John Bercow
Main Page: John Bercow (Speaker - Buckingham)Department Debates - View all John Bercow's debates with the Attorney General
(9 years, 8 months ago)
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Mr Speaker
Order. I am saving up the hon. Member for Wellingborough (Mr Bone); it would be a pity to waste him at this early stage of our proceedings. We will come to him for his point of order, he can be assured of that. Before that, however, I have the following to say.
As the Government have not moved the programme motion, proceedings will be taken in the customary order on consideration: Government new clauses first, then other new clauses, and then amendments in the order they occur in the Bill. We will start as originally envisaged, with the group on child exploitation and so on. We will then take the group on other issues, and then there is, for consideration, the group on abortion. The selection list has been reissued, and the amendment paper has been reissued with the revised order. Proceedings on Report may continue until 9 pm, and Third Reading until 10 pm, under the earlier programme motion.
That is what I have got to say for now, but let us hear the point of order from Mr David Burrowes first.
Mr Burrowes
On a point of order, Mr Speaker. As the programme motion is not being moved, of which there was good notice, new clauses 1 and clause 25, which deal with the important issue of gender-selective abortion, have effectively been shunted to the end of proceedings. I understand fully, and the House understands fully, the importance of addressing child exploitation and protection, and how they are integral to this very important Bill. That needs proper debate and scrutiny. However, gender-selective abortion is also a matter of public interest. Concerns have been raised across the country, not least by the more than 100 Members of Parliament who have put their name to new clause 1. There is a concern that, unless there is great restraint from parliamentarians in the debate, we may not even get to the point of being able to move those new clauses.
Mr Speaker, you have championed the role of the Back Bencher. New clause 1 was tabled in the scintilla of time available between Committee and Report, and now we run the risk of not getting to this business before the end of our consideration. With respect, I wish to suggest a way out and to ask for your guidance, Mr Speaker. According to the selection paper, after we have considered child exploitation and protection, we will move on to “other issues”, including investigative powers, the publication of names, firearms offences, new psychoactive substances and money laundering measures. Could you also include under “other issues” the important other issue of gender-selective abortion? Otherwise, we will be left to rely on your customary guidance and urging of restraint across the House to ensure we get to the matter.
In conclusion, we are all concerned about the esteem in which Parliament is held. I put Parliament on notice that if we do not get to the issue of gender-selective abortion, the public will hold us in disrepute, and it will be a grave day for Parliament.
Mr Speaker
We shall come to the hon. Gentleman shortly—I have been saving him up, and I hope he is not going to disappoint me. I call Helen Goodman.
Helen Goodman
Mr Speaker, do you agree that had the House agreed with the Procedure Committee report on this problem of Report, this problem would not have arisen this afternoon?
Mr Speaker
That might well be so. I do not have the details of that report with me, but I think it only courteous and perhaps charitable to observe that the hon. Lady was for a period a distinguished ornament of that Committee, and it might well be that it was her own intellectual stimulation that led to the report in question. She is too modest and self-effacing to claim the credit directly, but she might appreciate my proffering it in her direction instead.
I will come back to Mr Burrowes’ point of order, but not before I have heard from Mr Peter Bone.
Mr Speaker
I am grateful to the hon. Gentleman for the self-denying ordinance that he has exercised. I say two things to the hon. Member for Enfield, Southgate (Mr Burrowes). First, I had understood that he was going to ask me whether it would be in order, in the absence of a Minister moving the programme motion, for him to move it, and I had intended to say that no it would not be in order for him to do so, because he is not a Minister and had not signed the motion. However, as he did not raise the point, I will not make the point that I would have made if he had.
Secondly, the hon. Gentleman inquires into the possibility of eliding—if I can put it that way—consideration of the abortion new clauses into the “other issues” group. He has raised an extremely important point, but there is merit first in seeing what progress we make on the first group. I shall reflect on his point, which I take extremely seriously, over the next hour or so and then advise the House of my conclusion. I make him no promise, but I shall consider his suggestion very seriously. I hope that that is helpful.
New Clause 8
Child sexual exploitation
‘(1) The Sexual Offences Act 2003 is amended as set out in subsections (2) to (6).
(2) For the heading before section 47 substitute “Sexual exploitation of children”.
(3) In section 48 (headed “Causing or inciting child prostitution or pornography”)—
(a) in the heading, for “child prostitution or pornography” substitute “sexual exploitation of a child”;
(b) in subsection (1)(a), for “to become a prostitute, or to be involved in pornography,” substitute “to be sexually exploited”.
(4) In section 49 (headed “Controlling a child prostitute or a child involved in pornography”)—
(a) in the heading, for “prostitute or a child involved in pornography” substitute “in relation to sexual exploitation”;
(b) in subsection (1)(a), for “prostitution or involvement in pornography” substitute “sexual exploitation”.
(5) In section 50 (headed “Arranging or facilitating child prostitution or pornography”)—
(a) in the heading, for “child prostitution or pornography” substitute “sexual exploitation of a child”;
(b) in subsection (1)(a), for “prostitution or involvement in pornography” substitute “sexual exploitation”.
(6) In section 51 (interpretation of sections 48 to 50)—
(a) omit subsection (1);
(b) for subsection (2) substitute—
“(2) For the purposes of sections 48 to 50, a person (B) is sexually exploited if—
(a) on at least one occasion and whether or not compelled to do so, B offers or provides sexual services to another person in return for payment or a promise of payment to B or a third person, or
(b) an indecent image of B is recorded;
and “sexual exploitation” is to be interpreted accordingly.”
(7) In section 1 of the Street Offences Act 1959 (loitering or soliciting for purposes of prostitution), in subsection (1), after “person” insert “aged 18 or over”.” —(Mr Buckland.)
This New Clause replaces the references to child prostitution and pornography in sections 48 to 51 of the Sexual Offences Act 2003 with references to the sexual exploitation of children (without altering the substance of the relevant offences), and also restricts to adults the offence of loitering or soliciting for the purposes of prostitution.
Brought up, and read the First time.
The Solicitor-General (Mr Robert Buckland)
I beg to move, That the clause be read a Second time.
Mr Speaker
With this it will be convenient to discuss the following:
Amendment (a) to new clause 8, leave out
“offers or provides sexual services to”
and insert
“prepares to engage in, or engages in, sexual activity with”.
Government new clause 9—Duty to notify police of female genital mutilation.
Government new clause 10—Guidance about female genital mutilation.
New clause 2—Official Secrets Act 1989 (additional defence)—
‘(1) The Official Secrets Act 1989 is amended as follows—
(2) After section 8, insert—
“(8A) It is a defence for a person charged with an offence under any provision of this Act to prove that he knew, or had reasonable cause to believe, that the information, document or article disclosed was—
(a) germane to an official investigation of, or inquiry into, historic child abuse, and
(b) provided only to an officer of such an investigation or inquiry.”’
New clause 3—Child sexual exploitation—
‘(1) In section 1(1) of the Street Offences Act 1059 (Loitering or soliciting for purposes of prostitution), after “female)”, insert “, aged 18 or over,”.
(2) The Sexual Offences Act 2003 is amended as follows.
(3) In section 48 (Causing or inciting child prostitution or pornography)—
(a) in the title of the section, for “prostitution” substitute “sexual exploitation”; and
(b) in subsection (1)(a), for “become a prostitute” substitute “be sexually exploited”.
(4) In section 49 (Controlling a child prostitute or a child involved in pornography)—
(a) in the title of the section, for “child prostitute” substitute “sexually exploited child”; and
(b) in subsection (1)(a), for “prostitution” substitute “sexual exploitation”.
(5) In section 50 (Arranging or facilitating child prostitution or pornography)—
(a) in the title of the section, for “child prostitution or pornography” substitute “the sexual exploitation of a child or sexual images of children”; and
(b) in subsection (1)(a), for “prostitution” substitute “sexual exploitation”.
(6) In section 51 (Sections 48 to 50: interpretation), in subsection (2), for “prostitute” substitute “sexually exploited child”; for “prostitution” substitute “sexual exploitation”.
(7) References in any Act, Regulation, Order or other legislative instrument to the sections and titles mentioned in this section shall be interpreted as referring to the sections and titles as amended by this section.”
New clause 11—Child protection: 16 and 17 year olds living with their families—
‘(1) The Children’s Act 1933 is amended as follows.
(2) After section 1 insert—
“1A Cruelty to a person aged sixteen or seventeen
(1) If any person A, who has attained the age of eighteen years and is personally connected to a child B aged sixteen or seventeen, wilfully assaults, ill-treats (whether physically or psychologically), neglects, abandons, or exposes him, or causes or procures for him to be assaulted, ill-treated (whether physically or psychologically), neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health (including injury to or loss of sight, or hearing, or limb, or organ of the body and whether the injury is of physical or psychological nature), that person shall be guilty of an offence, and shall be liable—
(a) on conviction or indictment, to a fine or alternatively, or in addition thereto, to imprisonment for any term not exceeding 10 years;
(b) on summary conviction, to a fine not exceeding £400 pounds, or alternatively, or in addition thereto, to imprisonment not exceeding six months.
(2) For the purposes of this section—
(a) A and B are considered to be personally connected if at the time of the offence they live together, and
(i) A has parental responsibility for B
(ii) A is a relative of B
(iii) A is or has been married or civil partner to B’s parent.
(b) A shall be deemed to have neglected B in a manner likely to cause injury to his health if he has failed to provide adequate food, clothing, medical aid or lodging for him or if, having been unable otherwise to provide such food, clothing, medical aid or lodging, he has failed to take steps to procure it to be provided to B.
(3) A person may be convicted of an offence under this section—
(a) notwithstanding that actual suffering or injury to health, or the likelihood of actual suffering or injury to health, was obviated by the action of another person;
(b) notwithstanding the death of B.
(4) In subsection (2)—
“parental responsibility” has the same meaning as in the Children Act 1989;
“relative” has the meaning given by section 63(1) of the Family Law Act 1996”.
New clause 15—Encouragement of Female Genital Mutilation Warning Notices and Orders (EWNs and EWOs)—
In the Female Genital Mutilation Act 2003, after section 2A (offence of Encouragement of Female Genital Mutilation) insert—
“2B Power to issue an Encouragement of Female Genital Mutilation warning notice
(1) A member of a police force not below the rank of superintendent (“the authorising officer”) may issue an Encouragement of Female Genital Mutilation warning notice (an “EWN”) under this section.
(2) An EWN may be issued to a person (“A”) who is aged 18 or over if the authorising officer has reasonable grounds for believing that A has been encouraging the genital mutilation of women and girls as defined in section 1.
(3) Before issuing an EWN, the authorising officer must, in particular, consider any representations made by A as to the issuing of the EWN.
(4) The authorising officer must take reasonable steps to obtain the representations mentioned in subsection (3).
(5) An EWN must prohibit A from encouraging the genital mutilation of women and girls.
2C Contents and service of an Encouragement of Female Genital Mutilation warning notice
‘(1) An EWN must state—
(a) the grounds on which it has been issued;
(b) that a constable may arrest A without warrant if the constable has reasonable grounds for believing that A is in breach of the EWN;
(c) that an application for an Encouragement of Female Genital Mutilation warning order (an “EWO”) under section (application for an EWO) shall be heard within 48 hours of the time of service of the EWN and notice time and place of the hearing will be given to A, and shall state that the EWN continues in effect until that application has been determined.
(2) An EWN must be in writing and must be served on A personally by a constable.
(3) On serving A with an EWN, the constable must ask A for an address for the purposes of being given notice of the hearing of the application for the Encouragement of Female Genital Mutilation warning order.
2D Breach of an Encouragement of Female Genital Mutilation warning notice
‘(1) A person arrested by virtue of section (contents and service of an EWN) for a breach of an EWN shall be held in custody and brought before the magistrates’ court which will hear the application for the EWO under (application for an EWO)—
(a) before the end of the period of 24 hours beginning with the time of the arrest; or
(b) if earlier, at the hearing of that application.
(2) If the person is brought before the court by virtue of subsection (1)(a), the court may remand the person.
(3) If the court adjourns the hearing of the application by virtue of subsection 6(8), the court may remand the person.
(4) In calculating when the period of 24 hours mentioned in subsection (1)(a) ends, Christmas Day, Good Friday, any Sunday and any day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971 are to be disregarded.
2E Application for an Encouragement of Female Genital Mutilation warning order
‘(1) If an EWN has been issued, a constable must apply for an Encouragement of Female Genital mutilation warning order (an “EWO”).
(2) The application must be made by complaint to a magistrates’ court.
(3) The application must be heard by the magistrates’ court no later than 48 hours after the EWN was served pursuant to section (contents and service of an EWN).
(4) In calculating when the period of 48 hours mentioned in subsection (3) ends, Christmas Day, Good Friday, any Sunday and any day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971 are to be disregarded.
(5) Notice of the time and place of the hearing of the application must be given to A.
(6) The notice is deemed given if it has been left at the address given by A under section 4(3).
(7) If the notice has not been given because no address was given by A under section 4(3), the court may hear the application for the EWO if the court is satisfied that the constable applying for the EWO has made reasonable efforts to give A the notice.
(8) The magistrates’ court may adjourn the hearing of the application.
(9) If the court adjourns the hearing, the EWN continues in effect until the application has been determined.
(10) On the hearing of an application for an EWO, section 97 of the Magistrates’ Court Act 1980 (summons to witness and warrant for his arrest) does not apply in relation to a person for whose protection the EWO would be made, except where the person has given oral or written evidence at the hearing.
2F Conditions for and contents of an Encouragement of Female Genital Mutilation warning order (EWO)
‘(1) The court may make an EWO if two conditions are met.
(2) The first condition is that the court is satisfied on the balance of probabilities that the conditions set out in section 3(2) are met.
(3) The second condition is that the court is satisfied that making the EWO is necessary to protect women and girls from harm as a result of the encouragement of FGM by A.
(4) An EWO must state that a constable may arrest A without warrant if the constable has reasonable grounds for believing that A is in breach of the EWO.
(5) An EWO may be in force for—
(a) no fewer than 14 days beginning with the day on which it is made; and
(b) up to a maximum of seven years from that date.
(6) An EWO must state the period for which it is to be in force.
2G Breach of an Encouragement of Female Genital Mutilation warning order
‘(1) A person arrested by virtue of section (conditions for and contents of an EWO) for a breach of an EWO must be held in custody and brought before a magistrates’ court within the period of 24 hours beginning with the time of the arrest.
(2) If the matter is not disposed of when the person is brought before the court, the court may remand the person.
(3) In calculating when the period of 24 hours mentioned in subsection (1) ends, Christmas Day, Good Friday, any Sunday and any day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971 are to be disregarded.
2H Further provision about remand
‘(1) This section applies for the purposes of the remand of a person by a magistrates’ court under section (Breach of an EWN) or (Breach of an EWO).
(2) In the application of section 128(6) of the Magistrates’ Court Act 1980 for those purposes, the reference to the “other party” is to be read—
(a) in the case of a remand prior to the hearing of an application for an EWO, as a reference to the authorising officer; and
(b) in any other case, as a reference to the constable who applied for the EWO.
(3) If the court has reason to suspect that a medical report will be required, the power to remand a person may be exercised for the purpose of enabling a medical examination to take place and a report to be made.
(4) If the person is remanded in custody for that purpose, the adjournment may not be for more than three weeks at a time.
(5) If the person is remanded on bail for that purpose, the adjournment may not be for more than four weeks at a time.
(6) If the court has reason to suspect that the person is suffering from a mental disorder within the meaning of the Mental Health Act 1983, the court has the same power to make an order under section 35 of that Act (remand to hospital for medical report) as it has under that section in the case of an accused person (within the meaning of that section).
(7) The court may, when remanding the person on bail, require the person to comply before release on bail or later, with such requirements as appear to the court to be necessary to secure that the person does not interfere with witnesses or otherwise obstruct the course of justice.
2I Guidance
‘(1) The Secretary of State may issue guidance relating to the exercise by a constable of functions under section (Power to issue an EWN).
(2) A constable must have regard to any guidance issued under subsection (1) when exercising a function to which the guidance relates.
(3) Before issuing guidance under this section, the Secretary of State must consult—
(a) the Association of Chief Police Officers;
(b) the National Crime Agency; and
(c) such other persons as the Secretary of State thinks fit.”
New clause 16—Offence of encouragement of female genital mutilation—
‘(1) The Female Genital Mutilation Act 2003 is amended as follows:
(2) After section 2 (offence of assisting a girl to mutilate her own genitalia) insert—
“(2A) Offence of encouragement of female genital mutilation—
(a) a person is guilty of an offence of encouragement of female genital mutilation if he makes a statement that is likely to be understood by some or all of the members of the public to whom it is published as a direct or indirect encouragement or other inducement to them to mutilate the genitalia of a girl;
(b) A person commits an offence if—
(i) he publishes a statement to which this section applies or causes another to publish such a statement; and
(ii) at the time he publishes it or causes it to be published, he—
(a) intends members of the public to be directly or indirectly encouraged or otherwise induced by the statement to mutilate the genitalia of a girl; or
(b) is reckless as to whether members of the public will be directly or indirectly encouraged or otherwise induced by the statement to mutilate the genitalia of a girl.””
New clause 17—Mandatory reporting of suspected child abuse—
‘(1) A person commits an offence if—
(a) he is involved in the provision of regulated activity as defined by section 5 of the Safeguarding Vulnerable Groups Act 2006 for which he is paid;
(b) he is a provider of regulated activity as defined by section 6 of the Safeguarding Vulnerable Groups Act 2006;
(c) he becomes aware that a child has been harmed in connection to the regulated activity; and
(d) he does not inform a relevant authority of this harm.
(2) A person does not commit an offence under this section if—
(a) he can demonstrate he acted in the best interests of the child, or
(b) he complied with relevant professional guidelines or institutional guidelines for the reporting of abuse as he believed them to be, complying with institutional guidelines for the reporting of abuse can include informing another individual with relevant safeguarding responsibilities.
(3) In this section “harm” means conduct which amounts to one of the following offences—
(a) cruelty to and neglect of children;
(b) cruelty to children/young persons;
(c) child abduction;
(d) rape of a female child under 16;
(e) rape of a female child under 13;
(f) rape of a male child under 16;
(g) rape of a male child under 13;
(h) sexual assault on a male child under 13;
(i) sexual assault on a female child under 13;
(j) sexual activity involving a child under 13;
(k) sexual activity involving a child under 16;
(l) sexual exploitation of children;
(m) abuse of position of trust of a sexual nature; and
(n) sexual grooming.
(4) The Secretary of State may, by way of regulation, make guidance as to the interpretation of subsection (2) or amend subsection (3).
(5) Any regulations made under subsection (4) must be subject to an affirmative procedure of both Houses of Parliament.
(6) In this section “relevant authority” means—
(a) the local authority with safeguarding authorities;
(b) the local police force; and
(c) the Disclosure and Barring Service.
(7) A person guilty of an offence under this Part of this Act shall be liable—
(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both such imprisonment and fine;
(b) on conviction on indictment, to imprisonment for a term not exceeding three years.”
New clause 19—Child abduction warning notice—
In the Child Abduction Act 1984, after section 2 (offence of abduction of child by other person) insert—
“2A Power to issue a child abduction warning notice
(1) A member of a police force not below the rank of superintendent (“the authorising officer”) may issue a child abduction warning notice (“a CAWN”) under this section.
(2) A CAWN may be issued to a person (“A”) aged 18 years or over if the authorising officer has reasonable grounds for believing that—
(a) A has without lawful authority or reasonable excuse been found in the company of a child (“C”); and
(b) C is reported missing and is found on two or more occasions to be in the company of A; or
(c) there is reason to suspect that C‘s behaviour is, by reason of association with the defendant, giving significant cause for concern.
(3) Before issuing a CAWN, the authorising officer must, in particular, take reasonable steps to gather and consider—
(a) representations made by the person with lawful authority for C; and
(b) representations made by A as to the issuing of the CAWN.
(4) A CAWN must prohibit A from being in the company of C.
2B Contents and service of a child abduction warning notice
‘(1) A CAWN must state—
(a) the grounds on which it has been issued;
(b) that a constable may arrest A without warrant if the constable has reasonable grounds for believing that A is in breach of the CAWN;
(c) that an application for a child abduction warning order under section 2D will be heard within 48 hours of the time of service of the CAWN and a notice of the hearing will be given to A;
(d) that the CAWN continues in effect until that application has been determined; and
(e) the provisions that a magistrates’ court may include in a child abduction warning order (CAWO) under sections 2D and 2E.
(2) A CAWN must be in writing and must be served on A personally by a constable.
(3) On serving A with a CAWN, the constable must ask A for an address for the purposes of being given the notice of the hearing of the application for the child abduction warning order.
2C Breach of a child abduction warning notice
‘(1) A person arrested by virtue of section 2B(1)(b) for a breach of a CAWN must be held in custody and brought before the magistrates’ court which will hear the application for a child abduction warning order (CAWO) under sections 2D and 2E—
(a) before the end of the period of 24 hours beginning with the time of the arrest; or
(b) if earlier, at the hearing of that application.
(2) If the person is brought before the court by virtue of subsection (1)(a), the court may remand the person.
(3) If the court adjourns the hearing of the application by virtue of subsection 2D(8), the court may remand the person.
(4) In calculating when the period of 24 hours mentioned in subsection (1)(a) of this section ends, Christmas Day, Good Friday, any Sunday and any day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971 are to be disregarded.
2D Application for a child abduction warning order
‘(1) If a CAWN has been issued, a constable must apply for a child abduction warning order (“a CAWO”).
(2) The application must be made by complaint to a magistrates’ court.
(3) The application must be heard by the magistrates’ court no later than 48 hours after the CAWN was served pursuant to section 2B(2).
(4) In calculating when the period of 48 hours mentioned in subsection (3) of this section ends, Christmas Day, Good Friday, any Sunday and any day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971 are to be disregarded.
(5) A notice of the hearing of the application must be given to A.
(6) The notice is deemed given if it has been left at the address given by A under section 2B(3).
(7) But if the notice has not been given because no address was given by A under section 2B(3), the court may hear the application for the CAWO if the court is satisfied that the constable applying for the CAWO has made reasonable efforts to give A the notice.
(8) The magistrates’ court may adjourn the hearing of the application.
(9) If the court adjourns the hearing, the CAWN continues in effect until the application has been determined.
(10) On the hearing of an application for a CAWO, section 97 of the Magistrates’ Court Act 1980 (summons to witness and warrant for his arrest) does not apply in relation to a person for whose protection the CAWO would be made, except where the person has given oral or written evidence at the hearing.
2E Conditions for and contents of a child abduction warning order
‘(1) The court may make a CAWO if two conditions are met.
(2) The first condition is that the court is satisfied on the balance of probabilities that one or more of the criteria in section 2A(2)(a)-(c) are satisfied.
(3) The second condition is that the court thinks that making the CAWO is necessary to protect C from harm as a result of association with A.
(4) A CAWO must state that a constable may arrest A without warrant if the constable has reasonable grounds for believing A is in breach of the CAWO.
(5) A CAWO may be in force for—
(a) no fewer than 14 days beginning with the day on which it is made; and
(b) until the date of the 16th birthday of C.
(6) A CAWO must state the period for which it is to be in force.
2F Breach of a child abduction warning order
‘(1) A person arrested by virtue of section 2E(4) for a breach of a CAWO must be held in custody and brought before a magistrates’ court within the period of 24 hours beginning with the time of the arrest.
(2) If the matter is not disposed of when the person is brought before the court, the court may remand the person.
(3) In calculating when the period of 24 hours mentioned in subsection (1) ends, Christmas Day, Good Friday, any Sunday and any day which is a bank holiday in England and Wales under the Banking and Financial. Dealings Act 1971 are to be disregarded.
2G Further provision about remand
‘(1) This section applies for the purposes of the remand of a person by a magistrates’ court under section 2C(2) or (3) or 2F(2).
(2) In the application of section 128(6) of the Magistrates’ Court Act 1980 for those purposes, the reference to the “other party” is to be read—
(a) in the case of a remand prior to the hearing of an application for a CAWO, as a reference to the authorising officer; and
(b) in any other case, as a reference to the constable who applied for the CAWO.
(3) If the court has reason to suspect that a medical report will be required, the power to remand a person may be exercised for the purpose of enabling a medical examination to take place and a report to be made.
(4) If the person is remanded in custody for that purpose, the adjournment may not be for more than three weeks at a time.
(5) If the person is remanded on bail for that purpose, the adjournment may not be for more than four weeks at a time.
(6) If the court has reason to suspect that the person is suffering from a mental disorder within the meaning of the Mental Health Act 1983, the court has the same power to make an order under section 35 of that Act (remand to hospital for medical report) as it has under that section in the case of an accused person (within the meaning of that section).
(7) The court may, when remanding the person on bail, require the person to comply before release on bail or later, with such requirements as appear to the court to be necessary to secure that the person does not interfere with witnesses or otherwise obstruct the course of justice.
2H Guidance
‘(1) The Secretary of State may issue guidance relating to the exercise by a constable of functions under sections 2A to 2F.
(2) The guidance must set out the behaviours associated with “giving significant cause for concern”, including, in particular, behaviours associated with giving cause for concern of sexual exploitation or grooming.
(3) A constable must have regard to any guidance issued under subsection (1) when exercising a function to which the guidance relates.
(4) Before issuing guidance under this section, the Secretary of State must consult—
(a) the Association of Chief Police Officers;
(b) the National Crime Agency; and
(c) such other persons as the Secretary of State thinks fit.””
This amendment establishes child abduction warning notices (CAWNs) on a statutory basis, addressing concerns raised in the House of Lords on the issue, by introducing a two-stage process providing judicial oversight, without compromising the ability of the police to issue a CAWN without delay. The proposed process is similar to that in place for Domestic Violence Prevention Notices/Domestic Violence Prevention Orders (DVPN/DVPO).
New clause 22—Offence of child exploitation—
‘(1) A person commits an offence if they exploit a child.
(2) A child may be in a situation of exploitation whether or not—
(a) escape from the situation is practically possible for the child; or
(b) the child has attempted to escape from the situation.
(3) The consent or apparent consent of the child to the exploitation is irrelevant.
(4) “Child Exploitation” includes but is not limited to, the exploitation of the prostitute of others or other forms of sexual exploitation; the exploitation of labour or services including begging or practices similar to slavery, servitude or forced or compulsory labour; the exploitation of or for criminal activities including benefit fraud; the removal of organs; forced or servile marriage or enforced surrogacy; exploitation for unlawful adoption; and exploitation by enforced drugs smuggling, manufacture, production or distribution.
(5) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years.”
New clause 26—Automatic Special Measures: controlling or coercive behaviour cases—
The Youth Justice and Criminal Evidence Act 1999 is amended as follows—
In section 17, after “offence” insert “an offence of controlling or coercive behaviour in an intimate or family setting contrary to section 73 of the Serious Crime Act 2015.””
New clause 27—Offence of abduction of child by other person—
‘(1) In section 2 of the Child Abduction Act 1984, after subsection (1), insert—
“(1A) Subject to subsection (3)(a)-(c), a person, other than one mentioned in subsection (2), commits an offence if, without lawful authority or reasonable excuse, he takes or detains a child between the ages of sixteen and eighteen—
(a) so as to remove him from the lawful control of any person having lawful control of the child; or
(b) so as to keep him out of the lawful control of any person entitled to lawful control of the child.”
(2) In section 2(3) of the Child Abduction Act 1984, for paragraph (b) substitute—
“(b) that, at the time of the alleged offence under subsection 2(1), he believed that the child had attained the age of sixteen,
(bA) that, at the time of the alleged offence under subsection 2(2), he believed the child had attained the age of eighteen,””
Amendment 20, in clause 72, page 63, line 27, leave out “the” and insert “a risk of”.
Amendment 21, in clause 73, page 78, line 22, leave out
“he or she was acting”
and insert
“their behaviour was necessary in order to act, and”.
Amendment 22, page 78, line 23, in clause 73, at end insert—
“(aa) a reasonable person in possession of the same information would think that A’s behaviour was necessary in order to act in B’s best interests.”
Government amendments 2 to 10.
Amendment 33, in schedule 4, page 117, line 15, at end insert—
“59A In Schedule 2 of that Act (sexual offences to which provisions about extra territoriality application apply) in paragraph 1(d), insert—
“(iii) section 68 (possession of paedophile manual) of the Serious Crime Act 2015.””
Provisions in the Sexual Offences Act 2003 enable certain child abuse offences committed outside the UK to be prosecuted in England and Wales in some circumstances. This amendment enables these extra-territorial provisions to apply to the new offence of possession of any item that contains advice or guidance about abusing children sexually contained in Clause 68 of this Bill.
Government amendments 11 to 19.
The Solicitor-General
I am conscious that a number of right hon. and hon. Members wish to speak, so I will keep my opening remarks as brief as possible. I am doubly conscious of the need to ensure that, as has been mentioned, we have meaningful debates on other groups of amendments.
New clause 8 responds to the compelling case made in Committee by the hon. Member for Stockport (Ann Coffey), to whom I am grateful, that we should remove from the statute book references to the phrase “child prostitution” and limit the scope of the offence of loitering or soliciting for the purposes of prostitution, so that it applies only to adults. As I made clear in Committee, children who are sexually exploited, whether for financial gain or other reasons, should not be referred to as prostitutes. They should be regarded as victims.
New clause 8 will have substantially the same effect as the hon. Lady’s new clause 3, and in one important respect it goes even further. As well as replacing the anachronistic references to “child prostitute” and “child prostitution” in the Sexual Offences Act 2003, the new clause will remove references to “child pornography”, to which similar considerations apply.
The Solicitor-General
I understand that the Government are still considering that issue. The definition of “vulnerable” may, of course, be something of a vexed question. It has tended to apply to adults with learning difficulties, but I understand my hon. and learned Friend to be referring to it in the wider context in which people are brainwashed or duped by cults and other organisations. It is not a straightforward issue, as I know he understands, but the Government are giving consideration to it, so I am grateful to him for raising it.
With those remarks, I will draw my speech to a close.
Mr Speaker
Well, I will not say the occurrence was unprecedented, but a lawyer finishing his speech earlier than expected is certainly a rarity.
Diana Johnson (Kingston upon Hull North) (Lab)
I am very well aware of the pressure in respect of today’s business, and I know that many right hon. and hon. Members have signed amendments that they want to debate later. I will of course attempt to keep my remarks as succinct as possible, but we are dealing with a very wide-ranging group of amendments on child protection issues, ranging from FGM to mandatory reporting to a new offence of child exploitation, so I do not think I will be able to match the Minister’s brevity in setting out the Government amendments. I will do my best, but it is important to recognise that this is an important grouping that needs to be fully debated.
I shall deal first with Government new clause 8 and Labour amendment (a), new clause 3 tabled by my hon. Friend the Member for Stockport (Ann Coffey), and new clause 22, dealing with a new offence of child exploitation and tabled by the Labour Front Bench. I certainly welcome what the Government are trying to do with new clause 8, and I pay tribute to my hon. Friend for her work on this issue which has led to it going high up the agenda. Her report on child sexual exploitation highlighted the particular issue that children and young adults were being ignored or seen as the problem or even the instigator, when the truth was that they were being abused. One of the recommendations of the report was that our legislation needed to reflect the vulnerabilities of children and the fact that children cannot consent to being abused. A proposed step towards achieving this was to remove the terms “child prostitute” or “child pornography” from legislation to demonstrate that any children taking part in these sexual acts were not instigators and consenting participants, but were being abused. I am very pleased that my hon. Friend is in her place, and she has already paid tribute to the Minister for tabling the new clause. It is very helpful, but I want to highlight some issues relating to it, which is why I have tabled amendment (a).
In particular, I have concerns about the definition of child sexual exploitation, which is defined by new clause 8 as a situation where a child
“offers or provides sexual services”
to an adult. Let us be clear: this is about abused children. It is about a child being abused. They are not providing sexual services to adults; they are being abused and exploited, and our legislation should reflect the real nature of that relationship. Indeed, the purpose of the new clause is to ensure that the legislation reflects the fact that those subject to exploitation are victims, not instigators. I do not think moving from the term “child prostitute” to children as providers of sexual services is correct, and amendment (a) would correct that by moving to a definition of child sexual exploitation where a child engages in sexual activity with an adult. We would move away from the concept of the child as the provider or instigator of sexual activity. The term “sexual activity” is used extensively in the Sexual Offences Act 2003, so adopting amendment (a) would mean we have consistent and well-established terminology which will make legislation easier to apply. I hope the Minister will reflect on that and consider this amendment.
I would also like to raise with the Minister the wider consequences of new clause 8 in improving our understanding of child sexual exploitation and our response to it.
We will now have an offence of child sexual exploitation that will cover situations of child exploitation involving payment or photography, but those are just some of the examples of exploitation. I also have real concerns about the ancillary offences under sections 48 to 50 of the Sexual Offences Act 2003. We will now have offences of arranging or facilitating sexual exploitation of a child, of controlling a child in relation to sexual exploitation and of causing or inciting sexual exploitation of a child, but none of those offences covers all child sexual exploitation. They provide only for child sexual exploitation involving payment or photography.
I want to put to the Minister the example of a scenario in which control is exerted through threats, intimidation or coercion, or in which a child is plied with drugs or alcohol. We should recognise that those are all forms of child sexual exploitation. However, the Government’s approach is to have an offence of child sexual exploitation involving payment or photography. Other forms of exploitation not covered by that specific offence would therefore need to be prosecuted under section 14 of the Sexual Offences Act for the general offence of arranging or facilitating commission of a child sex offence. That is a complicated offence to establish, however, because it relies on proving the commission of another sexual offence under the terms of the Act. In 2012, the latest year for which I have managed to find figures, there were just 32 convictions for that particular offence, and there have been only 130 convictions in five years. There is therefore a problem with the legislation: it is not working as effectively as we would all like it to.
That is why the Opposition have tabled new clause 22, which would create a specific offence of child exploitation for the first time. There has been a lot of comment about such an offence being put on the statute book. I have heard people saying that it could criminalise a parent for getting their teenage son or daughter to do the washing up, for example, because that could count as child exploitation. However, the country’s leading expert in this area, Peter Carter QC, says that to use that kind of argument is to
“miss the significance of the word ‘exploitation’”.
The exploitation of children is, in and of itself, a serious matter that should be recognised in legislation. New clause 22 covers all forms of exploitation, from children being forced into begging or into working on cannabis farms to young girls being controlled by men and forced to submit to their sexual advances and abuse. It recognises that exploitation involves a wide spectrum, and the sentencing guidelines would reflect the fact that some forms of exploitation are more serious than others. Crucially, it would recognise that the exploitation of children is an offence in and of itself.
The new clause is about asserting the right of the child to a life free from exploitation. It is about saying that we will not accept the exploitation of children, just as we will not accept their abuse or their neglect. It would address some of the many problems that are preventing prosecutions under the Sexual Offences Act by moving from a situation in which we look at the commission of individual offences to one in which we look at people who control, manipulate and coerce children for their own ends. It would allow the police to step in where they could see an adult using controlling and coercive behaviour towards a vulnerable child, forcing them into situations involving sexual abuse, drugs, crime or forced labour.
Many prosecutions focus on particular criminal incidents, such as rape or sexual assault, but for victims of sexual exploitation, such incidents might be difficult to separate from the multiple assaults that they have endured. Such prosecutions might not give a true representation of the abuse that had been suffered. One young person has said:
“I was pressurised to go to court. There needs to be a sexual exploitation law. My charge was for rape, this was the wrong charge. So many times it happened.”
Cases often do not get prosecuted because the young person is considered an unreliable witness. That could be because she was returning to perpetrators and found it difficult to break the contact with them. So practitioners say that the effects of exploitation as a result of duration of relationships, coercion and controlling behaviour are like the Stockholm syndrome, with which we are all familiar, but that is not being recognised in the current drafting of offences, because they all focus on separate counts of rape or sexual assault.
Separate exploitation offences with a focus on children will also enable the prosecution of cases where current legislation does not offer equal protection to all children under the age of 18. For example, the Sexual Offences Act 2003 establishes the age of consent as 16, and children aged 16 and 17 are afforded the additional protection of the Act only if the person who commits the sexual offence is a person in a position of trust in relation to them. Yet those in that age group are likely to be victims of sexual exploitation. The Office of the Children’s Commissioner for England report on sexual exploitation by groups and gangs estimated that out of 16,500 children and young people who are experiencing or are at risk of child sexual exploitation 28% were aged 16 and 16% were aged 17.
Mr Speaker
Order. There is much interest in these important matters and some sensitivity about subsequent groupings. Therefore, if colleagues while of course expounding with characteristic eloquence can do so with exemplary brevity, that will be received heartily in the House.
Nicola Blackwood (Oxford West and Abingdon) (Con)
There is much to debate in this group of amendments and I particularly welcome new clauses 8 and 9, but for the sake of brevity I will stick to my new clause 27 and the associated clauses, which seek to resolve the much debated problem of child abduction warning notices applying unequally to children in care and those out of care.
New clause 27 is a probing amendment, so I shall not press it to a vote, but I would like to emphasise my disappointment that the Government have not found a way to resolve the problem. There has been plenty of time to do so and the issue has been debated extensively at all stages. It is a relatively contained problem. The fact that police can only use CAWNs to protect victims up to the age of 16 if they are living at home, and not those up to the age of 18 if they are in care, is a real-world problem created by the fact that these administrative orders are reliant on two separate pieces of legislation. It should be perfectly possible to resolve the situation if we put our minds to it.
A number of solutions have been proposed to the Government during the Bill’s progress, including putting CAWNs on a statutory basis, which would also create a penalty on breach, as suggested by the hon. Member for Rotherham (Sarah Champion); amending the offence of child abduction so that it applies to children up to the age of 18; and my new clause 27, which would create a secondary offence, under the Child Abduction Act 1984, of abducting a child aged 16 to 18. All of those proposals have been rejected by the Government because they say that they are unnecessary, that they would create additional bureaucracy and that they would risk creating unintended consequences for prosecutors in relation to consent.
The first point has no merit. The reforms have been requested directly by serving police officers, social workers and parents who are battling child sexual exploitation on the front line and who have found that the inability to use CAWNs to protect children aged 16 to 18 living at home is a gap in their armoury as they wage an already incredibly challenging battle against abusers.
Ministers have said that the new risk of sexual harm orders will address that gap, but they will not. As the MP who led the campaign to reform the old civil prevention orders and replace them with the current orders under the Anti-social Behaviour, Crime and Policing Act 2014, I welcome them wholeheartedly, but for police to obtain a ROSHO they must prove the sexual element of risk to a criminal standard of evidence in court. As administrative orders, CAWNs do not require either that evidential threshold or the proving of the sexual element. Police officers and others have told me that that is precisely why CAWNs are so successful in disrupting child sexual exploitation where the sexual abuser may not be the individual who is transporting or controlling the victim and therefore sexual risk may be indirect.
It is unquestionably true that ROSHOs, gang injunctions and trafficking orders have significant roles to play in disrupting grooming, but, as statutory orders that require judicial oversight, none of those can replace the CAWN in the architecture of powers available to police for disrupting CSE. They simply do not have the immediacy or the simplicity I have described.
For that reason, I am not convinced that putting the orders on a statutory footing is the best solution. The Government have said that that would create additional bureaucracy, which is not the best turn of phrase, because it sounds like there would just be a bit more paperwork. That is not the concern that has been raised with me by senior police officers. If CAWNs were put on a statutory footing, they would become a civil order, like the ROSHO, which, rightly, has an evidentiary threshold and judicial oversight. That very process of having to apply through the courts and gather increased evidence risks creating an inappropriate situation not only of fewer CAWNs being sought, but of the CAWN losing its unique place in the policing toolbox as a quick response tool that can be applied as a deterrent and disruption device that is also valuable in establishing association and bad character in prosecution.
Although I understand that the value of introducing a statutory basis would be to bring in a penalty on breach, that aspect is already covered by the statutory civil prevention orders—from ROSHOs to trafficking orders—which all involve penalties on breach. Of course, most of those orders, in their current form, are new and I urge the Government and the College of Policing to develop guidance on how they should operate as a progressive and interrelated set of powers now available to police to deter, disrupt and prevent serious organised crime against children in particular. However, if filling in the gap in CAWNs is necessary but making CAWNs statutory is not the answer, then what is?
As we have heard, CAWNs for children living at home have their legislative basis in section 2(1) of the Child Abduction Act 1984. The Government object to changing the age limit for that offence of abduction from the legal age of consent of 16 to 18 on the grounds that it would risk the victims, even those under the age of 16, being challenged by defence barristers on questions of consent. I accept that we have fought too many battles to improve protections for vulnerable witnesses against aggressive cross-examination in court to want to do anything to weaken a prosecutor’s arm, especially on questions of consent, and that is why I tabled new clause 27, proposing a secondary offence, with a higher threshold, of abduction of 16 to 18-year-olds.
I do not believe that would compromise the integrity of the current child abduction offence for under 16-year-olds, but it would offer a legislative basis to close the current gap in CAWNs and give the police the power to intervene quickly and effectively to protect 16 to 18-year-olds who we know remain at high risk of child sexual exploitation where grooming gangs are operating, whether they happen to be living at home or not.
Sarah Champion (Rotherham) (Lab)
Thank you for removing the time limit, Mr Speaker, not only because the voices of victims and survivors do not get enough air time in this place, but because, as those who have spoken before me have shown, there is a lot of passion about this topic and an awful lot of commitment to it.
I welcome new clauses 8 and 3 and Government amendments 13 to 17, which aim to remove the term “child prostitution” from legislation. Victims and survivors I have met say that the term makes them feel incredibly dirty and as though they colluded in the crime in some way. However, the amendments remove the term from only three of the 16 relevant pieces of legislation. If I pass the list to the Solicitor-General, will the Government make a serious, long-term commitment to remove the term from each of those pieces of legislation? I would be very grateful for that.
I want principally to speak to new clause 19 and follow on from the contribution of the hon. Member for Oxford West and Abingdon (Nicola Blackwood), who spoke eloquently and has done most of the preparatory work. I have met the Solicitor-General, spoken at Committee stage and exchanged letters with him. He has expressed the view that, if child abduction warning notices were to become statutory, that would cause an unnecessary replication of sexual risk orders, which are being introduced by the Anti-social Behaviour, Crime and Policing Act 2014. However, given that the legislation has not yet been enacted and guidance not yet published, I cannot be entirely satisfied that SROs will close the gap that has been identified in child protection.
One concern is that the application of SROs to low-level grooming activities seems to depend on an officer taking a very wide interpretation of an
“act of a sexual nature”.
Unless the guidance is very specific and the training given to police very thorough, I am not convinced that officers will feel confident to use SROs on, for instance, a 20-year-old who is hanging around with a 14-year-old.
My cross-party inquiry with Barnardo’s last year found that police officers were clearly familiar with the use of child abduction warning notices, and everyone we interviewed asked that they be made statutory. My fear is that, rather than reducing bureaucracy, the Solicitor-General will create more by having another power, as opposed to strengthening the existing one.
Mrs Gillan
I want to continue my challenge to new clause 17, specifically on behalf of Mandate Now, which was set up by my constituent Tom Perry and seeks to introduce a new law making it mandatory for people working in regulated activities to report their suspicions to the local authority.
I am delighted that the Opposition support mandatory reporting, but I am disappointed with the flaws in their new clause. I believe that mandatory reporting is inevitable, but its design will be critical. It is not a law that, as MandateNow says,
“can be lifted from a shelf, applied and switched on.”
It is a complicated and nuanced subject and such a law needs very careful construction, as I am sure the hon. Member for Kingston upon Hull North (Diana Johnson) appreciates, particularly having adopted the position that Opposition Front Benchers have taken up recently.
The hon. Member for Bassetlaw (John Mann) struck a chord with me when he said that there should be no no-go areas, which is absolutely right. I am worried that new clause 17 would create such no-go areas, and protect and enshrine them in a flawed law.
It appears from new clause 17(1)(c) that the duty to report would apply only when harm is caused in the setting of a regulated activity. As I understand it, children who are abused at home would remain outside its scope. Multiple concerns, or even any concern about any child, brought to the attention of staff—for example, at their school—would not necessarily be caught by the provision as currently drafted.
Steve McCabe (Birmingham, Selly Oak) (Lab)
I will concentrate on new clause 17. I assume that the Solicitor-General will not accept the proposal, but I hope he will tell the House where he is with the 12-week consultation. I join the right hon. Member for Chesham and Amersham (Mrs Gillan) in asking that we try to hammer out a sensible agreement on the issue—preferably between all parties and before the election—so that we get something done in the interests of children.
I assume that most of us here want children to be protected and that the vast majority of decent people who choose to work with children want to protect them. However, I do not want people to be driven into some kind of defensive posture whereby they are more concerned about protecting themselves than using their professional judgment because of a badly framed mandatory reporting rule. No one who has looked at Rotherham or at any of the other scandals can fail to have a sense of revulsion at those senior staff who turned a blind eye, those who did not want to know when they should have been asking serious questions of the more junior staff, and those who blamed the victims whom they should have been protecting.
We need a measure of mandatory reporting that prevents people from evading their responsibilities, and ensures that there is no, “I didn’t know; they didn’t tell me” get-out clause, and no opportunity for institutions or individuals to view reputational damage as an excuse to sweep things under the carpet. That kind of mandatory reporting could be useful in helping the rest of us to protect children. I therefore hope that the Minister will tell the House what his intentions are and where he is with the consultation and that, in the spirit of cross-party support, he will consider the offer from me and the right hon. Member for Chesham and Amersham.
Mr Speaker
The hon. Gentleman finished just before I expected him to and the Minister will now wind up this group of amendments. There has been considerable demand to contribute to the separate groupings, so perhaps I can say publicly what I would otherwise have said privately, namely that if the Minister is able to wind up on behalf of the Government so that it is possible for us to move on by 7 o’clock—perhaps even earlier—we will dance round the mulberry bush in joyous appreciation of his efforts.
The Solicitor-General
Best endeavours, Mr Speaker, best endeavours.
I thank all right hon. and hon. Members for taking part in this wide-ranging debate. I am grateful to the hon. Member for Birmingham, Selly Oak (Steve McCabe) for a thoughtful contribution. The Government have committed to a full 12-week consultation within 18 months of the Bill receiving Royal Assent. We are coming to the end of this Parliament and into purdah, and practical issues arise, as my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) said. However, the Government are committed to moving on a consultation as soon as practical obstacles are removed—we cannot be clearer than that. I am somewhat puzzled about Labour Members’ undue haste to move their new clause. My right hon. Friend has already mentioned some deficiencies that she has found in the provision, and I will not reiterate her points. I say simply that we need a proper consultation on the issue and for all voices to be heard. For FGM and mandatory reporting provisions we held a consultation that gave us clear evidence to act, and to create and change the law on mandatory reporting. We must do exactly the same for child abuse.
We all agree that these issues are sensitive, important, and involve new obligations on professionals who work in this difficult field, and we must approach them carefully and with evidence. I therefore strongly urge Opposition Members to consider the matter carefully before dividing the House or supporting the new clause. With great respect the provision is premature, bearing in mind that a consultation will occur as soon as possible.
Mr Speaker
Before we move to the second group, it might be for the convenience of the House to know my response to the point of order raised earlier by the hon. Member for Enfield, Southgate (Mr Burrowes), upon which I undertook to reflect. In seeking to ensure an opportunity to speak and possibly vote on matters appertaining to abortion, he asked whether I would consider conflating groups 2 and 3, or eliding group 3 into group 2, for that purpose. As I hope he will understand, it would be a very unusual thing to do, so rather than elide one group into the other, as he suggested, I think there might be good will across the House to ensure that both groups are spoken to and, as appropriate, voted upon. I am hoping, therefore, that we can keep the groupings as they are and that the debate on the second group will run for no more than approximately an hour—preferably not later than 8 o’clock—so that there is an opportunity to address the third group. It is what is ordinarily known as an old-fashioned British compromise. However, it is not in my hands—it is my will, but it is not in my hands—and it depends upon the co-operation of the House. I hope the hon. Gentleman is satisfied. I am afraid it is all I can offer him tonight.
Sir William Cash
On a point of order, Mr Speaker. I wish to confirm that my amendment 20 will be pressed to a vote.
Mr Speaker
I am grateful to the hon. Gentleman. Given that the point has been raised, I should say that separate Divisions on any non-Government new clauses will come at 9 pm. I have shortly to leave the Chair, but I shall return at, or shortly after, 9 o’clock, and it is my very strong wish that the many discrete issues should be tested through the division of the House. If Members want to test the will of the House, within reason there should be that opportunity. He can therefore rest content for the next couple of hours that the opportunity of a Division upon his important matter will come erelong. I hope he is now happy.
New Clause 23
Throwing articles into prisons
After section 40CA of the Prison Act 1952 (inserted by section 75 above) insert—
“40CB Throwing articles into prison
(1) A person who, without authorisation, throws any article or substance into a prison is guilty of an offence.
(2) For the purposes of subsection (1)—
(a) the reference to an article or substance does not include a reference to a List A article, a List B article or a List C article (as defined by section 40A);
(b) the reference to “throwing” an article or substance into a prison includes a reference to doing anything from outside the prison that results in the article or substance being projected or conveyed over or through a boundary of the prison so as to land inside the prison.
(3) In proceedings for an offence under this section it is a defence for the accused to show that—
(a) he reasonably believed that he had authorisation to do the act in respect of which the proceedings are brought, or
(b) in all the circumstances there was an overriding public interest which justified the doing of that act.
(4) A person guilty of an offence under subsection (1) is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine (or both);
(b) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine (or both).
(5) In this section “authorisation” means authorisation given for the purposes of this section; and subsections (1) to (3) of section 40E apply in relation to authorisations so given as they apply to authorisations given for the purposes of section 40D.”” —(Karen Bradley.)
This New Clause creates a new offence of throwing any article or substance into a prison without authorisation (so far as not already prohibited under the Prison Act 1952). The offence would be triable either way with a maximum penalty (on conviction on indictment) of two years’ imprisonment.
Brought up, and read the First time.
The Parliamentary Under-Secretary of State for the Home Department (Karen Bradley)
I beg to move, That the clause be read a Second time.
Mr Speaker
With this it will be convenient to discuss the following:
Government new clause 24—Codes of practice about investigatory powers: journalistic sources.
New clause 4—Investigation of crime: journalistic and privileged material—
‘(1) After section 22(5B) of the Regulation of Investigatory Powers Act 2000 (obtaining and disclosing communications data) insert—
“(5C) An authorisation granted or notice given under subsection (3), (3B) or (4) for the purpose of preventing or detecting crime may not authorise or require any activity which is likely to result in journalistic source information or privileged information being obtained or disclosed, unless a judge has permitted the grant of the authorisation or the giving of the notice in accordance with section 22A.
(5D) For the purposes of this section “journalistic source information” means information which identifies, or might reasonably be expected to lead to the identification of, the source of confidential journalistic material, within the meaning given by section 100 of the Police Act 1997.
(5E) For the purposes of this section “privileged information” means—
(a) information amounting to or contained in matters subject to legal privilege within the meaning given by section 98 of the Police Act 1997; and
(b) confidential personal information, within the meaning given by section 99 of that Act, acquired or created in the course of, or otherwise obtained in connection with, a person‘s acting as a minister of religion, as a healthcare professional or as a Member of the House of Commons.”
(2) After section 22 of the Regulation of Investigatory Powers Act 2000 insert—
“22A Judicial protection of journalistic and privileged material
(1) This section applies where—
(a) a person wishes to grant an authorisation or give a notice under section 22(3), (3B) or (4) for the purpose of preventing or detecting crime; and
(b) the authorisation or notice is likely to result in journalistic source information or privileged information (as defined in section 22(5D) and (5E)) being obtained or disclosed.
(2) The person may apply to a Circuit Judge for permission to grant the authorisation or to give the notice.
(3) The application must—
(a) be in writing;
(b) set out the grounds on which it is made;
(c) be made on notice to any person to whom the authorisation or notice would be granted or given or who might reasonably be expected to be required to comply with it, unless the applicant certifies that there is reason to believe that giving notice under this paragraph might seriously prejudice a criminal investigation; and
(d) comply with any other provision, including as to timing, made by rules of court.
(4) A judge may give permission under this section only if satisfied that—
(a) the grant of the authorisation or the giving of the notice is necessary for the purposes of the prevention or detection of serious crime;
(b) obtaining the data in question by the conduct authorised or required by the authorisation or notice is proportionate to what is sought to be achieved by so obtaining the data; and
(c) it is right to give permission, having regard to the importance of the public interest in—
(i) protecting the confidentiality of journalists’ sources;
(ii) maintaining legal professional privilege; or
(iii) protecting the confidentiality of personal information in the circumstances specified in section 22(5E)(b).
(5) It is an offence for a person who is given notice of an application under this section to conceal, destroy, alter or dispose of the material to which the application relates except with the permission of a Circuit Judge; and
(a) this subsection ceases to apply if the application is dismissed or withdrawn or if an authorisation or notice granted or given in reliance on this section has been complied with; and
(b) a person who is guilty of an offence under this subsection is liable—
(i) on conviction on indictment, to imprisonment for a term not exceeding two years, to a fine or both; or
(ii) on summary conviction, to a fine not exceeding the statutory maximum.”’
This Clause would provide for judicial oversight for police and other authorities’ access to communications data which might involve the identification of journalist sources, as recommended by the Interception of Communications Commissioner. It provides the same level of protection for legally privileged and medically privileged communications and for communications between people and their ministers of religion or their MP.
New clause 5—Code of practice on investigatory powers: journalistic and privileged material—
‘(1) The Secretary of State must ensure that any code of practice under section 71 of the Regulation of Investigatory Powers Act 2000 that deals (expressly or otherwise) with the use of powers under that Act in relation to the prevention or detection of serious crime, includes provisions designed to protect the public interest in—
(a) the confidentiality of journalists’ sources;
(b) legal professional privilege; and
(c) the confidentiality of personal information obtained in connection with a person’s acting as a minister of religion, as a healthcare professional or as a Member of the House of Commons.
(2) In complying with subsection (1) the Secretary of State must—
(a) consult the Interception of Communications Commissioner appointed under section 57(1) of that Act; and
(b) have regard to any relevant report of an inquiry submitted by that Commissioner to the Prime Minister.’
This new Clause provides that the RIPA Code of Practice includes provisions which protect the public interest in the confidentiality of journalists’ sources and the other privileged communications.
New clause 18—Excluded persons (involvement in serious crime): publication of names—
‘(1) Where the Secretary of State has exercised prerogative powers to exclude from, or deny entry into, the United Kingdom any foreign national on grounds of a reasonable belief that the named person has benefited from, or has a material connection to or involvement in, one or more serious crimes, including but not limited, to the commission of—
(a) an act or acts deliberately undertaken to foster extremism or hatred;
(b) an act or acts deliberately undertaken to facilitate, contribute to, support, encourage or promote terrorism;
(c) an act or acts of torture or any other international crime or serious violation of international human rights law; or
(d) a money-laundering offence or any other offence relating to serious or organised crime or more than one such offence,
the Secretary of State shall, subject to subsection (2), publish the name of each such person, and the ground or grounds for exclusion, within one month of the exclusion coming into effect.
(2) The publication of the name of an excluded person under subsection (1) may be deferred by the Secretary of State, where there are reasonable grounds for believing that such publication would present a risk to—
(a) national security or public safety;
(b) enable suspects in a United Kingdom criminal investigation to avoid arrest, or
(c) materially reduce the prospects of a conviction in an existing criminal prosecution in the United Kingdom,
for no longer than is required to materially mitigate the risk or risks identified in this subsection and, in any case for no longer than up to a maximum of six months.
(3) In the case of a deferred publication of the name of an excluded person, the Secretary of State shall, on publication of such a deferred name, also publish a statement identifying which risk, or which of the risks, identified in subsection (2) applied in making the decision to defer publication.
(4) This section shall apply to persons already excluded from, or denied entry into, the United Kingdom, on grounds included in subsection (1), from the date on which it comes into force.’
New clause 20—Prevention of firearms offences—
‘In the Firearms Act 1968 insert—
“28B Assessing public safety
(1) When assessing the threat to public safety under sections 27, 28, 30A, 30B or 30C the Chief Police Officer must ensure that a range of background checks are performed.
(2) Where these checks uncover substantiated evidence of violent conduct or domestic violence, the Chief Police Officer should refuse the licence application unless exceptional evidence can be brought forward by the applicant as to their suitability to possess a weapon.
(3) When assessing public safety within this section the Chief Police Officer must follow any guidance issued by the Secretary of State.
(4) The Secretary of State must ensure adequate resourcing of licence applications and consult with Chief Police Officers to ensure the level of fees collected by the Police under sections 32 and 35 are sufficient for the Police to recoup the costs they incur through the administration and assessment of firearms licences issued or applied for under this Act.”’
New clause 21—New psychoactive substances—
‘(1) It is an offence for a person to supply, or offer to supply, a synthetic psychoactive substance, including but not restricted to—
(a) a powder;
(b) a pill;
(c) a liquid; or
(d) a herbal substance with the appearance of cannabis,
which he knows, or has reasonable cause to believe, to be so acting, that the substance is likely to be consumed by a person for the purpose of causing intoxication.
(2) This section does not apply to alcohol, tobacco, or any drug currently scheduled under the Misuse of Drugs Act 1971 or the Medicines Act 1968 or any substance, product or foodstuff specified by the Secretary of State following consultation with the Advisory Council on the Misuse of Drugs.
(3) A person guilty of an offence under this Part of this Act shall be liable—
(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both such imprisonment and fine;
(b) on conviction on indictment, to imprisonment for a term not exceeding three years.’
New clause 28—Proceeds of Crime: detection and prevention of money-laundering measures—
‘The Proceeds of Crime Act is amended as follows—
“(6A) Where the National Crime Agency has reasonable grounds to believe that—
(a) activity that gave rise to a Suspicious Activity Report is related to money-laundering; and
(b) there is a realistic prospect of investigating the case effectively,
the Agency may seek an order from the court for an extension, for a period of up to a further 31 days, of the moratorium period under section (6).
(6B) An order under subsection (6A) may be granted where the court is satisfied that that criteria in that subsection have been met.”’
Government amendments 1 and 23 to 31.
Karen Bradley
In the interests of brevity, I will concentrate on new clause 24 and the related amendments, and I will look forward to hearing from right hon. and hon. Members during the debate.
New clause 24 relates to the use of powers under part 1 of the Regulation of Investigatory Powers Act 2000—RIPA—to identify journalists’ sources. New clauses 4 and 5, tabled by my hon. Friend the Member for Cambridge (Dr Huppert), cover the same ground. I do not believe there is any issue of substance between him and his supporters and the Government on this topic. Indeed, I venture to suggest that the whole House is united on the underlying issue: a free press is fundamental to our democracy, and nothing should be done that might endanger that.
For that reason, when the independent interception of communications commissioner issued a report earlier this month recommending judicial authorisation of requests for communications data intended to establish the source of journalistic material, the Government immediately accepted the recommendation in full. In conducting his inquiry into access to journalistic material, the commissioner did not find widespread or systemic abuse. In fact, the inquiry found very few cases in which police forces had sought to obtain communications data for the purposes of determining journalists’ sources. The commissioner stated that
“police forces are not randomly trawling communications data relating to journalists in order to identify their sources”.
Nevertheless, the commissioner found some cases where insufficient care and attention had been given in applications and where there was not due consideration of the implications for freedom of expression.
Primary legislation is required to give effect to the commissioner’s recommendation relating to judicial authorisation. The issue for the House is how best to give effect to that recommendation. It is an issue that many right hon. and hon. Members feel strongly about, and I welcome this opportunity to pay tribute to the hon. Member for Hayes and Harlington (John McDonnell), who has been tenacious on behalf of the parliamentary branch of the National Union of Journalists.
We have to accept, however, that we are coming to the end of this Parliament and that the legislative options are limited. The Bill is concerned with serious crime, and amendments are therefore necessarily restricted to that subject. For that reason, I cannot accept new clause 4. Under RIPA, the police and others can acquire communications data in relation to the prevention and detection of all crime, as well as for other purposes, such as in the interests of public safety. Were we to accept the new clause, the police would be permitted to identify a journalist’s source only in a serious crime case. As such, it would not be possible to provide in the Bill for judicial authorisation of the acquisition of communications data for the purposes of determining the source of journalistic information in a non-serious crime case.
Under RIPA, a serious crime is one for which an adult with no previous convictions could expect to receive a custodial sentence of three years or more. This rules out legislating in the Bill on applications for communications data to identify a journalist’s source relating to investigations for relevant offences under, for example, the Official Secrets Act 1989, the Data Protection Act 1998 and the Computer Misuse Act 1990. The commissioner referred specifically to investigations under the Computer Misuse Act in paragraph 7.3. It would not be satisfactory to create such a situation, and nor would we be acting on the commissioner’s recommendation were we to do so.