Clause 5 - Offence of using unlicensed security operative

Private Security Industry Bill [Lords] – in a Public Bill Committee at 6:19 pm on 24th April 2001.

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Question proposed, That the clause stand part of the Bill.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

The hon. Member for Surrey Heath caught my eye in the nick of time. I ask him to address the Committee briefly.

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

I have no doubt that during your long and distinguished parliamentary career, Mr. Winterton, somebody has used the same pun about your Christian name, which I share. I hope that both of us will always be in the nick of time.

There was no debate at all on the clause during the Committee stage in another place, and there was only a brief explanation, without debate, of a minor Government amendment to clause 5. That amendment introduced the word ``conduct'' to clause 5(3), whereas in the first draft of the Bill the word ``activities'' appeared. That was the only matter raised in relation to clause 5 in another place, and not debated, because Lord Bassam moved the amendment on Report. We are in the unusual position whereby the Minister will no doubt have a detailed briefing from his officials that has not hitherto been used. I hope that it will now see the light of day. There are one or two issues in relation to clause 5 on which the Opposition want to probe the Minister.

The clause creates a new criminal offence of using an unlicensed security operative. The Opposition are concerned about how the new offence will be enforced. When the Minister responds to the debate, I hope that he will be able to tell us whether the Government envisage that the new Security Industry Authority will take on an enforcement role in relation to the provision. Do the Government anticipate that the new authority will undertake its own investigations? Will it bring its own prosecutions, or will it delegate those matters to the police? That would concern us, because the Government have already overburdened the police. Despite the bogus figures trumpeted by the Government yesterday, Opposition Members are aware that there have been greater and greater strains on the police, and that they have found it more and more difficult to recruit.

What discussions have the Minister or his officials had with senior police officers? It would be helpful if he would write to members of the Committee, if he cannot tell us today, to set out what meetings he has had, with whom in the police, at what level and on which occasions. It would also be helpful if the Government were to say whether their officials have yet made an estimate of the number of prosecutions in a calendar year that might be brought under the provision.

I also want to probe the Minister briefly on the question of defences. In considering this new offence—unusually, in a Committee, I am probably the only lawyer here—

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

I am glad to hear the Minister say that. He tends to approve thoroughly of there being fewer lawyers. In other Committees, I have used the fact that he is usually anti-lawyer in his prognostications. My hon. Friend the Member for Buckingham said earlier how proud he was that he was not a lawyer. Nevertheless, any legislation that emanates from the House must be scrutinised carefully in respect of the rights of the defendant. All hon. Members—whether lawyers or non-lawyers—will be rightly anxious to ensure that there is proper provision to ensure that anyone accused of any new criminal offence can be properly defended, and that the issues in a criminal case can be properly tested.

Subsection (2) introduces a new statutory defence. Two different sets of wording are often used in statutory defences. One is that used by the Government in this instance—``no reasonable grounds for suspecting''. The alternative set of words, with a slightly different meaning—different in an important way—is ``no reasonable grounds for believing''. It would be helpful to know whether the Minister believes that the words that the Government have chosen give an adequate level of protection to someone who unwittingly employs an operative who does not hold a licence.

We would be grateful if the Minister would explain how, in conducting an investigation for an offence under the clause, either the police or an investigator from the authority—the Minister says that the authority itself will carry out investigations—will have access to the register of licensed operatives that the Government propose should be established under clause 12. Will either the police or other prosecuting authorities have a greater level of access to that register than an ordinary member of the public? It is important to know exactly what special privileges the prosecuting authorities or the police will have.

Most important, perhaps, is how the clause links with the proposed register, which we will discuss under clause 12. Will the register be integrated with the police databases used for the purposes of investigation?

The right hon. Member for Walsall, South appears to be pregnant with possibilities in respect of the debate. He is nodding, so I will conclude my remarks and bow to his greater expertise, if he can catch your eye, Mr. Winterton.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

From where I am sitting, the right hon. Gentleman is in the shadow of the Minister, but I am happy to call him next.

Photo of Bruce George Bruce George Labour, Walsall South

A very large figure is on either side.

In the consultative documents, the Government went into some detail about the licence itself and how it was to be obtained. In the past, it was not only feasible but common practice that in the lower end of the market, the guarding side, one could simply turn up at a company, ask for a job and be on site at the factory as soon as a uniform could be fitted—no questions asked. The guards were left to work through the weekend, they would pick up their money, and perhaps come back again a week later. There were miserable standards at the poor end of the market, and in some cases those purporting to be higher up the ladder of respectability adhered to them. The personnel department of a good company without access to criminal records would hire an ex-copper from the local station who would find out whether an applicant had form. For the most part, those days are gone, because the fines for police officers who illegally gain access to criminal records is severe. Several coppers have been sent down for transmitting such information.

Good companies, of which there are many, have an elaborate procedure for evaluating applicants. Those companies no longer simply take a guy off the street. Applicants must fill in forms and provide information, such as driving licences, passports and references. A good company then telephones the referees. It would try to validate the person applying for the job. Is he who he purports to be? A wonderful case in my locality involved a man who had all the evidence necessary to prove who he was. Before he started work, it was discovered that all the data that he presented belonged to his deceased brother-in-law. People who wanted to get a job would duck and dive and trick, often with the collusion of the company, which knew full well that they were on unemployment benefit. It was clear collusion between hirer and jobseeker.

The position may be magically transformed because it is no longer necessary to find a corrupt copper to provide the information, or to have a nudge, nudge, wink, wink from someone living nearby who is peddling innuendo or malicious lies. If a company suddenly thinks that access to criminal records will remove the responsibility for doing patient searching earlier, it deserves all it gets—and, by God, it will get it.

What has to happen when a company wants to employ someone? The person sees an advertisement, applies for the post and then has to fill in a form in detail. Any good employer would carry out a check. At the end of the process, the documentation—hopefully with fingerprints to prove that the person is who he says he is—should pass to the police and the regulating authority should then confirm the choice of the particular person for the job. If this relatively costly process is short-circuited by removing some stages and relying on the police and the regulatory authority to the job, tough luck—the lads will suffer and might either end up in jail or pay a significant fine.

My serious point is that if people use ``I didn't know, guv'' as a defence, the consequences that follow will serve them right. I hope that that will not be regarded as much of a defence and that any company foolish enough to claim that it was unaware that someone did not have a licence will suffer accordingly. In assessing defences, we should recognise that only a very poor personnel or resources department or a poor employer will be caught—and caught they certainly will be. Many people with forged documentation will purport to be licensed. Perhaps with the aid of this legislation, such people will be able to duck and dive and operate without a licence. The Bill may provide a defence for working as a security guard without a licence on the grounds that an application is pending. The scope for abuse is considerable.

The Minister should pay careful heed to the clause. No one should be foolish enough to have failed to secure the requisite information—proof of identity, eligibility for a job and an appropriate licence—before hiring. Sometimes licences can be transferred, but licensing for Securicor means going through the whole process again. Employers who fall for this one will, as I said, suffer. I hope that the courts will punish them severely.

When I introduced my previous Bill on the subject in 1994, I was rather more ruthless than the Home Secretary, who I suspect is a bit of a softie. He is being too nice to people who do not deserve any charity. Under my Bill,

``Any person not registered under this Act who . . . offers private security services or . . . falsely implies that he is so registered, shall be liable on summary conviction to a fine not exceeding £100,000 or to twelve months imprisonment, or to both, or on conviction on indictment to a fine, or to imprisonment for a period of twelve months, or to both.

Any firm which offers the services for security purposes of an employee not registered under this Act as a private security agent shall be liable on summary conviction to a fine not exceeding £100,000 or to twelve months imprisonment, or to both, or on conviction on indictment to a fine or to imprisonment for a period of twelve months, or to both.

Any person who knowingly furnishes false information in any application made, or proceedings instigated, under this Act, shall be liable on summary conviction to a fine not exceeding £5,000 or to twelve months imprisonment, or to both, or on conviction on indictment to a fine, or to imprisonment for a period of twelve months, or to both.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield 6:30 pm, 24th April 2001

Order. The right hon. Gentleman is quoting at great length from his own Bill rather than from the Bill that we are debating. I would be grateful if he would shorten or paraphrase his Bill rather than quoting in extenso from it.

Photo of Bruce George Bruce George Labour, Walsall South

I am so pleased that you interrupted me then, Mr. Winterton, as I had exhausted that clause. I am glad that two good performers like us can feed off one another, and I thank you for giving me further inspiration. Although I was too modest to say so, I feel that my Bill had a far better clause. I am deeply grateful to you for that intervention and will be pleased to accept any other that you care to make.

We are not talking now about Group 4, Securicor, or Reliant Security, those companies that have good departments and reputations to sustain. They will look at the Bill eagerly to see how their existing practices can be adapted. They will apply on behalf of their employees, or their employees will apply themselves, and they will probably pay the fee for them. If one is dealing with people at the bottom end of the employment market £40, £60 or £80 can be pretty hefty. A good firm would pay and it would be fireproof in terms of any failure.

The people at whom the clause should be aimed are the endless fly-by-nights who will duck and dive and use anything they can to slip through any loophole in the Bill. They will forge documents. They will present documents purporting to be a licence. They will perhaps be working in in-house security companies where there is no compulsion and then will try to convince people that their voluntary licence is a proper licence. They will wear uniforms that will confuse the public with more reputable companies and possibly the police. We must be careful that no quarter is given to those who deliberately deceive the person trying to hire them or deliberately deceive the regulatory authority about the persons whom they are hiring.

I know that you will not allow me to go back to a previous clause, Mr. Winterton, but if a good company suddenly requires 50 or 100 operators for a surge job, it will, for example, move people from Yorkshire down to the west midlands. Securicor might take people off one service and move them into another or do a deal with another security company to have those operatives working with them. Therefore, a special licence would be superfluous in most cases. It is crucial that the Home Office establishes with the police and the regulatory authority a sufficiently speedy process. A good company, that is prepared to work according to the rules should be able identify a potential employee, who will fill out the application form, be approved by the company, receive authorisation from the regulatory authority and be able to start work. It will be a disgrace if the guy applying for a job has to sit on his hands for two months before the regulatory authority comes back with the authorisation.

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

I have been listening carefully to the right hon. Gentleman. A thought occurs to me and it comes back to the issue that I raised about the perfectly law-abiding person who is trying to use someone reputable and the point about the two different defences. When I was first studying law at the end of the 1970s, one of the leading cases that we considered in relation to corporate responsibility involved one of the major national names. It would be unfair to name the company, because it was unusual for it to employ a rogue, but on this occasion it had been engaged by a photo-processing laboratory to provide guards and one of the guards turned out to be an arsonist who set fire to the lab and burned it down.

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

The hon. Gentleman is ahead of me. He remembers the case.

Photo of Bruce George Bruce George Labour, Walsall South

The company got away with it.

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

I did not want my intervention to be too long, Mr. Winterton, but as the right hon. Gentleman knows the case and has referred to the company's name—

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

Order. There must be a specific question, not another speech.

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

I was simply going to ask the right hon. Gentleman whether, in the light of such cases, he agrees that the difference between reasonable grounds for suspicion and reasonable grounds for belief is important.

Photo of Bruce George Bruce George Labour, Walsall South

If a company hires a potential arsonist, its inspection process and psychological profiling—about which the hon. Gentleman can speak with far more authority than I can—will have failed. A wonderful young woman firefighter in Bristol died four or five years ago when a company, ironically named Burns, hired a security guard who then set fire to the supermarket that he was supposed to be guarding. It is up to the companies: now that they are becoming more respectable, they must put in place the processes to prove that they are respectable. The clause relates to the licence application process, in which the companies will have to follow best practice. They might slip up—those who do not go through the proper procedures will definitely slip up—and have to go to the hon. Gentleman for legal advice to keep them out of jail, because the penalties, even under the softly, softly approach of the Home Office, are severe.

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

I admire and respect my right hon. Friend's blood-curdling sentiments on this topic. They provide a useful introduction to the case in favour of the clause. As he said, it sets out a deterrence mechanism to show that there is a real offence that hurts the organisation that commits it. As the hon. Member for Surrey Heath said, there are three lines of defence. First, the accused may show that he neither knew, nor had reasonable grounds to suspect, that the operative did not have a licence. Secondly, it is a defence to show that he took all reasonable steps to ensure that the operative would not engage in activities for which he did not hold a licence. Finally, the accused may show that the security services that were provided were supplied by a person exempted from the need for a licence under clause 4.

We believe that those are reasonable defences, and no Committee members have disagreed. The proof of the pudding will be in the eating—the way in which the clause is enforced to ensure that we deter such illegal activity. For that reason, we cannot answer the question asked by the hon. Member for Surrey Heath about the anticipated number of prosecutions. I hope that there will be no prosecutions, because I hope that everyone will comply with the law. However, if people seek to bypass it, I agree with the blood-curdling sentiments of my right hon. Friend, and we will have to enforce the law rigorously.

The hon. Member for Surrey Heath also asked about the reasoning behind the Lords amendment. I have reams and reams of briefing on such matters, not all of which I share with the Committee at all times, but I am happy to do so on this occasion. The amendment was purely technical: the word ``conduct'' in subsection (3), line 26, was previously ``activities'', but was changed to tie in with the concept of licensable conduct, as mentioned in clause 3(1) for example. The original phrasing was simply a drafting slip, no doubt influenced by the different concept of activities of a security representative.

More substantially, the hon. Gentleman asked how the clause would be enforced. Clause 19 will give the Security Industry Authority entry and inspection powers to check compliance. Those are important powers that can be applied in particular circumstances. The police have the responsibility of upholding the law and were fully consulted at both the White Paper and publication of Bill stages. It might interest the Committee to know that the Association of Chief Police Officers lead was taken by Richard Childs, the chief constable of Lincolnshire. He is an outstanding chief officer, who is driving forward a modern version of active policing in a number of different areas to deal with such issues. The police have been fully involved with the processes.

I do not accept for a moment the ridiculous suggestion that the hon. Gentleman made about so-called bogus recruitment statistics that were published yesterday. I was rather disappointed to hear a partisan political remark in this debate, but I am sure that that will not be repeated under your chairmanship, Mr. Winterton.

We do not have plans to provide special access to the register's contents for law enforcement. It is a public document, with clear information. No one has requested special access to the register, and I do not expect such a request to be made. It is simply a source of basic information on names, addresses and the licensed functions that a person may undertake. It is a public register, as we shall discuss when we reach the relevant clause.

I accept the hon. Gentleman's point about the need to integrate the database with the general range of other police databases. As I have said in other Committees, we are engaged in a major project. We are seeking to integrate important databases such as those for DNA and firearms with the police national computer. The Government have invested in that to try to rectify the underinvestment that we inherited from our predecessors. We shall address that issue explicitly in this context, but the hon. Gentleman will know that upgrading the PNC is a major national investment that must be taken forward in the right way. It has procedural and other implications, which we are considering. His point will be taken into account in that context. I urge the Committee to accept the clause.

Question put and agreed to.

Clause 5 ordered to stand part of the Bill.