Protection from Harassment Bill

HL Deb 24 January 1997 vol 577 cc917-43

The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, I beg to move that this Bill be now read a second time.

The aim of this Bill is to protect the victims of harassment. It will protect all such victims whatever the source of the harassment—so-called stalking behaviour, racial harassment, or anti-social behaviour by neighbours. I am sure that all Members of this House have been moved, as I have, by the details of the cases which have come to public attention in the past year or two. Those cases have highlighted the devastating effect that those who cause harassment to others can have on the lives of their victims. The remedies contained in this Bill will, I believe, provide effective relief for those victims.

My right honourable friend the Home Secretary, in another place, congratulated Ms. Janet Anderson on her efforts in raising this issue in the summer. The noble Lord, Lord McIntosh of Haringey, is entitled to the same congratulations in respect of your Lordships' House. The Government were unable to support the specific measures brought forward in the last Session, as we were not convinced that they provided effective or workable solutions to this problem. The Government instead announced the publication of a consultation document. The Bill before your Lordships today represents the results of that consultation and the measures in the Bill I believe command the overwhelming support of respondents.

Perhaps the first question the Government must answer when bringing legislation before your House is as to why the legislation is needed. In the case of the conduct in question—causing harassment—there is evidence that the courts themselves are already interpreting their existing powers in such a way as to provide relief for victims. The civil courts have granted injunctions to prevent the repetition of such behaviour and the criminal courts have, in some cases, equated severe psychological harm to bodily harm. In the light of those developments, is new legislation necessary? The Government's answer to that question is an emphatic yes.

Though the Government accept that some court decisions have extended existing civil law provisions to protect the victims of harassment, the extent to which the courts are prepared, or are able, to provide relief in these circumstances remains unclear. The Government believe that it would be right to provide greater certainty through the creation of a statutory tort. Not only does the creation of a statutory remedy provide a clear and certain basis for victims to take action in the civil courts, it also gives us the opportunity to provide statutory defences to such actions in order to protect the police, security agencies and others such as journalists, private investigators and debt collectors, whose legitimate activity might, on occasions, resemble the conduct pursued by stalkers.

Moreover, the cases where the criminal law has been used successfully have been where the psychological harm inflicted on the victim has been so severe, that the courts have been able to regard it as grievous bodily harm. But there remain doubts about the wider application of the law on assault to the phenomenon of stalking. The Government believe that victims should be able to seek the protection of the criminal law at an earlier stage, before the harm inflicted on them reaches such a serious level.

In the light of those considerations, the Government are entirely satisfied that legislation is necessary. The Government believe that it is right that provisions to deal with the menace of stalking and harassment should be available in both civil and criminal law. Criminal sanctions are necessary so that victims can call upon the police to investigate instances of harassment, particularly where the identity of the person causing the harassment is not known to the victim, and because the conduct itself is sufficiently reprehensible for society to express its disapproval by means of criminal penalties.

Criminal proceedings cannot always protect a victim from anticipated harm. The criminal law cannot provide protection for someone who might reasonably expect that they that may be subject to harassment in the future. Nor does it provide protection where the case cannot be proved beyond reasonable doubt. In civil proceedings the court, if it is satisfied on the balance of probabilities that the defendant harassed the victims, should be able to order the defendant to compensate the victim for the distress and disturbance caused by the harassment. The civil court should also be able to grant an injunction preventing the carrying out of any specified activity which would amount to harassment. I believe that it is an advantage of civil proceedings that the precise order can be tailored to the circumstances of the case.

I have so far explained why the Government consider legislation is necessary on this topic and why both civil and criminal measures are thought necessary. I shall now explain briefly the detailed provisions in the Bill.

Clause 1 describes the conduct which, in England and Wales, is to be prohibited. The Government have given careful consideration to the formulation of this provision, and, of course, consulted widely. Some have argued that it is necessary to define the particular acts which constitute stalking and prohibit them. But stalkers use a variety of conduct to harass their victims. If a list approach was adopted, it is likely that stalkers would simply adopt another type of conduct, not covered by the list, in order to carry on their campaign of harassment.

The approach adopted in Clause 1 therefore is to define the prohibited conduct in terms of the effect it has on the victim—harassment. The courts are familiar with the term "harassment" and regularly interpret it when dealing with offences under the Public Order Act 1986. Clause 1 prohibits a person from pursuing a course of conduct which amounts to harassment and which he knows or ought to know amounts to harassment of another. A person ought to know that their course of conduct would amount to harassment of another if a reasonable person in possession of the same information would think the conduct in question would amount to harassment.

This is an important provision as many stalkers claim that they have no intention of harassing their victims—ignoring the devastating effect that they can have on their victims' lives. This formulation will enable the courts to look at the information in the possession of the stalker and, on that basis, decide whether the stalker ought to have known the effect of his conduct.

Subsection (3) of Clause 1 sets out circumstances where the prohibition does not apply. Clearly conduct pursued for the prevention or detection of crime should not be covered by the Bill's provisions, nor should the conduct of those required to act under any enactment or rule of law. The third circumstance is where in the particular situations the pursuit of the course of conduct is reasonable. The provision will prevent those who are engaging reasonably in otherwise legitimate activity, such as journalism or political canvassing, from being penalised.

Clause 2 makes pursuit of the conduct set out in Clause 1 a criminal offence. The offence will be summary only and subject to a maximum penalty of six months' imprisonment and/or a level 5 fine. Subsection (3) of the clause makes the offence arrestable under Section 24(2) of the Police and Criminal Evidence Act 1984.

Clause 3 creates a statutory tort in relation to the conduct set out in Clause 1. Subsection (2) permits claims for damages. Subsection (4) creates a criminal offence of breaching an injunction made by the court under the provisions of this clause. Though, of course, contempt of court proceedings are available to deal with breaches of a civil order, the Government consider that, in the circumstances surrounding a breach of a non-molestation order of this kind, the use of police investigative powers and police and CPS assistance in the prosecution of those who breach such orders are essential to provide adequate protection for the victims. In view of some speculation about this provision, I must make it clear to your Lordships, however, that any criminal proceedings for a breach of order would not begin unless the subject of the order had been informed of its contents and any breach would have to be proved beyond reasonable doubt—that is, to the criminal standard of proof.

Subsection (3) of this clause was inserted in the Bill by an Opposition amendment in another place. The intention of this subsection is to give the civil courts the power to order a person who is subject to an injunction under this clause to undergo counselling. Having considered this carefully, the Government have reached the view that they cannot agree to the retention of this subsection in the Bill and will be seeking your Lordships' agreement to remove the provision from the Bill at Committee stage. I do not propose to go into the detail of the reason for that at the present time. It may be that, on reflection, the Opposition will be able to reach the same view. But we can obviously consider that.

Clause 4 of the Bill creates a higher level criminal offence of putting someone in fear of violence. Where the level of harassment is such that a person is caused to fear violence, the Government believe that the higher penalties provided by this clause—five years' imprisonment and/or an unlimited fine—are appropriate and the defence of acting reasonably should not be available. It cannot be reasonable to place someone in fear of violence.

Clause 5 permits a criminal court, when it has convicted a person for an offence under Clauses 2 or 4 of the Bill, to make an order for the purpose of protecting the victim of the offence, or any other person mentioned in the order, prohibiting the person from carrying out further conduct which amounts to harassment or causes fear of violence. Breaching such an order will itself be a criminal offence with a maximum penalty of five years' imprisonment and/or an unlimited fine.

The provision gives the criminal courts in these specific circumstances a new sentencing power which is similar in its extent to a civil injunction. We have listened carefully to those who have argued that it cannot be right, in circumstances such as those, to require a victim to go through a second hearing in a civil court, following a conviction in a criminal court, to gain an order preventing future harassment. We think it right, therefore, that the criminal courts should have that power in those limited circumstances.

Clause 6 ensures that the limitation period for damages claims in respect of harassment is six years.

Clause 7 interprets some of the terms used in Clauses 1 to 5. Harassment shall be interpreted as including alarming the person or causing distress. A course of conduct must involve conduct on at least two occasions, and conduct includes speech.

Clauses 8 to 11 make equivalent provision in Scotland to that proposed for England and Wales, except that no new criminal offence of harassment or causing fear of violence is proposed for Scotland. The existing common law in Scotland already covers the conduct in question.

It is necessary to ensure that the work of the intelligence and security services is not compromised. Clause 12 therefore provides that the Secretary of State may certify, retrospectively, that anything done by a specified person on a specified occasion related to national security, the economic well-being of the United Kingdom or to the prevention and detection of serious crimes was done on behalf of the Crown. The provisions of the Bill do not bind the Crown and, therefore, agents of the Crown—such as the intelligence and security services as well as other investigative agencies such as Customs and benefit fraud investigators—pursuing their responsibilities are exempt from its provisions. The certification procedure is intended to ensure that this exemption can be proved in the situations described quickly and effectively.

Clause 13 of the Bill permits the extension of the relevant provisions to Northern Ireland by negative resolution. The remaining clauses deal with the extent, commencement and Short Title of the Bill.

Those are the Government's proposals to deal with stalking and harassment. They will deal with the menace that is known as stalking and also provide an effective remedy for those who are persecuted by other forms of anti-social behaviour. Passage of the Bill will, I believe, make the streets and communities of this country safer in this respect. I commend the Bill to your Lordships.

Moved, That the Bill be now read a second time.—{The Lord Chancellor.)

11.20 a.m.

Baroness Gould of Potternewton

My Lords, I welcome in principle what I think is an important Bill. I wish to concentrate my brief remarks on the terrifying problem of stalking which haunts so many women's lives. I must, however, express my regret at the delay in bringing the Bill before the House. The degree of suffering being experienced requires urgent action. The delay must seem like an eternity to the victims of stalkers.

I do not wish to rehearse the reasons for the delay as that has been done in previous debates in this House and in the other place. However, like the noble and learned Lord the Lord Chancellor, I too wish to pay tribute to my honourable friend Janet Anderson and to my noble friend Lord McIntosh of Haringey for their persistence in pursuing the need for legislation.

Concern about stalking, the absence of any criminal remedies and the inadequacy of civil remedies have been widely felt for many years. The absence of a specific anti-stalking law has made it difficult for victims to seek redress from their terrifying ordeal. The difficulty of proving intent by an alleged stalker, and of a significant degree of psychological damage to victims in prosecutions for bodily harm, was demonstrated by two cases against alleged stalkers in the summer of last year. In one case, Clarence Morris was found guilty of causing such damage to Penny Southall; in the other, Dennis Chambers was found not guilty of causing this degree of damage to Margaret Bent. It has come too late for Margaret Bent but it is welcome that the Bill recognises these difficulties in providing that stalkers will no longer be able to claim as a defence that they did not intend to harass their victims. I refer to the creation of a criminal offence in England and Wales; namely, that of causing someone to fear violence.

Not only do we need to punish the offender; we also need to give protection to the victim by allowing the civil courts to grant restraining orders to prevent the offender pursuing further contact with the person concerned. The sole issue has to be, not whether a stalker intended to cause distress and harm to his victim, but whether the victim had harm done to him or her.

I appreciate that women are not the only victims of stalking. There is evidence of men being harassed in a similar form. Nor is it a new phenomenon. Indeed, my noble friend Lord McIntosh of Haringey, at the Second Reading of his Bill, referred to the ordeal of Kingsley Martin when he was editor of the New Statesman and who eventually would not leave his home unaccompanied. However, it is women who are mainly threatened by this range of behaviour.

The National Anti-Stalking and Harassment Campaign and the police estimate that about 95 per cent. of victims are women. It is also true that the majority of stalkers are known to the person they are stalking. However, in about 20 per cent. of cases that is not so, and the stalker is unknown to the victim. That creates the additional dimension of identification. It is essential that the investigative powers of the police should be available to identify the stalker and bring him to justice.

As the noble and learned Lord the Lord Chancellor indicated, the methods employed by stalkers can take many forms. Frequently, their behaviour is ostensibly routine and harmless. They commit acts which in themselves are not offensive and therefore cannot be caught under existing laws. It is not in itself offensive in law to walk up and down a street, to send flowers or to stand on a street corner. However, to the recipient, such action is real and offensive.

There are also many examples of stalkers convicted of offences such as breach of the peace or making nuisance telephone calls being adept at avoiding any behaviour which would contravene the existing criminal law. That should not be the case in the future. Help must be available irrespective of the method used by the stalker. We must ensure that we do not allow room for stalkers to change behaviour and find activities which are equally distressing to their victims but which are not proscribed by law. Only time will tell whether the Bill adequately achieves that.

Irrespective of the nature of its component acts, stalking can be threatening and traumatic through its sheer oppressive persistence. Those stalked no longer feel that they are in control of their lives. That loss of control can be as intolerable as the actual acts of harassment. Celia Brayfield, a novelist who was stalked for six years, said that, stalkers murder sleep. They destroy your sense of trust, your security and your peace of mind. They destroy your relationships and leave you feeling alone and stranded in an uncomprehending world". However, all too often the distress and suffering do not cease when the victims reach the courts. Some have been subjected to what almost amounts to harassment, and to critical comments such as those made by the lawyer on behalf of Clarence Morris when he accused the victim, Penny Southall, of dressing provocatively but crying foul when someone found her attractive. Such actions by members of the legal profession are not acceptable. Nor is it acceptable for women to be cross-examined in the witness box by the alleged stalker. It is not the women who are on trial. I welcome any comments that the noble and learned Lord the Lord Chancellor may wish to make about how we can prevent future incidents of that kind.

As stalking is not at present a criminal offence it is not possible to gauge accurately how many people suffer in this way. The Police Federation puts the figure at 3,000 a year; other estimates are as high as 5,000. If either of those estimates is correct—and given the wide scope of the Bill—the Government's figure of an additional 200 criminal cases per year appears on the surface to be an under-estimate. I should be grateful if the noble and learned Lord the Lord Chancellor can indicate how that figure was arrived at and, if it proves to be incorrect, whether extra funding will be available.

Finally, I address the question of motives. What drives a person to behave in this way? Many stalkers are isolated and lonely, but we should not assume that they are all mentally ill. Dr. Sidney Crown, a consultant psychotherapist, indicated in an article in the Sunday Times on 29th September 1996 that only a small number are mentally ill; others are seeking attention or wish to be identified with a famous person. Then there are those who are violent and dangerous and are a severe threat to the safety of their victims.

One of the biggest obstacles to successful legislation is that many who behave in this sinister fashion cannot or will not accept that they are stalkers. Some of them believe that their victims enjoy the attention. Those who admit the error of their ways often confess that they are unable to combat their addiction. For them punishment alone is not sufficient; they have to learn how to deal with their fixation. That process will be considerably aided by the addition to the Bill in Clause 3 of the provision concerning the right of the civil court to order offenders to undertake counselling to make them confront their offending behaviour. It would be a retrograde step if that provision were to be removed from the Bill.

In conclusion, while I appreciate that there is a need for care to ensure that the new law against stalking does not catch those who are going about their legitimate business, be that as journalists, as debt collectors or as political canvassers—an occupation that will show a great increase over the next few weeks—the law must be adequate to remove the freedom stalkers have to terrorise the lives of innocent people. I truly and earnestly hope that the Bill will achieve that aim.

11.29 a.m.

Lord Thomas of Gresford

My Lords, the people of this country are entitled to look to the law to allow them to live their lives free from fear, whether it be from stalkers, disruptive neighbours, racists and all those who behave in such a way as to disrupt their lives. They are entitled to a swift and inexpensive remedy and clear-cut, immediate protection. Those who are accused of crime are entitled to know what crime they have committed, when they have committed it, and what conduct and what intent is punishable with the sanctions of fines and imprisonment.

I regret to say that the Bill fails every test of easy access to justice, practicability and fairness. It needs a radical and immediate amendment to make it work for the benefit of the people it is trumpeted to protect. Had the Private Member's Bill of Ms. Janet Anderson been given proper time and consideration in the spring of last year, with suitable amendments the Bill would have been a much better measure.

In the time available it is impossible to cover all the deficiencies in the Bill. Let me highlight three matters. First, Clause 1 introduces an objective test of harassment which is a fertile ground for argument in court and for an endless succession of not guilty pleas. In effect it states that, A person must not pursue a course of conduct … which he … ought to know amounts to harassment … if a reasonable person in possession of the same information would think the course of conduct amounted to harassment". I guarantee that many profitable hours of scarce legal aid resources will be spent by lawyers debating with the judge, the magistrate or the jury what a reasonable person would think. "People stop and stare—they don't bother me": the Freddy defence. Is singing and dancing and waving flowers in the face of Eliza Doolittle reasonable or not? Freddy is an obsessive. He believes his conduct to be perfectly innocent, not in the least bit harassing or fear creating. He had no intention that it should be. He will never plead guilty to be whisked off to prison in order to serve a prison sentence. The neighbour with a boundary dispute likewise will never concede that his aggression, abuse or rancour is unreasonable. After all, he is defending the boundaries of his properties.

The second deficiency relates to the statutory defences of reasonable conduct. They are fertile ground for a contest. The defence in Clause 1(3) is that it is not harassment if in the particular circumstances the pursuit of the course of conduct was reasonable. That is designed to protect investigative journalists. What about intrusive journalists? What about paparazzi photographing from a distance?

Similarly the defence in Clause 4(3)(c) that the pursuit by the offender of the course of conduct was reasonable for the protection of himself or another or for the protection of property again translates the neighbours' battles into the courts.

However, the third and greatest deficiency of the Bill is the unprecedented mishmash of civil and criminal procedure in Clause 3. Under these proposals the victim has to go to the High Court or a county court without the benefit of the police to identify the offender in order to obtain an injunction. Having obtained an injunction, if it is breached then the police and the CPS are involved and a criminal court grants a remedy. Then back the victim has to go to the civil court to obtain an injunction to cover future conduct when the person concerned comes out of prison. The onus of pursuing the remedy rests not with the police but with the individual who has to find solicitors, obtain legal aid if within the financial limits or otherwise pay herself.

How have the Government got into this mess? Having rejected Ms. Anderson's Bill, they published in July 1996 a consultation paper, Stalking—the Solutions. Responses were requested by September and were received from a number of organisations including the Law Commission. Those responses were withheld by the Home Office in answer to a Written Question by Janet Anderson on 26th November and were not revealed to me yesterday in answer to my request. That was the initial stage of the publication of the consultation paper. At the Tory Party Conference, Mr. Howard promised tough sanctions. He said: Today I can announce that we shall have them. Women deserve that protection and will make sure they get it". In a note to his speech he explained, The Government proposes to deal with the menace of stalking through a combination of civil and criminal remedies". Notwithstanding his rhetoric, the Bill was left out of the Queen's Speech. When reinstated by the Prime Minister on the hoof on the afternoon of the Queen's Speech something had to be done. Some flesh had to be added to the skeleton of the consultation paper.

But that consultation paper was seriously defective. It gave no serious consideration to the preventative powers of magistrates to keep the peace both at common law historically under the 1361 statute and under later legislation. In the whole of that document the only reference to the preventative powers of magistrates was contained in paragraph 2.7 which read: The police have a common law power to bring people before the courts for any breach of the peace, and the courts may then bind over the person concerned". That ended the discussion. So the obvious and simple development of a powerful remedy from these ancient powers has been entirely missed. A different approach, as the noble and learned Lord the Lord Chancellor pointed out, has been adopted in Scotland. I do not believe that there is a significant difference between the two jurisdictions.

In the law of England and Wales, the powers of the justices are similarly flexible. I make the following points about the existing powers of the justices. The power of the justices is akin to the power of a civil court to grant a quia timet injunction which covers apprehended future conduct. I refer to R. v. the Morpeth Ward Justices (1992) reported in 1995 Criminal Appeal Reports at page 218. It is invoked by a simple complaint filled out by a complainant under Section 115 of the Magistrates' Courts Act 1980. The subject matter of the complaint may be expressed in very simple terms. I refer again to the Divisional Court of the Court of Appeal, in the Morpeth Ward Justices case.

All the court requires is sufficient material upon which to act. It does not have to be sworn evidence but has to be such that when considered carefully and not capriciously it justifies a conclusion that there is a risk of a breach of the peace unless action is taken to prevent it. I refer to R. v. South West London Magistrates' Court ex parte Brown (1974) Criminal Law Reports at page 313.

Next the justices may bind a person over even though he has committed no offence. A binding over does not amount to a criminal conviction. That has been established over centuries. Justices have a wide discretion as the Divisional Court pointed out as long ago as 1935 in the case of R. v. Sandbach ex parte Williams 99 Justices of the Peace Reports at page 25.

Finally, a person who refuses to enter into a recognisance may be committed to prison. I refer to Veater v. G(1981)2 All England Reports at page 304.

I make those points and noble Lords can contrast them with that single sentence which appeared in the consultation document. I hope that your Lordships will see how inadequate that consideration was.

In the Commons debate on the Bill, reported in Hansard of 17th December 1996 at col. 784, Mr. Howard said, Criminal proceedings can deal only with offences that have already been committed; the criminal law cannot provide protection for someone who might reasonably expect that he or she might be subject to harassment in the future. Nor does it provide adequate protection where the evidence does not satisfy the criminal standard of proof. A conviction in criminal proceedings requires the jury or magistrates to be satisfied, beyond reasonable doubt, that the defendant committed the offence. In civil proceedings, the court needs to be satisfied, on the balance of probabilities, that the defendant harassed the victim". Where did he get that from? We know that Mr. Howard is not an expert in the criminal law, but really. Who advised him in that way? For over 600 years justices have had a wide discretion to protect people against what we should today describe as stalking or harassment.

I do not for a moment suggest that we leave matters as they are, as is proposed in regard to Scotland. We can greatly improve the position. The way to deal effectively, swiftly and cheaply with this problem is to develop the law out of the traditional preventative role exercised by the justices as part of their jurisdiction to keep the peace. The fundamental mistake behind the Bill is to permit entirely novel and confusing jurisdictions and procedures to spring, Minerva-like, out of the head of the researcher who prepared the consultation document—Minerva with a bent sword. I should have more confidence if the Lord Chancellor gave an assurance that the Law Commission backed these proposals on that consultation exercise. What did the Law Commission have to say about it? What reservations did it express? I invite the noble and learned Lord the Lord Chancellor to place in the Library the results of that consultation exercise.

We will put forward amendments within the Title of the Bill which will create a simple, two-stage procedure in the magistrates' court. First, a victim, or the police on her behalf, will bring a complaint before the magistrate setting out in simple language the problems she is encountering. The need for a draft definition of "stalking" or "harassment" will be avoided. The difficulty in arriving at satisfactory definitions was a serious flaw in Ms. Anderson's Bill. All that will be needed is for the complainant to set out in simple terms the conduct that is the subject of her complaint. What is harassing her? That complaint will be served on the person concerned if he can be identified.

Nothing more will be required of the court than to be satisfied, on a balance of probabilities, that there is material upon which the court should act—that is, the lower standard of proof. It does not require an offence to be proved, simply that material be placed before the court upon which the magistrate can act. The magistrates' court will then have discretionary powers to make a wide order and in particular, where a respondent has not appeared having been served, to order his arrest; secondly, to prohibit the particular conduct about which the complaint is made—not try to squeeze it into some definition of stalking or harassment, but the specific conduct about which complaint is made. The magistrate can sort out those matters that he considers serious enough to warrant an order of this sort and those which he considers not to be so serious.

The order can place future restrictions upon the respondent's movements to protect the complainant; and, ancillary to it, at the first stage in the magistrates' court, there can be an order of counselling for the offender; certainly the services of a counsellor can be made available to the defendant. The magistrate can call for medical reports, if necessary, and can award compensation to the victim for harassment. There is nothing in the Bill as drawn about compensation in the criminal jurisdiction. The victim can whistle for it so far as this Bill is concerned within the criminal courts, or alternatively start lengthy and expensive civil proceedings for damages, with separate remedies for those damages and separate methods of trying to recover them if they are awarded. But this order, at the first stage in a magistrates' court, would not contain any provision for fine or imprisonment; the making of the order would not constitute a criminal conviction; and there would be a power for the court to discharge the order on the application of the offender.

The important point is this—and it meets one of the points made by the noble Baroness, Lady Gould. The respondent would, at the preliminary stage, when he may perhaps have thought that he was acting perfectly innocently and perfectly properly, have his nose thrust into the consequences of what he was doing. He would know precisely what he was thereafter permitted to do and what he was denied doing.

The second stage would arise if he breaches the prohibitory part of that order. The breach of the prohibitions would be a criminal offence. The actus reus would be the breach itself; the intention to breach the order would be the m mens rea. The criminal offence would be made out in the ordinary way. It would be brought by the Crown Prosecution Service and be punishable by the magistrate, or in serious cases by the Crown Court. Power to fine, to imprison, to make probation orders subject to medical treatment or to make hospital orders in the ordinary way would then arise. So the activity would be criminalised when an offender breached a magistrate's order, and not before. Then, the full panoply of ways of dealing with the offender at that stage is available.

What are the advantages? First, a clear and certain criminal offence would be created. The case goes to the criminal court; the order is proved; the breach is proved. Arguments about what "a reasonable man" may or may not think about the respondent's conduct would be avoided. Anybody who wants to listen to arguments about what a reasonable man thinks should read the reports relating to provocation in murder cases. What a reasonable person thinks takes up endless time.

Secondly, unlike civil procedures in the High Court and county court, the police can be involved by the complainant from the beginning under this simple procedure in order to identify the person concerned.

Thirdly, the complaint can be drafted by the victim in her own terms or with the help of the police or, very importantly, with the help of the Citizens Advice Bureaux—this is exactly the sort of matter in which they would want to be involved. Victim Support could be involved; the free representation units could assist; or even the green form legal aid system with solicitors could be used. Those are simple procedures, not trying to bring conduct within a statutory definition of stalking or harassment but simply setting out the conduct complained of for a magistrate to consider and make an appropriate order. Then there is no need to define an offence of stalking.

Next, the offender will have full notice of the conduct of which complaint is made and may be counselled about it. There will be no need for statutory defences. Persons with legitimate reason for their conduct will be weeded out at the first stage before the magistrate, before any criminal proceedings are ever begun. Arguments about what is reasonable or not reasonable by way of statutory defence would be avoided.

Under the system that we propose, there would then be no need for the victim to hawk her problems round both the civil and criminal courts. The matter would be dealt with within the jurisdiction of the ordinary local magistrates' courts. Once you get out of London, and out of the provinces, you find that the county court circulates perhaps once or twice a month in certain areas. The magistrates' courts sit all the time. They are available; they are there, ready to deal with problems such as this.

If a victim wishes, in addition to receiving compensation under the scheme that we propose, to sue for damages as well, then he or she can bring an action in the High Court or county court in the usual way. We do not have fast track litigation as yet. If a case is ready for trial today, it will be heard in 15 months' time. The civil courts can safely be left to develop the tort of harassment in the light of experience as they have historically in other areas of tortious liability. Anybody who has the leisure and money to sue for damages in the High Court or county court can leave it to those courts to develop the tort, as they have developed other areas of tortious liability and as they do at present. What is not needed in the vast majority of these sorts of cases is lengthy delay and expense in the manner suggested in this Bill. Further, a form of words for a new tort to cover all the possibilities is as elusive as a definition of stalking, as was demonstrated by Ms. Anderson's Bill.

Despite the mounting election fever, this is not a party issue. I am sure that on all sides of the House we are concerned to deal with a practical problem in a sensible way and maintain easy access to a remedy. All parties must be concerned. I look to the Government for a constructive response to the amendments which we shall set down in extenso for the Committee stage.

11.50 a.m.

Baroness Park of Monmouth

My Lords, as a layman, I shall be a little briefer. In my humble way I have had some experience of harassment. While serving abroad in Africa I once had the pleasure of receiving at about 2 a.m. each morning for a period of 10 days threats to tar and feather me from a group of lovable characters who disapproved of me but were far too bashful to identify themselves. What saved me from more of that was the breakdown of the telephone system—not unusual in that place but rather fortunate at that moment. I therefore feel a special commitment to this Bill.

I strongly support the Bill. I particularly welcome its new title and the definition of harassment in Clause 1 as a course of conduct which amounts to harassment of another and the further statement that: the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other". I welcome that much more general, fine-tuned definition. Previous stalking Bills, as they were called, seemed to concentrate on threats of violence and sexual harassment. I may be wrong, but that is how it seemed to me. I can see that the noble Lord, Lord McIntosh of Haringey, knows that I am wrong; I apologise for that. There are, of course, many cases of grave offences of that kind.

Clause 4 of the Bill deals with action which puts people in fear of violence. I welcome that in the context of racial violence and the threats of violence to families on estates which we have heard of far too often in the past year or two. However, there are other, truly devastating forms of harassment that are not violent. They consist of a relentless presence in the victim's life which can drive victims and their families, if they are not very strong both morally and in terms of physical health, to breakdown and at the very least to permanent anxiety and stress. They constitute an invasion of privacy and a denial of the right to a normal life.

That kind of haunting and hunting of a victim can be—and is—conducted simply through unrelenting and unremitting pursuit and a presence in someone's daily life at every turn. I have known several such cases of varying severity and even tragedy, lasting for varying periods of time, in both the academic world and elsewhere.

In one such case the pursuer attended every lecture given by the victim, purporting very vocally from the back of the hall to be a rejected lover, and pursued the victim to college to make similar claims in public, as well as deluging the victim with letters and a mysterious and sometimes sinister-seeming presence. In that unfortunate case the victim was a man and his persecutor a woman. There was no word of truth in the scenario that was played out. The provision in Clause 3(3) for counselling—counselling was given in that case—would have been entirely appropriate. However, though the stalker in that case had a severe health problem and was to be pitied, that did not alter the extreme distress suffered by the victim, who bore it for many months with the utmost patience. There was no violence involved but the harassment was extreme. That all happened many years ago, otherwise I should not have spoken of it so explicitly.

I cannot speak of the other cases known to me because they continue to this day. In two of the most serious the victims are again men. I can say that many of the thousand separate actions involved could, as separate acts taken in isolation on a particular day, be made to appear relatively reasonable, in a mad sort of way. Their remorseless accumulation, which amounted to an invasion of the whole life of the victim, is exactly what this Bill is about. The effects on the victim and the victim's family, were they not both strong and stable, could have been—and could yet be—deadly serious. As it is, the invading presence, day in, day out, has made life nearly intolerable.

I welcome most warmly legislation which could offer hope of an end to a most distressing situation by its very recognition that such pervasive harassment is a crime. I have spoken in this way in order to emphasise the potential value of the very careful formula used in the Bill to define harassment.

11.56 a.m.

Earl Russell

My Lords, I am sure that the noble Baroness, Lady Park of Monmouth, will not misunderstand me if I say that I am delighted that her telephone system broke down.

I am also delighted that this Bill is before the House. That is in part in response to remarks made from our Benches. We are firmly committed to the principle of this Bill. However, when we made those remarks—and I repeat here what I said on 24th October during the debate on the humble Address—we also intended to convey that the drafting of the Bill needed to be scrutinised with the greatest care, because it is important not only to do it but to get it right. Therefore, as the noble Earl, Lord Carnarvon, said on another occasion, we criticise the Bill in no unfriendly spirit.

I am glad that the Bill covers stalking against men. However, it is true, as the noble Baroness, Lady Gould of Potternewton, said, that victims normally tend to be women. I believe that we make the mistake with stalking that we make with rape of thinking of it as primarily a sexual offence. It is not primarily about sex, I believe; it is about power and sometimes also about violence.

The noble Baroness, Lady Gould, referred to people finding that stalking has taken control of their lives. That, I think, is the object of the exercise and that is the offence which we are trying to define. It often proceeds from an intense hatred of the female sex in general. In these days of equality perhaps one ought to amend the proverb to say that hell hath no fury like a woman scorned, except a man scorned.

I recall one case that I read about. Someone preaching in 1610 ascribed the Fall to the alleged fact that Eve committed fornication with the Devil. I think that the right reverend Prelate will confirm that there is no scriptural warrant for any such allegation, but it perhaps indicates the state of mind from which offences of this kind proceed.

I believe that the noble and learned Lord is quite right that we need a new criminal offence. The existing criminal offences are extremely spotted, put together by bringing them under the hats of various other offences which have developed over the years. In effect, one can only prosecute stalking as a criminal offence by putting it in fancy dress, which is a rather unreliable procedure.

I agree with what seems to be the general opinion in every quarter that the civil procedure is a great deal easier than the criminal. However, the civil procedure is not sufficient: first, because of what has happened over the past few years with regard to legal aid; secondly, because, as the noble and learned Lord on the Woolsack pointed out, a victim cannot use the civil procedure unless he or she is able to identify the harasser; and, thirdly, because the last thing that a victim of this kind of conduct wishes to do is to come out in public and make himself or herself conspicuous. I believe that deters the use of the civil procedure on a number of occasions.

The moment I moved from hoping that they would do something about this to feeling that we needed to try very hard to get it right was when listening to a speech at my party conference. I say to the noble and learned Lord, Lord Simon of Glaisdale, that, whatever may be true in other places, in the Liberal Democrats one listens to a lot of good sense at party conferences. The speaker in question was a magistrate of many years' experience, who said that she very much hoped that a Bill would be put on the statute book and that it would be so tightly drafted that it would allow a proper defence. I am not satisfied that this Bill passes that test. I do not say exactly how counsel would set about mounting a defence to it.

I am concerned that there is no mens rea in the offence, though I entirely understand why there is not. I am very much attracted by the suggestion of my noble friend Lord Thomas of Gresford about the procedure for binding over under the 1361 statute. That meets the principle concerned, which is that the conduct should stop. If that power is used in error, a person is only stopped from doing what he was not going to do anyway. That does not do very much harm. It is not like imprisoning someone for an offence for which he has been unjustly accused.

That statute was passed on the conclusion of a war and the return of a large number of disbanded and often unpaid soldiers. Those people created anxiety simply by hanging about. That is not without parallel to the case with which we are now dealing. My noble friend has hit on something which is worth exploring a great deal further. I am extremely interested in attempts to pursue it further.

I am not nearly so happy about the definition of the offence in the Bill and, in particular, the wording of Clause 1. I am considerably dismayed by the use of the words "ought to know" in that clause and in Clause 4. I cannot help but hear echoes of Belloc: You know, at least you ought to know, For we have often told you so". I am not being frivolous. The words "ought to know" are usually used about something that one has said again and again and the message has not got over. In fact, the frustration in the draftsman's mind is evident in the drafting of the words.

It also imports a kind of moral imperative into legislation, which causes me a certain amount of anxiety. In addition, I am worried about the "reasonable person" test in Clauses 1(2). Matters of sexual conduct are now matters in which the standard of "reasonable person" varies extremely. I agree with my noble friend Lord Thomas of Gresford. I can see courts arguing endlessly about whether a reasonable person ought to have known that some conduct was offensive. So I am not particularly happy about that. But I also agree with the Government and the noble and learned Lord that the Opposition's approach of proceeding by enumeration through a list is not particularly satisfactory either.

Where do we go from here? It is a good procedure to start asking why the offence is wrong. That is one way to get at the offence that we wish to define. Essentially, it is wrong not because it breaches an objective standard of behaviour but because it is unwelcome to the victim. It is a legal maxim that volenti non fit injuria—to a willing person there is no injury done; but equally a converso, to an unwilling person there is an injury done. That is the point.

By sheer coincidence, yesterday I happened to have lunch with a pupil. In some ways a college is very much as good as a constituency. I discovered that she had been the victim of conduct which quite possibly might turn out to be an offence under this Bill. I got from her more disinterested advice than I have had from anyone else who has advised on the Bill, and many people have done so. I asked her whether she could define why what the person was doing to her was wrong and I received three answers. First, "It was driving me round the bend", she said. There one has a classic definition of harassment. Secondly, "It went on and on", she said. There is the course of conduct. I shall not forget, way back in 1965, listening to my noble friend Lord Lester of Herne Hill explain to my late friend Lord Bonham-Carter what the concept of "the course of conduct" meant. He persuaded me then and I remain persuaded. Thirdly, said my pupil, "I didn't want it". That is the element which we do not have in the definition in Clause 1.

The problem, of course, with any approach based on consent is the fact, which has been mentioned by several people, of the perpetrator's erroneous belief that the victim consents. My mind turned to the common law of rape and the phrase which comes, I think, from the judgment in R. v. Thomas, though I cannot swear to it: knowing the victim did not consent or reckless as to whether he consented.

That might possibly fit the bill and I shall be extremely interested in the noble and learned Lord's reaction to it. Consider it from the point of view of counsel from both sides. From the point of view of prosecuting counsel cross-examining a stalker on why he believed the victim consented, it could be a cross-examiner's day dream. From the point of view of defending counsel, that if there are any actions by the victim which might give rise to the belief that she consented, it would be perfectly possible for him to draw them to the attention of the court. So it would benefit both the prosecution and the defence.

However, the point was made to me by one of those who advised me—I think my recollection is correct—that in dangerous driving recklessness does not catch the person who believes that he was driving with due care and attention. That is not parallel to a case of rape. But before putting that forward in Committee, I should want to be sure that recklessness would not protect the person who believes that he enjoyed consent, though he had no good reason to do so. That would be crucial to this particular approach.

The only other item that I wish to mention is the wording of Clause 12 and the Secretary of State certifying that a specified person is acting for national security or the prevention of crime. The clause as worded says that it should be regarded as "conclusive evidence" that the Act does not apply.

The word "conclusive" causes me a little anxiety. Law enforcement officers are men and women who have the weaknesses of their sex and their humanity. There are cases in which power is abused. I refer to the dispute about strip searches by prison and probation officers, without expressing any opinion on the merits of a case that I have not studied in any detail. However, it is possible, for example, that a law enforcement officer who wishes to harass someone might indulge in repeated strip searches without sufficient warrant. It is perfectly possible that the Secretary of State would not know that to be the case and the officer would not particularly wish to tell the Secretary of State. I wonder whether some word other than "conclusive" in Clause 12 might be considered—either prima facie evidence or rebuttable presumption.

With those provisos, I look forward to what I hope will be an amicable Committee stage. I am delighted that the Bill is before us and look forward to improving it.

12.10 p.m.

Lord Dixon-Smith

My Lords, on 12th June last year this House gave a Second Reading to the Stalking (No. 2) Bill, which came to us from another place. The record appears in Hansard, starting at col. 1817. There was no disagreement in the House about the intention of that Bill, but I argued against it on the grounds that the methodology was wrong. The definitions of stalking used in that Bill were so open to misinterpretation that the Bill could easily have been abused had it been passed into law.

I do not regret anything that I said on that occasion, the more so since what happened afterwards gave rise to the Bill before us today. This Bill deals with the subject in a much more satisfactory way and is welcome for that reason. Since the last debate, various high profile cases have come before the courts which show that there can be difficulties with the application of existing laws which I argued ought to control and prevent the offence.

It is clear in dealing with the drafting of this Bill that the Government have taken into account the debates of last year. The definition of harassment as being what a reasonable person in possession of the same information would think amounted to harassment flows smoothly from those debates where there was agreement that we all thought we knew what the offence was but could not define it. In any event, since each offence is almost certainly different, this open definition will permit the courts to consider the facts in a straightforward way and make a proper judgment. If it decides that harassment has taken place, it can go on to deal with the matter in a straightforward and appropriate manner as laid out in the Bill.

I listened with great interest to what the noble Lord, Lord Thomas of Gresford, had to say. My only concern is that he seemed to want to introduce yet another Bill by way of amendment. I would be a little concerned as to what that might do with our capacity to handle it in the time available. I am sure that all sections of the House agree that there is a need to have a Bill on the statute book as soon as can reasonably be done.

I hope that I interpreted correctly the way in which the Bill will work. Methodology is important. Perhaps my noble and learned friend the Lord Chancellor will tell me when he replies that I am not in error. Be that as it may, I am left wondering how a case will get to court in the first place. In a civil case the route is plain. But I am somewhat concerned, due to my limited knowledge of the law—I admit that I have kept as far away from the law as I can—that it is a long and tedious process and the nature of the offence demands swift action. That is even more so if the matter is so bad as to warrant it being dealt with as a criminal offence. The person harassed needs protection speedily. Presumably the police will have powers to detain and charge an offender on the basis of the facts as they can ascertain them. But what happens then? An offender released on bail may well continue to commit the offence. Is a bail application hearing an appropriate place for an injunction to be made? I do not know enough about court procedures to answer that. Again, I shall be obliged to the Lord Chancellor if he can give me an answer.

The Bill must be welcomed even while we all regret the need for it. It offers a definition of harassment that will work and that can be applied by the courts in a straightforward way. Of course care will be needed in relation to family disputes. I have even heard a hint that the Leader of the Opposition in another place was somewhat concerned that he might be being harassed by Mr. Heseltine and have to resort to the Bill. However, I do not take that seriously.

Provided the procedures under which the Bill works can be taken through the courts speedily, the Bill will work and work well and will provide protection for those who need it. I look forward to the reply of my noble and learned friend the Lord Chancellor.

12.15 p.m.

Lord Meston

My Lords, if this Bill is to be of value, it must reach those parts which the civil law in England and Wales may not yet reach and those parts which the criminal law in England and Wales has struggled to reach. By contrast, the law of Scotland has not had the same problems because of the wider concept of "breach of the peace" in that jurisdiction which does not require specific proof of intent. We are told that in Scotland the law is flexible. However, I have not seen it criticised as being too flexible in criminalising activities inappropriately.

If this Bill can work in the same way, perhaps some of the fears that it will be misused in dealing with problems which English law has not regarded as criminal are misplaced. The Bill creates four new criminal offences in England and Wales and intermingles the civil and criminal law and procedure in a remarkable way. It deals with areas of human activity where emotions run high and where the offender can be inadequate, deluded or ill and where even the victim may not be a victim but someone who has been spurned and wants to cause trouble. For those reasons we must look carefully at how the Bill will work in practice.

The two main offences created are for harassment alone and for harassment which causes fear of violence. However, a victim of stalking could be caused considerable anxiety and distress without a threat of violence actually being made. For that reason I wonder whether summary criminal sentencing powers in Clause 2 are necessarily sufficient for the so-called "lower level" offence. In some respects the Bill takes over from where Part IV of the Family Law Act 1996 left off in the provision of remedies for harassment. That part of the Act concerns family homes and domestic violence, to which this House devoted so much time—certainly rather more than was expected thanks to the carefully considered opinions of certain Members of another place in reacting to what they understood was contained in the original Family Homes and Domestic Violence Bill.

The Family Law Act now protects a wide range of potential applicants within the domestic and family context. But a line is drawn so that victims of harassment outside that context are not protected, at least by statute. For example, a borderline case not covered by the Family Law Act is the new spouse or new partner who is being harassed by the unhappy or vindictive former spouse or partner. This Bill will deal with that sort of situation and with others some of which can be deeply distressing for the victim. Examples that I have come across in practice include a dispute between neighbours which continued long after they ceased to be neighbours; an inadequate male employee who became obsessed with a female colleague, following her home at night and lying in wait for her in the office car park in the morning; and a female student who became infatuated with her lecturer—a similar tale to that told by the noble Baroness, Lady Park.

It is those situations as well as the more sinister forms of stalking which this Bill should deal with flexibly. By their nature there can be no reliable statistics. It is now well understood that that sort of intense, obsessive behaviour can make life a complete misery for its victims, about 80 per cent. of whom are thought to be women. Domestic violence and public order legislation are inappropriate and the police and courts do not find those cases easy to handle. Certainly, the magistrates' ancient jurisdiction to bind over is available but I suspect that it is being under-used. I hope that serious thought will be given to the proposals outlined by my noble friend Lord Thomas of Gresford to build upon that jurisdiction. I certainly concur with what he said about the potential argument concerning what is or is not "reasonable". One has only to look at the rather cumbersome definition in Clause 4(2) which runs to some 61 words without a break before the full-stop.

Concern has been expressed that the word "harassment" is too vague and lacks definition in the Bill beyond the partial definition in Clauses 7 and 8. Part of the difficulty is that harassment can refer both to the action of harassing and to the state of being harassed. My noble friend Lord Russell is right in saying that an important element is that the conduct, of whatever kind it may be, must be unwanted. That is certainly recognised in the field of discrimination law where, again, although there is no definition of harassment, the courts have adopted a definition which includes the concept of unwanted conduct, whether physical, verbal or non-verbal.

Clauses 7 and 8 refer to causing alarm or distress but they do not attempt an exclusive definition. They do not provide that alarm or distress must have resulted. It is not clear to me whether behaviour which causes anxiety falling short of distress will be enough, or whether mere anxiety would not be regarded as serious or immediate enough. A balance has to be struck between a concept of harassment which is too wide and one which is too specific, with a closed list of types of conduct leaving gaps for the ingenious or devious offender. In many ways it is a repeat of the debate about the use of the word "molestation" in the domestic violence field. The word "molestation" has been tried and tested with reasonably satisfactory results. I should like to see in the Bill a version of Section 42(6) of the Family Law Act specifically providing that orders may be expressed to refer to harassment in general or to particular acts, or to both. To some extent Clause 5(2) provides for that, but it could be clearer and the matter could be mentioned also in Clause 3 dealing with civil remedies.

The intermingling of criminal and civil procedures under the Bill is presumably designed to give flexibility. There must be at least a risk that it could cause confusion and inconsistency which may hinder what should have been the objectives of the Bill—to give fast and effective protection to the victim and to give effective help to those offenders who are mentally unwell. Ideally, the criminal law should not be the first resort. But if that is to be achieved, the civil court must have proper powers. Surely, the civil court should be able to attach a power of arrest to its orders when appropriate so that someone who disobeys the order can be brought quickly back before the same court, and probably the same judge, rather than be charged with a criminal offence or wait for the victim to launch an application for committal for contempt.

If there is to be a power of arrest, there ought also to be a power in the civil court to remand for medical examination and reports—something which was included in the Family Law Act largely in response to the wishes of the circuit judges. If there is a good reason why the civil courts cannot deal with a breach of orders under the Bill in the same way as a breach of a domestic violence injunction, there must be clear guidance, at the very least, as to the preferred way of dealing with a breach of injunctions. Clause 3(4) creates a criminal offence, and subsections (5) and (6) very properly make punishment for contempt and punishment for the new offence mutually exclusive. There must be guidance to ensure that the legal aid authorities will not decline to authorise civil committal proceedings for contempt just because there is a criminal offence and also to ensure that the police and the prosecuting authority will not decline to act if they consider that civil contempt proceedings can be taken.

Finally, in respect of Clause 3, there is subsection (3) which allows the court to order someone to attend a course of counselling. If that provision, or something like it, survives, the courts will certainly want to know whether, as with a probation order, it is necessary to obtain the defendant's consent to the making of the order. The court will also want to know what are its powers to deal with a breach of an order to attend such a course of counselling and whether the civil remedies or criminal penalties can be reconsidered if there is such a breach.

The power in Clause 5 given to the criminal court to make a restraining order only arises upon sentencing. Presumably it is felt that up until that stage the restraint can be provided by conditions of bail. I well understand that the intention is to avoid the need for the victim to go elsewhere for an injunction when the criminal courts can deal with the matter. But there must be some mechanism to enable the victim's interest to be properly heard and represented. Clause 5(4) provides for the victim to apply to vary or to discharge the order by further order, which I hope is clear enough to convey that the victim can apply, if appropriate, to extend the duration or scope of the order. I should also like to see provision allowing for the victim to be consulted and, if necessary, represented at the stage when the order is made or varied to ensure that it properly meets what is required for his or her protection.

The Bill is important because it is an opportunity to deal with a serious problem and because a balance has to be struck between a law which is too tightly drawn and which creates reluctance to proceed and to prosecute, and with that a need to fall back on existing law, and a law which is too loose and might criminalise the essentially harmless nuisance. It does not appear that the Bill had much detailed scrutiny in another place, and that must reinforce the need for scrutiny in your Lordships' House.

12.26 p.m.

Lord McIntosh of Haringey

My Lords, a number of noble Lords have referred to the history of this measure, and there has been criticism in public, in another place and in your Lordships' House today about the way in which the Bill was introduced very rapidly after the debate on the Queen's Speech and went through another place in two days. We must be grateful to the noble Lord, Lord Meston, for reminding us that these issues have been before Parliament for something closer to two years, starting with the family homes and domestic violence legislation which became the Family Law Act 1996. These issues have indeed been debated fully.

The one point on which all noble Lords are agreed is that legislation is necessary; that not just the use of existing powers but existing legislation has not reliably and consistently protected those people who suffer harassment. The second point on which we are all agreed is that there is such a thing as harassment and that there is such a thing as what is commonly called stalking, and that they are extremely painful and disruptive sometimes of people's whole lives, whether they are men or women.

We come to this legislation today after a series of attempts to deal with the problem in different ways. The family homes and domestic violence legislation dealt only with a more limited and parallel problem and the non-molestation orders proposed in that legislation and then incorporated into the Family Law Act referred only to people who were related to each other. The Bill of my honourable friend Janet Anderson attempted a different approach, combining criminal and civil law. That is clearly a difficult thing to do under any circumstances. The Bill achieved no progress in another place and was only debated in Parliament because I introduced it as my Stalking (No. 2) Bill in the last Session. That was the opportunity for two different strands to come together.

The Lord Chancellor—I am enormously grateful to him not only for what he did then but for what he has said today—realised and advised me that the non-molestation orders in the Family Law Bill at that time could be appropriate to the problem of stalking. I therefore completely revised my Bill in Committee to make it comparable to the non-molestation orders in the Family Law Act. The opposition of the noble Lord, Lord Dixon-Smith, to my Bill at Second Reading had some justification, but it did not relate to the Bill as it finally left this House. Of course, being a Private Member's Bill starting in this House late in the Session it had no chance of becoming law, particularly since the Government still had criticisms of its wording; although very few in the end.

Now we have a Bill that follows consultation and a consultation document, which we are assured by the noble and learned Lord the Lord Chancellor in his opening speech was broadly welcomed by those who responded to it. I am a little alarmed to learn from the noble Lord, Lord Thomas of Gresford—I should perhaps have found out for myself—that the responses to the consultation have not been published and are not available to this day. It would be enormously helpful if the Lord Chancellor could undertake to make them available before the Committee stage.

We have a Bill which attempts to cut through the problems encountered in previous legislation and, I hasten to say, it broadly has our support. We wish to see the best possible legislation on the statute book before the end of this Session and before the end of this Parliament.

I was startled by the speech of the noble Lord, Lord Thomas of Gresford. If he is right, then it is rather as though we have to start from scratch and create a completely new Bill, as he said, within the Long Title of the existing Bill. As a non-lawyer, I am simply unqualified to know whether he is right. He made some effective points. He pointed out that under this legislation the onus of pursuing a remedy still lies with the victim rather than with the police or other people who might help the victim. He made the point to which I have already referred about the responses to the consultation paper being withheld.

He is proposing an extension of the justices' duty to keep the peace and their power to bind over as a solution to the problem. That would be as drastic an amendment of the Bill as my own amendment of my Private Member's Bill last summer. It would mean completely rewriting it. The noble Lord put the matter entirely objectively and I praise him for that. The noble Earl, Lord Russell, sought to make some political capital out of it by talking about what "we Liberal Democrats seek to do". I was a little taken aback by that. Mrs. Diana Maddock, who handled the matter for the Liberal Democrats in the other place, made no such radical criticisms.

Earl Russell

My Lords, perhaps I may clarify what I said. Our party has been reproached for obstructing this Bill because we have put down amendments. I thought that was an unfair approach and I hope that it is now abandoned. That is all I was concerned about. I do not believe that the noble Lord need take offence because it was not aimed at him.

Lord McIntosh of Haringey

My Lords, I do not believe that any of us should be criticised for tabling amendments to any legislation. We are clearly anxious to have the best legislation. I did not take offence. I was just pointing out the difference between the very much less radical approach that Mrs. Maddock took to the extremely radical one taken by the noble Lord, Lord Thomas of Gresford, today. I cannot quote her, but all she said was that she had made a speech at the Liberal Democrat conference earlier, in 1996. To paraphrase her, she was satisfied that the Bill broadly fits the description of what she wanted in her conference speech.

The consistent and coherent attack which the noble Lord, Lord Thomas of Gresford, made on the Bill raises the question of whether this is the time to do so. If he felt so strongly about it, did he respond to the consultation paper himself? Was there any discussion as a result of that response? Has he made his views public on any occasion before? I ask out of ignorance and not in any sense as criticism. If he is taking such a radical approach to this Bill then it would have been helpful to all of us to have known about it when the Bill, or even the consultation paper, was first published because discussion could have been that much more comprehensive.

Lord Thomas of Gresford

My Lords, perhaps I may assist the noble Lord. In the Liberal Democrat conference to which he and the noble Earl, Lord Russell, have already referred, the party adopted a two-stage approach of a civil situation followed by a criminal offence in the way that I have put forward as a broad framework. The details that I have put forward today are really flesh on the bones.

Lord McIntosh of Haringey

My Lords, the noble Lord will understand that I am taking his criticisms extremely seriously. I am not in any way brushing them aside. Just because I am not qualified to judge whether or not they are correct, I do not wish them to be brushed aside in any way in the consideration of the Bill in this House. All I want to see is legislation which takes the best from all possible sources. If that includes the noble Lord, Lord Thomas of Gresford, as it may well do, then we must see his amendments very quickly. We must also consider whether the timetable for this Bill is correct for proper consideration because I have agreed to the Committee stage being taken in the Moses Room without Divisions. We shall have to consider whether that is the right solution.

I am now getting out of my depth on this Bill. I thought that I understood the concept of stalking. I thought that my introduction to it last summer gave me some authority to speak on it. It is quite clear that consideration of this Bill from these Benches will have to be carried on by lawyers rather than by myself. Under those circumstances it is better that I do not continue to contribute except perhaps to express my gratitude to all those—particularly my noble friend Lady Gould—who have underlined the necessity for effective legislation on this important subject.

12.38 p.m.

The Lord Chancellor

My Lords, I personally should regret it if the noble Lord, Lord McIntosh of Haringey, felt disinclined to continue, because although lawyers certainly have an important contribution to make it is extremely important that those with broader experience, which the noble Lord has of these matters, should also play a part. Lawyers are not always the only people whose views are valuable on matters of this kind. I very warmly welcome the participation in debates of this kind, and in all other debates affecting the law and the legal profession, those who are not lawyers because from time to time I have found that contributions from others are extremely useful and effective. I do not mean in any way to exclude the contribution of lawyers from the noble Lord's Front Bench.

I think I am right in saying that, without exception, all noble Lords who have spoken have agreed that the problem requires to be dealt with by legislation. Even the noble Lord, Lord Thomas of Gresford, with his latest thoughts, supports that point of view. Therefore, I am sure that your Lordships will wish to give the Bill its Second Reading and I do not therefore need to address that point in too much detail.

I await with great interest the amendments which the noble Lord, Lord Thomas of Gresford, is to propose. For my part, I consider that they will be perfectly suitable amendments to be dealt with in a Moses Room Committee without Divisions because in such situations we try to achieve as good a solution to the problem as possible. I hope that that will be the attitude here. If there are still problems at the end of such a Committee, Divisions will be appropriate at Report stage. The substance of the matter, however, can be dealt with in that way. I think that all are agreed that we should now deal with the problem with a degree of urgency. I am sure that we would all regret it if this Session of Parliament came to an end without the matter going to Royal Assent. I am certainly willing to do all that I can to bring the matter to a successful conclusion.

The noble Lord, Lord Thomas of Gresford, indicated thai at the Liberal Assembly the idea that was put forward was to start with civil proceedings and to build criminal proceedings on them. That was basically my approach to the matter from an early stage. The Bill does that to some extent because the answer to the point raised by the noble Lord, Lord Meston, about the power of arrest is that a breach of a civil injunction is an arrestable offence under the Bill. It was pointed out to me forcefully as a result of the consultation and otherwise that starting with the civil law and building on it has shortcomings where the stalker is not known to the individual being stalked. The intervention of the criminal authorities in the shape of the police may be necessary in that connection. That is why I believe that we need criminal sanctions as well as civil sanctions, although there is a great deal to be said for building on civil sanction-type provisions, which is not what the noble Lord, Lord Thomas of Gresford, is proposing today but is based on the same idea—namely, in civil proceedings one can very much fashion the order to the circumstances. It is difficult to do that with criminal proceedings because one has to define criminal conduct in advance. The Bill seeks to build on that.

I must advise my noble friend Lord Dixon-Smith that where criminal proceedings are started there will be a question of remand and that bail conditions can very much be tailored to the circumstances of the case and can be applied from the very beginning of the proceedings. I believe that that deals with my noble friend's point.

No one who has looked at the problem with any degree of concentration could possibly think that it is easy to define the basic elements of a criminal offence. I am grateful to the noble Earl, Lord Russell, for the advice that he was given by a student. I believe that he found it even more valuable than the multitude of legal advice to which he had access. It was a useful analysis of the concept. He said first, "It is driving me round the bend". That is harassment. It is a continuation of the matter. Secondly, it was unwelcome. That is an important criterion. He said that the activity went on and on. That makes for a course of conduct. He also said, "I did not want it". Those are the elements of harassment. There is a lot to be said for that analysis, but the same conditions might apply to an investigative journalist seeking to interview some magnate who is accused of a corrupt practice. The journalist may be seeking to unearth evidence of that in an interview with the person in question. That is why we need some form of defence to deal with legitimate activities of that sort.

The Bill is the best that we have been able to achieve. I am anxious to seek improvements. The Government are not claiming infallibility in this matter and any help that your Lordships can give us to improve the Bill will be most welcome.

The noble Earl mentioned the fact that Clause 12 refers to conclusive evidence. My answer to his suggestion is that the instances will be covered by the provisions of Clause 12. There is no general exemption in saying, "This was done on behalf of the Crown". The clause states: in his opinion anything done by a specified person on a specified occasion related to"— various matters are then specified— and was done on behalf of the Crown". Therefore, the idea that a certificate could cover something which is not the activity in question is properly dealt with. Unless the evidence is reasonably conclusive, it is not worth very much in circumstances of this kind.

On the point about consultation, my understanding is that the consultation document did not expressly state that any responses would be made public. Accordingly, I understand that in answer to a question, my colleague has given a list of all those who responded. Therefore, anyone who wants to know the answer that was given can get it. I have encountered such a problem in the past and it is a matter about which we must be careful because some people give advice on the understanding that it is available to those who asked for it and to none other.

I am sure that I would have no difficulty in getting the consent of the Law Commission in that regard. I am sure that it would regard its contribution as completely public. My recollection is that the Law Commission would prefer the problem to be dealt with in the codified structure of its Bill on offences against the person. That was reported on a long time ago and the Law Commission had hoped that it would receive parliamentary time but until now it has not. That is a much bigger structure and I do not think that it would offer a solution to the problem that we have here if we were to deal with it in the present Session of Parliament. I am sure that I shall be able to secure such information being made available to anyone who wants it as soon as possible. I am less sure about the other respondents, but I shall do what I can. Those who want to ask any group that has responded can approach the group directly for its response, if that is what they want to do. In the meantime, I shall try to pursue the point, but I am sure that your Lordships will understand that I cannot give an absolute undertaking to put the whole lot in the Library.

This has been an extremely constructive debate, out of which comes the feeling that we must now deal with the problem in such a way that the measure can reach the statute book. In the course of doing that, we shall be able to consider all possible solutions if we take the route which the noble Lord, Lord McIntosh of Haringey, has indicated and have the Committee in the Moses Room. That would give us the flexibility to look at solutions in a spirit of seeking the best available answer, which might not be possible in the sort of time that could be allocated to the measure on the Floor of the House. I hope that all of your Lordships will agree to pursue that course.

The noble Lord, Lord Meston, and myself have experience of working on related problems in such Committee proceedings and, speaking without reference to my own participation, I think that the quality of the outcome has generally been extremely high and has carried a high degree of consent right across the membership of your Lordships' House. I hope that we can pursue that course. In the meantime, it is with a degree of confidence that I renew my Motion to your Lordships that the Bill should be read a second time, and that it should be understood that the proceedings on the Committee stage will be taken in the Moses Room with the hope that we can secure as much consensus across the House as is possible.

On Question, Bill read a second time, and committed to a Committee of the Whole House.