HL Deb 28 June 1996 vol 573 cc1194-206

3.36 p.m.

Lord McIntosh of Haringey

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

Moved, That the House do now resolve itself into Committee.—(Lord McIntosh of Haringey.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Geraint) in the Chair.]

Clause 1 [Definitions]:

Lord McIntosh of Haringey moved Amendment No. 1: Page I, leave out lines 7 to 19 and insert ("molests another person").

The noble Lord said: It may be for the convenience of the Committee if I speak to all the amendments together. They all have the same object and effect. Therefore, with permission, I shall speak also to Amendments Nos. 2 to 26.

The purpose of all these amendments is to remove the criminal element from the Bill that received a Second Reading and to turn the offence of stalking into a civil matter instead. It therefore becomes a civil tort of molestation: there is a right not to be stalked—not to be molested—and the offence is a breach of any non-molestation order in the civil courts.

We debated the matter as a criminal offence at Second Reading. However, I recognise that, although the Government share with me the view that creating a criminal offence is an appropriate way to deal with some of the issues involved in stalking, it is premature to introduce a Bill which provides for such a criminal offence.

I am grateful to the noble and learned Lord the Lord Chancellor for suggesting that it would be appropriate for the Bill to abandon the concept of a criminal offence and for indicating to me the thinking behind how the relevant provisions of the Family Law Bill might be used in the more general area of stalking where no family relationship already exists. As I take the Committee as rapidly as I can through the amendments it will be seen that they all point to that same objective.

Amendment No. 1. removes the complicated definition of stalking for the purpose of a criminal offence and simply says that Clause I shall read: In this Act, 'stalking' shall mean engaging in a course of conduct whereby a person molests another person so as to be reasonably likely to cause that other person to feel harassed, alarmed, distressed or to fear for his safety or for that of one or more third persons".

That is the end of Clause 1. All the issues debated in Committee about whether the actions themselves are offensive are left to the courts in their consideration of whether a non-molestation order is appropriate.

Clause 2 is completely replaced by a new, simple clause which states: (1) It is unlawful for a person to stalk another person. (2) A claim by a person that another person has acted unlawfully under this section may be made subject to a non-molestation order as defined in section 3(1)(b) below".

The phrase "non-molestation order" is not very elegant, but it is the phrase used in the Family Law Bill in that part which deals with family homes and domestic violence. As the Lord Chancellor pointed out to me, although the Family Law Bill uses a non-molestation order to relate only to somebody who has a relationship with the person who is being molested, by removing that relationship from the drafting of the Bill, the phrase "non-molestation" does have a useful meaning.

I do not think there need be any fear of the non-molestation order under this Bill being confused with a non-molestation order under the Family Law Bill because it can be referred to in respect of the Act of Parliament which is being used for the purposes of the order. So we have a simple Clause 2 which establishes that there is a right not to be stalked and the remedy for that is to secure a non-molestation order.

Clause 3 has been divided into more than one clause, so Amendment No. 4 refers to the whole "Act" rather than to the single section.

Amendment No. 5 extends the remedy from the magistrates' courts to the county court and the High Court because, again on the analogy with the Family Law Bill, those courts are appropriate for a non-molestation order.

A whole series of amendments removes the word "prohibitory" and replaces it with the phrase "non-molestation order".

Amendment No. 8 strengthens the requirement of a person who is being stalked to provide evidence that he is being stalked, rather than simply believing he is being stalked.

Amendment No. 9 removes the possibility that any other person acting on behalf of the applicant could seek an order and restricts it to a constable, employee of the Crown Prosecution Service or solicitor".

Amendment No. 10 re-words Clause 3(3) in accordance with the wording of Clause 42(1) and (3) of the Family Law Bill.

Amendment No. 11 removes subsections (4) and (5). There is a replacement for them in Amendment No. 14, which reflects Clause 42(2) of the Family Law Bill.

There is then a series of amendments changing the wording from "prohibitory" to "non-molestation".

I have already referred to Amendment No. 14.

Amendment No. 20, frankly, I do not understand, although I believe that the lawyers understand it. It provides that any relief which is available from a non-molestation order is not in replacement of a general tort but is additional to other tort relief.

Amendment No. 21 removes subsections (13) and (14) because they are replaced by the more detailed provisions of the new clause after Clause 3 (Amendment No. 22) and the new schedule to be placed after Clause 5 (Amendment No. 25). The new clause is called a breach of order clause. Again, it derives very largely from the Family Law Bill, with amendments as appropriate to remove the relationship between the applicant and the respondent. It provides, as the original Bill did not provide, adequate provision for the discharge of an order on application. Above all, it provides for powers of remand for breach of such an order. I am sure the Committee will agree that it is important that there should be proper provision for somebody to be remanded in custody if the order is breached. Otherwise, there is no real protection against stalking.

Amendment No. 23 removes the reference to a person acting under statutory or lawful authority because there is now no offence as such under the Bill. Amendment No. 24 provides, as is common, that the Act should come into force two months rather than one month after enactment. As I said, Amendment No. 25 is the new schedule about the powers of the High Court and the county court to remand. That is taken directly from the Family Law Bill. Finally, Amendment No. 26 makes the necessary amendment in the Title to remove the criminal element of the Bill as originally drafted.

I recognise that the Bill is very different from the previous Bill. But I am sure the Committee will understand me when I say that all the changes are solely motivated by the desire to provide for a civil procedure rather than the creation of a new criminal offence. It is my belief that it would be desirable for Parliament to enact this more limited legislation, even though the Government are now consulting publicly about the problems or opportunities for a criminal offence and even though the Government have given an undertaking, which I acknowledge, that they will introduce legislation to provide the criminal offence when the consultation is complete and when the lawyers have decided how to do it.

Much as we agree with the objectives of the Government and believe that they agree with us that these amendments and the Bill as amended would provide a satisfactory basis for the civil procedure provided for under the Bill, we feel that the Bill should be enacted now. No damage whatsoever is done to the prospect of further legislation under some more general criminal procedure Bill. Nothing is lost but a great deal could be gained by practical relief for those women who are being stalked at the present time, have no adequate relief in the courts and need to be reassured that the law is prepared to take the action necessary in order to protect them.

I suggest to the Committee that this is a fail-safe piece of legislation. It does not in any way conflict with the longer term objectives of the Government or indeed the longer term objectives which I stated and which in the other place Mrs. Janet Anderson stated. It provides immediate relief. I commend Amendment No. 1 to the Committee. I shall then commend to it the subsequent amendments.

3.45 p.m.

Lord Dixon-Smith

I shall commence what I have to say by congratulating the noble Lord, Lord McIntosh, on bringing forward this string of amendments, because there is not the slightest doubt that the consequence of their application to the original draft is to improve the Bill. I hope that it will be for the convenience of the Committee if I deal with the subject in the same terms as the noble Lord has already done. My remarks will be on the Bill as amended, as though these amendments already applied. In that way we shall save a deal of time.

When I spoke at Second Reading I had two concerns which still exist. The present law has in it remedies for the crime of stalking. Indeed, there is reported in today's press another case of stalking which has been successfully brought to court. There is no point in going over that ground. We have the Bill before us. The fact remains that, despite what the noble Lord, Lord McIntosh, has said, cases of stalking are successfully brought to court and people are prosecuted under the existing law.

The second point of concern which was raised at Second Reading, was that the Bill is deficient in its definition of the crime of stalking. I still have that concern about the Bill as amended. Clause 1 will now read—and the noble Lord, Lord McIntosh, has already read it— In this Act, 'stalking' shall mean engaging in a course of conduct whereby a person molests another person so as to be reasonably likely to cause that other person to feel harassed, and so forth. I dislike negotiation across the Floor of the Committee as to the meaning of words. But I wonder if the word "molests" is an appropriate definition standing in isolation as it does in this case. Even if we set aside the issues of child molestation and sexual molestation, all of which involve physical contact, the Oxford English Dictionary defines "molest" as meaning, cause trouble to; vex, annoy or put to inconvenience". We are in a situation where the wording of the Bill is in what I describe as a, "You know what I mean" phase. Indeed, the noble Lord, Lord McIntosh, said in his opening remarks that this matter can be left for the courts to define and decide. I am a naive layman, but I believe that that will provide an open door through which a flood of canny lawyers will wish to rush. My understanding of the workings of the Court of Appeal has always been that, when a matter is brought to it, it tries to interpret the intention of Parliament in the legislation. Here, we are saying that we do not have a particular intention and that we are going to leave it to the courts to decide. It may be that I am being pernickety, but I believe that we have here a circular argument which is dangerous.

I have one other point of concern. The new Clause 3 deals with the issue of non-molestation orders and the penalties that can be attached to them and so forth. Again, I believe that this route is to be preferred in every way possible to the wording of the original Bill. However, there is a difficulty. All too often the crime of stalking involves somebody who is likely to be unknown by name to the person stalked. One sees cases in which that causes an immense amount of trouble. A non-molestation order requires an application to the courts and it is for the courts to decide to apply such an order. Again, it seems to me that the courts will never apply such an order if they do not know to whom to apply it.

There has to be a way of resolving what is another circular situation. I do not know the answer to this one, but it seems to me that if the Bill as it stands requires the courts to do something which the courts will not do the Bill is deficient because it will not provide the protection which we should all like to see provided. Those are my two causes of concern on the Bill. As it now stands, it is vastly better, but I still think that it is deficient.

Lord Monkswell

In rising to support my noble friend Lord McIntosh of Haringey on what I am sure we all recognise is a rewriting of the Bill, I should like to make a few brief comments. First, we must thank my noble friend for the concise way in which he explained the impact of his amendments. They take forward the resolution of the problem which society faces, but I am sure that we all recognise that this does not completely resolve the problem. It is readily understood that at some stage there will need to be a criminal sanction mechanism for dealing with some of the stalking activities that take place.

The noble Lord, Lord Dixon-Smith, asked what happens if the person being molested does not know the identity of the molester. That is obviously an area where the police will need powers to make inquiries and to investigate what should be a criminal offence. We all recognise that we are not talking about that today, but that is something that will need to be done and I hope that the Government are actively pursing that problem.

The amendments address the most significant objections that were raised on Second Reading. The noble Lord, Lord Dixon-Smith, raised the prospect of somebody being "lifted" on the street on the basis of a complaint by an individual almost out of the blue. That caused a number of people some concern. I am sure that it was never the intention of the framers of the Bill that the provisions should work in that way, but that concern was raised and it has now effectively been addressed. My understanding is that instead of someone who is being molested going to a police officer and saying, "Arrest that man because he is molesting me", that person has to go to a solicitor and go through the legal process of going to court and seeking an order.

I am pleased that in his amendments my noble friend Lord McIntosh has seen fit to include what I would describe as "latest practice" in terms of the mechanisms which are enshrined in the Family Law Bill. That is a sensible way of going about things. Obviously, there will be that boundary, particularly where one reading of a case may suggest that it was a domestic situation but where, because there is no clear relationship between the two people concerned which can be picked up by the provisions of the Family Law Bill, there will be a grey area which these provisions address.

The concept of molestation rather than stalking fits better with our understanding of the English language. The word "stalking", for those of us who grew up a few years ago, has a different meaning from the one sometimes ascribed to it in relation to this subject and "molestation" is probably a better description.

The noble Lord, Lord Dixon-Smith, mentioned the latest case, which appeared on the front page of the Evening Standard today. It is worth pointing out that in that case there was evidence of criminal damage and that was the basis on which the police could act. We all recognise that there will be situations which need to be addressed which do not raise the problem of criminal damage and we need a mechanism for dealing with that area.

4 p.m.

Lord Dixon-Smith

I thank the noble Lord for giving way. I did not want to rake over all the ground of my Second Reading speech. There are other aspects of law which can be used for people who feel that they are being stalked. However, there was no point in going over that ground again at this stage.

Lord Monkswell

I recognise the point being made by the noble Lord, Lord Dixon-Smith. Indeed, there is general recognition that certain aspects of anti-social behaviour can affect individuals significantly yet there is no redress either through the criminal or the civil legal systems. That is what the Bill and the campaign seek to address. The Bill allows for the protection of individual members of our society who are being molested in a way that causes them great distress, but yet is not recognised by either the criminal or civil legal systems, and enables them to resolve those problems.

I hope that we do not go on for too long today because it is late in the afternoon. I make two final points. First, I hope that the Government recognise that my noble friend Lord McIntosh of Haringey has done a sterling service both to Parliament and the country in bringing forward this Bill and these amendments. Secondly, I sincerely hope that the Government will feel able to welcome the amendments and will give us some intelligence as to how soon they may be able to bring forward the necessary legal changes to institute the criminal sanctions needed to deal with the problem.

The Earl of Courtown

My noble friend the Minister made clear on Second Reading that the Government fully share the concern which has led the noble Lord, Lord McIntosh, to bring forward his Bill. Stalking can be a terrible scourge on the lives of its victims and the Government are determined to see that decisive action is taken to deal with it. But it is important that the remedies adopted should be the right ones, and should deal as comprehensively as possible with the phenomenon of stalking in all its forms, without at the same time unwittingly catching legitimate activities which ought not to be the subject of legal sanction.

The noble Lord, Lord McIntosh, eloquently explained the purposes of his amendments. I am sure the whole Committee is grateful to him for the efforts he has made to render his Bill an effective measure for dealing with this problem. He proposes, as he explained, to remove all vestiges of the previous criminal offence, and rests his whole response to the problem on a civil "non-molestation" order. He explained that his proposals are closely modelled on those in the Family Law Bill.

I am also glad to hear that my noble and learned friend the Lord Chancellor has been of such assistance to the noble Lord, Lord McIntosh of Haringey, and I am sure that the whole House will be grateful for the wisdom that he has been able to bring to bear in this difficult area. I understand that it is his view that, although some manifestations of stalking may be successfully dealt with by the civil law approach advocated by the noble Lord, there will be serious manifestations of the problem which may come up. He has made it clear that the Government's view is that this is an area in which a period for consultation is necessary before legislation is brought forward and that this should include consideration of ways of dealing with other manifestations of the problem.

The noble Lord has clearly striven hard to find the right solution, and I hope the Committee will not feel that I am being churlish when I say that, in the Government's view, the Bill is not the complete answer.

There are broadly two reasons for that. In the first place, we remain convinced that there must be criminal sanctions, as well as a civil remedy. It is true that we had very considerable reservations about the terms of the criminal offences contained in the Bill as introduced. That would clearly have gone far too wide, and would have caught perfectly legitimate activities. It is also true, as my noble friend the Minister emphasised on Second Reading, that we attach great importance to seeing that any new criminal and civil remedies fit properly with each other. That remains vital, in our view. But of the fact that we need criminal offences the Government are in no doubt whatsoever.

On its own, a civil remedy, however carefully constructed, simply would not meet all the instances in which the law may need to intervene. We must have a vehicle to hand for the victim to seek help right at the start. There must be an immediate basis upon which the police can become involved, which, in the absence of a clear criminal offence, would be difficult. Equally importantly, there needs to be a means of dealing with the anonymous stalker, as noble Lords have said—the stalker whose identity is not known to the victim. Usually the victim will know the stalker, because a relationship of some kind will have existed between them, even if they have simply been work colleagues. But that will not always be the case. It would not be an adequate response to the problem for the victim to have to wait until the stalker had identified himself in some way, before she could go to court for an order preventing further molestation. And it cannot be right, even where a civil order is subsequently made, that the initial act of persecution and intimidation should remain unpunished. There may well be instances of stalking where the nature of the acts perpetrated demands a criminal penalty on grounds of retribution and deterrence. I understand that the honourable Lady who introduced an equivalent Bill in another place expressed the very strong view that a civil remedy on its own would not be a sufficient response, and I respectfully agree with her.

I said that there were two reasons why the Government remain unhappy with the noble Lord's Bill as he proposes to amend it. The second, equally important, consideration is that there must be an opportunity for all concerned with this problem to express their views on the possible solutions, before we move to set them in legislative stone. This is a difficult problem, and there are no easy solutions. It is perhaps significant that, when the honourable Lady's Bill was first introduced in another place, two of the organisations which have been campaigning on this issue took radically different views about the acceptability of the solutions offered.

We need proper consultation on the options, and that is what the Government have declared they will do. My right honourable friend the Home Secretary has undertaken to come forward with comprehensive proposals for addressing the problem of stalking, and I understand that he hopes to do so very shortly. That will give an opportunity for all concerned to express their views on the solutions on offer, which will, as I have implied, entail a combination of criminal and civil remedies. The distinction, and the links, between them are vital, which is why we cannot proceed with one element of the package without considering the other.

It would be quite wrong to suggest that the Government are dragging their feet on this matter. We are determined to make rapid progress, and to do so in the most effective way possible. We should not underestimate the extent of the problem we have to solve, however. Some commentators have instanced the fact that some other countries have legislated against stalking, as a sign that ready-made solutions may already be to hand. I wish it were so simple. The fact is that, although some other countries do indeed have laws specifically to deal with this issue, the content of those laws deals, for the most part, with behaviour which is already a criminal offence within our own law. Either that, or they are cast in terms which would, if translated as they stand into English law, make it difficult in practice to prove commission of the offence. We want to do better than that, and to find provisions which will really fill the gaps that have been exposed in the present law. The attempts by other countries are interesting, but they do not get us very far.

I have spoken at some length on these amendments, because what I have said here reflects the Government's view on the whole package proposed by the noble Lord. We respect what he is attempting to do, and we shall want to reflect in our consultation document on his proposals and the comments made in the course of this debate. We cannot support legislation at this stage. But we are determined to tackle the problem, and to do so quickly.

Lord McIntosh of Haringey

It seems to me that on almost all the important issues that we have debated today all of us are in agreement. Perhaps I may deal first with the points made by the noble Lord, Lord Dixon-Smith, and then refer in particular to the Government's response.

The noble Lord wondered, as he said, as a naïve layman—I too am a naïve layman—whether the words "molestation" or "non-molestation" were sufficiently precise. I wondered about that too, but having looked at the Family Law Bill, which uses the same words, and having had the benefit of discussions with the noble and learned Lord the Lord Chancellor, I am convinced that to have something which is not yet fully defined and which would have to be defined by the courts would be an advantage. It would enable action to be taken and case law to build up a dossier of examples of molestation which could properly be pursued in the courts without attempting, as the original Bill attempted perhaps in far too much detail, to define every element of an activity which combines lawful and unlawful elements. That is why, as in the Family Law Bill, which I understand has passed all its stages but not yet received Royal Assent, Parliament has indicated that the phrase "non-molestation" without further definition is not only possible but advantageous.

The noble Lord went on to say that the Bill does not deal with the problem of the unidentified stalker. Of course, he is right. That is one of the issues which would have to be dealt with by bringing the police in at an early stage and would almost require the criminal sanctions which I believe we all want.

The noble Lord's third point was that there are other laws which can deal with some cases of stalking. Again, he is right, but the Government agree with me that those laws are not adequate; otherwise the Government would not have issued their toughly worded press release on 11th May which, as the noble Earl, Lord Courtown, said, stated that something has to be done urgently. I am not suggesting that we go all the way. I am saying that the Bill goes a lot further than the existing legislation and makes action against stalking in a considerable number of cases more possible.

Of course I am disappointed by the Minister's final conclusion. However, I am very much encouraged by many of the other things that he said and in particular what he did not say. He did not criticise the wording of the Bill as it would be, amended. Therefore I am encouraged that the Government believe that, if we are not 100 per cent. there, we are nearly there in terms of the answers to this stage of the problem. The Minister went on to say that this is not the complete answer and it does not meet all the instances which arise. Again, he is right. It does not claim to do that. What we claim to do is to make an improvement on the present law.

I really must reject the Minister's final points. He said that it is necessary for consultation to take place before we proceed with legislation. I repeat the point that I made at the beginning; that nothing in the Bill pre-empts any legislation on a criminal offence. No damage is done to the consultation procedure or to the final solution which may emerge as a result of that consultation procedure.

The Minister went on to say that links are vital between the two. If they are, and I rather doubt it, those links can be provided when the criminal offence itself is defined at some later date. The provisions in the Bill are free-standing. They are modelled on the Family Law Bill, which has received the approval of Parliament. They stand up in their own right as a positive contribution to the protection of women who, as the Minister rightly said, suffer the scourge of stalking. I commend all the amendments to the Committee and I now commend Amendment No. 1.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 2: Page 1, line 22, leave out from ("persons") to end of line.

On Question, amendment agreed to.

Clause 1, as amended, agreed to.

Clause 2 [Offence]:

Lord McIntosh of Haringey moved Amendment No. 3: Leave out Clause 2 and insert the following new Clause—

    cc1203-4
  1. STALKING TO BE UNLAWFUL 442 words
    2. cc1204-5
  2. BREACH OF ORDER 852 words
  3. SCHEDULE
      4. cc1205-6
    1. POWERS OF HIGH COURT AND COUNTY COURT TO REMAND 711 words