Clause 4 - Exemptions from licensing requirement

Private Security Industry Bill [Lords] – in a Public Bill Committee at 5:30 pm on 24th April 2001.

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Photo of Mr Ronnie Fearn Mr Ronnie Fearn Liberal Democrat, Southport 5:30 pm, 24th April 2001

I beg to move amendment No. 22, in page 4, line 34, leave out

``or, as the case may be,''

and insert ``and''.

The provision for exemption from licensing requirements seems reasonable; we all agree on that. However, we are concerned about the wide discretion given to the Secretary of State. Should not the authority, as the standard-setting body, agree whether an exemption is suitable? It would also be helpful to know when the Government envisage granting exemptions. Would they consider specifying in the Bill grounds on which exemptions might be allowed? As things stand, the Secretary of State can grant exemptions when suitable alternative arrangements exist, so in theory everyone is eligible for an exemption. Should there not be additional reasons for allowing exemptions, such as public interest grounds, which seem already to be established in the Bill? Perhaps the Minister will comment on that.

Given those concerns, we have tabled an amendment that would limit the Secretary of State's discretion. The amendment would require that both the authority ``and'' the Secretary of State be satisfied. It makes sense to require the authority to be consulted, as it will set the standards. It is a small and sensible amendment, so perhaps the Minister will accept it.

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

There might be some misunderstanding. My understanding is that amendment No. 22 would require both the Secretary of State and the authority to be satisfied that suitable alternative arrangements to licensing apply before a person may be exempt from licensing by virtue of subsections (1) or (2) of clause 4—that is, it requires a double approach. Our fundamental concern is about establishing parallel systems that will overload two different bodies—the Secretary of State and the authority—both of which will have to examine the same problem in any particular case. I urge the hon. Gentleman to withdraw the amendment.

Clause 4 provides for limited circumstances in which a person may engage in licensable conduct without possessing an appropriate licence from the authority. Subsection (1) permits the Secretary of State to make regulations establishing exemptions where he or she is satisfied that valid alternative vetting arrangements exist. If such valid alternatives are already applied in some circumstances, it would be superfluous and an unnecessary burden to require a licence also from the SIA. However, to do that, the Secretary of State must be sure that the arrangements provide adequate public protection.

Subsection (2) enables the regulations to delegate to the authority the power to determine whether an employer will ensure that suitable alternative arrangements apply. The authority may permit unlicensed persons temporarily to undertake licensable activities if they or their employers have received approved contractor status under clause 15 or have been given specific dispensation under clause 4, and if the security operatives already have a licence application pending and have not had a previous application rejected. Those are very narrow and precise circumstances. The public would, rightly, expect the general circumstances that are to be regarded as validly alternative to the authority's licensing procedures to be defined only after careful scrutiny.

Subsection (3) therefore requires that the proposed arrangements should satisfy the Secretary of State or the authority

``as the case may be''— the words that amendment No. 22 would delete—in relation to the protection of the public. To require the Secretary of State to give his or her agreement each time the authority judges that an employer meets the criteria laid down in the regulations would lead to a bureaucratic system in which two separate but parallel agencies had to approve certain decisions. That would be regarded as over-regulation.

I hope that that explanation is clear. There may have been some misunderstanding between us, in which case I hope that the hon. Gentleman will withdraw the amendment. If not, I ask him to consider the fact that the effect of the amendment would be to establish two parallel bureaucracies, which we believe would be unnecessarily burdensome. I hope that the hon. Gentleman will now change his course of action.

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

I can see that it might be overbearing if the Secretary of State and the authority both had to consider the same cases. Some cases being considered by the authority might eventually require the approval of the Secretary of State, but those cases would not be seen by him. Is that right?

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

In the Bill, the use of the phrase

``as the case may be'', means that either the Secretary of State or the authority will make a judgment in relation to the protection of the public. That judgment is the key that will determine the situation. In the overwhelming majority of cases, the authority would take the decision and the Secretary of State would not go through it in great detail. Our concern is that to require both, rather than either, to act ould be unnecessarily burdensome both upon the industry and upon the two organisations, the Home Office and the authorities.

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

With that explanation, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of John Bercow John Bercow Shadow Spokesperson (Home Affairs) 5:45 pm, 24th April 2001

I beg to move amendment No. 45, in page 5, line 8, at end insert—

``(6) A person may apply, on notice to the Authority, to the magistrates' court having jurisdiction over the area affected by the designated activities, for an exemption from the requirement to apply for a licence; and the Lord Chancellor may make an order as to the procedure to be followed on such an application, including on urgent applications; and the test to be applied by the court is the same as that which would have been applied had an application been made to the authority.

(7) An exemption granted under subsection (6) shall not be granted for a period exceeding one month and shall not be renewable.''.

The amendment is similar, as Committee members will be aware, to one that was moved in another place on 30 January 2001, at columns 604-610 of Hansard. The significance of the amendment, like the one moved in another place, is that it would cover cases in which a one-off exemption from the requirement to have a licence might be needed in connection with a one-off local event or an urgent case in which it would not be practicable to apply to the Security Industry Authority in time for a licence to be granted. That is to say that by the time the decision had been made on the application, the moment would have passed—the date for the intended event, gathering or meeting would have been overshot.

There is some concern about that matter. When it was raised in the other place, Lord Bassam indicated that he could not see good reason why exceptions might arise. However, at other points in our proceedings, the Minister of State, Home Office, argued—despite the voluminous briefing available to him—that although he could not envisage circumstances in which provision X or Y of the Bill might take effect, such circumstances might arise. It was in the nature of the case that it was not possible to anticipate what they might be, but the measure was by way of being—no pun intended—a security device or precaution to ensure that the power in the Bill was sufficiently wide.

I cannot say in this instance—I do not intend to dilate the point—exactly what events might be involved. However, in the context of a debate that necessarily raises the issue of parties and large-scale social activities at which security operatives or bouncers might be present, it is important to recognise that there can be many other circumstances in which one might require the services of doorkeepers or bouncers. I know that the hon. Member for Eccles does not like the term, but at least we know what we have in mind when we use it.

There can be many other events at which such people might be required. It is imaginable—indeed, eminently likely—that at some stage and probably more than once in the last 30 years, large-scale, highly important and indisputably urgent meetings have had to be convened in the constituency of Macclesfield to discuss matters of local controversy. It is very unlikely that the controversy resulted from the behaviour or malfeasance of the hon. Member for that constituency. It is more likely that he, being the peacemaker that he is, and the industrious and assiduous representative of the masses that he has always aspired to be, was seeking to quell the flames.

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

On a point of order, Mr. Winterton, is it appropriate for the hon. Gentleman to say that it is ``very unlikely'' that the Chairman of this Committee would be engaged in this kind of activity? Surely it would be impossible.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

Although I agree with the Minister's assessment of the remarks, I have to say that they are not out of order, as yet.

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

I do not want to be unkind to the Minister, but I was going to say that under any sycophant's charter, he would always do better than I would. I am happy to accept that alteration to my comment: it is impossible and unimaginable that our Chairman would be guilty of such actions.

However, while trying to make the point in a light-hearted way, I do not want to detract from its seriousness. An important gathering or event might be organised at short notice. If it were a public meeting, for example, and if the subject were highly controversial and passions had been aroused, the organisers might feel that they needed to appoint people to perform a security function—not in exchange for remuneration, but simply out of a sense of community spirit and a desire to maintain good order.

That meeting could not take place two, three or four weeks later because the issue would no longer be live then. It would not be unreasonable for the Minister at least to consider whether there should be some flexibility in such circumstances, so that if it could be clearly demonstrated that there were a good case for exemption—I emphasise that I this should apply only where it could be demonstrated that there were a good case for an exemption—such an exemption might be provided. We are asking the Government to reconsider the issue—notwithstanding the observations of Lord Bassam in the other place—and recognise the need for flexibility, so that the Bill is not so rigid as to be unable to meet the needs of urgent local cases that might arise. That is what we are about. I suspect that the Minister will say that he has not reconsidered Lord Bassam's remarks in the other place. If he has not, or if he thinks that, on the whole, the Government have got the balance right, will he at least address directly the sort of scenario that I have just described?

I hope that the Minister accepts that such a scenario could perfectly well arise. If so, does he not also accept that the greater danger would be if such an event had to be cancelled or prevented from taking place simply because the procedure was too cumbersome and long-winded to allow a successful application for a licence to be made in the time scale that that public, local and urgent issue required. On the strength of those opening remarks—I do not rule out the possibility of making further remarks; it depends on the response that I receive—I rest the case for the amendment and wait to hear what other hon. and right hon. Members, not least the Minister, have to say.

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

The hon. Member for Buckingham raises the question of what procedure should be used in a case of urgency. That is a reasonable question. Although it is hard to see what kind of event we are talking about, I accept in principle that there could be a need for such procedures in such circumstances.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

I want to help the Minister to envisage the sort of event we have in mind—it is one that could easily crop up in of any our constituencies, so I hope that he will find the following example valid. Sometimes a planning issue arises in a constituency and a report on it suddenly appears in the local paper. All of us, from whichever political party we come, will be familiar with such cases. There is often an outpouring of public feeling, sometimes on both sides of an issue, and sometimes an immediate public meeting is convened to which local councillors are invited and for which a hall is booked. That is the kind of thing that my hon. Friend the Member for Buckingham and I had in mind. It could happen in any of our constituencies, and frequently does.

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

I accept that. I acknowledged in principle the possibility of urgent cases arising, and I agree that the hon. Gentleman's hypothesis could be a practical example of such a case.

However, I have some qualifications to add. In most circumstances, the sort of security activities that would be undertaken to deal with such a situation would involve the taking on of approved contractors that were already covered by the process to deal with such circumstances. The natural response would be to call in a security company and deal with the situation in that way. Volunteers of the type described by the hon. Member for Buckingham are not covered by the Bill. That said, I concede that one can imagine urgent circumstances in which volunteers were not being used and an approved contractor who was already fully able to deal with the matter was not called in. I think that that is unlikely, but I accept in principle that it could happen.

To establish a parallel process through the magistrates court to address the issue would complicate and confuse the situation by having a court consider such circumstances when the SIA was looking at the whole industry in another way. There is a danger of establishing confusing parallel procedures. It might be costly and give rise to uncertainty and doubt about the best way to proceed. Under the Bill, we envisage—I think that, in general, the Opposition agree—the SIA being a one-stop shop. The danger of establishing a separate exemption scheme is that it might weaken the licensing regime.

I concede to the hon. Member for Buckingham—perhaps we should have conceded the point in the other place—that it may be necessary for us to look at an urgency procedure for the SIA that is consistent with the rest of the way in which it operates, to deal with the circumstances to which he referred. There is no explicit power in the Bill as it stands to do that. While I resist the proposal to set up a parallel path through the magistrates court to deal with such matters, I accept the proposition, at least in principle, that the SIA ought to have some process whereby it can make rapid decisions in such cases.

If it will assist the hon. Gentleman to withdraw the amendment, I am willing to make a commitment to look carefully at what urgent procedure we might be able to take on board and what amendment, if any, would be needed, to the Bill to achieve that. It may be that no amendment on Report would be needed; however, there might be such a need and I shall come back to the matter. I accept in principle that there could be a need for urgency procedures, but will the hon. Gentleman accept that it would be better if that were carried out through an SIA process, rather than a parallel process? I shall look carefully at the matter.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

I am grateful to the Minister not only for giving way, but for the helpful and constructive spirit in which he is approaching the issue. I ask him to bear in mind one matter as he considers a possible route for an emergency procedure. It would not be appropriate to incorporate in such procedure powers delegated from the SIA to local authorities. That is why I mentioned local planning issues: they can cause emergency meetings and we would not want the SIA's delegated powers to be used because, in another guise, the local authority's actions might be controversial.

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

I take the point that the role of local authorities is that of regulator of issues in their areas combined with their own interests as an institution. [Interruption.] I see from the pagers that a vote is coming in which I am interested. Given that I shall take an overall look at the policy, will the hon. Member for Buckingham withdraw the amendment?

Photo of John Bercow John Bercow Shadow Spokesperson (Home Affairs) 6:00 pm, 24th April 2001

My hon. Friend the Member for Surrey Heath and I generally think alike. I, too, welcome the spirit in which the Minister has responded. It should be put on the record that, first, I am happy to concede that there is not likely to be a large number of cases in which differential treatment might be desired or required. Secondly, I can go further and say that it is important that, when considering any back-up or protective treatment that might be available, we should ensure that we do not end up providing an incentive for people needlessly to seek a way out. In other words, I emphasise that applicants should be able to demonstrate good cause for seeking an exemption or fast-track procedure through the SIA of the sort that the Minister describes. It is not good enough for people to fail to prepare properly and prudently for an event and then to claim that they want to stage it now, that it did not occur to them to make proper preparations before and that they were unaware of the constraints of the law.

I am not being argumentative: I am talking about the few genuine cases in which an important local or other issue springs up without advance notice, an opportunity that had not previously existed arises to stage an important gathering, and the problem is how to hold the meeting without breaking the law. In that respect, I am encouraged by the Minister's comments. I am not hung up about the form, but I am concerned that the needs of the individuals or organisations concerned should be accommodated. I understand why he might be worried that introducing a separate layer will produce duplication or confusion, but there must be a fast-track procedure that works. He went on to say that he was unsure whether it would be necessary to table an amendment or a new clause at a later stage in the Bill. I presume that he was implying that the matter might be accommodated through regulations.

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

All I was trying to say was that I was unsure whether there was any inhibition in the present legislation on establishing an emergency procedure, or whether it would be necessary to facilitate matters by primary or secondary legislation. It is also possible that the practice of the authority could resolve the situation without the need for any such further measures. I did not want to state any firm conclusions, but merely to say that it is a matter that I need to examine.

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

I think that we all need to examine it. I do not know whether the required changes are proscribed or prescribed under the terms of the clause unamended. Parliamentary counsel's views would be required to determine whether a change in the legislation is necessary. However, we should work on the assumption that a change is required, which will be effected by an amendment or a new clause on Report or through regulations.

I am glad that the Minister's comments this afternoon have been fairly explicit. My anxiety is that a general election—or ``another event'', as I elliptically referred to it earlier—might intercede. If that were the case, we would have to wait and see what happened to the Bill. That is a matter for discussion at the appropriate time and through the usual channels, but I want to be confident that the Minister had given us a definite answer about how our needs will be accommodated.

The Minister will not therefore be surprised that I now return to my usual hobby-horse: regulations. I assume that he will concede that there is at least a 50:50 chance that whatever amendment or clarification is required would be provided through regulations. If that were the case, it would be helpful if a draft of those regulations were made available before the next stage of the Bill, or if the Minister could write to me and my right hon. and hon. Friends to explain how he envisages meeting our concerns through the regulations. He appears to be quivering, although it is possible that he is nodding.

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

I know that my bodily movements are always fascinating to the hon. Member for Buckingham. I was trying to indicate that I was thinking about what he had said. I am prepared to give the assurance that I will communicate with him and other Committee members, either in writing or by speaking in the Chamber, when I have further considered the matter in the manner that I have described.

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

There is a limit to what one can expect in this life and I suppose that half a piece of cake is better than no cake at all. In keeping with the happy spirit that has characterised this exchange—although it has not, perhaps, characterised all our exchanges—I am prepared to accept the Minister's assurance. I therefore beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 ordered to stand part of the Bill.

Sitting suspended for a Division in the House.

On resuming—