Anti-social Behaviour, Crime and Policing Bill
(11 years, 2 months ago)
Commons ChamberRead Hansard Text Read Debate Ministerial Extracts
21:48 - The House divided: - Ayes: 215 / Noes: 298 - Question accordingly negatived.
The Minister for Policing and Criminal Justice (Damian Green)
I beg to move, That the clause be read a Second time.
Madam Deputy Speaker (Dawn Primarolo)
With this, it will be convenient to discuss the following:
Government new clause 14—Sexual harm prevention orders and sexual risk orders, etc.
Government new clause 15—Saving and transitional provision.
New clause 5—Child sexual abuse prevention orders—
‘(1) The Sexual Offences Act 2003 is amended as follows.
(2) For sections 123 (Risk of sexual harm orders: applications, grounds and effect) to 129 (Effect of conviction etc. of an offence under section 128) substitute—
“123 Child Sexual Abuse Prevention Orders: Applications and grounds
(1) On the application of a qualifying person, or on conviction of a qualifying offence, a magistrates’ court may make a ‘child sexual abuse prevention order’ if it is satisfied that it is necessary to make such an order for the purposes of protecting children generally or any particular child from serious sexual harm from the defendant.
(2) A qualifying person under subsection (1) shall be a chief officer of police or an officer, of superintendant rank or above, in the NCA or other relevant agency to be decided by the Home Secretary.
(3) In subsection (1) a defendant shall be considered to be convicted of a qualifying offence who—
(a) is convicted of an offence listed in schedules 3 and 5;
(b) is found not guilty of such an offence by reason of insanity;
(c) is found to be under a disability and to have done the act charged against him in respect of such an offence;
(d) is cautioned in respect of such an offence;
“(1) A chief officer of police may apply for an order under this section in respect of a person who resides in his police area or who the chief officer believes is in, or is intending to come to, his police area.
(2) An application under subsection (1) may be made to a magistrates’ court whose commission area includes—
(a) any part of the police area, or
(b) any place where it is alleged that the defendant committed one or more offences listed in schedules 3 and 5.
Section 123: supplemental
‘(1) In this Part, ‘Child Sexual Abuse Prevention Order’ means an order under section 123.
(2) Subsections (3) and (4) apply for the purposes of Section 1.
(3) ‘Protecting children generally or any particular child from serious sexual harm from the defendant’ means protecting persons under 18 or any person under 18, in or outside the United Kingdom, from serious physical or psychological harm caused by the defendant committing one or more offences listed in Schedule 3.
(4) Acts, behaviour, convictions, and findings include those occurring before the commencement of this Part.
(5) In subsection (1)(1), a person shall also be considered to have been convicted of a qualifying offence if, under law in force in a country outside the United Kingdom and whether before or after the commencement of this Part—
(a) he has been convicted of a relevant offence (whether or not he has been punished for it),
(b) a court exercising jurisdiction under that law has made in respect of a relevant offence a finding equivalent to a finding that he is not guilty by reason of insanity,
(c) such a court has made in respect of a relevant offence a finding equivalent to a finding that he is under a disability and did the act charged against him in respect of the offence, or
(d) he has cautioned in respect of a relevant offence.
(6) In subsection (5), a ‘relevant offence’ means an act which—
(a) constituted an offence under the law in force in the country concerned, and
(b) would have consituted an offence within schedules 3 and 5 if it had been done in any part of the United Kingdom.
(7) An act punishable under the law in force in a country outside the United Kingdom constitutes an offence under that law for the purposes of subsection (6), however it is described in that law.
(8) Subject to subsection (9), on an applicatioin under section 1 the condition in subsection (6)(b) above (where relevant) is to be taken as met unless, not later than rules of the court may provide, the defendant serves on the applicant a notice—
(a) stating that, on the facts as alleged with respect to the act concerned, the condition is not in his opinion met,
(b) showing his grounds for that opinion, and
(c) requiring the applicant to prove that the condition is met.
(9) The court, if it thinks fit, may permit the defendant to require the applicant to prove that the condition is met without the service of a notice under subsection (8).
Child-SAPOs: effect
‘(1) A Child Sexual Abuse Prevention Order—
(a) prohibits the defendant from doing anything described in the order, and
(b) has effect for a fixed period (not less than five years) specified in the order or until further order.
(2) The only prohibitions that may be included in the order are those necessary for the purpose of protecting children generally or any particular child from serious sexual harm from the defendant.
(3) Where a court makes a child sexual abuse prevention order in relation to a person already subject to such an order (whether made by that court or another), the earlier order ceases to have effect.
(4) Section 3(3) applies for the purposes of this section and section 5.
Child-SAPOs: variations, renewals and discharges
‘(1) A person within subsections (2) may apply to the appropriate court for an order varying, renewing or discharging a child sexual abuse prevention order.
(2) The persons are—
(a) the defendant;
(b) the chief officer of police for the area in which the defendant resides;
(c) a chief officer of police who believes that the defendant is in, or is intending to come on to, his police area;
(d) where an order was made on an application under section 1(1), the chief officer or other qualifying person who made the application.
(3) An application under subsection (1) may be made—
(a) where the appropriate court is the Crown Court, in accordance with rules of the court;
(b) in any other case, by complaint.
(4) Subject to subsections (5) and (6), on the application of the court, after hearing the person making the application and (if they wish to be heard) the other persons mentioned in subsection (2), may make any order, varying, renewing or discharging the child sexual abuse prevention order, that the court considers appropriate.
(5) An order may be renewed, or varied so as to impose additional prohibitions on or to lift prohibitions from the defendant, only if it is necessary to do so for the purposes of protecting children generally or any particular child from serious sexual harm from the defendant (and any renewed or varied order may contain only such prohibitions as are necessary for this purpose).
(6) The court must not discharge an order before the end of five years beginning with the day on which the order was made, without the consent of the defendant and—
(a) where the application is made by a chief officer of police, that chief officer, or other qualifying person or
(b) in any other case, the chief officer of police for the area in which the defendant resides.
(7) In this section ‘the appropriate court’ means—
(a) where the Crown Court or the Court of Appeal made the child sexual abuse prevention order, the Crown Court;
(b) where a magistrates’ court made the order, that court, a magistrates’ court for the area in which the defendant resides, or where the application is made by a chief officer of police, any magistrates’ court whose commission area includes any part of the chief officers’ police area or any area where the alleged offences occurred.
(c) where a youth court made the order, that court, the youth court for the area in which the defendant resides or, where the application is made, any youth court whose commission area includes any part of a chief officer’s police area or any place where the alleged offences occurred.
(8) This section applies to orders under—
(a) Section 5A of the Sex Offenders Act 1997 (c.51) (restraining orders),
(b) Section 2 or 20 of the Crime and Disorder Act 1998 (c.37) (sex offender orders made in England and Wales and Scotland),
(c) Article 6 of the Criminal Justice (Northern Ireland) Order 1998 (S.I., 1998/2839 (N.I. 20)) (sex offender orders made in Northern Ireland), and
(d) as it applies to child sexual abuse prevention orders.
Interim Child-SAPOs
‘(1) This section applies where an application under section 123(1) (‘the main application’) has not been determined.
(2) An application for an order under this section (‘an interim child sexual abuse prevention order’)—
(a) may be made by the complaint by which the main application is made, or
(b) if the main application has been made, may be made by the person who has made that application, by complaint to the court to which that application has been made.
(3) The Court may, if it considers it just to do so, make an interim child sexual abuse prevention order, prohibiting the defendant from doing anything described in the order.
(4) Such an order—
(a) has effect only for a fixed period, specified in the order;
(b) ceases to have effect, if it has not already done so, on the determination of the main application.
(5) The applicant or the defendant may by complaint apply to the court that made the interim child sexual abuse prevention order for the order to be varied, renewed or discharged.
(6) Subsection (5) applies to orders under—
(a) Sections 2A or 20(4)(a) of the Crime and Disorder Act 1998 (c.37) (interim orders made in England and Wales Scotland), and
(b) Article 6A of the Criminal Justice (Northern Ireland) Order 1998 (S.I., 1998/2839 (N.I. 20)) (interim orders made in Northern Ireland),
as it applies to interim child sexual abuse prevention orders.
Child-SAPO and interim Child-SAPO appeals
‘(1) A defendant may appeal to the Crown Court against the making of a child sexual abuse prevention order under section 123(1).
(2) A defendant may appeal to the Crown Court aginst the making of an interim child sexual abuse prevention order under section 127(3).
(3) A defendant may appeal against the making of an order under section 127(3), or the refusal to make such an order—
(a) where the application for such an order was made to the Crown Court, to the Court of Appeal;
(b) in any other case, to the Crown Court.
(4) On an appeal under section (1), (2) or subsection (3)(b), the Crown Court may make such orders as may be necessary to give effect to its determination of the appeal, and may also make such incidental or consequential orders as appear to it to be just.
(5) Any order made by the Crown Court on an appeal under sections (1) or (2) (other than an order directing that an application be re-heard by a magistrates’ court) is for the purpose of subsecitons 126(7) and 127(6) (respectively) to be treated as if it were an order of the court from which the appeal was brought (and not an order of the Crown Court).
Offence: breach of a Child-SAPO or interim Child-SAPO
‘(1) A person commits an offence if, without reasonable excuse, he does anything which he is prohibited from doing by—
(a) a child sexual abuse prevention order;
(b) an interim child sexual abuse prevention order,
(c) an order under section 5A of the Sex Offenders Act 1997 (c.51) (restraining orders);
(d) an offender under sections 2, 2A or 20 of the Crime and Disorder Act 1998 (c.37) (sex offenders orders and interim orders made in England and Wales and in Scotland);
(e) an order under Article 6 or 6A of the Criminal Justice (Northern Ireland) Order 1998 (S.I., 1998/2839 (N.I. 20)) (sex offender orders and interim orders made in Northern Ireland).
(2) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for at term not exceeding five years.
(c) where a person is convicted of an offence under this section, it is not open to the court by or before which he is convicted to make, in respect of the offence, an order for conditional disharge or, in Scotland, a probation order.
(3) The Home Secretary shall issue guidance on the use of child sexual abuse prevention orders and interim child sexual abuse prevention orders within six months of this section coming into force.”.’.
New clause 7—Possession of prohibited written material about children—
‘(1) Section 62 of the Coroners and Justice Act 2009 (offence of possession of prohibited images of children) is amended as follows.
(2) In subsection (1), after “prohibited image of a child” insert “or prohibited written material about a child”.
(3) After subsection (2) insert—
“(2A) Prohibited written material about a child is written material which—
(a) is pornographic,
(b) falls within subsection (6), and
(c) is grossly offensive, disgusting or otherwise of an obscene character.”
(4) In subsection (3), after “image” insert “or written material”.
(5) After subsection (5) insert—
“(5A) Where (as found in the person’s possession) written material forms part of a series of written material, the question whether the written material is of such a nature as is mentioned in subsection (2A) is to be determined by reference to—
(a) the written material itself, and
(b) (if the series of written material is such as to be capable of providing a context for the written material) the context in which it occurs in the series of written material.
(5B) So, for example, where—
(a) written material forms an integral part of a narrative constituted by a series of written material, and
(b) having regard to those written materials as a whole, they are not of such a nature that they must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal,
the written material may, by virtue of being part of that narrative, be found not to be pornographic, even though it might have been found to be pornographic if taken by itself.”
(6) In subsection (6), insert “or written material” after the word “image” each time it appears.’.
Government new schedule 1—Amendments of Part 2 of the Sexual Offences Act 2003.
Government amendments 63 and 92 to 94.
Damian Green
The Government proposals are in my name and that of my right hon. Friend the Home Secretary. New clauses 14 and 15, and new schedule 1, will simplify and strengthen the existing civil order regime under the Sexual Offences Act 2003. The inspiration for the reforms is the Childhood Lost campaign of my hon. Friend the Member for Oxford West and Abingdon (Nicola Blackwood), who has attracted more than 100,000 signatures to her online petition and the support of 67 right hon. and hon. Members on both sides of the House, who have added their names to my hon. Friend’s new clause 5. I pay tribute to her and those on both sides of the House who have campaigned so effectively on this important issue.
The Government essentially agree with the campaign and we are determined to do everything we can to protect the public from predatory sexual offenders. The UK has some of the toughest powers in the world to manage the risks posed by sex offenders, but in recognition of the important points highlighted by my hon. Friend’s campaign we are bringing forward amendments to the Sexual Offences Act 2003 to make our powers even more effective.
Ann Coffey (Stockport) (Lab)
I seek clarification from the Minister. The risk of sexual harm orders, which the new sexual risk orders would replace, can be given only to offenders aged 18 and over. Will the new sexual harm prevention orders also only apply to offenders over 18? If they will apply to offenders under 18, what consideration has he given to introducing accompanying rehabilitative provisions for child sex offenders?
Damian Green
If I may, I will first pay tribute to the hon. Lady, who has campaigned on these issues for a long time and deserves much of the credit for raising public awareness. If I may, I will come to the details of the offences shortly.
New clauses 14 and 15, and new schedule 1, will repeal the sexual offences prevention order, foreign travel order and risk of sexual harm order in England and Wales, and replace them with two new orders: the sexual harm prevention order and the sexual risk order. I welcome the engagement of hon. Members on this issue and I hope that my hon. Friend the Member for Oxford West and Abingdon will be pleased to note that we have sought to include her points as far as possible in the Government amendments. Indeed, following consultation with front-line professionals, including the police, the courts, the National Offender Management Service and the National Crime Agency, in a number of respects the Government amendments go further than her new clause 5.
The sexual harm prevention order will be available for those with convictions for sexual or violent offences. It may be made by a court on conviction, or by the magistrates court on application by the police or the National Crime Agency. A court may impose an order for the purposes of protecting the public in the UK and/or children or vulnerable adults abroad from sexual harm.
The sexual harm prevention order may prohibit the person from doing anything described in it, including preventing travel overseas. Any prohibition must be necessary for protecting the public in the UK from sexual harm or, in relation to foreign travel, protecting children or vulnerable adults from sexual harm. It lasts a minimum of five years and has no maximum duration, with the exception of any foreign travel restrictions which, if applicable, lasts for a maximum of five years but can be renewed.
The second new civil order is the sexual risk order, which will be available for those who have not been convicted of an offence but who none the less pose a risk of sexual harm to the public. It may be made by the magistrates court on application by the police or the new National Crime Agency where an individual has done an act of a sexual nature and poses a risk of harm to the public in the UK or adults or vulnerable children overseas.
Dr Julian Huppert (Cambridge) (LD)
When the Minister mentioned the sexual risk orders, he helpfully highlighted the fact that they will apply to people who have not been convicted of any offence. What level of proof and standard of evidence will be needed to show that someone has done something of a sexual nature, and what would be included in that?
Damian Green
There is a specified list, which applies to the existing orders, and they are the obvious acts of a sexual nature. I take my hon. Friend’s point and, like him, I am very keen to see proper safeguards. That is why even the sexual risk order has to be made by a magistrate, so it will have judicial oversight and will not simply be available on the application of the police. That is a significant safeguard, and I hope that he would welcome that.
Any prohibition in the sexual risk order must be necessary for protecting the public in the UK from sexual harm or, in relation to foreign travel, protecting children or vulnerable adults from sexual harm. Such an order will last a minimum of two years and has no maximum duration, with the exception of any foreign travel restriction which, if applicable, lasts for a maximum of five years, but can be renewed.
Damian Green
Before I give way to the hon. Gentleman, I will address the point made by the hon. Member for Stockport (Ann Coffey). The two new orders will apply to both over-18s and under-18s.
Dr Huppert
I thank the Minister for his earlier comments and for his understanding of the need for safeguards. I do not think he addressed the level of proof required in the court—whether it would be beyond reasonable doubt, or the balance of probability. Will he also explain, on the sexual risk order in particular, why the orders cannot be for less than two years? Why does he want to constrain magistrates?
Damian Green
We wish to avoid impracticalities in the system—we do not want to clog up the court system. The orders are serious enough to have that minimum period, and one hopes that it will make them effective and not mean a constant throughput of extra cases in the magistrates court. I will come on to more of the details, which I hope will reassure my hon. Friend.
The new regime will extend to England and Wales, although the protections afforded by the new orders will continue to relate to persons elsewhere in the UK, or beyond where necessary. We have included provision for cross-border enforcement and continue to liaise closely with the devolved Administrations.
I can perhaps answer my hon. Friend’s question directly by addressing what has changed. A number of key changes make the new sexual harm prevention order and the new sexual risk order more robust, more flexible and therefore more effective than previous orders. The new orders may be made to manage broader categories of risk, allowing them to be used in particular to manage risk against adults and vulnerable adults, as well as children. All members of the public deserve to be adequately protected from sexual harm. This change will ensure that dangerous individuals can be managed, regardless of to whom they present a risk.
Furthermore, the condition for the availability of the new sexual risk order is that the defendant has done an act of a sexual nature as a result of which it is necessary to protect the public. The previous “non-conviction” order required that the person concerned must have done at least two acts from a specified list of risky behaviour. The new provisions allow for an order as soon as an individual presents a risk.
As well as local police forces, the National Crime Agency will be able to apply for either of the new orders. This is a reflection of its expertise and access to intelligence on aspects of sexual offending, particularly against children. The NCA will be required to notify the relevant force area, which will continue to be responsible for managing offenders. I hope that that reassures my hon. Friend that the standard of proof will be the criminal standard of proof—the highest standard.
The remit of the new orders will be wider. For example, either will allow foreign travel restrictions to be applied. Our determination to prevent harm to children and vulnerable adults applies outside the United Kingdom as well as within. Individuals subject to the new sexual harm prevention order will be required to inform the police whenever their name or address changes. This will improve the police’s ability to monitor and manage individuals subject to these orders.
Those are the changes. What we are keeping are the aspects of the old orders that have been shown to be effective. In line with the old order, the new sexual harm prevention order will make the offender subject to the notification requirements for registered sex offenders—it will put them on the sex offenders register. For both new orders, in line with the existing position, breach is a criminal offence punishable by a maximum of five years’ imprisonment. Conviction for a breach of a sexual risk order would also make that individual subject to the sex offender notification requirements.
Dr Huppert
The Minister is being very generous in giving way and I thank him. One of the things he is keeping the same is the list of acts in the Sexual Offences Act, one of which states:
“giving a child anything that relates to sexual activity or contains a reference to such activity”.
There are some cases where that would clearly be inappropriate, but it might include a wide range of literature and textbooks, and that is presumably not the intention. How will the Minister ensure that there is no misinterpretation? We are keen to ensure the safeguards are correct.
Damian Green
As I said, I very much share the hon. Gentleman’s desire for the safeguards to be effective. That is why I laid great stress on the fact that this order will have to be made in court, so that if, as he suggests, a textbook has been given to a child, one imagines that—except in very odd circumstances—no sensible magistrate would regard that as in any way disturbing or warranting this type of activity. In this instance, we can rely on the protections that the courts rightly afford individuals to ensure that sensible decisions are made on these types of orders.
Diana Johnson (Kingston upon Hull North) (Lab)
I thank the Minister for setting out the amendments in the group. These are a completely new set of provisions on child protection, which the House did not have the opportunity to deal with on Second Reading or in Committee, so we are grateful for the opportunity to discuss them this afternoon. The House has, however, had several excellent debates on child protection over the last year, which is testament to how seriously colleagues of all parties take these issues and want to engage with them.
The amendments before us are the result of hard work and concern across the House. I want to pay tribute in particular to the hon. Member for Oxford West and Abingdon (Nicola Blackwood) for her sterling work. I pay tribute, too, to the hon. Member for Mole Valley (Sir Paul Beresford), whose new clause appears in this grouping; to my hon. Friend the Member for Stockport (Ann Coffey), who has done an enormous amount of work on this subject; and to my right hon. Friends the Members for Leicester East (Keith Vaz) and for Wythenshawe and Sale East (Paul Goggins).
Government new clause 8 is the lead amendment in the group. As the Minister has set out, it is designed to make a sensible addition to the offences that can lead to action being taken against those who commit them. As we know, this came out of the tragic case of Maria Stubbings, who was murdered by her ex-partner, Marc Chivers. The Independent Police Complaints Commission recognised that there were gaps in the law in respect of the supervision of offenders convicted overseas. The Opposition are pleased to support this sensible new clause.
Government new clause 14 deals with sexual harm prevention orders and sexual risk orders, while I understand Government new clause 15 deals mainly with saving and transitional provisions. Government new schedule 1 provides for the practical introduction of the new orders, alongside new clause 5, tabled by the hon. Member for Oxford West and Abingdon and 67 other hon. Members, as the Minister pointed out, which creates the new child sexual abuse prevention order.
The Opposition support the need to amend the current law. The sexual abuse and grooming cases that occurred in Oxford shocked the country, and the hon. Member for Oxford West and Abingdon has rightly gained huge respect from across the House for the serious way in which she has looked to address the issues with the Childhood Lost campaign. I know that she has worked with a number of charities, including the National Society for the Prevention of Cruelty to Children, Barnardo’s, the Children’s Society, ECPAT UK, Action for Children, and many others.
We are pleased that the Government have accepted the need for change, and have tabled their own amendments. We especially welcome the fact that the Government amendments extend the risk of sexual harm orders to adults as well as children. We should be interested to hear how the Minister intends to address the other key activities of the Childhood Lost campaign which are important in keeping our children safe.
Ten years on, it is right for us to think about what was done by the Sexual Offenders Act 2003 and what parts of it need to be updated. The Act was a milestone that played a crucial role in improving our legislation on sex offences in many key respects, for instance by outlawing grooming. I pay tribute to my right hon. Friend the Member for Wythenshawe and Sale East for the key role that he played in introducing the legislation.
The sad truth is that sex offenders, more than any other group of offenders, are prone to reoffend. We must accept that most sex offenders continue to pose a threat to children after their initial offences. That does not, of course, mean that all offenders will reoffend, but it does mean that we should try to identify those who pose the greatest risks, and try to do everything possible to mitigate those risks. Labour introduced three distinct powers which were intended to control the risks posed by known sex offenders.
The Minister referred to the sexual offences prevention order, which was the first order that could be imposed on someone who had been convicted, and was to be applied at the time of conviction—or subsequently by the police—only if there was evidence of dangerous behaviour after offending. It covered both children and adults. The order allowed the courts to impose conditions on the offender that they considered to be necessary to reduce the risk of sexual harm. The risk of sexual harm order could be imposed without a conviction if a chief police officer had a reasonable belief that someone within his region had twice committed a sexual offence, and that an order was necessary to protect the public. That covered only children. The foreign travel order could be imposed only after conviction, but required evidence of post-conviction behaviour that gave cause for concern. An example was the order imposed on Paul Gadd, also known as Gary Glitter.
I think that all those measures were important, and demonstrated the commitment of the last Government to combating sex crime. However, it is clear that all three now need to be improved. The hon. Member for Oxford West and Abingdon has undertaken important work in that regard in considering how we can improve the operation of the orders. I pay tribute to the recent report by the Association of Chief Police Officers and Hugh Davies QC on the workings of the current regime. New clause 5, tabled by the hon. Lady, would reform the risk of sexual harm order and establish a child sexual abuse prevention order extending to children under 18 rather than 16. It also—importantly—covers children and young people both inside and outside the United Kingdom, and would remove the requirement for two contact offences to be considered before an order could be made.
The Government’s proposals create two new orders. New clause 14 creates the sexual harm prevention order, which can be applied to anyone who has been convicted or cautioned for a sexual violent offence, including offences committed overseas. It will replace the sexual offences prevention and foreign travel orders. The new order will be required for the purpose of protecting the public generally, or any particular member of the public, from sexual harm. I understand that the new clause removes the requirement for a risk of serious sexual harm, which takes it down one level. The Opposition welcome that. The court must be satisfied that the defendant’s behaviour makes it necessary for an order to be made. Again, only one contact offence is required, which means that more people can be included in the grouping.
Mr Robert Buckland (South Swindon) (Con)
The hon. Lady is providing a very helpful summary of the changes. I think that the removal of the word “serious” is a very important change, because it significantly widens the ambit of police activity in this area. The word “serious” creates quite a high threshold, and far too many cases were slipping through the net because they did not meet that criterion.
Diana Johnson
I am grateful for that intervention, and I know that the hon. Gentleman speaks from a great deal of experience as a member of the Bar and so fully understands the implications of the removal of the word “serious” from this definition.
Sexual risk orders can be applied to any individual who poses a risk of sexual harm in the UK or abroad, even if they have never been convicted, and replace the risk of sexual harm orders—again, these orders will apply to both adults and children. In response to my hon. Friend the Member for Stockport, the Minister confirmed that the sexual risk order could be applied to a child sex offender but did not deal with the other issue she raised about the rehabilitation of a child who was subject to one of these orders. Will he deal with that in his closing remarks and say what is being put in place to support those children and young people to rehabilitate them?
One key theme of these new orders is that both are equally committed to protecting children across the world. That is vital, because sex crimes are committed across the globe and, increasingly, paedophiles will cross borders to commit abuse. The global nature of sex crimes means that it is right that we make it easier to prevent foreign travel by known paedophiles and that we give equal prominence to crimes committed abroad when we are looking at the imposition of a civil order to protect children in the UK. We also need, however, to examine the issue of people who have not been convicted but pose a threat to children. I understand that the changes proposed today will also make it easier to impose an order when a criminal offence has not been committed. Such an example may be where an individual has attempted grooming on the net, for example, by impersonating a young person on social media, but has not actually, at that stage, committed a crime. Will the Minister explain whether the Government have any plans for introducing changes to legislation to make the grooming of a child on the internet an offence? I understand that it is only at the point when the person physically meets the child that an offence is committed.
One thing that the hon. Member for Oxford West and Abingdon has drawn attention to in the very good briefing she has provided is the fact that very few risk of sexual harm orders have been imposed each year. We hope that these new provisions will make it easier to acquire an equivalent restriction, by making orders applicable to cases where a crime was committed aboard or where the behaviour does not constitute an offence at this time. However, I wish to refer to the issue raised by the hon. Member for Cambridge (Dr Huppert), which related to the standard of proof required.
One reason it is hard to impose a risk of sexual harm order is that such orders demand a criminal standard of proof, even though they are civil orders, and that difficulty may remain in respect of the future orders. The demand for a criminal standard of proof was not actually in the Sexual Offences Act and there was some confusion therefore about the standard of proof required. The Home Office did issue guidance, which suggested a civil standard of proof—the “reasonable belief” approach. However, the courts tended to take a different approach and it was only in 2012—[Interruption.] I can see that the hon. Member for South Swindon (Mr Buckland) is about to intervene. It was only in 2012 that the issue was settled by the courts in the case of Commissioner of Police of the Metropolis v. Robert Ebanks, which established a binding precedent on the criminal standard.
Mr Buckland
The hon. Lady is making a very important point about the standard of proof. One key consideration is that breach is a criminal offence, and therefore there is a serious issue to consider as to the criminal consequences of a civil order that could be obtained by a civil standard of proof. That consideration was uppermost in the mind of the court considering that case and should be uppermost in our minds. As legislators, we need to get the balance right, and so the standard of proof should be a high one.
Diana Johnson
I am grateful to the hon. Gentleman. Again, I know that he speaks from great experience. I simply ask why so few orders have been taken through the courts and whether we need to consider the whole issue of the standard of proof that is required. We support the Government’s new clauses and amendments, which we think have a lot of merit.
Dr Huppert
I have been following everything that the hon. Lady says. I presume that she is not suggesting that someone should be jailed for five years without requiring a criminal standard of proof. Surely that is not what she is suggesting.
Diana Johnson
I find it extremely annoying that when Liberal Democrats get to their feet on child protection issues, when we are making sure that our children have the protection that we all want to see, this is the issue that is pursued. I am asking how best we can protect our children. There is genuinely a question to be asked about the standard that is used in the orders. The Government have chosen to introduce some new orders, which I fully support, but it is worth considering whose side we are on. Given some of the abuse cases that we have heard, particularly in the constituency of the hon. Member for Oxford West and Abingdon, we need to think long and hard about where our instincts should lie in ensuring that our children are protected.
Diana Johnson
I will continue, because I have a feeling that this debate could go on all night with the Liberal Democrats.
I want to ask the Minister and the hon. Lady whether they feel that the threshold might be too high. I accept—the Liberal Democrats will like this bit—that there is a significant cost to the individual on whom an order is placed, reputationally, and particularly if that becomes public. We know that, because of public disgust associated with sex crimes, the effect of a sex offence order being imposed on an individual, whatever it is called, will be devastating to that individual.
It has not helped that the risk of sexual harm orders that were previously in place have been called, I think wrongly, sex offence ASBOs, because the higher standard of proof makes that comparison unhelpful. At the same time, we must accept that there will be many occasions when the police have a well founded, reasonable belief that someone poses a risk to children but are not able to secure a conviction, because, for example, they cannot present in open court the evidence required. In particular, the situation could arise if a vulnerable witness is not in a position to give evidence in court. In such cases, we may want a civil protection order, precisely because we cannot get a conviction at the higher criminal standard. Will the Minister comment on whether the new orders will allow for far more cases to be subject to the orders?
Mark Reckless (Rochester and Strood) (Con)
We have learnt that many of the problems in this area have been a failure of enforcement—a failure of the various agencies to work together or to understand what was going on. However, I want to press the hon. Lady on the previous question. If someone has a civil order and then breaches it, could they go to prison for up to five years without at any point the criminal standard having been satisfied?
Diana Johnson
The new clauses and amendments have been tabled by the Government and the hon. Member for Oxford West and Abingdon and they are best able to comment on that. My understanding of them is that a term of imprisonment of up to five years is applicable if an order is breached. I am asking a genuine question about whether what we want to achieve through the orders will be achieved by having a criminal standard for a civil order. The hon. Gentleman might want to take that up with the Minister when he responds.
I am conscious of time and of the fact that many other hon. Members want to speak so I will raise only a couple of other issues. Will the Minister explain the situation on appeals and rights of review that might be open to people who are put on the orders? With the scrapping of indeterminate sentences, might we have people on the street subject to the orders who in the past might well have remained in prison, and is the Minister satisfied with that situation?
The hon. Member for Mole Valley raises an important issue in new clause 7. It is topical given that at the weekend W. H. Smith had to withdraw information and e-books from its website. It has taken too long to obtain acceptance of the fact that viewing child abuse images is an integral part of the abuse process. Only the abusers deny that now. We know that viewing abuse often triggers behaviours in individuals. We know that Stuart Hazel and Mark Bridger had both been viewing legal pornography simulating violent sex and abuse prior to committing appalling crimes. The new clause, which deals with the written form of that abuse, is worth looking at. I hope that the Minister will comment further on that. We need to be careful, because we do not want genuine literature that describes abuse in a totally acceptable way to be captured.
Sir Paul Beresford (Mole Valley) (Con)
If the hon. Lady looks at the new clause, she will see that the second half covers that point, so “Lolita”, for example, would be all right.
Diana Johnson
I am grateful to the hon. Gentleman for that clarification. I hope that the Minister will be able to confirm when he responds that that is the legal advice he has received. On that basis, it is really important that the issue is addressed.
Finally, if the provisions set out in new clause 7 are introduced, the Child Exploitation and Online Protection Centre, which is now part of the National Crime Agency, will have more work to do. It already struggles with the images it has to look at, so if it will have to deal with the written word as well. I think that there is a case to be made for the Minister addressing how resources for that will be made available.
Nicola Blackwood (Oxford West and Abingdon) (Con)
I thank the Minister and the shadow Minister for their opening remarks. I will speak to new clause 5 and the Government amendments relating to prevention orders. I think that by now colleagues will be familiar with my reasons for tabling the new clause. The vast majority of children in this country grow up free from fear, but a vulnerable minority never know a safe or happy childhood. I will never forget sitting in the Old Bailey and listening to truly harrowing evidence of how a violent organised crime gang systematically groomed girls on Oxford’s streets to sell them for sex from as young as 11, plying them with hard drugs to make them more compliant to being repeatedly raped by strangers and conditioning them to believe that that was what real relationships were like. Too many colleagues in this House have had the same experience as me, as cases have emerged across the country. Every police force and local authority needs to take positive and proactive preventive action to root out this vile crime.
Patterns of grooming behaviour are now much better understood. We should be aiming to disrupt the process before it progresses to systematic sexual abuse, because the consequences of failing to intervene are both well documented and appallingly destructive. However, over the past few years case after case has emerged in which child protection agencies in possession of detailed intelligence have seemed unable to intervene.
In our inquiry into child sexual exploitation, the Home Affairs Committee came to a number of conclusions on why it was happening. The wider conclusions are for another day, but even leading forces, such as Lancashire police, who are proactive not only in innovative investigative techniques, but in disrupting grooming behaviour using methods such as abduction notices, licensing enforcement and dispersal orders, found that a key tool—civil prevention orders—just was not working. They have been on the statute book since 2003, as we have heard, and should be at the forefront of the fight against grooming, but instead they were found to be fundamentally flawed by a 2012 review commissioned by the Association of Chief Police Officers and written independently by Hugh Davies QC and a team of experts.
Since 2003 our understanding of patterns of sex offending and disruption techniques has progressed significantly. The purpose of new clause 5 is to reflect that progress and resolve the flaws in the existing orders. I welcome the fact that the Government have accepted the case for reform and tabled amendments today. Put simply, the reformed orders will protect more vulnerable children from sexual exploitation. That could not be more urgent, because the Children’s Commissioner estimated only this year that 16,500 children are at risk of sexual exploitation, but the prevention orders are still failing to protect them.
Before explaining how the proposed reforms will address that, let me explain why the current orders are not working. Three orders were legislated for in the Sexual Offences Act 2003: the sexual offences prevention order, the foreign travel order and the risk of sexual harm order. A SOPO can be sought on conviction, or on proof of relevant offending behaviour subsequent to that conviction, to protect a UK adult or child. An FTO can be sought on proof of offending behaviour subsequent to previous sexual conviction and can be sought to protect non-UK children. Despite some misleading coverage of this campaign, the ROSHO is already a pre-conviction order, and it can be sought on proof of two contact offences to prevent serious sexual harm to children under the age of 16. Neither new clause 5 nor the Government’s amendments would create a revolutionary pre-conviction order today. That has been an accepted necessity since 2003.
No one in this House would disagree with the principle that a person is innocent until proven guilty, which is a fundamental principle of the rule of law, but in no way would that be compromised by these amendments. The case against a defendant would have to be proved to the criminal standard, and a defendant’s procedural rights under the proposals would be identical to those in place under the current provisions. The fact is that a criminal prosecution is not the only mechanism that is necessary to achieve an acceptable level of protection against the sexual abuse of children.
Criminal prosecution is not always possible. In some situations a prosecution is found not to be in the interests of a child victim, and therefore not in the public interest. In other situations there might be compelling evidence or some technical reason why the evidence is not found to be admissible. In other cases, as we have seen recently, a vulnerable witness might simply find the court process too traumatic and so the case collapses. Anyone who follows the progress of policing and the criminal justice system will recognise that uncomfortable reality. That is why this year there were more than 23,000 reported sexual crimes against children but only 4,051 of them were prosecuted.
Mr Buckland
I pay warm tribute to my hon. Friend for the outstanding work she is doing on this issue. I echo her point about the sometimes sad limitations of the criminal justice system, which I have worked in over many years, including dealing with this type of case. I support her case about the criminal standard of proof needed for obtaining the orders and then, if the order is breached, a further criminal procedure in which the criminal standard of proof would apply, so the necessary balances and safeguards are in place.
Nicola Blackwood
Absolutely. To answer the shadow Minister’s question about whether a civil standard would be appropriate, I think that it is important to ensure that we maintain the balance. The reason it was not possible to achieve ROSHOs previously was the combination of two contact offences plus a standard of serious sexual harm. I do not think that the necessary approach now is to lower that standard of proof.
Some have expressed concern that these orders are intended as an alternative to prosecution, but that is not the case; they are simply a practical necessity alongside prosecution. As a civil order they are no different in nature from other civil orders designed to protect children, such as injunctions or restraining orders in a family court or a barring order in respect of regulated activity.
If we fail to intervene and protect vulnerable people from foreseeable harm, even if prosecution is not possible, we are failing in our duty of care. The current orders are failing. The requirement to prove two contact offences for the ROSHO produces the absurd result that an offender who sexually touched a 15-year-old twice would be eligible for an order but an offender who raped a four-year-old once would not be—the police would have to wait for the offender to do it again. That is not a sensible way to assess risk.
Furthermore, given the existence of a specific form of order to prevent foreign travel, ROSHOs have never been used in practice to protect children abroad. The outcome is that non-UK children enjoy a materially lower level of protection than an equivalent child in the UK. I hope that the House will agree that there is absolutely no defence for that disparity. Today’s proposals put an end to that inequality, which must be welcomed.
There are other basic flaws in the existing regime. Application for all three orders can be made only by the local chief of police, but all too often an offender travels ahead of the evidence between force areas, especially in grooming and trafficking cases. The ROSHO applies only in relation to children up to the age of 16, meaning that 16 to 18-year-olds, who might have been caught up in abuse from a much younger age, can only be protected by a SOPO with a much higher threshold.
Meanwhile, the sexual abuse of children is big business in many destination countries. Hundreds of thousands of children are routinely trafficked for that purpose. Although offenders often have a clear record of offending in different jurisdictions, they can still escape prosecution in each, as many jurisdictions simply fail to prosecute due to different standards of children’s rights or pure corruption. In that context, the FTO threshold for offending behaviour subsequent to a conviction is entirely unworkable. It is unsurprising that since 2005 only 50 FTOs have been granted. In 2007, a year in which 70 British citizens sought consular assistance for child sexual offence arrests, not a single FTO was granted.
New clause 5 applies solely to children because that is the focus of my campaign, and it is intended to remedy these shortcomings: it abolishes the arbitrary requirement to prove two contact offences; it includes UK and foreign children, offering them equal protection; it allows a senior specialist officer from the National Crime Agency to apply for an order to plug the gap of itinerant offenders travelling ahead of the evidence and it raises the age limit to 18; and it introduces an interim provision to prevent itinerant offenders from fleeing the jurisdiction.
Keith Vaz (Leicester East) (Lab)
May I begin by apologising to the hon. Member for Oxford West and Abingdon (Nicola Blackwood) for not being present for the start of her speech?
I want to contribute briefly to the debate in order to congratulate the hon. Lady on the incredibly effective work she has done on the issue of grooming. She has a constituency interest, of course, as Operation Bullfinch was going on in Oxford and she has been monitoring what has been happening to the victims, but she was also instrumental in beginning the important Childhood Lost campaign, and I was present at its launch with the Minister, who gave a very effective speech. She has decided not to press her amendment to a Division, but instead has urged the House to support what the Government are doing. I am glad that the Government are following the recommendations of the Select Committee. I think all in the House who are concerned about the grooming of children and the crimes being committed against young people and children will want to see effective action being taken. What we have seen in some of the criminal cases is just the tip of the iceberg, and the hon. Member for Keighley (Kris Hopkins), who has now been promoted to Minister in the Department for Communities and Local Government, gave very passionate and effective evidence to the Select Committee.
I support what the hon. Lady has said, I commend her on her marvellous efforts in this area, and I certainly hope the Government will continue to take forward the recommendations of the Select Committee—I see that the hon. Members for Cambridge (Dr Huppert) and for Rochester and Strood (Mark Reckless), who serve on the Committee, are present. We will revisit our recommendations six months after publication of the report, which will be at about Christmas time, when we will see what progress has been made, but I know that in the Minister we have someone who is determined to do something very serious and radical about stopping those who seek to exploit children, and I fully support what the hon. Lady has said.
Sir Paul Beresford
I echo those congratulations. One thing I have discovered in this House is that it is possible for Back Benchers with a really good cause to push it and persuade a Government—whatever Government. The other thing to be said about this evening’s debate, at least until 7 o’clock, is that there is cross-House agreement —and, I hasten to add to the Opposition Front Bench, even the Liberal party is on board—and that has been the case on this area for some considerable time.
The Sexual Offences Act 2003 is the legislation being changed tonight. Although the Act came in under a Labour Government, I am sure the right hon. Member for Wythenshawe and Sale East (Paul Goggins), who was a Minister at about that time, would agree that there was huge cross-party support and thinking behind the scenes. Indeed, I was on the Home Office taskforce that did a lot of the work leading up to the child protection part of that Act.
Tonight, however, I want to focus on my new clause 7, which would amend section 62 of the Coroners and Justice Act 2009, entitled “Possession of prohibited images of children”. Those prohibited images are pornographic images, and they may take various forms, including photographs, pseudo-photographs, cartoons and computer-generated images. They may be moving or still, too. The link between the possession and the viewing and actual action against children is generally accepted, as the hon. Member for Kingston upon Hull North (Diana Johnson) said from the Opposition Front Bench.
The ludicrous situation is that an individual will be liable for prosecution for possession of photographs, pseudo-photographs, computer-generated images and so on, but not for the written word describing child sex abuse in pornographic, and often lurid, detail. All, including the written word in this form, are designed by the individuals concerned for sexual stimulation over the sexual abuse of children. If an individual wrote from his or her imagination a graphic description of child sexual abuse—which could, and often is, more emotive and more graphic than any picture of any form—even if he or she described one of those pictures or cartoons, that individual could not be prosecuted for the possession of this graphic material, even though for many of these individuals the written word is more powerful.
Let me give a simple example that I gave in speaking to my ten-minute rule Bill last Wednesday. CEOP provided me with the details of a man from Kent who wrote describing his wish to kidnap an early-teenage girl, strip her, sexually abuse her in an exceptionally unpleasant way and then, in an even more unpleasant way which I will not detail, slowly kill this girl. It is horrific, especially as his writings then inspired this individual to actually carry it out. He is in prison, hopefully for a very long time if not for ever, but the teenager is gone. One would have thought that the early discovery of the writings could have helped, but if the police had found them they would have had no power to act. This new clause has developed out of discussions with members past and present of the Metropolitan police paedophile unit and with the team leading CEOP in this area, and is supported by it, including Peter Davies.
CEOP last year published a research document on paedophile cases. It is mentioned in the report, almost as a sideline, that some offenders possess graphic notes or writings of child abuse. The Home Secretary has written to me on this matter stating she is asking for a report from CEOP on the need for this change. As the Minister will recall, some months ago both CEOP and the head of the Metropolitan police paedophile unit joined me in making a presentation to him. They brought some of the literature; I did not. The officers supported the need for this change. They explained that they had seen volumes of material in their search for illegal child abuse photographs. As the possession of such written material is not illegal, they obviously disregarded it, seeking only, at high speed and using computer technology, child abuse images.
Dr Huppert
The hon. Gentleman is clearly talking about some horrific material, and I am listening carefully to his case. He is far more expert in this area than I am. How does this link in with the Obscene Publications Act 1959? Does not that provide some protection in this area?
Sir Paul Beresford
No, it does not. I am looking at changes to the Coroners and Justice Act 2009, not to the Obscene Publications Act. Otherwise I would wander into deep mire, which I am sure that Liberal Members would help me wallow in further.
Mr Buckland
The Obscene Publications Act was very much on my mind as well. Very often this material is generated by the offenders themselves and is privately retained, so I think it would fall foul of some of the definitions in that rather elderly piece of legislation. The material that is obtained can sometimes be used as incriminating evidence to help prove the general character and intent of individuals with an interest in child abuse, who are sadly far too prevalent. Do the police find difficulty in using that material as incriminating evidence, or do they want more information?
Sir Paul Beresford
My hon. Friend goes halfway towards putting the case. He is right, but the police tell me that they do not really use that Act. They need this one tiny change in the legislation to add to the opportunities for prosecution and to use when they bring these individuals to court.
I was told that I needed to tweak the wording, so I did something absolutely outrageous: I invited the Attorney-General for a cup of coffee, not even a glass of wine, and he ran a cursory glance, if Attorney-Generals run cursory glances over anything, at the wording and seemed to feel that it was satisfactory. I am not going to hold him to that, as it would probably cost me a glass of wine.
Paul Goggins (Wythenshawe and Sale East) (Lab)
The hon. Gentleman has given the House a valuable insight into how, for at least 10 years, he has followed these issues through with successive Ministers and very persuasively engaged them in the merits of his argument. I would be very happy to support his new clause, because graphic and extreme written material about child abuse is every bit as abusive as an image of child abuse. He is absolutely right to try to ensure that this loophole in the law is closed so that this is a very clear and separate offence.
Sir Paul Beresford
I thank the right hon. Gentleman. I am delighted to have his support. When he was a Minister he was receptive to many of the changes that I suggested. He tweaked them so that they went through to another place without my name attached, but the effect was still the same.
Some have questioned whether genuine, legitimate literature such as “Lolita” would be covered by section 62(5) of the 2009 Act. To be completely clear, the written material that I am targeting can be as shocking as images described as level 5 based on the classification used by the courts. The section refers to prohibited images that it describes as
“pornographic…grossly offensive, disgusting or otherwise…obscene”
and
“of such a nature that it must be reasonably assumed to have been produced solely or principally for the purpose of sexual arousal.”
In certain cases, that description, which is applied to photographs, can, as the right hon. Member for Wythenshawe and Sale East (Paul Goggins) said, be applied equally to the written word. Such material is quite different and it is horrific. Its distribution is prohibited, and so should be its possession.
Mr Andrew Smith (Oxford East) (Lab)
I strongly support the remarks of and the campaign by my friend, the hon. Member for Oxford West and Abingdon (Nicola Blackwood). Her initiative and that of the Childhood Lost campaign, which I have strongly supported, will be especially warmly welcomed by my constituents and hers, who are horrified at what was uncovered by the Operation Bullfinch investigation and prosecutions in Oxford. They are very worried that it was not possible to stop these crimes happening earlier and that even now there are people it has not been possible to bring to justice before the courts because of the difficulty in giving evidence. Anything that can be a step forward in stopping these horrific crimes must be greatly welcomed.
I want to underline an enormously important point that the hon. Lady made about the strength and clarity of guidance that is given on the use of these orders and the importance of each local area having the wherewithal to carry them into effect. In the wake of Operation Bullfinch, in Oxford we have had established the Kingfisher unit, which she and I jointly visited. It brings together all the relevant agencies and undertakes preventive and educational work as well as helping to bring cases to justice. We need such units in every part of the country. There has to be the strongest guidance to ensure that these orders are going to be used. I look forward to an assurance from the Minister that there will be close reporting and monitoring on the extent and areas of their use so that this House can see the progress that we all very much hope the bringing into law of these orders will represent.
Dr Huppert
It is a pleasure to speak in this debate. I pay tribute to my colleague on the Home Affairs Committee, the hon. Member for Oxford West and Abingdon (Nicola Blackwood), who gave a fantastic example of her grasp of the details of this subject and her attitude to it. I served with her on the Committee during its inquiry into child sexual exploitation in response to localised grooming, when we all shared experiences that will stay with me and, I am sure, with her for the rest of our lives. Some of the things we saw and heard about were absolutely horrific. It is to her great credit that she has responded in a very measured way to try to address this. Her speech was exemplary in that regard.
We all think that abuse of children and of any vulnerable adult is completely and utterly unacceptable. It is a heinous crime. Everybody in this House opposes it and wants to see it ended; that is absolutely clear. It is also clear that a crime of this nature is a crime regardless of where it happens. When people go overseas to abuse children, that cannot be okay just because those children happen not to be British. That much is absolutely, completely and utterly clear.
The hon. Lady outlined very well a number of improvements in what the Government are suggesting. For example, it seems odd that a rule was brought in saying that there must be two offences before a breach of something becomes a serious matter. I struggle to think of any other examples where someone would have to do something twice before there was perceived to be a problem. It is absolutely right to get rid of that.
I was very surprised by several of the comments by the hon. Member for Kingston upon Hull North (Diana Johnson). There is a danger that we get trapped in the idea that we must do anything to protect children. It becomes a mantra: “Won’t somebody think of the children?” We do need to protect children but in a way that will work and will not cause us problems. It is an important principle that people do not get jailed based on anything less than the criminal standard of proof. I was genuinely horrified by her suggestion that it would be worth considering something else. I accept that this is a deeply emotional area, and we all want to protect children. I hope that on reflection she will reconsider some of her comments about my perspective on that. We all want that protection to happen, but we must also ensure that we do not break some of the principles of the rule of law.
Diana Johnson
In discussing civil orders I merely raised a question about the appropriate standard of proof. I was not suggesting that we should move to a lower standard but merely questioning whether keeping the higher standard was the best thing to do and asking the Minister and the hon. Member for Oxford West and Abingdon (Nicola Blackwood) to reflect on that. I hope that the hon. Gentleman will express that properly when he refers to my views and not try to suggest that I was putting forward any other view.
Dr Huppert
I thank the hon. Lady for that clarification. My own view is that I would not even want to consider the idea of jailing somebody without going through the criminal process, because that is a fundamental position of our law. She was indeed only questioning it, but I am still surprised that it would even be questioned.
Mark Reckless
The record will of course show this, but does my hon. Friend agree that his point was to raise a concern that Labour Members might allow someone to be jailed for five years on the basis of balance of probabilities? All we heard back from the shadow Minister was an ad-hominem, or at least ad-party, attack on him, as though only a Liberal Democrat could object to such a thing. That is extraordinary.
Dr Huppert
I agree factually with the hon. Gentleman, but I do not want to dwell on that, because it detracts from the excellent work that has been done by the hon. Member for Oxford West and Abingdon and so many others.
Questions still need to be answered for us to understand the details and the guidance, as the hon. Lady said. That is critical. I listened carefully to her comments about the idea that not everyone subject to an order could be jailed, but I would hope that that would be the principal aim. I think we would all like people who abuse children or vulnerable adults to go to jail, rather than receive a civil order. The gap between the two should be closed as much as possible.
I am concerned that there will still be strange applications. The case of Simon Walsh was interesting—it was surprising that it was brought in the first place— and he was eventually found not guilty, but I think he might have been caught by new clause 5, so I remain concerned about how we can avoid that happening when people have been found explicitly not guilty. I think we will have a chance to look at that and clarify the details.
Finally, I accept new clause 5 and have no problems with it becoming part of the Bill. I congratulate the hon. Lady on tabling it and the Minister on accepting it. One of my key findings during the Home Affairs Committee inquiry was that, yes, there is room for legislative change, but the vast majority of the problem was caused by organisational failures and by people not trusting or listening to young people—a series of things that will not be fixed by legislation. We must not delude ourselves that passing a law that makes certain behaviour illegal and that implements orders will, in and of itself, make the difference needed.
Simon Danczuk (Rochdale) (Lab)
I am sorry that I was not able to be here for the beginning of the debate; unfortunately, I had Select Committee business. I have no doubt that I would have enjoyed the contributions, particularly the alleged verbal attack on the Liberal Democrats.
I want to discuss two things: first, the great contribution made by the hon. Member for Oxford West and Abingdon (Nicola Blackwood), and, secondly, the Government’s proposals on sexual predators and the use of the orders to prevent such behaviour.
I pay tribute to the hon. Lady for her exceptionally good campaign. Members will be aware of what has become known as the Rochdale grooming scandal. The Home Affairs Committee did excellent work on that and other cases of on-street grooming. My hon. Friend the Member for Stockport (Ann Coffey) has also done much to raise concerns about such issues. The campaign run by the hon. Member for Oxford West and Abingdon has been second to none, and that is a credit to her. It will play an important part—this should not be underestimated—in helping to protect young people from sexual predators, such as those we have seen not just in Rochdale, Oxford and Rotherham, but in many other towns and cities across the country.
I am pleased with and welcome the Government’s proposals, which consolidate and strengthen the provisions put in place by the previous Labour Government. Had the orders been in place some years ago, I am convinced that, had agencies such as Greater Manchester police used them, they would have stopped a lot of the abuse that occurred in Rochdale. We now know that there was a failure by Rochdale council social services and its exceptionally unhealthy culture at the time.
Keith Vaz
My hon. Friend was one of the most vocal in the criticisms of the way in which Rochdale council operated. Is he satisfied that the council understands the seriousness of the situation and that, under its new chief executive, it is putting in place the proper processes to make sure that the situation is monitored? It cannot stop it happening again, but is my hon. Friend satisfied that things have changed for the better?
Simon Danczuk
I appreciate my right hon. Friend’s intervention. I am more satisfied than ever that Rochdale council is playing its part in tackling on-street grooming.
It is important to note that we still await the serious case review on Rochdale. I would think that it is imminent, so it should be available in the next month or two. I think it will raise questions—not much light has been cast on this—about the performance of Greater Manchester police and whether it acted effectively enough in terms of intervening. I suspect that the serious case review will show some failings in that regard. That relates to the proposals under discussion because, had they been in place at the time, not only would the tools have been available to the police, but an emphasis would have been placed on their need to use them.
Nicola Blackwood
I am grateful to the hon. Gentleman for his kind words. To pick up on the point made by the hon. Member for Cambridge (Dr Huppert), the orders are welcome and will allow police forces to intervene earlier, but they must sit within a wider strategy of prevention and prosecution if we are to have any hope of genuinely tackling child sexual exploitation in the long term.
Simon Danczuk
I completely agree. Much of this is about not just the tools available, but the culture in the local agencies, whether they be the council, the Crown Prosecution Service, the police or the NHS and its primary care services.
Finally, I welcome the proposals. This is Parliament at its best. We are amending existing legislation, not creating something completely new. This is about listening to the concerns of Back Benchers and their campaigns, and about getting cross-party support, which I welcome.
Damian Green
I thank hon. Members from all parties, not just for their universal support for the measures, but for the sensitive and sensible tone with which they have conducted the debate. My hon. Friend the Member for Oxford West and Abingdon (Nicola Blackwood) will by now be blushing because of the amount of praise she has received. She should note that it has not been conventional praise—it is not a case of the House being conventionally polite—but that everyone, from all parties, really means it. She and the charities she has rightly mentioned have conducted an exemplary campaign on an issue of great contemporary importance. It is a subject that a few people have cared about hugely for ages, and now the whole country understands the important and urgent need to take effective action, which is precisely what we are seeking to do.
Mark Reckless
The Minister has said that a few people campaigned on the issue. Does he agree that others failed to follow through on this because they did not understand and recognise what was happening, and that some people perceived that earlier than they did?
Damian Green
Clearly, there were widespread failures in a number of institutions and that is what a large number of people are seeking to rectify now. That brings me on naturally to my next point—this addresses many of the questions that have been rightly asked and the powerful point made by the hon. Member for Cambridge (Dr Huppert)—which is that, although what we are doing is necessary, it is certainly not sufficient to believe that it will eradicate this terrible crime.
We seek to protect children as a high priority beyond legislation, and it is the need for that much more widespread change of attitude and culture in institutions that informs the work of the National Group on Sexual Violence against Children and Vulnerable People, which I chair and whose membership is indicative of the widespread group of people necessary to act on this terrible crime. It includes not only a number of Departments, such as the Home Office to deal with the criminal elements and the Under-Secretary of State for Education, my hon. Friend the Member for Crewe and Nantwich (Mr Timpson) and his representatives, but the health service, local government and the police, which have important roles to play. The group also includes many non-governmental organisations and charities. Such organisations often sit outside governmental structures and shout through their megaphones about how Government should be doing things better. It seems to me that in a matter of such seriousness and urgency, having them sitting at the table from the start saying, “This is how you should do things,” is likely to produce a much faster and more sensitive response to the problems.
Ann Coffey
On the support that is available in court for vulnerable witnesses, does the Minister agree that it is not acceptable that registered intermediaries are appointed in so few cases? If we are to support vulnerable witnesses, particularly child witnesses, we must make it a matter of course that registered intermediaries are appointed at the earliest possible stage, even before the first police interview.
Damian Green
Appointing registered intermediaries before the first police interview may be difficult in practical terms, but I accept the hon. Lady’s general point that we need better support mechanisms for vulnerable witnesses. Some of those mechanisms will involve institutional change, as I have said, but the provision of intermediaries may also be required.
The fourth priority of the group is online protection and, in particular, attacking the use of vile child abuse images online. There is therefore a lot of work to do beyond this legislation.
I will respond to some of the individual points that have been raised. The right hon. Member for Oxford East (Mr Smith) asked about close reporting on the monitoring and extent of the powers. Various other Members talked about the necessity for guidance. The Government amendments require statutory guidance to be issued. We will work closely with the police, the NCA and others in considering the best way to apply the new orders.
We have had a vigorous debate about the use of the criminal standard of proof. If I may try to reconcile what has been the only scratchy part of this debate, there is a balance to be struck. We could apply the civil standard to the new order, but one consequence would be that a breach of the order would not be a criminal offence punishable by up to five years in prison. I hope that those who are doubtful about the level of proof will accept that what we are proposing strikes the right balance, given the risk of harm to children and vulnerable adults. As my hon. Friend the Member for Oxford West and Abingdon explained, it is not the criminal standard of proof that led to the disappointing use of the original three orders in the Sexual Offences Act 2003.
The hon. Member for Kingston upon Hull North asked about legislation on the grooming of children on the internet. The orders that we are discussing may be used to restrict internet use, so they will hopefully have a direct effect on that type of criminal behaviour. However, it is worth repeating that the principle that what is criminal offline is criminal online always applies. There is no separate law that applies to the online world. If something is a crime in the real world, it is a crime in the online world. As I have said, cybercrime is one of the four immediate priorities of the national group.
I was asked about the appeal mechanism. An individual who is the subject of either kind of order will be able to appeal against the making of that order under the proposed new sections of the Sexual Offences Act 2003. In addition, after an order is made, there is the right to apply for it to be varied or discharged. I hope that the appropriate safeguards are in place for people to make appeals.
Nicola Blackwood
I welcome the protections that allow defendants to apply for variation and discharge. However, I notice that under the Government amendments, only local chief officers are able to apply for the variation or discharge of an order. I understand that that is intended to maintain the management of the offender at a local level. However, the NCA might come across evidence of different forms of offending and might want to get involved in an application for variation. I hope that the guidance will make it clear how that will work.
Damian Green
That is a valid point. To deal with the practical point, once an order is made, the supervision of it will be in the hands of the local police. It is sensible for them to be on the front line of making any application to vary the order. Obviously, the NCA will make it a habit to work closely with local forces when they are working together in specific areas, as they will be in this case. It should become entirely habitual for the NCA to pass evidence to local forces. I know that the leadership of the NCA is determined to do that. There needs to be better connections between policing at the national and local levels, and we are seeking to address that problem. My hon. Friend should rest assured that she is not the only person who will be watching closely to ensure that that co-operation takes place.
As my hon. Friend the Member for Mole Valley (Sir Paul Beresford) explained, new clause 7 seeks to extend the offence of possessing a prohibited image of a child in section 62 of the Coroners and Justice Act 2009. That offence is committed when a person possesses a pornographic non-photographic image of a child that is grossly offensive, disgusting or otherwise obscene. My hon. Friend, together with the right hon. Member for Wythenshawe and Sale East (Paul Goggins), wants to extend that offence to include the written word. I add my thanks to the many that have been given this evening to both Members for their personal efforts in the fight to protect children from abuse. Their motivation for the new clause is entirely laudable, and it is quite right for the House to have the opportunity to discuss it.
Written material that describes the sexual abuse of children is undoubtedly distasteful and disturbing. As my hon. Friend said, he and I have had many discussions and meetings on the matter, and I put it to him that criminalising the possession of the written word in any context is a significant step, and we should pause before taking it. In our view, it is a step that should be taken only once we know the full extent of the problem. In this case, there are two particular requirements. First, there must be evidence that possession of such material is causing harm to children. Secondly, it must be practical for the police—in this case CEOP—to go through all the material on people’s computers. It is much more difficult to do that with the written word than with images. As my hon. Friend said, there is special technology that allows speedy checks of images. We are working on improving that technology, but it is more difficult in the case of the written word. If, after considering those caveats, we conclude that there is a case for changing the law, we will need to ensure that we go about it in the right way so that it has some practical effect and improves child protection.
New clause 7 touches on a number of sensitive issues, and any changes that we bring about need to be both proportionate and effective. I cannot commend it to the House today, but I absolutely assure my hon. Friend and the right hon. Gentleman that we intend to continue considering thoroughly whether the law should be changed in the way that they suggest. As my hon. Friend said, CEOP has already provided some information, and my officials continue to work with it to investigate the issue further and get the full body of evidence that is necessary if we are to take the drastic step suggested. As soon as we reach a conclusion on that, we will decide what action to take. I know that my hon. Friend will continue to play a role in gathering evidence and discussing it with Ministers, but I hope that he will agree not to press new clause 7 to a Division.
I congratulate my hon. Friend the Member for Oxford West and Abingdon on her commitment and her drive to ensure that we have the necessary powers to protect children from sexual harm. I now know that she and the House agree that the Government amendments will deliver what new clause 5 was intended to achieve, and more, so I commend them to the House.
Madam Deputy Speaker (Dawn Primarolo)
No, you do not get another opportunity to speak, Sir Paul, but I assume that you do not wish to press new clause 7.
Madam Deputy Speaker
Thank you. Maybe next time it would be helpful to make a point of order.
Question put and agreed to.
New clause 8 accordingly read a Second time, and added to the Bill.
New Clause 14
Sexual harm prevention orders and sexual risk orders, etc
‘(1) Schedule [Amendments of Part 2 of the Sexual Offences Act 2003] (amendments of Part 2 of the Sexual Offences Act 2003) has effect.
(2) In section 142 of the Sexual Offences Act 2003 (extent etc)—
(a) in subsection (2) (provisions that extend to Northern Ireland, as well as England and Wales), for paragraph (c) there is substituted—
“(c) sections 80 to 88, 89 to 91, 92 to 96, 96B to 103, 122F and 130 to 136ZB;
(ca) Part 2A;”;
(b) after that subsection there is inserted—
“(2A) Sections 110, 117A, 119 and 123 to 129 extend only to Northern Ireland.”
(c) In subsection (3) (provisions that extend to Scotland, as well as England and Wales) for paragraph (a) there is substituted—after that subsection there is inserted—
“(a) sections 80 to 88, 89 to 91, 92, 94 to 96, 97 to 103, 122F, 130 to 132 and 133 to 136ZB;”;
“(3A) Sections 88A to 88I, 96A, 111A, 117B, 120 and 121 extend only to Scotland.
(3B) Sections 104 to 109, 111, 112 to 117, 118 and 122 extend to Northern Ireland and Scotland but not to England and Wales.”’.—(Damian Green.)
Brought up, read the First and Second time, and added to the Bill.
New Clause 15
Saving and transitional provision
‘(1) In this section—
“the 2003 Act” means the Sexual Offences Act 2003;
“existing order” means—
(a) a sexual offences prevention order under section 104 of the 2003 Act;
(b) a foreign travel order under section 114 of that Act;
(c) a risk of sexual harm order under section 123 of that Act;
“new order” means—
(a) a sexual harm prevention order (made under section 103A of the 2003 Act, inserted by Schedule [Amendments of Part 2 of the Sexual Offences Act 2003]);
(b) a sexual risk order (made under section 122A of that Act, inserted by that Schedule);
“old order” means—
(a) a restraining order under section 5A of the Sex Offenders Act 1997;
(b) a sex offender order under section 2 of the Crime and Disorder Act 1998.
(2) The repeal or amendment by this Act of sections 104 to 122 or sections 123 to 129 of the 2003 Act does not apply in relation to—
(a) an application made before the commencement day for an existing order;
(b) an existing order (whether made before or after that day) applied for before that day;
(c) anything done in connection with such an application or order.
(3) The following sections of the 2003 Act inserted by Schedule [Amendments of Part 2 of the Sexual Offences Act 2003] apply (as appropriate) to an old order as they apply to a new order—
(a) section 103E (variation, renewal and discharge of sexual harm prevention order);
(b) section 103I (offence of breach of sexual harm prevention order);
(c) section 122E (variation, renewal and discharge of sexual risk order);
(d) section 122H (offence of breach of sexual risk order).
(4) As from the commencement day there may be no variation of an existing order or an old order that extends the period of the order or of any of its provisions.
(5) At the end of the period of 5 years beginning with the commencement day—
(a) in relation to any existing order or old order that is still in force, sections 103E and 103I of the 2003 Act or sections 122E and 122H of that Act (as appropriate) have effect, with any necessary modifications (and with any modifications specified in an order under section 152(6) of this Act), as if the provisions of the order were provisions of a new order;
(b) subsections (2) and (3) cease to have effect.
(6) In this section “commencement day” means the day on which this section comes into force.’.—(Damian Green.)
Brought up, read the First and Second time, and added to the Bill.
New Schedule 1
‘SCHEDULE
Amendments of Part 2 of the Sexual Offences Act 2003
Introduction
1 Part 2 of the Sexual Offences Act 2003 (notification and orders) is amended as set out in this Schedule.
Sexual harm prevention orders
2 After section 103 there is inserted—
“Sexual harm prevention orders (England and Wales)
103A Sexual harm prevention orders: applications and grounds
(1) A court may make an order under this section (a “sexual harm prevention order”) in respect of a person (“the defendant”) where subsection (2) or (3) applies to the defendant.
(2) This subsection applies to the defendant where—
(a) the court deals with the defendant in respect of—
(i) an offence listed in Schedule 3 or 5, or
(ii) a finding that the defendant is not guilty of an offence listed in Schedule 3 or 5 by reason of insanity, or
(iii) a finding that the defendant is under a disability and has done the act charged against the defendant in respect of an offence listed in Schedule 3 or 5,
and
(b) the court is satisfied that it is necessary to make a sexual harm prevention order, for the purpose of—
(i) protecting the public or any particular members of the public from sexual harm from the defendant, or
(ii) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom.
(3) This subsection applies to the defendant where—
(a) an application under subsection (4) has been made in respect of the defendant and it is proved on the application that the defendant is a qualifying offender, and
(b) the court is satisfied that the defendant’s behaviour since the appropriate date makes it necessary to make a sexual harm prevention order, for the purpose of—
(i) protecting the public or any particular members of the public from sexual harm from the defendant, or
(ii) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom.
(4) A chief officer of police or the Director General of the National Crime Agency (“the Director General”) may by complaint to a magistrates’ court apply for a sexual harm prevention order in respect of a person if it appears to the chief officer or the Director General that—
(a) the person is a qualifying offender, and
(b) the person has since the appropriate date acted in such a way as to give reasonable cause to believe that it is necessary for such an order to be made.
(5) A chief officer of police may make an application under subsection (4) only in respect of a person—
(a) who resides in the chief officer’s police area, or
(b) who the chief officer believes is in that area or is intending to come to it.
(6) An application under subsection (4) may be made to any magistrates’ court whose commission area includes—
(a) any part of a relevant police area, or
(b) any place where it is alleged that the person acted in a way mentioned in subsection (4)(b).
(7) The Director General must as soon as practicable notify the chief officer of police for a relevant police area of any application that the Director has made under subsection (4).
(8) In this section “relevant police area” means—
(a) where the applicant is a chief officer of police, the officer’s police area;
(b) where the applicant is the Director General—
(i) the police area where the person in question resides, or
(ii) a police area which the Director General believes the person is in or is intending to come to.
103B Section 103A: supplemental
(1) In section 103A—
“appropriate date”, in relation to a qualifying offender, means the date or (as the case may be) the first date on which the offender was convicted, found or cautioned as mentioned in subsection (2) or (3) below;
“child” means a person under 18;
“the public” means the public in the United Kingdom;
“sexual harm” from a person means physical or psychological harm caused—
(a) by the person committing one or more offences listed in Schedule 3, or
(b) (in the context of harm outside the United Kingdom) by the person doing, outside the United Kingdom, anything which would constitute an offence listed in Schedule 3 if done in any part of the United Kingdom;
“qualifying offender” means a person within subsection (2) or (3) below;
“vulnerable adult” means a person aged 18 or over whose ability to protect himself or herself from physical or psychological harm is significantly impaired through physical or mental disability or illness, through old age or otherwise.
(2) A person is within this subsection if, whether before or after the commencement of this Part, the person—
(a) has been convicted of an offence listed in Schedule 3 (other than at paragraph 60) or in Schedule 5,
(b) has been found not guilty of such an offence by reason of insanity,
(c) has been found to be under a disability and to have done the act charged against him in respect of such an offence, or
(d) has been cautioned in respect of such an offence.
(3) A person is within this subsection if, under the law in force in a country outside the United Kingdom and whether before or after the commencement of this Part—
(a) the person has been convicted of a relevant offence (whether or not the person has been punished for it),
(b) a court exercising jurisdiction under that law has made in respect of a relevant offence a finding equivalent to a finding that the person is not guilty by reason of insanity,
(c) such a court has made in respect of a relevant offence a finding equivalent to a finding that the person is under a disability and did the act charged against the person in respect of the offence, or
(d) the person has been cautioned in respect of a relevant offence.
(4) In subsection (3), “relevant offence” means an act which—
(a) constituted an offence under the law in force in the country concerned, and
(b) would have constituted an offence listed in Schedule 3 (other than at paragraph 60) or in Schedule 5 if it had been done in any part of the United Kingdom.
For this purpose an act punishable under the law in force in a country outside the United Kingdom constitutes an offence under that law, however it is described in that law.
(5) For the purposes of section 103A, acts, behaviour, convictions and findings include those occurring before the commencement of this Part.
(6) Subject to subsection (7), on an application under section 103A(4) the condition in subsection (4)(b) above (where relevant) is to be taken as met unless, not later than rules of court may provide, the defendant serves on the applicant a notice—
(a) stating that, on the facts as alleged with respect to the act concerned, the condition is not in the defendant’s opinion met,
(b) showing the grounds for that opinion, and
(c) requiring the applicant to prove that the condition is met.
(7) The court, if it thinks fit, may permit the defendant to require the applicant to prove that the condition is met without service of a notice under subsection (6).
(8) Subsection (9) applies for the purposes of section 103A and this section.
(9) In construing any reference to an offence listed in Schedule 3, any condition subject to which an offence is so listed that relates—
(a) to the way in which the defendant is dealt with in respect of an offence so listed or a relevant finding (as defined by section 132(9)), or
(b) to the age of any person,
is to be disregarded.
103C SHPOs: effect
(1) A sexual harm prevention order prohibits the defendant from doing anything described in the order.
(2) Subject to section 103D(1), a prohibition contained in a sexual harm prevention order has effect—
(a) for a fixed period, specified in the order, of at least 5 years, or
(b) until further order.
(3) A sexual harm prevention order—
(a) may specify that some of its prohibitions have effect until further order and some for a fixed period;
(b) may specify different periods for different prohibitions.
(4) The only prohibitions that may be included in a sexual harm prevention order are those necessary for the purpose of—
(a) protecting the public or any particular members of the public from sexual harm from the defendant, or
(b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom.
(5) In subsection (4) “the public”, “sexual harm”, “child” and “vulnerable adult” each has the meaning given in section 103B(1).
(6) Where a court makes a sexual harm prevention order in relation to a person who is already subject to such an order (whether made by that court or another), the earlier order ceases to have effect.
103D SHPOs: prohibitions on foreign travel
(1) A prohibition on foreign travel contained in a sexual harm prevention order must be for a fixed period of not more than 5 years.
(2) A “prohibition on foreign travel” means—
(a) a prohibition on travelling to any country outside the United Kingdom named or described in the order,
(b) a prohibition on travelling to any country outside the United Kingdom other than a country named or described in the order, or
(c) a prohibition on travelling to any country outside the United Kingdom.
(3) Subsection (1) does not prevent a prohibition on foreign travel from being extended for a further period (of no more than 5 years each time) under section 103E.
(4) A sexual harm prevention order that contains a prohibition within subsection (2)(c) must require the defendant to surrender all of the defendant’s passports at a police station specified in the order—
(a) on or before the date when the prohibition takes effect, or
(b) within a period specified in the order.
(5) Any passports surrendered must be returned as soon as reasonably practicable after the person ceases to be subject to a sexual harm prevention order containing a prohibition within subsection (2)(c) (unless the person is subject to an equivalent prohibition under another order).
(6) Subsection (5) does not apply in relation to—
(a) a passport issued by or on behalf of the authorities of a country outside the United Kingdom if the passport has been returned to those authorities;
(b) a passport issued by or on behalf of an international organisation if the passport has been returned to that organisation.
(7) In this section “passport” means—
(a) a United Kingdom passport within the meaning of the Immigration Act 1971;
(b) a passport issued by or on behalf of the authorities of a country outside the United Kingdom, or by or on behalf of an international organisation;
(c) a document that can be used (in some or all circumstances) instead of a passport.
103E SHPOs: variations, renewals and discharges
(1) A person within subsection (2) may apply to the appropriate court for an order varying, renewing or discharging a sexual harm prevention order.
(2) The persons are—
(a) the defendant;
(b) the chief officer of police for the area in which the defendant resides;
(c) a chief officer of police who believes that the defendant is in, or is intending to come to, that officer’s police area;
(d) where the order was made on an application by a chief officer of police under section103A(4), that officer.
(3) An application under subsection (1) may be made—
(a) where the appropriate court is the Crown Court, in accordance with rules of court;
(b) in any other case, by complaint.
(4) Subject to subsections (5) and (6), on the application the court, after hearing the person making the application and (if they wish to be heard) the other persons mentioned in subsection (2), may make any order, varying, renewing or discharging the sexual harm prevention order, that the court considers appropriate.
(5) An order may be renewed, or varied so as to impose additional prohibitions on the defendant, only if it is necessary to do so for the purpose of—
(a) protecting the public or any particular members of the public from sexual harm from the defendant, or
(b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom.
Any renewed or varied order may contain only such prohibitions as are necessary for this purpose.
(6) The court must not discharge an order before the end of 5 years beginning with the day on which the order was made, without the consent of the defendant and—
(a) where the application is made by a chief officer of police, that chief officer, or
(b) in any other case, the chief officer of police for the area in which the defendant resides.
(7) Subsection (6) does not apply to an order containing a prohibition on foreign travel and no other prohibitions.
(8) In this section “the appropriate court” means—
(a) where the Crown Court or the Court of Appeal made the sexual harm prevention order, the Crown Court;
(b) where a magistrates’ court made the order, that court, a magistrates’ court for the area in which the defendant resides or, where the application is made by a chief officer of police, any magistrates’ court whose commission area includes any part of the chief officer’s police area;
(c) where a youth court made the order, that court, a youth court for the area in which the defendant resides or, where the application is made by a chief officer of police, any youth court whose commission area includes any part of the chief officer’s police area.
103F Interim SHPOs
(1) This section applies where an application under section 103A(4) (“the main application”) has not been determined.
(2) An application for an order under this section (“an interim sexual harm prevention order”)—
(a) may be made by the complaint by which the main application is made, or
(b) if the main application has been made, may be made by the person who has made that application, by complaint to the court to which that application has been made.
(3) The court may, if it considers it just to do so, make an interim sexual harm prevention order, prohibiting the defendant from doing anything described in the order.
(4) Such an order—
(a) has effect only for a fixed period, specified in the order;
(b) ceases to have effect, if it has not already done so, on the determination of the main application.
(5) The applicant or the defendant may by complaint apply to the court that made the interim sexual harm prevention order for the order to be varied, renewed or discharged.
103G SHPOs and interim SHPOs: notification requirements
(1) Where—
(a) a sexual harm prevention order is made in respect of a defendant who was a relevant offender immediately before the making of the order, and
(b) the defendant would (apart from this subsection) cease to be subject to the notification requirements of this Part while the order (as renewed from time to time) has effect,
the defendant remains subject to the notification requirements.
(2) Where a sexual harm prevention order is made in respect of a defendant who was not a relevant offender immediately before the making of the order—
(a) the order causes the defendant to become subject to the notification requirements of this Part from the making of the order until the order (as renewed from time to time) ceases to have effect, and
(b) this Part applies to the defendant, subject to the modification set out in subsection (3).
(3) The “relevant date” is the date of service of the order.
(4) Subsections (1) to (3) apply to an interim sexual harm prevention order as if references to a sexual harm prevention order were references to an interim sexual harm prevention order, and with the omission of “(as renewed from time to time)” in both places.
(5) Where—
(a) a sexual harm prevention order is in effect in relation to a relevant sex offender (within the meaning of section 88A), and
(b) by virtue of section 88F or 88G the relevant sex offender ceases to be subject to the notification requirements of this Part,
the sexual harm prevention order ceases to have effect.
(6) On an application for a sexual harm prevention order made by a chief officer of police, the court must make a notification order in respect of the defendant (either in addition to or instead of a sexual harm prevention order) if—
(a) the applicant invites the court to do so, and
(b) it is proved that the conditions in section 97(2) to (4) are met.
(7) On an application for an interim sexual harm prevention order made by a chief officer of police, the court may, if it considers it just to do so, make an interim notification order (either in addition to or instead of an interim sexual harm prevention order).
103H SHPOs and interim SHPOs: appeals
(1) A defendant may appeal against the making of a sexual harm prevention order—
(a) where the order was made by virtue of section103A(2)(a)(i), as if the order were a sentence passed on the defendant for the offence;
(b) where the order was made by virtue of section103A(2)(a)(ii) or (iii), as if the defendant had been convicted of the offence and the order were a sentence passed on the defendant for that offence;
(c) where the order was made on an application under section103A(4), to the Crown Court.
(2) A defendant may appeal to the Crown Court against the making of an interim sexual harm prevention order.
(3) A defendant may appeal against the making of an order under section 103E, or the refusal to make such an order—
(a) where the application for such an order was made to the Crown Court, to the Court of Appeal;
(b) in any other case, to the Crown Court.
(4) On an appeal under subsection (1)(c), (2) or (3)(b), the Crown Court may make such orders as may be necessary to give effect to its determination of the appeal, and may also make such incidental or consequential orders as appear to it to be just.
(5) Any order made by the Crown Court on an appeal under subsection (1)(c) or (2) (other than an order directing that an application be re-heard by a magistrates’ court) is for the purposes of section 103E(8) or 103F (5) (respectively) to be treated as if it were an order of the court from which the appeal was brought (and not an order of the Crown Court).
103I Offence: breach of SHPO or interim SHPO etc
(1) A person who, without reasonable excuse, does anything that the person is prohibited from doing by—
(a) a sexual harm prevention order,
(b) an interim sexual harm prevention order,
(c) a sexual offences prevention order,
(d) an interim sexual offences prevention order, or
(e) a foreign travel order,
commits an offence.
(2) A person commits an offence if, without reasonable excuse, the person fails to comply with a requirement imposed under section 103D(4).
(3) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years.
(4) Where a person is convicted of an offence under this section, it is not open to the court by or before which the person is convicted to make, in respect of the offence, an order for conditional discharge.
103J SHPOs and interim SHPOs: guidance
(1) The Secretary of State must issue guidance to chief officers of police and to the Director General of the National Crime Agency in relation to the exercise by them of their powers with regard to sexual harm prevention orders and interim sexual harm prevention orders.
(2) The Secretary of State may, from time to time, revise the guidance issued under subsection (1).
(3) The Secretary of State must arrange for any guidance issued or revised under this section to be published in such manner as the Secretary of State considers appropriate.”
Sexual offences prevention orders and foreign travel orders
3 (1) Sections 104 to 122 (sexual offences prevention orders and foreign travel orders) are repealed.
(2) This paragraph extends only to England and Wales.
Sexual risk orders
4 Before section 123 there is inserted—
“Sexual risk orders (England and Wales)
122A Sexual risk orders: applications, grounds and effect
(1) A chief officer of police or the Director General of the National Crime Agency (“the Director General”) may by complaint to a magistrates’ court apply for an order under this section (a “sexual risk order”) in respect of a person (“the defendant”) if it appears to the chief officer or the Director General that the following condition is met.
(2) The condition is that the defendant has, whether before or after the commencement of this Part, done an act of a sexual nature as a result of which there is reasonable cause to believe that it is necessary for a sexual risk order to be made.
(3) A chief officer of police may make an application under subsection (1) only in respect of a person—
(a) who resides in the chief officer’s police area, or
(b) who the chief officer believes is in that area or is intending to come to it.
(4) An application under subsection (1) may be made to any magistrates’ court whose commission area includes—
(a) any part of a relevant police area, or
(b) any place where it is alleged that the person acted in a way mentioned in subsection (2).
(5) The Director General must as soon as practicable notify the chief officer of police for a relevant police area of any application that the Director has made under subsection (1).
(6) On an application under subsection (1), the court may make a sexual risk order if it is satisfied that the defendant has, whether before or after the commencement of this Part, done an act of a sexual nature as a result of which it is necessary to make such an order for the purpose of—
(a) protecting the public or any particular members of the public from harm from the defendant, or
(b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from harm from the defendant outside the United Kingdom.
(7) Such an order—
(a) prohibits the defendant from doing anything described in the order;
(b) has effect for a fixed period (not less than 2 years) specified in the order or until further order.
(8) A sexual risk order may specify different periods for different prohibitions.
(9) The only prohibitions that may be imposed are those necessary for the purpose of—
(a) protecting the public or any particular members of the public from harm from the defendant, or
(b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from harm from the defendant outside the United Kingdom.
(10) Where a court makes a sexual risk order in relation to a person who is already subject to such an order (whether made by that court or another), the earlier order ceases to have effect.
122B Section 122A: interpretation
(1) In section 122A—
“child” means a person under 18;
“harm” from the defendant means physical or psychological harm caused by the defendant doing an act of a sexual nature;
“the public” means the public in the United Kingdom;
“vulnerable adult” means a person aged 18 or over whose ability to protect himself or herself from physical or psychological harm is significantly impaired through physical or mental disability or illness, through old age or otherwise.
(2) In that section “relevant police area” means—
(a) where the applicant is a chief officer of police, the officer’s police area;
(b) where the applicant is the Director General of the National Crime Agency—
(i) the police area where the person in question resides, or
(ii) a police area which the Director General believes the person is in or is intending to come to.
122C Sexual risk orders: prohibitions on foreign travel
(1) A prohibition on foreign travel contained in a sexual risk order must not be for a period of more than 5 years.
(2) A “prohibition on foreign travel” means—
(a) a prohibition on travelling to any country outside the United Kingdom named or described in the order,
(b) a prohibition on travelling to any country outside the United Kingdom other than a country named or described in the order, or
(c) a prohibition on travelling to any country outside the United Kingdom.
(3) Subsection (1) does not prevent a prohibition on foreign travel from being extended for a further period (of no more than 5 years each time) under section 122D.
(4) A sexual risk order that contains a prohibition within subsection (2)(c) must require the defendant to surrender all of the defendant’s passports at a police station specified in the order—
(a) on or before the date when the prohibition takes effect, or
(b) within a period specified in the order.
(5) Any passports surrendered must be returned as soon as reasonably practicable after the person ceases to be subject to a sexual risk order containing such a prohibition (unless the person is subject to an equivalent prohibition under another order).
(6) Subsection (5) does not apply in relation to—
(a) a passport issued by or on behalf of the authorities of a country outside the United Kingdom if the passport has been returned to those authorities;
(b) a passport issued by or on behalf of an international organisation if the passport has been returned to that organisation.
(7) In this section “passport” means—
(a) a United Kingdom passport within the meaning of the Immigration Act 1971;
(b) a passport issued by or on behalf of the authorities of a country outside the United Kingdom, or by or on behalf of an international organisation;
(c) a document that can be used (in some or all circumstances) instead of a passport.
122D Sexual risk order: variations, renewals and discharges
(1) A person within subsection (2) may by complaint to the appropriate court apply for an order varying, renewing or discharging a sexual risk order.
(2) The persons are—
(a) the defendant;
(b) the chief officer of police for the area in which the defendant resides;
(c) a chief officer of police who believes that the defendant is in, or is intending to come to, that officer’s police area;
(a) where the order was made on an application by a chief officer of police, that officer.
(3) Subject to subsections (4) and (5), on the application the court, after hearing the person making the application and (if they wish to be heard) the other persons mentioned in subsection (2), may make any order, varying, renewing or discharging the sexual risk order, that the court considers appropriate.
(4) An order may be renewed, or varied so as to impose additional prohibitions on the defendant, only if it is necessary to do so for the purpose of—
(a) protecting the public or any particular members of the public from harm from the defendant, or
(b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from harm from the defendant outside the United Kingdom.
Any renewed or varied order may contain only such prohibitions as are necessary for this purpose.
(5) The court must not discharge an order before the end of 2 years beginning with the day on which the order was made, without the consent of the defendant and—
(a) where the application is made by a chief officer of police, that chief officer, or
(b) in any other case, the chief officer of police for the area in which the defendant resides.
(6) Section 122B(1) applies for the purposes of this section.
(7) In this section “the appropriate court” means—
(a) the court which made the sexual risk order;
(b) a magistrates’ court for the area in which the defendant resides;
(c) where the application is made by a chief officer of police, any magistrates’ court whose commission area includes any part of the officer’s police area.
122E Interim sexual risk orders
(1) This section applies where an application for a sexual risk order (“the main application”) has not been determined.
(2) An application for an order under this section (“an interim sexual risk order”)—
(a) may be made by the complaint by which the main application is made, or
(b) if the main application has been made, may be made by the person who has made that application, by complaint to the court to which that application has been made.
(3) The court may, if it considers it just to do so, make an interim sexual risk order, prohibiting the defendant from doing anything described in the order.
(4) Such an order—
(a) has effect only for a fixed period, specified in the order;
(b) ceases to have effect, if it has not already done so, on the determination of the main application.
(5) The applicant or the defendant may by complaint apply to the court that made the interim sexual risk order for the order to be varied, renewed or discharged.
122F Sexual risk orders and interim sexual risk orders: notification requirements
(1) A person in respect of whom a court makes—
(a) a sexual risk order (other than one that replaces an interim sexual risk order), or
(b) an interim sexual risk order,
must, within the period of 3 days beginning with the date of service of the order, notify to the police the information set out in subsection (2) (unless the person is subject to the notification requirements of this Part on that date).
(2) The information is—
(a) the person’s name and, where the person uses one or more other names, each of those names;
(b) the person’s home address.
(3) A person who—
(a) is subject to a sexual risk order or an interim sexual risk order (but is not subject to the notification requirements of this Part), and
(b) uses a name which has not been notified under this section (or under any other provision of this Part), or changes home address,
must, within the period of 3 days beginning with the date on which that happens, notify to the police that name or (as the case may be) the new home address.
(4) Sections 87 (method of notification and related matters) and 91 (offences relating to notification) apply for the purposes of this section—
(a) with references to section 83(1) being read as references to subsection (1) above,
(b) with references to section 84(1) being read as references to subsection (3) above, and
(c) with the omission of section 87(2)(b).
122G Sexual risk orders and interim sexual risk orders: appeals
(1) A defendant may appeal to the Crown Court—
(a) against the making of a sexual risk order;
(b) against the making of an interim sexual risk order; or
(c) against the making of an order under section 122D, or the refusal to make such an order.
(2) On any such appeal, the Crown Court may make such orders as may be necessary to give effect to its determination of the appeal, and may also make such incidental or consequential orders as appear to it to be just.
(3) Any order made by the Crown Court on an appeal under subsection (1)(a) or (b) (other than an order directing that an application be re-heard by a magistrates’ court) is for the purposes of section 122D(7) or 122E(5) (respectively) to be treated as if it were an order of the court from which the appeal was brought (and not an order of the Crown Court).
122H Offence: breach of sexual risk order or interim sexual risk order etc
(1) A person who, without reasonable excuse, does anything that the person is prohibited from doing by—
(a) a sexual risk order,
(b) an interim sexual risk order,
(c) a risk of sexual harm order,
(d) an interim risk of sexual harm order,
(e) an order under section 2 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (risk of sexual harm orders in Scotland), or
(f) an order under section 5 of that Act (interim risk of sexual harm orders in Scotland),
commits an offence.
(2) A person commits an offence if, without reasonable excuse, the person fails to comply with a requirement imposed under section 122C(4).
(3) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years.
(4) Where a person is convicted of an offence under this section, it is not open to the court by or before which the person is convicted to make, in respect of the offence, an order for conditional discharge.
122I Effect of conviction etc of an offence under section 122H etc
(1) This section applies to a person (“the defendant”) who—
(a) is convicted of an offence mentioned in subsection (2);
(b) is found not guilty of such an offence by reason of insanity;
(c) is found to be under a disability and to have done the act charged against him in respect of such an offence; or
(d) is cautioned in respect of such an offence.
(2) Those offences are—
(a) an offence under section 122H or 128 of this Act;
(b) an offence under section 7 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (contravention of risk of sexual harm order or interim risk of sexual harm order in Scotland).
(3) Where—
(a) a defendant was a relevant offender immediately before this section applied to the defendant, and
(b) the defendant would (apart from this subsection) cease to be subject to the notification requirements of this Part while the relevant order (as renewed from time to time) has effect,
the defendant remains subject to the notification requirements.
(4) Where the defendant was not a relevant offender immediately before this section applied to the defendant—
(a) this section causes the defendant to become subject to the notification requirements of this Part from the time the section first applies to the defendant until the relevant order (as renewed from time to time) ceases to have effect, and
(b) this Part applies to the defendant, subject to the modification set out in subsection (5).
(5) The “relevant date” is the date on which this section first applies to the defendant.
(6) In this section “relevant order” means—
(a) where the conviction, finding or caution within subsection (1) is in respect of a breach of a sexual risk order or a risk of sexual harm order, that order;
(b) where the conviction, finding or caution within subsection (1) is in respect of a breach of an interim sexual risk order or an interim risk of sexual harm order, any sexual risk order or risk of sexual harm order made on the hearing of the application to which the interim order relates or, if no such order is made, the interim order.
(7) In subsection (6) “risk of sexual harm order” and “interim risk of sexual harm order” include orders under sections 2 and 5 (respectively) of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005.
122J Sexual risk orders and interim sexual risk orders: guidance
(1) The Secretary of State must issue guidance to chief officers of police and to the Director General of the National Crime Agency in relation to the exercise by them of their powers with regard to sexual risk orders and interim sexual risk orders.
(2) The Secretary of State may, from time to time, revise the guidance issued under subsection (1).
(3) The Secretary of State must arrange for any guidance issued or revised under this section to be published in such manner as the Secretary of State considers appropriate.”
Risk of sexual harm orders
5 (1) Sections 123 to 129 (risk of sexual harm orders) are repealed.
(2) This paragraph extends only to England and Wales.
Application etc of orders
6 After section 136 there is inserted—
“136ZA Application of orders throughout the United Kingdom
(1) In this section “relevant order” means—
(a) a sexual harm prevention order;
(b) an interim sexual harm prevention order;
(c) a sexual offences prevention order;
(d) an interim sexual offences prevention order;
(e) a foreign travel order;
(f) a sexual risk order;
(g) an interim sexual risk order;
(h) a risk of sexual harm order;
(i) an interim risk of sexual harm order;
(j) an order under section 2 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (risk of sexual harm orders in Scotland);
(k) an order under section 5 of that Act (interim risk of sexual harm orders in Scotland).
(2) For the purposes of sections 103I, 113, 122, 122H and 128, prohibitions imposed by a relevant order made in one part of the United Kingdom apply (unless expressly confined to particular localities) throughout that and every other part of the United Kingdom.
136ZB Order ceases to have effect when new order made
(1) Where a court in England and Wales makes an order listed in the first column of the following Table in relation to a person who is already subject to an order listed opposite it in the second column, the earlier order ceases to have effect (whichever part of the United Kingdom it was made in) unless the court orders otherwise.
New order | Earlier order |
|---|---|
Sexual harm prevention order | —sexual offences prevention order; —foreign travel order. |
Sexual risk order | —risk of sexual harm order; —foreign travel order. |
(2) Where a court in Northern Ireland or Scotland makes an order listed in the first column of the following Table in relation to a person who is already subject to an order or prohibition listed opposite it in the second column, the earlier order or prohibition ceases to have effect (even though it was made or imposed by a court in England and Wales) unless the court orders otherwise.
New order | Earlier order or prohibition |
|---|---|
Sexual offences prevention order | —sexual harm prevention order not containing a prohibition on foreign travel; —in the case of a sexual harm prevention order containing a prohibition on foreign travel, each of its other prohibitions. |
Foreign travel order | —prohibition on foreign travel contained in a sexual harm prevention order. |
Risk of sexual harm order | —sexual risk order not containing a prohibition on foreign travel; —in the case of a sexual risk order containing a prohibition on foreign travel, each of its other prohibitions. |
(3) In this section—
(a) “court”, in Scotland, includes sheriff;
(b) “risk of sexual harm order” includes an order under section 2 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005.”’.—(Damian Green.)
Brought up, read the First and Second time, and added to the Bill.
New Clause 33
Injunction—best interests of the child
‘The courts must take into account the best interests of the child as a primary consideration when deciding whether to impose the following—
(a) an injunction;
(b) the terms of any prohibition or requirement;
(c) sanctions for breach of an injunction; and
(d) when determining reporting of a child’s case.’.—(Simon Hughes.)
Brought up, and read the First time.
Simon Hughes (Bermondsey and Old Southwark) (LD)
I beg to move, That the clause be read a Second time.
Madam Deputy Speaker (Dawn Primarolo)
With this it will be convenient to discuss the following:
Amendment 158, in clause 1, page 1, line 8, after ‘conduct’, insert ‘that might reasonably be regarded as’.
Amendment 163, page 1, line 10, leave out ‘and’ and insert ‘,’.
Amendment 164, page 1, line 10, after ‘convenient’, insert ‘and proportionate’.
Amendment 159, page 2, line 1, leave out ‘doing anything’ and insert ‘specified actions’.
Amendment 160, page 2, line 2, after ‘injunction’, insert
‘which relate to the anti-social behaviour which the respondent has engaged or threatened to engage in’.
Amendment 161, page 2, line 3, leave out ‘anything’ and insert ‘specified actions’.
Amendment 162, page 2, line 3, after ‘injunction’, insert
‘which relate to the anti-social behaviour which the respondent has engaged or threatened to engaged in’.
Amendment 165, page 2, leave out line 6.
Government amendments 1 to 12.
Amendment 166, in clause 12, page 6, line 29, after ‘court’, insert
‘is satisfied that the exclusion is necessary and proportionate, and’.
Government amendments 13 to 15.
Amendment 167, in clause 21, page 11, line 24, after ‘satisfied’, insert
‘, according to the criminal standard of proof.’.
Government amendment 16.
Amendment 168, page 11, line 27, leave out ‘help in preventing’ and insert ‘prevent’.
Amendment 169, page 11, line 31, leave out ‘doing anything’ and insert ‘specified actions’.
Amendment 170, page 11, line 31, after ‘order’, insert
‘which relate to the anti-social behaviour which the respondent has engaged in’.
Amendment 171, page 11, line 32, leave out ‘anything’ and insert ‘specified actions’.
Amendment 172, page 11, line 32, after ‘order’, insert
‘which relate to the anti-social behaviour which the respondent has engaged in’.
Amendment 173, page 12, leave out line 3.
Government amendment 17.
Amendment 174, in clause 22, page 12, line 44, at end insert—
‘(9) The courts must take into account the best interests of the child as a primary consideration when determining reporting of a child’s case.’.
Amendment 175, in clause 29, page 16, line 40, at end insert—
‘(7) The courts must taken into account the best interests of the child as a primary consideration when determining reporting a child’s case.’.
Government amendment 18.
Amendment 176, in clause 34, page 20, line 17, at end add—
‘(c) any other form of peaceful assembly.’.
Government amendments 19 to 44.
Amendment 177, page 61, line 22, leave out Clause 91.
Government amendments 45 to 48.
Amendment 96, in schedule 8, page 155, line 32, leave out paragraphs 24 to 27.
Government amendment 82.
Simon Hughes
I wish to speak to the new clause and amendments that I and the hon. Member for Aberavon (Dr Francis) tabled, and I will also say a word about the Government amendments and Labour’s amendment 96.
Our amendments all arise from the deliberations of the Joint Committee on Human Rights, which has just completed its report on the Bill. I welcome the Minister of State, Home Department, my hon. Friend the Member for Lewes (Norman Baker)—if I can have his attention for a second—to his new responsibilities. I hope it will help him and the House if I say that we do not intend to seek to divide the House on the new clause or the amendments, but I hope that he will be able to give me a positive and constructive response. On many occasions we have been on the same side, trying to get positive and constructive responses from previous Conservative and Labour Governments. We have not always succeeded, but I hope that the new form of double act will allow me to ask for some reasonable changes and him to agree, either today or very shortly, to the changes that we seek.
I will put on record the relevant parts of the summary of the Joint Committee’s report, which we published on 9 October. It was the Committee’s fourth report of this Session. It states:
“The Anti-social Behaviour, Crime and Policing Bill was introduced in the House of Commons on 9 May 2013…It is a substantial Bill containing many provisions with significant human rights implications”.
The new clause relates to one of those implications. All the amendments in this group have human rights implications, which is why Mr Speaker has grouped them
We should like Ministers to pay attention to the issue of antisocial behaviour, which I shall come to expressly; to that of forced marriage; and, probably most politically controversially, to those of powers to stop, question, search and detain at ports, and compensation for miscarriages of justice. We shall come to those matters later in our deliberations.
We are grateful for the way the Bill team facilitated the Committee’s scrutiny of those issues, but we have three qualifications, as set out in our unanimous report. It states:
“First, we doubt whether the mechanisms for ensuring that a systematic analysis of the impact of laws and policies on children’s rights is carried out are yet embedded across Whitehall. We repeat our call for the Government to reassure Parliament that in future it will conduct a thorough assessment of the impact of legislation on the rights of children under the UN Convention on the Rights of the Child before the legislation is introduced. We propose to raise with the Children’s Commissioner the question of what can be done, in practical terms, to accelerate the Government’s progress towards implementing its undertaking to Parliament of nearly three years ago.
Second, the number of significant Government amendments to the Bill with potentially significant human rights implications has made our scrutiny—”
any Committee’s scrutiny, but ours in particular—
“of the Bill’s human rights compatibility more difficult”.
We take up that issue with the Leader of the House on a regular basis, because the more amendments are tabled late in the day, the more difficult Committees such as ours find it to report to the House and advise colleagues on how to respond. The summary continues:
“Third, the Government has not always provided us with information it has promised in sufficient time to enable us to scrutinise it adequately. We call on the Government, once again, to ensure in future that we are provided with the information we request in time to inform our scrutiny of Government Bills.”
Let me address the new clause and amendments to the antisocial behaviour proposals collectively, and then I will consider them individually although I do not anticipate detaining the House for too long. Parts 1 to 6 of the Bill reform current measures on antisocial behaviour, and the Committee’s view is that preventive measures against antisocial behaviour are, in principle, a welcome fulfilment of the state’s positive obligation to protect people against having their rights interfered with by others—that is the important context in which we consider all human rights implications of the Bill’s antisocial behaviour provisions.
New clause 33 would add to the Bill the requirement that
“The courts must take into account the best interests of the child as a primary consideration”
when imposing an injunction. It is a common principle of criminal and welfare law that the best interests of children be taken into account, and we would like that written into the Bill. The new clause simply states that the best interests of the child should be taken into account in four situations, namely when the courts are deciding to impose
“an injunction;
the terms of any prohibition or requirement;
sanctions for breach of an injunction; and
when determining reporting of a child’s case.”.
The Committee considered the human rights compatibility of the new civil injunction to prevent nuisance and annoyance—an IPNA. The Bill states that an IPNA may be imposed if the court considers it “just and convenient” to prevent antisocial behaviour—a lower test than the test of necessity required by human rights law. We also considered that the new IPNA definition of antisocial behaviour is too broad and not clear enough. I hope Ministers will consider positively the idea that the Bill should be as clear as possible and compatible with other legislation; we should not start introducing concepts not found in other legislation, which would mean that people would not know how the law would be interpreted.
In the Committee’s view, the Bill’s current provisions on the prohibitions and requirements that can be attached to an injunction are far too broad. Furthermore, we have not been persuaded that it is necessary to state expressly that prohibitions and requirements in an IPNA must “so far as practicable” avoid any conflict with religious beliefs. The Committee is clear—the House has been clear about this on many occasions—that the freedom to hold religious beliefs, or any beliefs that may not be from a religious perspective, is not a relative right but an absolute right that cannot be interfered with. The power to exclude a person from his or her home through the use of an IPNA is a severe measure, and the Committee believes further provision is required to ensure that such a power is used only when necessary.
As the new sanctions can be imposed on children as young as 10, the Committee also scrutinised the provisions and considered their impact on the rights of children. To reduce the potential negative impact of IPNA measures on children, we recommend that the courts must take into account the best interests of the child as a primary consideration in any IPNA legal proceedings. That explains the Committee’s position, and I will now consider quickly other amendments in the group.
Dr Huppert
My right hon. Friend is making an extremely good point. Has he had a chance to consider the report by the Home Affairs Committee which, during pre-legislative scrutiny of the Bill, came up with many of the concerns he has highlighted? Perhaps the fact that two different Committees raised the same concerns will mean that our hon. Friend the Minister might reflect more on the issue.
Simon Hughes
I am aware of the report by the Home Affairs Committee. One good thing is that since I started—my hon. Friend was very young; indeed, he may not have been alive, or just about, I think—Select Committees have become more useful and effective. They play a strong and useful part not just in considering issues, as the Home Affairs Committee has done, but in looking at legislation and reporting to the House. If we set up Select Committees like the Home Affairs Committee, or the Joint Committee on Human Rights, on which I and the hon. Member for Aberavon have the privilege to serve and which he has the honour to chair, it is nonsensical if our recommendations are not properly considered by the Government.
Amendments 158, 163, 164, 159 to 162, 165 and 166 relate to part 1 of the Bill. They do not require any great supporting speech as I hope they are drafted clearly and make their point. Amendment 158 would amend clause 1 on the power to grant injunctions, and would add to subsection (2) the words “might reasonably be regarded”. If amended, the clause would read:
“The first condition is that the court is satisfied, on the balance of probabilities, that the respondent has engaged or threatens to engage in conduct that might reasonably be regarded as capable of causing nuisance or annoyance to any person”.
That seeks to introduce an objective rather than a subjective test, which we believe would be helpful in ensuring the law is clear.
Amendments 163 and 164 go together and would mean that one test a court should apply when considering whether to impose an injunction, in addition to whether it is “just and convenient”, should be whether it is “proportionate”. That is a simple proposition, and as I know from my constituency work—and, I guess, the same is true for colleagues—it is always difficult to judge whether going to court and getting an injunction is the right way to deal with what may be growing, yet still relatively modest, antisocial behaviour. We think proportionality is appropriate and that it is better to write that into the Bill.
Amendments 159 to 162 ask for greater specificity about what the injunction prohibits, and we have tried to tidy up the language a bit—to put it bluntly—and remove some relatively loose wording. Clause 1(4) currently reads:
“An injunction under this section may for the purpose of preventing the respondent from engaging in anti-social behaviour—
prohibit the respondent from doing anything described in the injunction;
require the respondent to do anything described in the injunction.”
There is a prohibition provision and a requirement provision. We ask the House to consider whether, rather than “do anything” the clause could be a bit more specific—that is a pretty general phrase not normally found in legislation. Amendment 159 would prohibit the respondent from “specified actions”, so the injunction would state, “You cannot throw stones through windows”, rather than, “You cannot do anything,” which may or may not be specified. “You must stop behaving badly” seems a rather unsatisfactory and general instruction, whether it is men behaving badly, or women or anybody else.
Dr Huppert
My right hon. Friend is making an extremely good series of points. Does he share a concern about positive actions? There may be cases where somebody, through no fault of their own, cannot perform a positive action. There were cases with indeterminate sentences, for example, where prisoners were required to do various courses, which in some cases were not available for them to do. Would that also be checked?
Simon Hughes
One of the things that I hope we do better now because of Select Committees is take time to get Bills right. We have pre-legislative scrutiny which—[Interruption.] The hon. Member for Kingston upon Hull North (Diana Johnson) knows that I was critical of large parts of the Health and Social Care Bill and I have been critical about the process for dealing with the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill, which has just gone through this House. I said here, and I have not changed my view, that the Government should have submitted the Bill for proper pre-legislative scrutiny. Unless it is absolutely impossible, pre-legislative scrutiny should always take place because draftspeople may do a good first job, but they may not think of all the issues that we, representing all parts of the United Kingdom, might spot and be able to use our experience to deal with. I agree with my hon. Friend the Member for Cambridge (Dr Huppert), and I hope the Government will be positive. I am sure these issues crop up in Lewes as much as in Cambridge and in Bermondsey and Southwark.
The religious beliefs issue is the last in this set of amendments. We ask the Minister to consider removing clause 1(5)(a). At present there is a list of four things which the prohibitions and requirements in an injunction must, so far as practicable, be such as to avoid: any conflict with the respondent’s caring responsibilities, any interference with the times at which the respondent normally works or attends school or any other educational establishment, and any conflict with the requirements of any other court order or injunction to which the respondent may be subject. The fourth one is
“any conflict with the respondent’s religious beliefs”.
As I indicated earlier, we think that that cannot properly be there because somebody’s right to hold a religious belief is absolute and therefore should not be qualified by the words
“must, so far as practicable, be such as to avoid—
(a) any conflict with the respondent’s religious beliefs”.
I am encouraged to think that the Minister in particular will be helpful because he has a good human rights record and I am sure he will want to say, on behalf of the Home Office, that the Home Office is positive about that.
There is one more amendment in the group relating to part 1—amendment 166— which deals with whether people can be excluded from their homes. We are clear that the sanction of excluding somebody from their home should be a sanction of last resort. It is a very serious thing to take away that right. At present there is a power to exclude a person from home in cases of violence or risk of harm. Clause 12 states:
“(1) An injunction under section 1 may have the effect of excluding the respondent from the place where he or she normally lives only if—
(a) that place is owned or managed by a local authority or a housing provider,
(b) the injunction is granted on the application of the local authority or housing provider, and
(c) the court thinks that—
(i) the anti-social behaviour in which the respondent has engaged or threatens to engage consists of or includes the use or threatened use of violence against other persons, or
(ii) there is a significant risk of harm to other persons from the respondent.”
This is a well publicised issue. In my borough, both when my colleagues were running the administration and when it has been under Labour administration, there has been discussion publicly as well as among councillors about whether an injunction should be used to kick people out of their council home or their housing association home, and if so, in what circumstances. In a way, such a provision is slightly discriminatory because it applies only to people who are in publicly funded housing; it does not apply to someone in private rented property. That remains an issue. We want the Minister to be positive about our amendment 166, which would add to subsection (c) one more condition—that the court has to be satisfied that the exclusion is necessary and appropriate. Of course, if someone has engaged or threatens to engage in violence, or has threatened other people in the house, whether it is domestic violence among members of a family or household or otherwise, the logic might be that they should be excluded. I do not resile from that at all, but because it is such a draconian solution the court needs to be clear that it is necessary and appropriate. That is the run of amendments in relation to part 1.
There is a smaller number of amendments relating to part 2, which is about criminal behaviour orders. The Committee recommends that the appropriate standard of proof required to establish anti-social behaviour for the purpose of a criminal behaviour order, which is a new order being introduced by the Government, should be made clear on the face of the Bill. The reason we say that is that it could be assumed that it was a civil standard of proof, as opposed to a criminal standard of proof. We think we ought to make that clear, not just so that the public know, but so that law enforcers and the public authorities know.
The Bill provides that a criminal behaviour order may be imposed if the court considers it “will help in preventing” anti-social behaviour. The Joint Committee on Human Rights does not consider this to be an appropriate or clear legislative test and we recommend that it is amended. As with the previous section, we consider that the broad and open-ended definition of the prohibitions and positive requirements that may be included in a criminal behaviour order do not satisfy the requirement of legal certainty, and we recommend to colleagues and to Government that the Bill be amended to achieve greater certainty.
Amendment 167 inserts after “satisfied” the words
“according to the criminal standard of proof”
in clause 21.
Amendment 168 would replace the words “help in preventing” with the single word “prevent”. Deciding whether something will help in preventing some behaviour gets us into rather esoteric territory and does not provide as clear a standard of proof as we would wish.
Amendment 169 is the same as an amendment we suggested to part 1, and would mean that instead of using the words “doing anything” to describe the actions, “specified actions” would have to be set out.
Amendment 170 is also similar to one of our amendments to part 1, and would ensure that the criminal behaviour orders
“relate to the anti-social behaviour which the respondent has engaged in”.
That would mean that there was a link between the activity and the public response.
Amendment 171 is a further amendment to clause 21 to make it is slightly more specific and, again, uses the phrase “specified actions” rather than “anything”. Amendment 172 makes the same change as amendment 170 a little further on, ensuring that the order relates to the antisocial behaviour in question.
Amendment 173 would leave out line 3 on page 12, which contains the same qualification as earlier about religious beliefs. The amendment would mean that the absolute right to religious beliefs would not be qualified when prohibitions and requirements in a criminal behaviour order were being considered by the authorities. We are trying to ensure that parts 1 and 2 are consistent and we hope that the Government will be positive about that.
Amendments 174 and 175 would add the following sentence, which reflects the principle I set out at the beginning of my speech, to the end of clauses 22 and 29:
“The courts must take into account the best interests of the child as a primary consideration when determining reporting of a child’s case.”
We are seeking to ensure that the duty of the court is on the face of the Bill.
Amendment 176, the last in the group, applies to clause 34, which can be found on pages 19 and 20 of the Bill. Its last subsection states:
“A constable may not give a direction to a person under section 33 if the person is one of a group of persons who are—
(a) engaged in conduct that is lawful under section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992 (peaceful picketing), or
(b) taking part in a public procession of the kind mentioned in subsection (1) of section 11 of the Public Order Act 1986 in respect of which…written notice has been given…or…written notice is not required”—
that is, a lawful public procession. We think that, after that, a provision should be included so that a police officer cannot give a direction if people are engaging in any other lawful form of public assembly. There are public assemblies that are not marches or picketing but that are perfectly lawful, and we do not think that they should be interfered with under the powers in the Bill. I hope that my civil libertarian colleagues on both sides of the House will fully support that.
That is part 3 dealt with, which leaves only part 5. It deals with the recovery of possession on riot-related antisocial behaviour grounds. The Committee’s view is simply put:
“While we recognise the seriousness of riot-related offences, we are not persuaded by the Government’s justification for the new discretionary ground of possession for riot-related anti-social behaviour. We are concerned about its potential serious implications for family members, and consider that it may disproportionately affect women and children. We also consider that it amounts to a punishment rather than a genuine means of preventing harm to others. We therefore recommend that this provision is removed from the Bill.”
Let me pause and say that I am conscious that that area is controversial. The controversy arose in my constituency a year and a bit ago, in the summer, when we had “riots” on the streets of Southwark and—not to a huge degree, but to some degree—on the Walworth road and in Peckham. Other cities in Britain as well as other parts of London were affected by riots. The question is how we deal with those who are caught rioting. The issue that was the subject of widespread discussion was whether it is right to take away a home when one of the people living there has been involved in rioting. Is it right that a 15 or 17-year-old youngster living in a council property in Lewes, Cambridge, Southwark, Kingston-upon-Hull or anywhere else, should have their home taken away?
Mr Steve Reed (Croydon North) (Lab)
Let me start by paying tribute to my hon. Friend the Member for Ashfield (Gloria De Piero) for the way in which she ably steered this Bill through Committee on behalf of the Opposition and for her work more generally as part of our shadow Home Office team before her well-deserved promotion last week. I also welcome the Minister to his new role and, along with my colleagues, I look forward to debating these important issues with him.
Antisocial behaviour orders have been the cornerstone of the fight against antisocial behaviour since Labour came to power in 1997. In that year, the previous Tory Government had failed to address a problem that blighted communities up and down the country, from suburban lanes to inner-city estates, for which people were long overdue a Government response.
ASBOs are a tough, fair and proportionate last response to persistent perpetrators of antisocial behaviour. They require a criminal burden of proof to be brought in, they are a last resort where other interventions have failed and they work because they are backed by the threat of criminal sanction. In seeking to repeal the legislation that brought in ASBOs, the Government are taking a retrograde and misguided step that will not be welcomed by the communities that live in fear of antisocial behaviour and that have come to know that the police have the power to take tough action backed by criminal sanctions if necessary.
In the Government’s most recent crime survey, 80% of respondents said they believed that antisocial behaviour was increasing under this Government since the general election. One third of respondents said that they had either been a victim of, or witness to, antisocial behaviour. They will be wondering why the Government have chosen to respond to people’s concerns not by toughening the legislation or by empowering the police to take action, but by going soft, taking away the threat of criminal sanction, taking police off the beat to attend training on new and weaker powers of response, and requiring the new injunctions to be taken out not in magistrates courts, which would mean they could be dealt with quickly and efficiently, but in county courts, which are slow and overburdened. Amendment 96 seeks not to prevent the Government from introducing injunctions to prevent nuisance and annoyance—they could be a useful alternative for the police to consider using—but to keep ASBOs on the statute book, leaving it to local councils and police forces to decide what best suits their local areas and needs.
I speak from experience. Before the people of Croydon North elected me to the House last November, I spent nearly seven years as leader of Lambeth council in south London. When Labour won power there in 2006, we found that the Tory-Lib Dem coalition had spent the previous three years stalling ASBOs on ideological grounds. One year, it issued none at all. As a consequence, antisocial behaviour remained too high, without sanction. Young people drifted from antisocial behaviour to low-level crime, and then to high-level crime, including street robberies. Gang violence rose. The fear of crime and the perception that local streets were simply not safe became endemic.
One of the first things the Labour-led council did on taking power was clamp down on antisocial behaviour. Issuing ASBOs, working closely with the police, was a key part of the response.
Kelvin Hopkins (Luton North) (Lab)
I congratulate my hon. Friend on his appointment. Conservatives and Liberal Democrats represent areas that are much more prosperous; Labour MPs typically represent by and large urban constituencies, with disadvantaged communities. Is it not the case that ASBOs are much more relevant to the constituencies that Labour Members represent?
Mr Reed
My hon. Friend makes an interesting point, but antisocial behaviour can happen in any community. Government Members ought to listen to the people they represent, who do not wish to see them watering down the responses and toolkit available to tackle antisocial behaviour.
To refer again to my experience, Lambeth council increased the use of ASBOs to achieve a reduction in antisocial behaviour not for the slogans or press releases, or to try to look tough, but because it was needed to get a grip of our streets and return confidence to the law-abiding majority of residents. Government Members cannot tell me that ASBOs do not work because I saw how crime fell when a newly elected Labour council worked alongside the police to use ASBOs to great effect in making our streets and our communities safe again.
ASBOs work in part because they are backed by a criminal sanction. Breaching an ASBO is not something to be taken lightly—it is a criminal offence. Persistent antisocial behaviour is deeply damaging to local communities, and people expect effective sanctions. With Labour’s ASBOs, that is exactly what they got. Instead, the Government propose to take away the criminal sanction. Offenders can breach IPNAs in the full knowledge that they are not committing a crime. If the police or local councils want action taken against someone who has breached their IPNA and who is terrorising a local community, they will not get support from the criminal justice system. There is no automatic penalty. Instead, the breach of an IPNA will lead to the potential of civil action brought under the contempt of court proceedings. Offenders across the country will be rejoicing that the Government have gone soft, while the law-abiding majority will be horrified.
The Government’s proposal is not only a weak response to antisocial behaviour, but the police and local councils will pay for it themselves. Instead of criminal proceedings being brought by the Crown Prosecution Service, the police will have to bring a civil action in the courts at their own expense.
Stephen Phillips (Sleaford and North Hykeham) (Con)
Why, if ASBOs with criminal penalties attached are so successful, do 70% to 80% of teenagers against whom they are made breach them?
Dr Huppert
The hon. Gentleman argues the case for ASBOs passionately, but I am not sure hon. Members agree that they were as effective as he suggests. Has he seen opinion polls such as the one done by Angus Reid last year? Its survey found that only 8% believe that ASBOs have been successful in curbing antisocial behaviour in the UK.
Mr Reed
That might be the hon. Gentleman’s view and that of many of his colleagues, but many in the police service and elsewhere do not share it. I do not take that view.
In abolishing ASBOs and replacing them with IPNAs, the Government are not only taking away the power of the police to clamp down effectively on antisocial behaviour, but making the police pay for any action that follows from their hugely diminished budgets. One chief inspector has said, on the record, that the costs of pursuing such action through the civil courts would be in the region of £1,500 on every occasion. Based on last year’s court figures for breaches of ASBOs, the switch to IPNAs will cost councils and police forces another £1.5 million a year. That £1.5 million will be taken from two of the hardest-hit parts of the public sector. If a 20% cut to policing was not bad enough, hitting the police with a £1.5 million additional annual bill just for doing their job in tackling antisocial behaviour is a pretty low and unwelcome blow.
As with all costs, the proposal introduces disincentives. In the Public Bill Committee’s evidence-taking sessions, the chair of the Police Federation, Steve Williams, was asked whether the cost of pursuing an IPNA breach, both in financial and staff resourcing terms, would deter the police from taking action, to which he replied:
“That is a strong possibility. Yes.”—[Official Report, Anti-social Behaviour, Crime and Policing Public Bill Committee, 18 June 2013; c. 9, Q11.]
In Committee, Government Members said that IPNAs were necessary because they, unlike ASBOs, would not lead to a criminal record. They believe that criminalising children is wrong. However, breaching an ASBO is the criminal offence, not being subject to one. I must tell Government Members who share those concerns that IPNAs have been roundly criticised for lowering the burden of proof and for their lack of proportionality. Twenty-five organisations, including Liberty, the Children’s Society and Barnardo’s, put their names to a letter to The Times criticising IPNAs for their low burden of proof, and because they do not require “any form of intent”. The letter states:
“Such ill-thought out legislation will sweep up all kinds of non-criminal and non-serious behaviour, wasting police time and clogging up the courts. It threatens to divert resources from genuinely harmful or distressing behaviour, where the police and other services should be focussed”.
Simon Hughes (Bermondsey and Old Southwark) (LD)
I warmly welcome the hon. Gentleman to his new responsibilities. I remember his days as Labour leader of Lambeth very well. I understand that he would rather keep ASBOs. If the criticism he cites from the newspaper letter is right, and if he shares it, will he support the cross-party amendments from the Joint Committee on Human Rights, which would make clear exactly what the standard of proof should be and introduce other protections?
Mr Reed
I argue that we should retain ASBOs alongside IPNAs as alternatives for the police and local councils to choose as they believe appropriate in the circumstances.
The IPNA will be available whenever behaviour is found to be likely to cause nuisance or annoyance. I can give examples from my constituency of Croydon North. I have received complaints from residents about children playing and making a noise in the street. They are at liberty to raise their grievances, but there is a question of proportionality. Under the Government’s proposals, we could be left in the farcical situation that children get handed down a court order for playing, while the hardened offender gets let off the hook with no sanction. It is a perverse and muddled policy from Ministers.
Tracey Crouch (Chatham and Aylesford) (Con)
I welcome my hon. Friend the Minister to his new position and I look forward to working with him in the future on some key issues.
Government amendment 4 would replace the amendments to the Bill that I tabled and that were passed in Committee. I am grateful for Opposition support for the amendments and for the support of my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) and the Under-Secretary of State for Justice, my hon. Friend the Member for North West Cambridgeshire (Mr Vara). It is important to set out in context the reasons why I pressed those amendments to a vote in Committee and the background to the issue.
When we came to discuss the issue of antisocial behaviour and the new injunctions, it was clear that this was a perfect opportunity to talk about the vitally important issue of bullying. It is a key issue for many children and their parents. The statistics speak for themselves. Research now shows that one in three children have experienced bullying, with some suggesting that 70% of young people have at some point experienced some form of bullying. One million kids are being bullied every week, both in and out of school. It is one of the greatest concerns for children as they grow up and their parents. Beat Bullying research found that 44% of suicides among ten to 14-year-olds were explicitly linked to bullying, and at least 20 children every year commit suicide because they are being bullied.
I wish to pay tribute to the work of my hon. Friend the Member for Witham (Priti Patel) who, like me, has met the family of Ayden Olson, who unfortunately committed suicide as a consequence of bullying. Politicians need to take notice of such stories and try to make a difference to them.
I felt that the new injunctions were a really good opportunity to bring bullying back to the forefront of public debate, not least because in the past people have been concerned about criminalising bullies. Under previous legislation, bullying could lead to some sort of criminal sanction. The change to injunctions requiring instead a civil punishment meant this was the perfect opportunity to require them to include a positive requirement as well as the punishment of the injunction.
Priti Patel (Witham) (Con)
I am grateful to my hon. Friend for mentioning my constituent, who was involved in a horrific bullying case that led to his suicide. Does she agree that the Bill is a good opportunity to find a way in which to protect vulnerable children and to punish bullies in the right way, as in the case of my constituent that she has highlighted?
Tracey Crouch
My hon. Friend makes a very good point, and that is exactly why it is important to add to the Bill the requirements to deal with bullying. We can deal with the bullies as well as the victims, because bullies are often victims of wider bullying, perhaps at home. The positive requirements would enable all sorts of agencies to intervene at an early stage and protect not just the victims, but the bullies themselves.
Bullying is not just face to face any more. Cyber-bullying is a massive problem, and it is certainly something that Ayden experienced. We are seeing increasing numbers of cyber-bullied victims. Some 63% say that the bullying started offline and then continued online. Bullying is not the same as it was when I was at school, when it was people being mean to each other in the playground. It is now persistent bullying on and offline. That is why I am pleased that the Government accepted the need to put bullying back into the guidance on the injunctions. It was originally in the guidance on the 1999 Act that introduced ASBOs. The subsequent review of ASBOs in 2002 also included persistent bullying, but the 2006 guidance—which until recently was the current Home Office guidance—did not mention bullying. I was grateful therefore for the commitment in Committee, from the former Minister, that bullying would be included in the guidance. Having seen an early draft of that, I am content with the guidance that will be issued.
If we are including bullying within the guidance of the injunction, it is logical to give those who primarily have responsibility for dealing with bullying—mainly schools, which unfortunately retain most of the responsibility—the tools to deal with it. That is why in Committee I pressed for head teachers and principals to be given the opportunity to apply for the injunctions. That would have been a permissive power that I thought would be a logical step. Unfortunately, that view is not shared by the teaching unions, all of which I have subsequently consulted, so I am reluctantly resigned to the removal of heads and further education principals from the Bill and I accept Government amendment 4.
I hope that bullying is not taken off the agenda. I hope that it is recognised as an extremely important issue for both children and parents, and that we recognise that further steps need to be taken to protect our children. We must ensure that perpetrators of bullying are dealt with in a way that helps them in their family and in society, and that they can have the positive requirements that the injunctions will give, despite the teachers and principals not applying for them. I am pleased that the Government continue to recognise the importance of bullying by keeping it in the guidance on the injunction, but I am sad that the teachers did not feel that they wanted the power to apply for it.
John McDonnell (Hayes and Harlington) (Lab)
I support amendments 158, 176 and 177, which have been tabled by the Joint Committee on Human Rights. I am not sure that they go far enough, but they are what we have before us.
On amendment 158, my anxiety relates to the wording in clause 1. It almost legislates for pre-crimes, which became fashionable a couple of years ago. Hon. Members might recall that, at the time of the royal wedding, Dr Chris Knight and a number of his friends wished to protest against expenditure on the royal wedding. As part of a theatre group, they were going to take papier-mâché representations of the royal family to Buckingham palace on the day of the royal wedding and ceremonially guillotine them. The police arrested Dr Knight and his friends, detaining them—this was eventually legally challenged—on the basis that this was not a crime, but a pre-crime that could, at some point in the future, be designated as a crime.
The Bill, without the relatively minor amendment from the Joint Committee on Human Rights, states:
“The first condition is that the court is satisfied, on the balance of probabilities, that the respondent has engaged or threatens to engage in conduct capable of causing a nuisance”.
That is not conduct causing a nuisance and not a crime that is taking place, but a judgment that there could be a crime in the future. That is a burden of judgment placed on a police officer or others that is almost impossible to determine and will leave us open to legal challenges until the cows come home. I support the amendment because it would at least define “reasonable judgment”, with criteria brought forward when the judgment is exercised. Otherwise, we will potentially be giving officers and others—in particular, the court—extensive powers, with little evidence on which to base the exercise of those powers.
The theme of our concerns in amendment 176 is to ensure that people have the right to express their views and the right to protest. Part 1, by designating certain forms of behaviour as unacceptable, can close down, as pre-crimes, certain activities. Those activities are exemplified by the experience of Dr Chris Knight, who was simply attempting to voice an alternative view. I am grateful to Mr Matthew Varnham for pointing out, in his evidence to the Joint Committee, that, as the Bill currently stands, any spontaneous act of protest could be designated as antisocial behaviour.
Curiously enough, I met Mr Varnham on a protest in Parliament square—people with disabilities were campaigning against work capability assessments. The protest had been applied for in advance and the police had given permission for it to take place. Spontaneous acts will take place at such protests. Groups will break off spontaneously and undertake other forms of protest, because they will have been convinced by the people speaking or by the debate that has taken place that further action needs to take place. As the Bill stands, that form of spontaneous protest would be outlawed and we would be dragging people through the courts simply because they went along to listen to a speech—for example, by the right hon. Member for Bermondsey and Old Southwark (Simon Hughes)—were excited by it, and decided that they wanted to do something spontaneous to ensure that his views were echoed in the wider community. At the moment, they would be arrested. God forbid that the right hon. Gentleman would ever incite anyone in that way—not on the basis of his speeches in this place, but perhaps elsewhere.
Simon Hughes
I said that we would not press the amendments to a Division tonight so that we can hear what the Government have to say, but we are committed to the amendments and we are clear that the Bill needs to be amended in the way that we propose. We are not going to back-off. We need a better Bill.
John McDonnell
I am hoping that the relationship the right hon. Gentleman has with the Minister is so influential that accommodation can be reached on this matter. If there is not accommodation, I think the amendment will come back at a later stage, because the measure will be seen to be unacceptable. If it did go through, I think it would cause future Governments—here and elsewhere in Europe—immense difficulties as these matters are contested, because the right to free speech is being undermined, as well as the articles of human rights legislation that allow people to enjoy the freedom of being in their own home.
On that basis, I support the amendments and hope we will get a positive response to them from the Minister.
Dr Huppert
It is a pleasure to follow the hon. Member for Hayes and Harlington (John McDonnell). I agree with much of what he said, particularly about the consequences of the riots, which I shall come back to. Let me start by welcoming the Minister of State, Home Department, my hon. Friend the Member for Lewes (Norman Baker) to his new post and by congratulating him on his promotion to Minister of State. His injection of liberalism into this Department will be hugely welcome after decades in which Conservative and Labour Governments have clamped down on civil liberties and taken illiberal approaches wherever possible, playing to populism’s worst flaws. I greatly look forward to him playing his role as Minister of State in this Department.
I disagree with what the hon. Member for Croydon North (Mr Reed) said about the effectiveness of ASBOs. I do not think they were effective at all, but I do think substantial improvements can be made to the Bill. I hope this new Minister will take the opportunity to reflect on our comments and come up with something that takes them all into account.
Stephen Phillips
Whether or not ASBOs were effective originally, does my hon. Friend agree that, over time, they have become increasingly less effective? The breach rates are now so significant—up to 90% for most orders—that they have become utterly meaningless.
Dr Huppert
I agree; my hon. Friend is right that ASBOs simply do not work, so the idea of continuing them does not make much sense.
Mr Jim Cunningham (Coventry South) (Lab)
Before the 1997 election, my right hon. Friend the Member for Coventry North East (Mr Ainsworth) and I campaigned for ASBOs. We did so because when we knocked on doors in certain estates, we often found that elderly people were being terrorised by gangs. In that part of Coventry, those people used steel doors to protect themselves. That is why we need to be careful when we say that ASBOs work or do not work. It depends greatly on the local authority and the police to make ASBOs work. I do not quite buy what the hon. Gentleman said; he had better put something in place that is stronger than ASBOs. Anybody who deals with inner-city problems in Coventry, London and other places knows that people can be terrorised on estates. That is why we need to be very careful about what we do to ASBOs.
Dr Huppert
I absolutely accept that there are problems of antisocial behaviour, including in many areas of my constituency. I am sure that all hon. Members’ constituencies are affected by it. The fact that there is an antisocial behaviour problem, however, and the fact that the words “antisocial behaviour” appear in the name of the order does not mean that the one is a solution to the other. I simply do not accept that they have been a very effective mechanism. Much better approaches have been taken by a number of innovative councils. Islington, for example, has tried antisocial behaviour contracts, which have been far more successful and there has been a range of successes elsewhere.
Simplifying the toolkit available is another issue. I welcome the idea of going down from 19 powers to six, which will make it much it much easier for people to find out what the options are. That is another reason why I reject the idea of keeping ASBOs together with IPNAs—injunctions to prevent nuisance and annoyance—which seems to me to be the worst of both worlds. The Bill must be aimed at trying to prevent harm and I hope that we will be able to solve that problem, helping people to get their lives back on track by dealing with the problems, rather than basing things on mediaeval punishment and state-aided revenge.
There are some concerns about the changes to IPNAs. ASBOs dealt with behaviour in
“a manner that caused or was likely to cause harassment, alarm or distress”,
while IPNAs talk about
“conduct capable of causing nuisance or annoyance to any person”.
I certainly hope that my hon. Friend the Minister causes nuisance or annoyance to the Secretary of State; I expect that to be part of a working relationship and I am rather nervous about Secretaries of State being allowed to apply for IPNAs on this basis, if only for health-related issues. There is concern about what is meant by
“conduct capable of causing nuisance or annoyance to any person”.
I suspect we all carry that out on a regular basis or could find people whose conduct could be described in that way. That worries me, as it could be used more broadly. We heard from the Association of Chief Police Officers that IPNAs could stigmatise and criminalise young people unnecessarily, and they also tend to blur the distinction between criminal activity and nuisance.
The report from the Joint Committee on Human Rights—I commend my right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes) for his excellent speech, clarifying detailed and important amendments—says that
“the new…definition of anti-social behaviour is broad and unclear”.
I agree completely; the definition must become rather more defined.
When the Home Affairs Committee carried out pre-legislative scrutiny, we argued that there should be a test of intent or recklessness and that any action taken should be “necessary”. Something in that space is absolutely essential: whether it be through the wording used or by the introduction of a mens rea to try to offset the lower threshold to avoid hitting people with mental health issues, we need something to tighten up the definition of IPNAs without being overly broad.
My right hon. Friend was absolutely right about positive requirements. These are, in principle, very good and very helpful, but the concern was, as we heard in the Select Committee, that the councils would struggle to deliver those positive requirements in some cases. We know that the court
“must receive evidence of suitability and enforceability before a requirement is imposed”,
but not that the positive option will be available to someone. We must check that the positive requirements are doable, which I hope can be confirmed.
We have to deal with the issue of children because a huge number of these IPNAs will be issued to children. They have to be heavily involved in the resolution programme while being viewed as victims. I agree with new clause 33, sponsored by the Joint Committee on Human Rights, as the courts must take into account the best interests of the child as a primary consideration in any of these legal proceedings. I hope that the Minister will focus particularly on that.
Simon Hughes
Sometimes, of course, the best interest of the child is to have discipline from outside the family. It is not a one-way street that says that the best interest of the child is always a soft option; it may sometimes be a tougher option when the family is not up to the job.
Dr Huppert
My right hon. Friend is absolutely right, highlighting why it is important to have this provision.
Since I first saw the Bill in its pre-legislative form in the Home Affairs Committee, I have been extremely concerned about clause 17. This disapplies section 49 of the Children and Young Persons Act 1933 for both IPNAs and CBOs. It disallows the rules that say that children should not be named and shamed publicly. We should all be extremely alarmed about that because children make errors. They may do something very silly when they are 14. Particularly in today’s age when data is freely available, what they have done could stay with them for the rest of their lives, and there is very little that anybody could do to stop that. That makes it hard for them to rehabilitate, to grow up and to become someone who regrets what they did when they were 14, as so many people will do.
I have heard the Government comment that the intention is to apply this only in rare circumstances, so that judges would not automatically name and shame young people, but do so only where it was an essential part of the order. The guidance must be absolutely crystal clear on this—on minimising the naming and shaming. This should be disapplied only where it is necessary to do so rather than applying it willy-nilly. Otherwise we will breach the UN convention on the rights of the child and a lot of other provisions.
On dispersal powers, my right hon. Friend the Member for Bermondsey and Old Southwark said that in response to the Select Committee report the Government have protected peaceful picketing and public processions, but I think it would be good to go even further to ensure that we do not prevent peaceful protest when we deal with antisocial behaviour. I agree with the amendment on that.
Lastly, I agree with the comments made by my right hon. Friend and the hon. Member for Hayes and Harlington about clause 91, which deals with riot-related offences. These have arisen from the time of the riots and the Prime Minister’s reaction to them. Now, however, we have calmed down and recovered from those awful events, so it is time to reflect on whether we need this special sanction. As right hon. and hon. Members have said, these provisions deal with a situation for which solutions are already available, so we do need to deal with the problem in the way proposed. The JCHR’s report says that it recognises
“the seriousness of riot-related offences”,
but questions whether we need a special rule for riot-related antisocial behaviour, because it looks like
“a punishment rather than a genuine means of preventing harm”.
I therefore hope that the Government will reflect on whether the clause is still needed.
Overall, the Bill has been improved, but I hope it can be improved even further. I am very excited at the role that my hon. Friend the Minister will be able to play. I look forward to hearing his response to the amendments, which I hope, in the fullness of time, he will be able to recommend.
Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)
I agree with what the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) and the hon. Member for Hayes and Harlington (John McDonnell) said about amendment 158, and indeed about other amendments. Objectivity is vital. In the absence of objectivity, the police officer will be judge and jury, deciding everything on the spot, and—with the best will in the world—in a difficult, fraught situation on a busy Saturday night, things could go badly wrong. If we do not bring some objectivity to bear, we shall be on a very dangerous and slippery slope. I hope that the Government will consider this reasonable amendment.
Stephen Phillips
I intend to speak to the amendments for which I am at least in part responsible, and which were necessitated by our proceedings in Committee: amendments 1, 17, 45, 46 and 39 to 41. Before I do so, however, let me welcome my hon. Friend the Minister to his new post, and congratulate him on his promotion. Let me also welcome the hon. Member for Croydon North (Mr Reed) to his place on the Front Bench. He has been in the House for only a short time, and I am sure that his promotion is well deserved. No doubt we shall see a great deal more of him in due course.
Having congratulated the hon. Gentleman, however, I am afraid that I must take issue with some of the points that he made this evening. I have to tell him that while there was a lot of hot air about Labour’s great policy of the ASBO, the truth of the matter on the streets—whether in urban or in rural Britain—has been very different. Year on year, ASBOs have been breached in increasing percentages. While the hon. Gentleman, as the former leader of Lambeth council, may well have thought that he had solved problems by securing ASBOs for those who were engaging in antisocial behaviour which was affecting people in the area, the truth is that merely securing the orders achieved precisely nothing. It was their enforcement that was important. As I am sure the Minister will tell us in his response, breach rates now stand at 70%, 80% or 90%.
Sir Peter Bottomley (Worthing West) (Con)
Drawing the attention of those on the Opposition Front Bench to the speech that my hon. and learned Friend is making may be to their advantage, as opposed to the advantage of the House. Would it be possible for them to stop talking to each other and listen to my hon. and learned Friend, who is making rather a good speech, mainly about the Opposition spokesmen themselves?
Stephen Phillips
I am grateful to my hon. Friend for his intervention, but I fear that it may be counter-productive. I thought I was having rather an easy ride, at least in terms of how my speech will read in Hansard. There has been no intervention so far from the hon. Member for Croydon North, and I suspect that there can be no intervention from him now, because he has not heard anything that I have said. Be that as it may, however, this is not Third Reading, so I shall now deal with the amendments with which the House is being troubled principally as a result of what some would describe as my intransigence in Committee.
Let me begin with amendments 1 and 17. They relate, I am afraid, to words that were inserted in the Bill as a consequence of amendments to clauses 1 and 7, which were suggested by me and were carried in Committee. Clause 1 concerns the general power to grant injunctions. Subsection (5) states:
“Prohibitions and requirements in an injunction under this section must, so far as practicable, be such as to avoid”
a list of occurrences including, for instance,
“any conflict with the respondent’s religious beliefs”.
In the form in which it was considered in Committee, the Bill made no reference to the fact that those against whom injunctions might be granted might have caring responsibilities, particularly in regard to children. Because I thought that that was an important omission, I proposed—and the Committee agreed, in circumstances that I shall describe in due course—that the court should be required to take into account
“any conflict with the respondent’s caring responsibilities including, in particular, any caring responsibilities for a child”.
That seemed to me—and still seems to me—to be particularly important. Children’s life chances are not fixed, and if an IPNA is granted against their parents, they may be significantly and substantially affected by something for which they are not responsible. In those circumstances, it seems appropriate for the court expressly to take into account caring responsibilities, particularly caring responsibilities for children—and, perhaps, for those who suffer from disabilities. The Government’s position is, as I understand it, that those matters will be taken into account by a court under the general powers in the Bill—that is the assurance I have been given. Indeed, the draft guidance produced last week in accordance with the undertakings given to the Public Bill Committee contains wording that requires those seeking IPNAs—regard will no doubt be paid to this by courts as well—to take into account caring responsibilities.
On that basis, and although the decision has not been easy, I am not minded to oppose the Government’s desire to remove my first attempt at legislation in this House, successful as it was, because the Committee did not divide on the amendment I was proposing to clause 1. My amendment was accepted by the Minister who was then in charge, although there was a reservation when the “like” amendment was proposed to clause 27 that the Government reserved the right to come back to this matter on Report, as they have now done. Be that as it may, I am not going to take further the point that the Committee did not divide. The simple fact is—the Minister needs to make this clear from the Dispatch Box, so that it is clear to courts in due course—the one matter that has to be taken into account when an injunction is granted are the caring responsibilities of those against whom it is to be granted. That addresses amendments 1 and 17.
Government amendments 45 and 46 relate to clause 93 —we are see-sawing around a lot because of how the amendments have been grouped—which deals with community remedies and the community remedy document. As the House will know, every Member having read the Bill in detail, that is a list of community remedies—punishments, if one prefers—that can be handed out, which is drafted by a local policing body. Before it came into Committee, the Bill provided no guidance as to what that document might contain. As I pointed out in Committee, it might have provided that one punishment or remedy that could be handed out was to place someone in the stocks for two or three hours and have oranges hurled at them. Many of our constituents would doubtless think that a very sensible community remedy to be contained in a list of punishments or remedies that might be handed out to those guilty of antisocial behaviour. Obviously, the police and crime commissioners who gave evidence to the Public Bill Committee indicated that some form of guidance would be both desirable and necessary, and that has been taken on board by the Government. I tabled, but did not move, a probing amendment in Committee and it has been picked up by the Government, in that they have tabled amendments 45 and 46 to deal with the possible problem that one might have ended up with rogue and inappropriate remedies. Those measures therefore have my full support and I hope they will also have the support of the House.
I do not wish to detain the House for too long, but I wish to discuss amendments 39 and 40, which relate to clauses 70 and 73 and the time within which those who obtain orders must return to court. The Bill specifies a relatively short period—no doubt the Minister knows precisely what it is—but for the purposes of computing time no account is taken of days when the courts might be closed. I proposed to the relevant Minister somewhat longer periods, because it seemed to me that a problem might arise in respect of bank holidays and public holidays, as the courts would not be able to deal with these matters sufficiently quickly to enable the time limits to be complied with. Some of that has been taken into account, because the Government now propose that Christmas day will be removed from the period of calculation in these clauses, but there remains a difficulty with which the Minister needs to grapple.
I wrote to the Minister for Policing and Criminal Justice and it was suggested that specifying Christmas day was sufficient in this regard, but what about Easter? As we know, it consists of two public holidays, Good Friday and Easter Monday, so we are talking about a four-day period. The Home Office’s response has been, “The courts are able to deal with this because they may open over the weekend.” The Minister needs to reassure the House that that is the position and that there is therefore enough time over the Easter holiday, in particular, for these orders to be dealt with appropriately and for the Bill’s time limits to be addressed.
Government amendment 41 would alter clause 81, which deals with the recovery of costs against the owner of premises where an order is made—I have forgotten which part of the Bill this relates to, but the Minister will doubtless remind me. The Government’s point is that where such an order is made—for example, against a nightclub—the police should be able to recover their costs, and that is absolutely right. However, as I pointed out in Committee, nightclubs or late-night premises often are not owned by the people who occupy the premises where the nuisance occurs. For that reason, we need to include the word “occupier”, as the Government are now proposing. I am pleased that that piece of advice, which I gave for free—that is rare—was accepted. The amendment is therefore sensible and I hope it will command support across the House.
Mark Field (Cities of London and Westminster) (Con)
I thank my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) for welcoming me in that way.
I wish to put on the record a few of my concerns about the Bill’s impact on the ability of inner-city local authorities to deal with particular instances of antisocial behaviour; I know that the Minister has been informed about them by the redoubtable cabinet member, Nickie Aiken, from Westminster city council. I shall raise two main areas of concern, to which I would appreciate the Minister giving consideration, and one specific amendment, which I suspect will have to be moved in another place in due course.
First, on powers of arrest and direct access to the criminal justice system, criminal injunctions are, as we all know, more effective than civil injunctions in reducing high-level antisocial behaviour, which damages communities and harms the reputation of central London. The Bill proposes to replace ASBOs on application and ASBOs on conviction with IPNAs and criminal behaviour orders—CBOs—respectively. Breaching a CBO will automatically be a criminal offence, whereas breaching an IPNA will not. Local authorities will be able to apply for an IPNA, but will not be able to apply for a CBO. Therefore, local authorities such as Westminster city council—in a former life this would have applied to the shadow Minister in his role at the London borough of Lambeth—will no longer be able to apply directly for any order or injunction on antisocial individuals or groups that would lead to criminal proceedings in the event of a breach. Instead, local authorities, housing associations, Transport for London and even police chiefs will have to apply separately for an IPNA arrest warrant. Alternatively, local authorities will have to negotiate on a case-by-case basis with the Crown Prosecution Service, which I fear will be operating with increasingly limited resources and capabilities, to place CBOs on antisocial individuals.
Mr Steve Reed
At a time when the police have had to suffer a 20% cut in funding, is it appropriate to expect them to shoulder the additional burden of £1.5 million per annum in pursuing breaches of IPNAs?
Mark Field
I certainly do not think the figures to which the hon. Gentleman refers reflect the cuts at ground floor level in the work that can be done by our local police. However, all of us appreciate that we are living in financially constrained times and will be doing so for many years to come. Where I suspect I share some of the concerns that he has expressed, not just tonight but during the passage of this Bill, is about a severe weakening of the ability of local authorities, in conjunction with the police, to deal with elements of antisocial behaviour.
Simon Hughes
I and a former leader of Lambeth council and others have dealt with these issues for a long time. I have heard the hon. Gentleman’s criticism, I understand it and it will be made from experience. I hope he will tell us what he and Westminster city council cabinet members and officers think might be the right answer. None of us has a perfect solution. We are all trying to find the best combination of tools to have in the box.
Mark Field
Naturally, I will try to be constructive. I wholly agree that the lower level nuisance and annoyance behaviour covered by an IPNA does not always warrant the threat of criminal prosecution, which perhaps happened in the past with ASBOs. Among the concerns expressed earlier was that elements of those ASBOs were not being properly enforced. We should rightly look to avoid criminalising the country’s youth wherever possible, but in practice the specific problems that we face with, for example, the very professional, aggressive begging on the streets of Westminster, literally within yards of where we are all sitting tonight, can currently be tackled only through the use of ASBOs on application. We rely heavily on the genuine threat of arrest to protect victims and to deter professional aggressive beggars, who are completely different from the 16-year-old who has got into trouble by graffitiing a bus-stop, for example. We lose that threat under the new proposals.
I want also to speak briefly about the antisocial behaviour committed by people with no fixed UK address. From the experience in Westminster city council area, but also in the City of London area that I represent, I know that tackling antisocial behaviour often involves dealing with organised aggressive begging gangs from across the EU. I fear that we will hear a lot more of this in the months to come. Some individuals travel to the UK in large numbers, with the sole intention of doing a short, but profitable begging stint before returning to their home. These people enter the UK according to their rights as EU citizens, and cannot currently be deported unless they remain in the country for longer than three months or commit a criminal offence. While they are in the UK, and particularly while they are here in central London, they have no fixed address and are completely transient in nature, with many sleeping rough.
Where we have previously dealt with such individuals through ASBOs on application, under the IPNA system the local authority will be able to apply for an arrest warrant only after a breach has occurred, by which time the individual in question may well have left the country, entirely unchallenged, to return at a future date. These people are deliberately off the grid, and we must have some legislation in place that closes this potential loophole and does not actively encourage the gaming of the system.
Stephen Phillips
My hon. Friend raises an extremely important point, to which I hope the Minister will respond. Might provisions in other statutes be used, under which, where a crime had been committed, people could be deported without an ASBO having to be made against them?
Mark Field
I cannot use ignorance of the law as an excuse, but my hon. and learned Friend knows considerably more about these matters than I do. He makes a relevant point, which is that we do not necessarily have to go entirely down that route. The ASBO legislation and this concurrent legislation is designed to look at the whole issue of antisocial behaviour in a constructive and codified way. The problems to which I have referred apply not simply to the City of Westminster, Southwark or inner-London boroughs. Increasingly, it will become apparent in places such as Manchester, Leeds and Birmingham, so we should look at it fairly urgently. Without being overly negative about the potential open-door arrival of a significant number of people from Romania and Bulgaria, there is no doubt that some of the specific problems in central London in recent months have come disproportionately from groups who have already come to this country from those other EU states. We need to ensure that local authorities are given a chance to take action. As such, I feel strongly that the Bill should be amended better to reflect the circumstances that affect inner-city areas, recognise the particular challenges that are faced in the UK’s major cities and specifically enable a court to grant IPNAs with automatic powers of arrest in a wider variety of circumstances.
This matter will have to be dealt with in amendments in another place. To answer directly the question put by the right hon. Member for Bermondsey and Old Southwark (Simon Hughes), I hope that we will have a further amendment to clause 3 to add an additional subsection applicable only in major city centres or other designated areas, which varies the conditions under which a power of arrest attachment can be made to include wording such as “deliberately organised antisocial behaviour”. That will have to be dealt with in our further deliberations on the Bill.
I take this opportunity, Mr Deputy Speaker, to thank you for allowing me to make a brief contribution. I accept that the Minister is aware of some of the specific concerns for Westminster, but I also very much accept that he may wish to deal with this in writing rather than going into it in great detail this evening.
The Minister of State, Home Department (Norman Baker)
May I take the opportunity of my first outing in my new capacity to thank Members on both sides of the House for their good wishes and congratulations. I am deeply grateful for the support that has been shown across the House over the last week following my appointment. I look forward to working constructively with Members on both sides of the House as we take this agenda forward.
I am also delighted to see my predecessor, my hon. Friend the Member for Taunton Deane (Mr Browne), in the Chamber. I pay tribute to him for the significant work that he has done as a Home Office Minister. His attention to detail and his commitment have been exemplary, and I look forward to trying to emulate that in my role. I also welcome the hon. Member for Croydon North (Mr Reed) to his new role on behalf of the official Opposition.
I will now deal with the various Government new clauses and amendments. Overwhelmingly, they follow up points raised in Committee, which is a testament to the effectiveness of the scrutiny the Bill underwent upstairs. There are a number of drafting and technical amendments in this large group. So as not to delay the House unduly, I will focus my remarks on the amendments of substance.
The injunction to prevent nuisance and annoyance and the criminal behaviour order are important new powers to deal with individuals who commit antisocial behaviour. Courts will be able to use them both to prevent certain behaviour and to require positive actions—for example, addressing a drug or alcohol problem that is an underlying cause of an individual’s antisocial behaviour.
The Committee agreed non-Government amendments tabled by my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) to clauses 1 and 21. These would require a court to avoid any conflict with a person’s caring responsibilities when attaching such conditions. This would be in addition to the duties that were already in the Bill, to ensure that conditions are suitable and enforceable and, so far as practicable, to avoid conflicting with a person’s religious beliefs, work, educational commitments or any other court order imposed on them. As my hon. Friend the Member for Taunton Deane said in Committee, we always expected courts to take account of caring responsibilities, which are clearly a relevant factor in ensuring that conditions are suitable and enforceable, and I repeat that for the benefit of the House.
There is a concern that references to caring responsibilities might weaken the new powers in practice. A number of the agencies that would use and enforce injunctions and orders tell us that there is a real danger that specifically including caring responsibilities in the Bill would make it more difficult to secure appropriate conditions, and that is not in the interests of the victims that these injunctions are designed to protect. I can assure my hon. and learned Friend that we do expect these matters to be taken into account by courts considering injunctions as they relate to caring responsibilities.
My right hon. Friend the Member for Southwark and Bermondsey—I think he has gained a north somewhere; Bermondsey North and Southwark—asked why the words on religious belief were qualified with the phrase “as far as practicable”. I am advised that it is similar to the right to manifest one’s religion set out in article 9 of the convention. The right is qualified and can be limited where necessary and proportionate. For example, it is not necessary for someone who professes to be a Christian to attend church every single day. I hope that is helpful and answers his point.
The Committee also agreed an amendment to clause 4, tabled by my hon. Friend the Member for Chatham and Aylesford (Tracey Crouch), to add head teachers and principals of further education colleges to the list of persons who can apply to a court for an injunction. The intention was to tackle bullying in schools and colleges. I agree that it is vital that powers are in place to address that problem, which blights the lives of too many young people, but we need to get the detail right. She rightly referred to the consultation that has taken place and the responses to it, and I am grateful for her analysis and her decision on how to proceed. However, I want to assure her that we have drafted guidance to explain how the injunction could be used to address bullying, with the help of front-line professionals and the BeatBullying organisation, which has advised us on the matter. I entirely accept her point about online bullying, a matter I was considering only this afternoon in the Home Office. I can assure her that, as far as I am concerned, bullying will not be taken off the agenda.
Amendments 10 to 15 to clause 12 relate to the power to exclude the subject of an injunction from their home. As I have said, the Bill provides for prohibitions to be attached to an injunction. In extreme cases where the antisocial behaviour has involved actual violence or the threat of violence against another person, or where there is a significant risk of harm, someone can be excluded from their home, but only if they live in social housing.
Simon Hughes
My hon. Friend has said that his amendments deal with an issue that was clearly controversial: the ability to deal with social housing tenants but not others and the need for a level playing field. I hope that he will not forget to deal with amendment 166 from the Joint Committee on Human Rights, which would add some additional requirements, and that he might be persuaded that they are useful additions.
Norman Baker
My right hon. Friend is as eager as he was when he first arrived in this House many years ago. If he will allow me, I will get to the Committee and the amendments he referred to in his opening remarks in due course.
Another important issue raised in Committee relates to the application of the new powers in relation to antisocial behaviour in or around a respondent’s home, this time in relation to the criminal behaviour order. The first condition that must be met before a criminal behaviour order can be made is that the court is satisfied that the offender has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as the offender. In Committee the right hon. Member for Delyn (Mr Hanson) tabled an amendment to remove that limitation. My right hon. Friend the Minister for Policing and Criminal Justice made it clear at the time that the criminal behaviour order is not intended as a tool for tackling domestic violence, as other more suitable powers are available for that, and that remains the case. However, having considered the matter further, we recognise that there might be cases where antisocial behaviour is inflicted by one member of a multi-occupancy household on another and where the flexibility to apply for such an order could be helpful. Amendment 16 therefore removes that limitation.
I turn now to the amendments to clause 93, which relate to the community remedy. That welcome initiative gives victims of low-level crime and antisocial behaviour a say in the punishment of offenders out of court. Police and crime commissioners will work with the public and chief constables to compile a menu of out-of-court sanctions that can be used in appropriate cases following consultation with the victim. At the heart of the community remedy is our commitment to empowering victims and communities to say what is right for them. I do not think that that will include use of the stocks, which was referred to earlier.
We have brought forward amendments 45 to 48, which have three elements. The first two will put on the face of the Bill what had always been our expectation: the actions included in the community remedy document must promote public confidence in the use of out-of-court disposals and include an element that is punitive, restorative or rehabilitative. The third change is a power for the Secretary of State to issue guidance to which police and crime commissioners must have regard when preparing a community remedy document. A draft of that forms part of the document for practitioners, which we published last week.
The other Government amendments in the group are largely technical in nature, and I have placed a detailed letter in the Library. I commend the Government amendments to parts 1 to 6 of the Bill to the House.
I turn now to amendment 96, tabled by the shadow Home Secretary and spoken to today by the hon. Member for Croydon North. I am firmly of the view that antisocial behaviour still ruins too many lives and damages too many communities. There are, of course, problems in our inner cities, but there are also problems in our smaller towns, and that concerns all Members of this House.
Up to March 2013, 2.3 million incidents of antisocial behaviour were reported to the police and we know other incidents were reported to councils and social landlords. The previous Government tried—genuinely, I think—to address the problem, but after more than 10 pieces of legislation introduced before 2010 we have been left with a mishmash of powers that is confusing for the public and for the professionals who have to use them, and that is less and less effective. The antisocial behaviour order may have worked well in individual circumstances, but overall it has not worked well. Such orders are too often seen as a badge of honour and, as has been said, over 50% of them have been breached at least once and just over 40% have been breached more than once. Also, the number of orders issued has been falling year on year. People are losing confidence in ASBOs.
Mr Steve Reed
Why are the Government seeking to decriminalise antisocial behaviour when 80% of the public feel it is on the rise? How does that help?
Norman Baker
I will come on to the powers we are introducing, but the hon. Gentleman spent a lot of his contribution talking about the injunction to prevent nuisance and annoyance, which is one of the tools we are proposing, but we are also proposing a criminal behaviour order, a breach of which is a criminal offence. The CBO is in some ways most akin to the ASBO we are seeking to replace, the injunction being an extra tool.
I know Members on the Opposition Benches are still wedded to ASBOs, despite the evidence, but by any reasonable assessment the statistics show it has been increasingly failing. I want a system that is more effective at tackling antisocial behaviour and has the confidence of the professionals who use it. We know that agencies such as the police, local councils and social landlords are working hard to protect victims and stop antisocial behaviour, but they need the right powers to do this. That is why we are replacing the existing powers with six streamlined, more flexible, quicker and more effective ones to protect the public better.
Mr Reed
The Minister talked about trusting the police and local councils and adding more tools to their armoury, so instead of abolishing ASBOs why does he not leave them on the statute book so that police and councils can choose whether it is appropriate to use them or IPNAs, or any of the other tools the Government are providing in this Bill?
Norman Baker
First, ASBOs have been increasingly ineffective and have become a badge of honour in some cases; secondly, we want to streamline the powers so they are clear; and, thirdly, we want to use powers that are quick and efficient and that do the job, which is what Members on both sides of the Chamber want: we all want a swift reduction in antisocial behaviour.
As I have said, the main replacements for the ASBO are the injunction under part 1 of the Bill and the criminal behaviour order under part 2. In drawing comparisons with the ASBO, they should be seen together, rather than be taken individually. The injunction is a purely civil remedy. That means it has a lower test than the ASBO on application, coupled with the lower civil standard of proof, so it will be quicker to obtain than the existing order. Front-line professionals will be able to use it as a preventive measure to nip emerging problems in the bud before they escalate into something more serious—which I think is good news for victims— but, crucially, the court could also include “positive requirements” in the order. That is missing from the ASBO arrangements; indeed, that is one of their major flaws. That has meant the focus has been on stopping the behaviour, but not on getting individuals to deal with the underlying drivers of their behaviour. If we are to prevent reoccurrences of bad behaviour, it is very important we address that.
Unlike for the ASBO, breach of the IPNA will not be a criminal offence. This means there is no risk of criminalising under-18s. It will also help to reduce the burden on the police and others in gathering and providing evidence. That does not mean that the injunction has no teeth if it is breached: it does. Adults can be imprisoned for up to two years for breaching the terms of the IPNA, and the court can detain an under-18 if it thinks that, due to the severity or extent of the breach, no other power available to the court is appropriate.
We must not look at the injunction in isolation. It is complemented by the CBO, which will be available to deal with the most serious antisocial behaviour. Breach of a CBO will be a criminal offence with a maximum sentence of five years in prison. That is the same sanction as is available for the breach of an ASBO, but the CBO will be more effective than the ASBO because, like the injunction, it can have positive requirements attached to it to help the offender turn their life around.
These reforms are about putting the victim first and providing streamlined, effective powers for enforcement agencies to do just that. Amendment 96 seeks to retain a discredited regime that has left people across the country suffering from antisocial behaviour. I therefore hope, perhaps optimistically, that the hon. Gentleman will withdraw his amendment in due course.
Norman Baker
If the hon. Gentleman is going to withdraw it, I will gladly give way.
Mr Reed
I am not planning to withdraw it. I wonder whether the Minister is dismissing out of hand the views of the organisations that wrote a letter to The Times saying that this is “Ill-thought-out legislation” that will waste police time and clog up the courts. The signatories to that letter include the Standing Committee on Youth Justice, Barnardo’s, Liberty, the National Council for Voluntary Youth Services, JUSTICE, the Children’s Society, the Howard League for Penal Reform, UK Youth, the Prison Reform Trust, and the Children’s Rights Alliance for England. It is disappointing to hear the Minister dismiss the legitimate concerns raised by those well-respected organisations.
Norman Baker
I am certainly not dismissing them, and they have been looked at carefully, but it is important to look at the IPNA and the criminal behaviour order in tandem rather than merely concentrate on one of them.
Stephen Phillips
Does my hon. Friend agree that rather then relying on letters from the great and the good, perhaps the best thing to do is to rely on the British people? He will no doubt remember that in 2012 Angus Reid conducted a survey in which only 80% of people said they thought that ASBOs had been effective in tackling antisocial behaviour. Is not that why we need to change the regime?
Norman Baker
That is exactly right. The shadow Minister said that the recent crime survey showed that 80% of people think that antisocial behaviour is increasing. That suggests to me that the current regime is not working and needs to be replaced by something more efficient.
Dr Huppert
The shadow Minister mentioned a list of people who have concerns about IPNAs. I think they would agree with my right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes) and I that we could look at those concerns, and I am sure that the Minister will do so. They do not support ASBOs, as he suggests; they would like to get rid of ASBOs and have an improved, more sympathetic IPNA.
Norman Baker
I am grateful for that intervention, which puts the matter on the record.
The shadow Minister expressed concern about the costs of dealing with IPNAs and the new regime that we propose to introduce. It is worth quoting the chief constable of Thames Valley police, Sarah Thornton, who said:
“So in terms of improving the effectiveness, yes we are going to have to train officers, but I think that is worthwhile…If there is a bit of additional training cost, it really would be well worth it in terms of additional effectiveness in tackling anti-social behaviour locally.”
In other words, the relatively modest amount spent on training on IPNAs will more than repay itself in terms of the results that accrue. It is also worth pointing out that ASBOs were not without their costs either; it would be foolish to think that they were. A cost was involved in dealing with breaches of ASBOs just as there is with anything else. If I remember correctly, the shadow Minister quoted a cost of £1.5 million for breaches of IPNAs—allegedly; I am not quite sure where that figure comes from—but ASBO breaches cost money as well. If he wants to make a fair comparison, he ought to include that in his assessment.
Let me turn to the amendments tabled by my right hon. Friend the Member for Southwark North and Bermondsey—[Interruption.] I am sorry—Bermondsey North and Southwark. I want to call it Southwark and Bermondsey because that it is what it was for so many years. Anyway, I mean my very old friend who moved the amendments. His amendments and those of the hon. Member for Aberavon (Dr Francis) pick up a number of points raised by the Joint Committee on Human Rights, which is of course a very important Committee of this House. I am grateful to the Committee for its detailed scrutiny of the Bill. Taken together, the amendments would introduce additional requirements that professionals and the courts would have to meet in order to use the new powers. While I agree that we must ensure that appropriate safeguards are in place, I believe that those are already built into the Bill and fear that the Committee’s amendments would lose some of the benefits of our reforms in streamlining powers and processes to help victims and empower front-line professionals.
New clause 33 is concerned with the use of injunctions in cases involving children and seeks to place in the Bill a requirement that the interests of the child are treated as a primary consideration when imposing an injunction, any associated conditions or sanctions for a breach. In shaping our reforms, we have, naturally, carefully considered the needs and rights of young people, which are important, so that we get the right balance between enforcement and helping those who commit antisocial behaviour to turn their lives around. I am a little concerned, to be honest, about the use of the word “primary” in new clause 33 with regard to setting that balance.
John McDonnell
I wonder whether the Minister could re-read the script that he has just read. He spoke about an individual having
“engaged or threatened to engage in conduct causing nuisance or annoyance”.
The wording in the clause is
“conduct capable of causing nuisance or annoyance”.
That is the problem. That is where judgment enters into it. That is why amendment 158 was tabled. It would put the emphasis on reasonableness in that judgment.
Norman Baker
I understand entirely the point that the hon. Gentleman is making. I make no promises, but I have a lot of time for his analysis of the legislation and will consider the point carefully.
I will turn to the amendments that my right hon. Friend has tabled to clause 12, which sets out the limited circumstances in which an injunction may exclude someone from their own home. I agree that the courts must consider whether it is necessary and proportionate to exclude someone from their home, regardless of whether they live in social housing, rent privately or own their own home. However, I am not persuaded that those principles need to be included in the Bill.
We have made it clear in the guidance that not only do we expect that the exclusion power will be used only rarely, but that the court will pay special attention to whether it is proportionate to use the power, taking into account the individual’s article 8 rights. As such, applications should be made only in exceptional cases that meet the high threshold set out in clause 12—that is, where there is a threat of violence or a significant risk of harm.
Several of my right hon. Friend’s amendments to clause 21, which provides for the criminal behaviour order, are similar to those that he tabled in respect of the injunction and are unnecessary for the same reasons. The draft guidance to the Bill makes it clear that we expect that the courts will follow existing case law from the House of Lords in relation to antisocial behaviour orders and that they will apply the criminal standard to criminal behaviour orders. The amendments to clause 21 are therefore unnecessary.
My right hon. Friend has also tabled an amendment to the new dispersal power to explicitly exempt all peaceful assemblies from its use. I agree that that is an important point, but I would argue that the safeguards that we have built into the legislation will ensure that the dispersal power is used proportionately, while maintaining the flexibility to allow the police to act quickly to protect victims and communities from antisocial behaviour. Where behaviour is lawful and is not causing harassment, alarm or distress, the test for using the dispersal power will not be met. Mere presence in an area is not itself a ground for dispersal, so the power could not be used. The test will be met only if someone’s behaviour is causing or is likely to cause harassment, alarm or distress to members of the public, or crime or disorder in the locality.
Simon Hughes
The hon. Member for Hayes and Harlington (John McDonnell) and I both raised that last matter. I understand my hon. Friend’s argument, but I do not see how it is logical to protect picketing and processions in the Bill, as was done in Committee, but not the general right of free assembly. I do not think that the Bill should say that one can do certain things and not face a dispersal order, but not make it clear that one can do other lawful things without facing a dispersal order.
Norman Baker
There was particular concern about processions and picketing. That is why they were singled out for mention in the Bill. I have made it plain this evening that where a behaviour is lawful and is not causing harassment, alarm or distress, the test for the use of the dispersal power will not be met. I hope that that gives my right hon. Friend the reassurance that he seeks.
Amendment 177 would remove the ability of landlords in England to seek to evict tenants when they or members of their household have been convicted of an offence at the scene of a riot anywhere in the United Kingdom. The Government believe that clause 91 sends out the strong and important message that if somebody gets involved in a riot, whether it is near their home or not, there may be consequences for their tenancy. However, Members have asked me to reflect on that matter and I will, of course, listen to the House and reflect on it without prejudice to the outcome of that reflection. We will respond fully to the report of the Joint Committee on Human Rights in due course. For now, however, I hope that my right hon. Friend will not press amendment 177 or new clause 33.
The shadow Minister and the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), who is no longer in his place, spoke about amendment 82, which is a consequential amendment to the Government of Wales Act 2006. Provisions on antisocial behaviour orders are among the exceptions to the legislative competence of the National Assembly for Wales in respect of local government matters. Amendment 82 simply updates that exception to recognise the abolition of the ASBO, thus preserving the status quo with regard to the Assembly’s competence. The UK Government is firmly of the view that amendment 82 is purely consequential upon the abolition of antisocial behaviour orders, so a consent motion is not required. It is also difficult to wait for the outcome of the Silk commission, as a failure to amend the Government of Wales Act now would alter the legislative competence of the National Assembly. Our intention is therefore to preserve the status quo and no more.
Stephen Phillips
Is it not a difficulty, though, that even though the amendment may be intended simply to be consequential and to replace the provision relating to the ASBO, it is drawn so broadly that, as Opposition Members have pointed out, it might also have an effect in other areas in which the Assembly currently has legislative competence?
Norman Baker
The advice I am getting from officials is very clear—that this is an appropriate conclusion to reach. However, three Members have now raised that matter, and they have done so in quite strident or convinced terms, so I will write to them with a firm conclusion.
Mr Steve Reed
We are raising these issues because the Welsh Assembly Government have raised them. Perhaps, rather than driving something through after the UK Government have legal advice that is clearly different from the Welsh Assembly Government’s, the Minister will commit to speaking to the Welsh Assembly Government before taking further steps.
Norman Baker
As I understand it, we have spoken to the Welsh Assembly Government, but I think I have made a generous offer in saying that because Members have raised a constitutional point, although I believe the Government’s position is sound—that is the clear advice I am getting from officials—I will ask officials to set that down for me in writing, and I will write to the three Members who have raised the matter this evening. I think that is quite a good offer, if I may say so.
I hope that I have been helpful in responding to the amendments and new clauses that Members have tabled. I think we have a good Bill, and I commend it to the House.
Simon Hughes
I am grateful to my hon. Friend the Minister for dealing with all the new clauses and amendments—those that I moved not on my own behalf but on behalf of the Joint Committee on Human Rights; the Opposition Front Benchers’ amendment; and his own Government amendments.
For the record, first, my constituency is called Bermondsey and Old Southwark. I know that it is the fourth formulation of the name in 30 years, but none the less, we have to keep up. Secondly, the Minister is still a good friend, but for him to call me “my very old friend” was not a way to get off on the right foot. He is not that much younger than me, although I accept that there is a gap between us.
On the substance of the new clause and amendments, I am clear that we are right to say no to antisocial behaviour orders, for reasons that Members of all parties have given evidence of. We are also right, as a Government, to introduce two options—a criminal order and a civil order. I hope that when the Bill becomes law, Ministers will produce something that makes clear the benefit to youngsters of not having a criminal record, because they will not have committed a criminal offence.
In relation to certain of the new clauses and amendments, I believe that the Joint Committee and other colleagues will not want to let the matter rest. I refer particularly—I am guessing, because the Committee will form its view collectively—to new clause 33, amendments 158, 165 and 166, and, most importantly, amendments 176 and 178.
John McDonnell
The last one is amendment 177. I think the right hon. Gentleman said it was amendment 178. On amendments 176 and 177, I do not think the Minister has gone anywhere near far enough to satisfy the concerns of the Joint Committee or other Members.
Simon Hughes
The hon. Gentleman is absolutely right; I meant amendment 177, which is the highest-numbered in the group. I apologise if I said amendment 178 mistakenly. I think the Joint Committee will hold the same view as him.
I hope that my hon. Friend the Minister will realise that by not taking the opportunity of a lifetime to make concessions on the Floor of the House on Report of the first Bill for which he was responsible in the Home Office, he may have lost a reputation that could never have had a parallel. However, he has an opportunity to redeem himself and establish his credentials.
Seriously, however, some of the issues involved are important ones of civil liberties. The Joint Committee thinks so and Members from throughout the House think so, so I hope the Minister will persuade his colleagues that there need to be changes, and that the ones suggested in the new clause and amendments could be among them. I beg to ask leave to withdraw the clause.
Clause, by leave, withdrawn.
Amendment made: 1, page 2, line 7, leave out paragraph (b). —(Norman Baker.)
Clause 4
Applications for injunctions
Amendments made: 2, page 3, line 38, at end insert—
‘() the Natural Resources Body for Wales,’.
Amendment 3, page 3, line 39, leave out from ‘functions’ to end of line 43 and insert
‘, or a Special Health Authority exercising security management functions on the direction of the Secretary of State, or
() the Welsh Ministers exercising security management functions, or a person or body exercising security management functions on the direction of the Welsh Ministers or under arrangements made between the Welsh Ministers and that person or body.’.
Amendment 4, page 3, line 44, leave out paragraphs (h) and (i).
Amendment 5, page 4, line 1, at end insert—
‘( ) In subsection (1) “security management functions” means—
(a) the Secretary of State’s security management functions within the meaning given by section 195(3) of the National Health Service Act 2006;
(b) the functions of the Welsh Ministers corresponding to those functions.’.—(Norman Baker.)
Clause 8
Arrest without warrant
Amendments made: 6, page 5, line 21, at end insert—
‘(za) a judge of the High Court or a judge of the county court, if the injunction was granted by the High Court;’.
Amendment 7, page 5, line 27, leave out ‘(3)(a)’ and insert ‘(3)(za) or (a)’.—(Norman Baker.)
Clause 9
Issue of arrest warrant
Amendments made: 8, page 5, line 38, at end insert—
‘() a judge of the High Court, if the injunction was granted by the High Court;’.
Amendment 9, page 6, line 3, at end insert—
‘( ) A warrant issued by a judge of the High Court must require the respondent to be brought before that court.’.—(Norman Baker.)
Clause 12
Power to exclude person from home in cases of violence or risk of harm
Amendments made: 10, page 6, line 24, after ‘lives’ insert ‘(“the premises”)’.
Amendment 11, page 6, line 25, leave out paragraph (a).
Amendment 12, page 6, line 27, leave out ‘the local authority or housing provider’ and insert—
(i) a local authority,
(ii) the chief officer of police for the police area that the premises are in, or
(iii) if the premises are owned or managed by a housing provider, that housing provider,’.
Amendment 13, page 6, line 35, leave out ‘local authority or’.
Amendment 14, page 6, line 37, leave out ‘authority or’ and insert ‘housing’.
Amendment 15, page 6, line 40, leave out ‘authority or’ and insert ‘housing’.—(Norman Baker.)
Clause 21
Power to make orders
Amendments made: 16, page 11, leave out line 26 and insert ‘any person’.
Amendment 17, page 12, line 4, leave out paragraph (b).—(Norman Baker.)
Clause 32
Authorisations to use powers under section 33
Amendment made: 18, page 18, line 23, leave out from ‘if’ to first ‘that’ in line 25 and insert ‘satisfied on reasonable grounds’.—(Norman Baker.)
Clause 40
Power to issue notices
Amendment made: 19, page 23, line 1, leave out subsection (5).—(Norman Baker.)
Clause 43
Appeals against notices
Amendments made: 20, page 24, leave out lines 19 to 22.
Amendment 21, page 24, line 31, leave out subsection (3) and insert—
‘(3) While an appeal against a community protection notice is in progress—
(a) a requirement imposed by the notice to stop doing specified things remains in effect, unless the court orders otherwise, but
(b) any other requirement imposed by the notice is of no effect.
For this purpose an appeal is “in progress” until it is finally determined or is withdrawn.’.—(Norman Baker.)
Clause 45
Offence of failing to comply with notice
Amendments made: 22, page 26, line 9, leave out ‘specified in’ and insert ‘alleged to constitute a failure to comply with’.
Amendment 23, page 26, line 11, leave out paragraph (a).
Amendment 24, page 26, line 19, leave out paragraph (a). —(Norman Baker.)
Clause 60
Orders restricting public right of way over highway
Amendment made: 25, page 36, line 7, at end insert—
‘( ) Before a local authority makes a public spaces protection order restricting the public right of way over a highway that is also within the area of another local authority, it must consult that other authority if it thinks it appropriate to do so.’.—(Norman Baker.)
Clause 62
Challenging the validity of orders
Amendments made: 26, page 37, line 6, at end insert ‘, or
() a variation of a public spaces protection order.’.
Amendment 27, page 37, line 10, after ‘order’ insert ‘or variation’.
Amendment 28, page 37, line 11, after ‘order’ insert ‘(or by the order as varied)’.
Amendment 29, page 37, line 13, after ‘order’ insert ‘or variation’.
Amendment 30, page 37, line 15, after ‘order’ insert ‘or variation’.
Amendment 31, page 37, line 17, leave out ‘public spaces protection order’ and insert ‘order or variation’.
Amendment 32, page 37, line 17, leave out ‘its prohibitions or requirements’ and insert
‘the prohibitions or requirements imposed by the order (or by the order as varied)’.
Amendment 33, page 37, line 20, after ‘order’ insert ‘or variation’.
Amendment 34, page 37, line 21, after ‘order’ insert
‘(or by the order as varied)’.
Amendment 35, page 37, line 24, leave out from first ‘or’ to end of line and insert
‘variation, or any of the prohibitions or requirements imposed by the order (or by the order as varied)’.
Amendment 36, page 37, line 25, leave out ‘its prohibitions or requirements’ and insert
‘the prohibitions or requirements imposed by the order (or by the order as varied)’.
Amendment 37, page 37, line 29, after ‘order’ insert
‘, or of a variation of a public spaces protection order,’.—(Norman Baker.)
Clause 63
Offence of failing to comply with order
Amendment made: 38, page 38, line 3, at end insert—
‘( ) Consuming alcohol in breach of a public spaces protection order is not an offence under this section (but see section 59).’. —(Norman Baker.)
Clause 70
Duration of closure notices
Amendment made: 39, page 42, line 14, at end insert—
‘( ) In calculating when the period of 48 hours ends, Christmas Day is to be disregarded.’.—(Norman Baker.)
Clause 73
Power to court to make closure orders
Amendment made: 40, page 44, line 11, at end insert—
‘( ) In calculating when the period of 48 hours ends, Christmas Day is to be disregarded.’.—(Norman Baker.)
Clause 81
Reimbursement of costs
Amendments made: 41, page 49, line 17, after ‘owner’ insert ‘or occupier’.
Amendment 42, page 49, line 21, at end insert—
‘( ) An order under this section may be made only against a person who has been served with the application for the order.’.
Amendment 43, page 49, line 22, after ‘must’ insert ‘also’.
Amendment 44, page 49, line 26, leave out paragraph (c).—(Norman Baker.)
Clause 93
The community remedy document
Amendments made: 45, page 64, line 3, at end insert—
‘( ) For the purposes of subsection (2), an action is appropriate to be carried out by a person only if it has one or more of the following objects—
(a) assisting in the person’s rehabilitation;
(b) ensuring that the person makes reparation for the behaviour or offence in question;
(c) punishing the person.’.
Amendment 46, page 64, leave out lines 6 to 11 and insert—
‘(a) have regard to the need promote public confidence in the out-of-court disposal process;
(b) have regard to any guidance issued by the Secretary of State about how local policing bodies are to discharge their functions under this section;
(c) carry out the necessary consultation and take account of all views expressed by those consulted.
‘( ) In subsection (3)(c) “the necessary consultation” means—
(a) consultation with the chief officer of police for the area,
(b) consultation with whatever community representatives the local policing body thinks it appropriate to consult, and
(c) whatever other public consultation the local policing body thinks appropriate.’.
Amendment 47, page 64, line 16, at end insert—
‘( ) The Secretary of State must publish any guidance issued under subsection (3)(b).’.
Amendment 48, page 64, line 22, at end insert—
‘“out-of-court disposal process” means the process by which a person is dealt with under section94 or by means of a conditional caution or youth conditional caution.’.—(Norman Baker.)
New Clause 20
Functions of Scottish Ministers under Firearms Acts
‘(1) In section 5 of the Firearms Act 1968 (weapons subject to general prohibition)—
(a) in subsections (1) and (1A), for the words between “commits an offence if,” and “, he has in his possession” there is substituted “without authority”;
(b) in subsection (4), for the words from the beginning to “the Scottish Ministers” there is substituted “An authority shall be subject to conditions specified in it, including such as the Secretary of State or the Scottish Ministers (as appropriate)”;
(c) in subsection (6), for the words before “revoke an authority” there is substituted “The Secretary of State or the Scottish Ministers (as appropriate) may at any time, if they think fit,”.
(2) In section 5A of that Act (exemptions from requirement of authority under section 5)—
(a) in subsections (1), (2)(a), (2)(b), (3), (4), (5), (6) and (7), for “or the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998)” there is substituted “or the Scottish Ministers”;
(b) in subsection (6), for the words after “without the authority of the Secretary of State” there is substituted “or the Scottish Ministers (as appropriate)”.
(3) In the Firearms (Amendment) Act 1997—
(a) in sections 2, 3, 4, 5, 6, 7(1) and 8 (exemptions from prohibition on small firearms etc), for “The authority of the Secretary of State or the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998)” there is substituted “The authority of the Secretary of State or the Scottish Ministers”;
(b) in section 7(3), for the words “or the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998)”, in the first place where they occur, there is substituted “or the Scottish Ministers”.
(4) In the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750)—
(a) in Schedule 1, in the entry for the Firearms Act 1968, the words “5 and” are omitted;
(b) in Schedule 5, paragraph 3 and paragraph 18(2) to (6), (7)(a) and (8) are omitted.’.—(Damian Green.)
Brought up, and read the First time.
Mr Deputy Speaker (Mr Lindsay Hoyle)
With this it will be convenient to discuss the following:
New clause 4—Firearms’ licensing—
‘(1) The Firearms Act 1968 is amended as follows.
(2) After section 28A (Certificates: supplementary) insert—
“28B Assessing public safety
(1) When assessing the threat to public safety under sections 27, 28, 30A, 30B or 30C the Chief Police Officer must ensure that a range of background checks are performed.
(2) Where these checks uncover substantiated evidence of violent conduct, domestic violence, mental illness or drug or alcohol abuse, the presumption is that the Chief Police Officer should refuse the licence application unless exceptional evidence can be brought forward by the applicant as to their suitability to possess a weapon.
(3) When assessing public safety within this section the Chief Police Officer must follow any guidance issued by the Secretary of State.”.
(3) Section 113 of the Firearms Act 1968 (power of Secretary of State to alter fees) is amended as follows.
(4) After subsection (1) insert—
“(1A) Before making an order under this section the Secretary of State must consult with chief police officers to ensure the level of fees collected by the police under sections 32 and 35 are appropriate after considering the costs they incur through the administration and assessment of firearms’ licences made under this Act.”.’.
Government amendments 100 to 105.
Damian Green
The purpose of the amendments is to preserve the position of the authority of Scottish Ministers under section 5 of the Firearms Act 1968. The new firearms offence of possession for sale or transfer of any prohibited weapon is committed where the conduct is undertaken
“without the authority of the Secretary of State or the Scottish Ministers”.
The existing functions of the Secretary of State under section 5 were transferred to Scottish Ministers by order under section 63 of the Scotland Act 1998 on devolution. Additional functions under section 5 need to be transferred to Scottish Ministers in relation to new offences created by the Bill. Therefore, new clause 20 revokes the entry in the 1999 order in respect of section 5 of the 1968 Act, and transfers afresh all the Secretary of State’s functions under that section to Scottish Ministers. Amendments 100 to 105 are consequential on new clause 20.
I suspect it will help the House if I respond to new clause 4 before the Opposition deal with it, in that peculiar way we sometimes have. The new clause has been tabled by those on the Opposition Front Bench and relates to two firearms licensing issues that we discussed in Committee and during the Westminster Hall debate initiated by the hon. Member for Easington (Grahame M. Morris) in early September. The first part of the new clause seeks to create a presumption that if an applicant for a firearm meets one of the stated criteria, the police should not grant a licence. The stated criteria include evidence of domestic violence, mental illness, and drug or alcohol abuse.
As I said in Committee, the police already have the ability to take those factors into account when assessing the risk to public safety. I understand that there are particular concerns about domestic violence and abuse, and in response to those, on 31 July we published specific guidance on that issue, providing greater detail on how the police should handle such cases. Just last week, we published a new consolidated guide on firearms licensing law. It is therefore fair to say that the Government have taken on board the many important points that were raised in Committee, and we have been quick to act. As the House will agree, decisions must be made on a case-by-case basis, but guidance is clear that evidence of domestic violence will generally indicate that an application should be refused. That new guidance is being applied now by police forces up and down the country, which I hope will be welcomed across the House.
New clause 4 also seeks to introduce a requirement that the police must follow any guidance issued by the Home Secretary when assessing public safety. I consider, however, that guidance must remain just that. It is right that chief officers have discretion to assess applications for firearms in their local area, taking into account the merits of each case and the newly published guide. Chief officers are ultimately responsible for public safety at local level. The Government have sought to make decision making a local responsibility wherever possible. I do not want to undermine that, which is what new clause 4 would do.
We are ensuring that where national action can support local decision making, it does. We are working with the national policing lead for firearms and explosives licensing to ensure that police have a more detailed awareness and understanding of the Home Office guide. The College of Policing will be publishing authorised professional practice on firearms licensing, which will complement and cross-refer to our guidance. In order to assess standards, Her Majesty’s inspectorate of constabulary has carried out a scoping exercise on how firearms licensing is conducted in practice, and we will use the findings from the exercise to drive up the consistency of decision making across the country. Again, that was a legitimate point made in the course of our debates and outside. People wanted greater consistency and, again, we have taken action. As I said, HMIC is now doing that work.
The second part of new clause 4 seeks to introduce a legal requirement for the Secretary of State to consult all chief police officers before revising the licence fees so that they achieve full cost recovery. I reiterate that consultation with the police is integral to the fee-setting process and we accept the need to consider the impact of licensing on police resources. That is why we are introducing a new online licensing system, which cuts the administrative burden of the old paper-based system. We do not need primary legislation to make this happen.
Until we have driven out the inefficiencies in the current paper-based approach to the licensing function, it would not be appropriate to raise the fees fourfold in order to achieve, in one giant step, full cost recovery, which I assume is the purpose of new clause 4. As I have said in other forums, we are considering proposals for an interim fee increase and I will make an announcement on that in due course.
In conclusion, I hope the Opposition Front-Bench team will acknowledge that progress has been made in all the significant areas where criticism of the system could legitimately be made a few months ago. I hope I have persuaded them that further legislation is unnecessary. On the off-chance that I have been unsuccessful in persuading the Opposition Front Bench that new clause 4 is unnecessary, I will have no hesitation in inviting the House to reject it.
Diana Johnson
I thank the Minister for setting out his amendments. The Opposition think these are entirely sensible and we support them. However, we depart from the Government on what more needs to be done. That is why I shall speak to new clause 4 tabled by my right hon. Friend the Member for Delyn (Mr Hanson).
The new clause would do three things. First, it calls for a broader range of better background checks to be included as part of the licensing process. Secondly, it would amend the Firearms Act 1968 to introduce an explicit presumption that anyone with a history of domestic violence, drug or alcohol abuse, or mental illness would be prevented from acquiring a firearms licence unless they could provide exceptional evidence to the contrary. Thirdly, it would introduce full cost recovery to ensure that the cost of a licence reflects the cost to the police of processing it.
Why is this needed? There are 146,426 people in the UK who have firearms certificates, covering 498,048 individual firearms, and 570,726 people who have shotgun certificates, covering 1,333,701 individual shotguns. Given that this involves nearly 2 million weapons, we should be thankful that gun crime is a relatively rare phenomenon in the UK. This is an indication that in most cases the licensing system does work and the overwhelming majority of members of the shooting community are very conscious of their responsibilities and of public safety. The problem is that when a gun crime does occur, its effects tend to be catastrophic.
We all know of the horrendous case of Derrick Bird, who killed 12 people, including himself, with a legally owned firearm. In the past five years there have been 43 female gun deaths in Great Britain and in at least 23 of them a legally owned weapon was used. In the past 12 months, 75% of female gun deaths occurred in domestic incidents. In 2009 that figure was 100%.
I want particularly to mention the case of Michael Atherton, to which the Minister referred. Michael Atherton killed his partner Susan McGoldrick, her sister Alison Turnbull, her niece Tanya Turnbull and himself on new year’s day 2012. He did that with a legally owned shotgun. Michael Atherton had three legally owned shotguns despite a history of domestic violence, alcohol abuse and mental health problems. A note attached to Atherton’s first application for a firearms licence in 2006 said:
“Four domestics, last one 24/4/04, was cautioned for assault. Still resides with partner and son and daughter. Would like to refuse, have we sufficient info to refuse re public safety?”
Durham constabulary decided that it could not refuse; in fact, Michael Atherton was allowed to keep his weapons despite the police being called to domestic incidents on another two occasions, including one in which he threatened to blow his head off with his own guns.
Since that tragedy, Alison Turnbull’s son, Bobby Turnbull, has been campaigning for a change in the law to prevent such tragedies from happening again. I pay tribute to Mr Turnbull for the brave and committed way in which he has gone about his campaign. I know that the Minister has met Bobby Turnbull and that the Minister, along with all members of the Public Bill Committee, received a letter from Mr Turnbull supporting Labour’s new clause.
There were multiple police failings in the case, but, as I have pointed out, it was not a one-off and the Durham coroner, the Independent Police Complaints Commission and the Select Committee on Home Affairs have all proposed tougher rules to prevent people with a history of drug or alcohol abuse, mental illness and violence, especially domestic violence, from acquiring firearms. That is why Labour is proposing new clause 4 to enshrine a clear principle that there should be a presumption that anyone with a history of domestic or sexual violence, drug or alcohol problems, or mental illness should not be allowed a firearm. I do not agree with the Minister that that undermines local decision making; it helps and strengthens it.
Never again should the police, looking at the file of a violent offender, think, “I would like to refuse this application but I am not sure whether I can.” Owning a gun is a privilege and not a right. In Committee, a number of hon. Members were very concerned about using mental health in such a way. We have had a number of debates to discuss mental health and the discrimination that might be faced by people who have had mental health problems. I reiterate that the proposal is to set down a presumption that can be rebutted if there is good evidence—for example, if someone had mental health issues many years ago but has not suffered recently. We are also not saying that people with a history of mental illness cannot take part in shooting. They can, but at registered clubs, not with their own guns to which they would have access at home.
The Government claim that the introduction of the new guidance, which the Minister mentioned, addresses that issue. The Opposition question whether that is enough. We know that the Gun Control Network has said:
“The Home Office says it is issuing new Guidance to the Police on Firearms Licensing but the new draft does not change the ethos. There is no statement anywhere that gun ownership is a privilege and not a right.”
The problem is not just whether the new guidance is sufficient but whether guidance could ever be sufficient. Let me share with the House the case of Mr X, in which the police attempted to block a firearms application only for that attempt to be turned down on appeal.
Mr X’s shotgun licence was seized after he was arrested on suspicion of sexual assault against a 17-year-old woman. The police thought the allegation was plausible, but the young woman did not want to appear in court so the charges were dropped. That was not the first allegation against Mr X. Other women had previously made complaints about him. His GP also reported that he was suffering from acute stress. The deputy chief constable of the relevant police force took the decision to revoke Mr X’s shotgun licence. However, despite the deputy chief constable’s taking a day to appear in front of the court, Mr X had his shotgun licence returned by the court. I appreciate that the Minister will not want to comment on individual cases, but I would like him to confirm to the House that the outcome of that case would not have been altered by the new guidance.
The Opposition have tabled new clause 4 because we believe that the firearms licensing system, particularly for shotguns, needs to be more robust to protect the public, but we also recognise that the system could be better. I pay tribute to the work of the British Association for Shooting and Conservation and the constructive way in which it has engaged in the debate on gun licensing. It has considerable expertise and I am grateful for its assistance. The association is right to point out that the firearms licensing system often fails to serve the shooting community. There are big discrepancies between police forces and sometimes big delays. It is not uncommon for a renewal to take many months. There is a general consensus that the system needs to improve.
Steve Rotheram (Liverpool, Walton) (Lab)
I want to focus my remarks on new clause 4. Part 8 of the Bill deals with firearms, and I broadly welcome the Government’s proposals on sentencing, but I urge them to go further on checks and fees. Following the Dunblane shootings in 1996, in which 16 children and one teacher lost their lives, the Labour Government were right to ban handguns and introduce tough new licensing laws, but it is also right that we, as parliamentarians, periodically review such laws. I therefore commend the Minister for the introduction of these proposals.
Despite the UK having one of the lowest rates of gun deaths in the world, it is no secret that there are pockets of the country in which the criminal use of firearms remains a problem. It is often most notable in large cities, where gangs can plague communities. However, it would be wrong to assume that the sale or transfer of prohibited firearms is the only consideration that Parliament should look to reform.
Jim Shannon (Strangford) (DUP)
Does the hon. Gentleman agree that it is not right to pursue legislative change against law-abiding citizens who do not transgress? Would it not be better to focus attention on the lawbreakers instead?
Steve Rotheram
I suppose it would depend on the aim of the legislative change. The community that I represent needs a strong message to be sent from this House that the current level of gun crime is unacceptable and that we will give the police every power possible to tackle the blight on our neighbourhoods.
In recent years, we have also seen a rise in the use of firearms, breaching police and public safety, by individuals with track records of domestic violence and mental illness, leading one coroner to call for “root and branch changes” to gun licensing laws. For instance, in the last 12 months, 75% of female gun deaths occurred in domestic incidents, and 53% of female gun deaths in the last five years have involved the use of a legally held weapon, so the improved guidance that the Minister has provided for the police on this issue is to be welcomed.
Such statistics reinforce Labour’s call to ensure that applicants do not have a history of domestic violence or violent conduct as a statutory requirement and not just as a discretionary guideline. While the last Labour Government went a long way to reducing crime and encouraging safer, stronger communities, and introducing tough sentences for gun crimes, too many people still believe the use of guns to be an occupational consequence of their criminal activity. Perhaps the most high-profile incident of gun crime was the appalling murder of 11-year-old schoolboy Rhys Jones in Liverpool in 2007. Sean Mercer was sentenced to life in prison, but what made the incident even more sickening and unpalatable was that Mercer was just 18 years of age. That is why the Government are right to be tough on those who possess prohibited firearms and who sell or transfer them to criminal gangs, which blight neighbourhoods in so many of our major cities.
In my own city, we have tried many innovative approaches to tackling gun crime. Across Merseyside, the police and the local media deserve enormous credit for the campaigns they have undertaken on firearm detection and recovery. This is not just some right-wing tough-on-crime agenda; this is an issue that primarily affects the lives of ordinary people up and down the country, something that Parliament must ensure is reflected in the strength of the laws that govern gun control licensing and in the length of imprisonment. That is why I support clause 100, which seeks to separate the existing offence in the Firearms Act 1968 into two parts, and, in doing so, make it an offence to possess prohibited firearms for sale and transfer, and introduce a maximum penalty of life imprisonment.
It is also right for the clause to increase the maximum penalty for the existing offences of manufacture, sale or transfer, or the purchase or acquisition for sale or transfer, of unauthorised firearms from 10 years to life imprisonment. Speaking with Merseyside police and the governors of local prisons, it is becoming increasingly clear that the tactic deployed by gangs is to use the same firearm for different shootings, but then to redistribute the gun to different members of the gang as and when it is “needed”, so to speak. By making the transfer of a firearm a crime punishable by a life sentence, I am positive that this will act as a stronger deterrent, and that those who ignore this change and are later prosecuted will receive severe custodial sentences.
I support clause 101, which seeks to amend sections 50 and 170 of the Customs and Excise Management Act 1979 to increase the maximum penalty for the unlawful importation of firearms, prohibited under section 5 of the Firearms Act 1968, from 10 years to life imprisonment. This is particularly important for an area such as Liverpool, with our revitalised docks now shipping record tonnage of trade. Inevitably, there will be those who wish to import illegal firearms into the port. The clause sends a strong message to people involved in the smuggling of weapons into Merseyside that if they are caught, this activity will carry a life sentence.
I support clause 102 in its efforts to allow British Transport police officers to carry firearms without requiring an individual certificate, giving them the same powers as officers of other police forces. Many incidences of gun attacks have taken place on public transport in Britain over the years. It is therefore right that we remove this anomaly and give the transport police the powers they require to combat this specific threat.
I am keen for the laws on firearms to be as tough as possible. New clause 4, tabled by the Labour party, will help the Government to achieve this common aim. New clause 4(4) notes the rising cost to police forces of administering the current firearms licensing regime. According to the Minister, more than 170,000 firearms licences and approximately 620,000 shotgun licences have been issued. The current fee for a firearm or a shotgun licence is only £50 for five years, yet the cost to the administrating force is, according to the Gun Control Network, about £200. Considering that the firearms licence averages out at just £10 a year, it is cheaper to own a gun than it is to own a fishing licence. That is absurd. I cannot see why the taxpayer is being asked to subsidise a large number of gun licences that are being issued to and used by a minority of individuals who wish to use guns for recreational sport. I am not aware of any other licensing system that subsidises to that degree.
Tessa Munt (Wells) (LD)
In a rural area such as mine, a number of people have to hold firearms licences because they deal with fallen stock. I assume that that would be a legitimate business expense that they could claim to do their job. Putting the firearms costs at the correct level so that the police do not have to ask other taxpayers for some sort of subsidy would be a logical thing to do, and would not cause problems in rural areas where these firearms are needed.
Steve Rotheram
The hon. Lady is absolutely right that if the burden can be transferred to another expense and taken from the police force budgets to subsidise this practice, it could only be good for law enforcement in the country. Last year, Devon and Cornwall police estimated that they spent a total of £1.2 million on completing firearms licence applications, but recouped only £514,000 in fees—phenomenally disproportionate.
Unsurprisingly, I am very much of the opinion that we should implement full cost recovery in the UK. In 2012, the police spent almost £20 million on administering firearms licences. I do not believe that the public would deem that to be a good use of declining police resources. I understand that the Government are in the process of implementing a new fees system, to which the Minister just referred. Unfortunately, it represents a missed opportunity because it will not include a full cost recovery proposal, only an increase in the fees.
I shall finish by sharing with the House the remarks of Lord Justice Openshaw who, in April this year, sentenced seven members of the notorious Croxteth Crew gang to a combined total of 113 years in prison. The Crocky Crew and the Strand gang from Norris Green terrorised parts of the border between my constituency and that of my hon. Friend the Member for Liverpool, West Derby (Stephen Twigg). Lord Justice Openshaw’s words paint a picture of how crimes can escalate and how the pattern of crime develops in parallel with continued feelings of social isolation. In all too many cases, criminal activity is a graduated process.
Obviously, only a minority progress to the most serious crimes, but for many it starts as antisocial behaviour and becomes more serious with burglary, violent assault and drug use. Then, before long, it becomes gun crime, punishment shootings and murder. What is more startling is that this pattern is developing quicker than ever before, and the accused are often mere teenagers or predominantly young men in their early 20s when they are caught and prosecuted.
These words should make us all think about how we vote and about the message that this Bill sends to criminals across the country. The judge said of the gang:
“Their days were spent posturing outside…shops dealing drugs. It is as if they belong to some sort of outlaw tribe which has rejected all society’s moral standards and conventions. Their minds are spent towards feuding and prosecuting vendettas against former associates.”
Central to this gang’s dominance was an arsenal of weapons, including several pistols, a double-barrelled shotgun and grenades—in this country! While the fear of crime is much greater than the likelihood of being a victim of crime, firearms are a major problem and we should never be complacent about them. That is why the whole House should support the Government’s reforms and the Opposition amendments. Together, we can redouble our efforts to get guns off our streets.
Damian Green
I am grateful to the hon. Member for Liverpool, Walton (Steve Rotheram) for his very thoughtful speech. I am also grateful to Opposition Front Benchers for their support for new clause 20.
It is clear from today’s debate that there are three separate issues to be discussed. There is the illegal use of guns that are held illegally, there is the illegal use of guns that are held legally, and there are the costs associated with guns that are entirely legally held and legally used. The first thing that we must do is ensure that those issues do not become confused with each other. Each of them relates to an extremely serious area of public policy, but the response to each of them needs to be different.
I cannot improve on much of what was said by the hon. Member for Liverpool, Walton about how tough we need to be on the criminal use of illegally held guns. I am grateful to him for his support for clauses 100 and 101 and the amendments to those clauses. They plug loopholes in the existing law, which will hopefully make policing the criminal use of illegally held guns—and illegally distributed guns, to which he rightly referred—less difficult.
As was made clear by the hon. Member for Kingston upon Hull North (Diana Johnson) and by me in my opening remarks, the illegal use of legal guns can lead to terrible tragedies. The Atherton case, which was raised by the hon. Lady, left a huge scar on a family and, indeed, on a whole area, and gave rise to a number of recommendations. In my view, all that divides the two Front Benches on the issue is how effective we consider each other’s proposed methods of dealing with it would be. I shall not weary the House by repeating a speech that I made at the outset of the debate, but we have thought long and hard, and, moreover, have taken significant action since the Committee stage, when we last debated the issue. We published the new firearms guidance at the end of July.
Let me address directly the points that the hon. Lady reasonably made about individual court decisions. As she rightly said, I cannot comment on such decisions, not least in view of the fact that her comments were slightly opaque because, understandably, she could not mention names. I can only reiterate that the new guidance makes it absolutely clear that evidence of domestic violence and abuse will generally indicate that an individual should not be permitted to possess a firearm. It would be difficult to make it clearer that that is the way in which the court should interpret the guidance in the event of an appeal.
One of the other lessons that the Independent Police Complaints Commission and the coroner drew in the Atherton case was that police enforcement needs to be more effective. We can write laws or guidance, but ultimately it is the human beings who execute those laws that make the difference. We are working with the national policing lead for firearms licensing to ensure that police all over the country, in every police force, have a more detailed awareness and understanding of the Home Office guide. As I have said, the College of Policing will publish authorised professional practice on firearms licensing, which will complement and cross-refer to the Home Office guide. In addition, Her Majesty’s inspectorate of constabulary has been conducting a scoping exercise, and will use the evidence from that to decide whether a full firearms licensing inspection should take place.
Mr Mark Spencer (Sherwood) (Con)
I hope that, in the course of his deliberations, the Minister will consider some of my constituents who, although they are by no means wealthy, enjoy participating in target practice or clay pigeon shooting. I hope that, as a result of this process, shooting will not become the preserve of the rich.
Damian Green
My hon. Friend has made a good point. I shall deal shortly with the third issue that I identified earlier, namely the costs of legally held guns.
Jim Shannon
What guarantees or safeguards will be in place for husbands or partners who are firearms holders but who have had malicious allegations made against them? What legal protections will be in place for them when the investigations by the police are completed and the malicious allegations are found to be untrue?
Damian Green
The protections are the new guidelines, the new professional standards issued by the college and any recommendations that Her Majesty’s inspectorate of constabulary comes up with from its inspection. Those things will make the whole system more robust, so that the specially trained individual police officers who will be making those investigations will be better trained than ever before to judge whether, for example, an accusation is malicious or whether it is a genuine accusation and there is evidence of domestic violence or abuse and that therefore the individual should not be permitted to possess a firearm. Clearly, what one can expect and demand in such cases is that the individual officer taking the decision is as well trained as possible and is operating to very clear guidelines. That will be the case, and it is the best protection against malicious accusations. Equally, or perhaps more importantly, it protects those who may have been victims of domestic abuse and who may be victims of something worse if a gun is left in the wrong hands. That is what hon. Members on both sides of the debate are seeking and, as I say, it is an argument about practicality.
The third aspect to this debate relates to the costs. The hon. Member for Kingston upon Hull North asked a number of questions, and the answer to her question about e-commerce and the new system is that 24 forces are already signed up to phase 1, which comes into force either this year or next year, with eight other forces involved in phase 2. Thirty-two forces have therefore already agreed to do this, and I know that the national policing lead on firearms is energetically going around the country to ensure that all other forces eventually sign up.
The hon. Lady made the point, quoting the Treasury document, about full cost recovery. It is true that, in principle, full cost recovery within the Treasury’s policy on managing public money does apply to firearms licensing. Of course, we are in discussion with the Treasury on the subject of firearms fees. As I said, we are working towards full cost recovery as our ultimate objective. However, in this period our commitment is to increase the efficiency of the licensing process, as a first step. That is essential to achieve a balance between increased income and increased efficiency. The trick—this is true in all areas of public spending—is not to regard full cost recovery as a given, because we can always bring the costs down. We have already seen in the early pilots of the use of an electronic system for licensing not only that people get a quicker and better service, but that it is considerably cheaper for the police to operate, and so there is a benefit all round. One hon. Member cited a figure of £200 from the Gun Control Network, and I know that the police have come up with a figure of about £190 for full cost recovery, but the figure will be much lower under an e-commerce system. That is to the benefit of the police and of those applying for licences, be it for working purposes, as is the case in many rural parts of the country, or for recreation, which various hon. Members have mentioned.
Diana Johnson
Given that such huge cuts are being made to public services these days, does the Minister feel entirely comfortable saying that he thinks it is acceptable for the public purse to subsidise people who want to have a gun and get a gun licence to the tune of £18 million? I understand what he is saying about the future, but the reality today is that lots of police forces are under pressure, so should the full cost recovery not be brought in now, rather than at some future date?
Damian Green
The point that I am making is that it is today; the use of an electronic licensing system is available. Some police forces are piloting this already and this will lead to a much more efficient system. As I say, our ultimate aim is full cost recovery. We are moving towards that, but at the same time making sure that the full cost that is recovered is much less than it was before, not just to save the money but because that will lead to a much better and more efficient system.
Tessa Munt
Surely, using e-commerce for firearms licensing will still involve police time in investigating in detail the circumstances of an applicant, including a visit to ensure that the premises can hold firearms in a secure and safe fashion, hidden from general view, and certainly from young people and those who are less able. Surely the standard charge of £190 or £200 cannot be reduced that much.
Damian Green
The short answer is that it can. Yes, the police will want to do thorough checks of the premises and so on, but the more that one can reduce the work of processing pieces of paper, which is a lot of what is involved now, with all the attendant inefficiencies and expense for the police, the more the police can do the checks that the hon. Lady and I both want to see happen.
Tessa Munt
Can the Minister give me some idea of what the police feel the cost would be if they were to use the e-commerce system? I remind the Minister yet again that the cost of a morning’s shooting—clays—to which my hon. Friend the Member for Sherwood (Mr Spencer) referred is not cheap. This is leisure and recreation.
Damian Green
The hon. Lady may be right, but the more people use electronic systems, the more savings there are, so it is quite difficult to put an exact figure on it, particularly with a network system, where the costs will be considerably lower than the figures we have been quoting. I can tell from the hon. Lady’s face that I will not necessarily convince her on this matter, but I hope that I have convinced the House. I urge the House to reject the Opposition’s new clause 4, and I am grateful for the general support for the Government’s new clause.
Question put and agreed to.
New clause 20 accordingly read a Second time, and added to the Bill.
New Clause 4
Firearms’ licensing
‘(1) The Firearms Act 1968 is amended as follows.
(2) After section 28A (Certificates: supplementary) insert—
“28B Assessing public safety
(1) When assessing the threat to public safety under sections 27, 28, 30A, 30B or 30C the Chief Police Officer must ensure that a range of background checks are performed.
(2) Where these checks uncover substantiated evidence of violent conduct, domestic violence, mental illness or drug or alcohol abuse, the presumption is that the Chief Police Officer should refuse the licence application unless exceptional evidence can be brought forward by the applicant as to their suitability to possess a weapon.
(3) When assessing public safety within this section the Chief Police Officer must follow any guidance issued by the Secretary of State.”.
(3) Section 113 of the Firearms Act 1968 (power of Secretary of State to alter fees) is amended as follows.
(4) After subsection (1) insert—
“(1A) Before making an order under this section the Secretary of State must consult with chief police officers to ensure the level of fees collected by the police under sections 32 and 35 are appropriate after considering the costs they incur through the administration and assessment of firearms’ licences made under this Act.”.’.—(Diana Johnson.)
Brought up, and read the First time.
Question put, That the clause be read a Second time.