Inheritance and Trustees’ Powers Bill [HL]

Lord Henley Excerpts

Tuesday 22nd October 2013 Grand Committee

[Lord Henley (Con)]

My Lords, I thank my noble friend Lord McNally for introducing the Bill in such a comprehensive manner. In my innocence, I thought that this was a relatively simple Bill that was not going to cause us too many problems. However, I was naive in that approach, and I suspect that when we get into proper Committee, Report and the other stages of the Bill under the Law Commission Bill procedure, we might have to spend slightly more time on it than I originally thought.

I also thank my noble friend for arranging our meeting last week with Professor Cooke and the Law Commission, which was very useful. It helped us to get some understanding of the Bill and explained to us some of the problems. However, having listened to my noble friend’s opening speech, I wonder if we did not spend quite as much time on it as perhaps we should have.

The important point, as my noble friend made clear, is that the Bill deals largely with intestacy. He said, “In an ideal world, such arrangements would be set out in a will”. I would remind the Committee of what I am told is a convention among Quakers. Once a year they say to each other not just, “Have you got a will?”, but, “Have you got an up-to-date will?”. There is no point in having a will if that will no longer reflects your views. Similarly, it is a fairly bad thing if you do not have a will at all. So we all want to see people taking the trouble to make sure that they have a will so that large parts of the Bill need not come into effect, other than those parts that refer to looking after dependants who quite rightly should be allowed to get something if the will has excluded them.

I am very grateful, as well as for that remark from the Quakers, for a quotation sent to me by the Law Commission. It is from Cato the Elder, as quoted by Plutarch. I am going to give it in English, not in Latin—the noble Lord, Lord Beecham, can probably translate it back. He said:

“And as for repentance, he said he had indulged in it but thrice in his whole life: once when he entrusted a secret to his wife; once when he paid a ship’s fare to a place instead of walking thither; and once when he remained intestate a whole day”.

I think that it is important that everyone remembers the importance of making a will and making sure that that will is kept up to date, and for that I am grateful to my noble friend.

As one who believes in property and the freedom of testation, I am also grateful to my noble friend for covering another matter at the meeting that we had last week, and that is the fact that, other than that it makes provision for dependants, the Bill does not impinge at all on that freedom of testation. Obviously there has to be some protection for individuals, for partners, spouses and others, but I still believe that it is right that everyone should have the right, subject to what they own and whether there are trusts and others, to leave their property as and how they wish; whether it be to the cats’ home, to a political party or to their own children or whatever. I make that point because I think that it is important that we all remember that freedom of testation is a very important part of everything that we believe in in this country.

Sadly, some people will die intestate and therefore there is a necessity for rules in this area. It is a long time since I did my Bar exams and I cannot remember what the precise rules were, but having looked through the Bill, it seems to make a pretty good fist of allocating those resources on the occasions when there is a spouse or a spouse and dependants. However, there is something that I cannot quite see. The first question I want to put to my noble friend—again, I am grateful for the diagram that he provided at last week’s meeting which set out the rules before and after reform—is whether I am right in thinking that for those estates where there is no surviving spouse or children, the rules continue as they were. I cannot remember the precise details of these, but those who are more learned in law will no doubt be able to advise us. So my first question concerns intestate estates where there is a surviving spouse, civil partner or children.

My second question relates to the fixed net sum, as set out in Clause 1. There seems to be an indication that this is going to be set at around £450,000, that the Lord Chancellor will have the power to amend it and that he will have to look at it at least every five years. However, I think that we would all be very grateful if my noble friend could say a bit more about the thinking behind that sum—how they selected it and what they think is likely to happen in the future. Having said that, I would be grateful for some statistics on how many intestate estates have more than £450,000 in the bag. I suspect that it is a pretty small number, because I think that most people who have assets of that sort will have taken the trouble to take some advice. I might be wrong in that, but I would grateful to know from my noble friend just what the statistics say.

The third question I want to put to my noble friend relates to the changing definition of chattels. I listened very carefully to what he said about jewellery and whether it was something that had been, say, worn by the spouse and was therefore part of her property rather than some other asset. I have some small personal experience of this and have to say that I see trouble ahead. It is an issue that might be worth exploring in greater detail on a later occasion.

The last point—I want to be relatively brief in this—is about procedure. I understand that this is the fifth or sixth Law Commission Bill that we have had since the procedure was agreed, and I think that most noble Lords will agree that it has worked pretty well. I remember being involved in the first one that we ever had; it was of such a technical nature that I do not think I understood a word of it from beginning to end, but there were wiser people than me in the Room on that occasion. All I want is an assurance from the Government that they will ensure that this procedure is used only for uncontroversial Bills of the sort that are appropriate, as set out by the Procedure Committee. This is an area where we do not want to see any drift or growth in how these matters work.

I hope that I have been appropriately brief. There are a number of questions for my noble friend and I look forward to later stages of the Bill in due course.

Crime and Courts Bill [HL]

Lord Henley Excerpts

Monday 25th June 2012 Lords Chamber

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

My Lords, I hope that I can deal with both amendments relatively briefly. I can say to the noble Lord, Lord Rosser, that the list of the NCA’s strategic partners currently includes, as he said,

“such persons as appear to the Secretary of State to represent the views of local policing bodies”.

We have used those terms because local policing bodies include not only the PCCs but two others—the Mayor’s Office for Policing and Crime, and the Common Council of the City of London, which acts as the police authority for the City of London police area. For that reason, the noble Lord’s amendment is completely unnecessary in that the provision achieves everything he seeks. Having said that, I accept what he says about the necessity of discussing all these matters with the people he was concerned about. Just to put him at ease, the term “local policing bodies” covers them all.

I turn now to my noble friend’s amendment, Amendment 68. I think she said that there was a time when a fiction was maintained that the intelligence and security agencies did not exist. We now acknowledge that they do exist and we accept that the functions and responsibilities of these agencies go much wider than purely crime reduction and criminal intelligence. They have a limited statutory function in relation to serious crime because that is not their primary focus and they are therefore not included in the list of partners that the Home Secretary or the director-general must consult—it is the word “must” that I stress to my noble friend on this occasion—when setting strategic priorities in drawing up annual plans. However, I can give her an assurance that the security and intelligence agencies will have an important relationship with the NCA. Provisions in the Bill allow the Home Secretary and the director-general to consult them when it is appropriate to do so. What we think is not appropriate is the use of the word “must” here, and that is why we have not included the agencies in the list set out in the interpretation clause, Clause 16.

I hope that that explanation is sufficient for my noble friend, and that the explanation I gave with regard to Amendment 67 is sufficient for the noble Lord, Lord Rosser.

[Lord Rosser]

I thank the Minister for his reply and for confirming that the reference to local policing bodies includes a police and crime commissioner. I think he also said that the provision has been written in this way—namely with a reference to local policing bodies—because, as well as a police and crime commissioner, it also includes the Mayor’s Office for Policing and Crime and the Common Council of the City of London. That rather begs the question of why earlier in the clause, where a “policing body” is also defined, it states that it means a police and crime commissioner, the Mayor’s Office for Policing and Crime and the Common Council of the City of London. When we look down the same page to the “strategic partners”, why does the clause not make it equally clear by simply repeating that they include a police and crime commissioner, the Mayor’s Office for Policing and Crime and the Common Council of the City of London, instead of describing them as “local policing bodies”? Alternatively, if the phrase “local policing body” is satisfactory, why in the reference earlier on the page to “policing body” does it not simply say, instead of setting out the first three categories, “local policing bodies”?

[Lord Henley]

My Lords, I am not a parliamentary draftsman—I do not think that I ever will be, and I am simple in terms of my understanding of the law. But even I, and I dare say the noble Lord, can probably grasp this one little point. If he looks up to line 4 on page 14 he will see that the meaning of “policing body” is set out in paragraphs (a) to (c):

“(a) a police and crime commissioner;

“(b) the Mayor’s Office for Policing and Crime”

“(c) the Common Council of the City of London as police authority for the City of London police area”.

Later the meanings under “strategic partners” are set out, with paragraph (c) stating,

“such persons as appear to the Secretary of State to represent the views of local policing bodies”.

The local policing bodies go back to “policing body” at that point. It does not take much understanding of drafting—I appreciate that I am not a draftsman—to understand that what is included in the first bit, “policing body”, must be included under “strategic partners”.

[Lord Rosser]

The only comment I would make in response to the noble Lord—like him, I have no great wish to prolong this matter—is that since the first reference is to “policing body” and the second is to “local policing bodies”, one might be entitled to ask, what is the difference between the two? Is there a subtle difference or not? Why is it not simply described again as “policing bodies” when it comes to the definition under “strategic partners”?

[Lord Henley]

I think that the noble Lord is protesting too much, but I will consult those who advise me on drafting matters and ask them whether they can give me a good explanation. I think that “policing bodies” must include “local policing bodies”, so there is no problem. The noble Lord is looking for conspiracies here, I suspect, but there is no conspiracy—it is straightforward, I can assure him of that. We are including the PCCs and the other two that I mentioned.

[Lord Rosser]

I assure the noble Lord that I do not think that there is a conspiracy. He has made it clear what the reference to local policing bodies covers and that is now in Hansard for the record. I do not believe in any conspiracy theory. However, I would certainly be interested to know, if he would write to me, why it is described as “policing body” in one place, with a definition, while a bit further down—under strategic partners—rather than repeating it as “policing body”, it says “local policing body”. One might wonder, why the difference? The Minister has said that he will look at it and write to me and I am extremely grateful for that. No, I do not believe there is a conspiracy, because the Minister has made it clear that police and crime commissioners are included in the reference to local policing bodies. This amendment sought to ensure that that was the case and in the light of the Minister’s response, I beg leave to withdraw the amendment.

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.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Henley Excerpts

Tuesday 20th March 2012 Lords Chamber

[Lord Faulkner of Worcester]

My Lords, this has been quite a long journey. I first asked an Oral Question on 3 October last year, arguing the case for cashless transactions and the necessity of amending the Scrap Metal Dealers Act 1964. On 10 November, in a Remembrance Day debate initiated by the noble Lord, Lord Selkirk, a number of noble Lords, including me, spoke about the despicable theft of war memorials for their scrap metal value.

The Bill we are debating tonight received a Second Reading in your Lordships’ House on 21 November, and I gave notice of my intention then to table the amendment which appears today on the Marshalled List. I drew attention to ACPO’s estimate that the national cost of metal theft was £770 million. I also referred to the 16,000 hours of delays suffered by rail passengers over the past three years caused by the theft of signalling cable, and to other examples of metal theft such as lead from church roofs, manhole covers, telephone wire and works of art.

Since then the scale of the problem has continued to grow, and every week brings fresh accounts of new theft. Last week, for example, my own local newspaper, the Worcester News, reported that 350 metres of BT underground copper cable had been stolen, which cut off telephone and broadband service in one of the major districts of the city. Numerous heritage railways have written to me to say that scores of metal items such as rails, lamps and even a fork-lift truck have been stolen for their scrap value.

I have another press report dated 1 March saying that seven churches are being targeted and robbed every night for the lead on their roofs; and in a new twist Network Rail reports that, in recent signalling cable thefts on the Cotswold line between Oxford and Worcester, the theft of a 650-volt distribution cable had been concealed by the insertion of a short length of domestic cable in its place—an incredibly dangerous manoeuvre. On it goes.

To his credit, the Minister has indicated that he is determined to do something about it, as did his predecessor, the noble Baroness, Lady Browning. I am particularly grateful to her, and to the right reverend Prelate the Bishop of London, for putting their names to Amendment 156D, and for their stamina in staying here at this late hour tonight.

The Home Secretary announced in a Written Statement on 26 January that government amendments to the Bill would be tabled to,

“create a new criminal offence to prohibit cash payments to purchase scrap metal; and significantly increase the fines for all offences under the existing Scrap Metal Dealers Act 1964”.—[Official Report, 26/1/12; cols. WS 80-81.]

The Minister may be aware that I immediately issued a statement warmly welcoming that announcement. It took a long time for the government amendments to appear, but last week they finally did, and we are debating them now as Amendments 157F, 157G and 157J.

What the Government are proposing is fine except for one baffling respect. For reasons that have not been properly explained so far, they are proposing an exemption for itinerant sellers. As I understand it, that will mean that the sale of metal to an itinerant collector will not have to be recorded, whether it is a householder getting rid of some unwanted domestic appliance or a metal thief using the itinerant as a way of getting into the chain. By proposing that exemption, the Government are opening up a serious loophole that could undermine much of the benefit that their move towards cashless transactions will create.

My understanding is that it is not difficult to register under the Scrap Metal Dealers Act 1964 as an itinerant collector, which is defined in that Act as,

“a person regularly engaged in collecting waste materials, and old, broken, worn out or defaced articles, by means of visits from house to house”.

While there may not be too many of those registered at the moment, surely there is a risk that there will be many more once word went round that this was a way to avoid the cashless requirement of being a scrap-metal dealer.

The Minister will be aware that the itinerant seller exemption has caused alarm among many in the industry. For example, SITA, to which both the Minister and I have paid visits in recent months to discuss this legislation, said this in its latest briefing:

“There is no reason why a cashless system cannot be implemented by bona fide itinerant collectors, along with the rest of the scrap metal industry … Moreover, the requirement for a cashless transaction between the itinerant collector and a scrap metal merchant will in any event necessitate the former to maintain a bank account with provision for electronic or cheque payment. It is therefore illogical to exempt the initial transaction between the seller and the itinerant collector, but to (rightly) mandate a cashless transaction for the on-sale of the material to a scrap metal dealer. Traceability over the entire chain, from seller to intermediary to dealer, will be broken along with proof of provenance of the metal presented for sale”.

That is a pretty convincing argument and is why I have tabled my own Amendment 157H to the government amendment to delete the exemption. I shall listen very carefully to the Minister's response to these points before deciding whether to press that amendment. In particular, I hope that I will hear him say that the Scrap Metal Dealers Act will be replaced by an entirely fresh piece of legislation to be introduced in the new Session. That could deal with all the issues relating not just to itinerant sellers but to the registration and licensing of the trade generally. Meanwhile, it would be churlish of me not to welcome the Government’s acceptance of the argument that I first put forward almost six months ago that an essential first step in tackling the epidemic of metal theft is to move to cashless transactions and to increase the penalties for persons committing this appalling, anti-social and dangerous crime. I beg to move.

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

It might be useful if I intervene at this stage. In doing so, I want to make it quite clear that I hope other noble Lords will intervene after me despite the fact that this is Report. This is purely because I have amendments in this group and it might speed up the process by which we debate these matters.

I pay tribute to the noble Lord, Lord Faulkner of Worcester, for all that he has done. We have listened to him and, as he knows, we have responded as much as we can in due course. I also want to make it quite clear that we in the Government recognise what a serious problem it is. I cannot list in detail the individual Peers, Members of the Commons and others who have been to see me. The right reverend Prelate the Bishop of London was the first to come and see me to highlight the problem relating to the churches. Obviously, this problem goes beyond the churches and beyond art theft; we all know about that Barbara Hepworth that was stolen recently. This affects communities and businesses throughout the country. We have seen damage to our infrastructure, to the railways, to communications and so on again and again and that damage is very great indeed. The noble Lord quite rightly cited an estimate of some £700 million. That is probably the effect on business and the community as a whole. What is depressing is how little money it actually brings in to the thieves themselves. The Barbara Hepworth that I mentioned, insured for £500,000 or £1 million or whatever, will have gone to some scrap-metal yard and been ground down and sold off for literally a matter of a few pounds. The real problem arises in the scrap-metal yards in that whoever was the first person to receive that—the first fence as it were—must have known that property was as hot as you can get because you do not often get Barbara Hepworths being brought in; they are not something you happen to find on the side of the road. So that is the problem and that is why the Government believe they should take urgent action.

That action can be taken in a number of different ways. The first and most important one is enforcement. The Government have made it quite clear that we want to address enforcement. My right honourable friend the Chancellor of the Exchequer announced late last year that there was an extra £5 million of funding for a new dedicated metal theft task force. The British Transport Police has taken the lead and is doing a great deal of work on this. In certain parts of the country we have seen great improvements in enforcement. I recently visited the north-east and saw what it was doing in terms of Operation Tornado, improving enforcement and increasing the number of arrests and cash seizures from the scrap-metal industry. That is happening throughout the country. Enforcement is one strand of what we must do and there are other things that we can do in terms of design and hardening objects so that they are less easily stealable or more traceable. However, we have concluded that legislation of one form or another is the only sustainable long-term solution to the growing menace of metal theft. That is why we have put down these amendments. They are similar to the amendments the noble Lord has put down but I have to say, as I always would, I think the government amendments are superior to his and I hope he will accept them in due course.

I want to keep my remarks brief, but will explain that the new amendments create a new criminal offence to prohibit cash payments to purchase scrap metals. We believe that at the moment it is just too easy for someone having stolen something to convert that something into cash, no questions asked. They also significantly increase the fines that are available for the majority of the offences under the Scrap Metal Dealers Act 1964, which regulates the scrap-metal-dealing industry. That is important. It only goes some way because, as I have said on a number of occasions, we believe that the Scrap Metal Dealers Act is not now fit for purpose but that it is worth at least upgrading the offences under that Act. But one should always remember that under the old Theft Act 1968 there is an offence of seven years for theft and more importantly, as I said earlier, under handling we have some 14 years available.

[Lord Campbell-Savours]

The story in the Commons is that the Government are saying that that subsequent legislation will be brought in under the Private Member’s Bill procedure in the House of Commons. Is that true?

[Lord Henley]

My Lords, I do not believe all stories that I hear, either in this House or in another place. I was going to come on to what we will do with scrap- metal dealers in due course. To put it briefly, we have found this opportunity under this legislation to make a number of changes, but we cannot completely redo the Scrap Metal Dealers Act under this legislation because of the scope of the Bill. We will certainly look at all legislative opportunities in the new Session to see how we can revise the Scrap Metal Dealers Act. All that I and other colleagues have said is that we believe that the Scrap Metal Dealers Act is no longer fit for purpose; it is past its sell-by date. How we revise that legislation, we will have to address in the new Session.

I have spoken of the first two changes that we are bringing in as a result of the Bill: making cash payments illegal and increasing fines under the Scrap Metal Dealers Act. Thirdly, we want in this Bill to revise the police entry powers to ensure compliance with the new offence. That, again, is something that will make the whole enforcement procedure easier for the police.

[Lord Roberts of Conwy]

Can the Minister confirm that even under his amendment itinerants can still have scrapyards of their own? Can they still have cash transactions and still not be inspected except under warrant?

[Lord Henley]

I shall come on to the question of itinerants in due course. It is something addressed by Amendment 157H in the name of the noble Lord, Lord Faulkner. I will deal with it in some detail because it is important, as there has been a degree of misunderstanding about that point.

We are bringing forward these three changes under the Bill, and they are just a first step in taking forward a coherent package of measures to tackle all stages of the illegal trading of stolen scrap metal. In response to the noble Lord, Lord Campbell-Savours, I can give an assurance—although I cannot give a timescale for this—that we shall bring forward further measures in due course. We believe that going cashless, which is the crucial part of this amendment, will remove the “no questions asked” culture that allows low-risk criminal enterprise for metal thieves and unscrupulous dealers. That is something that we want to deal with.

I turn to Amendment 157H, tabled by the noble Lord, Lord Faulkner, as an amendment to government Amendment 157G. It removes the exemption for itinerant collectors—and I make it clear that it is purely itinerant collectors whom we are dealing with—who have an order in place under Section 3(1) amending the record requirements that apply to them. Let me make clear that this is not a blanket exemption. Only itinerant collectors who are subject to an order under Section 3(1) of the Scrap Metal Dealers Act 1964—an Act that I described as being past its sell-by date, but it is still what we have—coming from their local authority and approved by the local chief officer of police will be exempted. This will be a modest number of individuals who will be known to both the police and their local authority. They will also be bound by environmental regulations with the need to have a waste carrier’s licence under the Waste (England and Wales) Regulations 2011.

Most importantly, no itinerant collector will receive cash from the scrap-metal industry on which they are reliant for selling scrap to. Travelling around the streets picking up scrap, they will, when they take it on to the scrap yard, have to have that payment made not in cash but by some other means. Their transactions will be traceable for the first time, with the scrap-metal industry recording details of the transaction and the payment method and to whom that payment is made.

I hope that that assurance will be sufficient to allow the noble Lord to understand that I do not think his amendment is necessary. It might be that we will have to come back to this at Third Reading, but I hope that on this occasion he will accept that we have got it more or less right and that some of the reporting of the exemption for the so-called itinerants is not exactly what he thought it was.

[Lord Berkeley]

Can the Minister clarify Section 3(1)(a) of the Scrap Metal Dealers Act 1964? It seems a bit odd that the only condition required of these people is that they,

“obtain from the purchaser a receipt showing the weight of … scrap metal comprised in the sale”.

We have all had receipts from people for getting things like that, probably without even a piece of carbon paper between the two. Why is it necessary to give such people an exemption when the only condition I see here is that they get a scrappy piece of paper as a receipt? It seems to be left wide open to shove things in a container and send them off to China without any paperwork at all.

--- Later in debate ---

[Lord Henley]

My Lords, first, they are not going to be shoving it into a container. This is, as it were, the rag and bone man going around collecting metal in the street. If he wants to get money for it, he is going to have to take it to a scrap yard. He is not going to get money for it by any other means. At that point, the provisions we are debating come into effect. If the noble Lord feels that we are creating an exemption that will create a loophole and drive a coach and horses through what we are doing, just by this small means of exempting the itinerants going around, he has probably got it wrong. He obviously does not accept what I have to say, but I think that he has misunderstood where we are coming from.

[Baroness Browning]

My Lords, I am grateful to the Minister for the explanation that he has given to the whole House, particularly in respect of the amendment tabled by the noble Lord, Lord Faulkner of Worcester, about itinerant collectors. However, I was pleased to add my name to Amendment 156D because, as my noble friend will be aware, the overall increase in metal theft is very clearly parallel to the rising cost of metals around the world. It is a world market, and the theft of the more valuable metals, such as copper, has particularly increased as the world price has gone up.

However, I remind my noble friend—not least in the context of the welcome news that we have in the government amendments tonight and the proposal completely to reform and amend the existing scrap metal Act—that it is very clear from the evidence from ACPO and others that scrap-metal theft is part of organised crime in this country. It is very easy to think that these are just opportunistic thefts, when people happen to see something that they might take on a dark night, and that sort of thing, but that is far from the case. Given that it is part of organised crime, I hope that my noble friend, in looking to get to grips with the reform needed in this area, will bear in mind the fact that very often it is the criminals who organise the people who, in practice, carry out the theft who make the most money. They orchestrate others: sometimes people who, I am quite sure, are fully aware that they are carrying out a criminal act but who themselves are not necessarily the beneficiaries of the full amount of the value of that scrap.

Reference was made just now to the Hepworth statue and how its melt-down value would not have been very much in comparison to its insurance value. The right reverend Prelate, on behalf of the churches, made very clear the overall cost to churches when they are robbed of the lead on their roofs, very often not just once, and the difficulty with insurance going up. The cost of these crimes is not just the melt-down value of the metals. It is also the consequential losses.

I would also respectfully remind my noble friend of the developing pattern in metal theft of what is referred to as rare earth. Very small quantities of these valuable metals can raise significantly more than copper and other more traditional metals. They are the sort of metals found in wind turbines and electricity generating stations. They are now starting to appear because yet again their value on the world market has gone up. Any reform to the scrap-metal act needs to take account of current trends, which are moving away from some of the more traditional metals to some of these more sophisticated metals.

I welcome the Government’s move to take out the question of this being a cash-based business—and one hesitates almost to use the word “business” in this context, but I suppose one must. They should bear in mind in any changes that they are bringing in to cover these wider issues that there is a sense of urgency about the need for more radical change. That change, if it is to address the increasing problems that we have, must look to those trends and to the future.

--- Later in debate ---

[Lord Berkeley]

My Lords, I congratulate my noble friend Lord Faulkner on taking this matter forward with so much pressure and commitment. My concern is that we seem to be discussing a parallel universe. The people in the BMRA, referred to by the noble Lord, Lord Roberts, do everything according to the book, and we are very grateful to them. However, I believe that there is the growing involvement of organised crime in this, as the noble Baroness, Lady Browning, said.

I have heard quite a lot of evidence about the way in which containers can disappear overseas without anyone knowing what is in them. It is not very difficult, especially if you do not live in a leafy part of Surrey or Buckinghamshire, to hide containers, and itinerant scrap merchants can get the metal into containers without anyone knowing very much. Perhaps the money comes from overseas. As many noble Lords said, the problem will grow. In the short term, the only solution is to support my noble friend’s amendment to get rid of this major loophole.

[Lord Henley]

My Lords, perhaps I may sum up the debate and address some of the points. Earlier I paid tribute to the noble Lord, Lord Faulkner, for all that he had done on the matter. I also pay tribute to my noble friend Lady Browning, who was the Minister who dealt with this before me. Only a few days before she unfortunately resigned and I moved to the Home Office, she summoned me and a host of other Ministers to the Home Office to discuss what we could do government-wide to address the problem. As a Defra Minister with a considerable interest in recycling and associated matters, I went along and said that it was possible that we might be able to do something through the Environment Agency. Soon after I left the meeting, my noble friend moved on and I found myself moving to the Home Office and in effect writing a letter from myself to myself to try to address these problems.

I am grateful for all that my noble friend did, and for the fact that she has now underlined some of the other problems that are beginning to appear in this matter. She referred to the problems with rare earths. I was recently in the north-west at a meeting dealing with truck theft. Truck theft is obviously very serious in terms of trucks and their contents being stolen, but certain bits of the trucks are also stolen to get the rare earths from, such as silencers, which can be of considerable value and whose theft can cause enormous problems.

I pay tribute to everything that my noble friend has done to highlight these problems. Similarly, I pay tribute to what the right reverend Prelate had to say and thank him for coming to see me to highlight the serious problems that the church is facing, particularly with the theft of lead roofs and with getting insurance on a great many church properties because of what is going on.

The noble Lord, Lord Campbell-Savours, asked me to comment on House of Lords reform. At this time of night, that is beyond my pay grade and I am not going to deal with it, but no doubt we will have further opportunities to discuss it in due course. He talked about the need for consolidated reform. I agree with him; I would like that in due course. I have made it clear that what we are doing at this stage is bringing forward the first stage of a package to get coherent reform in this area. It would not be right to delay the first few steps of that, as the noble Lord is suggesting, purely because we cannot get on to the other bits; we will get to those other bits in due course.

The noble Lord also said that the industry says that this will not work. Like the noble Lord, I have talked to the industry. I have addressed the BMRA; I have been to its annual parliamentary reception. The BMRA has made it quite clear to me that it welcomes virtually every aspect of reform. The only aspect that it is not terribly keen on is getting rid of cash. As someone else once said, “They would say that, wouldn’t they?”. I happen to think, as do most people in this House, that getting rid of cash from these transactions is a very useful thing to do and something that we ought to address.

The noble Lord made two other points that ought to be addressed. He asked about itinerants. I made it quite clear in my opening remarks that only itinerant collectors who are subject to an order under Section 3(1) of the Scrap Metal Dealers Act from their local authority, approved by the local chief officer of police, will be exempted. If they are also a scrap dealer and they have a yard, they will no longer fall within that definition of being an itinerant trader and therefore they will not be exempt. We are only talking about a very small number of people, who will be covered by the regulations that are in place at the moment. They are regulated.

[Lord Campbell-Savours]

The Minister seeks to reassure us, but what happens if over the next few years there is a noticeable shift in favour of itinerant collectors and the illegal trade? Will the Government come back to amend the legislation or will they review it?

[Lord Henley]

My Lords, we have made it quite clear that we are going to review it. We are going to keep this under control. The noble Lord is forgetting how few of these itinerant traders there are. They are not the people with the yards; they are people who are already regulated. The minute they have a yard they cease to qualify as an itinerant trader. It is as simple as that.

[Lord Berkeley]

Can the noble Lord say how many there are? He says that there are very few, but is it 10, 100 or 1,000? It would be very helpful if he could say.

[Lord Henley]

My Lords, I cannot give the noble Lord that figure without notice. I have no idea. I imagine that it might be possible, at disproportionate cost, to find out the number. All I am saying is that if they want to be an itinerant trader of that sort, they need a licence from their local authority and that has to be approved by the police. There is a very strict control on that particular aspect.

The noble Lord, Lord Campbell-Savours, rightly pointed to another problem—displacement. Could some of this go to Scotland? We are well aware of this problem. As the French discovered when they introduced a similar system, there was a danger that things would cross the border into Belgium and Germany. I have discussed this with colleagues in Northern Ireland and Scotland, although Scotland is more important, as there is a land border. Our colleagues in Scotland are well aware of what we are doing and are in full consultation with us. They will try to make sure that whatever they do keeps in line with what we wish to do.

The noble Lord is, for honourable reasons, merely seeking delay—delay that I am sure the BMRA would think was a worthy object to achieve. However, we do not think that it is right. We think that it is right to get rid of cash as soon as possible from this industry and that that will make a difference.

The last point that I want to address is that made by my noble friend Lady Hamwee about timing. I am afraid that I cannot give any categorical assurances to her about when and how we will get that further legislation. However, I make it clear, as my honourable friends in another place have done, that this is the first part of the package. We want to continue taking forward a coherent package to deal with all the other matters in the future, but I cannot give her any guarantee about timing.

[Baroness Hamwee]

My Lords, I did not expect my noble friend to be able to help me with regard to future legislation. I am sorry that I did not make myself clear. I was asking about commencement of these provisions, which will shortly find their way into the Bill and the Bill will no doubt shortly make its way on to the statute book. I am concerned about the current provisions.

[Lord Henley]

My Lords, these provisions will come into effect soon after Royal Assent, but I will check up on that and allow my noble friend to have the precise answer in due course.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Henley Excerpts

Wednesday 15th February 2012 Lords Chamber

[Lord Faulkner of Worcester]

My Lords, I move Amendment 189 not with the purpose of having a lengthy debate on scrap metal theft and the move towards a cashless transaction regime tonight, but in order to give the Minister the opportunity to explain to the Committee what the Government intend to do with this issue at Report. If it is the Government's intention on Report to move their own amendment on becoming cashless, I shall seek the leave of the Committee to withdraw the amendment later. I thank the other noble Lords who have signed this amendment: the noble Lord, Lord Bradshaw, the noble Baroness, Lady Browning, and the right reverend Prelate the Bishop of London, whose perseverance and endurance I pay tribute to by seeing him in his place here this evening.

This is a very important issue. It is part of a package of measures which I hope that the Government are going to take on board in relation to the epidemic of scrap metal theft. It may be that tonight the Minister could also say something about what the Government intend to do about powers of entry and closure of premises where there is suspicion that they contain stolen metal. If, in addition to that, he can also confirm that the Government are intending to bring forward substantive legislation in the new Session to update the Scrap Metal Dealers Act 1964, my cup genuinely will runneth over. I beg to move.

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

My Lords, I am grateful to noble Lord, Lord Faulkner, for introducing this amendment to highlight this important issue? Like him, I pay tribute to the right reverend Prelate for his perseverance in staying here at this late hour for this matter. The right reverend Prelate was one of the earliest who came to see me to highlight this issue, particularly as it related to churches. However, as so many have said before, it is not just the churches, but it is the power companies, the transport companies and so many others. I do not want to go through the wide range of people who have been affected by it.

The noble Lord will be aware that my right honourable friend the Home Secretary announced on 26 January that the Government would be bringing forward amendments in the Bill to strengthen the law in this area. I repeated this as a Written Ministerial Statement in this House. In that Written Statement, my right honourable friend indicated that the government amendments would create a new criminal offence to prohibit cash payments to purchase scrap metal and significantly increase the fines for offences under the existing Scrap Metal Dealers Act 1964 which regulates that industry. This forms part of a coherent package of measures that we are taking to tackle metal theft. We aim to deter both thieves and metal dealers through more focused enforcement and tougher penalties. We will cut out the reward for metal thieves by banning cash payments for scrap metal and reducing the incentives for dealers to trade in stolen metals by developing a more rigorous licensing regime. These amendments are but a first step, albeit an important one. I underline that to the noble Lord.

Obviously, I welcome the support of the noble Lord and while I am sure that he is going to withdraw his amendment, he asked a crucial question about powers of entry and what we should do there. There are problems. As the noble Lord knows, Section 6(1) of the 1964 Act—an Act that he and I have both described on various occasions as being past its sell-by date—already provides police with a power of entry to premises registered as a scrap metal dealers under that Act. Section 6(2) further provides a power of entry to any officer of the local authority duly authorised in writing to enter a place for the purpose of ascertaining whether it is being used as a scrap metal store and, as such, officers of the local authority have a power of entry to premises not registered under the Scrap Metal Dealers Act.

It is intended that the national metal theft task force will visit every single registered and unregistered scrap metal yard in the course of its routine business. One element of that visit will be to ensure registration under the 1964 Act. As such, we expect that the number of scrap metal dealers that are not registered under the Act, and consequently where the police do not have the power of entry, will be greatly reduced. In addition, we are actively looking into the option of widening police powers as part of our amendments. If that is something that we can deal with later on Report, we will do so.

I hope that, with those assurances about what we are definitely going to do and what we hope to do if we see a way to do it, the noble Lord will feel able to withdraw his amendment. I want to make clear to him, though, that we have a coherent package, we want to get ahead of this and we want to look at further amendments to the 1964 Act in due course. I hope that we can get, as I put it, a coherent package that we can bring before the House.

[Lord Faulkner of Worcester]

My Lords, I am most grateful to the Minister. I pay tribute to him for the way in which he has dealt with me so courteously since I first tabled this amendment immediately after Second Reading, which seems to be a very long time ago now. He has done exactly what he said on that occasion and has given the undertaking that on Report the Government will table an amendment on cashless payments. He has also given us some hope on entry to premises.

I hope that the Government will find time for this in the next Session, will not be deflected from unnecessary legislation that clogs up this House and will deal with something really important: the problem of scrap metal theft. On the basis of the assurances that the Minister has given today, I beg leave to withdraw the amendment.