Report (2nd Day)

Policing and Crime Bill – in the House of Lords at 2:00 pm on 5th November 2009.

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Clause 14 : Paying for sexual services of a prostitute subjected to force etc: England and Wales

Amendments 21 and 22 not moved.

Clause 15 : Paying for sexual services of a prostitute subjected to force etc: Northern Ireland

Amendments 23 to 25 not moved.

Clause 16 : Amendment to offence of loitering etc for purposes of prostitution

Amendment 26

Moved by Baroness Miller of Chilthorne Domer

26: Clause 177, page 122, line 41, at end insert—

"( ) section (Damages-based agreements relating to employment matters);"

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office 2:15 pm, 5th November 2009

My Lords, it is a pleasure to get to an amendment that I can move. This amendment takes us back to the question of whether children under the age of 18 should still be included in the provisions on prostitution. We had a pretty full debate on this in Committee, so I will not go back over the arguments. I will say, however, that I was very grateful for the support of the noble Baroness, Lady Hanham, who said very concisely:

"If anybody needs to be taken out of the system, it is a child under 18".—[Hansard, 1/7/09; col. 283.]

The Minister continued to resist our arguments by saying that,

"decriminalising under-18s could risk sending out a message that we do not think it is acceptable for adults to be involved in street prostitution, but we consider it acceptable for a child or young person to loiter or solicit for the purposes of prostitution".—[Hansard, 1/7/09; col. 286.]

His argument that removing under-18s from these provisions could be dangerous for them takes us back to the days of Dickens and is akin to saying that this would encourage the Fagins of the modern world to employ six year-olds to commit robbery because the criminal law cannot be applied to them. His argument continues at Third Reading: that what the amendment proposes would encourage pimps to seek people under 18 to sell sex because they cannot be regarded as criminals. That is not a good argument.

Further—I mentioned this in Committee but would really like to re-emphasise it—the UN Convention on the Rights of the Child, to which we have now signed up, states:

"The State party should always consider, both in legislation and in practice, children victims of these criminal practices, including child prostitution, exclusively as victims in need of recovery and reintegration and not as offenders".

That conclusion was not come to lightly; there was substantial debate on the issues.

Our own domestic Joint Committee on Human Rights is correct that it is far more appropriate to strengthen the duties and capabilities of children's services. In our debate the other night, we heard just how many children come from care into prostitution. I hope that the noble Baroness, Lady Stern, will refer to that in a moment. Children end up in prostitution because of the failure of institutional services, and we should not criminalise them further. I beg to move.

Photo of Baroness Stern Baroness Stern Crossbench

My Lords, I added my name to this amendment, and I am very happy to support the noble Baroness, Lady Miller. She has been a stalwart campaigner on this matter since we started our consideration of the Bill.

It is clear that a particular group of young girls—and, I am afraid, boys—are very vulnerable to sexual exploitation: young people from care, runaways from horrible home situations, and those who have been excluded from school and have nothing to do. These young people crave affection and attention. They are very needy and very sad. They do not need to be criminalised, and they do not need messages as the Government think they do. They need help and support that sticks with them, safe places to go and worthwhile things to do.

The Government's position hinders the provision of these things. The idea that it sends a bad message if under-18s are criminalised shows the limits of their view on messages. What might seem like a message saying one thing to people in government offices in Whitehall will most likely not have been heard in the backstreets and, even if it is known, it will be understood vaguely. In the backstreets the law will be seen as a strange, external force to those we are talking about. It will certainly not seem real enough to be the determinant of what they do. So the argument about messages is unconvincing.

On the face of it, the other argument of the Government has more force, but that, too, is ultimately unconvincing. Exploiters will go for young people for a range of reasons. They are easily exploitable, but I have seen no evidence whatever to suggest that, because these young people can be arrested, charged, fined and returned to their work, exploiters are put off exploiting them. This argument is another attempt to impose the Whitehall theory on the complexity and messiness of the real world. The exploiters are more likely to be put off by very effective police work to deal with sexual exploitation of the young, which I am sure the Minister knows is done in some places extremely thoroughly with very good results and with the adequate backing of current law. I very much hope that the Government will change their mind on this matter.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

My Lords, I support this amendment and I stand with the words of the noble and learned Baroness, Lady Scotland, ringing in my ears from late Tuesday evening. She said:

"What we are talking about is the abuse, degradation, humiliation and pain caused to women who engage in this activity, not because they desire it but because they are compelled, coerced and manacled in a way that no human being should be".—[Hansard, 3/11/09; col. 244.]

If that is true of women and we substitute the word "child", is it not all the more poignant that we should listen to what is being said?

Down the decades, I have heard the arguments that if this is removed, children would be put in greater danger. As someone who probably has worked with children as much as anyone in this House, I utterly refute that. These youngsters, as the noble Baroness, Lady Stern, has outlined—I will not repeat the catalogue she has already given—come from the most appalling backgrounds. My noble friend Lord Williamson, who is not in his place, and I had a conversation in what was our dinner break, although there has not been one for the Chamber. We talked about the glories of this House and how we sit here with all our gold. How far we are from the squalid rooms that I have seen where girls are used hour on hour. We are not talking about mature women; we are talking about youngsters who have often been prostituted from the age of 14, a point which I made on Tuesday. To say that it would give some sort of message is to forget that 75 per cent of such women find themselves in the sex trade before they are 18 years old. We have to tackle this issue not in the criminal justice system, but in the children's system.

The Government have an exceptional programme in Every Child Matters. If every child matters, why do these children in the greatest need—both boys and girls, but particularly a large number of girls—not matter? They are abused, deprived children. By the time they get into the sex trade they are usually on drugs as well. I have to say that many of them are not what you would call nice people: they are difficult, disturbed and angry, and cause problems in a neighbourhood. But would not you if you had been used hour on hour since you were 14 years old? They have also lost self esteem, so they do not see themselves as being of any value. The criminalisation simply adds yet another layer to their lack of value. They then believe that society and the Government—I am speaking to noble Lords on the Front Bench—will not hear that what they need are good services, to be helped out of the situation and to be given a better life.

I hope that the Government will take this back and have another look at the way in which we treat these young people, who might be their daughters. You may not have read the Barnardo's booklet on this, but these girls are all someone's daughter. These girls and young boys need another chance and should not be criminalised or treated in the way suggested. The arguments given by the Government do not hold water. They simply add another lack of value. It is true that these are children of the darkness. I ask that noble Lords bring them into the light. If the noble Baroness goes through the Lobby, I shall be with her.

Photo of Lord Desai Lord Desai Labour

My Lords, I want to say a brief word in support of the amendment. It seems perverse that, on the one hand, we say these children are exploited by someone else—that is, they are not in that situation willingly—and, on the other hand, we criminalise them for doing something that they have unwillingly done. That is a contradiction. Therefore, if we believe that these children are exploited, they should be rehabilitated and looked after, and not criminalised.

Photo of Baroness Gibson of Market Rasen Baroness Gibson of Market Rasen Labour

I, too, support the amendment. Had I written a speech, most of what I would have said has already been said, certainly by people who know more about this issue than me. I was not able to be here when Clause 14 was debated. I am sorry that it is in the Bill. It is a mistake and I think that we will live to regret it. We have a chance to improve Clause 16 today. I hope that my noble friend on the Front Bench, whom I respect greatly, will listen to what is being said in the Chamber and will think again about this issue.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, I also support the amendment in the name of the noble Baroness, Lady Miller. Like my noble friend who has just spoken, I am extremely concerned about Clause 14 and think that we will live to regret it. In this case, the message is clear. We are dealing with damaged young people. On that basis alone, we should be thinking about the fact that it takes ordinary children differing times to grow up. But, my goodness, if you are damaged in the way that these children are, it will take considerably longer and, if we have to criminalise them at all, which I would not want, I would raise the age to 21 and not 18. I very much support this amendment. I fear that we have failed these children. We try not to criticise social services, which try very hard, but we have to put more effort in the preventive side of what is going on in families. That is where the effort should be.

I know that this Government have done a lot in that direction, but, alas, the priorities have now moved in different directions and are compounded by the shortage of money that we all face. I warmly support what has been said by all Members who have spoken so far.

Photo of Lord Skelmersdale Lord Skelmersdale - Shadow Minister, Shadow Minister

My Lords, I understand entirely the concerns of the noble Baronesses, Lady Miller, Lady Stern and Lady Howarth, that the victims of sexual abuse are not penalised, but instead are given the support that they need, which is absolutely right. I understand also the concern of the noble Baroness, Lady Miller, that our support for international conventions is consistent with domestic legislation. However, I have not been convinced that legalising the practise of soliciting for the purposes of prostitution for children will address these concerns.

It is important to remember that we are not talking about legalising or criminalising all prostitution here. We are talking about legalising a dangerous activity for children and young adults. I agree with the noble Baroness that they should not be in that position in the first place, but we have to face it that regretfully they are. Is not the key point here that behaviour which impacts seriously on the local community is to be accepted when engaged in by children but not by adults? That cannot be right.

That said, I would encourage the Government to look seriously at the wider issue of whether the direction of their policies regarding prostitution is beneficial or not. At this point, I find them to be in a total muddle. Over the past few weeks, many of us have been talking to different groups and organisations working with prostitutes. I have been struck by the enormous variation not only in opinions on the best way forward but even disagreements over the basis of the facts and figures. These arguments over evidence simply should not be necessary. We have the luxury of numerous international examples of different approaches to prostitution, from all-out criminalisation in the United States through regulation to significant decriminalisation in New Zealand. Yet Ministers' responses to this House and another place on the matter show no sign of a proper analysis of what has happened in those countries or any indication that the department has taken the arguments for decriminalisation seriously.

To return to the amendment, I agree with what its proponents would call a "wrong-headed" concern of the Government; namely, that under 18 year-olds being decriminalised could well lead to pimps and traffickers targeting them. I accept, as I said, that it is disputed by many, but everyone would agree that it is an outcome we would wish to avoid. I hope very much that the Government's actions are based on real evidence and not a wish to find a convenient reason to avoid looking at decriminalisation as a serious option.

Photo of The Earl of Listowel The Earl of Listowel Crossbench 2:30 pm, 5th November 2009

My Lords, if there were more social workers making the sort of interventions in families that my noble friend Lady Howarth has just said are so important, this would be much easier to achieve. Similarly, if there were more social workers, there would be many more foster carers because they rely on good quality social workers to support them in managing children who are often difficult because of their histories. I urge the Minister to encourage his colleagues in the important work they are doing to reinvigorate social work. If we are to avoid having children end up on the streets, it is vital that we make a profound commitment to social work by encouraging the best people to enter the profession, giving them the support they need, and remedying the situation where in some London authorities there is a 33 per cent vacancy rate.

Photo of Lord Brett Lord Brett Government Whip, Parliamentary Under-Secretary of State, Home Office, Government Whip, Parliamentary Under-Secretary (Home Office) (Identity) (also Lord in Waiting)

My Lords, we begin our debates today with Amendment 26, which addresses an extremely important issue. I will try to be brief given the length of our agenda of business and the limited time available, but it is necessary to do justice to this important issue. I shall start by saying that everyone who has spoken has echoed the Government's view on this; namely, that treating children who are loitering and soliciting for the purposes of prostitution are indeed victims of abuse. I hope to demonstrate that the Government have a holistic view, so the question that needs to be answered is that put by the noble Baroness, Lady Howarth: why do these children not matter? I hope to prove that these children do matter, and that the last thing we want to do is to criminalise them. We believe that it is our responsibility to do all we can to help children who are abused through prostitution so that they recover and can rebuild their lives. However, we are of the view that decriminalisation is not the right way to achieve this. We consulted on the issue in 2004 and as a result decided to maintain this offence then. We continue to hold that view.

We are not starting with a blank sheet of paper. As the noble Lord, Lord Skelmersdale, said, we are where we are and there is a criminal offence. The fact is that this is in statute. As it stands, the offence sends a clear message that we do not think that street prostitution is acceptable. Were we to decriminalise the under-18s, it would send a very wrong message. On the one hand it would say that it is not acceptable for adults aged over 18 to be involved in street prostitution, but on the other hand, it is in some way acceptable for a child or young person to loiter or solicit for the purposes of prostitution. It is one thing not to have a criminal offence for under-18s, but it is an entirely different thing to decriminalise an offence for those aged under 18. Retaining the offence may help to deter some children from engaging in street prostitution in the first place. We do not know the measurement of that, but the statute exists. As several noble Lords have said, vulnerable young people do not just fall into prostitution. The reality is that pimps and traffickers actively target them and draw them into a life of misery and exploitation. In many cases, these young people are already coming from a life less wholesome and complete as a result of what has happened in their younger years and the position in which they found themselves.

If we were to decriminalise in the way suggested in Amendment 26, it would simply strengthen the work of pimps and traffickers. It is naïve to pretend that they would not seek to take advantage of the fact that children could not be prosecuted if they were found loitering or soliciting. We know that these are evil people and we know also that they are clever people. They might be encouraged to send children out on to the street as prostitutes knowing full well that police powers to tackle the problem had been inhibited. I am sure no one would wish that to happen, but it could be a perverse and unintended consequence of these amendments.

Children are prosecuted only in the most exceptional circumstances; in other words, as a very last resort. For example, where support from other agencies has been made available but has not been accessed or is not effective in helping a child to exit street prostitution, the intervention of the criminal justice agencies may be vital to ensure the removal of that child or young person from a situation of danger and subsequently to ensure that they are engaged with the support services—however adequate or inadequate, as the noble Earl, Lord Listowel, suggested, they may be. Our guidance on safeguarding children and young people from sexual exploitation was updated in June of this year and published. It has been in existence for some years—since 2004—and is very clear and effective. Why do we think that? There have been only five convictions and five cautions given to under-18s for the offence. That suggests that we are not treating these children as criminals, but in the vast majority of cases as victims. In 2007, there was one conviction and one caution. Therefore, we can demonstrate that in practice this offence is used only very rarely in relation to the under-18s because in the overwhelming majority of cases these young people are treated as victims and not as criminals.

The policy is only a small element in the guidance and one aspect of our overall approach. We have taken a number of steps to help provide earlier interventions to rescue children from street prostitution. We have established local safeguarding children's boards which are responsible for ensuring that the relevant agencies are aware of sexual exploitation in their areas and that appropriate training is made available for and given to those who either work with children or in services that affect their welfare. The boards have helped to develop strong links with the local agencies that are responsible for preventing the harm caused by the sexual exploitation of children, thereby helping to improve the level of intervention to tackle these problems at the points at which a number of noble Lords have suggested are the most effective. Practical examples can be cited, such as the Sheffield Safeguarding Children Board Sexual Exploitation Service and the Croydon Sexual Exploitation Group.

We have established strong links with important voluntary sector organisations working in the field, such as Safe and Sound Derby. In addition to the supportive and preventive work that we have helped to foster, we have been involved in significant efforts to bring to justice those who exploit children for the purpose of prostitution. These include legislative measures such as the range of new offences linked to child prostitution and exploitation which were introduced by the Sexual Offences Act 2003, as well as practical measures such as the establishment in 2006 of CEOP. It is clear from these developments that we consider the real criminals to be where they are and their victims to be in need of support.

The Government have considered fully the arguments in favour of decriminalisation and have listened carefully to the impassioned, principled and well-argued points in favour of decriminalisation made in a number of quarters. I have to say, however, that I remain unconvinced. The House has a duty not just to look at laws, but to be ever-mindful of the realities of the world and the practical impact that a change in our laws will have. We all agree that children are and should be treated as victims, but even though it may feel counterintuitive, in this instance I believe that amending the law to decriminalise the under-18s will have serious consequences for the very children that we are seeking to protect. Moreover, I have to say that both ACPO and the Crown Prosecution Service share our views on this matter. The adoption of the measures I have outlined, backed up by the criminal law and the measures we are bringing forward in the Bill, together with the absolute commitment the Government have to continuing to do all they can, is the best practical way to tackle these issues.

I hope I have been able to show that we are adopting a holistic approach to tackling the problem of prostitution among the under 18s and that the noble Baroness will feel able to withdraw her amendment. If she presses the matter, I hope noble Lords will join me in the Lobby. We care deeply about vulnerable young prostitutes and those who want to support them, and this will enable us to tackle the issue in a practical and effective way.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office

My Lords, I thank everyone who has spoken in the debate. I am glad to see the noble Baroness, Lady Gibson, back in her place and I hope that she is feeling better.

I agree with the noble Lord, Lord Skelmersdale, about the total muddle that the policy seems to have been in for much of the time. I agree with him also that there have been far too many arguments over the evidence for it to be at all clear from which quarter the Government have finally drawn their conclusions. That is very unsatisfactory. However, in this amendment, above all others, it is very clear.

The Minister has given a list of the initiatives that have commenced, but those are evidence of why the legislation that has been on the statute book for so long can finally be removed. It means that the Government are now in a better position to go back to the principle of using social services in the way that they should be used—provided that they are properly resourced, as the noble Earl, Lord Listowel, mentioned—and not resort to the criminal justice system.

The Minister prayed in aid the fact that very few young people have had convictions or cautions. However, if there were so few cases, the intervention services could have made a strong effort with those few children and prevented them being landed with a criminal record.

We have here an ideological divide but I shall not take more time to spell it out. I wish to test the opinion of the House.

Division on Amendment 26

Contents 68; Not-Contents 80.

Amendment 26 disagreed.

Division number 2 Policing and Crime Bill — Report (2nd Day)

Aye: 66 Members of the House of Lords

No: 78 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Amendment 27

Moved by Baroness Miller of Chilthorne Domer

27: Clause 16, leave out Clause 16

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office 2:53 pm, 5th November 2009

My Lords, Amendments 27, 28 and 30 to 33 all question whether the clauses dealing with prostitution should stand part of the Bill. The other evening, we had a good debate on the Government's exact position on protecting women or not protecting women. These clauses taken together make me feel extremely distressed that the Government are still going down the wrong path, although they have tabled some amendments—I am sure that the Minister will speak to them—that are a slight deviation off that path, recognising even at this stage that there might be a slightly different route to take.

Clause 16 redefines "persistently" as two times in three months. It is hard to envisage that "persistently" could be so infrequently. We have an argument with that at the outset. Under Clause 17, once a woman has been found to be in need of rehabilitation, to use the Government's words, she will have orders requiring attendance at meetings. The issue is not that people are going to meetings for rehabilitation; if they are doing so voluntarily and they get support, that is all to the good. However, if you do not attend, penalties follow and ultimately you can be detained. We do not feel that that is the right route.

I want to spend a little time on Clauses 19 and 20, which seem to us to be going in the most dangerous direction. The clauses amend the Sexual Offences Act, which already makes kerb-crawling and soliciting criminal offences, although only when the defendant acts with persistence. Clauses 19 and 20 will remove the need for the prosecution to prove persistence; a single incident will suffice. That is most definitely an effort to make prostitution into a more criminal offence. My worry is that that alone will mean that women will seek out remoter and more hidden places where there is not only less likelihood of being caught but also, of course, less likelihood of anyone hearing your cries for help should you need to make them. We feel that these two clauses are deeply disturbing.

The other evening, the Government made much of the fact that the aim of Clause 14 is to tackle demand by men. However, when you look at Clauses 19 and 20 and all the evidence of social difficulties, you see that the problems are caused by men who persistently kerb-crawl. We believe that the emphasis in these clauses on the women is yet again a move in the wrong direction.

Finally in this series of clauses, Clause 21 deals with the closure of brothels. The Government have brought forward an amendment to try to make the situation a little more reasonable, but we feel that what is proposed is a recipe for the women operating from brothels to have every reason to fear raids by the police. A recent raid in Soho provides a good example of why this approach is difficult and dangerous and not constructive in the way in which the Minister has led us to believe the Government are trying to be.

We do not believe that this, as a parcel of legislation, moves in the right direction. I know that is too late for the Government to reconsider, but I hope that they will assess the costs of the direction in which they are heading to the women and to wider society. I beg to move.

Photo of Lord Skelmersdale Lord Skelmersdale - Shadow Minister, Shadow Minister

My Lords, the noble Baroness, Lady Miller, has raised some important questions with this group of amendments. However, it seems to us on these Benches that the wholesale removal of these clauses would do nothing to reduce the incidence of prostitution. Although it has been argued by the many organisations that I have met and in the briefs that I have received that prostitution will be driven underground—indeed, the noble Baroness has repeated that argument today—I simply do not believe that to be so.

Let me spend just a moment looking at the situation in which too many of these unfortunate women find themselves. It is a revolving-door scenario. Loitering with intent leads to a fine, which is paid for by a return to prostitution, usually by going back on the streets. Clauses 16 and 17 taken together will help to break that vicious circle, which is all to the good. Clause 17, for instance, is designed to help women escape from prostitution, the causes of which are many and various. Only the day before yesterday we had a long debate on trafficking. We do not know what proportion trafficked women comprise of the whole, but we know that those in the hands-on sex trade who prostitute themselves to gain extra money might well be doing so to care for their children; there are others who are unable, for whatever reason, to get a job paying the equivalent amount of wages, maybe because of a lack of education, or it may be that they are in this work through a lack of knowledge of the social security system and what it can do for them, perhaps because they are migrants.

Over recent years the administration of benefits has, rightly, become more than just divvying out money to unemployed or disabled people. I acknowledge the tremendous effort that the Department for Work and Pensions has put in and is putting in to help people to become work-ready in mainstream jobs.

The noble Baroness, Lady Miller, does not seem to have appreciated that Clauses 19 and 20 follow a line that the House has agreed in the Welfare Reform Bill. I see nothing wrong with them.

I thank the Minister for government Amendments 29, 34 and 35. As he has said, the first of these ensures that any time spent in prison for breach of a rehabilitative order is kept to a minimum. The other two government amendments also make a small movement in the right direction, and I thank the Minister for them. Closing private premises is a controversial policy with the potential to cause a great number of unintended consequences. Ensuring that the officer in charge of the closure order takes some time to consider and avoid those problems is only sensible. My only concern is that the constable actually does stop and think. How is the Minister going to enforce that?

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench 3:00 pm, 5th November 2009

My Lords, I support the noble Baroness, Lady Miller, in these amendments. If I am realistic, I am not expecting them to be supported across the House but I support them because, as I have said previously, I fear that all these clauses, Clause 14 and so on, are going in the wrong direction.

I worry greatly about using these sorts of methods to compel people who are being employed or employing themselves as prostitutes to go along a more sane and sensible route to earning a living. I am all for encouraging that sort of activity and training, and I would go further: I would give financial incentives so to do and backing in that sort of way. I fear that the form of compulsion in the Bill will just lead to further problems. I expect that there will also be problems with pimps—those behind those who are already on the streets.

For those reasons, should the noble Baroness wish to test the opinion of the House, I will support her. Above all, though, I hope that this might get the Government to think again. Some aspects of what they are doing might well be counterproductive. I admire what they are trying to do; I just think that they are doing it in the wrong way.

Photo of Lord Brett Lord Brett Government Whip, Parliamentary Under-Secretary of State, Home Office, Government Whip, Parliamentary Under-Secretary (Home Office) (Identity) (also Lord in Waiting)

My Lords, I thank all those who have taken part in this short debate. I particularly appreciate the contribution of the noble Lord, Lord Skelmersdale, and I shall seek to answer his point first. When closure notices come into effect, there will be guidance to the police that will ensure that what he fears will not come to pass.

I turn to the amendments in this group, including the government amendments. Amendments 27 to 33 seek to remove a number of the prostitution provisions in the Bill. We believe that they are important provisions, and I will set out in each case why we think the clauses should be retained.

Amendment 27 would remove Clause 16 and, in doing so, hinder important reforms to the law in relation to street prostitution. These reforms were identified as an action point in the Government's co-ordinated prostitution strategy, which followed a large public consultation. The clause will remove the outdated and offensive term "common prostitute". Respondents to the Government's consultation paper Paying the Price, which informed the prostitution strategy, were unanimous in their support for the removal of the term from the statute, and its removal will undoubtedly be welcomed by many working with those involved in prostitution. Indeed, this element of the clause was welcomed by the UK Network of Sex Work Projects during the oral evidence sessions conducted, and is supported by the Josephine Butler Society.

I recognise immediately that this aspect of Clause 16 is not the reason behind the noble Baroness's attempts to remove the clause, but failure to implement this change would none the less be a consequence of this amendment. I see that the noble Baroness's main concern is the statutory definition of "persistence" that it introduces. Currently the inclusion of the term "common" ensures that prosecutions are brought only against those who have been found loitering or soliciting for the purpose of prostitution on a regular or persistent basis.

We need to ensure that the removal of this term does not have the effect of increasing enforcement action against those prostitutes involved in street prostitution. Clause 16 therefore inserts the word "persistently" so it is clear that an offence is committed only by a person who persistently loiters or solicits in a street or public place for the purpose of prostitution.

To ensure consistency, we believe that it is necessary to define "persistence". Clause 16 therefore defines it as conduct that takes place,

"on two or more occasions in any period of three months".

We have discussed in Committee and in another place whether that definition of "persistence" is too wide. However, we maintain that our definition strikes the right balance between providing offenders with the opportunity to change their behaviour and allowing the police to take action if they do not. Indeed, current police practice is generally to arrest a person for this offence only when they have already been found loitering or soliciting twice in the previous 12 months. Our definition is therefore likely in practice to amount to a narrowing, rather than a widening, of the current offence.

We do not think fears that this change could lead to increased enforcement against those in street prostitution are well-founded. As evidenced by a decline in convictions for loitering or soliciting, current policy advocates a welfare-based approach over an approach focused solely on enforcement. Following the implementation of the Government's prostitution strategy, which will increase partnership working between the police and voluntary organisations providing support to those involved in prostitution, there will be greater opportunities for the police to ensure that the welfare approach continues. This is current ACPO policy and will be promoted in a new Home Office circular on policing prostitution.

Amendment 28 would remove Clause 17, which introduces a new penalty for the offence of loitering or soliciting for the purpose of prostitution, building on the modernising approach that we are taking in Clause 16. The clause will provide an alternative to a fine. As the noble Lord, Lord Skelmersdale, has pointed out, too often a financial penalty can have the counterproductive effect of encouraging those convicted of loitering or soliciting to continue in prostitution in order to pay the fine.

We believe that we are introducing a more constructive approach. The order will help those involved in prostitution to address the underlying factors that cause them to continue their involvement in street prostitution and help to connect these people with the support services they need.

There are those who believe it is wrong to criminalise prostitution and those who work as street prostitutes at all. Different views on this were expressed in response to Paying the Price. However, there was no clear consensus to justify a change in the current law. Indeed, a number of respondents felt that the decriminalisation of those in street prostitution sent out the wrong message to young people about the acceptability of street prostitution; it would create a demand for sex markets and control those markets. This is why we believe that it is necessary to maintain the law.

Photo of Lord Skelmersdale Lord Skelmersdale - Shadow Minister, Shadow Minister

My Lords, I am sorry to interrupt the Minister, but he has prompted a thought: when was the last time that the subject of legalising brothels came up in the Home Office?

Photo of Lord Brett Lord Brett Government Whip, Parliamentary Under-Secretary of State, Home Office, Government Whip, Parliamentary Under-Secretary (Home Office) (Identity) (also Lord in Waiting)

I will take note of that question, if I may, and hope to return to it courtesy of the Box before we end this debate.

Given that we have decided to maintain this offence, it is important that we seek to ensure that it can be used constructively and that it does not exacerbate the problems that it is intended to address. It is not our intention that this should be the sole means of ensuring that support is available to street prostitutes, but sometimes criminal justice action may be necessary. When it is, it is important that the court has the option of imposing a more constructive sentence than a fine, and Clause 17 ensures that it does.

Concerns have been raised about the ability of courts to impose an order without the consent of an offender, but there may be some cases where as a last resort a level of compulsion is justified. However, we recognise that the orders are far more likely to be successful when they are imposed with a person's consent and we will emphasise this in guidance.

The process of exiting prostitution may be long, and there may be relapses along the way. The orders are not intended to be the sole means of helping someone leave prostitution, but, in many cases, we hope they will be a start.

We recognise concerns that there are not sufficient safeguards on the police power of detention in Schedule 1. Our Amendment 29 will therefore impose an upper limit of 72 hours on the time that a person can be detained, in addition to the proviso that someone must be brought to court "as soon as practicable". It is clear from Amendment 27 that the concerns of the noble Baroness, Lady Miller, extend beyond the period of detention. I accept that she may wish to see a more broad-ranging agenda of reform, but preventing the order being introduced will not improve the situation. It would simply allow the continuance of the current circumstances in which courts, faced with someone who has been convicted of loitering and soliciting, have little alternative but to fine them.

Amendment 30 would remove Clause 18, presumably as a consequence of removing Clause 17. Clause 17 will reduce the rehabilitation period for those convicted of loitering or soliciting for the purposes of prostitution where they are sentenced under the new rehabilitative orders. It means that, in general, those sentenced to the new orders will be required to disclose their conviction only for the six-month period following it, at which point the conviction will become spent. Six months is the maximum duration of the order. As with all spent convictions, it will remain disclosable in certain limited situations; for example, in the assessment of suitability for some types of employment. Since we therefore wish to maintain Clause 17, we also seek to retain Clause 18, which is an important element of the rehabilitative process that the orders are intended to support.

Amendments 31 and 32 would remove Clauses 19 and 20, which will replace the two existing offences of kerb-crawling and soliciting found in the Sexual Offences Act 1985 and equivalent Northern Ireland legislation. This will allow the police to prosecute an offender on the first occasion on which they are found to be kerb-crawling or soliciting, without the need to prove either persistence or, in the case of kerb-crawling, that the behaviour is likely to cause annoyance to the person solicited or nuisance to others in the neighbourhood. A number of responses to Paying the Price identified kerb-crawling as a significant problem which contributes to the existence of street prostitution by fuelling the demand and is a source of nuisance for communities affected by street prostitution. Consequently, the co-ordinated prostitution strategy and the subsequent Tackling the Demand review made enforcement against kerb-crawling a key priority in fulfilling the wider objective of tackling the demand for prostitution. The amendments to the law which Clauses 19 and 20 will make ensure that this problematic behaviour can be tackled more easily by the police, thereby sending a significant deterrent message.

Concern has also been expressed that these clauses could endanger further those involved in street prostitution—a point made by the noble Baroness, Lady Miller—forcing them to take more risks in more isolated and dangerous locations, where their clients are less likely to be caught by the police if they engender violence or mistreatment. The Government take these concerns seriously. We are acutely aware of the dangers that those involved in street prostitution face every day and of our responsibility to them when legislating in this area. But tolerating kerb-crawling will not address those dangers. We firmly believe that the most effective way of making the lives of those involved in prostitution safer is to take steps to tackle demand while ensuring that support is available to them, with the long-term aim of reducing the levels of street prostitution. Over recent years, convictions for kerb-crawling have increased, while convictions of those found loitering or soliciting for the purposes of prostitution have decreased, reflecting a shift in emphasis which we intend to consolidate.

We do not accept that prostitution is inevitable. A vital part of reducing street prostitution is tackling demand and taking more action against kerb-crawlers. Amendment 33 would remove Clause 21, which introduces a new order allowing courts to close premises associated with certain prostitution or pornography-related offences for three months. The measures will be a vital tool in helping police disrupt criminal activity and protect victims of abuse. Currently, when the police raid premises linked with prostitution or child pornography offences, they may find the premises open again for business within hours or days of the raid. While they have the power to arrest those suspected of committing offences involving prostitution or child pornography, they are able to close the premises only if they are associated with persistent disorder or nuisance or use of class A drugs. The lack of an appropriate closure power means that exploitative activities may restart as soon as the police have left. Giving the police the power to serve a closure notice under Schedule 2 to the Bill is designed to prevent that.

I understand that the noble Baroness and other noble Lords are concerned that allowing police greater powers to target off-street prostitution would be detrimental to the safety of those providing sexual services in brothels. The police will not be able to use the powers introduced by Schedule 2 to close all brothels. Instead, closure notices and orders will target particularly exploitative activities and will be used in relation only to premises associated with certain specified sexual offences. Before a closure order is made, a court must be satisfied that it is necessary to prevent the premises being used for activities related to the offences listed in Sections 47 to 50, 52 and 53 of the Sexual Offences Act 2003. Those are the offences relating to child pornography, child prostitution and causing, inciting or controlling of prostitution for gain found in that Act. The orders can be used only where necessary to prevent activities related to these serious crimes occurring.

Our Amendments 34 and 35 reflect our desire to address concerns about these orders. They add to the conditions already in the Bill by requiring the courts to be satisfied that prior to the issue of a closure notice, which must precede an application for closure order, the police took reasonable steps to identify those with an interest in the premises and gave them a copy of the closure notice.

A closure notice must be served by a police officer before an application for closure order is made at court. One of the conditions that must be met before a police officer, who must be of at least the rank of superintendent or above, can authorise the issue of a closure notice is that he must be satisfied that reasonable steps have been taken to establish the identify of persons who reside on the premises or who have control of, responsibility for, or an interest in them. The amendment would therefore impose a condition on courts to ensure that the police had properly followed this procedure. We hope that noble Lords are assured that, with that extra requirement, we will provide a clear safeguard for those with an interest in the premises, ensuring that the police take steps to identify and inform them of the closure proceedings, which in turn will give those people a chance to attend court to raise any objections to the closure order before it is made.

We believe that a number of the concerns raised in Committee and in this debate have been dealt with. Given the importance of disrupting the criminal activity that can sometimes be associated with off-street prostitution, it is vital that these new powers are granted to disrupt the exploitation and serious criminal activity that exists, not throughout, but certainly in some areas of off-street prostitution. Clauses 16 to 21 are important provisions that should be retained to improve our approach to prostitution. I ask the noble Baroness not to press her amendments, and I commend Amendments 29, 34 and 35 to the House.

In closing, I respond to the question asked by the noble Lord, Lord Skelmersdale. The Home Office considered the merits of a legalised or regulated approach to prostitution, including legislation on brothels, in the Tackling the Demand review published in November 2008.

I should like to add a little something. From listening to noble Lords in Committee and at this stage, I understand that there is some concern that, as the noble Baroness said, while the Government's intentions may be right some of their methods may prove to be wrong in the event. That is particularly addressed to the question of rehabilitation orders and how we deal with prostitution and the prostitute in relation to the law. I offer the assurance that, as soon as is practicable and meaningful, probably within two years of the commencement of rehab orders, we will conduct an assessment of the nature and impact of the current service provision for the rehabilitation of prostitutes, identify and share good practice and consider the most effective way in which to deliver services to those involved in prostitution, including what works as an effective route out, while monitoring the usage of rehabilitation orders as a means of helping individuals out of prostitution.

I hope that, when we see how this works in practice, that will reassure those who fear that, although our destination may be desirable, the route that we are taking is not the most meaningful. We believe that it is, and I commend the Government's proposals.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office 3:15 pm, 5th November 2009

My Lords, I thank the Minister particularly for the last paragraph of his remarks. The offer of an assessment at least offers some comfort to those of us who are very worried about the direction that this Bill has taken. I am grateful to the Minister for the time he has spent in thinking about these issues. The Government have come forward with three amendments. To ask me to be very enthusiastic about Amendment 29, on less time in detention, would be like asking me to be grateful for a very awful present. I am not hugely grateful, because I did not like the provision in the first place. However, the provisions in Amendments 34 and 35 are much more reasonable.

We have had a very full debate on these issues over two days, and I am very grateful to everybody who has shown so much concern from all around the House. When we come back to these issues, I hope that we have much clearer evidence—and I am sure that we will come back to them. I hope that we will be in much less of a muddle, as the noble Lord, Lord Skelmersdale, described it, and that we will be able to see what reforms of the law would be constructive. I appreciate the Minister's comment that removing all the clauses would simply revert the law to where it already is, which we do not believe is very satisfactory either. I beg leave to withdraw the amendment.

Amendment 27 withdrawn.

Clause 17 : Orders requiring attendance at meetings

Amendment 28 not moved.

Schedule 1 : Schedule to the Street Offences Act 1959

Amendment 29

Moved by Lord West of Spithead

29: Schedule 1, page 137, line 22, after "practicable" insert "and in any event before the end of the period of 72 hours beginning with the time of the arrest"

Amendment 29 agreed.

Clause 18 : Rehabilitation of offenders: orders under section 1(2A) of the Street Offences Act 1959

Amendment 30 not moved.

Clause 19 : Soliciting: England and Wales

Amendment 31 not moved.

Clause 20 : Soliciting: Northern Ireland

Amendment 32 not moved.

Clause 21 : Closure orders

Amendment 33 not moved.

Schedule 2 : Closure orders

Amendments 34 and 35

Moved by Lord West of Spithead

34: Schedule 2, page 142, line 43, leave out "two" and insert "three"

35: Schedule 2, page 143, line 17, at end insert—

"(9A) The third condition is that the court is satisfied that—

(a) before the issue of the closure notice was authorised, reasonable steps were taken to establish the identity of any person of a description mentioned in section 136B(7)(b), and

(b) a constable complied with section 136C(3)(d) in relation to the persons so identified."

Amendments 34 and 35 agreed.

Amendment 36

Moved by Baroness Gould of Potternewton

36: Before Clause 27, insert the following new Clause—

"Control of sex establishments: local authorities

(1) Section 2 of the Local Government (Miscellaneous Provisions) Act 1982 (c. 30) (control of sex establishments) is amended as follows.

(2) For subsections (1) to (4) substitute—

"(1) Schedule 3 to this Act shall have effect with respect to the licensing of sex establishments and the requirements of that Schedule shall apply to all local authorities.""

Photo of Baroness Gould of Potternewton Baroness Gould of Potternewton Labour

In moving Amendment 36 and speaking to Amendments 37, 43 and 54, I shall no doubt also refer to other amendments in this group. I start by thanking the Minister for giving me time to express my feelings about why these amendments are important. I am not sure whether I have convinced him, but we will wait and see. I also thank the Public Bill Office for its help in drafting very complicated amendments.

It is encouraging that the Government have listened to the long-time concerns that lap-dancing establishments were licensed under the same category as restaurants and pubs, while clearly being part of the commercial sex industry. This Bill reforms the licensing category to allow lap-dancing clubs to be licensed in the same way as sex shops and sex cinemas—as sex entertainment venues—although the proposed new description does not take into account that, in many clubs, the word encounter would have made the purpose much clearer. However, I believe that the Government's good intentions are seriously undermined in two ways. The Bill is seriously flawed by the new licensing regime being optional for local councils, by having adoptive provisions, and by there being an exemption for those venues holding lap dancing less than once a month—that is, the occasional use exemption.

The Bill as drafted exempts from regulation premises that organise lap dancing no more than 11 times a year. The effect of this exemption is potentially far-reaching. It will make it lawful for any private individual to lay on occasional live sex shows in their own premises, be it a bar or other private premises. It would also be lawful for an impresario to tour with a troupe of performers to different venues without any need for a licence. The upshot of this exemption is that regulation will apply to proper lap-dancing venues but not to unregulated occasional venues, whether in respect of planning, public safety or the safety of performers. Nor will local authorities be able to ensure the conditions that guarantee the safety of those performers.

I believe that the Bill provides a ready-made loophole for large commercial lap-dancing agencies to create a submarket in hiring out their performers. Ironically, the exemption is not supported either by the campaigners for these amendments or by the lap-dancing industry itself—though for very different reasons. However, we believe that the exemption is completely unworkable. There is surely a better way. Paragraph 7 of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982 already permits the licensing authority to grant a waiver, the use of which would also have the benefit of maintaining records of use. This would be far more appropriate than the exemption proposed as it would allow local authorities to consider a range of factors relating to the waiver, such as an adequacy of facilities at the venue or the character of the area.

The adoptive provisions will have the effect of preventing local people from being able to object to prospective venues. It is unfortunate that the Government have not taken note of the view of the Culture, Media and Sport Select Committee or of the petition with 10,000 signatures, both of which demanded that the community have a greater say on applications for lap-dancing clubs. I appreciate that the Government might issue guidance to local authorities but this is only guidance and can easily be ignored in some instances—as I am sure it will be—although we may well be told that that would not be the case.

I am convinced that stronger action is required by government in order to ensure, first, that local authorities conduct full consultations involving not only the local community but the police and others who might be affected; secondly, that this exemption will mean that the gender equality duty can be disregarded, which is both undesirable and probably unlawful; thirdly, that the first the authority will know of a lap-dancing venue opening in its area will be when the venue has opened; and, fourthly, that modern licensing legislation has tended to move away from locally adoptive legislation to national framework legislation. To create an adoptive regime in this way is therefore a retrograde step. The waiver in the 1982 Act could have covered the Government's concerns.

I have two final points. The impact of lap-dancing clubs also extends beyond the clubs themselves. Lap-dancing clubs fuel a sexist culture in which it is increasingly acceptable to treat women as sex objects, not as people. That was recognised in 1979 by CEDAW, a convention which the Government have of course signed up to. Areas surrounding lap-dancing clubs can also become no-go areas for women, with many women and girls reporting that they feel unsafe in their vicinity.

The Lap Dancing Association—a body established in 2008 to coordinate industry opposition to the change of legislation, and which according to the Times has spent large sums in its fight against the reform—is wrong to refute the notion that it operates within the commercial sex industry. I believe that it is also wrong in opposing annual reviews of the licence. It has always been the case with sex establishment licences that authorities can take account of changing circumstances in any area. One year is the right period for that periodic review to take place. Surely it must be right that the public and the police are given the opportunity to raise objections after a year so that any difficulties, problems of harassment, or effects on the community can be taken into account.

If I might make a point on Amendment 47, I believe that it would diminish the legislation that we have in front of us. If this amendment became law, operators could sidestep the new legislation entirely by getting variations of their Licensing Act 2003 licence which take no account of issues such as the character of the area, the appropriateness of premises in a locality or gender equality, thus nullifying this legislation.

My amendments are supported by all the major women's rights organisations, including Rights of Women, the Fawcett Society, Object, and by the major campaigners against violence against women, including Eaves as well as the Equality and Human Rights Commission. Because of the strength of feeling from all sides, both outside and inside your Lordships' House, that the Bill is inadequate in protecting vulnerable women and communities, there has been considerable pressure on me to test the opinion of the House, if not today then at Third Reading. Before I take that decision, however, I shall await the Minster's reply. I beg to move.

Photo of Baroness Gale Baroness Gale Labour 3:30 pm, 5th November 2009

My Lords, I support my noble friend Lady Gould, and am pleased to support Amendments 36, 37, 43, 53 and 54. She has already outlined the reasons for these amendments, but I will mention a few things in addition.

The purpose of the amendments is to close loopholes in the proposed licensing regime for lap-dancing clubs and to ensure a consistent approach across the country. Lap-dancing clubs are currently licensed solely under the Licensing Act 2003, and share the same licence as cafes and karaoke bars. These lax licensing laws mean that, since the introduction of the 2003 Act, it has become a lot easier for lap-dancing clubs to obtain licences, and far more difficult for local communities to have a proper say in whether a licence should be given in their area. The flat exemption for all venues hosting lap dancing less than once a month will leave local authorities powerless to enforce any regulations on such events, and could make it difficult to prevent the growth of lap-dancing sub-markets. Venues hosting lap dancing less than once a month are less likely to have facilities and procedures in place to protect the safety of performers, such as separate changing rooms, CCTV and security. It is therefore crucial that these venues are not exempt from the new licensing controls in order for local authorities to apply conditions that would ensure the safety of performers.

I am pleased to have added my name to the amendments of my noble friend Lady Gould. I hope that the Minister will take note of the strong reasons for the amendments, which I am sure he will. I look forward to his reply.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, we have been very well briefed indeed, not only by the noble Baroness, Lady Gould, but by Object, Fawcett and Liberty, on these provisions. Certainly, they appeal to me, not least because of the far greater choice that they would give to neighbourhoods. Why should they not have a say? They clearly have had nothing like enough say in where these clubs have been already. That is important.

It is not just that, however. Equally, this route seems to provide for not only a national, rather than local, way of sorting out an equitable approach to these things, but one with far less bureaucracy involved. The more I look at this briefing, the more I think that the Minister must be convinced by what has been said. I hope that, when everybody has finished and he gets up, there will be much praise for this idea and he will accept it as a sensible way forward. I thoroughly support it.

Photo of Lord Brooke of Sutton Mandeville Lord Brooke of Sutton Mandeville Conservative

My Lords, I hope this speech will not be a self-indulgent meander down memory lane, but the Bill and the amendments of the noble Baroness, Lady Gould, concentrate on Section 2 and Schedule 3 of the Local Government (Miscellaneous Provisions) Act 1982, in which I take a paternal interest. In 1981 as the Member of Parliament for Soho, I wrote five sides of foolscap in my own hand to the late, great Lord Whitelaw, as he then was not, in his capacity as Home Secretary. I said that there were 164 sex establishments in Soho and that—to abbreviate my argument of long ago—unless the Government did something about it, they would spread throughout the West End, rising first to 264 and then to 364, and central London would be damaged by the expansion. I am told that Home Office officials sought to dissuade their Secretary of State from responding favourably to me because of the inherent complications. However, Section 2 and Schedule 3 of the 1982 Act were the direct consequence of the Home Secretary deciding to agree with me.

Of course, the powers were discretionary and not mandatory. The powers were left to the discretion of local authorities to take up if they wished. Many chose not to, perhaps because they simply encouraged the sex trade to enter their areas. Westminster used the powers to great effect in Soho, which became, for at least a decade, massively the beneficiary of tight controls, welcomed by residents and businesses alike. The amendments of the noble Baroness, Lady Gould, seek to make the powers mandatory, as well as to take certain other aspects out of the Bill. I understand her motivation. I have an instinctive hesitation to impose mandatory responsibilities on local authorities, having a personal preference for letting local authorities take the maximum responsibility on their own account, but I recognise that the noble Baroness, Lady Gould, is adducing arguments which would not have applied in 1982. Naturally, I have no ability to consult the late, great Lord Whitelaw, and certainly no proxy to represent his spirit, but his independence of mind in 1982 might have influenced his judgment on the noble Baroness's issue as well.

Finally, paragraph 5(2) of Schedule 3 to the 1983 Act says:

"This Schedule applies to hovercraft as it applies to vessels".

The noble Lord, Lord West, will know better than me whether lap dancing on hovercraft has health and safety implications.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office

My Lords, I pay tribute to the noble Baroness, Lady Gould, for all her hard work on this issue. Normally we would not want additional mandatory conditions imposed on local authorities, but the noble Baroness has a very good point, which is that it would be better if all local authorities, in this case, took a similar view. If, on one side, a local authority decides to do nothing and another is particularly rigorous, it will create a very difficult situation in the way that she has explained. We support her amendments.

Photo of Baroness Wilkins Baroness Wilkins Labour

My Lords, I also support these amendments. We have had considerable correspondence supporting them and I hope the Minister will listen.

Photo of Lord Skelmersdale Lord Skelmersdale - Shadow Minister, Shadow Minister

My Lords, I have three amendments in this group, relating specifically to the transitional arrangements that the Government intend to apply to existing venues, and to the length of licence that a local authority will be able to award to a venue.

Amendment 42 was tabled in Committee. I have returned to it to allow the Minister to give us a little more detail than he elected to do then. Many owners of relevant venues are extremely concerned about their long-term investment in premises. We have heard from many in the industry who feel that the Government are being far too dismissive about the cost to owners of defaulting on loans that were taken out on the assumption that their licence was safe for several years, and the cost of being forced to convert their premises to other uses. I hope very much that the ongoing consultation on transitional arrangements will be a genuine attempt to take the industry's concerns into account, and that any representations will be seriously listened to.

Amendments 45 and 46 go in a rather different direction from the amendments of the noble Baroness, Lady Gould. Like my noble friend Lord Brooke of Sutton Mandeville, we would prefer to see local authorities given more flexibility, not less. There will be plenty of local authorities in this country for whom these provisions will be entirely unnecessary. Even where there are some relevant venues within a local authority's area, it is not beyond the bounds of possibility that planning restrictions and general good sense can, and do, prevail when there are no objections to their continuing. I therefore would like to see local authorities able to decide whether these potentially expensive and bureaucratic provisions are strictly necessary in their area, and whether they feel they have to go through the rigmarole of licence renewal every year.

The noble Baroness, Lady Miller, has tabled an interesting amendment with regard to exemption for infrequent use and I look forward to the Minister's response. In the mean time, I take the opportunity to probe him a little further on the power in sub-paragraph 4 of new paragraph 2A in Schedule 3 to the Local Government (Miscellaneous Provisions) Act for the national Government to amend the monthly exemption. Under what circumstances would this power be used? Surely such discretion would be better left to local authorities which would be better placed to know whether the current legislation is causing them problems.

Finally, I would like to comment on the government amendments in this group. The noble Lord has moved a very small way and at least has addressed the implication of contact in the term "encounter". However, it was the reference to sex that women working in this entertainment industry most objected to. It is disappointing that the Government have not appreciated this. It is very hard not to feel sympathetic to the dancers. Since a film must show,

"clear images of real sex, strong fetish material or very strong sexual images" before it is considered necessary to slap a restricted rating on it and remove it to a cinema licensed under the Local Government (Miscellaneous Provisions) Act, it appears that in many cases, if the dancers were performing in a film, it would lead to, at most, an 18 certificate from the British Board of Film Classification.

Of course, not all clubs providing this sort of entertainment are safe and legal and I have to agree with the wish of the noble Baroness, Lady Gale, to improve the law to ensure that dancers are kept as safe as possible. I also agree that the location, number and type of clubs offering erotic dancing is a matter in which local communities should have a say, but I do not see how labelling dancers as sex workers will achieve either of these things.

Photo of Lord Brett Lord Brett Government Whip, Parliamentary Under-Secretary of State, Home Office, Government Whip, Parliamentary Under-Secretary (Home Office) (Identity) (also Lord in Waiting)

My Lords, I thank all noble Lords who have participated in this debate and note the strength of feeling in a number of quarters on these issues. Amendments 36, 37, 43, 52, 53 and 54 seek to address issues related to the optional nature of these provisions and the exemption of infrequent events. I am sympathetic to the concerns expressed by noble Lords on this matter. However, the Government continue to believe that it is appropriate that these provisions remain optional for local authorities and that they contain an exemption for infrequent events. Keeping the provisions optional for local authorities recognises that while the presence of sex establishments can raise concerns in many communities, the issues are not necessarily relevant to all communities. A number of local authorities chose not to take action under the provisions of the 1982 Act and some local authorities may choose not to take action under the provisions of the Bill. However, I listened with care to the contributions of noble Lords, particularly those of the noble Baronesses, Lady Gould and Lady Gale. I appreciate the concern that these provisions could provide a postcode lottery for local people. Therefore, I commit to bring forward an amendment at Third Reading to address concerns regarding the lack of a statutory duty on local authorities to consult with local people on adopting these powers when they come into force. This, of course, means consulting with the police and local communities. I hope that this will overcome the fear that lap-dancing establishments can be established against the wishes of, or in ignorance of the wishes of, local communities.

On Amendment 43, we do not agree that premises which provide relevant entertainment on a one-off or infrequent basis, such as a strippergram booked for a birthday party in a pub, should be classed as sexual entertainment venues and regulated in the same manner as lap-dancing clubs that offer relevant entertainment every night, or even every week. For this reason, the exemption should remain for such infrequent events, which will continue to be regulated under the Licensing Act 2003.

Amendment 52 also appears to address concerns regarding the exemption by introducing the concept of a personal licence. However, this amendment is unnecessary and is not workable in practice. Currently, sex establishment licences, although granted to a named individual, regulate the provision of entertainment or services at particular premises. Therefore Schedule 3 to the 1982 Act is designed—as the noble Lord, Lord Brooke, said—for granting or refusing licensing and issuing of conditions based on the location and character of known premises. While the local authority could impose general conditions on a personal licence, it would be unable to impose conditions specific to a particular premises.

On the approach proposed by the noble Baroness, a person would need both a personal licence and permission under the 2003 Act if they wished to provide more than six events at premises that were not sex entertainment venues. This would be likely to cause significant confusion about which legislation was responsible for regulating the provision of relevant entertainment in these circumstances. While the Government firmly believe that the exemption for infrequent events is a proportionate measure and should remain in Clause 27, I can reassure noble Lords that should it become clear that it is being exploited in a way that is obviously against the wishes of local people, they will have the power to tighten the exemption or remove it altogether.

Amendment 42 would render these reforms virtually useless and prevent local people having a greater say in the regulation of many existing venues and other venues that may open in the future. That amendment goes even further than the changes that the industry has been calling for. It is the Government's intention that where a local authority adopts this legislation, all venues in the area offering relevant entertainment should be regulated under Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982. The transitional arrangements mentioned by the noble Lord, Lord Skelmersdale, will set out the process for migrating existing businesses to the new regime set out in secondary legislation. In line with the commitment we made in Committee the Government are publishing a consultation on these arrangements that outlines proposals for dealing with existing lap-dancing clubs.

The Government are sensitive to the concerns of industry about the impact that these reforms may have on existing businesses. Noble Lords have expressed these concerns today and in Committee and we have met with industry representatives on this matter. However, we are conscious that the concerns of industry must appropriately be balanced with the legitimate concerns of local communities, which these reforms aim to address.

Therefore, given that we know of instances whereby under the existing regime lap-dancing clubs have been allowed to open despite widespread local opposition, we are proposing that all lap-dancing clubs be required to apply for a sex establishment licence if they wish to provide relevant entertainment. This will give local authorities when they adopt this legislation the necessary powers to deal with local concerns regarding existing businesses.

We recognise that existing businesses will need time to comply with the new regime. Therefore, we are proposing a transitional period of one year from the time that the local authority adopts the legislation. During that period, existing venues will be allowed to continue to operate under their existing permissions so that they have time to comply.

In the consultation paper, we made clear our intention that the new category of sex establishments introduced by Clause 27 will replace the existing and largely overlapping category of sex-encounter establishments which applies in the London boroughs, where they have adopted the relevant provisions. We intend to repeal the sex-encounter establishment category in its entirety, using the power to make consequential provisions under Clause 111. Clearly, we would not wish to have two definitions that attempt to regulate the same or similar types of activity in this area. The consultation will run until 14 December and we will look carefully at the responses before making any final decisions. I hope that I have explained why the Government are not able to accept Amendment 42 and that noble Lords will not move it.

The Government also have reservations about Amendments 45 and 46. As I explained in Committee, requiring businesses to renew their licences on an annual basis will not be overly burdensome or result in premises losing their licences arbitrarily. Sex shops and sex cinemas are already subject to annual renewal requirements and I am aware of no evidence that this has been problematic. It is true that, where the legislation is adopted, lap-dancing clubs and similar venues will be required to apply for a sex establishment licence and will have to renew that licence each year. The potential costs to industry are set out in the impact assessment that we have published. However, while it is right that we acknowledge the potential impact on business, we should not forget the benefits to local communities.

Lap-dancing clubs offer entertainment that is fundamentally different from that offered by other entertainment venues such as nightclubs and pubs. The annual renewal process ensures that local people have the opportunity to raise concerns on an ongoing basis and allows the process of considering a licence for renewal to take into account any changes in the context or circumstances of communities. The grounds on which local authorities can refuse to renew a licence are set out in paragraph 12 of Schedule 3 of the 1982 Act. If a local authority decides to refuse to renew a licence on any grounds, it must explain the reasons for doing so. There is no evidence that a local authority will refuse to renew a licence unless it has good reason. However, if an applicant is not satisfied with the reason provided, they can seek a judicial review. On these grounds, I hope that noble Lords will not press Amendments 45 and 46.

I will respond to a point made by the noble Lord, Lord Skelmersdale. We will consider whether to use the power to remove the exemption in consultation with local authorities. If they indicate that there is a serious problem with the exemption, we will be able to use that power to ensure that problems are not replicated across the country. I hope that that meets with the approval of the noble Lord.

The decision to change the name to "sexual entertainment venue" goes some way to meeting concerns. It would be difficult to claim that lap-dancing clubs do not have a connection with sex, at least in the male mind, in the same way that "sex cinema" and "sex encounter venue" do. However, "sexual entertainment venue" is a more neutral term that I hope will be less offensive and avoid giving the impression that sex is for sale at those venues. I hope that the amendments put forward by the Government address the concerns that have been raised by noble Lords.

Photo of Baroness Gould of Potternewton Baroness Gould of Potternewton Labour

My Lords, I thank everybody who has spoken today, and also the many noble Lords who cannot be here but who have indicated their support for my amendment. I regret that the Minister has not accepted it. The Government have failed to appreciate the great strength of feeling on this issue.

I accept and appreciate that the Minister has said that they will think again on one or two aspects, and will come back to the matter at Third Reading. I will read carefully what he said, because he covered many overlapping amendments in his reply. I was unhappy about the reference to creating a balance between industry and the community, with no mention of the safety of the women working in the clubs. That is a fundamental issue that the Government are failing to understand. However, I will wait and see what the Minister comes back with and hope that the provisions are as wide-reaching as we would hope.

I will not divide the House today, but that does not preclude me from doing so at Third Reading if I do not feel satisfied with the replies. I beg leave to withdraw the amendment.

Amendment 36 withdrawn.

Clause 27 : Regulation of lap dancing and other sex encounter venues etc

Amendment 37 not moved.

Amendments 38 to 41

Moved by Lord West of Spithead

38: Clause 27, page 24, line 24, leave out "sex encounter venue" and insert "sexual entertainment venue"

39: Clause 27, page 24, line 27, leave out "sex encounter venue" and insert "sexual entertainment venue"

40: Clause 27, page 24, line 28, leave out "sex encounter venue" and insert "sexual entertainment venue"

41: Clause 27, page 24, line 38, leave out "sex encounter venues" and insert "sexual entertainment venues"

Amendments 38 to 41 agreed.

Amendments 42 and 43 not moved.

Amendment 44

Moved by Lord West of Spithead

44: Clause 27, page 26, line 5, leave out "sex encounter venue" and insert "sexual entertainment venue"

Amendment 44 agreed.

Amendments 45 and 46 not moved.

Amendments 47 to 51

Moved by Lord West of Spithead

47: Clause 27, page 26, line 37, leave out "sex encounter venues" and insert "sexual entertainment venues"

48: Clause 27, page 26, line 38, leave out "sex encounter venues" and insert "sexual entertainment venues"

49: Clause 27, page 27, line 32, leave out "sex encounter venues" and insert "sexual entertainment venues"

50: Clause 27, page 27, line 34, leave out "sex encounter venue" and insert "sexual entertainment venue"

51: Clause 27, page 27, line 39, leave out "sex encounter venue" and insert "sexual entertainment venue"

Amendments 47 to 51 agreed.

Amendment 52 not moved.

Schedule 3 : Lap dancing and other sex encounter venues etc: transitional provision

Amendments 53 and 54 not moved.

Clause 28 : Increase in penalty for offence

Amendment 55

Moved by Lord West of Spithead

55: Clause 28, leave out Clause 28

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, the amendment would remove Clause 28 from the Bill. That clause increases the maximum fine for refusing to comply with a police officer's instructions to stop drinking and/or to surrender alcohol in a designated public place from £500 to £2,500. We have listened to the concerns of noble Lords expressed in Committee about the fact that the current maximum fine had never been imposed. They are right, so I accept that the practical impact of increasing the maximum fine was likely to be minimal. Therefore, I am content that this clause be removed from the Bill. I invite noble Lords to accept the amendment. I beg to move.

Amendment 55 agreed.

Clause 31 : Offence of persistently possessing alcohol in a public place

Amendment 56 not moved.

Clause 32 : Directions to individuals who represent a risk of disorder

Amendment 57

Moved by Lord West of Spithead

57: Clause 32, page 29, line 29, leave out from beginning to "for" in line 30 and insert—

"(1) Section 27 of the Violent Crime Reduction Act 2006 (c. 38) (power to require person to leave a public place etc) is amended as follows.

(2) In subsection (1)"

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, Amendments 57 and 58 would allow the police to take a young person home or to a place of safety if they have been issued with a direction to leave and the police reasonably suspect that they are under 16. We have listened to the concerns expressed by noble Lords in Committee about the welfare and safety of young children issued with a direction to leave. We can all agree on the importance of safeguarding such vulnerable people. Therefore, in the light of our earlier debate, I have tabled these amendments so that when the police issue a young person with a direction to leave, and they suspect that the young person is under 16, the police will be able to take them home or to a place of safety.

Under the Children Act 2004, the police already have a statutory duty to have regard to the need to safeguard and to promote the welfare of children when discharging their functions, including directions to leave. These amendments offer an important additional safeguard to protect such children without making the power to issue directions to leave any less effective for tackling alcohol-related problems. I invite noble Lords to accept the amendment. I beg to move.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office

My Lords, my noble friend Lady Walmsley, who moved our amendments in Committee, will be particularly grateful that the Government have listened so carefully and returned with something so satisfactory.

Amendment 57 agreed.

Amendment 58

Moved by Lord West of Spithead

58: Clause 32, page 29, line 31, at end insert—

"(3) After subsection (4) insert—

"(4A) A constable who gives a direction under this section may, if the constable reasonably suspects that the individual to whom it is given is aged under 16, remove the person to a place where the person resides or a place of safety.""

Amendment 58 agreed.

Clause 33 : General licensing conditions relating to alcohol

Amendment 59

Moved by Lord West of Spithead

59: Clause 33, page 29, line 33, leave out "general" and insert "mandatory"

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, I shall take Amendments 59, 61, 63, 65 and 105 to 127 together. Amendment 61 inserts a new clause which would mean that members of a licensing authority are added to the definition of an interested party. In particular, that would allow them to object to a licence application or to initiate a licensing review, powers which they do not have a present. That would give them more flexibility to decide what action to take against irresponsible premises locally.

During the debate on Schedule 4 in Committee, noble Lords raised concerns about the limitations on the role of members of a licensing authority. In making these changes we have listened to the concerns of noble Lords and of the Local Government Association and others throughout our consultation events held during the summer. In deciding to table Amendment 61, we have also listened carefully to the feedback at the consultation workshops held over the summer. Both licensing authorities and the licensed trade were concerned about the practicalities of imposing licensing conditions on groups of premises at once. Amendments 63 and 65 are responding to those concerns as they would remove the provisions in Schedule 4 which allow licensing authorities to impose general licensing conditions from a prescribed list on two or more premises at once where certain conditions are satisfied.

Amendments 59, 106, 108 and 110 to 127 are consequential to Amendments 63 and 65 and simply remove references to the locally applied conditions from Clause 33 and Schedule 7. Amendments 105, 107 and 109 are minor and technical amendments to the Licensing Act 2003 to take account of the Legislative Reform (Supervision of Alcohol Sales in Church and Village Halls &c) Order 2009, which has come into force since the Bill was introduced. These amendments ensure that, unless the order specifying the new mandatory conditions states otherwise, they will also apply to community premises. I believe that these amendments clearly demonstrate that we have listened and responded to the consultation response and to the opinions of those in this House. I beg to move.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office 4:00 pm, 5th November 2009

My Lords, our Amendment 62 is in this group. It returns us to minimum pricing or some other way of ensuring that alcohol is not sold at such a low price as to create all the problems we have seen from vodka, white cider and so on being sold at well below cost. This amendment merely gives the interested party or responsible authority the power to apply to the licensing authority to have a licence reviewed when it believes that alcohol is persistently being sold at below cost price. I realise that at this stage of the Bill, the Government are not likely to be minded to accept this amendment, but we need to look at all the possible ways to address this issue. There is no doubt that below-cost selling is at the heart of creating a lot of the problems that we see and that we debated in Committee. I have tabled this amendment as an alternative route that the Government might like to take at some time.

Photo of Lord Rosser Lord Rosser Labour

My Lords, my Amendment 64 is in this group. I wish to raise concerns that have been expressed by the Central Council of Physical Recreation and by community amateur sports clubs about the likely impact on sports clubs of the schedule on general licensing conditions relating to alcohol and the associated draft code on alcohol sales. It appears that the impact will be to put further pressure on the finances of voluntary sports clubs and the goodwill of the volunteers who run them, on whom such clubs are dependant. The primary purpose of sports clubs is the promotion of sport, and all hospitality and catering income is reinvested in this purpose. The vast majority of voluntary sports clubs sell alcohol to members and guests only, primarily after sporting events. I suggest that there is no evidence of poor practice in the sale of alcohol through, for example, promotions to encourage heavy or speedy drinking, nor of alcohol-related disorder at sports clubs.

It appears that the mandatory code will place a disproportionate burden on sports clubs, which do not retail significant amounts of alcohol or contribute to social disorder. In some instances, sports clubs employ part-time bar staff, but in many instances, the operation is run entirely by volunteers. These new measures will place an additional responsibility on them, which will divert them from their primary purpose of providing sporting opportunities, and could reduce the club's capacity to provide positive physical activity in a social environment that contributes to well-being and community cohesion.

The key points of the additional workload are identifying a representative selection of beverages, researching unit values, which are not currently provided on all alcoholic beverages and therefore would need calculation, and preparing price and unit value information. Clubs will also be required to incur the cost of producing price and unit value lists. While the additional workload may not in itself seem overly onerous, it needs to be borne in mind that this is in the context of a range of other regulatory requirements facing voluntary clubs from child protection through to the purchase of a music licence. In totality, these time and monetary costs can present a real challenge to the viability of clubs, as volunteers can be deterred by the range of tasks that often have no direct bearing on sport, and slender margins—the average surplus of a sports club is £1,300 per annum—are eaten into. Will the Minister indicate the Government's assessment of the additional work that will arise for secretaries of voluntary sports clubs as a result of the impact of the terms of this schedule?

I appreciate that there is a need to minimise alcohol-related disorder, and that this could be an issue in high-volume drinking establishments in which it might be helpful to offer customers advice about the alcoholic strength of different drinks, but there is no evidence of a problem in sports clubs requiring this action. It would be better for club volunteers to spend the time and resources that they have to develop further the work of such clubs in the community. Bearing in mind that there are also sanctions for failing to comply, there is a real risk of deterring volunteers from operating sports clubs' bars for fear of a significant fine—or even, at the top end, of imprisonment—rather than reducing alcohol-related disorder by applying the code to sports clubs.

Once again, it would be helpful if the Minister could say what the evidence is that leads him to believe that there is a problem with alcohol-related disorder in community sports clubs that necessitates extending all the provisions of the schedule and the code to such clubs. Are there not already measures in place for tackling alcohol-related disorder through alcohol disorder zones that are not always utilised as extensively as they might?

Amendment 64 would remove some 5,000 registered community amateur sports clubs from the requirements of the part of the schedule to which it refers and of the associated draft mandatory code of practice, in particular condition 6, as the schedule's provisions on the supply of alcohol do not seem to be justified for community amateur sports clubs, would create further workload pressure on hard-pressed club secretaries and other voluntary officers, and would ultimately adversely affect the finances and the running of such clubs that provide a service to the community.

Photo of Lord Skelmersdale Lord Skelmersdale - Shadow Minister, Shadow Minister

My Lords, there is no question that the current licensing regime is insufficient to regulate alcohol sales. You need only to go out to any number of our town or city centres on a Friday or Saturday night to see that irresponsible and damaging drinking is a serious and growing problem, but not—I agree with the noble Lord, Lord Rosser—in responsibly run sports clubs. It is inevitable that a responsible club will look after its members and police the situation to ensure that it does not lose its licence, so I go a long way in agreeing with what the noble Lord has said.

The Government cannot decide what they should do to address this problem. It is no good using a battleship anchor to anchor a dinghy—a point which the noble Lord, Lord Rosser, might have made. Over their time in government, we have seen the licensing laws relaxed to being almost non-existent, with local authorities having no control over the premises operating in their area. Now that the damage caused by policies such as 24-hour licences is being felt, the Government are struggling to come up with policies to address the natural consequences without being forced to admit that their entire licensing structure needs review.

The Government's consultation on the conditions that might be imposed shows how little they understand the problem. It included, for example, a suggestion that retailers should use robust age-verification systems—a suggestion that rang rather hollowly with an industry that launched the Challenge 25 scheme in January, which set an industry best-practice standard that anyone who appears to be under 25 should be asked for age verification. This launch was rapidly followed by a Home Office announcement that the old system of Challenge 21 should be made mandatory. Rather than freeing local authorities to respond to the challenges that they are experiencing on the ground, the Government have removed any possibility of seeing these proposals being implemented in a proportional, targeted manner. They clearly have decided not to trust local authorities to use their discretionary powers wisely, but are resorting to top-down, centralised micromanagement.

Turning to the amendment proposed by the noble Baroness, Lady Miller, I like the amended version much more than her previous one. I agree entirely that the sale of alcohol at below cost prices is a serious problem. If I were to quibble, it would be that the amendment does not go quite far enough, as it is Conservative Party policy that the sale of alcohol at below cost price should be banned outright. In Committee, the Minister came back with a pretty unsatisfactory response, which he has followed with a truly baffling letter.

In Committee, I was able to agree with him that cheap alcohol is only part of the problem, although I should like to point out that, as the Scottish Government have realised, it is a very serious part. What I find extraordinary is the Minister's insistence that, although there is clear evidence of low prices being a cause of binge drinking, the recession is to be used as an excuse for not taking action. Supermarkets are in the business of making profit. If they use alcohol as a loss leader, it must be because extremely low-cost alcohol encourages people to buy other goods that they otherwise would not consider. Removing such irresponsible offers would save householders money, as well as immeasurably improving their health.

Similarly, the Government expressed concern for responsible drinkers. I agree with that concern, but we are clearly not talking about responsible drinkers; we are talking about people buying a crate of super-strength lager, or vodka, as the noble Baroness said, at rock bottom prices. How that is meant to equate to responsible drinking, I simply do not understand. The drop in alcohol prices over the past 30 years has meant that we are returning to a Hogarth-like situation where it is cheaper to buy a strong alcoholic drink than a non-alcoholic alternative. With such incentives, it is no surprise that so many people drink irresponsibly.

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, Amendments 60 and 66 would remove Clause 33 and Schedule 4, which contain provisions about the mandatory code. I recognise that large numbers of retailers sell alcohol responsibly, but there are still too many irresponsible practices and promotions in operation, which simply should not happen anywhere and need to be tackled at a national level.

Earlier this year, as was mentioned by a previous speaker, we consulted on which activities should be tackled or required at a national level. We have received more than 7,000 responses and the initial findings suggest that the majority of respondents consider that these types of practices need tackling at a national level. There is also strength of feeling that the mandatory conditions need to go further than just banning irresponsible promotions, which is what Amendment 60 would limit the Bill to, and put in place national conditions that promote best practice, responsible trading and consumer choice. I will not go into detail here on what all these might be, but they are set out in our consultation. Our consultation events also highlight the concerns about local conditions, to which we have listened and responded, by tabling Amendments 61, 63 and 65, to which I spoke earlier. There is a clear need to take action at national level, which is supported by our consultation findings. For that reason, I would ask the noble Lord not to press his amendments.

Amendment 62 would allow responsible authorities and interested parties to make representations to request a licensing review if a licensed premise is persistently selling alcohol below cost. It would then also allow the licensing authority to take action against that premises, such as modifying the licence, adding conditions or even suspending or revoking the licence. This summer, we sought views on banning below-cost selling in our public consultation on the code of practice, but it would be wrong to take any action on the issue until we have fully considered the responses and the impact that such a move would have on the majority of people in this country who drink alcohol responsibly. It would be quite unfair if responsible drinkers had to pay significantly more for their alcohol because of a small minority of people who drink irresponsibly. We are doing more research into this. We need to bolster the evidence base—the noble Baroness, Lady Miller, and the noble Lord, Lord Skelmersdale, touched on this—about the impact of cheap alcohol on crime and disorder, particularly the night-time economy.

That will also address so-called pre-loading. We also need to do further work on the economic impact of action on pricing, and we will use the new information to move forward, but a lot of work needs to be done and one cannot draw conclusions from some of the evidence. For those reasons, action should on pricing should not be taken in this Bill and I invite the noble Baroness not to press her amendment.

On Amendment 64, I thank my noble friend Lord Rosser for making me aware of his concerns, which to an extent I share. However, there is no doubt that in deciding whether to grant exceptions, we need to strike the right balance between not imposing unnecessary burdens on premises and not inadvertently weakening the mandatory code by creating an easy way to circumvent it. I disagree with my noble friend when he says that the code will place a disproportionate burden on businesses. The Government have not yet taken a final decision on what will be in the code precisely because we are mindful of its impacts. It is therefore wrong to suggest that the code will be costly when its content has not even been finalised and we are still negotiating and talking about it.

My noble friend says he does not believe that there is evidence of poor practice in the sale of alcohol in sports clubs. All I would say to him is that we have no evidence to suggest that all sports clubs are selling alcohol responsibly and are not causing problems. Indeed, within walking distance of my cottage in the country, there is a cricket club that does not even have a cricket square, but where one can get a drink pretty much all the time. I shall say no more than that. Given the importance of these issues, it would be inappropriate to grant any exemptions until we have had the opportunity fully to analyse all 7,000 responses, which is what we are doing at the moment.

I also have concerns about placing exemptions in the Bill as suggested in this amendment. If the mandatory conditions are to be effective, the decision to exempt certain premises should be made on a condition-by-condition basis. If the list of mandatory conditions is changed or updated, it will not always be appropriate for the same type of premises to be exempt. On that basis, I ask my noble friend not to press his amendment, and I hope that the government amendments will be accepted.

Amendment 59 agreed.

Amendment 60 not moved.

Amendment 61

Moved by Lord West of Spithead

61: After Clause 33, insert the following new Clause—

"Individual members of licensing authorities to be interested parties

(1) In section 13(3) of the Licensing Act 2003 (meaning of "interested party": premises licences) after paragraph (d) insert—

"(e) a member of the relevant licensing authority."

(2) In section 69(3) of that Act (meaning of "interested party": club premises certificates) after paragraph (d) insert—

"(e) a member of the relevant licensing authority.""

Amendment 61 agreed.

Amendment 62 not moved.

Schedule 4 : General licensing conditions relating to alcohol

Amendment 63

Moved by Lord West of Spithead

63: Schedule 4, page 154, line 26, leave out paragraph 3

Amendment 63 agreed.

Amendment 64 not moved.

Amendment 65

Moved by Lord West of Spithead

65: Schedule 4, page 157, line 29, leave out paragraph 6

Amendment 65 agreed.

Amendment 66 not moved.

Clause 34 : Injunctions to prevent gang-related violence

Amendment 67

Moved by Baroness Miller of Chilthorne Domer

67: Clause 34, page 30, line 5, leave out "for either or both of the following purposes"

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office 4:15 pm, 5th November 2009

My Lords, we move to the provisions for injunctions to be imposed on people who may be part of a gang that intends to carry out violence—in the Government's terms. The point of Amendments 67 and 68 is to explore further the issue we touched on in Committee. The Bill provides that an injunction can be imposed on an individual for their own protection. We questioned that at the time and we were not happy with the Minister's response. The Government are making a big departure if they impose injunctions on people in order to protect them. We have a perfectly good system of statementing people for their own protection when they are not capable of making a decision, but this is quite different, because these people are capable of doing so. Although the Government's intentions may be good—I am not underplaying the issue of gangs and gang violence at all—that is a very big step. The nanny state is saying, for example, "I am going to look after you by confining you to your house".

Amendment 69 is prompted by the remarks of the noble and learned Lord, Lord Mackay of Clashfern, about definitions in the Bill. He made interesting contributions about "threat of violence" and "intention of violence". The amendment attempts to get away from the concept of violence and suggests that a more reasonable definition of "gang" might be a group of people formed for the purposes of carrying out criminal activity, which could well include violence. We are interested to explore further, even at this stage, whether the Government have got their definitions correct. We have deep concerns about this part of the Bill. I beg to move.

Photo of Lord Skelmersdale Lord Skelmersdale - Shadow Minister, Shadow Minister

My Lords, I seem to have spent most of the afternoon arguing against the miscellaneous points made by the noble Baroness, Lady Miller. I am glad on this occasion to be able to support her—in part, anyway.

Notwithstanding the government amendments, for which I thank the Minister, I have a great deal of sympathy for the noble Baroness's concerns. I agree with her that the novelty of imposing constraints on adults for their own protection makes a measure of post-legislative scrutiny a necessity. I share her dislike of the Government's definition of a gang, although, as I said in Committee, I would prefer her alternative to specifically mention anti-social behaviour.

Those weaknesses could easily lead to two equally unattractive outcomes. The injunctions may turn out to be impossible to implement and subject to legal challenge. Alternatively, the lack of detail in the drafting of Clause 34 will tempt police forces to use injunctions inappropriately, either applying them to innocent bystanders or using them in place of arresting and then charging serious criminals who should be prosecuted for a criminal offence.

As to what level of post-legislative scrutiny would be appropriate, I do not quite gel with the noble Baroness, but almost. We all know that there is a problem with gang violence in some communities in this country and that the police certainly need the proper tools to tackle that. We want the Government to take steps to improve the provisions once any failings had become apparent, not just give up and return to the current, clearly inadequate, situation.

One year is far too little time to see how the injunctions work. Not only can they be imposed for as long as two years in the first instance, but I sincerely hope that there will not be so many taken out as to give enough examples of their operation in the first year to allow the Government to conduct a proper review. We would therefore prefer a review of how the injunctions are working after, say, three years. Such a review should be made public and laid before Parliament in order for a proper debate to be held with all the evidence to hand. With that speech, I hope the noble Baroness will feel able to give me at least half marks.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, I support the amendments. Clearly we have growing concerns about anti-social behaviour and the activities of gangs, but I agree with the noble Baroness that it is odd to apply a restriction for their own safety on someone who is the subject of such an attack. Given that we are concerned about that growing area and that it is felt that anti-social behaviour orders have been used indiscriminately and inappropriately, if the measure goes through, I support the idea of a review of how the Government's ideas are working out in practise. That might give us hope that anti-social behaviour orders, if they are still in existence in the future, are used for sensible occurrences. I support the amendment and I hope the Minister will satisfy everyone who has spoken.

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, a number of amendments have been proposed to Part 4 on gang injunctions. Before I turn to them, I should like to thank noble Lords for the constructive debate that we had in Committee. I have, as promised, returned today with amendments on issues raised in Committee and I thank the noble Lord, Lord Skelmersdale, for his thanks for that. The noble Baroness, Lady Miller, has also tabled an amendment, to which we will return later, relating to a sunset-type clause on the gangs provisions in Part 4. This idea seems to me to have a great deal of merit and I intend to take it away and fully consider it. I agree in principle with the idea of some kind of formal review and will return with amendments to this effect at Third Reading.

Amendments 67 and 68 relate to the use of injunctions for the protection of the respondent. We have to remember that it is not just the target gang members who fall victim to reprisal gang attacks; Letisha Shakespeare, Charlene Ellis and Rhys Jones are tragic examples that that is not the case. Where the police have intelligence of likely reprisal attacks, such as in Birmingham and Liverpool, with these injunctions they could restrict the movements of the likely target and manage the risk posed to the community. In Committee, I mentioned the case of someone who, amazingly, kept putting themselves in harm's way. It is hard to understand why people do that, but they do.

Protecting the individual on the injunction from gang-related violence also protects the community. Restricting the movements of a gang member who is a target for other gangs will protect innocent community members by preventing gang-related violence. I accept that injunctions will most likely be sought to prevent a gang member from engaging in gang-related violence. However, it is not always possible for it to work in this way, given the reality of gang conflict. I understand the nervousness about this, but we have to face the practicalities and realities. It may not be possible to identify all the likely offenders to the relevant standard of proof. In these situations, it is much quicker, more practical, safer and better for the community to remove the target than to remove the large group of potential offenders.

Amendment 69 would require the police force or local authority applying for an injunction to show that the person against whom the injunction was sought had committed violence within a group which was formed for the purpose of criminal activity or which had engaged in criminal activity together. I consider it very unlikely that a gang would have a written constitution of its aims, which would probably be required for a court to be satisfied under paragraph (a) in the amendment. It would also be extremely difficult to prove that a group of people had got together for the specific purpose of committing criminal acts.

It therefore seems to me that these amendments would render the provisions completely unworkable, as injunctions could not be obtained against the large majority of gang members whom we would wish to target.

I understand that this is a tricky issue and that we have a responsibility to do everything possible to ensure that these provisions cannot be used against innocent individuals or groups. The Government take this responsibility extremely seriously and I can assure your Lordships that we have considered the matter at great length. As the legislation stands, I consider that this process will allow injunctions to be obtained only against the individuals whom we are targeting. I do not believe that ASBOs can be used in place of these provisions or that these provisions will be used in place of the criminal law. In addition, we remain committed to providing in guidance any further possible clarification on targeting the provisions. For these reasons, I ask that these amendments should not be pressed.

I turn to the amendments proposed by the Government. We were initially resistant to placing a limit on the length of prohibitions or requirements that could be imposed by the courts, as we considered that the courts were best placed to decide on a case-by-case basis the appropriate length of time for an injunction and its prohibitions and requirements. However, having considered the weight of arguments made during our extremely productive debates in Committee, I propose government Amendments 70, 73 and 76, which have the effect of limiting injunctions to a maximum period of two years. These amendments will work in conjunction with the amendments that I am proposing that will introduce a mandatory annual review where an injunction lasts in excess of one year, to ensure that the respondent is afforded a greater degree of legal certainty when they are given an injunction.

Amendments 71, 72 and 77 require the court to set an annual review hearing where prohibitions or requirements are in place for longer than that one year. I propose these amendments in response to concerns that restrictive prohibitions could conceivably have been placed on an individual for an indefinite period; that should not be the case. Again, that was well argued by noble Lords in Committee. They are made in conjunction with the amendments I propose that limit the injunctions to two years and provide a good reinforcement of Clause 41(2), which makes it clear that a respondent is entitled to apply to the court for their injunction to be varied or discharged.

Amendment 78 proposes to insert a new subsection (2A) into Clause 47, which would require the Secretary of State to consult the Lord Chief Justice and any other relevant persons prior to the publication of guidance when it is issued or revised. As I made clear in our Committee debates, we very much agree with the principle that those with an interest in these matters should be consulted in the course of writing the guidance that is to be issued. Given some of the areas that the guidance is to address, we agree that it is particularly important for the Lord Chief Justice of England and Wales to be consulted, so that position is named in the amendment. I am grateful to noble Lords for convincing me of the case for these government amendments, and I commend them to the House.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office 4:30 pm, 5th November 2009

Although there are three distinct groups on the Marshalled List, it has been helpful to hear the Government's conclusion to the debate even before we get to Amendment 79. I am grateful to the noble Lord, Lord Skelmersdale, for his support in that conclusion, which is that we need to have a review. I think that will speed up our debate on Amendment 79. I appreciate that he thinks that 12 months is too short and that three years would be a better time period. I heard what the Minister said, that if the injunctions can last two years then, again, 12 months would be too short.

The Government have been helpful with their own amendments because at least they give a firm limit, which is one of the things that we were worried about—the fact that these were so open-ended. As the Government have promised to come back with something on Amendment 79, I beg leave to withdraw the amendment.

Amendment 67 withdrawn.

Amendments 68 and 69 not moved.

Clause 36 : Contents of injunctions: supplemental

Amendments 70 to 78

Moved by Lord West of Spithead

70: Clause 36, page 31, line 8, leave out subsection (2) and insert—

"(2) The injunction may not include a prohibition or requirement that has effect after the end of the period of 2 years beginning with the day on which the injunction is granted ("the injunction date")."

71: Clause 36, page 31, line 12, leave out "a review hearing on a specified date" and insert "one or more review hearings on a specified date or dates"

72: Clause 36, page 31, line 13, at end insert—

"(3A) If any prohibition or requirement in the injunction is to have effect after the end of the period of 1 year beginning with the injunction date, the court must order the applicant and the respondent to attend a review hearing on a specified date within the last 4 weeks of the 1 year period (whether or not the court orders them to attend any other review hearings)."

73: Clause 40, page 32, line 24, leave out from beginning to "an" in line 26

74: Clause 41, page 32, line 30, leave out from "if" to end of line 31 and insert "—

(a) an application without notice is made by virtue of section 39, and

(b) the proceedings are adjourned (otherwise than at a full hearing within the meaning of that section)."

75: Clause 41, page 32, line 35, leave out paragraph (a)

76: Clause 42, page 33, line 11, at end insert—

"(2A) The power to vary an injunction includes power to—

(a) include an additional prohibition or requirement in the injunction;

(b) extend the period for which a prohibition or requirement in the injunction has effect (subject to section 36(2));

(c) attach a power of arrest or extend the period for which a power of arrest attached to the injunction has effect."

77: Clause 42, page 33, line 11, at end insert—

"(2B) Section 36(3A) does not apply where an injunction is varied to include a prohibition or requirement which is to have effect as mentioned in that provision but the variation is made within (or at any time after) the period of 4 weeks mentioned in it."

78: Clause 47, page 34, line 30, at end insert—

"(2A) Before issuing or revising any guidance under this section the Secretary of State must consult the Lord Chief Justice of England and Wales and such other persons as the Secretary of State thinks appropriate."

Amendments 70 to 78 agreed.

Amendment 79

Moved by Baroness Miller of Chilthorne Domer

79: After Clause 49, insert the following new Clause—

"Duration of sections 34 to 49

(1) Except so far as otherwise provided under this section, sections 34 to 49 expire at the end of the period of 12 months beginning with the day on which this Act is passed.

(2) The Secretary of State may, by order made by statutory instrument, provide that those sections—

(a) are not to expire at the time when they would otherwise expire under subsection (1) or in accordance with an order under this subsection; but

(b) are to continue in force after that time for a period not exceeding one year.

(3) No order may be made by the Secretary of State under this section unless a draft of it has been laid before Parliament and approved by a resolution of each House."

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office

The Government have acknowledged the importance of a review of the provisions in this part of the Bill. The powers go far beyond ASBOs, being almost equivalent to the control orders introduced under terrorism legislation. If injunctions of that strength are to be made against UK citizens—who, we must remember, may not have committed a crime—we need a formal review, reference to which should be in the Bill. I shall look forward to what the Government have promised to come back with at Third Reading, because we could not allow this sort of thing to pass without Parliament having the ability to look it and to say whether the injunction was right, almost right or far beyond what we need. That is exactly what a review would do. I beg to move.

Photo of Lord Skelmersdale Lord Skelmersdale - Shadow Minister, Shadow Minister

My Lords, I rather thought that Amendment 79 was grouped with the previous amendments. Therefore, I do not intend to add anything else.

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, I think that some of us are working off a reissue of the groupings list; I thought that that was the case as well. However, we accept the amendment in principle. We shall go away and produce something for Third Reading along the lines that I have already set out. On that basis, I ask the noble Baroness to withdraw her amendment.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office

I am pleased to await Third Reading. I beg leave to withdraw the amendment.

Amendment 79 withdrawn.

Amendment 79A

Moved by Lord Bradshaw

79A: After Clause 50, insert the following new Clause—

"Confiscation orders by magistrates' courts

The Secetary of State shall, within 12 months of this Act being passed, lay an order before Parliament to bring section 97 of the Serious Organised Crime and Police Act 2005 (c. 15) (confiscation orders by magistrates' courts) into effect."

Photo of Lord Bradshaw Lord Bradshaw Spokesperson for Transport

My Lords, we need not delay ourselves here very long, because I believe that the Government have more or less conceded this amendment, which was moved in Committee. I wish to add only that when magistrates levy a fine, they are able to exercise a power to attach earnings. Unfortunately, I do not think that magistrates have a similar power for confiscation orders and must have regard to the resources at the disposal of the defendant. If the person is fined, the magistrates will fix a sum—it may be only a small and continuing amount—to be used to compensate whoever is wronged. Will the Minister therefore consider once again the power to attach earnings being allowed to JPs who deal with confiscation orders? I beg to move.

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, I thank the noble Lord, Lord Bradshaw, for explaining to me in more detail what exactly he was after with the amendment. As he said, we debated this matter in Committee last month. I apologised then for the delay in bringing the order into effect—he was absolutely right that there had been delays. I also explained the background and gave an assurance that appropriate action was now being taken.

I can assure the noble Lord that Home Office officials are working with the Attorney-General's office, the prosecution agencies, Her Majesty's Courts Service and the National Policing Improvement Agency on the practical aspects of giving powers to magistrates' courts to make confiscation orders by way of an order under Section 97 of the 2005 Act. Work is progressing on the drafting of the order as well. It is our very firm aim to lay an order under Section 97, certainly within the 12-month period envisaged by the amendment and, if possible, even sooner than that. I take his point that this has not been done as swiftly as it should have been done—but we are now doing that.

With Amendment 79B, the noble Lord identifies an important point. It is one thing for a court to make a confiscation order, but we need to make sure that the order is enforced and the payment collected. That said, I hope that I can persuade the noble Lord that the amendment is unnecessary. Under Section 35 of the Proceeds of Crime Act 2002, a confiscation order is treated as a fine and is enforced by the use of the magistrates' court's fine enforcement powers. Section 1(3)(b) of the Attachment of Earnings Act 1971 already provides for an attachment of earnings order to be made to secure the payment of a fine. By extension, therefore, attachment of earnings orders can be used, and are already used, to enforce the payment of a confiscation order. I hope that that covers the noble Lord's point on the attack on the earnings aspect. With that explanation, I ask the noble Lord to withdraw his amendment.

Photo of Lord Bradshaw Lord Bradshaw Spokesperson for Transport

I beg leave to withdraw the amendment.

Amendment 79A withdrawn.

Amendment 79B not moved.

Clause 54 : Search and seizure of property: England and Wales

Amendments 80 to 95 not moved.

Amendment 96

Moved by Baroness Neville-Jones

96: Before Clause 66, insert the following new Clause—

"Information requirements

(1) The Extradition Act 2003 (c. 41) is amended as follows.

(2) After section 71(4) insert—

"(4A) Notwithstanding subsection (4), information provided by the category 2 territory designated by order made by the Secretary of State must justify the issue of a warrant for the arrest of a person accused of the offence within the judge's jurisdiction."

(3) After section 73(4) insert—

"(4A) Notwithstanding subsection (4), information provided by the category 2 territory designated by order made by the Secretary of State must justify the issue of a warrant for the arrest of a person accused of the offence within the judge's jurisdiction."

(4) In section 84(7) for paragraph (a) substitute—

"(a) the judge must decide whether the information provided would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him."

(5) In section 86(7) for paragraph (a) substitute—

"(a) the judge must decide whether the information provided would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him,"."

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs

My Lords, these amendments relate to the evidentiary standards in extradition cases. In her letters to your Lordships' House, the noble and learned Baroness, Lady Scotland, tried to address the concern that we and many others have had with what is seen as an imbalance in evidentiary standards caused by the Secretary of State designating certain states as category 2 countries for the purposes of the Extradition Act. Your Lordships' House will be aware that a category 2 country need only provide information, not evidence, when making an extradition request. It is on that issue that I want to focus. I shall take the United States as an example, although I stress that the situation is not limited to just one country but applies to all designated category 2 countries. It seems somewhat false to compare designated category 2 countries with the European arrest warrant system, as the noble and learned Baroness has done in various letters.

Subsections (2) and (3) of my amendment are designed to probe the concept of "information" provided by a designated category 2 country. In her letter, dated 19 October, the noble and learned Baroness said that,

"the information that must be provided in order for a US extradition request to proceed in the UK is in practice the same as for a UK request to proceed in the US".

Obviously, the two words "in practice" are fairly crucial. She said that when the UK makes an extradition request to the US, there is a requirement for the US courts to be satisfied that there is information demonstrating probable cause to issue a warrant. When the US makes an extradition request to the UK, she said that the UK courts need to be satisfied that the information provided by the US provides reasonable grounds for suspicion. The noble and learned Baroness said that the differences between "probable cause" and "reasonable grounds for suspicion" were semantic.

There is some debate about whether the information provided should demonstrate a prima facie case, which, as the noble and learned Baroness notes, is the standard that our criminal courts used to require before a domestic criminal case could be committed to the Crown Court for trial. As noted in her letter, in some cases a prima facie case must still be demonstrated. It would be very helpful if she could say when it is still necessary to demonstrate a prima facie case. She did not expand on that point in her letters, and it is important.

The noble and learned Baroness's argument ultimately hinges on the assertion that,

"in both cases the standard of information to be provided is exactly the same as must be provided in order to justify arrest in an ordinary criminal case in that country".

That is reflected in the Extradition Act. Sections 71(2), 71(3), 73(3) and 73(4) state that the judge may issue a warrant if he has reasonable grounds for believing that there is evidence that would justify the issue of a warrant within his jurisdiction. In respect of category 2 countries, the Act specifies that information is provided instead of evidence, but does not define what "information" is. It would be very helpful if the Government could provide some clarity on that definition.

However, I have a problem here, in that the noble and learned Baroness's assurance is not reflected fully in the UK/US Extradition Treaty. Under Article 8(3)(c) of the treaty, there is a clear requirement for extradition requests to the US to be supported by,

"such information as would provide a reasonable basis to believe that the person ... committed the offence for which extradition is requested".

However, there is no clear statement or requirement in the treaty for the US to meet the same—or even similar—standards when it makes extradition requests. Why is that the case?

A related point is that the standard of information provided should satisfy the requirements of criminal court processes here in the UK. The Act says that an extradition hearing judge must decide,

"whether there is evidence which would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him".

Yet Sections 84(7) and 86(7) qualify that stipulation in relation to designated category 2 countries. Those sections state that in relation to extradition hearings for requests from these countries, the judge must ignore that sufficiency of evidence or information test. So, at the extradition hearing the judge can only take into account human rights considerations and bars to extradition such as double jeopardy, the passage of time and other possibly extraneous considerations. In other words, there is no clear requirement in the Extradition Act for the information provided by designated category 2 countries to satisfy the requirements of the UK's domestic courts.

The question I pose to the Government and to your Lordships' House is: should the judge not be able at the extradition hearing itself to be able to re-establish reasonable suspicion? My amendment would require the judge to decide whether the information provided by those countries would be sufficient to make a case requiring an answer. The noble and learned Baroness might well say that my amendments, as drafted, would require a prima facie case to be established at the extradition hearing. I have to emphasise that that is not—I repeat, not—the intention. The intention is to allow a judge to re-establish, at the point of the hearing, that the information submitted meets the standard of reasonable suspicion. It is another safeguard and check in this highly contentious area, and my purpose is to increase public confidence in the system.

This amendment is one that the Government should be able to accept. I am open to looking at redrafting, if necessary, but I do not accept another argument that I fear might be put forward; that it would breach international treaty obligations. If that were the argument, one would have to look at the following opinions. There is a joint legal opinion from Edward Fitzgerald, and from Julian Knowles at Matrix Chambers, saying that such amendments would not place the UK treaty in breach of such obligations. They say, and this is a general issue which has come up previously, that:

"National extradition laws of the UK and foreign states almost invariably contain grounds for refusing extradition which are not found in extradition treaties".

This is the burden of the noble Baroness's letters: if it is not in the treaty, we cannot act. However:

"It is implicitly recognised as a matter of international law that state parties to extradition treaties may do this in order to give effect to the treaty in their national laws. Extradition treaties are regarded as containing the core matters on which parties to the treaty agree, but they are not regarded as limiting the parties' right to legislate as they see fit, provided, of course that the national legislation does not fundamentally conflict with the treaty".

The amendment has neither the intention nor the effect of disabling the UK for fulfilling the purposes of the extradition treaty, and I do not accept that it would.

The opinion goes on to say, in relation to the Extradition Act 2003, that it,

"already contains a number of grounds for refusal of extradition which are not to be found in extradition treaties, and their inclusion has never been regarded as placing the UK in breach of its international extradition treaty obligations".

I do not accept that the amendment would have that effect. I very much hope that the Government are able to accept an amendment which, it seems to me, accords with what they say is the purpose and meaning of this extradition treaty. I beg to move.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General 4:45 pm, 5th November 2009

My Lords, I support the amendments of the noble Baroness, Lady Neville-Jones. I am grateful to the noble and learned Baroness the Attorney-General for the correspondence that she has circulated since Committee and the previous day on Report. She said that the information that must now be provided in order for a United States extradition request to proceed in the United Kingdom is, in practice, the same as for a United Kingdom request to proceed in the United States: the standard of information to be provided is exactly the same—exactly the same—as must be provided in order to justify arrest in an ordinary criminal case in that country.

The terms of the bilateral US/UK treaty of 31 March 2003 are unequal. There are common requirements: the description of identity, the relevant text of the law describing the essential elements of the offence, the relevant text of the law prescribing the punishment, a copy of the warrant of arrest, a copy of the charging document, if any, and a statement of the facts of the offence. Those documents must be produced either to the magistrate in this country or to the authority in the United States, whichever way the extradition is moving.

Under Article 9 of the previous treaty, which was supplanted by the 2003 treaty, the requesting state had to provide evidence sufficient according to our law to justify committal for trial. That has now been dropped under Article 8.3(c) of the 2008 treaty. For requests that we send to the United States, the request shall be supported by,

"such information as would provide a reasonable basis to believe that the person sought committed the offence for which extradition is requested".

The United States authorities demand this information because of the fourth amendment to the United States constitution, which provides that:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized".

It is fundamental to the United States constitution that the information that is sent would provide a reasonable basis to believe that the person sought had committed the offence.

As for requests from the United States to this country, the Government argue that to obtain a warrant to arrest somebody who is in the United Kingdom, it is necessary in the United States to get the warrant—which, as I have pointed out, is one of the documents that the United Kingdom court will require to see—to show probable cause. This is defined in one Supreme Court case as follows:

"The government has a probable cause to make an arrest when 'the facts and circumstances within their knowledge and of which they had reasonably trustworthy information' would lead a prudent person to believe that the arrested person had committed or was committing a crime".

What, then, is the difference? The difference is that in a request from the United States to the United Kingdom, the evidence to support the warrant is supplied on oath to the judge in the United States. All that has to be shown to the United Kingdom court for the purpose of extradition is simply the warrant that has been issued in America on the basis of information supplied in America. The evidence on which that warrant is based, supplied to the judge in America, is not before the English court and is not necessarily revealed to the defendant. In any event, he cannot challenge the material on which the warrant is based. He does not know what it is. It has been supplied to the judge in America, but not to the judge in this country.

In the Lotfi Raissi case, the United States sought the extradition of an Algerian pilot from the United Kingdom to America. This request was made prior to this treaty coming into force, and was based on the former treaty. Accordingly, as I have said, under Article 9 of the former treaty, the United States had to provide evidence sufficient according to British law to justify committal for trial in this country. In other words, in the Lotfi Raissi case, the US had to show a prima facie case to the magistrate in London. The application was thrown out by the British courts and went all the way up the chain of appeals, not only because there was no evidence, but because the proceedings on trivial charges had been brought for ulterior motives and were held to be an abuse of process.

Under the new treaty, no evidence would be required. That challenge to the extradition of Raissi could not be made. Indeed, Raissi could be returned now with no evidence produced because, unlike the bilateral treaties that have been negotiated with the United States by other EU countries, the US-UK bilateral treaty is retrospective. Article 22.1 says:

"This Treaty shall apply to offences committed before as well as after the date it enters into force".

Theoretically, in the Raissi case, it is possible for the US authorities to go to a judge in the United States and show him probable cause, and for him to issue a warrant. If the warrant comes over here, it cannot be challenged and Raissi, even today, would be sent back.

By contrast, in an extradition hearing in a United States court, when we ask for extradition from the United States, the information in support of the request is before the judge who determines the application. This is the application of the fourth amendment to the United States constitution. Since it is before the judge, the defendant can challenge it and seek to persuade the judge that it is not of sufficient weight or cogency to support the request. To say, as the noble and learned Baroness has, that it is exactly the same is just not correct.

Mr Scott Hammond, who was a deputy assistant Attorney-General in the United States, and director of the criminal enforcement anti-trust division—that is a very high position in the Justice Department—told an American Bar Association symposium on white collar crime in Las Vegas in 2005:

"A hearsay affidavit by the prosecutor is enough. We don't even have to provide witness affidavits" in a request to this country. He continued:

"Appeal rights have been curtailed but it's nothing. It is a drop in the bucket compared to the bang for the buck we are getting from this".

So, the American Justice Department regards this as a "bang for a buck".

In introducing the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003, the noble and learned Baroness, Lady Scotland, said:

"If this order is approved, the United States will no longer be required to supply prima facie evidence to accompany extradition requests that it makes to the United Kingdom. This is in line with the new bilateral extradition treaty ... By contrast, when we make extradition requests to the United States we shall need to submit sufficient evidence to establish 'probable cause'. That is a lower test than prima facie but a higher threshold than we ask of the United States, and I make no secret of that".—[Hansard, 16/12/03; col. 1063.]

That is what she said then. Why, then, does she now say that it is exactly the same?

The extradition treaty was negotiated and ratified without any reference to Parliament. Although the noble and learned Lord, Lord Falconer of Thoroton, said in a debate on 31 March 2003, during the passage of the Extradition Bill:

"The new treaty also maintains the present position that political motivation cannot be used to block extradition in the case of terrorist or other violent crimes".—[Official Report, 31/3/03; col. WA 92.]

The United States refused to ratify that treaty without assurances from our Government that they would not seek rendition of Irish terrorists to this country. Quite a number of terrorists had escaped from Ireland to the United States and it would not sign the treaty because of that. It held up the ratification for three years and did not pass it without the following proviso:

"The Senate is aware that concerns have been expressed that the purpose of the treaty is to seek the extradition of individuals involved in offences relating to the conflict in Northern Ireland prior to the Belfast Agreement of April 10th 1998. The Senate understands that the purpose of the treaty is to strengthen law enforcement co-operation between the United States and the United Kingdom by modernising the extradition process for all serious offences and that the treaty is not intended to reopen issues addressed in the Belfast Agreement or to impede any further efforts to resolve the conflict in Northern Ireland".

So, no extradition of Irish terrorists. The Attorney-General knows this because she went there on 13 July

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Attorney General, Attorney General's Office, The Attorney-General 5:00 pm, 5th November 2009

I hear what the noble Lord says but I ask him to have a care. He knows that that is a recitation; it is not a caveat in any way. The Americans ratified. The noble Lord is quite right that I went to America and had the advantage of speaking to a number of those who had concerns, and the Americans ratified. I ask the noble Lord to take care in the way in which he expresses himself.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General

My Lords, I am taking the utmost care. It is the noble and learned Baroness who has come out with two contradictory statements about the effect of this treaty. She went to America on 13 July 2006, which was the same day that the NatWest Three were extradited from this country. Letters were exchanged in September 2006—she must have been a party to it—to make it clear that, despite the retrospectivity of the treaty, the Government would not seek extradition of Irish terrorists for offences committed before the Good Friday agreement was in place. Further, the State Department made it clear that it, not the courts, would determine what was and what was not a political offence—that is set out in Article 4(3) and (4).

The purpose of the amendment of the noble Baroness, Lady Neville-Jones, is to level this matter up and to ensure that there is equality of treatment of British subjects or people who are resident in this country as regards extradition procedures with the United States. That is why we support the amendment.

Photo of Lord Goldsmith Lord Goldsmith Labour

My Lords, there is strong sense of deja vu about this debate. It is none the worse for that, but many of these issues have been debated previously. Because I had an involvement at one stage, I wish to make a couple of points in the hope that they will help the House in dealing with the amendment of the noble Baroness, Lady Neville-Jones. I note that it is about information requirements and, therefore, perhaps I may say that some of the broader questions that the noble Lord, Lord Thomas of Gresford, has raised actually do not relate to the amendment.

I also well recall the issues in relation to the NatWest Three or the Enron Three, depending on how one viewed them, and the controversy that that gave rise to. The House will know that ultimately they pleaded guilty to the offences with which they were charged. I want also to declare an interest as I am a practising lawyer and some of these issues come before me in relation to clients. I need to make that clear to the House.

There are three points to be made. One is that the way that extradition used to work—and the noble Lord, Lord Thomas of Gresford, will know this very well—was enormously long and time-consuming; an extradition request which was ultimately justified could take years to execute—the record may have been in relation to a Hong Kong case that managed to take 10 years. That is a great abuse of justice; either the extradition should not happen or it should not take that long.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General

It was seven years, and I was involved in the case.

Photo of Lord Goldsmith Lord Goldsmith Labour

I thought that the noble Lord was involved, and I apologise because I had not realised that the process was quite as speedy as he has now told the House it was. The point remains.

In this globalised world, when you can affect what happens in other countries by the touch of a computer button, it must be right that we should agree to speedier procedures. The problem arose because of the point that the noble Baroness and the noble Lord raised about the apparent imbalance between the information requirements. That is the fundamental point. When I was in the position that my noble and learned friend the Attorney-General now holds, I wanted to know more about the difference because it is plain that there is a difference on the face of the words. I called two people into my office—the senior Crown Prosecution Service lawyer responsible for the requests which went to the United States for extraditions from that country and the liaison officer from the United States embassy responsible for processing the requests that came from the US to the United Kingdom. I asked those lawyers to explain what they put together in their dossiers. It became clear to me that, whatever the wording was, the dossiers were the same. They were providing the same information in as out. I think that my noble and learned friend will be able to say—because it is no longer my responsibility—whether that remains the view of the Government, based on the empirical evidence.

I accept that the words are different, and the noble Lord, Lord Thomas of Gresford, is right as to the constitutional reason why the United States has insisted on a particular form of words and that it cannot do more than that, but in practice the information requests are the same. I look forward to hearing what my noble and learned friend says about that and whether my recollection of what took place then remains the case.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General

I am sorry to interrupt the noble and learned Lord again, but does he accept that the information is before the United States judge when we make a request, but that under the treaty, the warrant is all that is before a United Kingdom magistrate—or, these days, the district judge who is considering such a request?

Photo of Lord Goldsmith Lord Goldsmith Labour

My Lords, the noble Lord will know—I hope that I have made this clear—that what is apparent from the practice is that the same information is provided outwards as inwards.

I listened carefully to what the noble Baroness, Lady Neville-Jones, said about the standard that she proposes in new subsections (4) and (5). A judge would be required to decide,

"whether the information provided would be sufficient to make a case requiring an answer by the person if proceedings were the summary trial of an information against him".

She said that she did not intend that to be the prima facie test. However, that is exactly what the amendment provides. If that is not her intention, perhaps she will not press the amendment. The risk is that this will be taken to mean that the judge must be satisfied that there is a prima facie case. The test takes one back to the potentially lengthy extradition proceedings that we had and were trying to get away from. There may be good arguments about whether we should. I think that we should because of the world in which we now live. However, if the noble Baroness does not intend that to be the prima facie test, I respectfully say that this is not the right amendment.

Finally, I have not spoken to the noble and learned Baroness and have no idea what she will say. However, to change the information requirements would not be consistent with our treaty obligations. Whether we should have entered into the treaty is another matter; but we are where we are today and this House should not require the Government to do something that would put them in breach of their international obligations.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Attorney General, Attorney General's Office, The Attorney-General

My Lords, I thank my noble and learned friend Lord Goldsmith for his comments on the amendment. I assure him that he is absolutely right and nothing has changed.

I say to the noble Lord, Lord Thomas of Gresford, that when I was Minister of State at the Home Office and responded on these issues, I did so before the treaty was ratified and before we had an opportunity to look at the practice as opposed to the form. My noble and learned friend Lord Goldsmith, the then Attorney-General, as he described, made an inquiry as to what in fact was the position in relation to the two countries.

There is a difference between form and fact. I hope that I have made it clear in my most recent letters that what my noble and learned friend Lord Goldsmith describes is exactly what happens now. The information before the United States court demonstrating probable cause does not need to be in an evidential format. In both cases—extradition from the UK to the US and vice versa—the courts consider the relevant domestic test. The text of Article 8 of the treaty makes this clear.

In answer to the question of the noble Baroness, Lady Neville-Jones, about the clarity that she wishes for on information, Section 71(4) of the Extradition Act 2003 makes it clear that the information that must be provided by a designated judge in a category 2 territory must be sufficient for an arrest warrant to be issued in the judge's jurisdiction. In other words, there must be reasonable suspicion, which is the domestic test for the issue of an arrest warrant. Information covers material that is not in an evidential format, for example hearsay evidence. Under the formal proceedings that we used to have, all statements had to be topped and tailed. Evidence now need not be produced in that way, but it must incorporate sufficient information to enable the judge to be satisfied on the issues. The parity of treatment that we have in practice is something that both the US and we are comfortable with, because the practitioners know that they are getting the same thing.

I understand that the noble Baroness has had anxieties about that and that she seeks clarification. However, my noble and learned friend Lord Goldsmith is right when he says that if she does not wish to ask for prima facie evidence, the amendments do not do what she wishes; in fact, they ask for prima facie evidence. Part 2 territory really must provide evidence establishing a prima facie case—she asked me about the exception—unless that territory has been designated for the purpose of Section 84 or Section 86 of the 2003 Act. Members of the Council of Europe convention on extradition and other trusted extradition partners—the United States, Australia, Canada and New Zealand—have been designated as Part 2 territories for these purposes so they do not have to establish a prima facie case.

My noble friend and learned friend Lord Goldsmith is right to say that those of us who have had the great privilege of being in this House for a tad longer than the noble Baroness, Lady Neville-Jones, have had the joy of discussing these issues since 2003, almost continuously. We have gone down these roads before and I am delighted to hear the noble Lord, Lord Thomas of Gresford. However, it would have been better to debate this matter in Committee. At that stage, the decision was made that my letter, which I hoped was comprehensive, was sufficient for us not to be burdened with the debate. I would have been delighted if that position had been maintained.

I shall now deal with the substance of the amendments. I hope that the noble Baroness will be assured that the concerns which she had on parity are not well founded. Her clear intention that this should be a situation which delivers parity of treatment and fairness is the case, and as a result I hope that she will not pursue the amendment. If she were to pursue it, as I made clear in my letter, that would, contrary to the assertions made by other counsel, put us at risk of being in conflict with our obligations. I am confident that Her Majesty's loyal Opposition would never wish to put the government of the day in that position and if they were ever to enjoy the burden of government, they would not wish to be put in that position themselves.

I hope that I have reassured the noble Baroness with the letter written on 19 October and the letter of yesterday's date to which she and the noble Lord, Lord Thomas of Gresford, have kindly referred. If I have satisfied her, I hope that both she and the noble Lord will be content to withdraw the amendment and not bring it back.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General 5:15 pm, 5th November 2009

My Lords, let me clarify my situation. My amendment is listed separately and I intend to address your Lordships on it.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Attorney General, Attorney General's Office, The Attorney-General

My Lords, I was simply inviting the noble Lord to early consideration of his position, particularly because I know that he has now had the advantage of mature reflection, having read the letters and considered the debate. I am confident that the noble Lord would not wish to take a position precipitously which would appear to fly in the face of the information and evidence now before us.

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs

My Lords, I thank the Minister for that clarification on what constitutes information. That is reassuring. I also thank other noble Lords for their contributions to the discussion. Surely, the Minister and the Government are aware that quite a lot of unease remains about the workings of the extradition treaty and whether it represents reciprocity, putting it in simple layman's language. I raised a number of other points and perhaps I can have a conversation separately with the Minister about them. I offered to look at the drafting if the problem with my amendment was unintended effect; it was not intended to disable us fulfilling our obligations as laid down or to create a condition of prima facie evidence. I do not think that we need to be hung up on that. However, I suspect that I am not going to get any co-operation on drafting. In light of the discussion we have had and, perhaps, the inability to take this further, I beg leave to withdraw the amendment.

Amendment 96 withdrawn.

Amendment 96ZA

Moved by Lord Thomas of Gresford

96ZA: Before Clause 66, insert the following new Clause—

"Restriction on extradition in cases where trial in United Kingdom is more appropriate

(1) The Police and Justice Act 2006 (c. 48) is amended as follows.

(2) In paragraph 6 of Schedule 13 for subsections (1) to (3) substitute—

"Paragraphs 4 and 5 come into force on the day on which the Policing and Crime Act 2009 is passed.""

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General

My Lords, I heard the explanation given by the Attorney-General. I have no reason whatever to doubt what she and the noble and learned Lord, Lord Goldsmith, said about the bundles of papers that cross their desks containing the same information. That was not my point. My point was that the judicial authority in the United States must consider the evidence, which is disclosed to the person whose extradition is sought so that he can challenge it before a judge in the United States but, when it comes to this country, all that appears is the warrant, which is unchallengeable. The magistrate does not see—at least, I do not imagine he does—the documents that pass between the Attorney-General of this country and the requesting authority in the United States. As there is not equality of consideration, the person whose extradition is being sought is in a different situation if he is able to challenge a case in the United States, but cannot do so in this country. It is quite wrong to suggest that equality has been achieved.

The whole thing about extradition was that it was always assumed that a state owed a duty to look after its own citizens. In the 19th century, fugitives from justice all over Europe came to this country. The regimes in those countries, very often what we would call fascist regimes, dictatorships and so on, would pursue them to this country. The law of extradition developed in that way. In Europe, where they have the civil system and not the common law system, it remained, until the introduction of the European arrest warrant, a basic principle that you do not extradite your own citizens. In the civil countries, you can certainly extradite fugitives from other countries, but they resisted extraditing their own citizens. Under the common law, we did not have that rule.

What we had was Article 7 of the European Convention on Extradition 1957, called "Place of Commission". It applied across Europe, including in this country. It states:

"The requested Party may refuse to extradite a person claimed for an offence which is regarded by its law as having been committed in whole or in part in its territory or in a place treated as its territory".

So even this country can refuse to extradite its own citizens or any other country's citizens on the basis that the forum is more appropriate here and a person should be tried here rather than in another territory. For every other European country, that principle remains in their bilateral treaties with the United States, but not for us. We have abandoned it.

Article 4, "Grounds for optional non-execution of the European arrest warrant", of the framework decision on the European arrest warrant, says:

"The executing judicial authority may refuse to execute the European arrest warrant", where, in paragraph (7),

"the European arrest warrant relates to offences which ... are regarded by the law of the executing Member State as having been committed in whole or in part in the territory of the executing Member State or in a place treated as such".

Although the continental countries in the European arrest warrant have conceded that they will extradite their citizens, they still hold on to the question of forum.

The amendments now before the House are in my name. They were in the name of the noble Baroness, Lady Neville-Jones, in Committee, and I am not responsible for the fact that there was no debate on that occasion because they simply were not moved. These seek to bring in the provisions of the 2006 Act, which would give the courts of this country the opportunity to consider forum and whether it is in the interests of justice that the person sought should be extradited.

The argument against that, as set out in the noble and learned Baroness's letter, is that that in some way transfers responsibility from the CPS to the judge to decide where a case should be prosecuted. That is not the intention at all; the intention is simply to give the magistrate or district judge considering extradition proceedings in this country the ability to consider whether it is in the interests of justice that this person should be tried abroad or in this country. It is still a matter for the CPS to decide what to do.

Every court in Europe can decide whether it is in the interests of justice to permit the extradition of an individual, but we cannot do so unless the amendment is accepted and the provisions of the 2006 Act, which were fully argued and put through by this Government—I think it was John Reid who finally put these provisions through—are brought into effect. In any event, why should the judge not consider whether it is in the interests of justice for a person to be extradited?

Now that extradition to the United States is a rubber stamp procedure, save only for the bars that are set out in the Act, why should the prosecutor have the power of decision when the defendant cannot make any representations to him, at least not easily, to be tried in this country? Of course he can challenge that decision, as in the McKinnon case and in other cases, by way of judicial review, but if the court considering an order of extradition had the opportunity to take an overall view of whether it was in the interests of justice, as every other European country can, would that not be so much better?

The noble and learned Baroness said in her letter:

"The issue of forum is decided by discussions between prosecutors from different jurisdictions".

That is perfectly reasonable and proper, save only for the fact that the defendant has no right to make any representations on where he should be tried. Political considerations may well come into decisions that cannot be challenged easily by the person who is to be extradited. Political decisions between prosecutors were the fundamental issue in the Osman case, to which the noble and learned Lord, Lord Goldsmith, referred. The question was whether Mr Osman should be tried in Malaysia, where his bank had suffered about £1 billion of losses and where he lived and was a native, or whether he should be tried in Hong Kong where the property crash had caused the losses. That is what it was all about.

Another argument advanced by the Government, to which the noble Baroness, Lady Neville-Jones, referred, was that you cannot do this because it would breach all our extradition treaties. Mr Edward Fitzgerald QC and Julian Knowles have provided Liberty with an opinion. Mr Fitzpatrick can be found in almost any quarter of the world. He is very expert in this subject. In that opinion, which I am sure the Government have seen, he has demonstrated that many EU member states have enacted additional grounds for refusing extradition. He quotes the leading textbook on this case by Nicholls, Montgomery and Knowles. Your Lordships should know that Clive Nicholls and Miss Montgomery led for the Hong Kong Government in the case which lasted seven years, so they knew the other side of the coin. Their extraordinarily good book, The Law of Extradition and Mutual Assistance, which I recommend as bedside reading, states:

"Many countries have introduced grounds for refusing extradition other than those provided for in the EAW Framework Decision. Denmark, Italy, Malta, The Netherlands and the UK have introduced additional reasons for refusal, such as delay, political discrimination and national security, while other states have grounds for refusal connected with the merits of the case, eg, its special circumstances or the personal or family situation of the individual in question".

Other countries do it and have put provisions in domestic law which do not coincide exactly with the treaty. There are bilateral treaties with the United States, for example. Those treaties lay down broad agreement on principles, but they do not prevent a country such as ours from exercising its own jurisdiction and adding extra bars or extra considerations for the making of the decision to extradite by the court.

All I seek to do is to put into effect provisions which passed through this Parliament three years ago, which the Government have refused to make effective. If we do that, we may get somewhere nearer the parity which the citizens of this country would expect for their protection and the traditional aim of extradition law. I beg to move.

Photo of Lord Goldsmith Lord Goldsmith Labour 5:30 pm, 5th November 2009

My Lords, the noble Lord and I may be among the few Members of this House who have this work on our bedside table on frequent occasions, and excellent it is. Perhaps I may respectfully point out the problem with what the noble Lord has said. He has made a plea towards the interests of justice. I think that he will recognise that where the prosecutors decide that there is a case and that it should be brought in this country, any extradition on that offence would be blocked. The problem therefore lies not where it is the prosecutors' view that the interests of justice favour prosecution here as against overseas, but where there is no prosecution here. In those circumstances, does not the question become: is it in the interests of justice that someone should not stand trial at all?

That is the uncomfortable but necessary dilemma to which the proposal brings one. That is why I would not be able, and have not been able, to support the idea that if there is a judicial decision—not one that orders the prosecutors to prosecute—it would be better that someone were prosecuted here rather than overseas, but that if they are not prosecuted here, they should go unprosecuted. The interests of justice require that someone in those circumstances should be prosecuted somewhere. That for me is the problem.

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs

My Lords, I can be brief. The noble Lord, Lord Thomas of Gresford, has spoken at length on this issue. The unease that we have on these Benches is something I outlined in the discussion of the previous amendment; namely, that the role of the courts is greatly limited when there is an extradition hearing in relation to requests from designated category 2 countries. The judge is not permitted to decide at the hearing whether the information submitted meets the standard of reasonable suspicion. It is against that background that people feel it would be helpful to have these forum provisions in operation.

I accept that we do not have the time to go into what is a complex set of issues today, but I believe that they will continue to linger in the public debate.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Attorney General, Attorney General's Office, The Attorney-General

My Lords, I commend the noble Baroness on the view she has taken on not pursuing the amendments in relation to the forum because she is quite right that these issues have been settled. Indeed, we remember only too well the forceful intervention made by the noble and learned Lord, Lord Lloyd of Berwick, who, having had the advantage of looking at the explanation given by the Government, was kind enough to say in response to my arguments as set out in my letter that:

"The question as to whether to prosecute must be for the prosecuting authorities and it follows that the question of where to prosecute must also be for them. Where there are two competing jurisdictions, it can only be resolved by agreement between the prosecuting authorities in the two different countries. I cannot see how it could conceivably be resolved by a judge in this country".—[Hansard, 20/10/09; col. 603.]

So I commend the noble Baroness on her approach to this matter.

Perhaps I may respectfully say to the noble Lord, Lord Thomas of Gresford, that he is wrong to continue to assert that the procedure in our courts is just a rubber stamp. While the court certainly has the warrant before it, it is not the case that the courts here simply rubber stamp that warrant. The court would have to be satisfied that all of the information is such as to provide reasonable grounds for suspicion. So the information to which I referred and that to which my noble and learned friend Lord Goldsmith referred is provided not only to the Secretary of State but also to the judge so as to enable him to make his assessment. I hope that I have been able to reassure him that this is not something that is somehow restricted in the nature of information.

Perhaps I may also remind him of what I said three years ago in this House in relation to forum provisions in the Police and Justice Act 2006. I shall quote from Hansard:

"At this point I wish to say a few words about the government amendments passed by another place. We have tabled these purely out of procedural necessity to enable the matter to return to this House. They do not alter the Government's position one iota. We cannot and do not agree with the amendments tabled by the Opposition and passed by this House in July".—[Hansard, 7/11/06; col. 650.]

I hope that I set out fully the Government's position in relation to the forum in my letter of 19 October, but in view of the discussion we have now had, perhaps I should briefly outline some of the salient points. I have to tell the noble Lord that I have not had the advantage of reading the Liberty briefing and I tremble to tell him that I do not have the tome by my bedside at night. I daresay that if I wish to sleep a little more easily, I should buy one immediately.

My first objection to the introduction of the forum bar to extradition is that, in the light of the terms of the Extradition Act 2003, such a bar is unnecessary. That is because our extradition legislation already makes it absolutely plain that in any case where someone is being prosecuted in the United Kingdom, these domestic proceedings must always take precedence over extradition, as has already been alluded to by my noble friend. In any case, where independent prosecuting agencies decide to bring a case against someone in the United Kingdom, the domestic prosecution operates to bring an immediate and automatic halt to extradition proceedings.

In view of the fact that the Extradition Act 2003 makes it so clear that domestic criminal proceedings will always take precedence over extradition, the only circumstance in which the proposed forum bar would come into play would be in a case where no UK proceedings had been commenced. In practice, this would mean that in many cases the judge in extradition proceedings would be asked to second guess a decision as to prosecution made by UK prosecutors. This is unnecessary and has potentially dangerous consequences. Not only would this approach sit uncomfortably with the traditional roles of prosecutors and the judiciary, it would mean asking judges who are not familiar with making prosecutorial decisions to take account of the large volume of evidence routinely considered by prosecutors. It would also mean that judges would need to consider practical issues bearing on prosecutions, such as witness availability, not only in the United Kingdom but also in the state requesting extradition. Where prosecutors have decided that a case should be tried in country A rather than in country B or C, it is not proper for a judge to second guess that decision.

In Committee we referred to the multinational cases that we now have to deal with together, where not only one or two countries make the decision but where perhaps 10 different countries may be engaged in one case. It has to be a decision between the prosecutors as to which part could most conveniently be prosecuted in which jurisdiction—sometimes it has to be done sequentially—and it would be impossible to get the necessary degree of acuity and precision if we are going to interdict the international and global nature of the criminal activities of some of the new criminal families, who are as large, if not larger, than some multinationals. If we are going to give them a run for their money, prosecutors will have to be fleet of foot and work together in union to make sure that they prosecute that which should be prosecuted. One example of this kind of co-operation can be found in the protocol for handling criminal cases with concurrent jurisdiction agreed between the Attorneys-General of the United Kingdom and the US in January 2007, in which my noble and learned friend Lord Goldsmith participated.

I hope the noble Lord will concede that his amendment is misconceived. Time has moved on. The unity of purpose between prosecutors globally is an essential part of our attempt to interdict the new form of crime. To reintroduce forum in a way that would disable us from doing that job as effectively, as efficiently and now as successfully as we have demonstrated it can be done would be a grave loss to the people of our country. I am confident that the noble Lord would not wish that to occur. I therefore invite him, after the joy of the further discussion we have now had, to withdraw his amendment.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General

My Lords, I am entirely familiar with international crime: how it moves across boundaries, how the European arrest warrant works in practice and how extradition works worldwide. I do not need to be told about that.

It would not be difficult for a prosecutor to go before a judge and say, "We have had discussions with prosecutors in six countries and we have come to the conclusion that the bulk of the evidence lies in this place and it is more convenient for it to be tried there". The only difference is that the defence would have an opportunity of making representations and of being heard. The defence might be able to say to a judge, "Well, they have come to this conclusion behind closed doors but, in the interests of justice, there are broader considerations".

When you come to Gary McKinnon, you are not dealing with an international conspiracy; you are dealing with a young man suffering from Asperger's disease who has significant problems. He is not part of a ring. There is a straightforward issue. Do we protect vulnerable British citizens in the interests of justice or do we not? The courts of this country have been invited by the prosecution to extradite people to the United States to face charges that are not criminal in this country. I refer in particular to the Ian Norris case and Morgan Crucible; in that case, the charges related to price fixing. The matter was quashed in the House of Lords, so he was extradited on obstruction of justice charges. No doubt that was the result of somebody going to a judge in America with information, getting a warrant, bringing it over here, putting it in front of a magistrate or district judge and saying, "There you are. No matter what the House of Lords has decided about your previous decision, we've got him on this, you can't question it and he can't challenge it".

We on these Benches are concerned about the protection of our citizens. I am talking not just about the United States but about putting our citizens in front of a judicial system in another country that may be biased against them and where they have no possibility of a fair trial. We feel that the Government have a role to prevent that. Because we take this view on principle, I shall seek the opinion of the House.

Division on Amendment 96ZA

Contents 46; Not-Contents 68.

Amendment 96ZA disagreed.

Division number 3 Policing and Crime Bill — Report (2nd Day)

Aye: 46 Members of the House of Lords

No: 66 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Clause 78 : Security planning for airports

Amendment 96A

Moved by Lord Bradshaw

96A: Clause 78, page 97, line 27, leave out from first "police" to end of line 28 and insert "responsible for policing the aerodrome"

Photo of Lord Bradshaw Lord Bradshaw Spokesperson for Transport 5:57 pm, 5th November 2009

My Lords, we now move from the esoteric to the somewhat mundane, although it will perhaps be more within the grasp of many Members of your Lordships' House. The amendment addresses the policing of aerodromes and transport interchanges. We discussed it fairly thoroughly in Committee, when I put forward various points of view, particularly from the airports which will have to pay the costs of policing and feel that they would be in an invidious position if a chief constable were able unilaterally to impose a level of policing and the costs on the airport, and the airport authority was bound to pay.

On the jurisdiction of the British Transport Police in the vicinity of transport interchanges, the Minister has assured me that there will be a review of policing next year, including the taking of proper soundings from the authority, the force and elsewhere. It was very nice of him to add that such a review would allow him to account of my own views. I beg to move.

Photo of Lord Skelmersdale Lord Skelmersdale - Shadow Minister, Shadow Minister

My Lords, I am glad that the noble Lord, Lord Bradshaw, has approached the amendment in the way that he has, because I must admit that I was somewhat surprised to see it on the Marshalled List given the detail into which the Minister went in Committee. I am now satisfied that, as drafted, the arrangements are sufficiently flexible to allow the British Transport Police to be a member of the groups in question. I am also grateful for the assurance that the Government gave in Committee that they will continuously monitor arrangements to see whether they need to be changed.

It would be useful to have further thoughts from the Minister on Amendment 100A and the "extensivity", perhaps—I cannot think of the word—of the British Transport Police.

Photo of Lord Berkeley Lord Berkeley Labour 6:00 pm, 5th November 2009

My Lords, we discussed this issue in some detail in Committee, and I was not that satisfied with the answer that my noble friend gave. I argued strongly that it would be useful for airports to be able to get more than one quote for policing services. We also argued that BTP should be able to bid for operating in airports, because being called British Transport Police meant that it could do something other than policing railways, which is the maximum scope of its activities at the moment. Since then, I have received a copy of my noble friend's letter to the noble Lord, Lord Bradshaw, proposing a review of the BTP and its scope and role, which goes a good long way to satisfying my concerns. I am very grateful to my noble friend for making this possible and look forward to the pressure starting.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Government Whip, Government Whip

My Lords, I am most grateful to the three noble Lords who have spoken in this very short debate, which I do not intend to prolong. As others have said, the British Transport Police and its jurisdiction was discussed at some length in Committee, so it is not sensible to reopen the debate now. I confirm to the House that I wrote to the noble Lord, Lord Bradshaw, this morning to say that, in accordance with the standard procedures for non-departmental public bodies, a quinquennial review of the British Transport Police Authority will take place next year. The question of the BTP's jurisdiction, including whether there could be a role for the force to play in the future of airport policing, will be considered as part of the forthcoming review. I have made copies of my letter available to the opposition Front Bench, to my noble friend Lord Berkeley who spoke in the debate, and to the noble Lord, Lord Bradshaw, and I shall see that a copy is placed in the Library of the House. I hope that, in view of those remarks, the noble Lord will feel able to withdraw his amendment.

Photo of Lord Bradshaw Lord Bradshaw Spokesperson for Transport

I thank the Minister for his remarks and I beg leave to withdraw the amendment.

Amendment 96A withdrawn.

Amendments 96B to 96E not moved.

Amendment 97

Moved by Baroness Neville-Jones

97: Before Clause 80, insert the following new Clause—

"Retention of voluntary samples

(1) After section 64A of the Police and Criminal Evidence Act 1984 (c. 60) (photographing of suspects etc) insert—

"64B Retention and destruction of samples etc

(1) Subject to subsection (2), where a sample has been taken from a person under this Part, unless such a person has been given consent in accordance with section 64(3AC), all such samples and all information derived from such samples shall be destroyed as soon as possible following a decision not to institute criminal proceedings against the person or on the conclusion of such proceedings otherwise than with a conviction.

(2) Subsection (1) shall not apply—

(a) where the record, sample or information in question is of the same kind as a record, a sample or, as the case may be, information lawfully held in relation to the person; or

(b) where the person is cautioned for a recordable offence or given a warning or reprimand in accordance with the Crime and Disorder Act 1998 for a recordable offence in connection with the decision not to institute criminal proceedings or following the withdrawal or cessation of criminal proceedings; or

(c) where section 64C or 64D apply.

(3) For the purposes of this section, criminal proceedings shall not be deemed to have concluded until either the lapse of any applicable appeal period or a decision is made not to appeal such proceedings, whichever is the earliest.

64C Retention of samples etc (violent and sexual offences)

(1) This section applies where any sample has been taken from a person under this Part where criminal proceedings were instituted against such person in respect of a sexual offence or violent offence and such proceedings concluded otherwise than with a conviction or with the person being cautioned for a recordable offence or given a warning or reprimand in accordance with the Crime and Disorder Act 1998 for a recordable offence.

(2) Subject to subsections (6) and (7), the sample and any information derived therefrom shall be destroyed no later than—

(a) 3 years following the conclusion of the proceedings ("the initial retention date"); or

(b) such later date as may be ordered under subsection (3).

(3) On application made by a chief officer of police within the period of 3 months before the initial retention date, the Crown Court, if satisfied that there are reasonable grounds for doing so, may make an order amending, or further amending, the date of destruction of the relevant sample and any information derived thereform.

(4) An order under subsection (3) shall not specify a date more than 2 years later than the initial retention date.

(5) Any decisions of the Crown Court may be appealed to the Court of Appeal within 21 days of such decision.

(6) Subsection (2) does not apply where—

(a) an application under subsection (3) has been made but has not been determined;

(b) the period within which an appeal may be brought under subsection (5) against a decision to refuse an application has not elapsed; or

(c) such an appeal has been brought but has not been withdrawn or finally determined.

(7) Where—

(a) the period within which an appeal referred to in subsection (5) has elapsed without such an appeal being brought; or

(b) such an appeal is brought and is withdrawn or finally determined without any extension of the time period referred to in subsection (2), the sample and any information derived therefrom shall be destroyed as soon as possible thereafter.

(8) For the purposes of this Part a "sexual offence" or "violent offence" shall mean such offences of a violent or sexual nature as shall be set out in any order made by the Secretary of State with reference to this section.

64D Retention of samples: residual power

(1) On application by a chief officer of police, the Crown Court may make an order requiring the retention of a sample taken from a person and any information derived therefrom in circumstances where such a sample and any information derived therefrom would otherwise be required to be destroyed if it has reasonable grounds to believe that—

(a) there is a serious risk of harm to the public or a section of the public; and

(b) such retention would prevent, inhibit, restrict or disrupt involvement by the person in the commission of a sexual offence or violent offence.

(2) An order under this section is not to be in force for more than 5 years beginning with the date of the commencement of the order.

(3) Any decision of the Crown Court may be appealed to the Court of Appeal within 21 days of such decision.

(4) Where an application has been made for an order under this section, the relevant sample and any information derived therefrom shall not be destroyed until such application and any appeal thereof has been determined.

(5) At the end of section 113(1) insert—

"provided always that the protections in Part 5 relating to the retention of samples and any information derived therefrom shall also be applied to persons investigated or under arrest under such Acts.""

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs

My Lords, this amendment concerns the National DNA Database. In Committee, in response to considerable criticism from many quarters, the Government withdrew the provisions allowing them to amend the rules and procedures of the DNA database by means of secondary legislation. We supported them in that act. Those clauses would have established no timetable for the implementation of any changes, would have exposed a crucially important piece of our criminal justice system to long-term inconsistency and uncertainty, and would have given Parliament no chance to do anything but approve any Statutory Instrument that the Government finally saw fit to produce. Such a way forward was clearly unacceptable to the House, and I am extraordinarily glad that the Minister drew that conclusion.

However, leaving the entire question to the next Session, as the Government are trying to do, is equally unacceptable. The Government claim that they have run out of time to insert proper primary legislative provisions. In our last debate on the matter, the Minister said that he felt that the Government were damned if they did and damned if they did not. The truth is that the consultation on this has been considerably longer than he made out then.

I remind noble Lords that the Marper judgment was a year ago, that the Government's consultation period ended months ago, and that any difficulties surrounding the detail of what they wish to implement are partly of their own making. The Government indicated in their consultation that they wanted to keep the profiles of any individual arrested, but not convicted, for six years and to keep the profiles of individuals arrested in relation to serious violent or sexual crimes, but not convicted, for 12 years. The Government have clearly not grasped the fundamental principle behind objections to the current system. Apart from the most exceptional cases, where a person is connected with but not convicted of a sex or a violent crime, there really can be no excuse to retain the profile of an individual who has not been convicted. Even in those exceptional cases, where there is a genuine case for retaining people's profiles despite the absence of conviction, the Government's recommendations are at odds with the evidence. We know that repeat offending is likely to take place within the comparatively short period of up to five years.

My amendment would replicate in England, Wales and Northern Ireland the same system that has been running successfully in Scotland for three years. Not only is that system well established, it has been scrutinised, reviewed and consulted upon, and it has proved its worth. It also meets the requirements of the European Court of Human Rights ruling and is, frankly, more effective than its larger counterpart here in the south. The Government's own reports identify that the Scottish database has a higher success rate in matching profiles taken from crime scenes to profiles on the database, at a rate of 68 per cent as compared to 52 per cent. It is also well known that the number of detected crimes in England and Wales in which a DNA match has been available has fallen year-on-year, despite the fact that the National DNA Database holds more profiles than the Scottish database and is growing with every month.

What accounts for that difference? As I have said, the Scottish system is in keeping with the criminological data on reoffending, which shows that repeat offending is likely to take place within a comparatively short period. That evidence has been used in the context of serious crimes to determine the retention, for a limited period, of samples from individuals who have had a connection with a crime, even if they were not convicted. It is clear that here is a tried and tested system which is immeasurably better that the one currently in operation in England, Wales and Northern Ireland. We should implement it as soon as possible. To put off resolution of this issue yet again would be wrong.

The Government have, if I might put it this way, avoided listening even to their own expert advisory bodies on this matter for some years. Ever since the Marper case they have being adding tens of thousands of samples to the database every month. There is no guarantee that any Bill introduced in the next Session will be able to complete its progress through both Houses before a general election. We on these Benches take the view that this House has a window of opportunity now and that we ought to seize it. The Government have kicked the matter of the database into the long grass again and again, and for long enough. We do not wish to see that happen again. This amendment would allow us to tackle crime more effectively and, at the same time, to restore the fundamental rights of individuals. I beg to move.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

My Lords, I do not know whether the noble Baroness is aware that her amendment has the indirect support of the European Court of Human Rights. In paragraph 109 of the judgment on the Marper case, the court said:

"The current position of Scotland, as a part of the United Kingdom itself, is of particular significance in this regard. As noted above ... the Scottish Parliament voted to allow retention of the DNA of unconvicted persons only in the case of adults charged with violent or sexual offences and even then, for three years only, with the possibility of an extension to keep the DNA sample and data for a further two years with the consent of a sheriff.

This position"— that is, the Scottish position—

"is notably consistent with Committee of Ministers' Recommendation ... which stresses the need for an approach which discriminates between different kinds of cases and for the application of strictly defined storage periods for data, even in more serious cases ... Against this background, England, Wales and Northern Ireland appear to be the only jurisdictions within the Council of Europe"— which of course comprises 47 countries—

"to allow the indefinite retention of fingerprint and DNA material of any person of any age suspected of any recordable offence".

To the extent that Amendment 97 mirrors the Scottish legislation, there is strong indication from the Strasbourg court that something along those lines is required.

I am not going to make a long speech. I am a member of the Joint Committee on Human Rights, and we have drawn attention to our dissatisfaction with the lack of progress. On 29 October, our chairman wrote to the Home Secretary, and I hope that the noble Lord, Lord West, has been informed of this by his officials. I expect that, under his jurisdiction, the Home Office will become as efficient as the Queen's Navy; that is not a joke.

We asked four questions in that letter, to be answered by today. I do not believe that there has been any reply. I will now repeat those questions, in the hope that they can at least be answered orally, if not in accordance with the letter. I shall say slowly what Mr Dismore, MP, wrote, to give time. He wrote:

"Given the decision to remove the clauses from the Policing and Crime Bill, we are writing to request an update on the Government's proposals for implementing this important judgment. In addition to an update on the next steps that the Government proposes to take, we would be grateful if you could respond to the following questions:

1. Does the Government propose to use the Policing, Crime and Security Bill in the next Session to implement the judgment?2. Within what timescale does it anticipate implementation will take effect?".

Question number 3 is surely important:

"3. In the mean time, what guidance, if any, has the Government provided to police officers about how to exercise their discretion to remove data from police records?

4. Does the Government consider that the data of unconvicted children under the age of 18 should be treated differently to adults during this period? If so, how?".

The last point in the letter is our reference to the fact that,

"The Committee of Ministers of the Council of Europe are going to consider the UK's implementation of Marper at the December meeting. Can the Committee please have copies of the Government's submission of the Committee of Ministers for the meeting to ensure that it is regularly updated? In view of the forthcoming debates on the Policing and Crime Bill, I would be grateful for a response by 5 November, and if you could send a Word version to"— the email address.

That was copied to Mr Wills, but was sent to the Home Secretary on 29 October. It would be fair enough to get an oral explanation of the answers to those questions if it could not be done in writing. I am sure that it has been read by officials, because they are normally courteous and efficient in looking at statements. Given the importance of the issue, I can repeat the questions if necessary, but I would be very glad indeed if the Minister could deal with them now. I sympathise with him. He has the helpless look of a Minister who has not been briefed on it, but the officials ought to be able, if others will speak, to give at least an outline answer to those four questions by the time he replies.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office 6:15 pm, 5th November 2009

My Lords, we support this amendment. We believe that the Scottish model provides a good starting point and a good model. We share a great deal of the scepticism of the noble Baroness, Lady Neville-Jones, about whether the legislation, if it comes in during the next Session, will get on to the statute book before any election. It is very urgent to fulfil the terms of the European Court. We ought, in any case, to have a regime that we can be proud of.

We also believe that there should be a separate scheme for the retention of DNA taken from those under 18. If, having had the experience of the Scottish model, we were going to make any improvements at all to it, we would want to do something more about samples from people who are totally innocent—anyone who has been, for example, wrongfully arrested, and therefore not cautioned, and certainly not convicted. With those caveats, we support the amendment.

Photo of The Bishop of Lincoln The Bishop of Lincoln Bishop

My Lords, I wonder whether noble Lords would permit me to locate this debate within a wider debate. My sense is that in recent years there has been a significant erosion of confidence. Those who have had charges made against them, and where criminal proceedings have not been instituted, have nonetheless felt that they have not been thereby declared innocent. This has happened significantly in relation to Criminal Records Bureau matters. I speak as chair of the Church of England Board of Education, and in many schools there are those who have had accusations made against them. These remain on the record although no criminal proceedings were ever instituted.

These are sensitive matters. I understand that it may not always be appropriate for the record to be totally cleaned, as it were. However, if there is any opportunity that can be taken now to redress that incipient lack of trust and confidence in the fact that once a person has not had criminal proceedings instituted against them, they are therefore innocent and there is no retention of evidence, we should take it. They may still feel that they are held to be accountable even though they have never been convicted. I present this within that wider context. I hope that accepting this amendment would perhaps give a signal, which could be a very welcome one in a culture of growing mistrust.

Photo of Lord Brett Lord Brett Government Whip, Parliamentary Under-Secretary of State, Home Office, Government Whip, Parliamentary Under-Secretary (Home Office) (Identity) (also Lord in Waiting)

My Lords, I will try to be brief in addressing the issues, given that we have less than 45 minutes to complete Report stage. First, on the question of delay, the judgment in S and Marper came two weeks before the Policing and Crime Bill was introduced. It came as a surprise, not least because it overturned a unanimous decision of this House and the judiciary. It obviously did not leave enough time for detailed legislative proposals to be worked into the Bill.

We consulted the public over the summer and received over 500 responses. We considered the contents of those responses, as well as the report of the House of Lords Delegated Powers and Regulatory Reform Committee. We were severely criticised for seeking to provide a secondary legislative channel to deal with this matter urgently after the passage of the Bill. That criticism, which was widespread in the House and upheld in Committee, persuaded the Government to withdraw the proposal to use secondary legislation and to give a commitment that we would bring the issue back at the earliest possible opportunity in new legislation.

We have considered the merits of adopting a retention framework along the lines of that used in Scotland. If that framework is not mirrored, it is the formulation that arises in these amendments.

The initial evidence from the consultation document issued in May suggests that the seriousness of the initial offence for which a person is arrested is not a good indicator of the seriousness of subsequent offences with which that person may be associated. Often, profiles that are ultimately linked to murder cases were originally taken for drug cases. Therefore, if we were to adopt a policy of retaining profiles only where an individual was arrested for a serious or violent offence, as applies in Scotland, we would risk missing numerous, possibly vital, detections. We remain convinced that the biometrics of all those who have DNA and fingerprints taken on arrest should be retained for a finite period, which represents a proportionate response to the potential risk to public safety. We have done, and continue to do, considerable further work on what these periods might be and we will bring forward our substantive proposals very soon.

I have addressed the concerns expressed with regard to enabling powers. I say to the noble Lord, Lord Lester of Herne Hill, that the look of bewilderment on my countenance and that of my noble friend Lord West was due to the fact that no formal letter has yet been received at the Home Office. Therefore, we have no answers, because no questions have been put to us formally. I cannot add anything to that.

However, given the criticism that was made of an attempt to introduce this measure via secondary legislation, when the government proposals are available a very full discussion will be held on them in both Houses, as this is a very serious issue. We have no intention of avoiding our responsibility in S and Marper. We wish to address that at the earliest possible opportunity. In essence, that is probably the answer to the first of the questions that the noble Lord, Lord Lester, posed. However, this amendment would not provide the platform that we believe we need to have. Given that explanation, I hope that the noble Baroness will withdraw the amendment.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

Before the noble Lord sits down, on the last point, could he at least undertake to provide the committee with the submission that the Government will make to the Committee of Ministers of the Council of Europe for their December DH meeting in order that the committee can see the nature of the defence that is being made by the Government for their failure so far to abide by the judgment in the Marper case? That would not require any extra work, simply disclosure to our committee, which is responsible for monitoring the execution of judgments against the United Kingdom.

Photo of Lord Brett Lord Brett Government Whip, Parliamentary Under-Secretary of State, Home Office, Government Whip, Parliamentary Under-Secretary (Home Office) (Identity) (also Lord in Waiting)

I undertake to take that request back to my colleagues in the Home Office. We are not in a position to anticipate the Queen's Speech. However, as I said, we are committed to bringing forward legislation as soon as possible. We have continued the relevant work. I hope that that response will engender sufficient confidence in the noble Baroness to enable her to withdraw the amendment.

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs

My Lords, the Government should not have been surprised by the Marper judgment. The system prevailing in England, Wales and Northern Ireland has been subject to extraordinarily widespread and sustained criticism for a long time and does not accord with the civil liberties of individuals. I am grateful for the support of the right reverend Prelate, who said that the system undermined confidence and trust in government.

It is good to hear that the Government are serious in their intention to bring forward legislation. However, I think that there are likely to be fundamental differences between what we on this side of the House consider constitutes an appropriate size and function of database and what the Minister is saying it should comprise. We believe that Scotland has a tried and tested functioning system. It is therefore not the case that there is no system working in this country which is available for early adoption. In fact, we would say that it is available for immediate adoption. That system has demonstrated its worth and has a higher rate of matching than the much bigger database in this country, which contains the names of people who should not be on it.

There are real difficulties about continuing as we are. Every month, some 40,000 names are added. Approximately one in 10 people in this country now have their data on that database. That seems to be quite wrong. I accept what the Minister said about the seriousness of the Government's intentions. We are grateful for the support of the Benches next door. However, we believe that this situation, which is a very unsatisfactory system which contravenes the long-standing view of the balance between security, crime and individual rights, should not persist, because we can replace it with something that is immeasurably better. Therefore, I should like to test the opinion of the House.

Division on Amendment 97

Contents 45; Not-Contents 57.

Amendment 97 disagreed.

Division number 4 Policing and Crime Bill — Report (2nd Day)

Aye: 43 Members of the House of Lords

No: 55 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Amendment 97ZA

Moved by Baroness Miller of Chilthorne Domer

97ZA: After Clause 96, insert the following new Clause—

"Police retention of photographs

"(1) The Secretary of State must, as soon as possible, issue a code of practice to police authorities and chief constables relating to—

(a) the taking of photographs by the police of individuals who have not been arrested and those who have not been charged with or found guilty of a crime;

(b) the retention of such photographs by the police;

(c) the circumstances in which such photographs may be shared;

(d) the uses to which such photographs may be put; and

(e) the destruction of such photographs at the earliest possible opportunity, in the absence of a reasonable basis for suspecting that the individual might commit an offence.

(2) Among other things, the code of practice must make reference to—

(a) Article 8(1) right to privacy, set out in the Human Rights Act 1998 (c. 42); and

(b) the data protection principles in section 4 of the Data Protection Act 1998 (c. 29).

(3) The Secretary of State may from time to time revise the whole or part of any code of practice issued under this section."

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office 6:36 pm, 5th November 2009

My Lords, a moment ago the right reverend Prelate the Bishop of Lincoln referred to the erosion of privacy. This amendment takes us back to the same theme and concerns the retention of photos of innocent people—people who have not been charged with, or found guilty of, anything. When I tabled a similar amendment during consideration of a different Bill, the Minister said that the PACE codes were not the appropriate place to put any guidance for the police on how long they should keep photos of innocent people, or on any other matters pertaining to them taking photos of people attending meetings, demonstrations and so on. This amendment requires the Secretary of State to draw up a code of practice. Given that the PACE code is not the appropriate place for such guidance, I hope that the Government will see this as a constructive way forward. I beg to move.

Photo of Lord Brett Lord Brett Government Whip, Parliamentary Under-Secretary of State, Home Office, Government Whip, Parliamentary Under-Secretary (Home Office) (Identity) (also Lord in Waiting)

My Lords, I fully understand the noble Baroness's concern about the retention of photographs and I wholly appreciate that the newspaper headlines last week probably steeled her resolve to ensure that that issue is properly addressed. I hope I can reassure her today. Through this amendment she seeks a code of practice. Although the Government do not support the issue of a separate code of practice on photographs, we will look at the issue of codes of practice in the round in the light of the forthcoming review of Her Majesty's Inspectorate of Constabulary. In the forthcoming policing White Paper, we shall make our position clear. We certainly support the idea of proper guidance and training on the taking and use of photographs. There are already powers in the Police Act 1996, which allow the Secretary of State to issue codes of practice for the police service. It is not appropriate to compel the Secretary of State to issue codes through primary legislation. For those reasons, I ask the noble Baroness to withdraw her amendment. I hope that my reply has given her sufficient comfort.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office

My Lords, I thank the Minister for his reply and look forward to further guidance on the taking and retention of photographs, which is critical. In the mean time, I beg leave to withdraw the amendment.

Amendment 97ZA withdrawn.

Clause 97 : General information powers in relation to persons entering or leaving the UK

Amendment 97A

Moved by Baroness Harris of Richmond

97A: Clause 97, page 122, line 26, at end insert—

"( ) The requirement to produce a passport under subsection (1)(a) does not extend to a person on a local journey within the common travel area as defined under section 1(3) of the Immigration Act 1971."

Photo of Baroness Harris of Richmond Baroness Harris of Richmond Deputy Speaker in the Lords, Deputy spokesperson for Northern Ireland, Home Affairs spokesperson for police matters, Deputy Speaker (Lords)

My Lords, I am most grateful to the Minister and his Bill team for the meeting which they organised to address our concerns on this part of the Bill and for the subsequent and very full letter in which he further elaborates on Clause 97. I fully understand what the Government are doing; I just do not agree with it. It will be quite important for some of the contents of his letter to be on the record in Hansard, so I hope he will forgive me for referring to it in some detail. One sentence gave me some cause for concern, notably when he says:

"I think we all recognise that UKBA officers have a very difficult job to do but that they carry out their functions to a high standard and in a professional manner. There is no question of these officers routinely disregarding the clear statutory and non-statutory limits imposed upon them and deliberately misusing their customs powers for immigration purposes".

I emphasise "routinely disregarding" because I am concerned that United Kingdom Border Agency officers should never even think of disregarding, never mind routinely disregarding, parliamentary legislation. Therein lies the rub. In another part of the letter we are told that monitoring of these officers will be done by the chief inspector of the UKBA. I would be amazed if he routinely disregarded what his officers were doing. Will his report on their performance be made public?

If we are to satisfy ourselves that all is well with this dual-category organisation, which has enormous powers, we will need to assure ourselves that they are performing their functions in a legal and proper way. Who is to know whether they are using their powers under Schedule 7 to the Terrorism Act 2000 or these powers? That Act already gives them power to demand passports or identity documents, including on common travel area routes, presumably on intelligence gained from somewhere. So why these extra powers? Is the Minister able to tell me how things have got so much worse recently in the CTA between the Republic of Ireland, Northern Ireland and the Crown Dependencies? Are there suddenly hordes of people coming into this country from these areas in which the intelligence community has an interest? Are there any statistics the Minister can give me to back this up? In his letter, he talks about the mix of people in arrivals and writes:

"Officers may be targeting other higher risk flights but might inadvertently breach the restriction on asking for passports from CTA travellers".

I thought these highly trained officers were acting on intelligence to target certain people, not inadvertently breaching the restriction on asking for passports from CTA travellers.

However, I was heartened to read that misuse of these customs powers for checking the immigration status of a traveller would be unlawful, but who will be qualified enough in the travelling general public to stand up for their rights if they feel they are being infringed? The Minister goes on to say that European law does not allow for customs checks on movements between the Republic of Ireland and the UK to be used disproportionately. What does that mean? Who will decide what is proportionate? Will the Minister undertake to have guidance on this published and visible to the travelling public at ports of entry so that they may know the reason why such checks are being undertaken? If he will not go so far, will he ensure that anyone stopped is, rather like police stop-and- account procedure, given a copy of the reasons for the stop?

I must comment on consultation. Since I began on this lonely road a few days ago, I have had a number of e-mails, notably from the Isle of Man. I am advised that proper consultation on these proposed measures has not taken place. Indeed, in appendix 1 of his letter, the Minister states quite clearly:

"Consultation was not deemed necessary ... as the measures are to clarify and support current operational practice and will not introduce any new requirements to carry passports where none have previously been required".

I think residents of the Isle of Man might find that explanation a bit elliptical. I am reminded that while the Isle of Man is in a customs union with the UK, that might not always be the case. The UK has just unilaterally amended the so-called common purse agreement with the Isle of Man, which will ensure that it will lose a significant proportion of its existing VAT revenue, so there is justification for concern about this Government's mission creep.

Let me clear on this matter: as there are no plans for actual fixed identity controls, will there be ad hoc identity checks on people from the Isle of Man? If so, what happens if the person stopped does not have a requisite document? The Minister's assertion in Committee that some sort of photo ID is required and that he could not think of any exceptions is wrong. Not all Manx residents have passports, and there may well be very good reasons for people to travel from there at short notice for, say, urgent medical treatment. Does this not create a default position whereby the only way anybody can prove they have a right to be in the UK is on production of a passport or some other identifying document not presently needed for travel purposes?

Finally, I reiterate the crux of my concerns that vesting customs and immigration powers in one individual will obviously mean that a document check for customs purposes will also be a document check for immigration purposes. How else can it be? The UKBA officer's responsibilities are deliberately interchangeable, and it is disingenuous to say that these powers are to be used only for customs purposes. I urge the Minister to wait until there has been proper consultation in the Isle of Man and Northern Ireland, particularly so that people can fully understand the implications of this proposal.

As far as the other Crown dependencies and the Republic of Ireland are concerned, I say simply this; you have been warned. I beg to move.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative 6:45 pm, 5th November 2009

My Lords, I, like the noble Baroness, Lady Harris, was concerned about this clause in Committee and elsewhere, as the Minister may recall, but I have been more reassured by his letter and by my contact with the Isle of Man since then that these are only customs powers and will not be used for immigration purposes. However, I am still not really clear about the reason for adopting the clause if it is not for immigration purposes. Nor am I clear quite how it will work.

As we said before, under the clause, customs officers can require the production of a passport or similar document. On the other hand, it does not seem to be an offence not to produce them. If you do not have them, you cannot anyway. I also understand that there has been no requirement to show identity of this kind on sea ferries to the Isle of Man, although there has been, for quite other reasons, on the air links. Without this being an offence, the clause is pretty useless. The officer may have the power to "require" identity, as the Bill says, but if no one has a duty to obey that requirement and there is no penalty for not obeying it, I am not quite sure how powerful it is. However, I am, as I say, reassured that the immigration provisions of the common travel area will not be affected, and so, I understand, are the Isle of Man Government.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

My Lords, I have a question to ask the Minister before those on the Benches beside me reply. I travel back and forth to my holiday home in the Republic of Ireland all the time, and have done so for 36 years, and the Irish authorities, customs and immigration have never asked me for a passport. I take it that there has been no change in reciprocity in the common travel area between us and the Republic. Other noble Lords with the same kind of interests as mine have raised this in the past.

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs

My Lords, the Minister sent your Lordships' House a helpful letter on the subject, which we, like my noble friend, found reassuring. It explained how the Government intend to use the power, and noted various safeguards. In the light of that very letter, however, I do not see how the Government would have difficulty in accepting an explicit safeguard in the Bill that accords with the clear intention of the letter. They ought to be able to accept it easily. It would give the reassurance that is needed and which would allay the doubt that still pertains more generally.

Do the Government intend to produce guidance for UKBA officers on how they should use the powers under Clause 97? That would also help to allay anxiety on this score.

Photo of Lord Brett Lord Brett Government Whip, Parliamentary Under-Secretary of State, Home Office, Government Whip, Parliamentary Under-Secretary (Home Office) (Identity) (also Lord in Waiting)

I thank noble Lords who have participated in this short debate, which has persuaded me perhaps that shorter letters are better than long letters because they do not leave as much opportunity for ambiguity. As we set out in the letter dated 28 October and as we said in Committee, there are already significant statutory safeguards built into this clause. They will be inserted into the Customs and Excise Management Act 1979. It is a customs power. As far as travellers to the Republic are concerned, its use is necessary in connection with checks to enforce prohibitions and restrictions, for example, on drugs and weapons. To use the power with the intention of checking the immigration status of travellers would be unlawful. I hope that that answers the question asked by the noble Lord, Lord Lester.

I can reassure the whole House yet again that this is not an attempt by the Government to introduce immigration controls by the back door through the CTA. It is simply a clarification of a customs power, which is limited by statute to customs matters. The noble Lord, Lord Cope, asked the most pertinent question when he asked what has happened to cause these powers to be brought forward. This clause is particularly required because of the change in the way that customs powers work. They are now intelligence-led, without necessarily having the same fixed customs points we had before. This power merely clarifies and provides an explicit power for the production of passports and other travel documents.

In respect of the Isle of Man, I understand that consultation has taken place. There are no proposals to change customs arrangements with the Isle of Man. There are no customs checks and they do not apply there. Nothing has changed in that regard. The good news, which I think will reassure the Opposition and Liberal Democrat Front Benches, is that guidance will be published on the use of the powers by the UKBA and that the report of the chief inspector on this matter will be public. Normally all such reports are public, with confidential information withheld.

I hear the siren call, and it is seductive, that this would be better in the Bill. I believe that it would not. Some of the dangers and suspicions of misuse by customs officers in the guise of immigration officers is more than a little unfair on the staff concerned. Police officers have different powers, which they know when to apply because they are trained and they have guidance. Having trained UKBA officers in this regard, it is our intention to ensure that they have guidance as well. With that reassurance, I hope that the noble Baroness will withdraw her amendment.

Photo of Baroness Harris of Richmond Baroness Harris of Richmond Deputy Speaker in the Lords, Deputy spokesperson for Northern Ireland, Home Affairs spokesperson for police matters, Deputy Speaker (Lords)

I thank the Minister. I take the points that he has made. I have made mine. I beg leave to withdraw the amendment.

Amendment 97A withdrawn.

Amendment 98

Moved by Lord Lester of Herne Hill

98: After Clause 110, insert the following new Clause—

"Exemption from civil proceedings for trespass brought by offender

(1) Section 329 of the Criminal Justice Act 2003 (c. 44) (criminal proceedings for trespass to the person brought by offender) is amended as follows.

(2) After subsection (1) insert—

"(1A) This section does not apply where the defendant was at the material time a constable acting in the course of his duty.""

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

In the debate on 20 October, I promised to bring this issue back in order for the Minister to have the opportunity of clarifying the matter. There is no need at this hour for me to rehearse the basic problem, other than to say that what has been happening, so the Court of Appeal has pointed out, is that the police and only the police have been taking advantage of an exemption from civil proceedings for trespass brought by an offender. The Court of Appeal has expressed great concern about the matter.

The noble Lord, Lord Brett, pointed out that my amendment did not address all the scenarios, especially the situation of an off-duty constable who finds an intruder in his home, which is why I introduced this amendment to take care of that and to make sure that it applies only in the execution of a police officer's duty. I will not of course press this to a Division and I know that the Government are committed to consultation. I mentioned to the noble and learned Baroness the Attorney-General that the Court of Appeal had quoted her and the noble Lord, Lord Hunt of Wirral, in the debates which led to this defence. The Court of Appeal interpreted what was said in those debates as indicating that there was no intention of protecting anyone other than a private individual. It pointed out the constitutional problems if police officers with their own special regime were given this extra defence. That is why the Court of Appeal raised the issue and why it is important to raise it here, but we now need to hear from the Minister. I beg to move.

Photo of Lord Brett Lord Brett Government Whip, Parliamentary Under-Secretary of State, Home Office, Government Whip, Parliamentary Under-Secretary (Home Office) (Identity) (also Lord in Waiting)

My Lords, I thank the noble Lord, Lord Lester of Herne Hill, for raising this issue in Committee. On that occasion we said that while we were grateful that he highlighted the point, we thought it appropriate to consult somewhat more widely to see whether a change to the law would be required outside of this Bill. We accept that nothing in Section 329 indicates that this particular piece of legislation was intended to apply to the police, nor is there anything in Hansard to suggest that Parliament had its application to the police in mind.

As we have said, we will consult interested parties on whether this provision should be amended, and in particular we will examine whether it is an unintended consequence that this section can be invoked by the police. With that reassurance on the consultation, I should be grateful if the noble Lord would withdraw his amendment.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

My Lords, I am grateful. This was raised on the last occasion at 11 o'clock at night, and now again it is late. Before I withdraw the amendment, perhaps I may make a suggestion as we approach Christmas. The Lord Speaker might consider creating a Christmas competition for the Peer who made on average the briefest speeches throughout the preceding year, including barristers. With that, I beg leave to withdraw the amendment.

Amendment 98 withdrawn.

Clause 111 : Minor and consequential amendments and repeals and revocations

Amendments 99 and 100 not moved.

Schedule 7 : Minor and consequential amendments

Amendment 100A not moved.

Amendments 101 to 127

Moved by Lord West of Spithead

101: Schedule 7, page 173, line 12, leave out "Sex encounter venues" and insert "Sexual entertainment venues"

102: Schedule 7, page 173, line 14, leave out "sex encounter venue" and insert "sexual entertainment venue"

103: Schedule 7, page 173, line 23, leave out "sex encounter venue" and insert "sexual entertainment venue"

104: Schedule 7, page 174, line 1 , leave out "sex encounter venue" and insert "sexual entertainment venue"

105: Schedule 7, page 175, line 16, at end insert—

"30A In section 25A(6) (grant of premises licence: supply of alcohol from community premises) for "(4)" substitute "(5)"."

106: Schedule 7, page 175, line 18, leave out from second "21"" to end of line 21

107: Schedule 7, page 175, line 21, at end insert—

"31A In section 41D(5) (variation of premises licence: supply of alcohol from community premises) for "(4)" substitute "(5)"."

108: Schedule 7, page 175, line 24, leave out from second "21"" to end of line 27

109: Schedule 7, page 175, line 27, at end insert—

"32A In section 52A(3) (review: supply of alcohol from community premises) for "20 and 21" substitute "19(4) and 19A to 21"."

110: Schedule 7, page 175, line 29, leave out from second "21"" to end of line 32

111: Schedule 7, page 175, line 35, leave out "general" and insert "mandatory"

112: Schedule 7, page 175, line 38, leave out "general" and insert "mandatory"

113: Schedule 7, page 175, line 41, leave out "general" and insert "mandatory"

114: Schedule 7, page 176, line 2, leave out "general" and insert "mandatory"

115: Schedule 7, page 176, line 4, leave out "section 19(4), 19A or 21A" and insert "section 19(4) or 19A"

116: Schedule 7, page 176, line 11, at end insert "and"

117: Schedule 7, page 176, line 12, leave out from ""alcohol"" to end of line 15

118: Schedule 7, page 176, line 18, at end insert "and"

119: Schedule 7, page 176, line 19, leave out from ""alcohol"" to end of line 22

120: Schedule 7, page 176, line 25, leave out "general" and insert "mandatory"

121: Schedule 7, page 176, line 27, leave out "general" and insert "mandatory"

122: Schedule 7, page 176, line 30, leave out "general" and insert "mandatory"

123: Schedule 7, page 176, line 32, leave out "general" and insert "mandatory"

124: Schedule 7, page 176, line 34, leave out "section 73A, 73B or 74A" and insert "section 73A or 73B"

125: Schedule 7, page 176, line 36, leave out from second "21"" to end of line 39

126: Schedule 7, page 176, leave out lines 42 to 44 and insert—

""(aa) an order under section 19A or 73B (orders in relation to mandatory licensing conditions),"."

127: Schedule 7, page 177, line 3, leave out sub-paragraph (4)

Amendments 101 to 127 agreed.

Amendment 128

Moved by Lord Brett

128: Schedule 7, page 193, line 7, at end insert—

"Part 8AExtradition

113A In section 185(5) of the Extradition Act 2003 (c. 41) (limit on fees and expenses) after "amount" insert "allowed"."

Photo of Lord Brett Lord Brett Government Whip, Parliamentary Under-Secretary of State, Home Office, Government Whip, Parliamentary Under-Secretary (Home Office) (Identity) (also Lord in Waiting)

My Lords, Amendments 128 and 129 are minor and technical amendments that correct a typographical error in Section 185(5) of the Extradition Act 2003 which was made when the provision was amended by the Constitutional Reform Act 2005, and correct a minor error in the commencement powers in relation to Clause 98. This will ensure that the corresponding entries to the clause and the schedule commence at the same time by Treasury order. I beg to move.

Amendment 128 agreed.

Clause 115 : Commencement

Amendment 129

Moved by Lord Brett

129: Clause 115, page 133, line 4, after "98" insert "and Part 9 of Schedule 8 (and section 111(2) so far as relating to that Part)"

Amendment 129 agreed.

Amendment 130 not moved.

House adjourned at 6.59 pm.