Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Henley Excerpts

Tuesday 27th March 2012 Lords Chamber

[The Minister of State, Home Office (Lord Henley)]

My Lords, it might be useful if I intervene now because there are a number of misconceptions about what is going on. Perhaps I may say that I rather regret the words of the noble Lord, Lord Campbell-Savours, for whom I have the utmost respect, because he implies that whatever I say, I am out of touch and do not know what is going on. He seems to suggest that what I say will be untrue. That is not the case. What I would ask of your Lordships is that—dare I say it?—they should listen to me very carefully because I think I can allay the fears and answer the questions that have quite rightly been put by the noble Lord, Lord Faulkner, and my noble friend Lord Jenkin about the problems we are facing and where we are on this issue.

I start by paying tribute to the noble Lord, Lord Faulkner, who was the first person to suggest that we should go down the cashless route. That is what we are doing, and he was the first to spot that there was a chance to do so in this legislation. It is why we are doing that and a few more things in this Bill, but the other things will have to wait until suitable legislation comes through. There is no five-year review, as the noble Lord, Lord Campbell-Savours, puts it. We have said that we will come to the other bits as and when we can, at which point we will resolve those matters. Again, at this stage I would ask noble Lords to listen to me very carefully as I explain what we are going to do.

Your Lordships will be aware that we tabled amendments on Report proposing three legislative measures to tackle metal theft: greater fines for offences under the Scrap Metal Dealers Act 1964; creating an offence of buying scrap metal for cash, and a revision of police entry powers to help enforce the new offence because it is important to make sure that we get the enforcement right. A similar amendment to the one we are dealing with tonight was tabled by the noble Lord, Lord Faulkner, but his revised amendment seeks to remove the existing exemption that allows certain itinerant collectors to be exempted from the cashless offence. I am going to deal with that in due course.

I should make it clear that anyone who trades in metal, whether they are a large multinational, the local scrap metal dealer or a door-to-door collector, which includes the itinerants, must register with their local authority under Section 1 of the Scrap Metal Dealers Act 1964. It might be that they do not register, in which case there are sanctions, but it is also why we are increasing the sanctions under an Act which I have said before is past its sell-by date. Failure to register is a criminal offence that under Clause 146 of this Bill will now be punishable by an unlimited fine. Anyone, be they an itinerant or a large multinational, who does not register can be punished with an unlimited fine. As part of its focus, the national metal theft task force, which we announced late last year, will ensure compliance with the registration requirement. I shall say a little more about enforcement later.

The police are currently able to enter and inspect any commercial premises that belong to a registered scrap metal dealer, including those used by itinerant collectors. Our amendment will ensure that they can also enter and search unregistered premises with a warrant if they have reasonable grounds to suspect that metal is being traded for cash, and being unregistered may well be relevant evidence in that regard, although obviously that is for magistrates to decide when they issue a warrant.

I do not suppose any of your Lordships who are in the Chamber did so, but when we debated the 1964 Act almost 50 years ago, Parliament chose not to overburden small businesses by including an exemption for door-to-door collectors from some bookkeeping. That is why the exemption was brought forward in that Act. As a result, in addition to the mandatory registration I have already mentioned, businesses can apply to their local authority for an order under Section 3(1) of the 1964 Act, to which my noble friend Lord Jenkin referred. That order would be granted by the local authority, but only in consultation with the chief officer of police for the police force area. Let me be clear: there is no blanket exemption for anyone who simply claims to be an itinerant collector. They have to be registered under Section 1 of the 1964 Act and they then have to get the exemption under Section 3(1) of the same Act, which has to be agreed by the local authority in agreement with the police.

The amendment that we have put forward follows the structure of the existing Act and the exemption is for a defined and locally known group of collectors to operate. So, if an itinerant was operating in a large number of different areas, he would need a Section 3(1) exemption from each local authority area in which he was operating. It is not a question of having one exemption and then being able to use that throughout the country. If he does not have that, he will be in breach of the law and could suffer the consequences.

It should also be noted that itinerant collectors who have obtained a Section 3(1) order are reliant, obviously, on selling their collected metal into the scrap metal industry. I appreciate that there are allegations that a lot of this metal goes into containers and is shipped abroad. We have no evidence of that—it does not appear to be happening—but if in the future we do see signs of metal going straight into containers and being shipped abroad, it will be easier to deal with because there are a limited number of container ports in the country compared to the vast number of scrap metal yards into which the metal is going at the moment.

On enforcement as we are seeing it on a day-to-day basis, the British Transport Police, as part of Operation Tornado—which is an operation into scrap metal theft in the north-east of England at the moment but which will be expanded in due course—encounter these collectors on a daily basis. On many occasions, the police find that they are unregistered and that they do not have a waste carrier’s licence, which they need if they wish to transport waste. As a result, they have had their scrap and, if it is not insured to carry waste or has not been registered to carry waste with the environment agencies, their vehicle confiscated. So there are enforcement procedures in place.

Registered collectors who have a reduced record-keeping requirement under Section 3(1) will, as I have said, still have to trade into the scrap metal industry. When they do so, they will not receive cash—they cannot receive cash—and that is what our amendment does.

So, to make it clear, Section 3(1) reduces the record-keeping requirements for those who only collect metal, but this is in addition to them also being registered under Section 1. It is not about signing up for one or the other, as some people imply, nor is it a matter of choice for the individual itinerant collector just to announce that he is now an itinerant collector. If he wants to be an itinerant collector he must be registered under Section 1 and under Section 3(1).

If the noble Lord’s amendment was to be successful and itinerant collectors with a Section 3(1) order are included, the offence of trading in cash would be more difficult to enforce for those individuals because of the nature of the work they do in travelling from street to street in the manner described by my noble friend.

To evidence compliance with the new cashless offence, we have strengthened the record-keeping requirements under Section 2 of the Scrap Metal Dealers Act which apply to the vast majority of the industry registered under the Act. We require that records are kept of who the payments are made to and the method of payment, and that receipts are copied and retained. The few collectors with a Section 3(1) order will not be required to keep those records. I cannot give a precise figure on the number of Section 3(1) itinerant dealers—that would mean going to every local authority in the country—but, of necessity, that figure will be relatively few. As I have made clear, they will have to be agreed to by the local authority with the agreement of the local chief of police.

To reassure the House further—

[Lord Campbell-Savours]

Will the noble Lord give way?

[Lord Henley]

No, I am not giving way to the noble Lord. It is entirely a matter for me to decide whether I give way to him.

To reassure the House further on this point, the Home Office is willing to work with the Local Government Association, with local authorities and with the police through ACPO, to help them provide advice to their members about the levels of assurance required in terms of identity, residence and any relevant criminal convictions before Section 3(1) orders are issued. That will ensure that they are operated in as tight a manner as possible.

I want to make clear—as I hope I did at Report—that banning cash from the scrap-metal industry is a vital first step to tackle metal theft and remove the drivers behind it. I think that the noble Lord, Lord Faulkner, is with me on that. However, it is part of a wider package of work to tackle metal theft, including better enforcement and seeking design solutions to make metal harder to steal and increase the possibility of it being traced.

I will say a little again about enforcement. As I have said, we have strengthened that with the dedicated metal theft task force. We have already seen very significant progress, not least in the north-east, where there is quite a large amount of metal theft. Since the launch of Operation Tornado at the start of the year in the three northern police forces—Northumbria, Cleveland and Durham—we have seen a 50 per cent decline in the amount of metal theft in that area. That is driven by the voluntary adoption by the scrap-metal industry—or at least a considerable part of it—of greater identification checks when purchasing metal. We did not get the agreement of all of them but we are getting a considerable amount; and with this legislation we will get considerably more. I am also pleased to let the House know that the Association of Chief Police Officers is rolling out Operation Tornado nationwide over the coming months. As I have said, that operation has seen a 50 per cent decline in theft.

This is not the loophole that some noble Lords believe it is. We are not proposing a blanket exemption, but are allowing a very small number of specifically registered itinerant collectors to continue to operate as they currently do. I close by letting—

[Lord Campbell-Savours]

The noble Lord talks about the “very small number” of itinerant collectors, which was at the heart of the speech by the noble Lord, Lord Jenkin of Roding. If there are so few in each local authority, why could a departmental official not have contacted each local authority and asked them whether it is two, three or half a dozen? That would not have taken huge resources at the department, particularly when it was at the very heart of the defence of the legislation being used by the Minister at the Dispatch Box, both last week and this week.

[Lord Henley]

The noble Lord will have seen many questions over the years coming back to him with the reply that they cannot be answered without disproportionate cost. I will look very carefully at what he has had to say but, looking at the regulations involved in those itinerants first registering under Section 1 and then getting the exemption under Section 3(1), it was not thought necessary to write to all 400 and whatever local authorities. I will have a look at whether it is possible but I do not think it is necessary. I want to—

[Lord Campbell-Savours]

My Lords—

[Lord Henley]

Perhaps the noble Lord could just calm down a bit. It is late at night and we are trying to answer this problem in an appropriate manner.

I want to end by reiterating that we are committed to reviewing the Scrap Metal Dealers Act as soon as parliamentary time allows. That is why I dismissed the idea that it could not be done in less than five years. When we do so, we will be looking very hard at the role and regulation of scrap-metal dealers and itinerant collectors. I want to repeat the point that all noble Lords ought to grasp. It is not true that itinerant collectors can come by their own whim—they must go through a local authority inspection process and one that requires the approval of the local police. That is the important matter.

I hope that the noble Lord, Lord Faulkner, will accept that the clarification I have given has dealt with the various questions he put to me and that he will be content to withdraw his amendment.

[Lord Jenkin of Roding]

One of the questions that I asked my noble friend was why it was felt necessary to make this exemption. There is nothing new in what my noble friend said tonight that went beyond what he said last week and what my own researches have shown. Why is there still this exemption for the kind of chap whom I described in my speech of 40 years ago? The 1964 Act was passed a few months before I became a Member of the other place, which is rather a long time ago. Why is it necessary to have this exemption now? My noble friend has not fully satisfied me on that.

[Lord Henley]

I did deal with that—I said that the exemption goes back to that Act and there is proper regulation of those itinerant traders. It is one that we can look at in future, but we do not think that it is right to increase the burden on them, particularly as there is not the opportunity that my noble friend implied for a mad rush of traders to become itinerant traders, because there is a process by which they are regulated by local authorities and the police. I do not believe that there is the problem that he sees, but it is one that we can look at in future.

I felt that I had answered the question and made it clear that, if the amendment went through and those people were removed, it would create problems in dealing with them—as I said to the noble Lord, Lord Faulkner.

[Lord Faulkner of Worcester]

I am not going to apologise for bringing the subject back at Third Reading, because we have learnt a great deal this evening from the Minister in his very interesting speech.

I thank the noble Lord, Lord Jenkin of Roding, and my noble friend Lord Campbell-Savours for their quite excellent contributions. The noble Lord, Lord Jenkin, has taken the trouble to look at the issue in some detail and has come forward with a series of questions, some of which he has had answers to —although, with one or two of them, he may feel that the answer was a little bit opaque. My noble friend was a bit feistier than the noble Lord, Lord Jenkin, but he too made some powerful points. Again, I was interested to hear what the noble Lord, Lord Henley, said in reply.

One benefit of having this debate this evening is that the officials in the Home Office will be aware that there is great interest in this House about the legislation as a whole and particularly about whether the exemption is going to work. If the noble Lord, Lord Jenkin, is right and there is a large increase in the number of applicants for exemptions, it will be evident that the loophole has become unacceptable and will do great damage to the much wider and laudable aim that the Government have of eliminating cash from the sale of scrap metal. I hope that we at least see that the Home Office reviews this carefully, and I assure the Minister that we will come back to this on future occasions to ask questions on how it has gone.

I am a little unclear about the five-year review to which my noble friend Lord Campbell-Savours referred, which is in Clause 148. It might be more satisfactory if the review took place more quickly than that. However, I express my appreciation to the Minister for the thoughtful way in which he responded to the debate. I am not satisfied on all the points that he has made, but it is not my intention at this time of night to have a vote—although I must apologise to my noble friend Lord Campbell-Savours, who would like to have a vote. The message from the debate to the Minister is that we want to watch how this legislation develops and, if it goes wrong, I hope that remedies will be offered to us very quickly. I beg leave to withdraw the amendment.