Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Roberts of Conwy Excerpts

Tuesday 20th March 2012 Lords Chamber

[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.

--- Later in debate ---

[Lord Campbell-Savours]

The House is indebted to my noble friend Lord Faulkner of Worcester for tabling this amendment because it raises an issue that we should not be discussing at nearly midnight in an empty House of Lords. It should have been debated at prime time, as it is a central part of the legislation. The Minister referred to a sustainable long-term solution and then to the need for further legislation. If the Private Members’ Bill procedure is used in the House of Commons—I am told that the idea is that it will be used because of the shortage of time in the next Session due to the need to push through the House of Lords reform Bill—it is distinctly probable that, unless the Government give it government time, the Bill will fall. Those of us who have been in the Commons know that most Private Members’ Bills in the House of Commons fall. There is simply an objection to block them on the Friday when they are being considered. We need something far more substantial than simply a vague reference to further legislation being considered in the future. We need a consolidated piece of legislation, which brings the Vehicles (Crime) Act 2001, the Scrap Metal Dealers Act 1964, the Motor Salvage Operators Regulations, this Bill dealing with cashless arrangements and a properly enforceable regulatory system together in a single piece of legislation. I believe that the way the Government are proceeding today is the wrong way.

I wish to quote from a question and answer session that took place in the House of Commons yesterday, as the Minister’s reply let the cat out of the bag. Graham Jones, the MP for Hyndburn, asked:

“Does the Minister not recognise that the public may be shocked that a cashless scheme might not be cashless under the Home Secretary’s proposals, which exclude mobile collectors? If they are exempt, that will create a huge loophole in the system. … Is the exemption not a giant loophole and an own goal?”.

James Brokenshire, on behalf of the Government, said:

“The … answer is no. Those involved in door-to-door sales will need to trade their product through scrap metal dealers, so they will be subject to the Bill’s provisions”.—[Official Report, Commons, 19/3/12; col. 506.]

What does that mean in reality? A thief may go into wherever, steal a war memorial, break it up, contact an itinerant trader and sell it for cash to the itinerant trader, as I can see nothing in this legislation that stops him selling it for cash. The itinerant trader either then boxes it up and sends it abroad or destroys the markings which show the origins of the material. Then he goes into the legitimate system by selling it to a registered trader. In other words, in those conditions the Government’s objective to stop cashless trading where it affects war memorials, rolls of copper from railway lines or whatever, will not be met at all because the trade will simply switch into an itinerant Traveller trade. At least at the moment that trade is going into an area of the market which perhaps is acting illegally in parts but which should under the new arrangements be subject to a cashless system. Therefore, as I say, the Government’s objective will not be met.

The noble Lord says that under Section 3(1)(a) of the 1964 Act there is an element of control over these itinerant traders. However, we know that they have no phone lines. They probably use pay-as-you-go mobiles. They rarely have an address. They invariably have no fixed abode. They also claim that they have no bank accounts. They are capable of exporting abroad because they have networks. The noble Baroness, Lady Browning, referred to the networks that are run by criminals. They can send the material to Scotland, which I understand is not introducing this legislation, although I am sure the Minister will correct me if I am wrong about that. This whole business will switch from a legitimate area—it is legitimate in the sense that we could potentially control the movement of these items which have been taken illegally—into an illegitimate area of trade run by itinerant Travellers, who will not in any way be subject to any legislation because, as far as they and the authorities are concerned, it is unenforceable. Therefore, why do we not simply delay the legislation and introduce a proper piece of legislation which requires a more proportionate system of regulation and which deals more effectively with the problem?

The other day someone asked me over the phone how you measure the material going into these yards. Often, someone sends out a skip, the material is put in the skip and they do not know when they are collecting it and paying for it how much of what is in the skip comprises metal. Who will be responsible for dividing it up when, at the end of a year, the authorities come in—or perhaps come in—and carry out some kind of audit to ensure that all the metal has been paid for by way of a cheque or a legitimate means of payment? The question of separation of materials by scrapyards is something that the Government should deal with.

We are told that at the end of five years this matter will be reviewed. Why are we waiting five years? The industry says that it will not work. The Minister has been told repeatedly by the industry that, although it wants a cashless system, it believes that the way in which the Government are introducing it, without dealing with the wider problems of regulation, will inevitably lead to problems and that the system will fail. If this measure is to go through tonight and return to the Commons, surely even at this late stage Ministers might have a rethink. The industry does not object to the principle of a cashless system, in the way that my noble friend has suggested, but it objects to the fact that there is a loophole which will build a new industry in the hands of itinerant Travellers, who will relish the thought that they will be able to make money now that others have been restricted and regulated and that they will be subject to no proper regulation whatever.

[Lord Roberts of Conwy]

My Lords, I am as appalled and as horrified as anyone at the heartless, dangerous and very costly spate of metal thieving that we have suffered in recent years. There is nothing new in the offence as such. I remember the theft of a bronze head of Gladstone from a very public spot in Penmaenmawr in my erstwhile parliamentary constituency in the 1980s, where the great man used to bathe in the sea. Despite all my efforts, the bust was never found. Of course, it was an isolated incident, not part of an intense extensive campaign of metal thieving of the kind that we have experienced in recent times.

I wholeheartedly support the special efforts that are being made by the authorities, and especially by the task force led by the British Transport Police, to gain intelligence and arrest the perpetrators of these dastardly crimes. However, the amendments that we are discussing do not fall directly into this category. They are directed at the potential receivers of stolen metal. I stress the word “potential” because I am not at all convinced that the bulk of stolen metal is disposed of through the numerous scrap-metal dealers, many of whom are properly registered with local authorities and keep proper books of receipts and disposals according to the provisions of the Scrap Metal Dealers Act 1964.

Yet these scrap-metal dealers are the main targets of the amendment. Although they can be visited by the police and other authorities at any time, their relationship with the authorities is usually strongly co-operative, if only because the scrapyards themselves are often the target of metal thieves. The real culprits are more likely to be found among the unregistered dealers and operators. They are far more likely to be the receivers of stolen scrap metal, along with the so-called itinerants whom we have talked about already this evening. Not all are as innocuous as Steptoe & Son, who curiously enjoyed special exemption under the 1964 Act. Such people cannot be inspected by the police without a warrant. Their position is still somewhat ambiguous and confusing under the government amendment because, as I read it, they can still maintain a scrapyard and be exempt from the no-cash deal restriction.

We heard an explanation from the noble Lord when I intervened, but I am not at all clear how an itinerant collector of scrap can end up with no cash at the end of his deal when he gets back to the yard, which is presumably his own yard or that of his partner. Of course, to be effective, the provisions of the 1964 Act require close supervision, and that has been missing in many local authorities in the past. I suggest that that is quite a different matter from suppressing the scrap metal crime wave that demands our attention at present.

I suspect that the prohibition of cash transactions has more to do with the Revenue than the theft issue. I would be glad if the Minister could enlighten us further on that cashless requirement. If the Revenue is concerned about VAT, I am told that dealers in the Republic of Ireland collect the tax for the Government and that the system works satisfactorily. In this context, we tend to forget the social benefit of scrapyards in disposing of metal waste from residential and other properties. We are glad to see defunct materials taken away from our premises. The fact that the plumber or the electrician gets some money for the old cast iron cistern or old lead piping does not bother us individually. We are glad to be rid of it in registered scrapyards. The majority of these transactions involve comparatively small sums, and there is an argument for allowing de minimis cash transactions of this kind, which I hope the Government will consider. They are the bread and butter income of many small scrapyards, which may have to discontinue trading if they are subjected to cashless trading that may drive customers—sellers—away to unlicensed traders.

The cashless trading requirement must be a unique prohibition in this country. I can think of no other trading activity where the use of cash is banned. I have concentrated on the typical registered scrapyard, which is unfairly and indiscriminately targeted by the cashless proposal favoured by the Government and by the amendment tabled by the noble Lord, Lord Faulkner. However, many of them are collectors and contributors to the success of the 300 or so members of the British Metal Recycling Association, who are the major players in the green manufacturing business, recovering some 13 million tonnes of metal from 2 million cars, 5 billion food and drink cans and so on to sell back to metal producers. They contribute £6 billion to the UK economy and generate exports of about £3.6 billion.

The BMRA appears to be reconciled to the cashless proposal but wants a better definition of scrap-metal dealers as such and a clampdown on the unlicensed operators. It also wants clarification of cash allocations to ensure the better identification of sellers. It has a great deal of that in the amendment. All this seems eminently sensible, and the Government have certainly gone some way to meet its demands. The outstanding issue is the unlicensed scrap dealer in unlicensed premises and, of course, the metal thieves themselves.

On the review of the offence of buying scrap metal for cash, five years is a long time to wait before it takes place. It should be done after a shorter period of, say, three years, which I am sure would provide ample data.