James Brokenshire
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Protection of Freedoms Bill
James Brokenshire Excerpts(12 years, 8 months ago)
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The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire)
I beg to move, That this House disagrees with Lords amendment 16.
Mr Speaker
With this it will be convenient to discuss Lords amendments 17 and 18, and Government motions to disagree.
James Brokenshire
The amendments would provide that powers of entry may be exercised only with the agreement of the occupier of the premises in question or on the authority of a warrant, unless the authority using the power
“can demonstrate that the aim of the use of the power would be frustrated if a warrant or agreement were sought.”
That restriction would be disapplied where the power of entry is being exercised by a trading standards officer, a constable or a member of the Security Service, or in pursuance of the protection of a child or vulnerable adult.
We are sympathetic to the objective underpinning the amendments. We all agree that powers of entry, particularly as they relate to peoples’ homes, should be subject to proper safeguards, but we believe that the blanket approach taken by the amendments is misconceived and, as such, could hamper legitimate enforcement activities and put lives at risk. The amendments are predicated on the basis that there has been an unacceptable proliferation in the number of powers of entry—some 600 such powers were created by the previous Government—and that in many cases there are insufficient safeguards attached to such powers. The Government share that analysis, which is why we have included the provisions in chapter 1 of part 3 of the Bill. The problem we have with the amendments is not their objective, but the blanket approach they adopt, even if it provides exemptions for a small number of specific bodies. We judge that such an approach would simply not work. One size, in this case, does not fit all, and the fact that the amendments include limited exemptions serves only to demonstrate that the approach taken, while it might appear superficially attractive, is incapable of withstanding close scrutiny.
In adopting the blanket approach of requiring in all cases the consent of the occupier or a warrant, the amendments fail to differentiate between powers of entry that support routine enforcement activity and those powers that protect the public from serious crime or from threats to life and limb.
Keith Vaz (Leicester East) (Lab)
Does the Home Office have any statistics on the number of times that police officers have entered using the powers that they already have?
James Brokenshire
What I can point the right hon. Gentleman to is the published list of the various powers of entry that we analysed, as it indicates that the total number of powers for all agencies is between about 1,300 and 1,400. That is obviously quite a significant number, hence the reason why in our judgment the analysis, the review and the measures in the Bill are appropriate, given that the proliferation has expanded considerably over the past few years. As I indicated, about 100 new powers of entry were created under the previous Government, hence the reasons for the measures in the Bill and why we feel that the mechanism contemplated by the Lords amendments does not quite fit or work in terms of what is required.
There will undoubtedly be other circumstances, not contemplated by the Lords in their amendments, in which an exception to the general rule should apply. The key point is that without examining each power individually we simply have no way of knowing whether the amendments add necessary safeguards to the overbearing powers of a state official or stymie the operation of a vital tool designed to protect the public.
Given the acceptance of the need for exemptions, it might be tempting simply to add to the list of those officials who are exempt from the requirement to obtain a warrant or the consent of the occupier, but that approach is mistaken. In recognising the need for exemptions, we should not then rush to apply blanket exemptions. Naming specific officials, in the manner of the amendments, grants such persons free rein to operate without the need to consider a warrant or the occupier’s consent, regardless of the purpose for which the officials are seeking to gain entry. That is too broad an exemption.
Interestingly, in the other place the Opposition supported the amendments, but are they really arguing that trading standards officers should, in all circumstances, be able to exercise their powers of entry without the consent of the occupier, or on the authority of a warrant? We shall have to wait and see what the official Opposition say in response to those points, reflecting on the debate that took place in the other place.
Such an exemption might also give that person immunity from the review we intend to undertake, and that simply is not desirable. We want to review all powers of entry, including powers exercised by constables and by trading standards officers, but the presence of such people in the situation under discussion proves unequivocally that the amendments do not work.
It has been suggested that amendment 17 offers the necessary flexibility by authorising entry without consent or a warrant
“where the authority using the power can demonstrate that the aim of the use of the power would be frustrated if a warrant or agreement were sought”.
But such a provision would simply create confusion and uncertainty, as it would open up the exercise of a power of entry to legal challenge by an aggrieved occupier who might argue that the requirement to enter the premises in question would not have been frustrated if he had been asked to consent or if a warrant had been applied for.
I hope that my remarks make it clear that the Government are not simply inviting this House to disagree with the amendments and then leave it at that. As I have said, we support the principle that in the great majority of cases powers of entry in respect of domestic premises should indeed be exercised only with consent or on the authority of a warrant, but the way to achieve that is through the existing provisions in this part of the Bill. Clause 40, for example, allows us to add safeguards to powers of entry such as a requirement to obtain an occupier’s consent, providing reasonable notice, or getting a warrant before entering a person’s house. The new code of practice under clause 47 will govern the exercise of powers of entry and set out further safeguards to protect the rights of individuals and businesses.
The duty to review powers of entry under clause 42 will require Ministers to examine all the powers for which they are responsible and report to Parliament on the outcome of that review. The reports of these reviews will indicate whether individual powers are no longer justified and should therefore be repealed or retained but with the addition of better safeguards.
James Brokenshire
If the right hon. Gentleman refers to the Bill, he will see that the time period contemplated is two years, in order to allow proper consideration of all the relevant 1,300 to 1,400 powers of entry. This is not something that will simply lie in abeyance. The review of all powers must be completed within two years of Royal Assent, and we have said that we will report back to Parliament every six months to provide an update on progress, so there will be a steady updating process. I hope that that gives him comfort. I also highlight to him the Home Office gateway, which provides an ongoing check and balance in relation to new powers of entry, as well as the ability to review existing powers of entry that may be triggered as a consequence.
Mr David Hanson (Delyn) (Lab)
What ultimate sanctions are in place in the event that the two-year review is not completed by any Department?
James Brokenshire
The review is a specific statutory requirement, and we are focused on ensuring that it is undertaken with all due expedition. The right hon. Gentleman will be aware of the requirements of the ministerial code and other requirements on Departments and Ministers to abide by the law. In addition, the ongoing six-monthly review that I mentioned will enable the House to maintain pressure on Departments to ensure that the provision is being properly adhered to and followed through with the intent and spirit of the Bill.
I point out to the right hon. Member for Leicester East (Keith Vaz) that we have made significant progress through the Home Office gateway, which considers all applications by Departments for new powers of entry. To date, 19 applications to create or amend powers of entry have been considered, and we have added greater safeguards in every case. Every power of entry in respect of domestic dwellings that has been approved through the gateway process has included a requirement that entry is obtained either with the consent of the occupier or on the authority of a warrant. We have also taken the opportunity to scrap a number of powers.
I hope that that reassures right hon. and hon. Members that we are serious about ensuring that powers of entry are subject to appropriate safeguards and that we are committed to rolling back intrusive state powers and strengthening the privacy of home owners and businesses.
When taken together, the gateway process and the measures that I have outlined add up to a significant commitment to tackle what we have recognised to be a significant infringement of the rights of home owners. I have also made it clear that we cannot, in every case, demand that entry is effected only with the consent of the occupier or on the authority of a warrant. I put it to the House that our approach will ensure that the necessary safeguards are put in place to protect home owners, while providing greater legal certainty and ensuring that the police and others can act swiftly to protect the public. I therefore have no hesitation in inviting the House to disagree with the Lords amendments.
Mr Hanson
I am grateful for the opportunity to contribute to this short debate.
Lords amendments 16 and 17 were supported in another place by Lord Selsdon. I welcome the debate about powers of entry and look forward to the Minister’s response to the points that I will put to him. When both I and Lord West were Ministers in the Home Office, the then Prime Minister, the right hon. Member for Kirkcaldy and Cowdenbeath (Mr Brown), commissioned him to write a review of entry powers. The report that Lord West produced was overtaken by events with the general election, but I will refer to it with regard to the matters before the House.
The genesis of the Protection of Freedoms Bill lies in a document published in 2010 called “Modern Conservatism: Our Quality of Life Agenda”. I hope that the Minister will not think this too harsh, but I thought that, on balance, it was a rather tawdry document and I disagreed with almost every word of it. I do not say that very often or very lightly. The Lords amendments, which were passed with the support of the Opposition in another place, as the Minister said, would hold the Government to account for what they said they would do in that document. It stated that a Conservative Government, who I accept are upon us, would
“cut back the intrusive powers of entry into homes. Public bodies (other than the police and emergency services) will require a magistrates’ warrant, and approval for such a warrant will be restricted to tackling serious criminal offences or protecting public safety.”
This is an area of private grief between Government Back Benchers in another place and the Government. The Lords amendments would allow the Government to deliver on one of their major promises. That is something that the Government have failed to do on many occasions.
Steve Baker
When I look at Lords amendments 16 to 18, my instinct is certainly to support them, but after many, many hours in Committee with my hon. Friend the Minister, I know that he has a thoroughgoing commitment to progress towards liberty, so I assure him of my future support for simplifying powers of entry. As I have said previously to my right hon. Friend the Home Secretary, who is in her place, when the knock comes on the door, householders should be able to know whether the person knocking has a right to enter, or whether they are permitted to refuse entry. However, having sat through both the Public Bill Committee’s evidence sessions and heard contributions from Opposition Members, I know that the Minister has met the forces of reaction. I encourage him not to succumb to reactionary opposition or to the notion that certain powers should be elevated over liberty in the interests of security or expediency. I am confident that he will be steadfast in the cause of liberty, so I will support the Government.
James Brokenshire
I rise to respond briefly to a number of the points raised. Let me assure my hon. Friends the Members for North East Somerset (Jacob Rees-Mogg), for Ipswich (Ben Gummer) and for Wycombe (Steve Baker) of this Government’s commitment and resolve to roll back the arms of the state that may seek to intrude into private life.
The measures before the House this afternoon are important. They underpin our focus on ensuring that powers of entry are proportionate, appropriate and respect the right to be able to enjoy one’s home without undue interference. The House will also recognise, however, that there are certain circumstances in which such intervention might be appropriate—to protect health, to prevent harm or to ensure that criminals are legitimately brought to justice. That is why we are undertaking the review that I have outlined this afternoon.
I assure the right hon. Member for Leicester East (Keith Vaz) that I understand his desire to get on with this. We have said that we will report back to the House on a six-monthly basis, and I anticipate that that will involve a joint report on behalf of all the relevant parts of the Government Departments undertaking the review, to provide an update on the progress and the steps that are being taken. We intend the review to be Home Office-led and it will be undertaken in large measure by officials, but they will be responsible to Ministers, and I assure the House that Ministers will be driving the process forward, recognising the House’s strong feelings about the importance of liberty.
It was a bit rich of the right hon. Member for Delyn (Mr Hanson) to suggest that we were trying to kick this matter into the long grass and to defer or delay it. On the contrary, we are legislating through the Bill, we are taking action and we are setting out a clear process to roll back powers of entry, which grew enormously under the last Government. The fact that 600 new powers of entry were created during their period in office underlines the fact that due regard was not given to the implications of those measures. I am proud that this Government are introducing a clear mechanism to review the impact of powers of entry and the necessity of their remaining on the statute book or being made subject to further safeguards. The measures in the Bill will allow that to be done.
I very much welcome the support that has been expressed by right hon. and hon. Members on both sides of the House this afternoon. I know that the right hon. Member for Delyn will want to ask what target we have set, but I hope he has realised that we are not a Government who arbitrarily set targets. We will look at this matter in a measured, considered way and decide what is in the best interests of liberty and the protection of freedoms in relation to safety and security, as well as of the freedom from the intrusion of an overbearing state.
James Brokenshire
I will give way, having made a challenge to the shadow Policing Minister.
Mr Hanson
I sense that the Minister is about to finish his speech. Before he does so, will he try to answer the question that I put to him earlier? In the event of a Secretary of State not meeting the duty set out in clause 42, what sanctions would be available to address their failure to meet that target?
James Brokenshire
I think I have already answered the right hon. Gentleman’s questions fairly and squarely in terms of the statutory requirement on which I hope the House will legislate. I hope that that measure will go on to the statute book. The Bill represents a significant step forward—one that the previous Government failed to take during the 13 years in which they were creating 600 additional powers of entry. I note that he is seeking to push and challenge us on this, but I must point out that the Bill represents a significant step forward. Ministers will be bound by the provisions, and they will take the new responsibility extremely seriously.
I hope that the House is minded to disagree with the Lords in their amendments this afternoon. That in no way implies a lack of commitment, resolve or focus on the Government’s part to ensure that powers of entry are properly examined and, as appropriate, scaled back to ensure that they properly protect without intruding, and that they are not retained on the statute book if they are not necessary.
Lords amendment 16 disagreed to.
Lords amendments 17 and 18 disagreed to.
A New Clause
Stalking
Stella Creasy (Walthamstow) (Lab/Co-op)
I beg to move amendment (b) to Lords amendment 51.
Madam Deputy Speaker (Dawn Primarolo)
With this it will be convenient to discuss the following:
Lords amendment 2.
Lords amendment 3, and amendment (a) thereto.
Lords amendments 4 to 8.
Lords amendment 9, and amendment (a) thereto.
Lords amendments 10 to 15, 19 to 29, 56, 62, 64 to 66, 70 to 101, 114 to 116 and 134 to 137.
James Brokenshire
The amendments relate to the provisions in parts 1 to 4 of the Bill. Some are of a minor and technical nature, but some are of more substance; given the number of amendments in the group, I propose to focus my comments on the more substantive amendments. We are returning to themes and issues that have been debated at length in the House. Obviously, we judge that improvements have been made in the other place. We very much look forward to debating those issues, as well as the amendments to the Lords amendments proposed by the Opposition.
Amendment 1 takes account of the change in part 5 of the Bill to the definition of “vulnerability”. The new definition is intended to be more straightforward for the police to understand and apply. It relates to the ability of the police to retain the DNA profile of someone who has been arrested but not necessarily charged, and to a measure built in to provide certain safeguards where there was some proximity between the person arrested and the possible victim of a crime. Part of that relies on the definition of “vulnerable adult”. The definition originally applied in clause 3 was taken from the Safeguarding Vulnerable Groups Act 2006. As that Act and definition are amended by the Bill, the 2006 Act definition is no longer suitable because it focuses on the care or treatment being provided to the individual, rather than on the characteristics of the person themselves. For the purposes of clause 3, a different definition is needed, which is why we have imported the definition from the Domestic Violence, Crime and Victims Act 2004, which links vulnerability to the ability of an individual to protect themselves from violence, abuse or neglect, and which we feel fits more neatly the purposes of clause 3. As I have said, the provision is intended to provide a further safeguard where the police arrest someone for a violent or sexual offence, if there is proximity to the victim.
Amendment 2 introduces a limited exception to the general rule, brought forward from the previous Government’s Crime and Security Act 2010, that all samples will be destroyed within six months of being taken. I think both sides of the House agree that DNA samples should be destroyed as soon as practicable, and a six-month window was felt to be appropriate. However, the Government tabled amendment 2 in the other place in response to representations from prosecutors at the Crown Prosecution Service. They told us that, in a limited number of cases each year, it would be necessary to retain individual samples in order to deal with any subsequent challenge by the defence to the comparison made between the DNA of the individual and that found at the crime scene—in other words, to provide reassurance in relation to criminal prosecution. Prosecutors expressed concerns that if they could not retain samples in these cases, they might unable to withstand such a challenge and that acquittals on technical grounds might result.
It might assist right hon. and hon. Members if I give an example of the type of case where such an issue might arise. A crime scene stain could well contain a mixture of the blood of both a stabbing victim and their attacker, and perhaps a third person such as an innocent house-mate of the victim. In such case, the quantity of material from the victim is likely to exceed significantly that from the attacker and the innocent third party. Without retaining the reference samples from all three individuals, the chemistry and analysis used to derive the three individual profiles, and thus make a match to the suspect, might be open to challenge in court.
Lords amendment 2 therefore creates a safeguard by inserting a mechanism into clause 14 to enable the police to decide very early in a case, before any samples have been destroyed, to make an application to the local magistrates court to retain all the individual samples in the case for 12 months. In the majority of cases, 12 months should be long enough to identify a suspect and complete the pre-trial disclosure process, as part of which it would be established whether the defence intended to mount a challenge to the derivation of the DNA profiles and/or the matches that may have arisen; if not, the material would be destroyed at that point. If the derivation of the profiles remained at issue, a further application could be made to the trial judge to retain the material for an additional 12 months.
Lords amendment 3 updates the existing exclusions from the Police and Criminal Evidence Act 1984 to ensure that the new regime in part 1 of the Bill does not apply to the International Criminal Court Act 2001 or the Terrorism Prevention and Investigation Measures Act 2011, both of which have bespoke retention and destruction regimes in schedule 1 to the Bill. In case the shadow Policing Minister is wondering, I will come to the Opposition’s amendment (a) to Lords amendment 3, but I will go through the Government’s amendments before dealing with the Opposition amendments.
Lords amendments 73 to 83 to part 3 of schedule 1, relate to the retention of DNA profiles and fingerprints as set out in the Counter-Terrorism Act 2008, as opposed to those that fall under standard PACE regimes. Specifically, amendment 73 ensures that new section 18 of the Counter-Terrorism Act applies only to biometric material that is held by a law enforcement authority under the law of England, Wales or Northern Ireland, that is not subject to existing statutory restrictions, and that is held for the purposes of national security. The remaining amendments also clarify the scope of the application of the provisions amending the retention regime under section 18 of the 2008 Act. They extend the list of existing statutory restrictions set out in the Act and permit law enforcement authorities to retain anonymous material indefinitely. The amendments would essentially prevent the premature deletion of profiles, before a proper investigation into who the sample belongs to has taken place.
The separate issue of biometrics in schools is dealt with by Lords amendments 7 to 14. The Government consider a child’s biometric information to be highly personal and sensitive, and as such, it should be afforded greater protection. We debated these issues at length in Committee during the Bill’s earlier passage through this House. There is general agreement in both Houses that schools and colleges should be required to obtain the consent of a child’s parents if they wish to take and process a child’s biometric information. We listened carefully to the concerns raised about how the proposal to seek the written consent of each parent would impose an unreasonable additional burden on schools and colleges, and that it could discourage schools and colleges from using biometric recognition technology. Lords amendments 7 to 14 would remove the requirement for both parents to give consent, and provide instead for schools and colleges to be required to notify both parents that they intend to take and process the child’s biometric information. As long as no parent objects in writing, the written consent of only one parent will suffice.
We believe that Lords amendments 7 to 14 strike a sensible balance between ensuring that the views of both parents continue to be taken into account and preserving their right to object, as well as ensuring that the administrative burden on schools and colleges is not too great. The amendments also bring the consent requirements in the Bill more in line with all the other forms of consent that schools and colleges are required to have. The main difference in this instance is the express provision to notify both parents of a child, and the stipulation that if any parent objects, the processing of their child’s biometric information cannot take place. The amendments in no way lessen the key purpose of this part of the Bill, which is to ensure that children’s personal and sensitive data are properly protected.
The amendments to part 4 of the Bill relate to pre-charge detention. Lords amendment 27, which is a response to a further recommendation from the Delegated Powers and Regulatory Reform Committee, relates to clause 58, which contains a power for the Secretary of State to increase the maximum limit of pre-charge detention for terrorist suspects to 28 days for a three-month period in circumstances where Parliament is dissolved or in the period before the first Queen’s Speech of the new Parliament. The Committee previously considered a similar order-making power in the Terrorism Prevention and Investigation Measures Act 2011. That Act contains a duty for an order made when Parliament is not sitting to be laid as soon as practicable afterwards. To ensure consistency across these two pieces of legislation, and in keeping with the Committee’s recommendation, Lords amendment 27 requires a draft of a clause 58 order to be laid before Parliament once it has reassembled following a general election.
Lords amendment 28 is designed also to respond to an observation from the Delegated Powers and Regulatory Reform Committee by removing any requirement for an order that revokes a 28-day pre-charge detention extension to be approved by Parliament. The extension by order of pre-charge detention to 28 days would be exceptional, as we have said previously; therefore revoking the order would simply return the pre-charge detention arrangements to the status quo.
Lords amendments 29 and 101 are a response to a recommendation from the Joint Committee on Human Rights on stop-and-search powers. The purpose of the amendments is to ensure that the police officer who is considering whether to authorise the use of stop-and-search powers under section 47A of the Terrorism Act 2000 is reasonable in his or her consideration of the necessity of using the powers, as well as in his or her suspicion that an act of terrorism will take place. The Government believe that the amendments made in the other place have improved the relevant provisions of the Bill, and I commend them to the House.
Let me turn to the Opposition amendments in the group, starting with amendment (a) to Lords amendment 3. On our reading, it would effectively disapply all the substantive provisions of chapter 1 of part 1 of the Bill in cases of an alleged offence under the Sexual Offences Act 2003. In practice, if a person was arrested for, or charged with, any offence under the 2003 Act, there would be no requirement to destroy DNA samples and no time limit on the retention of DNA profiles or fingerprints. It is interesting that, with amendment (a), Labour appears to be changing the position it held in government, when Ministers appeared to argue that a six-year limit was appropriate. They also said that they acknowledged the judgment of the European Court of Human Rights in the S and Marper case, and their proposals in the Crime and Security Act 2010 were intended to follow through on that.
When the Bill was last before this House, we discussed at some length whether it was appropriate to retain such material for three or six years. Now the Opposition apparently wish to ignore even their own previous analysis, and instead go back to keeping everything for ever in cases involving offences under the 2003 Act. Before, when we challenged the Opposition on this, they said, “No, no, it is not our intention to keep DNA profiles for ever. We wish to stick rigidly to the six-year rule,” so it is interesting—and notable, given their statements that they are now moving more in the direction of protecting individual liberty—that they are now reverting to type and seeking to retain indefinitely the DNA profile of people who might be innocent of any crime.
James Brokenshire
I will give way to the hon. Lady, and as I have said, I look forward to hearing the Opposition’s clarification on the amendment.
Diana Johnson
Will the Minister clarify what would happen if one or both parents have refused permission for biometric data to be taken from their child, but the child wishes to consent? Would the child have the right to have their biometric information taken?
James Brokenshire
As the hon. Lady will be aware, the provisions relate to the consent of the parents. They say that the consent of one parent is required, but it is left open to the other parent to object, and such an objection would stand. If need be, in the light of the arguments that the right hon. Member for Delyn makes for his amendment, I will provide further clarification.
Finally, I turn to the motion to disagree with Lords amendment 28. The amendment is a response to an observation from the Delegated Powers and Regulatory Reform Committee that questioned the necessity of an affirmative procedure for an order revoking a temporary extension order. In the Government’s response to the Committee, we concluded that it was not necessary to subject a revocation order to parliamentary scrutiny, given that it would be neither appropriate nor meaningful. The Committee did not take issue with that conclusion. It would be perverse if Parliament were in the position of debating and voting on a revocation order when it had not had the opportunity to approve the original temporary extension order, given that the order had been revoked before it had been approved. Any such debate would be likely to be academic because a temporary extension order lasts for only three months, and there is therefore a strong possibility that an order would have expired before any debate had taken place. Furthermore, a revocation order will simply return the maximum period of detention to 14 days, the maximum period already approved by Parliament, which negates the need for parliamentary approval of a revocation order. That remains the Government’s view, and I hope that the House will not support the Opposition’s motion to disagree with the Lords amendment.
Mr Hanson
As the Minister has said, we are indeed traversing old ground that is familiar to me, to him and to his officials. The initial discussion on DNA retention had its genesis in the debates on what became the Crime and Security Act 2010, which was produced during what I shall have to call the dying days of the last Labour Government. At that time, the then Home Secretary, my right hon. Friend the Member for Kingston upon Hull West and Hessle (Alan Johnson), and I, the then Policing Minister, wrestled with the issues on DNA retention. We looked at them in great detail, and made an assessment of the judgments of the European Court of Human Rights on these matters.
We also considered how we could maximise the envelope that was available for the retention of DNA. That was a matter of judgment. We wished to ensure that we had the greatest possible ability under the legal requirements set down under those European Court judgments to maintain the retention of DNA so that we could use it to catch criminals who had committed crimes or who could potentially commit further crimes. We made the assessment—rightly or wrongly; we believe rightly—that there were between 20,000 and 23,000 individuals who might well have committed crimes during the six years. With the shorter period that the Minister is proposing in the Bill, such people will not now have to face that judgment. The police might not be able to use the DNA samples any more when the Bill comes into force, as the DNA profiles will no longer be in place. This is indeed old ground.
The 2010 Act was the subject of a difference of opinion between me and the then shadow Minister, and that difference has not changed in the subsequent two years. Happily in many ways, I was not party to the Bill’s initial consideration in Committee, as I was at that time shadowing Treasury Ministers. I returned in October, however, to find that the Government were intent on progressing the change in the DNA regime. I see my hon. Friend the Member for Tynemouth (Mr Campbell), who was a Home Office Minister at the time. Let me say that as a name for a Bill, the Protection of Freedoms Bill is one of the greatest misnomers ever in my near 20-year career in this House. It unpicks the impact of Labour’s 2010 Act. In so doing, I believe it puts at risk individuals in our communities who could have been helped and supported and could have been protected from becoming victims by the provisions of the 2010 Act.
Our amendment (a), to which the Minister has referred, is meant to provide a device to allow us to debate some of the serious offences that would be impacted by the Government’s proposed changes to the DNA regime. We have argued strongly—it is a matter of judgment—that the Crime and Security Act 2010 was the best way to meet our European obligations at the same time as trying to protect civil liberties and ensuring also that the British people would be free of murder, rape and crime. There are balances to be struck in ministerial life, which is always about balances. When I was in government with my fellow Ministers in the Home Office—the Department that the present Minister is now privileged to serve—we felt that under European law and paying respect to the protection of liberties, we should try to extend the window of opportunity to protect as many people as possible by ensuring that DNA samples were collected.
Kate Green (Stretford and Urmston) (Lab)
I wish to raise one specific issue in relation to Lords amendment 3, and I put on the record my interest as a life member of the Magistrates Association. Ministers propose that the possible holding of DNA on the database beyond the period covered by the legislation could be agreed on application to a district judge. My understanding is that they have drawn on the experience in Scotland, where agreement from the sheriff and the sheriff courts is required. Has consideration been given to extending that provision to cover justices of the peace who are members of the lay magistracy? Unlike in Scotland, the magistrates court works as a single bench; there is no hierarchical difference or difference in terms of courts between district judges and lay magistrates.
James Brokenshire
We have carefully considered the issue of the balance between the lay magistracy and the more professional judiciary. On the specific issues in question, we judge that because of the likely number of cases and the role required, the current measures are the right ones. However, we will continue to keep this under review as the legislation comes into effect and is applied.
Kate Green
I thank the Minister for that assurance, and I certainly hope the situation will be kept under review. District judges are paid members of the magistracy, and I am sure the Minister is not suggesting that there is less professionalism in the quality of judgments of the lay magistracy.
James Brokenshire
In many respects, I am speaking on behalf of the Minister for Equalities, who is also responsible for criminal information; she would wish to be here if it were not for a family emergency.
This group of amendments relates to parts 5 and 7 of the Bill. Part 5 will implement our reforms to the disclosure and barring arrangements, which will scale them back to common-sense levels. The Lords amendments to part 5 address a number of concerns raised by hon. Members in our earlier deliberations on its important provisions. We have had useful debates on the issues in this House and the other place, and I am pleased that the hon. Member for Kingston upon Hull North (Diana Johnson) welcomes Lords amendments 33 to 36, which amend clause 67 and relate to the criteria for automatic barring by the Independent Safeguarding Authority.
Our review of the disclosure and barring scheme concluded that it did not make sense to bar somebody if they had never worked, and are unlikely ever to work, in regulated activity. We recognise that this change to the barring arrangements was a matter of concern to hon. Members in this House and in another place, and to partner organisations. We therefore brought forward the amendments, so that people convicted of the most serious offences, such as the rape of a child—in such cases, representations are not allowed—are barred automatically, whether or not they have any link to regulated activity. In all other cases, a person will be barred only if they have been, are, or might in the future be involved in regulated activity. Should they ever apply to work in regulated activity, their details will be passed to the Independent Safeguarding Authority or the disclosure and barring service, which will consider them for barring at that point. I welcome what the hon. Lady said in that regard.
On amendments 30 and 31, obviously there continues to be a genuine difference between the two sides of the House. I listened carefully and intently to what the hon. Lady said. Amendments 30 and 31 amend clause 64, which amends the definition of “regulated activity” and introduces the concept of regular and day-to-day supervision of individuals whose work would be regulated activity if unsupervised. We previously debated at length the appropriate level of supervision; the Opposition suggested that it should be “close” and “constant”; notwithstanding what the hon. Lady has said, we still believe that that formula is unworkable in practice.
When the Bill left this House, it already made provision for the Secretary of State to issue guidance on the meaning of “day to day supervision”. Amendments 30 and 31 require the level of supervision to be reasonable in all the circumstances for protecting children. That qualitative threshold, coupled with the statutory guidance, will assist employers and voluntary organisations in making appropriate judgments as to which of their supervised staff or volunteers fall within or outside the scope of regulated activity. The hon. Lady’s amendments to Lords amendments 30 and 31 would remove the definition of “day to day supervision” in clause 64 and replace it with:
“constant monitoring by an individual engaged in a regulated activity who is on the same site and able to maintain close visual and audio contact with the individual who is under supervision.”
Such constant monitoring is, in our judgment, likely to be impossible in practice. A trip away from a classroom, perhaps for a comfort break or something like that, would be enough to cause someone to fall foul of the amendments. The effect of the amendments would be to reinstate all supervised people within regulated activity.
I appreciate that this is a point of difference between us, and I know that the hon. Lady has considered the issue carefully, but as we have said, we believe that although it is right that all paid staff and unsupervised volunteers in specified places such as schools, and unsupervised staff in other places who carry out activities such as teaching and training, should be within regulated activity, it is not proportionate to include other staff in those areas within regulated activity. Lords amendments 30 and 31 make it clear that the test of supervision is whether it is reasonable in all the circumstances for child protection, so if supervision is not reasonable, the person falls within regulated activity, but if it is reasonable, there is no need for them to do so. Our judgment is that that is right, in order to empower employers to make decisions, to reduce unnecessary burdens on employers, and to remove barriers to volunteering. If a grandparent whom a head teacher has known for years wants to help out with reading at their local school, why should the head teacher have to check their barred status, if he or she knows that they present no risk?
However, I repeat the assurances given by my ministerial colleague, Lord Henley in another place: supervised people who work regularly and closely with children will remain eligible for enhanced criminal record certificates, and our guidance on supervision will make it clear that it is best practice to request such a certificate when employees or volunteers are unknown to the organisation, or if checks are needed for new posts or staff moves.
It might make sense for me to talk about the Opposition’s amendment (a) to Lords amendment 48, because there is a strong link between that amendment and their amendments to Lords amendments 30 and 31. The effect of the amendment to Lords amendment 48 would be that the definition of “conviction” in the Police and Criminal Evidence Act 1984 included a person’s inclusion on an ISA barred list. I presume that the intention is that the information should then be included on criminal record certificates.
We have debated the issue of barred list information before. The Government do not think it right to include barred list information on enhanced criminal record certificates, except for posts falling within regulated activity, and a few compelling exceptions, such as when people are applying to foster or adopt a child.
Employers in regulated activity must know about a bar because of its legal effect; otherwise, there is no need to know because it relates to a different area of work and in practice would lead to individuals being excluded from areas of work to which their bar does not apply. In most cases, the information which led to the bar will be available on an enhanced criminal record certificate. When it is not, as Lord Henley also confirmed last week in another place, we will use secondary legislation to allow the ISA to give the police the information which led to a bar so that they can disclose it on an enhanced certificate, if it is relevant to the post applied for.
Bars may apply, for example, because there is a criminal conviction, but equally a bar may apply because someone has been dismissed by their employer in respect of a particular case. In those circumstances the ISA would be able to give the police the relevant information. The police would then be able to determine, through an enhanced check, whether its disclosure was appropriate. We think that that provides an important safeguard.
Diana Johnson
With the experts at the ISA making a judgment about whether someone should have barred status, why is another layer of bureaucracy introduced by giving that information to the police to allow them to make a further judgment about whether that should be disclosed to a school, for example? Why do we not trust the ISA to make the right decision and disclose that?
James Brokenshire
This is where we differ on the appropriate way to treat the bar. We believe that if there are circumstances which would otherwise not necessarily have been disclosed for the ISA to make that judgment, it is appropriate to allow that information to be disclosed to the police and for the police to consider the application that they have received on an enhanced check and to judge whether the disclosure of those facts and circumstances is right in that case.
I appreciate that a difference exists between us. We do not see that as bureaucratic. It is about respecting the purpose of the bar and ensuring that on an enhanced check, if the ISA holds relevant information, it can be provided to the police. We have made that clear through our assurances in another place. I hope that that gives greater reassurance on a matter about which I know the hon. Lady feels strongly.
Meg Munn
I am concerned that the measure is becoming bureaucratic. We know that when systems are not clear, there is a greater likelihood that people will not follow them properly. Although the Minister may be certain in his own mind that the theoretical operation of the process is justified, is he equally certain that it will be operated in a way that does not allow information that should be shared to fall through the gaps?
James Brokenshire
We intend that the ISA should provide that information to the police, as I explained. We will be very focused on the way in which the measure is implemented to ensure that that reflects our intentions and that the police have the relevant information for an enhanced check. I recognise that there is a potential point of difference between us on this, but I hope I have explained some of the additional safeguards that we are putting in place.
From what the hon. Member for Kingston upon Hull North said, I do not think the other amendments are contentious. Amendments 37 and 38 to clause 77 would make it clear that the new duty on the ISA—and, in future, the disclosure and barring service—to pass barring information to the police will include passing the whole of the children’s and adults’ barred lists, as well as information about a particular person. This will ensure that the police can obtain real-time access to barring information for safeguarding purposes.
Amendment 40 to clause 79 would make changes to the proposed arrangements for the issue of a single criminal record certificate under that clause. Amendment 40 provides a facility for the Secretary of State to send to a registered body a copy of a criminal record certificate only where the registered body uses the new updating service, as introduced by clause 82, and is informed that a new certificate should be applied for—in other words, that there has been new information since the most recent certificate. If, once that new certificate has been sought, the registered body informs the Secretary of State that the individual has not sent it a copy of the new certificate within a prescribed period and requests a copy of the new certificate, the Secretary of State must comply with that request.
However, a copy of the certificate will not be sent if prescribed circumstances apply. Principally, these will be when the individual has challenged the information on the new certificate. This change will be particularly relevant to large organisations that consider certificates centrally, which will be able to advise their local branches of any issues arising.
Amendment 41 would insert a new clause into the Bill which will strengthen the current powers of the Criminal Records Bureau to refuse to register an individual or organisation as a registered body. Amendment 48 inserts a new clause that will ensure that cautions, reprimands and warnings are recorded on the police national computer in exactly the same way as convictions.
James Brokenshire
With the leave of the House, I shall briefly respond to the hon. Lady’s two points about trafficking.
On the first point, about the requirement for a rapporteur under article 19 of the EU directive, we still take the view that the requirement can be met through the inter-departmental ministerial group, but we recognise that the group needs to be reviewed to ensure that it can perform the rapporteur function effectively, and its next meeting, in April, will do just that.
It is also important for me to make it clear that the directive does not stipulate that the national rapporteur or equivalent mechanism be independent of government, but the Government fully recognise that in signing up to the EU directive we must comply with the requirements therein.
In response to the intervention from my hon. Friend the Member for Wellingborough (Mr Bone), I can confirm that it is intended that there will be an annual report on the group’s activities in that regard. I hope that that is helpful to him.
James Brokenshire
Unfortunately, the second point is outside my gift and within that of the business managers, but I certainly assure my hon. Friend about the publication of the report, and I hope that my comments on the rapporteur function are helpful.
Secondly, on the hon. Lady’s point about the assurance made by my noble Friend Lord Henley in the other place, the Government intend that we should ask the Children’s Commissioner for England to help to identify where improvements can be made to the practical care arrangements for trafficked children in the way that the hon. Lady highlighted.
I pay tribute to the work of the Children’s Commissioner. The hon. Lady highlighted the work on sexual exploitation, and I know about the very important review that the commissioner is undertaking. I had the privilege to discuss the issue with her at the start of her report, when I had ministerial responsibility for policy on the sexual exploitation of children, and I for one underline her comments on what I am sure will be an extremely important and valuable report. In the context of my noble Friend’s assurance in the other place, therefore, what I can say is that the issue is being considered extremely carefully, and discussions are under way on the scope and time scale of the review, but at this stage I am unable to give the hon. Lady the complete assurance that she looks for in the second of her two amendments. The matter is being looked at extremely carefully and closely in order to give effect to the statements that my noble Friend made in recognising the importance that we attach to receiving such input from the Children’s Commissioner.
Keith Vaz
Will the Minister respond to my hon. Friend’s excellent point about the appointment of guardians? It was an excellent point that reflects the recommendations of the Home Affairs Committee when we produced our major report two years ago on human trafficking. The appointment of a guardian would provide the best possible protection for such children in care.
James Brokenshire
The right hon. Gentleman makes an important point, and for the reason he cites we asked the Children’s Commissioner to review the practical care arrangements for trafficked children. We said that the right step at this stage was to seek that input, rather than to seek to legislate, recognising equally that several local authorities are already undertaking some very good practice.
I recognise that, in respect of the hon. Lady’s amendments, that might not be sufficient, but it was important that I respond and set out those points to the House this evening.
Question put, That amendment (a) to Lords amendment 30 be made.