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Lord McIntosh of Haringey: It seems to me that on almost all the important issues that we have debated today all of us are in agreement. Perhaps I may deal first with the points made by the noble Lord, Lord Dixon-Smith, and then refer in particular to the Government's response.
The noble Lord wondered, as he said, as a naive layman--I too am a naive layman--whether the words "molestation" or "non-molestation" were sufficiently precise. I wondered about that too, but having looked at the Family Law Bill, which uses the same words, and having had the benefit of discussions with the noble and learned Lord the Lord Chancellor, I am convinced that to have something which is not yet fully defined and which would have to be defined by the courts would be an advantage. It would enable action to be taken and
case law to build up a dossier of examples of molestation which could properly be pursued in the courts without attempting, as the original Bill attempted perhaps in far too much detail, to define every element of an activity which combines lawful and unlawful elements. That is why, as in the Family Law Bill, which I understand has passed all its stages but not yet received Royal Assent, Parliament has indicated that the phrase "non-molestation" without further definition is not only possible but advantageous.The noble Lord went on to say that the Bill does not deal with the problem of the unidentified stalker. Of course, he is right. That is one of the issues which would have to be dealt with by bringing the police in at an early stage and would almost require the criminal sanctions which I believe we all want.
The noble Lord's third point was that there are other laws which can deal with some cases of stalking. Again, he is right, but the Government agree with me that those laws are not adequate; otherwise the Government would not have issued their toughly worded press release on 11th May which, as the noble Earl, Lord Courtown, said, stated that something has to be done urgently. I am not suggesting that we go all the way. I am saying that the Bill goes a lot further than the existing legislation and makes action against stalking in a considerable number of cases more possible.
Of course I am disappointed by the Minister's final conclusion. However, I am very much encouraged by many of the other things that he said and in particular what he did not say. He did not criticise the wording of the Bill as it would be, amended. Therefore I am encouraged that the Government believe that, if we are not 100 per cent. there, we are nearly there in terms of the answers to this stage of the problem. The Minister went on to say that this is not the complete answer and it does not meet all the instances which arise. Again, he is right. It does not claim to do that. What we claim to do is to make an improvement on the present law.
I really must reject the Minister's final points. He said that it is necessary for consultation to take place before we proceed with legislation. I repeat the point that I made at the beginning; that nothing in the Bill pre-empts any legislation on a criminal offence. No damage is done to the consultation procedure or to the final solution which may emerge as a result of that consultation procedure.
The Minister went on to say that links are vital between the two. If they are, and I rather doubt it, those links can be provided when the criminal offence itself is defined at some later date. The provisions in the Bill are free-standing. They are modelled on the Family Law Bill, which has received the approval of Parliament. They stand up in their own right as a positive contribution to the protection of women who, as the Minister rightly said, suffer the scourge of stalking. I commend all the amendments to the Committee and I now commend Amendment No. 1.
On Question, amendment agreed to.
Lord McIntosh of Haringey moved Amendment No. 2:
On Question, amendment agreed to.
Clause 1, as amended, agreed to.
Lord McIntosh of Haringey moved Amendment No. 3:
Page 1, line 22, leave out from ("persons") to end of line.
Leave out Clause 2 and insert the following new Clause--
(".--(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.").
On Question, amendment agreed to.
Clause 2, as amended, agreed to.
Clause 3 [Prohibitory orders, etc. ]:
Lord McIntosh of Haringey moved Amendments Nos. 4 to 21:
On Question, amendments agreed to.
Clause 3, as amended, agreed to.
Lord McIntosh of Haringey moved Amendment No. 22:
Page 2, line 9, leave out ("section") and insert ("Act").
Page 2, line 10, after second ("Court") insert (", County Court or High Court").
Page 2, line 11, leave out ("prohibitory") and insert ("non-molestation").
Page 2, line 14, leave out ("prohibitory") and insert ("non-molestation").
Page 2, line 16, after ("believes") insert ("and provides evidence that").
Page 2, line 18, leave out ("another person") and insert ("a constable, employee of the Crown Prosecution Service or solicitor").
Page 2, line 22, leave out subsection (3) and insert--
("(3) The court may in any case where it considers that it is just and convenient to do so, make a non-molestation order even though the respondent has not been given notice of such proceedings as would otherwise be required by the rules of the court.
(3A) If a court makes an order by virtue of sub-section (1) it must afford the respondent an opportunity to make representations relating to the order as soon as just and convenient at a full hearing.").
Page 2, line 27, leave out subsections (4) and (5).
Page 2, line 27, leave out ("prohibitory") and insert ("non-molestation").
Page 2, line 33, leave out ("prohibitory") and insert ("non-molestation").
Page 2, leave out lines 34 and 35 and insert ("regard to all the circumstances including--
(a) the safety of the applicant;
(b) any risk of significant harm to the applicant attributable to the conduct of the respondent, if the order is not made immediately; and
(c) whether it is likely that the applicant will be deterred or prevented from pursuing the application if an order is not made immediately.").
Page 2, line 36, leave out ("prohibitory") and insert ("non-molestation").
Page 2, line 38, leave out ("prohibitory") and insert ("non-molestation").
Page 2, line 45, leave out ("prohibitory") and insert ("non-molestation").
Page 3, line 2, leave out ("prohibitory") and insert ("non-molestation").
Page 3, line 4, leave out ("prohibitory") and insert ("non-molestation").
Page 3, line 5, at end insert--
("( ) A non-molestation order may be additional to other tort relief.").
Page 3, line 6, leave out subsections (13) and (14).
After Clause 3, insert the following new clause--
(".--(1) The court may attach a power of arrest to one or more provisions of a non-molestation order unless satisfied that in all the circumstances of the case the applicant will be adequately protected without such power of arrest.
(2) A respondent who breaches any provision of a non-molestation order is guilty of an offence.
(3) A person guilty of an offence under this section shall be liable upon conviction on indictment to imprisonment for a term not exceeding 2 years or a fine or both, or on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding level 4 on the standard scale or both.
(4) If the court attaches a power of arrest to any provisions of a relevant order, it may provide that the power of arrest is to have effect for a shorter period than the other provisions of the order.
(5) Any period specified for the purposes of subsection (4), the court attaches a power of arrest to any provisions of the relevant order, it may provide that the power of arrest is to have effect for a shorter period than the other provisions of the order.
(6) Any period specified for the purposes of subsection (4) may be extended by the court (on one or more occasions) on an application to vary or discharge the relevant order.
(7) If a power of arrest is attached to certain provisions of an order, a constable may arrest without warrant a person whom he has reasonable cause to suspect to be in breach of any such provision.
(8) If a power of arrest is attached under subsection (1) to certain provisions of the order and the respondent is arrested under subsection (7)--
(a) he must be brought before the relevant judicial authority within the period of 24 hours beginning at the time of his arrest; and
(b) if the matter is not then disposed of forthwith, the relevant judicial authority before whom he is brought may remand him.
In reckoning for the purposes of this subsection any period of 24 hours, no account is to be taken of Christmas Day, Good Friday or any Sunday.
(9) If the court has made a non-molestation order but--
(a) has not attached a power of arrest under subsection (1) to any provisions of the order; or
(b) has attached that power only to certain provisions of the order,
then, if at any time the applicant considers that the respondent has failed to comply with the order he may apply to the relevant judicial authority for the issue of a warrant for the arrest of the respondent.
(10) The relevant judicial authority shall not issue a warrant on an application under subsection (9) unless--
(a) the application is substantiated on oath; and
(b) the relevant judicial authority has reasonable grounds for believing that the respondent has failed to comply with the order.
(11) If a person is brought before a court by virtue of a warrant issued under subsection (10) and the court does not dispose of the matter forthwith, the court may remand him.
(12) Schedule (Powers of High Court and county court to remand) (which makes provision corresponding to that applying in magistrates' courts in civil cases under sections 128 and 129 of the Magistrates' Courts Act 1980) has effect in relation to the powers of the High Court and a county court to remand a person by virtue of this section.
(13) If a person remanded under this section is granted bail (whether in the High Court or a county court under Schedule (Powers of High Court and county court to remand) or in a magistrates' court under section 128 or 129 of the Magistrates' Courts Act 1980), he may be required by the relevant judicial authority to comply, before release on bail or later, with such requirements as appear to that authority to be necessary to secure that he does not interfere with witnesses or otherwise obstruct the course of justice.").
On Question, amendment agreed to.
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