Protection of Freedoms Bill
(12 years, 8 months ago)
Commons ChamberRead Hansard Text Read Debate Ministerial Extracts
17:57 - The House divided: - Ayes: 200 / Noes: 286 - Question accordingly negatived.
20:05 - The House divided: - Ayes: 207 / Noes: 300 - Question accordingly negatived.
The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire)
I beg to move, That this House disagrees with Lords amendment 16.
Mr Speaker
With this it will be convenient to discuss Lords amendments 17 and 18, and Government motions to disagree.
James Brokenshire
The amendments would provide that powers of entry may be exercised only with the agreement of the occupier of the premises in question or on the authority of a warrant, unless the authority using the power
“can demonstrate that the aim of the use of the power would be frustrated if a warrant or agreement were sought.”
That restriction would be disapplied where the power of entry is being exercised by a trading standards officer, a constable or a member of the Security Service, or in pursuance of the protection of a child or vulnerable adult.
We are sympathetic to the objective underpinning the amendments. We all agree that powers of entry, particularly as they relate to peoples’ homes, should be subject to proper safeguards, but we believe that the blanket approach taken by the amendments is misconceived and, as such, could hamper legitimate enforcement activities and put lives at risk. The amendments are predicated on the basis that there has been an unacceptable proliferation in the number of powers of entry—some 600 such powers were created by the previous Government—and that in many cases there are insufficient safeguards attached to such powers. The Government share that analysis, which is why we have included the provisions in chapter 1 of part 3 of the Bill. The problem we have with the amendments is not their objective, but the blanket approach they adopt, even if it provides exemptions for a small number of specific bodies. We judge that such an approach would simply not work. One size, in this case, does not fit all, and the fact that the amendments include limited exemptions serves only to demonstrate that the approach taken, while it might appear superficially attractive, is incapable of withstanding close scrutiny.
In adopting the blanket approach of requiring in all cases the consent of the occupier or a warrant, the amendments fail to differentiate between powers of entry that support routine enforcement activity and those powers that protect the public from serious crime or from threats to life and limb.
Keith Vaz (Leicester East) (Lab)
Does the Home Office have any statistics on the number of times that police officers have entered using the powers that they already have?
James Brokenshire
What I can point the right hon. Gentleman to is the published list of the various powers of entry that we analysed, as it indicates that the total number of powers for all agencies is between about 1,300 and 1,400. That is obviously quite a significant number, hence the reason why in our judgment the analysis, the review and the measures in the Bill are appropriate, given that the proliferation has expanded considerably over the past few years. As I indicated, about 100 new powers of entry were created under the previous Government, hence the reasons for the measures in the Bill and why we feel that the mechanism contemplated by the Lords amendments does not quite fit or work in terms of what is required.
There will undoubtedly be other circumstances, not contemplated by the Lords in their amendments, in which an exception to the general rule should apply. The key point is that without examining each power individually we simply have no way of knowing whether the amendments add necessary safeguards to the overbearing powers of a state official or stymie the operation of a vital tool designed to protect the public.
Given the acceptance of the need for exemptions, it might be tempting simply to add to the list of those officials who are exempt from the requirement to obtain a warrant or the consent of the occupier, but that approach is mistaken. In recognising the need for exemptions, we should not then rush to apply blanket exemptions. Naming specific officials, in the manner of the amendments, grants such persons free rein to operate without the need to consider a warrant or the occupier’s consent, regardless of the purpose for which the officials are seeking to gain entry. That is too broad an exemption.
Interestingly, in the other place the Opposition supported the amendments, but are they really arguing that trading standards officers should, in all circumstances, be able to exercise their powers of entry without the consent of the occupier, or on the authority of a warrant? We shall have to wait and see what the official Opposition say in response to those points, reflecting on the debate that took place in the other place.
Such an exemption might also give that person immunity from the review we intend to undertake, and that simply is not desirable. We want to review all powers of entry, including powers exercised by constables and by trading standards officers, but the presence of such people in the situation under discussion proves unequivocally that the amendments do not work.
It has been suggested that amendment 17 offers the necessary flexibility by authorising entry without consent or a warrant
“where the authority using the power can demonstrate that the aim of the use of the power would be frustrated if a warrant or agreement were sought”.
But such a provision would simply create confusion and uncertainty, as it would open up the exercise of a power of entry to legal challenge by an aggrieved occupier who might argue that the requirement to enter the premises in question would not have been frustrated if he had been asked to consent or if a warrant had been applied for.
I hope that my remarks make it clear that the Government are not simply inviting this House to disagree with the amendments and then leave it at that. As I have said, we support the principle that in the great majority of cases powers of entry in respect of domestic premises should indeed be exercised only with consent or on the authority of a warrant, but the way to achieve that is through the existing provisions in this part of the Bill. Clause 40, for example, allows us to add safeguards to powers of entry such as a requirement to obtain an occupier’s consent, providing reasonable notice, or getting a warrant before entering a person’s house. The new code of practice under clause 47 will govern the exercise of powers of entry and set out further safeguards to protect the rights of individuals and businesses.
The duty to review powers of entry under clause 42 will require Ministers to examine all the powers for which they are responsible and report to Parliament on the outcome of that review. The reports of these reviews will indicate whether individual powers are no longer justified and should therefore be repealed or retained but with the addition of better safeguards.
James Brokenshire
If the right hon. Gentleman refers to the Bill, he will see that the time period contemplated is two years, in order to allow proper consideration of all the relevant 1,300 to 1,400 powers of entry. This is not something that will simply lie in abeyance. The review of all powers must be completed within two years of Royal Assent, and we have said that we will report back to Parliament every six months to provide an update on progress, so there will be a steady updating process. I hope that that gives him comfort. I also highlight to him the Home Office gateway, which provides an ongoing check and balance in relation to new powers of entry, as well as the ability to review existing powers of entry that may be triggered as a consequence.
Mr David Hanson (Delyn) (Lab)
What ultimate sanctions are in place in the event that the two-year review is not completed by any Department?
James Brokenshire
The review is a specific statutory requirement, and we are focused on ensuring that it is undertaken with all due expedition. The right hon. Gentleman will be aware of the requirements of the ministerial code and other requirements on Departments and Ministers to abide by the law. In addition, the ongoing six-monthly review that I mentioned will enable the House to maintain pressure on Departments to ensure that the provision is being properly adhered to and followed through with the intent and spirit of the Bill.
I point out to the right hon. Member for Leicester East (Keith Vaz) that we have made significant progress through the Home Office gateway, which considers all applications by Departments for new powers of entry. To date, 19 applications to create or amend powers of entry have been considered, and we have added greater safeguards in every case. Every power of entry in respect of domestic dwellings that has been approved through the gateway process has included a requirement that entry is obtained either with the consent of the occupier or on the authority of a warrant. We have also taken the opportunity to scrap a number of powers.
I hope that that reassures right hon. and hon. Members that we are serious about ensuring that powers of entry are subject to appropriate safeguards and that we are committed to rolling back intrusive state powers and strengthening the privacy of home owners and businesses.
When taken together, the gateway process and the measures that I have outlined add up to a significant commitment to tackle what we have recognised to be a significant infringement of the rights of home owners. I have also made it clear that we cannot, in every case, demand that entry is effected only with the consent of the occupier or on the authority of a warrant. I put it to the House that our approach will ensure that the necessary safeguards are put in place to protect home owners, while providing greater legal certainty and ensuring that the police and others can act swiftly to protect the public. I therefore have no hesitation in inviting the House to disagree with the Lords amendments.
Mr Hanson
I am grateful for the opportunity to contribute to this short debate.
Lords amendments 16 and 17 were supported in another place by Lord Selsdon. I welcome the debate about powers of entry and look forward to the Minister’s response to the points that I will put to him. When both I and Lord West were Ministers in the Home Office, the then Prime Minister, the right hon. Member for Kirkcaldy and Cowdenbeath (Mr Brown), commissioned him to write a review of entry powers. The report that Lord West produced was overtaken by events with the general election, but I will refer to it with regard to the matters before the House.
The genesis of the Protection of Freedoms Bill lies in a document published in 2010 called “Modern Conservatism: Our Quality of Life Agenda”. I hope that the Minister will not think this too harsh, but I thought that, on balance, it was a rather tawdry document and I disagreed with almost every word of it. I do not say that very often or very lightly. The Lords amendments, which were passed with the support of the Opposition in another place, as the Minister said, would hold the Government to account for what they said they would do in that document. It stated that a Conservative Government, who I accept are upon us, would
“cut back the intrusive powers of entry into homes. Public bodies (other than the police and emergency services) will require a magistrates’ warrant, and approval for such a warrant will be restricted to tackling serious criminal offences or protecting public safety.”
This is an area of private grief between Government Back Benchers in another place and the Government. The Lords amendments would allow the Government to deliver on one of their major promises. That is something that the Government have failed to do on many occasions.
Steve Baker (Wycombe) (Con)
Will the right hon. Gentleman give the Government just a little leeway, after only two years, in untangling the giant pile of messy powers of entry that his Government left the coalition?
Mr Hanson
The hon. Gentleman has walked directly into my fist. “Modern Conservatism: Our Quality of Life Agenda” stated:
“When he became Prime Minister, Gordon Brown pledged to introduce a new liberty test to curtail powers of entry…He commissioned Lord West to undertake a review of entry powers. A final report by Lord West was supposed to be published by spring 2009, but has been continually delayed and kicked into the long grass.”
Lord Henley discussed that very point in another place, and the Minister referred to it today.
Clause 42, “Duty to review certain existing powers of entry”, places on Ministers of the Crown a duty to review relevant powers of entry within a relevant period, which happens to be two years. I may not be a great mathematician, but as I recall, we were criticised for kicking the matter into the long grass in 2009, yet now we cannot expect a final report until 2013 if the Bill receives Royal Assent. I ask the Minister and the hon. Gentleman whether that qualifies as kicking the matter into the long grass. I fear that it does. My noble Friend Lord West and my right hon. Friend the Member for Kirkcaldy and Cowdenbeath were criticised for kicking the matter into the long grass by delaying the review of powers of entry. However, clause 42 seems to provide for the very delay for which the Minister criticised us when he was the Opposition spokesman.
Steve Baker
I am most grateful to the right hon. Gentleman for his attempt, which we hear so often from the Opposition, to rewrite history and demonstrate Labour’s commitment to liberty. There are Government Members who would have been delighted if measures on powers of entry had been introduced by now, but I put it to him that the Government’s caution merely reflects a mature and sensible approach rather than the more gung-ho tone that some might take towards liberty.
Mr Hanson
It was mature and sensible reflection when we were accused of kicking the matter into the long grass in 2009-10, when I was a Minister in the Home Office. I am pleased that the hon. Gentleman has planted his flag in the ground on this issue, because he is holding true to the Conservative manifesto commitment. I am genuinely surprised that there are not more Government Back Benchers wanting to hold the Government to account for why they are not fulfilling their manifesto commitment. Perhaps he will do that in due course.
My colleagues in another place supported the amendments, so that we could have this debate today and get the Minister’s comments on record. Concerns were raised, for example, about the term “trading standards officers”, which is not a recognised term. I would welcome him addressing those concerns.
As my right hon. Friend the Member for Leicester East (Keith Vaz) suggested, we have some concerns about the review provided for under clause 42. It places a duty on Secretaries of State to review the powers of entry for which they are responsible and report back to Parliament within two years of Royal Assent, following the necessary detailed analysis. As I said, we were accused of kicking the matter into the long grass, but the Government must consider 2013 shorter grass than 2011, which is when we would have had the review.
That aside, the purpose of the review under clause 42 will be to have each individual power of entry examined, to determine whether it is still required or whether it should be repealed, have safeguards added to it or be consolidated with similar powers to reduce the overall number. As we are already two years into the Government’s time in office and face the prospect of another two years before we hear back from the review, I do not believe I am far amiss in saying to the Minister and the hon. Member for Wycombe that the Government are potentially ducking the issue and leading the review into longer grass than we planned.
I would like some updates from the Minister on the points we have made. How long does he expect each Secretary of State to undertake the review? Does he expect the reviews from each Department to be completed before the end of the two-year period? Will he report back on the reviews en masse, when all Departments have completed them, or will he do so when individual Departments have completed reviews on their areas of responsibility?
Does the Minister expect to report back earlier than in two years’ time? As I have mentioned, what are the sanctions on Secretaries of State who do not meet the target? Will he report back on that? How does he expect Secretaries of State who have not met the target to report to the House? Can he guarantee that Parliament will have an opportunity to debate the review in full once it is published? Will he give some indication of how many legislative proposals on power of entry he expects to be reviewed and in due course repealed? According to the Conservative quality of life manifesto, there are 1,242 state powers of entry. Will the Minister indicate whether he has set targets for the outcome of the review? How many of those will be in place at the end of the review? Will he indicate how many of those powers of entry will in due course be on the bonfire that he promised in the manifesto?
The Conservative Government promised to cut back intrusive power of entry into homes. I am interested as to whether the Minister and his team will ultimately achieve that objective. We need clarity about the review. The Opposition will not support the amendments because we do not feel they are valuable, and I look forward to hearing the Minister’s response in due course.
Jacob Rees-Mogg (North East Somerset) (Con)
The Minister’s opening remarks gave a degree of reassurance on the Government’s position, but I feel that the starting point should be that the forces of law and order and of the state should not as a matter of routine have the right to enter people’s houses. One of the most important freedoms that we enjoy as British subjects is that if somebody comes into our house without our invitation, it must be because some important crime has been committed, or there is some emergency or another immediate reason. The problem with the Minister’s reassurance is that there is always a suspicion that Governments do what is convenient rather than what is right, and that the bureaucrat always feels that it is easier to enter somebody’s home or office than to go through a complex procedure—to get a warrant or to obtain a justice of the peace’s authorisation—to go into somebody’s property.
I remember listening to a brilliant speech by the present Attorney-General when the Conservative party was in opposition and when pulling back on such warrants was our formal policy. As the Minister has done today, my right hon. and learned Friend went through the vast numbers of powers that have built up—600 have been introduced in recent years and there are as many as 1,300 in total. How minor some of them are. If a council inspector believes that there is a flea infestation, he can enter somebody’s home to see whether fleas are hopping about. That was introduced in the 1930s, so it is not part of the recent accumulation of powers, but it reflects a century of belief in the big state and of allowing increasing powers to the state to take steps that are more convenient than necessary.
This House is always here to protect the rights and liberties of the individual against the over-mighty Executive. Although I believe the present Government are undoubtedly the greatest Government in the history of mankind, it is none the less in the nature of Governments to try to increase the powers they have, because it is always more convenient to do so. One can imagine the advice from officials to Ministers—“Minister, it will be easier and quicker and save money if we do this”—but that must be weighed by the House against the historic and ancient rights that we have enjoyed and that are so important to us.
We have enjoyed these freedoms to the great benefit of our nation and prosperity. The feeling of security that people have in their home—the feeling that they can go about their lawful business in their home without the forces of the state coming in to question what they are doing or how they are living—has allowed us to become one of the most prosperous countries in the world. Those ancient freedoms have underpinned all of that not just in recent years, but over many centuries. We have always been one of the freest countries in the world and one that has protected the property and rights of subjects against an over-mighty Crown more strongly than other nations have been willing to do.
Although I have received—I think—sufficient reassurance from the Minister to support the amendments, I hope that the Government will carry out the review with the greatest urgency. Many people would have been more sympathetic to the Government’s view if, instead of just a rejecting motion, they had tabled an amendment with a bit more detail on the time scale, or perhaps a requirement that if the review is not finished in two years, any power that has not been reviewed must fall or be the subject of a warrant or the agreement of the person whose property is to be invaded.
I will end my brief remarks by reminding the House of the words of Pitt the Elder—known as the Great Commoner, that proud upholder of liberties in the 18th century. What he said should ring true today for all subjects of Her Majesty:
“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storm may enter, the rain may enter—but the King of England cannot enter”.
That is a principle that we ought to uphold and fight for. The Government should push ahead as fast as possible to ensure that these 1,300 powers are cut right back purely to those that are essential in the fight to maintain law and order or to put out fires.
Keith Vaz
It is a pleasure to follow the hon. Member for North East Somerset (Jacob Rees-Mogg), who eloquently reminds us that an Englishman’s home is indeed his castle and that it is vital that it be protected from an overactive state. I have great sympathy with what he said.
I support what the Government are doing in the review. As we heard from my right hon. Friend the shadow Policing Minister, that was the position of the last Government, even though, as we were reminded, the number of powers has been increased—by 600, the Minister said—in the past 13 years. I am sure that if he consults the relevant Hansard reports, he will see that I voted for most, if not all, of the additions. Had it not been for the general election, the noble Lord West would have completed his review. I too would like the review to be completed within the two years. It is easy for parliamentarians to set deadlines that they perhaps know cannot be met and put further burdens on Ministers, but it would be helpful if the review could be conducted within that period.
I am not sure by what mechanisms the review will be conducted. Will it be conducted by a joint committee of Ministers and will it include officials of various Departments? Clearly the Home Office will take the lead, but is there merit in commissioning—to use a word that will become of great interest to people—outside Government and allowing academics or practitioners to be involved in the process, so that it is not just Home Office officials but those who deal daily with the conduct of these matters? I would be interested to know how that will take place. It might help to speed up the review if it is taken out of Government and given to someone else to look at.
My second question relates to the update that the Minister is proposing the Government give Parliament. Will that be an oral statement by the Home Secretary or a written statement, and will it be an amalgamation of what individual Ministers have said or just one statement on behalf of the whole Government?
Finally, it would be helpful to know whether the Government intend not to initiate any new legislation that might affect this area until the review is over and has been published. Is it the Government’s position that, because an emergency or some unpredictable occurrence might require the use of emergency powers, we might have to enter this territory—that is, we simply cannot stop it happening—and increase the number of police powers or other powers; or is it their intention to say, “Let us pause and draw a line in the sand,” as the hon. Member for North East Somerset said, and to consider what has been done in the past, along with what they plan to do in future, before passing any legislation?
Apart from those three points, I support what the Government are doing, and I think the review will be very helpful indeed.
Ben Gummer (Ipswich) (Con)
I, too, support the general thrust of Lords amendments 16 to 18, but I completely understand the Minister’s concerns about the effect they would have on the legislation.
I very much agree with my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) on the need for some sort of restatement of our fundamental liberty with regard to private property, which is one of the underpinning foundations of English law. To that end, my addition to the points made by the right hon. Member for Leicester East (Keith Vaz) and my hon. Friend is to ask whether we might have a restatement of that general principle. The amendment gives a negative statement about those powers that may not be used except in certain circumstances. I wonder whether, in their review, the Government might restate the general principle of the sanctity of property and of private property, so that that should be the bar by which all future incursions against private property will be judged, and so that exactly that kind of guard might be imposed on future Governments—a point to which my hon. Friend rightly alluded.
I am very much reassured by my hon. Friend the Minister’s assurance that the matter will be considered within the time scale promised. On previous points where further work by the Government was needed, he has given an assurance and delivered on it exactly as he said he would. I have no doubt at all that he will do so in this case, and his comments so far give me great confidence.
Steve Baker
When I look at Lords amendments 16 to 18, my instinct is certainly to support them, but after many, many hours in Committee with my hon. Friend the Minister, I know that he has a thoroughgoing commitment to progress towards liberty, so I assure him of my future support for simplifying powers of entry. As I have said previously to my right hon. Friend the Home Secretary, who is in her place, when the knock comes on the door, householders should be able to know whether the person knocking has a right to enter, or whether they are permitted to refuse entry. However, having sat through both the Public Bill Committee’s evidence sessions and heard contributions from Opposition Members, I know that the Minister has met the forces of reaction. I encourage him not to succumb to reactionary opposition or to the notion that certain powers should be elevated over liberty in the interests of security or expediency. I am confident that he will be steadfast in the cause of liberty, so I will support the Government.
James Brokenshire
I rise to respond briefly to a number of the points raised. Let me assure my hon. Friends the Members for North East Somerset (Jacob Rees-Mogg), for Ipswich (Ben Gummer) and for Wycombe (Steve Baker) of this Government’s commitment and resolve to roll back the arms of the state that may seek to intrude into private life.
The measures before the House this afternoon are important. They underpin our focus on ensuring that powers of entry are proportionate, appropriate and respect the right to be able to enjoy one’s home without undue interference. The House will also recognise, however, that there are certain circumstances in which such intervention might be appropriate—to protect health, to prevent harm or to ensure that criminals are legitimately brought to justice. That is why we are undertaking the review that I have outlined this afternoon.
I assure the right hon. Member for Leicester East (Keith Vaz) that I understand his desire to get on with this. We have said that we will report back to the House on a six-monthly basis, and I anticipate that that will involve a joint report on behalf of all the relevant parts of the Government Departments undertaking the review, to provide an update on the progress and the steps that are being taken. We intend the review to be Home Office-led and it will be undertaken in large measure by officials, but they will be responsible to Ministers, and I assure the House that Ministers will be driving the process forward, recognising the House’s strong feelings about the importance of liberty.
It was a bit rich of the right hon. Member for Delyn (Mr Hanson) to suggest that we were trying to kick this matter into the long grass and to defer or delay it. On the contrary, we are legislating through the Bill, we are taking action and we are setting out a clear process to roll back powers of entry, which grew enormously under the last Government. The fact that 600 new powers of entry were created during their period in office underlines the fact that due regard was not given to the implications of those measures. I am proud that this Government are introducing a clear mechanism to review the impact of powers of entry and the necessity of their remaining on the statute book or being made subject to further safeguards. The measures in the Bill will allow that to be done.
I very much welcome the support that has been expressed by right hon. and hon. Members on both sides of the House this afternoon. I know that the right hon. Member for Delyn will want to ask what target we have set, but I hope he has realised that we are not a Government who arbitrarily set targets. We will look at this matter in a measured, considered way and decide what is in the best interests of liberty and the protection of freedoms in relation to safety and security, as well as of the freedom from the intrusion of an overbearing state.
James Brokenshire
I will give way, having made a challenge to the shadow Policing Minister.
Mr Hanson
I sense that the Minister is about to finish his speech. Before he does so, will he try to answer the question that I put to him earlier? In the event of a Secretary of State not meeting the duty set out in clause 42, what sanctions would be available to address their failure to meet that target?
James Brokenshire
I think I have already answered the right hon. Gentleman’s questions fairly and squarely in terms of the statutory requirement on which I hope the House will legislate. I hope that that measure will go on to the statute book. The Bill represents a significant step forward—one that the previous Government failed to take during the 13 years in which they were creating 600 additional powers of entry. I note that he is seeking to push and challenge us on this, but I must point out that the Bill represents a significant step forward. Ministers will be bound by the provisions, and they will take the new responsibility extremely seriously.
I hope that the House is minded to disagree with the Lords in their amendments this afternoon. That in no way implies a lack of commitment, resolve or focus on the Government’s part to ensure that powers of entry are properly examined and, as appropriate, scaled back to ensure that they properly protect without intruding, and that they are not retained on the statute book if they are not necessary.
Lords amendment 16 disagreed to.
Lords amendments 17 and 18 disagreed to.
A New Clause
Stalking
Stella Creasy (Walthamstow) (Lab/Co-op)
I beg to move amendment (b) to Lords amendment 51.
Mr Deputy Speaker (Mr Nigel Evans)
With this, it will be convenient to discuss amendments (c), (d), (e), (f) and Government amendments (g), (h), (i), (j), and (k) thereto.
Lords amendment 52, and amendment (a) thereto.
Lords amendments 59 and 68
Lords amendment 133 and Government amendments (a) to (c) thereto.
Stella Creasy
The need for legislation to create a distinctive offence of stalking has been clear for some time. I therefore start the debate by welcoming the Government’s willingness to respond to these calls for such legislation. Our amendments reflect the need to ensure that this opportunity for progress is not missed and that the evolution of these proposals continues so that they can truly meet the needs of those we wish to protect.
To put this case, I want to set out why we consider that the legislation as currently proposed is limited in its ability to deliver this protection, and what we learn from that in scrutinising the Government’s proposals that are on the table. We all now know that the Protection from Harassment Act 1997 has been unable to offer the protection from stalking required for its victims. It is estimated that there are currently 120,000 cases of stalking every year, but fewer than 4,500 were convicted of harassment in 2009; of those, only 565 were jailed.
The current legislation is not able to cope with stalking because these behaviours cannot be meaningfully defined by specific forms of contact. Rather, this is an offence about the impact of conduct or patterns of behaviour by those individuals who fixate on others and seek to cause distress, fear or alarm. The current legislation offers only the same tools that we have at present to deal with disputes between neighbours—and it has struggled to cope as a result.
The Protection from Harassment Act 1997 created two criminal offences of harassment and putting people in fear of violence, as well as providing for restraining orders, which are more well known, where a breach, in theory, can lead to an arrestable offence. We now know, however, that victims of stalking talk repeatedly about the frustrations caused by the police being required to see patterns of behaviour, examples of a breach or evidence that someone has repeatedly damaged property or acted in a certain way or created a fear of violence. Others have talked about the importance of training the police, magistrates and the Crown Prosecution Service to help them understand the range of acts that fall under stalking—including, especially, cyber-stalking. That is because it is a summary offence of harassment, and many felt that the police did not go far enough and did not allocate appropriate resources to investigating these cases, or frankly, that it was seen as simply not serious enough to warrant the effort. I shall return to the question of seriousness in a few moments.
It is little wonder that the recent inquiry into stalking found that 72% of victims were unhappy with the response they received from the criminal justice system, with the majority stating they had experienced stalking for over 18 months or more and through multiple forms of contact; yet only 47% said that their perpetrator was even charged. As Tracey Morgan, a key member of the inquiry panel into stalking has said:
“stalking is where domestic violence was 30 years ago. It’s seen as a joke; a celebrity problem. Victims are told they should be flattered by the attention”—
but we all know of the reality. We have heard the stories of people like Tracey whose lives were torn apart by a person who fixated upon them. We have heard of the ex-partners who torment men and women online and offline; we have heard of women such as Clare Bernal who was brutally murdered by her former boyfriend, despite warnings about his behaviour.
We know from other jurisdictions how having a specific offence of stalking can help to address these concerns. In the 10 years prior to the introduction of the offence of stalking in Scotland, Strathclyde police reported a total of 70 stalking-related prosecutions. In the first six months after legislation providing for a specific offence was enacted, there were 140 prosecutions in Strathclyde alone, and it is estimated that there will be between 500 and 600 in Scotland as a whole by the end of the year.
Mr Robert Buckland (South Swindon) (Con)
The hon. Lady is making a powerful point about Scotland. Scotland moved straight from “breach of the peace” legislation to legislation on stalking, so the comparison is quite dramatic. We in England and Wales are in a slightly better position, but the comparison is nevertheless invidious, which is why the proposed change in the law is so essential and welcome.
Stella Creasy
In order to establish whether the present proposals will deal with our concerns adequately, it is worth considering what has happened in Scotland as a result of the legislation providing for a specific offence, and also making comparisons with what is offered by the Protection from Harassment Act 1997.
On behalf of the House, let me thank those who have been campaigning on these issues, and who have led action both in the House and outside. Working with Protection against Stalking and the National Association of Probation Officers, the all-party inquiry into stalking— in which I know the hon. Member for South Swindon (Mr Buckland) participated—has tirelessly and persistently made the case for new legislation. I pay tribute to both those organisations, and to the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), who is present, for all their work on the inquiry.
Although she was not able to be here today, I think that the shadow Home Secretary, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), deserves credit for putting the case for the legislation in September last year. She also stressed the need for stronger sentencing and police training to improve responses.
Finally, I think that we must all pay particular tribute to Baroness Royall, who, back in November, began tabling amendments to the Bill in the other place to introduce this law in some form and thus to force action on the issue. We can see that that tactic has worked. Ministers initially refused to accept the case, saying that the current legislation covered criminal behaviour of this kind, but their view has now changed, and that change is welcome. I note that Lord Henley himself acknowledged the work of Lady Royall in raising the issue.
Jeremy Corbyn (Islington North) (Lab)
My hon. Friend is making an excellent case. There has been a good deal of publicity and discussion on stalking over the last six or 12 months. Has my hon. Friend noticed any improvement in the attitude of police forces towards people who report stalking, given that such people have received no response in the past?
Stella Creasy
When I discussed the proposals with the police, they were anxious to ensure that we used this opportunity to get the proposals right. I welcomed their acknowledgment of concern about the way in which the legislation had been used to deal with the problems, and about the lack of training in what stalking might involve.
As a result of this pressure, we stand here today to debate not whether proposals are needed, but the strength of the proposals that are on the table. We can see how the proposals are evolving as the Government respond to people who have been campaigning. The new amendments—as opposed to the proposals that were put to the other place last week—reflect further movement in the right direction, given the Government’s initial response to Baroness Royall’s proposals.
It is in the spirit of ensuring that the Bill is meaningful and effective that Labour Members have tabled further amendments today. Having championed the need for legislation, we wish to ensure that this opportunity is not wasted. When we test the Lords amendment against the realities of the crime that we are discussing, and indeed the issues raised by my hon. Friend the Member for Islington North (Jeremy Corbyn), we still see difficulties. In particular, we fear that the amendment presents the appearance of progress while failing to deliver through its confusing demarcation between section 2A and section 4A offences. We also believe that it does not give the criminal justice system the full confidence that it needs to be able to address this crime in its many manifestations, whether through investigation, prosecution or conviction.
Our amendments (a) and (b) would ensure that the Bill would be what I call future-proof. When the Protection from Harassment legislation was enacted in 1997, Google did not exist. One of the compelling examples of the behaviour of the persecutor of Claire Waxman was the fact that he had searched for her name 40,000 times in a single year. The amendment reflects the need not only to train all who work in the criminal justice system to recognise that stalking can manifest itself in many ways, but to ensure that the legislation can keep pace with the innovation. As we have heard, many victims experience multiple forms of harassment, and do so many times before it is reported. These amendments would enable the Secretary of State to respond to the creativity of perpetrators and ensure that all those charged with protecting the public from these crimes are able to act. The inclusion of “inter alia” and the ability to include additional clarification will give confidence to the Crown Prosecution Service, the police and the magistrates courts that these kinds of conduct could in future be relevant to this offence.
If the Government will not accept the amendments, they must set out now, on the record, how they propose to ensure that the criminal justice system is able fully to comprehend and respond to the way in which fixations occur, both online and offline.
Mr Buckland
I am listening with great care to the hon. Lady’s argument about the use of the phrase “inter alia”. There may be a bit of an irony in using legal Latin to anticipate developments in respect of Google and Twitter, but I do not criticise her for that. The Lords amendment lists
“examples of acts or omissions”.
That is therefore a non-exhaustive list, so the problem the hon. Lady rightly identifies as possibly occurring cannot occur on the basis of any reasonable interpretation of the Lords amendment as it currently stands.
Stella Creasy
This is a point of genuine disagreement, because there is concern that what should be seen as a non-exhaustive list of behaviours and conducts for the offence of stalking will instead be seen as a list of the only such behaviours and conducts. We are trying to ensure both that training is given to all sectors of the criminal justice system and that there is clarification about the wide range of perpetrator behaviours that can be included. I gave the example of Google in order to argue that if the idea of cyber-stalking had been considered when the protection from harassment law was introduced in 1997, legislators might have recognised the need to address it. Given that we so rarely get an opportunity to draft legislation, it is important that we make any new laws as robust as possible, such as by ensuring that the Secretary of State can intervene. We believe that our proposal would offer an opportunity to address any concerns that might arise. Law makers might say, “This is a list of stalking behaviours and anything else isn’t stalking.” If the Government are not prepared to accept the amendment, they must explicitly state how they will ensure that this list does not become the only list of examples, rather than a starting point for our law makers.
Our amendments to Lords Amendment 51 go to the heart of the inconsistencies in the proposals. We challenge the retention of a section 2A offence of stalking and the creation of a section 4A offence of stalking, differentiated by the concept of seriousness. We welcome the fact that, in response to Baroness Royall, the Government’s position has moved from that of the amendments tabled in the Lords, which set out stalking as purely involving a fear of violence. The new provisions go much further towards recognising the need to be able to act against perpetrators without waiting for physical harm as well as the different ways in which this crime impacts upon victims, and that is certainly welcome. However, the strengthening of section 4A does not undermine the inconsistency created by the retention of a section 2A offence for stalking.
Under Government amendments (i), (j) and (k), section 4A will apply when someone has suffered
“serious alarm or distress which has a substantial adverse effect on”
their
“usual day-to-day activities”.
Yet section 2A sets out a less well-defined offence of stalking that would secure a lower level tariff. That offence would be triable only in a magistrates court, with a fine or maximum penalty of just six months’ imprisonment. We believe that such a distinction between different offences and courses of action does not stand scrutiny. Specifically, it is unclear from the evidence of this crime what kinds of cases would fall under section 2A rather than section 4A. In respect of the wording of the new amendments, it appears that a distinction would be based on proving that someone has suffered a “serious” form of distress. Therefore, the Government must set out how that could be proved—for example, whether it would be similar to psychiatric injury, where we need a psychiatrist to say there has been a serious impact on the central nervous system. This also raises the prospect of medical records having to be disclosed, potentially giving more information to the stalker at court and also creating a higher burden to prove, so the CPS would again be less likely to charge under Section 4 and default to Section 2A, with the resulting lesser options for punishment.
We as parliamentarians should reflect upon whether we would ask the victims to have their lives altered as a marker of such seriousness. The survey commissioned by the university of Leicester for the Network for Surviving Stalking found that one third of victims of stalking said that they had lost their job or relationship or had been forced to move because of the stalking. Some 92% reported physical effects and 98% reported emotional effects, ranging from anxiety, sleep disturbances, anger and distrust to depression, self-harm and post-traumatic stress disorder. Half of all the victims had changed their telephone number; half of them had given up social activities; half of them had seen their performance at work affected; and a third of them had relocated. If the Home Secretary wishes to retain these divisions, she must tell us whether it is justifiable to ask victims to prove that their lives have been changed in such a serious way before we can offer them real protection. Does she not see the risk that the police could apply this “seriousness” test in choosing whether to investigate and secure a section 2A or section 4A offence, leaving victims in the horrific position of having to prove that their lives have been damaged in these ways in order to secure effective action against the perpetrators?
As many experts have pointed out, this distinction risks retaining one of the problems with the existing legislation: it is extremely unusual for someone to be found guilty under section 4 of the Protection from Harassment Act 1997, with just 170 of the 786 people found guilty being given a custodial sentence. Some 53,000 harassment cases were recorded by the police in 2009-10, but in only 23 was a custodial sentence of more than 12 months given for breaching a restraining order and in just 27 was such a sentence given for putting someone in fear of violence. Under the current legislation, most perpetrators receive restraining orders on multiple occasions and yet still receive fines and non-custodial sentences. Both the National Association of Probation Officers and Protection Against Stalking state that they believe that
“similar outcomes will come from an analysis of court proceedings under 2A.”
Even if a case can be made for the retention of a “lesser” offence of stalking, the division also limits the ability of the Crown Prosecution Service to respond to cases effectively by setting out two separate paths for the same crime. As NAPO and PAS have pointed out, allowing the offence to be triable either way would have two advantages. First, if evidence came out during a magistrates court trial indicating that the matter was more serious than first thought and may warrant a sentence of more than six months, the case could be sent to the Crown court for sentence. Secondly, many stalkers who do not threaten violence and who may be tried under section 2A for less serious matters are, nevertheless, highly persistent. Without the power to refer to a Crown court, such people could appear persistently in magistrates courts, being liable only for six months’ imprisonment and automatically released at three months —if they were tagged, they would come out after one month and continue their behaviour.
The amendments tabled by the Government maintain the risk that offences will not be adequately addressed, as at present, because they ask the CPS to choose between “lower-level” offences of stalking, as yet undefined, and those considered “more serious”. The challenge for all involved in addressing this offence will be to make such a distinction in any meaningful way as to merit it.
In contrast, our proposed amendments to Lords amendment 51 offer the opportunity to correct this situation so that confusion is no bar to ensuring that those who commit these crimes are given appropriate sentences. Our amendment (d) to Lords amendment 51 proposes a simple definition of stalking that could clarify the difference between “harassment” and “stalking” between neighbours who behave in unacceptable ways towards each other and the person who fixates on a former partner or someone they have never met but serves to cause them distress.
Our amendment (c ) to Lords amendment 51 would help to ensure that it is open to the criminal justice system to respond to these crimes by making them triable either way, thus introducing the possibility, alongside the lesser sentences the Government are offering under section 2A, of a sentence of up to five years. If the Government will not accept the amendments, they need to set out precisely what constitutes a “lesser” crime of stalking and how it would be distinctive from the crimes they expect to be prosecuted under section 4A. In particular, I ask the Home Secretary to put on the record clear examples of the different criteria they expect to be applied to justify this division and to ensure that criminal justice agencies are able to understand the intent in their proposals.
Finally, our amendment (a) to Lords amendment 52 deals with how these crimes are investigated and with the importance of ensuring that the police are able to act. It would restore a power of entry to the properties of those arrested for stalking without a warrant to ensure that evidence cannot be destroyed. The power previously existed for cases of harassment, but was removed as an unintended consequence of the Serious Organised Crime and Police Act 2005, and many of us believe that this omission requires attention. Again, I highlight to Ministers the risks they are taking by creating two stalking offences, where one is indictable and the other is only a summary offence. Under their proposals, the police can enter a property to search only if the offence is indictable. The confusion between sections 2A and 4A could mean that officers hesitate in using this power to investigate matters relating to these crimes for fear of not finding enough evidence to meet the “seriousness” test. Seeking this power, and thus the possibility of investigation, would help to ensure that the police would not flinch out of confusion; those committing offences that the Government believe would fall into section 4A could be investigated without the police thinking twice.
Without this power, there is a very real danger of evidence being destroyed as others act to protect those arrested for this offence. The fact that it could take hours to secure a warrant allows that possibility—that time is valuable. Indeed, as we have seen with recent attempts to destroy evidence relevant to the prosecution of those involved in phone hacking, such behaviour is not theoretical. The fact that the police are currently able to search the property of a shoplifter but not to access the property of someone who has been arrested for stalking to seek further evidence—perhaps to see the shrine they have created or computer information on social networks—further reflects the difficulties our police will have with the measures as they stand in ensuring that they effectively protect victims.
The Secretary of State for the Home Department (Mrs Theresa May)
I shall be asking the House to agree with Lords amendment 51. I am pleased and proud to be standing here supporting and speaking to amendments relating to the introduction of new criminal offences for stalking. Some years ago, I secured an Adjournment debate in the House about the tragic case of Rana Faruqui, the daughter of my constituent Carol Faruqui. Rana was stalked for some time. Sadly, the police did not pay attention to the instances of stalking that she reported to them and, as a result, Rana was ferociously murdered by the individual who had been stalking her. Since that case came to my attention, I have personally believed that we need to do more to take the issue of stalking seriously, so I am glad that we are debating this issue.
It is fair to say that when the then Government introduced the Protection from Harassment Act 1997, they believed that it would cover stalking and be adequate but we have seen over the years that it has not been taken as seriously as Members across the House would wish. Stalking is an appalling crime, both in itself and in the distress that it can cause an individual. It can also lead to physical violence and has, sadly, led to the death of the individual being stalked in cases such as that of Rana Faruqui. When I have spoken to stalking victims, they have said that some police officers are very sensitive to the issue of stalking and handle it very well and appropriately—dealing with it properly—but, sadly, others do not see the seriousness of the offence in the way that we would wish them to.
Jeremy Corbyn
The Home Secretary will have heard my intervention on my hon. Friend the Member for Walthamstow (Stella Creasy). In the Home Secretary’s discussions with the police, have they begun to understand the sensitivity of stalking and that it is very difficult for someone to report it? It is at that interface at the police station that things can all go terribly wrong or well depending on the training and sensitivity of the officers concerned. Is the Association of Chief Police Officers aware of that and has she been able to discuss the matter with ACPO?
Mrs May
I have had some opportunity to discuss this issue with ACPO and those representing victims of stalking. Their comments are similar to what victims of domestic violence say to me. If an officer has been trained specifically in the identification of stalking and dealing with a stalking victim, then they, like an officer who has been specifically trained to deal with a domestic violence victim, understand the context and the issues that the victim is facing. Officers who have not had that separate training might not understand these issues. There are certainly matters that need to be addressed in terms of how the police look at stalking. I hope that the creation of stalking offences will be part of the process of ensuring that all officers recognise the importance of the issue.
Nicola Blackwood (Oxford West and Abingdon) (Con)
I welcome the amendment, but does the Secretary of State agree that the public’s severe lack of confidence in the criminal justice system’s ability to deal with stalking is a major problem, and that legislation, while welcome, is not the whole solution? We also need training for officers; that is the only way that we will improve officers’ reactions when victims of stalking come forward, increase public confidence, and increase earlier reporting of stalking.
Mrs May
My hon. Friend makes a valid and important point. As I said in response to the hon. Member for Islington North (Jeremy Corbyn), I hope that the creation of the legislation and the offences will, in itself, send out a message, but of course that has to be backed up by training. I also hope that we can ensure that the public generally recognise the importance and significance of stalking as an offence, and the distress and problems that it causes to an individual who is being stalked. I remember holding a discussion on the subject with a number of people, and a victim of stalking made the point to me that when she first came forward to say that she was a victim, someone she knew said to her, “Oh, aren’t you lucky?” Nothing could be further from the truth, and we need to change that attitude.
Mark Tami (Alyn and Deeside) (Lab)
That is an important point. We have seen how long it has taken the police to treat domestic violence as seriously as it should be treated. The Home Secretary’s comments show that victims are sometimes told that it is nice to receive that sort of attention. There is also the issue of the police not treating stalking seriously; it is only in very serious cases, where death may result, that we address stalking as the important issue that it is.
Mrs May
Of course, what we want is for the issue to be addressed properly earlier; we want victims to have the confidence to come forward, knowing that what they say will be taken seriously, so that the matter can be dealt with properly before it gets to the point of physical violence, or indeed, as the hon. Gentleman says, before the death of the individual who is being stalked.
Tom Brake (Carshalton and Wallington) (LD)
How does the Home Secretary think that the public can ensure that the issue is on the agenda for the police and crime commissioners, who are to be elected in November?
Mrs May
From time to time, my right hon. Friend and others raise issues relating to ensuring that matters are on the police and crime commissioners’ agendas. Bodies representing victims of stalking will, I am sure, do all that they can to ensure that candidates for the post of police and crime commissioner are well aware of the issue and therefore take it into account when looking at policing in their force area.
This is, of course, the first opportunity that the House has had to discuss the issue in the context of the Bill, so I want to take a moment to set out the background to the Lords amendments. Last year, the Government consulted on whether the law needed changing to introduce a new offence of stalking. The consultation closed in February, and the majority of respondents said that a new specific offence was needed. Separately from the Government’s consultation, an independent inquiry, chaired by the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), also concluded that the law needed strengthening better to respond to the concerns of victims of stalking. I pay tribute to the right hon. Gentleman and his inquiry team for all that they have done to raise the importance of the issue; he has done that regularly in the House, too. I also commend the hard work done by the National Association of Probation Officers and Protection Against Stalking, who have, entirely rightly, been championing victims’ rights for some years. I hope that they have seen that the Government have responded to that.
Following the Government’s consultation and the independent inquiry, we amended the Bill in the other place to provide for two new free-standing offences—stalking, and stalking involving fear of violence—which will sit alongside the existing harassment offences in the Protection from Harassment Act 1997. The new offence of stalking in proposed new section 2A of the 1997 Act will be tried in the magistrates court, with a maximum penalty of six months’ imprisonment, a fine of up to £5,000, or both. The new offence of stalking involving fear of violence in proposed new section 4A will be triable either way—in the magistrates court or the Crown court. If tried in the Crown court, it will have a penalty of up to five years’ imprisonment, an unlimited fine, or both.
The changes that we have introduced also give the police a new power of entry for the new section 2A offence of stalking. The more serious either-way offence of stalking involving fear of violence automatically attracts a power of entry. It was clear from our consultation discussions that the police want the power to search for equipment used by stalkers so that they can gather the evidence necessary to secure convictions and prevent stalking behaviour from escalating. We have listened and responded.
There has been widespread support for these changes. Last week I received a letter from a victim of stalking, who said:
“The action your government has taken will change the lives of thousands of people for the better—and save many. Thank you for treating this crime with the seriousness it deserves.”
Our amendments mean that for the first time, we will have specific offences of stalking. However, I know there have been suggestions that we should also recognise the emotional suffering that victims of stalking experience. That is why we tabled Government amendments (g) to (k) to Lords amendment 51 and Government amendments (a) to (c) to Lords amendment 133. Those amendments will widen the section 4A offence to incorporate behaviour that causes the victim serious alarm or distress that has a substantial effect on his or her day-to-day life.
This change will mean that when a stalker causes their victim, for example, to take alternative routes to and from work, when the victim is afraid to leave the house or when they have to ask their friends or family to pick up their children from school because they are afraid of running into their stalker, this could count as behaviour that attracts the more serious section 4A offence and therefore, on conviction on indictment, a maximum five-year sentence. The message could not be clearer—anyone who ruins someone’s life with their stalking should expect to be severely punished. I know that NAPO and Protection Against Stalking have been involved in the development of these changes and I am grateful to them for their contribution.
Let me take some time to deal with the amendments in the name of the Leader of the Opposition, which are virtually identical to the ones that were tabled in another place. Amendment (b) to Lords amendment 51 relates to new section 2A(3) of the 1997 Act which sets out a list of examples of stalking behaviours. I say to the shadow Minister, the hon. Member for Walthamstow (Stella Creasy), who introduced the debate, that “examples” is the key word here. That is what they are intended to be—examples of stalking behaviours.
Amendment (b) seeks to add a catch-all to this indicative list of behaviours and would allow the Secretary of State to add behaviours to the list of examples. As I said, the list is intended to be illustrative only; it is not intended to set out all the types of stalking behaviour that might be exhibited. We want to ensure that it is wide enough to capture any behaviour, including stalking conduct, that has not yet been developed. The hon. Lady is right. It may well be that there are means of stalking that we cannot yet think of which will develop over time. It is right that we have within the legislation the ability to take account of those, should they develop.
The reason I think it is important not to create a catch-all provision or take a power to expand the list, but to set it as a list of examples, is that we have deliberately made it non-exhaustive. As soon as one tries to set everything down in the legislation, one risks the opportunity for individuals to find ways round the definition that has been set down in the legislation. What is important here is that the Bill says, “These are the sorts of behaviour that come into the category of stalking,” but if we try to be too rigid in setting it out, I fear that that could have a negative rather than a positive effect.
Stella Creasy
Given our shared concern about the inventiveness of perpetrators, will the Home Secretary undertake to review annually the range of behaviours that will be identified through this process so that we can understand whether it is being used as a list of examples or solely as a list of what constitutes stalking?
Mrs May
I am happy to tell the hon. Lady that we will indeed keep the legislation under review. The last thing we want to do is to find that the legislation is being misinterpreted. The reason it is set out in the terms, “The following are examples,” is precisely to send a message to people that that is all they are. There will be other activities that come under the definition of stalking for the purposes of this criminal offence, but we are not putting that exhaustive list in the Bill.
Bob Stewart (Beckenham) (Con)
I agree with my right hon. Friend that well-trained police officers will be able to identify exactly what stalking is. From their experience and training, they will be able to say, “That is an example of stalking and we should do something about it,” and I hope the legislation will allow that to happen.
Mrs May
I thank my hon. Friend for supporting our approach. It is important that a degree of discretion is available to police officers so that they can identify behaviour that is not listed but would come under the definition of stalking.
A number of the comments made by the hon. Member for Walthamstow related to the creation of two offences—the lower level and higher level offences—and I think that there is a need to differentiate between the two. The practice of having two such offences is followed in a number of other areas in the criminal justice system, which I think is important, but we will be developing training—a number of hon. Members have mentioned this—for agencies in the criminal justice system in the coming months to ensure that they are aware of the nature of the legislation being introduced, such as the point about the list being one of examples only.
Stella Creasy
In which case, will the Home Secretary set out clearly and explicitly what she considers to be a stalking offence that would come under section 2A, rather than section 4A, because I think that there is genuine concern that having two offences but not defining the difference between them will cause problems for the police at a local level?
Mrs May
It is normal practice when introducing offences to have a lower level and a higher level offence, and training for the criminal justice system agencies will look at identifying the sort of behaviour that might come under one or the other. Again, in these circumstances it is always difficult, and I think inappropriate, to try to state absolutely what behaviour would come under one offence and what behaviour would come under another, because the context of behaviour might be significant; behaviour that might be considered lower level in one context might be considered higher level in another. It is important that we do not try to set out absolute definitions and that discretion is available to the police in interpreting the offences and looking at the context in which they are committed. I know that the hon. Lady’s view is different from mine, but the point is similar to the previous one: the more we try to define the offence in legislation or on the Floor of the House, the less we can offer the discretion and flexibility that might be necessary to an individual officer or the Crown Prosecution Service to deal with such cases. I fear that we might end up in a situation that is not so good if the terminology we use is too rigid.
The hon. Member for Walthamstow also tabled amendment (c) to Lords amendment 51, which would make the lower-level section 2A offence triable either way. It is currently a summary-only offence, reflecting the fact that it is a lower level offence and should be properly tried in the magistrates court. More serious behaviour should be captured by the higher level section 4A offence of stalking involving fear of violence. Amendments (d) to (f) seek to capture the emotional distress suffered by victims of stalking. I have already set out how we intend to address this point, and our approach is supported by NAPO and Protection Against Stalking. She referred to the need for clarity in the criminal justice system, yet her proposals attempt to blur the distinction between the two offences and, I think, would lead to less clarity rather than more.
The Opposition’s other amendment in this group, amendment (a) to Lords amendment 52, would remove the requirement to obtain a warrant before searching a potential stalker’s property or possessions under the new section 2A offence. As the offence is a summary-only offence, which is by definition a lower level offence, I think that requiring a warrant for a search represents an appropriate balance between protecting the vulnerable in society from stalkers and respecting the rights of those who are innocent until proven guilty. The higher level offence, as I said earlier, automatically allows the power of entry, which is appropriate, given that it is a more serious offence. For those reasons, I cannot accept the Opposition’s amendments.
Mr Buckland
I am grateful to my right hon. Friend for her clear exposition of the position. May I seek some clarification on the position regarding persistent offenders, who quite properly should be dealt with in the Crown court? Will guidelines be issued to prosecutors to deal with the particular issue of persistent offenders—in essence to ensure that they are dealt with by the either-way mechanism and can then be sent to the Crown court either for trial or for sentencing?
Mrs May
I thank my hon. Friend for raising that issue. The persistency of an offence is a factor that should be taken into account when looking at the seriousness of it. Perhaps I can attempt to give the hon. Member for Walthamstow some indication on these matters. My hon. Friend raises the issue of someone persistently undertaking the offence of stalking, and we hope to reach a situation in which early examples, or early behaviour, of stalking can be identified, captured and therefore dealt with through the lower level offence before it moves on to stalking behaviour—the more serious offence that is set out in proposed section 4A.
We do take stalking very seriously, however, and we are determined to do all we can to stamp it out. We have created the two new offences, explicitly putting stalking on the statute book for the first time; we are giving the police the powers of entry that they need to disrupt stalkers at an early stage; and we have responded to the concerns of victims and of victims’ organisations by making it clear that behaviour which ruins lives will be properly punished. I think that those changes will make a real difference to the lives of victims, and I commend the Lords amendments and the Government’s amendments to those amendments to the House.
Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)
It is a pleasure to follow the Home Secretary and the hon. Member for Walthamstow (Stella Creasy) in what is a very interesting debate.
Some 10 months ago I set up an all-party committee covering both Houses, including Members from all parties and none, by which I mean it included Cross Benchers from the other place as well. The hon. Member for South Swindon (Mr Buckland) played a very active part in the committee’s deliberations and is to be commended on the hard work that he put in.
We looked at the whole issue of a stand-alone offence of stalking, something that I have long believed to be a necessary tool in the criminal justice armoury. We were helped immensely by Laura Richards of Protection Against Stalking and by Harry Fletcher of the National Association of Probation Officers, to whom we as a committee are very grateful. The researcher Delyth Jewell also did a sterling piece of work in clerking the committee.
We took evidence from July last year, and we are indebted to those who came and gave of their time to provide evidence to us. I think in particular of the victims and the victims’ families. It took a great deal of bravery to relate some of their accounts. Many were harrowing, almost beyond belief and ended, as the Home Secretary said of her constituent, in death. They were awful situations, so we are indebted to those individuals, because they came before the committee and their evidence has convinced us all that this is an urgent matter that needs to be put right.
We took evidence from lawyers, who said that there was a lacuna in the current law. I was a Member in 1997 when the Protection from Harassment Act became law, and we thought it a fairly decent piece of legislation. Indeed, by and large it has been and has dealt with a great range of offences, but on the particular offence of stalking in large parts it has not fit the bill. The lawyers told us that they, too, thought we needed to consider a separate offence of stalking.
I agree with the Home Secretary that some police officers are very good at pursuing stalking through the provisions in the 1997 Act, but I am afraid—I say this as the brother and the son of police officers; I do not have any great beef with the police generally—that the vast majority cannot handle the problem, hence the fact that 72% to 75% of those surveyed reported that they were very dissatisfied with the police action taken. That is partly to do with complications in the provisions and partly to do with the new form of the offence, which often involves e-transmissions of some kind, and so on. It is also due to a lack of specific training, which is extremely urgent in this context.
We took evidence from psychologists who advised us that in many instances it is possible to address such offending behaviour. It is vital, in the case of individuals who would be subject to new section 4A and sent away for a period of incarceration, but also in the case of those subject to new section 2A, who would not be, that criminal psychologists get involved fairly soon in order to divert them from their behaviour, because, by its very nature and essence, stalking is an obsessive, often repeat, offence that goes on and on. We heard examples of individuals in prison who were planning the next stalking venture from their prison cell.
I am advised by Laura Richards, in particular, that about 20 to 25 practitioners in the UK are able to diagnose and, in large part, deal with stalking behaviour and divert offenders away from it. That is important, because otherwise all we will do is take them off the streets for a while and then they will be back. Whether they have committed a 2A or a 4A offence, it is vital that we make available the necessary specialist clinical services to deal with them. I am no psychologist and I am not medically qualified, but I know that they often have behavioural, as opposed to psychological, problems. People are trained to help them address that, and their expertise must be used to ensure that we have a proper, tough regime to deal with these awful offenders.
Mark Tami
The right hon. Gentleman touches on an important point. The danger is that, whatever the penalties may be, these people come out of prison and carry on committing the same offence, because they are obsessive to the point that whatever action is taken against them, they will keep on doing it and ruining people’s lives.
Mr Llwyd
The hon. Gentleman is absolutely right. By its nature, that is the kind of offence that it is, and that is how it ruins people’s lives. I have spoken to many victims who say that it is almost like having a black cloud behind them day and night, and they have to turn around every now and then to make sure that the person is not there. It is an awful situation to be in. I believe that the Bill deals with the problem in large part, if not completely; there are one or two things that I would like to discuss. I am in sympathy with some, but not all of the points raised by the hon. Member for Walthamstow.
We suggested in our report that the offence should be one that is capable of being tried either way, but to be fair to the Home Secretary, she has clearly expanded on how the Government are now looking at this. Although I would argue that stalking is never a minor offence, there are more serious initial offences. It will be partly to do with whether the person has been before the courts before for a similar offence involving a different victim or the same one. My fears are allayed, to a certain extent, by what the Home Secretary said, although we did recommend, as I said, that the offence should be triable either way, as the 4A offence would be.
Following lobbying by NAPO and Protection Against Stalking, Lord Henley announced in the other place an amendment to the wording of the amendment to include psychological harm. I welcome that amendment to the amendment—it is almost like an extension to the extension—because that is crucial. When I had the privilege of meeting the Prime Minister to discuss this, two young women were there who had given us evidence, both of whom would not necessarily fall into the physical harm category but into the psychological damage category. One young woman has received therapy for the past 10 years because of stalking. I am pleased that that element is now included. In effect, it completes the circle.
Tom Brake
It was put to me earlier today by senior police officers that one reason why the police have got more effective at tackling domestic violence is that more women police officers have come into the force. Did the right hon. Gentleman’s inquiry find a link between stalking being treated effectively and the involvement of female police officers?
Mr Llwyd
The right hon. Gentleman makes a good point. We took evidence from several police officers, among whom were several knowledgeable females, who had been training their respective forces. Given that we now have a large number of good senior and junior police officers who are women, it will hopefully be more straightforward to put this legislation into effect than the 1997 Act.
I had come here to argue that the inquiry wanted a single indictable, either-way gateway. However, I am persuaded by what the Home Secretary said. I do not disagree with her analysis of new sections 2A and 4A of the 1997 Act. Hopefully, there will be such discretion for the police. When a repeat offender under new section 2A comes up again, he will clearly be a customer for new section 4A. It is extremely important that that is understood. Searches without warrant will happen under new section 4A, but not under new section 2A. I still believe that that power would have been helpful under new section 2A as well, because the police tell us that the earlier we move in on such people, the better the outcome is likely to be.
Whatever legislation we enact, it is crucial that the police, prosecutors—particularly those within the Crown Prosecution Service—judges and magistrates are trained and instructed properly, through various courses, on the necessary approach to this awful offence.
I know that other Members wish to speak, so I will curtail my remarks, but I first wish to put various questions on the record. I do not realistically expect the Home Secretary, or indeed any Minister, to respond to them all this evening, but I hope she will agree to respond in writing in due course.
My first question is whether there will be a consultation with NAPO, Protection Against Stalking and other stakeholders on the interpretation by police and prosecutors of the list of stalking behaviour contained in new section 2A. I agree that “inter alia” is otiose in the circumstances. There will be a review of the behaviour covered, so the point is dealt with without our having to discuss amendment (a).
Will there be an ongoing discussion about the need for improved victim advocacy, which is vital? I can say without breaching any confidences that the Prime Minister also took the view that that was vital. Will there be a full consultation with PAS, NAPO and other stakeholders on the implementation of the new sections of the 1997 Act? The Home Secretary said that there would be an annual review, which seems to me to provide a vehicle for including those stakeholders.
Will the impact of the new sections on police practice and prosecutions be monitored once they become law later this year? Will there be a full consultation with PAS, NAPO and other stakeholders on the interpretation of the definitions of “fear of violence” and of psychological harm involving serious alarm and distress, and will those definitions be set out in guidelines or training?
Will it be possible to monitor the impact of evidence being seized because of the need for the police to obtain a warrant for a perpetrator’s arrest prior to their property being searched under new section 2A? I was going to ask whether there would be consultation on the guidelines for prosecutors, to ensure that persistent stalkers are charged under new sections 2A and 4A, but that has been dealt with, so I need not bother the Home Secretary with it.
I ask the Government to facilitate the treatment of offenders in such a way that as many as practicable can be diverted away from their offending behaviour. Appropriate courses need to be put in place for police, Crown prosecutors, judges, magistrates and probation officers, to ensure that they are thoroughly trained up. I mention Crown prosecutors because the Crown Prosecution Service has now put together a package to deal with the new legislation. Unfortunately, it will deal only with e-crime, not with crimes in general. I believe that that mistake needs to be put right.
Mrs May
The right hon. Gentleman has asked a number of detailed questions, and I will be happy to get back to him in writing. We have had very good consultation and a very good relationship with NAPO and Protection Against Stalking in developing the Bill, and I expect to continue to have good consultations and discussions with them as we take the matter forward.
On the issue of perpetrators, the aim of reducing reoffending lies behind the rehabilitation work that the Ministry of Justice is doing, and I will certainly bring the right hon. Gentleman’s comments to the attention of the Secretary of State for Justice.
Mr Llwyd
I am grateful to the right hon. Lady for that assurance, which I take to be an invitation to write to her. I had another seven or eight questions, but I shall not labour the House with them this evening.
Before I sit down and allow others to take the matter further, may I once more express my sincere gratitude to all the parliamentarians who took part in the research work? I think this may be the only time when a cross-party group that is not a Committee of the House has succeeded in bringing forward a change in the law. I do not know how often that will happen, but it is certainly a precedent that I favour—I would say that, wouldn’t I?
I wish again to say how grateful we are to Laura Richards of PAS and Harry Fletcher of NAPO, and to all the victims who assisted us by giving evidence. I am also very grateful to the Home Secretary, because I know she has been on the side of the angels on this issue for some time. I am sure she shares my pleasure in the fact that something positive is now being done.
The Bill’s provisions on stalking show that the Government have carried out a listening exercise, and we will now have firm laws. They will prevent lives from being ruined and, crucially, from being lost. They represent an important change in the law, and I have been privileged to play a part in achieving it. The inquiry has been the most enriching and worthwhile experience of my political life, and I am delighted to see the result.
Mr Buckland
I will not repeat the constructive comments of the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) and others on the provisions that all parties have accepted. I am delighted to have been part of the process, but hope that does not give me, as a relatively new Member, a false sense of what can be achieved so quickly by consensus. The Government have moved with speed and with willingness to listen, and I commend their fleetness of foot. I am grateful to them for acting and amending their own amendments. That shows their willingness to listen to the debate and to engage with NAPO and Protection Against Stalking, to which I pay tribute.
The journey does not end here. Once the Bill is passed, it is essential that we get training for police officers and guidance for prosecutors absolutely right and monitor the progress of the new laws. Stalking is emotional terrorism; it is a crime of control, a crime of manipulation and, yes, a crime of violence. It was quite clear from the evidence heard by the all-party inquiry heard these changes to the law were necessary. I started as somebody who was not convinced that the law should be changed, but I ended as somebody who was entirely persuaded. I commend the Government’s amendments to the House.
Stella Creasy
We have listened to the debate, but we are still not satisfied on the question of lesser and more serious charges of stalking. We therefore wish to press amendment (b) to a vote.
Question put, That amendment (b) to Lords amendment 51 be made.
James Brokenshire
I beg to move, That this House agrees with Lords amendment 1.
Madam Deputy Speaker (Dawn Primarolo)
With this it will be convenient to discuss the following:
Lords amendment 2.
Lords amendment 3, and amendment (a) thereto.
Lords amendments 4 to 8.
Lords amendment 9, and amendment (a) thereto.
Lords amendments 10 to 15, 19 to 29, 56, 62, 64 to 66, 70 to 101, 114 to 116 and 134 to 137.
James Brokenshire
The amendments relate to the provisions in parts 1 to 4 of the Bill. Some are of a minor and technical nature, but some are of more substance; given the number of amendments in the group, I propose to focus my comments on the more substantive amendments. We are returning to themes and issues that have been debated at length in the House. Obviously, we judge that improvements have been made in the other place. We very much look forward to debating those issues, as well as the amendments to the Lords amendments proposed by the Opposition.
Amendment 1 takes account of the change in part 5 of the Bill to the definition of “vulnerability”. The new definition is intended to be more straightforward for the police to understand and apply. It relates to the ability of the police to retain the DNA profile of someone who has been arrested but not necessarily charged, and to a measure built in to provide certain safeguards where there was some proximity between the person arrested and the possible victim of a crime. Part of that relies on the definition of “vulnerable adult”. The definition originally applied in clause 3 was taken from the Safeguarding Vulnerable Groups Act 2006. As that Act and definition are amended by the Bill, the 2006 Act definition is no longer suitable because it focuses on the care or treatment being provided to the individual, rather than on the characteristics of the person themselves. For the purposes of clause 3, a different definition is needed, which is why we have imported the definition from the Domestic Violence, Crime and Victims Act 2004, which links vulnerability to the ability of an individual to protect themselves from violence, abuse or neglect, and which we feel fits more neatly the purposes of clause 3. As I have said, the provision is intended to provide a further safeguard where the police arrest someone for a violent or sexual offence, if there is proximity to the victim.
Amendment 2 introduces a limited exception to the general rule, brought forward from the previous Government’s Crime and Security Act 2010, that all samples will be destroyed within six months of being taken. I think both sides of the House agree that DNA samples should be destroyed as soon as practicable, and a six-month window was felt to be appropriate. However, the Government tabled amendment 2 in the other place in response to representations from prosecutors at the Crown Prosecution Service. They told us that, in a limited number of cases each year, it would be necessary to retain individual samples in order to deal with any subsequent challenge by the defence to the comparison made between the DNA of the individual and that found at the crime scene—in other words, to provide reassurance in relation to criminal prosecution. Prosecutors expressed concerns that if they could not retain samples in these cases, they might unable to withstand such a challenge and that acquittals on technical grounds might result.
It might assist right hon. and hon. Members if I give an example of the type of case where such an issue might arise. A crime scene stain could well contain a mixture of the blood of both a stabbing victim and their attacker, and perhaps a third person such as an innocent house-mate of the victim. In such case, the quantity of material from the victim is likely to exceed significantly that from the attacker and the innocent third party. Without retaining the reference samples from all three individuals, the chemistry and analysis used to derive the three individual profiles, and thus make a match to the suspect, might be open to challenge in court.
Lords amendment 2 therefore creates a safeguard by inserting a mechanism into clause 14 to enable the police to decide very early in a case, before any samples have been destroyed, to make an application to the local magistrates court to retain all the individual samples in the case for 12 months. In the majority of cases, 12 months should be long enough to identify a suspect and complete the pre-trial disclosure process, as part of which it would be established whether the defence intended to mount a challenge to the derivation of the DNA profiles and/or the matches that may have arisen; if not, the material would be destroyed at that point. If the derivation of the profiles remained at issue, a further application could be made to the trial judge to retain the material for an additional 12 months.
Lords amendment 3 updates the existing exclusions from the Police and Criminal Evidence Act 1984 to ensure that the new regime in part 1 of the Bill does not apply to the International Criminal Court Act 2001 or the Terrorism Prevention and Investigation Measures Act 2011, both of which have bespoke retention and destruction regimes in schedule 1 to the Bill. In case the shadow Policing Minister is wondering, I will come to the Opposition’s amendment (a) to Lords amendment 3, but I will go through the Government’s amendments before dealing with the Opposition amendments.
Lords amendments 73 to 83 to part 3 of schedule 1, relate to the retention of DNA profiles and fingerprints as set out in the Counter-Terrorism Act 2008, as opposed to those that fall under standard PACE regimes. Specifically, amendment 73 ensures that new section 18 of the Counter-Terrorism Act 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 that is held for the purposes of national security. The remaining amendments also clarify the scope of the application of the provisions amending the retention regime under section 18 of the 2008 Act. They extend the list of existing statutory restrictions set out in the Act and permit law enforcement authorities to retain anonymous material indefinitely. The amendments would essentially prevent the premature deletion of profiles, before a proper investigation into who the sample belongs to has taken place.
The separate issue of biometrics in schools is dealt with by Lords amendments 7 to 14. The Government consider a child’s biometric information to be highly personal and sensitive, and as such, it should be afforded greater protection. We debated these issues at length in Committee during the Bill’s earlier passage through this House. There is general agreement in both Houses that schools and colleges should be required to obtain the consent of a child’s parents if they wish to take and process a child’s biometric information. We listened carefully to the concerns raised about how the proposal to seek the written consent of each parent would impose an unreasonable additional burden on schools and colleges, and that it could discourage schools and colleges from using biometric recognition technology. Lords amendments 7 to 14 would remove the requirement for both parents to give consent, and provide instead for schools and colleges to be required to notify both parents that they intend to take and process the child’s biometric information. As long as no parent objects in writing, the written consent of only one parent will suffice.
We believe that Lords amendments 7 to 14 strike a sensible balance between ensuring that the views of both parents continue to be taken into account and preserving their right to object, as well as ensuring that the administrative burden on schools and colleges is not too great. The amendments also bring the consent requirements in the Bill more in line with all the other forms of consent that schools and colleges are required to have. The main difference in this instance is the express provision to notify both parents of a child, and the stipulation that if any parent objects, the processing of their child’s biometric information cannot take place. The amendments in no way lessen the key purpose of this part of the Bill, which is to ensure that children’s personal and sensitive data are properly protected.
The amendments to part 4 of the Bill relate to pre-charge detention. Lords amendment 27, which is a response to a further recommendation from the Delegated Powers and Regulatory Reform Committee, relates to clause 58, which contains a power for the Secretary of State to increase the maximum limit of pre-charge detention for terrorist suspects to 28 days for a three-month period in circumstances where Parliament is dissolved or in the period before the first Queen’s Speech of the new Parliament. The Committee previously considered a similar order-making power in the Terrorism Prevention and Investigation Measures Act 2011. That Act contains a duty for an order made when Parliament is not sitting to be laid as soon as practicable afterwards. To ensure consistency across these two pieces of legislation, and in keeping with the Committee’s recommendation, Lords amendment 27 requires a draft of a clause 58 order to be laid before Parliament once it has reassembled following a general election.
Lords amendment 28 is designed also to respond to an observation from the Delegated Powers and Regulatory Reform Committee by removing any requirement for an order that revokes a 28-day pre-charge detention extension to be approved by Parliament. The extension by order of pre-charge detention to 28 days would be exceptional, as we have said previously; therefore revoking the order would simply return the pre-charge detention arrangements to the status quo.
Lords amendments 29 and 101 are a response to a recommendation from the Joint Committee on Human Rights on stop-and-search powers. The purpose of the amendments is to ensure that the police officer who is considering whether to authorise the use of stop-and-search powers under section 47A of the Terrorism Act 2000 is reasonable in his or her consideration of the necessity of using the powers, as well as in his or her suspicion that an act of terrorism will take place. The Government believe that the amendments made in the other place have improved the relevant provisions of the Bill, and I commend them to the House.
Let me turn to the Opposition amendments in the group, starting with amendment (a) to Lords amendment 3. On our reading, it would effectively disapply all the substantive provisions of chapter 1 of part 1 of the Bill in cases of an alleged offence under the Sexual Offences Act 2003. In practice, if a person was arrested for, or charged with, any offence under the 2003 Act, there would be no requirement to destroy DNA samples and no time limit on the retention of DNA profiles or fingerprints. It is interesting that, with amendment (a), Labour appears to be changing the position it held in government, when Ministers appeared to argue that a six-year limit was appropriate. They also said that they acknowledged the judgment of the European Court of Human Rights in the S and Marper case, and their proposals in the Crime and Security Act 2010 were intended to follow through on that.
When the Bill was last before this House, we discussed at some length whether it was appropriate to retain such material for three or six years. Now the Opposition apparently wish to ignore even their own previous analysis, and instead go back to keeping everything for ever in cases involving offences under the 2003 Act. Before, when we challenged the Opposition on this, they said, “No, no, it is not our intention to keep DNA profiles for ever. We wish to stick rigidly to the six-year rule,” so it is interesting—and notable, given their statements that they are now moving more in the direction of protecting individual liberty—that they are now reverting to type and seeking to retain indefinitely the DNA profile of people who might be innocent of any crime.
James Brokenshire
I will give way to the hon. Lady, and as I have said, I look forward to hearing the Opposition’s clarification on the amendment.
Diana Johnson
Will the Minister clarify what would happen if one or both parents have refused permission for biometric data to be taken from their child, but the child wishes to consent? Would the child have the right to have their biometric information taken?
James Brokenshire
As the hon. Lady will be aware, the provisions relate to the consent of the parents. They say that the consent of one parent is required, but it is left open to the other parent to object, and such an objection would stand. If need be, in the light of the arguments that the right hon. Member for Delyn makes for his amendment, I will provide further clarification.
Finally, I turn to the motion to disagree with Lords amendment 28. The amendment is a response to an observation from the Delegated Powers and Regulatory Reform Committee that questioned the necessity of an affirmative procedure for an order revoking a temporary extension order. In the Government’s response to the Committee, we concluded that it was not necessary to subject a revocation order to parliamentary scrutiny, given that it would be neither appropriate nor meaningful. The Committee did not take issue with that conclusion. It would be perverse if Parliament were in the position of debating and voting on a revocation order when it had not had the opportunity to approve the original temporary extension order, given that the order had been revoked before it had been approved. Any such debate would be likely to be academic because a temporary extension order lasts for only three months, and there is therefore a strong possibility that an order would have expired before any debate had taken place. Furthermore, a revocation order will simply return the maximum period of detention to 14 days, the maximum period already approved by Parliament, which negates the need for parliamentary approval of a revocation order. That remains the Government’s view, and I hope that the House will not support the Opposition’s motion to disagree with the Lords amendment.
Mr Hanson
As the Minister has said, we are indeed traversing old ground that is familiar to me, to him and to his officials. The initial discussion on DNA retention had its genesis in the debates on what became the Crime and Security Act 2010, which was produced during what I shall have to call the dying days of the last Labour Government. At that time, the then Home Secretary, my right hon. Friend the Member for Kingston upon Hull West and Hessle (Alan Johnson), and I, the then Policing Minister, wrestled with the issues on DNA retention. We looked at them in great detail, and made an assessment of the judgments of the European Court of Human Rights on these matters.
We also considered how we could maximise the envelope that was available for the retention of DNA. That was a matter of judgment. We wished to ensure that we had the greatest possible ability under the legal requirements set down under those European Court judgments to maintain the retention of DNA so that we could use it to catch criminals who had committed crimes or who could potentially commit further crimes. We made the assessment—rightly or wrongly; we believe rightly—that there were between 20,000 and 23,000 individuals who might well have committed crimes during the six years. With the shorter period that the Minister is proposing in the Bill, such people will not now have to face that judgment. The police might not be able to use the DNA samples any more when the Bill comes into force, as the DNA profiles will no longer be in place. This is indeed old ground.
The 2010 Act was the subject of a difference of opinion between me and the then shadow Minister, and that difference has not changed in the subsequent two years. Happily in many ways, I was not party to the Bill’s initial consideration in Committee, as I was at that time shadowing Treasury Ministers. I returned in October, however, to find that the Government were intent on progressing the change in the DNA regime. I see my hon. Friend the Member for Tynemouth (Mr Campbell), who was a Home Office Minister at the time. Let me say that as a name for a Bill, the Protection of Freedoms Bill is one of the greatest misnomers ever in my near 20-year career in this House. It unpicks the impact of Labour’s 2010 Act. In so doing, I believe it puts at risk individuals in our communities who could have been helped and supported and could have been protected from becoming victims by the provisions of the 2010 Act.
Our amendment (a), to which the Minister has referred, is meant to provide a device to allow us to debate some of the serious offences that would be impacted by the Government’s proposed changes to the DNA regime. We have argued strongly—it is a matter of judgment—that the Crime and Security Act 2010 was the best way to meet our European obligations at the same time as trying to protect civil liberties and ensuring also that the British people would be free of murder, rape and crime. There are balances to be struck in ministerial life, which is always about balances. When I was in government with my fellow Ministers in the Home Office—the Department that the present Minister is now privileged to serve—we felt that under European law and paying respect to the protection of liberties, we should try to extend the window of opportunity to protect as many people as possible by ensuring that DNA samples were collected.
Philip Davies (Shipley) (Con)
Does the right hon. Gentleman agree that if someone’s DNA is held on a database, it does not impinge on their freedoms to go about their daily lawful business, unimpeded in anything they want to do? Does he further agree that people’s freedoms are enhanced by having as many murderers, rapists and other serious offenders brought to justice and put behind bars, rather than having them wandering the streets because their DNA is not on a database?
Mr Hanson
I am grateful to the hon. Gentleman for his support on this matter. He has been consistent in his support for the Opposition’s proposals and has joined us in Divisions. Deep down, he understands that the Conservative party’s legacy as the party of law and order is seriously being put at risk by measures that are soft on individuals who have the potential to commit rape, murder or other serious crimes, who could be prevented from committing those crimes if their DNA were on a database for a longer period. I believe that that presents a real risk not just to public, but to the reputation of the Conservative party.
Dr Julian Huppert (Cambridge) (LD)
I want to be clear about what the right hon. Gentleman is saying about this Lords amendment. Does he accept that the amendment would mean that somebody accused and arrested only once for a malicious sexual offence would have their DNA kept for ever—in clear contravention of the European Court’s ruling? Is he admitting that his amendment is deeply flawed and that he is using it merely as a debating point rather than planning to insist on a vote—in other words, that he does not believe in his own amendment?
Mr Hanson
The hon. Gentleman will know that through Lords amendments, we are seeking to find a mechanism to debate serious issues such as rape and other serious crimes. The Sexual Offences Act 2003 includes rape and a range of associated issues, which we want to debate. The amendment might not have been tabled perfectly; it was done at the last minute in order to find a way to discuss the key issues. We wanted the Government to hear again, before the Bill receives its Royal Assent, arguments from people such as the hon. Member for Shipley (Philip Davies) and some of my hon. Friends who have real and genuine concerns. We do not want the Government to proceed with allowing the DNA of some individuals to be destroyed earlier than it needs to be, as this will potentially put at risk individuals in the community at large.
Mark Field (Cities of London and Westminster) (Con)
I accept some of what the right hon. Gentleman says, but surely he must recognise that there are shades of grey in this debate. He says that we need to be protected from murderers and rapists, but many law-abiding citizens have concerns about being fitted up by the police or the possibility of the science and technology proving faulty—and who knows where DNA technology will be in 20 or 30 years’ time? Does he not recognise that there are shades of grey in this particular debate, and that painting it in the simplistic way he does—although it is good that we are having this debate—rather debases his argument?
Mr Hanson
Let me reassure the hon. Gentleman that I am not trying to turn this into a simplistic debate. As Home Office Ministers, my right hon. Friend the Member for Kingston upon Hull West and Hessle (Alan Johnson) and I wrestled with officials for many months about where to draw the line on this matter. We recognised that there were different places to draw it. What we tried to do in government was to draw the line at the furthest point we possibly could to ensure that we maximised the police’s ability to collect and examine DNA so that subsequent crimes could be solved by its use. Because rape and murder are not always one-off crimes but repeat offences, we wanted to prevent further victims downstream. We looked at that in the light of our European responsibilities, and we drew the line at six years.
To answer the hon. Member for Cambridge (Dr Huppert), I still wish to draw the line at six years today. I accept that the amendment may be technically flawed, but its purpose, given the limited opportunities available, was to put our concerns to the Minister, as I have explained. We want to stress that the impact of sexual offences and other serious crimes needs to be examined. What is the clear difference between the Minister and me? It is the fact that his proposals to restrict the use of DNA put at risk people’s lives and their ability to enjoy them freely without being subjected to sexual offences. I fear that the Minister and I will continue to disagree on those issues. Let me tell him that the gut instinct of many Conservative Members is to share the gut instincts of many Labour Members. What we are trying to do is at least to give the Minister an opportunity to look at these issues again.
Jeremy Corbyn
Is my right hon. Friend aware that many people are very concerned about the way in which DNA is collected and stored? Clearly, when someone has been reported, questioned and possibly arrested by the police, but then exonerated—with no conviction and in many cases no trial—surely there is no case for storing their DNA. This is what leads to a great sense of unease for many people and probably diminishes relations between the community and the police as a result. Is my right hon. Friend not concerned about that? I know that he had to make these judgments as a Minister.
Mr Hanson
We did have to make those judgments when we were in government, and our judgment was that having the envelope of six years was consistent with our European obligations, and also with the pattern of offending. If people had not reoffended within the six years, the likelihood of further offences diminished considerably. People tended to reoffend within a one-year to six-year period. I genuinely take my hon. Friend’s concerns about the retention of DNA impacting on people’s civil liberties. However, I support what the hon. Member for Shipley said, as being raped, murdered or subjected to serious crimes also has an impact on people’s civil liberties.
As a Minister I had to make a balanced judgment, and the judgment reached by me and by my colleagues was that six years was an appropriate limit. There is an honest disagreement between the present Minister and me about that.
The Government’s own research—research carried out by the Home Office in July 2010—found that 23,000 people every year whose DNA would be retained on the database as a result of our proposals, but that would not be as a result of the Government’s, would commit further offences. We are talking about 23,000 further offences. My amendment may be flawed—I do not have recourse to all the fine civil servants who are available to the Department—but my aim was to initiate a discussion about sexual offences, and to persuade the Minister to reflect on the issues once more before the Government’s proposals became law.
Philip Davies
Does the Minister know of any innocent person who has been negatively affected by the placing of his details on a DNA database? This is a question of balance. The Government’s main aim appears to be to ensure that the DNA of someone who has not committed a crime is not put on the database, but as far as I know that does such people no harm. Surely a greater danger is posed by the person whose DNA should be on the database but is not, and who then commits a crime that is not detected.
Mr Hanson
I hesitate to agree with the hon. Gentleman yet again, but I do agree with him. As far as I am aware, the fact that someone’s DNA is on the database under the 2010 Act is known only by the police—if they wish to examine it—and by the person concerned, and they can tell whoever they wish to tell, or alternatively tell no one. It is not a matter of public knowledge.
This is the nub of my amendment, flawed though it is. Of the 23,000 people I mentioned earlier, about 6,000 a year will go on to commit serious crimes, including rape and other sexual offences, murder and manslaughter. I simply ask—as I have on every occasion when I have had an opportunity to discuss the issue—why we should allow that to happen when we have the ability, potentially, to prevent it from happening.
Mr Hanson
We have had a debate about this and there is an honest disagreement between the Minister and me, but the hon. Gentleman needs to recognise that the DNA database, as constituted under the 2010 Act, would prevent those 6,000 serious crimes from taking place. He may shake his head, but that is what he needs to recognise.
Let me give an example involving an event that took place after our debate on 10 October. A newspaper report, headed “Warning as bogus cab driver is jailed for rape”, stated:
“Marcos De Souza, 32, was trapped because his DNA was held on file even though he had no criminal record. The Brazilian had lured the drunken 19-year-old into his car as she left a house party in Camden in February.
The victim was so drunk the sex predator believed she would never remember what was about to happen to her…But when she arrived home dishevelled, her boyfriend encouraged her to call police and De Souza’s DNA was found after tests. The sex predator was traced because police had taken his DNA when he was arrested after a previous girlfriend claimed he had assaulted her. The case was discontinued but his profile was retained on the national database.”
That DNA would not have been retained under the Government’s current proposals.
I accept that my amendment is not perfect. I may not have advanced the same argument in the past, and it is possible that I shall not do so in the future. The purpose of the amendment is to persuade the Minister to reflect again on the views of the hon. Member for Shipley and other Members.
Keith Vaz
I apologise for missing the earlier part of my right hon. Friend’s no doubt excellent speech. Given that his amendment is raising a number of issues, will he respond to the concern that some of us feel about the disproportionate number of black and Asian people whose names and details are on the database? There seems to be no explanation for it.
Mr Hanson
I consider the retention of the six-year limit specified by the 2010 Act to be a proportionate response. Certainly issues related to stop-and-search powers and charging need to be investigated in the context of police practice, but the fact remains that the DNA that is being kept under the Act has prevented the committing of further crimes, and would continue to do so if the six-year period were retained. I am happy for my right hon. Friend to take up the issue of how DNA is taken in the first place, and to draw attention to instances in which people are picked up and charged but not convicted, or picked up and not charged at all. However, I venture to suggest that that issue is separate from the one that we are considering, which is the retention of DNA over a long period.
Mike Crockart (Edinburgh West) (LD)
May I try to help the right hon. Gentleman? The basic principle being advanced is that the retention of DNA prevents further crimes, but I think that what he really means is that it assists in the detection of further crimes. The mere holding of DNA would not have prevented even the case that he cited.
Mr Hanson
I am afraid that I disagree fundamentally with the hon. Gentleman. Someone might be picked up as a result of the retention of DNA following the commission of one crime, but how many times has the hon. Gentleman seen reports about serial rapists or serial murderers on the television news? Potential further victims might not be actual victims because the individual concerned had been apprehended owing to the collection of his DNA. As I have said, I accept that my amendment is flawed, but I believe that the principle behind the use of DNA and the retention of the six-year period for the purpose of dealing with serious sexual crimes is fundamental.
Mike Crockart
I accept some of what the right hon. Gentleman has said, but he should be very careful about the language that he uses in debates such as this. He should not blindly claim that the retention of DNA would prevent 6,500 further offences, as he did earlier, because that is simply not correct. The retention of DNA would contribute to detection, but it would not prevent.
Mr Hanson
I venture to disagree. The figures that I gave were Home Office figures produced for the Minister in July 2010.
The point that I am making, which I think is valid, is that the retention of DNA could, in a number of cases, prevent repeat offences. That is why the hon. Member for Shipley supports the amendment, and why my hon. Friends agree with what I have said. As I said to my hon. Friend the Member for Islington North (Jeremy Corbyn), it is sometimes a case of making a balanced judgment. We make judgments as Ministers, and the six-years judgment was the one that we made within the envelope that was available to us. I believe that it was the right judgment, and my amendments—which I accept are flawed—were tabled so that we could debate the principle again.
Jonathan Edwards (Carmarthen East and Dinefwr) (PC)
I have been following the right hon. Gentleman’s argument with some interest. Would it not be more consistent with his argument about prevention if everyone’s details were put on a DNA database—not that I am recommending such a course of action?
Mr Hanson
There is a range of views in the House, but what we have been trying to do consistently, both in opposition and in government, is maximise the amount of time for which we can retain DNA within European law, and we believe that six years is an appropriate period. I believe—and Home Office information on future crimes confirms—that that can help us to catch criminals and bring people to justice, and indeed it has done so. I ask the Minister to think again before it is too late. I welcome the changes that he has made in Lords amendments 1 and 2, I welcome his introduction of further safeguards, I welcome the fact that Lords amendment 2 allows DNA samples to be examined for different periods, and indeed I welcome the changes that he has made generally. I simply ask why we have not considered them in a wider context so far.
I want to say a little about two amendments which, at a very late stage, were grouped with the DNA proposals. Lords amendment 9 deals with biometric testing in schools. It changes the law so that only one parent, rather than both parents, must give written consent, but retains the position whereby either parent can withdraw consent. Our amendment changes the wording from “and” to “or” so that biometric data can be collected if one parent has given consent or neither parent has withdrawn consent.
Dr Huppert
I assume that the right hon. Gentleman’s amendments are carefully drafted and that he intends what they state. Does he agree that the consequence of that change would be as follows: if no parent has consented but neither has actively objected, that would count as consent—in other words, consent would be assumed even if neither parent had ever said they were happy for that to happen?
Mr Hanson
Yes; my hon. Friend the Member for Kingston upon Hull North (Diana Johnson) has dealt with this matter in Committee and throughout the Bill’s passage, and that is the position of the official Opposition.
We note the amendments proposed in the other place by the Government, and there has been some recognition that the original clauses as drafted were far too onerous, as they needed both parents to give written consent for biometric data to be taken from the child. The amendments also correct an omission, by recognising that not all children have parents, and that those with caring responsibilities needed to be included in this provision for it to be able to work effectively. However, we also note that one parent can still overrule the consent of the other in agreeing for the child to give biometric data, which, again, can cause confusion for schools. We think that, overall, this policy is still unwieldy and unmanageable for most schools.
Furthermore, we do not believe that allowing a child to override their parents’ wish to allow biometric data to be taken is sensible or correct. I would be grateful if the Minister could confirm that that would be the case under the proposals as they currently stand. There does not appear to be any other circumstance in which a child of, for example, five years of age can overrule parental consent. Also, we note that if the parents have refused to give consent, the child is not in a position to override the parents’ wishes if the child chooses to give consent. We think that amendment (a) to Lords amendment 9 would be a further sensible step, by allowing schools to operate this policy in a more manageable way by presuming an acceptance of biometric data being taken if no contact is made by the parents or carers once they have been notified.
I welcome Lords amendment 27. It gives a more prominent role to Parliament. As I have argued previously, it would be appropriate for the Government to lay an order before the House in order to ensure that these matters are dealt with during recesses or general election campaigns. It is important that the Government lay an order before the House, but it is also important that the Government make a statement as to the purposes of the order. I seek assurances from the Minister that he will not lay any order before the House without making a statement to the House explaining the reasons for seeking an order in those exceptional circumstances.
I have concerns about Lords amendment 28. It will allow the Government to withdraw temporary extensions to anti-terror measures without any parliamentary procedure at all. The effect will be to demand that the Government must seek parliamentary approval when strengthening anti-terror measures, but that they can weaken anti-terror measures without consulting Parliament. I heard the Minister’s explanation of that. Temporary extension will be brought in only during times of exceptional risk and the individuals held under these measures will be considered a serious threat to national security. Therefore, if Parliament has had to decide that these measures are necessary in the first instance, Parliament should also get to decide that these powers are no longer necessary. There is no more important issue than protecting the public, but we must have an explanation and an order placed before the House when these powers are revoked.
I accept that our amendment is flawed and does not achieve the objective I would wish, but there are major issues in respect of the retention of DNA which the Minister should, even at this late stage, reconsider and re-examine in detail. I hope he will also answer the questions I asked about counter-terrorism and biometrics in school.
Kate Green (Stretford and Urmston) (Lab)
I wish to raise one specific issue in relation to Lords amendment 3, and I put on the record my interest as a life member of the Magistrates Association. Ministers propose that the possible holding of DNA on the database beyond the period covered by the legislation could be agreed on application to a district judge. My understanding is that they have drawn on the experience in Scotland, where agreement from the sheriff and the sheriff courts is required. Has consideration been given to extending that provision to cover justices of the peace who are members of the lay magistracy? Unlike in Scotland, the magistrates court works as a single bench; there is no hierarchical difference or difference in terms of courts between district judges and lay magistrates.
James Brokenshire
We have carefully considered the issue of the balance between the lay magistracy and the more professional judiciary. On the specific issues in question, we judge that because of the likely number of cases and the role required, the current measures are the right ones. However, we will continue to keep this under review as the legislation comes into effect and is applied.
Kate Green
I thank the Minister for that assurance, and I certainly hope the situation will be kept under review. District judges are paid members of the magistracy, and I am sure the Minister is not suggesting that there is less professionalism in the quality of judgments of the lay magistracy.
Keith Vaz
First, may I apologise for missing the opening speeches in this debate? I imagine, however, that they followed the usual form, with the Minister saying there are real problems with the retention of names on the database and the Opposition saying they ought to be retained because of the possibility that someone whose DNA is retained may well commit an offence in future, so it is better to hang on to it than to get rid of it.
My attention was drawn to this matter when a constituent of mine who had no previous convictions was at a pub and intervened to prevent a fight between two individuals. As a result of his intervention, his DNA was retained, and remains on the database. To be fair, the shadow Minister, my right hon. Friend the Member for Delyn (Mr Hanson), said it was important that Parliament as a whole should debate this issue. My position is that if someone has not committed an offence, their DNA should not be retained on the database. There is absolutely no reason to do so. We can either have a position, as set out by the hon. Member for Carmarthen East and Dinefwr (Jonathan Edwards)—as I doubted whether I could pronounce his constituency, I almost called him the hon. Member for the whole of Wales—under which everyone is on the DNA database, so that is fair to everybody, or we can have a position whereby only the DNA of those who have committed an offence are on the database.
Jeremy Corbyn
Is my right hon. Friend concerned about the disproportionate number of black and ethnic minority people whose records are kept and the disproportionate number of young people who are pulled in for questioning because of incidents in the street whose DNA is kept, although often no charge is made, and they are then under some form of surveillance? Does he think that that is very damaging to their relations with the police?
Keith Vaz
Yes, I do. My hon. Friend is absolutely right. There is a concern about certain other groups, as well as those in ethnic minority communities, whose DNA is retained disproportionately. We have proportionately the largest DNA database of any country in the world. I am sorry to say that at the end of the previous Labour Government we lost our way on civil liberties issues. That has been acknowledged and there has been a mea culpa; those on the Front Bench, leaders and candidates in the Labour leadership election have all admitted that this had been a problem for us. However, we now have an opportunity to pause and to look at these issues carefully again.
Philip Davies
I wish to bring the right hon. Gentleman back to the case of his constituent who intervened in the fight and was put on the DNA database. How has that person’s life been negatively affected by having those details on the DNA database? Does the right hon. Gentleman agree that if people do not go on to commit a crime, they will not be negatively affected by having their details on a DNA database?
Keith Vaz
I ask the hon. Gentleman, who always speaks up for the rights of the individual, this: why should a totally innocent person who seeks to intervene to stop a fight—one of the have-a-go heroes of this world, of whom he is the champion, not just in Shipley, but in other parts of the country—have their DNA retained because of their act of kindness in trying to stop further violence? It is absolutely wrong for that to happen; such people should be able to intervene and not fear that any DNA should be kept.
Philip Davies
I will have another go. Rather than asking me a question, although I am happy to debate it at a later date, I wonder whether the right hon. Gentleman will answer my question: how was this person negatively affected by having their details on the DNA database?
Keith Vaz
I thought that I had answered the hon. Gentleman’s question. Why should a person in such a situation, through no fault of their own, have any part of their identity retained by a third party, given that they were not involved in any criminal offence? This is about freedom and liberty; it is a freedom not to have our information kept on a database.
If everybody was on the DNA database, the situation would be different. I am not advocating such an approach, because the state already has far too much information on us. We talked about all the offences created under successive Governments in respect of entry into people’s properties and the review that that Government have announced. Why should we suddenly want to give up all this information? Who is to retain it? How long is it to be retained for? Those are crucial questions and this Government are adopting the right approach. We have to pause, we have to examine what has happened over the past few years and we have to say, “Enough is enough.” I hope that, in looking at these issues, we will address the fundamental flaws in the database. If any suggestions are going to be made to improve the situation, I am sure that Parliament would want to enact them. However, the course that has been advocated—removing the DNA of innocent people over a specific period—is the right one to adopt at the moment.
Lords amendment 1 agreed to.
Lords amendments 2 to 15 and 19 to 29 agreed to.
Clause 64
Restrictions on scope of regulated activites: children
Madam Deputy Speaker (Dawn Primarolo)
With this we will discuss the following:
Lords amendment 31, and amendment (a) thereto.
Lords amendments 32 to 47.
Lords amendment 48, and amendment (a) thereto.
Lords amendment 49, and amendment (a) thereto.
Lords amendment 50, and amendment (a) thereto.
Lords amendments 53 to 55, 57 and 58, 60 and 61, 63, 67 and 69.
Lords amendment 102, and amendment (a) thereto.
Lords amendment 103, and amendment (a) thereto.
Lords amendments 104 to 113, 117 to 132 and 138 to 145.
Diana Johnson
I wish to put on the record the fact that Lords amendments 33 to 36 are very welcome, as they relate to a matter raised in Committee and on Report, and directly with the Prime Minister. Originally, the Government planned that anyone committing a serious sexual offence against a child would not automatically be placed on the barred list unless they had worked with children or planned to do so. We are pleased that the argument we made in Committee has been accepted by the Government and that now, for all serious sexual offences committed against a child, the perpetrator will automatically be placed on the barred list. The original plans were bureaucratic and appeared to the general public to leave children in a potentially vulnerable position, so we very much welcome the Government’s action.
Both Houses of Parliament have debated extensively the vetting and barring part of the Bill. One of the key issues debated at length was what constitutes “supervision” of a volunteer and how that relates to ensuring that children are properly protected. Initially, in the Commons, the Government turned their face against defining “supervision”, but they have now set out a definition, albeit a very weak one, in amendments 30 and 31, which refer to both children and vulnerable adults.
At this stage, I wish to refer to the excellent report by the all-party group on child protection, chaired with great knowledge by my hon. Friend the Member for Sheffield, Heeley (Meg Munn), which also called for a tightening up the definition of “supervision”. Amendments (a) to Lords Amendments 30 and 31 deal with this issue, and it is important to set out why the definition of “supervision” is so important.
Under the Government’s new system, any employer, voluntary sector body or charity will be aware that, from the Bill’s enactment, they will be able to obtain full disclosure of information about an individual only if that person is in “regulated activity”, which is now much more narrowly defined in the Bill. To take schools as an example, we know that all employees in a school will be in “regulated activity”, so full information on teachers and caretakers, including details of cautions, convictions and barred status, and any soft information, will be available. However, we also know that if we delve a little further in a regulated setting, we find people who might have volunteered within the school—to read with the children in an individual classroom a few times a week, for example. They will not be deemed to be in “regulated activity” if they are supervised within the school. Will the Minister clarify whether the school will be committing an offence if it requests information on the barred status of a volunteer who is supervised? The measures mean that schools will not have the right to any information about whether a volunteer had been barred by the Independent Safeguarding Authority. If a school decides to apply for a Criminal Records Bureau check, they will be provided only with very basic CRB check information.
I will return to this point in relation to Lords amendment 48, but first let me address the question of supervision. There is genuine concern that “supervision” is a very loose concept, which can mean many different things to different people, and that could put children and vulnerable adults at risk.
Meg Munn (Sheffield, Heeley) (Lab/Co-op)
I thank my hon. Friend for giving way and for her kind words. I apologise that I was not quite in the Chamber when she started speaking.
Are there not two areas of risk? First, if someone has something in their background that has previously been identified, it should be notified to the school so that the school can make an appropriate decision. Secondly, the supervision needs to be close to ensure that the behaviour and propensity to groom a child and build a specific relationship with them can be identified sooner.
Diana Johnson
I am grateful to my hon. Friend. She speaks with great knowledge and makes very important points. Those two issues are key when it comes to looking at supervision, volunteering and information sharing. The problem is with the looseness of the definition of supervision. Supervision must be close enough to make it meaningful. When a volunteer is in a classroom engaging in an activity such as teaching a child to read or listening to a child read, there is a formation of trust between the volunteer and the child. That might be in a classroom where a teacher and teaching assistant are present, but unfortunately grooming could be taking place in some cases. Similarly, a volunteer sports coach develops a level of trust and relationships with young people on the sports field. Such bonds and levels of trust are also formed in youth clubs.
A number of highly informed Lords raised those questions in the other place. I pay tribute to the excellent contributions of the noble Baronesses Royall and Butler-Sloss, the noble Bishops of Hereford and of Newcastle and the noble Lord Bichard who, as we all know, conducted the Soham inquiry and has great knowledge of this area of child protection. I ask the Government to reconsider what the noble Lords said from a position of great knowledge and experience.
It is very important that, wherever possible, supervision is meaningful and ensures that everything can be done to make sure that volunteers behave properly at all times and that children are kept safe. The vast majority of volunteers give their time freely and want to give something back to society, and we applaud them for doing that, but we know that people who want to harm children are very devious and manipulative. They are always looking for a way to access children, and if there is a weak link in the chain—the weak supervision of volunteers, for example—they will use that to their advantage. So that employers fully understand all their responsibilities in having volunteers on site or within their organisation, and use best practice in dealing with volunteers, it is important to provide a proper definition of supervision and guidance.
The Sport and Recreation Alliance, Fair Play for Children and many other charities have highlighted the problems of using the notion of supervision to decide whether a person is in a position to exploit their relationship with children from reading with children in a class or volunteering as a sports coach. We have considered several definitions of supervision in our deliberations on the Bill. One was about day-to-day supervision, but after a long debate it was felt that that definition would not be enough to ensure close supervision. For example, a football coach could see their supervisor for a quick chat at the beginning of the day and that could be it for their supervision for the day. They could then be with children for long periods of time each day, perhaps taking them to a distant football field for several hours out of the supervisor’s eyesight and earshot. Similarly, a drama volunteer could be working with children in another room away from a supervisor, week in week out. They might have a short supervision once a day with the supervisor, but for the majority of the time they could be away from any real oversight. Most people would think that such volunteers should be subject to full background checks, and that if they are not, they should be effectively and constantly supervised.
The definition of supervision we have set out in amendment (a) in lieu of Lords amendment 30 is
“constant monitoring by an individual engaged in a regulated activity who is on the same site and able to maintain close visual and audio contact with the individual who is under supervision.”
We believe that definition is helpful and sets out for everyone who needs to read and act on it the required standard and what is expected when supervising a volunteer in regulated activity. Given the importance of this issue, I will seek to press the amendment to a vote to test the opinion of the House.
Lords amendment 48, which the Government tabled in the other place, provides welcome clarification on how police forces should record cautions. The effect seems to be that cautions will now always be treated as convictions. The inevitable result of that will be that many more cautions will be disclosed on CRB checks. Given that the Government are to disclose more information on CRB checks, I am surprised that they continue to block the release of information on barred status to a school or voluntary organisation. That is why my hon. Friends and I tabled amendment (a) in lieu of Lords amendment 48, under which barred status issued by the Independent Safeguarding Authority would be treated in the same way as a conviction or caution. Under our amendment, barred status could be disclosed to a school or voluntary organisation when they request an enhanced CRB check on a volunteer. The Government appear to be making it an offence for such organisations to make a request about barred status, as they previously could.
We have spent many hours discussing in Committee, on Report and in the other place how the arrangement would work. I am concerned that the Government have not heeded the advice offered to them by a range of knowledgeable sources, including the NSPCC, Fair Play for Children and the Sport and Recreation Alliance. Those organisations have all called for barred status to be revealed, as has the noble Lord Bichard, who conducted the review of the Soham murders. He tabled amendments on this issue in the other House for which he had the support of many noble Lords including several bishops. I hope that at this late stage the Minister will reflect on the opinions of so many experts in this field.
Let us consider where these questions might arise. Suppose that a supply teacher is barred from working with children after substantiated allegations of inappropriate conduct are made by four schools. Suppose that teacher then goes to another local authority and volunteers to hear reading in a classroom, twice a week, taking children out of the classroom and working with them on a one-to-one basis for 15 minutes. Under the Government’s proposals the school would be prevented from finding out that that person was barred from working with children. I do not think that is right and I believe that the vast majority of parents would agree with me.
The Government have consistently stated that they do not believe it is proportionate to reveal barred status, but they are happy to reveal any criminal conviction, regardless of whether it is relevant to child protection; similarly, any caution can be disclosed, regardless of whether it is relevant to child protection. Yet information on whether a person has been assessed by experts at the Independent Safeguarding Authority and deemed inappropriate to work with children cannot be disclosed. The Government’s response has been to say that the evidence leading to the barring decision will be revealed. To that end we welcome Lords amendments 37 and 38, but information sharing between the ISA and the police is not enough unless that information is then passed to the school. One of the key recommendations from the Soham inquiry was about the need to share information.
James Brokenshire
In many respects, I am speaking on behalf of the Minister for Equalities, who is also responsible for criminal information; she would wish to be here if it were not for a family emergency.
This group of amendments relates to parts 5 and 7 of the Bill. Part 5 will implement our reforms to the disclosure and barring arrangements, which will scale them back to common-sense levels. The Lords amendments to part 5 address a number of concerns raised by hon. Members in our earlier deliberations on its important provisions. We have had useful debates on the issues in this House and the other place, and I am pleased that the hon. Member for Kingston upon Hull North (Diana Johnson) welcomes Lords amendments 33 to 36, which amend clause 67 and relate to the criteria for automatic barring by the Independent Safeguarding Authority.
Our review of the disclosure and barring scheme concluded that it did not make sense to bar somebody if they had never worked, and are unlikely ever to work, in regulated activity. We recognise that this change to the barring arrangements was a matter of concern to hon. Members in this House and in another place, and to partner organisations. We therefore brought forward the amendments, so that people convicted of the most serious offences, such as the rape of a child—in such cases, representations are not allowed—are barred automatically, whether or not they have any link to regulated activity. In all other cases, a person will be barred only if they have been, are, or might in the future be involved in regulated activity. Should they ever apply to work in regulated activity, their details will be passed to the Independent Safeguarding Authority or the disclosure and barring service, which will consider them for barring at that point. I welcome what the hon. Lady said in that regard.
On amendments 30 and 31, obviously there continues to be a genuine difference between the two sides of the House. I listened carefully and intently to what the hon. Lady said. Amendments 30 and 31 amend clause 64, which amends the definition of “regulated activity” and introduces the concept of regular and day-to-day supervision of individuals whose work would be regulated activity if unsupervised. We previously debated at length the appropriate level of supervision; the Opposition suggested that it should be “close” and “constant”; notwithstanding what the hon. Lady has said, we still believe that that formula is unworkable in practice.
When the Bill left this House, it already made provision for the Secretary of State to issue guidance on the meaning of “day to day supervision”. Amendments 30 and 31 require the level of supervision to be reasonable in all the circumstances for protecting children. That qualitative threshold, coupled with the statutory guidance, will assist employers and voluntary organisations in making appropriate judgments as to which of their supervised staff or volunteers fall within or outside the scope of regulated activity. The hon. Lady’s amendments to Lords amendments 30 and 31 would remove the definition of “day to day supervision” in clause 64 and replace it with:
“constant monitoring by an individual engaged in a regulated activity who is on the same site and able to maintain close visual and audio contact with the individual who is under supervision.”
Such constant monitoring is, in our judgment, likely to be impossible in practice. A trip away from a classroom, perhaps for a comfort break or something like that, would be enough to cause someone to fall foul of the amendments. The effect of the amendments would be to reinstate all supervised people within regulated activity.
I appreciate that this is a point of difference between us, and I know that the hon. Lady has considered the issue carefully, but as we have said, we believe that although it is right that all paid staff and unsupervised volunteers in specified places such as schools, and unsupervised staff in other places who carry out activities such as teaching and training, should be within regulated activity, it is not proportionate to include other staff in those areas within regulated activity. Lords amendments 30 and 31 make it clear that the test of supervision is whether it is reasonable in all the circumstances for child protection, so if supervision is not reasonable, the person falls within regulated activity, but if it is reasonable, there is no need for them to do so. Our judgment is that that is right, in order to empower employers to make decisions, to reduce unnecessary burdens on employers, and to remove barriers to volunteering. If a grandparent whom a head teacher has known for years wants to help out with reading at their local school, why should the head teacher have to check their barred status, if he or she knows that they present no risk?
However, I repeat the assurances given by my ministerial colleague, Lord Henley in another place: supervised people who work regularly and closely with children will remain eligible for enhanced criminal record certificates, and our guidance on supervision will make it clear that it is best practice to request such a certificate when employees or volunteers are unknown to the organisation, or if checks are needed for new posts or staff moves.
It might make sense for me to talk about the Opposition’s amendment (a) to Lords amendment 48, because there is a strong link between that amendment and their amendments to Lords amendments 30 and 31. The effect of the amendment to Lords amendment 48 would be that the definition of “conviction” in the Police and Criminal Evidence Act 1984 included a person’s inclusion on an ISA barred list. I presume that the intention is that the information should then be included on criminal record certificates.
We have debated the issue of barred list information before. The Government do not think it right to include barred list information on enhanced criminal record certificates, except for posts falling within regulated activity, and a few compelling exceptions, such as when people are applying to foster or adopt a child.
Employers in regulated activity must know about a bar because of its legal effect; otherwise, there is no need to know because it relates to a different area of work and in practice would lead to individuals being excluded from areas of work to which their bar does not apply. In most cases, the information which led to the bar will be available on an enhanced criminal record certificate. When it is not, as Lord Henley also confirmed last week in another place, we will use secondary legislation to allow the ISA to give the police the information which led to a bar so that they can disclose it on an enhanced certificate, if it is relevant to the post applied for.
Bars may apply, for example, because there is a criminal conviction, but equally a bar may apply because someone has been dismissed by their employer in respect of a particular case. In those circumstances the ISA would be able to give the police the relevant information. The police would then be able to determine, through an enhanced check, whether its disclosure was appropriate. We think that that provides an important safeguard.
Diana Johnson
With the experts at the ISA making a judgment about whether someone should have barred status, why is another layer of bureaucracy introduced by giving that information to the police to allow them to make a further judgment about whether that should be disclosed to a school, for example? Why do we not trust the ISA to make the right decision and disclose that?
James Brokenshire
This is where we differ on the appropriate way to treat the bar. We believe that if there are circumstances which would otherwise not necessarily have been disclosed for the ISA to make that judgment, it is appropriate to allow that information to be disclosed to the police and for the police to consider the application that they have received on an enhanced check and to judge whether the disclosure of those facts and circumstances is right in that case.
I appreciate that a difference exists between us. We do not see that as bureaucratic. It is about respecting the purpose of the bar and ensuring that on an enhanced check, if the ISA holds relevant information, it can be provided to the police. We have made that clear through our assurances in another place. I hope that that gives greater reassurance on a matter about which I know the hon. Lady feels strongly.
Meg Munn
I am concerned that the measure is becoming bureaucratic. We know that when systems are not clear, there is a greater likelihood that people will not follow them properly. Although the Minister may be certain in his own mind that the theoretical operation of the process is justified, is he equally certain that it will be operated in a way that does not allow information that should be shared to fall through the gaps?
James Brokenshire
We intend that the ISA should provide that information to the police, as I explained. We will be very focused on the way in which the measure is implemented to ensure that that reflects our intentions and that the police have the relevant information for an enhanced check. I recognise that there is a potential point of difference between us on this, but I hope I have explained some of the additional safeguards that we are putting in place.
From what the hon. Member for Kingston upon Hull North said, I do not think the other amendments are contentious. Amendments 37 and 38 to clause 77 would make it clear that the new duty on the ISA—and, in future, the disclosure and barring service—to pass barring information to the police will include passing the whole of the children’s and adults’ barred lists, as well as information about a particular person. This will ensure that the police can obtain real-time access to barring information for safeguarding purposes.
Amendment 40 to clause 79 would make changes to the proposed arrangements for the issue of a single criminal record certificate under that clause. Amendment 40 provides a facility for the Secretary of State to send to a registered body a copy of a criminal record certificate only where the registered body uses the new updating service, as introduced by clause 82, and is informed that a new certificate should be applied for—in other words, that there has been new information since the most recent certificate. If, once that new certificate has been sought, the registered body informs the Secretary of State that the individual has not sent it a copy of the new certificate within a prescribed period and requests a copy of the new certificate, the Secretary of State must comply with that request.
However, a copy of the certificate will not be sent if prescribed circumstances apply. Principally, these will be when the individual has challenged the information on the new certificate. This change will be particularly relevant to large organisations that consider certificates centrally, which will be able to advise their local branches of any issues arising.
Amendment 41 would insert a new clause into the Bill which will strengthen the current powers of the Criminal Records Bureau to refuse to register an individual or organisation as a registered body. Amendment 48 inserts a new clause that will ensure that cautions, reprimands and warnings are recorded on the police national computer in exactly the same way as convictions.
Fiona Mactaggart (Slough) (Lab)
That was a very nice introduction from the Minister. I know that he is standing in for one of his colleagues, which is always challenging. In my two proposals which have won support from Members on both sides of the House, although owing to shortness of time only the names of Opposition Members appear on the amendment paper, I seek to ensure that we achieve the whole ambition set out by the Minister—conformity with the European convention and the European directive.
Amendment (a) to Lords amendment 49 would establish a rapporteur on human trafficking, as is explicitly required by the European directive. The argument for that was best made by the hon. Member for Wellingborough (Mr Bone) in a debate in Westminster Hall, when he pointed out:
“One of the problems surrounding human trafficking is the lack of reliable information and data analysis permitting us to assess the scope of the problem in our country. The solution in the UK to that challenge is to establish an independent national rapporteur.”—[Official Report, 8 February 2012; Vol. 540, c. 135WH.]
Indeed, the Council of Europe convention and the EU directive are explicit on that point, requiring member states to appoint national rapporteurs or equivalent mechanisms to assess trends in human trafficking, monitor and measure the anti-trafficking activities of state institutions, gather statistics and report on their findings.
The usual response from Ministers is that the interdepartmental ministerial group on trafficking performs the role of a rapporteur, but that is not true. I used to be a member of the interdepartmental ministerial group, which in those days had better attendance than it has had recently. The body meets twice a year, and more Ministers send apologies than turn up. It does not have the one requirement of a rapporteur, which is to be independent of the Government, that it needs to be properly effective. The group has to provide information independently to Parliament, but it does not report to it. It needs to be able objectively to assess and report on the activities of the Government. The job of Ministers is not objectively to assess the Government, but to progress with the business of Government. Therefore, I think that there was a failure to include that requirement in the two welcome amendments tabled in the other place.
The other amendment I have tabled, amendment (a) to Lords amendment 50, would provide for a dedicated advocate for trafficked children, which is another requirement of the Council of Europe convention and another matter that has secured all-party backing. The amendment is modelled on one that was tabled in another place by Lord McColl, a Government Back Bencher, and supported by Cross-Bench and Conservative peers and the Archbishop of York—it had the broadest possible support. My amendment would put into effect the clear requirement in the directive and the convention that children who have been trafficked should be protected by a guardian. Lord McColl withdrew his amendment following a promise from Lord Henley, who said at the beginning of the debate that he would ask the Children’s Commissioner for England
“to review the current practical arrangements for rescued child victims of trafficking”.
He went on to say that following that review the Government would
“be in a position to come back to these matters at a later stage.” —[Official Report, House of Lords, 15 February 2012; Vol. 735, c. 848.]
I gather from the Children Commissioner’s public remarks that she is concerned about some of these policies. She said:
“A request to review care has not yet been made.”
I expect that a request has since been made. She continued:
“However, if this was received we would give it due consideration, and as a small organisation would seek assurances regarding the independence of our work and the resources that would enable us to undertake this work.”
I gather that, within the commission, one member of staff deals with child protection issues and another deals with refugee and asylum issues, so I think there is a real risk that the responsibility Lord Henley has given the organisation is simply beyond its capacity. The Children’s Commissioner is conducting an important inquiry into the sexual exploitation of children in gangs. It is an inquiry that I absolutely support and think is essential, and she is uncovering genuinely shocking information that we all want to know about and that we want the Government to know about and to act on. However, the fact that she is conducting that inquiry will make it really difficult for her to deliver on the pledge that Lord Henley made.
I would be happy not to press my amendment if the Minister gave the House an explicit assurance that he will ensure that the Children’s Commissioner has sufficient expert resources to conduct that inquiry before the end of 2012. If he gave that assurance, I would follow the lead of their lordships by not pressing the amendment to a vote, because I accept that Lord Henley was seeking to recognise the importance of the commitment and to meet the concern of their lordships, felt universally across the Chamber, about protecting victims of child trafficking.
Let us be clear that the problem with trafficked children is that, even when they are taken into the care of local authorities, they disappear. Government statistics suggest that the percentage of trafficked children who disappear has fallen from 30% to 20% but, as the number who have been found is slightly smaller than it used to be, I am not sure that we can be utterly confident in those statistics. In any case, if we are saying that one in five children in the care of local authorities disappears, we seem to have a situation that is absolutely intolerable to Members on both sides of the House.
Let us look at the legal case of one of the few child traffickers who have been convicted, Kennedy Johnson, who brought 49 Nigerian children through British airports, mainly Heathrow and Gatwick. He then targeted council care homes, which he told the trafficked children to get into. He picked girls from the care homes and pushed them into the sex trade in Britain, and also in Spain and Italy. His victims kept appearing for years after he was jailed. Barnardo’s has revealed that when some children trafficked into Britain not through airports but by people smugglers, jumped out of a lorry, they were put in supported lodgings but went missing within 24 hours. Another three children who were put into foster care vanished after several weeks. Of those disappeared children, only one has been found. The rest of them will have been prostituted, after having been taken into care in our name.
I believe that providing guardianship could more effectively protect those children. They have social workers at the moment, but that is not protecting them. Every child in care I speak with says that the problem with their social workers is that they change and do not continue. As was made clear in the amendment in the House of Lords, the proposed advocates would not have to be professional employees of local government or any other body; they could be trained volunteers or employees of charities and voluntary organisations. Children who have been victims of trafficking for sexual exploitation must have someone who is on their side.
I really hope that the Minister can give me the commitment I have requested, which is that the Children’s Commissioner will be able to conduct that work before the end of the year and that the Government will then bring forward proposals to ensure that her recommendations are put into force. That would mean that the only amendment I would have to push would be the one proposing a rapporteur on human trafficking. The interdepartmental ministerial group is a useful tool, but unfortunately few Ministers attend and no Ministers report to Parliament. I am glad that the hon. Member for Wellingborough is in his place, as he is one of the Members who have advocated this most powerfully.
Mr Peter Bone (Wellingborough) (Con)
The hon. Lady is making a powerful speech, much of which I agree with. On her point about a rapporteur, I pressed for that in a Westminster Hall debate and, although we did not get the full rapporteur, the Government assured us that we would have an annual report and that it would be debated. I would like the Minister to confirm that. Otherwise, I will join the hon. Lady in the Division Lobby tonight.
Fiona Mactaggart
I thank the hon. Gentleman for that implied threat, which is at the moment rather more effective coming from his direction than from mine, but nevertheless there is support for the concept on both sides of the House. I know that the Minister is stepping into another Minister’s shoes, and I will keep talking so that he can get that note from his officials, but I believe that if we had an independent rapporteur, we could ensure that our debates about the extent and impact of human trafficking were more effective.
My biggest concern, however, is about more effective protection for children, and I really hope that the Minister will be able to reassure me on that matter.
James Brokenshire
With the leave of the House, I shall briefly respond to the hon. Lady’s two points about trafficking.
On the first point, about the requirement for a rapporteur under article 19 of the EU directive, we still take the view that the requirement can be met through the inter-departmental ministerial group, but we recognise that the group needs to be reviewed to ensure that it can perform the rapporteur function effectively, and its next meeting, in April, will do just that.
It is also important for me to make it clear that the directive does not stipulate that the national rapporteur or equivalent mechanism be independent of government, but the Government fully recognise that in signing up to the EU directive we must comply with the requirements therein.
In response to the intervention from my hon. Friend the Member for Wellingborough (Mr Bone), I can confirm that it is intended that there will be an annual report on the group’s activities in that regard. I hope that that is helpful to him.
James Brokenshire
Unfortunately, the second point is outside my gift and within that of the business managers, but I certainly assure my hon. Friend about the publication of the report, and I hope that my comments on the rapporteur function are helpful.
Secondly, on the hon. Lady’s point about the assurance made by my noble Friend Lord Henley in the other place, the Government intend that we should ask the Children’s Commissioner for England to help to identify where improvements can be made to the practical care arrangements for trafficked children in the way that the hon. Lady highlighted.
I pay tribute to the work of the Children’s Commissioner. The hon. Lady highlighted the work on sexual exploitation, and I know about the very important review that the commissioner is undertaking. I had the privilege to discuss the issue with her at the start of her report, when I had ministerial responsibility for policy on the sexual exploitation of children, and I for one underline her comments on what I am sure will be an extremely important and valuable report. In the context of my noble Friend’s assurance in the other place, therefore, what I can say is that the issue is being considered extremely carefully, and discussions are under way on the scope and time scale of the review, but at this stage I am unable to give the hon. Lady the complete assurance that she looks for in the second of her two amendments. The matter is being looked at extremely carefully and closely in order to give effect to the statements that my noble Friend made in recognising the importance that we attach to receiving such input from the Children’s Commissioner.
Keith Vaz
Will the Minister respond to my hon. Friend’s excellent point about the appointment of guardians? It was an excellent point that reflects the recommendations of the Home Affairs Committee when we produced our major report two years ago on human trafficking. The appointment of a guardian would provide the best possible protection for such children in care.
James Brokenshire
The right hon. Gentleman makes an important point, and for the reason he cites we asked the Children’s Commissioner to review the practical care arrangements for trafficked children. We said that the right step at this stage was to seek that input, rather than to seek to legislate, recognising equally that several local authorities are already undertaking some very good practice.
I recognise that, in respect of the hon. Lady’s amendments, that might not be sufficient, but it was important that I respond and set out those points to the House this evening.
Question put, That amendment (a) to Lords amendment 30 be made.
Mr Deputy Speaker (Mr Lindsay Hoyle)
I should inform the House that Lords amendment 145 should refer to line 12 of the title, which is the last but one line.
The Deputy Speaker put the Question necessary for the disposal of the business to be concluded at that time (Standing Order No. 83F).
Motion made, and Question put forthwith (Standing Order No. 83H), That a Committee be appointed to draw up the Reasons to be assigned to the Lords for disagreeing to their amendments 16, 17 and 18;
That James Brokenshire, James Duddridge, Diana Johnson, Mark Tami and Tom Brake be members of the Committee;
That James Brokenshire be the Chair of the Committee;
That three be the quorum of the Committee;
That the Committee do withdraw immediately.— (Mr Dunne.)
Question agreed to.
Committee to withdraw immediately; reasons to be reported and communicated to the Lords.