HL Deb 10 March 1997 vol 579 cc22-5

3.47 p.m.

Report received.

Clause 3 [Civil Remedy]:

The Lord Chancellor (Lord Mackay of Clashfern) moved Amendment No. 1: Page 2, line 10, at end insert— ("(2A) Where—

  1. (a) in such proceedings the High Court or a county court grants an injunction for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment, and
  2. (b) the plaintiff considers that the defendant has done anything which he is prohibited from doing by the injunction,
the plaintiff may apply for the issue of a warrant for the arrest of the defendant. (2B) An application under subsection (2A) may be made—
  1. (a) where the injunction was granted by the High Court, to a judge of that court, and
  2. (b) where the injunction was granted by a county court, to a judge or district judge of that or any other county court.
 (2C) The judge or district judge to whom an application under subsection (2A) is made may only issue a warrant if—
  1. (a) the application is substantiated on oath, and
  2. (b) the judge or district judge has reasonable grounds for believing that the defendant has done anything which he is prohibited from doing by the injunction.").

The noble and learned Lord said: My Lords, as I indicated when the Bill was in Committee, although many of its provisions are based on the very effective model provided in Part IV of the Family Law Act 1996, it was neither necessary nor appropriate to reproduce all the detailed provisions from that legislation in the present context.

One very significant difference between the two remedies is that here a person who without reasonable excuse does anything which he is prohibited from doing by an injunction will have committed a criminal offence for which he can be arrested, as well as being in contempt of court. That is why there is no need for the court granting the injunction to be able to attach to it a power of arrest authorising the arrest without warrant of a person suspected to be in breach. Indeed, the creation of such a power in the civil court could lead to some confusion, since the police officer carrying out the arrest would have two quite separate powers authorising his actions. Although the conduct justifying the arrest would be exactly the same, the question would then be what his next step should be—to which court the person should be brought.

As the conduct complained of would, or might, amount to a criminal offence, it must follow that if prosecution is in the public interest, that is the course which should be followed. If that leads to a conviction, it would not be fair that the person should again be punishable for the same contempt of court which was the very basis of the conviction.

However, I am grateful to the noble Lord, Lord Meston, for pointing out that, in some circumstances, civil proceedings for contempt might be brought instead of prosecution. That could happen if there were a decision that the arrested person should not be charged, or, if he has already been charged, that criminal proceedings should be discontinued. The effect of that decision would be that there was no longer any power to hold him, or to bring him before another court. This amendment provides the machinery which would allow that to be done. The civil court would be able to issue a warrant for his arrest, which would be effective immediately the decision to discontinue criminal proceedings was taken, so that there would be no hiatus. It would not be appropriate for the warrant to be effective before then because, as I have said, it must be clear that pending criminal proceedings under Clause 3(3) may not be overtaken by contempt proceedings. Conversely, if it is decided that there ought to be a prosecution after contempt proceedings have been begun, those proceedings should not continue. These are matters properly to be dealt with by rules of court. In practice, what is likely to happen is that the choice will be made very early on, so that these supplementary provisions will not be needed. But it is right that we should have them, to cater for the occasional exception.

Amendment No. 1 inserts three new subsections setting out the court's power to issue a warrant, in response to the concerns expressed by the noble Lord, Lord Meston. Amendment No. 2 is a consequential drafting amendment, which I shall move formally. I beg to move.

Lord Harris of Greenwich

My Lords, my noble friend Lord Meston asked me to express his apologies for not being here today. He has been detained by a case in court. He asked me to express thanks to the noble and learned Lord the Lord Chancellor for meeting his point, which represents a significant improvement in the Bill.

Lord McIntosh of Haringey

My Lords, I echo the thanks expressed by the noble and learned Lord the Lord Chancellor and the noble Lord, Lord Harris, to the noble Lord, Lord Meston, for his constructive suggestion which resulted in these amendments.

Perhaps slightly less apropos I express thanks too to the noble Lord, Lord Thomas of Gresford, for not tabling his amendments again. As the House will recall, they were extensive amendments and would have completely rewritten the Bill—in the view of some of us, not to very good effect. However, I hope that the noble Lord, Lord Thomas, feels that his amendments were taken seriously and that proper debate was held on them. He said in Committee that he would bring them back at Report stage. I hope that, on reflection, his decision not to do so does not indicate that he will bring them back at Third Reading. I am not convinced that that would be helpful to the House.

These amendments are clearly in line with the spirit of the way in which the Bill addresses the extraordinarily difficult problem of stalking. The Lord Chancellor explained clearly not only why they may be necessary, but also why they may be necessary in only a limited number of cases. I am sure we all wish that to be the case. We would not want to see what is, in effect, contempt of court extended beyond what is absolutely necessary. I accept that the amendments fill a gap in the Bill; they make it more effective and I welcome them for that reason.

The Lord Chancellor

My Lords, I am grateful for those comments. In relation to the noble Lord, Lord Thomas, I echo the point that his proposals were taken extremely seriously. I spent some time examining them with him. The decision he took not to move them on Report results from his further consideration of the matter. For all I know, he may wish to say something about them later. However, I should have thought that, having regard to the nature of the amendments, it would probably not be appropriate to reconsider them fully at Third Reading when they have not been reconsidered on Report, but that must be a matter for the noble Lord, Lord Thomas of Gresford.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 2: Page 2. line 13, leave out from ("purpose") to ("and") in line 14 and insert ("mentioned in subsection (2A)(a)").

The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 8 [Harassment]:

The Lord Chancellor moved Amendment No. 3: Page 5, line 1, leave out from ("appropriate") to end of line 2.

The noble and learned Lord said: My Lords, once again I am grateful to the noble Lord, Lord Meston. In Committee on 17th February, I listened carefully to the argument put forward by him in favour of an amendment which would have allowed a Scottish civil court to extend the duration of a non-harassment order which it had earlier made. That would enable the court, where appropriate, to continue its original remedy and provide extended protection to a victim who remains apprehensive.

Having examined this issue, the Government are able to bring forward today an amendment to that effect. The Government consider that this amendment would provide flexibility to the court and protection to the victim, while keeping in mind the interests of the person against whom the order is made.

The noble Lord, Lord Meston, was slightly diffident in approaching this matter on the basis that it was the part of the Bill that concerned the law of Scotland while his expertise lies in the law of England. Nevertheless, I am glad that his intervention was fruitful and I am sure that it can happen sometimes in both directions. I beg to move.

On Question, amendment agreed to.