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Lord McIntosh of Haringey: My Lords, if the noble Lord will allow me, the Bill provides in Clause 2(4):


I am sure that when the noble Lord was a lovesick swain he would have successfully pleaded that defence.

Lord Dixon-Smith: My Lords, I am well aware of the defence that is in the Bill and I will come to it in a few moments.

One could foresee other problems, and again one could say that these matters are to a certain extent handled by the latter parts of the Bill. But imagine an investigator looking for evidence in a case of insurance fraud. That could very easily be misconstrued if someone is watching someone else persistently. Consider, even worse, somebody trying to take or obtain evidence in a case of social security fraud. Again, he could very easily lay himself open to a charge of stalking. If we bring in this law as drafted that is what could easily happen. Even if the defence were accepted and so on, perfectly innocent individuals could be summarily arrested and have to talk their way out of what could be an exceedingly embarrassing situation. That may be meaningless, but they could be in that situation. We need to be aware of that in anything we finally put on the statute book.

Worse still, as drafted, you could be following a lady down a road on a dark rainy night and she could become very uncomfortable in that situation. I have seen this happen. She could run into a policeman who happened to have had a quarrel with his wife that morning and been bawled out by his son and therefore was in a difficult mood. Again, one could have a situation where instantaneous arrest was possible. One could talk one's way out of it but it could be exceedingly difficult and embarrassing. The only bit of imagination that needs to be stretched in that scenario is meeting a policeman on the street on a dark wet night, because, unfortunately, policemen are less and less often on their feet in the street nowadays.

The noble Lord, Lord McIntosh, pointed out that sexual harassment is not only one way and stalking is not only one way. I have certainly heard of one case where a young man had his life made absolutely impossible by a girl. He was in serious fear lest she should set about charging him with rape. It is one thing to be charged with rape if you actually committed the crime, but entirely another, and exceedingly difficult, if you did not. As I have said, there are problems with the Bill as drafted.

I turn now to the defence to which the noble Lord, Lord McIntosh, referred. Clause 2(4) states:

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    "It shall be a defence to a charge under this section if the person charged proved that he did not know and had no reasonable cause to believe that his behaviour was likely to cause harassment, alarm, distress or fear for personal safety as mentioned in section 1 above, and the burden of proof shall lie upon the defendant".
I am a simple man and I have a simple mind, but I had always thought that it was a cardinal principle of British law that you are innocent until proved guilty. Therefore, I find this defence difficult to accept in that context.

I turn now to the protection offered by the existing law. I am indebted to my family solicitors for this advice. I more or less asked them the question: what would you do if somebody said that they were being stalked? There are two possibilities of remedy under Acts in the criminal code. First, the Public Order Act 1986 creates a criminal offence if a person,


    "(a) uses threatening, abusive or insulting words or behaviour",
or, in paragraph (b), "distributes or displays" to another person writing which is "threatening, abusive or insulting", or a person is guilty of an offence if he or she displays threatening or abusive behaviour with the intention of causing harassment, alarm or distress. That covers a large part of what this Bill is all about.

Next, the Malicious Communications Act 1988 makes it an offence to communicate with intent to cause distress or anxiety. Again, that aspect is mentioned in this Bill.

Because in this age divorce is common and family stress and division seem to be becoming--heaven help us--the norm rather than the exception, many actions of the sort we are discussing arise out of matrimonial tension and dispute, so the civil courts make possible many forms of action under family protection orders, exclusion orders or matrimonial injunctions that can be used to restrain the other party. Perhaps I may misquote a recent letter to The Times after the failure of the No. 1 Bill in another place and say, "The challenge for the courts is to use the existing law effectively".

In its present form, the Bill will not do. To quote from Yvonne Von Heusen's letter to The Times on behalf of the National Anti-Stalking and Harassment Campaign:


    "Without consultation with us, Mrs. Anderson (the Bill's promoter) used our proposals yet provided an ineffective and unenforceable Bill".

Whether the Bill is beyond redemption I hesitate to say. What I am certain of is that we should be very cautious with the Bill as drafted or we could, as happened with the Dangerous Dogs Act, legislate in haste and repent at leisure.

10.10 p.m.

Baroness Hayman: My Lords, I shall not detain the House long at this time of night, but I wish to say a few words in support of the case for the Bill, so ably argued by my noble friend Lord McIntosh of Haringey.

Perhaps I may deal first with some of the arguments referred to by the noble Lord who has just spoken. He began by expressing sympathy for the victims of harassment. I understand that sympathy to be genuine. But he then pursued an argument which suggested that, as legislators, we should give our sympathy but not take any action. The conclusion was that this proposed

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legislation was not redeemable and so deeply flawed and had so many risks in it that there were grave doubts as to the wisdom of taking it forward. That is my understanding, but I shall willingly give way if that is incorrect.

I suggest that, equally, there are risks in not legislating speedily. I believe that there is a general acceptance that, although there is a panoply of remedies presently available in various situations, those remedies are disparate and many victims of this serious problem, given the despair that can be caused by this harassment, do not find them adequate.

I am afraid that here we are dealing with forms of behaviour that are far more sinister than the mooning of lovesick swains or the innocent following of women down dark, wet roads at night with no ulterior purpose; and we are dealing with a range of different forms of behaviour. That is one of the difficulties in definition and the reason for the breadth of definition that we must have in any legislation. The particular behaviour and its significance, given the context, are difficult to pin down but can be equally distressing for the victim. While it is absolutely correct to say that this is not an offence committed by one sex or the other, some of the most horrifying cases of harassment have gone unchecked, and the ones that have ended with rape and violent attack have been offences against women. I believe that women in the main feel particularly threatened by this range of behaviour.

My understanding is that there is general agreement that the harassment and molestation which cause distress to so many women need to be curtailed. I believe that there is a need for speedy legislation in the declaratory sense; that is, to indicate the seriousness with which these forms of behaviour are viewed and to grant some relief and remedy to those who find the current range of piecemeal legislation very unsatisfactory.

This Bill is by no means perfect. Seldom at Second Reading do we have a Bill that is perfect. However, it contains a sensible definition which, though wide, is based on international experience. It provides the protection through prohibitory orders which is lacking at the moment. I believe that it strikes a proper balance between the interests of complainants and respondents. The role of the magistrates' court, and the accessibility and effectiveness of that system, have an important role in bringing succour to victims.

It has been suggested that, while supporting the principle of legislation, the Government believe that the defects are such that we ought to wait and take a more considered view. I understand that there has been wide consultation on the proposals and that within them is a framework on which we can build during the Committee stage and so improve the Bill. Any necessary amendments could be tabled and argued in this Chamber and the Bill could be turned into a workable and effective measure.

There is, as I said, an urgency in this--an urgency that we as legislators should recognise both the scale of the problem and the distress that it causes, and an urgency to provide remedies for those already suffering

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and protection for those who are at risk from these forms of behaviour. I hope that the Minister will be able to give support to the Bill.

10.15 p.m.

Baroness Blatch: My Lords, the actions which are known as stalking are a menace to our society. The actions of stalkers can have a devastating impact on the lives of their victims. The Government share the desire to do something to put a stop to that menace.

There are, of course, existing laws which can deal with the worst cases of stalking as recent prosecutions against stalkers for causing grievous or actual psychological harm demonstrate. It was interesting that the cases cited by the noble Lord, Lord McIntosh of Haringey, were dealt with by the courts and that the offenders ended up in prison.

It is an offence, under the provisions of the Public Order Act 1986 intentionally to cause harassment, alarm or distress. It is an offence under the Misuse of Telecommunications Act 1984 to make indecent, obscene or threatening telephone calls and under the Malicious Communications Act 1988 to send letters of that kind.

But the Government have recognised that there is a gap in the present legislation to deal with situations where harassment, alarm or distress is caused but where intent to do so cannot be proved. We have been studying legislation against stalking in Australia, Canada and the United States, to see whether their solutions are relevant to the situation here in the United Kingdom. We have also been looking at the existing criminal and civil remedies in this country, to see whether we could build on those remedies to address this problem.

This is a difficult area in which to legislate, since many of the individual actions in which stalkers engage are, in themselves, quite harmless--walking up and down a street, or standing on a street corner, for example. Much of the activity which can be described as stalking can, in another context, be something entirely innocent done as part of normal activity.

We have to get this right. Any legislation in this area must be effective against stalkers and provide victims with adequate security and redress. But it must not inhibit people from going about their everyday business. The Government therefore consider that it is essential that we move forward in this area in co-operation and consultation with those who are seeking change, or who might be affected by new proposals.

When the honourable Lady who introduced a Bill on stalking in another place gave notice that she intended to do so, my right honourable friend the Minister of State agreed that she could speak to the Home Office, which was looking at this problem, so that she could be aware of our thinking and also of the difficulties which remained unresolved. My right honourable friend offered those discussions because he felt--rightly--that this issue was one in which a bipartisan approach was appropriate and achievable. The Home Office offered detailed advice to the honourable Lady on the shortcomings of her proposals, explaining that they did

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not address the complexities of the issue, such as the need to ensure that any criminal offence did not catch legitimate activities.

I understand that the honourable Lady also met the Lord Chancellor, who similarly pointed out that the scope of the proposals was too wide. It is a matter of regret, therefore, that, when the honourable Lady brought forward her Bill--similar to the one we are discussing tonight--it did not address the outstanding difficulties. The problems of drafting an appropriate provision in this area are considerable and more thought has to be given to the subject to get it right.

My right honourable friend recognised fully the intention behind the Bill, but came to the conclusion that the defects in the Bill could not be put right in Committee. I was therefore saddened that there were accusations that the Government did not support that Bill, or will not support this Bill, because they were introduced by members of an opposition party.

As I have said, we support the Bill's intentions. We want to get it right. We should like to see a Bill on the statute book. We believe that it can be done with all-party support. That is not the issue. The issue is that no responsible government should ever allow onto the statute book provisions which would make criminals out of ordinary citizens pursuing legitimate activities.

Let me make clear the reasons why the measures in the Bill under discussion today are unacceptable to the Government. My noble friend Lord Dixon-Smith set out some of those reasons most eloquently. The scope of the Bill is too wide. It would catch the legitimate activities of not only journalists--although there may be some who would regard that as no bad thing!--but also others going about their lawful business. It provides both civil and criminal remedies against stalking without any reference to the circumstances in which either remedy would be appropriate. There is no requirement to prove intent or recklessness in the criminal offence. And I do not believe that the Bill's proposal to reverse the burden of proof, a point so well made by my noble friend, so that a defendant would have to prove themselves innocent, is justifiable.

I think it worthwhile recalling the comments on the Government's attitude to the earlier Bill introduced by the honourable lady, made at the time by Dr. Evonne Von Heussen of the National Anti-Stalking and Harassment campaign, the leading voluntary organisation for the victims of stalking, and in campaigning for new legislation. I shall use a different quotation. She said:


    "A bad Bill is worse than no Bill ... You have to be able to defend legitimate activities such as debt collecting against the stalking charge. I think the Government is taking a genuine stance".
I believe that she was right. We need to do something about this serious problem, but we need to do it without sowing the seeds of future injustices.

I have to say that I am surprised that the Opposition has not taken note of her views or consulted other groups who might find themselves the innocent victims of the proposed new offence, particularly as measures in this Bill could prove a nightmare for innocent people

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branded as criminals for engaging in legitimate activity. They would also have the burden of proving their innocence.

I do not think either that it would be right to rush into decisions and try to amend this Bill in Committee. The Government believe, as I have said, that consultation is essential on measures of this kind. We therefore intend to publish a consultation paper as soon as possible. I cannot give a date for publication but it is being considered as a matter of urgency and I hope that it will be published shortly. We shall take note of comments on that paper so that effective measures can be introduced to combat this menace.

The noble Baroness, Lady Hayman, referred to wide consultations on the present proposals. I am not aware of those. I know that consultations have taken place with officials in the department and that that advice was ignored. I also know that consultations have taken place with the Lord Chancellor and that that advice was ignored. We are not aware of consultations with Dr. Von Heussen. Indeed, in her letter to the Telegraph she stated that she would have welcomed consultation.

The noble Baroness also said that although there are a panoply of remedies they are far too disparate. I suggest that stalking itself can be pretty disparate both in the nature of the activity and in the range: from the wholly innocent, to the most sinister. The complexity and the nature of stalking is all the more reason why the Bill needs thinking through more fully. It is too complex and sensitive a subject on which to legislate on the hoof and speedily.

We need to consult with interested people because we must get it right. This Bill is not right. We do not believe that it should be amended in Committee unless we have had a proper, formal consultation with interested parties. Therefore, the Government cannot support it, although in keeping with the traditions of this House, I shall not oppose its Second Reading tonight.

10.25 p.m.

Lord McIntosh of Haringey: My Lords, I shall try, so far as possible, to look for points of agreement rather than for points of disagreement. I acknowledge the spirit and the moderation in which the Minister responded to the Bill, although of course I am disappointed at her conclusions.

I acknowledge--and I should have said--that Janet Anderson was grateful to David Maclean and officials in the Home Office for the offer of talks which she took up and, indeed, for the opportunity of discussions with the noble and learned Lord the Lord Chancellor. She felt that it was better to proceed with a Bill as drafted and deal with the points that were raised in Committee because she had hoped that the Bill would not be obstructed on Second Reading. That is a matter of opinion. She might have made a misjudgment about the timing but there was no disagreement about the value of the consultation which took place. There is disagreement only about the way in which we should proceed in order to get something effective on to the statute book as quickly as possible.

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There is no disagreement among us about the gravity of the offence or about the inadequacy about the present law. The noble Lord, Lord Dixon-Smith, seemed to be saying that the problem was less than might otherwise appear because of the possibilities of the present law. But the examples which he gave and the examples which the Minister cited from the Public Order Act referred to acts which were, in themselves, harassment; in other words, acts which were offensive.

The whole point about stalking is that it often consists of acts which are not in themselves offensive. It is not offensive to walk up and down the road, to phone up and say, "I love you", to write love letters or to send flowers. I suppose that it becomes rather offensive at four o'clock in the morning. However, the point about the extension which is required to the law, which was recognised by the Home Office in the press release of 9th May, is that many activities which cause great pain are not in themselves harassment. They are innocent actions--in other circumstances they would be innocent actions. Therein lies the difficulty. I believe that we are all genuinely agreed about that.

I find it difficult to accept the Government's argument that this is legislation on the hoof. The issue has been before Parliament for two years since Lady Olga Maitland raised the issue and if, as I believe, she was right in raising it when the Criminal Justice and Public Order Bill was before Parliament, then surely there has been plenty of opportunity for a determined government to undertake the necessary consultation between 1994 and now.

Janet Anderson has consulted. She has perhaps not done so as widely as the Home Office can but she has talked not only to officials from the Home Office and the Lord Chancellor's Department but also to the Police Federation, the Suzy Lamplugh Trust, the National Anti-Stalking and Harassment Campaign and other interested parties.

The Minister is merely saying to us now that there will be consultation at some time in the future. We are in the last year of this Parliament. I am not going to give any undertaking about what legislation will be dealt with

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in the first year's programme of a Labour Government. But I am sure that your Lordships will understand that there are matters which have very high political priorities and it may be difficult to give priority to measures of this kind. But we have an opportunity now. We have an opportunity to build on the talks which have already taken place and which could be debated in Committee.

I have negotiated for a Committee stage which will take place on Friday, 28th June. I have tabled amendments which have been suggested by lawyers which I believe will improve the Bill. There are other improvements, some referred to by the Minister and some referred to by the noble Lord, Lord Dixon-Smith, which I shall consider very seriously and think about tabling amendments accordingly.

However, in Committee I wish to pin down the Government, if possible, so that they say exactly what is wrong with the Bill and what could be done to put it right. If anything can be done by negotiation as well as in Committee to achieve that, then even if we do not find time in the House of Commons for it in the course of this Session, we might have made some legislative progress towards a Bill which could get through in the next Session without unnecessary controversy. That is the purpose of this exercise. I appeal to the Government to assist it in any way possible. I commend the Bill to the House.

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

University College London Bill

Reported from the Unopposed Bill Committee without amendment.

Australia and New Zealand Banking Group Bill [H.L.]

Returned from the Commons agreed to.

        House adjourned at half past ten o'clock.


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