being culled disrupts the day's work of two or three people going about their legitimate duties? Is that carrying out a peaceful protest?
I believe that the amendments originated in Scotland. Consequently, perhaps I may point out some of the comments by the Scottish Landowners' Federation convenor at the federation's annual conference on 8th March. He stated:
"We have examined the Criminal Justice and Public Order Bill very carefully and are quite confident that people enjoying the countryside in a reasonable way such as walkers and campers could not possibly be convicted of aggravated trespass.
We do need this legislation. If Scotland is excluded we shall certainly see mass trespass. This has started already".
He referred to the effects on the Scottish economy and the jobs in remote places that will go. He then stated:
"Reasonable people are not going to be affected".
The Scottish Landowners' Federation legal adviser wrote to the Law Society of Scotland stating:
"We do not think that walkers, climbers and others enjoying the countryside in a reasonable way could be convicted of aggravated trespass".
If that is the case, I cannot understand why the amendments have been introduced.
Lord Macaulay of Bragar: Before the noble Lord sits down, will he agree that whether a person is transgressing this piece of legislation depends entirely
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on the view of the landowner and not of the alleged trespasser? How will the situation be resolved in reality in the middle of a field?
Lord Burton: I do not follow the noble Lord. It is not a question of whether it is the view of the landowner or anyone else. The debate relates to the provisions in the Bill. That seems perfectly straightforward. The. legal advisers in Scotland have confirmed that.
Lord Macaulay of Bragar: With respect, I am not interested in the opinion of legal advisers. The Bill is concerned with the practicality of access to land where people are doing no harm. The judgment as to whether a person is doing harm will be entirely in the hands of the landowner who considers that his rights have been transgressed.
Lord Burton: That is quite possibly true because many people come to the countryside, whether or not they wilfully create a disturbance or cause trouble or anything else. As landowners, we know we experience considerable trouble from people who know nothing about the countryside. They let their dogs chase animals all over the place and we have all kinds of problems; they light fires and leave litter behind. That does not come into the Bill but it is clear that this legislation is perfectly reasonable and covers any problem which may arise.
Lord McIntosh of Haringey: The noble Lord, Lord Burton, is confident, but I have to tell the Committee that he did not complete his reading from the evidence of the Scottish Landowners' Federation. It is necessary to complete that evidence, and the federation starts by saying:
"The Scottish Landowners Federation, which represents; the owners of most rural land in Scotland, has supported the application to Scotland of suitably targeted UK legislation to deal with the problem of deliberate disruption of field sports".
So far, we are in agreement.
"The view of the Federation is that innocent walkers, climbers and others enjoying the countryside in a reasonable way would not be affected by the new legislation as such people do not have the intention to intimidate, disrupt or obstruct the lawful activity of others".
So far, I think that the noble Lord, Lord Burton, and I are in accord. The federation continues:
"However, the [Scottish Landowners Federation] is conscious of the concerns which have been expressed about the scope of this clause. In particular, any suggestion that the legislation might restrict normal public access to the countryside might prejudice the spirit of understanding and tolerance which are so important on the issue of access to the countryside.
"For this reason, and in particular to improve harmony in the Highlands without in any way detracting from the proper scope of the clause, the Scottish Landowners Federation encourages their Lordships to support the [following] amendments: 73, 77, 78 and 79".
Those are the amendments moved by my noble friend Lady Mallalieu.
Viscount Mountgarret: Does the noble Lord agree that Scotland is slightly different from England? Nonetheless, it is possible that in Scotland they too might be somewhat misguided. Noble Lords may laugh but it is true that bodies can be misguided as well as being anxious. As my noble friend Lord Mancroft said, it is clearly laid down in the Bill that anyone

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intimidating, obstructing or disrupting perfectly legal and fair activities going on in the open air are committing an offence. That must be plain for all to see and I am astonished that the Scottish Landowners' Federation does not appear to understand that.
Lord Burton: Perhaps I may rise again at this juncture. I quoted the comments of the chairman of the Scottish Landowners' Federation in March. Since then, with remarkably little consultation with any of the other members of the federation, some influence appears to have been brought—and we have suspicions as to where it has come from—to try to put the extra bit in. That has been done through a small number of members and it has affected members who are seriously considering not renewing their subscription to the federation.
Lord McIntosh of Haringey: The problems within the Scottish Landowners' Federation are the least of my concerns.
Earl Peel: Perhaps I may take up the point made by the noble Lord, Lord McIntosh, about the decision being that of the landlord. As I understand it, that is simply not the case. The landlord is quite within his rights to draw to the attention of the police the problems that are occurring, but it is up to the police, the senior police officer on the scene, to decide—it is a discretionary power—whether he wishes to take action. I believe that that is a fundamental part of both Clauses 63 and 64.
Lord Beaumont of Whitley: The debate so far demonstrates the need for some kind of limiting amendments such as those that have been moved. Everyone has spoken of the skyline, hunting, fishing and throwing stones into ponds. These clauses as drafted will catch the peaceful demonstrator demonstrating outside Sainsbury's on a market day to try to stop Sainsbury's selling ozone depleting gases. That has happened and, thanks to Sainsbury's good sense—
9.30 p.m.
Lord Mancroft: Will the noble Lord be kind enough to give way? Is he really trying to tell the Committee that peaceful protesters outside Sainsbury's will intimidate, obstruct and disrupt? It is quite clear that they will not do that; and, if they do not do that, they will not be targeted by this Bill.
Lord Beaumont of Whitley: What I am saying is that innocent protesters outside Sainsbury's will be accused of obstructing and intimidating. That is what the managers of the stores will say. That is what they will tell the police and that will be taken to be the case from then on. Perfectly decent citizens who are protesting against something that they really believe is wrong will have a criminal record.
Lord Stanley of Alderley: I am amazed that the noble Lord, Lord Beaumont, should have such a low opinion of the police. The police will read the Bill just as the noble Lord and I can read it on the matter of intimidation.
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Perhaps I may put just one point to the Committee that concerns me. (It is not so much on the sporting side.) Members of the Committee must have seen and heard of the number of demonstrations by animal liberationists against farmers carrying out certain practices in respect of pigs and chickens which perhaps you or I do not like terribly but which are within the law. But, more important than that—and I cannot believe that there is a single Member of the Committee who has not suffered from some form of disease in his or her family —they demonstrate against the medical profession. This clause would help prevent those demonstrations. I cannot believe that any Member of the Committee would not wish to see animals used, very carefully, in vivisection to help the human race.
Lord McIntosh of Haringey: The noble Lord, Lord Stanley, as so often, puts his finger on the crux of what we are talking about. Of course some of us agree and some disagree with the particular objectives of protest. I personally am very strongly opposed to the Animal Liberation Front and those who would oppose experiments on animals for human benefit. I personally have no particular sympathy with hunt saboteurs—none at all. I have a lot of sympathy with those who protest on environmental grounds against government schemes which would involve, for example, cutting through sites of special scientific interest or areas of natural beauty for the benefit of road schemes. We all have our different views. We are entitled to those views, and we should continue to express them and to disagree with each other about them.
What we cannot do is use a measure which is apparently designed to protect society against a particular group of people—hunt saboteurs—in order to inhibit the ability of ordinary people to protest peacefully against lawful activities to which they are opposed.
The noble Lord, Lord Stanley, referred specifically to "intimidating". What the noble Lord did not say was that the clause goes on to say,
"obstructing that activity … or … disrupting that activity".
It is right that, on occasion, even if we disagree with them, people should have the ability to protest, obstructing or disrupting even the lawful activities of authorities in this country. That principle goes back hundreds of years in our society. If we abandon it and make it a criminal offence to begin to do that, we are losing something that is very profound in the civil liberties of this country.
Lord Stanley of Alderley: I am sorry to come back to the noble Lord. I agree with a lot of what he says. As my noble friends on the Front Bench know better than anybody, I am the biggest protester that we should have that right. But we should have it within the law. This proposal says that it must be within the law; it must be done civilly. I shall not go on because the noble Lord will finally defeat me. He is a politician and I am a farmer. But that is what I feel and I feel it very strongly.
Lord McIntosh of Haringey: I cannot have that. The noble Lord, Lord Stanley, and I are both amateurs in politics. He is a farmer and I am a market researcher.

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Neither of us earns our living in politics. The fundamental point behind the amendment is that we can all disagree with authority and we have a right to protest against authority on certain occasions. In practice, if the noble Lord and I found ourselves on the barricades we would be on the same side. I do not believe that he is in favour of an authoritarian society. Unless there are amendments, this clause will bring in an authoritarian society.
Earl Peel: I should like to return specifically to the amendment. As I understand it, the noble Lord, Lord McIntosh, is attempting to restrict these activities to sporting activities. But what happens in the case to which my noble friend Lord Stanley made reference? Say that animal liberationists went on to a farm in order to try to disrupt a perfectly legitimate and legal farming activity. Farming is not a sport. If it were, I suspect that the Inland Revenue would have quite a lot of fun over it. Presumably that would be caught by the noble Lord's amendment, although I do not think that such is his intention.
Perhaps I may give one other example. It may be fairly remote but I feel it is relevant. The noble Lord has used the words:
"shall include any activities traditionally carried out in the open air and the countryside".
What about whippet racing? It may sound fairly obscure but I understand that there has been at least one case in which a demonstration has taken place against whippet racing. That would be covered by the noble Lord's amendment in a way which I feel sure he does not intend. I too have a degree of sympathy for what he intends but I think the amendment is too narrow and for that reason will probably not be acceptable.
Lord McIntosh of Haringey: Let us search for a way to put it right, shall we? Nobody is defending violence. Let us be clear about that. If there is violence, whether in opposition to a sport or any other lawful activity, none of us will defend it. We oppose the creation of a new criminal offence of aggravated trespass which applies not only to sport but to lawful activities. That is our difficulty with the clause as drafted. That is why, even at the expense of hunt saboteurs (and other people with whom some of us—not my noble friend Lady Mallalieu—may have some sympathy), we want to restrict the new offence of aggravated trespass as much as we can. If there is violence, let us deal with it by the existing legislation.
The noble Earl need have no fear that there is any limitation on the ability of the police or the courts to deal with violence. That has always been so, whether it concerns the Animal Liberation Front or anybody else. A quite different sanction is proposed in this clause— the sanction of aggravated trespass. That is what we want to limit.
Earl Peel: Let me reply by saying that the noble Lord opposite should have no fear. The people who carry out peaceful demonstrations and do not disrupt these activities will not be caught by this legislation.
Lord McIntosh of Haringey: That is not what the Bill says.
Lord Avebury: The point is that an area of conduct which is treated as criminal is being extended by these provisions. Actions which are lawful at the moment will be made imprisonable. We shall come on to that point in a few minutes. Surely the noble Lord must see that it is legitimate for people to express anxieties when conduct that is perfectly peaceful—that is to say, non-violent—and has never before been touched by the law is suddenly to be brought within the ambit of the criminal law. Plenty of examples of that have been given.
Whether or not my noble friend is correct in saying that demonstrators outside Sainsbury's who obstruct the entrance to the store and thereby prevent shoppers having the same ease of access to the doors of the premises as they would otherwise enjoy in the absence of the demonstrators, will not be caught by the Bill is a matter for the courts to determine. We cannot say how a court will act if such a case is brought to its attention.
A group of demonstrators standing in front of the entrance to Sainsbury's holding placards and chanting slogans may be deemed to be intimidating to shoppers who would otherwise go into the store to do their shopping but who turn away and shop at Safeway's instead. The manager of Sainsbury's would be perfectly entitled, under the Bill, to call a policeman and say, "Here is the evidence. This lady normally comes here every week to buy groceries. She watched the demonstration, turned away and went into another shop. By definition, therefore, she was obstructed or intimidated from shopping at Sainsbury's"; and the Bill must then bite.
Many similar cases can be envisaged. I know that I sometimes upset the Minister when I use my imagination in these cases. But what about the person who lies down in front of a bulldozer on a contractor's site where a motorway is being constructed? At the moment he can do that and all the police can do—they have done so on many occasions—is remove the person by picking him up, placing him in a transit van and driving him off the site. After the Bill is enacted, if anyone goes to places of special scientific interest or outstanding natural beauty, for instance, where the Government propose to drive through a six-lane highway —such as Oxleas Wood—those persons lying down in front of the bulldozer will be committing an offence under this section because they will be obstructing the contractors in the lawful exercise of their duty to construct that road. I cannot see any way in which the police could avoid taking action if that matter was drawn to their attention.
I want to give one more example which came into my head when I saw the picket line of the BBC standing on the road between here and Lambeth Bridge. If peaceful pickets were standing on land which belonged to a building rather than the highway, they would be committing an offence. They would be setting our. to prevent fellow workers from entering the premises. The people on strike at the BBC intend to prevent their colleagues entering the building and assisting the BBC to put out its programmes. As I read the clause, as long as they are doing that on the footpath or the public highway, they are not committing an offence. But if they

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were on the forecourt and the forecourt belonged to the BBC, they would be committing an offence; they would be setting out to intimidate or obstruct colleagues from entering and performing their normal duties in pursuance of the picket that they were conducting.
Therefore, what is at present lawful trade union activity and with which no one suggests we should interfere—it is a longstanding right of trade unionists to picket buildings or premises which belong to employers with whom they are in dispute—will need to be carried out on a public highway or on a footpath rather than on land belonging to the employer, otherwise the participants immediately become liable to conviction of a criminal offence. Is that what we are after? I agree with Members of the Committee who say that the clause must be restricted as much as possible. I would prefer to see the criminalisation of these activities removed altogether. But in the absence of any indication that the Government are prepared to remove the penalty of imprisonment from the clause—of which they have so far shown no sign—I shall be prepared to support the noble Lord, Lord McIntosh.
Viscount Mountgarret: Before the noble Lord sits down perhaps he will clarify one point for me. Is he saying that those who wish to object to the possible destruction of an area of outstanding beauty—he mentioned Oxleas Wood—are acting lawfully? Is he saying that it would be unfair to stop them obstructing the activity of building the road in question? Surely there are other ways to make one's feelings known in a proper and civilised fashion. We have seen too much of this petty and ridiculous obstruction, which the Government wish to cease.
9.45 p.m.
Lord Avebury: The noble Viscount is a lawyer so he can tell me, if he likes, whether people who go onto a contractor's land and lie down in front of the bulldozers, as I am suggesting they have done, have been committing a criminal offence in the past. I am not conscious of seeing the prosecution of demonstrators who obstruct contractors in that way on their own premises. I do not believe that it would be a criminal offence at the moment. The police may come along and remove them from the site, but I do not think that any prosecution would result from their activities.
Earl Ferrers: We have had a delightfully circuitous debate. The amendments seek to restrict the application of aggravated trespass to sporting events. The noble Baroness very fairly said that she was concerned about road traffic matters and tree felling and she argued that there ought to be a right of protest on such things. The noble Lord, Lord McIntosh of Haringey, said that there ought to be a right to protest against authority. After hearing the noble Lord, Lord Beaumont of Whitley, I agreed with my noble friend Lord Mancroft in that I thought that the noble Lord was living on another planet. He said that there must be a right to protest and that people who protested were not being anti-society. He said that these were non-violent activities, that it was a traditional and legitimate right of people and that that
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was why we have no need of a written constitution. He talked of the freedom of expression and said that the Government were trying to close the avenue of peaceful protest. With the greatest respect to the noble Lord, I wondered what on earth he was talking about. What we are talking about has nothing to do with protest; it is trespass and the law of trespass. The noble Lord said that the Public Order Act 1986 is adequate to deal with all cases. It manifestly is not. That is the reason why we have made the alterations in the Bill. The Public Order Act 1986 has not been adequate.
Perhaps I may readdress the mind of the noble Lord, Lord Beaumont of Whitley, to what we are talking about. When the noble Lord started talking about picketing outside Sainsbury's I thought that had absolutely nothing to do with aggravated trespass—
Noble Lords: Why?
Earl Ferrers: If you picket outside Sainsbury's you are usually picketing on the highway and on the pavement. That has nothing to do with aggravated trespass.
Lord Beaumont of Whitley:If you are on Sainsbury's forecourt and if you are going to protest outside the supermarkets these days, as often as not you are on an enormous area which belongs to the shop itself. It is exactly that which is being caught by the Bill as drafted.
Earl Ferrers: If that is the case it seems to be fundamentally a very good reason why the clause is in the Bill. Is the noble Lord saying that here is a patch of ground owned by Sainsbury's upon which it has built its supermarket and that everyone else can come along, clobber up the land and fill it up by protests and that the owner is not liable to say, "This is not right. This is unfair"? I think that the noble Lord has made the case for the clause.
Perhaps I may redirect his mind again. A person commits the offence of aggravated trespass if he trespasses on land in the open air and does anything which is intended to have the effect of intimidating those persons, or any of them, so as to deter them from engaging in that activity, or which is intended to obstruct that activity, or to disrupt that activity. That is what we are talking about.
It is perfectly true that country sports are affected. The disorder of field sports events is only one of the primary factors behind the Government promoting this legislation. But we do not believe that it would be right to restrict the provisions solely to that sphere. There is no good reason why other lawful activities should not be protected from obstruction or disruption. There is no good reason why their participants should not be protected from intimidation. Those who take part in garden parties, building a motorway or running Sainsbury's, if the noble Lord, Lord Beaumont, wishes to take that view, have just as much right to pursue their lawful activities without hindrance and trespass as do those who are playing croquet or cricket.
If there is to be a law of aggravated trespass—which is what is proposed—then it should apply equally across

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the board and not just to one set of people, such as those engaging in sport, and not apply to others. That makes no sense and it is not in any way fair.
Baroness Mallalieu: I am grateful to the noble Earl for indicating that it is the intention of the Government to extend the application of this clause beyond the field which I believe most of us thought that it had been introduced to deal with. I shall try to straddle the two strands of the argument and hope not to fall between the two horses that I am trying to ride this evening. Having seen at first hand, as I know a number of other Members of the Committee have, what has passed as peaceful protest but which has involved bullying, violence and intimidation, and speaking purely on a personal basis, I am in no doubt that additional legislation is needed. The noble Earl has been good enough to hear me on occasions outside this Chamber when I have spoken to him about my fears that people would be seriously injured or killed if legislation were not brought in to deal with what has been happening and what I have unhappily seen occur at far too close quarters.
But I, and others on all sides of the Committee, are concerned that in the legislation which the Government now seek to introduce people should not be caught who do not fall into the category of those who are not just protesting or putting their views, but who are actually trying to bully and intimidate others. There is a real anxiety that if this clause remains without any restriction it may catch some whom I believe that even the noble Earl would accept were not in the Government's contemplation and may restrict the freedom of some people who, as they feel, demonstrate and express their views.
I am anxious that there are Members of the Committee opposite who feel that this provision should remain wider than the proposed amendments would allow in order to deal, for example, with disruption to certain farming activities. I see that there are other amendments which this House will consider later which would appear to meet those matters. I am anxious that restrictions which are proposed should be confined to the purpose for which they are designed. If there are other areas of disruption in which there is a need to restrict protest, then they should be contained in separate clauses. I am anxious at the suggestion of the noble Lord, Lord Beaumont, that this clause as it stands will affect those who do no more than peacefully protest. I cannot agree with him because I believe that it is designed in such a way as to deal with those whose activities go far beyond what he would consider to be legitimate if he were to face them himself.
For that reason I feel that this legislation is necessary; but in the amended form of the proposal of the noble Lord, Lord McIntosh. Having heard anxieties expressed from different parts of the Committee, I hope that the Government will not dismiss them because they are real. If this provision can be restricted so that it applies in this instance specifically to sports, and if there are other areas which are causing anxiety and real concern to the police at the present time where the veneer of peaceful protest is being used as an excuse for bullying, intimidation and violence, then there should be clauses
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to deal with them and the House should have an opportunity of looking at those situations and deciding whether legislation is needed. All that should not be lumped together in one clause in this way. It is for that reason that my noble friends and I—and noble Lords of other parties—have expressed those reservations.
I shall no doubt take a view on later clauses which the noble Earl would not wish to hear, but, so far as concerns this series of amendments, I should point out that they are very restricted. All that they do is to ensure that the provisions of this clause are restricted to the purpose for which, as I understand it, they were designed. I appreciate that at this stage the noble Earl makes no concessions; but I hope that when he has time to reflect and to consider people's real anxieties about many aspects of this matter, he will feel that some restriction along these lines is necessary.
The Earl of Haddington: Perhaps I may add a note of support to the noble Baroness, Lady Mallalieu, and the noble Lord, Lord McIntosh. I think that the clause as it stands is too broadly based. It encompasses activities by private individuals and by public bodies. I refer specifically to roadworks. I know that they are as close to the heart of the noble Lord, Lord McIntosh, as they are to mine. Roadworks are becoming more and more extensive in the south of England. They destroy much of the countryside across which my noble friends like to hunt. They really should think about that point.
There is much reference in Clause 65 to penalties against those who vandalise and damage sites of historical and archaeological interest. The Department of Transport is one of the greatest offenders in that respect. In our part of the world, in Scotland, the department wants to march a by-pass through Trimontium, which is one of the largest and least excavated Roman settlements north of the Border. Much knowledge would be lost by that intrusion. In the Winchester area, despite much protest by the local population, an ancient and important burial site at Twyford Down has been disturbed; and at Stonehenge, the greatest of our megalithic monuments, there is a threat to build a dual carriageway in a 48-metre trench no more than about 100 yards away from Stonehenge itself. That would ruin the site —but the sight has already been ruined, if your Lordships will forgive the pun. At Bath, the Swainswick by-pass has caused much excitement and people are protesting about it. It goes past Salisbury Hill at the top of which there is a labyrinth, one of the few ancient British labyrinths—
Lord Elton: I wonder whether the noble Earl will give way for a second. I want to clear my mind as to whether we are still talking about Amendment No. 73 which, as far as I understand it, has not been withdrawn, or whether we have moved on without formal procedure to some other part of the Bill.
The Earl of Haddington: My apologies. Have we moved on?
Baroness Mallalieu: We have not moved on due to my failure to ask the leave of the Committee to withdraw Amendment No. 73. I now beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Beaumont of Whitley Lord Beaumont of Whitley had given notice of his intention to move Amendment No. 73A:
Page 47, line 32, leave out from first ("in") to ("on").
The noble Lord said: I had expected that Amendments Nos. 73A, 74, 75 and 76 would be grouped together, but they are not. In the circumstances and at this stage, I do not intend to move the amendment.
[Amendment No. 73A not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey had given notice of his intention to move Amendment No. 74:
Page 47, line 33, leave out from ("anything") to end of line 34 and insert ("with the primary purpose").
The noble Lord said: I thought that Amendments Nos. 74, 75 and 76 were grouped and that they made a coherent whole. Under the circumstances, I shall not move my amendments, but we may return to them at a later stage.
[Amendment No. 74 not moved.]
[Amendments Nos. 75 and 76 not moved.]
The Deputy Chairman of Committees (Lord Grantchester): I have to tell the Committee that if Amendment No. 77 is agreed to I cannot call Amendment No. 78.
[Amendments Nos. 77 and 78 not moved.]
10 p.m.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 78ZA:
Page 47, line 42, at end insert:
("(3) A person exclusively exercising his rights as a bona fide rambler, hillwalker or other recreational user of the countryside shall not commit an offence under this Act.").
The noble Lord said: This amendment is designed to exclude from offences under the Bill any:
"person exclusively exercising his rights as a bona fide rambler, hill walker or other recreational user of the countryside".
Most of this has been discussed at an earlier stage. Much of the heat that has been generated by the Bill and the firing that has gone on between landowners and the people who want to exercise rights of access over land arises from doubts that individuals will still be able to exercise rights of access to the land within the law. The object of the amendment is to enshrine in the statute the rights mentioned in the amendment so that people do not end up having a confrontation with the landowner or the police when they are walking about on land doing no harm to anyone.
We have already heard the views of the Scottish Landowners' Federation from my noble friend Lord McIntosh. It would be of interest to know whether the Government have received any representations from any landowners' associations in England and Wales about sustaining the rights of innocent people—if I may put it that way—going about the countryside as they have done since time immemorial. I beg to move.
Baroness Carnegy of Lour: As the noble Lord has said, the amendment covers much the same ground as that which has already been discussed. I know that there is concern, particularly in Scotland, that there may be
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some problem in identifying the intention of those people who are innocently walking across land: are they intending to be innocent or are they not?
The amendment is slightly strange because, were it to be inserted into the Bill, how would one argue in court who is a bona fide rambler? It could be a rose, quite apart from anything else. The noble Lord is a lawyer and will know the answer to that, but it is a strange way to word a statute.
Earl Ferrers: The anxieties of the noble Lord, Lord Macaulay—if I may say so—are misplaced. Those who peacefully enjoy the countryside have nothing to fear. They will not come within the scope of the offence. The offence of aggravated trespass will bite only on those trespassers who wilfully disrupt or obstruct, or who intimidate others who are engaging in lawful activity, or who seek to disrupt, obstruct or intimidate those people.
Intent is a crucial element of the offence. Those who are merely enjoying a recreational pursuit should have nothing to fear. The same goes for ramblers. But it would be wrong to seek to restrict the protection which is available from the criminal law by excluding some people from its scope. The law should apply equally to everyone. Where ramblers, hill walkers and others behave offensively—if they do—it is right that aggravated trespass should apply to them. As I think the noble Lord will agree, that is highly unlikely, but it would be wrong to exclude any particular section of people from the offence.
Lord Macaulay of Bragar: I am obliged to the Minister for that reply. That was never the intention. The amendment may have been badly worded with the use of the phrase bona fide, but its intention was to enshrine in statute the right of the citizen as opposed to the right of the landlord. At the moment it is all one-sided. As I observed earlier, the landlord will make the decision. The amendment would at least give some statutory recognition to the fact that there are people who wish to exercise their rights. One can take away the words bona fide—I did not hear the noble Baroness's alternative to bona fide. People who are exercising their well-known and well-established rights to walk over the land should have that right enshrined in statute.
I listened with interest to what the Minister said. Obviously, at this time of night we are not going to enter into a prolonged debate and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Avebury Lord Avebury moved Amendment No. 78ZB:
Page 47, line 44, leave out ("imprisonment for a term not exceeding three months or").
The noble Lord said: I should not have objected to any of the provisions in the clause had it not been for the criminalisation of the activities that it covers. If the Government had merely presented us with the notion that aggravated trespass was a harmful activity which needed to be deterred and that substantial fines could be imposed on those engaged in it I should have had little to say. The existence of the three months' imprisonment provision has made me think more carefully about the matter and I was not reassured by what the Minister said at an earlier stage.
Dismissive remarks about my noble friend's examples were not helpful. Obviously, the noble Earl knows nothing about the topography of Sainsbury's or he would be aware that in almost every case the shop is surrounded by a large area of car parking and forecourt where people might well wish to demonstrate. And why should they not do so? The noble Earl at the conclusion of his reply was almost saying that no one should have the right to go into Sainsbury's premises and in front of the entrance do anything which would in the slightest inhibit shoppers from entering.
The lack of a proper definition of the activities that will be lawful and what will be caught by the provisions worries me too. Clearly, at one end of the scale is the violence which the noble Baroness, Lady Mallalieu, deplored. I warmly share her views, but we are not talking about that because it is dealt with under other legislation. It is the nature of the intimidation or obstruction, which will be covered by these clauses and which may result in the person's imprisonment, that causes me great anxiety.
People have done things which hitherto under the law they have been able to get away with and which have resulted in important changes as they see it—whether it be as regards environmental destruction wrought by the indiscriminate policy of motorway building or even as regards sport. Perhaps I may say to the noble Lord, Lord McIntosh, that a few years ago I was a defence witness in the trial of Peter Hain who ran an organisation called Stop the '70 Tour. The South Africans were proposing to come to this country to play cricket and many of us thought it was undesirable for us to play host to racist selected teams which came from that country.
As a result of the activities of my friend Peter Hain, who is now a Member of another place, public attention was drawn to the evils of the apartheid system, which mercifully has been brought to an end. My friend Peter Hain made a significant contribution to that in his attacks on apartheid sport, which he would not have been able to conduct under the provisions of the Bill. He was acquitted of every one of the charges brought against him on that occasion, except one of a comparatively minor nature for which he was fined.
If the Bill had applied at the time of the Stop the '70 Tour Peter Hain would have been liable to three months' imprisonment. I do not see that we want to extend the scope of imprisonment in this way. I have said that three times tonight. I said it twice in relation to Clauses 56 and 58 and a third time in relation to the new clause proposed by the noble and learned Lord, Lord Ackner.
I repeat that, by extending the criminal law to a greater range of what have hitherto been considered normal activities, we are making a serious mistake. We should deal with aggravated trespass, as we deal with all the other provisions in Part V, by a process of fines only.
I have no hope that the Minister will give me a favourable reply to this as he has not done so on the earlier occasion. However, I wish to register the fact that this is the third time that we have dealt with offences punishable by imprisonment and it is not the last example that we shall come to in the Bill. I regret that and I hope that, when Members of the Committee have had an opportunity to consider everything that has been
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said on this subject, we may encounter a more responsive attitude at the next stage of the Bill. I beg to move.
Lord Elton: Is it not the case that when a statute creates an offence that offence may be committed to any number of degrees, either very trivial or very serious? Is it not the case also that statutes sometimes lay down a minimum but always lay down a maximum? The maximum is supposed to be appropriate for the most serious degree to which the offence is committed. Is it not the case that the amendment in the name of the noble Lord, Lord Avebury, merely removes the appropriate penalty for the maximum degree and substitutes nothing whatsoever? Therefore, it is entirely inappropriate.
Lord Archer of Sandwell: There is no issue in this Committee that unlawful conduct should be visited by a sanction. The issue in the debate in which Members of the Committee participated a few moments ago was as to which unlawful conduct can be left safely to a civil remedy and which is so serious that it should be visited with a criminal sanction.
We understood from the noble Earl that it is the Government's intention that the objectors on Sainsbury's forecourt who may obstruct the path of the odd shopper are guilty of conduct so serious that we should attach to it a criminal sanction; that we should make those objectors criminals. But, if that is the case, I certainly support the amendment moved by the noble Lord, Lord Avebury, that we should not then attach to that offence a penalty of imprisonment. Of course that is a maximum. But we are saying that the people demonstrating outside Sainsbury's could fall into the area which is punishable by imprisonment.
If the noble Earl had given a different answer a. few moments ago and had said that it is the Government's intention to confine those clauses to really serious conduct of the kind of which examples have been given by some Members of the Committee, then I should have agreed that there are kinds of criminal conduct which merit imprisonment and I do not believe that I should have supported the noble Lord, Lord Avebury. But if the noble Earl says that the Sainsbury's category is quite deliberately being brought into the clause, then it seems to me that it is quite disproportionate that those people should be liable to imprisonment.
Lord Mancroft: The noble and learned Lord, Lord Archer, and the noble Lord, Lord Avebury, have both expressed considerable anxiety about the prospect of the clause catching inadvertently the innocent peaceful protester. That is why the noble Lord, Lord Avebury has moved the amendment so that peaceful protesters are not caught by the criminal law and sent to prison.
That is all very well but the fact is that the noble Lard failed to convince the Committee during the course of the debate on the last amendment that the legislation would catch out those peaceful protesters. He has not taken into account the fact that the purpose of the clauses is to catch out one particular group—and that is not peaceful protesters. If the noble Lord's amendment

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is accepted, those protesters who are decidedly unpeaceful and, indeed, very warlike, will avoid the sanctions of the law.
Lord Archer of Sandwell: Perhaps the noble Lord will allow me to intervene. If he takes the view that the peaceful protesters outside Sainsbury's are not caught by the clauses, then he will need to persuade the noble Earl because the noble Earl assured us a few moments ago that they would be and should be caught.
Lord Mancroft: I do not wish to speak to the noble Earl but, having listened to what he said, it seemed to me that he was not talking about the peaceful protester. He was talking about the obstructive or intimidating protester which is very different from the peaceful protester referred to by the noble Lord, Lord Avebury.
The key to the mistake in the reasoning of the noble Lord, Lord Avebury, on this matter is when he used, in his own words, a few minutes ago the phrase "get away with". The reason these clauses have been brought forward is that people who have been breaking the law and who have been committing serious offences—for example, attacking people and abusing people—which are contrary to the Public Order Act have been getting away with that because the police and private landowners, and anyone else for that matter, have been unable to obtain convictions. That is why the Government have brought these offences forward and that is why they are being introduced. We need these penalties so that those who have escaped the consequences of their behaviour under the Public Order Act will escape them no longer.
10.15 p.m.
Lord Avebury: I do not know whether the noble Lord has ever been convicted of obstruction but I have. The circumstances were that I was passing the Aeroflot offices on Piccadilly minding my own business and there was a demonstration of Jewish emigres who were protesting at the refusal of the Soviet Union to allow their relatives and friends to leave the Soviet Union. One of them accosted me and said, "You spoke at a meeting of the campaign against psychiatric abuse the other day. You will be interested in this". I was then handed a leaflet. I was reading the leaflet on a pavement in Piccadilly when a policeman came up to me and said, "Move". I replied, "Excuse me but I am just talking to this lady about the reasons for the occupation of the Aeroflot offices". He said, "No you are not. When I tell you to move, you move and if you do not move you are committing an offence". I said, "You must be joking". He said, "You will see whether I am joking". He grabbed me by the arm, drew it behind my back and twisted it, dug his nails into my wrist and marched me off to the police car. I was taken to the station and charged with obstruction. When I consulted a lawyer about this he said, "You are causing an obstruction when the police say you are causing an obstruction and therefore there is no way you will rebut this charge in court". The only thing I could do was to make a
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complaint against the officer—I did so, naturally without success—on account of the violence which he had exhibited against me in the course of the arrest.
I only mention that story to show that a person standing on a pavement, or indeed on the forecourt of premises where he may be protesting against some activity which is lawful in itself, is ipso facto committing an offence and he can be charged with obstruction by the police. If obstruction in this clause means the same thing as obstruction in the ordinary law, to be committing it one does not have to be doing anything violent at all, or anything particularly intimidating. One simply has to be standing in front of premises and perhaps displaying a placard, giving out leaflets, shouting slogans or anything of that sort. If that is the kind of activity that the noble Lord and the Government wish to criminalise, I have to part company with them.
Lord McIntosh of Haringey: How can anyone say that the police do not have the power to deal with issues of this kind, perhaps excessively? I agree entirely with the noble Lord, Lord Avebury. I was present some years ago at a march of the National Front through Haringey. In the course of that march there was peaceful protest by many of us against the intrusion of racists into our borough. In the course of that march I saw one of the people I was with bundled forcibly into a police van. I took out a piece of paper from my pocket and I wrote down the letter and the number of the policeman who did that. Another policeman came up to me, snatched the piece of paper from my inside pocket and said, "If you use that I am taking you in as well". If it was not for the fact that I had my two teenage sons with me at the time I would certainly have been taken by force into a police van under those circumstances.
There is no shortage of powers for the police at the present time to obstruct peaceful protests on a political basis. What is proposed here is the justification in statute of that aggressive power against the community by authority. I do not approve of the noble Lord, Lord Avebury, raising this matter again when it was grouped with an earlier amendment. I must say that on a procedural point. However, as regards the issue he raises, he is entirely right.
Earl Peel: It is quite clear that the noble Lord is really opposed to these additional powers of pre-emption. He does not like the idea of the police officers or officer having the power to anticipate what this individual or these individuals are going to do. Yet there is clear evidence of the need for pre-emption to prevent such people stopping others from carrying on a perfectly legitimate activity. I suspect that that is the root cause of the noble Lord's objection to the Bill—the provision to allow the police powers of pre-emption. I believe that that power is essential if this Bill is to be effective.
Earl Russell: Can the noble Earl explain how the anticipation of what people may be going to do is compatible with the presumption of innocence?
Earl Peel: The police have great experience in these matters, particularly in relation to field sports. These

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activities have been taking place for many years. They are becoming worse and worse. That is one of the main reasons why we have these two clauses in front of us in the Bill.
As I said, the police have had experience in these matters for some time. It is clear to them and to those of us who have witnessed these goings on that these people gather with the clear intention of disrupting a perfectly legal activity. If we are to prevent that disruption from taking place I contend that the police must have these pre-emptive powers. Otherwise these provisions will not be effective.
Lord Hylton: In the past I have corresponded with the noble Earl the Minister about the disruption of traditional field sports, in which I do not indulge myself, although I recognise the right of others to indulge in them. What seems to me to be necessary is a clarification of the law on peaceful persuasion. I am not convinced that this Bill sets about achieving that in an appropriate manner, particularly when it creates new imprisonable offences.
Earl Ferrers: One of the advantages of the procedures of this Chamber is that periodically we group amendments together so as to expedite the proceedings. The noble Lord, Lord Avebury, moved Amendment No. 58BA. Eleven other amendments were grouped with that amendment. The noble Lord, Lord Avebury, said with a certain pride that he had already spoken three times this evening on imprisonment. Having done my little bit of mathematics, I can tell him that we are now on the fifth of the 12 amendments upon which the noble Lord, Lord Avebury, has already spoken three times. Therefore, heaven help us, how many times will he speak on the same subject? He is entitled to do so, but it is rather like having one's dinner three times over. We have heard the arguments which he has pursued this evening three times before.
The trouble is that we get carried away and hear extraordinary things, and, with respect, we waste a great deal of time. The noble Lord, Lord Avebury, said that he was talking on a street outside the Aeroflot office. The noble Lord, Lord McIntosh of Haringey, said that he was nearly shoved into a police van in a demonstration in Haringey and that this issue is all about peaceful protest. It has nothing to do with peaceful protest. We are discussing aggravated trespass. The offence of aggravated trespass is perfectly clear. It is committed when, in relation to any lawful activity in which persons are engaged, a person trespasses on land in the open air with the object of intimidation, and obstruction and the disruption of that activity.
The noble Lord, Lord Avebury, and others keep coming back to what happens at Sainsbury's. I feel that Members of the Committee are letting the line run out of the fishing rod. We are discussing aggravated trespass. The definition of that offence states quite clearly that, where people are engaged in lawful activity and others trespass on land with the specific objective of preventing those people from engaging in that lawful activity, that ought to be a criminal offence.
Lord Archer of Sandwell: I am sorry to be tiresome, but will the noble Earl give us a straight answer? Does he consider that the people on Sainsbury's forecourt who may get in the way of a shopper should be liable to be sent to prison for three months?
Earl Ferrers: I would not be prepared to say whether a person outside Sainsbury's would be incriminated by a court. However, what is perfectly fair is that, if people are trespassing, and aggravatedly trespassing, on someone else's private land—whether that is Sainsbury's private land or on the estate of the noble and learned Lord, Lord Archer, wherever he has it in Sandwell—it is the offence of trespass.
I was surprised that the noble and learned Lord, Lord Archer —he has been a Solicitor General; he knows the law backwards and forwards—asked whether these people ought to be in prison. As my noble friend Lord Elton said, when one makes laws, one has to allow for the worst; and the worst is imprisonment. But for that to occur on every or any occasion is unlikely.
I cannot and will not, with respect, answer the noble and learned Lord, Lord Archer, as to whether it is right for the person who carried out a peaceful protest or aggravated trespass outside Sainsbury's to go to prison. The fact is that if aggravated trespass is to operate, in the end an imprisonable offence might be created. But the chances of people going to prison for such an offence are small. I am sure that the noble and learned Lord realises that.
Lord McIntosh of Haringey: The Minister must have some historical sense. I agree that if Jack Cade marches from Kent into London and hangs the Lord Mayor of London there might be some legitimate sanctions against him. But perhaps the noble Earl will look back to the Levellers on Saint George's Hill in Weybridge—private land in 1642—to Peterloo in Manchester, to any of the protests of the Chartists, or to any of the legitimate protests of the suffragists in our history. Virtually all those legitimate political protests which have promoted political change in our society over the centuries would now be outlawed by more stringent legal constraints than British law has encompassed in the past. That cannot be right.
Earl Ferrers: I simply say that I do not agree. The majority of protests occur in the public domain, on the streets, in Whitehall, or on the road. If the noble Lord says, "Because we wish to protest over something, let us go into someone's else's house; let us go into their private domain, and let us intrude in order to make that protest", one comes to criminal law. If someone makes a protest in the house of the noble Lord, Lord McIntosh, he is entitled to contact the police and say, "There are people coming on to my premises who are carrying out actions which are against the law. Will you please remove them?".
Lord Avebury: Although the Minister commented on Sainsbury's, he refused to give an answer as to whether the conduct described was lawful or would be liable to imprisonment. However, he deliberately ignored the other two examples that have been given. He made no comment on my suggestion that if lawful

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pickets in front of the BBC were on the land of the BBC, they would be criminalised. He also ignored my other example of the Stop the '70 Tour protest. I hope that most people in this Chamber would agree that anyone who demonstrated against apartheid, even to the extent of trespassing upon the pitch at Lord's Cricket Ground, performed a useful service in drawing attention to the wickedness of the racist regime in South Africa and helped to bring about the liberation of South Africa with a democratic Government responsible to the whole of its people, to everyone's enjoyment and wonder.
Was it not right that we should try to do everything possible to secure that outcome? Why did the Minister refrain from any comment on whether Mr. Peter Hain would have been liable to prosecution for a criminal offence and imprisonment for three months for the activities in which he engaged in the Stop the '70 Tour protest?
I am quite certain in my own mind that that would have been imprisonable conduct. If in future anyone wishes to stop a racist regime or dictatorship by taking action against the sporting activities which connect this country and that dictatorship, they would be unable to follow the same tactics as Mr. Hain did in 1970.
The nature of the conduct which has become criminal has not been properly defined and is still—in my mind at any rate —misty and cloudy. I do not understand what I would lawfully be able to do in demonstrations against a dictatorship, a racist regime, a chain of shops or an employer who was in dispute with his workers. Because one of the cardinal requirements of the law is that it should be certain in its application, I think this is a bad clause. The imposition of criminal penalties for conduct which is so ill-defined is not the right course for Parliament to take.
However, I realise that I have not impressed the Minister with my arguments this evening on this or Clauses 56 and 58. I can only leave what has been said this evening for Members of the Committee to consider at greater leisure so that we may return to the matter at Report stage. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 78ZC and 78A not moved.]
10.30 p.m.
Earl Peel Earl Peel moved Amendment No. 78B:
Page 48, line 3, at end insert:
("( ) For the avoidance of doubt, for the purposes of this section a trespass may be committed whether or not the occupier or person entitled to possession is present on the land").
The noble Earl said: While speaking to this amendment, I wish, with the leave of the Committee, to speak to Amendment No. 79H, which refers to Clause 64.
The amendment is similar to the one moved by my noble friend Lord Stanley when he was discussing the New Age travellers. It is important to establish whether the new offence of aggravated trespass can be committed in the absence of the occupier of the land or the person entitled to possession of the land in question. For example, the owner or the person with the shooting
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rights could have let a day's shooting. The owner or the person who had the shooting rights might not be present; aggravated trespass might be on the horizon, taking place, or the police might pre-empt its occurrence. Would the new offences be operational without the presence of the owner or occupier on the land? It is clear that the police require guidance on this, and I ask the Minister to give me an assurance that that is the case. I beg to move.
Earl Ferrers: These amendments seek to confirm that the occupier of the land need not be present when the offence of aggravated trespass is committed. I think that I can give my noble friend the comfort for which he is looking.
The powers are exercisable only against people who are reasonably believed by the police to be trespassers. Those who are reasonably but wrongly ordered to leave as trespassers are protected by a defence that they were not on the land as trespassers. I hope that that will satisfy my noble friend.
Earl Peel: I am grateful to my noble friend for that reply. I am satisfied with it and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mancroft Lord Mancroft moved Amendment No. 78C:
Page 48, line 4, leave out subsection (5).
The noble Lord said: I beg to move this amendment on behalf of my noble friend. As the Committee will recall, the purpose of the clause is the prevention of the new offence of aggravated trespass. As yet, the offence does not apply to roads; subsection (5) gives an exemption for roads and my amendment omits that subsection.
The matter was discussed by my noble friend Lord Stanley earlier in connection with the New Age travellers. I wish to return to it because one of the areas of most serious disruption in the countryside is from the roads—the sides of the roads, not the middle. In answering my noble friend earlier, my noble friend on the Front Bench made two comments with which I gently take issue.
First, he said that there was no trespass on roads. He may have inadvertently misled the Committee; or I may have been misinformed. I am under the impression that there is indeed an offence of civil trespass on roads. It happens to be trespass on the roads of the highway authority, whereas on a piece of private land it is against the owner of that land. So there is already a precedent of trespass on roads.
Secondly, in the Bill as it stands there is no exemption—in other words, the trespass is included— on bridleways, footpaths and rights of way. As the Committee will remember, the purpose of a right of way is for a person to go from A to B. He commits a trespass if he does anything else, anything that is for instance undesirable or unlawful, on that right of way. There is no reason why the same should not apply to roads.
My noble friend on the Front Bench made another point with which I would take issue. He said that the police already have adequate powers. Quite clearly the police do not have adequate powers, or we would not

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have this problem. And the problem is very severe. When asked to leave private land or when prevented from going onto private land, many of the demonstrators and disrupters—the hunt saboteurs or whatever they may be—retire to the roadside, not the middle of the road. If they were in the middle of the road, they could be moved on by the police for obstruction. They retire to the side of the road and they cause disruption to what is going on in the fields or on the moorland near the road.
We are not talking here about any minor or tiresome disruption. I shall cite three out of many recent examples. In January 1992 a hound belonging to the Oakley hunt was called onto the A.6 by hunt saboteurs and was killed there. In December 1992, another hound of the same hunt was killed on the A.6 for exactly the same reason. In 1993 one of the Barlow foxhounds was killed on the A.61. All those incidents caused damage to cars and might have resulted in very much more serious accidents. Some such accidents have occurred in the past.
The reason that I have taken those three examples is that they were produced by the League Against Cruel Sports in a recent briefing document entitled Riot, which was sent round in another place during the passage of the Bill there as examples of hunt trespass. What it failed to point out in those examples is that hunt saboteurs were using their voices and hunting horns to call hounds onto the road, to the distress of the huntsmen and masters and the followers of those hounds, and ultimately the distress of other road users.
On those occasions, and on many others, about which I know my noble friend on the Front Bench has been informed, as have other Members of this House, the police failed to stop those activities, even though on several of those occasions the police were present. One of the reasons is that, when such people are taken into court, some courts say that the blowing of a horn is an offence and others say that it is not. They leave the court and they can do the same the following week, causing accidents and risk again.
If the police had had the powers to deal with this matter, they would have dealt with it. They have been unable to do so. The reason that the whole offence of aggravated trespass was brought forward was that the police were unable to deal with it on private land. The police are equally unable to deal with it on the sides of roads. At the moment there is therefore a huge loophole in this offence. The purpose of bringing these clauses forward is to deal with an extremely unpleasant, undesirable problem which the Government and the Association of Chief Police Officers have accepted and upon which a variety of people in the countryside have been pressing the Government for some time.
It therefore seems a pity if we allow these clauses to go forward and leave a large gap in them which would allow the disorder, violence, intimidation and danger to road users to continue. On that basis, I hope that my noble friend will look favourably upon this amendment. I beg to move.
The Chairman of Committees (Lord Ampthill): I should remind the Committee that, if this amendment is agreed to, I shall be unable to call Amendment No. 78D.
Lord Renton: I rise only to point out—if it has already been pointed out, I hope that I shall be forgiven for raising the matter —that there appears to be a printing error on page 48 at line 6, where the reference should be to Section 56 instead of Section 55.
Lord McIntosh of Haringey: I could scarcely believe my ears when I heard the arguments put forward by the noble Lord, Lord Mancroft. Is not it bad enough that already, under the excuse of restricting hunt saboteurs, we are restricting peaceful political protest on private land on any subject whatsoever? That must be bad enough. But the idea that we should extend that restriction to the highway goes against every tradition of diversity of opinion in this country over 1,000 or even 2,000 years.
I can scarcely believe that it can be the desire of the Government that the protest which has been an essential part of the progress of our society should be made a criminal offence in the way proposed by the noble Lord, Lord Mancroft.
Viscount Mountgarret: I sympathise with and understand what the noble Lord is trying to say. However, I must ask him whether it does not go a little: far when people deliberately encourage hounds—I refer to hunting—to get on to the road, maybe for the purpose: of having them killed, running the risk of car accidents and so on, because they object to the sport. There is evidence that that has happened on more than one occasion. It is unpalatable but it is true. It may be necessary to have the measures that have been suggested in this amendment.
Lord McIntosh of Haringey: I tabled and supported amendments which would restrict the provisions of this part of the Bill to sporting activities which included hunting, shooting and fishing. The noble Viscount makes me wonder whether I was in error to make that conciliatory gesture. If disorder spills onto the roads, there are plenty of measures under the criminal law by which that disorder can be contained and violence can be prosecuted. The idea of using the law of aggravated trespass for that purpose is frankly incredible.
Earl Russell: I should be grateful if I could probe a little further the arguments put forward by the noble Lord, Lord Mancroft. Clearly the incidents that he described are serious breaches of the peace. Clearly they create a great danger. I should want to be convinced that there is no other adequate power available to deal with them.
In the first place, one would have thought that the conduct that he described was conduct tending to a breach of the peace. In the second place, should anyone die as a result of people encouraging hounds onto the A.6, it would be possible to imagine an indictment for manslaughter, which is a fairly severe charge. Thirdly, the noble Lord has already mentioned the Public Order Act. He said that the powers were not sufficient.

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I beg his pardon if I have missed comments made earlier in the day, but I have not heard why those powers are insufficient. We seem to have here a clash between two perfectly genuine arguments. There is a clash between on the one hand the Queen's peace and on the other hand the civil liberties. It seems to me that a clash between those two objectives is one which ought to be avoided if possible, because they are both laudable objectives.
We ought to explore very carefully whether there exist any adequate powers to curb dangerous conduct of that kind, powers which do not have the spill-over effects that we have been discussing in relation to this clause. If such powers exist they should be used.
10.45 p.m.
Earl Ferrers: The noble Earl, Lord Russell, says that in the final instance given there was clearly a breach of the peace and we must ensure that breaches of the peace do not take place. I agree with him. I do not believe that anyone considers that this kind of activity, where danger and possible loss of human life is involved, is acceptable, correct or proper.
I agree also with the noble Lord, Lord McIntosh, that there is a great deal of highway legislation. It is clear and provides many powers to deal with obstruction and so forth. Equally, I listened to my noble friend Lord Mancroft and in his view it does not seem to work, for the reasons he gave. Perhaps the best thing I can do for my noble friend is say that I shall certainly consider the position between now and the next stage, and consider all the suggestions that Members of the Committee have put forward, to see whether or not there is a way round the problem.
Lord Mancroft: In closing perhaps I may say to the noble Earl, Lord Russell —who raised some interesting points in an extremely constructive way—that there do not appear to be adequate powers. It is rather a case of the proof of the pudding being in the eating. The police have told us, the Government and various others, that they have been unable to obtain convictions in these situations. Had they been able to obtain convictions and deal with the problem, I should not be introducing the amendment this evening.
I agree, and the noble Earl hit the nail on the head, that I need to convince the Committee and the Government that the powers are inadequate. If I have failed to do that, then the Committee and the Government are quite right to turf me out. But I can safely say that there is considerable evidence that there are not adequate powers or, if there are adequate powers, that they are not working.
Lord Harris of Greenwich: Perhaps I can ask the noble Lord one question. He cited a number of examples and indicated that there has been either a failure of prosecution or a decision not to arrest those who have been involved in conduct of this sort. Has the noble Lord been told by a chief officer of police that the police cannot act because of deficiencies in the law, or is it his own judgment? I shall be grateful if he will clear that matter up.
Lord Mancroft: I have been in constant contact with a variety of senior police officers, ACPO and representatives of ACPO, official and unofficial. Obviously they have individual theories and ideas of their own, but it generally appears that senior police officers are saying that they have not been able to obtain the convictions for which they hoped, due to a variety of small and tiresome details—they have not been able to obtain the evidence or identification has been a problem. As far as far as I know, we have not yet suffered a case of manslaughter in this area, though we cannot be far from it. The situation is that at the moment the evidence appears to indicate that the system has not been working; the rules and the powers that have been given have not been working.
Lord Avebury: If one is not able to obtain evidence of identification, then the noble Lord's amendment will not help. Is it possible that between now and Report stage the noble Lord could devise a much more limited amendment which would deal with the offence of enticing hounds on to the highway and causing danger to the public, which would not be extended to all the other kinds of activity which are at present caught by the clause?
Earl Russell: My noble friend Lord Avebury has hit the nail on the head. I am extremely worried about the prospect of convicting people without identification. I should like to be reassured, before the amendment reaches the statute book, that we shall not be convicting people unless we have actually identified them as people committing an offence.
Earl Ferrers: Perhaps I may just help the noble Earl. I find it difficult to imagine any situation where a person can be convicted without being identified.
Lord Mancroft: My noble friend has perhaps answered that point for me. Before I conclude, perhaps I may put forward one point which I hope may persuade the Committee of the danger of not closing this loophole. I suspect that some Members may have missed it because I doubt whether many take the particularly attractive newspaper called Green Anarchist. Issue No. 33, entitled, "Smash the Howard Bill", contained a paragraph which reads,
'The good news is that this only applies in "open air' … and that no provision has been made for 'disruption' from public highways".
That is not the only documentary evidence. The Hunt Saboteurs' Association, in its charming quarterly newspaper, has also been trumpeting its ability to carry on its behaviour from the roads because it, too, has spotted the loophole in the Bill.
I am extremely grateful for the reply given by my noble friend on the Front Bench. He has realised that there is a problem. I do not pretend that today, in this amendment, I have found the perfect solution to it by any means—and I would not dreaming of doing so—but I am glad that I have managed to persuade him that there is a problem. It is very serious. While I accept the concern of the noble Lord, Lord McIntosh, about peaceful protesters and about moving forward, his concern has been registered to the Committee. My noble

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friend has been kind enough to see that there is a loophole and I hope that at a later stage we may have a solution.
Lord McIntosh of Haringey: Before the noble Lord decides what action he will take on his amendment, if he notes the concern and if he recognises the concern which we have expressed on Amendment No. 73, it is a great pity that he did not express that concern when we were considering the amendment.
Lord Mancroft: I think I did express it and I expressed it in the very first remarks I made on this series of amendments. I thank my noble friend for his answer. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Peel Earl Peel moved Amendment No. 78D:
Page 48, line 4, after ("land") insert ("includes water, common land and forestry land, but").
The noble Earl said: This is simply a probing amendment to try to clarify that the offence of aggravated trespass could apply on all water, common land and forestry land.
So far as concerns water, I am sure the Committee is aware that the activities of those who wish to disrupt the sport have grown considerably in recent times. The disrupting of angling has become quite widespread. Clearly, it is important that water needs to be covered in the Bill. I am really asking my noble friend whether land in this case covers water.
So far as concerns common land, I am convinced that because common land is private land it would be covered under Clauses 63 and 64 for the purposes of aggravated trespass. However, for reasons which I fully understand, common land has been specifically mentioned earlier in the Bill in Clause 56(7) when dealing with New Age travellers. As such, and because it has been omitted from Clauses 63 and 64, it could lead to claims in court that it was Parliament's intention that aggravated trespass should not apply to such land. Perhaps my noble friend the Minister can confirm that it is included, as much disruption does occur on common land.
I seek a further assurance from my noble friend. There are some commons where the public have a right of open access—generally speaking, established under Section 193 of the Law of Property Act 1925. In addition, there are areas of land, such as in the Peak District or the Lake District, where on non-commons access agreements have been agreed. I am asking my noble friend to confirm that, when anyone behaves in a way that would be an offence under the Bill in conditions where there is what I might describe as a more liberal access arrangement than normal, the police will be able to take action if they think it necessary. Those in breach of aggravated trespass laws must not be able to hide behind the fact that they are on land where access is not restricted simply to footpaths and bridleways. I include forestry as well, though the remarks I have made appertaining to common land would, I feel quite confident, cover forestry as well. This is a purely probing amendment. I beg to move.
Lord Renton: It may be that my noble friend Lord Ferrers will say that this is not necessary and that it is slightly overzealous. But one must remember that meets of hounds take place frequently on village greens and on other bits of common land. I know of one such village green where there is a shallow stream flowing down the middle. If it were held that that was not the kind of land to which the clause refers it would be very unfortunate. I am not quite so sure about forestry land, which I would have thought would be included in the expression "land only".
Earl Ferrers: I should like to think that I could lay the anxieties of both my noble friends to rest. Land includes all land in the open air except major highways. The Interpretation Act helpfully tells us that land includes land which is covered by water. My noble friends were concerned about common land. While there are public rights of access to common land and forestry land, if a person exceeds his licence to be on the land he may be trespassing.
Earl Peel: I am very grateful to my noble friend for that reply. It certainly covers the points which I have raised. I feel satisfied and therefore I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Beaumont of Whitley Lord Beaumont of Whitley moved Amendment No. 78E:
Page 48, line 9, at end insert:
("( ) No private prosecution may be brought under this section.").
The noble Lord said: This is a probing amendment. I believe that it is common ground that this is an extension of the criminal law into an area where it has not been before. It has also emerged in the course of debate that there are likely to be many cases where there is not necessarily complete agreement as to whether an offence has been committed. It is also an area in which there may well be, for perfectly justifiable reasons, very high passions aroused. In that situation I wonder whether it is a good thing, in extending the criminal law here, that there should be a right of private prosecution. I merely ask. I beg to move,
Lord Renton: I hope that my noble friend will not accept this amendment and I say that with deep respect to the noble Lord, Lord Beaumont of Whitley. The right to bring a prosecution is one of the fundamental rights in our country and has been for centuries. It has been limited not by abolishing that right, but by saying that it cannot be exercised except with the consent of the Attorney-General. I hope that: I am right about that. That is certainly my recollection. I see no case for abolishing that right in the circumstances of this clause.
Earl Peel: I cannot understand why the noble Lord, Lord Beaumont, could wish for one moment that those who perpetrate the crimes which are covered in these two clauses should have special protection. We have seen time and again the League Against Cruel Sports and hunt saboteurs bring private prosecutions against hunt supporters. I can see no reason why on earth we should change the law so that we cannot do something in return.
Earl Ferrers: My noble friend Lord Renton is, as so often, quite correct. In England and Wales the right to private prosecution is a fundamental right. It is important in so far as it secures access to the courts for everyone and not just for the Crown. Where a prosecution is considered to be frivolous or malicious the Crown Prosecution Service has the right to take over the proceedings from the person who initiated them. The Crown Prosecution Service would apply the evidential test—that is, that there must be a realistic prospect of conviction—and the public interest test in making a decision on whether or not to discontinue the proceedings. In so far as that was a probing amendment by the noble Lord, Lord Beaumont of Whitley, I hope that he feels satisfied with the answer which I have given him.
Lord Beaumont of Whitley: Yes, I believe that I do. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 79 not moved.]
Clause 63 agreed to.
Clause 64 [Powers to remove persons committing or participating in aggravated trespass]:
11 p.m.
Earl Peel Earl Peel moved Amendment No. 79A:
Page 48, line 10, leave out ("on any land") and insert ("at the scene").
The noble Earl said: I am moving this amendment as it would appear that a legal loophole might otherwise have emerged. Under Clause 64 a police officer would not be able to give a direction to an individual or individuals to leave the land as he or she - the police officer - may be standing on the road. That must be a drafting error. My noble friend the Minister gave an example earlier about the use of loud-hailers from a car. If the instruction was coming from a loud-hailer and the saboteurs were on the land, it would not be very effective and they would not need to pay any attention to what the police officer was saying. It would be infinitely preferable to follow the precedent of Clause 56 regarding New Age travellers and to substitute the words "on any land" with the words "at the scene". I beg to move.
Earl Ferrers: Under Clause 64 a police officer on any land may direct trespassers to leave land where they have committed aggravated trespass. Under the legislation "land" excludes major roads. This amendment seeks to close a possible loophole by ensuring that the officer could issue a direction to leave while he himself is standing on a road, although the offence which is being committed is on land and not on the road. I think that my noble friend has identified, as they say, a lacuna and I am content to accept his amendment.
Earl Peel: I am grateful to my noble friend.
On Question, amendment agreed to.
Earl Peel Earl Peel moved Amendment No. 79B:
Page 48, line 13, leave out ("on land in the open air").
The noble Earl said: I feel confident now that my noble friend will accept this tiny little amendment which seeks to correct what I suspect is again merely a drafting error. The words,
"on land in the open air",
are, I believe, superfluous as they already form part of the definition of aggravated trespass under Clause 63(1). I beg to move.
Earl Ferrers: My noble friend should not push his luck too far. I understand that the intention behind his amendment is to remove words which may be superfluous from the legislation. But in this case the words,
"on land in the open air",
are necessary, I am advised, to pick up and to amplify the reference to "land" at the beginning of the clause. That is why they are also repeated in Clause 64(1) (b).
Earl Peel: I would not even contemplate pushing my luck too far in view of my noble friend's generosity. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Beaumont of Whitley Lord Beaumont of Whitley moved Amendment No. 79C:
Page 48, line 14, leave out paragraph (b).
The noble Lord said: In moving this amendment, I understand that we are to discuss also Amendment No. 79D. The object of this amendment is to ensure against arbitrary arrest under the common purpose principle. There is no definition in the clause of common purpose or any safeguard against innocent bystanders being arrested, something about which we have already spoken. Proof of a common purpose can only ever be inferred by conduct - conduct which is not required in the present drafting of the legislation as it relies upon persons having a guilty mind. There is no requirement with common purpose for any prior plan or agreement. I beg to move.
Lord McIntosh of Haringey: I should like briefly to support the amendment. It is important that it should be seen in context. Clause 64(1) begins,
"If the senior police officer present on any land reasonably believes",
he may direct that person to leave the land. The noble Lord seeks to leave out paragraph (b) which follows. The criterion of "reasonably believes" does not sit well with paragraph (b). I hope that the Government will recognise that the effect of the two provisions together is oppressive.
Lord Mancroft: My understanding of this—it is difficult to understand, but I believe that I have it right —is that the paragraph that the amendment seeks to remove is part of subsection (1) that covers pre-emption. The most important points of the two subsections are that they allow the police to pre-empt. Rather than acting as a cure, this could be a prevention. It would prevent the activities from taking place. My reading of that clause is that where the senior police officer present reasonably believes,
"that two or more persons are trespassing on land…and are there with the common purpose of intimidating"

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that means that they have not yet intimidated. The senior police officer believes that there is a very good chance that they will do so, and he will give them an instruction which will prevent them from doing that.
That is a great deal better than waiting for people to commit an offence with various people then being carried away with black eyes and broken heads. It seems to me that once again the noble Lord, Lord Beaumont, is trying to water down something which does not require watering down and we should resist that.
Lord Avebury: Far from watering down the clause, my noble friend is making it easier for the police, because if paragraph (b) is deleted then the senior police officer has only to establish:
"that a person is committing, has committed or intends to commit the offence of aggravated trespass".
But if the paragraph that he is seeking to remove is left in, the police have also to establish that that person and other persons have a common purpose. I must agree with my noble friend. I do not know how a police officer will form an opinion on such a matter.
There may be several persons present one of whom may have evinced the intention to commit the offence of aggravated trespass in ways that lead the police officer reasonably to conclude that that was his intention. The person may, for example, come equipped with horns, placards or other devices which he intends to use to disrupt lawful activities on the site. There may be another person present who is not in possession of any of those articles and who may be merely standing around. He may be a bystander, as my noble friend pointed out, or he may be there out of curiosity to see what: happens when the demonstration begins.
The police officer then seeing two or more persons gathered in the same spot may conclude wrongly that there is a common purpose, and arrest them both, or he might find it extremely difficult to decide whether they have a common purpose. It causes confusion in the mind of the police officer and makes it more difficult for him to carry out his duty. If he has only to identify that each person on the land has the intention to commit the offence, that places a plain, simple duty upon the police officer, which he will have no difficulty in carrying out. My noble friend has an extremely good point which should be upheld.
Earl Peel: It is clear that this is another example of Members of the Committee opposite attempting to cut out, water down or reduce this fundamental power of pre-emption which is given to the police in the Bill. I do not understand why they are so against it, because, as I have said previously, the police have a considerable degree of experience in dealing with these matters. The essence is to allow the police to intervene before an offence is committed.
Lord Beaumont of Whitley: Will the noble Earl give way? The police can do that under paragraph (a). What is the need for paragraph (b)? Paragraph (a) includes the intent to commit and covers that point. Why is paragraph (b) needed?
Earl Peel: When dealing with a large number of people, which I think is the purpose of the amendment, it is clearly more difficult to give an instruction unless it can be done as suggested in the Bill.
Lord Avebury: If the noble Earl has considerable experience in these matters, perhaps he can cite other examples of legislation where the police have to establish common purpose. Will he say in what proportion of cases where prosecutions are brought against such persons the common purpose is established to the satisfaction of the courts?
Earl Peel: As I understand it, the main purpose of the amendment is to have a power of reducing the ability —whichever way one looks at it—of the police effectively to carry out this new power of pre-emption—
Lord Beaumont of Whitley: No, no. Withdraw. That is not the purpose.
Earl Peel: Will the noble Lord please explain to me precisely what the purpose is because I have misunderstood him?
Lord Beaumont of Whitley: Indeed. The purpose is to simplify the whole thing and to make it easier for the police in addition to everyone else. Subsection (1) (a) is all that is needed. It covers the points that the noble Earl raised. Subsection (1) (b) is quite unnecessary.
Lord Wigoder: My noble friend is correct in this matter. It is a perfectly simple question of law. Under Clause 64(1) (a) the police may give directions to any person who intends to commit the offence of aggravated trespass. That is the pre-emptive element. Subsection (1) (b) deals with the situation in which there are two or more people who have a common purpose, according to the view of the police, in intimidating and so forth; in other words, in committing the offence of aggravated trespass. If two or more people have a common purpose to do that, in law each intends to commit the offence of aggravated trespass. Therefore, each is covered by subsection (1) (a). As a matter of law, I cannot see that Clause 64(1) (b) adds anything except a certain complexity so far as the police are concerned.
Lord Mancroft: Perhaps I may help the Committee. The problem probably lies in the fact that the noble Lords, Lord Beaumont, Lord Avebury and Lord Wigoder, have never been present at one of these rather unpleasant incidents in our countryside at which this part of the Bill is aimed. One of the points that I raised earlier, which Members of the Committee found difficult to understand, was the problem of identification.
Perhaps your Lordships will visualise yourselves in the middle of one, two or three large fields and imagine that there are one or two policemen. Some 30 or 40 people are milling about, some of whom are wearing Balaclava helmets to disguise their identity. One person runs out of the crowd and hits someone on a horse or attempts to intimidate someone using a gun and then runs back into that crowd. In those circumstances, the policeman on the spot will find it very difficult to identify that individual in order to issue an instruction to

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him. Even though at that moment he is after only that one individual, the best way he will be able to proceed is to order off the entire group on the basis that they are consorting with that one individual. Hence the fact that the police require powers to instruct one individual or a group in which that one individual may have concealed himself. Thus they need those two seemingly parallel powers which in practice it will be important to retain.
Lord McIntosh of Haringey: It is only in respect of hunting that we have to have this new provision. In every other criminal offence before the law a policeman has to be convinced that the person he is about to arrest has committed or was about to commit an offence. It is only in these circumstances that the Government seem to believe that there must be a new concept of common purpose which is expressed in totally different terms. Subsection (1) (a) contains a clear use of the phrase "aggravated trespass" which has been introduced in a previous clause to which the Committee have agreed. In subsection (1) (b) that definition is totally abandoned and we have a completely new view of common purpose.
If the Government or the noble Lord, Lord Mancroft, want to introduce the concept of conspiracy to commit an offence, we will look at that on its own merits. That is not what is proposed here, however. What is proposed here is an extra freedom for police who cannot identify someone as committing an offence to arrest people at random regardless.
11.15 p.m.
Lord Mancroft: Perhaps I may help the noble Lord. He foresees a problem, his solution to which is to use a much larger hammer to crack the nut than is desirable. He spoke of the special circumstances surrounding hunting. One of the reasons that the Government, after considerable pressure and with some reluctance, have brought forward this provision and seen the need for it is because there are, as there are in many other areas of life, slightly different circumstances here.
Let us suppose that the provisions were aimed particularly at problems encountered in other sports; for example, football, cricket or something like that. Those sports take place in a fixed area. The police are able to be there hours in advance if they wish to be. They can ring the area and have as many policemen there as they like. It is very difficult for them to do that in the hunting field because the hunting field moves rather rapidly. Therefore situations arise in which the police—it may be one policeman on his feet or several in different vehicles—move about very rapidly after the saboteurs, who are also moving around very rapidly in vehicles in different groups all over the place. The problem is that it is very difficult at times for the police to get their hands on the individual person.
Surely it is very much better for the police to say, "We can see that trouble is brewing. People are getting over-excited and they are starting to run. People will end up in hospital." It would be much better to order the
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whole lot of them off and the problem is then nipped in the bud. The trouble is then prevented before it even starts.
The removal of the clause will make the job of the police more difficult in preventing crime.
Lord McIntosh of Haringey: Including the hunt, of course. The police should order the whole lot off, including the hunt, should they not?
Lord Mancroft: Hunts are as liable to the law as anybody else. If the police ask a hunt to move in any directions, it does so. The noble Lord, Lord McIntosh, and other members of his party do not seem to understand—and I wish that they would understand— that there is no issue of hunt trespass because no groups have come forward and said that there is a problem. Nobody has ever called the police to prevent the hunt beating him up. That simply does not happen. It is only when we reach the details of the debate that the noble Lord's real concerns start to surface. He can put them well aside.
The police need the power to deal with a small group of extremely unpleasant animal rights activists whose intention is to break the law and get away with it. The Government have responded and the Opposition and other Members of the Committee are trying to water that down. It is simply not acceptable.
Lord Wigoder: I understand what the noble Lord, Lord Mancroft, is saying. I assure him that I am not trying to water anything down. I am merely seeking to look at the matter as a matter of law.
Perhaps I may take it out of the context of the hunt and take it in a context with which I am rather more familiar. if the police see a man punching another man and causing him actual bodily harm or assaulting him and there are a group of men around who are egging on the man doing the punching and encouraging him by their attitude or by what they say—for example, "Good old Charlie, give it to him Charlie", and shaking their fists or whatever it may be—each of those people is guilty of the offence of causing grievous bodily harm. Even if they lose the ringleader because they cannot identify him, the police are fully entitled to arrest any of the other people present for that offence. There is no need to prescribe in the statute that the police must be satisfied that there is a common purpose. It follows from the state of the law as it is that, if there is that common purpose which the noble Lord postulates, the police are entitled to move in and arrest anybody there.
Therefore, I am merely saying that, if that is applied to the terms of this clause, subsection (1) (b) adds nothing in law and does not water down anything. It does not do anything which is not covered by subsection (1) (a).
Lord Boardman: I have tried to follow the argument but I believe that the noble Lord, Lord Wigoder is wrong. There is a clear distinction between paragraphs (a) and (b). Paragraph (a) provides that it must be shown that a person has committed or intends to commit an offence and paragraph (b) deals with a group of people who are clearly, by their actions, doing the very thing which the noble Lord, Lord Wigoder, suggests would be

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an offence; that is, collectively intimidating or threatening to intimidate. I believe that there is a very clear distinction and both paragraphs (a) and (b) are necessary to secure the protection at which the Bill aims.
Lord Archer of Sandwell: Before the noble Lord sits down, can he think of a situation in which a group of people have a common purpose to do something in which each of them does not intend to do it?
Lord Boardman: If we are talking about a group of people, an unruly mob—whatever situation is covered in the Bill—it would under paragraph (a), be necessary to show that each one of them had committed or intended to commit the offence for the police to be entitled to act. Instead of trying to show that each of 100 people—that is the sort of size of crowd one gets on some of these occasions—is committing or intending to commit the offence, under paragraph (b) if the whole group quite clearly has a common purpose of shouting and yelling and disrupting and intimidating, the police are entitled to tell them to leave. I believe there is a real distinction between paragraphs (a) and (b) and one that it is necessary to retain for the Bill to be effective.
Lord Avebury: I am no great expert on hunting but I will follow the noble Lord, Lord Mancroft, in considering the example that he puts to the Committee, and that is the case where there are a number of persons in a field, some of whom may be wearing balaclavas and one of whom runs out and commits an act of violence against members of the hunt in the immediate vicinity of this crowd. The police officer has two alternatives. He can either say under paragraph (a), "Each of the persons in that group intends to commit, or in one case has committed, the offence of aggravated trespass" and he then directs each of those persons to leave the land, or he concludes that they have a common purpose and he again issues a direction under Clause 64(1) that they must leave the land. Either way the outcome is the same —the police officer gives directions to all the persons in that group.
But let us suppose that there was a court case and one of the persons said that the police officer was wrong, that he did not have a common purpose with all the rest of the group and that while he was a member of the Animal Liberation Front the rest of them were members of the hunt saboteurs league and so he had a completely different view on the matter, and therefore the police officer was wrong in ascribing a common purpose to him and all the rest of the people in that group. He still intended to commit the offence of aggravated trespass, and therefore he would be caught by paragraph (a). The police officer would be on much stronger ground therefore if he used paragraph (a) and not paragraph (b). It seems to me that the particular case that the noble Lord has offered us as an example of why paragraph (b) is necessary proves the exact opposite.
Lord Burnham: I should like to suggest that this is not a matter which is solely confined to hunting. I cannot give examples from shooting or fishing although I know them to have existed. But there was the notorious case of the riot on Newmarket racecourse in
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the 1970s. There was also the case of an illegal bare-knuckle boxing match at the Lambourn lurcher show at about the same period. Both these were clearly illegal events with which the police were unable to deal at the time.
Earl Ferrers: One of the interesting aspects of debates in this Chamber is that one gets to know quite a bit about your Lordships. My noble friend Lord Mancroft graphically described his terrible experiences on the hunting field. That was quite alarming, but it so baffled the noble Lord, Lord Wigoder, that he said, "Let me return to a scene with which I am more familiar —where one man punches another". It is nice to note the kind of company the noble Lord, Lord Wigoder, keeps.
This amendment, which is moved by the noble Lord, Lord Beaumont, would remove the power of the police under Clause 64 to direct people to leave land where they are trespassing,
"with the common purpose of intimidating persons so as to deter them from engaging in a lawful activity or of obstructing or disrupting a lawful activity".
If that were to happen and the amendment were to be passed, the police would have to satisfy themselves that each individual, as my noble friend Lord Boardman said, intended to intimidate others. The noble Lord, Lord McIntosh, said that this was a special power and the noble Lord, Lord Avebury, thought that it was a peculiar power and he wanted some examples of it. There is a perfectly good example; this is not a new power. Section 1 of the Public Order Act says quite clearly:
"Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is; such as would cause a person of reasonable firmness present at the scene to fear for his personal safety, each of the persons using unlawful violence for the common purpose is guilty of riot".
Therefore, the concept of common purpose is not new. My noble friend Lord Mancroft is correct in saying that events have shown that it is not uncommon for protesters to be present in large numbers with the intention of preventing a lawful activity.
As my noble friend Lord Boardman said, Clause 64(1) (b) allows a police officer to take effective action by directing an entire group to leave where the police officer believes that they are present on land with the common purpose of disrupting, obstructing or intimidating. Without this provision an officer would be restricted because he would have to form a belief as to the intention of each individual in a group. The language of "common purpose" is used in existing public order legislation to deal with gatherings where there is a clear intention to act together to achieve a common end.
I believe that the pre-emptive powers contained in Clause 64 are essential if the police are to act effectively and efficiently against disruptive trespassers. The amendment would severely hamper their ability to take swift and decisive action. That is why I hope that the Committee will agree not to accept the amendment.
Lord Beaumont of Whitley: In these debates it is amazing what simple little amendments trigger such wide-ranging discussion. I detected two main points. I shall deal first with the point relating to foxhunting, of which I have considerable knowledge. I was very

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interested that the noble Lord, Lord Mancroft, said that the Government introduced the provision reluctantly under great pressure. One wonders who exerted that pressure and how it was exerted. I wonder whether the noble Lord, Lord McIntosh, is possibly beginning to regret the concessions made to the blood sports lobby.
Lord Mancroft: If the noble Lord will be kind enough to give way, I can make that point very simply.
Many hundreds of thousands of law-abiding citizens in the countryside, who vote Conservative, Labour, Liberal, or for any other party they may wish to support, made their anxieties clear to the Government, through various different organisations—the National Farmers Union, the British Field Sports Society, the Country Landowners' Association, their MPs, those councillors who are not stupidly trying to ban hunting, and a variety of other routes. In addition, the national newspapers constantly carry stories of horrific violence.
As the Committee will know, the Government do not want to legislate unless they have to and a need is shown. Finally, pushed by the Association of Chief Police Officers, which told them that the problem is serious and needs to be dealt with, the Government accepted that there is an unpleasant problem. They said that they do not want violence in our countryside and they agreed to help to solve the problem. Hence this legislation and the lack of support in the Committee for the desire of the noble Lord, Lord Beaumont, to water it down.
Lord Beaumont of Whitley: I have already explained that I did not intend to water it down. I hope that your Lordships take one's statements made in this Chamber as truth. I put forward the amendment as a simplification. It was supported as such by a number of Members of the Committee, including my noble friend Lord Wigoder, who is a very distinguished lawyer and who has no axe to grind on this particular issue.
I was going to go on to say, before the noble Lord, Lord Mancroft, so kindly and helpfully expanded on his earlier remarks, that I do not accept what the Government have to say. I do not accept that paragraph (b) is necessary. It seems that those of us who said that paragraph (a) was perfectly acceptable by itself and covered all the points had the better of the argument.
This is a matter to which we ought to return at Report stage, but for the moment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
11.30 p.m.
Earl Peel Earl Peel moved Amendment No. 79D:
Page 48, line 19, at end insert:
("( ) A direction under subsection (1) above, if not communicated to the persons referred to in subsection (1) by the police officer giving the direction, may be communicated to them by any constable at the scene.").
The noble Earl said: As Clause 64 is drafted at present, the senior police officer must give a direction to all saboteurs present himself or herself. Clearly, as has already been discussed, this may prove to be a somewhat difficult, if not impossible, task when one is dealing with large numbers. As those of us who have
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witnessed these scenes know, one could be talking of numbers in excess of 200. The amendment allows the direction to be relayed through the other police present, as in Clause 56 to New Age travellers and Clause 58 dealing with raves. I beg to move.
Earl Ferrers: The amendment removes the need for the senior police officer making the direction to leave the land under the aggravated trespass provisions to communicate it personally to all people to whom it should apply. I can see that there might also be occasions where protesters may be present on land in sufficiently large numbers to make it difficult for the senior police officer to ensure that his direction to leave was known to all those committing, or intending to commit, aggravated trespass. The amendment would be of practical value in those circumstances and I should be content to accept it.
Earl Peel: I am extremely grateful to my noble friend for allowing me to push my luck again successfully. I commend the amendment.
On Question, amendment agreed to.
Lord Avebury Lord Avebury moved Amendment No. 79E:
Page 48, line 27, leave out ("imprisonment for a term not exceeding three months or").
The noble Lord said: At the risk of incurring the wrath of the Minister, I return for the fourth time to the imposition of imprisonment under the various clauses of this part of the Bill. I make no apologies for doing so because every time I rise to move the amendments I hope that I establish in the Committee's minds the fact that we are extending the criminal law very substantially. Although it is unfortunate that it is so late in the evening, I believe that it is necessary for the Committee to consider whether we wish to impose a three-month sentence of imprisonment on people who are found to be guilty of such offences.
In answer to previous similar amendments, the noble Earl has stated that three months is the maximum sentence and that there are few cases for which it will be imposed. However, he cannot tell me even remotely the number of cases.
I have pointed out twice already that there is nothing in the Explanatory and Financial Memorandum about the increased costs that will be incurred to the taxpayer by people spending three months in prison at a cost of £3,000 per head per week. The Government ought not to find difficulty in telling the Committee about such substantial amounts of money, even if the numbers of people going to prison are small.
We are dealing with a range of offences which are not as serious as the noble Lord, Lord Mancroft, has sought to describe to the Committee. The offences of violence would already be covered. Perhaps we may take the example that he gave a moment ago.
Viscount Mountgarret: Perhaps the noble Lord will be kind enough to give way on one point. I may be mistaken, but I believe that the amendment was addressed some time ago. It was grouped with Amendment No. 58BA. Having listened to the noble Lord, the same arguments have been deployed. Does he

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not feel that he tests the patience of the Committee a little in bringing forward the argument for, I think, the third time?
Lord Harris of Greenwich: Perhaps I may say that it is made absolutely clear that the groupings of amendments are suggestions. They are not requirements imposed upon the movers of those amendments. Whether people deploy their arguments in particular ways is a different issue, but on the narrow issue of the procedure of the Committee, one is not obliged to accept the recommendations on grouping of amendments placed before us.
Viscount Mountgarret: I agree entirely with what the noble Lord, Lord Harris, has said. I was merely asking whether, since the arguments being deployed now are so closely allied to those which were deployed previously, perhaps at this hour and knowing the point we wish to reach, it might be more worth while if we proceeded with the other amendments.
Lord Avebury: The answer is no, I do not feel that it would be right for me to forgo moving an amendment which I have placed on the Marshalled List, just as anyone else whose name is to an amendment has moved it in due course. I am taking longer in moving the amendment because of the noble Viscount's intervention. If he wishes to go home, he had better refrain from intervening and let me get on with my speech.
I move the amendment for the simple reason that we are dealing with a different offence from those on which I proposed earlier amendments. It so happens that the speeches are fairly similar because in every case except one the Government have specified a term of imprisonment of three months. Naturally, I have to argue in that context, but the offences themselves are different. Here we are dealing with the case where directions have been given to people by the police officer to leave the land and the person or persons have failed to comply with them, whether or not they were correctly judged by the police officer to be there for a common purpose. It could well be that someone was there simply as a spectator and was caught up in the activities of the police in trying to prevent the unlawful behaviour of some of the group. It is a matter for serious consideration and is not to be dismissed, passed over or ignored altogether, as some Members on the other side of the Committee appear to wish. We are extending the criminal code into more and more areas of conduct which have hitherto been dealt with under the civil law.
I deplore as much as anyone else the violence of hunt saboteurs. I believe that where they commit offences of violence they should be dealt with properly by the courts and sentenced under the existing law which deals with that kind of activity. However, we are talking about something of a lesser nature which the Minister has been reluctant to define. He has failed to comment on any of the examples we have given. I repeat that I believe that the Committee ought to consider carefully whether your Lordships want to extend the criminal law as widely as they are doing under the Bill or whether the cumulative effect of all the additional offences which are being
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created is to criminalise a new and large class of people who have hitherto been left to be dealt with by the civil law. I beg to move.
Earl Ferrers: The noble Lord, Lord Avebury, said that he made no apology for returning to the matter. My noble friend Lord Mountgarret was quite right. This was one of the amendments grouped with Amendment No. 58BA, of which there were 12. This is the seventh and the noble Lord has spoken four times on the same subject. The noble Lord, Lord Harris, says that the groupings are merely for the convenience of the Committee; people do not have to abide by them. He is quite right, but I emphasise that they are for the convenience of the Committee. Noble Lords might think that it is not convenient for the Committee to hear the same argument repeated four times on the same subject. I have expounded all the arguments on the other three occasions and I shall leave it at that.
Lord Avebury: I was not anticipating that the Minister would have anything fundamentally new to say, but I am disappointed that he cannot even address his mind to the creation of the new offence under Clause 64.
I felt it was necessary, to be perfectly honest, to deal with the amendment separately, even though on the Marshalled List it was grouped with a number of others because it related to a completely different offence. That was a perfectly legitimate view for me to take. It would have been reasonable to expect the Minister to answer this amendment separately instead of behaving as though his replies to the previous amendments on different clauses had satisfied the arguments that I raised. I am extremely disappointed, but not altogether surprised, by the attitude of the noble Earl, which has been nothing if not consistent all the way through this Bill so far as the proposed criminal offences are concerned.
I can only say that we have not exhausted the arguments on the matter. We shall have to return to them in even greater detail when we come to the Report stage. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chairman of Committees: Amendment No. 79F. The Lord Avebury?
Lord Avebury: Not moved.
Earl Ferrers: May I just ask the noble Lord, Lord Avebury, whether he means not to move the amendment?
Lord Avebury: Yes, on this occasion I did mean to say "not moved".
Lord Beaumont of Whitley Lord Beaumont of Whitley moved Amendment No. 79G:
Page 48, line 37, at end insert:
("if—

(a) he engages in offensive conduct which would constitute an offence under this section and the constable warns him to stop, and

(b) he engages in further offensive conduct immediately after the warning.").

The noble Lord said: The object of this amendment is to ensure that there is some safeguard in the Bill

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against arbitrary arrest and detention. The amendment ensures that the police must be made aware of the offensive conduct by way of complaint and are able to warn the offender against such behaviour. They are then further witnesses to any offending behaviour should the suspect not desist.
The provision for a warning prior to arrest is already required by Section 5 of the Public Order Act 1986, which deals with disorderly conduct. Trespass has only ever been a criminal offence in this country within very limited circumstances. This Bill will criminalise trespass where there is associated conduct which it describes as offending conduct.
The police have very wide existing powers of arrest, both in common law for breach of the peace and under Section 25 of the Police and Criminal Evidence Act 1984. Legislating for a requirement that the police officer must first warn the offender against his behaviour safeguards against unnecessary arrests. Only if the offender does not desist from his behaviour will the police exercise their powers of arrest. Of course this provision would not exclude the police from being able to arrest by using either their common law powers of arrest or under Section 25 of the Police and Criminal Evidence Act 1984.
The police do not appear to have experienced any particular difficulties in the application of a warning under Section 5 of the Public Order Act 1986. It has enabled them quickly to identify and respond to those protesters who wish to engage in non-violent protest and those who may intend to inflame the situation, thereby avoiding mass arrests and keeping good order. I beg to move.
Lord Mancroft: So far as I can make out, this amendment means not only that the offence cannot be pre-empted by the police but that offence has to be committed twice with a warning in between, which implies that, an offence having been committed, the officer can then get hold of the chap, who will presumably have moved rather rapidly at that stage in the proceedings. In other words, it makes the powers of arrest of the officer conditional; it hamstrings the police; and it puts one more obstacle in the way of making these offences and absolutions workable. I hope that my noble friend will reject it.
Earl Ferrers: The offence under Clause 64 is one of failing to obey a police direction to leave the land, and not the substantive offence of aggravated trespass which would have led to the direction being given. To warn someone not to continue to engage in aggravated trespass or face arrest is, I believe the Committee will agree, inappropriate. But I think that the intention behind the amendment is misplaced. I presume that the noble Lord wishes to introduce a provision similar to the one that is contained in Section 5 of the Public Order Act 1986. That deals with disorderly behaviour which is likely to cause harassment, alarm or distress. A constable may arrest a person only if he continues to engage in offensive conduct after being warned to stop.
However, the two offences are quite different. Intent is not an element of Section 5 and a person may be
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unaware of the effect of his behaviour on others. By contrast, intent is crucial to the offence of aggravated trespass. A person will have set out to disrupt, obstruct or intimidate others. The offence will be quite clear. I do not see any reason for giving him a warning about his conduct and then allowing him the opportunity to continue to intimidate others before effecting an arrest. I hope that the noble Lord, Lord Beaumont of Whitley, will agree that that would be inappropriate.
Lord Beaumont of Whitley: I thank the noble Earl for his very full explanation. I shall want to look at it very carefully. Until then, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 79H not moved.]
Clause 64, as amended, agreed to.
11.45 p.m.
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 80:
After Clause 64, insert the following new clause:
(Trespass by uncontrolled dogs
. In subsection (3) of section 3 of the Dangerous Dogs Act 1991 after paragraph (b) there shall be inserted—
"or (c) it injures any domestic animal either owned by, or authorised to be in that place by, the landowner or occupier.".").
The noble and learned Lord said: A few moments ago the noble Earl observed that groupings are for the convenience of the Committee. I am perfectly content that this amendment should be grouped with those standing in the name of the noble Lord, Lord Walton. But since I am not sure of the situation to which the noble Lord's amendments are addressed, I cannot guarantee that there will be a common theme running through this debate. But perhaps time will tell.
The purpose of my amendment is to explore what has been perceived as a discriminatory element in the proposals in Clauses 63 and 64. In this amendment I do not seek to call in question the content of those clauses. I have little sympathy with those who, however motivated, deliberately intimidate or disrupt lawful activities on someone else's property.
It has emerged during the course of this debate—it was probably suspected by most of us in any event— that the clauses are directed principally at hunt saboteurs and at the motivation of those who hunt. I make no secret of the fact—I should be dishonest if I concealed it—that I am opposed to hunting. But that is a matter that we may debate on another occasion. I believe that issues of that kind should be debated within Parliament. If the Government had addressed the whole of the problem, consulted with all the lawful groups involved and attempted to deal fairly with the whole situation, I should not have troubled the Committee with this amendment—certainly not at this time in the evening.
But if it is true that the clauses were included largely at the instance of those who hunt, the request might have been more acceptable if it had been accompanied by a genuine offer to address instances of complaints against those who participate in hunting. In another place my honourable friend Mr. Elliot Morley introduced an amendment designed to deal with instances of trespass on other people's land by hunts themselves, sometimes

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by members of the hunt deliberately riding upon the land, but more usually by dogs which were out of control. The answer which Mr. Morley received was that there is an important distinction between trespassing when the unintended consequence is damage and destruction and trespassing for the very purpose of causing damage and destruction.
I say at once that I understand and accept that distinction. I should be reluctant in any event to see the concept of trespass, which traditionally has been dealt with by way of civil remedies, as the subject of a criminal sanction in any but the most compelling cases. For that reason I have not sought in this Chamber to introduce a similar clause, although there can be a degree of indifference to damage which is scarcely distinguishable from intention.
I accept what was said by the noble Lord, Lord Mancroft, a few moments ago, that many hunts— probably the majority—try to behave with considera-tion, try to avoid entering people's gardens, try to control their hounds and, where there is unintentional trespass, make a handsome apology and an offer of compensation. If that were invariable, again I should not trouble the Committee with this amendment. But unhappily it is not always the case. The League Against Cruel Sports holds correspondence relating to what I would regard as totally inconsiderate and arrogant behaviour by hunt members. I am told that there is a total of around 270 letters from those who appear, on the face of it, to have legitimate complaints. The Committee will be relieved to hear that I do not propose to read them all; I propose to read a brief extract from one of them. It says,
"I could see my own animals just fleeing in terror … and many more were chased in pure terror down my long drive … We were met with what I can only describe as arrogant indifference from the Master of the hounds—we were barely acknowledged when I told him how undisciplined I thought the hounds were as not one had obeyed the horn or the calling of the "whipper-in"'.
Probably the major mischief is the terrorising and sometimes the infliction of physical injury on the animals of those who are the victims of the trespass. It is for that reason that I tabled this new clause. If the Government are concerned for those who hunt, then should they not display some concern that they in turn show consideration for others? Admittedly my amendment goes wider than the mischief I described. What is proposed is that the sanctions already imposed by the Dangerous Dogs Act on those who fail to prevent their animals from trespassing on other people's property and injuring people should be applied where a dog or dogs injure any domestic animal which is lawfully on the land. That is not an unreasonable constraint on the activities of dog owners, among whom I say at once I include myself.
I believe I owe the noble Earl an apology. I accept that the mischief at which the amendment is directed is not readily discernible from the terms of the proposal itself, unless his officials noticed that it was identical with one that was moved in another place. I had intended to write to the noble Earl explaining what I had in mind, but I confess that in the course of dealing with other matters I overlooked it. For that reason I certainly do not propose to seek a decision tonight, either from
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the Committee or, if he wishes for time to reflect on the matter, from the noble Earl. However, now that I have elaborated on the theme I look forward to hearing the noble Earl's reaction and in that spirit I beg to move.
Lord Mancroft: I wondered what the noble and learned Lord would say when he moved his amendment. It was a source of interest to me. Though he called it "his" amendment, the Committee may realise that it is not actually the amendment of the noble and learned Lord, Lord Archer; it is an amendment produced by the League Against Cruel Sports and put forward in another place—which is fair enough but that is the way it is. And of course, the League Against Cruel Sports, is an animal rights organisation and not, as the noble Lord, Lord Beaumont, said in an earlier debate, an animal welfare organisation. Many of its members are former hunt saboteurs and one or two of its members are present hunt saboteurs. These are people who move outside the; law quite happily.
Lord McIntosh of Haringey: Perhaps the noble Lord will permit me to intervene. It is not advantageous to the standard of debate in this Committee if the noble Lord insists on the practice of "abuse plaintiff's attorney". It is not suitable. Members of the Committee put forward amendments on their own behalf at the urging of numerous bodies outside. It does not do to abuse them in the way that the noble Lord, Lord Mancroft, has just done.
Lord Mancroft: I ask the forgiveness of the Committee, but I do not believe that I abused the noble and learned Lord, Lord Archer. I would not dream of doing such a thing. I merely pointed out something which is entirely correct. It is important that the Committee be aware of that fact. I also believe that the noble and learned Lord, Lord Archer, who I am quite sure is doing what he believes to be the best thing in the right place, is being duped—if that is the right word. I do not believe that the noble and learned Lord is aware of the full facts behind this matter.
Lord McIntosh of Haringey: If the noble Lord persists in this line of argument it will be necessary for me to move Standing Order 30, which deals with asperity of speech.
Lord Mancroft: I hear what the noble Lord, Lord McIntosh, says and I am extremely sorry about that. But the facts are the facts. I shall therefore turn to the amendment.
The amendment seeks to compare in some way the actions of hunt saboteurs with the actions of hunts. That comparison is not easy to make. Hunt saboteurs happily and consciously step outside the law and seek to interfere on purpose with a perfectly legal activity. No hunt, I believe, in the history of fox hunting, which is a very, very long history, has ever tried to do that. It is true that on certain occasions—a few occasions—hunts undoubtedly go where they are probably not welcome. I hope that they would invariably, as the noble and learned Lord, Lord Archer, believes they do not do invariably, apologise and withdraw very quickly.

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Possibly, if we search very hard, on one or two occasions that has not happened. The noble and learned Lord's friends have searched very hard for him and have produced 270 letters, but I think it is worth reminding the Committee that hunting takes place on more than 27,000 days each year. If all they can come up with is 270 letters, this is not a very large problem, particularly as the police have not had to be called and as violence has not taken place. As the noble and learned Lord said in making his remarks, where damage has occurred there has been compensation and invariably an apology has been given.
Lord Archer of Sandwell: I certainly did not say that wherever damage has occurred it has been compensated for. I said that, if there were a handsome apology and an offer of compensation, the problem would not be exacerbated in the way that it is.
Lord Mancroft: I do not take issue with the noble and learned Lord's comments but I take issue with him when he says that the problem has been exacerbated. This problem has been cooked up. If the noble and learned Lord would go back into the shades of the past, the Scott Henderson Commission made a comment in its inter-departmental report in 1949 which is as true today as it was then, as are many things in the world of fox hunting. I quote:
"It has become apparent to us that many people who think they know what takes place obtain their information from propaganda issued by organisations who, in turn, rely to a surprising extent on press reports of particular incidents which, in their turn, are based on misconceptions".
The fact is that these two problems are not comparable. One is a large public order problem involving the police, cost, crime and a great deal of trouble. The other is a tiny pinprick in the affairs of this country and is of no consequence; and it is certainly not one that should involve the Dangerous Dogs Act.
As a solution to the problem, the noble and learned Lord, Lord Archer, has used the Dangerous Dogs Act. I am rather sad in a way that the noble Lord, Lord Houghton of Sowerby, is not here this evening, as he would have a great deal to say about that. The Committee will remember what he thinks of the Dangerous Dogs Act. That Act was brought forward by the Government to react against serious attacks by dogs on human beings. It is an extraordinary and specific Act. To attempt to include this area in it is quite ludicrous and is absolutely and completely inappropriate. I hope therefore that the noble and learned Lord, Lord Archer, will withdraw the amendment. I hope, too, that my noble friends will register how dismayed they are that this disgraceful amendment should have been brought forward.
Lord Harris of Greenwich: That really is one of the silliest remarks I have heard in the 20 years or more that I have sat in this House. A very moderate speech has been made by a distinguished Member of the House and it deserves to be taken serious note of. I have no passionate views on either side of this controversy but extreme language of that kind does no credit to the noble Lord who has just used it.
Lord Burton: I know a lady who lives just over a mile from this Palace who used to have a little mongrel terrier. It was, not unsurprisingly, let out in her garden. Every now and then a fox was indiscreet enough to jump into the garden and the terrier would dispose of it. Would that lady have been a criminal if an amendment of this kind had been passed into law?
The Earl of Selborne: Perhaps I may ask for the advice of the Committee. As the noble and learned Lord, Lord Archer, indicated, the grouping in this case is perhaps a little eccentric. I am proposing to move Amendments Nos. 80A and 80B, or at least speak to them, but I see no common interest. In those circumstances, sacred though groupings should norm-ally be, perhaps the Committee will allow me to come in later.
Lord McIntosh of Haringey: The noble Earl is entirely within his rights.
Midnight.
Earl Ferrers: Not only is the noble Earl within his rights, but I believe that he is very sensible, too. The noble and learned Lord, Lord Archer, said that he intended to write to me and he apologised for not doing so. I wholly accept his apology. Had he written it would merely have been another letter for me to open and read, but I would take particular pleasure in reading any letter which comes from him.
In this matter the Government, as a whole, have to be equal. We take the view that people ought to be able to go about their lawful pursuits without let or hindrance provided that they keep within the law. People ought to be able to protest provided that they keep within the law. They ought to have the security of their homes or gardens. If dogs or hounds stray, as inevitably animals do, that is the responsibility of the owners and they should take responsibility for what their charges do.
The noble Lord was quite right and fair in saying that he did not like foxhunting and, if one likes, this is an amendment which is aimed at foxhunting. The amendment would create a new criminal offence; namely, it would be an offence for any owner to allow his dog to enter private property and injure an animal. It goes very wide indeed, criminalising any trespass by a dog which resulted in injury to another domestic animal.
The trespass provisions in the Bill rely on intention. I doubt whether it is possible for a dog to intend to breach an Act even if it can intend to kill a chicken. The Dangerous Dogs Act 1991 already creates an offence in respect of dogs which are dangerously out of control or which injure any person. Under the Dogs Act 1871 the magistrates have the power to make a control order over a dog which is considered dangerous —in other words, a dog which attacks people or animals. An order made under that Act may specify how the control should be exercised. For instance, it could require the dog to be muzzled, kept on a lead or excluded from specific places such as school playgrounds.
I would be hesitant about suggesting that we should introduce further controls. If an intrusion into a garden is done deliberately the hunt would commit an offence. If it is done accidentally the owners of the hounds are

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liable to civil damages and the hunt would have to pay for any damage caused. The noble and learned Lord Archer suggested that the offence of aggravated trespass is not evenhanded because it does not catch trespass by hunts where the trespass is not intentional, but nevertheless causes distress.
I think that the offence is evenhanded because as drafted it catches all trespassers who intend to disrupt, obstruct or intimidate. Intention is a very important part of it. But to introduce proposals which can be committed only by hunters would be discriminatory. I understand the noble and learned Lord's anxiety over this, but over all these matters the intention must be there to disrupt, intimidate or obstruct. I do not believe that that can be said as regards what would happen if a hound or a dog accidentally strayed. The fact that it did so would be the responsibility of the owner and also in civil law.
Lord Archer of Sandwell: I appreciate the distinction which the noble Earl has just made, and I said so in my speech. I would like to reflect further on this matter. I moved the amendment with some diffidence. I said at the outset that I had no sympathy with hunt saboteurs. I was interested to hear the contribution of the noble Lord, Lord Mancroft. If he had said that he, for his part, had no sympathy with hunts which behaved thoughtlessly and arrogantly and that there were incidents which were to be regretted, and that he would be happy to do anything he could to discourage it then I would have hesitated to pursue the matter, but the noble Lord's reaction was to say that the whole thing was cooked up; that it was a tiny pinprick; that hunts behaved perfectly properly and that he saw nothing wrong in the incidents I mentioned.
That has persuaded me, as I do not think that anything else would, that this is a matter that should be pursued. However, I take the point that one does not readily want to criminalise the domestic dog owner whose dog strays into the next garden. I should certainly like to reflect further on this in the light not only of this debate but of all of today's debates. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Selborne The Earl of Selborne moved Amendment No. 80A:
After Clause 64, insert the following new clause:
("Offence of disruptive trespass

.—(1) A person commits the offence of disruptive trespass if he trespasses on any land other than in the open air or in any building and, in relation to any lawful activity which persons are engaging in or about to engage in on that land or adjoining land or in that building, as the case may be, does anything which is intended by him to have the affect—

(a) of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity,

(b) of obstructing that activity, or

(c) of disrupting that activity.

(2) Activity on any occasion on the part of a person or persons on land or in buildings is "lawful" for the purposes of this section if he or they may engage in the activity on the land or in the building on that occasion without committing an offence or trespassing on the land or in the building.

(3) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale, or both.

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

(5) In this section "lawful activity" and "land in the open air" have the same meaning as in section 52.").

The noble Earl said: I rise to move Amendment No. 80A, which stands in the names of the noble Lord, Lord Walton, and myself. We have rightly spent a lot of time this evening trying to establish the balance between the legitimate right of protest and the legitimate right of people to go about their lawful business. We have been talking about the countryside. There has been common ground throughout the Committee that it is a difficult balance to strike. We have not been talking about inside buildings because the Bill is framed specifically to exclude them. No doubt Members of the Committee will feel that on the whole the existing legislation adequately covers disruptive trespass or aggravated trespass inside buildings.
However, I believe that there has proved to be one specific area where that is not the case. I refer to where research laboratories, particularly those conducting medical or agricultural research and experiments that involve the use of animals, have been subjected to an unacceptable degree of disruption by animal welfare interests. I believe that that cause of concern is getting out of hand in this country. By any standards, the degree of aggravated trespass is well beyond that which one could reasonably be asked to put up with even in the interests of the balance of legitimate rights of protest.
The reason why it appears that the present law is defective is that one of the most common types of such raids on research laboratories sees an activist or activists in a group entering the premises during the working day and seeking to remove documentation—records, computer discs and the like—and bringing with them a document which sets out a claim that any papers or other material removed will be copied and returned. Since the law of trespass requires the intention to deprive permanently, that is not a crime, and it has proved a very successful defence. Time after time extremely unpleasant incidents have arisen in which research workers, conducting their own business in, I believe, the best interests of public service, have found themselves intimidated by that degree of trespass and, in a very distressing way, the law seems to have been ineffective.
I may be wrong about this. It may be that the existing laws could be used more effectively. I am fairly sure that these rather sweeping amendments are probably not the right way to settle the problem, but one thing as to which I am clear is that this is an opportunity to address the problem. I believe that Parliament should take note of the alarming increase in such incidents.
It is clear that documents are removed to disrupt research. Often personal documents are taken, such as staff lists, which are then used for intimidation. That is very frightening for the research workers involved. The provisions are precisely the same as the measures relating to the countryside with which we wrestled over such a long period this evening, but do not involve, I hope, quite such emotive issues. I think that there is clearly a need to protect research workers in laboratories who are conducting their business lawfully, and this the amendment aims to do.
I am certain in my own mind that this is an area that should be addressed in the Bill and I very much hope that my noble friend the Minister will be able to tell us how he would like to see this matter dealt with. I beg to move.
Lord Harris of Greenwich: I express no view on the terms of the amendment, but I do express a view on the substance of the noble Lord's argument. There is a matter of concern here. Research workers have on a number of occasions been intimidated in the most distressing fashion. If there is a gap in the law here, I hope that the Minister will consider the matter because, speaking from my limited knowledge of the problem, it causes serious disquiet to many members of the scientific community.
Lord Soulsby of Swaffham Prior: I have pleasure in supporting the amendment on disruptive trespass, especially in buildings, moved by my noble friend Lord Selborne. That, as my noble friend said, pertains particularly to the actions of individuals who seek to disrupt the legitimate use of animals in medical and other research. They intimidate workers in scientific laboratories and disrupt scientific meetings and conferences. There have been many instances of that happening, of forced entry into buildings and of the theft of animals, some prepared for experimental purposes. There were 3,000 incidents in the period 1990 to 1992. More recently the offices and laboratories of certain institutes have been set on fire. One of those was the Centre for Tropical Veterinary Medicine in Edinburgh and another was the Macauley Institute in Scotland.
Should one stand up and speak against those individuals, one's house may be daubed with paint and other graffiti or one's family may be jostled or even abused in public. I was the victim of such public abuse at a conference in Brighton. My wife was spat upon by those individuals as we walked the gauntlet from the hotel to the conference room. Despite that type of distress, and it is distressing, as I am sure the Committee will recognise, the more serious threats are those of letter bombs and bombs placed under cars with the intention of maiming or even killing.
The intimidation that results from the efforts of those individuals is very real. It leads at times to an unwillingness, by young people in particular, to attend scientific conferences and to publish scientific data because the authors feel that they might be pilloried in public by members of the Animal Liberation Front or even by newspapers, as has happened recently in relation to the Animal Health Trust at Newmarket.
There is a widespread sense that the activists of the ALF fail to be checked and prosecuted by existing legislation, as my noble friend said. Their disruptive and intimidatory activities seem to go unchecked and unchallenged. While the points contained in the amendment would not cover all the aspects that I have briefly described, nevertheless some legislation to deal with disruptive trespass in buildings and its application to individuals who wish to disrupt the legitimate
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business of medical and other research would go some way towards deterring such activities. They are widely drawn, except that they now refer to:
"disruptive trespass … other than in the open air".
They are as widely drawn as other clauses to which we have objected for that reason. I hope that the Minister will be able to say either that they are not necessary and that there are powers to deal with this undoubted abuse or that the Government are prepared to introduce more limited specific powers which will deal with any defects in the law as it exists.
12.15 a.m.
Earl Russell: It is common ground on all sides of the Committee that Her Majesty's subjects have a right to go about their lawful business and that that right is not in any way diminished if other of Her Majesty's subjects happen to disapprove of that business.
The question here is: what are the appropriate powers? Indeed, are the powers already on the statute book put to a sufficiently appropriate use? It is also a question of whether it is always appropriate to deal with a new mischief by piling up a mass of new criminal statutes, as was done in the criminal legislation of the 18th century. As one historian put it, MPs proposing a criminal offence of stealing their turnips never thought that the misfortune that happened that year to their turnips might happen next year to their potatoes.
In particular, we should pay attention to the powers which remain in the common law. There is one which is particularly appropriate to the case that the noble Earl, Lord Selborne, has put before us. It is the common law offence of sedition. It is defined in law as endeavouring otherwise than by lawful means to alter any matter in church or state by law established. Prosecutions are rare, but there are clear precedents. It is designed to deal with exactly this type of case where there is a systematic campaign to prevent the carrying on of a lawful activity.
I hope that among the other points that the noble Earl will consider is the question of whether that offence may provide the appropriate remedy in this case.
Earl Ferrers: I am grateful to the noble Earl, Lord Russell, for drawing the Committee's attention to the law of sedition. It is not one to which I had directed my mind, but I shall do so. I cannot comment on the effects that it does, might or would have.
We all feel a great deal of anxiety about researchers and the intolerable way in which animal rights activists and so forth behave towards them. My noble friend Lord Soulsby of Swaffham Prior said that he had experienced graffiti and his wife had been spat on. And all for what? Because one is undertaking research which is on the whole for the benefit of the country and often for the benefit of human beings.
We all have great sympathy with what lies behind the amendment. However, the new clauses seek to extend to buildings both the offence of aggravated trespass, which is contained in Clause 63, and the associated police power to direct persons to leave land, which is contained in Clause 64. The new offence of disruptive trespass, which the amendment proposes, is no different from aggravated trespass save for where it can be committed.

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I do not believe that an extension to include buildings is necessary. The offence of aggravated trespass was designed to deal primarily with the various specific circumstances where trespassers in the open air behave so as to create public order problems. Experience has shown that that is where the real difficulties occur. If the protesters are in the open air and those who are protested against are in the building or, rather less likely, vice versa, not only is the risk of disorder reduced but the immediate effect on the victims is considerably less simply by virtue of the fact that there is a substantial barrier of bricks and mortar between the two groups of people.
I turn now to the point to which the noble Earl, Lord Russell, drew our attention. He wondered whether it was right to deal with new mischiefs by piling up new offences and whether the common law does not provide a number of remedies. We have looked frequently at the problem and we have reached the conclusion, rightly or wrong, that the existing criminal law provides very substantial protection where the protesters and victims are inside buildings. In that respect the amendments seek to widen the law more than we believe to be necessary. For example, where the animal rights protesters protest and misbehave against researchers, there is protection in the criminal law. There are offences of burglary, breaking and entering and theft. It is difficult to see how one can set about a building, a person or somebody's possessions without breaking and entering or committing a burglary or theft or an aggravated offence, grievous bodily harm or, indeed, industrial espionage.
My noble friend Lord Selborne referred to people taking discs or papers, copying them and then returning them. I should have thought that that would have been covered by the criminal law. I was surprised when he said that that did not constitute theft. I should think that it would be breaking and entering or that protection may be available under the laws of copyright. I should not care to give a definitive answer on a generality, but when we have looked at the problem we have reached the conclusion that the offences which are created—and they are terrible offences —are provided for already in the criminal law. The difficulty may be to gather sufficient evidence which is sustainable in court. If an offence is covered by the criminal law, then it would seem unnecessary to add a new offence and fall into the trap to which the noble Earl, Lord Russell, referred of piling up new offences.
Of course I shall take note of what my noble friends Lord Selborne and Lord Soulsby of Swaffham Prior and other Members of the Committee have said and I shall consider it. However, that is the position as the Government see it at present.
Lord Harris of Greenwich: I indicated when I spoke before that I did not necessarily accept the precise language of the amendment and partly for the very good reason given by the noble Lord, Lord McIntosh of Haringey.
But there is a real difficulty here, as I am sure the noble Earl recognises. Many years ago when I held the office that he holds, this matter was drawn to my
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attention by the noble Earl, Lord Halsbury. This problem has existed for 20 years. He pointed out that the raids were being carried out on laboratories where animals were being subjected to various forms of scientific experiment and the consequence of that could lead to a very serious public health danger which was not appreciated by many people outside the scientific community. I did then speak to the then Commissioner of the Metropolitan Police with a view to seeing what could be done to step up the police response to deal with the problem.
That situation has escalated over the past 20 years. I do not believe in using extravagant language, but some of the people involved are on the fringe of committing a form of terrorist offence. In reality, that is what we are talking about. The character of some of the operations carried out by some of those rather deranged people raises a very serious threat to the life of many of our fellow citizens. There have been substantial police operations aimed at dealing with the difficulty. All I can say at this late hour is that I very much hope that the noble Earl will reflect on the matter. I am quite sure that the language of this amendment is not at all appropriate. As to whether there is any weakness in the existing law, perhaps between now and the Report stage we can have discussions with the crime committee of the Association of Chief Police Officers to see whether it has any views on this matter. That might be helpful.
Earl Ferrers: I think that the point which the noble Lord, Lord Harris, makes is a valid one. Many of these offences are now being carried out and they are becoming wicked. People poison food and set fire to lorries and blow things up. I believe that the noble Lord said that they are nearly as bad as terrorist activities. That may well be true but those actions are already crimes and just altering the law will not enable one to catch the people committing them. That is the difficulty and that is what makes us believe that the criminal law is right; the difficulty is being able to locate the people, identify them and bring sufficient evidence to prosecute them. However, as I said, I shall consider what has been said.
The Earl of Selborne: May I say at the outset how grateful I am for the recognition of the problem from all parts of the Chamber. I must make it quite clear—I think I did when I was introducing this amendment—that I was not in any way expecting the format, as proposed, to be acceptable. I am sure that it is not and that it would be far too all-embracing. Nevertheless it was clearly a device to try to demonstrate that there is one essential difference which has to be highlighted—that one can or might have a trespass which is not at the moment adequately covered by the law. '
The only part of this short debate which has disconcerted me is that I do not think I have entirely persuaded my noble friend the Minister that the existing law is, or has, proved inadequate. I am bound to admit I have not considered with the noble Earl, Lord Russell, whether the laws of sedition might be brought to bear on this problem. But leaving that aside—I shall have to think about it a bit more carefully —it is the case that on a number of occasions documents have been removed

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from laboratories at a time when the laboratories might otherwise be open to access (that is during working hours) so it has been difficult to prove trespass. The documents have been thrown into the bags of waiting motor cyclists who have driven off with them. Some 43 activists were arrested by police when this happened to Boots research laboratory in November 1990, and there was no difficulty with identification, as my noble friend the Minister seemed to think there might be; but in practice because the documents were returned the charge of theft was apparently incapable of being sustained. As the people concerned refused to be bound over to keep the peace, nothing whatsoever happened.
That seems to me an extremely worrying situation. I agree entirely with all who have said that, before one rushes into making laws, one should look carefully at whether one can operate the criminal laws more effectively. But before I withdraw this amendment I ask my noble friend the Minister to reflect once more as to whether he thinks that there might be here a lacuna in the law which should be addressed at a later stage. Perhaps he will tell me whether he can give me any hope that he will look rather more constructively at the possibility that the law of theft, the law of copyright and the other laws we have referred to all might not adequately address the problem which seems to have been successfully evaded up till now.
Earl Ferrers: I gave the undertaking that I would certainly look at what has been said; and in so far as that covers the points which my noble friend has just made, of course I will look at that.
The Earl of Selborne: With that assurance, I thank the noble Earl and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 80B not moved.]
Clause 65 [Trespassory assemblies]:
[Amendments Nos 81, 82, 83, 83A and 84 not moved.]
Earl Ferrers Earl Ferrers moved Amendment No. 85:
Page 51, line 11, at end insert:
("(11) In relation to Wales, the references in subsection (1) above to a district and to the council of the district shall be construed, as respects applications on and after 1st April 1996, as references to a county or county borough and to the council for that county or county borough.").
The noble Earl said: I have spoken to this amendment with Amendment No. 64. I beg to move.
On Question, amendment agreed to.
Lord Avebury Lord Avebury moved Amendment No. 85A:
Page 51, line 25, leave out ("imprisonment for a term not exceeding 3 months or").
The noble Lord said: I only rise to mention that this is the fifth occasion on which criminal offences have been created under this Bill. Before anybody reminds me, I should say that I recognise that the amendment was grouped with some others. However, it is not the same as the others because it relates to a different type of offence. The fact that the three months' imprisonment is the same as in the earlier clauses does not make me any happier about the multiplication of offences under this Bill.
I simply record the fact that this is the fifth occasion on which an additional offence has been created, to my mind unnecessarily, under this piece of legislation and under this part of the Bill alone. I beg to move.
Earl Ferrers: I am so glad that the noble Lord, Lord Avebury, reminded us that this is the fifth, sixth or seventh time on which he has spoken on this group of amendments. I shall not bore the Committee by rehearsing the answers.
Lord Avebury: I knew that if I had not reminded the Committee that it was the fifth time that I had raised the matter the noble Earl would have done so. In view of the fact that his answers have been very much the same on each occasion, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 85B to 85D not moved.]
Clause 65, as amended, agreed to.
Clause 66 [Trespassory assemblies: power to stop persons from proceeding]:
Earl Ferrers Earl Ferrers moved Amendment No. 86:
Page 52, line 4, at end insert:
("(3) A person who fails to comply with a direction under subsection (1) which he knows has been given to him is guilty of an offence.
(4) A constable in uniform may arrest without a warrant anyone he reasonably suspects to be committing an offence under this section.
(5) A person guilty of an offence under subsection (3) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.").
The noble Earl said: I spoke to the amendment with Amendment No. 67. The noble Lord, Lord Avebury, will be glad to know that I do not propose to make another speech on the subject. I beg to move.
On Question, amendment agreed to.
Clause 66, as amended, agreed to.
Lord Annaly: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at twenty-eight minutes before one o'clock.