§ Further consideration of amendments on Report resumed.
§ The Earl of Longford moved Amendment No. 86:
After Clause 44, insert the following new clause:
§ ( "Penalty for murder
. No court shall be required to sentence a person convicted of murder to imprisonment for life.").
§ The noble Earl said: My Lords, I rise to move an amendment which would mean that, when someone is convicted of murder, he is not necessarily sentenced to life imprisonment. I moved the same amendment in Committee and I postponed discussion on it until Report stage, when I was hoping for a larger attendance. It can hardly be said that that has been secured this evening.
§ The Earl of Longford
My Lords, quality is what counts. I should say straight away that I shall divide the House on this subject because, in conscience, I am completely committed to the idea that this is an important issue of principle and it cannot be avoided by someone telling me that the House is very thin at 10 past eight in the evening. Therefore, we can rely on a vote of some kind.
If the House of Lords was ever said to be committed to any proposition, it is committed to this one. Quite a few years ago, a very high powered Select: Committee of the House under the chairmanship of the noble Lord, Lord Nathan, expressed itself to be in favour of the provisions of this amendment. Later, the House, by a large majority, voted in favour of the proposition. At that time, two Lord Chancellors, including the noble and 1455 learned Lord, Lord Hailsham, supported the proposal, as did the Lord Chief Justice, the Master of the Rolls and five Law Lords. Therefore, all those most exalted in the legal profession were in favour of the proposal.
And then, only last year, the noble Lord, Lord Ashley, introduced a Bill which was accepted by the House without a Division. That is only a little more than a year ago.
Even more recently than that, at the end of last year, a committee of exceptional strength led by the former Lord Chief Justice, the noble and learned Lord, Lord Lane, and which included the noble Lord, Lord Windlesham, whose knowledge of these matters is equalled by few, if any, reported again in favour of an amendment of this kind.
I should say in passing that I am extremely sorry to hear that the noble and learned Lord, Lord Lane, has been seriously ill since that time. Were it not for that, he might well have been there this evening to make his views plain.
Now, a year later, what do we find? We find that the Lord Chief Justice, the noble and learned Lord, Lord Taylor, has come out strongly in favour of this proposal. In an interview in The Times, he made his views abundantly plain. When I read that interview in The Times, I approached the noble and learned Lord, Lord Taylor, to discover whether he would rather move the amendment. It appeared from his office that he did not intend to move an amendment. I wrote to the noble and learned Lord, Lord Taylor, to ask him whether he would speak in favour of the amendment. He said that he would do so if he were present, but if he were not present, he would like me to make it plain that he is in favour of the amendment, as one would expect in view of his interview in The Times.
If ever the House can be committed to anything, it is committed to this. I shall not spend time discussing the arguments for and against the amendment. They have been rehearsed often in this House over the years. They have been summed up by the noble and learned Lord, Lord Taylor, and others who have said that it is quite wrong that the same penalty should be exacted in the case of very different crimes. Of course, a great deal more can be said on the subject.
Since the last debate, I have been in contact with another kind of situation arising out of life imprisonment; that is, the question of recall. I have tabled an amendment on that subject which we shall discuss later. I should say in passing that, when a life prisoner emerges from prison, he is on licence and that is not quite the same as being on parole. It was brought home to me only recently how different it can be. In effect, if you are released on licence after a life sentence, even having served relatively few years, you are paying a penalty for life whether or not you are incarcerated. You are treated, in effect—and I shall deal later with that case on another amendment—in all future discussions as guilty until you are proved innocent. That is an additional argument.
1456 But my main argument is that the House of Lords has committed itself time and again to this proposition and I hope that your Lordships will vote in favour of it. I beg to move.
§ 8.15 p.m.
§ Baroness Platt of Writtle
My Lords, I rise to oppose the amendment. At the time of the Select Committee on Murder and Life Imprisonment, of which I was a member, I felt deeply, although I agree that I was the only member so to do, that the mandatory life sentence for murder should be retained. Since then, I have been thankful that successive Home Secretaries have maintained that position.
I believe that if its mandatory nature were removed, it would give quite the wrong message to the public as a whole at a time when violent crime is, sadly, still far too prevalent. As the Crown Prosecution Service said at the time of our report, public confidence in the criminal justice system would be eroded if the penalty for murder became discretionary.
As our report also said at paragraph 109A:The distinction between murder and manslaughter…becomes meaningless if there is no difference in the sentencing powers available to the court; and the mandatory sentence is the only way of making such a distinction".As the National Association of Senior Probation Officers said in favour of its retention:the penalty for murder expresses the value society places on life".A life sentence does not normally mean imprison-ment for life. However, it means that, after due consideration by those responsible, the murderer's release is only on licence and he may be recalled at any time if he breaches the conditions of his licence or his behaviour indicates that he may be at risk of committing a further violent offence.
Murderers have demonstrated that they are capable of murder once. As one reads the newspapers, one learns that violent people repeat their crimes, as was confirmed in our report at paragraph 111A. I should put the protection of society as my first priority and I hope that your Lordships will not agree to the amendment.
§ Lord Wigoder
My Lords, I apologise for having missed the first few words of the noble Earl's observations.
On these Benches, we have repeatedly expressed our support for the principle put forward by the noble Earl, Lord Longford, and, for the sake of the record, we wish to do so again this evening.
§ Lord McIntosh of Haringey
My Lords, I can only echo the words of the noble Lord, Lord Wigoder. I do not know whether it is a party political issue or whether there is a Whip involved. However, I do know that my noble friend Lord Longford is entirely right to say that the House of Lords has repeatedly expressed its view that there should not be a mandatory life sentence for murder. I have to confess that my personal views approximate more closely to those of the noble Baroness, Lady Platt. But it is not my place to say so from this Dispatch Box.
My noble friend has not sought to rehearse the arguments, and in some ways we are grateful to him for 1457 that. But the question that he must consider is whether he will advance his cause by putting the matter to a Division when he knows as well as I do that he will be opposed by the payroll vote. However, if he believes that that is to his advantage, he must—as, indeed, he always does—do what his conscious dictates. Nevertheless, I wonder whether it would be the correct course of action for him to take.
My Lords, I have no doubt that the noble Earl will ponder the wisdom of the remarks of the noble Lord, Lord McIntosh. The noble Lord, Lord Wigoder, said that he was sorry that he was not present in the Chamber to hear the opening remarks of the noble Earl, Lord Longford. Perhaps I may repeat those remarks. The noble Earl said that what he seeks to do is to ensure that a person who has committed murder should not have a sentence for life—
§ The Earl of Longford
No, my Lords; I must correct that statement. I said that a life sentence should not necessarily be imposed. The noble Earl must know that that was what I meant to say. If I used a faulty expression, surely he would have understood it; indeed, he has done the same himself before now. No one could suppose that I thought that it would be the ending of the life sentence; indeed, no one could possibly think so.
§ Lord McIntosh of Haringey
My Lords, if I may say so, the amendment is perfectly clear. It says:No court shall be required".
My Lords, not for the first time I apologise to the noble Earl if I have taken down his words incorrectly. However, he has now explained what he said and no doubt the noble Lord, Lord Wigoder, is now in the happy position of knowing what the noble Earl said even though he was not present in the Chamber to hear it.
§ Lord Wigoder
My Lords, I believed myself capable of anticipating what the noble Earl said with some accuracy.
My Lords, perhaps the noble Lord's anticipation was more accurate than mine. I tried to record what the noble Earl said, but evidently I misrecorded his remarks.
We are discussing a subject which has been raised many times in the House in recent months. It has also been the subject of two inquiries by eminent committees: the House of Lords Select Committee on Murder and Life Imprisonment chaired by the noble Lord, Lord Nathan; and, more recently, the Committee on Penalty for Homicide chaired by the noble and learned Lord, Lord Lane. The arguments were carefully and cogently put.
The Government regard this as a deeply important issue and we recognise that strong views are held on both sides. We take those views very seriously, including the arguments of those who believe that the mandatory life sentence should be abolished. Your Lordships will not be surprised that the Government's position remains unchanged. We continue to think that it is right to retain the mandatory life sentence in order 1458 to mark the unique nature of the offence of murder and to provide in the case of murderers the particular safeguards afforded by the mandatory life sentence.
My noble friend Lady Plait was right. She had the wisdom, the rectitude and the courage to make a minority report when she served on the Nathan Committee. I shall add only that murder is unique in that it involves the deprivation of another person's life, even though there may only have been intent to cause grievous bodily harm. That inevitably sets murder apart from other offences, and it means that the way in which we respond to it has particular significance for public confidence in the criminal justice system as a whole.
Public concern about murder has not noticeably ebbed since capital punishment was abolished in 1965. Indeed, I suggest that quite the reverse is the case. So concerned are people about crime that many would willingly see the return of capital punishment. What the public will not understand—
My Lords, if the noble Earl is asking me a personal question, the answer is yes.
As I was saying, what the public will not understand is not having capital punishment, and now, if the noble Earl were to have his way, not having a life sentence for murder. After all—
§ The Earl of Longford
My Lords, that is not true. I do not know where the noble Earl got that from. He knows perfectly well that I am not trying to abolish life imprisonment altogether. I said that it should not necessarily apply in every the case. If the noble Earl reads the amendment, he will see what I am talking about.
My Lords, we are having quite some difficulty in the matter. We are not in Committee. I have been trying to make a speech and I have been interrupted five times thus far. I am not trying to misrepresent the noble Earl. All I was trying to tell him was that when capital punishment was abolished a mandatory life sentence was put in its place. People were led to believe that, although capital punishment may have gone, in future a person who committed murder would in any case receive a life sentence. The point that I was trying to make is that people would simply not understand what Parliament was doing if the latter were also to be removed. People would think that it was not right for Parliament now to abolish the mandatory life sentence.
I know that the noble Earl feels strongly about the matter. I understand his feelings. However, I must remind him that, whatever his feelings—which I respect —the Government do not feel that now is the right time to remove the mandatory life sentence for murder.
§ The Earl of Longford
My Lords, I have much respect for the feelings of the noble Earl and certainly for his parliamentary skill. But he comes before us now in support of capital punishment. He must be aware that the House of Commons has repeatedly voted; against it by a very large majority. Therefore, in no sense could his remarks be said to be an expression of the will of the 1459 people. Indeed, if the noble Earl read the Sun newspaper —and I read it every day—he would realise that press reports state that Mr. Howard is about to get the chop. His policies have not worked out and they are not at all popular with the public. I am sorry for Mr. Howard, but no doubt he will be able to find another sphere of usefulness. However, as I said, according to the popular press he is in line for the chop.
Let us now try to take a broad view of the matter. One either believes that the judiciary in this House has been repeatedly right or that the noble Earl who supports capital punishment is right. Naturally the noble Earl is against the amendment, as, indeed, is Mr. Howard. However, there is no foundation for saying that the country is against it. That may or may not be true. No one knows the position of the country on the amendment; indeed, it has never been put to the people. Therefore, I wish to press the amendment to a Division.
§ 8.27 p.m.
§ On Question, Whether the said amendment (No. 86) shall be agreed to?
§ Their Lordships divided: Contents, 5; Not-Contents, 77.
|Gisborough, L.||Howell, L.|
|Graham of Edmonton, L.||Longford, E. [Teller.]|
|[Teller.]||Pitt of Hampstead, L.|
|Addison, V.||Howe, E.|
|Annaly, L.||Jenkin of Roding, L.|
|Archer of Weston-Super-Mare, L.||Kimball, L.|
|Arran, E.||Knutsford, V.|
|Astor of Hever, L||Leigh, L.|
|Astor, V.||Lindsey and Abingdon, E.|
|Balfour, E.||Long, V.|
|Barber, L.||Lucas of Chilworth, L.|
|Belhaven and Stenton, L.||Lyell, L.|
|Belstead, L.||Mackay of Ardbrecknish, L.|
|Blatch, B.||Mackintosh of Halifax, V.|
|Boardman, L.||Mancroft, L.|
|Brabazon of Tara, L.||Massereene and Ferrard, V.|
|Brougham and Vaux, L.||Miller of Hendon, B.|
|Burnham, L.||Moyne, L.|
|Burton, L.||Newall, L.|
|Cadman, L.||Oxfuird, V.|
|Caithness, E.||Peel, E.|
|Camock, L.||Platt of Writtle, B.|
|Chalker of Wallasey, B.||Rankeillour, L.|
|Colwyn, L.||Reay, L.|
|Cork and Orrery, E.||Renton, L.|
|Craigavon, V.||Rodger of Earlsferry, L.|
|Cranborne, V.||Skelmersdale, L.|
|Crathorne, L.||St. Davids, V.|
|Cumberlege, B.||Stanley of Alderley, L.|
|Denton of Wakefield, B.||Stockton, E.|
|Dixon-Smith, L.||Strange, B.|
|Downshire, M.||Strathclyde, L.|
|Elton, L.||Strathmore and Kinghorne, E.|
|Fraser of Carmyllie, L.||Torrington, V.|
|Geddes, L.||Trumpington, B.|
|Glenarthur, L.||Ullswater, V. [Teller.]|
|Goschen, V.||Vaux of Harrowden, L.|
|Harding of Petherton, L.||Vivian, L.|
|Hayhoe, L.||Wakeham, L. [lord Privy Seal.]|
|Henley, L.||Wise, L.|
|HolmPatrick, L.||Wynford, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 8.35 p.m.
§ The Earl of Longford moved Amendment No. 87:
After Clause 44, insert the following new clause:
§ ("Rights of life sentence prisoners to review of sentence
§ The noble Earl said: My Lords, I am opening up a new subject here. It will be a relief to noble Lords who feel the strain of going through the Division Lobbies to know that it is unlikely—although I will press it hard —that I will take this amendment to a Division. However, for a long time it has been in my mind, and the minds of many other people, that life prisoners may be stuck in prison for years and years—indeed, one might say for ever—without ever getting a fair trial of any kind.
§ I shall refer to one case and one case only. As I have said on an earlier occasion, I am in touch with many life prisoners, or half a dozen actively at the moment. I refer to the case of a woman who has been in prison 28 years. She was convicted—rightly, undoubtedly—of being an accomplice in horrifying murders many years ago. She was an infatuated accomplice of a man who for a good many years has been in a special hospital. At any rate there she was—rightly, if you like—incarcerated in prison. She has been there for 28 years.
§ I submit that none of us fallible, and indeed sinful human beings, has any right to keep any fellow human being in prison for 28 years with no immediate prospect of coming out unless there is some danger to the public. We heard in an earlier debate that the public should come first. But what public interest is served by keeping this woman in prison? No one thinks she is dangerous. Years ago the then chairman of the Parole Board told me in writing that she was not dangerous. She has twice been passed as suitable for parole, or licence, by local review committees, and yet she remains in prison.
§ People say to me, "Oh, I do not think any Home Secretary would ever have the guts to let her out of prison. Think of the tabloids—think of what the Sun would say". People say that it is widely surmised that it would be too dangerous and too frightening for any Home Secretary to let her out. Is that justice? Is it Christian, humanist or any sort of justice? What is this matter left to at the present time? It is left to political expediency and to the question of whether the Home Secretary of the day has the courage to face the tabloids. That is where it is left at the moment. No one really disputes the fact that that is where it is left. I say that that is all wrong.
§ One cannot deal with that matter easily. It is not a simple problem. After a certain number of years, in my opinion, any life prisoner should be allowed to come into the open, appear before a court and be represented. Who knows what would happen? The court might decide that the person, who may be a terrorist, should 1461 stay in prison. But at least that would be a judicial decision independent of political expediency. It would provide a less dishonourable situation than the one we have now. I think the present situation is a disgrace to humanity. I beg to move.
§ Lord McIntosh of Haringey
My Lords, I would like not only to pay tribute to my noble friend for his persistence in this matter but also to express my total agreement with his argument on this point. It seems quite extraordinary that we are in the position where those who have been sentenced to life imprisonment for murder should depend for their release on the Home Secretary, advised by the Home Office, rather than on a court.
My noble friend proposes a very modest formula under which the matter would be reviewed after 15 years and whereby it may be taken out of the media and political arena to be determined by a court rather than, as at present, the Home Secretary. I am absolutely convinced that he is right.
My noble friend has not said that he is considering taking the opinion of the House on the matter. Perhaps I may say to him in due humility that I think that he would be ill advised to do so after the vote that has just taken place. It might give the impression—which I am sure would be wrong—that the House of Lords, consisting of human beings, rejected the humanitarian plea which my noble friend rightly makes. I would not wish him to seek the opinion of the House, but I am totally convinced that his arguments are just and humane.
My Lords, although I understand his reasons, I find it curious that the noble Lord, Lord McIntosh, should say that the noble Earl is making a humanitarian plea. We are talking about somebody who has committed murder. In the old days he would probably have been subject to capital punishment, but because capital punishment has been done away with he has been committed to life imprisonment. Now the noble Earl says that no human being should have the right to put another human being in prison for 20 or so years.
§ The Earl of Longford
My Lords, I made the proviso unless it could be claimed that that person was a danger to the public. The noble Earl took down some of my remarks but not all of them. I kept on saying that in this particular case, and many others, it is recognised that there is no danger to the public.
My Lords, I can see that I shall have to undertake a course of shorthand in order to take down the remarks of the noble Earl, Lord Longford. I wrote down his remarks as quickly as I could and I thought that I had taken them down reasonably accurately. If I am wrong I am sorry.
The noble Earl is concerned that nobody should be kept in prison for a long period. The effect of his amendment is that any life sentence prisoner who is still in custody after 15 years should have the right to have his sentence reviewed, not by the Home Secretary but by a court.
1462 The principal purpose of the amendment is to take responsibility for the release of long-term mandatory life sentence prisoners out of the hands of the Home Secretary and to put it in the hands of the courts. No government would support such a move. One important reason for maintaining the mandatory life sentence for murder is to sustain public confidence. That is in part achieved by the mandatory nature of the penalty, but also by the fact that it is the Home Secretary—who is accountable to Parliament for maintaining public confidence—who takes responsibility for the release of prisoners in these cases.
In our view there are adequate arrangements for reviewing the detention of these lifers, with scope for independent advice to be considered and for representations to be made. In setting the period to be served for retribution and deterrence the Home Secretary takes the advice of the trial judge and the Lord Chief Justice. He can review that period at any time. The prisoner can make representations as to that period at any time. When release is considered the Home Secretary consults the judiciary again and has the benefit of expert advice on risks from the Parole Board.
I do not understand which parts of that process the noble Earl wants the courts to take over after 15 years. Presumably he would like them to take over all of the process. Our view remains that the final decision belongs with the Home Secretary because the Home Secretary is responsible for public safety and public security.
In trying to introduce arrangements to benefit this small group of long-term mandatory lifers the amendment would have some odd effects on the rest of the life sentence system. For instance, courts would find themselves reviewing cases where the prisoner had served the period to be served for retribution and deterrence but where he remained in prison because the Parole Board considered him to be dangerous. The courts would be determining questions of risk. They have never had to do that before. I do not. think that it would be appropriate for them to do so now.
The courts would also have to review the tariff in discretionary life sentence cases. That tariff has been set by a court in the first place. I do not understand why this second look should be taken at the needs of retribution and deterrence or why determinate sentence prisoners, who have been given 20 or 30 years, for example, should also have their sentences reviewed after 15 years.
I know that the noble Earl is aiming at a very small group of prisoners, but in our view the current arrangements provide a much more flexible and less cumbersome means of review than introducing a whole new tier of court hearings for all life sentence: prisoners.
The Home Secretary of the day is responsible for security. It is one thing for the courts to make a judgment on what a person has done. It is another matter for that person to be released back into the community, where the community will be affected. That is not a question which the courts ought to judge. It is a question for the Home Secretary.
§ 8.45 p.m.
§ The Earl of Longford
My Lords, there cannot be much meeting of minds between myself and the noble Earl in regard to life prisoners. He is in favour of capital punishment. He thinks that these life prisoners are very lucky not to have been executed long ago. I respect him on all other grounds, but on this issue he is very old fashioned.
The noble Earl may not be aware that in Germany there is a rule that after 15 years life sentence prisoners come before the courts. Therefore, the proposal is not impossible.
In the long run the noble Earl will realise that very brutal results follow from his policy. I shall return to the subject in debates over the years, if I am spared. Today I shall withdraw the amendment, making it plain that I regard the case as overwhelming. I am particularly glad to have the support of my acting leader—my noble friend Lord McIntosh—who has had some difficulty with my approach on previous occasions. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord McIntosh of Haringey moved Amendment No. 88:
After Clause 45, insert the following new clause:
§ ("Video recordings of testimony from child witnesses
§ The noble Lord said: My Lords, unfortunately my noble friend Lord Williams of Mostyn is not able to be with us but I am happy to move the amendment standing in his name. It is concerned with the tightly defined but important question of the testimony of child witnesses in court and the use of video recordings for child witnesses in court.
§ I remind the House that the Criminal Justice Act 1991 added Section 32A to the 1988 Act. It provided for the video recording of the evidence of child witnesses. That was done with extremely good intentions and without any party political differences in this House or in another place. However, experience in the courts has led us, and in particular my noble friend Lord Williams of Mostyn—who is much better informed on these matters than I am—to question whether the formulation which was produced in the 1991 Act is adequate to the purpose.
§ Perhaps I may explain the position. At present under Section 32A the evidence of a child witness may be taken in the form of a video recording. That video recording is available to the court. At present there is no possibility for any evidence-in-chief arising from that evidence which has been given in the form of a video recording to be questioned in the court either by the judge or by counsel representing the party on whose side the evidence is being given. I am sure that I have used wrong phrases, but perhaps noble Lords will understand what I seek to say.
§ The child has given his evidence in the form of a video recording. So far as concerns the child, he is immediately subject to cross-questioning by counsel for the opposing sides. Having given his evidence in the form of a video recording—it is a humane way of 1464 dealing with the issue—because it is the opposing counsel who has instructions to cross-question him the child has the idea that the court is opposed to his evidence. Recent experience has indicated that that concept can cause terrible problems.
Mr. Justice Kay wrote yesterday to the Home Secretary on the issue. He made his comments in open court. He has authorised me to refer to the case about which he wrote to the Home Secretary. He has just completed a very long trial in Swansea in which a number of adults were charged with sexual abuse of children. Clearly there were a number of children. They gave their evidence in the form of video recordings. Mr. Justice Kay states:
Under the Act, since it was not suggested by the prosecution that matters had not been dealt with either adequately or at all in the video, I had no power to allow any questions by the prosecution before this process began.
The children were thus confronted for days at a time by hostile counsel putting questions to them, as they were obliged to do on their instructions, that almost every word they uttered was untrue. They saw no other person in court and had no opportunity to see that there were others present who did not share the views apparently being expressed in court".
§ As Mr. Justice Kay makes clear, no one wants to extend the questioning of children in court. However, the point that he argues, as does the NSPCC, which has suggested that the amendment be put to your Lordships, is that there should be the possibility of some friendly questioning on the evidence in chief by counsel on the children's own side before they are subjected immediately to the hostile cross-questioning from the other side. That procedure would give the children who have given evidence on the video the understanding that the court is not entirely stacked against them. Mr. Justice Kay says that in fact some of the children became extremely distressed at this continual question-ing which had not in any way been counteracted by friendly questioning. One of the children in fact refused to go on giving evidence because he said, "No one in court believes anything I say".
Under those circumstances, a modest amount of questioning on the evidence in chief by the judge or by the counsel on the children's own side would, it is suggested, be helpful in the interests of justice. It is clearly an extremely difficult area. It is an area in which everyone concerned seeks to do the best in the interests both of obtaining the right decision from the point of view of justice and of not distressing the children who have to give evidence. I do not suggest that there is any ill will on either side. However, the evidence from the NSPCC, and from one particular judge who has been involved in the matter for a period of nine months, is that it is worth considering the addition of the word "adequately" into Section 32A of the Criminal Justice Act. I am encouraged in that view by the words of the noble and learned Lord the Lord Advocate, when he said that,
it was the Government's clear view that examination could recur when matters had not been adequately dealt with in the videotape".—[Official Report, 23/5/94; col. 586.]
§ I hope that the House will agree that the amendment gives effect to the statement of the Lord Advocate and provides some modest improvement of the law in this very difficult matter. I beg to move.1465
§ Lord Wigoder
My Lords, for the benefit of those of us whose minds are not quite as sharp now as they were before dinner, will the noble Lord be kind enough to read to us the words of Section 32A(5) (b)?
§ Lord McIntosh of Haringey
My Lords, I wish that I could. I am sure that the noble and learned Lord the Lord Advocate will be able to do so. I have not been favoured with those words.
§ Lord Rodger of Earlsferry
My Lords, not unusually, the noble Lord's confidence is misplaced. I shall not be able to give the noble Lord, Lord Wigoder, those words. However, in default of that, perhaps I may paraphrase what I understand to be the purpose.
As the noble Lord, Lord McIntosh, has said, the problem is this. There is in general terms a prohibition, which is stated in the Act, on counsel for the prosecution going over the evidence which has already been given by the child on the video. The question arises as to whether or not the prosecution is entitled to ask questions of the child where a matter has not adequately been dealt with. The problem appears to be that some judges have interpreted the section as it stands in the statute book at present as prohibiting any questioning at all, even if the matter has not been adequately dealt with. If it has been touched on, or dealt with at all, they have said that the prosecution cannot ask any questions. It is to allow the prosecution to ask questions where the matter has not been adequately dealt with that the noble Lord raises the issue.
As the noble Lord said, it is not a party political matter in any sense. When the matter was going through the House in 1991 I believe that my noble friend Lord Ferrers expressed the view on behalf of the Government at the time that indeed the provision meant "adequately dealt with". However, since the matter has been put in doubt by decisions of various judges, and since it is clearly correct that it should be put beyond doubt now, and that questioning should be allowed where the matter has not been adequately dealt with, we are more than happy to accept the amendment moved by the noble Lord, Lord McIntosh, on behalf of the noble Lord, Lord Williams of Mostyn.
I believe that the noble Baroness, Lady Mallalieu, spoke on this matter too, and expressed the view that, broadly speaking, the issue bore out her experience in practice. We are more than happy to accept the amendment.
§ Lord McIntosh of Haringey
My Lords, I am most grateful to the noble and learned Lord the Lord Advocate. He appreciates, as I do, how difficult the matter is and how difficult it is to reach perfection. We have not reached perfection by changing the law in this way. However, I am grateful to him for his acceptance of the argument. I have no doubt that my noble friends who raised the matter previously will be equally grateful.
§ On Question, amendment agreed to.
§ [Amendments Nos. 88A and 89 not moved.]
§ The Earl of Longford moved Amendment No. 90:
After Clause 48, insert the following new clause:
§ ("Recall of life prisoners while on licence
§ Recall of life prisoners while on licence.
39. — (1) A life prisoner—
(2) The magistrates' court by which a person is convicted of an offence under subsection (1) above may, whether or not it passes any other sentence on him, order him to be recalled to prison, notwithstanding the terms of the licence on which he is released.
(3) Before ordering the recall of a prisoner under subsection (2) above the court shall—
(4) Any person ordered to be recalled to prison under subsection (2) above shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large.".").
§ The noble Earl said: My Lords, the amendment provides that a life prisoner recalled to prison after release would have the right of early access to a court of law. It may well be that the provision should be drafted differently, but it is the principle that I wish to lay before the House.
§ I am not surprised that very few people in the House have considered the matter with proper care because I had not myself considered it over the years as carefully as I would now wish to have done. I do not remember raising the issue previously in debate. However, I hope that any aggressiveness that I may have shown to the noble Earl earlier will be forgiven and forgotten and that with his customary good nature he will bring an objective, cool, calm and deliberate mind to bear on the amendment. I do not expect a very positive answer tonight. But this is a matter to which the House must return.
§ It happens to have come home to me in more than one case recently. I shall mention just one case and everybody will know what I am talking about, as will people who read these remarks. There is a certain prisoner who killed his wife after a row. He spent 13 years in prison. I do not say that that is too long or too short a period, but he spent that period in prison where I visited him on several occasions.
§ Within a few months of coming out he was back in prison, where he is still. When he came out of prison he became associated with a lady who, I understand, is engaged in social work. He became dissatisfied with her, as perhaps she became dissatisfied with him, and the relationship broke up. He has given me his side of the story, but I have not heard hers. When the relationship broke up she went to the police and accused him of assaulting her. The police interrogated her but did not interrogate him. They interrogated one party but not the other. The probation officer reported the matter to the Home Office. The next thing the man knew was that he was being arrested by police officers. He did not 1467 even know why he was being arrested. That was in April. It is now July, and unless anything has happened today, he has not yet come before the Parole Board. Even if he does come before the Parole Board he will not be represented. That would not be the situation if he had been a discretionary lifer. But leaving aside that issue, which should be looked at on its own, the fact is that here is someone who will have been in prison, whatever the Parole Board decides, for three months without any access to a court of law or any chance of proving his case to anybody. That cannot be justice.
§ I do not believe that this is one of those instances that anybody designs. Indeed, when I spoke to the parole authorities about it I believe I am right in saying that they were a little surprised that he had been so long in prison without coming before the Parole Board. That is the situation. Here is a man who, so far as I know, is still in prison tonight. He has been there for three months simply on the say-so of a woman who convinced a probation officer without the man being interrogated. That is grossly unfair. I do not believe that anybody would justify it. I do not believe that anybody designed it or intended that it should happen that way. But that is the way it happened. My amendment is intended to enable a person in that position to come at an early date before a court of law. I beg to move.
§ 9 p.m.
§ Lord Belstead
My Lords, I wonder if I may say just a very brief word on this matter. I know that the time is late. I declare an interest as chairman of the Parole Board.
The amendment essentially copies Section 38 of the Criminal Justice Act 1991, which provides for magistrates' courts to deal with the recall of short-term prisoners who are released automatically at half their sentence on parole licence. It was thought right in the Criminal Justice Act 1991 that if it looked as though those licences were going wrong, the magistrates' courts should be the place where it should be decided whether short-term prisoners—that is, prisoners serving under four years—should be recalled or whether they should not.
§ As the noble Earl's Amendment No. 90 deals specifically with life sentence prisoners, is it really desirable to seek to apply a recall system which is being used at the moment only for short-term prisoners who have received automatic early release? The decision whether or not to release a mandatory or discretionary lifer on life licence does not fall within the responsibilities of the magistrates' courts. We all know that. Therefore I should like to ask the Government a question which I am certain my noble friend is ready to answer. It is simply this. Do the Government take the view that it is inappropriate for the Secretary of State and the Parole Board, who are responsible for deciding whether life licences should be issued, to be removed from deciding whether those life licences should be revoked if the circumstances require it.
§ Perhaps I may add just one more point. It is only fair to say—and it is appropriate to say it—that I believe that the Home Secretary takes the very greatest possible care 1468 in issuing detailed guidance on recalls for long-term and mandatory life sentence prisoners, which includes taking account in all cases of the recommendations of the supervising probation officer. Arguably, that is, if the noble Earl will forgive my saying so, preferable to the making of representations under subsection (3) of his amendment which would be both cumbersome and time-consuming.
§ In moving the amendment, the noble Earl said that he was interested in the principle of this amendment. So am I. Hence the questions that I venture to ask my noble friend.
My Lords, I can understand the concern of the noble Earl, Lord Longford, about the period spent in custody by the prisoner to whom he refers before his case can be heard by the Parole Board. I do not, though, think it is an argument for bringing recall arrangements for lifers into line with those for prisoners who are serving less than four years in prison.
Offenders are given a life sentence either because they have committed murder or because they have committed another offence so serious that it justifies a life sentence, or because they are considered to be dangerous. In all these cases a key purpose of the life sentence is to protect the public by ensuring that such offenders are subject to supervision on release and that they should remain subject to recall to prison for the rest of their lives.
There is always an element of risk in releasing those who have committed a grave offence and whose circumstances at the time of the offence warranted a life sentence. It is important that this risk should be minimised and that licensees should be able to be recalled if their conduct gives cause for concern. My noble friend Lord Belstead asks: is it inappropriate for the Secretary of State or the Parole Board to recall such people? My answer is: no, it is not inappropriate. One can just imagine the outcry if a life licensee were to commit a further grave crime, where that could have been avoided if those concerned had been able to read the warning signs and recall him to prison in advance. An accusation of assault would be an obvious instance. The public would rightly be horrified if someone who was on life licence was allowed to stay at large in those sorts of circumstances.
It is entirely right where there is evidence that a licensee is acting in a way which causes concern, even if such behaviour does not amount to breach of his licence conditions, that he can be recalled immediately —that is, before he becomes a real threat to the public. Under this amendment the licensee would only come to the attention of the court if he breached his licence. In our view that would not provide anything like a sufficient safeguard. There may be other warning signs which do not constitute a breach of licence which would warrant his recall, at least while his case was reconsidered.
It is also right that normally the Parole Board should consider whether to recommend a life licensee's recall to prison. The Parole Board is trained and experienced in assessing risk and has the benefit of advice from a psychiatrist. It will also have before it all the evidence 1469 on which previous Parole Board decisions have been taken, including reports on the offender's conduct in prison. Magistrates are simply not trained to deal with this kind of assessment. They do not have the same expertise; nor would they be able to guarantee to have all the relevant documents before them.
In cases where recall decisions are taken by the Home Secretary without a Parole Board recommendation, it is because there is reason to believe that it is in the public interest to recall licence before such a recommendation is practical—in other words, it is an emergency. These cases are referred to the Parole Board as soon as practicable after recall. Again, it would simply not make sense for magistrates to get involved in those kinds of circumstances. The disadvantages would be the same, and there is the additional question of urgency. If it is not practicable to put the matter to the Parole Board, the same would be true of a magistrates' court.
It would be manifestly unjust if someone who was recalled was detained in prison indefinitely with no further review. But that is simply not the case. The Parole Board will consider all the information appertaining to the licensee in the light of the new information which has come to light and decide whether it is still safe for him to be allowed at large in the community. Where it is persuaded that the risk is acceptable, it will recommend his immediate release. In those circumstances the Home Secretary must release the prisoner.
The noble Earl's concern seems to relate particularly to the length of time a recalled prisoner may have to wait before his recall can be reviewed by the Parole Board. In all cases where a life licence is revoked the person is, immediately on his return to prison, given written reasons for the decision to recall him and he is informed of his right to make representations to the Parole Board. The prisoner is also provided with a copy of the papers which were before the Parole Board when it recommended recall.
In cases where the recall took place in an emergency without a Parole Board recommendation, the prisoner is given a copy of the papers to be placed before the board when it comes to review the Home Secretary's decision to recall the licence. How quickly a case is reviewed by the Parole Board depends upon how long the prisoner needs to make his representations, but normally recall cases are referred to the Parole Board within a few weeks of the prisoner's return to prison. But there have been occasions where prisoners have requested a longer time in which to formulate representations.
What is at stake here is not the irreversible revocation of a life licence. It is the incarceration of a potentially dangerous offender until the safety of his continued freedom can be assessed.
We should not forget that these offenders have in the case of murderers forfeited their right to liberty for the rest: of their lives because of what they have done. In the case of discretionary lifers, they have similarly forfeited their right to liberty should they be judged to be dangerous. It is clearly up to these people so to conduct themselves that they give no cause for concern. That is the basis on which they were released in the first place.
§ The Earl of Longford
I suppose that chat can be described as a very reactionary reply. The announce-ment that anybody who receives a life sentence has forfeited his right to liberty for the rest of his life is quite unacceptable. I have never heard that said plainly in this House before. But I have to swallow it. The Minister said it tonight. I only hope that when the new government come in that kind of attitude will be reversed. It is not the fault of the Minister It may be the fault of Mr. Howard. I do not know. It may be the fault of the Government. I think that it is an intolerable attitude towards fellow human beings.
With regard to this particular situation, I do not see how the Minister is able to defend such delays. I doubt whether he can do so or would try to defend them. Something must have gone wrong there. I think that three months is probably some mistake and somebody has slipped up somewhere. It happens in organisations and I think that it has happened here. It may be that three months is an abnormal length. It is no good questioning the Minister now, but I shall come back to this matter in later debates, possibly at Third Reading but probably more likely in later debates.
In the case of discretionary life prisoners, why is it that under pressure from Europe the ex-prisoner is allowed to appear and be represented but that is not the case with mandatory life prisoners? I do not want to cross-examine the noble Earl. It has been a long day and I expect that there is more of it to come. But that is a question that will be put to him very often. No doubt the noble Earl has his own philosophy—but in my eyes it is a very reactionary one—toward life prisoners. Tonight I withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 50 [Powers of police to take non-intimate body samples]:
§ Lord McIntosh of Haringey moved Amendment No. 91:
Page 35, line 37, at beginning insert ("Subject to subsection (3C) below").
§ The noble Lord said: My Lords, with Clause 50 and Amendments Nos. 91 to 94, to which I wish to speak now, we move on to Part IV of the Bill, which is entitled "Police Powers" and which is specifically concerned with police powers to take intimate samples. These four amendments are not concerned with the issues that we raised in amendments at Committee, most of which we did not debate because of pressure of time. I am grateful to the Minister for writing to me in June in such detail about the amendments that I did not move. Does he not remember that he wrote to me? He will know that a new Minister who comes into office asks his civil servants how he is to write letters. The answer he is given is that he does not write letters but only signs them.
My Lords, I remember the letter with pristine clarity. I wondered whether it was appropriate to write to the noble Lord and was advised that it would be a good idea. I decided to write to the noble Lord, and I well remember doing so.
§ Lord McIntosh of Haringey
My Lords, it was extremely courteous of the Minister and his letter was 1471 most helpful. As a result, I have not returned to the issues that I raised in Committee. I move now to a very specific issue in relation to intimate samples. The thrust of these four amendments is not to change the definitions of intimate and non-intimate samples but to seek to ensure that where samples are sought they shall be required only for those offences where, in particular, DNA profiling can be useful in evidence. In these amendments it is provided that the Secretary of State can make regulations listing such offences rather than seek to do so on the face of the Bill.
The present position is that these samples can be obtained only for serious arrestable offences which, as your Lordships know, include rape, murder and other very serious offences. Under Clause 49(3) (b) that possibility is extended to all recordable crimes, which goes a good deal beyond serious arrestable offences. All recordable crimes could include, for example, fare-dodging on public transport, shoplifting and similar offences where it could not possibly be claimed that DNA profiling was a relevant consideration. In Clause 50 it is provided that non-intimate samples can be obtained by force, not just for the purposes of investigation but for any reason. The matter is left entirely open. It seems to us that this goes a good deal beyond what is necessary for the purposes of the pursuit of justice, or indeed what the Runciman Commission discuss in a very thoughtful section of its report. The report recognises, as we do, that one cannot and should not seek to resist the course of science and that the availability of DNA profiling in identifying individuals and connecting them with samples relevant to the offence is a valuable advance in the pursuit of crime. There is nothing in that with which we disagree, and nothing in our amendments which derogates from that. In accepting that, the Runciman Commission propose a number of precautions which are not represented in Part IV of the Bill. To take only one example, Runciman said that samples taken in this way should be destroyed after use and not be retained.
I remind your Lordships that the definition of intimate samples is fairly wide and rather nasty. It includes blood, semen, other tissues and swabs from orifices of the body, including the mouth. Is it really the intention of the Government that it should be permissible to take such samples for the purposes of DNA profiling for the whole range of recordable crimes rather than simply for those offences where it may be relevant in providing identification? I suggest that if the general public knew what was now proposed they would believe that in the pursuit of efficient and scientific criminal investigation we were going too far. I believe that we are going too far in the way this part of the Bill is drafted. I hope that the Government will think again and see merit in the thrust of these amendments.
§ Lord Monson
My Lords, the noble Lord, Lord McIntosh, has made out a most convincing case for incorporating these safeguards into the Bill. I hope that the noble Earl will consider the amendments favourably.
My Lords, the amendments proposed by the noble Lord would remove the main plank of the proposed new approach to DNA samples by the Royal Commission on Criminal Justice which is implemented in these clauses. The Royal Commission noted on page 15 of its report:It is not uncommon for persons arrested for sexual offences to have previous convictions for other types of serious offence, for example burglary".In Recommendation 20, the Royal Commission proposed:The police should have the power to take without consent non-intimate samples for the purpose of DNA analysis from all those arrested for serious criminal offences, whether or not DNA evidence is relevant to the particular offence".It is important that the House should understand the background to the changes to the law proposed in Clause 50. At present a body sample may be taken only where the sample will tend to prove or disprove the person's involvement in a particular offence. This contrasts with the arrangements for fingerprinting, where fingerprints may be taken from anyone who is charged with an offence and can be retained on a database if the person is convicted. We believe, along with the Royal Commission, that body samples for the purposes of DNA analysis should be placed on much the same basis as fingerprints.
In 1989 the Home Office Research and Planning Unit published a study entitled Changes in rape offences and sentencing which contained a number of startling statistics which are relevant to the matter we are now discussing. This research looked at the criminal histories of rapists convicted in 1985. The research showed that 80 per cent. of rapists had at least one previous conviction for what I might call an "ordinary" criminal offence, if one can think of what an "ordinary" criminal offence is. Thirty per cent. of rapists had more than 10 previous convictions for "ordinary" criminal offences.
The point of the Government's proposals in Clause 50 is to ensure that the police are able to take a DNA sample from people who are charged with "ordinary" criminal offences and retain it on a database if they are convicted so that, just as with fingerprint records, if DNA traces are found at the scene of a crime in future it will be possible to trace them back to the offender if he has previous convictions.
The Government believe that by treating DNA in the same way as fingerprints it will significantly increase the ability of the police to detect crime and will also deter some offenders, who know that their DNA is already on record, from committing further crimes. I am bound to tell the noble Lord that his amendments would significantly diminish the effectiveness of our proposals. I hope that he will be able to see the wisdom of leaving the Bill as it is.
§ Lord McIntosh of Haringey
My Lords, I am grateful to the Minister for that explanation but I note the difference between the phrase which he used about "ordinary" criminal offences for which rapists have been convicted and the quotations which he gave the House from the Royal Commission report. Both of the two quotations referred to serious offences, which is exactly what our amendment is seeking to achieve.
1473 I hesitate to say that the noble Earl has misrepresented the views of the Royal Commission but I do say, without indulging in a complete textual analysis of that valuable part of the Royal Commission report, that the suggestion that the Royal Commission's report has been faithfully reflected in this part of the Bill, in view of the fact that the Royal Commission, first, referred continuously to serious offences and, secondly, did not treat DNA samples in the same way as fingerprints in the sense that it suggests that the samples should be destroyed, is a misrepresentation of the facts.
I shall read carefully what the Minister has said. I am not convinced by his argument that we are significantly weakening the provisions of this part of the Bill, certainly not to the extent that it outweighs the civil liberties aspect of the amendments we are proposing. It may be that we shall return to this matter at Third Reading. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 92 to 94 not moved.]
§ Clause 51 [Fingerprints and samples: supplementary provisions]:
§ Lord Monson moved Amendment No. 95:
Page 36, line 33, after ("roots") insert ("from such part of the body as is reasonably chosen by the person from whom the sample is taken").
§ The noble Lord said: My Lords, two or three weeks ago Auberon Waugh, writing in the Daily Telegraph, castigated this Bill, and not for the first time. He went on to describe it as 40 Bills crammed into one. Mr. Waugh, again not for the first time, was exaggerating, but only slightly. It would not be wholly unfair to describe it as perhaps eight Bills crammed into one. The result is that important matters, or those which large numbers of people consider to be important, get between 60 per cent. and 80 per cent. of the attention and scrutiny they deserve, while those which most people do not consider to be particularly important get no more than 10 per cent. of the scrutiny they deserve.
§ When I think of the hours this House spent, and quite rightly, in passionately debating the proposals to allow intimate body searches contained in the Police and Criminal Evidence Bill 10 years ago—there were strongly held feelings on both sides and a good deal of opposition to the idea of body searches—it is extraordinary how little time we have spent on the proposal to allow the police to pull a person's hair out by the roots. That is something which is comparable in many ways to intimate body searches and many would find the two equally unpleasant.
§ If anyone other than the police were to pull a person's hair out by the roots it would constitute an assault in law, and not surprisingly, because it can on occasion draw blood—admittedly only a spot of blood, but blood nonetheless. So, if it has to happen for DNA purposes —I do not challenge the Government's right to do that because it may be necessary and I am prepared to accept the argument on that point—at least those from whom hair is to be plucked and who may be wholly innocent in fact as well as in law, should have the right to choose the least painful and disagreeable method by being 1474 allowed to choose the part of their body which is the least sensitive from their point of view. Eivery human being is different: for some people it may be the scalp and for others the chest or the calf and so on. But they should be given that choice.
§ I have used the word "reasonably" in the amendment so if someone is bald that person cannot say "You can only pluck hair from my scalp". That would be ridiculous. The police would then have the right to say, "No, the hair must be from somewhere else other than the scalp"—hence the word "reasonable". The amendment is not very elegantly worded, but then it is not a very elegant subject. Some safeguard has to be incorporated. I beg to move.
My Lords, I do not find too much difficulty with the principle of what the noble Lord, Lord Monson, proposes so far as hair samples for DNA purposes are concerned. The Home Office will be issuing guidance to the police as to the way in which the new regime for body samples should be implemented, and this is precisely the kind of matter which we will be addressing in that guidance.
I do question, however, whether it is a proper matter for inclusion in statute. It seems to me that the words of the amendment set down a degree of operational detail which is not appropriate to a statute. In particular, they can impose inflexibilities which may cause legal difficulties. For example, hair samples can be used for a variety of purposes—from testing for drugs to making a visual match with a hair found at the scene of a crime. In the case of a visual match, it is clearly important that the right kind of hair is matched. There would be no point in trying to match the hair from somebody's forearm with an eyelash found at the scene of a crime.
I hope that the noble Lord will accept my assurances that we will deal with the matters which are raised by his amendment in guidance to the police on the taking of body samples so far as hair samples for DNA art; concerned and that, on that basis, he may feel it appropriate to withdraw the amendment.
§ 9.30 p.m.
§ Lord Monson
My Lords, I am grateful to the noble Earl for that answer and for his explanation of why, in his opinion and the opinion of the experts in the Home Office, the amendment would be excessively inflexible. The important thing—I am encouraged by his answer —is that the Home Office intends to issue guidance on this matter. That is reassuring, and as long as the guidance is adhered to, there is nothing more to worry about. However, we shall obviously have to monitor this in the years to come. As I have said, so long as the guidance is adhered to—the noble Earl has given us his assurance on that—I am happy to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 56 [Power to remove trespassers on land]: [Amendment No. 96 not moved. ]
§ [Amendment No. 97 had been withdrawn from the Marshalled List. ]1475
§ Lord Stanley of Alderley moved Amendment No. 97 A:
After Clause 56, insert the following new clause:
§ ( "Trespass: power to stop persons from proceeding
§ The noble Lord said: My Lords, in Clause 60 the Government have accepted that the police need a specific statutory power to direct persons who are on their way to a rave and within five miles of the boundary of a site not to proceed any further. The amendment would apply similar provisions to the problems which Clause 56 seeks to address.
§ In Committee, my noble friend was not convinced of the need for my amendment. He suggested that Clause 65 trespass cases would not be on the same major scale as those encountered with raves and that the assembly powers of Clause 65 could be invoked against mass trespass.
§ In the case of the Castlemorton Common incident in Worcestershire in 1992, the police found themselves facing a rapid build-up of very large numbers of travellers about whom they had had very little warning. As my noble friend knows, a Clause 65 ban on the assembly can help only where the authorities have at least several days' notice. The notice was given far too late in the case in question. A clear legal power to disperse such persons on their way to such an event would surely help the police to control mass trespass, which has every prospect of getting worse and out of hand.
§ The new clause provides the police with similar powers for Clause 56 situations to those provided for Clause 58 raves. The Association of Chief Police Officers has indicated to the Home Office that it is strongly in favour of the extension. Therefore, I very much hope that my noble friend will agree to this minor amendment. I beg to move.
§ Lord McIntosh of Haringey
My Lords, the noble Lord describes this as a "minor amendment". He will have seen that in Amendments Nos. 101A and 117 the noble Lord, Lord Monson, and I are proposing to reduce, in Clauses 60 and 65, the limit from five miles to one mile. If I may anticipate my speech on the later amendments, the effect would be to reduce the very all-embracing power from 78 square miles to three square miles. The noble Lord is now proposing to increase that for the relatively simple offence of trespass. I hope that the Government will resist the amendment.
My Lords, as I said at the Committee stage, I have some considerable sympathy with my 1476 noble friend's intentions, but I have to tell him that I do not think that his new clause would be either desirable or enforceable. I am sure that in saying that I incur the pleasure of the noble Lord, Lord McIntosh of Haringey.
The provisions of the Bill give extensive—some would say "draconian"—powers to the police to prevent raves on land in the open air. Those are unusual in that they impose significant restrictions on the rights of people to travel and to assemble. But such is the nuisance to whole communities of those large-scale events that we consider the powers to be justified.
Encampments of New Age travellers and the like are different. I agree that they are an intolerable nuisance, particularly to those who are immediately affected. That is why the Government have brought forward the enhanced powers in Clause 56, but I do not think that it would be right to go as far as my noble friend would wish.
For all the misery and total frustration which is caused by groups of New Age travellers, a simple encampment cannot be said to create quite the wide-scale problems that raves do. With raves, we are dealing with a public, rather than a private, nuisance, particularly because of the damage which they do to the community by the noise they create from which it is impossible for man or beast to escape, and it is easier therefore to see that wider ranging powers are required.
In the case of raves there is hard evidence on which the police can act. Published leaflets give details of potential rave sites, and people will often clearly be travelling with the purpose of attending a rave at a particular site. With New Age travellers, that evidence is not usually available, and the police would be hard pressed to justify in court their action which was justified solely by a belief that people were travelling to a particular piece of land. That would open the way for all sorts of legal arguments.
Where the police have advance intelligence of a trespassory assembly which may result in serious disruption to the life of the community or significant damage to sites of special importance, they can use the powers provided in Clauses 65 and 66. I hope therefore that my noble friend will see the wisdom of what I have tried to explain to him and will feel that his amendment would be inappropriate.
§ Lord Stanley of Alderley
My Lords, I am afraid, with the greatest respect, that I do not see the wisdom of it, but I am prepared to concede it. I shall say just one or two things in summing up. First, It is extremely arguable whether raves are worse than Clause 56 offences. If my noble friend were allowed by the Welsh Office to visit Bala he might gain a different impression from the people who live there. I make the point time and time again. I am asking only for a power for the police. They do not have to use it. My noble friend knows perfectly well that the police are unwilling to use draconian powers such as those he suggests the amendment gives them.
I am surprised that my noble friend's department does not wish to help the police more, but that is his department's affair. It would be better to try to prevent a problem than to let it build up. I was trying to prevent 1477 it with the amendment, but I realise that I do not have the support of the House and, in particular, that of the noble Lord, Lord McIntosh of Haringey. I am not surprised that I do not have his support. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Lord Stanley of Alderley moved Amendment No. 97B:
Clause 56, insert the following new clause:
§ ("Power to remove unauthorised campers on highway land
§ The noble Lord said: My Lords, I thank the Government for the great improvements they have made with Clause 56 compared to the present law contained in Section 39 of the Public Order Act 1986. In Committee, I moved an amendment to extend police powers under Clause 56 to include all highway land, not just footpaths and bridleways, which of course are in the Bill. My noble friend suggested that the police already have adequate powers to deal with unauthorised camping on major highways but he kindly agreed to look at my proposal.
§ In the later debate on Clause 72 my noble friend referred at col. 1122 of Hansard to the habit of travellers camping on bits of surplus highway land. In practice, because Section 39 does not cover highways, the police experience serious difficulties in moving on travellers who while not obstructing the free flow of traffic therefore do not offend against the Highways Act, which my noble friend said they would. They would not in fact in areas such as lay-bys or on improvements to highway land, commonly called oxbows.
§ Considerable damage to property, and distress to humans and to animals, has been caused to farmers and other local occupiers with land adjoining the highway by people in such encampments. Yet the police cannot use their powers to move them on because they are not trespassing on private land. The new clause seeks to close that loophole by giving the police powers similar in nature to those in Clause 56. It would operate only when an encampment on a highway land had resulted in damage to adjoining land or property, or to threatening 1478 behaviour towards adjoining occupiers. Like Clause 56, it provides a "reasonable excuse" defence. This is a public order matter as opposed to a trespass matter.
§ Once again, I must tell my noble friend that the police support the amendment and I ask him to support it too. I beg to move.
§ Lord Renton
My Lords, I have been most sympathetic to all that my noble friend Lord Stanley has tried to do to help people in rural areas. I fully understand and sympathise with the intention underly-ing this new clause. However, I very much doubt whether it is necessary, because it overlaps to such a great extent with the law as it stands. It is already an offence to cause malicious damage anywhere and in any circumstances. It is an offence to cause a breach of the peace. In certain circumstances, the use of insulting words or behaviour is also punishable.
I shall be interested to hear what my noble friend Lord Ferrers has to say about the matter. Probably he can set at rest the mind of my noble friend and of the police by reminding them that there are already powers which cover almost all of what my noble friend has in mind.
§ Earl Peel
My Lords, I too have a great deal of sympathy for what my noble friend is trying to achieve with the amendment. I hear what my noble friend Lord Renton is saying. However, often the offences which arise as a result of people wandering on to private land from sites, as described by my noble friend Lord Stanley, are civil offences. We all know that it lakes a great deal of time for a private individual to bring a successful prosecution under civil law. During that time a great deal of damage can occur.
I suspect that my noble friend's aim is to get the police to solve a problem which can be solved through the civil courts but which takes a great deal of time. From that point of view, I have a great deal of sympathy for what he says. However, I suppose—and I am speculating slightly—that if individuals wandered on to private land from these sites and they were to interfere with farming activities they could be caught under Clauses 63 and 64, which deal with aggravated trespass. I shall be interested to hear what my noble friend has to say about that.
My Lords, my noble friend's amendment would apply a version of Clause 56 to major highways and it could give the police additional powers to direct trespassers on the highway to leave where they have caused a nuisance on land which is adjoining the highway.
As I said in Committee, the Government do not think that it would be right to extend Clause 56 to major highways. Not only is the type of nuisance which is created by an encampment on a highway very different from that which afflicts an occupier, but the police have perfectly adequate powers under highway law to clear any obstruction. I fear that the amendment would bring unwelcome duplication and confusion to the law. The amendment also goes further than Clause 56 by applying its provisions to those trespassers on highway 1479 land who cause a nuisance on adjoining land. Under this amendment, unlike Clause 56, no one need ask the trespassers to leave.
The purpose of Clause 56 is to provide the police with powers to restore to the occupier the use of his land. The powers are dependent, therefore, on the landowner taking initial action to ask the trespassers to leave. We believe that it would be wrong in principle to extend those powers to deal with problems which might arise to third parties. Where people cause damage or use abusive behaviour, or commit other offences, there is a remedy under the general criminal law and public order law, as my noble friend Lord Renton suspected.
What my noble friend is trying to do is to say that those people are not trespassing on a person's land but they are residing beyond the hedge and defiling his land, and because of that they should be moved. The fact is that Clause 56 is dependent wholly on trespass. It would be difficult to use those substantial powers to move someone not because he was trespassing but because he was not trespassing, though he was doing something, however objectionable, to someone else's land. The civil law should deal with that.
I know that my noble friend feels strongly about these issues—and I do not blame him. I know that he welcomes the general thrust of the Government's proposals, but I hope he will realise why we feel that it would be difficult to accept the amendment as it stands.
§ 9.45 p.m.
§ Lord Stanley of Alderley
My Lords, I thank my noble friend for that answer. He did not reply to the question of my noble friend Lord Peel as to whether the aggravated trespass provision would apply. I do not believe that it would.
We are slightly at cross purposes—and I understand why we are—because I am suggesting that this is not a trespass matter but a public order matter. My noble friend says, quite rightly, that Clause 56 is a trespass provision and does not deal with the issue of public order.
The main difference in our approach to this is that I wish, as I believe does my noble friend, although perhaps it does not apply in this particular case, to try to prevent causes of public disorder which these encampments can and indeed do cause. These people camp in an area and then chase the sheep, rob and do other things. I wish to say, as do the police, that those people are a nuisance and that we should remove the cause of the problem.
I understand the reason why my noble friend on the Front Bench cannot agree to the amendment, but I would quarrel with him with regard to what he said about the Highways Act. That cannot be used to remove such people because they are not causing an obstruction to the traffic; they are merely causing a public nuisance.
I am grateful to my noble friend for his reply, although I am not entirely happy about it. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.1480
§ Clause 58 [Powers to remove persons attending or preparing for a rave]:
§ The Minister of State, Scottish Office (Lord Fraser of Carmyllie) moved Amendment No. 98:
Page 44, line 18, after ("apply") insert ("— (a) in England and Wales,'").
§ The noble and learned Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 99, 101, 105 to 112 and 213. In fact, Amendment No. 213 is the most important amendment because it extends to Scotland the powers in relation to raves and a power to retain and charge for seized vehicles and property under Clause 59(4).
§ Amendments Nos. 98, 99, 101 and 105 to 112 are technical amendments, ensuring the relevant application of the powers to Scotland. They are essentially consequential on Amendment No. 213.
§ When consideration was given in Committee to amendments tabled in the name of the noble Lords, Lord Macaulay of Bragar and Lord Carmichael of Kelvingrove, I indicated that our previous conclusion was that the Bill's provisions relating to raves were not needed north of the Border. Existing powers were deemed to be adequate to deal with any existing problems—and I stress "existing problems"—likely to be encountered in controlling unlicensed raves of the type covered by the clauses.
§ A generation somewhat younger than those noble Lords present here tonight see some of those powers as being an attack on the right to dance. But what we have been concerned to determine is whether in extreme cases the police have sufficient powers to deal with problems. In Scotland the police already have powers to seize music-making equipment when an offence has been committed under Section 54 of the Civic Government (Scotland) Act 1982. It was our view that the power of seizure may serve as a deterrent to persons who might otherwise be inclined to hold illegal raves in Scotland.
§ However, in the light of the observations made by the noble Lord, Lord Macaulay, during the debate on his amendment—and I hope that the influential noble Lord, Lord Graham of Edmonton, will pass on to the noble Lord the fact that we have taken his views into consideration—I said that we would take advantage of the period between Committee and Report to conduct a reassessment of the risks of a growth in illegal raves of the type experienced in parts of England against the background of existing powers in Scotland to control such events. We have now undertaken that reassess-ment. At present it is an offence under existing law, especially under Section 54 of the 1982 Act, to use sound producing equipment so as to give persons cause for annoyance. In certain circumstances equipment so used can be seized and retained by the police. Further, a limited measure of control for raves may be provided under Section 41 of the Act. That enables local authorities to require a licence for the use of premises as a place of public entertainment.
§ I am content that those and other provisions in our law are effective to cope with existing raves in Scotland. The question then is whether they will be able to cope in the future. Persons who arrange those events often do 1481 so, not surprisingly, surreptitiously and do not restrict their activities to any particular locality. Given those circumstances, it is not surprising that no hard information exists which suggests that they might turn an unwelcome attention to Scotland if prevented from mounting raves south of the Border. On the other hand, there is no reason to dismiss that possibility.
§ Taken overall, the Association of Chief Political Officers—
§ Lord McIntosh of Haringey
That is not an insult to police officers; it shows the Government's real thinking.
§ Lord Fraser of Carmyllie
My Lords, as I was trying to say, it is now the view of the Association of Chief Police Officers (Scotland) that organisers of illegal raves may see Scotland as an attractive proposition in order to pursue their activities if they are successfully blocked by the Bill—as, indeed, we hope that they will be—from doing so in England and Wales. The association has now suggested that, on balance, there would be an advantage in having the powers in question applied to Scotland in case we should witness an unwelcome influx of such events on their being proscribed in England and Wales.
While we conclude that the existing legislation can effectively cope with the existing rave scene in Scotland, the powers in question may be hard pressed to deal with any developing change caused as a result of illegal rave organisers turning their sights north of the Border. Therefore, following on from the amendments proposed by the noble Lord, Lord Macaulay of Bragar, we have concluded that there is merit in the rave powers being extended to Scotland. I urge your Lordships to accept the amendment. I beg to move.
§ Lord Burton
My Lords, only this week I have heard word of such a party which is to take place this weekend near a West Invernesshire village. Minor events of this kind were held last year and the village was disturbed about that. Therefore these events have already occurred. As my noble and learned friend said just now, if these events were banned in England, I have no doubt at all that Scotland would be the obvious place for them to occur. I am therefore most grateful to my noble and learned friend for having produced this amendment. I hope that your Lordships will accept it.
§ Lord Avebury
My Lords, I wish to raise a problem which has been submitted to me by the Motor Cycle Action Group. That organisation has 20,000 members in the country as a whole, and I believe it extends to Scotland as well as to England and Wales. It has posed the question of what happens when equipment is confiscated—as is provided for under Clause 61— which does not belong to the group in question. The Motor Cycle Action Group holds large meetings, the primary purpose of which is to discuss and to organise activities in connection with motor cycles. However, at those meetings the group may incidentally play music.
1482 I wish to point out in passing that, although the rubric on this clause refers to raves, there may be a great many other activities which fall within the definition of Clause 58(1) which refers to,a gathering … in the open air of 100 or more persons … at which amplified music is played during; the night".In the course of motor cycle rallies and, I believe, many other kinds of meetings—for example, meetings where traction engines are exhibited—it is the practice to play music over loudspeakers. Some people might say, subjectively, that that was likely to cause serious distress to the inhabitants of a locality. Consequently the organisers and participants at such a meeting would be caught under a provision which is designed for some completely different purpose.
The point which has been raised with me by the Motor Cycle Action Group is that the equipment which it uses to provide sound at its meetings is almost invariably hired. It will become increasingly difficult to persuade hirers to hire out their equipment if they know that there is even a remote possibility of it being confiscated. I note that in Amendment No. 106, which is proposed by the noble and learned Lord, Lord Fraser of Carmyllie, there is provision for a claimant to get back the property which he owns—that is to say, a person other than the organisers of the rally, who presumably had hired the equipment for that purpose. The claimant may apply to the court and obtain an order from the court for the equipment to be restored. However, people will regard this as an enormous nuisance.
I have a feeling that the Motor Cycle Action Group is correct in its supposition that even the remotest threat that equipment might be confiscated, and that one might need to apply to the courts, whether in Scotland or in England and Wales, as regards the possibility of getting the equipment back will discourage hirers from hiring out equipment. I believe it is not stated that the court shall restore the equipment, but rather that it may restore the equipment to the owner if he satisfies the court of certain conditions. That hurdle which may occur as regards reclaiming the equipment will, I believe, be enough to stop the owners from hiring their equipment out to bodies such as the Motor Cycle Action Group in the first place. That would create great difficulties for that group as regards organising the music which is an incidental part of its rallies.
Obviously I do not have an amendment to propose on this matter, but I thought it was worth raising this point in connection with the amendment of the noble and learned Lord in case he had not considered it in the drafting of these provisions as they apply to Scotland. Of course they are parallel to those which have already been agreed by your Lordships for England and Wales. I certainly hope that before we leave this Bill it will be possible for the Government to have the opportunity of giving consideration to the point I have raised. Perhaps we may be able to discuss it after this debate or return to it on Third Reading.
The Earl of Balfour
My Lords, I wish to raise one question on this point in respect of Clause 59. I draw your Lordships' attention to subsection (10). If the 1483 clause is now to apply to Scotland I wonder whether there should also be a definition of "local authority" in the subsection. The subsection reads:In this section—'entertainment licence' means a licence granted by a local authority".The words "local authority" do not apply anywhere else. As the subsection defines a local authority in London, England and Wales I wonder whether there should be a further definition of a local authority within Scotland.
§ Lord Fraser of Carmyllie
My Lords, perhaps with leave I may reply briefly. In relation to the question of forfeiture and seizure, I shall read what the noble Lord had to say on that matter. I am sure that he will appreciate that the matter of forfeiture is best determined by the courts. One cannot insist that, if an application is made, in every circumstance the property will be returned to those who make objection to such seizure. However, I shall certainly look at the matter again.
My noble friend is concerned about the definition of local authority. My immediate reaction is that there is no difficulty on that matter in terms of drafting. However, again I shall have another look at that matter to ensure that there is no difficulty, particularly in the context of another Bill which is going through your Lordships' House which would change the basis of local government in Scotland from two tiers to one.
On Question, amendment agreed to.
§ Lord Fraser of Carmyllie moved Amendment No. 99:
Page 44, line 19, at end insert ("; or (b) in Scotland, to a gathering in premises which, by virtue of section 41 of the Civic Government (Scotland) Act 1982, are licensed to be used as a place of public entertainment.").
§ On Question, amendment agreed to.
§ Lord Stanley of Alderley moved Amendment No. 100:
Page 44, line 38, at end insert:
(""night" means the period between 23.00 and 07.00 in the morning of the following day; and").
§ The noble Lord said: My Lords, at Committee stage your Lordships had an interesting and cheerfully melodious debate on what is meant by the term "night" in Clause 58. The clause turns on the concept of loud music played at night causing serious distress to the inhabitants of the locality. In common with many noble Lords, I would have preferred the new powers to tackle unlicensed raves to be available at all times of the day. However, if they must be confined to the night, I believe that we should at least define what is meant by night. Otherwise there will be uncertainty and a potential weakness in the law, given the relatively short period of darkness in some latitudes in the summer, particularly in Scotland.
§ The amendment defines night as meaning a period between 11 p.m. and 7 a.m. the following morning. My reason for choosing those hours is that there is considerable precedent, notably the law restricting the use of car horns at night, which was introduced in 1937 1484 and which no doubt many noble Lords will remember, and the standard period for restricting noise from aircraft night movements. The period is also the time band adopted by the Government in their forthcoming planning guidance on noise.
§ I believe that this is a sensible amendment. I hope that my noble friend will consider it sympathetically. I beg to move.
§ Lord Monson
My Lords, I hope that nobody will accuse me of inconsistency in supporting the noble Lord, Lord Stanley, on Amendment No. 100 and the noble Lord, Lord McIntosh of Haringey, on Amendment No. 101A. Both amendments would enhance individual freedom—the latter amendment the freedom to pass along the Queen's highway and generally move around the country, except in exceptional circumstances involving physical threats to persons or property, and this amendment the freedom of people, including perhaps in particular children of school age studying for exams—to enjoy a decent night's sleep.
§ Lord Renton
My Lords, my recollection is that there are several definitions of "night" to be found in the law. So far as I know, no definition of night is given in the Bill. Therefore, the amendment moved by my noble friend deserves consideration.
In the circumstances envisaged by Clause 58, bearing in mind that we are concerned with people making a noise at night, I should have thought it reasonable and fair to consider that "night" means between 2300 hours and seven o'clock in the morning. Indeed, I would have preferred to make the period rather longer. My noble friend's moderation is commendable.
My Lords, we had a discussion in Committee as to what was meant by "night". Defining anything like that is always difficult. I suppose that the best definition of night is "that which is not day". However, that does not get us far.
I believe that everyone in Committee recognises that this is not an easy area. As presently drafted, the Bill gives police powers to prevent or stop raves which take place during the night, because it is during the night that they cause most distress to the local community. We deliberately did not define "night" but left it to the discretion of the police, and ultimately the courts.
My noble friend seeks to import a statutory definition. I have much sympathy with that because it would make the law much clearer. But simplicity is not always a virtue. In some parts of the country at some times of the year, it can be dark at four o'clock in the evening. In other parts of the country at other times of the year, it is not dark until two o'clock in the morning. In his amendment my noble friend seeks to define "night" as being from 11 o'clock at night until seven o'clock in the morning. My noble friend Lord Renton considers that that is not long enough in which to sleep. I understand that. My grandfather used to say, "I sleep slowly". Therefore, what is sufficient night for some people is not sufficient night for others.
To stop a gathering at 11 o'clock at night might be quite unreasonable. I have no doubt that some noble 1485 Lords may at some time in their lives have been to, or even held, barbecues, possibly with amplified music, which could well continue until after 11 o'clock at night. That could be to the distress of some neighbours. On the other hand, in certain circumstances that hour could also be too late for an event reasonably to continue.
The simple fact is that we would far prefer the matter to be left to the police and the courts to use their discretion as to whether something has gone on in the night. Most people know what the night means; and that means when most people are normally likely to be asleep.
My Lords, my noble friend is in difficulty because at Report stage it is the convention that noble Lords do not speak after the Minister has spoken, unless they preface their remarks by saying "before the noble Lord sits down". However, as I had already sat down for quite a long while, I think that he has probably shot his bolt.
§ Viscount Mountgarret
My Lords, before my noble friend sits down, perhaps I may ask him whether there might not be a solution to the problem of the definition of "night". I seem to remember that in the Army one "stood to" one hour before sunrise and "stood down" one. hour after sunset. If there is a change of darkness in various parts of the country, to which my noble friend quite rightly drew attention, would not that phrase satisfy the difficulty to which he referred?
§ Lord Stanley of Alderley
Thank goodness, my Lords; I agree entirely with my noble friend on the Front Bench. I agree that the answer to that is no.
I thought my noble friend was very persuasive, but frankly he did not have a single case of merit in his argument. First, "night" is described in three cases, which I quoted, by the Government as always between 11 o'clock (23.00 hours) and seven o'clock. So I cannot see why we cannot transpose that definition for this case.
My noble friend quoted some lovely cases when some of your Lordships were younger and might have gone to parties. I can only ask him to read Clause 58. None of those cases would be caught by Clause 58, and that is a very serious point. It completely defeats his argument. I shall not read the whole of Clause 58. Clause 58 (2) is quite interesting, as is Clause 58(1), but I will not go through them. I can see that I do not have my noble friend's sympathy. I am sorry about that, because I believe that the point is valid. My noble friend Lord Renton agrees. But I shall have to leave the matter there. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Fraser of Carmyllie moved Amendment No. 101:1486
Page 44, line 39, after ('"'occupier"") insert (", "trespasser"").
§ The noble and learned Lord said: My Lords, I spoke; to this amendment when speaking to Amendment No. 98. I beg to move.
§ On Question, amendment agreed to.
§ Clause 60 [Raves: power to stop persons from proceeding].
§ Lord McIntosh of Haringey moved Amendment No. 101A:
Page 45, line 33, leave out ("5 miles") and insert ("1 miles")
§ The noble Lord said: My Lords, in rising to move Amendment No. 101A I should also like to speak to Amendment No. 117. Amendment No. 101A refers to the same issue in Clause 60 as Amendment No. 117 refers to in Clause 65. Both amendments seek to remedy what appears to us to be a quite extraordinary provision of preventing people going to events: in one case, in Clause 60, a rave; in the other case, in Clause 65, a trespassory assembly.
§ I have listened to the Ministers on the Front Bench as they have described these powers. The noble Earl, Lord Ferrers, said, that some would say they were draconian powers. He also used the words "extensive" and "severe powers". These are certainly very severe powers when we are talking not about people who are at the raves or trespassory assemblies but who are considered by a police constable in uniform to be going towards such assemblies.
§ We are aware that police in some parts of the country are already anticipating the powers that are given by this Bill. The thought that they may be given parliamentary authority to do the kind of things that are happening fills me with very great alarm. When stopped by a police constable in uniform who asks: "Are you going in the direction of Lower Bolting-in-the-Marsh?", or whatever it may be, and you reply that you are going there, who is to say that you know there is to be a rave there or a trespassory assembly? But the police constable, just by identifying the fact that you are going to that place, will be able to turn you away. You have committed an offence—not a civil offence but one that becomes a criminal offence.
These powers go way beyond the legitimate protection of individuals and, in particular, way beyond the legitimate protection of landowners. They amount to a real intrusion on the freedom of our people to move around our country. They extend this power beyond the land on which the supposed offences are taking place to an area of 78 miles; that is, five miles around the area, instead of the three miles that we propose now. I suggest to the House that they go far too far. I beg to move.
§ Lord Stanley of Alderley
My Lords, I cannot disappoint the noble Lord, Lord McIntosh. I think his amendment is most unacceptable. I hope that my noble friend will resist it.
§ Lord Renton
My Lords, when I first looked at this amendment I thought that there might be some merit in it. But the more one applies one's mind to the circumstances envisaged by the clause to which it applies, the more one realises that the amendment is quite unacceptable.
1487 The police officers may be in a car, on bicycles, on motorcycles or on foot. Luckily, these days the police are equipped with radios and are able to keep in touch with each other over a wide area. If a police officer hears that there is a build-up of something which will become a rave, even five miles or more away, and if he sees a vehicle or two obviously of the kind that would attend that rave, perhaps with musical instruments protruding from them or people in the vehicles already playing instruments, I should have thought that he had every reason to say to those people, "Where are you going?" If they are truthful they will say where they are going. The officer may say, "We know what you are going there for and I am obliged to ask you not to go there. I have power under statute to stop you." Even though it is five miles away, it is better that they should be stopped at that distance than that the policeman should have to follow them for another four miles, perhaps on his bicycle, until they are so close as to be within one mile. Therefore I hope that my noble friend will not accept the amendment.
§ 10.15 p.m.
§ Lord Monson
My Lords, the noble Lord, Lord Renton, gave a practical objection to the amendment but he did not address the libertarian argument. Like quite a few people, I was very uneasy about the way in which the police stopped miners and their supporters travelling around the country during the miners' strike. It seemed to many people to be stretching the law as it then existed to its very limit and perhaps beyond. But at least it could be argued and was argued that in practice the restrictions, strictly legal or not, almost certainly saved a number of individuals from being injured, possibly seriously.
The same arguments about the prevention of injury to persons or property on balance could be applied to some of the new powers being granted to the police under this Bill where trespass is concerned. That is why I cannot support the noble Lord, Lord McIntosh, in Amendment No. 117.
However, this clause is not concerned with physical injury or damage to property but with nuisance in terms of noise emanating from a site where people have in general been given permission to gather. On balance, mere nuisance does not seem to justify putting into quarantine an area of 78.57 square miles.
§ Lord Avebury
My Lords, I too am inclined to agree with the noble Lord, Lord McIntosh. It seems to me that the powers conferred on the police to move away participants in the noisy gathering should be sufficient to deter those who are likely to contemplate organising such events without the extensive powers conferred by this clause to stop people from even approaching the gathering.
There is a great difference in principle between giving the police powers to stop something that is already causing a nuisance—I think we all agree about the necessity for the police to have powers to stop gatherings that are causing serious nuisance to people in any locality—and saying that people should not even 1488 approach a place where the police suspect that such a gathering is to take place. That is an enormous extension of principle. No one has done anything at that point.
The case is not quite that put by the noble Lord, Lord Renton, where the police ask the traveller a question, having seen musical instruments sticking out from a van which has given them reason to suppose that the driver is approaching the rave. A person may be dressed in a particular kind of clothing which the police think betokens his intention to go to the gathering, and that may be the only reason they have for suspecting that he will do so. If he denies that he is going to the gathering, the police having, as they see it, reasonable cause to suspect that he will attend the rave will order him not to do so. I believe that the police have a very drastic power if they can stop somebody from moving freely about the country, not because he has committed or is even thinking of committing an offence but because they consider that they have reasonable cause to believe that he will attend the gathering. One imagines that if these matters came to court and there was a dispute about whether the police had reasonable cause, in every case the court would take the side of the police in upholding their reasonable belief in the person's intentions.
I believe that we are giving an enormous power to the police and that the more we restrict it the better. I do not agree with the Minister, who said, when we discussed this matter on another amendment in Committee, mat it would impose on the police severe operational difficulties if they could not stop somebody in the space between five miles and one mile from the site of the gathering. One mile is an enormous distance on a road where the police can have their vehicles spaced to intercept travellers who are on the way to the gathering. I do not honestly believe that the Minister, on reflection, will insist that in any country area where the police are on the roads approaching the site of a rave they will have difficulty in stopping people at the shorter distance proposed under the amendment. I beg your Lordships to consider that we are extending the powers of the police very widely to deal with activities which they believe are in contemplation by an individual but which he may not have any intention of carrying out. We ought to restrict that power to the narrowest limits that we have and not be misled into thinking that the evil we propose to combat—the rave itself—means that we must extend the powers over such a wide area as is proposed.
My Lords, the simple fact is that when the police are trying to stop a rave from happening it is essential mat they have the ability to turn people away before sufficient numbers gather to make the dispersal operation impractical. If the police can act only within one mile of the site it will be very difficult for them to prevent the gathering from taking place. I believe that five miles is a reasonable distance, given that these powers are envisaged for use in rural areas.
Amendment No. 117 seeks to introduce a similar restriction in respect of trespassory assemblies. This is all very much a matter of judgment. I said in Committee that the Government's objective in bringing forward Clause 65 was to prevent disruption of the community by assemblies of trespassers in a given and precise area. 1489 This area needs to be wide enough to enable the police effectively to enforce protection but not so wide as to represent an unreasonable interference with people's general freedom of assembly. It can always be a matter of judgment whether the distance should be five, four or three miles or one mile. The fact is that we are dealing with a gathering of people that is likely to involve vast numbers.
The noble Lord, Lord Avebury, said that one mile was a vast distance. We are talking here about gatherings that sometimes attract tens of thousands of people. If they all congregate within one mile of the event before the police can take any action, the police will be powerless to prevent the assembly. The people will be overwhelming in their numbers and the police will be unable to turn them back, not least because the very roads on which they will turn them back will already be jammed with other people who are going to the assembly.
These assemblies can be deeply offensive to the local community. The noble Lord, Lord McIntosh, said that this is an intrusion into the liberty of people to do what they want to do. But the real intrusion is into the liberty of people when masses of others gather together to disrupt the life of their community. That has happened and does happen. There is no point in the noble Lord saying that it is an infringement of the liberty of people to turn them away. The real infringement of liberty is what happens to the individuals whose lives are disrupted. Directions can be given only where a police officer believes a person to be going to the gathering, not just to the place where it is for some unconnected purpose.
It is as well to remember the point which my noble friend Lord Stanley made earlier. The police will not always use five miles. Of course they will not. But they should have the ability to turn people back within five miles should they deem it necessary in order to stop the event happening and in order to stop all the roads being jammed before they can do anything about it, by which time it would be too late.
§ Lord McIntosh of Haringey
My Lords, the Minister says that it is a matter of judgment. Indeed it is. The judgment we have to make is whether powers which are sought to deal with a particular nuisance should be so extensive as to interfere with the liberty of the subject. The Minister in his speeches, not just today but at earlier stages of the Bill, has continually referred to the seriousness of the nuisance which he is describing. He referred today on more than one occasion to thousands of people. Clause 58 does not say anything about thousands of people. Clause 58 says:'This section applies to a gathering on land in the open air of 100 or more persons (whether or not trespassers) at which amplified music is played during the night".I shall not be so impertinent as the Minister and ask whether any of your Lordships has attended or even held a barbecue, but I suggest that most of us have attended weddings. Weddings take place in the open air; weddings have more than 100 people; weddings involve amplified music; and weddings fall within the definition 1490 of raves as found in Clause 58 of the Bill. The powers which the police have could be applied to weddings of people the police do not like.
The whole point of our objection to this series of clauses about trespassory assemblies, aggravated trespass and so on is not that we are defending the very few extreme cases that take place but that the powers which are sought in the Bill are powers of a police state. They are powers which extend far wider than the examples which the Government choose to give. Every time Ministers seek from the Dispatch Box to defend these powers they defend them by describing the events in much more lurid terms and therefore in much more restricted terms than the terms in which the Bill is drafted.
This Bill is an open invitation for the police and for the authorities generally to interfere in the legitimate activities of people, and particularly of young people, in our country. Our objection to it cannot be encapsulated in the particular amendments which we are forced to introduce in the way in which we consider the Bill in this House. These are repulsive extensions of police power in our society and at some stage they will have to be removed. The difference between five miles and one mile is not a worthy subject, particularly in a Chamber crammed with landowners, on which to seek the opinion of the House tonight, but it is a serious issue which will require parliamentary action in due course. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 61 [Power of court to forfeit sound equipment]:
§ 10.30 p.m.
§ Lord Fraser of Carmyllie moved Amendments Nos 105 to 112:
Page 46, line 21, at beginning insert ("Except in a case to which subsection (5A) below applies,").
Page 46, line 25, at end insert:
("(5A) In a case where forfeiture under subsection (1) above has been by order of a Scottish court, a claimant such as is mentioned in subsection (5) above may, in such manner as may be prescribed by act of adjoumal, apply to that court for an order for the return of the property in question.").
Page 46, line 26, after ("(5)") insert (", or by virtue of subsection (5A),").
Page 46, line 35, after ("(5)") insert (", or by virtue of subsection (5A),").
Page 46, line 37, after ("(5)") insert (", or as the case may be by virtue of subsection (5A),").
Page 46, line 43, after ("(5)") insert (", or by virtue of subsection (5A),").
Page 47, line 2, leave out ("convicted") and insert ("— (a) convicted in England and Wales").
Page 47, line 4, at end insert:
("(b) so convicted in Scotland, means the time of his arrest for, or of his being cited as an accused in respect of, the offence;").
§ The noble and learned Lord said: My Lords, in speaking to Amendment No. 98, I spoke to Amendments Nos. 105 to 112. I beg to move them en bloc.
§ On Question, amendments agreed to.
§ Clause 62 (Retention and charges for seized property]:1491
§ Lord McIntosh of Haringey moved Amendment No. 113:
Page 47, line 7, leave out subsection (1) and insert:
("(1) A county court may make an order for the retention of any vehicles which have been seized and removed by a constable under section 57(1) or 59(4).
(1A) A vehicle may not be retained under subsection (1) above if it is the sole or main residence of any person.").
§ The noble Lord said: My Lords, I shall seek not to make the more general criticisms which I have made of this part of the Bill. I simply ask the Government whether it is really their intention to use these powers to take away people's homes, because that is what is proposed here. Clause 62 refers to property and it seems to equate vehicles with sound equipment and other property. Do the Government realise that what they are doing is taking away people's homes and providing legitimacy for the removal of those homes? What is going to happen to the people who live in those homes and in particular to the children? I beg to move.
§ Lord Renton
My Lords, this amendment seems to be unnecessary. It will lead to delay in achieving the purpose which we have in this clause. I am bound to point to out that waiting until the county makes an order is not in conflict but it is incongruous when we compare that with the power in subsection (3) of the clause given to the Secretary of State to make regulations for the,disposal and destruction of vehicles".Subsection (1) of the amendment is inappropriate and unnecessary. But subsection (1A) is more serious. I consider this to be a wrecking provision. It means that, even though breaches of Clause 56(1) involving trespassing and causing damage have taken place, or there have been breaches of Clause 58 where 100 or more people have played loud music at night, the vehicles could stay on the land, however many vehicles there were, if the owners of the vehicles were accustomed to residing in them. That would utterly defeat the purpose which Parliament has so far had in mind in trying to protect the public.
Despite what the noble Lord, Lord McIntosh, said, about a police state, he has completely overlooked that these clauses are necessary for the protection of the public so that people can live in peace and quiet and seclusion in rural areas. I hope that my noble friend will not have any sympathy towards this amendment especially subsection (1A), which is a wrecking provision.
§ Lord Avebury
My Lords, I believe that in the regulations which Ministers draw up under this section a distinction has to be made between individuals who use vehicles as a residence and those who have merely arrived at the site of the trespass in vehicles and have some other home to which they can go. If Ministers do not make such a distinction, what do they believe will happen to the persons who live in those vehicles? They will certainly be treated as homeless within the terms of the recent Government guidelines. That will make the local authority responsible for rehousing them and their children at vast expense to the ratepayer and the taxpayer. Is that really the intention or does not the Minister think that, on the face of this clause, the powers of the court to retain and dispose of vehicles should be 1492 different in the case of vehicles which are used as the main or principal residence of the owners concerned and those whose use of such vehicles is incidental to their presence on the site?
If the Minister does not think that, what provision is being made for other authorities to be notified of the decision of the court so that adequate arrangements can be made for the rehousing of the families and the welfare of the children? At this point, perhaps I may remind the Minister of the extreme anxiety which has been expressed by all children's organisations concerning some of the effects of the Bill. I do not have any particular sympathy with New Age travellers. As the Minister is aware, I want to distinguish between the New Age travellers and the gypsies, for whom I hold a particular regard—and have for many years—and for whom I think special provision ought to continue to be made. We shall come to that point on Monday.
We are talking about New Age travellers here, many of whom are accompanied in their caravans by children. The local authorities' obligation to the children is the same whether the parents belong to the gypsy community or to the New Age traveller community. I am sure that all your Lordships will agree with that. You cannot simply remove a vehicle from a site, leave children on the roadside and not make any arrangements for their accommodation. One cannot allow the courts to take away a person's home - and to destroy it, if they wish - without making any alternative provision for looking after the children.
I hope that the Minister will say that that point will be taken care of in the regulations and that adequate accommodation will be made available to such travellers under the homelessness provisions. Unless the noble Earl can give us those assurances, I remain extremely concerned about the effect of the clause.
My Lords, this amendment seeks to make the retention of vehicles seized and removed by the police following a direction to leave land under the terms of Clauses 56 and 58 dependent on a county court order rather than on regulations made by the Secretary of State.
I am the first to acknowledge that the seizure of vehicles is a sensitive area. The circumstances in which a vehicle might be retained, like all interferences with private property, must be prescribed by law. It is therefore right that their retention should be carefully regulated and restricted rather than left to the wide discretion of the courts. The regulations are subject to the negative resolution procedure, which will provide Parliament with an opportunity to discuss them. The noble Lord's amendment would provide the courts with no guidance and would therefore allow them to make arbitrary and inconsistent decisions.
The amendment also seeks to provide a restriction that vehicles which are peoples' homes may not be retained. Of course one would not expect lots of vehicles which are homes to be seized. In most cases, people who will be directed to leave will do so for their own good. That is what happens in most cases now, under the existing law which is contained in Section 39 of the Public Order Act 1986.
1493 What the noble Lord, Lord McIntosh, is really saying is that, if a person is told and given a direction to remove his vehicle from a certain place, he must do so, but, if the vehicle is occupied by his family, he need not bother. He can stay there and disregard the direction. I do not think that that is right.
The noble Lord, Lord Avebury, asks what happens if people do not move and have to go into care. That is an extreme view. The fact is that, if these people have trespassed, and in such a way that they are given an order to move, it is up to them to move. It is highly unlikely that they will continue to remain on the land. The noble Lord asks, "What happens if they do?" The fact is that they will have to be moved on. The noble Lord is right about the totally extreme case. Where vehicles are seized, the people concerned would become a liability on the local authority. Frankly, I think that that is highly unlikely and the fact that it is a possibility —even though it is a highly unlikely one—is not sufficient reason for saying that, provided the vehicles are occupied by people, those people can disregard an order. If someone were to ignore such a direction, we see no reason why he should not be open to having his vehicle removed so as to end the nuisance which required the direction in the first place.
Vehicles will, of course, be reclaimable on payment of the appropriate fee, just as someone who is parking illegally in London and has had his car towed away may recover it on payment of the appropriate sum. If we are to have the provision, and I suggest that it is necessary to have it, the amendment would not be an improvement, because one has to make provision for what is to be done when people refuse to obey the order.
§ Lord Avebury
My Lords, before the Minister sits down perhaps I may ask a brief question for elucidation. Will it be possible for the draft regulations which are referred to in subsection (3) to be produced before Third Reading so that your Lordships can see what is proposed to be done by the courts under this provision in the case of families living in accommodation, and the differences in treatment the Minister proposes should be accorded to them as compared to single persons?
My Lords, I shall have to consider that point. It is unlikely that we shall be able to get the draft regulations in time for Third Reading. But I shall consider the matter.
§ Lord McIntosh of Haringey
My Lords, the Minister is a master at taking government proposals and giving his own explanation of what they mean, which is often entirely different from what they actually mean. What he said in response to the amendment was that we are saying that those who have the vehicles in which they live on land which is designated under the terms of the Bill are being told that they can just get on with it; that there is nothing that can be done about it. The amendment does not say that vehicles cannot be removed from land even if the vehicles are the vehicles in which the people live. What we are talking about in the amendment is a different thing: it is the retention 1494 —in other words, the confiscation—of those vehicles which are homes. That is the issue which is addressed in the second part of the amendment.
In the first part of the amendment we are saying that the confiscation of people's homes shall be possible only if that is required by a county court. It is irrelevant to say that the county court has no indication of the basis upon which it will confiscate people's homes. Of course county courts will pay attention to the legislation and form rules, as they do with all such things, as to the basis upon which they will sometimes order the confiscation and sometimes not. Even though subsection (1) of the clause is removed by the amendment, there is nothing to stop the Home Secretary from issuing guidance notes to county courts as to how this part of the Bill should be interpreted.
I found the Minister's response to the amendment not just unhelpful but in many ways misleading and beside the point. I do not believe that he understood the issue that I and the noble Lord, Lord Avebury, were trying to raise: that in not just a few rare cases, but in a number of cases, this will result in local authorities having to take charge of children and an increase in homelessness. Nothing that the Minister has said has persuaded me that the amendment is not one of the ways, but only one, in which it will be necessary to address this serious social problem. The faults with this part of the Bill are so widespread that one cannot deal with them in individual amendments in this way. They will have to be dealt with by widespread repeal in due course rather than by piecemeal amendment today. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 10.45 p.m.
§ Clause 63 [Offence of aggravated trespass]:
§ Lord Mancroft moved Amendment No. 113A:
Page 48, line 4, leave out ("or adjoining").
§ The noble Lord said: My Lords, in speaking to Amendment No. 113A I wish also to address Amendment No. 113B. I apologise to the House for the fact that the amendment was tabled only last night. It was a mistake, an oversight. There was no intention to surprise your Lordships.
§ The amendment refers to the offence of aggravated trespass. Perhaps I may remind your Lordships that a person will commit that offence only if he trespasses with the intention of disrupting a lawful activity which is taking place on the land or on adjoining land. What exactly does "adjoining" mean?
§ Perhaps I may take, first, the case of three small farms lying side by side. Let us suppose that saboteurs trespass on the first farm and the hunt or shoot is on the second farm. Since it is clearly adjoining land, an offence is committed and the police can take action. But what if the hunt or shoot happens to be 50 yards further away, or perhaps not further away but nevertheless on a third farm whose land does not march with the first? While saboteurs are on the first farm, is it the case that they commit no offence because the land is not adjoining? Clearly, that would be absurd.1495
§ Disruption is no less irritating and no less likely to provoke a public order problem because it happens to fall foul of a legal loophole by taking place on the wrong piece of land. It would make a mockery of an otherwise excellent and welcome new offence. Worse, I suspect that it is a recipe for police confusion. How can the police be sure whether saboteurs are on adjoining land? How can they know where the borders between two or more farms lie?
§ It is worrying to contemplate how many prosecutions under this legislation will fail because defence lawyers, quite properly, discover that the land is not adjoining. I respectfully submit that it is not enough to say that the lawful activity and those seeking to disrupt it should be in close proximity for an offence to be committed. How close? The whole purpose of Clause 64 is to give the police pre-emptive powers to prevent disruption. What is proposed is not some carefully defined geographic limit but adherence to the arbitrary and completely unpredictable boundaries of the land registry's map. In parts of the country where farms and land holdings are very small this loophole could well be enough to make the new police powers extremely difficult to operate.
§ I suggest that "neighbouring" would be a better word than "adjoining". There is an objection to the word on two grounds. First, some lawyers—and some lawyers to whom I have spoken—have advised that "adjoining" may indeed mean "neighbouring". The Government have indicated that they do not want the courts to interpret adjoining land as being strictly limited to contiguous land. The Government have said that fields, for example, separated by a river or a road, would probably be considered to be adjoining land. "Probably" is rather vague. What if they are not? In the example I gave, would the first and third farms be adjoining or not? It is most important that we have clarification.
§ Secondly, there is a worry that if "neighbouring" goes beyond "adjoining" it is far from clear how wide it will be taken to go. We are extremely anxious that at an earlier stage the Minister said that he would certainly not wish to see the offence so widely drawn as to include all land in the same locality or neighbourhood. But, on reflection, why not? This is not an extreme or wide concept. It is essential that the police have clear and workable powers.
§ We have been told that "adjoining" does not mean "contiguous". It might mean "neighbouring", but "neighbouring" does not mean "in the neighbourhood". Therefore, what does it mean? If it is not clear, and it is not clear at the moment, I suspect that it would be much better to have no limiting factor. A person who trespasses with the intention of disrupting a lawful activity on any land would commit an offence. I fail to see why that should be unacceptably wide. A person trespasses and he does so setting out to disrupt something. That is the intention. Why should it matter how far away the activity is that he intends to disrupt? There cannot be scope for injustice. Clearly a person must be relatively close to disrupt or even to intend to disrupt. Indeed, he must probably be within sight or sound of the activity.1496
§ If a limiting factor is required, the Bill needs to be far more clear and precise than it is at present. A geographical limit of five miles is defined in relation to raves in Clause 60, and we discussed that earlier this evening. Therefore, there is a precedent for a similar limit in relation to aggravated trespass.
§ I do not believe that this is a petty or a drafting point. We discussed this matter in Committee. It was not clear then and it is no clearer now. I suspect that, unless we sort out the matter and achieve a more precise definition, there will be a great deal of confusion and injustice in the future.
§ The amendment does not seek to broaden the offence or to make it more narrow. I seek only to clarify what is intended and what will happen in practice.
§ The reason that there are two amendments is very simple. One substitutes "adjoining" for "neighbour-ing". If your Lordships are not convinced that "adjoining" or "neighbouring" achieve a sufficiently precise definition, the obvious answer—and I do not suggest that it is the perfect answer—is not to have a defining adjective at all so that the legislation refers only to "land"; hence the two amendments. I beg to move.
§ Lord Renton
My Lords, my noble friend Lord Mancroft has given us some vivid practical reasons for making the change which he proposes and I have a lot of sympathy for what he said.
The trouble about the word "adjoining" is that it is ambiguous. It could mean either "immediately contiguous", a phrase which my noble friend mentioned, or "land in adjoining ownership". Now, the adjoining ownership could stretch for miles in certain rare cases; for example, with a large estate. In fairness to all concerned, we should be clearer as to what we are trying to achieve.
I believe that the word "neighbouring", which could include land in different ownerships and not far away, is one way to solve the problem. I am not quite sure about my noble friend's other suggestion that we should just say "on land". I do not believe that that is precise enough.
Another way in which to approach the matter which my noble friend may consider between now and Third Reading is to say "on or near that land". I believe that the words "on or near" would cover the circumstances envisaged by my noble friend.
This looks to be a narrow point but in practice it could be quite important. We need to achieve fairness to all concerned, including the trespassers. Therefore, we need to consider this matter further.
§ Earl Peel
My Lords, I agree entirely with what my noble friend Lord Mancroft said. It is largely a question of interpretation. It is quite clear to me what is meant by "adjoining" but I am not a lawyer.
I am sure that, as the Bill is currently drafted, there is a very real possibility that a prosecution under Clause 63 could very well fail because, as my noble friend Lord Renton said, the offence may take place some distance away from the legal activity and yet the legal activity may still be prevented from taking place by some form of disruption.
1497 I take shooters as an example. Let us suppose that those who were going to participate in that shoot, that legal activity, were staying at a public house. That public house could be many miles from where the legal activity was likely to take place. It is not unknown for those who wish to disrupt such activities to gather outside a pub and try to disrupt and prevent them from taking place. Indeed, that actually happens. If the police wished to take out a prosecution, they would find it very difficult to do so. They would have to find out in advance where the legal activity was going to take place and how far it was from the pub. I can imagine that leading to very considerable difficulties.
It is quite clear to me that we need a very clear account of how the legal interpretation of the word "adjoining" will be taken. I have attached my name to Amendment No. 113B, which substitutes the word "neighbouring" for "adjoining", but I have to say that I do not particularly like it. It is an improvement on the word "adjoining" but, ideally, I should have thought that the word could and should be removed altogether.
I have one further alternative to suggest to your Lordships; namely, to specify a distance, say, five or 10 miles, or whatever. That might help to solve the problem. Either way, it is quite clear that we have a real problem. I hope that my noble friend the Minister will be able to solve it for us.
My Lords, I am grateful to my noble friend for saying that we have a problem and hoping that I will solve it for him. I know that both my noble friends Lord Mancroft and Lord Peel have been worried about the degree of proximity which is required between the trespassers and the lawful activity which they are seeking to disrupt. I have had the privilege of talking to them after the Committee stage and before the Report stage to find out whether there is a way around the problem and what would be the best route to take. I have given some considerable thought to the matter myself as well as seeking advice.
The new offence of aggravated trespass is committed by someone who trespasses on land in the open air and who seeks to disrupt, obstruct or intimidate those people who are engaging in, or about to engage in, a lawful activity on that land or on adjoining land. That means that the offence can be committed where trespassers are near to the lawful activity but where they may not actually be on the same land.
My noble friends suggest that the word "neighbour-ing" is a better alternative to "adjoining". I can understand their reasons for so doing. However, I am advised that that is too imprecise for the criminal law. My noble friend Lord Renton says that "adjoining land" could mean adjoining ownership. But I am bound to say that I believe that to be considerably wider. If we meant to cover adjoining ownership, I should have thought that that would have been so described.
However, if one looks at the word "neighbouring", one must ask: where does neighbouring end? It could be the other end of the village or even the other end of a very small market town. Obviously, we have to keep the idea of proximity to the lawful activity. I believe that it would be wrong to draw the offence so widely that all 1498 land in the same locality would necessarily be included. Therefore, if the lawful activity was on a person's piece of land, even if it was a vast estate, the whole of the land would be covered.
I understand my noble friends' desire to ensure that "adjoining" does not mean just contiguous and that it must actually be contiguous land. Of course, it would be a matter for the courts to decide. But, depending on the circumstances, "adjoining" might not be restricted to absolutely contiguous land. For example, I doubt whether a river, or a road in between, would matter if it was clear that the behaviour on one side of the river or the road could directly affect the activity on the other. But, as I have said, "neighbouring land" as a legal expression would be too imprecise and that is the reason I am advised that "adjoining land" is better than "neighbouring land".
§ Lord Burton
My Lords, before my noble friend sits down, I hope he can answer one question. What happens in the case of hunting, which may take place over quite a large area and where quite a large number of people may disrupt it in different places? Indeed the meet may be held quite a long way from where the hunting is to take place.
§ 11 p.m.
My Lords, it depends what the lawful activity is. If the lawful activity is a meet which happens at one place and if people are coming to disrupt the meet, then, of course, they would be causing the offence where the meet takes place. If the meet then moves off and hounds hunt over some other part of the land some miles away and the offence happens over that part of the land where the hunt is taking place, then of course the offence will be created there.
§ Lord McIntosh of Haringey
My Lords, before the Minister seeks to sit down again, I must say I am a little puzzled by his reaction. Here are two amendments moved by the same people which are in total conflict with each other. Amendment No. 113A would seek to limit the effect of Clause 63, because it restricts the offence to an offence "on that land" and takes out the words "or adjoining". Amendment No. 113B, on the other hand, seeks to extend the scope of the offence in Clause 63, because it seeks to replace "adjoining" by "neighbouring", which it is argued—the Minister has argued this—is wider than "adjoining". Which of the two is the Minister opposing?
§ Lord Renton
My Lords, may I have the leave of the House just to answer the noble Lord? The point is that Amendment No. 113 A is merely a paving amendment to get rid of the words "or adjoining"; Amendment No. 113B is the effective amendment to leave out "adjoining" and put in "neighbouring".
My Lords, I do not know whether my noble friend is in order and I do not know whether the noble Lord, Lord McIntosh, is in order making an intervention from a sedentary position. But, with the 1499 leave of the House, the noble Lord, Lord McIntosh, asked me a question when he asked which amendment I was opposing. The answer is, I am opposing both, because I think the words of the Bill are right.
§ Lord Mancroft
My Lords, I, of course thank my noble friend for his answer and I have to say that I am even more confused now than I was when I started. To a certain extent I find myself—he will be delighted to hear—in agreement with the noble Lord, Lord McIntosh, because the fact is that to a certain extent the noble Lord, Lord McIntosh, was right when he said that in one amendment we are extending the offence and in the other we are tightening it. In fact what we are trying to do is to define it—either big or small or fat or thin or tall or short. We would just like to be reasonably accurate about it.
I think what the noble Lord, Lord McIntosh, succeeded in doing was demonstrating very ably to the House—he may have been stirring a little bit but I cannot believe he would ever really do that—that the measure is so imprecise that neither one side nor the other, nor anybody else, really knows exactly what it means. That is even more confusing. I believe that the most important thing my noble friend on the Front Bench said was that we should not include both provisions, but he did not say why we should not do so. There may be a very good reason why we should not make the provision as extensive as the first of the two amendments suggests. There may be a good reason for that but I am not quite sure that he told us what it is. Nor did he manage to tell us why it would not be possible to do what my noble friend Lord Peel suggested, which was to put a mileage limit—if that is the right phrase —round the provision. The summation of the matter is that I am a great deal more confused than I was. I am utterly convinced now that this matter is very imprecise. I simply do not know what is the difference between "neighbouring" and "adjoining". I shall read very carefully tomorrow morning what my noble friend has said and I may well have to come back to this, reluctantly, at Third Reading. In the meantime I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments No. 113B to 116 not moved.]
§ Clause 65 [Trespassory assemblies]:
§ [Amendment No. 117 not moved. ]
§ Clause 67 [Violent entry to premises: special position of displaced residential occupiers and intending occupiers]:
§ Lord McIntosh of Haringey moved Amendment No. 117A:
Page 52, line 45, after ("occupier") insert ("who uses or threatens necessary violence against the property").
§ The noble Lord said: My Lords, I rise to move Amendment No. 117A and to speak also to Amendments Nos. 117B, 117C, 117D, 117E and 117G. The most important of those amendments, as will be obvious from the wording, is Amendment No. 117G.
§ We are concerned here with squatters and those who are entitled to regain possession of property by force on 1500 behalf of displaced residential occupiers or protected intending occupiers. We are concerned with towns. The countrymen can go home if they want to. I shall gladly pause in order to enable them to leave in an orderly fashion.
§ The concern which is expressed in the amendments relates to the extent of the power which is given not simply to displaced residential occupiers or protected intending occupiers themselves but to their agents. By agents we mean, in polite and legal terms, bailiffs. In realistic terms they could well be thugs. In other words, we could return to Rachmanism of the worst sort. The Bill provides that a degree of violence—and the word is used in the Bill—is permitted in order to regain access to such properties.
§ We do not suggest any fundamental change in the Bill. We do not suggest that there should be any diminution of the rights of displaced residential occupiers or protected intending occupiers or, indeed, that they should not be able to appoint agents to regain access for them. In Amendment No. 117G we propose that persons acting on behalf of displaced residential occupiers and protected intending occupiers should be legitimate. In other words, local authorities should keep a register of those people who are entitled to act on behalf of these displaced residential occupiers and protected intending occupiers, that the Secretary of State should issue guidance as to how the register should be maintained and the criteria under which persons may be excluded from it; and that persons should not be deemed to be acting on behalf of displaced residential occupiers or protected intending occupiers for the purposes of Sections 6 and 7 unless they are registered on that local authority register.
§ I do not think that even the noble Lord, Lord Renton, were he still here, could claim that this is a wrecking amendment. It is intended simply as a way of avoiding violence on the streets caused by thugs brought in by occupiers or intending occupiers in order to regain, by violence, properties which are occupied by squatters. We are not even attacking the violence principle with this amendment, much as I would like to, but we say that we should at least see to it that these persons who are doing the dirty work should be licensed by the local authorities and that there should be some control over their behaviour and the way in which they pursue their occupation. In addition, the Secretary of State should have the power to control the way in which the local authorities operate such a register. I hope that the Government will feel that this is not in any way a wrecking amendment but is a positive contribution to a difficult concept in the Bill. I beg to move.
§ Lord Fraser of Carmyllie
My Lords, at the Committee stage we had an interesting debate on the context of these provisions, which are set in the Criminal Law Act 1977. That context should be recalled.
"Violence" in this context includes violence to property, such as breaking a window. The fact that the would-be entrant is the owner of the property or is acting on his behalf does not constitute lawful authority. This enables squatters lawfully to exclude people from 1501 their own property which they require for their own use as a home. Our view is that we should not be prepared to tolerate this situation, and Clause 67 also is intended to exclude protected intending occupiers and those acting on their behalf from the scope of the offence provided for in the 1977 Act. However, they will remain fully subject to the ordinary law of the land, and if they commit assaults on, or wound, squatters or break the criminal law in any other way, they can be dealt with in the same way as anyone else.
Accordingly, our view is that the first of the amendments moved by the noble Lord is redundant. Further, it introduces a rather odd test of whether violence is necessary. A more usual consideration might be whether it is both reasonable and proportionate in the circumstances. Whether something is necessary depends upon what one hopes to achieve. In order to open the entrance, for example, to a particularly well defended squat, it might conceivably be necessary to take seriously violent action when, from an otherwise objective standard, that would clearly appear to be manifestly unreasonable. The amendment therefore does not achieve the additional limitation on the use of violence which I understand is the noble Lord's intention.
As to the other amendments, I am not necessarily opposed to the use of private bailiffs, as the noble Lord may be. However, I am not clear whether he is aware that one of the effects of his amendments would be to make their use compulsory in all cases where a displaced residential occupier or a protected intending occupier is not able or willing to act in person and alone since the only persons permitted to act on his behalf would be those registered to do so with the local authority. If a displaced residential occupier or a protected intending occupier were either too frail or too sensible to confront squatters by himself, he might reasonably enough call on the services of family friends or a solicitor in order to require the squatters to leave. Under the provisions of the amendments such an individual would not be able to do so but would be permitted only to call on the services of a private bailiff registered by the local authority. Whatever else the noble Lord may wish to do in restricting violence, I cannot believe that he wishes to make such provision.
We are not convinced that there is any evidence that the existing provisions of the Criminal Law Act 1977 are abused or that displaced residential occupiers employ "heavies" to assault squatters while lawfully breaking into premises. We have no reason to suppose that by extending the legal protection of those occupiers against squatters we will be encouraging the use of thuggery or bully-boy tactics. We are at one with the noble Lord in rejecting that. I can only say that if there are any private bailiffs who believe that that is what we are intent on doing, and that they will be exempt from the ordinary law of the land, they will soon learn their mistake.
§ Lord McIntosh of Haringey
My Lords, the Minister makes a number of interesting points. He will recall that as recently as the Committee stage of the Bill, we sought to restrict the violence to that which was 1502 needed. Such an amendment was rejected by the Government. Therefore, the criticism that he made about "necessary violence" being an inadequate definition arises only because the Minister rejected what he now proposes.
As to the wider issue, I used the word "thugs" and the Minister used the word "heavies". I do not know that I can see a profound distinction between them. But the history of the regulation of private bailiffs is not confined to this Bill. I recall from my days of being responsible from these Benches for environmental matters that all attempts that were made by the Opposition to secure regulation of private bailiffs were resisted by the Government. They were resisted not for the reasons that the Minister gives now, but partly because they rejected the idea that any such people existed or behaved badly.
For the Minister now to suggest that the law is adequate to deal with bad behaviour on the part of these "heavies", these private bailiffs, flies in the face of experience—at any rate in my part of North London, I remember as a local councillor having personally to sit, and having to bring my sons to sit with me, on the doorstep of a house where the occupants were not squatters at all but tenants who were about to be evicted illegally by a landlord who was proposing to send in the heavies. My sons and I had physically to oppose—not violently, but by being there—the prospect of those heavies coming in. The law was called. The law did not turn up. The law is not adequate for these purposes, and a licensing system is necessary. At some stage we will have to achieve that.
I accept that my amendments may be defective in detail. On that basis I shall be withdrawing them. But I do not accept the arguments that the Minister has used in opposing them. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 11.15 p.m.
§ [Amendments Nos. 117B and 117C not moved.]
§ Clause 68 [Adverse occupation of residential premises]:
§ [Amendment No. 117Dnot moved. ]
§ Clause 69 [Protected intending occupiers: supplementary provisions]:
§ [Amendment No. 117E not moved.]
§ Lord Fraser of Carmyllie moved Amendment No. 117F:
Page 55, line 11, leave out ("specifies") and insert ("states").
§ The noble and learned Lord said: My Lords, this is purely a drafting amendment. If any noble Lords wish me to elaborate upon it I shall do so. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 117G not moved. ]
§ Clause 70 [Interim possession orders: false or misleading statements]:
§ Lord Fraser of Carmyllie moved Amendment No. 117H:
Page 56, line 49, at end insert:
("( ) A person commits an offence if, for the purpose of resisting the making of an interim possession order, he—
§ The noble and learned Lord said: My Lords, in speaking to Amendment No. 117H, perhaps I may also speak to Amendment No. 117J.
§ These amendments take account of the requirements of the civil part of the new squatting procedure. At an earlier stage I hope that I satisfactorily explained the interrelationship between the criminal provisions which are provided for in the Bill and at the same time the civil procedure that it is proposed to introduce which does not itself form part of the Bill but which will be introduced by amendment to the Rules of Court.
§ As I explained at an earlier stage, my noble and learned friend the Lord Chancellor is currently finalising the details of the procedure for making interim possession orders and I understand that the public consultation paper containing these draft rules will be issued shortly.
§ Clause 70 currently makes it an offence for someone who is applying for an interim possession order to make any false or misleading statement to the court. My noble and learned friend is considering modifications which would provide an opportunity for legitimate occupiers in limited circumstances to make representations against the making of the order. It is in contemplation of such prospective change that these amendments are made. I beg to move.
§ On Question, amendment agreed to.
§ Lord Fraser of Carmyllie moved Amendment No. 117J:
Page 57, line 17, leave out ("for obtaining the order").
§ On Question, amendment agreed to.
§ Clause 71 [Interim possession orders: failure to comply an offence]:
§ Lord Fraser of Carmyllie moved Amendment No. 117K:
Page 57, leave out lines 23 to 29 and insert:
("(2) Subject to subsection (2A), a person who is present on the premises as a trespasser at any time during the currency of the order commits an offence.
§ The noble and learned Lord said: My Lords, it will be seen that the Government have tabled two amendments to Clause 71, and one of them is starred. As noble Lords may have realised, the effect of these amendments is similar to that of an Opposition amendment, Amendment No. 230, in another place, which in the event was not called. They will make it an offence for anyone to trespass on premises which are subject to an interim possession order, provided that a notice to that 1504 effect has been posted in accordance with the rules of court. As Clause 71 is currently drafted, the offence applies only to those in occupation of the premises at the time the interim possession order is served.
§ On reflection, we saw a difficulty with the existing offence in Clause 71, which is that it would not cover the situation where squatters leave premises in obedience to an interim possession order but pass the keys on to another group of squatters who enter after the interim possession order has been served. That second group of squatters would then not be subject to the interim possession order and would not be guilty of any offence. The lawful owner or occupier of the property would then have to start proceedings all over again. That would clearly not be right, and the amendment will ensure that the property is protected against all trespassers during the currency of an interim order.
§ Because of the amendment we propose to make to the offence in Clause 71(2), we can dispense with the definition of who is subject to an interim possession order in subsection (4) and the presumption in subsection (5) that a person found on the premises within a month of service of the order is subject to the order. However, in order to preserve the full scope of the offence it is necessary to insert a new subsection (4), which will provide that those in occupation of the premises when an interim possession order is served are to be treated for the purposes of this section as trespassers—that is to say, they must leave within 24 hours or be guilty of an offence.
§ If this new subsection were not inserted it might be possible for some squatters to frustrate the purposes of the new procedure by claiming to have leases or to be licensees. Under our proposals, squatters will have the right to a full hearing of the case, but only after they have left the premises. It will not be open to them to disobey an interim possession order and they will be guilty of an offence if they do so. I beg to move.
§ Lord McIntosh of Haringey
My Lords, these seem such obvious ways for squatters to get round the legislation that it is almost incredible to have reached Report stage in the second Chamber before the department and the Government have discovered these difficulties—unless the idea that squatters would have been able to hand over the keys to somebody else and the proceedings would have to be started over again was discovered at the last minute. It beggars belief.
What assurance do we have that such last minute recognition of rather fundamental flaws in the legislation are the last of the flaws that remain to be discovered?
§ Lord Fraser of Carmyllie
My Lords, with the leave of the House perhaps I may say that the noble Lord describes these as fundamental flaws. I do not accept that definition. I suggest to him that we have properly at this stage in the Bill tidied up some detail. We have ensured that if there are particular circumstances in which the purpose of these clauses, which I should have thought would be generally welcomed, were evaded, we can take steps to eliminate them.
§ On Question, amendment agreed to.1505
§ Lord Fraser of Carmyllie moved Amendment No. 117L:
Page 57, leave out lines 33 to 38 and insert:
("(4) A person who is in occupation of the premises at the time of service of the order shall be treated for the purposes of this section as being present as a trespasser.").
§ On Question, amendment agreed to.1506
§ Moved accordingly, and, on Question, Motion agreed to.