Clause 2 — Duty to prevent sunbed use by children

Prayers – in the House of Commons at 12:00 pm on 12th March 2010.

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Photo of Christopher Chope Christopher Chope Conservative, Christchurch 12:00 pm, 12th March 2010

I beg to move amendment 7, page 2, line 10, leave out '£20,000' and insert '£5,000'.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this it will be convenient to discuss the following: amendment 21, page 4, line 6, leave out 'any facilities, assistance or'.

Amendment 22, page 4, line 11, after 'which', insert 'he knows'.

Amendment 23, page 4, line 12, leave out 'and'.

Amendment 24, page 4, line 13, leave out paragraph (b).

Amendment 25, in clause 9, page 4, line 22, leave out from 'by' to end of line 23.

Amendment 32, in clause 10, page 4, line 43, leave out '£20,000' and insert '£5,000'.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

The amendments in the group deal with offences and penalties. Amendment 7 seeks to reduce the maximum penalty in clause 2(6) from £20,000 to £5,000. That would be a more reasonable and proportionate maximum penalty in this context, because a maximum penalty of £20,000 on summary conviction of the offence of breaching the duties imposed by the Bill would be devastating for someone carrying on a sunbed business. Many such businesses are relatively small, employing small numbers of people-perhaps one or two-and as my hon. Friend Angela Watkinson said earlier, we are talking about something that is tantamount to a strict liability offence. It will therefore be very easy for people to be found to be in breach, albeit not knowingly in breach-for example, if a sunbed is used by somebody who is under 18, but who looks significantly older.

We know that offences relating to the sale of alcohol to under-18s, which is pretty rife up and down the country, do not result in penalties anything like as great as that which is proposed by clause 2. I hope that the Minister will explain why she thinks that a penalty of £20,000 is appropriate.

There is a difference between this proposed penalty and the penalty of £20,000 that I envisaged in new clause 1, which would have been imposed for a breach of equipment regulations in which someone had supplied equipment, for hire or otherwise, that was unsafe for use. That is a very different proposition from the imposition of a fine on someone because they have been duped by a young person into unwittingly allowing them to gain access to a sunbed.

Amendments 21 to 25 relate to clause 8, which deals with the obstruction of so-called authorised officers. Amendment 21 would have the effect of making clause 8(2) read as follows: "A person who without reasonable excuse fails to give to an authorised officer, acting in the exercise of the officer's functions under this Act, information which the authorised officer reasonably requires of the person for the performance of those functions commits an offence." As currently drafted, that subsection states that the offence would be committed if the person failed to give the authorised officer

"any facilities, assistance or information".

That is far too vague and wide-ranging, given that it would trigger an offence for which there would be a substantial financial penalty. I hope that the Minister and the promoter of the Bill will be able to explain what those words add to the Bill.

The clause, as drafted, says that anyone who does not answer the questions put to them will be committing an offence. That seems to cut across the principle of being innocent until proven guilty, and the principle that no one should incriminate themselves under English law. My amendment would not exclude all that; it merely says that those principles should not be undermined simply because someone fails to provide facilities or assistance. We all remember people in "Dixon of Dock Green" assisting the police officers with their inquiries. Under clause 8, anyone who did not assist the police officer with his inquiries would be guilty of an offence, and that seems a step too far.

Amendment 22 tries to address the mischief of strict liability. Clause 8(3) states:

"A person ("P") commits an offence if, in purported compliance with any requirement of an authorised officer mentioned in subsection (2)-

(a) P makes a statement which is false or misleading in a material respect".

I believe that that should be an offence only if the person knows the statement to be false or misleading in a material respect. Even in this House, even by Government Ministers and even perhaps by the Prime Minister, statements are sometimes made that are

"false or misleading in a material respect", but they may not be "knowingly made"; rather, they can be described as "inadvertently misleading the House". Why should someone who inadvertently makes a misleading statement be guilty of an offence? I hope that the Minister will address that issue, as I would suggest that this is not a million miles away from some of her own recent experiences.

Amendment 23 would simply leave out the word "and", taking out the conjunction between subsection (3)(a) and (b), while amendment 24 would remove paragraph (b). It would remove the words:

"P either knows that it is false or misleading or is reckless as to whether it is false or misleading."

The purpose is to emphasise that actual knowledge rather than any lesser test should be necessary before an offence is committed. I hope that the amendment will commend itself to the House.

I also hope that amendment 25 to clause 9 will find favour. Clause 9(2) provides:

"If the offence is proved to have been committed by, or with the consent or connivance of, or to be attributable to any neglect on the part of...any director, manager or secretary of the body corporate, or...any person who was purporting to act in any such capacity", that person

"is guilty of the offence and liable to be proceeded against and punished accordingly."

It seems to me that it would be much better to limit that to offences proved to have been committed by the person. As currently drafted, the clause extends the effective criminal liability to somebody who is conniving with an action or is guilty of "any neglect". A very stringent penalty is being imposed on someone working for a body corporate, who by definition does not have knowledge of what is happening. Once again we are over-egging the pudding, so I hope that the House will accept the amendment.

Amendment 32 is similar to amendment 7 in that it would reduce the maximum penalty from £20,000 to £5,000. In this context, the Local Government Association has asserted that the Bill will result only in an additional regulatory burden for the whole of local government, amounting to a cost of £88,000 a year. That is not a net but a gross figure. If the whole Bill is going to cost only £88,000 to police, a maximum penalty of £20,000 seems disproportionate. The promoter clearly failed to understand the nature of the sunbed industry, and failed to heed the warning that such draconian and stringent penalties might cause people to take their business underground rather than risk the consequences of inadvertently committing an offence.

Although this is a narrow point in one sense, it is serious none the less. The Bill creates new criminal penalties, coupled with the power to amend and extend them. We need to ensure that those penalties are tightly defined, and not more extensive than is reasonable in all the circumstances.

I hope that the Minister will engage in the debate rather than reading out a prepared script, so that we can understand the position fully. If, when the Bill has been enacted, any of our constituents-perhaps not many in the south of England, as this does not seem to be such an issue there-find themselves before the courts, they will look back at this debate and wonder why the offences were drawn so widely. They will wonder why it was necessary for the Bill to make it so difficult for people to avoid conviction even when they had been unwittingly duped into believing that a person using a sunbed was not under age.

Photo of Mark Simmonds Mark Simmonds Shadow Minister (Health) 12:30 pm, 12th March 2010

My hon. Friend the Member for Christchurch is right in saying that the additional burden specified in the regulatory impact assessment is only £88,000 for the whole of England and Wales. I expressed concern about that figure on Second Reading and in Committee. We must ensure that it is monitored carefully. It would be helpful if the Minister confirmed that it really is so low, given that it relates to an additional responsibility for staff in local authorities throughout the country who already have other responsibilities. Enforcement is key to the success of the Bill.

I do not agree with my hon. Friend the Member for Christchurch about the penalties. I think it important to provide for significant penalties that will act as a deterrent. However, my hon. Friend made a good point about the burden of proof, and about people who are not knowingly in breach of the provisions. It would also be helpful if the Minister made it clear that the £20,000 figure is a ceiling rather than a fixed penalty, and also that it will probably apply to repeat offenders only. As my hon. Friend said, it is a significant amount. We do not want genuine, responsible sunbed operators to be deterred from entering the market and operating within the legislative structure that we are creating. Some of them operate on very slim margins.

Photo of Ann Keen Ann Keen Parliamentary Under-Secretary, Department of Health

Mr. Chope has tabled a number of amendments relating to the offences and penalties specified in the Bill.

Amendments 7 and 32 apply to clauses 2 and 10, and seek to reduce the maximum level of the penalty from £20,000 to £5,000. The risk posed to young people who use sunbeds is great, and sunbed businesses must take their duties under this Bill seriously. The Government believe that the maximum fine should be substantial, so that we can ensure that the sanction provides an adequate deterrent. The maximum penalty is proportionate to the offence. However, it is important to stress that this is the maximum fine that can be imposed for committing the offence. Clause 10(3)(a) enables offences created by regulations to incur that maximum fine.

Amendments 21 to 24 relate to clause 8. Clause 8(2) requires people to co-operate with enforcement officers who have entered the premises, but amendment 21 would require only that information be given to the enforcement officers. Clause 8 is about facilitating co-operation with enforcement officers, and in order for enforcement officers to do their job properly, it is reasonable to expect that they may need more than information; they may need to access files on a computer, for example.

Clause 8(3) creates an offence where a person makes a false or misleading statement either knowing or not caring that the statement is false or misleading. Amendments 22 to 24 would amend the offence so it only covers situations where a person makes a statement knowing it to be false or misleading. The problem with amending clause 8(3) in this way is that it means that there is no recourse against a person who is asked for information by an officer and guesses at answer, but does not care whether the answer is wrong or right.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

Clause 8(2) refers to:

"A person who without reasonable excuse fails to give to an authorised officer, acting in the exercise of the officer's functions under this Act, any facilities, assistance or information".

What exactly does that mean, and what does the word "facilities" mean in this context? As Chairman of the Public Accounts Committee, I am also worried about the £88,000 figure. It seems to me that we are racking up ever higher costs for regulating this industry. I simply do not believe it will cost only £88,000 to implement and regulate the Bill's provisions.

Photo of Ann Keen Ann Keen Parliamentary Under-Secretary, Department of Health

These points were addressed in Committee. I therefore suggest that the hon. Gentleman reads the record of the proceedings in Committee, where he might find the answers he seeks.

Amendment 25 relates to clause 9. Clause 9(2) allows for a director, manager or secretary of a body corporate who agrees to play a part in, or turns their back on, the commission of an offence under the Bill to be guilty of the offence, in addition to the company. The effect of amendment 25 would be that those individuals would be caught by this provision only where they had actually committed the offence themselves. That would make the provision too narrow.

I ask the hon. Member for Christchurch to withdraw his amendment.

Photo of Julie Morgan Julie Morgan Labour, Cardiff North

The issue of the cost of £88,000 per year has been raised several times, and I just want to reassure Members that the Local Government Association specifically worked out how many situations it would have to deal with. It is also important to remember that this work would be done by existing environmental officers. Therefore, this figure of £88,000 has been very carefully calculated. It is also important to remember that Scotland is allocating no additional money for enforcing this, because it thinks it can be done with existing staff.

The only other point I want to make is that £20,000 is the maximum fine, and we would not expect it to be imposed very often. This is a very serious issue, however, so it is important to have that high sum as the maximum fine.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch 12:45 pm, 12th March 2010

I was disappointed with the Minister's response, particularly her response to the intervention from my hon. Friend Mr. Leigh. Knowing that my hon. Friend was not invited to be a member of the Standing Committee and was therefore unable to participate in its proceedings, the Minister asserted that the issue that he raised in relation to the proper interpretation to be put on the words in clause 8(3) was discussed in Committee, and she told him to look up the Committee proceedings.

It so happens that I have the Committee proceedings before me. They show that there was no debate whatsoever in the Committee on clause 8 or on clause 9. I hope the Minister will intervene on me to explain what she had in mind when she told my hon. Friend that the issue had been dealt with in Committee. Obviously, that is the only procedure by which we will be able to get an answer to my hon. Friend's point.

I am winding up the debate, which included a reasonable question from my hon. Friend to the Minister. The hon. Lady has given a response on the record which must be inaccurate. I am not suggesting that that was deliberate, but it is misleading. I am not even suggesting it was reckless, which under the terms of the Bill would result in a criminal conviction. What I am saying is that the Minister's response was not correct, and I hope she will intervene to correct the record, apologise for inadvertently misleading my hon. Friend, and also address the substance-

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. I know that the hon. Gentleman is well experienced in matters in the House and realises that he has made his point and is now winding up the debate on the amendments.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

Indeed, Madam Deputy Speaker, I realise that I am winding up the debate. I hope I am not winding up the Minister too much and that she will engage with my comments. If not, the only course open to me and my hon. Friend is to seek to divide the House on amendment 21.

Photo of Ann Keen Ann Keen Parliamentary Under-Secretary, Department of Health

I do not wish to detain the House. I thought clause 8 had been discussed. I was advised that it had been discussed.

"Facilities" could mean being able to use an office or even a photocopier. "Assistance" could mean getting help working the computer or filing system. Those are examples, of course, and they are not exhaustive. The House needs to move on.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

I am grateful to the Minister for that clarification. She has confirmed me in my opinion-I cannot speak for my hon. Friend-that the clause is a load of nonsense. Why should somebody whose premises are entered by an authorised officer be required to make his photocopying facilities available to that officer, with the consequence that if he does not do so, he will be guilty of a criminal offence? Even under the anti-terrorism legislation, I do not think there is any requirement that terrorists should make their photocopying equipment available to investigating officers. The provision is manifestly absurd. It smacks of the extension of regulation far beyond what is reasonable or proportionate.

The promoter of the Bill asserted that the costs of policing the Bill would be only £88,000 across the whole country. I share my hon. Friend's incredulity at that, but we will have to see what happens in practice. I repeat what I said earlier-that is only about £200 per constituency per annum. If, as my hon. Friend Mark Simmonds says, we need strong implementation and enforcement, the costs will end up being much higher than suggested. Rather than have an academic argument about that, it is better to say that we do not want to have people made into criminals because they will not let the local authority officer visiting their premises borrow their photocopying machine. I would have thought that that was something that we should leave to their discretion rather than make it a criminal offence not to allow the photocopying machine to be used. Therefore, I beg to ask leave to withdraw amendment 7 and to press amendment 21.

Amendment, by leave, withdrawn.