Offensive Weapons Bill (Sixth sitting)
Tuesday 4th September 2018
(5 years, 7 months ago)
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The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
Clause 1(10) provides a delegated power for the Secretary of State, and for the Department of Justice in Northern Ireland, to amend schedule 1 by secondary legislation. Such regulations would be subject to the affirmative procedure. Any changes required in future will be undertaken on the advice of the police—including Police Scotland, which would not be covered by the amendment because it is not part of the National Police Chiefs Council—and of our scientific advisers, the Defence Science and Technology Laboratory. We would also consult with manufacturers, retailers and the Scottish Government before making any regulations to amend the schedule.
Although we would take police and scientific advice, consult with others and make the outcome of those discussions available to Parliament when making any regulations, we do not think that there needs to be a legal requirement to publish evidence. Parliament will have ample opportunity in the debates on the regulations in both Houses to question the Government about why we are amending the schedule. Having a legal requirement could also lead to problems; for example, if the NPCC changed its name, further primary legislation would be needed before any regulations could be made.
Stephen Timms (East Ham) (Lab)
Clause 1(10) refers to the “appropriate national authority” to make additions or changes to schedule 1. Could the Minister clarify what that authority will be? Will it be a different authority in different parts of the UK, or a single authority throughout?
A couple of times, the Minister made the helpful point that regulations to make such changes will be subject to the affirmative rather than the negative procedure. Could she point us to where in the Bill that assurance is provided? I have not been able to find it.
Victoria Atkins
The appropriate national authority will be the Secretary of State in England, Wales and Scotland, and the Department of Justice in Northern Ireland. We will consult the Scottish Government, however, because clauses 1 to 4 deal with matters that are reserved in relation to Scotland.
The right hon. Gentleman raises an important point about where in the Bill the affirmative procedure is specified. Clause 37(2) requires that regulations be
“approved by a resolution…of each House of Parliament.”
As ever, I am extremely grateful to the right hon. Gentleman for his forensic eye for detail, and I invite the hon. Member for Sheffield, Heeley to withdraw the amendment.
Louise Haigh (Sheffield, Heeley) (Lab)
As with the previous group of amendments, I thank the Minister for her response. I am satisfied that the legislation referred to in clause 1(10) will fulfil the objective that our amendment was attempting to achieve. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: 14, in clause 1, page 2, line 29, at end insert—
“( ) See section (Presumptions in proceedings in Scotland for offence under section 1, 3 or 4) for provisions about presumptions as to the content of containers in proceedings in Scotland.”
This amendment and Amendments 16, 19, 20, 31, 33, NC5 and NC6 provide for certain evidential presumptions relating to the nature of substances that are or were in containers to apply in Scotland in relation to an offence under section 1, 3, 4 or 5 involving a corrosive substance or product.—(Victoria Atkins.)
Question proposed, That the clause stand part of the Bill.
Louise Haigh
There is an issue that has not been raised through any amendments, and I hope the Committee will bear with me as I briefly address it. Clause 1(8) relates to the coming into force of section 281(5) of the Criminal Justice Act 2003. We attempted to table an amendment to ensure that this provision is enacted within six months of the Bill coming into force. The subsection was legislated for 15 years ago and is still to come into practice. There is concern that the Government continue to bring forward legislation—as I am sure the previous Labour Government did—that rests on magistrates courts being able to give sentences of up to 12 months.
I understand from previous conversations with the Minister’s colleagues that there are some issues for the Ministry of Justice around enactment but, 15 years on, we need to overcome them. If we cannot, we should not be putting such provisions into new legislation, pretending that we can. I would like the Minister to clarify whether we are likely to see those provisions coming into force. If not, should we not be clear in the legislation that, in reality, the sentencing is six months and not 12 months?
Victoria Atkins
I note that the amendment in question was not permitted in the groupings, Mr Gray. With regard to the 2003 Act, the hon. Lady has correctly identified that this is a Ministry of Justice matter, and this small Bill is not the place to introduce a provision that will have ramifications across the whole of the criminal justice system. We keep magistrates’ sentencing powers under review, but there is currently no intention to implement provisions of the 2003 Act in the Bill.
Question put and agreed to.
Clause 1, as amended, accordingly ordered to stand part of the Bill.
Schedule 1 agreed to.
Clause 2
Defence to remote sale of corrosive products to persons under 18
Question proposed, That the clause stand part of the Bill.
The Chair
Just for the information of the Committee, the consultation responses from the Government are now available and in the room, if hon. Members would like to have a look.
Louise Haigh
Thank you, Mr Gray, and I thank the Minister for providing those consultation responses. We welcome clause 2 on defence to remote sale. It is an extremely important part of the Bill, because a significant proportion of the purchasing is likely to occur online, as it does at present.
Our concerns relate to the defence to remote sale under condition A, which I referred to earlier:
“that they took all reasonable precautions and exercised all due diligence to avoid the commission of the offence”.
In subsection (6)(a), a seller is regarded as having taken all due diligence if they
“operated a system for checking that persons who bought corrosive products…were not under the age of 18”.
We know from evidence given to the Committee that there are concerns about what a system for checking persons who bought corrosive products would look like. Would it look like the online age verification controls introduced by the Digital Economy Act 2017? That would present significant difficulties. That legislation was limited to major commercial players, which have the means and capacity to implement age verification controls. However, such controls have proven perilously difficult to implement in a workable form. Has the Home Office considered what standard of age verification software or controls would be acceptable under clause 2?
The British Retail Consortium said:
“Ideally, we would like to see some standards, so we can be sure that online age verification systems developed by businesses such as Yoti and others will be accepted as due diligence by the enforcers.”––[Official Report, Offensive Weapons Public Bill Committee, 17 July 2018; c. 62, Q154.]
Currently, offline systems are standardised and clearly laid out in the legislation, but it is difficult for retailers to be sure that they are complying with online systems, which is why the Government are banning the delivery of corrosive products and bladed articles to residential premises, to make sure they are complied with. However, I want to press the Minister on what age verification controls the Government have considered and, as we will come to later, why they do not consider them sufficient to prevent the delivery of corrosive products and bladed articles to under-18s.
Victoria Atkins
I am grateful to the hon. Lady for her speech. We have not set out in the Bill the measures that businesses could take to satisfy themselves that the person to whom they are selling is under 18 because we are conscious that different age verification systems are available, and the technology is developing at a very fast pace, as we have seen in relation to the Digital Economy Act 2017. We did not want to stipulate a specific approach in primary legislation for fear that it would quickly run out of relevance.
However, there are conditions of due diligence under the defence in clause 2. There has been a certain amount of misunderstanding about the conditions in the defence relating to knives—which I will come to in due course—but clause 2 is about ensuring that these dangerous substances are not sold to under-18s. We want sellers of these products to understand from the very beginning that they have a duty of due diligence to determine the age of those to whom they are selling. We know, from experience of other age-controlled items, that businesses will quickly develop these systems. It will be for the seller to show that they have robust age verification systems in place.
Louise Haigh
I completely agree, and I would never advocate including technological guidance or prescriptions in primary legislation. However, would it not be advisable to set standards that we expect retailers to comply with, for both corrosive substances and bladed articles, particularly given the very low rates of prosecution by trading standards? Perhaps there is an issue with “due diligence” being too vague for trading standards to be able to bring prosecutions forward.
Victoria Atkins
In other statutes—for example, the Health and Safety at Work Act 1974—we have the test of “reasonably practicable”. I am anxious that, if a case reaches the court, we do not bind the hands of a magistrate in determining the facts of the case. I will happily consider what I think is the hon. Lady’s point about whether there is scope to provide best practice, guidance and so on, but we are of the view that the defence as it stands should be set out in statute and that it should then be for businesses and retailers to ensure that they comply with the law.
Louise Haigh
I am grateful for that reply, but a bit concerned that the Home Office had not already planned to issue guidance to online retailers. With something like this, I would have thought that, given that some retailers are not currently subject to age verification legislation at all, the Home Office would automatically issue guidance on what it would expect such age verification to look like—not best practice, but a standard beneath which a retailer would not be able to fall under the legislation. Is that not the case?
Victoria Atkins
We will publish guidance when implementing the Bill.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
Clause 3
Delivery of corrosive products to residential premises etc
Amendments made: 15, in clause 3, page 4, line 35, at end insert—
‘(13) In Scotland, proceedings for an offence under this section may be commenced within the period of 12 months beginning with the commission of the offence.
(14) Section 136(3) of the Criminal Procedure (Scotland) Act 1995 (date when proceedings deemed to be commenced) applies for the purposes of subsection (13) as it applies for the purposes of that section.”
This amendment provides for proceedings in Scotland for an offence under Clause 3 to be brought within 12 months of the commission of the offence. Under section 136 of the Criminal Procedure (Scotland) Act 1995 the default period for bringing summary proceedings is 6 months.
Amendment 16, in clause 3, page 4, line 35, at end insert—
‘( ) See section (Presumptions in proceedings in Scotland for offence under section 1, 3 or 4) for provisions about presumptions as to the content of containers in proceedings in Scotland.” —(Victoria Atkins.)
See the explanatory statement for Amendment 14.
Clause 3, as amended, ordered to stand part of the Bill.
Clause 4
Delivery of corrosive products to persons under 18
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I beg to move amendment 43, in clause 4, page 4, line 41, leave out
“and the seller is outside the United Kingdom at that time”.
This is a probing amendment to allow debate on whether the offence should be restricted to where the seller is outside the United Kingdom.
The Chair
With this it will be convenient to discuss the following:
Amendment 44, in clause 4, page 4, line 45, after “was” insert
“or ought to have been aware”.
This is a probing amendment to allow discussion on whether requiring proof of actual knowledge is the appropriate test.
New clause 9—Purchase of offensive weapons from outside the European Union—
“(1) A person commits an offence if they knowingly purchase an offensive weapon from a seller located in a country that is not a member of the European Union.
(2) A person who is guilty of an offence under subsection (1) is liable—
(a) on summary conviction in England and Wales, to a fine;
(b) on summary conviction in Scotland or Northern Ireland, to a fine not exceeding level 5 on the standard scale.”
Stuart C. McDonald
Clause 4 concerns the delivery of corrosive products to under-18s. Amendments 43 and 44 are probing amendments, tabled in my name, and they seek to test the Government’s thinking in this area. Amendment 43 merely queries why a delivery company commits an offence in delivering a corrosive substance to a person under 18 only if the seller is outside the United Kingdom. Why is it okay for that delivery to take place on behalf of a seller based within the UK? That is a straightforward question.
Amendment 44 queries the test that the prosecution will have to meet. As I understand, under the Bill’s current drafting, the prosecution would have to prove actual knowledge on behalf of the delivery company, and that it was aware that a corrosive substance could be involved in the contract to deliver products. From recollection, I think that some offences permit prosecution if it can be shown that the delivery company ought to have been aware of that—for example, if the client who was sold the product remotely is a well-known manufacturer of corrosive substances, and that is the main part of its business. Perhaps that should be enough in itself for the prosecution to make its case, but, again, I simply seek the Government’s view on those issues and wish to test their opinion.
Stephen Timms
I rise to speak to new clause 9. It arises from a number of conversations that I had with a man called Mr Raheel Butt, whom I would briefly like to tell the Committee about. He grew up in West Ham, in the constituency of my hon. Friend the Member for West Ham (Lyn Brown), rather than in East Ham, and as he would freely acknowledge, he went wrong for several years and served a term in prison. I think he left prison in 2012, and since then he has made it his mission to try to ensure that other young people do not make the same mistakes he made. He set up a community interest company called Community & Rehabilitation Solutions, which works with the Metropolitan police in a number of ways, and he is very concerned about the ease with which people can get hold of very unpleasant weapons and corrosive substances—the new clause covers both corrosive substances and bladed weapons.
I arranged to meet Mr Butt a couple of weeks ago, and he came to Portcullis House to have a conversation with me about this issue. About five minutes after he was due to turn up, I realised that he had not arrived, so I gave him a call on his mobile. He said, “Well, the problem is I don’t know how to get past security with my offensive weapons.” I had not realised that he was planning to bring his offensive weapons with him, but that was indeed his intention. It caused a significant security alert; I actually never got to see the offensive weapons, because they were taken off him before he managed to get through Portcullis House security. I suppose that was reassuring.
The point he wanted to make, however, was that it is extremely easy to buy the most dreadful weapons online extremely cheaply. For example, I am just looking at a product that he pointed out to me—the ones he showed me are all readily available on eBay, and I know there are other websites where they are available as well. “Ultralight Self Defense Tactical Defense Pen Outdoor Glass Breaker Writing Pen” is the name of a product that costs £2.84 on eBay. It is designed to look like a pen, and it does look like a pen, but it is actually a lethal weapon. My worry, which I am sure is also the Minister’s worry, is how to stop these things getting into the hands of people who want to do harm with them, of whom there are sadly far too many at the moment.
Clause 4 covers the delivery of corrosive products to people under 18, and clause 15 covers the delivery of bladed products to residential premises. In both cases, the Bill places requirements on the suppliers. My worry is what happens in a case such as one Mr Butt drew my attention to. That ultra-light product on ebay.co.uk is supplied by a Chinese company called vastfire-luz. My worry is whether this legislation will cover companies such as that one in China, or companies elsewhere, that are sending these very damaging and unpleasant items to people in the UK.
I know that clause 15, on the delivery of bladed products to residential premises, puts in place arrangements to cover the situation where the supplier is outside the UK. An onus is placed on the delivery company; we will no doubt come to that in due course, but it is not clear to me how effective that will be. If a Chinese company posts an item, which could be in a perfectly innocuous small package, to somebody in the UK, will the arrangements in the Bill help us pick up that it is, in fact, a lethal weapon that is being delivered? It might be delivered by the Royal Mail through the post or by a delivery company of some kind. It is difficult to see how the measures in the Bill, although clearly intended to stop that kind of delivery being made, will in practice have that effect for suppliers determined to get around the impediments being put in their way.
That is the reason I have tabled new clause 9, which I accept looks like a rather odd proposition on the face of it, to move that a person
“commits an offence if they knowingly purchase an offensive weapon from a seller located in a country that is not a member of the European Union.”
The Bill is intended to manage sellers and delivery agencies, but I am sceptical whether that will work in practice. Through my new clause, I instead place an onus on the purchaser and, indeed, on people such as eBay who are facilitating these sales, and say to them: “If you are an individual purchasing an offensive weapon from a seller outside the EU, that is an offence.” That would be one way of shifting the onus on to the purchaser. Clearly, it would still be possible for businesses to import items into the UK in the ordinary way. What I am worried about is individuals buying the dreadful implements that are freely on sale at the moment, on eBay and elsewhere and that, as far as I can see, the well-intentioned measures in the Bill will not capture. This proposal would be another way of trying to stop those very damaging things getting into the country.
Louise Haigh
I rise briefly to congratulate my right hon. Friend on the ingenious way he has brought forward the new clause to tackle the thorny issue of websites outside the UK and the difficulties that the Government will have in prosecuting those who attempt to sell corrosive substances and, indeed, bladed articles, which are dealt with later in the Bill.
I want particularly to address the issue of platforms. As my right hon. Friend said, platforms such as Wish, eBay, Facebook Marketplace and Amazon proliferate the use of horrendous weapons. In 2016, a teenager killed a young man called Bailey Gwynne in a school in Aberdeen. He was cleared of murder, but convicted of culpable homicide. He had paid £40 on Amazon for a folding knife with an 8.5 cm blade. It is illegal even under the current law—prior to the Bill—to sell a folding knife to a buyer aged under 18 if the blade is more than 3 inches long, but that 16-year-old had been able to get around Amazon’s age-verification checks by pinning a note to his front door rather than accepting delivery in person.
I am sure that large retailers and online providers such as Amazon will comply with this new legislation, but individual sellers who sell through Amazon, Facebook Marketplace, eBay and so on are unlikely to comply, so there has to be a way, if we do not use the exact wording that my right hon. Friend has proposed, for us to crack down on platforms; otherwise, we will leave a gaping hole that will render essentially meaningless the worthy principles that the Bill is designed to implement.
Victoria Atkins
I am extremely grateful to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East and the right hon. Member for East Ham for the amendments and the new clause. If I may, I will deal with amendments 43 and 44 first and then move on to new clause 9.
I start by saying that, sadly, it is of course not just in the context of the use of offensive weapons that there are people who do not have the scruples that we do when it comes to crimes and harms; they use online platforms to sell their wares. Indeed, only yesterday my right hon. Friend the Home Secretary gave a powerful speech on his expectations of all members of the tech industry when it comes to addressing the horrific prevalence of child sexual exploitation online. We are discussing here a different form of criminality, but of course we have to work to ensure that criminals do not have a gaping hole open on the internet to sell these horrific weapons.
Section 141 of the Criminal Justice Act 1988 prohibits the sale, importation and other things of disguised knives. The Bill extends that to cover their possession, so I hope that that addresses the point made about the disguised weapon that Mr Butt—
Stephen Timms
Can the Minister clarify the law on this? If it is illegal to sell disguised weapons in the way that she has just said, but there are loads of them on eBay and anyone can look them up and anyone can buy them, who is committing an offence in that situation?
Victoria Atkins
If I inadvertently fall into error, I will write to the right hon. Gentleman to correct what I have said. With marketplace platforms such as eBay or Amazon, it depends. Let us take the example of Amazon. Sometimes Amazon sells as a retailer itself and at other times it is acting as—well, it has been described to me as an antiques fair where someone comes and puts up their stall. Because Amazon has headquarters in the UK, we believe that these provisions apply to those instances where it is selling the knives itself, directly. With the marketplace/antiques fair example, we are in very difficult territorial waters, because of course then Amazon is not selling the item directly itself. It depends on where the seller is based. Section 141 of the 1988 Act addresses the importation of weapons. The example of a zombie knife or a disguised weapon would fall under that section.
Stephen Timms
The Minister made the point earlier, if I understood her correctly, that it is illegal to sell a disguised weapon. Lots of those kinds of weapons are freely available on ebay.co.uk, which presumably has some sort of UK presence. They are being sold by companies in China and around the world. If one of those companies sells a disguised weapon to somebody in the UK, has a crime been committed?
Victoria Atkins
These weapons, I hasten to add, are the ones described under the 1988 Act and under the Criminal Justice Act 1988 (Offensive Weapons) Order 1988. If an item is an offensive weapon under that order, its importation is an offence. I am pretty sure I am on the right track. If the sale was a UK seller to a UK buyer, that is covered by section 141, but if it was a Chinese seller, using the right hon. Gentleman’s example, we do not have jurisdiction. We do, however, have jurisdiction over the person buying a disguised weapon, which is obviously one of the harms we are trying to address in the Bill.
Stephen Timms
But if it is, as it would be in the case of an eBay purchase, an individual buying the product online and then receiving it through a postman or courier, has anyone committed an offence? If so, who is it?
Victoria Atkins
I am struggling to keep up with the example. If an individual has imported a disguised weapon, it falls under section 141. If a UK purchaser has bought it from a UK seller, then both can be prosecuted under section 141 because sale and importation are in that section. If it is a UK buyer and an overseas seller, it is the buyer of a disguised weapon who falls foul of section 141. I hope that assists the right hon. Gentleman.
To deal with the point that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East made—I am moving on from amendments 43 and 44—we do not want to put deliverers, couriers and office workers in the impossible position of trying to guess whether a parcel may or may not contain offensive weapons, which is why we have defined things in the way we have in the Bill. There is a contract with the delivery company and the seller to deliver it. We would obviously expect the seller to make it clear, or for the delivery company to satisfy itself, that the requirements of the Bill were being met.
On new clause 9, I have already referenced the Criminal Justice Act 1988 (Offensive Weapons) Order 1988. It is already an offence to sell, manufacture, hire, loan or gift such weapons in the UK and to import such items, so we are of the view that the criminality that the right hon. Member for East Ham rightly seeks to address is covered by existing legislation, regardless of whether it occurs inside or outside the EU.
Stephen Timms
The Minister has given the Committee a lot of helpful information. From what she says, anyone who buys the kind of product that I described, which is freely available on eBay, is committing an offence. If I buy a disguised weapon on ebay.co.uk from a Chinese company, I am committing an offence. How is it that eBay continues to offer all these things on its platform? At the very least it is highly irresponsible because, by definition, anyone who clicks on that item and makes a purchase is committing a crime. Surely that should not be permitted?
Victoria Atkins
That is a very good question for those tech companies—not just eBay but others—that allow those items on to their platform. The right hon. Gentleman knows that the Government will look at the huge issue of online responsibility and online harms in a White Paper being published later this year. That will cover not just the incidences we are looking at now but sexual abuse, violence, online trolling and bullying, and so on. These are all issues that we have drawn consultations on and that we are carefully considering. I will make sure that the Home Secretary and the Secretary of State for Digital, Culture, Media and Sport very much bear the right hon. Gentleman’s point in mind.
Stephen Timms
I rise to make a contribution. The Minister referred to the obligations that the clause places on delivery companies in cases where purchases are made from a company outside the UK, as we have just discussed, with the onus therefore needing to be on those companies. Will she spell out for us what checks the delivery company will be required to make? She emphasised the importance of not making unreasonable demands of delivery companies, but how far will the legislation expect them to go in making sure that they are not delivering a corrosive product to somebody’s home?
Victoria Atkins
The defence is set out in subsection (5). It is the same threshold as that set out in clause 2: taking all reasonable precautions and exercising all due diligence.
The Chair
I am slightly confused. I think the Minister was responding to the right hon. Gentleman’s speech. He has now spoken twice. If he wishes to speak again he may, but it is becoming a bit backwards and forwards.
Stephen Timms
I am grateful, Mr Gray, and I apologise for the confusion. I will make one final contribution, if I may. Can the Minister tell us a little more about what is regarded as reasonable? If a delivery company enters into a contract to deliver products from a supplier outside the UK and that supplier says that none of the products is corrosive, and if the delivery company believes them, has it taken all reasonable steps, or should it check the consignments to see what is in them? Should it check all of them, or just some of them? It would be helpful if the Minister could tell us a little more about what is expected of delivery company in such situations.
Victoria Atkins
The delivery company will know the nature of what it is delivering, because it will be under the arrangements with the seller. It is about whether the person it is handing the package to is over the age of 18. I am speculating, but it may well be that delivery companies set demands and expectations on the people with whom they enter into agreements when people are selling corrosive substances or bladed articles. The point is that it is about a contract to deliver substances or products that may fall under the Bill, as well as knives.
Stuart C. McDonald
I am grateful to the Minister for her explanation. I will give it some further thought. A couple of points in her explanation seemed to hinge on not wanting to allow posties and so on to get caught up in these provisions. We must remind ourselves that, as I understand it, this offence will be committed by a body corporate, so we will in no way see posties being brought before a court of law and so on. I am not sure that properly explains why the Government have limited the offence to where the seller is outside the UK—I will give it some thorough thought—nor why the state of awareness has to be quite as high as it is. I will take it away and think about it further, but in the meantime I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Victoria Atkins
I beg to move amendment 17, in clause 4, page 5, line 13, leave out “is guilty of” and insert “commits”.
This amendment and Amendment 23 have the effect that Clauses 4(4) and 18(4) provide that a person commits an offence in specified circumstances rather than that a person is guilty of an offence in those circumstances. This is for consistency with other provisions in the Bill and does not change the legal effect of Clauses 4(4) and 18(4).
The Chair
With this it will be convenient to discuss Government amendments 23, 24, 25, 26, 27 and 28.
Victoria Atkins
These are amendments to iron out a couple of drafting inconsistencies in the Bill. Clauses 4(4) and 18(4) say that a person “is guilty of” an offence in certain circumstances, whereas the other free-standing provisions of the Bill, such as clause 1(1), say that a person “commits” an offence in certain circumstances. Both formulations appear on the statute book and work legally, but we are looking to adopt the “commits” approach, for the sake of consistency.
Government amendments 24 to 28 pick up a point made by my hon. Friend the Member for Shipley (Philip Davies) on Second Reading. He pointed out that the definitions of “serious physical harm” in section 1A(2) of the Prevention of Crime Act 1953 and section 139AA(4) of the Criminal Justice Act 1988 need to be omitted. That is because clause 26 of the Bill now replaces references to “serious physical harm” in section 1A(1) of the 1953 Act and section 139AA(1) of the 1988 Act with “physical harm”. Unfortunately, that was not picked up when the Bill was drafted and we are now taking the opportunity to correct that oversight. I thank my hon. Friend for spotting the inconsistency. All these amendments are minor and technical in nature.
Amendment 17 agreed to.
Amendments made: 18, in clause 4, page 5, line 45, at end insert—
“(11) In Scotland, proceedings for an offence under this section may be commenced within the period of 12 months beginning with the commission of the offence.
(12) Section 136(3) of the Criminal Procedure (Scotland) Act 1995 (date when proceedings deemed to be commenced) applies for the purposes of subsection (11) as it applies for the purposes of that section.”
This amendment provides for proceedings in Scotland for an offence under Clause 4 to be brought within 12 months of the commission of the offence. Under section 136 of the Criminal Procedure (Scotland) Act 1995 the default period for bringing summary proceedings is 6 months.
Amendment 19, in clause 4, page 5, line 45, at end insert—
“( ) See section (Presumptions in proceedings in Scotland for offence under section 1, 3 or 4) for provisions about presumptions as to the content of containers in proceedings in Scotland.”—(Victoria Atkins.)
See the explanatory statement for Amendment 14.
Clause 4, as amended, ordered to stand part of the Bill.
Louise Haigh
I beg to move amendment 52, in clause 5, page 6, line 44, after “otherwise” insert
“, and any place other than premises occupied as a private dwelling (including any stair, passage, garden, yard, garage, outhouse or other appurtenance of such premises which is used in common by the occupants of more than one such dwelling).”
This amendment would extend the definition of public places in relation to England and Wales and Northern Ireland.
This amendment was specifically requested by serving police officers because of concerns about the definition of public place referenced in this clause. I appreciate that it is also referenced in other pieces of legislation, so I fully accept and expect that the Minister will raise concerns about differing definitions of public place, but it is important to have this debate about the clause, given the gravity and extent of the offences that could be committed, and because of the police’s concerns that the definition is too narrow and limits their powers in the event of possession in a communal area of a residential dwelling.
Our intention is to make it absolutely clear that “public place” also refers to any area that is exempt from the definition in the Bill due to its not being a place where any ordinary member of the public has access, but which is still regarded as a public place because it is not within a premise occupied as a private dwelling. Such places include any stair, passage, garden, yard, garage, outhouse or other place of such premises that is used in common by the occupants of more than one dwelling.
The amendment helpfully mirrors legislation in Scotland that gives the police broader powers to ensure the safety of residents in communal areas—clearly because of criminality that has taken place in such areas and in response to the police’s limited powers to take action. The existing definition of “public place” in section 1 of the Prevention of Crime Act 1953 is
“any highway and any other premises or place to which at the material time the public have or are permitted to have access, whether on payment or otherwise”.
In Scotland, in this Bill and other legislation, it is
“any place other than premises occupied as a private dwelling”,
such as a garden, yard or outhouse. That reflects the existing definition of “public place” in Scottish legislation. The offence of having an offensive weapon, or a bladed or pointed article, in a public place is set out in sections 47 and 49 of the Criminal Law (Consolidation) (Scotland) Act 1995.
A 2011 report by the Scottish Government explained that the definition was changed to capture locations such as the ones in our amendment. The explanatory note to section 37 of the Criminal Justice and Licensing (Scotland) Act 2010 made it clear that possession in a public place offences
“may be committed by possession of an offensive weapon or a knife on the common parts of shared properties such as common landings in tenement blocks of flats.”
We strongly believe that these measures must be extended to those public places to bring security to residents in those areas and to give the police the power to act if offensive weapons are possessed within them. It is clear that the police need and want this power, and we see no reason why we should not align ourselves with the measures in Scotland.
Victoria Atkins
I am grateful to Opposition Members for tabling this amendment. It proposes that we extend the definition used in England, Wales and Northern Ireland to bring it closer to the definition used in Scotland, which would be an extension of the current definition and would include private properties. I absolutely understand why the police and others are seeking to close what they perceive to be a gap in the law. It appears that some private properties would not be covered by the offence in clause 5.
Of course, possessing a corrosive substance in a private place is not an offence. It may well be that some of us have an assortment of cleaning products that would qualify as corrosives in our home, so the Bill does not seek to make it illegal to possess a corrosive in a dwelling. There may well be properties that are not homes and have legitimate uses for corrosive substances, some of which we have already discussed during our scrutiny of the Bill. We do not want the Bill to criminalise members of the public who are going about their daily lives or enjoying a hobby outside their home.
The amendment applies solely to the offence of possession. It is worth noting that a number of other criminal offences are available to the police, in relation to threatening with a corrosive. For example, there is the offence of threatening the use of a corrosive substance as an offensive weapon, and it would be possible to charge a person with common assault under the 1998 Act or with a public order offence. I can see that there may be some benefit in expanding the definition to cover possession in all places that are not dwellings. I would be grateful if the Committee would allow me time to consider this matter further with my officials.
Louise Haigh
I am very grateful that the Minister is willing to consider the amendment. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: 20, in clause 5, page 7, line 4, after “See” insert “—
(a) section (Presumptions in proceedings in Scotland for offence under section 5) for provisions about presumptions as to the content of containers in proceedings in Scotland;
(b) ”—(Victoria Atkins.)
See the explanatory statement for Amendment 14.
Question proposed, That the clause stand part of the Bill.
Stephen Timms
I very much welcome the inclusion of clause 5 in the Bill. It is a very important step forward to make an offence of having a corrosive substance in a public place, in exactly the same way as having a knife in a public place is an offence. I am hopeful that the Bill will address some of the problems we have seen in areas such as mine.
I just want to ask the Minister one question. Subsection (2) makes the point that it is a defence for somebody if they can prove that
“they had good reason or lawful authority for having the corrosive substance with them in a public place”.
Subsection (3) goes on to say that it is a defence if the person has the corrosive substance with them for work. Will the Minister set out what the courts should expect to regard as a good reason for carrying a corrosive substance in a public place? I think that all of us would rightly accept having it for work to be a perfectly defensible reason. I wonder whether there is a risk of getting into some difficult areas where people come up with a raft of potential excuses for carrying acid in a Lucozade bottle. Has there been any thought about what would count as a good reason or lawful authority for having this substance, to give some guidance to magistrates courts and others who might themselves quite quickly having to make these judgments when cases come before them?
Louise Haigh
May I request a couple of clarifications from the Minister? She mentioned testing kits earlier. Are they to be made available to every constable in every police force in the country? If not, to whom will they be made available to enable testing while on the beat, so to speak?
With regard to the definition in clause 5 about not burning human skin. We discussed bleach earlier; household bleach does not corrode skin, so would that not fall under the definition in clause 5, since it does not in schedule 1? Will the Minister give us some examples of products that would match the definition in clause 5 but not come under schedule 1, if that makes sense?
Victoria Atkins
I will definitely have to write to the hon. Lady on that last point. That is all about concentrations and how long the substance has to be on the skin to corrode.
In answer to the question that the right hon. Member for East Ham asked about how subsection (2) as a defence adds to subsection (3), which is the specific work defence, it is to cover situations where, for example, someone might have bought a high-strength drain unblocker and are taking it to use at home. In the example he gave of the substance being decanted into a Lucozade or drinks bottle, the act of decanting the substance into another bottle would be a strong aggravating feature, certainly if I were prosecuting and hoping to prove my case on not being able to rely on subsections (2) or (3).
On the clause as a whole, we hope that this new offence will be able to help the police in the important and difficult work they do in tackling these crimes. I heard what the hon. Member for Sheffield, Heeley said about testing kits. We will have to review the policy of supplying them on the basis of what we know. After all, as the right hon. Member for East Ham said, his borough sadly has the highest incident of acid or corrosive substance attacks, but in other parts of the country they simply do not happen. I do not want to tempt fate or to mention the word “resources,” but we want to ensure that the resources are best deployed where the need is clear, as it is in some parts of London.
I hope that the Committee supports the clause, which will mean that the police can deal with someone carrying around acid for no good reason—
Louise Haigh
I am grateful to the Minister—I appreciate that she was literally about to sit down. I am a bit concerned about how that will work in practice. As a former special constable—I know I mention that often—I struggle to see how I would have implemented this offence without the testing kit being available. If I do not have such a kit and I stop and search someone, perhaps finding a water bottle, what am I meant to do? Obviously I am not going to test it on my own skin, so I would have to take the person to the police station to do forensic tests there, which seems like an unconscionable use of police resources. It is difficult to envisage how the police will implement the legislation if they do not all have the testing kit available, although I completely appreciate the Minister’s point about directing the kits to where the problem is most prevalent.
Victoria Atkins
Of course, the police will be leading our knowledge on this with the College of Policing and the National Police Chiefs Council, so I do not want to commit to every single constable having a kit in their possession, in case those who know day-to-day policing in and around their force areas say, “Actually, we don’t think we need it in this area.” I do not want to make a promise, only for it not to happen in good faith. If I may, I will leave the Government’s answer as being that we will of course consult the police on the deployment of the testing kits.
Karin Smyth (Bristol South) (Lab)
May I comment on what we have just heard? I am resident in the Bristol area, and I am slightly concerned that the Minister suggested that in certain parts of the country we might not be looking further. We had an incident just outside Bristol, in the suburbs, in an area that might not normally be expected to have such an incident. We do not know the details yet, so I cannot comment further, but it highlights the fact that even in a family retail park, in essence, that sort of incident can still happen. Equally, over the summer I was out with the DVSA and the police to look at the testing of diesel in relation to trailer safety, and the logistics of how we equip officers for testing need to be thought through more. I am a little concerned that we do not seem to know how the testing will be operationalised. It would be helpful to know that before the Bill returns to the Floor of the House, so that we can be clear about how, operationally, police officers will be equipped to respond to this offence and whether they will be carrying more kit and so on.
Victoria Atkins
I absolutely understand the spirit in which the hon. Lady raises the issue. However, we have been very keen to act as quickly as we can. The Government, with all our various layers of consultations, work-rounds and so on, wanted to get this piece of legislation before the House as quickly as possible so that the police have the powers and can start to deploy them.
We have commissioned the Defence Science and Technology Laboratory, along with the NPCC lead, to develop the testing regime that will allow officers to test suspect containers for corrosive substances. A project team has been appointed and a work programme is being developed. I do not know—though I will ask the question—whether, frankly, I will be able to provide the Committee with an answer about force decisions on whether every police officer will be given a test kit. In fact, I suspect I will not be able to, because that is a matter for the chief constables. Once we have developed this, it will be for chief constables and police and crime commissioners to assess their local policing landscape and see whether this is a piece of equipment that they feel the officers need.
I am trying to leave my answer as open as possible, not because I am not trying to help the Committee, but because I want to give the police and the commissioners the space to be able to make the right decisions that are appropriate for their areas. Clearly, there will be some areas, such as certain parts of London, where this will be a really important piece of kit. There will be other parts of the countries where frankly it will not be, because there has not been any such attack.
Louise Haigh
I think my hon. Friend the Member for Bristol South was asking whether it would be possible for this information to be made available before the Bill returns to the Floor of the House on Report. In particular, although I appreciate that its roll-out will be a decision for chief constables and police and crime commissioners, will it be made clear whether they will be provided by the Home Office or whether police forces will have to pay for them out of their budgets?
Victoria Atkins
I am conscious that the project team is being appointed and a work programme is being developed. I will use my best endeavours to bring those answers before the next stage of the Bill, but if I am not able to, that will be because these matters are out of my hands and the laboratory or others may need more time to provide those answers. We want to get the Bill passed as quickly as possible and we want to be able to help officers to use clause 5, where they need it, as quickly as possible.
Question put and agreed to.
Clause 5, as amended, accordingly ordered to stand part of the Bill.
Clause 6
Appropriate custodial sentence for conviction under section 5
Question proposed, That the clause stand part of the Bill.
Louise Haigh
As with the entirety of the Bill, we fully support the intention and most of the content of the clause, but we share the concerns of some of those who have given evidence to the Committee and to the Home Office about mandatory minimum sentencing for children. The clause has been lifted from an amendment to the Criminal Justice and Courts Act 2015, proposed by the former Member Nick de Bois, that introduced a two-strikes sentence, meaning that adults convicted more than once of being in possession of a blade will face a minimum six-month prison sentence and a maximum of four years, and that children aged 16 and 17 will face a minimum four-month detention and training order.
Since that legislation was introduced, there have been multiple media reports that have suggested that those sentencing arrangements are not being carried out for adults or children covered by that clause. Will the Minister provide details of how many offenders have been sentenced under those provisions and whether there has been monitoring of how many offenders do not receive a custodial sentence included in that clause, having been charged and convicted of knife possession on two separate occasions?
For example, the Telegraph reported in March 2016 that provisional data indicated that since the legislation was introduced, only 50% of offenders had been jailed, while another 23% had been given suspended sentences. Of those offenders, 907 were adults and 50% received a custodial sentence with an average sentence length of 6.6 months. It stated that
“The remaining 59 cases were offenders aged 16 or 17, with…46 per cent receiving an immediate custodial sentence.”
Has there been any review by either the Home Office or the Ministry of Justice of whether those reforms in the 2015 Act are being implemented by the courts—and, more importantly, of whether those reforms are effective? Are they improving public protection? Are they acting as a deterrent to children and adult offenders? Are they reducing recidivism? Has there been any review of the measures? If not, would it not have been desirable to conduct such a review before bringing forward the identical measures in this Bill?
Part of the written evidence we received came from the Standing Committee for Youth Justice, which made a compelling case as the Criminal Justice and Courts Act 2015 passed through Parliament—it restates it here: that mandatory minimum sentences for children do not necessarily act as a deterrent, do not necessarily rehabilitate children who are caught with knives and do not ensure that the public are protected, as opposed to when the judiciary has full discretion.
The Children’s Commissioner said in evidence:
“I want to have a system that can respond to individuals, so my instinct is not to go down the mandatory minimum sentences route but to look at individual cases.”––[Official Report, Offensive Weapons Public Bill Committee, 19 July 2018; c. 90, Q223.]
I fully acknowledge that during that same evidence session we heard from the Victims’ Commissioner, who said:
“I have to say that victims tell me they want mandatory; only then will it be effective.”––[Official Report, Offensive Weapons Public Bill Committee, 19 July 2018; c. 91, Q223.]
Of course, it is understandable that victims and the public at large should want to see people who commit, or intend to commit, abhorrent criminal offences sent to prison for a reasonable amount of time, but the ultimate objective of custody must be to reduce offending and keep the public more secure. To achieve that, we believe that we have to look at each individual case, especially when it involves children, and the judiciary should have full discretion to respond appropriately.
The Standing Committee for Youth Justice’s evidence is compelling in that regard. On the claim that custody acts as a deterrent, it contests that awareness of second sentencing among children is perceived by frontline practitioners to be low. There are many children in and around the criminal justice system who we would not expect to make rational choices, in the economic, behavioural sense of the word.
As well as that, children carry knives and weapons for numerous and complex reasons, often because of the perception that it is necessary for self-protection. Punitive measures, particularly custodial measures, are unlikely to act as a deterrent, even if the child is aware of the punishment and able to act rationally. In other words, for those children who fear for their safety and their lives, carrying a knife or corrosive substances may be seen as the rational course of action, and the threat they are facing—perceived or real—will be more significant than the threat of a custodial sentence. Research on deterrents has consistently supported that, with studies finding little or no evidence that sentence severity or the threat of custody acts as a deterrent to crime for children.
The statistics on knife-crime offences also support that evidence. Since the introduction of mandatory minimum custodial sentencing in 2015, the number of children convicted of possession or threatening offences involving bladed articles or offences weapons has risen.
Sarah Jones (Croydon Central) (Lab)
I want to add to the sensible speech my hon. Friend is making. In the all-party parliamentary group on knife crime, our first meeting was with about 15 young offenders who had been in prison for knife offences. We had a conversation with them about whether prison was a deterrent or not. Some of them said, shockingly, that going to prison was a relief, because it was a break from the streets. They could keep out of trouble and be fed. They were in a secure institution. Their lived experience was so tough that being in prison was not the worst thing in the world, so I endorse everything she is saying about it not necessarily being a deterrent.
Louise Haigh
I am very grateful to my hon. Friend for that intervention. She has done amazing work chairing the all-party parliamentary group on knife crime, following the tragic experiences of her young constituents. She brings that evidence and wealth of experience to bear, to show that it is not a deterrent.
The other argument made is around public protection. It seems obvious that if an offender is removed from the streets and detained, the public are better protected. That is undeniably true for many offence types and for prolific offenders, but children in and around the criminal justice system are a relatively transient group. They are quickly replaced by others. They can sometimes—more often than not—go through phases of criminality that they grow out of, so custodial sentencing is unlikely to have a significant impact on public protection.
The reoffending rates for children leaving custody are stubbornly high. Last year, more than 68% of children who left custody reoffended within a year, yet for those who received youth community penalties the figure—still too high—was 58%, which is significantly lower. We know from all the evidence that diverting children away from the formal youth justice system is more effective at reducing offending than any punitive response. I completely accept what my hon. Friend said about custody being a relief, but the evidence also indicates that custody is itself criminogenic: it encourages crime.
I am not for a second saying that offenders under 18 should not serve custodial sentences under any circumstances. Only a couple of weeks ago, a constituent of mine was attacked in the street and stabbed five times—including once in the heart and once in the lungs—by a 15-year-old, and I have urged the Crown Prosecution Service to review the sentence that he received on the grounds of undue leniency. However, that just demonstrates that every case is different.
Clearly, in the vast majority of cases, the carrying of acid for a second time should result in a custodial sentence. However, if the youth justice service and the judge deem that other interventions would be more effective, they should have the full discretion to impose them. I do not believe that subsections (2) or (4) provide for that. Will the Minister furnish the Committee with examples of the use of the sister clause of subsection (2) in the 2015 Act? It would be very helpful for us to understand in what circumstances that
“relate to the offence, the previous offence or the offender”
judges have chosen not to implement the mandatory sentencing otherwise expected in the 2015 Act.
I was interested to hear the Minister mention that one reason why the Government decided not to go above the age of 18 for the sale of corrosive substances and knives is that 18 is the internationally recognised age of the child. She is absolutely right: the UN convention on the rights of the child states that clearly. On that basis, how can we justify delivering mandatory minimum sentences for children, when so much of the evidence suggests that it is not effective or appropriate? The UN convention on the rights of the child states that mandatory sentences remove judicial discretion and the ability of courts to ensure that the penalty best fits the circumstance of the offence. Indeed, our own Sentencing Council in the UK said that a custodial sentence should always be a measure of last resort for children and young people; it seems that the clauses directly contradict the Sentencing Council’s guidance.
The Law Society also backs up those concerns. It said:
“In our view, courts should be trusted to impose the most suitable and just sentence in the unique circumstances of the offence and the offender before them. Sentencing guidelines exist to provide consistency and indicate aggravating factors, such as previous convictions. We accordingly do not support the setting of a minimum sentence for corrosive substance offences for the same reason.”
I appreciate that, even if the Minister agrees with these concerns, there are difficulties, given that we are trying to mirror what is already in legislation. However, I hope the Minister will accept the concerns that have been raised. If she is wedded to going ahead with the clauses, perhaps she will provide us with the evidence base for requiring mandatory minimum sentences for children, particularly relating to reoffending, public protection and deterrence.
Victoria Atkins
The clause is being inserted in the context of corrosive substances because we want to mirror the provisions in legislation concerning knives and to send out the clear message that corrosive substances are just as much as an offensive weapon as knives.
On the first occasion when someone comes before the court, the sentencing judge will obviously have all powers and options open to her or him to sentence the person in possession of a corrosive substance or a knife; they will have that power to exercise their discretion. However, as is the case with knives, we want to send out a tough message. Someone who has already been through the court process and stood in front of a judge—who may have given them a community penalty rather than imprisonment if that was deemed appropriate—is then on notice that, if they walk around with a knife or corrosive substance again, a court will have the power to impose an immediate custodial sentence, unless subsections (2) and (4) apply. Subsections (2) and (4) are important, because they allow the court to divert from the mandatory minimum sentence, if it is
“of the opinion that there are particular circumstances”.
Louise Haigh
I fully appreciate that there is a wide spectrum of views out there. In regard to the campaign led by the former Chair of the Home Affairs Committee, I would say that hard cases make for bad law. I made several requests in my speech for the evidence underpinning the clause and the provision in the 2015 Act. Rather than ceding to those siren voices that we routinely hear in this place about increasing sentence lengths—I often add my voice to them too—I would be grateful if the Minister provided us with the evidence that the provision will improve public protection and reduce reoffending.
Victoria Atkins
I am so sorry; I have got a note here. I am going to ask the Ministry of Justice and write to the Committee with a response to the questions the hon. Lady asked about figures and statistics and so on. That material is held by the Ministry of Justice, which owns this territory. I hope that assists the Committee.
Question put and agreed to.
Clause 6 accordingly ordered to stand part of the Bill.
Clause 7
Offence under section 5: relevant convictions
Question proposed, That the clause stand part of the Bill.
Louise Haigh
If I may, I want to ask for one quick clarification in relation to subsection (2), which states:
“References in subsection (1) to a conviction for an offence are to a conviction for an offence regardless of when it was committed.”
Will the Minister confirm that that is compliant with the Rehabilitation of Offenders Act 1974? Is subsection (2) the case even if any such conviction is now spent?
Victoria Atkins
Those who spend a great deal of time and effort in drafting the provisions of the Bill will no doubt very much have that at the forefront of their mind. It might well be that it is such a nuanced position and topic at 8.18 at night that I might have to write to the hon. Lady.
Question put and agreed to.
Clause 7 accordingly ordered to stand part of the Bill.
Clause 8
Search for corrosive substances: England and Wales
Question proposed, That the clause stand part of the Bill.
Louise Haigh
The Minister made a slight reference earlier—it came as a surprise to me—to the Home Office consulting on stop-and-search powers. I note the consultation that the Home Office released last month, which I believe relates to codes C and H of the Police and Criminal Evidence Act 1984. That does not cover stop-and-search, but I note the Home Secretary’s announcement today that he is mulling over increased powers for officers on stop-and-search in relation to corrosive substances. I was confused by that, because clause 8 clearly provides constables with the power, under an amended PACE, to stop and search offenders who they have reasonable grounds to believe have committed, are committing or are going to commit an offence under the Bill.
Can the Minister confirm whether the Home Office is considering additional stop-and-search powers? Is it not convinced that the reformed stop-and-search powers in the Bill are sufficient to tackle the issue of corrosive substances? Does it have further plans to lower the stop-and-search threshold to levels currently associated only with section 60 of PACE, which, as far as I can see, is the only distinction that the Home Secretary could have been making in what he said today? He said that officers would have to have only suspicion, which I assume is a lesser threshold than the current threshold of reasonable grounds. I would be grateful if the Minister clarified exactly what the Home Office is taking further steps on. If it is not convinced that the Bill is sufficient, why is it not tabling amendments at this stage?
Victoria Atkins
While existing powers allow a police officer to conduct stop-and-search for a corrosive substance where it is suspected that a person is in possession of a corrosive substance to cause injury, they do not extend to the proposed new offence of possession in a public place. The proposed extension of stop-and-search seeks to address that gap to enable the police to take preventive action. We have to consult on such an extension, so it is clause 8 that we will be consulting on, but the consultation has not opened yet.
Question put and agreed to.
Clause 8 accordingly ordered to stand part of the Bill.
Clauses 9 and 10 ordered to stand part of the Bill.
Clause 11
Consequential amendments relating to section 5
Victoria Atkins
I beg to move amendment 21, in clause 11, page 10, line 25, at end insert—
‘(1A) In section 37(1A) of the Mental Health Act 1983 (powers of courts to order hospital admission or guardianship: effect of provisions requiring imposition of appropriate custodial sentence)—
(a) omit the “or” at the end of paragraph (c), and
(b) at the end of paragraph (d) insert “, or
(e) under section 6(2) of the Offensive Weapons Act 2018 (minimum sentences in certain cases of possession of a corrosive substance),”.
(1B) In section 36(2)(b) of the Criminal Justice Act 1988 (review of sentencing in case of failure to impose appropriate custodial sentence)—
(a) omit the “or” at the end of sub-paragraph (iii), and
(b) at the end of sub-paragraph (iv) insert “; or
(v) section 6(2) of the Offensive Weapons Act 2018.”’
This amendment and Amendments 22, 29 and 30 provide for amendments to be made various Acts in consequence of the provisions in Clauses 6 and 7 on appropriate custodial sentences for the possession of corrosive substances.
The Chair
With this it will be convenient to discuss Government amendments 22, 29 and 30.
Victoria Atkins
These are minor and consequential amendments to clause 11, on the possession of a corrosive substance in a public place, and clause 38, which deals with the extent of the provisions in the Bill. They make amendments to various Acts in consequence of the provisions in clauses 6 and 7 on appropriate custodial sentences for the possession of corrosive substances. The purpose of the amendments is to bring the sentencing measures in relation to the prohibition on corrosives in the Bill in line with those for existing offences involving knives.
Amendment 21 does two things. First, it will allow a court to provide for a hospital or guardianship order under section 37 of the Mental Health Act 1983 as an alternative to a minimum sentence for a second offence of possessing a corrosive, which mirrors the existing approach for knife possession. It also allows unduly lenient sentences to be referred to the Court of Appeal by the Attorney General.
Amendment 22 will prevent the court from imposing an absolute or conditional discharge under section 12 of the Powers of Criminal Courts (Sentencing) Act 2000, where an appropriate custodial sentence must be imposed for an offence under clause 5. It also allows for a reduction in sentence for a guilty plea under section 144 of the Criminal Justice Act 2003, in line with the rules in place for existing offensive weapons offences. Amendments 29 and 30 relate to the territorial extent of amendments 21 and 22, which is England, Wales and Northern Ireland, and England and Wales respectively.
Amendment 21 agreed to.
Amendment made: 22, in clause 11, page 10, line 30, at end insert—
‘(3) In section 12(1A) of the Powers of Criminal Courts (Sentencing) Act 2000 (provisions preventing the making of an order for absolute or conditional discharge), after paragraph (f) insert—
“(g) section 6(2) of the Offensive Weapons Act 2018.”
(4) In section 144 of the Criminal Justice Act 2003 (reduction in sentences for guilty pleas)—
(a) in subsection (3), at the end insert—
“section 6(2) of the Offensive Weapons Act 2018.”, and
(b) in subsection (5), at the end insert—
“section 6(2) of the Offensive Weapons Act 2018.”’—(Victoria Atkins.)
See the explanatory statement for Amendment 24.
Clause 11, as amended, ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Paul Maynard.)
Offensive Weapons Bill (Fifth sitting)
(5 years, 7 months ago)
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The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Chair
Before we begin our detailed line-by-line consideration of the Bill, it might be helpful, particularly for one or two Members who might not have sat on a Bill Committee before, if I ran through the way we tend to operate. Broadly speaking, all rules of procedure, address and behaviour are very similar to those in the main Chamber. Amendments have been tabled, and although we seem to be short of the lists of amendments to be debated, we have sent off urgently for a further supply, which will soon be available in the room and online.
The selection list shows how the amendments have been grouped. Broadly speaking, the Chair, advised by the learned Clerks, groups together amendments that cover similar subjects so that they can be discussed in one debate. The Member who puts their name to the first amendment in a group is called to speak first. Other Members can then catch my eye in the normal way. The Member who tabled the amendment is then called to wind up at the end of the debate. Before that Member sits down, he or she should tell me whether they intend to seek to withdraw the amendment or put it to a vote. It is important to remember to do that. I add to that the presumption that the Minister will seek a decision on any amendment that the Government have tabled.
It is worth noting, for those who do not know, that decisions on amendments are taken not in the order they were tabled, but in the order they appear in the Bill. Therefore, a vote on an amendment may well come not after the debate on that amendment, but at a later stage of consideration. At the end of the consideration of amendments to each clause, there may or may not be a debate on whether the clause should stand part of the Bill. The Opposition may ask for such a debate if they wish, but if there has been a fairly substantial debate on the amendments to the clause, then by and large we tend not to have a stand part debate and there will be a vote. I hope that is reasonably clear. The Committee met in July and agreed a programme motion. It is printed on the amendment paper and lays out the order in which we intend to consider the Bill.
Louise Haigh (Sheffield, Heeley) (Lab)
On a point of order, Mr Gray. I do not believe you were in the Chair for our first evidence session, but I raised a point of order because we had not seen the consultation responses to the Bill. The Minister promised to publish them, but we are yet to receive them two months after that request. I made the case then, and believe it still to be the case, that it is difficult to scrutinise a piece of legislation if we have not seen all the published evidence around it, so I seek your guidance on that.
The Chair
Although that is not technically a point of order, the hon. Lady makes a particularly good point about how the Committee will be better informed by having the Government’s response to the consultation. I therefore hope that the Minister has heard what the hon. Lady had to say, and she will no doubt wish to bring forward the Government’s response in due course—she might even wish to raise a point of order about it.
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
I apologise to the hon. Member for Sheffield, Heeley. I confess I thought that that had happened, but if it has not, we will make it happen today.
The Chair
That seems eminently satisfactory.
Clause 1
Sale of corrosive products to persons under 18
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I beg to move amendment 42, in clause 1, page 1, line 3, after “sell” insert “or supply”
This is a probing amendment to debate whether the scope of the offence is broad enough or should be extended to include supply without payment.
Thank you, Mr Gray, for your whistle-stop tour of the procedure to be followed during these proceedings, and I apologise in advance if I get something wrong. I hope that you and all hon. Members feel suitably refreshed after our summer recess. At the outset, may I reiterate the Scottish National party’s support for this Bill? I know there has been significant and close working between the Scottish and United Kingdom Governments on this issue, which covers a mixture of devolved and reserved competencies. We have tabled some probing amendments to allow for discussion on one or two issues that arose during our evidence sessions, and I will keep an open mind about the other amendments tabled by the Opposition, to see whether they can improve the Bill.
We support the creation of the offence in clause 1, and the thrust of Government amendments 13 and 14. We are sympathetic to amendment 51, although we suggest that the drafting might need some work. For example, it is not clear to me whether approval of both Houses is the right mechanism in cases where Northern Ireland’s Department of Justice is the appropriate national authority. Perhaps there should also be a role for Police Scotland alongside the National Police Chiefs Council.
I turn to my amendment 42. In the evidence that the Committee heard on this issue, one witness expressed the view that supply as well as sale should be an offence. On the other hand, we received evidence from another witness that it should not. The concern of that particular officer was about the risk of making supply an offence where there was a perfectly reasonable domestic circumstance—for example, a parent giving a cleaning product to their child. Obviously my amendment would not resolve the issues highlighted by the second witness. However, it cannot be beyond the wit of Government to create an offence that excluded such domestic circumstances, but nevertheless covered circumstances where corrosive substances were supplied for free rather than simply sold.
My concern is about, for example, where person A, aged 20, gets together with person B, aged 16, in their house, B says he is going to attack person C, and person A then supplies him with a corrosive substance. It is not clear to me whether A’s actions in supplying that substance in advance of the attack are adequately covered by the criminal law. I simply seek an assurance that they are covered by other offences or that the Government will give further consideration to whether supply without consideration should be an offence.
Louise Haigh
I welcome all members back to the Committee after the recess. I apologise if my hair is blinding anyone under these lights; it is a little brighter than I anticipated. I rise to speak to amendment 42, tabled by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East—I apologise that I am unable to pronounce his constituency properly, so he will be the hon. Member for the SNP for the purposes of this debate.
The Opposition have also grappled with this important issue. My right hon. Friend the Member for East Ham raised it on Second Reading and we believe it requires clarification from the Minister. First, it is as well to state clearly the problem raised by the amendment that needs to be solved. The widespread use of corrosive substances, in attacks where other offensive weapons would previously have been used, is a relatively new phenomenon. It has been horrifying to see their continued use and the spread of attacks beyond certain gangs to which they were first limited. For that reason, under law, it is clear that a high residual tolerance to them remains, even after public and Parliamentary tolerance has waned.
That is partly because such substances are used for perfectly innocuous purposes, such as household cleaning, or in industrial products. The same cannot be said, for example, of firearms. However, in recent years the climate has changed. I dare say we will hear further discussion on that throughout the debate on clauses 1 and 2. The first and most apparent reason is that the use of such substances in life-shattering attacks has increased. The most recent evidence suggests an increase of 400 attacks since 2012, from around 200 to over 600. The UK now has the highest rate of per capita acid attacks in the world.
The tragic attacks include reports of an attack on a three-year-old child and an incident where an attacker used corrosive substances in a nightclub, injuring 20. Corrosive substances are becoming a favoured weapon in muggings and thefts. It cannot be ignored as a factor that for many years now there has been a high level of parliamentary tolerance towards such corrosive substances. The most recent changes to the Poisons Act 1972, made by the Deregulation Act 2015, even watered down the existing controls, despite the fact they are clearly not strict enough. That is why amendments such as this are important in testing the law around supply. While the amendment is important in its own right, it also speaks to the broader legal architecture around corrosive substances, where we are now playing catch up.
This probing amendment raises a two-fold issue. In the first scenario, a gang member supplies an offensive weapon with the explicit intention that an individual would use it to carry out an attack. Would that be an offence? In the second scenario, an individual supplies a corrosive substance to a person under the age of 18 who has no lawful purpose for having it, but not knowingly with the intention that an individual would use it to carry out an attack. Would that be considered an offence?
I believe that the answer is yes in the first scenario and no in the second, but I would be grateful for guidance from the Minister. The guidance we have been given is that the first offence—the supply of an offensive weapon with the intention that it be used to carry out an attack—is not covered by specific legislation for corrosive substances. However, in this example it would be considered an offence under general law, given that person A knowingly supplies person B with a corrosive substance, where person B intends to carry out an attack on person C. Such conduct, involving assisting or encouraging another person to commit a crime, could be prosecuted using either the general criminal law concept of secondary liability or the inchoate offences such as conspiracy.
The Crown Prosecution Service has clear guidance on secondary liability that explains the general concept, which would be relevant to this specific type of offence. A principal is one who carries out the substantive offence; a secondary is one who aids, abets, counsels or procures the principal to commit the substantive offence. The example that my hon. Friend the Member for West Ham (Lyn Brown) gave on Second Reading would already be covered in general law.
There is a difficulty with the second scenario: can a person be guilty of supplying a corrosive substance to an under-18 that turns out to be an offensive weapon if they do not know that the individual will commit an offence? In other words, why would it be illegal to sell corrosive substances listed under schedule 1 to an under-18, but not to supply any corrosive substance to an under-18?
The crux of the issue is that, without intent, corrosive substances exist under law as innocuous substances rather than as dangerous weapons. The weak Deregulation Act 2015 and Poisons Act 1972 allow any non-regulated substance to be supplied to a child, an under-21, an under-18 or any individual with a criminal record. In fact, under law it is perfectly acceptable for a criminal convicted of using a corrosive substance in an attack to hold a reportable substance. If that substance was ammonia, for instance, which is responsible for many of the attacks in which a corrosive substance is used, it would be perfectly legal for them to possess it or for any individual to supply it to them.
We do not think that there would be public tolerance for criminalisation of the supply of acid, which could have unintended consequences—for instance, criminalising a mother or father in the home who supplies a household cleaning substance to a child. However, there must be scope to broaden the architecture of legislation around corrosive substances and under-18s, as the Government prefer—or under-21s, as we prefer—and to prevent convicted criminals from possessing such substances.
Aside from possession and sale, the Bill does not suggest any further criminal offences or controls for corrosive substances, despite clear evidence that such substances are becoming the weapon of choice for individuals as a direct result of the ease with which they can be obtained. There is an entire architecture for more traditional offensive weapons that would allow for such control and for the CPS to select charges for that array of offences. I hope the Minister will consider that and say why the Home Office has not considered them.
As the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East mentioned, one option would be to consider supply to be a general offence. As mentioned, that could have a range of unintended consequences, but if we are to ban the sale of corrosive substances to under-18s, it seems inconsistent that it would still be perfectly legitimate for an individual to supply a corrosive substance to a minor for the same purposes.
The Home Secretary was clear on Second Reading about the intention behind clause 1:
“of course it is wrong that young people can buy substances that can be used to cause severe pain and to radically alter someone’s face, body and life. There is no reason why industrial-strength acids should be sold to young people, and the Bill will stop that happening.”—[Official Report, 27 June 2018; Vol. 643, c. 924.]
The evidence we have seen shows that the real issue is about young people getting their hands on this acid. We have seen examples of them getting hold of it and separating it into two mineral water bottles, then carrying it around and using it to devastating effect. These measures, alongside the measures on possession of acid in a public place, will combine to make a big difference to the situation we find ourselves in. However, as the Bill stands, it will still be possible for young people to, in the words of the Home Secretary, get their hands on such substances. Anybody—a parent or a friend over the age of 18—could purchase or have in their home a regulated substance or a substance listed under schedule 1 and it would not be an offence for that person to supply acid to the under-18.
It is clear that the Bill does not do what the Home Secretary thinks it does. Should the Government fail to put this right and create a specific offence of supplying such a substance, we will have to return to this issue on Third Reading. We therefore fully support the amendment, which seeks to test the law on the availability of corrosive substances. It is clear that the law is inadequate. It would be welcome to hear from the Minister whether she is open to further measures.
Victoria Atkins
It is a pleasure to serve under your chairmanship, Mr Gray, and alongside colleagues on both sides of the Committee. It is also a great pleasure to respond to the first group of amendments. I am grateful to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for giving us such an interesting issue with which to start our detailed consideration of the Bill. He rightly drew attention to the very good collaboration between the United Kingdom Parliament and the Scottish Parliament, and I record my thanks for its assistance in consideration of the Bill.
I appreciate that this is a probing amendment—there is no mention of the supply of bladed articles—but it gives us an opportunity to explore more generally whether the offences relating to age-restricted products, such as those covered by schedule 1, should be expanded to include supply without payment for such products.
“Supply” means simply providing something to another person. In this context that might cover three types of scenarios. The first is where a person over 18 buys a product and gives it to a person under 18. The second is where the product is provided free of charge by the seller as part of a deal—for example, getting a free bottle of drain cleaner to help to unblock drains when buying a tool to do so. The third is where someone delivers the product to the buyer on behalf of the seller—for example, where a delivery company supplies a hospital with products they have bought from a manufacturer. We have no evidence that corrosive products are ever given away free as part of a promotional deal. That has certainly not been raised with us as an issue by retailers, trading standards bodies or the police.
The scenario where someone delivers products on behalf of the seller raises a number of issues, some of which I am sure we will consider in more detail when we debate amendments 43 and 44. It is worth mentioning that extending the offence to cover supply would mean that a delivery driver who drops off cleaning products at a doctor’s reception, a hotel, a DIY store, a warehouse or a builders merchants would commit an offence if the person receiving them was under 18. That was certainly not the intention behind the offence, which is aimed not at business transactions but at stopping the sales of corrosives to people under 18. We will come to this later, but the offence under clause 4 would apply only to a delivery company acting on behalf of an international or overseas seller.
In relation to the scenario where a person buys a corrosive product and gives it to a person under 18, there are issues that we must resolve. Where an adult buys a corrosive product and gives it to a person under 18 with the specific intent—as the hon. Member for Sheffield, Heeley has described—they could be prosecuted for aiding and abetting a criminal offence. Under clause 5, both they and the person under 18 could also be caught by the offence of having a corrosive substance in a public place, if that is where the transfer occurred. The main difficulty in trying to capture such circumstances by extending the offence to include supply is that corrosive products are used in a range of legitimate activities that people under the age of 18 might be engaged in. Those include hobbies such as soap making, DIY and cleaning activities in the home, as well as a wide range of jobs in which people under the age of 18 might be employed and where chemicals are used quite properly—for example, in swimming pools or by an apprentice plumber.
Under-18s may also need to use some of these products as part of their studies—for example, in A-level chemistry. Extending the offence to include supply would mean that a chemistry teacher giving nitric acid to a student to use in the very controlled situation of an experiment in their college or school would be committing an offence. A plumber who gave drain unblocker to his or her apprentice would also be committing an offence.
Extending the offence to include supply of a corrosive product would also raise the question about what we do in relation to the sale of bladed articles such as knives. The existing offence is limited to selling a bladed article to a person under 18 and does not include supply. It is not an offence for someone to buy a knife and give it to a person under 18 unless, of course, they are doing so for the purposes of committing a criminal offence. There is a good reason for that: as we all know, bladed articles cover a huge range of items—essentially, anything with a blade or a sharp point. Those under 18 need access to them; for example, catering students need their own set of catering knives and hairdressing students need scissors. It is quite right that parents should be able to buy these items and give them to their children. Banning the supply of bladed articles to under-18s would also mean that restaurants could not give table knives to 16-year-olds, which none of us want to risk happening.
The contrast with alcohol is important. It is an offence to supply alcohol to a person under 18, but its possession in a public place is not outlawed in the same way as it will be for knives and corrosives. The alcohol sold in pubs and off licences does not have other, wider uses that might justify it being given to an under-18. Children do not need access to alcohol in the same way that they might need access to a chemical for their studies or an apprenticeship. It is therefore right that an adult buying alcohol for a child or giving a child an alcoholic drink is covered by the legislation, but that does not mean that an offence of supply should be used for every age-restricted product.
We did consider supply when developing the Bill, but we wanted to maintain consistency with the current offence on the sale of bladed articles. We also concluded that it was right that the responsibility sat firmly with the seller, and that the unintended consequences of extending the offence to supply would risk capturing too many legitimate activities or require so many exemptions and defences that it would become unworkable, particularly if it also applied to bladed articles.
The hon. Member for Sheffield, Heeley asked me about the scenario in which an adult supplies a corrosive substance to an under-18 but with no intention of criminal purposes, as with a parent giving knives to a catering student. Of course, that person would not have any knowledge—what we might call the mens rea or state of mind. Indeed, from the description, they would have no intent to commit a criminal offence. Once we start tinkering with knowledge and intention, we are entering the realm of absolute liability, and there are only particular categories that permit that. The adult would not be covered in that scenario. If that young person then takes the acid or corrosive substance into a public place, then the young person risks falling foul of clause 5. If they choose to do anything with it, then further criminal offences may have been committed.
The hon. Lady also asked me about possession of corrosive substances in public, and we will come to that definition in due course. It covers any corrosive substance—in other words, a substance that burns the skin. I hope I have answered the questions put in this debate, and I would invite the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to consider withdrawing the amendment.
Stuart C. McDonald
The amendment served its purpose in scrutinising a number of possible scenarios where questions might be asked about whether supply should be an offence alongside sale. I thank the hon. Member for Sheffield, Heeley for further exploring the amendment, and for doing so far more methodically than I did. She rightly queried whether the lack of an offence of supply undermines the intention behind the Bill.
I also thank the Minister for her comprehensive response. I will have to think about whether the other offences in this Bill—aiding and abetting, and possession —adequately cover supply. She also explained the possible unintended consequences, including for delivery companies, under-18s in employment and even schools. I appreciate the Government’s position and I appreciate that criminalising supply would be a difficult and fraught course of action. I accept that amendment 42 is definitely not the right answer to all this, so I will reflect on whether something else needs to be done or whether we should make do with what we have already. In the meantime, I am happy to withdraw the amendment.
The Chair
Just for the sake of good order in future, the form of words is that the Member seeks leave to withdraw the amendment, which I then put to the Committee.
Amendment, by leave, withdrawn.
Stephen Timms (East Ham) (Lab)
I beg to move amendment 1, in clause 1, page 1, line 4, leave out “18” and insert “21”.
The Chair
With this it will be convenient to discuss the following:
Amendment 2, in clause 1, page 1, line 12, leave out “18” and insert “21”.
Amendment 3, in clause 1, page 1, line 15, leave out “18” and insert “21”.
Amendment 4, in clause 2, page 2, line 33, leave out “18” and insert “21”.
Amendment 5, in clause 2, page 3, line 18, leave out “18” and insert “21”.
Amendment 6, in clause 2, page 3, line 21, leave out “18” and insert “21”.
Amendment 7, in clause 4, page 5, line 15, leave out “18” and insert “21”.
Amendment 8, in clause 4, page 5, line 23, leave out “18” and insert “21”.
Amendment 9, in clause 4, page 5, line 26, leave out “18” and insert “21”.
Amendment 53, in clause 12, page 10, line 36, at end insert—
‘(2A) In section 141A (sale of bladed articles to persons under 18), in subsection (1) for “eighteen” substitute “twenty-one”.’
This amendment would amend Section 141(A)(1) of the Criminal Justice Act 1988 to make it an offence to sell knives and certain articles with blade or point to persons under 21.
Stephen Timms
I am delighted to serve under your chairmanship this afternoon, Mr Gray. This is a long list of amendments with a very simple purpose, which is to change the age threshold, which is picked up in clause 1, from 18 to 21. I welcome the Bill. As I said on Second Reading, I am pleased with how it is addressing the rapidly increasing problem of acid attacks, and my hon. Friend the Member for Sheffield, Heeley reminded the Committee of the dramatic scale at which the incidence of such attacks has increased. I thank the Minister for introducing the provisions and for the way in which she has kept people such as me informed of developments as she has been working on them. I am sure that she, like me, would have been pleased if they could have come forward a little sooner. It is over a year since I called for possession of acid in a public place to be made a public offence, which is what clause 5 does. I am delighted it is here, but I would have been pleased if it could have happened a bit faster.
The background to this Bill is clearly the surge in violent crime—not just acid attacks but lots of other violent crime, including crimes involving the implements we will be talking about later in our work as a Committee. I noticed that in June, the BBC’s “Reality Check” asked “Violent crime: is it getting worse?” The verdict was
“‘High harm’ violent crime is genuinely increasing.”
There is no dispute that we have a serious and growing problem with the incidence of violent crime, of which acid attacks are one very troubling example.
My concern and interest in all this greatly increased just over a year ago when there was a dreadful acid attack in the borough I represent—Newham—which was very widely reported. Two cousins were sitting in a car when somebody leant in the car window and threw acid over both of them, causing serious and life-changing injuries. Particularly striking about that was how, in the community I represent, there was suddenly a huge surge of anxiety as people asked themselves, “If I am walking down the street now, will somebody come up and throw acid over me? Are there people around carrying what might appear to be a Lucozade bottle, which actually contains acid, who are going to inflict serious injuries on people at random?” That incident and the reaction to it gave rise to the Adjournment debate held on 17 July 2017, which was answered by the Minister’s predecessor. I welcome the steps taken in the Bill to address the problem.
Unfortunately, for reasons I understand, there has not been a great deal of data about this problem and about who has been carrying out these attacks. Sadly, the borough I represent appears to be the London borough where the largest number of attacks have occurred. My hon. Friend the Member for West Ham and I both took part in the debate on Second Reading. Indeed, my hon. Friend’s contribution has already been referred to by my hon. Friend the shadow Minister. I wish it were not the case that we represented the area where these problems seem to be the worst, but unfortunately, it is. That has created an aspiration in the community we represent to deal effectively with the problem of rapidly increasing acid attacks, and the Bill is an important step in doing so.
Clause 1 introduces a ban on the sale of acid products to under 18s. I welcome it. It was not something that I called for, but it is a welcome and positive step and I am grateful to the Minister for introducing it. My amendments 1 to 9 simply raise the age threshold from 18 to 21. Amendment 53, tabled by my hon. Friend the Member for Sheffield, Heeley, which I also support, similarly raises the threshold for the sale of knives and bladed items in the Criminal Justice Act 1988 from 18 to 21.
Louise Haigh
I congratulate my right hon. Friend the Member for East Ham on his amendments and on a compelling speech about why the Government and the Committee should accept them. I fully support amendments 1 to 9, which, as he said, cover in this context the elements that my amendment 53 deals with in relation to knives. I commend my right hon. Friend for his work on acids in the past year, ever since the horrendous attack in his constituency. He has been tireless in pushing for some of the measures in the Bill, and that is a testament to his fantastic work in his constituency.
The fear in the community, which my right hon. Friend spoke about, is real. I saw that when I was out with Operation Venice, the Metropolitan police team tasked with tackling moped crime in Camden and Islington. There was real fear on the streets there; people did not feel they could walk down the street to the local shop or pub for fear of being attacked. Assurances from the police that the attacks are targeted and not random—which I hear in my constituency in relation to violent crime—do not seem relevant to people when they happen on their doorsteps. That is one of the consequences of the attacks that the Bill and amendments are intended to tackle.
It is as well to explore the reasons for the use of acid, and then to examine whether a simple ban on under-18 sales is sufficient. A study from the Royal College of Psychiatrists found that acid
“can be thrown from a distance towards a victim, from a moving vehicle (such as a moped…) or even blindly through a window, so the perpetrator does not even have to see the effect”
of their crime. The document states:
“Studies have shown that people judge harm resulting from physical contact as morally worse than harm resulting from no physical contact. This may explain the use of acid in robberies, where the primary goal is theft of goods rather than desire to hurt the victim—the perpetrator may judge the use of acid as less morally wrong than using their bare fists”
or weapons, even if the effects of acid are undeniably far more severe.
Gangs concentrated in inner-city areas may account for why most acid attacks in the UK occur in London. Gangs are thought to be responsible for half of all shootings and a fifth of serious crime, of which acid attacks are a component, in London. Violence is commonly associated with gangs and can be deemed necessary to retain their members’ honour or social standing. The prevalence of such violence may be due to people with psychiatric problems, such as antisocial personality disorder, joining gangs to exercise their violent tendencies.
Studies have shown that gang violence has a contagion effect, with gangs committing more serious and more visible crimes than other gangs to assert their dominance. That is clearly what we have seen with acid attacks, particularly those concentrated in the east end of London. With acid attacks being highly publicised and the victims suffering visible deformity or disability, it is perhaps no surprise that they are becoming popular among gangs.
Gangs also rely on theft to support themselves and may use acid as a weapon in their crimes. With recent efforts in London to reduce knife crime, clear acid carried in a water bottle is a much more discreet weapon to carry on the street. Using acid as weapon may therefore be a pragmatic decision for some perpetrators. It carries lower sentences than crimes involving a weapon such as a knife and is usually charged as grievous bodily harm, whereas knife crimes often carry the more serious charges of attempted murder or wounding with intent.
The Opposition believe that the evidence is clear. Generally speaking, there are two types of acid crime: those where the perpetrator is likely to know the victim, done to cause irreparable harm or disfigurement—acts of revenge in most cases—and the increasing phenomenon in our major cities of the use of acid as a weapon of choice in, for example, robbery. Is it therefore wise to limit the age control on purchase to just 18 if the purpose is to prevent organised crime gangs from using acid as a weapon in crime?
According to the Metropolitan police, 75% of suspected attackers and around 60% of victims are between the ages of 10 and 29. Unlike in much of the rest of the world, the majority of victims in the UK are men—roughly 2:1. The Metropolitan police have been clear that they attribute the increasing use of acid to gang-related incidents.
As well as the FOI response that my right hon. Friend the Member for East Ham received for his borough, the Government have conducted an impact assessment that shows that just one in five acid attacks are carried out by under-18s. Extrapolated to the latest available figures, for illustrative purposes only, that would mean that 1,663 of just over 2,000 attacks were carried out by over-18s. As my right hon. Friend made clear, although restricting the sale of acid to under-18s would help, it would not make a serious dent in the available figures, based on the Government’s assessment.
If we look more broadly at evidence of young people’s involvement in organised crime, the picture is consistent. Although those recruited into organised crime tend to be under 18—recruited from local schools, inclusion centres, and from among homeless and looked-after children, as Home Office analysis has shown—members of organised crime groups and their associates are generally older: between 19 and 25. That suggests that perhaps the restrictions need to apply to those even older than 21. Practitioners report that more than 60% of gang members tend to be between 18 and 24 and a third are between 15 and 17.
If the Government intend to respond to the UK phenomenon of the involvement of acid in street crime, particularly in London, all the evidence suggests that prevention of sales to under-18s will be helpful but nowhere near sufficient. That is why we support my right hon. Friend’s sensible proposals to raise the age limit to 21. That is compelling for several reasons: first, only limited evidence supports the existing proposal of 18, and secondly, my right hon. Friend’s proposal tackles the actual issue rather than attempting to fit it into the parameters of existing law.
I was also particularly struck by the words of Acid Survivors Trust International:
“Anecdotal evidence suggests that many of the attacks are part of gang related activities and that acid is becoming the weapon of choice. The UK does not have tight controls on the sale of acid and nor does it have legislation specific to acid attacks. ASTI has campaigned for tighter controls on the sale of acid and a review of sentencing. In the UK, unlike many countries, men make up the majority of victims.”
The trust fully supports the amendments tabled by my right hon. Friend.
Victoria Atkins
I am extremely grateful to the right hon. Member for East Ham for tabling this amendment and to the hon. Member for Sheffield, Heeley—to whom I might have referred incorrectly as the Member for Sheffield, Hallam, for which I apologise. I have found him to be a great source of information, and we have discussed this issue a great deal since I was made a Minister. I completely understand the spirit in which he tables these amendments, but it is difficult; he knows, from the discussions we have had, the difficulties that there are.
Before I turn to the amendments, it might be worth reminding the Committee of the evidence on the involvement of young people in acid attacks. The right hon. Gentleman set out the average ages thus far. The latest published information goes up to April 2017; we will no doubt discuss in due course how we can improve the availability of this information, given that we know the range of attacks. He said that 21% of acid or corrosive substance attacks recorded by the police up to April 2017 were perpetrated by people under the age of 18, where the age was known. We do not have statistics on how many attacks were committed by those over 18 but under 21, or by those under the age of 25, but more recent information, which the police intend to publish shortly, shows that between April 2017 and April 2018 the average age of those carrying out acid attacks was 23.
I mention that because, as the right hon. Gentleman set out when he was reading out the different years, the ages fluctuate and it is difficult to set an age that would encompass all those average ages. We know that from reports in the media on the most violent offences, for example the terrible case of Arthur Collins in the nightclub in Dalston. He was 25. We must find an age limit at which we can prevent sales that meets the need to protect the public in a way that is not discriminatory and does not affect vast swathes of the population who may be buying these substances for completely legitimate and lawful reasons.
Corrosive substances are not, in themselves, offensive weapons; rather like knives, they have legitimate uses in cleaning products, car batteries and a wide range of hobbies such as metalworking. However, given the attacks and the concerns we all have about them, we believe it is reasonable and proportionate to ban the sale of such substances to those who are under 18. That is what the Bill is intended to do through clause 1 and schedule 1. Under the Bill, there is a defence available to a seller who has taken “reasonable precautions” and exercised due diligence in avoiding selling to a person aged under 18. However, I should say to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East—or the hon. Member for the SNP, as he is being called—that the defences in Scotland are slightly different from those that apply in the rest of the United Kingdom. Clause 2 applies further conditions on online sales that must be met if the seller wants to rely on the defence. Finally, clause 4 makes it an offence for a delivery company in the UK acting on behalf of a seller overseas to deliver corrosive products to someone in this country aged under 18.
The amendments in this group seek to raise that age from 18 to 21, and amendment 53 seeks to replicate that for bladed articles. Most products are age-limited with regard to under-18s because that is the internationally recognised age of the child. The effect of the amendments would be to introduce a new age limit, which would mean that restrictions on the sale of corrosives and bladed articles were out of step with those for other age-limited items, such as alcohol.
We heard evidence from witnesses from the British Retail Consortium and the British Independent Retailers Association before recess. They foresaw the difficulties that having different age limits for different products might pose for retailers—particularly small retailers—and their staff. Concerns have been raised about the risk of abuse and assault of shop workers, and we bear that in mind in that balancing act on the age range. We also fear that any increase in the age limit to 21 may well be challenged as an unjustifiable discrimination on the grounds of age, particularly when we think of the fluctuation in the average age of perpetrators, as we discussed earlier.
Kevin Foster (Torbay) (Con)
I have listened to the Minister with interest. She mentioned the issue for shopkeepers. I was formerly a deputy leader of a council responsible for enforcing some of those age limits. When the age limit was 16 for tobacco and 18 for alcohol, separate enforcement operations had to be run, whereas when the age limits were unified at 18, the same enforcement operation could deal with all those products. That suggests, as the witnesses said in answer to some of my questions, that 18 is the logical age to set for this area.
Victoria Atkins
That is an extremely interesting point and I am grateful, as ever, to my hon. Friend for bringing his professional expertise into Committee.
I hope Opposition Members understand that we have considered this very carefully and have had to weigh up the pros and cons of the age limits as they are. We argue that, although having restrictions against under-18s is also arguably discriminatory, if one takes a libertarian view about these things, it is justified because it replicates measures already in place to deal with knives. It is justified both on public safety grounds and because of the need to safeguard children. As I have said, corrosive products are not, in themselves, weapons, so we have come to the conclusion that there is not the evidence to justify excluding adults from being able to buy such products for legitimate purposes.
Raising the age limit for purchasing bladed articles would raise even more of an issue, because it would mean that adults—as recognised by law in this country—could not be sold products that they need to lead their daily lives. It would mean that a 20-year-old chef or carpenter could not buy the items needed to do their job. It would mean that adults could not be sold table or bread knives or certain types of gardening equipment.
This is particularly pertinent at this time of year. Over the next few weeks, thousands of students will go to university for the first time and will be setting up their flats or halls of residence, and they will perhaps buy some of those kits of pots, pans, crockery and knives that I see collected together in shops around the country. We get the sense that these people are probably over the age of 18 and trying to set up home for the first time, and the amendment would mean that those 18, 19 and 20-year-olds would not be able to set up home as they can now.
Knives and other bladed articles have thousands of legitimate uses, and restricting their sale to those aged over 21 would have a disproportionate impact on the vast majority of law-abiding adults in this country. It would also have implications for online retailers and delivery companies, because many online age verification systems, such as the electoral roll system, will not identify whether someone is under 21. It would mean that products ordered from overseas could only be handed over to a person who could prove that they were over 21 by producing a passport or driving licence, which not all members of the public have. It would also have implications for the operation of the Poisons Act 1972 and who can apply for an explosives precursor and poisons licence. For those reasons, we will resist the amendments.
As a footnote, I assure the Committee that we will continue to work with retailers on putting in place Challenge 21-type schemes of the sort that many retailers already have for the sale of alcohol. Our voluntary agreements on the sale of knives and corrosives have proven to be popular schemes for retailers. We believe that through these sorts of measures, which educate the public while also helping shop owners by giving them the confidence to challenge, we will help to address some of the terrible cases that the right hon. Member for East Ham set out. We will therefore resist the amendments. Alternatively, I invite the right hon. Gentleman to withdraw his amendment.
Stuart C. McDonald
It is with some reluctance that I must explain why I cannot support this group of amendments. Amendment 53 relates to clause 12, which sets out defences applicable in England and Wales only; there are equivalent provisions in clauses 13 and 14 for Scotland and Northern Ireland. We are talking about a devolved matter, and I understand that the Scottish Government, who have obviously agreed this legislation with the United Kingdom Government, are not unsympathetic or closed to the idea of changing the age limit for buying these products from 18 to 21, but would not do so without full consultation and further consideration of some of the issues that the Minister has spoken about. I will therefore not vote for amendments relating to England and Wales when the Scottish Government are not prepared to enact the same measures in Scotland.
I am also sympathetic to amendments 1 to 9, but similar reasons apply, albeit that they are not devolved matters this time. I am not yet utterly convinced that the benefits that could accrue from these amendments cannot be largely achieved by other provisions already in the Bill, without the unintended consequences that the amendments might bring. I do not think that the evidence for fixing the age limit at 21 is quite there yet. I am open to persuasion, and could perhaps be persuaded by Report, but I am not there yet, so I cannot support the amendments today.
Stephen Timms
I am grateful to the Minister for her thoughtful response to the amendments, although I am of course disappointed by the conclusion that she reached. I accept that it might be difficult to raise the age limits—it would not be completely straightforward—but that does not mean that it should not be done.
Indeed, the Minister’s evidence seemed to set out a stronger case than mine. If the most recent data suggest that the average age of the people carrying out these attacks is 23, the case for limiting the ban on sales to 18-year-olds is even weaker, and the case for raising the threshold to a higher level is stronger still. The Minister is absolutely right to make the point that the average age of perpetrators varies between years, but it is clearly the case—as shown by the Metropolitan police figures given in answer to my freedom of information request, which I think go back to 2002—that setting the restriction at the age of 18 is too low.
The Minister makes the point that a change will cause inconvenience for some. However, the question is how seriously the Committee is willing to take this problem. Do we recognise the appalling harm being done by acid attacks? Some of them are carried out by under-18s, but the majority are carried out by people who are young but who are over 18. If we raise the age limit to 21, we would be able—I think—to reduce the scale of the problem among a significant cohort of those who carry out such attacks at the moment.
I am puzzled by the Minister’s suggestion that the Government might lose a challenge over this on age discrimination grounds. One would be able to, and would certainly have to, defend the decision on clear public interest grounds. If an age limit of 18 can be defended, I see no reason at all why an age limit of 21 could not be, given that we know that so many of those carrying out acid attacks are between the ages of 18 and 21. There is a clear public safety ground for seeking to reduce the availability of acid to people aged 18 to 21.
On the question of inconvenience, I accept that there will be some difficulties for some of those who are required to implement such changes. However, given that Challenge 21 is in place, shopkeepers are already getting into the habit of challenging people up to the age of 21. The basics for implementing this change in shops are in place. I accept that there would be some difficulties and that this is not completely straightforward. However, I impress upon the Minister that the scale of the harm of acid attacks carried out by people aged 18, 19 or 20 is too great for us simply to allow people to carry on getting hold of this stuff and doing harm, so I will press the amendment to a vote.
Question put, That the amendment be made.
Victoria Atkins
I beg to move amendment 13, in clause 1, page 2, line 16, at end insert—
“(8A) In Scotland, proceedings for an offence under subsection (1) may be commenced within the period of 12 months beginning with the commission of the offence.
(8B) Section 136(3) of the Criminal Procedure (Scotland) Act 1995 (date when proceedings deemed to be commenced) applies for the purposes of subsection (8A) as it applies for the purposes of that section.”.
This amendment provides for proceedings in Scotland for an offence under Clause 1 to be brought within 12 months of the commission of the offence. Under section 136 of the Criminal Procedure (Scotland) Act 1995 the default period for bringing summary proceedings is 6 months.
The Chair
With this it will be convenient to discuss the following:
Government amendments 14 to 16, 18 to 20 and 31 to 34.
Government new clause 5—Presumptions in proceedings in Scotland for offence under section 1, 3 or 4.
Government new clause 6—Presumptions in proceedings in Scotland for offence under section 5.
Victoria Atkins
The amendments have been tabled following, as I said at the beginning, very good engagement with the Scottish Government, and they reflect the different legal system in Scotland. Amendments 13, 15 and 18 extend the time limits that would otherwise apply for the prosecution of the summary-only offences contained in clauses 1, 3 and 4. Under section 136 of the Criminal Procedure (Scotland) Act 1995, any summary-only offence in Scottish law is required to be prosecuted within six months of the commission of the offence.
However, that time limit can be changed if express statutory provision is made. The amendments do just that by providing that prosecutions will be required to be brought within 12 months of the commission of the offence, rather than six. That is because forensic testing may well be required to prove the offences in court. That is particularly an issue under Scots law, given that all criminal offences prosecuted in Scotland require corroborated evidence. It is therefore anticipated that forensic testing may become more of a feature in prosecutions in Scotland than elsewhere in the UK, and this extension seeks to reflect that position.
New clauses 5 and 6 are the substantive clauses that create an evidential presumption in Scotland. New clause 5 relates to the offences in clauses 1, 3 and 4 and provides that any substance that is in or was in a container is recognised as being a substance as described on the label for the container. However, that presumption can be rebutted by the person accused of the offence if they give at least seven days’ notice of such an intention prior to trial. New clause 6 provides for a similar presumption for the offence in clause 5. The intention behind the amendments is to make the prosecution of the offences in clauses 1, 3, 4 and 5 more straightforward in Scotland.
If I may, I will speed over the very interesting notes I have on Scottish law, because I suspect I would only be trying to repeat what the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East knows very well. The basis behind the clauses is to assist the implementation and effectiveness of the clauses in Scotland and under its legal system.
Louise Haigh
I hope this is in order. As these clauses relate to sentencing, evidential provisions and technical definitions of “defence”, I wanted to seek clarity from the Minister on the different thresholds contained in the clause in relation to England, Wales and Northern Ireland, separate from Scotland. There appear to be small, but significant differences in the wording of “defence” as stipulated in the legislation; clause 1(2) and clause 1(3) contain one example, whose formula is repeated throughout the Bill. The clause states that
“it is a defence for a person charged in England and Wales or Northern Ireland…to prove that they took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.”
Whereas for Scotland, the due diligence and precautions are explicitly included in the Bill.
As regards the sale of corrosive products under clause 1(4),
“the accused is to be treated as having the accused is to be treated as having taken reasonable steps to establish the purchaser’s age if and only if…the accused was shown any of the documents”—
namely, a passport, an EU photocard driving licence or any other document as Scottish Ministers prescribe—
“and…the document would have convinced a reasonable person.”
Will the Minister clarify whether there are different evidential thresholds for the separate jurisdictions? It seems preferable that we would have the same prescriptive threshold in England, Wales and Northern Ireland as in Scotland.
Victoria Atkins
The differences are simply to reflect the differences between Scottish law and the law in the rest of the United Kingdom. As I said, Scottish law requires corroborated evidence. We need to ensure that any necessary forensic testing can be undertaken, for example. The reasons behind the defences are to keep things in step with the law that is already the case in Scotland and to enable the defences to be applied appropriately. As I referred to, we have a legislative consent motion from the Scottish Government already, and they are supported by the Crown Office and the Procurator Fiscal Service, which will be responsible for prosecuting the offences in Scotland.
Amendment 13 agreed to.
Stephen Timms
I beg to move amendment 10, in clause 1, page 2, leave out lines 18 to 21 and insert
‘a product which is capable of burning human skin by corrosion.’
The Chair
With this it will be convenient to discuss amendment 12, in clause 5, page 6, leave out lines 40 to 41 and insert—
‘“corrosive substance” means any of the substances listed in Schedule 1.’
Stephen Timms
This group of two gently probing amendments reflects my puzzlement at what strikes me as a quite peculiar feature of the Bill. Clauses 1 to 4 deal with the sale and delivery of corrosive products and cover the age limit that we have debated already this afternoon. For this part of the Bill, corrosive products are defined in clause 1(9) in reference to the list in schedule 1. We will discuss later the specific things on that list, why they are there and so on. Clause 5 and the following clauses deal with the possession of a corrosive substance. For that part of the Bill, a corrosive substance is defined in a completely different way. It is defined as
“a substance which is capable of burning human skin by corrosion”.
I am genuinely mystified about why we have two completely different definitions for essentially the same thing. I cannot see any good reason why the corrosive products referred to in clauses 1 to 4 should be defined so differently from the corrosive substances in clauses 5 to 11. If there is a good reason, I shall certainly be interested to hear it, but it seems to me to be a significant puzzle.
Victoria Atkins
I am grateful to the right hon. Gentleman. I hope that I can reassure him that this is not, as he fears, a failure to cut and paste and ensure that the Bill is consistent; it is entirely deliberate. In clauses 1 to 4 we have sought to deal with the most harmful corrosive products. We have used the word “products” in clauses 1 to 4, and “substances” in clause 5 and onwards, because those are the products that we want to ensure that retailers have listed, and understand very clearly must not be sold to under-18s. The offence of selling a corrosive product to a person under 18 is defined by clause 1(9) of the Bill as any product that is a substance listed in schedule 1, or that contains a substance with a concentration level higher than the limit listed in the second column of the schedule.
I know that the right hon. Gentleman has noted that we have put hydrofluoric acid down at 0%. There is a certain intellectual, philosophical point about whether something can exist at 0%. The concern of the scientists, and this is all led by scientific evidence, is that that acid is so dangerous that any trace elements of it whatsoever have the potential to do real harm. We have sought to make it as clear as possible to manufacturers and retailers that selling a product that contains any amount of that substance to under-18s falls foul of schedule 1. We understand that manufacturers and retailers need clarity on which products they can and cannot sell to under-18s if they are to avoid committing a criminal offence.
Corrosive substances appear in a vast range of products—everything from vinegar and lemon juice to industrial strength cleaners. The intention in clauses 1 to 4 is to ban the sale of products that contain sufficient amounts of particular corrosives that they are capable of being used in acid attacks, which is the particular harm that we are seeking to address. It is not the intention to ban the sale of corrosives per se—only the ones that can be used as a weapon.
We need to be clear to manufacturers and retailers that the intention is that they will barcode the appropriate products, so that the shop assistant at the till will be alerted to any potentially restricted sales. It will also enable online retailers to be clear about which products can and cannot be sent to a residential address. The approach of setting out particular chemicals and concentration levels mirrors that used in the Poisons Act 1972, which is an approach already understood well by retailers and manufacturers.
I turn to clause 5 onwards, which is the offence of possession in a public place. The right hon. Gentleman asked me whether hydrofluoric acid is included in clause 5; it is. All the substances in schedule 1 are, by definition, there because they could do harm. It follows that they fall into the simpler definition of corrosive substances under clause 5.
Louise Haigh
Will the Minister clarify whether all these substances at any concentration will fall under the definition in clause 5?
Victoria Atkins
I will return to that point in a moment, if I may.
On clause 5 generally, we have taken a different approach because we want to reflect the operational realities of police officers on the ground trying to deal with situations in which they think a young person or people have potentially decanted corrosive and harmful substances into different containers. They are not chemists and they do not have a laboratory on the street to help them decide whether the exact concentrations set out in schedule 1 have been met, so we wanted to come up with a definition that could be used widely as part of operational policing, based on the effect that the substance could have.
We use “substance” from clause 5 onwards to differentiate it from the schedule 1 substances. The resulting definition captures all the substances listed in schedule 1, all of which are capable of burning human skin, but it might also include other substances that are capable of such burning, by corrosion, for example an acid not currently listed there. It will also help police, subject to the stop-and-search consultation that we have open at the moment, to seize substances they find on the street without having to worry about their specific chemical make-up. We hope, therefore, that by having two separate definitions of corrosives in the Bill we are addressing both the operational needs of the police and the expectations of manufacturers and retailers, while also helping them.
In response to the hon. Lady’s query about lower concentrations, the level could be lower, for example 10% rather than 15%, but for some it is a very low concentration, for example at 0.5% it may no longer burn the skin. The point is to enable officers on the ground to make arrests as they deem appropriate, and in due course the substances will no doubt be examined and the appropriate offence charged, if a charging decision is made.
I hope that I have reassured the right hon. Member for East Ham on his concerns about having two different definitions. Ultimately, they are meant to try to ensure that the most dangerous, harmful substances are caught by schedule 1, while also ensuring that police officers are able to do their job on the ground, day to day, under clause 5.
Stephen Timms
I am grateful to the Minister, but I must say that I do not understand her explanation. I think that what she has done, very effectively, is to make a good case for the schedule 1 approach. I completely accept that retailers need to be clear about what it is they are not allowed to sell, but surely police officers equally need to be clear about what people are not allowed to carry around the streets.
Victoria Atkins
To be clear, we know that some people who see acid as a weapon of choice decant the substance into a drinks bottle. Sometimes even the containers the substances are sold in do not have the percentages on them, which is why barcoding for manufacturers will be so important in helping retailers understand. We cannot expect officers, with the best will in the world, to know, when presented in the high street with a water bottle full of a clear substance, that it is hydrofluoric acid of greater than 0%, or any of the other substances in schedule 1, so the reason for the two separate definitions is to try to ensure that clause 5 works on the ground for officers.
My concern about amendment 12, if I have understood the right hon. Gentleman correctly in that it imposes the schedule 1 definition on clause 5, is that it would restrict the application of that clause. There will be corrosive substances that if on human skin for long enough could start to burn it but which do not fall into the very high harm category of products we have put into schedule 1.
I am sorry for the long intervention.
Stephen Timms
So the Minister is saying it is a question of the severity of the effect of the substance. That is a little bit more helpful, but I am still puzzled. If a police officer takes a Lucozade bottle that has something dodgy in it, I am not sure they will be able to establish very readily on the spot whether it is a corrosive substance or not.
Victoria Atkins
The right hon. Gentleman is absolutely right. This is why the Defence Science and Technology Laboratory is developing test kits to help the police. It will not be a terribly complicated, scientific laboratory-type test, but it will be a test that they can use on the ground in the heat of what may be a quite volatile arresting situation.
Stephen Timms
I am grateful to the Minister for that. That sounds like a welcome step. Will that kit test for things in schedule 1 or for general corrosion? [Interruption.] Okay.
Stephen Timms
I am grateful for that way of communicating that information. That does sound helpful.
The Minister mentioned vinegar and, presumably, possessing vinegar in a public place will not be an offence. Surely we are talking about things which will do serious damage, which, it seems to me, takes us back to the attractions of the schedule 1 approach.
I made it clear at the start that I am not planning to push this to a vote, but I think there is a danger here that police officers will be given a rather unclear duty and have an unclear obligation imposed on them by this part of the Bill. As we have debated it, the view I suggested at the start has been strengthened. The clarity schedule 1 brings would be helpful in clause 5, as well as in clauses 1 to 4, but I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Louise Haigh
I beg to move amendment 49, in clause 1, page 2, line 21, at end insert—
“(c) all substances listed under Schedule 1A of the Poisons Act 1972”.
This amendment would list all of the substances listed under Section 1A of the Poisons Act 1972 “corrosive products”, making it illegal to sell them to a person under the age of eighteen.
The Chair
With this it will be convenient to discuss amendment 11, in schedule 1, page 36, leave out line 11.
Louise Haigh
As we have noted, there has been support from right hon. and hon. Members for the principles behind restricting the sale of acid and for acid possession offences. My hon. Friend the Member for West Ham has made a compelling case in many previous debates for restrictions on and licensing of acid, particularly when she spoke about the implications of the bonfire of the quangos in 2015 and the consequences of that deregulation.
We are living with the consequences of changes under that legislation, which meant that a whole band of corrosive substances and poisons were made freely available for sale with little to no real control. We believe that was a big mistake and I hope the discussion today will give the Government cause to rethink, particularly as regards some of the evidence presented in this amendment and in new clause 16, which calls for a much broader rethink of the classification under section 1A to the Poisons Act and the decision to create a sliding scale of regulatory controls on reportable substances and regulated substances, despite evidence of serious harm in both categories. The principle behind that deregulation of poisons and corrosive substances was made in a very different climate to that of today. In 2015, corrosive substances was seen, in the words of the right hon. Member for West Dorset (Sir Oliver Letwin), as “perfectly innocuous,” rather than the potentially offensive weapons that we are discussing today.
As amendment 49 attempts to address, there are also issues with which poisons would be available for sale to under-18s. In our view, as we heard in discussions of previous amendments, it is much too narrowly drawn. Although it is not perfect, we accept the amendment would at least establish controls on a band of poisons and corrosive substances that were deregulated previously, preventing their sale to under-18s. In reality, we believe that the Government should go much further and look at re-designating many of the reportable substances as regulated substances, in line with the recommendations of the Poisons Board before its abolition.
Schedule 1, which we believe is too narrowly drawn, counts only nine corrosive substances that would be prohibited for sale to a child. We believe that is problematic, as it allows for sale certain poisons that are harmful to health and that can be bought and sold online with ease. I will refer to just a few of the substances, by way of example. They include nitrobenzene, which is toxic if swallowed, can cause acute toxicity if it comes into contact with skin, is toxic if inhaled, is suspected of causing cancer, and may damage the fertility of an unborn child. Although it is a reportable substance under schedule 1A to the Poisons Act, it does not currently feature in schedule 1 to this Bill, meaning that it can be sold to any child who wishes to buy it.
Yesterday, while I was searching for reportable substances, I looked at whether it was possible to purchase pure acetone on eBay. Again, acetone is a reportable substance under schedule 1A to the Poisons Act, but under this Bill any child could buy it. According to the Government’s own website, acetone is toxic following inhalation or ingestion, is an irritant to skin that can cause dermatitis and can lead to corneal damage if it comes into contact with eyes. It is manufactured in large quantities to produce a variety of products, including nail polish and varnish removers, plastics, paint, adhesives and inks, and it is also used to make other chemicals, such as acetylene. In South Africa, pure acetone was used in an acid attack that scarred a woman for life and caused severe burns to her face and body. Pure acetone of a concentration of 99.5% can be bought on eBay for £17.50. In this instance, however, that is not the fault of the platform; it is very clearly the fault of the lack of existing regulation of substances that, in the wrong hands and in high concentrations, can cause serious damage.
Methomyl is perhaps the most troubling. It was originally used as an insecticide for agricultural purposes, before widespread concerns began to emerge about its potential toxicity. Despite that, it is readily available online as we speak and within the UK it is only a reportable substance, meaning that retailers only have to report suspicious transactions. In the United States, the Environmental Protection Agency has said that of methomyl that it is
“a highly poisonous material in humans. It is highly toxic if it is ingested or absorbed through the eyes, moderately poisonous when inhaled, but of lower toxicity with skin, or ‘dermal’, exposure…Methomyl is a highly toxic inhibitor of cholinesterase, an essential nervous system enzyme. Symptoms of anti-cholinesterase activity include weakness, blurred vision, headache…abdominal cramps, chest discomfort, constriction of pupils…muscle tremors, and decreased pulse. If there is severe poisoning…confusion, muscle incoordination, slurred speech, low blood pressure, heart irregularities, and loss of reflexes may also be experienced. Death can result from discontinued breathing, paralysis of muscles…intense constriction of the openings of the lung, or all three”.
We believe that we need a comprehensive approach to restrictions on sale and we are concerned by the measures in schedule 1. The focus on under-18s entirely ignores the evidence and fails to consider the issue in the round. Quite frankly, it is chilling that such poisons, which can cause so much harm in the wrong hands, are freely available online.
The previous regime was not perfect, but the most dangerous substances could only be sold by a pharmacist in a retail pharmacy business and sales had to be recorded on a register. Substances in part 2 of the poisons list could be sold only by retailers that had registered with their local authority. Under the previous system, acids could only be purchased from registered retailers, which were usually hardware or garden stores. According to the Government’s explanatory notes to the Deregulation Act 2015, that Act was intended to
“reduce the burdens on business. The Poisons Act 1972 and the Poison Rules 1982 were highlighted as adding burdens to businesses”.
We also note that during the 2012 review the Government rejected the views of the Poisons Board, which has now been abolished. The board had suggested tighter controls on the sale of corrosive substances, so I ask the Minister if she will now commit to publishing that evidence, which has never entered the public domain.
As I have said, we would like to see the Government to go much further in this area. We need to see wholesale reform of the treatment of individual poisons, so that where there is clear evidence that an acid is capable of causing harm and is toxic to human health, it is designated as a regulated substance, which will bring with it a suite of controls, including on possession and supply. That would include substances such as hydrochloric acid and ammonia, which have no place on general sale. This amendment is a starting point, as it would regulate all poisons and corrosive substances under section 1A to the Poisons Act, preventing them from getting into the hands of children.
Victoria Atkins
Amendment 49 seeks to amend schedule 1 to include all substances under schedule 1A of the Poisons Act 1972. The substances covered by the Poisons Act are regulated poisons, regulated explosive precursors, reportable poisons and reportable explosive precursors. The reason we have a separate schedule for the Offensive Weapons Bill, rather than aligning with the provisions in schedule 1A of the Poisons Act, is that the Bill seeks to prohibit the sales of certain corrosive products by retailers to those under the age of 18. There are similarities between the two schedules, and schedule 1 of the Bill contains eight substances that are also included in schedule 1A of the Poisons Act. Those are two regulated explosive precursors—nitric acid and sulphuric acid—and six reportable poisons.
We have based the substances in schedule 1 on scientific advice from DSTL. I hope members of the Committee have had the opportunity to read that evidence. As I have said, the rationale for having a separate list rather than using the substances in the Poisons Act is that the Bill focuses on the harm caused by attacks using corrosive substances.
Substances that could be used in the illicit manufacture of explosives or that are poisonous are already subject to control on sale and supply to members of the public through the Poisons Act. For the schedule of corrosive products in the Bill, we have included those substances, after taking the scientific advice I mentioned, which we know have been used in attacks or which are so corrosive that, if misused, could cause permanent harm and leave someone with life-changing injuries. In order that the schedule continues to reflect the latest intelligence or evidence, there is a power in the Bill that allows the Secretary of State to amend the schedule should anything need to be added, removed or amended.
It should also be stressed that the Poisons Act and the Offensive Weapons Bill, although having a small number of the same substances in their schedules, seek to achieve different legislative controls. We are of the view that it would not be right to combine the two given the very distinct policy aims of each piece of legislation. The Poisons Act is primarily aimed at controlling substances that could be used in the illicit manufacture of explosives or are poisons, which is dealt with through a cohesive licensing and reporting regime, whereas the prohibitions in this Bill are aimed primarily at preventing the retail sale or delivery of products that we know have been used in attacks. We are of the view that having two different legislative rationales and regimes for control of substances in one schedule would lead to burdens on law enforcement, retailers and manufacturers alike.
Louise Haigh
Before the Minister concludes her remarks, will she confirm whether the Department received scientific or medical advice specifically on the chemicals I mentioned—nitrobenzene, acetone and methomyl—and in particular acetone, given that there has been an attack using that substance?
Victoria Atkins
If I may, I will write to the hon. Lady, because she raises an important point. I emphasise that the Bill has a schedule that reflects its policy intent and not that of other legislation. I ask her to withdraw the amendment.
Stephen Timms
The Minister referred to amendment 11 in her remarks on the previous group. I want to query one particular aspect of schedule 1 because there is a broader point here. She said something about schedule 1 and the DSTL submission that has been made available to the Committee—I am grateful to her for ensuring that we had that in time for this debate. What I am not clear about is what exactly the basis is for including something in schedule 1 or the annex to the summary of the scientific evidence. What is the basis for setting the concentration that is spelt out in the Bill? Is there a threshold for the degree of corrosiveness—or something—that must be passed in order for a substance and a concentration to be specified on the face of the Bill? When we saw the scientific evidence, or the summary of it, I hoped that we would have some information about that, but it is a very thin document; it is an annotated couple of sides and does not tell us very much more than the schedule itself. I wonder whether the Minister can tell us a little more about the basis for including each of the entries in schedule 1.
Victoria Atkins
I fear that my inadequacy in chemistry at school is about to be shown up. I will not try to give expert evidence on the concentration of hydrofluoric acid except to describe what I have been told: that hydrofluoric acid is highly reactive with glass and many metals; that it is apparently used for specialist purposes in stained glass working, glass etching and geology; that it is highly corrosive and readily penetrates intact skin, nails and deep tissue layers; and that skin exposure to any quantity can be dangerous. When the laboratory was asked for safe concentrations, the advice was that it is difficult to set a concentration limit due to the high corrosiveness of this acid.
However, I have heard what the right hon. Gentleman says about his disappointment with the evidence given by the laboratory, and I will ask it to provide him with a more detailed response, since this is obviously of interest to him. The test or threshold that was set was whether the product could cause permanent damage and whether it was available in products that people can buy. I am also happy to commit to write to the Committee on the point he made about borderline products. As for the point about 0.0000001%, I will ask the laboratory specialists to answer it in the correspondence. I appreciate his testing of the inclusion of these substances in the schedule, but we have done that on the basis of the evidence we have been given by scientists, obviously following analysis of the offences committed.
The right hon. Gentleman asked about bleach, which is also known as ammonium hydroxide. Household bleach is not captured by the age restrictions under schedule 1. Sodium hypochlorite is a primary constituent of various household bleaches but is contained within thresholds where it would not cause permanent or life-changing injuries. The threshold for sodium hypochlorite has been set at 10% as that is the threshold beyond which the chemists at the Defence Science and Technology Laboratory have advised us permanent damage would be caused. The kind of products captured within that threshold include commercial bleaches, swimming pool disinfectants and oxidation products. I reiterate: if in the future it is thought that further substances should be added, or the schedule amended, we have the power to make changes through statutory instruments made under the affirmative procedure. I hope that I have reassured the right hon. Gentleman, subject of course to the extra information to be provided by the laboratory. I invite him not to press his amendment if he feels able to at this stage.
Louise Haigh
I thank the Minister for her as ever thorough response. I look forward to receiving the written representation about the chemicals I mentioned. I understand and accept why the Poisons Act contains a different schedule. I am satisfied that the provisions under subsection (10) will enable sufficient flexibility to allow modification of schedule 1. I hope that all of us, collectively as Parliament, will be able to hold the Government properly to account to ensure a review as and when evidence is forthcoming. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Louise Haigh
I beg to move amendment 51, in clause 1, page 2, line 24, at end insert—
‘(10A) The appropriate national authority may only modify or remove a reference to a substance under Schedule 1 following the publication of evidence pertaining to that decision by the appropriate authority and subject to approval from both Houses of Parliament.
(10B) In subsection (10A) the “evidence pertaining to that decision” must include—
(a) a report by the National Police Chiefs’ Council on the use of the substance in attacks; and
(b) a report by relevant clinicians on the effect of the substance.’
This limited amendment follows on from our previous discussion, with particular relevance to the Deregulation Act 2015. On the previous amendment, I raised the issue of evidence from the Poisons Board, and I hope that the Minister will consider my request to make public the evidence and advice that the Government received from the board in 2012 in the most recent review of the poisons scheduled under the relevant Act.
Given the enhanced public concern about the use of substances and the reasoning for the Bill, we believe that it would be inappropriate for the Government to amend the definition without appropriate scrutiny and consideration by relevant bodies. The amendment includes, but is not limited to, the police and relevant clinicians, although I heard the comments of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East about the need for other bodies, such as Police Scotland, to be involved in such a review.
The amendment rests on the data provided by the National Police Chiefs Council being vastly improved. As we have heard, the data about acid attacks is not remotely sufficient. That data would form the basis of the evidence pertaining to the decision to remove or add a substance to schedule 1. The Government, with the NPCC, are looking at the reporting of attacks that use corrosive substances. We would welcome an update on that work.
The amendment also stipulates that
“a report by relevant clinicians on the effect of the substance”
must be provided. That part of the amendment is broadly drawn to allow Ministers to take appropriate advice, but we would expect such a report to contain information on toxicity, respiratory functions, and the effect of ingestion and contact with the eyes. As we heard, focusing simply on whether a product is capable of burning human skin by corrosion is not necessarily appropriate.
We hope that the Government will accept the amendment in the spirit in which it is intended, to allow for a more informed discussion about which poisons are and are not on the list in schedule 1, and which are intended to be in the future.
Ordered, That the debate be now adjourned.—(Paul Maynard.)