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5.30 pm

Amendments Nos. 60 to 64 turn on whether clause 43 is sufficiently tightly drawn so as not to be dangerous in achieving the balance between civil liberties and the protection of potential victims. I do not propose to press amendment No. 60. I hope that that shows the relatively flexible and, I hope, intelligent way in which we have all tried to conduct the debate, when we have been allowed to have it, but that is a separate issue.

Our decision to table an amendment to insert "immediate" stemmed from the argument about whether vicinity needs to be more tightly defined. There is an argument that vicinity should be defined, but it is met in part by the rest of the clause, which requires that it is for the police to decide whether the place where someone perpetrated the offence is near enough to cause harassment or intimidation. I am as persuaded as I can be that, for the time being at least, it is proper not to define the law on vicinity more tightly, and to allow the police to have discretion.

I do not take the same view about the threshold, whereby, however low it may be, someone could be convicted even if all that he did was to cause the victim alarm or distress. The Minister will recall from our debate in Committee that there are alternatives. A conviction could be secured either if someone did something that complied with all other conditions, but was likely to result in the harassment of the victim, or, in the absence of harassment, something likely to result in harassment or cause alarm or distress.

We believe that we must all expect and be expected to put up with some alarm or distress in certain circumstances, but that there must be a threshold.

Mrs. Anne Campbell (Cambridge): I appreciate what the hon. Gentleman is trying to do, but his argument is subjective. Alarm or distress is experienced by the victim, who will interpret whether that alarm or distress is serious. That is not likely to be affected by particular actions. Two of my constituents have had protesters outside their home. The woman is often alone in the house at night, and she has felt very alarmed and very distressed by protesters simply standing outside the home. That might not be

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interpreted by a court as something likely to cause serious alarm or distress, but it certainly has that effect on that individual.

Mr. Hughes: I understand that valid point. I believe that the hon. Lady used the words "very alarmed and very distressed". If someone is very alarmed and very distressed, and the view is taken that the action caused, or might have caused, the individual to be very alarmed or very distressed, I would accept that it would fall within the higher category of serious alarm or serious distress.

An recent example was given in Committee, albeit in a different context--the protest against the President of China when he came to this country by people arguing for a free Tibet.

Mr. Charles Clarke: That is irrelevant.

Mr. Hughes: It is a relevant political example. The President of China might have been caused alarm or distress because he did not like people protesting against his actions. Our debate is about the extent to which people are affected.

The Bill asks the court and the relevant police officer to judge whether an action is likely to cause alarm or distress. There is a danger of our becoming over- authoritarian if we argue that any action that is likely to cause any alarm or distress, no matter how slight or for how short a period, is sufficient to constitute an offence. That runs the risk of criminalising a person who is charged with the offence.

Mr. Hawkins: The hon. Gentleman recognises that, under the Bill, the alarm or distress must be occasioned by harassment. There is a danger that his proposal, which would water down the measure, would allow extremist protesters to get away with their actions in court, as the hon. Member for Cambridge (Mrs. Campbell) suggested. We do not want to pass a law that extremist campaigners can get round, and thus achieve a triumph of publicity to add to the distress and alarm that they have caused.

Mr. Hughes: The hon. Gentleman's premise is wrong. Clause 43 states that, first, the person must be

Secondly, the constable must believe,

That is followed by what I described as the third hurdle, which is that the person's presence

The interpretation of the hon. Member for Surrey Heath (Mr. Hawkins) is usually correct. However, in the case that we considering, harassment is not required; the other grounds are sufficient. The courts could deem actions that were likely to cause alarm or distress, however slight, sufficient. Like many colleagues, I have argued such matters in court, and I know that the words will be debated, whether they are "alarm", "distress", "serious

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alarm" or "serious distress". If the defendant pleads not guilty, such a debate will be held, and the verdict will depend on the interpretation of the threshold.

Dr. Ladyman: Will the hon. Gentleman give way?

Mr. Hughes: I shall give way shortly, but I do not want to take much time.

I am simply anxious to get the balance right. We must proceed carefully with the new measure to ensure that we protect victims--we all support that--but that in doing so we do not prevent people from protesting. We might have a society that prohibits protest if we legislate on the basis that someone might be caused alarm or distress by it. If we do that, we will make great inroads into the right to protest. We must strike the right balance. Without the higher qualification that we propose, the balance swings against the civil rights of the protester and overly and unnecessarily towards the protection of a victim, who does not need matters to go that far.

Mrs. Brinton: Will the hon. Gentleman give way?

Mr. Hughes: No, I have promised to give way to the hon. Member for South Thanet (Dr. Ladyman).

Dr. Ladyman: The hon. Gentleman makes an important point. I do not want to restrict people's rights to protest properly. However, the letter that the Minister provided at the hon. Gentleman's request mentions the Public Order Act 1986. The Minister's interpretation of section 5 is that an action that is committed in someone's hearing, and is likely to cause alarm or distress, or be interpreted as insulting, could be an offence, unless it is demonstrated to be reasonable. Political protest would be deemed reasonable. All that the Bill does is to prevent people from staging a demonstration, which might be reasonable under some circumstances, outside people's homes, where it is clearly not reasonable.

Mr. Hughes: This is as good and sensible a debate as we had upstairs. I understand that point, but it is equally possible to argue the alternative view--the Minister's letter was helpful in going over the matter--which is that, whereas current law allows people to put in the defence of reasonableness, the proposed new law does not. The Government would get rid of the defence of reasonableness, but keep the threshold of alarm or distress, as in, among other things, the Public Order Act. If there were still a reasonableness defence, it would be much more acceptable to have the unqualified alarm or distress threshold.

I understand the point, but if the Government get rid of the defence of reasonableness altogether and someone turns up in court and says, "I was distressed" or "I was alarmed"--how could the court say that he was not?--that could be sufficient to render someone else guilty of a crime. That is where we must be careful. The balance is therefore tilting in the wrong direction.

I accept that the logical conclusion of trying to get the law right--the Minister reminded us that the Government intend eventually to codify the law; it was mentioned in the 10-year plan announced the other day, which we support--is that we go through similar legislation and ensure that there is a consistent threshold. It might be

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either the lower threshold, if that is what the Parliament of the day thought appropriate, or the higher threshold, if it supports my view. At least we would have a common threshold. We could then weigh up which, if any, needed a reasonableness defence.

I understand the debate. There is no reasonableness defence in the Bill and people do not need to prove harassment. If we are going to convict someone, we should ensure that they are doing something that is more than just a little bit distressing, and is causing or is likely to cause more than a little bit of alarm or distress. Therefore, if the opportunity were to arise--I realise that the amendment will be voted on after the new clauses--we would like to test the mood of the House on the matter later in the proceedings.

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