Protection of Freedoms Bill
(12 years, 7 months ago)
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Baroness Anelay of St Johns
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Clause 38 : Judicial approval for directed surveillance and covert human intelligence sources
Amendment 1
Lord Selsdon
“32C Evidence gathered by non-public bodies using directed surveillance and covert human intelligence sources
Public bodies shall not adopt for the purpose of a prosecution evidence of offences which attract a maximum custodial sentence of six months or less gathered by non-public bodies using directed surveillance or covert human intelligence sources.”
Lord Selsdon
My Lords, Amendment 1 is grouped on its own. As I am on my own, I will wait for the House to evacuate before I continue.
The amendment follows on from the Private Member’s Bill which I introduced into your Lordships' House and which was passed, which said that people should not be able to go into other people’s homes and property without permission or a court order. At that time we also looked at loitering and the nervousness that was caused by people loitering outside properties, surveillance by television cameras, observance from afar and spying in general, but that was left out.
When we recently dealt with the Bill in Grand Committee, it was suggested to me that certain other areas needed to be dealt with. One related to the amendments to RIPA proposed in the Protection of Freedoms Bill which are designed to address the concern about the use of RIPA powers by public authorities to investigate minor offences. The Minister—the noble Lord, Lord Henley, whom I sometimes regard as being a little bit like “Stonewall” Jackson or Cool Hand Luke, who plays a bat and will not let things go past him—confirmed at that time that he accepted the proposals in the Bill would ban the use of covert surveillance by public bodies to gather evidence of non-serious offences and should be amended to ensure that those public bodies could not then get round the law by adopting evidence obtained by covert means by third parties.
When I introduced an amendment to deal with this loophole in Committee on 13 December, I was encouraged at the time by the words of my noble friend Lord Henley, who agreed to look at this issue to,
“see whether we might come forward with some suitable change”.—[Official Report, 13/12/11; col. GC 329.]
He has not come forward with any suitable change, but I gather that he has it still in the back of his mind. The great thing with my noble friend is to take things from the back of the mind and try to get them as near the front as possible.
It seems that my amendment was what the “pros” call too widely drawn. When it was suggested that I put down another one, I went, as always, to the Public Bill Office. I learnt that you do not put down amendments at Third Reading unless you can demonstrate that the Minister had undertaken to do something and had not done it. I had forgotten about that. We checked the matter very carefully and this amendment was the result. I hope that it can be accepted.
I would like to ask my noble friend about other issues that I raised in Committee. I asked whether, since we had the Powers of Entry Bill, he would be kind enough to take the 1,200 powers of entry that we had identified, print them and put them in the Library. He said that that was not necessary because everything could be done electronically. I have a slight conflict of interest here in that, as a member of the Information Committee, I can tell noble Lords that half your Lordships are not electronically enabled, if that is the phrase. Therefore, they like to think back to:
“Abstract nouns in -io call
Feminina one and all;
Masculine will only be
Things that you can touch or see”.
Your Lordships like to feel pieces of paper from time to time. Therefore, I asked my noble friend whether he would agree to put the list of powers of entry in the Library. He said that he might think about it.
Other matters came up. One of the difficulties with Private Members’ Bills is that Ministers are here today, gone tomorrow and back the next day. A code of conduct was proposed. The Minister said that the Bill would induce a code of conduct. I asked him why it could not be stated. I do not think that he said he would think about that. I understand fully that matters such as powers of entry were tacked on to the Protection of Freedoms Bill. However, some aspects of it seem to me that they might even reduce people’s freedom. We should debate this matter further. I beg to move.
Lord Marlesford
My Lords, I strongly support my noble friend. He is absolutely right to bring back points that have not been answered by the Home Office. The purpose of Parliament in general and your Lordships’ House in particular is to scrutinise legislation and ask questions—and to ask for answers to questions. It is the obligation of the Government to come back with suitable answers that give details as to why particular proposals should not be agreed, rather than to give just a blanket refusal. I am very glad that your Lordships’ House decided to pass my amendment that is now part of Clause 40 and that we now have a much better understanding of the need to constrain powers of entry.
However, my noble friend referred to RIPA, which extended the powers of the police to enter without warrant. That is probably justified in terrorist matters. I accepted that, which is why, in my amendment that the House has accepted, I excluded from the need to have a warrant those powers that RIPA had recently given to the police under subsection (5)(b). On the other hand, it is important that we should be absolutely clear and precise on the extent to which powers of entry or surveillance are used. It is not at all desirable that general powers of surveillance, particularly by non-government bodies, could be used to provide evidence, because the way in which the surveillance is constructed is quite likely not to have been properly supervised and defined.
We must realise that the object of the Bill is to extend the freedoms of this country. It is high time to do that, and I therefore hope the Minister will give a good reply to my noble friend, particularly on the code of conduct, and publish—more clearly than the information that has been published only on computers—the huge list of existing powers of entry.
The Earl of Erroll
My Lords, I should like to make two brief points. The first arises from something I have noticed in the way that we run our procedures, which has changed a lot over the many years I have been here. In the old days, matters often used to be pushed at Committee stage to decide in principle whether we wanted to change something; it was then tidied up on Report; and very little was therefore done at Third Reading. Unfortunately, because nothing is now pushed in Committee, it is pushed first on Report; and we are therefore relying more and more on the Minister or someone else tidying up or fulfilling an obligation at Third Reading. That is much later than used to be the case. We have a rod with which we are beating our own back. We see this happen to other Bills on which we have Committee-style debates on Report, which in reality should be an occasion for tidying up what we have pushed through in Committee. I highly recommend that we return to our old procedure, and we might then spend less time debating some of the other Bills that are going through interminably and tediously.
Secondly, the amendment is fair and it is right that it has been brought forward. It is an interesting and probably good amendment, because it will discourage local authorities or other bodies from doing one of the things that all these provisions were rightly introduced in the Bill by the Government to tackle—to discourage these bodies from using strong powers in order to enforce what we consider to be trivial offences by members of the general public. The amendment is a good generic way of dealing with the problem in principle. It is a sensible amendment that should be passed.
I should add as a minor point that we are watching the same thing happen as regards the power to fine people for littering. The other morning, I heard how a lady in her 70s was fined £80, or whatever the statutory amount is, because a thread fell out of her glove on to the ground. I listened to the local authority trying to defend its action—a thread is not meant to be on the ground and is therefore defined as litter. The case was quite horrific, and I can see exactly the same problem happening in similar cases. I therefore hope that this Government will continue to do what they have done in the Bill. They have made a good first move as regards giving citizens back some rights in certain other areas. This amendment helps in the right direction.
The Minister of State, Home Office (Lord Henley)
My Lords, I will try to keep my response to the point of the original amendment moved by my noble friend Lord Selsdon, tempted although I am to proceed down routes raised by the noble Earl about procedure of the House and littering, which are matters for another occasion, but I will try also to respond to a couple of the points made by my noble friend about powers of entry, because he gave me notice of them.
My noble friend has returned to an issue that he raised in Committee, and I apologise for not getting back to him on it, about the use of covert surveillance by non-governmental organisations or private individuals. In Committee, I said that I would look further at that issue. We have given that matter serious consideration, but we have concluded that amending the provisions of the Regulation of Investigatory Powers Act as they apply to public authorities is not the answer to protect landowners from trespassers or people who do damage on private land. I could go on, but I just want to make it clear that I do not think that what my noble friend suggests in the amendment would be appropriate for this Bill at this stage.
My noble friend then raised the point about powers of entry and asked when the code of practice will be available. We intend to consult on a draft powers of entry code of practice in the summer with a view to its coming into force in the autumn. I will certainly ensure that my noble friend receives a copy of the draft code when that goes out to consultation and look forward to his comments on that in due course.
My noble friend then asked for a list of all the powers of entry. He originally asked for that to be in the Bill—I have explained on a number of occasions why that is not appropriate—but has since asked whether it could be made available in the Library or somewhere else. I have made it clear to my noble friend on a number of occasions that it will be available on the Home Office website. My noble friend is worried that most noble Lords—I think he said 50 per cent of them—cannot access the Home Office website to get hold of such things. In practical terms, for a department to make such things available on its website is normally the best way. If any noble Lords have any problems in accessing that, they can always get assistance from the House authorities—in particular, the Library, which works wonders in providing noble Lords with access to such things.
We have published a list of all the powers of entry that we have identified. We are committed to keeping it up to date. We will continue to keep it up to date on our website. I will certainly consider whether it could be made available on one occasion in the Library, but thereafter, it is best that it is kept up to date on the Home Office website, and my noble friend can then get further copies either through the website, if he can access it, or through the Library. I hope that, with those explanations, my noble friend will feel able to withdraw his amendment.
Lord Selsdon
I am most grateful to my noble friend for that, but, as he knows me well by now, he would obviously have expected me to have consulted the Library before speaking. The Library would like to have a hard copy because, as we know, some of the equipment in the Library does not work regularly. There is a shortage of wi-fi throughout the Palace. I hope that he will at least consider printing something out and putting it there. I pay tribute to my noble friend for dealing with such a complex Bill. If I had my way, it would be in three or four parts; it is an enormous Bill to absorb. From the research that I have done outside, it is extraordinarily confusing to what we might call lay people. They are not sure what it is about. It seems in a strange way to restrict freedoms. I am very happy to have been able to raise this issue, and I beg leave to withdraw my amendment.
“Protection from stalking
(1) The Protection from Harassment Act 1997 is amended as follows.
(2) In section 2 (offence of harassment), for subsection (2) substitute—
“(2) A person guilty of an offence under this section is liable on summary or indictable conviction to imprisonment for a term not exceeding five years, or a fine not exceeding the statutory maximum.”
(3) For section 4 (putting people in fear of violence) substitute—
“4 Offence of stalking
(1) A person (“A”) commits an offence, to be known as the offence of stalking, where A stalks another person (“B”).
(2) For the purposes of subsection (1), A stalks B where—
(a) A engages in a course of conduct,(b) subsection (3) or (4) applies, and(c) A’s course of conduct causes B to suffer fear, alarm, distress or anxiety.(3) This subsection applies where A engages in the course of conduct with the intention of causing B to suffer fear, alarm, distress or anxiety.
(4) This subsection applies where A knows, or ought in all the circumstances to have known, that engaging in the course of conduct would be likely to cause B to suffer fear, alarm, distress or anxiety.
(5) It is a defence for a person charged with an offence under this section to show that the course of conduct—
(a) was authorised by virtue of any enactment or rule of law,(b) was engaged in for the purpose of preventing or detecting crime, or(c) was, in the particular circumstances, reasonable. (6) In this section—
“conduct” means (inter alia)—
(a) following B or any other person,(b) contacting, or attempting to contact, B or any other person by any means,(c) publishing any statement or other material—(i) relating or purporting to relate to B or to any other person,(ii) purporting to originate from B or from any other person,(d) monitoring the use by B or by any other person of the internet, email or any other form of electronic or other communication, or making improper use of public electronic communications networks or leaving messages of a menacing character,(e) entering any premises,(f) loitering in any place (whether public or private),(g) interfering with any property in the possession of B or of any other person,(h) giving anything to B or to any other person or leaving anything where it may be found by, given to or brought to the attention of B or any other person,(i) watching or spying on B or any other person,(j) acting in any other way that a reasonable person would expect would cause B to suffer fear or alarm, and“course of conduct” involves conduct on at least two occasions.
(7) For the purposes of this section, a person makes improper use of an electronic communications network of electronic communications service or other social media if—
(a) the effect or likely effect of use of the network or service by A is to cause B, another person, unnecessarily to suffer annoyance, inconvenience or anxiety, or(b) A uses the network or service to engage in conduct, the effect or likely effect of which is to cause B, another person, unnecessarily to suffer annoyance, inconvenience or anxiety.(8) The Secretary of State may by regulation add further forms of conduct to subsection (6)(b).
(9) A person convicted of the offence of stalking is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both,(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum or to both.(10) Subsection (9) applies where, in the trial of a person (“the accused”) charged with the offence of stalking, the jury or, in summary proceedings, the court—
(a) is not satisfied that the accused committed the offence, but(b) is satisfied that the accused committed an offence under section 2.(11) The jury or, as the case may be, the court may acquit the accused of the charge and, instead, find the accused guilty of an offence under section 2.””
Baroness Royall of Blaisdon
My Lords, it is of enormous significance that today we are debating amendments that would create a new criminal offence of stalking. At Second Reading, I said that this Bill presented us with an opportunity to address an important loophole in our law that meant that those subject to the sustained and harrowing experiences of stalking were not receiving the recognition and protection that they needed and deserved. I therefore warmly welcome the fact that the Government now accept that the law needs changing.
This change in policy is a tribute to campaigners—in particular, the National Association of Probation Officers and Protection against Stalking, as well as the members of the independent parliamentary inquiry, chaired by the right honourable Member for Dwyfor Meirionnydd, Elfyn Llwyd, whose report has been so influential, and, most importantly, the victims. I refer to women such as Tracey Morgan, Sam Taylor and Claire Waxman, who have shown the most extraordinary courage in speaking out for reform. I am grateful to the Minister for meeting me on Thursday last week to inform me of the amendments, although at that stage I was not able to see them. Now, having looked at them, I am concerned that there are some deficiencies.
A specific criminal offence of stalking is not just about raising awareness. Indeed, ensuring that stalking is named as a crime and that specific examples of stalking behaviour are set out in statute are certainly part of the solution. It will mean that police officers and prosecutors who use the 1997 Act as their operational framework will be able better to recognise and respond to cases of stalking. However, that is only part of the problem. The other, perhaps most significant, issue is that, even when stalking is identified, the police are unable to bring successful prosecutions against stalkers that will result in adequate sentences. The overwhelming evidence from the independent inquiry showed that the law is currently a barrier to just sentencing because the evidence required for stalking to be tried as an indictable offence is, in practice, too difficult to provide.
The two new offences proposed by the Government do not seek to remedy that. In fact, they perpetuate this key deficiency in the 1997 Act by continuing the distinction between what they consider low-level stalking offences, as in proposed new Section 2A, which are subject to a maximum sentence of six months, and serious cases of stalking, as in proposed new Section 4A, for which it must be proved that the victim suffers a fear of violence. However, we already have this distinction in the 1997 Act between Section 4—putting a person in fear of violence—which was originally intended to cover cases of stalking and carries a maximum of five years’ imprisonment, and the Section 2 offence of harassment, which covers lower-level offences and has a maximum sentence of six months. As noble Lords will know, Section 4 is very rarely used by the police because fear of violence is in practice very difficult to prove. As a result, cases of stalking are usually prosecuted under the Section 2 offence, meaning that most convicted stalkers come away with a sentence of just a matter of days or no custodial sentence at all and are free to continue to traumatise their victims and, in some terrible cases such as those of Clare Bernal and Jane Clough, to murder them. Of the estimated 120,000 cases of stalking in the UK per year, in 2009 just 786 people were found guilty under the existing Section 4, which concerns putting people in fear of violence, with only 170 given a custodial sentence, most of no more than weeks.
I am therefore extremely concerned that, by simply creating two new offences as an addendum to the existing Section 2 and Section 4 offences, we will continue to see prosecutors unable to prove fear of violence opting to jail stalkers who have waged sustained and terrifying campaigns against their victims under new Section 2A, the basic offence of stalking, with a maximum of six months in prison.
Two women, both victims, who met the Prime Minister last Thursday—International Women’s Day—were given an assurance that things would be changed, but they then found out that their circumstances would not be covered by Section 4A as currently drafted, as it would not be possible for the police to prove that they were in fear of violence, yet both women were stalked for six and 10 years respectively and have suffered terrible psychological trauma. Both suffered mental breakdowns, both have sought medical treatment for extreme stress and anxiety, and both have little or no confidence in the criminal justice system, which has consistently let them down.
Under the amendments, the perpetrators would still be tried in the magistrates’ court and, even if they received the maximum sentence of six months, they would be released automatically at the halfway point and would be back in the community after four weeks if tagged. Because of the near impossibility of proving fear of violence, perpetrator after perpetrator has been given ludicrously lenient sentences in the magistrates’ court and has consistently broken restraining orders, with none receiving treatment or rehabilitation. The independent parliamentary inquiry, expert witnesses from the police, the National Association of Probation Officers, Protection against Stalking and victims are all absolutely united in the view that Section 4A must be amended to “fear, alarm, distress or anxiety” so as to apply explicitly to cases where severe psychological damage has been caused but no explicit threat of violence or physical attack has been made.
It is staggering that the Government are proposing to retain the fear of violence distinction, despite such evidence. It is also staggering because in Scotland we have a clear legal precedent for a single offence of stalking without fear of violence. The Criminal Justice and Licensing (Scotland) Act, which was introduced in 2010, created a single offence of stalking, triable either way, with a maximum sentence of five years’ imprisonment. It is then up to prosecutors and the courts to decide at what level the case should be heard.
My Amendments 2 and 3, on protection from stalking, would replicate the Scottish model of a single offence of stalking, listing types of stalking conduct, triable either way, and would replace a duty on the Secretary of State to ensure adequate training and support for implementation. However, in the event that the Government are not willing to accept this alternative proposal, I have also tabled amendments to their amendments. With the inclusion of these amendments, I believe that we can ensure that the two stalking offences that the Government propose would deliver adequate sentencing of offenders and protection for victims.
Amendments 10, 11 and 12 make changes to proposed new Section 4A that would widen the scope of the offence to apply to cases causing the victim to suffer fear, alarm, distress or anxiety. That would ensure that for cases such as Claire’s, where it is impossible to prove fear of violence, where the victim has suffered years of psychological trauma the stalker will be eligible for the maximum sentence of five years. Amendment 9 would allow cases tried under the basic offence of stalking, created by proposed new Section 2A, to be referred up to the Crown Court for sentencing, if magistrates deem it appropriate: for instance, when new evidence came to light to suggest a sentence higher than six months were required. If theft can be tried either way, we believe that it is wrong to set such limitations in a trial of stalking.
Amendments 7 and 8 make changes to the list of examples of acts that should be considered in certain cases as amounting to stalking in order to allow for the addition of other forms of conduct in the future. I know that the Government will wish to argue that proposed new Section 2A states that these are examples and that therefore flexibility is already provided, but it is important to understand that the police will look to what is contained within the law for their operational framework. Therefore, we think that it is important to make it clear that the list is not exhaustive and provides for the addition of new types of behaviour, such as cyberstalking, that may arise in the future.
Finally, Amendment 14 would mean that, if an individual had been arrested for stalking, the police would have the power to enter their property without a warrant in order to prevent any evidence being destroyed. It would in fact return the power that previously existed in cases of harassment but that was removed as an unintended consequence of the Serious Organised Crime and Police Act 2005.
Too many women have already died at the hands of their stalkers and I am glad that the Government agree that we must act now to provide greater protection for the women and men who have had their lives stolen from them by this harrowing crime. It is for the sake of these and future victims of stalking that we believe that it is vital that we get the changes right. We must address the problems of the existing law in full. Therefore, I strongly urge the Government to listen to the experts and victims and to support these amendments to their proposals today.
Lord Henley
My Lords, it might be convenient if I intervene at this stage, partly because I have government amendments in this group—Amendments 6, 13, 16, 18, 29 and 32—partly so that I can explain what we are intending and partly to deal with some of the concerns raised by the noble Baroness and to pre-empt some of the debate, particularly as we are at Third Reading. I shall also speak at the end of the debate to deal with any points that have been made.
I am very grateful to the noble Baroness not only for her explanation of four of the amendments but because she has raised this issue throughout the passage of the Bill, as she was quite right to do. She was also right to pay tribute to Elfyn Llwyd, to his inquiry in another place and for all that that has done, for which we are grateful.
The noble Baroness referred to the comments from my right honourable friend the Prime Minister last Thursday on International Women’s Day. The Government made the point that:
“Stalking is an issue which affects many lives, often in devastating ways. That is why we are taking it seriously and introducing these new offences”—
my right honourable friend made it clear that we would bring forward amendments to the Bill—
“Offenders need to know that they will be brought to justice for making others’ lives a misery. We will do all we can to protect victims of stalking more effectively and to end this appalling crime”.
He said:
“we’ve got to make sure that as a separate criminal offence, it’s combined with: better training for the police; better training for the probation service; better training for our courts; better action by technology, telephone and digital companies, so we stamp out this evil”.
Throughout the House we agree that tough action needs to be taken, that new offences need to be introduced and that sentences must reflect the severity of the crime. The only thing that we disagree on is the drafting on how to achieve this aim.
Lord Campbell of Alloway
My Lords, briefly, I congratulate the noble Baroness on her amendment, which has filled a gap in criminal law. I also congratulate the Government on giving an assurance that they will deal with its implementation, which they need to think of with care because it is not going to be so easy to implement.
Baroness Brinton
My Lords, I am very grateful to the Minister for the Government’s considerable progress on stalking law reform since Report and for the government amendments laid before your Lordships’ House. I am also grateful for the amendments tabled by the noble Baroness, Lady Royall, which help to clarify some of the issues that many of us believe remain outstanding.
I am particularly grateful for the Minister’s clear response to the noble Baroness, Lady Royall, on her Amendments 10 to 12 which amend government Amendment 6. The issue around the Government’s new Section 4A and the insertion of the words “fear, alarm, distress or anxiety”, in whatever form that might take, as proposed by the noble Baroness, Lady Royall, really concern those of us who have been involved in stalking law reform for some time. There seems to have been confusion in some of the discussions outside your Lordships’ House. As long as “serious” and “severe” relate only to the psychological issues and not to fear of physical violence, that is a very helpful clarification. I am looking forward to the Commons consideration of Lords amendments next week.
The omission of those words in the government amendments today has caused complete consternation among victims, their families and the organisations working for stalking law reform. Those of us parliamentarians on the People’s Inquiry into Stalking Law Reform made it absolutely clear in our report that the serious psychological effects of stalking can be as devastating as violence. Often, the consequences are more long term—long after the physical bruises and the scars have diminished.
Last Thursday, three courageous victims—Tracey Morgan, Sam Taylor and Claire Waxman—who have all campaigned for stalking law reform for many years, discussed the need for reform and related it to their own cases. In his very welcome speech launching the reform on International Women’s Day, the Prime Minister made the point about long-term psychological damage to victims such as Tracey, Sam and Claire. I really hope that it was an oversight in the speed to get the government amendments out that these key and vital words were omitted from new Section 4A.
Last week, many victims and their families were talking at No. 10. They were initially overjoyed and relieved that at last the scourge of stalking would be recognised for the horrible and serious crime that it is and no longer lumped in, as we have said before in this House, with neighbourhood disputes. Many victims are diagnosed with post-traumatic stress disorder and others have breakdowns, all of which fits well with the description read out by the Minister.
Given the time that I have taken up in your Lordships’ House outlining the need for training and guidance throughout the criminal justice system, I was particularly pleased with the Prime Minister’s speech last week from which my noble friend quoted earlier in this debate. I am also pleased that another place will have the opportunity to discuss this key reform, as all the debate on stalking and the Protection of Freedoms Bill to date has been in your Lordships’ House. In particular, this will give Elfyn Llwyd MP, the chair of the People’s Inquiry into Stalking Law Reform, the opportunity to comment on these very welcome government amendments, even if some minor details need to be sorted out. The inquiry team, Protection against Stalking and the National Association of Probation Officers have worked cross-party and tirelessly to influence the Government. It has been a privilege to be a small part of that team.
I want to end by endorsing the Government’s amendments with the words of Tracey Morgan which seem particularly pertinent today. She said:
“The victims I hear from are saying the same things I was 15 years ago—what’s changed? We need to do more. This is about murder prevention”.
It is wonderful news that the Government are doing more and I know that that will prevent murder and other serious crimes against innocent victims of stalking. I hope that those who have long championed the change in the law will, at last, be able to hand the problem over to those in the criminal justice system, which is where it should be.
Baroness Howe of Idlicote
My Lords, as one of those who have taken part in the inquiry, I congratulate the Government on what they have come around to; that is, a serious awareness of the horrendous crime of stalking. In many cases the advent of the internet has been very valuable, although it is now quite often used for cyber stalking and this horrendous crime. It has to be tackled.
I also congratulate the noble Baroness, Lady Royall, on her attempt to produce the right form of words for this part of the Bill. On this point, I have one sadness, and that is that there is not a completely separate Bill on stalking. We all know how crowded our agendas are, but that would have been an important step. An actual Bill dedicated to stalking would stand out and attract everyone’s attention. In the mean time, I hope the Government will agree to the amendment tabled by the noble Baroness, Lady Royall. Picking up the threads, it sounds as if there really is a basis for giving the other place an opportunity to debate this important subject because I think that some of them are hardly aware of the issue. That would be an added plus.
There must be a clear understanding that what must be discussed are the horrendous psychological effects of this crime, which have been very well set out by the noble Baroness, Lady Brinton, who is an expert in the field. It is a form of psychological violence that may not be as visible as physical violence against women but, my goodness, the long-term effects are huge. With my fingers crossed, I hope that the right conclusions will be reached not just between all these Benches but between both Houses.
Baroness Hamwee
My Lords, the Government are indeed to be congratulated on having moved so positively and with such comparative speed following the report and their own consultation. I also congratulate the members of the parliamentary group and the individuals who have so bravely spoken out. I have one point to put and one question to ask.
The point is to encourage the Minister—not that I think he needs to be encouraged—with regard to the terminology, “fear, alarm, distress or anxiety”, as well as violence. I want to mention to the House that last week during the Report stage of the Legal Aid, Sentencing and Punishment of Offenders Bill, my noble friend Lord McNally, the Minister at the Ministry of Justice, put forward a definition of domestic violence that was agreed. It covers,
“threatening behaviour, violence or abuse whether psychological, physical, sexual, financial or emotional”.
As I say, I do not think that my noble friend needs encouragement, but if that is useful ammunition to pass on to those who are doing the drafting and who might be a little resistant to the extension, I hope he can use it. My question is about remedies. There is a provision in Section 3 of the 1997 Act for a restraining order. When the Act is amended, will that section remain available for use by a victim of an offence under either of the new sections? I am sorry that I did not give my noble friend notice of my question, but it only occurred to me during the first speech in this debate. Would Section 3 have to be used or is there an inherent right in the courts? I am thinking of an extreme situation, although they are all extreme, where someone is given a custodial sentence, but there is also a concern that he should stay away when he comes out of prison. I am particularly prompted in this because of the provision in Schedule 1 to the legal aid Bill which allows for civil legal aid services to be provided in relation to an injunction made under Section 3 of the Protection from Harassment Act 1997. I hope that everything which needs to be can be swept in the last knockings of this issue.
Lord Hodgson of Astley Abbotts
My Lords, I congratulate my noble friend on having brought forward these amendments. I was the subject of stalking for four or five months and a truly terrifying experience it is, too. I was stalked by a woman who rang me at all hours of the day and night and who I believed did not know where I lived. However, the day that I moved house and returned from the other place to my new home, I found a note through the door, saying, “I hope that you will be very happy in your new home”. Such an experience leaves you with an impression that there is somebody out there, waiting for you and watching for you. I am very pleased that the Government have moved on this because it is a very serious social problem.
My stalker was in the end revealed to be much more harmless than many, in the sense that her real name was Anita Hodgson—that is why she had appealed to me. She called herself Anita Windsor and believed that she had been married to Prince Charles and that people were denying her rights to join the Royal Family.
Lord Marlesford
Perhaps I may say a word on Amendments 13 and 14, Amendment 13 already having been referred to by my noble friend the Minister as a government amendment and Amendment 14 being in the name of the former Leader of the House. I support both amendments and rejoice that Amendment 13 sets out exactly the right conditions and constraints on powers of entry. In the first instance, it requires a warrant; in the second, following your Lordships’ amendment on Report, it points out that premises may be entered without the agreement of the occupier in cases where the authority using the power can demonstrate that the aim and use of the power would be frustrated if a warrant or agreement were sought. That is very neatly replicated in the government Amendment 13. I am glad that the Government are at last taking an approach that should be used for all powers of entry. I totally support the Leader of the Opposition’s Amendment 14. Again, it will ensure that the amendment proposed by your Lordships' House on Report is perfectly consistent with all matters connected with the Bill. They are worthwhile changes, as well as dealing with the serious problem of stalking.
Lord Henley
My Lords, my noble friends Lady Brinton and Lady Hamwee were absolutely correct about getting the wording right. That is why I wanted to make it quite clear that I could not give the precise words at this stage and why it is very important that we have further discussions, as I promised, with Napo, which will take place this week. I along with other colleagues in the ministerial team will make sure that we get the wording right.
I also note the point made by my noble friend Lady Hamwee about the importance of consistency of language between one piece of legislation and another, and what she said about the legal aid Bill. The danger of inconsistency is that when legislation comes to be interpreted by the courts they have to think why Parliament has used different words on different occasions. So I note what my noble friend had to say and we will discuss it during the week. However, I cannot give any cast-iron guarantees at this stage other than what I have said. My noble friend Lady Brinton said how happy she was that the amendments would now give an opportunity for another place to discuss these matters.
The noble Baroness, Lady Howe, said that she would prefer a completely separate Bill. However, in the nature of these things, that is not always possible. My right honourable friend the Prime Minister recognised that here is an opportunity where we can do something, particularly in the light of the earlier discussions we had had on the Bill—I again pay tribute to the noble Baroness, Lady Royall—and the commitments I had given on Report. I hope that we can make some progress on that front but, obviously, it cannot be the Bill that the noble Baroness would like in an ideal world. This is not always an ideal world and we sometimes have to make use of what we have.
My noble friend Lady Hamwee also asked about remedies, particularly in relation to the point she made about the restraining order. I can assure her that the restraining order is contingent on Section 1. It remains unchanged and therefore will be incorporated into the stalking offences. I understand that it can be used for the offences under proposed new Sections 2A and 4A. If I am wrong about that, I shall get back to my noble friend and all other noble Lords as quickly as possible.
The point made by my noble friend Lord Hodgson about having been a victim of stalking some years ago was a useful intervention. It reminded the House that this offence does not necessarily affect only women but can affect people of either sex. We have to remember that point even though, in the main, victims tend to be women. That is why my right honourable friend the Prime Minister made his announcement on another day.
I hope that both in this brief intervention and in my earlier remarks I have satisfied most of the points raised by the noble Baroness. I will listen with care to what she has to say and then it will be for the House to make up its own mind.
Baroness Royall of Blaisdon
I am grateful to the Minister and to all noble Lords who have participated in this short but excellent debate.
I understand what the noble Baroness, Lady Howe, said about ideally having a separate Bill. However, I am delighted that the noble Lord has taken the opportunity to introduce these offences into the Bill. It means that more women and men will be protected in the very near future. Who knows how long a separate Bill would take to get onto the statute book.
On the amendments I have tabled, I well understand that the House would not be behind Amendments 2 and 3 and I accept that. On Amendments 7 and 8, I hear what the Minister said about his words being merely examples and I reluctantly accept that. However, the police in Gloucestershire would certainly understand “inter alia”, even if the police in Cumbria would not.
I was disappointed by the Minister’s response to Amendment 9 for two reasons. From time to time, cases are discussed by a magistrates’ court but, in the course of the proceedings, it becomes clear that the evidence shows there is more to a case than at first seemed. It would then be entirely appropriate for the court to decide that the case should be tried in a Crown Court so that an offender could be given the maximum sentence if necessary. I am also very concerned about repeat offenders. As we know, in the past there has been a problem for victims who have suffered from people who have offended time and time again. Under the proposals put forward by the noble Lord, if someone repeats a minor offence, he or she will continue to be tried in a magistrates’ court—it will be a summary offence—and on each occasion they will be eligible for a maximum sentence of six months. I do not think that that is enough.
The key amendments are clearly Amendments 10, 11 and 12. I hear what the Minister says and am grateful for his assurances that the Government will bring forward new wording that will take into account serious psychological harm, which can be absolutely devastating, as the noble Baroness, Lady Brinton, said. In fact, in some ways it can be even worse than the fear of physical violence. The words in my amendment are those proposed by the independent inquiry, the victims and the experts, and are tried and tested words that have been proven to get results in Scotland. Why will the Minister not accept my amendment and then, if necessary, look at the matter more closely before it is discussed in the other place? I am glad that the other place will, in any event, have an opportunity to debate these very important issues. Although I fully accept the Minister’s proven good intentions as well as those of the Prime Minister, I am slightly concerned that throughout the very welcome process that we have undergone as a result of the deliberations in this Chamber, at each stage there has been a slight impediment to the progress that could properly and better be made. I am concerned that we will not get the wording that we in this House and everybody deems necessary. Therefore, I would feel much more comfortable if the Minister could say that he accepted my amendment and would then act accordingly in the House of Commons.
I also have some concern about Amendment 14. Under current legislation, those arrested for relatively minor drugs or theft offences can have their premises searched on the advice of a police inspector that a warrant is not required. That makes the whole issue relating to stalking seem to be less important. As we know that cyber-criminals are becoming more and more active, I am worried that if people have to wait for a warrant the necessary material in the house could disappear before a warrant is obtained and the premises properly searched. Therefore, I have concern about Amendment 14.
I am very grateful to the Minister for having come as far as he has come. I know that he is pushing the boundaries to ensure that we get the right results in the end with the appropriate wording in the Bill. However, I urge the Minister at this late stage to accept Amendment 11. I am withdrawing my amendment with a slightly heavy heart because I want to be confident that the Bill is absolutely right to guarantee the safety of men and women and ensure that perpetrators of stalking are not only apprehended but imprisoned and given the right treatment where necessary. I would also like to withdraw the amendment knowing that we will have a further opportunity briefly to consider and vote on these issues in the consideration of Commons amendments at the next stage in this House. Will the Minister accept Amendment 11, the key amendment with the key wording, which is of such importance to victims, campaigners and all those involved in these issues?
Lord Henley
My Lords, I made it clear to the noble Baroness that I could not accept Amendments 10, 11 or 12—all three go together. The point I was trying to make is that we want to get this wording right, and I do not want to be bound by precisely those words. We have moved pretty fast since the end of our consultation and the end of the independent inquiry. We have brought forward this amendment, which we announced last week. I then made it clear that we would have further discussions with NAPO on this matter. That is what I want to do. I do not want to bind us before we have those discussions by accepting the precise wording of those amendments. That is why I made it clear in my opening speech that we wanted to address the spirit behind them but that we wanted to discuss these matters further. I cannot accept Amendments 10, 11 or 12, but the noble Baroness has heard the commitment I have made. With that, I hope that when we finally get to those amendments—I appreciate that we have one or two debates to go before then—she will feel it is not necessary to move them. We can discuss them after another place has discussed them.
Lord Harris of Haringey
Lord Harris of Haringey
My Lords, this group of amendments deals with the vetting and barring of people working with children. I am grateful to the Minister for the meeting that took place with a number of your Lordships to consider these complicated and difficult issues. The breadth of attendance at that meeting indicated that this is a widespread, non-political concern about trying to get this part of the Bill to be as good as we can get it.
The Government are trying to reduce the number of people and individuals who have to be subjected to a vetting process before they can be employed. That general objective of reducing the numbers who go through this process is entirely laudable, but the balance has to be struck between that desire to reduce numbers and ensuring that children and young people can safely take part in activities, knowing that the adults who are working with them are proper individuals who can be trusted with children. The legislation would include certain categories automatically, in an expectation that they would be subjected to the vetting arrangements. Yet volunteers and others may not be subject to such vetting if they are under day-to-day supervision, which the Government have defined within the amendments considered at the previous stage of this Bill. I do not believe that the question of day-to-day supervision, however defined and however much additional guidance is issued, will automatically be a helpful distinction.
I think that many of your Lordships will have received a very helpful briefing from the children's charities, which have highlighted why this is an issue. They say that Clause 64,
“revises the definition of regulated activity which includes all the positions covered by vetting and barring arrangements. If positions are not included in regulated activity employers will not have to check people who work in these roles and even if they do, they will not be told if the individual is barred from working with children or vulnerable adults”.
The situation is that as the legislation stands, people who are subject to day-to-day supervision do not need to be checked. Even if they are checked, the information that will emerge from CRB and enhanced CRB checks may not necessarily include the barring information showing that incidents have occurred in previous employments, or whatever else may be the case. That is where there is a serious loophole. Indeed, the briefing goes on to say:
“We are concerned that the proposed definition of regulated activity does not cover some groups of people who have frequent and close contact with children. This creates risks for children. Those who seek to harm children can be predatory and manipulative. If certain types of work are exempt from vetting and barring, in some sectors or settings, but not in others, dangerous adults are likely to target those organisations with weaker arrangements”.
Lord Bichard
My Lords, I will speak to Amendment 5, which is in my name. Since it is a complex issue, I hope your Lordships will bear with me while I explain precisely what is in that amendment. Inevitably, I may trespass on some of the ground that the noble Lord, Lord Harris, has already touched on.
Essentially, the amendment has four components. The first provides that anyone who permits an individual to work regularly and closely with children, in whatever setting and even if the activity is not regulated, can obtain an enhanced criminal record certificate, which will disclose any convictions and any intelligence held by the police about that individual and which is relevant to that employment. It is important to note that the responsibility for deciding whether such a check is necessary would in future rest with the employer and not be required by law. The employer would be the person who makes a judgment on whether such a check is needed, based on their knowledge of the activity and the local circumstances concerned.
The second component provides that the Secretary of State will offer guidance on what is meant by “regular and close contact”, which will help employers to make their decision.
The third part provides that the guidance should also recommend that enhanced criminal record checks be made where individuals work regularly and closely with children.
The fourth part of the amendment would ensure that the enhanced criminal record checks should also give access to suitability information relating to children under the provisions of the Police Act 1997. Put simply, this would give access to information about individuals who are barred from working with children or vulnerable adults in a regulated activity, and whose names therefore appear on one or other of the so-called barring lists.
The Minister may well find this last component of the amendment difficult. It might be argued that information that causes an individual to be barred from working with children in a regulated activity is not relevant to their working with children under supervision in a non-regulated activity, even if the contact is close and regular. I take a contrary view to that argument for the following reasons.
First, anyone working with a child in situations in which they have an opportunity to develop a bond of trust can groom that child and then exploit the bond of trust when they are not being supervised. No amount of supervision, however intensive, can prevent that bond of trust being established. We all know that the opportunities to exploit it are increasingly available, not least via social networking sites.
The second reason why I do not accept that argument, which was touched on by the noble Lord, Lord Harris, is that children build trust with individuals who work with them in, for example, youth clubs, colleges or sports clubs. However, that trust is not exclusive to those settings. If they encounter that adult on other occasions, they are likely to invest the same trust in them and therefore be vulnerable to them. That is why the issue for me is not, and never has been, the quality of supervision, but rather whether the adult might pose a risk to the child. If someone is on a list which bars them from working with children in unsupervised situations, it seems to me that that information should be made available to employers who are considering whether or not to allow those persons regular and close access to children. Not all noble Lords will be aware that one in five of the people on the barring list has not come in contact with the police; they are there because of information that has been provided—for example, by previous employers.
I ask noble Lords to envisage the circumstances whereby an individual is allowed to work with children on a close and regular basis following a CRB check, that individual then abuses a child and the employer subsequently discovers that the individual was on a barred list but that this information had not been made available to them because of this legislation at the time they took the decision to employ that person. That would be very difficult to justify and explain to the employer, the parent, or indeed to the public at large.
This amendment is not about allowing more CRB checks to be made; it is for employers to take that decision. It is not about the state requiring employers to do something which some might regard as unnecessary. It is simply about giving employers the data which are available and which will help them to make an informed decision. I have sought in this amendment to produce a system which is simple and proportionate. Therefore, I have avoided distinguishing between settings such as colleges, schools and clubs. Instead the amendment refers to “regular and close contact” wherever it occurs. I have left the final decision with the employer. I accept that the current arrangements are not proportionate and are too bureaucratic, but we must ensure that any revised arrangements are comprehensible, consistent across settings and place the safety of the child above all other considerations.
The Lord Bishop of Hereford
My Lords, I welcome hugely the amendment in the name of the noble Lord, Lord Harris, and that in the name of the noble Lord, Lord Bichard. I particularly welcome them because I firmly believe that they need to be accepted as they would strengthen the Bill and make it a much safer document.
From the point of view of the churches, other faith groups and voluntary organisations, the amendments have the great advantage of making it possible for the first time within the Bill for there to be CRB checks for volunteers. To my mind, without these amendments, there is a serious omission in that regard. By broadening out that eligibility, the amendments would allow the churches to have CRB checks for Sunday school teachers, youth workers or perhaps organists who have the role of musical director for children’s choirs.
This is a complex area regarding how we within the churches, and therefore within the church communities, have been able to check using eligibility that has until now conferred by either the broad understanding of regulated activity as it has been hitherto, or having to use the concept of regulated positions from the Criminal Justice and Court Services Act 2000. However, there has until now been no recognition in the Bill of the role of the volunteers; hence, my welcome for the two amendments in the group.
Amendment 5 in the name of the noble Lord, Lord Bichard, specifically includes making those responsible for the employment and appointment of people who meet the definition eligible to make enhanced CRB checks and obtain suitable information, which we understand, and hope will be understood, to mean the vetting and barring information to which the noble Lord has made reference. However, I would make a slight qualification to what he said. He used the term “employer” throughout most of his speech, although his amendment does not do so. I want that term to be understood to include, say, a church that has volunteers, and for “employer” not necessarily to mean paid employees. Provided it is understood to include volunteers, we would be of one mind on this.
The amendment gives space, as we have been told and as the wording makes clear, for the Secretary of State to define what is meant by the phrase “regular and close contact”. Those words could be a little slippery. It is difficult for us within our churches to be specific as to what “regular” means, and we commend the approach used in Scotland, where the protection of vulnerable groups scheme also requires regular contact, but “regular” is defined there as a core part of the role rather than by a weekly or even monthly requirement. I ask noble Lords to picture a situation, perhaps in one of our village churches in our diocese of Hereford, where there might be only a monthly Sunday school or family service and where the key adults have regular but only monthly contact. Or, perhaps in one of our more urban situations, there might be a holiday play scheme whereby the adult workers, although they may regularly be involved each year, would be there for only four or five days a week in the summer holidays. However, in all those situations, the workers get to know the children well and, as the noble Lords, Lord Harris and Lord Bichard, said, the point is about access.
However, I would add a further dimension to what they said. This is also about the authority that we the church give if these workers are used, and known to be used, as volunteers within the life of the church. It makes the child think, “That is the nice Mr So-and-so who I know from church, so he is safe”. That is the assumption made. We are responsible for giving that authority, and that is part of what concerns me so strongly and why I welcome this amendment. It recognises that when such volunteers take a role, even if it is not frequent but is nevertheless regular, it is possible to build up authority and therefore trust, as well as access. That access is not about just the supervised range of the activity. The access exists outside; and that is the crucial part for me. We have been reminded that access is there within social networking, but it should be recognised, please, that access is available in lots of other ways. Half the population of the diocese of Hereford, which includes south Shropshire as well as Herefordshire, live in villages of 500 people or less. If you live in a village of 500 people, your family knows all the other families, and there is therefore trust and access. You are bound to see people at other times. It is inevitable, and that is the nature of community and village life. To say that because the regulated activity is safe, everything else is safe, is frankly not sufficient. We are responsible by giving authority and access. Therefore, it is crucial that we can also have the CRB checks.
I emphasise my strong welcome for the amendment; I would love it to be extended from just children and young people to vulnerable adults, because we could have had the same debate on the same issues there.
Baroness Walmsley
My Lords, I support the amendment of the noble Lord, Lord Bichard. It may be moderate and proportionate but has the potential to close a dangerous loophole in the Bill. Both he and the noble Lord, Lord Harris, have explained clearly the issues of secondary access, so, it being Third Reading, I do not intend to repeat them.
I do not support the amendment of the noble Lord, Lord Harris of Haringey. As he hinted, it is intended to highlight the fact that it is impossible for any employer or organiser of volunteers, however conscientiously they supervise a person working with children, to supervise them when they are off the premises. That leads us to the point that we have to ensure that the people who are on the premises working with children are safe to do so.
I hope that my noble friend will be able to assure the noble Lord, Lord Bichard, that his amendment is unnecessary. I hope that he will give him 100 per cent assurance, not just 80 per cent assurance. By that I mean that barring information will be made available to conscientious volunteer organisers or employers of paid employees.
We should cast our minds back to when the Safeguarding Vulnerable Groups Act was introduced. It was brought in because it was discovered that paedophiles were working in schools. At that time, the hapless Minister was made responsible. As a result, we set up an Act of Parliament to put in place a committee of experts to decide whether the information available made it possible to say whether that person was safe to work with children.
As the noble Lord, Lord Bichard, pointed out, only 80 per cent of the people who have been decided by the expert panel to be unsafe are known to the police. I point out that the enhanced CRB check contains information about not just charges and convictions but other information only if the police, at their discretion, think it is relevant to release it.
That expert committee has barred one in five people not as a result of police information but because of other information that the police do not know and therefore could not release even if they wanted to. Those experts believe that the information passed to them is serious enough to bar that person from working with children. Given that you cannot supervise a person 100 per cent even on the premises, and you certainly cannot supervise a person off the premises, it is only right that conscientious employers who want to do the right thing for the young people in their charge should be able to have that information—not just the police information but the information from the expert committee, which we as a Parliament have set up, and which believes that that person is not safe to work with children.
That is particularly important given that we are taking away certain roles from regulated work. That means that organisations such as FE colleges cannot under the Bill get that information about some of their employees. That beats me. I cannot for the life of me figure out why the Government feel that it is appropriate to treat young people in colleges differently from those very same children when they go to a school for the rest of the week. However, that is beside the point, because the amendment of the noble Lord, Lord Bichard, would allow employers in colleges to obtain the information that they are crying out for to enable them to protect young people in their charge. I hope that my noble friend will be able to give us a 100 per cent assurance that those risks and loopholes will be closed.
The Earl of Erroll
My Lords, everyone is singing from the same hymn sheet on this matter. These are very well meaning amendments and I thoroughly approve of the sentiment behind them but I should like to strike a note of caution: I am not sure that they will necessarily work in the real world because rules do not protect people.
I think that we are going to get the same problem as arises with the Health and Safety Executive. I know that applying for CRB information is supposed to be voluntary but colleges will protect themselves defensively by automatically asking for checks on everyone. Such requests will become standard and we will be back where we were. The purpose of the Bill is partly to try to reduce the number of checks being carried out, as they have been blocking perfectly good and well known people working in situations where they might come into contact with children or whatever. We were going so far overboard that something had to be done to roll the situation back, and we have to be careful that we do not end up back where we were.
The other thing is that we must think about how effective all this checking is. We know that several thousand records are incorrect, with people having a black mark against their name because the name given is wrong or whatever, but the trouble is that we do not know who they are. They are being criminalised when they are not criminals at all and have never been in contact with children in any way. They are not even victims of hearsay.
The second problem is that 20 per cent of the people on the register, I am horrified to say, are there as a result of unverified hearsay. That may be perfectly all right, as I expect that a large proportion of those people will have done something wrong. However, what about those who cannot do anything about it because they do not know that someone—possibly for a thousand and one reasons—has given information which could be blocking them?
My final point is about keeping our eyes open. It has to be remembered that in many instances someone without a criminal record will just be someone who has not yet been caught. Therefore, just because they do not have a criminal record does not mean that they are okay, and that is why I think that we have to start keeping our eyes open. The trouble is that we trust too much in box-ticking, and that then also constrains the people who are trying to protect the children—the governors and teachers. My wife is a senior school governor and was recently involved in a case where she had to go to court because the school in question was trying to fire a teacher. This is an example of something happening off the premises. It involved a friend of the teacher who was behaving inappropriately towards the children. The teacher’s union defended the teacher’s right to continue to work at the school, despite the teacher having shown appalling judgment. The school was terrified of losing the case. My wife spent a huge amount of unpaid voluntary time in her busy day learning about the law and how to deal with the case in court and so on because she was going to have to attend the hearing. If she got it wrong, the teacher would be allowed to continue to be in close contact with the children. Therefore, you need to keep your eyes open.
We can often detect the bad eggs but the problem is that employment law does not let us do anything about it. I think that we need to look at how employment law restricts our ability to protect children, because you cannot say to someone, “You don’t fit in. Your face doesn’t fit—we think there’s something wrong about it”; you have to continue employing them. Although it may not be a matter for this Bill, I think that some effort should be made in that direction, rather than just trying to tick more boxes. The databases are inaccurate and, on their own, will not protect children.
Baroness Howarth of Breckland
My Lords, I support the amendment of the noble Lord, Lord Bichard, and I understand why the noble Lord, Lord Harris, has tabled his amendment as an example. I say to the noble Earl who has just spoken that I, too, live in the real world—having spent more years in it than I am prepared to admit—dealing with victims and abusers. That is why I believe it is crucial that the Government listen very carefully to what is said on this amendment. It is only describing close and regular contact, and that is the absolute key.
This week, the Lucy Faithfull Foundation celebrates 20 years’ work. As the noble Lord will know, Lucy was a very eminent Member of his Benches. During that time, the foundation undertook all the background work that has led to the understanding of grooming. Other organisations have picked up that work and developed it, but the basic work was developed and continued by that foundation. That work informs the knowledge of grooming and how children develop relationships and trust in adults whom they get to know in settings where they believe that they are safe. Indeed, I remind the noble Lord that some children are seriously abused within those settings. I cite the example of a teacher who regularly abused a number of small children in a classroom, until he was found out. These people are clever; they are totally able to deceive; and we have to recognise that the law has to be as clever as they are.
Baroness Heyhoe Flint
My Lords, I regret that I was not able to be present for the debate on Report, and I am therefore glad to have this opportunity to make brief comments on the progress that has been made on this part of the Bill. In the long innings of the Bill, I started off as an attacking batsman working with the sports and recreation sector in seeking to knock certain aspects of it out of the ground. I am now sufficiently reassured to play a steady, forward-defensive, strong and resolute stroke against the proposed amendment.
In previous debates, my sporting colleagues and I, including my noble friend Lord Addington, highlighted the concerns voiced by the sport and recreation sector, which has more volunteers than any other sector in the United Kingdom—no fewer than 2 million. The central concern was that the term “day-to-day supervision” was not workable for organisations that safeguard children in a wide range of specialised and unique environments. However, I very much welcome the clarity provided by the amended qualitative description of supervision, and was greatly encouraged by the assurance given by the Minister on Report that sports organisations would have precisely the discretion that they need in determining the appropriate level of checking for voluntary roles.
In counteracting the arguments put forward by the noble Lord, Lord Harris, I am grateful to the Government for having listened and responded in this way. My sentiments are echoed by the England and Wales Cricket Board, the Football Association and other members of the Sport and Recreation Alliance, which represents more than 300 governing bodies. The Government have struck the right balance and arrived at a proportionate place, and I look forward to hearing what the Minister will say today.
The governing bodies of sport are keen for this receptive dialogue to continue, and I welcome the Minister’s other assurances on Report that his department will work alongside the sport and recreation sector to develop guidance and implement the new safeguarding framework, including in the further education sector. The noble Baroness, Lady Walmsley, spoke about that. Organisations that administer sport and recreation will need to plan well in advance of changes to ensure that the new system is implemented effectively. Therefore, anything that the Minister can say to reassure the hard-working staff of these governing bodies about the timeline and the process of the consultation will be greatly appreciated.
In conclusion, my key point, having had several in-depth meetings with the Minister and his team, and consulted very widely with national governing bodies of sport, is that we have been assured that safeguarding children will always be a priority of this Government. Safeguarding is the responsibility of everyone—the Government, employers, voluntary organisations and communities. The Government can ensure proper eligibility for criminal record disclosures for those working with vulnerable groups. However, it is also the responsibility of employers and voluntary organisations to ensure that they have in place proper, risk-based safeguarding mechanisms that protect children, and that they do not rely solely on a criminal record or barred-list check. Additionally, taking some supervised work out of regulated activity will give employers and administrators scope to make the appropriate judgment, and will reduce the burden on employers and encourage volunteering.
We in the sector that I represent have been assured that statutory guidance on supervision will be provided. The Bill makes it clear that supervision must be reasonable in all circumstances for protecting the children concerned. People working closely with children but not within regulated activities will be eligible for enhanced criminal record certificates. It is not right to provide barred-list information on enhanced criminal record certificates that does not relate to regulated activity. The information is not relevant to employers who are not providing regulated activities, and could lead to too many people being barred from work in which barring is not relevant. This action could significantly expand the scope of the scheme, possibly to greater numbers than proposed by the old scheme. With this proportionate and balanced understanding and government assurances, I feel it would be unwise to support Amendment 5 because it would take the regime back to something that would be disproportionate and would discourage volunteering across all sectors of life.
Baroness Butler-Sloss
My Lords, I very much support what the noble Baroness, Lady Howe, said from her enormous experience. I suggest that the House and particularly the Minister should take very careful account of it. Saying that means that I very much support what the noble Lord, Lord Bichard, said about his amendment, which I also support. I do not at the moment think that I support what the noble Lord, Lord Harris of Haringey, said. The amendment tabled by the noble Lord, Lord Bichard, is the one that matters.
The important point is regular and close contact with children. I listened with some dismay to the noble Baroness, Lady Heyhoe Flint, because I am not sure that she is talking about what we are talking about. I do not believe that what she said is really what we are concerned with on this amendment. I am a school governor—I am going to a governors’ meeting tomorrow—and I have been CRB checked, but I cannot see for what reason I should be CRB checked because I never see a child without someone else there. Even when I go around the school, I am always accompanied. That is not what this amendment is about. It is about regular and close contact with children, as I said, and that is the point on which noble Lords should concentrate.
Baroness Randerson
My Lords, I thank the noble Lord, Lord Bichard, for putting forward this amendment. His huge experience and understanding of this issue give this amendment strength across the Chamber. Noble Lords will be aware that in the earlier stages of the Bill I put down amendments in relation to further education in particular. From the start, I have been very concerned that the Government’s vision of the world of education is just too neat and tidy and has clear demarcation lines. In practice, life is not like that. The Association of Colleges, which represents the colleges, shares those concerns. It suggested that further education and sixth-form colleges should be placed in the same category as schools. The amendment tabled by the noble Lord, Lord Bichard, uses a form of words that takes a different, but appropriate, approach. It is a subtle, flexible approach that is suitable across a variety of settings, not just in further education or the world of education as a whole but in the church, voluntary organisations, leisure activities and so on.
In practice, young people develop relationships of trust with people to whom they can directly relate and who are helpful to them. Indeed, they often fight shy of relating to, liaising with or trusting the people who are formally in charge of a situation. Very vulnerable young people will instinctively shy away from figures of authority, so very often they develop a bond of trust with the lady in the canteen who gives them a extra-large helping, the IT technician who helps them sort out their computer, the lady in the library who does not give them a fine when they bring a book back late, or even the groundsman who has found them smoking secretly in a corner and has not told people in authority. Therefore, it is not easy to define that situation.
Lord Hodgson of Astley Abbotts
My Lords, I participated in the Second Reading debate in November. I have not participated in the stages since, although I have read the proceedings in Hansard with some care. I intend to ask my noble friend to reject these amendments but, before I turn to the substance of my remarks and because this is such a difficult and emotional subject, I hope the House will permit me a brief diversion.
At Second Reading, I made it clear that I thought the activities of those who preyed on children—or vulnerable adults, as the noble Baroness has just said—were repulsive. That was the word I used then and I use it again this afternoon. I went on to argue for the need for proportionality and the measurement of effectiveness and impact and so forth. Therefore, I was very disappointed when the noble Lord, Lord Rosser—I am pleased to see him in his place on the Front Bench—said in his winding-up remarks:
“It is all very well wanting to reduce regulation, as clearly the noble Lord, Lord Hodgson of Astley Abbotts, does, but not if it is at the expense of someone else’s safety”.—[Official Report, 8/11/11; col. 219.]
I regard that as a cheap shot. I am happy to be told that my judgment is wrong, that my understanding of the law is wrong or that the practical implications of what I am proposing are wrong, but I am not prepared to be told that I put the reduction of the regulatory burden before the safety of children. That was unfair.
The noble Baroness, Lady Howarth, gave the House a graphic explanation of her work in this area. I will just add my own few words. My wife’s cousin is a forensic pathologist, and he undertakes for the noble Lord’s department post-mortems of the most searing kind. I talked to him about his work and I asked him if he did not find it rather macabre. He said, “Not really, because I am a detective. Some detectives will crawl across the carpet looking for clues in the fibres. I am finding the clues in people, and I am therefore able to convict the guilty and let the innocent go free”. Because I am squeamish, I also say, “Isn’t it rather strange to be dealing with corpses?”. He said, “By the natural order of things you get used to it but when we have a child brought into our post-mortem room, there is a palpable change in the atmosphere, the tension and the behaviour of the team”. Whatever I am saying about the need to not accept these amendments, it is not because I think that children should not be protected. That forensic pathologist’s stories of the things he has seen are harrowing beyond belief.
On 6 February 2012, the second day on Report, in moving his amendment, the noble Lord, Lord Bichard, said,
“first, that we cannot create a risk-free society; secondly, that the steps we take to minimise risk should be proportionate. For those reasons, I very much sympathise with and support the Government in seeking to strike the right balance in this very difficult area”.—[Official Report, 6/2/12; col. 107.]
I say amen to that. I entirely agree with the noble Lord. I further agree that getting the balance right is exceptionally difficult.
However, I argue that to some extent the Government have already got the balance right, which is why I shall ask my noble friend to resist this amendment. I do so for three reasons: first, it changes the relative importance of judgment as opposed to process; secondly, there is a bandwagon effect in this whole area, which will result from some of the wording of the noble Lord’s amendment; and, thirdly, there is the danger that this amendment will contribute to the further atomisation of our society.
On judgment versus process, I follow some of the remarks made by the noble Earl, Lord Erroll. When I was taking evidence on the preparation of the report Unshackling Good Neighbours, it was astonishing how many people saw the official check as the beginning and end of the matter. There is health and safety, and other areas, as well as the CRB. Too often, individuals did not wish or saw no reason to use or trust their individual judgment. My fear is that the more we push the process forward, the less people will feel that they need to use their judgment and intervene, because they feel that it is someone else’s responsibility.
Strangely, in the briefing we received from Fair Play for Children, some of that attitude reveals itself. It states:
“We also point out the possibility that the person, in applying for another post within the organisation, might find himself subject to scrutiny against the barred list, and barring revealed. That places employers at that stage in an invidious position of having had such a person working for them with children and then having to comply with statute to refuse the new job”.
I cannot for the life of me see what is “invidious” about this. It is about a proper, disciplined and clearly run business. If a person changes his job and has different responsibilities involving further exposure and involvement with children, at that point the employer is entitled to say, “I am afraid this is not something which you can become involved with because of the role you are now undertaking”. When I read that the,
“day to day supervision is a reference to such day to day supervision as is reasonable in all the circumstances for the purpose of protecting any children concerned”,
I believe that the Government have got the balance about right.
On the bandwagon effect, subsection (4) of the new clause proposed under Amendment 5 in the name of the noble Lord, Lord Bichard, states:
“Guidance produced for the purposes of subsection (3) … shall recommend that such organisations as described, should seek to obtain a relevant enhanced criminal record certificate as a matter of best practice”.
The noble Lord may think that he will cut down the number of criminal records checked but, faced with the matter of best practice, individuals running charities, voluntary groups and sports clubs will face ever greater pressure to obtain an enhanced criminal record certificate. It will be argued that this is needed to be on the safe side. Charities have groups of people which depend on CRB checks, so they are not going to say it is not needed; rather they will say that, for access, it is best practice.
We saw lots of examples in the evidence given to us before we completed our report, Unshackling Good Neighbours. It is tragic to see how many people, rightly or wrongly, are put off from volunteering because they do not want to be CRB-checked. In many cases they did not need to be CRB-checked, but the authorities thought they should be in order to be on the safe side. The University of Oxford has advertised for students to help invigilate in its museums. The job requires sitting in a room or corridor and watching the exhibits so that visitors cannot remove or destroy them. But they now have to be CRB-checked. It is hard to see how the job falls within the requirements of a CRB check but, to be on the safe side, that is what the university wants to do.
Last, I turn to the atomisation effect. Social scientists say that our society is becoming atomised, as they call it, and social media mean that we live increasingly isolated lives. The noble Lord, Lord Bichard, in an interesting article in the House Magazine this week, talks about how social media provide the opportunity for grooming, and I agree with him absolutely on that. I said in my speech at Second Reading that this is one of the most difficult areas we have to tackle going forward. However, if we are not careful, we will enhance the selfish gene which lies within all of us. People say that they see no reason to help their town, village, street or community. To reverse this trend and encourage people to reconnect and get involved, we need to welcome them, not treat them as criminals.
It is a fact, thank goodness, that a fractional minority of people seeks to prey on children. The overwhelmingly vast majority of our fellow citizens are decent, law-abiding and want to do their best. It is with these people in mind that I urge my noble friend not to accept these amendments.
Lord Peston
Is the noble Lord saying that if we accept these amendments, there would be no net increase in the number of children who would be protected?
Lord Hodgson of Astley Abbotts
I cannot prove a negative, and that is one of the difficulties of arguing either for or against any form of regulation. You cannot prove what will happen. I suspect that there will be no net increase in the risk to children. I suspect that but I cannot prove it, just as the noble Lord cannot prove the contrary.
Lord Addington
My Lords, I rise to speak very briefly. Would my noble friends on the Front Bench explain one point? I dealt with a series of amendments that were quite well received by the government Front Bench—“better than half a loaf” was how I described it. Can they explain to the House the process of giving guidance to individual groups so that they know how the process of getting information from the group works and what guidance they will be given as to what they are supposed to do? A little more information about this might help.
I have come to the conclusion that everyone thinks the world they are talking about is totally unique. Sports bodies think that they are totally unique, as do schools. We now ask representatives from sports governing bodies to go into schools, which is an extension of good practice because when people get involved in a club early, that produces the best coaching, the most enthusiasm and the lowest drop-out rates in a sport. It is good for public health and everything else. Putting representatives of sports governing bodies into schools makes, I hope, for a better and more rounded system. Indeed, we tried something similar under the previous Government. There must be an interchange between these two groups.
I hope that my noble friend will tell me that we are talking to all these groups so that they know what they are doing and are having an effective interchange. If we do that, many of the concerns being expressed here will start to become, shall we say, more realistic. Moreover, there is no perfect system, and that is something we have to take into account. I call upon my noble friend to give us a little more insight into the process that the Government want to initiate because there is a great deal of chasing of shadows and fears being expressed in this area. Some of those fears are real and some are not, while some of them are potential fears. We cannot deal with them all, and we never have been able to. It does not matter how many checks you have if you have not caught that one person yet. Can my noble friend give us an idea about the ongoing structure that will be needed for this, because surely that is going to be the best way forward? We are all on the side of the angels, so let us not fight over which angels.
Lord Rosser
My Lords, under the Bill, it will be possible for people who have not been subject to the barring arrangements to work regularly with children or be in regular contact with children. Such a situation could arise if individuals concerned were being supervised by someone else. Employers in this situation will not be prohibited from requesting CRB checks on individuals who apply for “unregulated posts”, but they will not be legally required to do so after the Bill is passed. However, crucially, employers will no longer be able to see the “barred status” of an individual for posts which fall outside regulated activity.
It will be not be possible to ascertain whether the Independent Safeguarding Authority has ever made a judgment that the individual in question should be barred. Instead, it will be left to the organisation or body concerned to seek any information in the Criminal Records Bureau check and make its own judgment, but it will be unable to find out what conclusions the Independent Safeguarding Authority may have come to despite the fact that one would expect it to have some expertise in this area.
The Independent Safeguarding Authority collates and assesses information from a wide range of sources in order to come to a decision on whether an individual should be barred from working in regulated activity. Enhanced CRB checks, on the other hand, disclose only information held by the police and do not take into account the wider pool of evidence. Yet, as has already been said in the debate, roughly 20 per cent of the people on the barred list have never been in contact with the police and the evidence that has led to their being barred has come directly from employers and other sources. Surely, the objective should be to ensure that if one organisation or authority is aware that an individual has a record of abuse of others of whatever age, another authority or organisation engaging that person, either as an employee or a paid volunteer in work with vulnerable people, should not do so in ignorance of that individual’s previous record of abuse, including any assessments that have been made.
It has already been said that serious and potentially serious sexual offenders are all too often very good at covering their tracks and their activities. The Government have maintained that adults who have been “barred” by the Independent Safeguarding Authority from regulated work with children should be allowed to work under “supervision” with children. They have, unfortunately, not yet listened to children’s charities, voluntary organisations, schools and parents who tell them that however close the supervision it cannot prevent bonds of trust being formed between adult and child that could be exploited outside the supervised context and environment.
It is all very well wanting to reduce regulation on those who work regularly with children and have close contact with them, but we need to take care that it does not unnecessarily put at risk someone else’s safety or, in extreme cases, their life. I do not regard that comment as a cheap shot but as a realistic attempt to address the question of balance and proportion in considering this very serious issue.
The Government say that they are committed to giving organisations more responsibility to determine the appropriateness of checks for different roles. Therefore, surely they should not deny organisations which wish to benefit from the expert judgment of the Independent Safeguarding Authority and the full extent of information held by it from doing so if they consider it appropriate. If the Government are determined to remove obligations to check many thousands of individuals, they must at least allow employers and organisations using the services of adults to work regularly and in close contact with children, in whatever settings, to apply independently not only for enhanced CRB checks but also for the “barred status” of individuals and to recommend this as good practice.
We support the amendments, including that to which the noble Lord, Lord Bichard, has put his name. That amendment addresses the issues to which I and many others have referred in this debate and places an additional requirement on the Government to recommend in guidance the routine checking of non-regulated individuals as best practice, which takes us closer to an appropriate position on ensuring the safety of our children.
Lord Henley
My Lords, as always, I am grateful to the noble Lords, Lord Bichard and Lord Harris, for introducing their amendments. As always, I am grateful, too, to all those who have spoken in this debate, though at times it felt not like a debate on the amendment but more like a Second Reading debate on the general principles. I should remind the House that we are at Third Reading. I make that point because we have gone way beyond day-to-day supervision, which is the subject of the amendment of the noble Lord, Lord Harris, and way beyond children, which is the matter of the substantive amendment. We have got on to such things as vulnerable adults, which is another matter and not relevant to what we are discussing today. I want to discuss the particular amendments, of which there only two, Amendments 4 and 5, and respond to them in due course.
I start with the simpler amendment, from the noble Lord, Lord Harris, because I think that he received very little support for it other than from his Front Bench—I am not even sure that he supported his own amendment, because he pointed out the inadequacies of it. The amendment would require anyone in a school supervising a volunteer who looks after children to monitor communication between that volunteer and the children. It specifies types of communication they must monitor, including sign language. As I think the noble Lord accepts, it is too prescriptive. We have more faith in the common sense and good judgment of managers in schools than seems to be implied by the amendment.
No doubt the noble Lord will make up his own mind about what to do with the amendment. He has had very powerful support from his noble friend Lord Rosser, but I am not sure that he has had it from others. Therefore, at this stage, the important thing to do would be to move on and deal with the substantive amendment in this group of two, which is that in the name of the noble Lord, Lord Bichard. If the House wanted to come to a conclusion on these two amendments, I would hope that it would come to a conclusion on that in the name of the noble Lord, Lord Bichard, and not that in the name of the noble Lord, Lord Harris. I make that purely as an introductory point.
The noble Lord, Lord Bichard, seeks four things; first, that enhanced criminal record certificates be available where someone is working regularly and closely with children; secondly, that the Government issue guidance on what “regular and close” means; thirdly, that the guidance will recommend it as best practice to obtain an enhanced certificate; and, fourthly, that those certificates contain information about a person’s barred status, which could also be obtained by a direct barred-list check. I shall deal with those four points in that order. I hope that the House will listen to me carefully and remember that it is with those four things that we are dealing and not wider aspects in relation to the CRB and so on.
On that first point, I am happy to confirm that all those people who work regularly and closely with children will remain eligible for enhanced criminal record certificates. People who remain within regulated activity will be eligible for them for that reason alone. People no longer within regulated activity will remain eligible for them, as I have confirmed before and can do so again. In view of those assurances, I hope that the noble Lord will agree that it is not necessary to place that provision in the Bill.
On the second issue, that the Government should produce guidance on what regular and close contact means, we are already meeting the substance of this proposal. Clause 77 already commits the Government to publishing statutory guidance on the meaning of day-to-day supervision. We must be careful to avoid introducing two sets of statutory guidance about similar subjects, which would create confusion and lead to unnecessary additional burdens on businesses and voluntary organisations. Therefore, while we cannot meet the form of the noble Lord’s proposal in this area, I believe that we are already meeting the substance.
Thirdly, the amendment states that the Government should recommend that obtaining enhanced criminal record certificates is best practice for those who work closely and regularly with children. Again, here I can offer some reassurance to the noble Lord and others who have spoken. I can confirm that the statutory guidance on supervision, which we are already committed to introducing, will recommend that it is good practice to obtain an enhanced criminal record certificate when employees or volunteers are new or unknown to the organisation or if checks are needed for new posts or staff moves. Where existing employees are concerned, I hope that the House would agree that it is properly a matter for employers and voluntary organisations to judge whether periodic checks are helpful or whether to use the new updating service which helps make these criminal records more portable.
The final proposal of the noble Lord, Lord Bichard, is that employers should be able to discover whether those of their employees who work, or will be working, regularly and closely with children are barred from working with children, either via an enhanced criminal record certificate or via a direct barred-list check. Barring information will be available in relation to posts within regulated activity and a few compelling exceptions such as those applying to foster or adopt a child, but the Government cannot agree to release barring information in other circumstances.
At this juncture, it might be worth going back to the review of the vetting and barring scheme which we published a little over a year ago. The context of the review was to achieve a better balance between public protection and civil liberties: to achieve a system which is, to use a word which Ministers have much deployed during debates on the Bill in this place and another place, proportionate. The protection of vulnerable groups, including children, is paramount. That is why the review concluded that a central barring scheme should be maintained.
However, there are other important principles which need to be balanced with this, not least the civil liberties of individuals, and that is why these measures are included within the Bill. Those viewpoints have received somewhat less airing—I am grateful that some have—in this House but they are very real and widespread. It is not proportionate for barred people to have their barred status communicated to employers when it is not relevant. It is relevant in the case of a post falling within regulated activity because the person is prohibited from working in that role and the prospective employer must know that. Otherwise, it is not proportionate to pass on that information because bars relate only to regulated activity. Passing on barring information would tell employers that a person is barred from another area of work. However, despite that, many employers will not engage someone if they see the word “barred” even if the bar is not relevant to that role. To introduce this change would be greatly to expand the number of people subject to barred-list checks and it would undermine our efforts to reduce the scope of regulated activity and to make the barring arrangements more proportionate.
However, I can offer the noble Lord some reassurance in this area. While we do not think it right to communicate that someone is barred in these cases, it can be useful to pass on the information which led to the bar. This is more valuable information for an employer. In most cases this will be visible on an enhanced certificate anyway, not just in the four-fifths of bars which follow automatically from a criminal conviction or caution but in many of the one-fifth of bars which derive from other information. As I have said before, we will encourage regulated activity providers to report information to the police where appropriate, as well as to the Independent Safeguarding Authority.
I can offer one further measure. Section 50A of the Safeguarding Vulnerable Groups Act allows the Independent Safeguarding Authority to provide any information to the police, which could include the information which led to a bar. While the existing purposes for which this information can be passed to the police do not include the purposes of disclosing information on an enhanced criminal record certificate, Clause 77(3) of the Bill allows the Secretary of State to prescribe new purposes. I can confirm that we will include a new purpose for providing information for disclosure on enhanced criminal record certificates. We will introduce this alongside the new definition of regulated activity. This will allow the ISA or the Disclosure and Barring Service to give to the police information which led to a bar and, if the police judge it relevant to the post applied for, the police may disclose it on an enhanced certificate. This is a better solution than telling an employer that someone is not barred. Indeed, providing the information that led to a bar will be of far more benefit to a prospective employer than simply providing the word “barred”, allowing the employer to make an informed choice.
The noble Lord, Lord Bichard, said on Report:
“I would like to think that we could say quite simply that all organisations employing adults, whether paid or unpaid, to work regularly with children, in whatever setting, should be able to carry out enhanced CRB checks, and that should be recommended by the department as good practice”.—[Official Report, 15/2/12; col. 798.]
I have made it clear to the House that we are committed to delivering on both these points. Indeed, I hope noble Lords will agree that I have gone further in undertaking to provide for the police to include the reasons for a barring decision on an enhanced certificate where such information is relevant to the post in question, but only where it is. On that basis, I hope the noble Lord, Lord Bichard, will agree that I have satisfied the points that he raised on Report and will agree not to move his amendment.
Lord Bichard
I am seeking clarification in order to be helpful. Am I hearing from the Minister that in future the barring authorities will make available to the police the information on which they have made their decision, but not necessarily the decision, and the police can then decide whether that is relevant information to make available to employers who carry out a criminal record check? To be clear, is that what is now being said?
Lord Henley
That is what I want to make clear, but as long as the information is relevant. We do not want irrelevant information passed on because of the damage that could possibly cause to the individual concerned.
Lord Bichard
This dialogue cannot and will not go on for ever but, of course, under the current arrangements, the police make a decision about whether the information they have on convictions is relevant. Therefore the Minister is suggesting that they would make the same decision about information they receive from the barring authorities about individuals. Is that correct?
Lord Henley
My Lords, I will again remind the noble Lord and the House that we are at Third Reading. I shall repeat the words I used. If the police judge it relevant to the post applied for they may disclose it on an enhanced certificate—no more and no less.
Lord Harris of Haringey
I am grateful to noble Lords who have contributed to the debate. I was particularly struck by the contributions of the noble Lord, Lord Bichard, the right reverend Prelate the Bishop of Hereford, the noble Baronesses, Lady Walmsley and Lady Howarth, and the noble and learned Baroness, Lady Butler-Sloss.
The issue is to protect children. While we, as parents, warn our children against stranger danger, we are talking here about individuals who are not strangers. These are people who have been put into a position where it looks as though they are trusted individuals. That is why these complicated discussions we are having about what checks should be done on individuals who are supervised and the nature of the supervision are extremely important.
Because of the developing thinking that has taken place in your Lordships’ House through the Committee stage, Report and now at Third Reading, my amendment was almost a Committee stage probing amendment to try to understand the nature of the guidance the Government are envisaging and what day-to-day supervision would look like. However, we have heard that the Government do not think it will be possible to provide sufficient guidance on day-to-day supervision to give the reassurance we are looking for. That is why the amendment proposed by the noble Lord, Lord Bichard, refers to guidance on,
“regular and close contact with children”.
Quite properly, the issue is whether the relationship between the adult and child is one where the contact will create that position of trust.
The Minister talked about the circumstances in which information that has led to an individual being barred is provided to the police. In my 26 years in local government, to which the Minister referred earlier as being insufficient to have acquired adequate judgment about these things, I chaired on a number of occasions disciplinary panels to decide whether individuals should be dismissed for inappropriate behaviour with children. Those individuals were not reported to the police but would have been put on a barred list. Now I am a trustee of a charity, for which I have been CRB-checked, which has volunteers working with children to put on theatrical productions, and so on. As a trustee or a parent I would be appalled if some of those volunteers could not be checked to see whether they had been barred previously from working with children, whatever the circumstances.
It is a strange way to go about the business that, rather than the simple information on which the authority has decided that an individual should be barred, it should now rely on that information being passed to the police and the chief officer of the police deciding whether it is relevant. It is a very convoluted way to do something when most of your Lordships—I accept not all—believe that there is a more sensible way.
The substantive issue is explored in Amendment 5 and in a moment we will hear what the noble Lord, Lord Bichard, intends to do with that amendment. In the mean time, partly because I have not received the clarification that suggests to me that day-to-day supervision can appropriately be defined in guidance—my amendment could not do so either, I suspect because it is impossible to provide adequate reassurance about day-to-day supervision—I beg leave to withdraw my amendment.
Lord Bichard
“Voluntary application for relevant information: children
(1) The Secretary of State shall by regulation ensure that any person who permits, or is considering whether to permit, an individual to engage in any form of work, for gain or otherwise, which involves regular and close contact with children, may be permitted to obtain a relevant enhanced criminal record certificate.
(2) In this section “relevant enhanced criminal record certificate” means an enhanced criminal record certificate issued under section 113BA of the Police Act 1997, which includes by virtue of that section, suitability information relating to children.
(3) The Secretary of State shall produce guidance on the interpretation of the terms “regular and close contact with children” under subsection (1) of this section.
(4) Guidance produced for the purposes of subsection (3) of this section shall recommend that such organisations as described, should seek to obtain a relevant enhanced criminal record certificate as a matter of best practice.
(5) In table 1 of Schedule 7 to the Safeguarding Vulnerable Groups Act 2006, at end insert—
“20. Person who permits, or is considering whether to permit, B to engage in any form of work, for gain or otherwise, which involves regular and close contact with children, but does not fall within Part 1 of Schedule 4. | Children”” |
Lord Bichard
I thank the Minister not just for the discussion today but for discussions before today with other Members as well as myself. I thank, too, all those who have participated in this debate, which has on occasions lapsed into criticising the existing arrangements. I agree with those who say that we have too many checks too often and that they deter people from volunteering. There is no question about that, which is why the Government have put forward those proposals. My amendment accepts the Government’s fundamental position and, let us be clear, does not produce more bureaucracy or ticking of boxes. It concerns only those adults working regularly and closely with children, not those who just happen to have some contact with children on an irregular basis.
At the end of the day, what matters is that employers who will now make the decision have the information that we have to enable them to make the best possible decision. As someone said, that will not guarantee that children will not continue to be abused, because you cannot guarantee that; but it is very difficult for us to justify a situation in which information is available but not made available to those who will make the decision.
The question therefore comes down to whether or not the undertakings given today are sufficient to enable me not to press the amendment to a Division. I am conscious that in this House a lot of people feel very passionately about this issue and are very concerned about this vote. I agree with the noble Lord, Lord Harris, that the proposal made in the Bill is convoluted; it is not one that I would have thought was the obvious way forward. On the other hand, it ensures that the information that society has available about an individual is available to the person who makes the decision if the police make their own decision that it is relevant. It is difficult for me to pursue the amendment purely because we are not giving information that an individual has been barred or not barred from regulated activity. On the basis that the information that led to the barring or not barring is available to the police, who can then make a decision about whether it should be made available to the employer, I shall not press my amendment.
Lord Henley
“StalkingOffences in relation to stalking
(1) After section 2 of the Protection from Harassment Act 1997 (offence of harassment) insert—
“2A Offence of stalking
(1) A person is guilty of an offence if—
(a) the person pursues a course of conduct in breach of section 1(1), and(b) the course of conduct amounts to stalking.(2) For the purposes of subsection (1)(b) (and section 4A(1)(a)) a person’s course of conduct amounts to stalking of another person if—
(a) it amounts to harassment of that person,(b) the acts or omissions involved are ones associated with stalking, and(c) the person whose course of conduct it is knows or ought to know that the course of conduct amounts to harassment of the other person.(3) The following are examples of acts or omissions which, in particular circumstances, are ones associated with stalking—
(a) following a person,(b) contacting, or attempting to contact, a person by any means,(c) publishing any statement or other material—(i) relating or purporting to relate to a person, or(ii) purporting to originate from a person,(d) monitoring the use by a person of the internet, email or any other form of electronic communication,(e) loitering in any place (whether public or private),(f) interfering with any property in the possession of a person,(g) watching or spying on a person.(4) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 51 weeks, or a fine not exceeding level 5 on the standard scale, or both.
(5) In relation to an offence committed before the commencement of section 281(5) of the Criminal Justice Act 2003, the reference in subsection (4) to 51 weeks is to be read as a reference to six months.
(6) This section is without prejudice to the generality of section 2.”
(2) After section 4 of that Act (putting people in fear of violence) insert—
“4A Stalking involving fear of violence
(1) A person (“A”) whose course of conduct—
(a) amounts to stalking, and(b) causes another (“B”) to fear, on at least two occasions, that violence will be used against B,is guilty of an offence if A knows or ought to know that A’s course of conduct will cause B so to fear on each of those occasions. (2) For the purposes of this section A ought to know that A’s course of conduct will cause B to fear that violence will be used against B on any occasion if a reasonable person in possession of the same information would think the course of conduct would cause B so to fear on that occasion.
(3) It is a defence for A to show that—
(a) A’s course of conduct was pursued for the purpose of preventing or detecting crime,(b) A’s course of conduct was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or(c) the pursuit of A’s course of conduct was reasonable for the protection of A or another or for the protection of A’s or another’s property.(4) A person guilty of an offence under this section is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both, or(b) on summary conviction, to imprisonment for a term not exceeding twelve months, or a fine not exceeding the statutory maximum, or both.(5) In relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003, the reference in subsection (4)(b) to twelve months is to be read as a reference to six months.
(6) If on the trial on indictment of a person charged with an offence under this section the jury find the person not guilty of the offence charged, they may find the person guilty of an offence under section 2 or 2A.
(7) The Crown Court has the same powers and duties in relation to a person who is by virtue of subsection (6) convicted before it of an offence under section 2 or 2A as a magistrates’ court would have on convicting the person of the offence.
(8) This section is without prejudice to the generality of section 4.””
Baroness Royall of Blaisdon
I shall not move this or the other related amendments, because I am confident that the Minister will ensure that the discussions between the Bill team, Napo and other experts in the coming week will encompass issues wider than those relating to the wording of the new offence under new Section 4A, because I know that the Minister, like his right honourable friend the Prime Minister, will want to ensure that all the commitments that they have made in the last weeks can be adhered to.
Lord Henley
“Clinical negligence(1) Civil legal services provided in relation to the obtaining of one or more expert reports in clinical negligence proceedings.
(2) In this paragraph—
“clinical negligence proceedings” means proceedings which include a claim for damages in respect of clinical negligence;
“clinical negligence” means breach of a duty of care or trespass to the person committed in the course of the provision of clinical or medical services (including dental or nursing services);
“expert report” means a report by a person qualified to give expert advice on all or most of the matters that are the subject of the report;
“proceedings” includes any sort of proceedings for resolving disputes (and not just proceedings in court), whether commenced or contemplated.”
“( ) section 53 and Schedule 3,”
Baroness Stowell of Beeston
In moving Amendment 15, I shall also speak to Amendments 17, 26, 27, 28, 30 and 31. However, I shall not detain your Lordships as these are technical amendments, so unless a noble Lord wishes to raise a point, to which of course I shall be willing to respond, I beg to move.
“(ja) the amendments of Schedule 1 to the Criminal Justice and Police Act 2001, and Schedule 5 to the Sexual Offences Act 2003, in Part 10A of Schedule 9,”
“( ) No order under subsection (1) appointing a day for section 103 to come into force shall be made until—
(a) the Secretary of State has produced and laid before both Houses of Parliament a response to any recommendations made in the post-legislative scrutiny review of the Freedom of Information Act;(b) both Houses of Parliament have given legislative effect to any recommendations arising from that review which require legislation to take effect; (c) the Secretary of State has laid before both Houses of Parliament any revisions to the code of practice issued under section 45 of the Freedom of Information Act 2000 (issue of code of practice by Secretary of State) made in pursuance of paragraph (da) of subsection (2), or of subsection (2A) of that section of that Act; and(d) both Houses of Parliament have passed a resolution affirming support for any such revisions to the code of practice.”
Baroness O'Neill of Bengarve
My Lords, the amendment addresses a range of issues on which we have had long discussions at Second Reading, in Committee and on Report, on the clauses dealing with proposed extensions of the application of the Freedom of Information Act 2000 to research data sets.
I thank the Minister especially for his agreement at Report to delay implementation of this part of the Bill until the completion of the post-legislative review of the workings of the Freedom of Information Act. Delay alone is not, however, enough, but it may be fruitful if used actively to deal with issues that have been raised in the course of the passage of this Bill. Amendment 19 sets out some conditions for a process for using this delay constructively. I hope that it builds upon the Minister’s indication at Report that the delay would be used.
So far amendments proposed to this part of the Bill have mainly met a uniform response that the exemptions in Freedom of Information Act already cover the case. In some instances perhaps they do, but it has not been easy to see that they do. There have been very few detailed explanations of how they do so, and no arguments that they can continue to do so in the world in which we find ourselves. That is a world in which new players, often in the Far East, combine high-quality IT with ambitions to be scientific and technological innovators, yet do not respect others’ IP and are protected by jurisdictions that provide no remedies for IP violations. These circumstances mean that arguing that there have been few requests for research data in the past is no adequate guide to the future.
Lord Oxburgh
My Lords, I have added my name to this amendment. I think it is widely accepted that when the freedom of information legislation was originally conceived, little or no thought was given to the effect that it might have on universities. In the event, this is of less importance today because since that time there have been major changes in the role of universities, but it means that the new legislation should reflect those changes—and frankly, this has not happened. The purpose of this amendment is to ensure that the outcomes of post-legislative scrutiny are taken fully into account before the relevant parts of the Bill come into force. Unless they are, there is a risk of serious damage to our university system. It is damage that will not make tabloid headlines. It will be slow and incremental, but it will be certain.
Under current legislation, universities are regarded as “publicly owned companies” and carry the concomitant Freedom of Information Act disclosure obligations. This is in spite of the fact that they now receive more of their income from private sources than from the Government—a greater proportion, in some cases, than private companies. This comparison is relevant because, following the policies of successive Governments, universities are now expected to behave as private bodies, collaborating and/or competing with private industry in commercialising their research. They are also in competition for students with each other, with overseas universities and with private universities. Under the legislation as it stands, they cannot do any of this on equal terms because details of their plans, costings and research activities may have to be disclosed.
On the matter of university/industry collaboration, the present disclosure arrangements, to which my noble friend Lady O’Neill has referred, are deeply unattractive to business because of the belief, right or wrong, that the confidentiality of collaborative work may depend on discretionary exemptions that can be challenged. Such collaborations are difficult enough to set up in the first place, and uncertainty over the implications of FOI can cause the company simply to walk away.
One of the first questions that have to be addressed by scrutiny is whether the current definition of a publicly owned company is satisfactory. Another is whether there is a presumption in favour of disclosure of all the information held by such a body, or whether there is a class of competition-relevant information for which the presumption might be non-disclosure. This problem is not addressed by the current system of exemptions. It may be worth pointing out, and this relates to the cost question raised by my noble friend, that there is a recent example of a university incurring massive legal fees of over £250,000 in a case in which it believed that the release of data requested would put its staff at risk from animal rights activists.
Another serious question is whether there should there be any qualification of the right of access to public body information. At present, anyone anywhere in the world can exercise that right. Should the right be restricted to UK citizens and bodies? To offer an example, a British university was conducting a study for Cancer Research UK into the factors that influenced the behaviour of young people smoking tobacco. An FOI request for the data was received from a foreign tobacco company. It is clear that the funders of the research would not have wished the data to be released to the company and, to pick up an earlier point, might well not have funded the work at the university had they regarded this as a possibility.
A final area that requires attention and clarification is the conflict that can arise between the requirements of FOI legislation and obligations under other laws. There are examples of conflicts with the Data Protection Act, the Animals (Scientific Procedures) Act and environmental information regulations. The purpose of our amendment is therefore to ensure that full weight is given to the outcome of the scrutiny and that Parliament has the opportunity to confirm that it is satisfied with the Government’s response.
Some of the points that I have made have already been made and submitted in evidence to the scrutiny group by Universities UK and the Russell Group in their submissions to the scrutiny process. I strongly support all the points made by my noble friend in her speech.
Lord Sutherland of Houndwood
My Lords, the speeches that we have heard from two very senior practitioners in relevant fields make a powerful case. I shall not run through their arguments again, nor the ones that I put forward during the previous stage of the Bill. I simply underline the fact that if people of this calibre are expressing concerns and those concerns could be dealt with by using the government procedure of post-legislative scrutiny to inform practice, that is a very reasonable request and I hope that the Minister will feel free to accede to it.
The Earl of Erroll
My Lords, I, too, spoke about this danger at an earlier stage of the Bill, and I think the amendment is sensible. Sometimes there are unintended consequences when we make rules, but in this case, because people have seen that there are almost certainly going to be some adverse consequences for UK research establishments, it is sensible to delay implementing this part of the Bill until we have thought about it a little harder and seen some results from other places.
Baroness Brinton
My Lords, I want to add to the comments about the complexities of the data sets, which the noble Baroness, Lady O’Neill, outlined earlier. I am grateful for the Minister’s comments about addressing this after post-legislative scrutiny. Does he have any idea when that is likely to conclude and therefore when there might be a review? I thank the noble Lord, Lord McNally, for his agreement to meet me and my noble friend Lady Hamwee outside the legislative process to see whether we can get some clarity on the whole vexed issue of exemptions with the advice to higher education institutions of the Information Commissioner.
Lord Henley
My Lords, I understand all the concerns that have been expressed by a number of noble Lords in the course of this debate, at earlier stages and in the large number of meetings that I have held with the noble Baroness, Lady O’Neill, and others over the preceding months. We want to address those points.
We understand the worries of the noble Lord, Lord Oxburgh, when he talks of the risk of serious damage to universities resulting from the Freedom of Information Act. I remind him that that Act was passed 10 years or so ago and came into effect some five years ago, and so far that damage has not happened. We understand his concerns, though, and will continue to try to address them, and I will continue to give assurances today, as I have done on earlier occasions.
The amendment—it is always important at Third Reading to discuss the amendment, not wider issues—seeks to delay the commencement of Clause 103 until the concerns of the noble Baroness and others about the reuse of data sets are addressed through the revised code of practice under Section 45 of the Freedom of Information Act, and more generally about the cost of FOI requests and the adequacy of exemptions. The noble Baroness asked me to comment on those last two, but that really ought to wait until we have dealt with that post-legislative scrutiny. The noble Baroness is right to highlight these by way of amendments, but we are agreed that putting them into the Bill is not the appropriate way forward. I hope therefore that she will find the following comments of some use.
I turn first to the Section 45 code of practice, through which we intend to provide guidance about the data-set provisions in the Bill—for example, on licensing conditions. Neither Clause 102 nor Clause 103 will be commenced before the revised code has been put in place. We will consult, as is required under Section 45, the Information Commissioner in drawing up the revised code before it is laid before Parliament.
We must develop guidance that ensures that the application of Clause 102 on data sets is understood and clear in order to ensure that the perceived problems described over recent months are avoided and that clarity is provided. Clearly, the views of experts working with data sets will be important in developing that guidance, and those will be taken account of to ensure that we get the guidance right.
I shall say a little more about post-legislative scrutiny of the Act. That assessment, which is under way now, of the operation of the Act is the best way of addressing more general concerns. Given that the Freedom of Information Act applies to a very wide range of bodies, it is important that comprehensive evidence is collated from a wide range of interested parties before deciding what changes might usefully be made. Once again, I can provide some reassurances.
On the timing, I do not anticipate the committee taking so long to publish its recommendations that there is any significant likelihood of Clause 103, or for that matter Clause 102, being commenced first.
However, I must exercise a little caution over subsequent legislation to implement any recommendations. We all understand that secondary legislation is relatively quick to bring forward and revised guidance even quicker. However, I am sure noble Lords understand that enacting primary legislation would necessarily take somewhat longer and could therefore delay the enhancement of the right to data for a considerable time. I am sure the House of Lords will also understand that I cannot pre-empt the outcome of the deliberations of the Justice Select Committee, sitting under Sir Alan Beith, which are being informed in part by evidence submitted by the higher education sector. Therefore, I cannot predict exactly what action the Government will consider it necessary or appropriate to take as a result.
However, I can reassure the noble Baroness, Lady O’Neill, that we do not intend to drag our feet following publication of that post-legislative scrutiny. Whatever actions are deemed appropriate in the light of the Justice Select Committee’s recommendations will be taken as quickly as possible. It is important for public authorities and users of the Freedom of Information Act alike that it functions as effectively as is appropriate. Therefore, the Government will consider the evidence collated during post-legislative scrutiny, including that presented by the higher education sector, as they ensure that this is the case.
As I have already indicated several times, we certainly want to maintain, protect and enhance the leading position of the United Kingdom research sector. That is why I hope that, given my assurances about timing and what post-legislative scrutiny will involve, the noble Baroness will withdraw her amendment. I assure her that the review will continue and that we will act on it as quickly as we can once we have the results of the scrutiny.
Baroness O'Neill of Bengarve
My Lords, I thank the Minister for listening to what the process set out in Amendment 19 is. I understand his reluctance to make any commitment under the heading of introducing changes that may be recommended by Sir Alan Beith’s committee but that require primary legislation. For that reason, I shall withdraw the amendment.
However, on other matters this has been like sweeping a very long and dusty floor with all the dust still in front of us. We will need to look with great care at the codes of practice. A code of practice is often a fragile instrument and these data sets are of very high value. We have to be careful in what we do, lest we wish we had done something else at the end of it. With those assurances, I thank the Minister for his sustained attention to these less than thrilling issues and beg leave to withdraw the amendment.
Lord Henley
Lord Henley
My Lords, in moving Amendment 20, I will speak also to Amendments 21 to 25. On Report, I gave notice to the House that the Government were considering whether it would be helpful to clarify further the scope of the regime for retention and destruction of material under Section 18 of the Counter-Terrorism Act 2008, as substituted by Part 3 of Schedule 1 to the Bill. We have concluded that new Section 18 of the 2008 Act, as currently drafted, is too broad and requires further clarification so that the intended scope of the provisions properly provides that crime scene material is excluded from any destruction regime.
To this end, Amendment 20 provides that new Section 18 applies only to biometric material that is held by a law enforcement authority under the law of England, Wales or Northern Ireland that is not subject to existing statutory restrictions and is held for the purposes of national security. Amendments 21 to 23 and Amendment 25 provide that material taken under a number of other statutory regimes is subject not to the destruction regime in the Counter-Terrorism Act but to the rules in those enactments. Amendment 24 corrects a minor drafting error regarding the relevant section of the Intelligence Services Act 1994 to be included in the list of existing statutory restrictions. I beg to move.
Lord Henley
“( ) paragraph 18(2) of Schedule 2 to the Immigration Act 1971;”
“( ) paragraphs 20(3) and 20A to 20J of Schedule 8 to the Terrorism Act 2000;( ) section 56 of the Criminal Justice and Police Act 2001;( ) paragraph 8 of Schedule 4 to the International Criminal Court Act 2001; ( ) sections 73, 83, 87, 88 and 89 of the Armed Forces Act 2006 and any provision relating to the retention of material in an order made under section 74, 93 or 323 of that Act;”
Lord Henley
“( ) is a person in relation to whom a moratorium period, under a debt relief order made under Part 7A of the Insolvency Act 1986 or Part 7A of the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I.19)), applies,”
“( ) is the subject of a debt relief restrictions order or an interim debt relief restrictions order under Schedule 4ZB to the Insolvency Act 1986 or Schedule 2ZB to the Insolvency (Northern Ireland) Order 1989,”
Lord Henley
“41A (1) Section 120A (refusal and cancellation of registration on grounds related to disclosure) is amended as follows.
(2) In subsection (3A) omit paragraphs (b) and (c).
(3) Omit subsections (3B) and (3C).
(4) In subsection (3D)—
(a) for “subsections (3A) to (3C)” substitute “subsection (3A)”,(b) for “those subsections” substitute “that subsection”, and(c) omit the words from “, except” to the end of the subsection.”
“Part 10AStalkingProtection from Harassment Act 1997141A (1) The Protection from Harassment Act 1997 is amended as follows.
(2) In section 1(2) (circumstances in which a person ought to know that a course of conduct amounts to harassment) after “this section” insert “or section 2A(2)(c)”.
(3) In section 4 (putting people in fear of violence)—
(a) in subsection (5) after “section 2” insert “or 2A”, and(b) in subsection (6) after “section 2” insert “or 2A”.Crime and Disorder Act 1998141B (1) Section 32 of the Crime and Disorder Act 1998 (racially or religiously aggravated harassment etc.) is amended as follows.
(2) In subsection (1)—
(a) in paragraph (a)—(i) after “section 2” insert “or 2A”, and(ii) for “offence of harassment” substitute “offences of harassment and stalking”, and (b) in paragraph (b)—(i) after “section 4” insert “or 4A”, and(ii) after “violence” insert “by stalking or otherwise”.(3) In subsection (5) for “the basic offence” substitute “either basic offence”.
Criminal Justice and Police Act 2001141C In Part 1 of Schedule 1 to the Criminal Justice and Police Act 2001 (powers of seizure to which section 50 of that Act applies), after paragraph 63, insert—
“Protection from Harassment Act 199763A The power of seizure conferred by section 2B(2) of the Protection from Harassment Act 1997 (seizure of material relevant to stalking).”
Sexual Offences Act 2003141D In Schedule 5 to the Sexual Offences Act 2003 (relevant offences for the purposes of notification and orders)—
(a) in paragraph 56A—(i) after “section 2” insert “or 2A”, and(ii) for “offence of harassment” substitute “offences of harassment and stalking”, and(b) in paragraph 57—(i) after “section 4” insert “or 4A”, and(ii) after “violence” insert “by stalking or otherwise”.Criminal Justice Act 2003141E In Part 1 of Schedule 15 to the Criminal Justice Act 2003 (sentencing of dangerous offenders: specified violent offences), in paragraph 57—
(a) after “section 4” insert “or 4A”, and(b) after “violence” insert “by stalking or otherwise”.”
Lord Henley
“( ) the Milk (Cessation of Production) Act 1985,”
“In section 120A— (a) subsection (3A)(b) and (c), (b) subsections (3B) and (3C), and (c) in subsection (3D), the words from “, except” to the end of the subsection.” |
Lord Henley
Baroness Stowell of Beeston
My Lords, I am very grateful to the noble Lord, Lord Ponsonby. I know that he has waited very patiently all afternoon. It may be of assistance to the House for me to remind noble Lords that, at Bill do now pass, once the Motion has been moved formally, as it just has, it may be opposed and reasoned or delaying amendments to it may be moved. However, in other circumstances it is not normally debated.
Lord Ponsonby of Shulbrede
My Lords, I wish to raise a new issue, which came to my attention at the end of last week. I was advised by the Public Bill Office that I should take the slightly unusual step of raising this new issue on this Motion. I also informed the Minister’s office that I intended to do this.
It is the intention of the Bill to adopt the Scottish model for protections for the DNA database, and therefore to find an equivalent to the Scottish sheriff courts in England and Wales. As currently worded, the Bill requires the hearings to be before a district judge from the magistrates’ court. This is too restrictive; all that is necessary is for the application to be made to a magistrates’ court. Whether to put the matter before a district judge or a lay bench of magistrates can then be decided locally. This may be a small point but it is one of principle and practicality.
The point of principle is that lay benches have exactly the same powers as district judges. There is only one exception to that, which is in the matter of extradition. Beyond that, it is a point of principle in magistrates’ courts in England and Wales that lay benches have exactly the same powers as district judges.
The point of practicality is that limiting applications to district judges will mean unnecessary inconvenience to citizens. There will be delay and there may be extra costs. The reason for that is that district judges tend to sit in large cities and may be less readily available than lay benches.
I realise that this matter is being raised at a very late stage. I have given the noble Lord notice of it and I look forward to his response.
Baroness Hamwee
My Lords, I shall speak for a moment in the hope that my noble friend Lord Dholakia will get here. I know that he has raised this matter with the Government as well. It is welcome to have unusual procedures available to make sure that we get the final product right. Someone is telling me that my noble friend is not here. I merely wanted to record that he has raised the same matter. I am sure he will be grateful to the noble Lord, Lord Ponsonby, for raising it now.
Lord Henley
My Lords, I will respond briefly in light of the remarks of my noble friend. The noble Lord, Lord Ponsonby, gave me notice of this issue and raised the question of which judicial body is appropriate to hear applications, under Clause 3, to extend the retention of DNA for those charged with a serious offence but not convicted.
As the House will be aware, this procedure is modelled closely on the system that has been in place in Scotland since 2006. In Scotland, these applications are heard by sheriffs, who, as the noble Lord will be aware, are full-time judicial officeholders, rather than by justices of the peace. In adopting the protections of the Scottish model, we have merely sought to replicate the position in Scotland. I would like to take this opportunity to reassure the noble Lord and other noble Lords—I think that the noble Lord is a lay magistrate—that this is not intended in any way to diminish the valuable work which lay magistrates do every day in dealing with the vast majority of cases before magistrates’ courts across England and Wales. However, as we have discussed previously, we expect these applications to be comparatively rare and we judge that, as in Scotland, it makes sense to put them before a professional judge rather than the lay magistracy.