Violent Crime Reduction Bill

My Lords, I am very grateful to my noble friend Lady O'Cathain for taking up the amendment on behalf of my noble friend Lady Miller. As my noble friend said, this debate has its roots long ago in previous discussions. It will be interesting to see just how government thinking has developed on these matters. I begin by making it absolutely clear that I believe that it is wrong for people to wear masks or other disguises at public protests with the specific intention of preventing the police from properly identifying them when they intentionally break the law by damaging property, committing an assault, engaging in public disorder or otherwise breaking laws that are already on the statute book. However, my noble friend will not be surprised when I say that the problem lies in finding the best way to ensure that the police have the powers that will enable them to prosecute those who engage in public disorder or other criminal offences. I note that the police already have the power, under Section 60AA of the Criminal Justice and Public Order Act 1994, to require a person to remove a mask if they go on a protest or engage in public assembly. My noble friend seeks to go further and make it a criminal offence strictly to wear or carry masks in certain circumstances. One of the difficulties flowing immediately from the point made by my noble friend is that she in no way wants to inhibit peaceful protest, which we all hold dear in this country. We have led the world in ensuring that people can protest peacefully, whereas the offence that is created here could be applied to people who are acting peacefully, even though they are wearing a mask. That is one of the difficulties of the amendment. I know that the amendment was tabled with the very best of intentions. It is very difficult to draft legislation. I certainly found it so, and I did not move my own happy-slapping amendment a moment ago, if I can call it that so familiarly, because I appreciate just how difficult it is to ensure that one has a penalty that does not catch the innocent along with those who have anything but innocent intentions. I am sure that my noble friend will also understand that we have always been very reluctant to support government proposals in the years since 1997, when offences have been created with a reverse burden of proof. We prefer not to approach matters in that way where at all possible, and we are on record as attacking the Government for their attempts to introduce offences that rely on the use of a reverse burden of proof. Unfortunately, of course, that is the route taken by the amendment in its Subsection (1), so I am afraid that I have difficulty with the principle of the amendment. The amendment would also have practical and apparently unfortunate consequences. For example, anti-war protesters have been known to wear George Bush masks, and Countryside Alliance protesters have been known to wear Tony Blair masks. Let us say that they behave within the current law and protest peacefully. I wonder whether in future they would automatically be guilty of an offence and have to prove in court that they had lawful authority or reasonable excuse to wear those masks. The courts would certainly be full. And what of those who wear masks because of a perfectly innocent fear of repercussions from family members or employers if they are identified as taking part in a protest, albeit a peaceful one in which they behave perfectly well? Should they automatically be guilty of an offence and have to prove in court that they had good reason to behave as they did? It could have unintended consequences. My noble friend makes very sensitive measures to avoid some of the adverse consequences of proposed new Subsection (1), and I commend those measures, particularly those in her proposed Subsection (2), which would ensure that women who wear veils for religious reasons should not be caught by this proposed new offence. I certainly hope that Parliament will not take action to prevent the wearing of the veil. As my right honourable friend, David Davis—the shadow Home Secretary—made clear yesterday in a newspaper article, he for one would vote against any such law if it were ever brought before the House, as I would. That is a sensitive debate for another day. The exemption does, however, highlight some of the many problems in achieving proportionality in this new offence. The exemption is for women only. In all seriousness—I am not being at all flippant—I wonder whether there might be a reason for also omitting to protect monks. I live in an area where there are monks on the street; certainly that is not an unusual sight in some parts of the country. They may protest on occasion—I am not sure whether they do—but I would not want them to be covered by the provision. I notice that those in the Box are looking a little puzzled, but perhaps I should not refer to them because they are not in the Chamber. I should say, rather, that there may be those who are puzzled that such an adverse consequence should arise. A monk’s cowl covers as much of the face as the hijab, which is on the list. Indeed, Subsection (1)(a) would specifically criminalise monks, because it refers to a cowl. I realise that that is not intentional. Subsection (2)(a) lists veils, which puzzles me. The hijab does not cover the face but is included in the list, whereas the chador, which does cover the face, is omitted. It just goes to show that, despite all our efforts, there are different words around the world for items of clothing. Those words might change, and it is very difficult to list the proper definitions satisfactorily in primary legislation. The added difficulty is that an exemption which refers to the wearing of a veil for religious purposes would put the onus on wearers to prove that they wear them for religious purposes, thus perhaps causing offence which might be justified. I also know that the exemptions in subsection (2) do not mention those who wear masks for medical purposes; for example, those who have been horribly burnt in terrorist outrages and train disasters. They sometimes have to wear masks for months in order to assist the healing process. I am sure that my noble friend has no intention that they should find themselves in court simply to give the reason why they were wearing a mask. Those are just a few of my random thoughts that came to mind as I read the text of the amendment when it was published last week. I certainly have not sought to consult the police or the CPS on their views about the need for the new offence. I always leave the Government to do that and to inform us. I have, of course, tried to consult those organisations which commonly give us advice. Their approach is very much that the criminal activity that my noble friend is trying to address needs to be stopped; that is, people should not be able to get away with criminal activity merely by covering their faces. My noble friend is right to target that. However, we do not think that, because of the way in which this new offence is drafted, we could support it: I do not think that it would achieve what my noble friend is trying to do. But it is right that the matter was raised at this stage and I hope that we will be able to talk about it on another occasion in a way that might achieve what my noble friend hopes to do.