| Previous Section | Index | Home Page |
'(2B) In considering whether to order an injunction in proceedings under this section, a court shall have primary regard to whether such an order is necessary for the protection of what the court considers are the victim's legitimate interests.'.
The Chairman of Ways and Means (Mr. Michael Morris): With this, it will be convenient to discuss the following amendments: No. 29, in page 2, line 8, at end insert--
'(2A) Civil proceedings which include a claim under this section for an injunction shall not be referred to arbitration (whether under section 64 of the County Courts Act 1984, or otherwise) without the consent of all the parties to the action.'.
No. 4, in page 2, leave out lines 9 to 24.
No. 25, in clause 8, page 4, line 36, at end insert--
'(5B) In considering whether to order an interdict or interim interdict in proceedings under this section, a court shall have primary regard to whether such an order is necessary for the protection of what the court considers are the pursuer's legitimate interests'.
Ms Anderson: Amendment No. 14 would make the test for whether to issue an injunction under civil proceedings as favourable as realistically possible to the victim. It would make it more likely that county court judges would issue civil injunctions in strong prima facie cases of harassment. The Bill seeks to provide a remedy against behaviour that would often otherwise be considered lawful--for example, using the postal system, the public highway, or the telephone would be rendered a civil or criminal offence under the Bill by the effect on the victim. [Interruption.] At present, when deciding whether to issue injunctions, the
17 Dec 1996 : Column 846
courts are naturally inclined to attach too much weight to potential interference with a harasser's civil liberties. [Interruption.]
The Chairman: Order. I apologise for interrupting the hon. Lady. I ask those hon. Members who wish to take part in the Committee to listen to the proceedings, and those hon. Members who wish to talk about other matters to do so outside the Chamber.
Ms Anderson: The amendment would guide a court to consider primarily the victim's point of view during its deliberations. We believe that that is particularly appropriate under this legislation, because a typical injunction would involve only a small interference with the harasser's civil liberties but would serve to set a victim's mind at rest as well as protect the victim from potential future harassment. The amendment would mean that, for example, when a person goes to court seeking an injunction and the court thinks that, on the balance of probability, the case is pretty 50:50 as to whether an order should be granted, the court should find in favour of the alleged victim and grant the injunction. The amendment's test of considering a victim's legitimate interest was approved by the Court of Appeal, which included the Master of the Rolls, in the judgment handed down in the Burris v. Azadani stalking case in July 1995. If the amendment were passed, we believe that the judgment in that case would provide excellent guidance for judges hearing similar applications for injunctions under the Act.
Mr. A. J. Beith (Berwick-upon-Tweed): On a point of order, Mr. Morris. I seek your help. In view of the way in which the Bill is being proceeded with, there may not be an interval between the Committee and Report stages. I am slightly concerned that, following their recent defeat, the Government might decide to introduce an amendment on Report to reverse our decision this evening. Can you afford some facility to Ministers, who appear to be consulting busily with each other and with civil servants, so that they may give notice to the Committee if they intend to move on Report an amendment--which will probably have to be a manuscript amendment--that will affect our decision?
The Chairman: As far as I am concerned, I am dealing with the Committee stage at the moment. We have a little way to go yet.
Mr. Bennett: Further to that point of order, Mr. Morris. I seek your assistance. It is difficult to table amendments on Report when we do not have a copy of the amended Bill. The order of the Bill will change, because Government and Opposition amendments have been carried. How do we table amendments on Report? Do we make them to the Bill before us or to the Bill as amended? I am sure that you appreciate that it is rare for amendments to be carried in Committee on the Floor of the House. We need some certainty, as the debate could end fairly suddenly and we would be on Report. We need to know how to proceed.
17 Dec 1996 : Column 847
The Chairman: Committee stages on the Floor of the House are often interesting. As far as the Chair is concerned, when the time comes, the order will be intelligible to the House.
Mr. Bennett: My amendment No. 4 is in this group of amendments. It is difficult to bring the Committee back to considering the amendments, as it is fairly unprecedented for the Government to be defeated in this manner. The sooner a Minister comes to the Dispatch Box to tell us how we shall proceed, the better. I turn to the construction of clause 3, which begins with a civil remedy and builds a criminal offence on to that civil remedy. It is fairly unusual in this country for legislation to muddle criminal and civil court procedures, and I think that there are good reasons for keeping the two separate. The civil courts must balance the differing and conflicting interests of the two parties to the case. They have to decide between the two parties on the question of fairness. That is often extremely difficult, because the difference between the measure of proof on one side and the other may be fairly slim. The alternative approach of the criminal courts is that someone must be found guilty beyond all reasonable doubt. I am worried about the fact that the issue will first be dealt with by civil proceedings, and if someone is in breach of those proceedings, instead of ensuring that the matter is taken up by the courts as a contempt of court, we are creating a criminal offence. If we make a breach of an action in a civil court a criminal offence, we must make it clear that the same tests should be applied to the civil proceedings as would be applied in the criminal court. The standard of proof in the civil court should not be weaker than that applied in the criminal court. I suggest that the Government think seriously about the way in which subsections (3), (4), (5) and (6) of clause 3 fit in with the civil remedy. I shall listen with interest to the Minister.
Mrs. Maddock: The amendment would ensure that civil proceedings on a claim for an injunction under the clause would not be referred to arbitration without the consent of all the parties. The purpose of the amendment is to ensure that people can afford to deal with the situation in which they find themselves. Most civil proceedings take place in the county court. A system of arbitration without lawyers' fees was created 20 years ago. As we all know, that system is the small claims court, and its original jurisdiction was claims of £100. That was subsequently increased to £500 and then to £1,000, and recently to £3,000. Claims under that limit, with some exceptions, are compulsorily referred to arbitration. Until recently, it had been thought that the rules on exceptions meant that claims for injunctions would not be referred, but a court decision has now ruled otherwise. That is already causing problems in disrepair cases. A minor, but inadequate, alleviation to the rules has been made, so that it is a little easier for a case to come back from arbitration, and for a fixed sum of £270 for legal costs to be allowed in an injunction. That is well below the costs of preparing papers and appearing at a hearing--and, possibly, at a return date. That has had a knock-on effect on legal aid. It may be that the lack of costs recovery in such a case would not prevent legal aid. The purpose of the amendment is to
17 Dec 1996 : Column 848
ensure that practical access to the courts remains available, and I hope that the Government will look favourably on it.
Mr. Robert G. Hughes (Harrow, West): One of the problems of debating amendments in this atmosphere is that we end up with legislation with holes in it. That does not seem to matter to Opposition parties. The amendment that has just been passed undoubtedly weakens the Bill and seeks to drive a coach and horses through it.
The Chairman: Order. We have already discussed the previous amendment--I do not think that the hon. Member was present at the time. We are now on amendment No. 14, which he should be addressing.
Mr. Hughes: You are quite right, Sir Michael.
The Chairman: No, just Chairman or Mr. Morris.
Mr. Alan Duncan (Rutland and Melton): For 10 more days.
Mr. Hughes: That is disgraceful. You should call my hon. Friend to order, Mr. Morris. I was obviously dazzled by your bow tie.
| Next Section
| Index | Home Page |