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
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.
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.
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.
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.
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.
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.
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.