Clause 3 - Conduct prohibited without a licence

Private Security Industry Bill [Lords] – in a Public Bill Committee at 12:30 pm on 24th April 2001.

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Photo of John Bercow John Bercow Shadow Spokesperson (Home Affairs) 12:30 pm, 24th April 2001

I beg to move amendment No. 43, in page 2, line 31, at end insert—

`(1A) For the purposes of subsection (2), ``licensable conduct'' includes only conduct which is carried out in return for payment.'.

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to take amendment No. 44, in page 2, line 31, at end insert—

`(1A) For the purposes of subsection (2), ``licensable conduct'' includes only conduct which is carried out in return for payment in excess of such amount as may be specified by order made by the Secretary of State.'.

Photo of John Bercow John Bercow Shadow Spokesperson (Home Affairs)

Amendment No. 43 is designed to clarify the clause and to demonstrate beyond doubt that licensable conduct is conduct that is carried out in return for payment. Amendment No. 44 is a little more explicit. Both amendments concern issues that were raised in another place on 30 January by my noble Friends at columns 604-609 of the Official Report. We are anxious to probe a legitimate issue. How far down the scale is it intended that the Bill should reach in terms of licensable conduct? Obviously, it will include firms that supply security guards on contract in return for payment. We come again to the issue of whether something is permissive but broad, or explicit and limited. As the unamended clause stands, we do not know how tightly drawn the proposal is, which is why the amendments are designed to establish beyond doubt that what is involved is conduct that is carried out in return for payment.

I think that the Government are inclined to argue that that is what they have in mind, but it is not clear from the Bill that that is what is permitted. Firms that provide security guards on contract in return for payment are covered, but how far will the clause extend into the grey areas of licensable conduct? Let us consider, for example, someone who is unpaid or someone who is paid a small sum to look after the door at a local event, perhaps in extremis; in circumstances that could not have been envisaged beforehand. The sum involved might be small—£5, for example—but would such a circumstance be covered? That is not entirely clear.

How will the Bill affect people who may perform security-related activities on a one-off basis and without payment. In another place, my noble Friend Lord Cope of Berkeley cited the example of someone acting as a door supervisor at a charity jumble sale. Would such a person be caught by the provisions of the Bill? I want to establish not Ministers' personal preference as to the interpretation of the clause, but what, on legal advice and justification, they are at liberty to say that the Bill allows.

How will churchwardens and other volunteers who might have a security role be affected? It may be that, at the event in question, their exclusive duty—not even their main one—is to act in a security capacity, even though their normal role is that of churchwarden or another similar, or dissimilar, function. In such circumstances, would the exemptions in schedule 2 be sufficient to stop them being affected?

How would the provisions of schedule 2—which, clearly, is inextricably bound up with the consideration of this clause and amendments thereto—relate to someone who held his or her neighbour's house keys and otherwise looked after his or her neighbour's house while that neighbour went on holiday? Would such a person be covered by the existing wording? The answer is probably that the Government would not want that, but how can we be sure beyond doubt that the provisions of the Bill could not be so extended, for example, if the house were especially large, and the burden of responsibility were considered especially great, not least if the property in question had been subject to professional criminal invasion on previous occasions? We need to be sure that such a person would not be caught by the provision, because that person might have a primary and even exclusive responsibility for guarding that property for the period in question. Would he or she be covered? If not, how can we be certain?

I am aware that Lord Bassam of Brighton went some way towards seeking to assuage those concerns on 13 January. Will the Minister not only assure us that the Bill is not intended to catch the sorts of activities that I have described, but, as Minister of State at the Home Office, assure us unequivocally that its scope could not, under any circumstances, be so extended? It is not yet clear that we have received an assurance of that kind.

The Minister, characteristically but equally unfairly, accused me earlier of making a mountain out of a molehill. I was doing nothing of the kind; as he knows, I will never be dissuaded from exploring legitimate issues on behalf of my hon. Friends simply because of such downmarket, low, music hall abuse. However, the point can be made, and has been made, simply. I hope that the Minister can provide the reassurance sought. On the strength of that explanation, I rest content that I have made the point that I wish to make.

Photo of Rosie Winterton Rosie Winterton Labour, Doncaster Central 12:45 pm, 24th April 2001

I want to speak briefly on the matter, because I fear that my constituents, who have suffered at the hands of wheelclampers, would be distressed by the amendment. Indeed, they would be so distressed that I am not sure that they should be told about it, but I fear that I may have to inform them of the actions of the Conservative party. They would be distressed because the amendment would allow wheelclamping to continue as at present, as many wheelclampers are not paid by the landowners from whose property they operate.

On Second Reading, Opposition Members expressed concerns about the activities of wheelclampers and I thought that they understood why it was necessary to license them. I also thought that they were aware that, frequently, landowners allow wheelclampers to operate on their land but do not employ or pay them, and they make it clear that that is the case. I fear that wheelclampers give under-the-counter money to landowners in return for being allowed to operate on their land, which is why the amendment was tabled in the other place. Landowners must take responsibility for what happens on their land.

I fear that the amendment will give wheelclampers free rein to carry on as before. As they are not paid for the hours that they work, they must collect fees and fines from the drivers of the cars that they clamp.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I hope that I will be able to give reassurances concerning wheelclamping that my hon. Friend will find useful with regard to the arguments in her constituency. She has long campaigned about the problem, and she is right to point out that the Opposition's amendment could inhibit our ability to deal with it.

The amendment would build into the definition of ``licensable conduct'' the condition that it must be undertaken in return for payment in excess of a sum that the Secretary of State would prescribe by secondary legislation. That is intended to protect volunteers and others from regulations, and to protect small businesses from disproportionately costly legislation. I applaud that aim. Such concerns were key reasons why so many consultations were held concerning the Bill and the preceding White Paper.

First, I will deal with people who might undertake relevant activities but are not remunerated, such as churchwardens—an example that the hon. Member for Buckingham mentioned—someone who is working unpaid for a school, or the neighbour who is a key holder. Such people will not be regulated. The Bill is directed at people who provide services under contract, or who are employed in-house, such as door supervisors and wheelclampers. Such matters are covered in clause 3 and schedule 2.

The licensing arrangements do not apply to the majority of people who undertake the activities of a security operative on a no-contract or reward-free basis: the main exception is wheelclampers, and I will deal with that issue later. I hope that the hon. Member for Buckingham will accept my assurance that the kinds of people about whom he was expressing concern are not covered by the Bill.

To refer to a previous discussion about an earlier clause, the Bill also does not apply to people who carry out security-related activities that are incidental to their main employment, such as people who work with schools, churches or registered charities. However, if a school, church or charity were to hire security operatives under contract, it is right that it should expect the company contracted to have been vetted to a national standard, and licensed. If the security operatives used were employed in-house, they would be exempted from the licensing requirement and it would be the organisation's responsibility to vet its own staff.

One may imagine a school fete, which would be a substantial event with many people attending during a weekend. The school may decide that the best way to police such an event would be to bring in a company under contract for the afternoon. We believe that such a company should be covered so that the school may know that the company is reputable. I recall a St. Trinian's film about a school fete in which the contractors brought in were criminals—the hon. Member for Buckingham will know of the St. Trinian's types—and worked with the girls at the school to engage in illicit activities. I think that St. Trinian's school would have been much happier if the security company had been properly regulated.

Photo of John Bercow John Bercow Shadow Spokesperson (Home Affairs)

With respect to the Minister's slightly unnecessary aside, my experience of such matters is confined to Finchley Manorhill comprehensive school in Finchley. I cannot comment on his public school experiences.

I took on board the Minister's comments about charitable functions. Can I establish that he is not arguing—or, if he is, that he can justify it himself—that a contract always either implies or presupposes remuneration? Is he not prepared to admit that there are circumstances in which a contractual arrangement may not involve payment?

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I have not addressed that point before now. I have always assumed that a contract involves payment for services rendered, although it may be indirect. Would someone provide a service to another—in whatever form and whatever the nature of the contract—for love or whatever? I do not know, but I will consider the matter.

Photo of John Bercow John Bercow Shadow Spokesperson (Home Affairs)

I am talking about the charitable context.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I understand that. The only exception to the general principle that I have described relates to the special case of wheelclamping. In that case only, the clause extends regulatory controls to others, such as landowners and those acting on their behalf, where they do not use a licensed contractor, but do their own clamping and charge a release fee. In case what I said on Second Reading in column 1058 should lead to any misunderstanding, I wish to make it clear that volunteers who engage in wheelclamping that involves a release fee would need a licence.

I turn to the exemption of activities below a level at which the Secretary of State would prescribe; the small business issue. During our consultations, we were warned about the dangers of excess regulation and cost, and we do not intend to go down that road. Regulation must be consistent, and it would be confusing and difficult to administer the exemption of small businesses from licensing. However, most importantly, that would exempt some of the businesses that are the source of much of the public disquiet that the Bill seeks to address. It is generally not the big reputable firms that harass the public by employing violent or abusive door supervisors, or who demand money with menaces from innocent wheelclamped motorists, but small companies, organisations and individuals who are the furthest from a reputable and non-criminal practice and must be regulated.

Under the amendment, a small company could be exempt from licensing because it carried out small jobs below the envisaged reward threshold, but would need to be licensed for a bigger job above any threshold that we put forward. The confusion involved in that could be a genuine difficulty. I acknowledge the need to protect small businesses, but the Bill is balanced, targeted and, generally, welcomed by the industry. I hope that I have provided clarification, and that the amendments will be withdrawn.

Photo of John Bercow John Bercow Shadow Spokesperson (Home Affairs)

I am rather more encouraged by the Minister's response to this set of amendments than I was by his response to amendment No. 19, and we do not intend the press the amendments. I should be grateful if he would consider seriously my point about contracts that do not require payment or other remuneration.

The Minister mentioned small-scale events, such as a person who undertakes to protect a house. His comments struck me on the whole as being reassuring, although I should like to examine them again in the Official Report. We may return to the matters at a later date if we are not fully satisfied, but the thrust of his comments was encouraging and satisfactory.

I point out, as I regularly do—I say this as a matter of pride to the hon. Member for Doncaster, Central—that I am not a lawyer. I cannot be absolutely certain that our amendments would not have the effect that she describes, but I do not believe that they would, and they are certainly not intended to do so. I do not believe that she is right. Her point about landowners permitting wheelclampers to operate on their land but not paying them is true, but it does not meet my point that they are nevertheless engaged in commercial activity and secure a return for it. Having considered the matter, I am not clear in my mind why the amendments would give them carte blanche. We certainly do not want or intend them to do so. As she knows from the effusive terms of my congratulation to her on Second Reading, I endorse and applaud her work on the subject. I do not believe that anything that we are suggesting would undermine it, but as we do not intend at this stage to press the amendments, the hon. Lady can rest assured.

Photo of Rosie Winterton Rosie Winterton Labour, Doncaster Central

The amendment states that

```licensable conduct' includes only conduct which is carried out in return for payment.''

I do not understand how that would cover the problems of wheelclampers. I still feel that it would allow them to continue working as they have been and would not enable them to be licensed.

Photo of John Bercow John Bercow Shadow Spokesperson (Home Affairs)

I do not believe that that is true, because such operators are ultimately rewarded. They would be prevented from continuing excessive, damaging and in some cases obnoxious and threatening activities.

I shall not press the amendments to a Division at this stage, in contrast to amendment No. 19, about which my hon. Friends and I feel especially strongly. I remind the Minister of the commitment that he made. I hope that he will feel able to reply to me in writing about the anxiety that I aired—to which he said that he had not previously given any thought—before we reach the next stage, or, if I may elliptically refer to it, before another event might intervene. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Mr Ronnie Fearn Mr Ronnie Fearn Liberal Democrat, Southport

I beg to move amendment No. 20, in page 2, line 40, leave out from `activities' to end of line 42.

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss amendment No. 21, in page 2, line 42, at end insert

`or as required for the purpose of, or in connection with, any contract he has with his employer.'.

Photo of Mr Ronnie Fearn Mr Ronnie Fearn Liberal Democrat, Southport

I am not sure whether we shall have time to debate the amendments before lunch or, indeed, whether we shall break for lunch.

We welcome the introduction of mandatory licensing for individuals, which involves all aspects of the private security industry. It goes to the heart of the Bill's intentions in ensuring that certain minimum standards are met. We also welcome the Government's clarification in the other place of who is subject to licensing and who is not. However, if the Bill is to ensure that the entire industry is subject to the same standards, why are licenses not required for in-house operatives? That is the basis for the amendment.

My noble Friend Lord Thomas of Gresford pressed the Government on the matter in the other place and has still not received a decent answer. Perhaps the Minister will answer me today. We support the need for licensing, but why are the Government allowing for a loophole by excluding in-house operatives? Under the amendment, clause 3(2)(b) would stop at the word ``activities''. The other words—

``for the purposes of, or in connection with, any contract for the supply of services under which his employer is or may be so required''— would be removed. I am not sure what those words mean. Perhaps the Minister will explain.

On amendment No. 21, would it not be more appropriate to add at the end of line 42

``or as required for the purpose of, or in connection with, any contract he has with his employer''?

In other words, if paragraph (b) is to be retained in its entirety, the wording in amendment No. 21 should be added.

It being One o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Four o'clock.