Anti-social Behaviour, Crime and Policing Bill

Lord Ahmad of Wimbledon Excerpts

Wednesday 4th December 2013 Lords Chamber

Moved by

[Lord Ahmad of Wimbledon]

56MF: After Clause 101, insert the following new Clause—
“Possession of firearms by persons previously convicted of crime
(1) In section 21 of the Firearms Act 1968 (possession of firearms by persons previously convicted of crime), before subsection (3) there is inserted—
“(2C) Where—
(a) a person has been sentenced to imprisonment for a term of three months or more, and(b) the sentence is suspended under section 189 of the Criminal Justice Act 2003,the person shall not have a firearm or ammunition in his possession at any time during the period of five years beginning with the second day after the date on which the sentence is passed.” (2) In section 58(2) of that Act (saving for antique firearms), for “Nothing in this Act” there is substituted “Apart from—
(a) section 21 and Schedule 3, and(b) any other provision of this Act so far as it applies in relation to an offence under section 21,nothing in this Act”.(3) Where—
(a) a person is in possession of a firearm or ammunition immediately before the day on which subsection (1) comes into force, (b) by reason of a sentence imposed before that day, subsection (1) would (but for this subsection) make the person’s possession of the firearm or ammunition subject to a prohibition under section 21 of the Firearms Act 1968, and(c) the person’s possession of the firearm or ammunition immediately before that day is authorised by a certificate within the meaning given in section 57(4) of that Act,the prohibition does not apply while the certificate remains in force.”

[Lord Ahmad of Wimbledon (Con)]

My Lords, the Government remain committed to strengthening the system of firearms control where necessary in order to protect people from harm. We have identified two loopholes in the Firearms Act 1968 that we are taking the opportunity provided by this Bill to address.

The first change is in response to a recommendation made by the Home Affairs Select Committee in 2010. The committee recommended that persons with suspended sentences should be prohibited from possessing firearms in the same way as those who have served custodial sentences. The Government have accepted that recommendation, and subsection (1) of the new clause will ensure that the same prohibition applies to people who have suspended sentences.

A person who has served a custodial sentence of between three months and three years cannot possess a firearm for five years after the date of their release. For the purposes of suspended sentences, this prohibition will start from the second day after the date of sentence rather than the date of release. This is because a person with a suspended sentence will not be in custody from the date of sentence, so the prohibition needs to begin almost immediately. We have said the second day after the date of sentence so that, if the person does have a firearm, they are not instantly in breach of the law upon receiving their suspended sentence. In effect, they may have around 24 hours to sell the firearm or transfer ownership of it to someone else.

I should say, however, that this requirement on a person given a suspended sentence immediately to divest themselves of any firearms is subject to the transitional provision in subsection (3) of the new clause. This provides that a person who has had a suspended sentence imposed, and who holds a firearm or shotgun certificate on the day that the new legislation comes into effect, will be able to continue to possess their firearm or shotgun for the duration of that certificate. This is to ensure that we are not placing any additional burden and bureaucracy on the police by obliging them to go through their records to find certificate holders who have suspended sentences. As I have already said, this is purely a transitional arrangement; it will not apply to anyone given a suspended sentence after commencement.

The second change, made by subsection (2) of the new clause, will ensure that prohibited persons are prevented from possessing antique firearms. Currently a person with any criminal conviction would be able to possess an antique firearm. Intelligence indicates that there is a growing interest in antique firearms from criminal groups. This amendment will ensure that persons convicted of a criminal offence and sentenced to at least three months’ imprisonment, including a suspended sentence, will be prohibited from possessing antique firearms in the UK.

We believe that closing both these loopholes will strengthen public protection by ensuring that, as the 1968 Act intended, persons convicted of a criminal offence carrying a sentence of at least three months’ imprisonment are prohibited from possessing firearms. Amendment 104 simply makes a consequential amendment to the extent clause. I commend the new clause to the Committee.

[Baroness Hamwee (LD)]

My Lords, my noble friend the Minister said that an offender would be allowed a couple of days’ grace, as it were, to sell or hand over the firearm. If the offender wanted to hand it to someone in the same household, would that person have to have a licence, so that there would be no question of it being kept around on the premises and available unless the licence was already there for someone else?

[Lord Ahmad of Wimbledon]

I am sure my noble friend saw me nodding. That is quite correct.

[Lord Rosser]

We certainly support these amendments as they address gaps in the legislation and will enable more effective and comprehensive monitoring of firearms licensing. It is interesting to note that the Government’s intention to close loopholes in firearms licensing seems to stop at those on suspended sentences and at tightening regulations on antiquities. Although we agree they are important areas, the Government’s legislation, as we said on the previous amendment, does not extend to other rather more serious areas of activity or to preventing people obtaining a firearms licence. The Government seem to be keen on addressing loopholes in certain aspects of granting firearms licences but not, apparently, in others.

[Lord Ahmad of Wimbledon]

I believe my noble friend Lord Taylor has already dealt with that issue.

Amendment 56MF agreed.

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[Baroness Crawley (Lab)]

My Lords, I apologise that I was not present for Second Reading and ask for the forbearance of noble Lords in my intervention at this stage to support my noble friend’s amendment. However, my support comes with a heavy health warning about effective surveillance and enforcement. As president of the Trading Standards Institute, I am aware of this significant problem. As so many thousands of young people experience their first steps down the road to smoking addiction, as my noble friend said, it is through that means that that addiction starts.

Any move to tackle proxy sales of tobacco would get the full support of the trading standards profession, but proper enforcement and adequate surveillance is a great concern to it. A recent study of proxy sales of tobacco found that there was a strong desire from business representatives—and my noble friend referred to this—to see legislation implemented. The Robinson and Amos study of 2010 of young people’s sources of cigarettes and attempts to circumvent underage sales laws concluded that, while there was indeed a problem, more detailed research was needed before further action was taken. It was suggested that regular national smoking surveys should include questions that could capture more accurately the nature and extent of proxy purchases. I feel that this is somewhat cautious, given what we know from a number of surveys about the danger that young people are placed in by this activity. However, I would appreciate the Minister’s views on the suggestion of a more consistent way in which to survey the problem.

While the Demos think tank report that was out last week, called Sobering Up, studied the very real issue of underage access to alcohol and street drinking, and involved working with Kent trading standards officers, the read-across to tobacco is obvious. Even with legislation, enforcement is the key. The report recommended tackling the growing problem of proxy purchasing through greater community policing of the offence and tougher punishments for those caught. Of course, we are aware that there is an offence of proxy sales of tobacco in Scotland, with fixed penalty notices for both the purchase of tobacco by a young person under the age of 18 years and, separately, for the proxy purchase of tobacco on behalf of a person under 18 years. In Scotland, from April 2011, for the purchase of tobacco by a person under 18, the fixed penalty is £50 and the penalty on prosecution is up to a £200 fine. Also from April 2011, proxy purchases carry a fixed penalty of £200 and up to a £5,000 fine for a penalty on prosecution.

What research have the Government carried out into the effect of this new legislation in Scotland on proxy sales purchases so far? While many of us have anecdotal evidence, we are now two years down the road from the introduction of this Scottish legislation, and I think that noble Lords who want to support this amendment would agree that government has the provision and means to come up with far more structured evidence. I know that the Scottish legislation is still embedding itself; the Scottish Government’s request is for a softly-softly approach to be taken, especially with the introduction at the same time of the display and vending machines ban this year. But the aim, certainly, of trading standards in Scotland is to work in partnership with retailers to increase compliance with the new law. I am grateful to Veronica McGinley, the trading standards officer for Renfrewshire Council for her thoughts on the Scottish experience so far.

It has been emphasised to me that there are, of course, real personal safety risks attached to this type of sale, so we are not simply talking about young people’s health but their personal safety. In Renfrewshire alone, the recent Scottish Adolescent Lifestyle and Substance Use Survey found that 54% of 13 year-olds and 55% of 15 year-olds reported getting someone else to buy their tobacco for them. More frighteningly, in the case of 35% of 13 year-old regular smokers, this was most likely to be from an adult unknown to them.

While supporting moves to legislate in principle, we have to be aware that the enforcement of much tobacco control legislation, including the current age of sale, is the responsibility of local authority trading standards officers. There has been a great deal of talk about trading standards officers. I do not think—my noble friend is no longer in his place—that they would necessarily see themselves as cold war warriors: they are very much into partnership and encouragement these days. However, enforcement is extremely challenging given the massive reductions in staff and budgetary allocations that trading standards departments have faced in the past three years up and down the country. We have heard very recently of a local authority which has proposed reducing its trading standards department by 80% over the next two years. This is very serious if we are talking about the proper enforcement of serious legislation. The requirement also for a Regulation of Investigatory Powers Act authorisation in each case may pose a significant barrier to the testing and enforcement of future legislation. Can the Minister say what further assistance the Government envisage in terms of resource allocation to local authorities in the enforcement of this proposed legislation and, indeed, of current legislation? My noble friend made a robust case for introducing these new offences into the Bill and I look forward to the Minister’s reflections.

[Lord Ahmad of Wimbledon]

My Lords, I thank both noble Baronesses who have spoken on this issue. I was slightly surprised to see this amendment as it is something that perhaps has been, and no doubt will be, considered in debates on the Children and Families Bill. There was also last Thursday’s Urgent Question, but that was more specific on the issue of standardised tobacco packaging, which I am sure the House will deal with in its own way at the appropriate time.

We in this Committee and in the wider House can all agree that it is wrong for people to buy tobacco on behalf of children and young people; that was a point well made by the noble Baroness, Lady Thornton. We totally acknowledge that smoking is an addiction which unfortunately begins largely in childhood and adolescence, with peer pressure, friends or whatever encouraging people to take it up. Almost two-thirds of current and ex-smokers in England say that they started smoking regularly before the age of 18.

Part of our comprehensive tobacco control plan for England, which was published in 2011, was therefore focused on reducing the numbers of young people taking up smoking. The plan also includes a national ambition to reduce smoking among young people in England to less than 12% by 2015. As a result of decades of tobacco control, rates of smoking among young people have reduced considerably to around 10%, according to the most recent figures. I am sure that we have all noticed the practice of reducing smoking and prohibiting it in places such as restaurants. I remember as a child seeing smoking on trains and undergrounds, which we would be appalled by in this modern age. Restricting and prohibiting smoking has led to a reduction of it in society in general.

However, the take-up of smoking by young people continues to be a problem. It is estimated that more than 300,000 young people under the age of 16 in England try smoking for the first time each year. Reducing access to tobacco by children and young people remains a high priority for the Government and we are determined to reduce further the smoking rates among young people.

As for the sale of tobacco, we know that the majority of retailers are law-abiding and conscientious in how they conduct their sales. I acknowledge the important role they play in ensuring that legitimate tobacco products are sold in accordance with the law, including by being rigorous in refusing sales to young people under the age of 18. I realise that this can be difficult and I understand why some noble Lords and some retailers feel that it should be an offence to buy tobacco on behalf of under-18s. However, as the noble Baroness, Lady Crawley, said, we need to consider carefully whether creating a new offence of proxy purchasing is the right way forward at this time.

The supply of tobacco to children and young people is not a straightforward issue. A new offence of proxy purchasing would not necessarily tackle the wider problem of the supply of cigarettes because children and young people get them from a range of sources, not just from retailers. For example, many children and young people who smoke obtain their cigarettes from their parents or other members of the family—it is tragic but it does happen—or from friends or people they may socialise with who are over the age of 18. Buying single cigarettes in the school playground happens in certain parts of the country. A proxy purchasing offence would do nothing to stop these issues.

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[Lord Ahmad of Wimbledon]

The noble Baroness is right to raise that issue. As someone who worked in local government for 10 years, I am aware of the budgetary challenges faced by local authorities, irrespective of which Administration is in control centrally, and they need to establish priorities. The noble Baroness made an important point about enforcement. If this were to be made an offence, we would need to consider how it would be enforced. Even if a local authority took it upon itself to increase its number of trading standards officers to enforce this measure, it would be very difficult to do so given all the retail outlets that would need to be monitored. It is important to see what happens in other parts of the country, particularly in Scotland. We have an open door on this issue. If local authorities come up with a good initiative, I hope that they will share it with us so that it can be replicated across the country.

[Baroness Thornton]

I thank the Minister for his reply and I particularly thank my noble friend Lady Crawley for her contribution. As the Minister is a fairly recent newcomer to tobacco issues and I am not, I gently say to him that all the initiatives he mentioned were introduced by the previous Labour Government in the teeth of great opposition from the Benches opposite, if not from those to the left. We are pleased that those initiatives are being carried through, including the introduction of plain packaging—there is absolutely no doubt about that at all. However, the arguments that the Minister has deployed on proxy purchasing are the same ones that the Conservatives have deployed in all the discussions we have had about tobacco regulation over the many years that I have dealt with the issue. It was argued that because one initiative would not solve the whole problem it should not be introduced. We know that making it an offence to proxy purchase tobacco products on behalf of children is not the complete answer—of course it is not—just as we know that plain packaging is not the complete answer, and just as we know that covering up tobacco products in supermarkets is not the complete answer. We know that the provision we are discussing is not the complete answer. However, that does not mean that it is not important to consider it.

I am pleased that the Minister said that the door was open on this issue. Perhaps I may push at that door a little and say that if this amendment is not acceptable to the Government, perhaps they need to consider taking a power to introduce an offence of proxy purchasing at the next stage of the Bill, which can then be implemented in due course. That might resolve this problem. I hope the Government will think about that between now and the next stage of the Bill. I beg leave to withdraw the amendment.

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Moved by

[Lord Ahmad of Wimbledon]

56P: Clause 110, page 81, line 37, leave out “and (7)” and insert “, (7) and (10)”

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[Lord Ahmad of Wimbledon]

My Lords, Clause 110 provides the legal basis for the College of Policing to set standards for the police in England and Wales. This is the first of a number of provisions relating to the college and I think it would be helpful to explain some of the context for them.

The ability of the police to fight crime depends, for the most part, on the skills and abilities of the brave men and women who serve as police officers and police staff. As I glance around the House, I note several noble Lords who can speak with great experience and expertise of that area. The threats police officers and police staff must deal with on a daily basis are significant. Neither the Government nor the police can afford to neglect training and development. To do so jeopardises the safety of all our communities.

The arrangements this Government inherited were insufficient. Although the National Police Improvement Agency had responsibility for police training, its remit was too broad and its work too complex for it to deliver effectively for the police and the public. Given the severity of the threat the police and public face, the Government believe that a more focused set of arrangements are required. Part of those requirements involves the creation of the professional body for the police—the College of Policing.

The College of Policing’s mission will be to support the fight against crime and protect the public by ensuring professionalism at all levels in policing. It will do this through delivery in five core areas of responsibility. Those areas include: setting standards of professional practice; accrediting training providers and setting learning and development outcomes; identifying, developing and promoting good practice based on evidence; supporting police forces and other organisations to work together to protect the public and prevent crime; and identifying, developing and promoting ethics, values and standards of integrity.

The Government intend that the creation of the college should cement the status of the police as a profession. As a profession, the police will need to take greater responsibility for setting standards. Too often, those standards have been led by government. Clause 110 changes this balance. The clause provides that in future regulations regarding rank, qualifications for appointment and promotion, service on probation and personal records for police officers and special constables will be prepared by the college. The college will also prepare regulations relating to training for police officers and qualifications for deployment to particular roles. Finally, if the college believes it to be necessary, it can also prepare regulations regarding police practice or procedure.

As my right honourable friend the Home Secretary will continue to make these regulations and will continue to be accountable to Parliament for them, she will retain a right of veto. This power will be exercised if the regulations prepared by the college would impair the efficiency and effectiveness of the police, would be unlawful, or would for some other reason be wrong. This final power of veto may be used where the regulations as drafted are flawed, insufficiently clear or do not achieve the policy intention that the college hopes to achieve. In such circumstances the Home Secretary could ask the college to prepare a fresh draft of the regulations so as not to present flawed regulations before Parliament.

As I am sure noble Lords are aware, the Delegated Powers and Regulatory Reform Committee has commented on this clause. Indeed, it has issued an additional report which was published only this morning. The Government are most grateful to the committee for both its reports and we have already dealt with a number of amendments that implement its recommendations. As with its other recommendations, we have given careful consideration to the committee’s points about the delegation of the Home Secretary’s regulation-making powers as provided for in Clause 110.

The Government agree with the committee that regulations made under Section 53A of the Police Act 1996, governing the practices and procedures of police forces, should be subject to the affirmative resolution procedure in all cases. Police practice and procedure are matters of legitimate public concern. We all have an interest in the way that police officers go about their duty and it is only right that Parliament is able to scrutinise the work of the college in this area.

The Bill proposes to give the college two powers regarding standards of police practice and procedure. First, it proposes to give it a power to issue statutory codes of practice under Section 39A of the Police Act 1996. In the event that the college exercises this power, chief constables must have regard to any such code. Secondly, the Bill proposes to give the college a power to make changes to police regulations concerning practice and procedure. The Government believe that, in the event that the college wishes to make matters of police practice or procedure mandatory, Parliament should have the opportunity to debate and approve such regulations before they come into force. We have accordingly put forward Amendments 56P and 56Q.

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[Baroness Thornton]

I gave notice of my opposition to the Question that Clause 110 stand part, and I did so for probing purposes. I am still not clear that the Government are fulfilling the recommendations of the Delegated Powers Committee. I accept that the Minister addressed himself to the first report of the committee but I think I am right in saying that it is very unusual—it may never have happened before—that the Delegated Powers Committee has twice recommended to the Government that regulations should be subject to the affirmative procedure, and I should like clarification on that.

Clause 110 amends provisions which confer these powers to make regulations relating to the police. I listened to what the noble Lord said but I am not completely clear that the regulations will be subject to the affirmative procedure. In paragraph 5 of its report produced today, the Delegated Powers Committee said that,

“we remain of the view that, if the House considers it appropriate to transfer control of the content of the regulations to the College of Policing, the regulations should in all cases be subject to the affirmative procedure”.

I am still not sure whether that is the case. If I am right that the Government have made some regulations subject to the affirmative procedure but not these, then that is a cause for some discussion and concern. If I am wrong, I apologise to the Committee.

Secondly, I seek some explanation of the wording that has already been referred to by the noble Lord. In new subsection (2ZA) introduced under Clause 110(1), paragraph (c) says that,

“it would for some other reason be wrong to do so”,

in relation to the Secretary of State’s right of veto. Therefore, the Secretary of State is giving with one hand and taking away with the other. My honourable friend David Hanson raised the same question in the House of Commons. It seems contradictory, and I should like the Minister to explain to the Committee why the Government reached that view.

I want to make one other point in relation to the noble Lord’s final remarks. He said that the College of Policing will be subject to further scrutiny concerning its fees and other matters, as well as its financial and commercial viability. I just want to ask how on earth the Minister thinks that being accountable to Parliament for one’s financial and commercial viability will work.

[Lord Ahmad of Wimbledon]

My Lords, regarding the noble Baroness’s first set of questions, she is indeed correct. I mentioned that the Delegated Powers and Regulatory Reform Committee had issued a second report. She quoted from paragraph 5 of that report. Earlier on in that paragraph, the committee says:

“The Government have accepted this recommendation in so far as it relates to regulations under section 53A of the Police Act 1996”.

I believe that that was very clear from the points that I made. She then asked which regulations remain under the negative procedure, and perhaps I may expand on that a bit more. We have said that in respect of regulations under Sections 50 and 51 of the Police Act 1996 and Section 97 of the Criminal Justice and Police Act 2001 the Government believe that the negative resolution procedure should apply, and I shall expand on that.

These regulations relate to limited aspects of the governance, administration and conditions of service of police forces and to police training. Clearly, as I said earlier, these matters do not have the same level of sensitivity and public interest as police practices and procedures. During debate on an earlier amendment, the noble Baroness referred to the fact that she has been in your Lordships’ House far longer than I have, and I am sure she can relate to the fact that no regulations have been made in relation to training since Section 97 of the 2001 Act came into force and that the existing regulations under Sections 50 and 51 of the 1996 Act concerning ranks, appointments, promotion and personal records have been the subject of limited and infrequent amendment.

These essentially administrative matters are more akin to regulations on pay and discipline, which are also made under Sections 50 and 51 of the Police Act 1996, and are subject to the negative resolution procedure. There is no need for regulations prepared by the college to receive an enhanced level of parliamentary scrutiny, when regulations made under the same powers on matters of at least equal significance, such as police pay, do not. The negative procedure has worked effectively for many years on all these issues without any difficulty. It seems right and proportionate to maintain those uniform arrangements going forward. That does not of course mean that we cannot rule out the possibility that the regulations might need to be made quickly. Therefore, the affirmative resolution procedure would make that more difficult. Typically, that would occur in response to some unforeseen emergency, a change to our international obligations, a court decision that existing regulations are unlawful or the discovery of some error in the regulations that requires particular correction.

The noble Baroness also talked about my right honourable friend the Home Secretary retaining the power of veto for any other reason and the reasons for that. The information on when it may be wrong to make regulations for any other reason are set out in the Explanatory Notes, to which I refer the noble Baroness. It covers circumstances in which the regulation, as drafted, is not sufficiently clear, as I said earlier, is flawed or would not achieve the policy intention for which the college had hoped. In such circumstances the Home Secretary could ask the college to prepare a fresh draft so as not to present flawed regulations before Parliament.

In proposing what they are, the Government have struck the right balance, which ensures sufficient scrutiny by Parliament and supports oversight by the Home Secretary, if required. I commend the amendment to the Committee.

Amendment 56P agreed.

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[Baroness Hamwee]

My Lords, I am taking this opportunity to ask the Minister, who knows about my question, whether Clause 115 has the effect which it seems to me to have. The new section which is to be inserted into the Police Act will provide for powers to anyone to disclose information to the College of Policing where this is,

“for the purposes of the exercise by the College of any of its functions”.

Will the Data Protection Act be overridden in its entirety by this provision? What checks, possibility of challenge and possibility of complaint will there be? Is there any proportionality, propriety and so on? I am sure that I will be told that there is a difference between the college’s functions and its powers but I am not clear about the extent of this clause, which seems to be very wide.

[Lord Ahmad of Wimbledon]

I take it that my noble friend’s comments primarily were probing. Clause 115 provides the basis of information-sharing agreements between individuals and the College of Policing. In order for the college to fulfil its objectives it will need, from time to time, to have access to certain information. This information could cover a range of issues, including information about data in support of its work on the effectiveness of policing practice, data to inform the standards it sets for police officers and staff, and information that will help it produce the standards of ethics and values for the police. For example, as part of the college’s work to develop standards and ethics for the police, it may need information from the IPCC about its investigations and some of the lessons it has learned from the conduct of police officers. This information will be general and it should not be necessary for the IPCC to share information that would enable the college or its staff to identify individual police officers. I hope that noble Lords agree that it is important for the IPCC and other public authorities to have a clear legal power to share this valuable information with the college.

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[Baroness Hamwee]

Of course, at this stage I am probing. Anything more comes later. I understand to an extent the purpose of the clause, which is to give powers. Perhaps it is a failure of my imagination but I am not clear as to what sort of information the college might require to be disclosed. I will look at what my noble friend has said. As I have said, this seems to be a very wide clause. I will have to do some work on this after today but I am not clear on how the restrictions to which my noble friend has referred would work in this connection. For the moment, I am left with one question. Has the Information Commissioner specifically been consulted about this clause?

[Lord Ahmad of Wimbledon]

I suggest that between Committee and Report I meet my noble friend to address her specific concerns, which I hope will help with clarity and understanding at the next stage.

[Lord Harris of Haringey]

Does the noble Baroness agree that it might be helpful if the Minister, in writing to her, sets out a precise list of what is required and explains why it would not be possible for that list to be laid in regulations so that it is clear what information is being referred to? The way in which it is written at the moment seems extraordinarily broad.

[Baroness Hamwee]

I agree with that. I was going to press my noble friend a little on whether the Information Commissioner has been consulted. I hoped that there might be time for inspiration to flow across half the length of the Chamber but I do not think that it has.

[Lord Ahmad of Wimbledon]

While inspiration may be somewhat limited, I take on board the noble Lord’s suggestion. As I have said, I will suggest a meeting to address some of the concerns.

Clause 115 agreed.