House Of Commons
Friday 12 February 1988
The House met at half-past Nineo'clock
[MR. SPEAKER in the Chair]
Orders Of The Day
Malicious Communications Bill
Order for Second Reading read.
I beg to move, That the Bill be now read a Second time.The Bill stems from the 1985 Law Commission report on poison-pen letters and its purpose is to protect individuals from great distress and anxiety. It would make it an offence in England and Wales to deliver or send a letter which the sender knows or believes to be false. The Bill pertains specifically to material where the intent of the sender is to cause the recipient distress or agony. At the request of the Minister of State, Norther Ireland Office, the Bill also contains provision for matters relating to Northern Ireland to be dealt with by Order in Council. I propose that it would be a definable offence to send a letter or an article of a grossly offensive nature or containing an indecent message or any material carrying an unjustifiable threat. I propose that it should be an offence to send a letter carrying false information or any information believed by the sender to be false. An article of an indecent nature that is sent should also be considered a definable offence, and that includes delivering or causing any such material to be sent or delivered. That must stop. At some time every hon. Member will, either at his advice surgery or by letter, have been requested by a constituent for help as a result of foul, offensive hate mail. What advice can we offer? Nothing except sympathetic understanding. Indeed, hon. Members are themselves recipients of such muck. I have an example in my hand that is so obscene that even parliamentary privilege would not persuade me to read it out to hon. Members. We accept such letters as part and parcel of our job, but, nevertheless, many innocent people and their families have had their lives completely ruined by such mail and have had no redress. In a civilised society that cannot be tolerated. I felt it right and opportune to use my private parliamentary time to introduce the Malicious Communications Bill, which will fill a significant gap in our legislation. Under the existing law, malicious communications are not a punishable criminal offence, but they must become so. According to the present law, poison-pen letters can be dealt with only by means of criminal libel, which only prohibits the publication of material that exposes the victim to contempt, hatred or ridicule. It does not apply when the communication is a false death notice or an article that contains indecent suggestions or threats. The Bill would correct that and make those offences accountable in law. It is already an offence to send indecent or obscene material through the post, but that applies only to articles sent by post and ignores all other forms of delivery. It is also an offence under the Telecommunications Act 1984 to send an indecent or offensive message by telephone.
Is there not also another defect in the law of criminal libel? The offensive item must be published, unless it is deemed likely to cause a breach of the peace when received by the recipient. Is that not a serious flaw in the law of criminal libel, and the reason why many of us welcome this measure?
I entirely agree with my hon. Friend and I am grateful for his support.The Bill provides that the sending of a malicious communication would be triable only by a magistrates' court, with a maximum penalty of £400. The courts would also be responsible for deciding whether the article or letter was grossly offensive or indecent. The Bill also provides for certain explainable exemptions from its requirements. It would exempt those who believe that by delivering a message they are employing the only means of securing repayment of an overdue debt. That cannot be considered a threat, so hon. Members can still expect those regular letters from the bank manager and their irate constituents. The Bill provides a defence for the sender of a letter who believes that the threat is warranted. My Bill also ensures that an honest error will not be penalised. It catches only the knowing accomplice who mails or delivers a communication. If a friend delivered such a letter, unaware of its contents, he would not be penalised, because he would not have the required intent to cause distress or agony. The Bill specifically requires that the defendant must prove that he had reasonable grounds for making such an accusation. My Bill addresses itself to a specific mental state of intention to inflict pain or suffering on unsuspecting individuals. Morally blameless behaviour will not be penalised. There is no reasonable excuse for sending hate mail with the purpose of causing the recipient any form of anxiety or distress. Hate mail has been the cause of much distress over the years. Victims of it have included various public persons and, more recently, families of non-striking miners during the 1984 industrial dispute. It has also been a common weapon used against our ethnic minorities, who have suffered the indignity of receiving grossly offensive articles, such as excrement, through the letter box, with the explicit intention of causing distress and anxiety. Our new citizens find it difficult enough coping with the cultural changes without this sort of harassment, and I am delighted that my Bill will give them the added protection that they deserve. Many people ask how widespread this problem is. There are no specific figures, because it is not a criminal offence, so there is only a limited incentive for victims to report hate mail, but the Law Commission concluded that there was sufficient evidence that the sending of poison pen letters was a common occurrence and required special measures to deal with it. It might be interesting to compare the prosecution figures for all offences under the Telecommunications Act 1984. In 1984, there 486; in 1985, 512; and in 1986, 460. I believe that the problem of hate mail is far wider than those figures suggest. The offence is not difficult to prove—
Will my hon. Friend underline to the House that the offence under the Post Office Act 1953 covers only indecent or obscene material, and not threatening letters? That is important.
My hon. Friend is again correct. I am sure that when the Bill is in Committee that point will be examined.In order to protect unsuspecting people from malicious communications offenders must be made criminally accountable and subject to punishment under the law. The gap in the law must be closed. My Bill would set a standard of limitations on what is legitimate. In short, it is a wonderful piece of legislation which speaks for itself.
I congratulate my hon. Friend the Member for Sherwood (Mr. Stewart) on having had the good fortune to appear at No. 6 in the private Members' ballot. Throughout the last Parliament, and so far in this one, I have never appeared in the top 20, so I envy him his luck. I think that he used his good fortune well by introducing this excellent measure.Some people regard the subject of poison-pen letters as a bit of fun. I always remember teasing a former girlfriend that if she ever sent me one of her recipes through the post she would probably be arrested for sending poison-pen letters.
That is why she is an ex-girlfriend.
It is certainly one of the reasons.I well remember the much-loved British comedian, Tony Hancock, who is sadly no longer wilth us, devoting one of his half-hour programmes to the subject of poison-pen letters. Although we can at times see the funny side of this subject, it is a serious matter that can cause immense distress. Its most common form is the letter, but I am pleased that the Bill is widely drawn and will cover other forms of malicious communication, such as tape recordings, video recordings and other forms of abuse. I well remember, when I practised as a solicitor, being informed by a colleague of a case that he had handled in which a landowner was in dispute with a farmer over a strip of land. The farmer had erected a fence on my friend's client's land and the client had, quite properly, written to the farmer politely pointing out that the fence was on his—the client's—property and asking him to remove it. He received an objectionable letter in reply, along the lines: "Please note what I think of your allegations concerning my fence by referring to the enclosure." In the envelope was a huge amount of excreta. That caused the client extreme distress, and if I read my hon. Friend's Bill correctly, communications such as that will be caught by it.
My hon. Friend spoke of video recordings. Is he aware that section 11 of the Post Office Act 1953 would catch video material sent through the post if it was judged by the courts to be indecent or obscene, although it would not catch other video material? My hon. Friend is right to say that an abusive message sent through the mail should be caught.
My hon. Friend is right. A video recording pushed through someone's letter box, and not sent by post, would not be caught by the Post Office Act 1953.
No, but it would be caught by the Bill because it provides for different modes of delivery, including delivery through the post and hand delivery.
That is exactly right, and that is why I said at the start of my speech that I was delighted to welcome the Bill because it closes a number of loopholes in our existing law.My hon. Friend the Member for Sherwood said that he had received threatening and abusive letters. I think that at some time or other most hon. Members have received such correspondence. When I looked through some of my files, I noted that just before Christmas I received such a letter from a constituent who had become quite worked up about the community charge. In the letter he made his points about the community charge and then made some rather unpleasant references to me because he said that he thought I would support the Government on the issue. When I found the letter again this morning, I wondered whether it would come within the scope of the Bill. On reading it again, however, I decided that the letter was obviously sent by an eccentric who was a member of a diminishing band of Socialists in the east midlands. That being so, I decided to leave matters as they were.
Socialists are becoming a protected species.
They will soon become a protected species, especially in Derby, because Socialism there appears to be dwindling.I am delighted that my hon. Friend has seen fit to include in clause 1(2) a provision for a defence in certain circumstances. We must remember that while we wish to prevent unnecessary distress, we live in a free society where free speech, vigorous debate and the strong expression of opinion should not be discouraged. Last night I watched "Newsnight" as I was reading the Bill. Clause I makes it quite clear that, should the Bill become law, it will be an offence to send false information for the purpose of causing anxiety. When I had reached that part of the Bill, the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) appeared on the television screen and accused the Government of manipulating the law. I recalled the comments of the right hon. Gentleman during the general election when he said that Britain was in the throes of an economic crisis and I began to think about what would happen if someone received a press release from the right hon. Gentleman referring to the manipulation of the law by the Government — the right hon. Gentleman implied that freedom was under threat—or received one of his earlier press releases about the country being in an economic crisis. Such communications would cause anxiety and distress, and I began to wonder whether extravagant speeches of the kind made by the right hon. Gentleman might fall within the scope of the Bill.
Does my hon. Friend agree that if a future Labour Government — heaven forbid — threatened to call in the IMF that would be caught by the Bill?
If they sent letters or press releases about that, it would cause the utmost distress and anxiety. If there were a Labour Government they would need to call in the IMF, and therefore any information about that would not he a false communication.
My right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) never has and never will make a speech that causes anxiety or distress. He will continue to do as he has done in the past and point out the follies of the Government's economic policies.
The hon. Gentleman ought to travel the country a little more, because in the parts to which I have been the speeches by the right hon. Member for Sparkbrook have caused anxiety and distress. Luckily, I or one of my colleagues have arrived on the scene soon afterwards and allayed the distress. I am concerned that hon. Members such as the right hon. Member for Sparkbrook may fall foul of the provisions in the Bill, and I ask my hon. Friend the Member for Sherwood to consider that. Perhaps the answer is either for the right hon. Member for Sparkbrook to cease to circulate his speeches or to be a little more careful in future about what he says.We must pose the question: is there a need for the Bill? I believe that we could do with less, not more, Government, and that when legislation is proposed it needs continuing justification. I have considered the existing law and see a need for the Bill. My hon. Friend the Member for Sherwood spoke about the law of criminal libel. The difficulty about criminal libel is that it is not defined by statute. Roughly, criminal libel is the publication of defamatory matter which is not trivial and which is in permanent form. It is a defence to argue that the published material is true and that publication was for the public benefit. However, there must always be publication unless it can be argued that the material was so offensive that it was likely to cause a breach of the peace when it was received. That means that the recipient was likely to go berserk or something like that. That is a serious defect in the law of criminal libel because, as is often the case with the poison-pen letter, there is no publication. It is sent to the person for whom it is intended, who reads it and is shocked or distressed, but does not show it to someone else. Therefore, in law there is no publication to a third party. In matters of this nature the law of criminal libel does not help us very much, and no doubt that is why prosecutions for offences of criminal libel are rare. A poison-pen letter may not be defamatory. If it is sent for the purpose of causing distress, it does not have to be defamatory to the person who receives it. It could say, "Your wife, who was on holiday in Skegness, is dead." The allegation could be untrue but, of course, a letter in such terms would not be defamatory. My hon. Friend the Member for Sherwood and the Minister spoke about the Post Office Act 1953. Under section 11 of that Act it is an offence to send indecent or obscene material through the post. As I said to my hon. Friend the Minister, that applies only if the material is sent through the post and would not cover the case of someone delivering obscene material through the letter box or getting a third party to deliver it in that way. In addition, it affects only indecent or obscene material and not material that can be highly defamatory and upsetting without being obscene. The law does not end there, because there is also the law of blackmail. In essence, blackmail is committed when someone makes an unwarranted demand with menaces with a view to gain for himself or with intent to cause loss to another. For example, "Give me £1,000 or I shall shoot you," would be a good example. Poison-pen letters may not have all those ingredients. Someone may be seeking to upset or to cause distress, but not necessarily to seek gain for himself. Therefore, the law of blackmail does not help us in this area because it is not broad enough to catch many poison-pen letters. While I was listening to the right hon. Member for Sparkbrook on television I was also studying the law and was surprised to note that our existing law is not broad enough to catch a written threat to injure. Although it is currently a criminal offence to threaten to kill someone, it is not an offence to threaten to injure him. Hon. Members may say that our law contains other provisions that could be brought into play; for example, a binding over. I do not think, however, that a binding over is sufficient in such cases. For a start, the courts can bind over someone who has not committed a criminal offence, and I do not consider it an appropriate way of dealing with people who send poison-pen letters. Let me ask my hon. Friend a question. I appreciate that if a person is charged with and convicted of sending a poison pen letter the Bill provides for the courts to impose a fine. However, on examining the case, the magistrates may well decide that the sender needs some form of medical treatment. They may take the view that he is a little unbalanced or agitated and needs the help of the probation service. If my hon. Friend's Bill becomes law, will the courts have the power to deal with an offender in that way? I hope that they will. My hon. Friend asked whether there were enough offences of sending poison-pen letters to justify new legislation. I think that we can answer his question in the affirmative. He has identified a serious gap in the law, and it must be right for us to close it by passing the Bill today. I must admit that when I first read the Bill I wondered whether it was necessary to include clause 1(2), which deals with the raising of a defence. I wondered whether we should create an absolute offence. I believe, however, that my hon. Friend was right to include the provision. I well remember the comedian Tony Hancock being interviewed about his half-hour programme on poison-pen letters. He admitted that he liked sending out threatening letters at the weekend. When asked to explain what he meant, he said that he was not talking about gratuitously offensive letters, but, if someone owed him money, he liked to send a letter on Friday. When asked why, he explained that the debtor would receive the letter on Saturday and would not be able to obtain legal advice until Monday. During the weekend, if the debtor worried about it, he might well pay up. I feel that there is a legitimate need to allow that sort of letter to be sent, when there is a genuine debt. When I used to practise as a solicitor in the east midlands, probably 90 per cent. of the post that I sent out on behalf of clients were letters in the threatening category, although I hope that they were always couched in the proper language. There is a problem when people are slow in paying their debts and think that they can get away with not settling their accounts. Often, a solicitor's letter does the trick. Most letters sent by solicitors contain a threat that unless the amount is paid within seven days of receipt the solicitors will have no option but to institute court proceedings on behalf of their client, without further notice. In most cases, that is effective. I am delighted that my hon. Friend has appreciated that, in normal business practice, there is a place for that sort of letter. If a debt is owing and the debtor has failed to pay, it is of course right and proper that the person to whom the money is owed, or his agent, is able to send a letter in those terms. I see a possible loophole, which my hon. Friend may wish to consider closing in Committee. Let me give an example. Let us say that Mr. A wants to cause distress to Mr. B, and they both reside in England. Mr. A considers sending a poison pen letter to Mr B. But, as Mr. A reads Hansard and is aware of my hon. Friend's measure—I assume that this takes place after it has passed into law—he also decides that he does not wish to be brought before the courts for sending such a letter. Accordingly, he waits until the summer, when he is due to take his annual holiday in Spain. He then takes with him the most obscene, obnoxious and threatening letter that he can think of, running to, say, half a dozen pages. He posts the letter from Lloret de Mar, on the Costa Brava, to Mr. B in England. He then returns home. As I understand the position under the Bill, although A and B reside in England and are normally covered by English law, if the letter is posted abroad, A will not have committed an offence. If I am right in that assumption, I ask my hon. Friend to give the House an undertaking that he will consider this when the Bill is in Committee. In conclusion, let me say that I feel that my hon. Friend has done a service, not only to the House, but to the unfortunate recipients of letters of this sort. I am glad that he has couched his Bill in wide but moderate terms, and that the test is to be objective. One of my fears when I first heard of my hon. Friend's intentions, but before the Bill was published, was that the test might be subjective. We can all imagine the cases of which I am thinking. For instance, let us suppose that someone sent a video to Mrs. Mary Whitehouse—a video which the courts would not regard as obscene, but which upset Mrs. Whitehouse so much that she called for a prosecution. I am delighted that my hon. Friend has resisted going as far as that, and that in all cases the test will be objective. That is a wise move. Indeed, I can sum up the Bill by saying that it is drawn in wise language. It is firm, but it is nevertheless well drafted, and I commend it to the House.
I, too, welcome the Bill. My hon. Friend the Member for Sherwood (Mr. Stewart) is to be congratulated on using his good fortune to bring it before the House. As has been said, it is brief and clear, and it closes a small but very nasty loophole which causes considerable grief and distress.Anonymous messages are not always bad. Sitting here this morning, I have been thinking about some of the better kinds of anonymous message. Nevertheless, they are not always good either. We are reminded of the recent preface to Crockford's Directory, which caused such problems, and eventually grief, to so many people. Some of the finest poetry in our land has at the end the magic little word "Anon", and, with St. Valentine's day approaching, we must think how sad it would be if people were not allowed to send those loving, innocuous and good-fun cards on that day. The essential point is how anonymity is used rather than anonymity itself. I think that many people will be suprised to learn that this matter is not already covered by law. We all know that obscene phone calls are covered, but poison pen letters are not. Indeed, offensive material generally is not covered. I believe that in many ways poison pen letters are worse than obscene phone calls. Obviously obscene phone calls are shocking when they happen. Clearly when someone puts the phone down he or she cannot forget about the call. However, if someone does not have the courage or initiative immediately to tear up a poison pen letter, or burn it, the letter may remain in a drawer; it may be pulled out and re-read and the recipient may wonder whether there is any truth in it. It gnaws at the recipient and causes far more damage than an obscene phone call. It is possible today for someone to cause offensive material to be sent to people. Many firms will send all kinds of material — some of which may be quite respectful — that may be distasteful or offensive depending on someone's taste. Often one need only fill in a form in a newspaper with the name of the person to whom the material should be sent. Sometimes even quite mild material sent to extremely sensitive people can cause the most tremendous distress. I am pleased that such action will be caught within the Bill. My hon. Friend the Member for Sherwood said that there is no evidence of the scale of the problem. However, I have examined recent reports from professional psychiatrists and people who deal with such cases. They have estimated that their number has risen by about 200 per cent. in recent years. I believe that, in making the sending of poison pen letters an offence, it is important that we should alter the way in which people regard this matter. Making such actions an offence will punish, and I hope deter, the person responsible. It will also encourage the person who suffers to pursue the perpetrator of the offence. If someone receives such material, he or she will take some kind of action—consult friends or take legal advice. The advice will be that there is little that can be done to punish the miscreant. When the recipient realises that little interest is being taken in the problem, he or she will not pursue or report the matter. The Bill will punish and deter and will also allow us to understand how often these cases occur. We should be provided with accurate figures. It is crucial that we know what is happening, because I suspect that it is happening more often than we believe. Clearly the sending of poison pen letters can affect anyone. My hon. Friend the Member for Sherwood has already referred to the effect on ethnic minorities. I agree with my hon. Friend that those sections of our population often have difficulty settling in. The kind of treatment that reportedly they have received obviously makes life more difficult for them. No one is more aware of how the miners suffered during the miners' strike than my hon. Friend the Member for Sherwood. The nasty aspect about what happened is that it was not the miner who was tackled. My hon. Friend the Member for Sherwood is more aware than I just how rugged, tough and able are our miners. They can stand up for themselves. However, the evil people directed their attentions at the miners' families and children. They focused on the vulnerable. That was a loathsome tactic to adopt and it shows the size of the people concerned. However, it is not simply the vulnerable in society who may be attacked. Famous people have also been attacked. Recently Julia Somerville, the well-known newscaster, received the most dreadful threats. I understand that a poster was found at ITN featuring a photograph of her with the eyes gouged out. Can we imagine the effect that that must have on someone in the public eye? I understand that Anthony Hopkins, the actor has received poison-pen letters for months. He has received death threats and threats of arson attacks. He has had to continue his career in public life with those threats hanging over his head. People who send poison-pen letters also create an effect in the most tragic circumstances. Hon. Members may recall the Penlee lifeboat disaster in 1982 when eight men died in the most tragic circumstances. They may also recall that five of the widows received anonymous letters suggesting that they might be happy that their husbands had died because of the money that they received. Can we imagine the anguish that that must have caused? If it is possible, I came across an even worse case than that. I read a report of a Cornishman who was forced to exhume his 87-year-old mother because of the number of poison-pen letters that he had received suggesting that he had been responsible for her death. I ask hon. Members to contemplate the effect that such letters must have on the recipients. The effects do not last for a day or a week; they last for the rest of the recipient's life. The recipients are permanently scarred with a feeling of guilt. No matter what has happened, they are left with the feeling that there may be some truth in them and that in some way they may be responsible. Those examples serve to show just how essential is the Bill. It is important for us to remember that these evil and cowardly acts have a terrible effect out of all proportion to the effort needed by the perpetrator or, until now, the punishment that he or she will receive if caught. That is why I am delighted that my hon. Friend the Member for Sherwood has introduced this Bill. I congratulate him on the sensible use that he has made of his fortune in coming sixth in the ballot. Neither my hon. Friend the Member for Derby, North (Mr. Knight) nor I have been lucky enough to come in the top 20. However, I am delighted that my hon. Friend the Member for Sherwood has succeeded in the ballot and has used his opportunity to introduce this Bill. I sincerely hope that the Bill receives a fair wind and becomes law as soon as possible.
Hate mail is a reflection of the seamier and viler face of human nature. It affects many ordinary people. It also affects many prominent people who appear on our television screens. I can attest from my time dealing with much of the correspondence in No. 10 Downing street that Prime Ministers receive much hate mail, or rather, the poor Garden room girls receive that mail and are affected by it.I do not know what possessed an American lady to send her late husband's ashes to President Reagan. When the correspondence unit in the White House examined the offending article one hot, sweltering Washington afternoon, a high-powered fan took up the ashes and dispersed them around the room. The poor lady never received her husband back. All hon. Members will have received letters from crackpots like that. I hope that hon. Members will have filed them deeply and in an appropriate quarter. All hon. Members will have received letters from constituents expressed in blunt and hard-edged terms. I understand that hon. Members are supremely sensitive souls and will suffer an element of distress when they receive such letters, especially if there is an implied threat that the vote of that constituent will be placed elsewhere. Of course, it would be very bad politics to arraign and fine one's constituents. However, it would be bad law if hon. Members were enabled to do that. I am glad that it will be up to the courts, and not the recipients, to determine whether such letters are grossly offensive or indecent. I hope that the courts will draw a very sensible line and exclude letters or communications that are suffused with frankness or fair comment. The old Latin tag, "de gustibus non est disputandum," should be remembered: in other words, one should not argue about taste. Unfortunately, the courts will have this difficult problem, and I hope that they will fulfil their role properly and sensitively. It is right that they should do so because many people are over-sensitive and take offence when no offence is implied. It will be unhelpful if the courts are over-loaded with trivia or with imagined offences of imagined threats. I welcome the Bill because it will root out one element of maliciousness that affects our present-day society. The links between us all, for whatever reason, seem to have lessened over the years. People have less respect for one another and for other people's rights and feelings. If the Bill is enacted, it will combat one manifestation of this maliciousness, but it will highlight another which remains — the maliciousness and indecency of much of our gutter press. The freedom of the press carries a responsibility with it.
The Right of Privacy Bill is listed on today's Order Paper. I have introduced that Bill to deal with the way in which the freedom of the press has been subverted in some quarters to destroy individual freedom. Does my hon. Friend agree that the freedom of the press is precisely to protect individual freedom, but that it is frequently used nowadays to produce the contrary result?
My hon. Friend's contribution adds to the debate. I am sorry that his Bill is No. 13 on the Order Paper and that, sadly, it may not be reached today. The House and the country would appreciate a discussion of that Bill. I hope that he will bring it forward again at a later date.The thrust of the Malicious Communications Bill is excellent, but the drafting will need careful scrutiny and tightening up. For example, in clause 1(2), a person may not be guilty if he uses a threat to reinforce his demand and believes that he has done so with reasonable grounds. I have much experience of people with bees in their bonnets. They always genuinely believe that they have reasonable grounds for their threats and demands. If such people are to be convicted, there is a presupposition of objectivity on their part, when in fact it is the lack of objectivity on their part that has led them to commit the offence. That does not detract from the need for the Bill. If, because of the nature of this place and its processes, my hon. Friend's Bill is delayed, perhaps its provisions could be incorporated in the Criminal Justice Bill, on the Standing Committee of which I have the honour to serve.
I wish to take further my hon. Friend's point about subsection (2). I hope that he is not suggesting that that provision should be withdrawn from the Bill. Let us say, for example, that a debt is owed. The date by which the debt should be paid passes by, so a letter is sent to the debtor threatening court action unless the money is paid. However, let us suppose that, at the same time as the letter is posted, the debtor posts the money back to the sender of the letter, the person to whom he owes the debt. In that case, when the letter arrives, it is clearly a threat made after the money has been paid, but written when the person thought that he had reasonable grounds for sending it. Surely, if that provision were withdrawn from the Bill, that person might be in difficulty.
I am seeking to establish an objective rather than a subjective test of what is reasonable. That is a matter for the Standing Committee.
I welcome the presence of my hon. Friends the Members for Warrington, South (Mr. Butler) and for Derby, North (Mr. Knight) on the Standing Committee of the Criminal Justice Bill. Does my hon. Friend the Member for Warrington, South accept that, given that the measure started as a modest little Bill and has now grown to 158 clauses, the Government are unlikely to welcome any additional clauses being tacked on at this stage? As the Minister in charge of the Bill, I am bound to say that an extra one or two clauses may be the straw that breaks the junior ministerial back. Does he agree that, with the all-party support that I hope the Bill will attract, it should make rapid progress towards enactment in the normal way?
I accept my hon. Friend's strictures. Like him, I have no desire to be stuck in Committee during late nights and early mornings for ever and a day.
And listening to me for hours and hours.
I am sure that I shall enjoy the many discourses of my hon. Friend. However, the Bill is important, and if, because of the processes of this place, it is thwarted, it could easily be tacked on to the Criminal Justice Bill. That is a long Bill, but I suspect that even my hon. Friend will add a few extra clauses. An extra few per cent. added to that Bill would be no great detriment to our proceedings in Committee. I hope that the bill will be passed today, and, if not, that it will be tacked on to the Criminal Justice Bill.
As my hon. Friend the Member for Suffolk, Central (Mr. Lord) said in his excellent speech, the incidence of poison-pen letters is sadly on the increase on a very sharp curve. He mentioned the figure of 200 per cent. over the past few years. That figure is the reason why my hon. Friend the Member for Sherwood (Mr. Stewart) has introduced the Bill and I congratulate him on doing so. It is clear that there is a pressing need for the Bill, and that is shown by the fact that it has all-party support.I should like to start by defining the word "threat". The House may feel that that word will not admit of much definition, but it does. My dictionary defines it under three sections. The first states that it is
The second definition states that it is"An expression of an intention to inflict pain, injury, evil, or punishment on a person or thing."
The third definition states that it is"An indication of the impending arrival or occurrence of something harmful or undesirable."
Many unpleasant things are included in the word threat. There are two main types of malicious communication, known and unknown. As hon. Members have said, we receive malicious and unpleasant communications. I do not mind that, provided that I know who sent them. We are fair game in this place. People can write us hard and unpleasant letters and, provided that they are not gratuitously unpleasant, we can handle them. I recently received a letter from a constituent who wrote to me at great length. He had several complaints. As is my wont, I took them up with the various authorities. In response to that one letter I had to send out three or four letters to different authorities, councils and groups. As is also my wont, I sent my constituent a letter telling him what I had done and that, when I had received responses, I would contact him again. I then received another letter from him saying how remarkably stupid it was of me to have done all that. He said that if he had wanted to write to those various groups he would have asked me to do so, or he would have written to them directly. He ended his letter by saying "Your constituents must think that you are the most gullible Member of Parliament." That was within the first fortnight of my being elected, so I wrote him a very short, sharp letter saying, "I have been doing my best to help you, you wretched man, and if that is your attitude, I will have nothing more to do with it."A person, thing or ideas regarded as a possible danger; a menace."
That reminds me of the story about the late Rab Butler, who, on receipt of similar letters, used to answer by saying, "Thank you for your letter of such and such a date. I have wasted little time in reading it."
I thank the hon. Gentleman for his intervention. We certainly have a great deal to learn in this place, and that is just another item of knowledge to be added to the store.Having dealt with the constituent in that way, I retired to the Tea Room, where I recounted the tale with great glee. My more experienced colleagues shook their heads and told me that I had been "courageous". Anyone who watches the well-known programme, "Yes, Prime Minister" knows perfectly well what that word means, and I quaked in my shoes for several days afterwards. However, I am happy to tell the House that that man has not bothered me again. As I have said, when one knows who has written that sort of communication, one can deal with it. The difficulty arises with anonymous communications of different types. My hon. Friend the Member for Suffolk, Central mentioned the well-known television news presenter who was sent a poster of herself with the eyes gouged out. That is peculiarly unpleasant, and I am sorry to say that that sort of thing is not unknown among famous people. I understand that when Shirley Williams was a Member of the House she was sent a packet containing 30 pieces of silver. — [Interruption.] The hon. Member for Birmingham, Erdington (Mr. Corbett) thinks that that is all right. Had that former Member of the House been of a capitalist disposition, she would have welcomed the arrival of that packet. However, we all know that the fundamental message behind that is thoroughly unpleasant. My hon. Friend the Member for Suffolk, Central also mentioned the Penlee lifeboat disaster. The widows of those who died so tragically received poison-pen letters. I am sorry to say that that sort of event is not confined to major disasters such as that. As I understand it, such events occur after any sort of disaster and those suffering deeply tend to receive that sort of letter. It astonishes me that there are people in this country with warped minds who can take advantage of that sort of tragedy and add to the suffering. I am a little worried about definition and how the Bill will be interpreted. For example, if I receive a letter saying that the branch of the beech tree overhanging my house is about to fall off, is that a malicious communication, a statement of fact or something else? We all know, following the October storm, that branches on beech trees have a habit of falling off in high winds. Indeed, in the days when the countryside was thickly populated with elms they were notorious for dropping limbs, for no apparent reason, even on the calmest days. Would it be a threat to say that the limb on a tree is about to fall on to somebody?
As my hon. Friend knows, I have some arboricultural knowledge. He is right to say that the branches of elm trees frequently drop off in still weather. However, I am sure he will appreciate that there are few elm trees left. The beech is not peculiar in the fact that its branches fall off in high winds. I would not want people with beech trees in their gardens to feel that they should rush out and start taking surgical action. My hon. Friend might be interested to know that, legally—I am not a legal man— if one's attention has been drawn to a tree and it has been suggested that it might be dangerous, one is more liable if anything happens to the tree than one would be if its condition had not been brought to one's attention.
I thank my hon. Friend for his helpfulness. I certainly did not want to slander beech trees. It is perfectly true that beech trees suffered badly in the drought of 1976. They are thin barked trees and many of them died in that drought and have suffered since.
On a point of order, Madam Deputy Speaker. A moment ago I tried to leave the Chamber but, unfortunately, I found that the door on the right of the Chamber was locked. I do not know the reason for that. I would be grateful if somebody would look into the matter, so that I am able to leave the Chamber to come to see you by way of the back of the Chair.
It would be a pleasure to see the hon. Gentleman. I am sure that any problem with the door will be taken care of right away.
That door is probably made of beech and has locked itself in protest at my remarks.In 1986 my local council, the London borough of Waltham Forest, returned a Labour majority, and that council brought in a 62 per cent. rate increase. There was an enormous amount of popular fury at that whacking great rate increase. There were demonstrations and protests by 5,000 people at a time outside the town hall. I am sorry to say that there were manifestations of malicious communications in one form or another against certain Labour councillors. For example, the leader of the council had a fire bomb thrown at his front door. I wonder whether that could be regarded as a malicious communication. In my view, it could and should be. There is something else that is germane to the Bill, and it is something that truly horrifies me as well as the people of Waltham Forest. A long-standing Labour councillor, Councillor Vi Smith, who has been on the council for many years and is well liked and respected throughout the borough—
Does she do kissagrams?
She is not the type of lady who would do kissagrams, I am sure of that.That councillor received a great deal of poison-pen mail. There seemed to be a campaign against her, and it culminated in some sick people delivering a coffin to her front door. I am sure that the House would agree that that sort of thing is intolerable and thoroughly appalling. I hope that that sort of item will be caught by the Bill. It is a matter of definition. I hope that if the perpetrators of that sort of outrage were apprehended, the court would hold that they would be caught by the Bill.
That again raises the question of what is reasonable and what is not. I remember the devolution campaign in Wales. I was very much involved in that. After the referendum in Wales the Secretary of State for Wales at that time, the right hon. and learned Member for Aberavon (Mr. Morris), looked at the figures, which were disastrous for him. He said, "When you see an elephant on your doorstep, you realise that it is there." In the subsequent election campaign we hired an elephant. The cost of the elephant was quite enormous, so we had to divide it between three constituencies so that it would not overlap the electoral expenses. We took the elephant to the doorstep of the Secretary of State for Wales. I would not regard that as malicious. I hope that a distinction will be made between what is reasonable and what is malicious.
It largely depends on the elephant and its disposition. It would be interesting to know whether, if it trod on the Secretary of State's toe, it could be held to have done so with malicious intent.
My hon. Friend may recall that on at least two occasions people paid their electricity bills by writing on the side of an elephant. If they wrote a message, could that he a malicious communication?
I should like to think that it could.Different types of letter are sent to famous and ordinary people. Letters are sent to famous people to cut them down to size, to call them silly names or to make them feel small. Those sent to ordinary people are merely letters of denigration. They tell them how foolish they are and make suggestions such as, "You are having an affair with so and so," and are sent to try to bring people down to the sender's level. People who send malicious communications are meddlesome and cowardly; people who send anonymous letters are cowards. Those who write some sort of threat, complaint or insult cannot bear for it to be shown in public what sort of people they are. How should we cope with those letters? The answer is to get in touch with the police straight away. If anyone receives a malicious communication, in whatever form, he should contact the police straight away. The Bill will give the police a weapon at hand to deal with it. I have defined the word "threat", but there are different types of threat. There is the veiled threat. Will such a threat be caught by the Bill? It would be for the court to decide whether a threat was a veiled threat and whether it was caught by the Bill. However, I wonder whether it could be defined more sharply. There is the idle threat, with which we are all familiar. We are always idly threatening each other in this place, but I do not think that that would be, or need be, caught by the Bill. There is a further type of threat. Again, I return to definitions in the Bill. If someone set his dog on someone, would that be caught by the Bill? Clause 1(1) refers to,
Could a person who threatens to set a dog on someone be defined as sending? Paragraph (a) of clause 1(1) begins"Any person who sends to another person".
Could a dog be defined as "or other article"?"A letter or other article".
Will my hon. Friend bear in mind that the appropriate penalty under the Bill is a maximum fine of £400? Surely the example that my hon. Friend has cited is an attempted assault, which carries a much more severe criminal penalty. Therefore, the Bill would be unlikely to be used for that purpose; there are other elements of the law that would help in that respect. I do not wish to interrupt my hon. Friend as he is going down this interesting path, but I do not think that it will affect the Bill very much.
I was about to talk about the dog barking or growling.
My hon. Friend is developing an interesting line of argument. Unfortunately, I must disabuse him of something. It would be extremely difficult for a dog, unless is was extremely small, to be ejusdem generis as a letter. The words "or other article" must be construed, as we put it in our arcane language, ejusdem generis—of the same kind of type—as a letter. I cannot imagine a dog that would look very much like such an article. Perhaps my hon. Friend will give further examples that will help me to understand his point a little better.
I thank my hon. Friend — my learned Friend — for that lesson. I doubt whether it would have any effect on the dog to mutter ejusdem generis at it.
My hon. Friend has raised an interesting point. What will happen if the dog has a threat tattooed on its side?
That would depend on what the dog was called. If it were called "killer" it could be construed as a threat.
A previous hon. Member, Mr. A. P. Herbert, drew the attention of the House, not to threatening dogs with unpleasant letters on them, but to something far worse—threatening letters put on the side of a cow, which came from the Inland Revenue. Would my hon. Friend regard that as a malicious communication?
I am very fond of cows. I should not like to think of any cow as being malicious, except when it twitches its tail across one's face at 5.30 am when one is about to milk it. I remember that in that case the cow had a cheque made out on it for a certain amount of money. I would not describe that as a malicious communication.
With regard to "a letter or other article", does my hon. Friend agree that the other article could be a parcel? It is conveyed by the Post Office, and that parcel might contain a dog. We should not rule out the dog at this stage.
We seem to be dogged by this subject. I agree with my hon. Friend, but I believe that there are regulations about sending live animals through the post. However, if it were possible, the parcel with the dog inside could be defined as an article that conveys, not a message that is indecent or offensive, but certainly a threat.I should like to mention one or two incidents that I have had when I have been on the road. I tend to travel to the House on a bicycle. In the course of my journey I am quite frequently carved up by motorists, sworn at and sometimes threatened. I had occasion today to swear at a motorist who nearly knocked me off my bicycle on a sharp corner. Having sworn at him, I was about to threaten him when I rembered that I was due to speak on the Malicious Communications Bill. I thought that I had better contain myself, so the Bill has done some good in that regard. I was involved in another incident a few weeks ago, from which all hon. Members and members of the public could benefit. I was travelling along Picadilly on my bicycle when a taxi shot out in front of me without any warning — taxi drivers always shoot out without any warning—and stopped. I had to jam on my brakes to prevent myself running into it. The taxi driver pulled down his window. I opened my mouth to tell him what I thought of him and cast aspersions on the legitimacy of his ancestry, whereupon he said, "I am so sorry." That entirely took the wind out of my sails, and I commend that course of action to the House.
I congratulate my hon. Friend the Member for Sherwood (Mr. Stewart) on bringing forward the Bill, and on the skill and clarity with which he presented it. In his constituency he is known as a notably effective constituency Member.Hon. Members admire those representing all political parties who, against the odds, and against the predictions of professionals and political journalists, manage to win and to retain seats when that was thought to be impossible. My hon. Friend, by 650 votes in 1983, snatched a seat which the hard-bitten professionals at Central Office said it was impossible for him to win. To my great pleasure, he increased his majority to 4,495 in 1987. His constituency work is effective and efficient, and Ministers know that he pursues constituency cases in that way. His style, in attempting to deliver something useful to society in an effective way is characterised by his choice of subject for his Bill. I hope that it will receive all-party support and will quickly and rapidly pass into law and effectively help those who are being persecuted by malicious communications. However hurtful malicious communications are, no one could say that hate mail is at the gravest end of the spectrum of human behaviour. It is vicious, harmful and without excuse. As my hon. Friend the Member for Suffolk, Central (Mr. Lord) said, when it is anonymous it is particularly unpleasant, yet it is not the most serious abuse. However, the Government agree that it is serious enough to be made a criminal offence. In its admirable report on the subject in 1985 the Law Commission exposed a considerable gap in the existing law which allows those who use such repugnant means of communication to escape punishment. I fully support, and the Government fully support, my hon. Friend's attempt to plug that loophole. It has been pointed out by my hon. Friends who have spoken that malicious communication can be sent in all sorts of ways. The criminal law already catches the sending of some kinds of material. The threat of violence is already caught by the present criminal law, but there is no prohibition whatsover on the sending of a wide range of material with malicious purpose. My hon. Friend the Member for Sherwood does not consider the existing state of affairs to be satisfactory, and I entirely agree with him. We have all seen well-publicised examples in recent months and years of the dreadful effects on individuals and their families of malicious communications sent through the post, whether the victims are ethnic minority leaders, non-striking miners—who suffered so terribly during the recent pit strikes—or national figures in the public eye. From time to time all Members of Parliament receive what might be termed hate mail. My favourite, from a major in Abingdon, was a letter that arrived on a day when I was in my constituency. I did not see it until my assiduous private secretary had already replied on my behalf. The letter from the nameless major was very brief. In regard to my political future, he wished that I would speedily be dismissed from my ministerial job by the Prime Minister. As for my personal future, he enjoined my private secretary to poison my tea with rat poison. My private secretary had written back saying,
There are ways of dealing with such letters, although I am bound to say that the response from the late Lord Butler which the hon. Member for Erdington drew to our attention was perhaps the best example. The Bill sets a new boundary to the territory that is on the outer fringes of what is acceptable behaviour in contemporary society. It draws a boundary around what is acceptable behaviour and casts outside that boundary matters where criminal law should have effect. However, we must be careful not to make criminal activities which most people would regard as legitimate. None of us would want to see, for example, trivial private quarrels brought into the courts. The Law Commission recognised the pitfalls of drawing any new offence too wide. My hon. Friend the Member for Sherwood has wisely based his Bill on the commission's proposals. The essence of the behaviour that my hon. Friend seeks to outlaw, what makes it criminal rather than merely undesirable, is the malicious purpose in the mind of the perpetrator. That is where it starts. We are not after the form; we are after the perpetrator. That is the key to the Bill."Your letter has arrived on a day when Mr. Patten is in his constituency. I know that he will be most grateful for the constructive suggestions contained in it."
I am concerned about one point in the Bill, which I may have to refer to later. Could the words or the article concerned include newspapers and periodicals? It is just possible that, despite the point about ejusdern generis as it applies to letters and dogs, newspapers and periodicals could be caught by the Bill. That would represent a serious problem which I shall explain later, but I would be interested to have my hon. Friend's comments.
My hon. Friend makes an interesting suggestion. Perhaps my hon. Friend the Member for Sherwood will have the chance to respond to it. If we make rapid progress this morning and reach my hon. Friend's Bill, which is placed 13th, he may have the opportunity to discuss the matter later. None of us would want to stand in the way of speedily reaching a discussion on that point.
I know that my hon. Friend the Minister was in the House when I spoke earlier this morning. Will he answer my question about a person who sends a letter that is clearly threatening and abusive from his holiday address in Spain? Would such a person—I suspect not—be caught by the Bill?
Such a person might well be caught by other measures presently going through the House, such as the extradition procedures in the Criminal Justice Bill, which is in Committee, of which my hon. Friend is a distinguished member. If a malicious communication was made, it might be thought to be something to which extradition could apply. However, as my hon. Friend knows from his appearances in Committee, the list of extraditable offences is to be abolished and a no-list system is to apply to fairly serious crimes punishable by imprisonment for 12 months or more. My hon. Friend's example would not be caught by that measure.It is right that the offence should be committed by the act of sending the article, not by the sender's success in causing distress. We are seeking to get at the malice involved in sending the article, not to measure the success in causing distress by the sender. That would probably be impossible. We certainly would not be justified in creating the offence if the suffering caused by such behaviour was not serious, but it is serious. All my hon. Friends who have spoken have attested to that. It must be very hard to imagine the grief of a woman who receives a letter telling her, entirely falsely, that her husband who is on a business trip abroad and is out of contact, has been killed. Such cases have been reported and such letters have been circulated. That is the offence that the Bill seeks to catch. Equally, it is hard to imagine the fear felt by a family that receives letters making racist threats. This category of letter would be defined as entirely abhorrent. People who set out to cause such suffering need to be restrained by the criminal law. That is why I believe that the Bill presented by my hon. Friend is exactly right in trying to deal with such offences through the criminal law. We have no evidence, nor did the Law Commission in its excellent 1985 report, that there is a major epidemic of poison-pen letters. It is difficult to determine the number of poison-pen letters sent in any one year, but there is enough evidence to show that there are a sufficient number to justify introducing this offence. My hon. Friend the Member for Sherwood has made it clear that he is seeking to change the law because of the behaviour involved in sending such letters and that this should be an offence, however small the number of victims in any one year. We should stamp this out as soon as possible. Although—
It being Eleven o'clock, MR. SPEAKER interrupted the proceedings, pursuant to Standing Order No. 11 (Friday sittings).
Birmingham Children's Hospital
(by private notice): To ask the Secretary of State for Social Services if he will make a statement on the decision of the Birmingham children's hospital to halt the admission of emergency cases requiring intensive care.
I understand that the doctors at Birmingham children's hospital — I emphasise that this decision was taken by the doctors at the hospital—have decided that, because there are a number of children awaiting cardiac surgery at Birmingham children's hospital, it would not be right to delay operations by admitting further patients who need to be in intensive care beds. Therefore, they have made arrangements for a limited period that any emergency admissions requiring such intensive care facilities will go to hospitals in nearby regions or to Great Ormond Street hospital.
How many more children have to die in Birmingham and the west midlands before the Government ensure that there is cash to give those children the life-saving operations that they need when they need them? Will the Minister confirm that more than 100 innocent children are now in that tragic queue at the hospital, the doors of which have been slammed, and some will certainly die before they are admitted? Will the Minister now undertake to contact the regional health authority to agree an immediate allocation of funds to ensure the reopening of this hospital for the benefit of the children in Birmingham and the rest of the west midlands?
It is not a matter of cash or resources. Nevertheless, discussions are taking place with the regional and the district health authorities about the level of facilities that are available for paediatric cardiac surgery in Birmingham children's hospital. Arrangements are being made in the interim to seek to place these children elsewhere.The hon. Gentleman's rhetoric outruns the reality. In the past two months, December and January, 20 open-heart operations and a further 24 closed-heart operations have been performed in Birmingham children's hospital. Because of the build up of cases there, the doctors have decided that it would be wise, rather than have children either extending the queue at Birmingham children's hospital or having their operations delayed, to make sensible alternative arrangements with other health authorities or with Great Ormond Street hospital.
Has not this measure been taken because of the shortage of skilled nurses? Are not the Government addressing this problem in their proposals for higher pay for nurses who take more skills? Are there not alternative possibilities of treatment in other hospitals, so there is no question that patients will be left without the treatment that they require?
My hon. Friend has put his finger precisely on the point. It is a matter of the shortage of skilled nurses, not cash resources at Birmingham children's hospital. As my hon. Friend says, the Government are taking steps to rectify that shortage.
Why were there no Ministers from the Department of Health and Social Security here yesterday when my hon. Friend the Member for Stoke-on-Trent, North (Ms. Walley) applied for an emergency debate to urge that Claire Wise and 100 other children desperately in need of heart surgery at this hospital be given those operations? What action is the Department taking to ensure that those operations take place? In view of the applications for emergency debates which were made yesterday and in recent weeks concerning this hospital, will the hon. Gentleman arrange for a full statement to be made on Monday by the Department so that the public of the west midlands and elsewhere may know what action is being taken to deal with the obvious crisis that grips this hospital?
I am advised that my right Friend the Minister for Health was on the Front Bench yesterday when this matter was raised. The question of a statement being made on Monday is not, of course, a matter for me, but I am sure that my right hon. Friend the Leader of the House has heard the hon. Gentleman's comments. I repeat that this is a perfectly sensible decision which was taken not by the administrative staff but by the doctors at the hospital to ensure that the queue at Birmingham children's hospital is not prolonged and that delays are not imposed but that the children get the treatment that they need in the hospitals in a position to provide it.
Will my hon. Friend confirm that we are operating at the frontiers of medical technology? The problem is that demand has suddenly been built up by progress in medicine and that, with the best will in the world, it is difficult to respond instantly when a large number of cases emerge because of changes in technology. Is not my hon. Friend the Member for Bromsgrove (Mr. Miller) correct, in that at the heart of the problem is the need for new and additional skills for nursing staff? The review, which is now being conducted as a matter of urgency and which will soon report, will seek to address that problem. Does my hon. Friend agree that it is grossly irresponsible to distress the parents of the children involved by raising this matter repeatedly in a public arena and giving the impression that this problem can be solved by making emotive speeches in the House of Commons?
My hon. Friend has put his finger on the point. I said that the rhetoric had outrun the reality. It is clear that the Opposition are more determined to make political points than to provide care for these children. This care will be provided by the arrangements that are being made. I cannot emphasise that sufficiently.
Of course, I understand that emotion is involved in these matters and it is right that we should remain as objective as we can, but the hon. Gentleman sounds dangerously complacent. If he is saying that he relies on the regrading of the structure and payment for specialist nurses—he seems to have admitted that the shortage of specialist nurses is causing these problems for the doctors—surely he must accept that it will take months, if not years, not just for the pay review to consider the matter but for implementation of the recommendations, even if the Government decide to fund them. Meanwhile, these problems keep cropping up with monotonous regularity. This is not acceptable. What will the hon. Gentleman do about it, and how quickly?
With the greatest possible respect to the hon. Gentleman, he says that it is not acceptable, but I do not believe that it is unacceptable that the doctors in a hospital, faced with a sudden surge of demand while carrying out the number of open and closed-heart operations which I gave in my answer, should make the necessary arrangements with other hospitals and health authorities to cope with that sort of surgery. That is the short-term problem, which I believe is being handled eminently sensibly. There is a longer-term problem in the hospital—the shortage of skilled nurses. That shortage is not confined to Birmingham children's hospital. We are addressing that problem in the longer term as well.
My hon. Friend may know, or may wish to know, that there is a hole-in-the-heart child in my constituency who is currently on the list at Birmingham children's hospital. Does he agree that it would be a good idea for the private sector to give some help to alleviate that problem as it affects those working in that hospital? Could some arrangements along those lines be worked out? Will my hon. Friend be good enough to let me have an answer, if not today then certainly during the next few days?
I shall consult my right hon. Friend the Minister for Health, but I understand that discussions are in train with the private sector to ascertain whether its facilities could be used to shorten the waiting lists at Birmingham children's hospital.
Twice in his replies the Minister has drawn attention, correctly, to the fact that this is a decision by the hospital medical committee—all the senior doctors—and not an emotive or political decision of any kind. It is the more serious for that reason. This decision and the one which I mentioned to the Prime Minister earlier this week concerning Oldham have arisen because of the shortage of money. There are no trained nurses to staff the special beds. The new hospital in Oldham is unable to open all its wards because of the shortage of money. The Minister has taken refuge in the review of nurses' salaries and conditions but, if that review is not fully funded by the Government, the knock-on effect will be even more emergency decisions of this kind. I hope that the Minister realises that when such decisions are made by the hospital medical committee, that makes them all the more serious.
I thank the hon. Member for the reasoned way in which he put his point. I have already spoken about the longer-term problem. The Government and the Department are discussing with the region and the district, the interim problem of the level of facilities provided at the Birmingham children's hospital and whether there is any way in which it can be improved. Intensive care facilities are fully used at Birmingham children's hospital.
They are being closed.
No, they are not being closed. All that the hospital is saying is that it will not accept referrals for cases of paediatric cardiac surgery. If there are other referrals, arrangements will be made with other hospitals in nearby regions or with the Great Ormond Street hospital to provide for those admissions to take place.
Is my hon. Friend aware that some of us who represent excellent hospitals in the regional health authority of the west midlands are getting fed up with the strident and emotional reactions from hospitals in Birmingham? Is it not a fact that if the costs per patient in Birmingham were as low as the costs per patient in excellent hospitals like the Burton hospitals, there would be more facilities and better patient care at Birmingham? Is my hon. Friend looking into the cause of the extremely high costs in the Birmingham hospital?
My right hon. Friend the Minister for Health is concerned about a number of matters in the west midlands region and is having discussions with the region as well as the district about those matters.
Behind the sensible decision that has been taken, is there not a saga of what appears to be neglect over a number of years by the Government, who did not recognise that the advances in medicine would be creating such situations? Will the Government announce, clearly and unequivocally, that, rather than cut taxes in the Budget, they will use the money to put matters right?
The Budget is not a matter for me. My understanding is that substantial extra resources have been made available. The point made by my hon. Friend the Member for Mid-Worcestershire (Mr. Forth) is true. Substantial advances at the frontiers of medicine, have meant that children who, some years ago, would have died can now be treated. As a result, we have a shortage of specially skilled nurses. That shortage has been recognised, and the Government are doing something about it.
Is my hon. Friend aware that, as long ago as 1982, when I held an office in the Department, we were making arrangements, for example, for hip operations? If there was a long waiting list in one hospital, arrangements would be made to have the operations performed elsewhere. Is it not surprising that Opposition Members are putting forward these somewhat strange ideas, because they welcomed such transfers then? I wonder whether they now think that there are votes in opposing them?
The Opposition will have to answer for themselves. It seems sensible that medical staff should make arrangements for children who need this help to have it provided for them wherever it is available.
This is an appalling announcement, yet the Opposition are accused of making political rhetoric. Have the Government no compassion? The National Health Service is not safe in Tory hands. This situation proves that more money is desperately needed in the Health Service and the Minister should pass on to the Treasury the message that it should abandon tax cuts and put money into the NHS so that children do not die—deaths for which the Government will be responsible.
As the House knows, substantial resources have been put into the NHS. I am not sure which aspect of the statement the hon. Gentleman finds appalling. Is it that arrangements have been made in neighbouring health authorities or at Great Ormond Street for these children to be admitted? I do not not believe that that is appalling.
Will my hon. Friend confirm that the problem is not the amount of money but how that money is used? Will he also confirm that the review being undertaken will examine how the Health Service is managed and the competence of the Birmingham health authority?
It is clear from the debates that have taken place and the questions that have been asked that the management of the resources in the NHS is at the heart of the discussions on the future of the service. That is being considered in the review that my right hon. Friend has announced.
Malicious Communications Bill
Question again proposed, That the Bill be now read a Second time.
Although the malicious purpose of the sender is at the heart of the offence that my hon. Friend the Member for Sherwood wishes to create, that cannot be all. The means used must be illegitimate, and that is an important point. Let us take the classic example of a man who seeks to revenge himself on a woman who has rejected his advances by sending her genuine evidence that her husband has been unfaithful. That is malice, and I would deplore it, but I doubt whether the act could be regarded as criminal, although it would be distasteful and morally wrong. On the other hand, if the same man attempted to revenge himself on the same unfortunate woman by sending her false evidence of her husband's alleged infidelity, that would go beyond the boundary of malicious and distasteful behaviour and into that of unacceptable behaviour. It would become an offence under the Bill, and quite rightly. The force of the criminal law should be applied.This is a difficult boundary to set, but I think that my hon. Friend has got it right. It is one of the themes reflected in a number of excellent speeches this morning, from my hon. Friends the Member for Derby, North (Mr. Knight), for Suffolk, Central (Mr. Lord), for Warrington, South (Mr. Butler) and, for Walthamstow (Mr. Summerson), who introduced doggy politics splendidly into areas where I never thought they would go. The theme was reflected also in a number of notable interventions by my hon. Friend the Member for Stafford (Mr. Cash). In an attempt to make sure that his Bill, which is 13th in the list today, is reached, I shall continue to make as much speed as I can, within the bounds of reason. We are fortunate to have had so many excellent speeches and we look forward to the speech of the hon. Member for Birmingham, Erdington (Mr. Corbett), should he be fortunate enough to catch your eye, Mr. Deputy Speaker. My hon. Friend the Member for Sherwood has got it right throughout the Bill. Only those who pursue the illegitimate purpose of causing distress or anxiety by illegitimate and wrongful means should be penalised. As my hon. Friend the Member for Derby, North pointed out, it is important that the person who delivers a grossly offensive letter for the writer, not knowing its contents or the malice that lies behind its contents, will not be caught by the provisions of the Bill. Nor, to take an example that I used earlier, would be the friend who writes in good faith and with honest concern to tell a woman that her husband is being unfaithful if the information on which he relies turns out to be false. The criteria are intent and malice. The bank manager has come into our debate as someone who might be accused of sending malicious communications. We wish to protect bank managers. The bank manager will not be committing an offence if he writes to someone along these lines, "Unless you take action to eliminate your overdraft, your cheques will no longer be honoured." Such a letter might not be appealing, landing on the mat in the early morning, but in the circumstances of writing the letter, the threatening bank manager himself—or herself—would not be threatened by the full force of the Bill, because he could clearly state his defence, provided in clause 1(2), which carefully protects commercial practices. Bank managers have nothing to fear from the Bill.
If the hon. Gentleman wants me to interpret any letters that he has recently received from a bank manager with an eye to passing them over to the relevant authorities, I would be happy to do so.I hope that the Bill receives all-party support and goes through the House quickly, but it is important that we consider its terms with some care.
Will my hon. Friend confirm that the purpose of the Bill is to test the resolve of whoever sends a malicious communication, rather than the effect that it has on the recipient? For example, a truly horrible letter may have not the slightest effect on the recipient, but the recipient may nevertheless feel that action should be taken. Will my hon. Friend confirm that that is possible?
My hon. Friend is right. It does not matter whether any distress is caused. I have to tell the House that, when it was suggested by a constituent that rat poison should be put in my tea, I was not caused any distress but, if a prosecution had been pursued, malicious intent may have been accepted by the courts.The 1985 Law Commission "Report on Poison-Pen Letters" considered these matters. It is an excellent report and we should pay tribute to the Law Commission. It was suggested that it should be an offence in England and Wales — there being an enabling clause to include Northern Ireland—to send or deliver or to cause to be sent or delivered certain types of letter or other article with the intention of causing distress or anxiety. My hon. Friend the Member for Walthamstow is right—it is the intention to cause distress that counts. An offence would be committed when it was the sender's purpose, or one of his purposes, to cause distress or anxiety to the recipient or another person to whom he intended the nature of the contents of the article to be communicated.
I notice that the Bill would not extend to Scotland. We all know that Scottish criminal law is different from that in England and Wales so it would be inappropriate for the Bill to apply to Scotland. May we be assured, however, that our friends in Scotland will have the benefit of similar provisions? I have no doubt that my hon. Friend the Member for Sherwood (Mr. Stewart), who is a Scot, would be keen for that to be the case, although I have to leave that matter to the Committee.
I am grateful for my hon. Friend's intervention. I shall draw his views to the attention of our right hon. and learned Friend the Secretary of State for Scotland, so that suitable account can be taken of them.A theme of the morning has been the type of letter or article that might be caught by the Bill. For obvious reasons, I do not intend to give any examples of grossly offensive or indecent messages, but, under clause 1(a)(i), it would be an offence to send a letter or other article which conveyed a grossly offensive or indecent message. That provision would catch those who maliciously send letters or other items. They include tape recordings, and my hon. Friend the Member for Derby, North mentioned video recordings. It is important to have tests of the nature of the item, and that those tests are objective. It will be for the courts, not the recipients, to determine whether the message is grossly offensive or indecent. We must also consider unwarranted threats. The Bill is well drafted in that it would penalise menacing letters or other material which unreasonably threatened to cause the recipient or those for whom he cares financial or other non-violent harm. There would be defences, for which my hon. Friend the Member for Sherwood has provided. A business man or bank manager who sent a fierce letter would not be guilty of an offence if he could show that he believed that the letter was the most effective way in which to secure repayment of an overdue debt or to stop expenditure where an overdraft was not guaranteed, and it is nothing more than standard commercial practice.
My hon. Friend is drawing a distinction between banks and other organisations which may wish to send such a letter. Does he feel that it might be valuable to ask the joint clearing banks to consider drawing up a code so that the bank manager at Puddletown does not send a letter which is not quite in the spirit of the Bill, whereas a bank manager in High Holborn, who is closer to the centre of things, may know how to do it properly?
That is a valuable suggestion. No doubt those who advise the banks will bear my hon. Friend's suggestion in mind. Perhaps it is a matter which my colleagues in the Department of Trade and Industry should consider for inclusion in their advice to banks.The Bill hits hard at spiteful letters which untruthfully inform a wife that her husband has been killed, for example. The requirement that the sender knew or believed that the information was false ensures that honest error will not be penalised.
I have a question concerning the scope of the matter covered by the Bill. My hon. Friend may wish to think about the issue before answering, and I would be happy if my hon. Friend the Member for Sherwood were to reply to it in his winding-up speech. The Law Commission report said that the Bill would.
What happens if an obscene or threatening message is put on a computer floppy disc and delivered through the letterbox? Is that another form of electronic communication, or would it be covered by the Bill?"exclude other forms of communication, such as those effected by oral means, by radio, telephone or other forms of electronic communication."
I am not torpedoed, but I am holed slightly above the waterline by my hon. Friend's question, which I wish he had not asked. I shall have to leave it to my hon. Friend the Member for Sherwood, whose masterly Bill this is, and who, I am sure, has such facts at his fingertips, and write to my hon. Friend the Member for Derby, North in the most courteous and non-malicious terms than I can manage.
Will my hon. Friend consider whether the Bill should apply not only to material that is false, but to material that is true? The object of the Bill is to deter anxiety or distress suffered by the recipient or his family—that is one of the key questions—and the mere fact that information was false would not in itself be enough. Information that was true could cause just as much anxiety or distress and could be just as malicious and unwarrantable. That is an important point. I would add that the Law Commission referred to this point in paragraph 2.4 of its report and seemed to suggest that it did not intend the offence to be confined exclusively to defamatory material in the nature of criminal libel.
The Government could not accede in every detail to the Law Commission's recommendations. Perhaps I shall be able to deal a little later in my speech with some of the aspects on which we were forced to dissent from the Law Commission's conclusions. On my hon. Friend's first point—my hon. Friend the Member for Sherwood will correct me if I am wrong, and this is an important Committee point — I understand that if the material were true it would not be caught by the Bill.This is a very difficult issue indeed, and I entirely appreciate the reasons why my hon. Friend the Member for Stafford made that point. It is more than just a debating point, because it involves the question of malice and intent. However, unfortunately, information that is true cannot of itself be malicious by anyone's definition. The question whether the dissemination of information that was true could be construed to be malicious would, I suppose, depend upon intentions. That would take us into difficult territory in trying to produce an offence that would not be caught by the defence, "My Lord, I was only saying that which was true, and we should all seek to do that." Let me deal with indecent or grossly offensive articles set through the post. I do not want to pursue the argument whether livestock could be used to convey a message, on which we had a full debate earlier. My hon. Friend's Bill would cover the act of putting a package containing excrement through a person's letter box with the intention of causing him distress or anxiety. The test of the nature of the article is entirely objective.
That famous organ Private Eye occasionally contains advertisements for artificial excrement which one can buy to send to people one does not like. Would that be caught by the Bill?
As an avid reader of the small ads in the back of Private Eye and The Digger, which my private office insists on putting in my weekend box along with other ministerial papers, I am familiar with those advertisements. I doubt whether they would be caught because, using the objective test that the Bill provides, it would be hard to prove that there was malice. The court would probably apply the test: "It was only a joke." However, such an object could be sent as part of a package containing malicious material, such as a maliciously phrased letter conveying false information. My hon. Friend will recall that I said earlier that the package did not have to be wholly malicious in its intention; just one part of it could be malicious. It would be for the courts to decide, on the merits of the evidence.We must also consider the meaning of the word "sends", which has excited some debate, and rightly so. As I understand it, my hon. Friend's drafting of the Bill—again, he will correct me if I have misunderstood — ensures that a person, or indeed, his or her knowing accomplice, who puts his or her letter or article or package of articles through the letter box rather than posting it—one must not forget the possibility of a postman or other person delivering the letter or other article — is caught by the offence. That is important. There will be no protection if the accomplice who delivers the material is a knowing and willing accomplice rather than an innocent postman or deliverer of special packages. For instance, the Bill captures the author of a poison-pen letter who asks an acquaintance to post it for him. The postman or friend might be entirely innocent of the true contents of the malicious or distasteful letter, in which case he would not be penalised under the Bill because he would not have the purpose to cause distress or anxiety. Am I right about that?
I confirm that my hon. Friend is, indeed, correct.
I am glad, because I did not want to misunderstand the purpose of the Bill. It is important to draw attention to a couple of the Bill's other effects. The first concerns the mode of trial and the penalty. We know that the offence of sending a malicious communication can be serious, and my hon. Friend has rightly made it an offence triable only at a magistrates court, with a maximum penalty of £400. When I deal with the Law Commission's recommendations, I shall explain why we agree with my hon. Friend rather than with the Law Commission on the level at which the offence is pitched.Alas, we had to dissent from a number of the Law Commission's suggestions. My hon. Friend's Bill, too, dissents on some six points. Again, if I have it wrong, perhaps my hon. Friend will intervene to put me right because I do not want to misinterpret his interpretation of the Law Commission's suggestions. First, the penalty suggested in the Bill is below that suggested by the Law Commission. Secondly, my hon. Friend feels that the burden of proof that a threat was warranted should be transferred from the prosecution to the defence. Thirdly, the Bill covers certain third party victims. Fourthly, the offence that the Bill would create refers explicitly to the causing of malicious communications to be sent or delivered, which is an improvement on the Law Commission's recommendations. Fifthly, my hon. Friend has omitted the defence of reasonable excuse. I find it hard to imagine how the defence of reasonable excuse could be run in such cases. Sixthly, my hon. Friend has added an important enabling clause allowing for the subsequent application of the Bill to Northern Ireland by the negative resolution procedure. Does my hon. Friend feel that I have correctly interpreted his intentions?
My hon. Friend has, indeed interpreted the Bill correctly.
I am pleased to have that clarification. My hon. Friend's views and those of the Government seem to coincide in many respects.People do not like this offence, and we want to try to stamp it out, but we must get the penalty fixed at the right level. My hon. Friend suggests that it should be fixed at £400. In the trade that is a level 3 fine, and I think that it is probably about right, although we could debate it in Committee. I must explain why we cannot accede to one of the Law Commission's recommendations. We take a serious view of the matter. The Law Commission recommended that the maximum penalty for the offence should be up to level 5, which is considerably higher. It is a fine of £2,000 and/or six months' imprisonment. Why have we decided to support my hon. Friend in his Bill, which carries the £400 fine? It is because the Law Commission's suggestions are somewhat in excess of the maximum penalty for broadly similar offences, For example, section 43(1) of the Telecommunications Act 1984 refers to "grossly offensive" or "indecent" telephone calls, and section 5 of the Public Order Act 1986 refers to using
likely to cause"threatening, abusive or insulting words"
Both Acts carry a level 3 fine at £400. My hon. Friend is right, inasmuch as there is no chance of making a significant distinction between the proposed new offence and the present offences that I have just described. I have not picked them out of a hat. I hope the House will agree that they are relevant offences. The Public Order Act and the Telecommunications Act offences relate very much to the potential offences that we are discussing. It follows that there is no justification for a higher penalty."harassment, alarm or distress".
I hate to put my hon. Friend the Minister to some trouble, but little notes can come via the Box which may help him. I understand that in Scotland the offences that we are talking about are covered by the criminal law and are statutory offences. By the magic means available to my hon. Friend, the information might come about the level of fines that would be imposed in Scotland for similar offences.
That is a test of my memory. I hope that by the end of my speech—no, I think that my memory will fail me. I shall have to write to my hon. Friend.The six months' imprisonment and/or level 5 fine proposed by the Law Commission is the highest penalty available to magistrates. It is usually reserved for quite serious offences which pose a threat to health or safety, or which are liable to cause substantial or direct damage to the property or interest of an individual or community as a whole. It can also be applied to offences when the perpetrators are likely to gain considerable financial profit from their activities. While it undoubtedly causes distress, the proposed offence in the Bill amounts to no more than a very serious nuisance, and I do not believe that it warrants the higher penalty suggested by the Law Commission. That is why we have decided to support the penalty in my hon. Friend's Bill. In the criminal law we need to try to keep penalties for similar offences in line with each other, otherwise we get into substantial difficulties. A higher penalty would be inconsistent with those for similar offences. I thought that it was important to draw to the attention of the House the recommendations of the Law Commission with which my hon. Friend did not seem to agree, and to seek clarification from him. I think that my analysis of his thoughts has proved to be correct. I wanted to try to explain to the House why I felt that the penalties suggested by the Law Commission were a bit on the high side. Having, I hope, satisfied the House why I feel that the offence itself will be properly punished, I should like to say that the balance of the Bill is right and its purpose is right, too. I am sure that my hon. Friend would not claim that it is a major reform of the criminal law. It is not. If the Bill is passed, it will be a small but valuable and justified addition to the criminal law. That is why the Government wholeheartedly support it. The mischief that the Bill will prohibit may not be the worst mischief that people can do to each other, but it is a serious mischief. That is reflected in the maximum penalty that my hon. Friend proposes. The activity is criminal and the Bill will try to deal with it. The Bill will provide protection for those who may be the wholly innocent victims of hatred or malice, and whose lives can be blighted by fear, by unnecessary grief or simply by the appalling and undermining sense that someone, usually unknown, is dedicating his time to making their lives as miserable as possible. Such people exist. It is time we gave society protection from them. If my hon. Friend's Bill is passed, it will be an effective measure, characteristic of my hon. Friend's political career so far, in seeking to be as effective as possible. He wants to give people who recieve such communications effective protection. I entirely agree with my hon. Friend. I congratulate him on introducing the Bill, on his excellent speech and on the clarity with which he put his arguments. I shall support the Bill, and I hope that the House will give it an unopposed Second Reading.
The House will remember Tuesday's historic vote to admit, as an experiment, television cameras to the Chamber. When that motion was passed, many of us hoped that it would have a direct influence on the length of time that hon. Members felt it necessary to speak. I am setting out to demonstrate that I am the first in the learning queue.I congratulate the hon. Member for Sherwood (Mr. Stewart) not just on his luck in the ballot, but on raising what may be a comparatively small but important issue. Probably those whom the Bill seeks to catch are sad and lonely people at war with themselves, often born out of frustration, despair and depression. That loneliness is at its bleakest in many of the pig sty estates in our inner cities, where those people are forced to live. They enter a cycle of despair and depression, which tempts them, and perhaps even propels them, to hit out at random from an isolated and alienated position. That is in no way, a defence for those who originate and send such hate mail, but I think that it is important for us to try to understand their motives. I have as good reason as any other hon. Member for being in favour of the Bill. A lady came to see me at my advice bureau who had lately come out of prison after serving a sentence for a non-violent offence. Over the months, with help from various departments of Birmingham city council, she was able to pick up the pieces and reunite her family that had been split when she received a custodial sentence. Eventually she got a flat in my constituency. Hardly had she put the key in the door and got the carpets down when poison-pen letters started to arrive to remind her of her past. That was bad enough, but such was their frequency and the intensity of the hate in them that the family, once again, were forced to move to another part of the city. None of us would defend such behaviour. I felt sad for the woman and her family and, in a sense, equally sad for the person who had originated the letters. The hon. Member for Sherwood and some of his hon. Friends have mentioned hate mail in the context of the miner's strike. I am not seeking to defend the sending of such mail, but it is important to understand that in industrial disputes, as in disputes between neighbours, passions can be aroused and excited so that people are encouraged to use that form of outlet. I do not want to be misunderstood — I am not seeking to excuse what happens—but perhaps it is partly an explanation. I do not believe that it is right for the Bill to offer the prospect of a custodial sentence for those found guilty of the offence. I believe that it is generally accepted — I know that the Minister shares this view—that there are too many offences on the statute book for which custodial sentences have been considered to be the answer. It is time that we started to encourage the Government to develop alternatives to custodial sentences. In the case of the originators of poison-pen letters it may be that, given some of the motives that I have described, a custodial sentence would be entirely inappropriate. What is needed is the help and advice of some of the caring services and perhaps, in some cases, the offer of treatment for mental illness or disturbance. Does the hon. Member for Sherwood believe that the Bill could be applied to graffiti? I am thinking in particular of tower blocks and the entrance halls and landings of such blocks. Indeed, any right hon. or hon. Member who has such blocks in his constituency will be aware of the problem. Regrettably, it is almost the norm that many walls of those blocks are painted with the most offensive, personally-directed statements such as, "Joe Brown beats his wife" or "Jane Smith is going about with Tommy Brown". I have known cases where such imputations are literally outside the door of the family concerned. In other cases graffiti has been written in the entrance halls, the lifts or the landings. I regard that kind of malicious communication — regrettably a modern form of communication — as being deliberately and wantonly written with the intention of causing distress, anxiety, pain and suffering.
I entirely agree with the hon. Gentleman about the need for fewer people to go to prison and, in particular, with his extremely positive remarks about graffiti. Is he aware that most of the circumstances to which he has referred would be covered by section 4 of the Public Order Act 1986?
I am grateful to the Minister.The Minister, in common with many other hon. Members, will be aware of the enormous amount of hurt, shame and distress that graffiti causes. Graffiti is bad enough in itself. However, I should say, Madam Deputy Speaker, that it is one of my ambitions to meet the person—it must be a man because women are too sensible to do such things—who found a way of putting paint into a can together with a propellant to make it easier for people to engage in such practices.
I agree with the hon. Gentleman about the uses to which such things are put, but will he bear in mind, first, that for those who are forced to engage in DIY under controlled conditions, paint spraying is a valuable thing and saves a lot of argument between husband and wife? Secondly, nowadays, properly used, paint can be applied beforehand which will make the use of graffiti much more difficult.
I am grateful to the hon. Gentleman for pointing that out. I admit that spray cans, like other advances, have a proper and—regrettably—an improper use.Far too often in our inner and outer cities families in ethnic communities are targeted. They feel especially at risk, as the poor social and economic conditions in those areas feed and fuel racial hatred, and picking on people merely because their skins are a different colour provides an outlet for the frustrations of some who see a solution in doing so. Poison-pen letters can and do cause great harm and immense distress within families and to people living in isolation. Typically, they are single parents and pensioners who live alone in anonymous dark housing estates or urban city streets. That is why we welcome the Bill and wish it well for its Committee stage.
I want to pick up the first point made by the hon. Member for Birmingham, Erdington (Mr. Corbett). I hope that the introduction of television—apart from the experiment—will be long delayed and will not change the practices of the House. We should not change our practices to suit the media.I came here today because my hon. Friend the Member for Sherwood (Mr. Stewart) wrote and asked me to support his Bill. I was glad to do so, although I told him I would not be able to be here the whole time. Alas, I did not hear his speech, but I shall take the precaution of obtaining two copies of Hansard so that I can read it on more than one occasion. Last week, I responded to the hon. Member for Cynon Valley (Mrs. Clwyd), whose Bill I came to support, but as it was No. 3 it was never reached and so could not have its Second Reading without a debate. I thought that its principles were good. I wonder whether an amalgam of her Bill and my hon. Friend's Bill could have been found. The House may recall that the hon. Lady's Bill dealt with the right of reply to the press. Many malicious articles appear in the press and the public have no opportunity of defending themselves against them. The point about newspapers, journals and the like was raised earlier in the debate by my hon. Friend the Member for Stafford (Mr. Cash). Why was it not possible to find a way of bringing those two Bills together? To judge from the long title of this Bill, that would prove somewhat difficult, although opportunities might exist in another place, where they are not so bound by the niceties of long titles.
Does my hon. Friend also want to support the principles that lie at the root of my Right of Privacy Bill, which is 13th on the list today? It has the support of no fewer than 265 hon. Members from both sides of the House.
Order. The hon. Member for Stafford (Mr. Cash) is being rather naughty. I was tolerant earlier, but we only have before us the Bill that we are debating, and we must wait patiently for the hon. Gentleman's Bill.
Anything that has the number 13 attached has my support because I was born on the 13th, Alas, I am a realist and I have not had a chance to read the edifying piece of literature produced by my hon. Friend the Member for Stafford.I have looked carefully at the Bill and have tried to see what is behind it. Having done that, I think that the word "malicious" could be construed as meaning evil. The House is very much like a British jury, because hon. Members are drawn from a wide cross-section of the community, people who inhabit the top deck of the Clapham omnibus — if there still is one. However, I doubt that we would respond to a malicious or evil letter in the same way as an ordinary citizen. For that reason, we need to err rather more on the side of severity than leniency. I shall shortly come to the points about fines made by my hon. Friend the Minister. Chain letters are frequently circulated in Britain and seem to go through phases. Some chain letters say things such as, "If you do not send this letter to 20 other people grave consequences may follow." We might think that the grave consequence would be that by putting it in the waste paper basket it might never be recycled. In the eyes of worthy bodies such as the Friends of the Earth, that might be a grave error. However, the average citizen who is not used to that sort of threat—and it is a threat—might be quite genuinely worried. I do not know whether that sort of letter is covered by the Bill, but perhaps the Minister will tell me when he replies. I think that it would, but I should like to know if that is correct.
Does my hon. Friend think that in certain circumstances political literature could be classed as malicious communication? For instance, if with a fiendish grin on my face I put one of my leaflets through a door that I know to be the door of a Labour candidate, knowing perfectly well that he will screw it up and hurl it across the room and probably trip over the cat in his outrage, could that be construed as falling within the terms of the Bill?
Not having drafted the Bill, I can only say that in certain circumstances a leaflet on which there is a grinning face might be taken as an alternative front cover of Private Eye. I leave it to my hon. Friend to decide whether that is a malicious publication.
I am sure that any literature sent by my hon. Friend the Member for Walthamstow (Mr. Summerson) could not be called offensive, although if it contained a grinning face it could be regarded as rather comic. However, my hon. Friend the Member for Walthamstow made a good point and I ask my hon. Friend the Member for Hampstead and Highgate (Sir G. Finsberg) to consider the mushrooming over the last 20 years of parties on the extreme Right and extreme Left. If a party such as the National Front delivered what purported to be a manifesto to the home of a coloured or Jewish person, it might be delivered with the intent of causing distress and anxiety.
My hon. Friend is right. I have an idea, which perhaps the Minister will confirm, that that type of literature may already be covered by various Acts and, presumably, would be referred to the Director of Public Prosecutions who would take action. I see that my hon. Friend the Minister nods in the affirmative. I am glad to know that that point is covered.As my hon. Friend the Member for Walthamstow (Mr. Summerson) said in his intervention, some literature from political parties that are not on the extreme Right or extreme Left might well be malicious. Literature from the party of the red rose which says that the community charge will involve identity cards or that the Housing Bill will mean that private tenants will lose their security of tenure is malicious.
My hon. Friend mentioned the community charge. A leaflet from my local Labour party that is circulating in my area says that all who do not put their names down on the community charge register will not be eligible to vote.
I would regard that as my alternative to "malicious". It is evil, apart from being untrue.We must consider what type of leaflet or other communication is involved. As my hon. Friend the Member for Stafford has said, we must be certain that the word "article" falls within the narrow boundaries laid down in clause 1. My hon. Friend the Member for Sherwood has specified a fine at level 3. My hon. Friend the Minister produced a convincing argument for introducing level 3 rather than level 5, and I think that I agree. But why should we not bring about a happy compromise — in typically British fashion — and make it level 4? I understand my hon. Friend's wish for equivalent types of offence to be covered by the same level of fine. I merely ask him to assure me that if, when his memory is miraculously restored, he finds that the level of fine for similar offences in Scotland is above level 3 he will be willing in Committee to up the level from 3 to 4. We have been given examples of the type of article that might be put through a letter box. I know of cases in which pieces of wood infected with dry rot have been put through letter boxes, and I imagine that they would fall within the definition of a grossly offensive article. If I am wrong about that, I hope that my hon. Friend will consider amending the wording "indecent or grossly offensive". We were talking earlier about the natural processes of elephants, or of other people, being bagged up and put through letter boxes. However, considerable offence and, indeed, danger could be caused if infected wood were left lying around for a few days. The spores could get into the recipient's own wood and cause grievous damage. I said at the outset that I was sad that it had not been possible to amalgamate the Bill with that of the hon. Member for Cynon Valley, which I supported. Indeed, who knows? When I have the pleasure of reading Bill 13—which I certainly shall not do during this debate—it may become clear that it could have been added to this legislation. The more potions that can be mixed together, the better the result may be. Unfortunately, we have not been given the chance. I do not know whether a letter would be caught if it contained a newspaper article that was grossly offensive, whereas the letter itself was not. I am not a lawyer, and I am reading the Bill as a layman. It refers to
Would it be possible for a newspaper cutting, accompanied by a compliments slip— which poses no threat, except to the finger if it is caught on the staple— be defined as an article; and would it be possible for a recipient who found it grossly offensive, or untrue, to claim that the item should be caught by the legislation?"a letter or other article which conveys—
(i) a message which is indecent or grossly offensive; (ii) a threat; or (iii) information which is false and known … to be false".
I do not know whether my hon. Friend has had the opportunity that I have had to read the Law Commission's report upon which the Bill is based. If he has a copy, he will discover that this matter is dealt with on page 15, paragraph 4.10. The Law Commission considered the kind of examples that my hon. Friend has given in which, for example, a letter may be sent containing some kind of excreta, or where a parcel contains no message but has contents that are clearly designed to be deeply disturbing and offensive. According to the Law Commission, those items will be covered by the Bill.
My copy of that report has been read so often over the breakfast table that it is in no condition to carry around.I hope that my hon. Friend the Member for Sherwood and my hon. Friend the Minister will assure me that the examples to which I referred—which are covered in the Law Commission's report—are caught within the Bill very firmly and without any chance of equivocation. Perhaps when my hon. Friend the Member for Sherwood replies he can give me that assurance. If he is not sure, perhaps he will say that he will take steps in Committee to ensure that those points, which are clearly endorsed by the Law Commission, are covered in the Bill. I have already mentioned the distress that can be caused by chain letters. If such letters are within the scope of the Bill, much of the stress that they create will be alleviated. I believe that there must be a link in the sending of chain letters because certain types of chain letter are sent at irregular intervals. If it becomes known that people may be caught by this legislation, there may be fewer chain letters, although the Post Office may regret the loss of revenue. I have referred to Scotland because, as I said, the information available to me is that this type of offence is already caught by Scottish law. I do not pretend to understand Scottish law, but I am told that it works very well. Are there sufficient similarities between the Scottish law and my hon. Friend's Bill to allow people who feel aggrieved or offended by receiving that type of communication to take action? If there are similarities and people will have the same redresses under this Bill as are available under Scottish law, I would be satisfied. That would also satisfy me with regard to the level of fines. This is exactly the type of Bill that should be introduced by a private Member. It fills a gap in legislation. It is basically non-controversial and it does not try to do a job that should be done by the Government. As the Bill has cross-party support, it stands a good chance of becoming law. It is always difficult to decide what legislation to choose if one is lucky in the ballot. I believe that my hon. Friend's decision to pick up this particular ball and run with it was wise, and many people will be grateful to him when the Bill reaches the statute book.
I wish to join other hon. Members on both sides of the House in congratulating my hon. Friend the Member for Sherwood (Mr. Stewart) on choosing this subject for his Bill. The question whether one comes high in the ballot is of some interest to me today, and my hon. Friend has been fortunate in coming high in the ballot. He has chosen an important subject and given a fine explanation of the reasons for his choice. We look forward to hearing from him when he makes his concluding remarks.I had the good fortune to be with my hon. Friend in the United States late last year. It is always a pleasure to be with him on any occasion. That was a particularly enjoyable time, during which we discussed many constitutional questions. The constitution of the United States provides for an approach to the subject matter of the Bill and it is about time that we had similar legislation in this country. Indeed, I would go further and say that, in many respects, I am astonished that we have not done so already. I was delighted to hear from my hon. Friend the Member for Hampstead and Highgate (Sir G. Finsberg) that Scottish law deals with this issue. It is not just a lacuna, but an extraordinary omission that causing distress and anxiety of the kind that the Bill seeks to alleviate has not been made the subject of criminal law. If we consider the long title of the Bill, we see that the key question is whether punishment should be imposed on
That is the crucial point. In an intervention I asked whether the phrase "other articles" might include newspapers or periodicals. We must consider that question in Committee. As many hon. Members know, I am concerned about the right of privacy. Many features appear in newspapers, particularly in certain quarters of the press, which are clearly unwarrantable invasions of people's privacy. Indeed, one of the greatest problems for hon. Members is that we want to protect the freedom of the press and would, therefore, be reluctant to impose any unreasonable and unnecessary restrictions upon the press. On this point, I refer again to Blackstone. Press freedom is for the protection of the individual. The question relevant to the Bill is whether press freedom can, from time to time, invade individual freedom. If it does, Parliament must step in to protect those affected."persons who send or deliver letters or other articles for the purpose of causing distress or anxiety."
My hon. Friend has not mentioned the fact that his Bill is No. 13 on the Order Paper. He and my hon. Friend the Member for Hampstead and Highgate (Sir G. Finsberg), appear to be attached to the number 13. En passant, I understand that yesterday was the 13th anniversary of my right hon. Friend the Prime Minister's leadership of the Conservative party. That is another No. 13 for my hon. Friends to consider. I hope that my hon. Friend the Member for Stafford (Mr. Cash) will not urge, either now or in Committee, that the Bill should cover the press. If he intends to take that line, I could not support that proposal.
I am delighted that my hon. Friend has raised that point, because I was about to deal with it. I am concerned that the principles which underpin the Bill and which I have in mind should not be made a criminal offence. That would be a great mistake. It was precisely that matter, which I raised with my hon. Friend the Minister regarding the definition of the words "or other articles", ejusdem generis with letters, that caused me concern.Following the line taken by my hon. Friend the Member for Hampstead and Highgate in amplification of my earlier points, the question whether a newspaper cutting attached to a letter that falls within the ambit of the Bill is made a criminal offence will have to he looked at carefully in Committee. In my judgment there is no distinction in principle between a newspaper cutting attached to a letter that is sent to cause "distress or anxiety" and the sending or delivering of the newspaper containing the identical information whether it is sent in the normal way through the newspaper vendor or, as so often happens today, direct from the press. I accept that that creates a problem. However, it is our job in Committee to address ourselves to those questions. It would be a disaster for newspapers or periodicals to be found guilty of a criminal offence when, in my judgment, invasions of privacy by the press should be dealt with through a civil action as specified in article 9 of the civil code in France and the first amendment to the American constitution. I do not want to dwell on that point, because to do so would be to move down a different channel. There is another point that causes me some concern in this otherwise excellent Bill. We all know that the Committee stage is provided for the purpose of ensuring that we have a close look at the Bill, line by line. We should consider whether the Bill should cover letters or other articles sent for the purpose of causing "distress or anxiety" but which contain true material. I began by placing special emphasis on the words, "cause distress and anxiety", because what is malicious is the fact that that communication has been provided, packaged and sent for that purpose and no other. The fact that the information is false is, some would say, a question of criminal libel. It is defamatory. However, what difference does it make should the information prove to be true? It may be that the person sending the information has a legitimate public interest in communicating that information. However, an example has been brought to my attention of a communication that has been sent annually, over a period of time, to a certain person. It contains information, some of which may be true and some of which may be false. That raises another problem that will have to be looked at in Committee. A communication can be of a mixed character. It may contain information both true and false. In that instance, on what does the prosecution base its case? Should it be based exclusively on that which is false, or on a mixture of the two? I strongly urge my hon. Friend the Member for Sherwood to speak to his legal advisers in the run-up to the Committee stage. There are some serious problems. It is not simply a grey area. It could render the Bill extremely difficult to operate if such things are not thought through carefully before the Bill emerges from the Committee. I should like to refer to whether it is exclusively the recipient to whom anxiety or distress must be caused or, as it says in the Bill, "to any other person". I gave an example earlier of a family to whom 45 letters had been sent, and a letter in identical terms was sent to all their friends. It is a matter of grave anxiety to the family and all their friends that that communication, which by any standards is malicious and falls within the terms of the Bill, should have been sent. It was not only the recipient who was concerned about it, but all the friends. It was a poison-pen letter aimed at causing anxiety not only to that person, but to all the other people involved—an entire network of friends, relations, children, aunts and uncles. Having had this poignant matter brought to my attention, I am glad to be able to support the Bill. Some hon. Members may recall a film about the sending of white feathers during the Boer war. I cannot remember how many feathers were involved—
It was four feathers.
I have seen the film several times, and one of its essential characteristics was that those feathers were sent by cowards. Those who send malicious communications—they always do so anonymously—have that one prevailing characteristic. It is one of the worst and most pernicious examples of criminal behaviour, and it should be incorporated in an Act of Parliament. The Minister said that he thought that this matter might be regarded as being on the margin of the criminal law, or on the margin of what should be brought within the ambit of the criminal law. I am not sure that I agree with him on that matter, in what was an otherwise excellent speech. The standards of behaviour that characterise people who send malicious communications is a subject that deserves severe punishment. I agree with my hon. Friend the Member for Hampstead and Highgate that the level of fine should be considered carefully in Committee.I referred earlier to the application of the Bill to Scotland. There is a provision in clause 3, which says:
I am not clear what that means, because normally when drafting a "short title, commencement and extent" clause we make it applicable to Northern Ireland. I suspect that the reason is that legislation in Northern Ireland is dealt with by virtue of Orders in Council, and that therefore one must take account of the difference."This Act does not extend to Scotland or, except for section 2, to Northern Ireland."
Does my hon. Friend agree that, apart from any technical considerations, the fact that the Bill states only that Northern Ireland may be covered is rather unfortunate, because of the sectarian and civil strife in Ulster, which has been going on for decades? The Bill is more applicable to Northern Ireland than perhaps to England and Wales. Although I entirely support the Bill, there is another dimension to the problem in Ulster, where there is sectarian bitterness and strife. People may wish to send such communications for reasons that would not appertain to England and Wales, and for reasons that appertain to what my hon. Friend has outlined. Will my hon. Friend comment on that point?
I entirely endorse what my hon. Friend has said so far as it applies to the immediacy of the problem in Northern Ireland. However, I would not draw a distinction between malicious communications from any part of the United Kingdom. In reality, there are probably a greater number of instances of what some people would identify as malicious communication in Northern Ireland, for the reasons that my hon. Friend mentioned.I should like to draw attention to another unusual aspect of the Bill. I wonder whether some of the famous love letters that have been published in the past might conceivably come within the ambit of clause 1(1)(a)(i). Although it would be extremely difficult to weave one's way through that argument, perhaps it should be considered in Committee. The object of the exercise remains to prevent distress or anxiety to the recipient or to any other person, but circumstances could arise in which a person had received a letter and the person who had sent it thought that the recipient might like to receive it and then discovered that he was at the wrong end of a criminal offence. Although that is a rather unlikely proposition, it could be looked at in Committee. Many other aspects of the Bill are extremely interesting, in particular the fact that it is based on the Law Commission's 1985 "Report on Poison-Pen Letters." When the Law Commission produces a report on a particular matter and then appends that report to a Bill, as in this case, it is quite difficult for hon. Members to disentangle those parts of the Bill that relate to the report from those that the Government or the promoter of the Bill decided to disentangle from it. I wonder whether, my hon. Friend in drafting the Bill, no doubt with some advice, was aware of the difficulties that arise in extracting parts from a Bill that was originally drafted by the Law Commission? I hope that he will have an opportunity to talk to the Law Commission about the implications of the Bill as it is drafted. It is important to ensure that the two gell, and that in extracting principles from the body of the report one ends up with the objects that one seeks and does not become ensnared in producing a Bill that covers aspects that one had not intended to cover. This extremely good Bill is in many ways an improvement on the Law Commission's draft Bill. It is more carefully thought through in certain respects, save only those that I have mentioned. The Law Commission's draft Bill contained vague language. Clause 1 stated:
This caused me some concern. Clause 1(2), of my hon. Friend's Bill, which provides a defence for a person who would otherwise be guilty, gives the person who has sent the communication the opportunity to defend himself. In putting such a provision at the beginning of a Bill one raises presumptions that must be overcome, but I believe that, in the majority of cases, the fact that it is a malicious communication will be apparent. The next question to consider will be not whether the person had any reasonable excuse for sending the communication, but whether he can afford himself of one of the defences because there was a legitimate basis on which to send the communication. Such a defence would include the fact"A person who, without reasonable excuse, sends to another any article".
the crucial word is "and"—"the threat was used to reinforce a demand which he believed he had reasonable grounds for making; and"—
I am confident that the Committee, under the admirable guidance of my hon. Friend the Member for Sherwood, will consider the grey areas which I envisage arising from that."that he believed that the use of the threat was a proper means of reinforcing the demand."
Is not this Bill less effective than the Law Commission's draft Bill in respect of clause 1(4)? The Law Commission was of the view that the scale of fines should be level 5, which would be far more appropriate to deal with serious cases, whereas this Bill refers only to level 3, the maximum fine under which is £400, as I am sure my hon. Friend is aware.
My hon. Friend may recall that I alluded to this matter earlier. This activity is not just at the margins of criminal law, but is at the centre of a certain type of criminal action. The Law Commission's suggestion that it should be level 5 is important. I hope that members of the Committee will seriously consider increasing the level.The Law Commission's report deals with what was the Post Office Act 1953 and is now a provision in the Telecommunications Act 1984. Under this Act it is an offence to send by telephone an indecent or grossly offensive message for the purpose of causing annoyance, inconvenience or anxiety. The Bill is needed because it is not an offence to send the same message by other means. I have not had an opportunity to see whether the fines in the Telecommunications Act 1984 are at level 3. If so, that may he the reason why level 3 has been chosen for this Bill, because the draftsman likes to achieve consistency.
The fines in the Telecommunications Act are at level 3.
That is an understandable reason. Last year I served on the Committee debating the Obscene Publications Bill. We had some interesting and useful discussions about the application of that provision in the Telecommunications Act 1984, what it meant and what it was designed to achieve, and what penalties should be applied. It would be a mistake for us to confine the level of the fine in the Bill to level 3 simply because that is the level in the Telecommunications Act, when there is a good case for increasing the fine under that Act. We may have been looking at this problem through the wrong end of the telescope.Clause 1(1)(a)(i) would make it an offence, with the purpose of causing distress or anxiety, to send
a grossly offensive or indecent message. This would catch those who sent letters or other articles maliciously, and we have dealt with whether it should include newspapers or periodicals. It also includes tape recordings, and I was interested to hear the discussion on whether it should include floppy discs. The words "or other article" will he construed as meaning more than just a letter, and I believe that the object of the exercise will be to catch communications which convey information. We need to be careful that it does not simply include information conveyed by physical means. I hope that the Committee will take an interest in the provisions of the Copyright, Designs and Patents Bill that is going through the other place. In an interesting debate, the other place tried to distinguish between reproduction of information by physical means and that falling within the category of a letter."a letter or other article which conveys"
It has been a great delight to listen to my hon. Friend's legal brain this morning. He has gone through the Bill in great detail. I apologise for not having forewarned him of the matter that I wish to raise with him. I should be interested to hear his views on one point. It concerns the phrase "unwarranted threat". It has not escaped my notice that my hon. Friend the Member for Sherwood (Mr. Stewart), who should be commended on bringing the Bill before the House, represents a constituency that was right in the heart of the industrial strife that occurred during the last miners' dispute. It may well be the case—he may wish to comment on it in his winding-up speech—that during that dispute there were many people who were on the receiving end of what we may well consider to be unwarranted threats from people who wanted to coerce them into joining the strike when they did not want to. It is conceivable—
Order. Is the hon. Gentleman making an intervention, or a speech?
I am about to get to my intervention. I am sorry to have gone around the houses a bit, but the point that I would like to ask my hon. Friend is whether he considers it would be warranted or unwarranted for somebody who is trying to coerce someone else to come out on strike to send what is in effect a threatening letter, calling him a scab—
Order. I am sure that the hon. Member for Stafford (Mr. Cash) has got the point.
I am glad to respond to that intervention, because I have miners in my constituency and I made my maiden speech on the miners' strike. I raised the issue of intimidation against my miners and others when I got on the platform in Hamley park in Stoke-on-Trent to challenge Arthur Scargill personally to lay off intimidating my miners. I was aware that a serious quantity of abusive and threatening communication, which caused my miners great distress, was taking place. Some of that communication would have been covered by the Bill. My hon. Friend the Member for Sherwood did much to help his miners during the strike. By following up with his Bill, he will help all miners if such circumstances recur.
I notice that that last exchange woke up the hon. Member for Barnsley, West and Penistone (Mr. McKay), particularly when Mr. Scargill was mentioned.My hon. Friend referred to my question about floppy discs. I have had an opportunity to look at the Law Commission's report, paragraph 4.8 of which leads me to think that they would be included as it says:
That clearly covers floppy discs, which cannot be read until inserted into a computer."The fact that the contents and character of the message cannot be determined until the film is projected or the video tape is played back on a video cassette recorder is, in our view, no more relevant than the fact that the contents of a poison-pen letter cannot be ascertained until it is taken from the envelope in which it is sent."
I listen to my hon. Friend with great interest. There has been an enormous amount of discussion in the Copyright, Designs and Patents Bill on the distinction between forms of communication and reproduction. Whether an article is a visual image, and many other arcane definitions, which I find fairly formidable and which many people find eye-glazing and tedious, have been considered. Nevertheless, such matters must be considered. I am sure that my hon. Friend is on to an important point, because the object of the exercise is to catch the mischief.It does not really matter what form the malicious communication takes if it causes anxiety and distress. That is the object of the exercise that we must all bear in mind. We would not want people to get round the Bill by discovering a new form of communication that it did not catch. I have the greatest confidence that, like Robin Hood, my hon. Friend the Member for Sherwood will ensure that he catches his victims.
I join other hon. Members in congratulating my hon. Friend the Member for Sherwood (Mr. Stewart) on introducing and choosing a measure that has so little opposition. To get a measure on to the statute book is a great achievement for a private Member.I am pleased that, once again, one of the recommendations of the Law Commission has been accepted by the Government as a worthwhile addition to the statute book. The Law Commission does a wonderful job under the chairmanship of Mr. Justice Beldam as it did under the chairmanship of his predecessors. The trouble is that if we ask the Law Commission to examine what is wrong with various parts of our law and expect it to spend a great deal of time working with skill and dedication to produce sensible solutions to the problems only to leave its suggestions to gather dust on the shelf, the intelligent and hard-working members of the Law Commission may easily become disillusioned. One of the great achievements to emerge in the legislative process in the past few years is the importance attached to the work of the Law Commission. I hope that we shall continue to find ways of putting its sensible and constructive proposals on to the statute book.
On a point of order, Mr. Deputy Speaker. This causes me some amusement. I sat down because I thought that my very good Friend the hon. Member for Burton (Mr. Lawrence) proposed to intervene and I am delighted, because it gives us the benefit of his extremely erudite thoughts on the subject. The only question I want to probe—and I do not know whether you, Sir, are in a position to answer it—is whether he intends to make what I was regarding as an increasingly long intervention, or a speech, which would prevent me from coming back on this subject.
I think that my feeling was shared by the whole House. I assumed that the hon. Gentleman had finished his speech and I am afraid that we cannot go back.
I apologise to my hon. Friend the Member for Stafford (Mr. Cash). He ought to know that, however long my interventions may be, they are nothing like as long as my speeches. He should therefore, have no difficulty in distinguishing between a speech and an intervention.This is a small but important Bill about which I have some reservations. It is a civil liberties measure. The right to privacy is a vital part of our freedom, but our freedom exists only if those who would abuse it are restrained from doing so. True liberty gives no licence to harm others, so the law must protect the freedom and privacy of decent citizens. I know that my hon. Friend the Member for Stafford would have wished to say a little more about his own proposed measure, the Right of Privacy Bill, which is rightly arousing much attention in the media and elsewhere. As this is such a sensible and important Bill, protecting the liberty of the individual, it comes as no surprise to me that the Government support it. Happy as our society generally is, there is a dark side. There is hatred and a lack of self-control under the surface, sometimes leading to physical violence. The courts protect the individual against physical violence. Sometimes, that hatred and lack of self-control lead to mental violence, and the law has been less good at protecting the decent citizen against that. The Telecommunications Act 1984 is one example of the way in which the law helps to protect the citizen. It goes a little way. It makes it a criminal offence to send by telephone any indecent or grossly offensive message
But to deliver the same message by other means than the telephone is not a criminal offence, so the Bill fills that important gap. The civil law probably could not fill that gap. The Law Commission looked into the possibility that poison-pen letters could be dealt with better by the civil law, but concluded that it would require a statutory new tort. It also concluded that, in civil matters, the police are reluctant to become involved. Therefore, a protection which might, through the criminal law, be open to the citizen, might be taken away if reliance were placed on the civil law. The unfortunate strong undercurrent of anger in our society manifests itself in all our surgeries. I speak from experience in what is otherwise the tolerant, moderate, reasonable, well-balanced and sensible constituency of Burton, which is what hon. Members would expect, judging by the choice of Member. I continually hear of cases in which there are neighbours disputes—between neighbours on council estates mostly, but not exclusively. Week after week constituents come to tell me of the anger and underlying hatred between neighbours and themselves. That has been growing in the 14 years that I have been privileged to represent Burton. With the breakdown of marriage and the ease with which partners can break up, there is a higher level of men and women being scorned and wanting to get back at their partners. I am also noticing the hate campaigns by jilted partners, wronged partners and partners who feel that the best way to demonstrate their dissatisfaction is the poison-pen letter or harassment. Bitter disputes arose in some of the recent strikes because, from the start, some were likely to end in failure. The miners' strike, which has been mentioned, was never likely to succeed. Those who took part in it and felt driven to do so became more angry as they saw the Government standing firm, so the bitterness that was engendered was great and a considerable number of the offensive mental attacks, which are the substance of the Bill, also sprouted. Anti-semitism seems, once again, to be rearing its ugly head in the world, as it does from time to time with the swing of the pendulum. Although we have no precise idea of how numerous poison-pen letters and similar activities are—because there is no crime, they do not form part of the statistics —my feeling is that there is a growing problem which needs to be addressed. The Bill addresses that problem in a way that is consistent with the Law Commission's recommendations. I welcome the Bill, although it raises some interesting matters of detail, some of which cause me concern. The objective test for what is indecent or grossly offensive, which emerges by implication from the terms of the Bill, is worthy of observation. The ordinary courts have no difficulty in deciding what is grossly indecent or offensive. Even now there are offences that come before the courts —indecency in public places and in public lavatories— for which there is no definition of what is indecent or grossly offensive. However, ordinary people serving on juries and ordinary magistrates know exactly the meaning of those words and there is no problem. The astonishing thing is that the Obscene Publications Act 1964, which has caused so much trouble and taken up so much of our time, tries to define obscenity, indecency and grossly offensive material. However, in the act of definition that Act destroys itself and fails. Once again, when we come to consider the reform of offensive publication law, we must pause to realise that, on many occasions, as with legislation of the type that we are discussing today, it can best be left for juries, ordinary people, to decide the level of indecency and gross offensiveness. If that were the test, it would be a much more effective way of ensuring that the obscene publications legislation—necessary to the country— worked. I am not sure that my hon. Friend has got it right by changing what the Law Commission recommended as the format for clause 1 of the Bill. My hon. Friend's Bill leaves out the words "without reasonable excuse." I am not sure that I understand why those words have been left out. If one is defining an offence and there is a qualification to that offence, the clause that deals with that definition should contain that qualification. However, I am bound to say of the Law Commission's draft that, given the words "without reasonable excuse" in clause 1(1), I do not believe that it is wholly sensible for clause 1(2) to be drafted as it is. As the Law Commission draft had mentioned "without reasonable excuse" in clause 1(1), I should have thought that clause 1(2) should read:"for the purpose of causing annoyance, inconvenience or … anxiety".
I do not know why the Law Commission has drafted clause 1(2) in the way that it has, but, that apart, I believe that the present format of my hon. Friend's Bill, which removes the words "without reasonable excuse", is not good. This matter is tied up with the necessary intent implied in the Bill, and I believe that that should cause us a little further concern. However, before I discuss that problem, may I also state that I do not understand why clause 1(2) of my hon. Friend's Bill uses the words, "if he shows":"For the purposes of this section it is a reasonable excuse if the sender—
(a) uses a threat to reinforce a demand that he believes he has reasonable grounds for making, and (b) believes that this use of the threat is a proper means of reinforcing the demand,but not otherwise."
"(2) A person is not guilty of an offence by virtue of subsection (1)(a)(ii) above if he shows—
and so on. That is a rather unusual form of words—"if he shows". If it means "if he proves"—(a) that the threat was used to reinforce a demand,"
I am thinking aloud and if I am interrupted I shall get it wrong.If it is meant to be the same as "if he proves" —where the law requires, if the defendent has to prove anything, that, unless otherwise stated, it is on the balance of probabilities rather than the burden of proof that applies to the prosecution, which is to satisfy the court so that it feels sure— the clause should say so. Then the courts would not be misled into thinking that the words "if he shows" might mean something less than "if he proves". If the clause means something less than "if he proves", what does it mean? What does "show" mean? How does one demonstrate in court so that one "shows"? There is a dangerous possibility of confusion in that, and I ask my hon. Friend to consult his legal advisers to see whether it would not be better to use the form of words that the courts, the solicitors, the lawyers and everyone understand—the simple matter that one has a defence if one can prove on the balance of probabilities that one believed that one had reasonable grounds for making a demand, or was using reasonable means to reinforce it.
My hon. and learned Friend has answered my question. I was going to ask him what is the difference between "show" and "prove"? Surely, there is none.
The answer, if I have not made it clear, is that the courts have a format that does not normally use the word "show". It is ambiguous and could mean anything, whereas "prove" means only one thing as far as the courts are concerned. It is simpler to have it like that than to invent a new word, or apply old ones in a new context.The third matter that should cause a little concern is the issue of intent in clause 1(2). I understand the reason why it is thought necessary to make this an offence not of strict liability, but one in which the accused must be shown or proved to have intended harm. There are some cases in which a threat might be legitimate if it is a threat of legal action. But the trouble with having an intent in the Bill, framed as it is in clause 1(2), is that if someone is not certifiably insane, but is nevertheless mentally unstable, and believes it is all right to put obscene or grossly offensive tape recordings through someone's door— or excreta, or filthy literature—he is not guilty, because it is a defence for that person to believe that he had reasonable grounds for doing what he did, or that that was a proper means of doing it. So a high proportion of people who will send poison-pen letters or put excreta through the door, or in some way infringe someone's privacy by the excessive degree of unpleasantness envisaged in the Bill, and who are therefore mentally unstable, will be able to say they had a genuine, honest belief that that was the right thing, and everyone will know that they did, because they are mentally unstable, although not insane. In those circumstances there would have to be an acquittal. That makes one wonder whether the number of convictions likely to result from the legislation will be quite as high as perhaps one might expect or wish if one were trying to stop this sort of activity. The alternative is to make this an offence of strict liability. That is to say, there would be no clause 1(2), which provides a defence if the
Therefore, anybody who sent a letter or other article conveying an indecent or grossly offensive message, or a threat or information that is false and was known or believed to be false or any other such article, would be guilty of this offence. That is the alternative if we do not provide defences and do not require the necessary intent. My hon. Friend the Minister said that that is going too far. The trouble is that it would catch the letter threatening court proceedings for debt. The solution would be to exclude letters that threaten legal proceedings. I have not sat down and sought to think about a form of words, but I am sure that a form could be found specifically to provide a defence for dunning letters or anything with a perfectly legitimate reason. That would mean that indecent or grossly offensive messages would not be allowed because, as the Minister said, it is difficult to think of any justification for sending an indecent or grossly offensive message. It would mean that information that is false, and known or believed by the sender to be false, or any article that is indecent or grossly offensive would be banned. However, if the threat was of legal action, which is perfectly proper and fair, it would not have a criminal offence accorded to it. It would be better if the Bill required strict liability in two of its three clauses, so that anybody who sends anything indecent or grossly offensive, or who knows or believes it to be false and is such as to cause distress or anxiety, should be liable. We should make an exception for the kind of activity that we do not think is necessarily worthy of blame. If it is not too late, perhaps that could be considered. That would enable us to get away from the situation in which a significant proportion of those who will be charged could put forward the excuse, "Look, I am not actually mad, but I am mentally unstable and I honestly believe that this is the right way to go about things." In such a case the magistrates would acquit. The fourth matter with which I should like to deal is false information."threat was used to reinforce a demand which he believed he had reasonable grounds for making; and (b) that he believed that the use of the threat was a proper means of reinforcing that demand."
I should like to make a plea to the hon. and learned Gentleman to push forward with his arguments so that the debate may be concluded. I am afraid that if he continues at the same speed we will face the great danger that hon. Members will carry out the unlawful acts that the Bill sets out to stop.
I do not know whether speeding up will stop the unlawful acts, but I think it important that, on Second Reading, these matters are properly examined. If we are to rush through Bills without any discussion, we might as well pack up and go home — and the hon. Gentleman will have wasted his time in standing for election. While I appreciate that there is other business and that we wish to get on, I consider it important to raise these matters, but I shall do so with as much dispatch as I can.The fourth point that I wish to make concerns clause 1(1)(a)(iii), which deals with
I suppose that that covers spiteful letters telling a wife that her husband has been killed on a trip abroad or claiming that her husband is sleeping with someone else—which would cause great anxiety and distress — if the information is known or believed to be false. The courts are getting into considerable difficulties over precisely what is meant by "knowledge" or "belief". I could have brought in a copy of Archbold and a number of other legal tracts, which are becoming thicker and thicker and more and more voluminous as the House of Lords, the Court of Appeal and all the other courts consider what is "knowledge". The boundaries of knowledge have been pushed forward in recent years—or so some authorities say—to involve cases in which the perpetrator is careless whether the information is true or false. Knowing that it is false is one thing; believing it to be false is another; believing that it is probably false is another; yet another is carelessness whether it is true or false. Those categories are causing such difficulties that I ask my hon. Friend to consider with his legal advisers the possibility of simplifying the matter by adding, after the words"information which is false and known or believed to be false by the sender".
the words "or where the person is careless whether it is true or false", so that the question whether a degree of blameworthiness is imported in the provision is put beyond doubt. We could then avoid the need for the case to be stated to the Court of Appeal, and also avoid what every hon. Member seems to wish to avoid—any more money than is necessary going into the pockets of lawyers. When I look at the Bill, I begin to salivate at the words and phrases that would become minefields for the poor prosecutor, or indeed the poor defender, gladdening the heart of any lawyer short of work."information which is false and known or believed to be false by the sender"
Will my hon. and learned Friend allow me to intervene on what I thought to be technically an intervention, although it has now been going on for some time? Does he agree that the real object of resolving the question of what is true, what is false, and so forth, is to prevent the causing of distress or anxiety; and that, if we keep our minds on that, many of the other questions about shades and degrees of knowledge that lie in the sender's mind are less important than the extent to which distress or anxiety is caused to the recipient?
It is not as easy as that. The courts have to consider every element in a crime. Very seldom can they say that one element is not as important as another. They must consider whether there is sufficient evidence that a man believed or knew. It is not simply a question of the amount of anxiety or distress that has been caused. That is a different element. We must be careful to ensure that the legislation that we put on the statute book does not mislead anyone, least of all the courts. We must ensure that all the particular elements are properly worked out and considered for their value and importance.My fifth concern relates to the fines. If someone has a really deep hatred that causes that person to produce very distressing and offensive matter that will cause great anxiety and upset to a former wife, former girl friend, someone who is resisting a strike action or someone whose religion that person despises, what on earth is the deterrent value of £400? Many people, especially if they have a hinge loose, may say, "I haven't got £400, so they will not be able to fine me £400." If someone has £400, it will be worth £10,000 for that person to send such matter. If the armoury of deterrents is to be placed properly in the hands of the courts, we must not limit the level of the fine as low as £400. The Law Commission's proposal for the appropriate level of fine should be applied in the Bill.
Will the hon. and learned Gentleman advise me whether some of the mail that I receive daily would come under the orbit of this Bill? I am referring to the non-replies that I receive from people who clearly have not read the parliamentary questions that I have tabled. I am afraid that the parliamentary answers that I receive to my parliamentary questions rarely, if ever, give me information, especially those from the Department of Energy. On occasions they have certainly caused me anxiety and distress.
I do not want to be in any way discourteous to the hon. Gentleman. However, he seems to want free legal advice from me. I can only tell him that free legal advice is not worth having. If I were to hazard an answer without looking up all the authorities and considering the matter fully, it would not be worth the hon. Gentleman's while to receive my advice. I hope that he will forgive me and not think that I am in any way being discourteous by not answering.
Is it not the case that free legal advice is worth what one pays for it? However, in response to my hon. and learned Friend's comments about the Bill and about level 5, as I understand it, level 5 involves a maximum fine of £2,000. If my hon. and learned Friend is urging that that level should apply in the Bill, he will find many supporters on the Conservative Benches. Does he agree that the offence should carry imprisonment? That point was referred to in the Law Commission's report.
We want to avoid sending people on the borders of sanity to prison if we can at all help it. We should not rush into providing new offences for which to send people to prison when we are trying to keep the prisons as empty as possible instead of filling them up. I might change my view about that in a few years' time if the prison population falls, but at the moment I believe that imprisonment should not apply.I have been trying to end my comments for the past three or four minutes. I believe that the Bill is necessary. It will be beneficial. I welcome it, but I ask that the various points that I have had the temerity to raise might be considered as the Bill passes through Parliament. If there is thought to be any merit in any of my points, and they can be incorporated in the Bill, the Bill might be improved. I thank my hon. Friend the Member for Sherwood for introducing the measure and giving us this opportunity to consider a very important gap that exists in the law at present.
If the hon. Member for Sherwood (Mr. Stewart) has the leave of the House to speak again, so be it.
I shall be brief, because there is much business on today's Order Paper. The hon. Member for Mansfield (Mr. Meale) is anxiously awaiting the debate on his Bill, the Coal Mining Subsidence (Damage and Arbitration) Bill, which I support. I hope that business will proceed quickly to allow us to reach that item.I thank all hon. Members who have contributed to today's debate. I am delighted that the debate has been so favourable. I thank all hon. Members who have voiced their support, particularly the 200 hon. Members who have written to me expressing their support and hopes that the Bill will soon be on the statute book. On Fridays the strength of support for private Members' Bills is judged, not by the number of hon. Members here, but by the number who are absent. If they did not support the Bill, they would be here to vote it down. I remind the House that hon. Members who have supported me are today in their constituencies dealing with other important matters. I thank my hon. Friend the Minister for his contribution and support during the debate and for his counsel in drafting the Bill. Hon. Members will know that I am a professional peasant farmer, experienced in handling some forms of muck, but not able to draft a technical Bill such as we require to deal with the types of muck that we have been discussing today. My hon. Friends in the legal profession have raised some important points about this complex Bill. I assure them that we will take those points into consideration when we debate the Bill in Committee. The House also knows that the hon. Member for Sherwood is very modest. The fact that the Northern Ireland Office was consulted about the drafting of the Bill may have resulted from the fact that I did a phone-in with BBC Radio Ulster shortly after the Bill was published, thus perhaps showing the people of Ulster how advantageous it would be if they, too, were covered by the Bill. I should like to deal with three points raised by hon. Members. First, my hon. Friend the Member for Derby, North (Mr. Knight) asked whether people requiring medical treatment could be ordered by magistrates to undergo such treatment. Unfortunately, under the Mental Health Act 1983, this is not an offence if it is not punishable by imprisonment. Secondly, the comments of my hon. Friend the Member for Derby, North to my hon. Friend the Member for Stafford (Mr. Cash) regarding computer software were entirely correct. Thirdly, my hon. Friend the Member for Hampstead and Highgate (Sir G. Finsberg) was right when he said that the common law of Scotland covers certain aspects of the subject. We shall be discussing other aspects in Committee. However, I have also noted the comments about the level of fines and whether it should be raised from level 3 to level 4. I cannot give any promises about that. We shall also consider the points about infected wood, which could cause serious anxiety. My hon. Friend the Member for Stafford talked about newspapers. The Bill does not cover newspapers, but it raises the question whether somebody picking up and sending a newspaper could be offensive. We shall have to discuss that in Committee to see what steps can be taken under the law. I hope that hon. Members will agree that we have had a good debate. I appreciate the fact that the House has listened to me and I hope that it will now give its full support to this measure.
Question put and agreed to.
Bill accordingly read a Second time, and committed to a Standing Committee pursuant to Standing Order No. 61 (Committal of Bills).
Access To Medical Reports Bill
Order for Second Reading read.
I beg to move, That the Bill be now read a Second time.The long title of the Bill says that its purpose is to
Hon. Members will recall that last year I introduced the Access to Personal Files Bill, which has since reached the statute book, albeit in a greatly reduced form. Originally, that set out to allow people to have access to their full medical files. There is enormous public support for that measure, and a recent survey by the Data Protection Registrar found that 86 per cent. of people asked wanted a right of access to their medical records. They now have a limited right in relation to computerised medical records only, under the Data Protection Act 1984 and I know that the Government are seeking a voluntary agreement to facilitate greater access to other medical records. However, I do not believe that either of those moves deals with the area with which this Bill seeks to deal. I believe that the Bill, although it is a finely focused and modest measure, is necessary to fill the gap that exists. When someone applies for a life assurance policy or a job, he is almost invariably asked to allow the insurance company or the employer to take up a medical reference. On the whole, people have no option but to agree, because to do otherwise could severely jeopardise their job or insurance application. They sign a form which permits the company to contact their current doctor, or any doctor who has treated them previously, for information about their medical and social history. In doing that, although they may not realise it, they waive their right to have kept secret the information that they have given to a doctor in confidence. The doctor can reveal whatever he or she knows about the patient, whether it relates to a current medical condition or one that has long since passed, whether it is relevant to the applicant's current fitness or not, and even if it relates to personal matters that do not involve a medical problem of any nature. My Bill would allow people to see the report that the doctor proposed to send or had sent to an insurance company or employer in those circumstances. Many doctors are concerned that their patients do not appreciate the real significance of the consent form that they sign. A patient may assume that the doctor will be asked merely to confirm that he, the patient, is not suffering from a major illness. That is a perfectly reasonable supposition for him to make. In fact, the doctor may be asked detailed and intrusive questions. I have seen some such questions that have caused me concern and I shall share one example with the House. A medical practitioner was asked to"Establish a right of access by individuals to reports relating to themselves provided by medical practitioners for employment or insurance purposes and to make provision for related matters."
I doubt whether there are many hon. Members on either side of the House who would willingly submit themselves to the full rigour of an investigation on those terms. The current concern of the insurance industry is AIDS. As an illness it is causing us all concern, but the insurance industry's concern with AIDS has led to questions about patients' sexual behaviour, designed to discover whether the patient is a homosexual or is promiscuous. It may be that employers will soon be doing the same, if they are not already doing so. Most people assume that their medical records contain nothing but medical information. They do not realise that information about their family, their personal life or sexual relationships may well have been recorded at an earlier stage, let alone that the doctor may be passing such information to other bodies without their knowledge. Moreover, they have no guarantee that the information will not be passed further. Most insurance companies have a medical officer to whom the GP's report usually goes. He receives the information and deals with it properly within the usual terms of medical confidentiality. Medium and small-sized employers do not always have such a person. Sometimes, the GP's report can be sent to the personnel department and it may be handled by people who have no tradition of protecting the confidentiality of medical information. There are specific reasons for concern if doctors are allowed to write reports to other bodies which their patients cannot see. First, when people realise that information that they have given to a doctor in strict confidence is in danger of being passed on in this manner, they will become extremely cautious about disclosing sensitive matters to their doctor. That can only be harmful to the long-term doctor-patient relationship, and it may cause problems in securing accurate diagnoses. Secondly, there is the danger of errors being passed on, particularly by a doctor who does not have direct personal knowledge of the patient and must rely on what is written on the medical record. Clerical errors occur, and some that I have seen have caused me great concern. One doctor who examined the accuracy with which he summarised his patients' notes found that he had made errors in 27 per cent. of his diagnoses, and he regarded 58 per cent. of those errors as fairly serious. Thirdly, it is by no means unknown for a patient's medical notes to contain information about someone else whose notes have been filed by mistake. The Campaign for Freedom of Information has described several such cases. There was the example of a perfectly healthy woman who was wrongly described as a heroin addict. A young student was falsely described as suffering from convulsions and of having had an operation to remove a brain tumour. Another perfectly healthy woman who visited her doctor before applying for a life assurance policy learnt that the notes forwarded by her former GP included the incorrect statement that she was terminally ill from cancer. A page from somebody else's notes had been placed in her file. Luckily, she discovered that mistake and had it corrected. Had she not had a chance to visit her doctor, the policy would have been refused. As the House knows, the insurance industry keeps a central register of people refused policies on medical grounds, so an initial refusal can permanently prejudice a person's chance of obtaining cover. Fourthly, the report may involve an unjustified invasion of privacy. The best example that I have of that is of a woman who applied for a post as a part-time teacher in a religious school. She was asked to supply a complete medical history and she had to answer more than 30 questions about her health. She was asked to allow the school to take up a medical reference. If the doctor had provided her full history, he would have had to disclose that she had had an abortion. Given the ethos of the school, that would probably have ruled out her chances of getting the job. More important, she feared that the abortion would have become known locally, and since the school was run by people who knew her it would have had a devastating effect on her standing in the community. Under the Bill she would have been able to discover what the doctor proposed to disclose and she would have been able to make representations to him. Ultimately, she could have withdrawn her consent for the report to be made, even if that meant forgoing the job, which was something that she would have preferred to do in the circumstances. I shall deal briefly with the content of the Bill. It requires insurance companies and employers to have the written consent of the applicant before they approach a doctor for a medical report. That consent would be valid for 90 days only. Thus, if, at a later stage—perhaps long after the employee has been employed — the company wants to make further inquiries of the GP, it must ask again for consent. It cannot simply recycle the original consent. At the time that consent is obtained, the employer or insurance company will have to notify the applicant in writing of the right of access under the Bill — the person's right to see the proposed report before the doctor sends it and, indeed, afterwards. That could be done by adding a statement about the right of access to the original consent form. It would be up to the applicant to contact his or her GP and explain that he or she wanted to come and see the report before it was sent. If the applicant did that, the doctor would be obliged to refrain from sending in the report until the person had had the opportunity to see it. If the applicant did not get in touch with the doctor, he would be free to supply the medical report in the normal way, without delay. Reports can also be inspected after they have been sent. The Bill would require a doctor to keep a copy on file for no less than five years, so that there would be a record. The patient would be entitled to make a photocopy of the report, for which the doctor could make a reasonable charge. The Bill also contains exceptions. I am sure that the House will appreciate the reasons for them. The exceptions are based as carefully and accurately as possible on those that already apply when people seek access to their computerised health records under the Data Protection Act 1984. A doctor may withhold information where it is judged that disclosure would cause serious harm to the patient's health, or where the report contains personal information about someone else, such as another member of the applicant's family. The Bill applies only to reports produced by a doctor who is or has been responsible for treating a patient, and therefore will have access to information provided in confidence during ordinary doctor-patient consultation. It does not apply to a report resulting from an independent medical examination carried out for employment or insurance purposes by a doctor who had no access to medical records and no previous contact with the patient. The two cases are somewhat different. In the first, a doctor who has been acting exclusively to further a patient's health suddenly assumes a different role in using information obtained on that basis to advise an insurance company or an employer. Indeed, the doctor is paid by such companies to provide reports. This serious conflict of interest does not arise when an independent medical examination is carried out. A person who made use of the opportunity under the Bill to see a proposed report before it was sent would be able to discuss its contents with the doctor and make representations about anything that he or she considered inaccurate or irrelevant. The Bill does not allow a patient to demand that anything must be omitted from what ultimately must be a doctor's professional opinion. If the Bill goes into Committee, I would wish to discuss the possibility of a right to correct factually inaccurate material, or alternatively to allow the patient to add a comment to a report that is under dispute. Patients would have a final sanction against a report which they considered wholly unacceptable. They could simply withdraw their consent for the report to be sent. A doctor who passed on a report against a patient's wishes would be committing an actionable breach of confidence and could also be guilty of professional misconduct. The Bill has all-party support and is supported by the Consumer's Association, the Patients Association and the Campaign for Freedom of Information. I am pleased to say that the British Medical Association's general medical services committee,—the BMA committee representing general practitioners—strongly supports the principle of the Bill. It has suggested that it should be strengthened in several ways and that its scope should be expanded to include reports made by doctors to third parties other than employers or insurance companies. The Bill is deliberately modest in its scope, but I should be happy to discuss suggestions for improving it should it reach Committee, and I commend it to the House."State details of any facts concerning health, habits, sobriety or family history or other circumstances which might affect our assessment."
I welcome the Bill. Although, as the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood) said, it is a modest measure, it is long overdue.The Bill covers many injustices. Most hon. Members through their constituency surgeries have met people who have been subject to dismissal, or have not been offered a job by employers who have given no good reason for that other than the fact that the medical report that they had received from the applicant's medical practitioner was unsatisfactory in some respect. I have had cases, as I am sure have many hon. Members, in which people have been alarmed about the reasons for an employer's attitude. The employee may feel that he or she should have known and been informed about something in the report. The Bill will go a long way towards remedying these problems. In some respects, the Bill does not go far enough—as the hon. Member for Roxburgh and Berwickshire said, it is a deliberately modest measure — to tackle a major problem. We must ensure that, if a medical practitioner is exempted from giving such a report under clause 6, the reasons why the report is not shown to the patient or is held back are made clear to the patient. The fact that the patient cannot obtain access to which he would normally be legally entitled may make the problems considerably worse for him. That point must be closely considered to ensure that we do not create other problems while solving a major one. There is a tragic aspect of most of the difficulties in relation to the medical profession. The people who come forward with these problems, who are not told why they were dismissed or not offered a job and who do not have a relationship of confidence with their general practitioner or other medical adviser, such that he says, "This is what I shall tell your employer and this is what you will need to know about what will be in the report", are those least able to exercise the rights which they will have under the Bill. These people may be desperate for a job and agree to almost any conditions that an employer imposes. They perhaps would not understand the significance of what was said in a medical report, if only because it was couched in such language that a man or woman of perhaps less than good education could not understand it easily without it being explained. There are considerable problems for the most vulnerable members of society, even in the protections implied in the Bill. This point needs to be closely considered in Committee. We need to ensure that those who will suffer most will be assisted by the type of information provided. Perhaps we should put more onus on the doctor to ensure that if he puts in his report anything to the patient's disadvantage or anything about which he feels, as a reasonable man, the patient should be concerned, he has an obligation to bring it to the patient's attention. A doctor is always in a position of considerable power in respect of the patient. Many people have a certain fear of going to see their medical adviser. It is not just the fear from which we have all suffered when sitting in the dentist's waiting room—the fear of pain. It is not just the fear that the doctor might diagnose a problem. It is the fear in seeing a person who is highly educated, as the master of a somewhat mysterious science who is in a position of authority over the patient. It is the fear that will lead people perhaps not to ask the right question or even to think of the right question until they have left the doctor's presence. We need to ensure that doctors have an obligation to ensure that the spirit, as well as the words, of the Bill works. The hon. Member for Roxburgh and Berwickshire said that the Bill does not cover the case, which is particularly true with both employers and insurance companies, of an outside medical adviser, frequently attached to the employer or insurance company, and retained as a medical adviser, who is asked to make an examination of a prospective or existing employee to decide whether he meets the medical criteria. That, as I am sure many hon. Members have found, has also led to abuse. I do not wish to go into the rights and wrongs of this case, but a constituent of mine was sent as part of a regular check to a doctor who was not his regular general practitioner. The doctor diagnosed — incorrectly, according to my constituent and his regular general practitioner — that my constituent was an alcoholic. My constituent was working in a job for which alcoholism would disqualify him from being employed. That medical practitioner, who was on a retainer to the employer, recommended that he could not carry on with his employment, even though my constituent's GP flatly denied that my constituent had any history of alcoholism. That was some seven or eight years ago, and to this day my constituent has failed to get that one adverse medical report changed. It took him five years, assisted by my predecessors in the constituency, to get access to that report. He knows what is in the report, but cannot get anybody to gainsay the medical practitioner who made the original diagnosis, which appeared to have been at fault. If my constituent had been able to get access to the report before it went in, he would have been in a position to make representations to his employer and to the doctor being retained to make the examination. He could have got a second opinion and had his case reviewed in consultation with his general practitioner. The Bill does not deal with that particular situation, but many similar injustices deny people insurance and employment, and sometimes, as in this case, get people dismissed. They can lead to apparent gross injustices purely because of the secrecy which surrounds the ethos of the medical profession when making such reports. I should like the Bill to be expanded in Committee to cover such situations. There should not be a fundamental difference in a report from a patient's general practitioner or close medical adviser and that from a doctor brought in from outside to make a consultation. The effect of an adverse report, if it is incorrect or mistaken, on an employee can be devastating. The Bill is an attempt to remedy that. I should also like the Committee to look at another aspect of the Bill. If, under the provisions of clause 4, the employee objects, looks at the report and decides that he does not like it, he can withdraw his consent and the report will not be sent at that stage. That is fine as far as it goes, but an employer who knows that consent has been withdrawn after the employee has seen the medical report can draw only one conclusion— that the report was so damning that the employee has effectively dismissed himself. That may not be the right conclusion. There is a problem for somebody in employment who may be dismissed if an adverse report is submitted. An employee could have to decide which is the lesser of two evils—being dismissed, effectively, for withholding consent or being dismissed because the report is adverse. He must ask himself whether he can talk himself out of a problem more effectively when the employer lacks information or when the employer has an adverse medical report with which the employee disagrees. In the case of the teacher who had had an abortion, the information did not stop her being a good teacher, but if she failed to send the report she could guarantee that she would not be recruited. In her case, going to another doctor might make no difference. We must try to find an acceptable middle route so that more emphasis is put on ensuring that, when a report is strongly objected to, the reporting doctor discusses those objections and possibly takes outside advice or a second opinion. I am sure that most of us agree that doctors are, by definition, reasonable people who take decisions that are in the best interests of their patients, but I am also sure that one or two of us have come across doctors who, probably through overwork, have been less than willing, apparently, to discuss with patients the finer points of what they are doing. I strongly welcome the Bill. It is long overdue as it brings greater openness to medical records. The House may like at some future date to consider the secrecy of medical records in general, but that is not an appropriate subject for consideration here. I have the great fortune to have the Charing Cross hospital, which is a major teaching hospital, in my constituency. I am therefore approached by many people who have had excellent treatment and others who feel that the hospital has been less than successful. Often, the person who complains about the treatment that he or she or a relative has received does not understand the full facts because the hospital has been reluctant to release any medical records. The hospital is sometimes unwilling for the complainant to discuss what has happened with the consultant in charge. If patients were able to have better access to medical records, such a problem would rarely occur. I am the first to recognise that there are problems associated with such a step. Doctors need to be able to include in their medical reports the full details of a case—their suspicions as well as confirmed facts. Completely open access might cause more fears than it would allay. There must be a middle course to enable the quite justified fears, concerns and doubts felt by patients to be allayed by allowing them to examine their records, even in an edited version, so that they can understand why certain decisions were made and certain treatments given and see whether they have received the right treatment. We need to achieve that balance. The Bill is perhaps a step in the right direction. For now, the Bill goes far enough, but I would welcome a measure that went further and tackled the whole problem of medical records.
I shall continue my self-imposed training scheme in readiness for the cameras and see how succinctly I can make my remarks.I congratulate the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood) on choosing this subject for his Bill. Along with many other hon. Members, the hon. Gentleman and I welcome any chance to take a pick-axe to the walls of secrecy so needlessly erected around so much of our daily lives. I am glad that the Bill has all-party support. It will right a wrong, which is that at present we are not allowed to see what doctors propose to say or have said to would-be employers or insurance companies. I agree that it might be useful to see whether we can widen the Bill to cover medical reports to all third parties. There can be no defence of the present position, and I hope that the Bill will start a process that gives patients a right to see their own medical records and not only reports required by employers and insurance companies. Some doctors already make such records available, and more should do so, the better to aid patients' recovery from illness. Such a partnership can only be for the good, because general practitioners benefit when patients know the details of their condition and understand the reasons for the treatments that they are given. Similarly, when a job or insurance application may well turn on a medical report, it cannot be right for the applicant to be denied knowledge of what the doctor says. In case the House should think that I do not practice what I preach, let me make it clear that when I get a request for a job reference I unfailingly send a copy of what I have written to the person whom it concerns. That may well account for the fact that so few applicants whom I support are successful in their job applications. Indeed, when my wife and I were asked to give references for two separate applicants for the same job, the applicant whom my wife supported got the job. I look forward to the Committee stage of the Bill and, beyond that, to more steps to make our society more open, with more freedom of information.
I congratulate the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood) on his success in getting a favourable place in the ballot, on his choice of subject and on his speech. Let me make it clear at the outset that the Government have no intention of seeking to prevent the Bill from reaching its Committee stage, and I hope that the Committee will take a constructive look at the Bill when it gets there.I congratulate my hon. Friend the Member for Fulham (Mr. Carrington) on his speech. He made a number of interesting points, particularly about the way in which vulnerable groups are the most affected by the present arrangements. He gave a graphic description of at least one injustice that has flowed from the present system, although, as he said, it does not fall within the scope of the Bill. My hon. Friend said that he agreed very much with the spirit of the Bill and hoped that that spirit would be carried forward as much as the letter. I emphasise to him and to all other hon. Members how important it is in Committee to get the letter of the Bill right. It is all very well saying what one's intention is, but when the courts start looking at the Act, if the letter is not right, all too often the whole matter can go astray. My hon. Friend raised the wider issue of the secrecy of medical records, but it is this Bill that we are talking about, and I shall not be diverted into job applications and giving references. It is normally friends who ask one to provide a job reference. I do not know whether one loses faith more quickly in one's friends or in the employers to whom one sends the job reference if one pursues the pattern of activity of the hon. Member for Birmingham, Erdington (Mr. Corbett). As was made clear, the Bill seeks to give individuals the right of access to reports by doctors responsible for their care, prepared for their employers, past, present and potential, or insurers, past present or potential. It requires the written consent of individuals before any report is prepared on them, limits the life of such consents to 90 days and requires that individuals are informed of their right of access to those reports. It provides that if any individual wants to see a report before it is sent to an employer or insurer, the doctor must arrange for that to be done before he lets the employer and insurer see it. No time limit is set for exercising that right. There are several other provisions, all designed to give increased rights to individuals in that sensitive area. By our reading of the Bill, it does not appear to give the individual any right to have inaccurate reports corrected or withdrawn; nor does it create a specific right to withdraw consent if the individual dislikes a report, or provide for patient's comments to be added. It does not apply to doctors employed by insurers or employers merely to conduct a specific one-off examination of individuals. That point was touched on by my hon. Friend the Member for Fulham. Nor does the Bill apply to examinations conducted by statutory authorities, for example, for heavy goods vehicles licences and so on. The Committee may wish to turn its mind to this matter. The Bill does not seem to provide any penalty for contravention or any means of enforcing the law. I congratulate the hon. Member for Roxburgh and Berwickshire on his success in introducing the Bill. The House will recall that during the passage of what is now the Access to Personal Files Act in the previous Parliament the Government gave an undertaking to enter into talks with the medical profession, with a view to achieving substantive and timely progress in opening up medical records further, on a non-statutory basis. I am sure the House will be pleased to hear that those talks are taking place at the moment and that significant progress is being made. On the whole, the Government would have preferred to reach a successful conclusion to those talks, since by making health records more generally available there would be no need for legislation on specific related areas such as the reports covered by the Bill. A non-statutory basis might have been preferable, because we are feeling our way, and we may need to adapt our approach to that sensitive, but important, area quite rapidly if it is seen to be causing unforeseen problems in the care of patients. Nevertheless, as I made clear at the outset, we do not wish to oppose the Bill as it is consistent with the Government's objectives and may give us some valuable experience in extending access to medical information, albeit in that limited but important area. As a Government, we consider that, as a matter of principle, patients should have the right to know what has been recorded about them. However, it is widely recognised that there will be some circumstances in which the uncontrolled disclosure to an individual of personal health information about himself or herself would run the risk of causing serious harm to that individual. The Bill picks up the necessary safeguards, which are in line with the Data Protection (Subject Access Modification) (Health) Order under the Data Protection Act 1984. The safeguards were designed specifically to protect the individuals from such serious harm to his or her physical or mental health that such full disclosure of information might cause, and to maintain the confidentiality of other individuals. They are important matters and I am pleased that the Bill is consistent with the Data Protection Act 1984 in that respect. Should the Bill be given a Second Reading today, I hope that the hon. Gentleman will consider the points that have been put to him by the insurance industry and the medical profession. As I understand it, the insurance industry is concerned about the quality of information that will be provided. It is concerned that if medical practitioners prepare a report in the knowledge that individuals have the right to see it they may dilute the information, and therefore it may be more difficult to establish the true risks. It is also feared that administrative costs will increase and that paper work may add to delays and therefore increase costs. On balance, the insurance industry would prefer the non-statutory rather than the legislative route. It is not for me to do the hon. Gentleman's job for him, but I believe that, despite all the objections, the principle of letting people know what is recorded about them should be encouraged as widely as possible, with the necessary safeguards. In practice I do not believe that the take-up of that right is likely to be very wide, and I do not believe that the administrative burden will loom particularly large. I am sure that the hon. Gentleman will also take into account the concerns voiced by the medical profession. Indeed, the Health and Safety Executive has expressed some concern, and I know that the hon. Gentleman has been in touch with my hon. Friend the Parliamentary Under-Secretary for Health and Social Security on that matter. When the Bill goes into Committee, I hope that it will be considered seriously and that the arguments that have been raised on Second Reading will be taken into account. This will ensure that the Bill meets its desired effect without hindering the free flow of information upon which employers and insurers rightly depend, and also ensure approach that is within the provisions of the Data Protection Act 1984 and the Access to Personal Files Act 1987.
I believe that the Bill shares a number of things in common with other recent Bills.It is important that a balance is struck. First, one must consider what is genuinely a matter of information that should be available to a person—in a sense his right of privacy—to enable him to have enough information to know what is going on in matters that affect his personal life. On the other side of the coin, one must consider whether freedom of information, which underpins that notion, could be an invasion of his privacy. I believe that that philosophical question will have been carefully considered by the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood). I am sure that other hon. Members who have sponsored similar Bills have also addressed that problem. It is a curious state of affairs that in the past few weeks the Unfair Reporting and Right of Reply Bill has been introduced by the hon. Member for Cynon Valley (Mrs. Clwyd), I have introduced the Right of Privacy Bill and today we have debated at length the Malicious Communications Bill. Now we are considering the Access to Medical Reports Bill. At the centre of all those measures is the balance between what information sho:uld be reasonably available to people—what is legitimately in the public interest — and what is essentially a private question that should overlay considerations of public interest. It is the balance between those principles that has caught the imagination not only of the House, but of the press. Indeed, only yesterday I was involved in a television debate with David Montgomery of Today regarding the balance between those two propositions. For that reason I believe that the Bill is important. I was glad to hear what the Minister said about the Bill, and to note that the Government have taken a view about a person's right to have information about himself that is different from what we might have expected of previous Governments. This Bill should be brought to the attention of the media, which have gained an impression that the Government are more interested in suppressing than in releasing information. In matters concerning the freedom of the individual we are anxious that people should have access to information, and the dividing line that we seek to draw comes where that impinges on a matter of genuine public interest, such as national security. It is a difficult issue. These matters are reverberating around the courts almost daily, which is reason to consider the issue at its root, and the Bill provides us with an opportunity in Committee and during its later stages further to consider the principles that underpin it. I approve of what the hon. Member for Roxburgh and Berwickshire has in mind, but I want to discuss whether the Bill should be confined to employment or insurance purposes. The hon. Gentleman is restrained, because of the scope of the long title, from tabling amendments that would enable this access of infomation to go beyond employment or insurance purposes. There is a way around that problem—by subsequently altering the long title—but that is a messy procedure. I can only hope that he finds some way round it. If it is right in principle that a person should have access to his medical records because they relate to his privacy, confining such access to matters of employment or insurance seems unduly restrictive. I do not want to criticise the hon. Gentleman's Bill, but he may want to tackle the issue of widening its scope. Another aspect of the Bill that caught my attention was the use of the expression, "medical practitioner", which must be defined by reference to the Medical Act 1983. The Bill also refers to "health professionals." The hon. Member for Roxburgh and Berwickshire and others will know that I am chairman of the all-party committee on complementary and alternative medicine and I provide advice to people on those subjects. It would be a strange state of affairs if people these days were to make the assumption that medical practitioners are exclusively those who are medical practitioners within the terms of the Medical Act 1983. I had to raise that point during discussion of the Data Protection (Subject Access Modification) (Health) Order 1987, which is mentioned in clause 2 as defining a health professional. When that order was going through — I am a member of the Select Committee on Statutory Instruments—I drew attention to this anomalous state of affairs. Not only in this Bill, which is confined to medical practitioners, but in the context of health professionals, to which the Bill does not apply in toto, the people who are excluded from the article to the Data Protection (Subject Access Modification) (Health) Order 1987 are those from the practice of complementary and alternative medicine. Obviously, I include people such as osteopaths, acupuncturists and chiropractors and people in similar areas. It seems quite extraordinary that the schedule should exclude them and include people such as art or music therapists employed by a health authority. If we are to pass legislation that applies across the board, it is at least worth considering putting health professionals who provide independent advice on the same footing as medical practitioners. In many respects, for reasons of common law that I will not go into, they provide that independent advice not exclusively on referral but in an independent capacity. That is the way it should be and I hope that the legislation will be framed to take account of that. I welcome the Bill and hope that it will be fully considered in Committee and will make its way through the House.
Question put and agreed to.
Bill accordingly read a Second time and committed to a Standing Committee pursuant to Standing Order No. 61 (Committal of Bills).
Optical Appliances (Blind And Partially Sighted Persons) Bill
Order for Second Reading read.
I beg to move, That the Bill be now read a Second time.I welcome the opportunity to say a few words on the Bill in the time that remains. When one draws No. 11 in the ballot one has to choose between a spectacularly controversial Bill that will be thrown out on Second Reading, or one that is rather more modest, has an opportunity to be discussed and might perhaps even reach Committee. My Bill falls into the latter category. It is modest but well worth while and should be of considerable assistance to those who are affected by it. I say "my Bill" but I should begin by paying tribute to my right hon. Friend the Member for Manchester, Wythenshawe (Mr. Morris), who presented a similar but unsuccessful Bill early last year. I also acknowledge the considerable assistance that I have had from the Royal National Institute for the Blind, which is especially interested in the Bill and which has supplied me with a great deal of background information. The RNIB estimates that there are about 300,000 registered blind and partially-sighted people in the United Kingdom. Of those, only a small percentage—about 4 per cent.—are totally blind. The remaining 96 per cent. have some perception of light and some residual vision, but are so blind as to be unable to perform any work for which sight is essential. That is the definition in the National Assistance Act 1948 that has to be met before a person can be registered as blind. The Bill would provide spectacles and optical appliances free of charge to those who would benefit from them—and that is about 50 per cent. of people who are registered as blind and partially sighted. I suppose that the first thought that springs to the minds of Ministers is how much it will cost. Originally, I intended to leave that until the end of my speech, but, because of the shortage of time, I shall deal with it now. The best estimates that those of us who are interested in the Bill could arrive at, after discussion and looking at figures, was that it would cost about £1 million per annum to carry out the Bill's provisions. Standing on its own, £1 million is quite a sum, but, when measured against the total budget under the Minister's command, it is seen to be tiny. For the last two months I have had the singular pleasure and honour of chairing the Committee examining the Health and Medicines Bill. I do not propose to discuss what has been happening in the Committee, except to say that the estimates of the revenue that will arise from the charges to be introduced for optical testing and dental inspection is between £70 million and £100 million. It has, I think, been agreed in Committee that the money would find its way back into the Health Service. From that £100 million, £1 million might surely be spared to meet the costs of this Bill. The blind and partially sighted are hit in two ways. First, the optical appliances that they need are more complex than those normally worn by the rest of us, and the lenses are therefore rather more expensive. In addition, the frames that have to carry the heavier lenses have to be sturdier than those normally required. Secondly, because of their disability, the visually handicapped are often employed in poorly-paid jobs. It is estimated that 50 per cent. of visually handicapped people in work —perhaps, indeed, the figure is nearer 75 per cent.—have such low incomes that they do not pay income tax. There is, of course, a voucher scheme, which I believe is working pretty well, and the Ministers share my point of view. The other day, I put a question to the Parliamentary Under-Secretary of State for Health and Social Security, asking if the Secretary of State would carry out an early review of the voucher system. The hon. Lady replied that the system had been a great success. However, she said,
A helping hand is being extended to those whom I am trying to help in my Bill, and I welcome it. If the Bill does not reach the statute book, it will at least have raised a question and Ministers will try to act when they carry out their review. In many cases, the vouchers provided are insufficient to meet the costs of a new pair of glasses. Let me give some examples that have been reported to the Royal National Institute for the Blind:"In the White Paper 'Promoting Better Health,' we said that we would give special consideration to the voucher values for those with the poorest sight." —[Official Report, 9 February 1988; Vol 127, c. 168.]
"a pair of new glasses costing £61–85 of which £12·75 was accounted for by frames. Client eligible for a £27 voucher for low power bifocals. Shortfall of £34·85."
That was a considerable sum for the person involved. Here is another example:
The shortfall, therefore, was £46·60. I could give a number of other examples. However, it is clear that the vouchers, flexible and welcome as they are in allowing those who need glasses to shop around, are not sufficient to meet the needs of the people of whom I speak. The Bill covers not only those who are eligible for vouchers, but all who are registered as blind and partially sighted. The RNIB believes…and I share its view—that, just as wheelchairs are provided for all who need them and hearing aids are provided for all who are hard of hearing — whether or not they are poor — special optical appliances should be supplied by the Health Service to all who need them. Of course, if people want something more elaborate, they can pay for that themselves. However, all people who need the appliances, not just those who are very poor, should be supplied with them."visually handicapped client registered as partially sighted … needed slightly more expensive frames (£29) to hold weight of lenses (£60·60). Eligible for voucher for £33".
The hon. Gentleman was not as lucky—
It being half-past Two o'clock, the debate stood adjourned.
Debate to be resumed on Friday 4 March.
Private Members' Bills
Housing (Houses In Multiple Occupation) Bill
Order for Second Reading read.
Second Reading deferred till Friday 4 March.
Coal Mining Subsidence (Damage And Arbitration) Bill
Order for Second Reading read.
Second Reading deferred till Friday 15 April.
Telecommunications (Premium Services) Regulation Bill
Order for Second Reading read.
Debate to be resumed what day?
No day named.
Order for Second Reading read.
No day named.
Child Benefit (Uprating) Bill
Order for Second Reading read.
No day named.
Overseas Aid (Assistance To The Poorest) Bill
Order for Second Reading read.
Second Reading deferred till Friday 4 March.
Consumer Arbitration Agreements Bill
Considered in Committee.
Although there is precedent for taking several amendments and new clauses to a Bill after the moment of interruption, I should point out that we can proceed with amendments to the Bill only so long as they remain unopposed. If at any time an hon. Member signifies objection or opposition, the Bill will become opposed business and would have to be deferred.
I beg to move amendment No. 1, in page 1, leave out from beginning of line 5 to 'except' in line 6 and insert—
(1) Where a person (referred to in section (Power of court to disapply section I where no detriment to consumer) below as "the consumer") enters into a contract as a consumer, an agreement that future differences arising between parties to the contract are to be referred to arbitration cannot be enforced against him in respect of any cause of action so arising to which this section applies'.
With this it will be convenient to consider the following: Amendment No. 4, in page 1, line 9, at end add
'whether in respect of those or any other differences; or
(c) where the court makes an order under section (Power of court to disapply section 1 where no detriment to consumer) below in respect of that cause of action.
(2) This section applies to a cause of action—
(a) if proceedings in respect of it would be within the jurisdiction of a county court; or (b) if it satisfies such other conditions as may be prescribed for the purposes of this paragraph in an order under section (Orders adding to the causes of action to which section 1 applies) below.
Amendment No. 5, in page 1, line 9, at end add(3) Neither section 4(1) of the Arbitration Act 1950 nor section 4 of the Arbitration Act (Northern Ireland) 1937 (which provide for the staying of court proceedings where an arbitration agreement is in force) shall apply to an arbitration agreement to the extent that it cannot be enforced by virtue of this section.'
Amendment No. 7, in clause 3, page 1, leave out line 19 and insert—'(c) by leave of the court.'
'(1) For the purposes of section 1 above, a person enters into a contract "as a consumer" if—'.
It may be for the convenience of the House if I state that the effect of the amendments will be to reduce, not enhance, the scope of the Bill as agreed with the Department of Trade and Industry. Hon. Members will recognise the somewhat heavy hand of the Government draftsman, who has refined the Bill, particularly as it relates to Scotland. The amendments do not include anything that was not discussed and received substantial agreement on Second Reading on 29 January.
Amendment agreed to.
Amendments made: No. 2, in page 1, line 7, leave out `differences' and insert 'the differences in question'.
No. 3, in page 1, line 8, leave out 'himself had recourse' and insert 'submitted'.
No. 4, in page 1, line 9, at end add
'whether in respect of those or any other differences; or
(c) where the court makes an order under section (Power of court to disapply section 1 where no detriment to consumer) below in respect of that cause of action.
(2) This section applies to a cause of action—
(a) if proceedings in respect of it would be within the jurisdiction of a county court; or (b) if it satisfies such other conditions as may be prescribed for the purposes of this paragraph in an order under section (Orders adding to the causes of action to which section 1 applies) below.
(3) Neither section 4(1) of the Arbitration Act 1950 nor section 4 of the Arbitration Act (Northern Ireland) 1937 (which provide for the staying of court proceedings where an arbitration agreement is in force) shall apply to an arbitration agreement to the extent that it cannot be enforced by virtue of this section.'.—[Mr. Pawsey.]
Clause 1, as amended, ordered to stand part of the Bill.
Clause 2 ordered to stand part of the Bill.
Dealing As A Consumer
Amendment made: No. 7, in page 1, leave out line 19 and insert—
'(1) For the purposes of section 1 above, a person enters into a contract "as a consumer" if—'.
No. 8, in page 1, line 26, leave out 'and' and insert 'or'.
No. 9, in page 2, leave out lines 1 and 2 and insert—
'(2) In subsection (1) above—
"business" includes a profession and the activities of any government department, Northern Ireland department or local or public authority: and
"goods" has the same meaning as in the Sale of Goods Act 1979.
(3) It is for those claiming that a person entered into a contract otherwise than as a consumer to show that he did so.'.—[Mr. Pawsey.]
Clause 3, as amended, ordered to stand part of the Bill.
Clauses 4 and 5 disagreed to.
New Clause 1
Power Of Court To Disapply Section I Where No Detriment To Consumer
'(1) The High Court or a county court may, on an application made after the differences in question have arisen, order that a cause of action to which this section applies shall be treated as one to which section 1 above does not apply.
(2) Before making an order under this section the court must be satisfied that it is not detrimental to the interests of the consumer for the differences in question to be referred to arbitration in pursuance of the arbitration agreement instead of being determined by proceedings before a court.
(3) In determining for the purposes of subsection (2) above whether a reference to arbitration is or is not detrimental to the interests of the consumer, the court shall have regard to all factors appearing to be relevant, including, in particular, the availability of legal aid and the relative amount of any expense which may result to him—
(a) if the differences in question are referred to arbitration in pursuance of the arbitration agreement; and (b) if they are determined by proceedings before a court.
(4) This section applies to a cause of action—
(a) if proceedings in respect of it would be within the jurisdiction of a county court and would not fall within the small claims limit; or (b) if it satisfies the conditions referred to in section 1(2)(b) above and the order under section (Orders adding to the causes of action to which section 1 applies) below prescribing the conditions in question provides for this sectionto apply to causes of action which satisfy them.
(5) For the purposes of subsection (4)(a) above proceedings "fall within the small claims limit"—
(a) in England and Wales, if in a county court they would stand referred to arbitration (without any order of the court) under rules made by virtue of section 64(1)(a) of the County Courts Act 1984; (b) in Northern Ireland, if in a county court the action would be dealt with by way of aribitration by a circuit registrar by virtue of Article 30(3) of the County Courts (Northern Ireland) Order 1980.
(6) Where the consumer submits to arbitration in consequence of an order under this section, he shall not be regarded for the purposes of section 1(1)(b) above as submitting to arbitration in pursuance of the agreement there mentioned.'.—[Mr. Pawsey.]
Brought up, read the First and Second time, and added to the Bill.
New Clause 2
Orders Adding To The Causes Of Action To Which Section I Applies
'(1)Orders under this section may prescribe the conditions referred to in section 1(2)(b) above; and any such order may provide that section (Power of court to disapply section 1 where no detriment to consumer) above shall apply to a cause of action which satisfies the conditions so prescribed.
(2) Orders under this section may make different provision for different cases and for different purposes.
(3) The power to make orders under this section for England and Wales shall be exercisable by statutory instrument made by the Secretary of State with the concurrence of the Lord Chancellor; but no such order shall be made unless a draft of it has been laid before, and approved by resolution of, each House of Parliament.
(4) The power to make orders under this section for Northern Ireland shall be exercisable by the Department of Economic Development for Northern Ireland with the concurrence of the Lord Chancellor; and any such order—
(a) shall be a statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979; and (b) shall be subject to affirmative resolution, within the meaning of section 41(4) of the Interpretation Act (Northern Ireland) 1954.'.—[Mr. Pawsey.]
Brought up, read the First and Second time, and added to the Bill.
New Clause 3
Arbitration Agreements: Scotland
'(1) In the case of a consumer contract to which, by virtue of subsections (2) to (4) of section 15 of the Act of 1977 (scope of Part II of that Act), sections 16 to 18 of that Act apply, an agreement to refer future differences arising out of the contract to arbitration cannot be enforced against the consumer in respect of a relevant difference so arising except—
(a) with his written consent given after that difference has arisen; or (b) where, subject to subsection (2) below, he has submitted to arbitration in pursuance of the agreement (whether or not the arbitration was in respect of that difference); or (c) by virtue of an order under section (Power of court to disapply section (Arbitration agreements: Scotland) where no detriment to consumer) below in respect of that difference.
(2) In determining for the purposes of subsection (1)(b) above whether the consumer has submitted to arbitration, any arbitration which takes place in consequence of an order of the court under section (Power of court to disapply section (Arbitration agreements: Scotland) where no detriment to consumer) below shall be disregarded.'.—[Mr. Pawsey.]
Brought up, read the First and Second time, and added to the Bill.
New Clause 4
Power Of Court To Disapply Section (Arbitration Agreements: Scotland)Where No Detriment To Consumer
(1) Subject to subsection (4) below, the Court of Session or the sheriff ("the court") may, on an application made after a relevant difference has arisen, order that section (Arbitration agreements: Scotland) above shall not apply as respects that difference.
(2) No such order shall be made unless the court is satisfied that it would not be detrimental to the interests of the consumer were the difference to be referred to arbitration in pursuance of the arbitration agreement.
(3) In determining for the purposes of subsection (2) above whether there would be any detriment to the consumer's interests, the court shall have regard to all factors appearing to be relevant, including, in particular, the availability of legal aid and the relative amounts of any expenses which he might incur—
(a) if the difference is referred to arbitration; and (b) if it is determined by proceedings before a court.—[Mr. Pawsey.]
Brought up, read the First and Second time, and added to the Bill.
New Clause 5
Construction Of Sections (Arbitration Agreements: Scotland) And (Power Of Court To Disapply Section (Arbitration Agreements: Scotland) Where No Detriment To Consumer)
(1) In sections (Arbitration agreements: Scotland) and (Power of court to disapply section (Arbitration agreements: Scotland) where no detriment to consumer) above "consumer" and "consumer contract" have the meanings assigned to those expressions by section 25(1) of the Act of 1977.
(2) For the purposes of sections (Arbitration agreements: Scotland) and (Power of court to disapply section (Arbitration agreements: Scotland) where no detriment to consumer) above a difference is "relevant" where, if (disregarding the arbitration agreement) it were to be resolved by civil proceedings in the sheriff court—
(a) the form of process to be used for the purposes of those proceedings would be that of a summary cause; or (b) the proceedings would come within such description of proceedings as may, by order, be specified by the Secretary of State for the purposes of this paragraph.
(3) The power to make an order under paragraph (b) of subsection (2) above shall be exercisable by statutory instrument made with the concurrence of the Lord Advocate; but no order shall be so made unless a draft has been laid before, and approved by resolution of, each House of Parliament.'.—[Mr. Pawsey.]
Brought up, read the First and Second time, and added to the Bill.
New Clause 6
Short Title, Commencement, Interpretation And Extent
'(1) This Act may be cited as the Consumer Arbitration Agreements Act 1988.
(2) This Act shall have effect in relation to contracts made on or after such day as the Secretary of State may by order made by statutory instrument appoint; and different days may be so appointed for different provisions and different purposes.
(3) In this Act "the Act of 1977" means the Unfair Contract Terms Act 1977.
(4) Sections 1 to 3, section (Power of court to disapply section 1 where no detriment to consumer) and section (Orders adding to the causes of action to which section 1 applies) above do not extend to Scotland, sections (Arbitration agreements: Scotland), (Power of court to disapply section (Arbitration agreements: Scotland) where no detriment to consumer) and (Construction of sections (Arbitration agreements: Scotland) and (Power of court to disapply section (Arbitration agreements: Scotland) where no detriment to consumer)) extend to Scotland only, and this Act, apart from sections (Arbitration agreements: Scotland), (Power of court to disapply section (Arbitration agreements: Scotland) where no detriment to consumer) and (Construction of sections (Arbitration agreements: Scotland) and (Power of court to disapply section (Arbitration agreements: Scotland) where no detriment to consumer)), extends to Northern Ireland.'.— [Mr. Pawsey.]
Brought up, read the First and Second time, and added to the Bill.
Bill, as amended, to be reported.
Bill, as amended, to be considered on Friday 15 April.
On a point of order, Mr. Deputy Speaker. I wish it to be known that the objection to the Housing (Houses in Multiple Occupation) Bill came from one solitary Member, the Government Whip. I wish that to be recorded in the Official Report as 300 people have died in house fires.
Order. First, that is not a point of order. Secondly, the hon, Gentleman must not seek to make a speech to explain why he thinks that it is a point of order.
Abortion (Treatment Of Non-Resident Women) Bill
Order for Second Reading read.
Right Of Privacy Bill
Order for Second Reading read.
Second Reading deferred till Friday 15 April.
Slaughter Of Deer Bill
Order read for resuming adjourned debate on Second Reading [11 December].
Debate to be resumed what day? No day named.
Northern Regional Assembly Bill
Order for Second Reading read.
Coal Mining Subsidence (Prevention And Public Awareness) Bill
Order for Second Reading read.
Second Reading deferred till Friday 15 April.
Business Of The House
That, at the sitting on Wednesday 17th February, notwithstanding the provisions of paragraph (1)(b) of Standing Order No. 14 (Exempted Business), Mr. Speaker shall put the Questions on the Motions in the name of Mr. Secretary Ridley relating to Local Government Finance not later than one and a half hours after the first of them has been entered upon.—[Mr. Peter Lloyd.]
That, at the sitting on Thursday 18th February, notwithstanding the provisions of paragraph (1)(b) of Standing Order No. 14 (Exempted Business), if proceedings on the Motion in the name of Mr. Secretary Ridley relating to Local Government have not been previously disposed of, Mr. Speaker shall at Ten o'clock put the Question thereon. —[Mr. Peter Lloyd.]
Motion made, and Question proposed, That this House do now adjourn. [Mr. Peter Lloyd.]
The subject of this debate is the fascinating one of Welsh water. Wales is drenched in water and sometimes, sadly, drowned in water. Sumptuous qantities of rain and snow fall and feed our fabulous rivers and lakes. Water has been the inspiration of our artists and poets for generations, whether it be the surging mountain streams of Snowdonia, or the still quiet beauty of the reens of the Gwent wetlands.Sadly, in the midst of that abundance, there is a great shortage of water, and our task this afternoon is to consider the mundane use of water as a basic necessity of life. Perhaps uniquely in Wales, water has become a politically explosive issue. The story is a joyless one of high charges, exploitation and bitterness that springs from a deep injustice, which is felt widely. However, there is worse to come and the present situation is desperate. In spite of the great achievements of the Welsh water authority, many of its efforts have been frustrated by the Government. Sadly, it has acted as the punch bag for blows that should more accurately have been aimed at the Government. I am especially grateful to the Welsh water authority for taking a decision that arose out of a complaint from a pensioner who is a constituent of mine. My attention was drawn to the fact that a new charge was to be levied by the water authority. It was a particularly mean and unjust charge, in that it was planned to charge an extra 50p to all those who took advantage of instalment payments. They are the people who can least afford to pay large bills, and they were to be penalised by a charge of an extra £5 per year for their 10 transactions. Happily, I was informed yesterday that the Welsh water authority, to its great credit, has dropped that charge. As I understand it, it is the only authority in the country to do so. That fair and reasonable decision will lift a little of the onerous burden of those charges that fall so frequently and so heavily on those who can least afford it. That is some consolation but, sadly, only a small one. For many years the Welsh water authority and the Select Committee on Welsh Affairs has argued that rebates on water rates should be allowed in the same way as rebates are allowed on general rates. The Government have always refused. In Wales we have long been cheated on our water bills. Every statistical analysis, from whatever base chosen, shows the same bleak story. There are high costs, which are getting worse. They are getting worse in real terms and in terms relative to the rest of Britain. From 1981–82 to 1987–88 the average national total for water supplies, sewerage and environmental services has increased in England and Wales from £60 to £99. That is an increase of £39. However, in Wales alone, the increase has been staggering; from £69 to £122. That is a difference of £54. When compared to the 100 index, in 1981 Wales stood at 114 and it has now leapt to 124. Perhaps a more telling example was revealed in a written answer to my hon. Friend the Member for Houghton and Washington (Mr. Boyes). In that answer the average of total domestic bills throughout the country was reduced to a figure of 100, and a comparison was made to show what has happened to that figure since 1978–79. The national figure has increased from 100 to 214. However, the Welsh figure has leapt from 100 to 268. That is a staggering increase. As I have said, the story has been bleak. Wales has been treated badly. I do not know of any comparison that can be made from any year, however the statistics are approached, that will not give the same result. What does the future hold? Again, Welsh water consumers are to be hit for six, with charges that are at least twice the rate of inflation. For those who can least afford it—those living in low-rated properties—the rise will be greater. At most it will be a rise of about 25 per cent, but that will be on top of the other increases this year. The standing charge in Wales will soar to the highest level in Britain. From April it will be a massive £36, compared with £6 in Yorkshire, and it will be more than twice as high as the next highest charge—£17 in the south-west. Water charges will also clobber Welsh industry. They are probably the most expensive in Britain. They are 50 per cent. higher than the cost in London, and the fixed charges for those in industry with water meters is six times greater than the cost to industry in Birmingham. It is ironic that those charges are a direct result of Government policy. It is frustrating and mocking all the other Government policies for making Wales a magnet for footloose industry. Again, Wales is about to be cheated and forced into an unjust straitjacket by the Government. One has sympathy for the embattled Welsh water authority because it is being squeezed from every direction. The crude current cost-accounting system penalises present payers for the debts of the distant past and the cost of water facilities for future generations. The sins of omissions by our Victorian grandparents have left a legacy of debt, which now stands at £450 million, and which this year will cost £54 million to fund. They have left us the legacy of crumbling sewers and sea outfalls that mean that 30 per cent. of our beaches do not conform to European standards for safe bathing. We are also funding the future. Some £73 million—the bulk of which comes not from capital but from revenue, although it is capital spending—is being spent to provide services, many of which will last for 100 years for the benefit of future generations. Welsh water ratepayers are shouldering those costs and debts. Many of those debts are British national debts, not specific Welsh debts. In the summer our seaside towns experience a four or fivefold increase in population from holidaymakers. They are welcome, but they place an enormous burden on the costs of dealing with pollution and sewage, without contributing a single penny to the cost of Welsh water. There is the daunting future problem of the acidification of our lakes. The problem is growing at an alarming pace and there are no cheap solutions to this national and international problem. We are encumbered by the past, the future, the environment, the polluted beaches, the holidaymakers and by the distortion of the simplified economics being applied to the Welsh water authority. Yet again the Government are insisting on an inappropriate and artificially high rate of return on investment. They are insisting that the Welsh water authority applies an incongruous cost-accounting system, which will lead to the grotesque spectacle of Welsh water rates spiralling yet again beyond sense or justice. If that were not enough, the Government have decided that the straitjacket that they have applied to the Welsh water authority should again be tightened. Tougher new financial targets have been set, including an irrationally high rate of return on assets. The long-term capital improvements should be paid for over a long period by those who are benefiting from them. However, the Government are insisting that they be financed by the present generation of ratepayers out of revenue. Water rates are being used to raise money that should be found from the Exchequer. Water rates are being used to collect taxes on an unfair basis because they place the heaviest burden on those families who can least afford it. My hon. Friend the Member for Houghton and Washington, in the recent debate on the Public Utility Transfers and Water Charges Bill, made a convincing case for the claim that the Government are covertly planning to make water meters compulsory. That is an alarming prospect. I shall not repeat the evidence that he produced, as I have drawn it to the Minister's attention, but it fits precisely the Thatcherite view. Water meters will be an extra obstacle costing about £100 per dwelling, which is equivalent to an initial cost of £100 million to £150 million for Wales alone. Water meters have to be serviced, read, repaired and replaced every seven years. The Government are conducting trials, and it is certainly part of their view and their narrow philosophy that the only measure of virtue and efficiency is the balance sheet and that everything must he paid for in a precise way. Water meters seem likely to be forced on us. How else will the Government gauge the charge that people will have to pay for their water rates, which are now based on rateable values? After the poll tax there will be no rateable values, unless the whole panoply of rateable values is to be kept just to assess the level of water rates. Is that what the Government have in mind? The new imposition will be wasteful and unnecessary, and I should like the Minister to explain the Government's intentions. Finally, compulsory metering is opposed by the water authorities and by most people who know about it. About a quarter of the customers of the Welsh water authority have installed metering because they see it as an escape from the excessively high charges. However, those are the people who use the smallest amount of water. That has exacerbated the situation and led to higher bills for everyone else. What are the Government's proposals on metering? Domestic rate relief used to be a cushion that Wales was given to compensate for the disadvantages of the terrain and the real problems involved in getting water from the hills into people's homes. That cushion was to compensate for high water bills, and was removed by the Government. What alternative do they now have in mind, or are they content to see our water bills spiralling out of control? Will the Minister tell us what the Exchequer will do to wipe off the legacy of debt which has become increasingly irrelevant? That is a particularly important point in my constituency. In Newport, a splendid profitable water undertaking was handed over to us which provided cheap water, yet in a few years our water rates have risen by more than 2,500 per cent. When can we expect national funding to tackle the truly national problems of polluted beaches and acid rain? Those creating the main problem on the beaches are not from Wales. Why should the water ratepayers in Cardiff and Newport, who spend their holidays elsewhere, or perhaps have no holidays because they are saving up for private medical insurance, pay to deal with the problem when people from Stoke-on-Trent and Birmingham, who use the beaches in great numbers, cause the problem but do not pay for it? When will there be a system of rebate for water rates which every hon. Member on the Standing Committee, which had a Conservative majority, decided would be fair and reasonable? When are we to have realistic rates and targets for Welsh water that can be achieved without continually spiralling costs? If the Minister cannot answer those questions are the people of Wales right to assume that an artificial position is being imposed on Welsh water purely to serve the Government's main interest, to fatten up the industry as a juicy prize for the speculators when privatisation comes about?
I congratulate the hon. Member for Newport, West (Mr. Flynn) on raising this subject. He was not a Member when the Select Committee on Welsh Affairs considered this subject at considerable length but it may pay him to read the report of that Committee, which was chaired by the hon. Member for Swansea, East (Mr. Anderson), in which he will find a number of answers to many questions that he has raised. For answers to some of the other questions the hon. Gentleman will have to wait until next Session when we produce our Bill on water privatisation.The hon. Gentleman was right in saying that this is a warm subject in Wales. It has been for many years. I remember during the 1970s when the Welsh water authority came into its own and we had considerable problems. The authority is a considerable organisation. It employs 4,500 people. It has fixed assets of £2 billion. It provides 2·7 million people with water — and, as the hon. Gentleman said, more in the tourist season. It is responsible for more than 22,000 km of water mains, more than 14,000 km of sewers and 5,700 km of main river. It has within its area a coastline 1,300 km long and the estuaries, the waters of which it has to assess for quality, have nearly 500 km of shoreline. It owns 90 reservoirs, 900 service reservoirs, 250 water treatment works, over 400 water pumping stations, and so on. In 1986–87 its annual report showed an income of £207 million, a profit of £25 million and capital expenditure of £62 million. The main activities of the Welsh water authority are the provision of water resources, water supply and sewerage and sewage treatment services. These basic activities account for over 90 per cent. of the authority's operating expenditure, but it also undertakes a number of other important activities, including environmental conservation, fisheries, navigation, flood defence and land drainage. It also regulates other users of water. It controls, through a licensing system, the abstraction of water from rivers and other sources. Its consent is needed for the discharge of effluent into lakes, rivers and other places where water might be contaminated. It has, therefore, a wide role and it must be able to fund its activities adequately, bearing in mind the needs of its customers and the contribution that it plays in safeguarding the health of people and developing the economy of the area that it serves. The hon. Member for Newport, West referred to the financial policy of the Welsh water authority. Its ambitious programme of efficiency measures has been taken, and with considerable success, both on the water authority's own initiative and in response to Government controls designed to ensure that the water authority operates within a proper commercial environment. The programme has taken place at a time when there is increasing public awareness of environmental issues and a demand for more resources to be given to issues such as water quality, pollution prevention and bathing water standards — all matters to which the hon. Gentleman referred and which form a growing part of the authority's work. At the same time, the authority must meet statutory requirements in respect of water quality, sludge disposal, dangerous substances and discharges to coastal waters, including the Control of Pollution Act 1974. It has not been easy, but the Government's challenging and demanding performance aims have led to a real reduction in operating costs. The Government, in conjunction with the water authorities, have set certain objectives. The authorities must provide an acceptable level of service having regard to costs and the environment, remedy deficiencies over a reasonable period, and achieve these aims at least cost by steadily improving efficiency. Three c