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Mrs. Maria Fyfe (Glasgow, Maryhill): The opening phrase of amendment No. 2 states:
- "Without prejudice to the generality of subsection 2".
Mr. Maclean: For the umpteenth time: no, it does not. Adding a catch-all at the end does not achieve what it seems to achieve. Judges must interpret catch-alls at the end of lists in statute according to certain rules that the courts have developed for the way in which they go about interpretation. The ejusdem generis rule assumes that, if Parliament added a catch-all, Parliament intended it to be interpreted according to the other characteristics in the list. It is not a wide-ranging catch-all. The best catch-all is to stick to the word "harassment".
That is not just my opinion; it is the opinion that we got after consultation. The Government did not pluck out of thin air the idea of plain, bald harassment, without
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I shall quote what my right hon. and learned Friend the Home Secretary said when he quoted a victim at the Suzy Lamplugh Trust conference. Those words should be burned on our brains before we come to a view on this part of the Bill. That victim--not a politician or a lawyer--said:
Let us not worry about what any one of a thousand activities might be. Let us worry about the effect on the victim. If the effect is to cause harassment to the victim, we can trigger the offence and the provisions in the Bill for civil remedy and criminal defences.
I could say more on the clause. I have not discussed some of the other amendments, which I do not think have been moved. I give way to the hon. Member for Denton and Reddish (Mr. Bennett), then I shall conclude.
Mr. Bennett:
Does the Minister realise that, as a result of fairly recent judgments, what Ministers say in the House can be taken into account by the courts? Will he go through the list in amendment No. 12 and tell us which activities he would expect not to be covered, so that it is on the record in the House that he thinks that proposed subsections (a) to (f) are covered by his definition?
Mr. Maclean:
The hon. Gentleman misunderstands the ruling in Pepper v. Hart, which suggested that the comments of Ministers may be taken into account if there is ambiguity. However, when a Bill states that something is black, it is no good a Minister saying that it is white. The court will still interpret the word as "black". We cannot use our words, however nimbly we put them across, to change the meaning of the Bill, if the meaning is crystal clear; nor can I make any comment at the Dispatch Box that would influence the way in which judges use the long-established rules of interpretation to interpret a list.
The hon. Gentleman is trying to make bricks without straw. I understand his reasons. He has tabled all the Liberty amendments. It may be legitimate for him to take that position, but his amendments would pull the teeth of the Bill. There would be nothing left to give protection to victims. I do not go so far as to say that the amendment tabled by the official Opposition would fundamentally
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Stalkers do not stick to the activities on a list. Stalkers and other weirdos who pursue women, cause racial harassment and annoy their neighbours have a wide range of activity which it is impossible to define. The result of our consultation exercise suggested overwhelmingly that the approach in the Bill is the best one. Therefore, I am not persuaded to fly in the face of the consultation exercise, the expert advice that we received and the views of victims of stalking, especially a victim who told us clearly:
Mrs. Fyfe:
I have lost of count of the Government Bills that I have seen which began with the preamble that,
If the Minster's objective is to avoid rendering judges obtuse or stupid in their interpretation of the legislation, I suggest that amendment No. 12 would help. A judge would not be able to say that following someone, loitering near them, telephoning them and making flattering remarks, or sending them presents, was not harassment. Even the thickest of those on judicial benches would regard such behaviour as harassment.
Mr. Maclean:
Looking down the list, I was immediately struck by its deficiency. For example--off the top of my head--it omits such activities as driving past a victim's house. That is not contained in the amendment, although loitering and watching are. What about the person who continually drives past someone's house, or harassment by direct speech, letters to the press, acts committed against a third party--such as the victim's spouse or children--or acts committed by a third party? Those examples are not covered. I have already provided half a dozen examples, and there may be others.
I do not consider myself to be a weirdo--although others may disagree--so I have not thought of all the weird permutations of behaviour that could be used to get round a list. However, if hon. Members have already found deficiencies in the list, within hours of reading the amendments, we can bet our bottom dollar that stalkers out there somewhere would change and refine their activities to get round it.
We should not be in any doubt that some activities, such as driving past a victim's house, is not caught by the amendment. Other activities may be caught, or they may not be. We should bear in mind that deterrence will be one of the best effects of the legislation. Police officers have said that their current difficulty is that they cannot tell a stalker, "Stop it, sonny, because you're breaking the
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"Harassment" catches a wide range of conduct and potentially allows such behaviour to be considered as breaking the law. A narrow list will enable police to tick off, reprimand and deter only those whose activities exactly match those on the list. It is not good enough to have grey areas or to say, "Driving past a victim's house may or may not be caught." A list system creates such ambiguity. Some conduct will be excluded directly, but other conduct will have an ambiguous status. That is my answer to the hon. Member for Glasgow, Maryhill (Mrs. Fyfe).
Mr. Bennett:
I am disappointed by the Minister's response, because I thought that the purpose of the Bill's Committee stage was to try to achieve constructive results. I understand the difficulty that an offence will be extremely difficult to prove if, as my amendments propose, we say "knowingly" and remove "ought to know" because of the issue of intent. Equally, it is a pretty good principle in law that, so far as possible, we should make it clear to people that they are in danger of breaking the law. Therefore, we should be trying to achieve clarity. I understand that difficulty, and I appreciate the way in which the Minister has made the point that, as soon as we make a list, there will be a problem with people who deliberately try to get round it. I accept that.
When I moved my amendment, I suggested to the Minister the development of a code of practice or regulations that would provide the necessary interpretation. I can also understand the difficulties with that approach, but I should have thought that he could at least provide the Committee with a firm list of such behaviour. As he said, a judge would not have to take specific notice of a list, but such a list would at least clearly express the Government's views.
In the course of proceedings on the Bill, I hope that Ministers will make it clear that they accept the list in amendment No. 12. If the Minister or his advisers can think of other examples of such behaviour, they should be included--so that people are at least provided with some clarification of the law on which to base their conduct.
I understand the Minister's argument that a police officer should be able to say, "Because of this general rule on harassment, that behaviour is covered." But, as the Minister has already pointed out, some of those people are extremely awkward, persistent and cussed, and they will not be deterred merely because a police officer says that a course of conduct is covered. They will be very tempted to pursue the matter through the courts. Such uncertainty will continue until there is a series of court judgments clarifying what is meant in the clause by "harassment" and what is meant by "reasonable".
I appeal to the Minister to look again for some way in which to provide general guidance stating that the conduct listed in amendment No. 12 and the conduct that he mentioned are clearly examples of harassment. The guidance should make it clear that, if one persists with such activities, they will be caught by the clause, and it should not close the door on including those activities. I should have thought that the Minister could come up with guidance that is sufficiently inventive to meet the
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"If you have a list of activities which you ban, my stalker will simply sit down and work out another activity with which to torment me."
I do not want to stand in the House in two years or write letters to my constituents or those of other hon. Members, explaining how the law was inadequate because we went for a list and some weirdo got round the list and made life hell for another victim. We do not have to do that, because the proposals in the Bill represent the best way of tackling the problem.
8.15 pm
"If you have a list of activities which you ban, my stalker will simply sit down and work out another activity with which to torment me."
For those reasons, and that one in particular, I cannot accept the amendment.
"without prejudice to the generality"
of a particular section, the following detailed provisions would apply. After his remarks to the Committee, will the Minister and his colleagues revise all the legislation that has been passed in the past umpteen years to remove such particulars? That is the logic of what he has said.
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