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Stalking (No. 2) Bill [H.L.]
3.36 p.m.
Lord McIntosh of Haringey: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.--(Lord McIntosh of Haringey.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Geraint) in the Chair.]
Lord McIntosh of Haringey moved Amendment No. 1:
The noble Lord said: It may be for the convenience of the Committee if I speak to all the amendments together. They all have the same object and effect. Therefore, with permission, I shall speak also to Amendments Nos. 2 to 26.
The purpose of all these amendments is to remove the criminal element from the Bill that received a Second Reading and to turn the offence of stalking into a civil matter instead. It therefore becomes a civil tort of molestation: there is a right not to be stalked--not to be molested--and the offence is a breach of any non-molestation order in the civil courts.
We debated the matter as a criminal offence at Second Reading. However, I recognise that, although the Government share with me the view that creating a criminal offence is an appropriate way to deal with some of the issues involved in stalking, it is premature to introduce a Bill which provides for such a criminal offence.
I am grateful to the noble and learned Lord the Lord Chancellor for suggesting that it would be appropriate for the Bill to abandon the concept of a criminal offence and for indicating to me the thinking behind how the relevant provisions of the Family Law Bill might be used in the more general area of stalking where no family relationship already exists. As I take the Committee as rapidly as I can through the amendments it will be seen that they all point to that same objective.
Amendment No. 1. removes the complicated definition of stalking for the purpose of a criminal offence and simply says that Clause 1 shall read:
That is the end of Clause 1. All the issues debated in Committee about whether the actions themselves are offensive are left to the courts in their consideration of whether a non-molestation order is appropriate.
Clause 2 is completely replaced by a new, simple clause which states:
The phrase "non-molestation order" is not very elegant, but it is the phrase used in the Family Law Bill in that part which deals with family homes and domestic violence. As the Lord Chancellor pointed out to me, although the Family Law Bill uses a non-molestation order to relate only to somebody who has a relationship with the person who is being molested, by removing that relationship from the drafting of the Bill, the phrase "non-molestation" does have a useful meaning.
I do not think there need be any fear of the non-molestation order under this Bill being confused with a non-molestation order under the Family Law Bill because it can be referred to in respect of the Act of Parliament which is being used for the purposes of the order. So we have a simple Clause 2 which establishes that there is a right not to be stalked and the remedy for that is to secure a non-molestation order.
Clause 3 has been divided into more than one clause, so Amendment No. 4 refers to the whole "Act" rather than to the single section.
Amendment No. 5 extends the remedy from the magistrates' courts to the county court and the High Court because, again on the analogy with the Family Law Bill, those courts are appropriate for a non-molestation order.
A whole series of amendments removes the word "prohibitory" and replaces it with the phrase "non-molestation order".
Amendment No. 8 strengthens the requirement of a person who is being stalked to provide evidence that he is being stalked, rather than simply believing he is being stalked.
Amendment No. 9 removes the possibility that any other person acting on behalf of the applicant could seek an order and restricts it to
Amendment No. 10 re-words Clause 3(3) in accordance with the wording of Clause 42(1) and (3) of the Family Law Bill.
Amendment No. 11 removes subsections (4) and (5). There is a replacement for them in Amendment No. 14, which reflects Clause 42(2) of the Family Law Bill.
There is then a series of amendments changing the wording from "prohibitory" to "non-molestation".
I have already referred to Amendment No. 14.
Amendment No. 20, frankly, I do not understand, although I believe that the lawyers understand it. It provides that any relief which is available from a non-molestation order is not in replacement of a general tort but is additional to other tort relief.
Amendment No. 21 removes subsections (13) and (14) because they are replaced by the more detailed provisions of the new clause after Clause 3 (Amendment No. 22) and the new schedule to be placed after Clause 5 (Amendment No. 25). The new clause is called a breach of order clause. Again, it derives very largely from the Family Law Bill, with amendments as appropriate to remove the relationship between the applicant and the respondent. It provides, as the original Bill did not provide, adequate provision for the discharge of an order on application. Above all, it provides for powers of remand for breach of such an order. I am sure the Committee will agree that it is important that there should be proper provision for somebody to be remanded in custody if the order is breached. Otherwise, there is no real protection against stalking.
Amendment No. 23 removes the reference to a person acting under statutory or lawful authority because there is now no offence as such under the Bill. Amendment No. 24 provides, as is common, that the Act should come into force two months rather than one month after enactment. As I said, Amendment No. 25 is the new schedule about the powers of the High Court and the county court to remand. That is taken directly from the Family Law Bill. Finally, Amendment No. 26 makes the necessary amendment in the Title to remove the criminal element of the Bill as originally drafted.
I recognise that the Bill is very different from the previous Bill. But I am sure the Committee will understand me when I say that all the changes are solely motivated by the desire to provide for a civil procedure rather than the creation of a new criminal offence. It is my belief that it would be desirable for Parliament to enact this more limited legislation, even though the Government are now consulting publicly about the problems or opportunities for a criminal offence and even though the Government have given an undertaking, which I acknowledge, that they will introduce legislation to provide the criminal offence when the consultation is complete and when the lawyers have decided how to do it.
Much as we agree with the objectives of the Government and believe that they agree with us that these amendments and the Bill as amended would provide a satisfactory basis for the civil procedure provided for under the Bill, we feel that the Bill should be enacted now. No damage whatsoever is done to the prospect of further legislation under some more general criminal procedure Bill. Nothing is lost but a great deal could be gained by practical relief for those women who are being stalked at the present time, have no adequate relief in the courts and need to be reassured that the law is prepared to take the action necessary in order to protect them.
I suggest to the Committee that this is a fail-safe piece of legislation. It does not in any way conflict with the longer term objectives of the Government or indeed the longer term objectives which I stated and which in the other place Mrs. Janet Anderson stated. It provides immediate relief. I commend Amendment No. 1 to the Committee. I shall then commend to it the subsequent amendments.
Lord Dixon-Smith: I shall commence what I have to say by congratulating the noble Lord, Lord McIntosh, on bringing forward this string of amendments, because there is not the slightest doubt that the consequence of their application to the original draft is to improve the Bill. I hope that it will be for the convenience of the Committee if I deal with the subject in the same terms as the noble Lord has already done. My remarks will be on the Bill as amended, as though these amendments already applied. In that way we shall save a deal of time.
When I spoke at Second Reading I had two concerns which still exist. The present law has in it remedies for the crime of stalking. Indeed, there is reported in today's press another case of stalking which has been successfully brought to court. There is no point in going over that ground. We have the Bill before us. The fact remains that, despite what the noble Lord, Lord McIntosh, has said, cases of stalking are successfully brought to court and people are prosecuted under the existing law.
The second point of concern which was raised at Second Reading, was that the Bill is deficient in its definition of the crime of stalking. I still have that concern about the Bill as amended. Clause 1 will now read--and the noble Lord, Lord McIntosh, has already read it--
I have one other point of concern. The new Clause 3 deals with the issue of non-molestation orders and the penalties that can be attached to them and so forth. Again, I believe that this route is to be preferred in every way possible to the wording of the original Bill. However, there is a difficulty. All too often the crime of stalking involves somebody who is likely to be unknown by name to the person stalked. One sees cases in which that causes an immense amount of trouble. A non-molestation order
There has to be a way of resolving what is another circular situation. I do not know the answer to this one, but it seems to me that if the Bill as it stands requires the courts to do something which the courts will not do the Bill is deficient because it will not provide the protection which we should all like to see provided. Those are my two causes of concern on the Bill. As it now stands, it is vastly better, but I still think that it is deficient.
Page 1, leave out lines 7 to 19 and insert ("molests another person").
"In this Act, 'stalking' shall mean engaging in a course of conduct whereby a person molests another person so as to be reasonably likely to cause that other person to feel harassed, alarmed, distressed or to fear for his safety or for that of one or more third persons".
"(1) It is unlawful for a person to stalk another person.
"(2) A claim by a person that another person has acted unlawfully under this section may be made subject to a non-molestation order as defined in section 3(1)(b) below".
"a constable, employee of the Crown Prosecution Service or solicitor".
3.45 p.m.
"In this Act, 'stalking' shall mean engaging in a course of conduct whereby a person molests another person so as to be reasonably likely to cause that other person to feel harassed,"
and so forth. I dislike negotiation across the Floor of the Committee as to the meaning of words. But I wonder if the word "molests" is an appropriate definition standing in isolation as it does in this case. Even if we set aside the issues of child molestation and sexual molestation, all of which involve physical contact, the Oxford English Dictionary defines "molest" as meaning,
"cause trouble to; vex, annoy or put to inconvenience".
We are in a situation where the wording of the Bill is in what I describe as a, "You know what I mean" phase. Indeed, the noble Lord, Lord McIntosh, said in his opening remarks that this matter can be left for the courts to define and decide. I am a naive layman, but I believe that that will provide an open door through which a flood of canny lawyers will wish to rush. My understanding of the workings of the Court of Appeal has always been that, when a matter is brought to it, it tries to interpret the intention of Parliament in the legislation. Here, we are saying that we do not have a particular intention and that we are going to leave it to the courts to decide. It may be that I am being pernickety, but I believe that we have here a circular argument which is dangerous.
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