§ 6.28 p.m.
§ The Lord Chancellor (Lord Mackay of Clashfern)
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.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (The Viscount of Oxfuird) in the Chair.]
§ Lord Thomas of Gresford moved Amendment No. 1:
§ Before Clause 1, insert the following new clause—
§ IDENTIFICATION ORDER
§ (" .—(1) If a complainant has just cause for distress, apprehension or fear from a course of conduct pursued by any other person, the complainant may make a complaint to a justice of the peace and may appear before the justice for that purpose.
§ (2) The justice may, after hearing the evidence of the complainant, make an identification order which—
- (a) requires a constable to take a photograph of the person to whom the identification order relates or to cause such a photograph to be taken; and
- (b) requires that person—
- (i) to go to a specified police station at a specified time of day or between specified times of day, in order to have his photograph taken, and
- (ii) to give particulars of his full name, address, date of birth and occupation to a constable.
§ (3) If the person to whom the identification order relates fails to comply with an identification order, a constable may arrest him without warrant in order that his photograph may be taken.
§ (4) The court may on the application of a person to whom an identification order relates—
- (a) discharge an identification order; and
- (b) order the destruction of any photograph which may have been taken and the deletion of any particulars given under subsection (2)(b)(ii) of this section.").
§ The noble Lord said: I am sure that Members on all sides of the Committee are determined to seek the best solution for a persistent and serious social problem. In moving the amendment, I shall speak also to the amendments grouped with it which cover a very wide 512 area. I hope that Members of the Committee will forgive me if I take a little time in dealing with so many amendments in my address.
§ I outlined my broad criticisms of the Bill on Second Reading. But it is necessary, first, for me to look at the provisions of the Bill in more detail. I shall follow that by outlining, perhaps more constructively, an alternative framework which I commend to the Committee in the hope that it provides a better solution to the problem than that contained in the Bill. Unhappily, the Bill was rushed into the legislative programme and received very little proper consideration and very little proper critical appreciation in another place. I must express my gratitude to the noble and learned Lord the Lord Chancellor and to Home Office officials for their consideration and criticisms of my original proposals.
§ Any scheme must take into account a number of matters. First, that the matters of which complaint is made are likely to be otherwise lawful actions on the part of the offender—that is to say, the stalker. For example, walking along the street, standing outside someone's house, sending gifts through the post, telephoning, pestering, and so on, tend to be lawful actions. If the actions were not lawful, there would be no need for legislation. Aggressive behaviour can be dealt with under the ordinary law of common assault, which is frequently defined as a "putting in fear".
§ We start off by dealing with lawful actions. Any new law which is introduced to deal with the problem is to be measured not by the intention of the offender but by the effect of his conduct on the victim. Therefore, an offender may be doing something which is entirely lawful, without intending harm or insult or to cause fear or apprehension. Indeed, he may be behaving in what I described on Second Reading as a "Freddy" syndrome—in other words, believing that his advances are welcome to the person whom he is addressing. We must hesitate before criminalising such activity.
§ However, the prime object of such legislation must be to protect the victim. If there is a balance to be struck, it is a balance which must be weighted towards ensuring that people can live their lives unmolested. Whatever framework is adopted by the legislation, it is highly desirable that it should be accessible and that people should be able to obtain a remedy. It should also be accessible in terms of speed, of simple procedures and of cost.
I turn now to my more detailed criticisms of the Bill. The scheme under the Bill creates four separate offences, each of which is to be pursued in slightly different ways. Harassment in Clause 1 is defined as,
a course of conduct which amounts to harassment".
That is not much assistance to a potential offender in knowing how to govern his actions. Then, as regards actions, the Bill refers to action,
which he knows or ought to know amounts to harassment".
Moreover, Clause 1(2) states that he ought to know that it is harassment,
if a reasonable person in possession of the same information would think the course of conduct amounted to harassment".
So, I repeat,
a reasonable person in possession of the same information",
as the offender—that is to say, the stalker.
§ Is it harassment if a victim is possessed of a vulnerable personality or is ill, disabled or lives alone or in vulnerable circumstances that the offender does not know about? Is it harassment if he does not have the information that the person concerned has that vulnerability? Nevertheless, his actions are to be judged by a "reasonable person" with his knowledge, according to Clause 1, and not simply by the effect of his conduct upon the victim.
In Clause 1(3) we see that there is reference to the fact that harassment,
does not apply to a course of conduct if the person who pursued it shows",
among other things, that,
in the particular circumstances the pursuit of the course of conduct was reasonable".
In other words, there is a statutory defence to harassment if the offender can show that in the particular circumstances,
the course of conduct was reasonable".
One only has to introduce words like "reasonable"—that is to say, what is reasonable and what is not—to observe that there is a huge area for argument and that court cases will be much prolonged by such discussions.
§ Clause 2 creates a summary offence of harassment so there is an attempt to criminalise the conduct complained of immediately. If you are guilty of harassment, then you are guilty straightaway; in other words, there is no intermediate stage. You have committed an offence and, although you may have believed that what you were doing was, first, lawful and, secondly, reasonable, objectively it was not.
§ Clause 3 introduces the civil remedy of injunction and compensation and the provision which orders counselling. Once criminal procedures are brought in, the victim will have to consult a solicitor, apply for legal aid, take time to start proceedings, serve the proceedings and will then have the problem of enforcing them. That is coupled in Clause 3 with the offence of breaching the injunction which is triable both ways. It means that for breaching an injunction which has been found on a civil standard of proof to be appropriate, a criminal offence has been committed.
§ However, what does not appear in that clause is the fact that the defendant can argue the Section 1(3) statutory defence. The criminal court would presumably be bound by the finding of the civil court made on a lower standard of proof. Therefore, under Clause 3, when the defendant who faces gaol comes to court for breaching an injunction, which has been obtained under the civil standard of proof, he is no longer able to argue that his course of conduct was reasonable. That is a defect which must be addressed, even if the scheme as set out in the Bill is maintained.514
Clause 4 creates a further criminal offence; namely, that of,
putting people in fear of violence",
with the statutory defence of what is or what is not reasonable being resurrected. Under the provisions of Clause 4, the defendant is entitled to argue that the pursuit of his course of conduct was reasonable,
for the protection of himself or another or for the protection of his or another's property".
So a fresh consideration comes into play.
§ Clause 5 introduces a restraining order after conviction—that is to say, a conviction that is made in the Crown Court or the magistrates' court under Clauses 2 or 4. In Clause 5 the court will stipulate the prohibited conduct. For example, if someone breaches the restraining order made after conviction he will have committed a further offence triable both ways by doing anything which he was prohibited from doing. Again, it is no longer an issue as to whether or not the offender's course of conduct was reasonable because the court has determined that it was not.
§ The point that I wish to make is that, even if one looks at the scheme as it appears in the Bill, there are weaknesses and flaws about the way that it is put together. Sometimes there is a statutory defence; sometimes there is not. The mixture of civil and criminal proceedings is unprecedented and will make it difficult for people to obtain remedies.
My amendments propose a simpler scheme altogether, and what I hope the Committee would regard as a constructive use of the civil and criminal jurisdiction of one court, that is to say, the magistrates' court. Subsection (1) of the proposed new clause in Amendment No. 1 refers entirely to the effect upon the complainant of the course of conduct of that other person. Subsection (1) of the proposed new clause states:
If a complainant has just cause for distress, apprehension or fear from a course of conduct pursued by any other person, the complainant may make a complaint to a justice of the peace and may appear before the justice for that purpose".
There we have not a definition of harassment but a reference simply to the effect upon the victim of the course of conduct that the other person has carried out. Harassment is avoided; arguments as to what is or is not reasonable are avoided. It is left to the good sense of the justice to whom the complaint is made to decide whether the matter before him requires his intervention. There is nothing new in putting such a matter in the hands of a justice of the peace. Historically this has happened over centuries. Historically a justice has determined whether to act in his preventative role whenever he has feared a potential breach of the peace. These provisions and the problem we are concerned with here are not far from the breach of the peace position.
§ The rest of the proposed new clause in the amendment deals with what I have termed an identification order. There is a considerable problem with stalkers in that their identity is frequently not known. It is not possible for an individual person readily to find out who the person is who is following, pestering or telephoning that individual. There is a need to 515 identify at an early stage who is responsible for the problem and, if necessary, to check that person by getting the police involved right at the beginning. The purpose of the identification order is, first, to identify the stalker; secondly, to involve the police at the beginning of the proceedings—which is not possible with a civil injunction; and, thirdly, to provide a statutory power of arrest of that person. The purpose of that arrest is not to bring the person before the court for the purposes of a criminal charge but for the purposes of taking a photograph and requiring that person to identify himself. This is not a matter of creating a criminal offence. It is a case of a policeman saying to someone, "A complaint has been made against you. You will come with me to the police station. I will take your photograph and get your particulars", and that is the end of it. If the stalker refuses to do that, a police officer is given a statutory power of arrest. That is not unprecedented. For example, if a person fails to take a breathalyser test he can be arrested and taken to a police station for the purposes of obtaining that test. Similarly, as regards an exclusion order relating to football hooligans, there is a similar problem of identifying who a football hooligan is. In that case a person can be arrested, a photograph can be taken and he must provide his identification.
§ The benefit of an identification order is that a person who has a complaint also has a quick remedy. The order can be made on the evidence of the complainant alone. The stalker can be warned about his conduct. There is protection for him in that he may apply for the order to be discharged if he has been wrongly accused. However, most important of all, at the stage of the identification order—when all that has been required of him is that he has his photograph taken and that he provides particulars of himself—his activities are not criminalised. He is not gaining, or adding to, a criminal record by having an order of this sort made against him. That is a first check to a person who is engaging in activity that causes fear, distress or apprehension to another person.
The second proposed new clause suggests a second step. If the identity of the stalker is known, this is perhaps the first step. The magistrate may proceed in his civil jurisdiction to make a harassment order. That is the second sort of order that these provisions set out. As regards a harassment order, the justice in the ordinary way in answer to a complaint will issue a summons for the person who has been identified, or who is known, to attend before him in a magistrates' court. Having heard the case and having heard evidence on both sides, the justice makes a harassment order as defined in the third proposed new clause. That harassment order can provide that the defendant desists forthwith from such conduct as the court specifies. The harassment order further provides that the defendant can be,
restrained from any conduct likely to cause distress, apprehension or fear to the complainant; he restrained from entering into or remaining in any area for such period as the court shall specify; be hound by a recognizance to attend such course of counselling".
The latter provision is at the magistrate's discretion. He may order such a course of counselling if he thinks it is appropriate. Finally, the defendant can,
pay compensation to the complainant".
There is nothing in the Bill as drafted which provides for the payment of compensation.
At this stage the magistrate can order that compensation be paid in such amount as he considers to be appropriate, having regard to,
any evidence and any representations that are made
to him. The harassment order will have effect,
for a specified period or until further order".
Again, there is a protection in that the person against whom such an order has been made can—on giving undertakings and upon payment of costs, or whatever seems to be appropriate to the magistrate—go to court and ask for the order to be discharged.
§ Again, however, even the harassment order does not turn the stalker into a criminal. As I said earlier, he is essentially doing something that in ordinary circumstances would be lawful and which he may not believe to be causing distress. He may believe that his actions are welcome. However, he is given a warning by a harassment order right at the beginning. He is warned that his conduct is unacceptable and that he must desist from it. It is only at that point that he becomes liable to criminal proceedings, not as under Clause 2 of the Bill as drafted where he becomes liable to such proceedings right at the beginning. However, having received a warning through the identification order and through the harassment order, the criminality provision comes into play only if he with sheer determination and intention breaches that harassment order and does something which he is prohibited from doing.
The fourth proposed new clause in the amendments creates a single criminal offence which is similar to the offence created in Clause 5 of the Bill of breach of a restraining order. It is of a similar nature. Under the fourth proposed new clause a criminal offence is occasioned by a defendant doing anything,
which he is prohibited from doing by a harassment order".
Therefore if a defendant follows any course of conduct which the justice has thought serious enough to include within the harassment order and which the defendant is prohibited from doing, he commits a straightforward criminal offence. That straightforward criminal offence can be dealt with either on summary conviction by imprisonment, or by a fine or conviction on indictment. Instead of having four offences, as the Bill has, these amendments, in the framework which we are advancing, create the single offence of breaching the harassment order. It is at that point that criminality comes into it.
§ There is provision in the Bill as drafted for a statutory tort, a civil wrong. All that is unnecessary. If the courts want to develop a tort along those lines no doubt the courts can do so. If they wish to leave it to people to sue in the civil courts, let the courts develop a civil wrong of that kind and give damages and remedies within the civil courts. But litigation is so expensive and slow that it is not an answer to the specific problem that we seek to address in the Bill.
§ I put forward a framework of ready access to a remedy. It is a framework which does not instantly turn a person into a criminal but gives him one or two warnings about his conduct, identifies him, involves the 517 police at an early stage, and enables him to check his conduct before he gets into the criminal courts and finds himself threatened with imprisonment.
§ Members of the Committee will be glad to hear that the remaining amendments are consequential and I do not propose today to address the Committee at length on them. Today we observe in the press the dreadful tragedy relating to Billie-Jo Jenkins which took place recently in London and which is put down to the possible acts of a stalker. It is a problem which is very real and close to us at this time. I ask Members of the Committee to address the issues with all the concern that I know they will feel. I beg to move.
§ Lord McIntosh of Haringey
The noble Lord will know that I paid great attention to his serious and lengthy speech at Second Reading. In so far as a non-lawyer could follow the argument, I was impressed enough to withdraw my agreement that the Committee stage should take place in the Moses Room in order that we could have the debate that we now have. I would not wish for the noble Lord's amendments not to be considered seriously and, if necessary, at length.
We saw the amendments for the first time on Thursday. I have been able to take some advice on them. The conclusion I have reached is that they do not meet the needs of the Bill; and they certainly would not meet the needs of the case to which the noble Lord referred in closing—the case in Hastings of Billie-Jo Jenkins.
As Members of the Committee may know, last summer I was involved in a marginal way in the development of the thinking on legislation against stalking when I introduced Janet Anderson's Bill in this House as the Stalking (No 2) Bill and, after discussion with and on the advice of the Lord Chancellor, amended it to follow that part of the Family Law Act which was in turn derived from the Family Homes and Domestic Violence Bill. I took the view that the most important point was to establish the civil law position with an offence of breaching an injunction under civil law. But one had to recognise that that did not deal with the problem of the unidentified stalker. For that reason, I follow the logic in this Bill that in addition to the civil law procedures one has to have a more direct criminal route to deal with unidentified stalkers. In that sense I have followed the logic underlying the Bill, having known its ancestry and having understood why various alternative routes were not practicable.
However, the noble Lord, Lord Thomas of Gresford, now proposes a totally different route. He proposes a route which relies on the potential victim, the alleged victim—we cannot say "the victim" without pre-judging the issue—to take all the steps which appear to be necessary to deal with the stalking that is causing harassment. I do not think that the noble Lord would deny that the amendments produce a completely new Bill which applies to England and Wales. Another new Bill would have to be written for Scotland if the amendments were agreed to. If one follows the logic of the noble Lord's Bill, the victim would have to make repeated court appearances. First, the victim would have to seek the additional identification order and, if required, a summons for harassment order application.
518 Then, if the person to whom the order relates applies to discharge the identification order and to have the photograph destroyed, the victim (I call him or her that for the sake of simplicity) would have to take responsibility for opposing the application. Then he or she would have to appear on the hearing of a summons for a harassment order, then on a subsequent hearing of any application which the defendant might make to discharge the harassment order, and on the subsequent occasion or occasions when the defendant is alleged to have committed any defence under the harassment order. That is an extraordinarily long drawn out and repetitive procedure in which the victim has to take the initiative on all occasions. Even if that were not the case there is still no immediate sanction for the serious, urgent case.
Let us consider the case of Billie-Jo Jenkins to which the noble Lord referred. We now learn from the evening papers that it is likely that she was stalked for some period of time. In order to stop that, and to stop the stalking reaching the extent of murder, as it did tragically over the weekend, Billie-Jo Jenkins and/or her family would have had to go to the courts, first, for an identification order because they did not know and do not know who the person is. Then the police would have pursued that person and demanded that he be arrested and taken to the police station to have his photograph taken. Then there would have to be a further application for a hearing of the summons for the harassment order. By that time Billie-Jo Jenkins is dead. I cannot see that the noble Lord's procedures deal with the urgent need.
The procedure which the noble Lord proposes in the amendments involves repeated use of court time, repeated and unnecessary use of police time, copious record keeping and repeated legal costs. With the best will in the world, I do not believe that that is a route on which the Committee should embark.
§ Baroness Elles
Perhaps I may respond briefly to the opening statement by the noble Lord, Lord Thomas of Gresford. One specific aspect is of concern to me. In the amendment, subsection (2) of the new clause states:The justice may, after hearing the evidence of the complainant, make an identification order".But that must assume that the complainant knew the identity of the person who had been stalking him or her. I do not see how that can work in practice. If the identity is not known, clearly a justice cannot make an identification order which requires a constable to take a photograph of some particular person. From a practical point of view, I simply do not understand how this proposal would work.
§ 7 p.m.
§ Earl Russell
As the Committee will know, I have tabled a number of amendments which must fall if these amendments are accepted. I should never be more delighted to see amendments of mine fall than in this case.
I shall not rehearse the concerns I had about the original draft. It would mean repeating my Second Reading speech, and I shall not detain the Committee 519 with that. But it seems to me that my noble friend, with great elegance, has solved all those difficulties. He has dealt with the problem of defining the offence; the offence is now simply a breach of the harassment order. He has dealt with the risk which existed under the original Bill of convicting an innocent person. Should the harassment order be used against somebody who was not a suitable target for it, it is no skin off one's nose to be restrained from doing what one did not want to do anyway. Also, there is the vital point that the order will not in any way count as a criminal record.
I exercised my mind very greatly before Second Reading to try to find a way in which, in dealing with conduct that is not otherwise unlawful, we could sort the innocent sheep from the guilty goats. My noble friend has found that way. He has made them self-selecting. I see very little risk under the amendment of any conviction of the innocent. That is vitally important.
The noble Baroness, Lady Elles, raises a serious difficulty. However, it must be a serious difficulty in the way of proceeding by any route against this conduct. There must always be a problem in identifying a person until you can point at him or her. I imagine that the only way in which that could be done—as must be true under the existing Bill quite as much as under my noble friend's procedure—is that a constable would have to be around with a camera and take a photograph when the person appeared. The victim—or as the noble Lord, Lord McIntosh of Haringey, said, the "alleged" victim—indicates that is the person who is concerning him or her. I do not see how else it could be done. However, I do not see that the difficulty is any worse under my noble friend's procedure than it was under the existing Bill, because the person must be identified whatever procedure is used.
The noble Lord, Lord McIntosh of Haringey, mentioned the Billie-Jo Jenkins case. There, the procedure of the identification order would have been absolutely right. It could well have saved life. She appeared to have been aware for quite some time that someone was following her and could have got a constable or somebody at the school to identify him. It has even been suggested, although I do not put too much weight on suggestions in the press, that such a photograph might have led to the identification of the criminal in several other crimes. So an identification order in this case might have done a great deal.
I take the point made by the noble Lord, Lord McIntosh of Haringey, about the need for the victim to make an appearance. But after all, if the offence is being defined—as under my noble friend's amendment it is, and as I believe it should be—in terms of distress caused to the victim, only the victim (or alleged victim) can say that that distress has been experienced. It is a necessary part of the procedure. I do not see how you can get out of it.
In these cases, and very much more so in rape cases, it is a gross hardship to the victim to have to go through the procedure that is necessary for justice to be done. The problem is that, in justice, one must have regard to the interests of both parties. I do not see how that 520 hardship can be avoided if we are to try to get the matter right. It is a regrettable feature of a serious attempt to get at the truth. All good things have some sad part admixed with them. That that is true of my noble friend's amendment simply means that it is in the real world and is grappling with real problems. I very much hope that the Committee will see fit to agree to it.
§ The Lord Chancellor
My Lords, there is no doubt that the problem with which the Bill deals is a real problem. That is accepted on all sides. Indeed, references made this evening suggest as much. It is also an urgent problem. There is evidence that these are matters that do take place and this House and another place have a responsibility to deal with them. The Bill presently before your Lordships has been developed from the practice in relation to domestic violence cases whereby an order may be tailored to the precise circumstances of the case and then criminal penalties follow.
The difficulty about that approach is the fundamental one that it may not be known who the offending person is. A great number of different techniques are used in stalking; in many of them the identity of the person doing the stalking is not disclosed.
The noble Lord, Lord Thomas of Gresford, was kind enough to discuss his scheme with me before he invented the order in the first amendment proposed. I noted him as saying in his introduction to the amendment that a constable would approach the person once an identification order was made and say: "A complaint has been made against you. Come along to the police station so that I may have the right to photograph you so that matters can continue". The noble Lord pointed to the fact that that can happen in relation to the breathalyser. A person may not have committed an offence, but, if he declines to take a breathalyser test, he commits an offence in respect of which he may be arrested. It applies also to the football hooligan where there is a suspicion that he committed a crime.
The point is that the complainer in most of these cases will not be able to say who the subject of the complaint is. So there is no question of a constable being able to say, "A complaint has been made against you". The precise point is that he does not know. I have concluded that the only reason criminal procedures are required is in order that that matter should be overcome, because a constable does have power to arrest somebody in respect of a reasonable suspicion that he or she has committed an arrestable offence.
It is fundamental that we get this matter right. So far as I can see, the new clause in Amendment No. 1 does not attempt to deal with it at all. I cannot understand how it is supposed to work in practice. I entirely share the difficulty expressed by my noble friend Lady Elles in that respect. The amendment treats the order made by a magistrate on first application as if, miraculously, it had the effect of identifying the person whom the complainer cannot identify. Where does that sudden light come from to identify the person in question? It does not give the policeman any power of investigation or anything of that sort. The policeman is merely supposed to arrest the person who is the subject of the 521 order, unidentified, and then bring him or her to a police station to be photographed. That is the fundamental point; the amendment simply does not work.
The noble Lord had some criticisms of the Bill. I do not know whether I need to deal with them in any great detail. For example, he said that there is no defence to the criminal charge in respect of a breach of the injunction. So far as I can see, in his criminal offence there is no defence to a breach of the order that the magistrate has made.
The second point in that regard is that the magistrate's order would need to have some sort of jurisdiction. The nature of that jurisdiction is completely undefined. That is one of the problems that exists in relation to the present power to bind over, one of the reasons why the Law Commission suggested in their report that it should be abandoned and why it is under attack in Strasbourg. If a person refuses to be bound over, he or she is subject to penalty; if there is no definition of what it is that a person is bound over to do, there is a serious erosion of civil rights. The proposal is imaginative but I believe that it is not one that would work effectively.
The noble Lord seeks to keep all harassment proceedings in one court but at the expense of having damages claims in the magistrates' court, whereas almost universally in consultation it was thought that that matter should not be in the magistrates' court.
The reason why the Government's Bill contains parallel jurisdictions is that it is built on existing practice but deals with the point that a victim would not necessarily know the source of the course of conduct in question. The idea that just cause is itself sufficient without further definition to avoid legal argument would, I believe, be belied by the noble Lord's experience. I do not believe that that phrase is any more immune from the ingenuity of our colleagues in the legal profession than is the phrase that we have used in the present Bill.
There are no specific defences in the noble Lord's proposals for the good reason that there is no specific basis on which the order can be made. That is the inherently unjust and difficult foundation on which his proposals rest.
Those concerned with the matter of stalking point out that harassment can occur without the victim ever seeing the person carrying out the behaviour and having no opportunity to see the person. Sometimes the person eventually discloses himself or herself but it may go on for some time without that happening. I can, if necessary, give a number of examples of that but it may be that your Lordships would prefer to accept it without my doing so.
If the noble Lord's proposals were proceeded with, the police would require to be given powers which they do not have at present in order to deal with this, powers which rest on either evidence of, or reasonable suspicion of, the commission of a criminal offence. Here the police are invoked for the purpose of giving help to one party in what is essentially a civil dispute. It is the fundamental point that I have made which is my main difficulty with what the noble Lord is proposing, subject 522 to the point that it is highly doubtful whether the bind-over provisions on which his submissions are founded will survive. It is difficult to say, but they are under substantial attack at present and the Law Commission took the view that they should be taken out of our law.
That is as much as I can offer your Lordships at the moment except to say that this is a completely new scheme. We consulted on a scheme. It would have been a little easier for me to ascertain the practical outworking of the proposals if I had had an opportunity, for example, to consult with the police authorities and similar bodies about how this proposal might work. If we are to reach a solution to the problem now, I believe that the proposals outlined in the Bill are the way forward—without prejudice, of course, to consideration of other amendments put forward by noble Lords.
I would invite the noble Lord, in the light of what I have said, to reconsider his proposals.
§ 7.15 p.m.
§ Lord Thomas of Gresford
Perhaps I may deal with some of the points that have been raised; first with those raised by the noble Lord, Lord McIntosh of Haringey.
There is no difference between the number of attendances required by a complainant under my proposals and under the proposals contained in the Bill. In the Bill as drafted it is necessary for a victim to make a complaint. The complaint would be made to the police because the complainant, the victim, would be saying to the police that a criminal offence of harassment had been committed and she would therefore attend at a police station to outline her case. Under my proposals the only difference is that she attends before a justice—not that she is faced by the stalker for an identification order to be made but that she attends personally and explains to the justice what it is that is concerning her. If there were then to be criminal proceedings under Clause 2 of the Bill, she would presumably be the main witness for the prosecution and would therefore inevitably be drawn into those criminal proceedings.
If she were to pursue an injunction as a civil remedy, the civil proceedings would have to be served upon the person who was causing the problem and under the Bill there would then be an attendance before a judge for an injunction to be granted. If the offence was committed under Clause 3(4), the offender having committed the offence of breaching the injunction, the lady would be back in court to prove that.
The position is similar with Clauses 4 and 5. Clause 5, which deals with the restraining order made after the first set of proceedings, envisages a further offence and a further attendance of the victim before the court.
I very much regret the fact that people have to go to court to give evidence in sensitive cases which may cause them a great deal of distress. My point is that no more attendances are required before a court in the presence of a stalker under the clauses which I have drafted than under the clauses set out in the Bill.
§ The Lord Chancellor
Before the noble Lord passes from that point, I think it is fairly plain in Clause 5 of 523 the Bill that the restraining order is made as part of the decision consequent on the proceedings. It is a not a separate attendance in order to obtain a restraining order, as I understood the noble Lord to suggest a moment ago.
§ Lord Thomas of Gresford
I am most grateful to the noble and learned Lord the Lord Chancellor. However, I was not thinking of the making of the restraining order but the offence under Clause 5(5) which deals with the case where the defendant does something which he is prohibited from doing by an order under Clause 5. Further proceedings are envisaged for a breach of the restraining order—not the making of a restraining order—at a subsequent time. My point is that that is one further attendance by the victim in order to say that the restraining order has been breached, similar to the position with the breach of the harassment order which I have suggested in my amendments.
I now move to the very difficult problem of identification. It does not make any difference what procedure is adopted; there will always be a problem in identifying the stalker. The scheme adopted by the Bill is that, if it is not known who the person is, a policeman will arrest a suspect. One way or the other he will find out who is the suspect, presumably by involving the victim. The victim has to provide details of the suspect. I fail to see what difference there is between a complaint to the police of a criminal offence under Clause 2 of the Bill so that the police arrest a suspect and a complaint to a justice whereby the best particulars of the person are provided to the police who effect an arrest or execute an identification order.
I take the point made by my noble friend Lord Russell. If one had an identification order where a stalker had been photographed and forced to give his particulars then in some of the cases one knows about, particularly that to which the noble Lord, Lord McIntosh, referred, there would be a photograph of the suspect on police files before anything worse happened. Further, the making of an identification order, the taking of a photograph and the identification of the individual would instantly put a check on his activities without necessarily turning him into a criminal.
Clause 2 of the Bill creates the offence of harassment, which means that the first step that is taken—at that stage one does not know the identity of the person—is to criminalise the activity. It may be lawful. If it is not lawful he may be arrested for other reasons. He may be standing on a street corner, posting something through a letterbox, sending gifts or making telephone calls. There is nothing illegal about that. But under the Bill that would be turned into an offence and he would be turned into a criminal with a criminal record. I am trying to push back the criminalisation of that conduct by the making of an identification or harassment order and checking that person's activity at an early stage.
I turn to the point made by the noble and learned Lord the Lord Chancellor about the problems in Strasbourg in relation to bind-overs. As I understand the report of the Law Commission and the cases that are going to Strasbourg, the bind-over provisions are unacceptable because the person who is bound over to keep the peace 524 or to be of good behaviour does not know what keeping the peace or being of good behaviour entails. The "Strasbourg" problem is that a person is subject to sanctions, which may be criminal sanctions which could send him to prison, although he is simply told that he must be of good behaviour and keep the peace. The distinction between that and what I propose is that a harassment order sets out with particularity what he cannot do. The justice may have a broad complaint from a lady about the way she is being pursued. The justice may look at that complaint and decide that it is too trivial for him to make it the subject of a harassment order, which would be subject to criminal sanctions, but that the lady's second, fourth, fifth and seventh complaints are sufficiently serious for him to make such an order and to say to the offender that he will not do that. That is very different from binding someone over to keep the peace or to be of good behaviour in a broad, generalised way that does not give him any real guidance as to what he should do in the future. The noble and learned Lord the Lord Chancellor is aware that my proposals derive from the historic preventive role of the justice in using the bind-over procedures. But I hope that they develop from that and give the potential offender a guide that tells him exactly what he can do.
The final matter to which I refer is the question of compensation. As my noble friend Lord Meston mentioned to me a moment ago, the tort of harassment is developing. I do not say that it is fully developed but it is developing within the civil courts. In the county court and the High Court damages can be obtained in that way but only by the expenditure of time and money. The noble Lord, Lord McIntosh, was concerned about delay in obtaining remedies. I believe that a magistrates' court that deals with all these matters within the same jurisdiction, and with far greater speed and efficiency than would be obtained within the civil system as it is at present, is the best body to determine the appropriate amount of compensation to award to a person who is the subject of this activity. The alternative is that a lady may give evidence in a magistrates' court under Clause 2 of the Bill and substantiate a criminal offence, but she will not get anything from the magistrates. No compensation will be paid at the end of the day. However, under my proposals she will receive some recompense for her distress and the problems she has suffered.
I will reflect on the various matters that your Lordships have put before me. I hope to return to this matter at a later stage of this Bill. Subject to that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 2 to 4 not moved.]
Clause 1 [Prohibition of harassment]:
Earl Russell moved Amendment No. 5:
Page 1, leave out lines 8 and 9 and insert—
("(b) which he knows lacks, or has no good cause to believe enjoys, the consent of the other person.").
§ The noble Earl said: When listening to my noble friend speaking of the difficulty of understanding the meaning of being bound over to keep the peace, I was 525 reminded of the bizarre story of a man who bit a piece out of another man's nose and was bound over to keep the peace.
§ I rise to move Amendment No. 5 with great regret. I hope that we have not heard the last of my noble friend's attempts to amend the Bill. I believe that there is room for a good deal of further discussion on that. It is with regret that I rise to move the forlorn hope. Like my noble friend, I was concerned about the risks involved in criminalising conduct which otherwise, taken piecemeal, might be innocent. That is why I have never been happy about the refusal to define the offence in this Bill. If an offence is not defined how can one prove oneself to be innocent of it?
§ In moving Amendment No. 5 I should like to speak also to Amendments Nos. 16 to 18 and 28. They are inter-connected amendments and all end at the same point. Amendment No. 5 seeks to replace what I have always found to be the least practical words in the Bill. Clause 1(1)(b) refers to a course of conduct that a person knows or ought to know amounts to harassment of the other. If we do nothing else with this Bill we should get rid of the words "ought to know". They are thoroughly unsatisfactory and have a hortatory quality that is more appropriate to the pulpit than the law.
I have thought a great deal about the problem of defining the offence. To my mind, the essence of the offence is that it is conduct that does not enjoy consent, and that is why it is wrong. The problem with a simple definition in terms of consent is that the offender regularly believes that he enjoys consent when he does not. Amendment No. 5 seeks to prohibit a course of conduct which the person,
knows lacks, or has no good cause to believe enjoys, the consent of the other person".
If he thinks that he enjoyed consent, he will have to say so. In many of the cases about which we have heard, it would be a prosecuting counsel's dream to cross-examine the man on why he believed that he enjoyed consent. If he has any good reason for believing it, he can say so.
Amendments Nos. 16 to 18 take the same principles into Clause 4, where there is an immediate fear of violence. I have been worried throughout about the use of the "reasonable man" test in the Bill. It seems to me that in sexual matters in particular, standards of what is "reasonable" vary so incredibly widely these days that they are rather difficult to use. In Clause 4, I attempt to offer a double test:
either the conduct was such as to cause a reasonable person to fear violence would be used against him; or … he wilfully continued the course of conduct knowing the other did not consent to it".
The "or" deals with cases such as that of somebody who had previously been a victim of rape. Such people might well fear in cases where other people might not fear. The mere fact that the person does not consent to the conduct, if that is made sufficiently clear to the offending person, ought in civilised society to be a sufficient reason to desist. I hope that that might be something practical for the courts to attempt.
Amendment No. 28 adds to the list of lawful statutory defences the argument:
that the other consented to the conduct in question".
Again, that defence may be advanced in cases in which it does not belong. But in those cases prosecuting counsel could easily deal with it by cross-examination. It will apply to cases in which there was some good reason to believe that there was consent and where perhaps the charge has been brought as a result of a sudden tiff, as too sadly often happens.
§ I hope that these amendments might bring some precision to a Bill which I believe needs it, if justice is to be done. I beg to move.
§ 7.30 p.m.
§ Lord McIntosh of Haringey
As always in these matters, I speak with the utmost diffidence. However, it does not seem to me that the noble Earl's speech relates to his amendment. His speech was concerned with the difficulty of defining the concept or the word "harassment", and yet his amendment leaves the word "harassment" in Clause 1(1)(a) of the Bill and simply adds an alternative phrase for subsection (1)(b).
It is entirely plausible and reasonable—I should not use the word "reasonable" as it is a lawyer's word and has a specific meaning which I probably do not understand—to suggest that lack of consent is or could be a constituent part of harassment. He still leaves the word "harassment" in the Bill and simply adds lack of consent as one consideration in a definition. I had always understood that an extensive definition is difficult because, if something is not in a definition then what is excluded is affected by it. There is a Latin phrase to that effect. But in this case, the noble Earl makes only the first step toward a definition, while leaving the word "harassment" in the Bill. I do not feel that that is an appropriate way to approach the matter.
I was convinced last summer by the noble and learned Lord the Lord Chancellor when he said that molestation—at that time it was the concept of molestation—benefited from not being defined as it was originally in Janet Anderson's Bill because of the risk that genuinely molesting behaviour would be allowed as it was excluded from the list. I fear that the same argument applies even more strongly to the noble Earl's current amendment.
§ Earl Russell
The noble Lord has confused two different types of amendment. His honourable friend Mrs. Anderson attempted to define by means of a list. That clearly created a risk of exclusion. The noble and learned Lord and I are at one on that point. There was a real risk that things not in that list might get excluded.
I merely attempt to give guidance on how the word "harassment"—to which I made no objection at any stage in my speech—might be understood. The effect is clarificatory and not exclusive. The noble Lord, Lord McIntosh, has confused two totally different types and categories of definition. He is awfully hard to satisfy today.
§ The Lord Chancellor
The noble Earl's amendment seeks to delete Clause 1(1)(b) and substitute other 527 words. But he has left in Clause 1(2). So there is a subsection left hanging in the air, which I know will be appreciated.
I took the noble Earl's point about lack of consent at Second Reading. Lack of consent may have some importance, but when making a criminal offence some kind of intention has to be associated with it, in order that it satisfies the ordinary criterion. An absolute offence in this area would be going rather too far. Therefore, I believe that some kind of intention is a reasonable constituent of a criminal offence.
Let us forget that Clause 1(2) hangs altogether loose at the moment and take what the noble Earl proposes. The result is that it does not matter whether the defendant ought to appreciate that his conduct will cause alarm or distress—it does not matter whether or not he appreciates that. If it has not been consented to, that is sufficient. The amendment may be intended to restrict or make the ambit clearer, but the result is to create a wider class of offence than is sought by the Bill. I am not sure whether that is the noble Earl's intention.
If anything about intention is taken away, one has an absolute offence type of category and that enlarges the offence. The matter of consent would just play into that situation. Therefore, with the greatest respect, after having considered the matter as carefully as I could—I was attracted to the idea at Second Reading that it might be worth pursuing a little further—I have concluded that if there is to be a criminal offence, some form of intention is required. What is in the Bill is the best so far that we have been able to propose in that connection. It is quite reasonably precise and I believe it provides a basis for dealing with these matters. That applies to the other amendments of the same character also.
§ Lord Thomas of Gresford
The noble and learned Lord the Lord Chancellor said that intention is an aspect of Clause 1(1)(b) and subsection (2). But I should have thought that it ought to be read as an objective test. What a person ought to know amounts to harassment, defined as what another, reasonable person in possession of the same information would think amounted to harassment of the other, suggests not an intention on the part of the person who is guilty of the conduct complained of but a "reasonable man" test—an objective test—applied to what he ought to know. It seems to me that that intention is missing from that.
There is another point. The vulnerability of the person concerned is a matter of some importance. In a manslaughter charge, it makes no difference that you did not know that a person had an eggshell skull if you strike him one blow to the head and he drops dead. He happened to be a vulnerable person but it is still manslaughter. Although there was no intention to kill the person concerned, he had that kind of vulnerable personality.
§ Lord Thomas of Gresford
It is not murder either, of course, because it lacks intention. When one is seeking to deal with a problem that arises from the 528 vulnerability of the victim, one is not so much concerned with intention as with the conduct itself which causes distress, and so on. That conduct itself must be intentional but not that the person thinks or believes or knows that it is harassment that he is committing at the time.
§ The Lord Chancellor
The second point about the vulnerability of the victim is quite important. My view is that this clause, as drafted, and the Bill as drafted, do take account of particular qualities or characteristics or the vulnerability of the person stalked, the victim, if that is known to the person who is doing the stalking: the alleged offender. That is the point. If, for example, you know that the person being stalked has a particular susceptibility or vulnerability and take advantage of that, that is important in characterising the offence. The objective test applies to that in the sense that if the matter is put to the test of the reasonable person with the same knowledge—that is to say, for example, knowing that the victim has a particular vulnerability, that is the test to be applied. When I talk of intention, of course, in the language of this Bill I am talking of it on the basis of the objective intention as signified in Clause 1(2) where the reasonable man's test is put upon what you assume the person's intention was. So the vulnerability point is dealt with, if I might say so, rather well by Clause 1(2).
§ Earl Russell
I thank the noble and learned Lord for that reply. I am extremely interested in the points that he has made. It is, I hope, possible that further discussion might lead to progress on this matter. Like my noble friend Lord Thomas of Gresford, I have not been entirely clear on the role of intention in this Bill. Like the noble and learned Lord, I prefer to see a test of intention; I prefer to see a requirement for mens rea.
The way my mind was working, I was regarding the continued proceeding in the absence of consent—indeed, it would appear the wilful indifference to consent—as being evidence of an intention to harass.
I will say again to the noble Lord, Lord McIntosh, that I have no objection to the words "to harass". I just want to know how we shall be finding people to have done it. That is all I am concerned about.
If we can arrive at some form of words between us which would allow the intention to be made clear without this clumsy use of "ought to know", there might perhaps in the future be some hope of getting somewhere. Perhaps the noble and learned Lord has a comment he would like to make before I take a final decision. If not, I beg leave to withdraw the amendment, but in the hope that it is not forever.
Amendment, by leave, withdrawn.
[Amendment No. 6 not moved.]
§ 7.45 p.m.
Lord Meston moved Amendment No. 7:
Page 1, line 16, after ("pursued") insert ("solely").
§ The noble Lord said: In moving this amendment, I wish to speak also to Amendments Nos. 8, 19 and 21 which are identical.529
§ These amendments seek to add the word "solely" to the defences in Clauses 1(3) and 4(3) so that they should now provide that the person who wishes to rely upon those defences must show that his course of conduct was pursued solely for the purpose of preventing or detecting crime or solely under any enactment or rule of law or to comply with a statutory condition or requirement.
§ I am concerned to remove any possibility of a loophole for those with mixed motives in their course of conduct or for those who may have lawful justification for what they do up to a point but then go too far. I am also concerned about those who may stalk or harass on the pretext of detecting crime. In an article recently in the Sunday Telegraph on 26th January of this year there was reference to one stalker who actually formed his own detective agency to create the illusion of legitimacy.
§ My noble friend Lord Thomas of Gresford spoke of the room for argument that this Bill, as presently drafted, provides. I hope that these amendments go some way to reducing the scope for argument by a defendant who is truly guilty of harassment. I therefore hope that the amendments add a useful emphasis to the wording of the Bill. I beg to move.
§ Lord McIntosh of Haringey
I am putting my head into the noose again because this is an amateur comment; but I have to say that I think that the noble Lord, Lord Meston, has a point. I can well imagine circumstances where there is a mixture of motives, there is a mixture of intentions and some part of the intentions and, indeed, the behaviour, could genuinely be described as being for the purpose of preventing or detecting crime; but a very substantial amount could be outside that definition. It would be a great shame if the Bill did not allow those mixed motive activities to be covered by the penalties and by the provisions of the Bill.
§ The Lord Chancellor
My understanding is that in order for the defence to operate, the defence would have to show that the course of conduct, so far as was objectionable, was pursued for the purpose of preventing or detecting crime.
I have seen the article to which the noble Lord referred. Indeed, I think there was a rather elaborate scheme developed, according to that, for the purpose of stalking people. But I would venture to suggest to the Committee that to insert the word "solely", as proposed, makes it very difficult to secure the defence at all because it puts an impediment on it which would require the defendant to prove that there was no other intention or purpose whatsoever. In a sensible way of looking at this, the court would have to consider the course of conduct in question and in so far as it amounts to harassment see whether that was for the purpose of preventing or detecting crime. If it had a dual purpose, in my submission, in so far as it was shown to amount to harassment as a result of that secondary purpose, this defence would not operate.
The ultimate test will be whether the conduct complained of was pursued for the purpose of preventing or detecting crime. For example, one could 530 have someone in a particular place regularly because that was his or her beat assignment and yet there may be an element of choice or discretion in where they were at a particular time. If the result of that choice or discretion being exercised was to amount to harassment of someone, then the court would be astute to find, or certainly it would be open for the court to decide as a matter of practical reality, the reason for the conduct in question.
§ Lord Meston
I am grateful to the noble Lord, Lord McIntosh, for his initial reaction to this amendment and to the noble and learned Lord the Lord Chancellor for his response. It was not my intention in any way to impede a proper defence. The court will clearly have to look at the conduct of the defendant as a whole. The intention of this amendment was to make it easier to separate the different aspects of the conduct complained of, particularly where there are what I have described as mixed motives. However, this is not a matter to be debated at length at this hour. I should like to consider the matter further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 8 not moved.]
Lord Mottistone moved Amendment No. 9:
Page 1, line 21, at end insert (", or
() that by reason of severe mental illness he is unable to make a judgment on the matter.").
§ The noble Lord said: In moving Amendment No. 9, I wish to speak also to Amendments Nos. 22 and 27, which make the same point in Clause 4 and, for Scotland, in Clause 8. Amendments Nos. 9 and 22 were proposed to me by the National Schizophrenia Fellowship, because it was worried that some schizophrenia sufferers could harass others or cause them to fear violence without having any idea what they were doing. I added Amendment No. 27 after checking with NSF (Scotland) that it agreed that that should be done.
§ Before putting down the amendments, because I was going to be out of London at Second Reading—I am sorry that I was not present—I wrote to my noble friend Lady Blatch to ask for her view of them. My noble friend replied that she understood the reasons for seeking to exempt severely mentally ill people from the scope of the offences and the tort created in the Bill. My noble friend went on to explain how the Government already make provision to safeguard mentally disordered persons from inappropriate prosecution under the Bill or indeed under any other relevant Acts. My noble friend drew to my attention Home Office Circular 66/90 which gives guidance to the courts on this matter. In subsequently discussing the subject verbally with my noble friend, I suggested to her that, as the circular is seven years old, there might well be cases where it had been shown to need amendment to achieve its aims. The Minister said that, if that was so, she would be very happy to consider amending the circular. Accordingly, I have asked the National Schizophrenia Fellowship to 531 advise me on the workings of Home Office Circular 66/90. At short notice, it has provided me with four examples. I shall briefly describe three of them.
§ A man who had a diagnosis of schizophrenia was arrested on suspicion of criminal damage and burglary. He was homeless, having lost his accommodation because of harassment by neighbours who set fire to his flat. He tried to break into a property which had been his home at an earlier date, apparently not realising that it was now occupied by others. He was remanded to a prison in spite of the fact that a social worker provided full details of his mental health problems to the magistrates. The young man died following the use of restraint. At the inquest, the coroner expressed his concern about the fact that the man had been in prison and had fallen through every available net.
Home Office Circular 66 advises magistrates, at paragraph 4(v) that,
if his mental state or other factors, such as homelessness, give rise to difficulties in releasing him on bail, arrangements should be made with the health, probation and social services to ensure that appropriate support can be provided such as admission to hospital where his mental condition warrants it, or to a hostel, if the managers agree".
We understand that, in spite of the guidance, magistrates felt that prison was appropriate. That case is an example of the circular not giving firm enough advice on such a point.
§ In another case—it is ongoing—a young woman of 19 has been on remand in prison for six months after setting fire to her mattress in a psychiatric unit. Because of attempts to hang herself, she has spent considerable periods in a strip cell while she awaits trial on an arson charge. She is receiving neuroleptic medication and the prison doctor has told her family that she should be in a secure unit. Other doctors have diagnosed personality disorder. Circular 66—this is important—does not appear to address the complex issues raised by this case at all.
§ In a third case a man appeared before a magistrates' court charged with affray, carrying an offensive weapon and setting fire to his car. The pre-sentence probation report had advised ordering a psychiatric report on the grounds that the defendant appeared to be suffering from a mental disorder. In the event the stipendiary magistrate decided that such a report was not needed and sentenced him to two months' imprisonment. Later he attacked children and a teacher with a machete. Serious injuries were inflicted and he is now awaiting sentence in a high security mental hospital.
§ Home Office Circular 66 draws the attention of magistrates to their powers to arrange for a medical report while an accused person, who appears to be mentally disordered, is on bail, for medical treatment as a condition of bail, and for a remand to hospital—if this seems necessary rather than bail—to obtain a medical report on his mental state. The circular does not suggest that advice to the court from a probation officer, which is what happened in this case, recommending ordering a psychiatric report, should be very carefully considered by the magistrates before being set aside. In view of the sufferings of the victims in this case, and the consequences for the man of not receiving psychiatric 532 treatment at an earlier stage, it would seem that the circular needs review and revision to cover such circumstances.
§ In conclusion, I can see that my amendments, in seeking to remove severely mentally ill people wholly from the effects of the Bill, are probably going too far. I can see that victims of harassment need to be assured that they can call upon the services of the police and the courts to help protect them from those who cause harassment, whatever the background to the case. However, I hope that my hastily prepared examples—I emphasise that because I feel sure that the Home Office, perhaps even aided by the Department of Health, if they can aid each other, could produce many more examples—of the need for Home Office Circular 66/90 to be brought thoroughly up-to-date to provide the necessary protection for the unfortunate people who are truly not responsible for their actions will encourage my noble and learned friend the Lord Chancellor to give a firm undertaking that a thorough analysis of, and any necessary amendment to, that circular in the light of experience of the past seven years and the possible effects of the Bill will be carried out and brought into effect sooner rather than later. I beg to move.
§ Lord McIntosh of Haringey
In his admirable speech the noble Lord has provided the answer to his initial argument. However, he is to be commended for bringing it forward in the way that he did. He is quite right in saying that the amendments would go too far and would remove the protection from victims of stalking from people who had severe mental illness. As he rightly said, that cannot be what he intends. The issue is very much wider than stalking. The issue covers people committing all kinds of crime in conditions of mental illness and mental disorder. I am sure the noble Lord is right in saying that we have to bring the guidance we give to the police and to the courts up-to-date and make sure it is adhered to.
§ The Lord Chancellor
I am grateful to my noble friend Lord Mottistone for indicating to me in advance what he had in mind in putting down these amendments. As a result, I am able to say that my noble friend Lady Blatch has agreed to look into the cases my noble friend brought to her attention by way of example and to reflect on whether amendment to the guidance is required and, in the light of her consideration of that, to make a decision which she will then communicate to my noble friend when that is completed. There is also a civil aspect to this matter. We looked into some of this in connection with domestic violence. The most important aspect is in relation to the criminal law and to the code of guidance which the Home Secretary has issued. I am sure that if my noble friend Lady Blatch needs any help from the Department of Health it will be readily forthcoming. In these matters the Government act as one.
§ 8 p.m.
§ Lord Mottistone
I am grateful to the noble Lord, Lord McIntosh, for his support and to my noble and learned friend the Lord Chancellor for his assurances on 533 behalf of our noble friend Lady Blatch. The key matter is that harassment must be solved in this kind of way along with the other matters which have been mentioned. It is very difficult to avoid treating wrongly people who do things which they do not know are wicked. These orders are helpful up to a point. However, various other things are happening and I hope that the situation is getting better as we go along. At this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Clause 2 [Offence of harassment]:
Lord Meston moved Amendment No. 10:
Page 1, line 24, after ("liable") insert ("—
(a) on conviction on indictment, to imprisonment for a term not exceeding two years, or to a fine, or both, or
§ The noble Lord said: As the Committee knows, the Bill, as drafted, provides two levels of primary criminal offence. Under Clause 2 a person who pursues a course of conduct amounting to harassment commits an offence punishable only on summary conviction. Under Clause 4 a person whose course of conduct causes the victim to fear on at least two occasions that violence will be used commits a more serious criminal offence punishable either after summary conviction or on indictment. In the latter case the Bill stipulates a maximum of five years' imprisonment.
§ The amendment seeks to allow for the possibility of trial on indictment for the lesser offence as well, with a maximum sentence of two years' imprisonment. The cases which have been reported in the press at least suggest that even where there is not an actual act or threat of violence, the powers of sentencing available in the magistrates' court on summary conviction may not be enough. There can be a lengthy, sustained campaign of harassment by an obsessive individual, causing the victim enormous anguish and suffering but nevertheless falling short of the fear of violence on two occasions which is required for the more serious offence under Clause 4. In such circumstances a victim could be driven out of his or her mind with worry and distress and caused considerable panic without actually suffering a fear of violence, without there being a threat of violence or with the threat of violence only having been made on one occasion rather than twice as required under Clause 4.
§ Conversely, and resisting the temptation to go into the merits of jury trial despite what is in the newspapers today, the allegations in these cases can be made by jilted or spurned partners. It may be that the accused should have the right to jury trial in such a case. For those reasons I hope that the added flexibility of disposal which is proposed in the amendment will find favour with the Committee. I beg to move.
§ The Lord Chancellor
The theory behind the Bill on this aspect is very much in line with what the noble Lord, Lord Thomas of Gresford, was saying in his introduction of his scheme. The first offence, which this 534 amendment deals with, is intended to be of a fairly low order so that basically the police powers of investigation and arrest for that purpose are made available. If the case becomes a serious one, then of course one gets to the higher level.
The noble Lord will recall that not only is there Clause 4. There is also Clause 5 and breach of the restraining order. The point is that the conduct will be pretty precisely defined by the restraining order—that is the way in which we approach the matter—and there will then be a heavier penalty on the lines proposed. The purpose of keeping the first offence summary is to restrict the matter to as low a key as possible, subject to the requirement that the criminal law has to be involved but making sure that if conduct is prescribed as being harassment, then a severe penalty will follow and also, as regards Clause 4, where violence is involved.
In the kind of case which the noble Lord, Lord Meston, envisaged, we anticipate a restraining order being made on a Clause 2 offence and then, if that restraining order is breached, the full force of Clause 5 will come into effect, even if there was no violence in the sense of Clause 4.
§ Lord Meston
I am grateful that the noble and learned Lord prayed in aid the arguments of my noble friend Lord Thomas of Gresford. I am happy that he did so. I am a little concerned about the adequacy of the penalties to deal even with the lower level of offence particularly when concerned with persistent harassment which is not quite serious enough to amount to a Clause 4 offence. While I understand the argument that the criminal court, whether dealing with a Clause 2 or a Clause 4 offence, may make a restraining order for which there are further penalties if a breach occurs, it may well be that there will be cases in which, with hindsight, the courts regret that they were not able to act more robustly at an earlier stage.
This is a matter which is not to be pressed at this stage, but I shall reconsider it. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Clause 3 [Civil remedy]:
The Lord Chancellor moved Amendment No. 11:
Page 2, line 11, leave out subsection (3).
§ The noble and learned Lord said: I indicated at Second Reading that I would invite the Committee to remove subsection (3), which would add to the powers of the civil court a power to order a defendant to undergo a course of counselling. What we are all seeking to do in the Bill is to provide the best possible protection for the unfortunate victims of harassment. I would be the first to recognise that some of the people who indulge in this sort of behaviour must be disturbed and might well benefit from outside help—guidance, treatment or counselling—just as someone who falsely accuses another person of harassment might well benefit from similar help. The debates we have had will have served a useful purpose in drawing the attention of 535 people involved, either personally or as advisers in these situations, to the help which may be available.
§ But it is not, and cannot be, the role of the civil court which has found against a defendant, on the balance of probabilities, in effect to impose a sentence on him in addition to whatever order for damages and/or injunction the plaintiff is entitled to. There is no justification for it and there is no machinery for it.
§ For these reasons, which I have already tried to explain, we have found it necessary to tackle this difficult problem by having both a civil remedy and criminal sanctions. The two jurisdictions remain distinct although we have tried to make it possible to stay in one altogether if one is sufficiently satisfied with what can be achieved under it. It would be wrong to start giving civil courts power to impose sentences on unsuccessful civil litigants. As we have seen, I believe that it would soon prove wholly unworkable if we were to try. Amendment No. 15 in the name of the noble Lord, Lord Meston, grouped with this amendment, duly draws attention to the difficulties involved.
§ It is only fair to the noble Lord, Lord McIntosh of Haringey, that I say that in the discussions we had in the summer, to which he referred when he modified the Bill to be only a civil Bill, the Bill had a clause in it of this character. At the time I did not object to the clause. I had looked over the whole Bill and had not seen any particular reason to object. He is well entitled to say that I should have thought of this objection earlier. However, having considered the matter as carefully as I can and in the light of the fact that we have criminal proceedings in the Bill as well, I hope that the Committee will feel able to accept this amendment and to remove subsection (3) from the clause. I beg to move.
§ Lord McIntosh of Haringey
I am grateful to the Lord Chancellor for what he has just said and shall not chide him for not having made earlier the observations that he has just made.
As the Committee knows, subsection (3) was inserted on a vote by my right honourable and honourable friends in another place. I do not think that this is an issue of great principle or one which should delay the passage of the Bill. Indeed, in a letter to Jack Straw, the Home Secretary acknowledged that the motives of the Opposition in tabling what was then Amendment No. 13 were,the best possible … in an attempt to ensure that stalkers who need counselling receive it".On reflection, I accept that the provision of the criminal offence, in which punishment could be accompanied or replaced by counselling, deals with the major point. I also accept the Home Secretary's point that civil courts could take into account any voluntary undertakings to undergo counselling given by a defendant and that we do not need subsection (3) to achieve that. Although I acknowledge 536 that this is a difficult issue, on balance I accept the assurances which the Lord Chancellor has given and I shall not oppose the amendment.
§ Lord Meston
My reaction was that subsection (3) had some value although it also contained defects in that it was hard to see how it would be operated by the courts. It was for that reason that I endeavoured to draw attention to those defects in Amendment No. 15. However, in view of what has been said by both the noble and learned Lord the Lord Chancellor and the noble Lord, Lord McIntosh, I shall not press Amendment No. 15 or seek to oppose what is now proposed—namely, the deletion of subsection (3).
§ Baroness Elles
In view of what has been said by the noble Lord, Lord McIntosh, can my noble and learned friend confirm that, where there is a necessity for counselling, the person concerned will be able to have that counselling—obviously, not under subsection (3) which my noble and learned friend proposes to delete, but under some other provision and under the direction of the police or a judge? Where counselling is required, will the person concerned be able to receive the necessary assistance?
§ The Lord Chancellor
Subsection (3) provided a power to order a person to undergo counselling. As the noble Lord, Lord McIntosh, said, the Home Secretary made it clear in his letter to Jack Straw that it would be open to the courts to take account of any undertaking to undergo counselling which a party to the litigation may give. Where it is a matter of criminal sanction, the general powers of the criminal court would be available. Conditional orders, for example, could involve a person having counselling and would be within the power of the court to impose if that was thought desirable. My noble friend can be assured that the way in which the matter would proceed would allow counselling to take place, where appropriate.
§ Lord McIntosh of Haringey
I should like to be clear that I understand this. If, in a civil case, the magistrates think that counselling is the appropriate solution to the problem, would they then proceed to make it a criminal case so as to be able to order counselling?
§ The Lord Chancellor
I would think that unlikely. The practice in such a case, as in domestic violence cases, would be that if the court were satisfied that counselling was the solution it would decline to make the order but would look to the person in question to agree that he or she should undergo counselling. In practice, the court would say, "We shall not make an order if you are willing to undergo counselling". If there was some real difficulty with that, the criminal course is open. In practice, however, I would expect that if the case started as a civil case, and if the advisers of the person in question thought that counselling would help—or if the county court thought that counselling was the way forward—the court could 537 indicate that to the person in question with the sort of persuasion that a court can operate in such circumstances.
On Question, amendment agreed to.
§ 8.15 p.m.
Lord Meston moved Amendment No. 12:
Page 2, line 15, at end insert—
("() An injunction granted at any stage of proceedings under this section may be expressed so as to refer to harassment in general, to particular acts of harassment, or to both, and may be expressed so as to restrain any harassment whether by the defendant himself or by the defendant instructing or encouraging any other person.").
§ The noble Lord said: In moving Amendment No. 12, I should like to speak also to Amendments Nos. 13, 14, 23 and 24. I start with Amendments Nos. 12 and 13, which are designed to bring the Bill into line with the drafting of the Family Law Act 1996, which relates to non-molestation orders. The Bill avoids any inclusive definition of "harassment", recognising that it may take many forms. Section 42(6) of the Family Law Act likewise avoids definition and provides that a non-molestation order may be expressed so as to refer to molestation in general or to particular acts of molestation or to both. I suggest that a similar provision would be of use in this Bill so that, as the noble and learned Lord said earlier, the court is clearly aware that it can tailor the order to the requirements of each particular case.
§ Secondly, the two amendments provide that the injunction or order may be expressed so as to restrain harassment whether by the defendant or by his instructing or encouraging any other person. It imports the wording now commonly used in non-molestation injunctions. It may be that in the county courts, which are already familiar with that jurisdiction, those words would be used anyway. That may not be so automatic in the High Court or the Crown Court where such orders may be made under the provisions of this Bill.
§ Again, in arguing for the need for such a provision, I am reinforced by the article to which I have already referred in the Sunday Telegraph of 26th January which reported that stalkers are turning to detective agencies and are hiring private eyes to stay one step ahead of their victims' efforts to shake them off. Experts are now describing that as "stalking by proxy".
§ Amendment No. 13 emphasises that the injunction can be made at any stage of the proceedings and can be made for a specific period or until further order. That adopts Section 42(7) of the Family Law Act and is echoed by Clause 5(3) of this Bill.
§ Amendment No. 40 provides that in granting an injunction the court can attach a power of arrest in similar terms to Section 47 of the Family Law Act. At Second Reading, I raised, as did other noble Lords, the unusual interrelationship of criminal and civil sanctions for breach and the fear that some victims could fall between two stools, being unable to get legal aid to pursue a quick application for committal for contempt in the civil field and at the same time being unable to 538 get assistance for the prosecution of a criminal offence, each responsible authority relying upon the availability of the remedy in the other field. In response to that, the noble and learned Lord pointed out that a breach was an arrestable offence under the Bill. However, the anxiety remains—in my mind, at least—about what will happen in practice. The remaining uncertainty about which alternative remedy should be available to the victim makes how it will work in practice unclear, at least to me.
§ Amendment No. 14, in following the Family Law Act providing for a power of arrest, should provide some answer to that problem. The power of arrest provisions in the domestic violence injunction field works well and has indeed been extended under the 1996 Act. When there has been a breach of an injunction with a power of arrest attached, surely it must be better that the first port of call is not the criminal court; in many cases it is plainly much better that the person concerned should be brought back quickly before the same court which imposed the injunction, and quite probably before the same judge. The delay in bringing criminal proceedings, or indeed in bringing formal committal proceedings, may be dangerous and is certainly undesirable. That is not to say that the judge, in dealing with the matter on the power of arrest, cannot act flexibly. Indeed, he may have the ability to adjourn it for other proceedings to be brought. The power of arrest procedure is well tried and tested, and I suggest again that it should be imported into this Bill.
§ Finally, I refer to Amendment No. 24, which seeks to amend Clause 5. The amendment provides that before making any order under Clause 5—that is a restraining order made by the criminal court, including any order to vary or discharge such an order—the court shall so far as practicable be informed by the prosecution as to the wishes, if any, of the victim of the offence and of any other person mentioned or to be mentioned in the order as to the scope and duration of the order. Of course, in criminal proceedings the victim is not directly a party to the proceedings, unlike the civil arena; but the victim may have specific requirements as to the ambit of the proposed restraining order which are not properly appreciated by the court or indeed by the prosecution. When there is an application to vary, the victim may have precise requirements, such as a new residential address to be covered under the ambit of the order. It is surely right that the court is properly informed of such requirements and of such wishes so that, as the noble and learned Lord the Lord Chancellor said, the order can be properly tailored to the needs of the case. I beg to move.
§ The Lord Chancellor
Amendment No. 12 is fashioned on the basis of the Family Law Act provisions. The position is that of course the court has an inherent jurisdiction to grant an injunction as a remedy in an action for tort, and the court may (and frequently does) express its order in terms which will restrain a person from a general course of conduct while at the same time specifying particular examples of acts which he must not carry out. The court does not need a special statutory power, as proposed in the first limb of 539 this amendment, to achieve that. I would be reluctant to include any such special provision which did not add to the general powers which already exist, and which was not intended to demonstrate that the powers exercisable in the particular context should be anything less. I do not believe that it is suggested that the existing powers are too wide.
However, the point I make about the Family Law Act is that the background to the equivalent provision in the Family Law Act was somewhat different. The new legislation was replacing an existing, wholly statutory remedy, not the remedy for tort which is here in question, and the Law Commission (whose recommendations were being implemented) had stressed the need to ensure that the dual capability was preserved in the new legislation setting out the statutory power. We were giving the courts a statutory power and if they were to use it in more than one way, then it was right that the statutory power should be expressed in that way; whereas in this case we are giving the court the statutory tort that is created; the court then has the ordinary powers that it would have in respect of such a tort in addition to other powers that are given. So the ordinary flexibility that the court has in relation to injunctions would apply here.
The second limb of the amendment is not, so far as I am aware, based on domestic violence legislation, but draws attention to the possibility that the defendant against whom the injunction is granted may seek to involve some other person who is not a party to the proceedings and cannot therefore be a subject of the injunctive order. This is using others. The defendant may avoid doing the prohibited act personally, but he may get someone else to do it for him. This is an avoidance well recognised and provided against in the very common wording of injunctions whereby a person is restrained from acting not only personally but also "by" his agents. Although the other person would not of course have been named in the court's order, he would nevertheless be in contempt of court if he knew of the order and aided and abetted the defendant in its breach. Of course, the defendant would also be in breach if he did it not personally but by an agent.
The second limb of the amendment could be taken as a confirmation of the court's power to make an order restraining the defendant from acting either personally or by using an agent. But it could be taken as meaning something more, so that the defendant could be expressly restrained from encouraging some other person to join in, regardless of whether that other person was willing to do so. I doubt therefore whether it is necessary for this part of the amendment either, in view of the basis on which this is now put.
I now turn to Amendment No. 13. It may well be that in a particular case of harassment there is some special reason why it appears necessary to restrain the defendant from particular conduct for a specified period only, perhaps until some other anticipated event has occurred. But that is also true of other cases where injunctions are sought, and the powers of the court are sufficiently wide to cater for such situations. Again, the difference with the Family Law Act is that the Act was providing the actual powers. There was no other basis for them, and 540 therefore the powers required to be specified. Where we are basing ourselves on an injunction the ordinary powers that the court has for making an injunction would apply.
Turning to Amendment No. 14, we are certainly wholly in sympathy with the reasons of the noble Lord, Lord Meston, for seeking to give the court jurisdiction to attach the power of arrest to injunctions granted in certain circumstances, indeed to raise a presumption in favour of attaching such power in those circumstances. Courts granting injunctions have no inherent jurisdiction to attach a power of arrest, and can therefore only do so when a statutory jurisdiction has been conferred. That is the case in the Family Law Act. But in this situation we have a power of arrest because the breach of an order is itself an offence and therefore it amounts to an arrestable offence by virtue of subsections (4) and (7) of Clause 3 and the provisions of the Police and Criminal Evidence Act 1984. It is therefore not necessary for the court to consider whether the particular plaintiff or charge would be adequately protected without making special provision to ensure that the defendant can be arrested if he is in breach of the order which has been made against him. The statutory provisions here have that effect automatically.
Those are the main matters that the noble Lord has raised, and I hope that in the light of my responses, he may see that what he is proposing is accomplished sufficiently under the Bill.
§ Lord Meston
Before I respond, I wonder whether the noble and learned Lord has any views on Amendment No. 24.
§ The Lord Chancellor
I should have mentioned that. I am sorry. The present position, as the noble Lord said, is that the victim in a criminal matter has no locus himself or herself. We have set up some pilot schemes at present in some areas of the country which allow the prosecution to include the views of victims in the case papers for consideration in relation to sentences.
It would be unwise to anticipate the outcome of those or set up a specific provision for this offence only. But when the results of the pilot schemes are available, we can consider them and consider how to make a general provision for victims. Although this case is important, it is not the only one in which victims' views might be important, particularly in relation to the effect on them of the conduct in question, which is the primary matter here. One would not ask for the victims' views about how the court should exercise its powers except, I suppose, by drawing attention to the effects which various courses of conduct might have on the victims.
I hope that the principle behind Amendment No. 24 will be overtaken by a more general provision in due course when the results of the pilot schemes are available, if the pilot schemes tend to show that that is an exercise which will have beneficial effects sufficient to justify the work involved in doing that.
§ 8.30 p.m.
§ Lord Meston
Perhaps I may deal with the last point first. I understand and appreciate what the noble and learned Lord says about a pilot scheme and an increased sensitivity to the views of the victims of crime generally. But surely this Bill is unique, or if it is not it is almost unique, in providing not only that the court shall punish in appropriate ways the criminal who is convicted under Clause 5, but in providing also that there may be a restraining order to protect the victim. I believe that that is unknown in other areas of the criminal law. It is for that reason that I suggest that there is a need in this Bill for specific provision to ensure that the precise requirements of the victim and anybody else relevant to the restraining order should be brought before the court by a proper mechanism rather than in the hope that the police or the prosecution have sufficient up-to-date information as to the wishes of the victim.
I suggest that that is reinforced by the perfectly proper provision in the Bill which allows the person who is the subject of the restraining order to apply for a variation which, again, may well have implications for the victim. There should be a proper channel formally written into the Bill for the victim's wishes to be put before the court. It is for that reason, first and foremost, that I stress the importance of Amendment No. 24.
I revert now to Amendment No. 12. I feel a little disappointment in the noble and learned Lord's response. I understand his point about the inherent jurisdiction of the court, but surely this Bill is designed to provide a new code which deals comprehensively with the problem of harassment. If at all possible, the Bill, on the face of it, should set out as succinctly as possible all the available rights and remedies without leaving the lawyers involved, or the court or those who do not have the advantage of legal representation to work out what powers the inherent jurisdiction may provide in addition to what is set out in the Bill. It seems to me that it would look rather odd that this Bill is not written in the same terms as the Family Law Act.
As regards the injunction restraining the defendant, whether by himself or instructing or encouraging any other person, the noble and learned Lord is right to say that that was conventionally covered by an injunction which referred to the defendant's agents. The phraseology which I have included in the amendment is the more up-to-date, user-friendly jargon in the modern form of injunction. The use of servants and agents, in the time-honoured phrase, is now no longer fashionable, and properly so.
Again, I note what the noble and learned Lord said about the power of arrest. It is not strictly necessary for there to be a power of arrest attached to a civil injunction if the breach is a criminal offence. The purpose of the amendment was not to add something which was not otherwise there. But I suggest that whatever the necessity of the situation, it is desirable that, if at all possible, the victim should have a quick remedy and the same civil court which dealt with the matter should have the ability to deal with any breach almost on the spot, preferably, as I said, before the same judge.
542 I shall have to think about how to proceed further with the amendments. But in the meantime, I beg leave to withdraw Amendment No. 12.
Amendment, by leave, withdrawn.
[Amendments Nos. 13 to 15 not moved.]
Clause 3, as amended, agreed to.
Clause 4 [Putting people in fear of violence]: [Amendments Nos. 16 to 19 not moved.]
Earl Russell moved Amendment No. 20:
Page 2, line 43, after second ("of') insert ("lawfully").
§ The noble Earl said: In moving this amendment, I shall speak also to Amendment No. 26. With the leave and the indulgence of the Committee, I should like to speak also to Amendment No. 6 which I did not move in its proper place because I did not find my place in my papers after speaking to the previous amendment.
§ These three amendments deal with the statutory defence that the course of conduct was pursued for the purpose of preventing or detecting crime. They seek to make the phrase read, "for the purpose of lawfully preventing or detecting crime".
§ When I tabled the amendments, I had not heard the example of my noble friend Lord Meston about stalkers turning themselves into detective agencies. But that case fairly exactly illustrates what I was concerned about in this amendment. The clause is drafted for the purpose of defending law enforcement officers; and I have no objection to that whatever. I presume that that would also defend the householder acting lawfully in self-defence against a burglar.
§ But with vigilante activity, we can get into other activity which we should not like to be used as a lawful defence. I give just one example of what I have in mind: the man who says, "But I was trying to get proof that she was living on immoral earnings". As a defence for a voyeur, I should not find that satisfactory. I beg to move.
§ The Lord Chancellor
My general answer on Amendments Nos. 6 and 20 is that if it is not lawful it would be subject to being stopped in any event. Therefore, only if it is a lawful activity could it be an effective defence in the circumstances of the present Bill.
The real difficulty, as has been said so often, is that but for the effect on the victim, many of the activities covered by this Bill would be quite lawful. But if the activity is unlawful in any event, there is no need to use this Bill at all. I hope that the noble Earl will feel able to accept that point of view in respect of the amendments.
§ Earl Russell
The noble and learned Lord is clearly right. There is still a problem, although I believe that the noble and learned Lord is aware of roughly the area where it resides. It is in the type of activity, such as that of a voyeur, which might otherwise be lawful save for the indignation, dismay or distress which it provokes. There is still an undistributed middle. If either of us can, 543 before the next stage of the Bill's proceedings, think of a way of distributing it, it might be worth trying. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 21 and 22 not moved.]
§ Clause 4 agreed to.
§ Clause 5 [Restraining orders]:
§ [Amendments Nos. 23 and 24 not moved.]
§ Clause 5 agreed to.
§ Clause 6 agreed to.
§ Clause 7 [Interpretation of this group of sections]: [Amendment No. 25 not moved.]
§ Clause 7 agreed to.
§ Clause 8 [Harassment]:[Amendments Nos. 26 to 28 not moved.]
Lord Meston moved Amendment No. 29:
Page 5, line 6. leave out from ("appropriate") to end of line 7.
The noble Lord said: This is a probing amendment which I fear is presumptuous because it involves that part of the Bill which deals with Scottish law. However, it raises the question in my mind as to why it is that the application to vary in Clause 8(7) is limited as set out in the Bill. The Bill provides that the court may revoke an order or vary it,
as it considers appropriate, but not so as to increase the period for which the order is to run".
Surely it is desirable that, where appropriate, an order can be varied without the need to start further proceedings, especially if the court has imposed, as is sometimes thought necessary at the outset, only a limited term order.
At the expiry of the term, the victim may remain apprehensive and may reasonably wish the order to be continued. The restraining order provision in the English part of the Bill provides in Clause 5(4) that the order may,
be varied or discharged by a further order",
which I take to mean that, where appropriate, the court could extend the term of the order for a further determinate or indeterminate period. As a general rule and with appropriate safeguards, I suggest that the court should have the ability—be it in England or in Scotland—to extend a fixed term order without the need to start fresh proceedings. I beg to move.
§ The Lord Chancellor
The principle behind the provision which is the subject of the amendment is that, 544 in a criminal context, when the order is part of the disposal of a criminal case it ought not to be extended further. But of course the court has wide powers in respect of the order that it makes in the first instance. The same argument does not appear to me to apply in the civil context. If the noble Lord will allow me, I should like to consider whether there is something that we should do to make the civil remedy more flexible. If I may, I should like to encourage the noble Lord, with his knowledge of the law of England, to look critically at provisions affecting the law of Scotland. Indeed, it is often quite productive, and here is just one example.
§ Lord Meston
I am grateful to the noble and learned Lord. I said that it was a presumptuous amendment, but I thought that it was unfair for the Bill to go through without any attention whatever being paid to the clause dealing with Scotland, notwithstanding the presence of at least one very distinguished Scottish lawyer in the Chamber. I am grateful to the noble and learned Lord for the indication that he will look further at the matter. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 agreed to.
Clauses 9 to 11 agreed to.
Clause 12 [National security, etc.]:
[Amendment No. 30 not moved.]
Clause 12 agreed to.
Clause 13 [Corresponding provision for Northern Ireland]:
[Amendment No. 31 not moved.]
Clause 13 agreed to.
Clause 14 [Extent]: [Amendment No. 32 not moved.]
Clause 14 agreed to.
Clause 15 [Commencement]: [Amendments Nos. 33 and 34 not moved.]
Clause 15 agreed to.
Remaining clause agreed to.
House resumed: Bill reported with an amendment.