§ 8.41 p.m.
§ House again in Committee on Clause 41.
§ The Deputy Chairman of Committees (Baroness Nicol)
Amendment No. 69 has been moved by the noble Lord, Lord Phillips.
§ Lord Cope of Berkeley
The amendment concerns an important element which was inserted during consideration of the Bill in another place. The lead amendment in the group suggests that the word "victim" in Clause 41 should be replaced by the word "target". I am not over-enamoured with the word "victim" in this particular place, but I believe that the word "target" is worse. Both words are accurate to a degree. I would settle for the word "person". That is not really important. However, there is absolutely no doubt that the people whose protection Clause 41 is aimed at are victims.
The most well-known case recently has been that of Huntingdon Life Sciences. That company is by no means alone. I have had representations, as I am sure have other Members of the Committee, from the pharmaceutical industry, the research defence societies and from all over the scientific world. In addition, I have had representations from the NFU and the Countryside Alliance. The noble Lord, Lord Phillips, mentioned particular representations. All of them say in one way or another, "Look, the way in which these animal rights activists have operated in these different fields, pursuing different causes, is unacceptable". That is the bottom line. That is what the clause is about. The question is how to deal with the matter.
647 The noble Lord, Lord Phillips, appeared to be suggesting that the present law was adequate for the purpose and that the only fault was a lack of police. I am sympathetic to the lack of police. We know the figures for the numbers of police, and so on. But the way that these demonstrations supporting different causes, but nevertheless with a common theme of one kind or another, have been pursued in recent years has moved to a new level that is unacceptable.
The specific issue to which the clause is directed is the harassment of a person in his home. It used to be said that an Englishman's home was his castle. However modest his home was, that was where he could go to be private, be himself and not be harassed. That is not true if one is the "target", the "victim" or the "person" concerned of the animal activists.
I said that there are a number of different causes being pursued. That is right. We quite rightly require that all kinds of drugs and other substances should be tested on animals before they are tested on humans; and sometimes at the same time as they are tested on humans. That is a protection for us. It is not done for some reason other than to protect humans. It is to try to protect us when we use cosmetics and when we use drugs and other much more vital things in our lives. We require that protection. It is the law. This Parliament has passed the law to require that.
However, the animal rights activists, or some of them, have deliberately targeted firms which carry out that testing in an effort to try and prevent them from so doing. They not only attack the directors and bosses of the firms: they attack the staff and abuse them on the way in and out of their premises; they follow the directors and the senior staff to their homes; and they also follow the shareholders, the bank people and so on. We have seen that happen not only with Huntingdon Life Sciences but with other firms.
That is one matter. As Members of the Committee will know, this targeting has happened also to farmers when carrying out experiments and trials for the Government in the protection of the public; for example, GM crops. It has happened—maybe more controversially to some people—in the case of hunting. That is a perfectly legitimate activity at the moment. Obviously, whatever happens to the debate about hunting, we have a Bill before us. It is not being very actively pursued just at the moment. Whatever happens about that issue, so long as it is legal people should be allowed to pursue that activity without being harassed in their homes.
Given that this harassment has increased and become more specifically directed at particular people, it is necessary to consider whether the law needs strengthening or whatever it is that needs to be done in order to prevent that activity. That is why I am in favour of the clause as a whole and why I am against the various Liberal Democrat amendments in the group. They attempt in various ways to weaken it. I do not want to go on unnecessarily at this hour of night about the individual details of each of the amendments, but they attempt to insert the words "serious" and "reasonably" and so on in order to lift 648 the level of what has to be done to constitute a crime. The most important one is Amendment No. 77 which seeks to insert,It is a defence for the accused to prove that his conduct was reasonable".I am not sure how the court will actually settle on what is reasonable and what is not in the absence of any further guidance. I do not want to get back on to the guidance point. Earlier that caused a little difficulty. The tone of the group of Liberal Democrat amendments is rather similar.
§ Lord Phillips of Sudbury
I am grateful to the noble Lord for giving way. He asked whether one would need guidance, codes or anything else in order to ascertain what was a reasonable defence. Leaving the matter as broad as that is to leave it to the discretion of the courts—the magistrates' court or the Crown Court. The fact is that that defence is available under all the existing provisions of the Public Order Act. It is designed to prevent the kind of exceptional and abusive case which I am sure the noble Lord would agree is inappropriate. That is why it is a settled defence in the public order legislation. Our amendment simply seeks to bring the same defence into this measure.
§ Lord Cope of Berkeley
That is a helpful explanation. As always, the noble Lord, Lord Phillips, is doing his best to help us to understand the legal points that are involved. At the same time, the effect of the individual Liberal Democrat amendments and certainly of the group of amendments collectively is to put a higher hurdle in the way of those who would try to use the legislation. The amendments would weaken the effect of the legislation.
By contrast, the three amendments in the group to which my name is attached would strengthen the legislation in very particular ways. Amendment No. 70 seeks to add to the domestic premises,any premises or land attached thereto".The Committee will realise that I have particularly in mind farms. With a farm, it is generally the case that the farmer and often the stockman live on the premises. They do so because that is the best way to run the farm. Farming is an all-consuming business. It is necessary, particularly with stock, to have an expert present 24 hours a day, seven days a week, all through the year because the stock need to be looked after. The domestic premises are therefore intimately mixed up with the land that surrounds them and, for that matter, the farm buildings. It is simply no use protecting the house that is just next to the barn and so on and moving the demonstrators 50 yards down the road. It is just as harassing to have the demonstrators there as it is to have them outside the house itself.
Amendment No. 71 seeks to give protection to the place of work or business or any premises that the victim habitually frequents. It is true, as I said earlier on, that the activists target not only the domestic premises but the work premises of people carrying out legitimate work. They do so not just once or twice but day after day and week after week. They insult the 649 people. They do their best to obstruct them and to make their lives as difficult as possible. They do so when those people are carrying out an entirely legal requirement—indeed a statutory requirement—to, for example, test drugs. It is necessary to extend protection to the place of work or business of the victims involved.
Amendment No. 74 seeks to insert the words "or others". It deals with the possibility of alarm or distress being caused to the victim. Where the victim lives in a village the existence of the protesters may not matter too much to someone who lives in a large house with a substantial garden and a good fence and gates. The victim can keep the protesters at a distance. Therefore, it is not so much the individual in the large house who suffers; it is the neighbours. It is they who are subjected to the harassment and difficulty. It is their alarm and distress that we seek to address by means of Amendment No. 74.
The amendments propose three ways in which the provisions of the Bill might well be strengthened. I do not think it is enough simply to deal with the house by itself. Protesters already go to the business premises. In any case, the law needs to remain one step ahead of the criminal. It is important that we take action to protect these people. Of course it is true that there is existing law on the issue and of course it is true that the police have had insufficient resources for or have given insufficient priority to protecting some of these victims. Nevertheless, the Government have come to the view—I agree with them—that it is also necessary to strengthen the law. That is what Clause 41 seeks to do and our amendments seeks to take that a notch or two further.
§ Lord Monson
Although I have not had much time to study the amendments, perhaps I may, as a mere layman, try to steer a middle course between the views of the noble Lord, Lord Phillips, and the noble Lord, Lord Cope. I think that I shall be sailing slightly closer to the point of view of the noble Lord, Lord Cope.
The noble Lord, Lord Phillips, made out a good case for Amendment No. 69—at least a good case for getting rid of the word "victim". Whether "target" is right, I am not sure, but it is certainly preferable to "victim". Unlike the noble Lord, Lord Cope, I thought that the noble Lord made a good case for Amendment No. 77. However, like the noble Lord, Lord Cope, I do not agree with his other amendments. They would water down the clause too much.
As the noble Lord, Lord Cope, pointed out, it is not just the target/victim who is at risk; it is the neighbours and the wife and children of the target. We are not dealing on the whole with gentle, vegetarian, sandal-wearing demonstrators; we are dealing with hardcore terrorists. These people have committed arson and grievous bodily harm. Only by the grace of God have they not been responsible for murdering anyone yet. They have attacked people with baseball bats. As a schoolboy, I lived for three and a half years in the United States. I am well aware of how lethal baseball bats can be. In 1943 there was a terrible race riot in 650 Detroit. Thirty-four people were killed in that riot, of whom 31 were beaten to death with baseball bats. That is the kind of thing the animal rights fanatics have started to do to employees of Huntingdon Life Sciences.
Time is not on our side. We have to get this clause into law as soon as possible. There may be a case for accepting one or possibly two of the Liberal Democrat amendments but I feel equally that the strengthening amendments proposed by the Conservatives should be accepted. I hope that we shall hear encouraging noises from the Minister.
§ 9 p.m.
Perhaps I may say how much I agree with what the noble Lord, Lord Monson, has just said. Before I go any further, I should like to express my thanks to the noble Lord who agreed that we should adjourn the discussion on Clause 41. We are now able to have a much more thoughtful and relaxed discussion than if we had been pressed to have it before dinner.
I have great respect for my fellow lawyers, the noble Lords, Lord Phillips of Sudbury and Lord Thomas of Gresford. They put forward some valuable proposals and I frequently agree with them. However, on Amendment No. 69, I am a little worried. It seems to me that as soon as a target is threatened he becomes a victim. In my humble opinion, one cannot get away from that. Unless there is some purely technical reason with which I am not familiar, I agree with my noble friend Lord Cope of Berkeley that we should stick with "the victim". That makes the position clear.
Clause 41 is a valuable proposal from the Government. However, perhaps we should enlarge it in the way proposed by my noble friend Lord Cope. In saying that, perhaps I may tell the Committee that I was the Member of Parliament for Huntingdonshire for 34 years. We then had a much better Member who became Prime Minister for some 11½ years. I live only a few miles from the Huntingdon Life Sciences research centre. Because I was the local MP, I was consulted when it was first set up.
It struck me then, and it has been confirmed ever since in my mind, that the research centre has carried out valuable research and that the human race has benefited accordingly. So to some extent has the animal population. Some of the remedies produced have been beneficial to animals, just as other remedies have been of benefit to human beings.
I have visited the establishment more than once. Although animals were kept in cages, they were treated properly and well fed. No one was ever cruel to them. When the need came to end their lives to prevent suffering, they were killed and that was that. Quite frankly, I do not consider that more suffering was endured at that research centre than is suffered by animals kept in cages domestically, in people's homes. For those reasons, I think that Amendment No. 71 is of great importance. It would acknowledge the fact that the victim is vulnerable not only in his own home but also at his place of work. I hope that the Government will accept this amendment. Although it 651 is slightly less important, I believe that Amendment No. 70 is also worth incorporating into the Bill. So, too, is the relatively minor Amendment No. 74.
As regards the other amendments proposed by the noble Lord, Lord Phillips of Sudbury, along with his noble friends, I have no objection to them. However, I think that we must be very careful as regards Amendment No. 69.
Perhaps I may mention briefly Amendment No. 77, which states that,It is a defence for the accused to prove that his conduct was reasonable".I am sure that the noble and learned Lord the Attorney-General will confirm that in nearly every case the prosecution has to prove guilt beyond reasonable doubt. If the defence puts forward the view that the conduct was reasonable, that generally raises a reasonable doubt. For that reason, I am a little doubtful about this amendment. However, there is broad agreement between us and I hope that the Government will bear in mind the valuable suggestions that have been put forward which seek slightly to extend and modify this important clause.
§ Lord Monson
I think that I am allowed to speak again. I have been slightly unfair to the Liberal Democrats. I forgot to mention Amendment No. 75, which is reasonable. I believe the noble Lord, Lord Renton, pointed out that it employs the word "reasonable" and the remedy proposed is justifiable.
§ Lord Perry of Walton
I rise to reinforce what has already been said by several noble Lords. I speak as the president of the Research Defence Society. We have an enormous file of incidents which have been reported by fellow scientists. Not only have they suffered insults themselves, but so have their families and children. It is an absolute scandal that nothing has been done so far. We welcome enormously the clauses contained in the Bill.
Many animal experiments are carried out because the law requires that such experiments are undertaken. They are not carried out on the spur of the moment. I hope that the Government will reject all the amendments which seek to weaken the proposals in the Bill and stand by what they have put forward.
§ Lord Davies of Oldham
This has been a most interesting debate, although it was punctuated by a gap of one hour as the result of the intervention of dinner. However, as the noble Lord, Lord Renton, pointed out, we probably benefited from taking some refreshment before coming back to the fray on a clause which is of great importance. Every noble Lord who has spoken in the debate has indicated that.
I had thought that out of the division of the enemies might come the safety of the state, as it were. The collision of viewpoints expressed so articulately by the noble Lord, Lord Phillips, before dinner and then refuted by the noble Lord, Lord Cope, after dinner as regards the perspective of the clause might have 652 provided a middle ground which I could usefully have occupied to demonstrate why this clause is so important and valuable.
I thought that I would hear the noble Lord, Lord Monson—who also took the middle ground—being helpful in this respect. I do not think that he was. The middle ground that he occupied was that we should accept all the amendments. The middle ground that I shall occupy, of course, will be to seek to reject all the amendments. So even those of us who occupy a middle position between the stances taken by the two Opposition parties have our different approaches in regard to the clause.
§ Lord Monson
As a point of accuracy, I suggested that all of the Conservative amendments should be accepted and some of the Liberal Democrat ones.
§ Lord Davies of Oldham
I accept that point. I was merely emphasising that, on the whole, the noble Lord was more sympathetic to the amendments than. I shall prove to be—not surprisingly.
I welcome the fact that all Members of the Committee who have spoken in the debate have put the clause into the context of the recent difficulties which have arisen. I am grateful to the noble Lord, Lord Perry, for identifying the threats to our scientific research represented by the activities of certain sections of animal liberation organisations. Those activities have brought into jeopardy the essential medical and scientific work which we all know is necessary for the good health of the nation and, in some respects, an even greater good than that.
The amendments raise issues of some principle. Certainly those who have advocated the amendments have sought to make that point. As to Amendment No. 69, which was moved by the noble Lord, Lord Phillips, I do not believe that there is benefit in changing the term from "victim" to "target". The term is clearly defined in the clause, so there is no ambiguity in the drafting. We recognise that people who are targeted by groups such as animal rights protestors may not always see themselves as victims—which may imply a sense of helplessness—but they are being harassed. Those who harass, victimise their targets—we should not forget that—and several noble Lords, including the noble Lord, Lord Renton, have emphasised that point.
As the noble Lord, Lord Phillips, indicated, the word "victim" appears in the Protection from Harassment Act. It is simply a convenient way to refer to the person against whom harassment is directed. I do not believe that "target" is a preferable, alternative word. Nothing is prejudiced by the use of the word "victim"; it is a perfectly normal, commonsense way of describing a person outside whose home a protest is being made.
I heard what the noble Lord said in terms of broadening this issue to the question of whether the clause would severely inhibit the rights of investigative journalists. I share with him the concern that we should protect the rights of investigative journalists. In 653 some respects, perhaps, society could do with some enhancement in so far as that kind of journalism is rather less in evidence in the present decade than it was perhaps 20 or 30 years ago.
But I do not think that that issue arises here. As the noble Lord will recognise, journalists are employed to do a job and they are answerable to their employer for the way in which they conduct that role. The Press Complaints Commission sits as an important arbiter and controller of the way in which a free press carries out such actions in terms of investigative journalism. I do not believe, therefore, that the issue of a police constable coming in to interfere with the rights of journalists "doorstepping" in those terms will be a likely occurrence.
We all know that people in the news and public figures will, from time to time, be "doorstepped", and we all know the excessive lengths to which that can go. That is what the Press Complaints Commission is there for, to rein back such activity. But that can be dealt with by other methods and other means related to the activities of journalism; it is not a part of this issue. I do not think that what is proposed in the clause has any direct relationship to that.
The noble Lord went on to discuss the question of whether it may be appropriate for demonstrations to take place outside private homes. Let us be absolutely clear about the clause; it is about private homes. I know that the noble Lord, Lord Cope, seeks to extend it beyond that, but the clause as it stands refers to private homes. That, of course, puts a particular context on the question of harassment because the people affected are not only the individual persons directly involved through their places of work but also their families and, potentially, young children. Such action affects their privacy in a direct way. It is important that we recognise that that has gone on, as the noble Lord. Lord Cope, said, in a particularly offensive way in recent months and years, and it is quite clear that we need to put a stop to it.
This is the moment to remind the noble Lord that terrorists have attacked people at their places of work more than they have attacked them at their homes.
§ Lord Davies of Oldham
The noble Lord's point relates also to another amendment standing in the name of the noble Lord, Lord Cope, which seeks to extend the range of the clause.
There are difficulties in extending this provision beyond the private home. We also have to strike a proper balance in terms of the right of peaceful protest. The point was addressed by the noble Lord, Lord Phillips. There is no doubt that protest carried out peacefully and appropriately can and should from time to time be recognised as valid at a place of work. I am drawing a distinction in regard to a private residence, which is what the clause identifies.
Amendment No. 72 would remove from the provision the idea that protesters can cause harassment by their mere presence. All too often we 654 have seen apparently peaceful demonstrations outside people's homes. The protesters may hold up placards or photographs, and they may shout out some comparatively innocuous comments. But that feels very intimidating to the people inside, who know the background of the protesters. In recent months it has been known that some animal rights protesters have track records, including the sending of letter bombs and the torching of cars. Activity of that kind is the background against which a group of people gathering outside a private home, given their previous background of action, would inspire proper anxiety in the minds of those inside. Protesters understand very well just how threatening their mere presence can be in such circumstances.
§ 9.15 p.m.
§ Lord Phillips of Sudbury
I thank the Minister for giving way. I do not quite understand how he is explaining the force of the words,by his presence or otherwise",or their utility, given that the whole basis upon which a constable may issue directions is that a person is present at a home for the purposes described. It is immaterial whether the person is carrying a placard. The provision will lead to confusion in interpretation, particularly before magistrates, as they struggle to understand what the words "or otherwise" are meant to indicate.
§ Lord Davies of Oldham
I am seeking to establish that the actual gathering of a group of people outside a private home can in itself represent harassment and a potential threat. Therefore, it is important to recognise that it is not necessary for those who are gathering to carry out any particular action; their mere presence will be enough to cause a problem. That is the justification for the position adopted by the Government. That is why we do not want to accept an amendment which appears to remove the concept of harassment if the protesters are merely present but are doing nothing else.
Turning to Amendment No. 75, to require that a direction made by a police officer should be reasonable in its specifications is both unnecessary and unhelpful. The clause already provides that the constable's belief that the victim is likely to be caused harassment, alarm or distress must be formed on reasonable grounds. The test for the constable as to the terms of the direction is a high one. It may include only such steps as he considers necessary to prevent harassment. Adding a further requirement of reasonableness—referred to by the noble Lord, Lord Renton—merely provides an added defence for the accused person. It would mean, for example, that there would be opportunities for complicated and wasteful arguments in court against the constable's action.
As for Amendment No. 77, similar considerations apply to the proposal that we should insert a statutory defence for the person accused of failing to comply with a police direction—the defence that the individual's conduct was reasonable. An offence will 655 be committed only where the person concerned knowingly fails to comply with a policeman's direction. The direction will be specific and must be communicated to the person concerned. As I said, the clause already requires there to be reasonable grounds for the constable's belief that the protest will cause harassment and distress. The directions are limited to those considered necessary to prevent that harassment.
Providing a further statutory defence of the kind suggested would negate the whole purpose of this new police power. It would encourage the accused to argue that, notwithstanding the fact that he was causing alarm and distress and that a lawful direction had been given to him, he should still be free to ignore that lawful direction because his actions were, none the less, "reasonable"; in other words, they were reasonable because they relate to the higher purpose of the protection of animals, which might justify such behaviour. We do not accept that a statutory defence along those lines would be helpful to the legislation.
Amendments Nos. 73 and 76, which suggest the insertion of the word "serious" in the places proposed, would present similar opportunities for argument in courts about just how serious the distress or alarm might be. This would make it more difficult for the police to do what we are asking them to do; namely, to protect individuals who are being harassed in their homes, particularly those who suffer the attentions of animal rights extremists. The Government believe that these individuals should have the opportunity to live in their homes, with their families, without having to suffer any kind of alarm or distress, serious or otherwise, from protesters. There are plenty of other ways to hold a peaceful protest which do not involve loitering around a person's home.
I turn to Amendment No. 78. We believe that the maximum penalty for failing to comply with a direction made by a police officer under this clause should be imprisonment. Some protesters are very persistent and will repeat their activities until something is done to stop them. A short term of imprisonment may prove to be the only deterrent for that sort of persistent offender.
I move on to the amendments tabled in the name of the noble Lord, Lord Cope, to which he has spoken. The word 'attached" in Amendment No. 70 is not specific. It could, of course, cover many acres of land; for example, in the case where a person owns a large area of farmland or an estate. In that instance, all the land and buildings might be argued to be "attached" to the dwelling in the sense that the land is contiguous. However, the protesters may be miles away from where the person in question and his family live. Therefore, it could scarcely be defined in terms of direct harassment.
By extending the provision to include a person's work place and frequent haunts, as proposed in Amendment No. 71, the powers given to the police would be taken into a new dimension. If we take that proposal with the suggestion in Amendment No. 74 to include the word "others" among the range of people 656 whose alarm or harassment could trigger police use of the powers, one could envisage legitimate use of these powers even when the intended victim and his family were miles away. Such a huge extension of police powers would fundamentally affect people's rights to demonstrate. I hope that the noble Lord, Lord Phillips, will recognise that I am seeking to pursue a course that preserves the right to demonstrate at the appropriate place and in a proper and peaceful manner.
Human rights considerations also apply. Article 11 provides for freedom of assembly, qualified by the need to prevent crime or disorder, or protecting the rights of others—such as Article 8, the right to respect for private and family life. We should have difficulties showing that Clause 41 was acceptable under Article 11 if it were amended in the way proposed by the noble Lord.
The overall purpose of the clause is to give the police powers to stop protesters outside people's houses from intimidating them and their families. The clause as drafted makes a clear link: he police can only interfere with protests—we are talking about peaceful protests because violent or threatening protests are already unlawful under the Public Order Act—where a person's private life is being intruded upon in an intimidating way. The amendments would remove that link and undermine the right to peaceful protest which, as the noble Lord, Lord Phillips, said, is fundamental to a democratic society. I hope that on the basis of what I have said I can persuade the noble Lords to withdraw their amendment.
Before the noble Lord sits down, I hope I may say that I agree with very much of what he has said. But I must point out that if Amendment No. 71 is not accepted, then, for example, the unfortunate manager of the Huntingdon research station would not have the protection which the Bill would have given if he had been assaulted at his home rather than at his place of work. Perhaps we shall not reach a decision on the matter tonight, but I hope between now and such further stages of the Bill that there may be that the Government will give serious consideration to that factor.
§ Lord Monson
Before the Minister finally sits down, I urge him to think again about Amendment No. 74. Even if the word "victim" embraces the individual targeted, his or her wife or husband, children, parents who may be living in the house and so on, as the Minister seems to imply that it does—no doubt he will correct me if I am wrong—it does not include neighbours. What happens if the intended victim and his entire family are away on holiday but the protesters do not know that and demonstrate outside the victim's house? They shout, rant and bang drums outside an empty house, not realising that it is empty. I have seen such a demonstration occur in a London street of terraced houses. The neighbours in the houses either side—they were only a few yards away—were 657 absolutely terrified. It seems to me that without Amendment No. 74 the police would be powerless to act in those circumstances.
§ Lord Cope of Berkeley
I support the clause. I do not want to delay the Committee, not least because I support it. However, I do not want the Government to get the idea that this is the end of the matter. As far as I am concerned, the clause is a small step towards the protection of our fellow citizens. It does not deal with much of the unacceptable harassment to which they are subjected. We hope that it will deal with demonstrations at people's homes and with verbal abuse shouted through a loudhailer outside people's homes and with protesters who smash people's windows when the occupants are present. Perhaps it will deal with some of the physical assaults that occur, although there is other legislation to cover that.
However, it does not, for example, deal with the harassment of neighbours or others. Leaflets have been posted through the letterboxes of houses in the vicinity of the houses of people who are being targeted by protesters. Threatening telephone calls have been made to victims' wives or partners or even to their children or to their children's schools. Those situations are not covered by the clause. Nor are such matters as protesters arranging for undertakers to call at victims' houses to collect their bodies. Such situations are difficult to cope with, particularly on the part of victims' wives and families. Protesters have also ordered gravel and rubbish skips to be delivered to victims' houses. All those incidents have occurred to people who carry out research, let alone to farmers and others. Many more have occurred. So this is not the end of the matter. It is a small step in the direction of the protection that we need to consider.
Although the Minister did not mention it, in answer to a Question for Written Answer we were told that the Government have set up a committee under the Home Secretary to consider what further might be required. I do not know how long the gentleman will be Home Secretary, even if the party of noble Lords opposite succeeds in winning the election. Judging by the experience of Lennox Lewis that might not happen; I certainly hope that it does not. But should it happen, we do not know what the future of that committee will be. It has an extremely narrow brief. The committee is directed solely to legitimate animal research establishments but the issue is much wider than that, as I indicated in my opening remarks. I shall not continue at length, but there is a great deal more to do on this issue.
The noble Lord, Lord Perry of Walton, spoke bravely given the attitude of his Front Bench to this legislation. I agree with what he said.
§ 9.30 p.m.
§ Lord Phillips of Sudbury
Does the noble Lord, Lord Cope of Berkeley, accuse the Front Bench of the Liberal Democrats of being a threatening force?
§ Lord Cope of Berkeley
I have heard rumours at both ends of the building of harassment taking 658 place—not in my party, of course—but we shall leave that for the moment! This is a serious matter. The provision is a step in the right direction but it is only one step.
§ Lord Phillips of Sudbury
The Minister correctly indicated that he was driving a wedge between the Conservative Front Bench and the Liberal Democrat Front Bench. I fear that the remarks of the noble Lord, Lord Cope, illustrate that.
Almost every instance given by the noble Lord of occasions where the law should come to the aid of those who are harassed is already covered by existing law. If you smash someone's window, that is covered by endless law. If you threaten a person on the phone, in person or in his back yard, that is an offence under Section 4A or 5 of the Public Order Act. The main problem with regard to Clause 41 is to square the perfectly reasonable wish of the Government to deal with certain extremely narrow classes of case which are not covered under existing legislation with the danger that will be created which is untypical and unworthy of our traditions of democratic freedom.
The Minister did not deal with some of the specific examples I gave. I should be grateful if he would consider my example of doorstepping journalists. I think that on advice he will find that as drafted Clause 41 could be used against a zealous journalist pursuing a bold and proper journalistic course.
§ Lord Cope of Berkeley
I apologise for interrupting the noble Lord. I did not wish to give the impression that the future work which I consider must be undertaken, or the work of the committee set up by the Government, should be confined to considering changes in the law. It must also consider the implementation of the law and how it will be put in practice.
§ Lord Phillips of Sudbury
I am obliged to the noble Lord for those remarks. They are extremely apt. Many may have misunderstood the noble Lord.
I do not wish to prolong an important discussion. However, on nomenclature, if noble Lords can imagine the woman who alleges rape being described in the legislation as "the victim" before the trial has been heard, they may understand my objection to the use of that word in Clause 41.
I should be most grateful if the Minister would look again at Hansard on Amendment No. 72 and come back with an explanation of the utility of the words,by his presence or otherwise".I am inclined to accept the Government's arguments about the insertion of the word "serious". That would be out of line with other public order legislation, so I am happy to put those amendments to rest. However, on our wish to insert the word "reasonably" with regard to the directions given by a constable, I think that I am right in saying that, whereas a constable must act with good cause or reasonably when deciding whether to issue directions, there is no limitation on the directions that he may issue beyond the subjective 659 test that he or she thinks that they are necessary. The word "reasonable" would require some objectivity on those directions. On reflection, the Government may think that entirely appropriate to what they are trying to do.
Over many years on other public order charges Parliament in its wisdom has provided for a defence that the accused's conduct was reasonable. The circumstances in which such public order occasions can arise are so diverse that Parliament has traditionally felt that the court should always have that discretion. For the Minister to suggest that that would let animal rights protestors get away with conduct that would otherwise be criminal by pleading the higher cause of animal rights does no justice to the common sense of magistrates. That defence would be laughed out of court.
It seems inconsistent that more serious offences under Sections 4A and 5 of the Public Order Act 1986 should not carry a possible prison term for a first offence, yet this much lesser charge will give the state that entitlement. Even if the punishment is available for second or further offences, it is not appropriate for a first offence.
Having said all that, I do not propose to divide the Committee, but I hope that the Government will think further about the clause. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 70 to 78 not moved.]
§ Clause 41 agreed to.
§ Clauses 42 and 43 agreed to.
§ Clause 44 [Addresses of directors and secretaries of companies]:
Lord Cope of Berkeley moved Amendment No. 79:
Page 35, line 38, after "director," insert "shareholder,
§ The noble Lord said: I shall not go over the points of principle again. The amendment would extend to shareholders the protection offered to directors and managers in Clause 41.
§ Your Lordships will realise that there have been many cases of shareholders being equally targeted in cases of harassment such as those that we have been talking about. The Government have recognised that in the terms of the committee that is being set up. In a parliamentary Answer to the noble Lord, Lord Goldsmith, on 26th April, the noble and learned Lord, Lord Falconer, said that the committee would look into the problems with regard to managers or investors. That means shareholders as well as banks and others. I believe that shareholders equally are targets, victims—whichever word one prefers to use.
§ Perhaps I may say a word in parenthesis to the noble Lord, Lord Phillips. He suggested that it would not be a good idea to insert the word "victim" into the law on rape. I do not believe that it would be much better to insert the 'word "target", which, after all, is the suggestion that he put before us. However, I do not wish to pursue that matter.
§ Lord Phillips of Sudbury
I am most grateful to the noble Lord for giving way. It is all very well to make a 660 little sally and then to say that one does not intend to pursue it. The noble Lord has pursued it, and I shall pursue him. He is my "target". I have no amour proper in relation to the word "target". I should be much happier if the word "person" were used, as is the case in all the other relevant provisions, including those in the Protection from Harassment Act, except in Section 5. However, it was impossible to redraft completely the whole of Clause 41. That is why I came up with the rather lame word "target". I hang nothing on that, but I hang everything on not having the word "victim" there.
§ Lord Cope of Berkeley
There we are. Now we have some idea of what we shall have to discuss at Report stage, if we reach it. There will he another, more refined amendment from the noble Lord, Lord Phillips.
Be that as it may, Amendment No. 79 seeks to extend the protection to shareholders. Apart from anything else, frequently directors are also shareholders in the same company; indeed, in many cases, that is encouraged. Therefore, if their particulars appear under their listing as shareholders, it is no good trying to conceal them from the list of directors. The same occurs when people are directors of more than one company, as many people are. When their particulars appear in Companies House under "Company A", quite properly and reasonably the other companies of which they are directors must he listed.
Therefore, it is extremely easy to look first at Company A and then at Company B, which may have nothing to do with animal research, and to find a director's home address. That will be the case unless the legislation provides that, if a director is to be given the protection of this clause and is to be allowed to put a service or accommodation address into his listing under Company A, he may also do the same in relation to Company B as a director. That is the point of Amendments Nos. 84, 85 and so on.
Amendment No. 86 concerns the question of timing. As I understand it, this legislation deals only with the entries at Companies House for future years. However, the particulars of those who are already directors, secretaries, or whatever, of companies are already listed at Companies House in relation to previous years. If the provision affects only the future annual returns of a company, it does not appear to provide much protection to existing directors. I believe that the protection must be extended to the previous entries listed at Companies House. Amendment No. 87 seeks to ensure that the provision applies to all companies and not only to the primary company.
I turn to Amendments Nos. 84 to 87. When an individual receives a notice stating that he is to be given such protection and will be allowed to list a different address at Companies House, I believe that that notice should also be given to the company; otherwise, how will the company know that the protection has been afforded to it? As I read the Bill, it does not appear that 661 the notice will be given to the company, and I believe that to be a loophole in the provisions as currently drafted. I beg to move.
§ 9.45 p.m.
§ Lord Davies of Oldham
We believe that Amendments Nos. 79, 81 and 82 which relate to shareholders, are unnecessary. Unlike directors, shareholders do not have to provide their usual residential address for the public record, but they may give a service address. They therefore already benefit from the same protection as the Government propose to give to directors in the Bill.
We believe that Amendments Nos. 84 and 85, which concern the granting of confidentiality orders, are not necessary. Provision is made in new Section 723F(3)(b) for regulations made under new Sections 723B to 723E to contain such incidental, supplemental, consequential and transitional provision as the Secretary of State for Trade and Industry thinks fit. We take the view that ensuring adequate notice to concerned parties of the making of confidentiality orders falls within that power. Our intention is to ensure that notification is given to relevant parties. The point raised by the noble Lord, Lord Cope, will be dealt with in that way.
We believe that Amendment No. 86 is, I am afraid, impracticable and unworkable. I hear what the noble Lord said about the question of the historical record. Companies' existing records are kept at Companies House in a variety of formats, including microfiche and paper. Given those various formats and the volume of documents filed over the years, it would be extremely difficult and time consuming to remove all existing records. There would also be little point because information contained in existing records is already in the public domain. It is widely used by specialist business providers such as Dun and Bradstreet, ICC and Experian.
The Government believe that Amendment No. 87 should not be agreed to. It might at first appear that inclusion of the word "affected" is somewhat superfluous. However, it is in fact needed because new Section 723C(8) defines "affected company" as a company that is required to deliver annual returns to Companies House and one in relation to which the director concerned has provided a service address that satisfies any conditions that may be laid down in regulations.
The Government see no need for Amendment No. 91, which concerns the unauthorised disclosure of a home address that is protected by a confidentiality order. Under new Section 723C(4) regulations may be made restricting the persons to whom, and the purposes for which, the relevant information may be disclosed. The relevant information is defined as information relating to the usual residential address of an individual who enjoys the benefit of a confidentiality order that has been obtained in prescribed circumstances. We propose to prohibit the affected company, by means of those regulations, from 662 disclosing information except to persons whom we specified in the regulations, such as law enforcement agencies. A disclosure by an affected company that was not within such a gateway would be in breach of the regulations. Under new Section 723E, the Secretary of State for Trade and Industry is empowered to make regulations that any person who discloses information in contravention of regulations under new Section 723C(4) shall be guilty of an offence. Thus the mischief which the noble Lord seeks to prevent can be dealt with under existing provisions of the clause.
I hope that in the light of that explanation, which attempts to assure the noble Lord that that which he seeks to obtain is already provided for in regulations under the legislation, the noble Lord will feel able to withdraw his amendment.
§ Earl Attlee
I am confident that my noble friend Lord Cope will expose some glaring weakness in the Minister's argument. But the Minister quoted the legislation and referred to the Secretary of State for Trade and Industry. It is not normal to quote specific Secretaries of State in legislation. Can the Minister explain why we have this change?
§ Lord Davies of Oldham
I merely referred to the legislation under which the Secretary of State for that department would be empowered to make the necessary regulations.
§ Lord Cope of Berkeley
The legislation is not specific. It just says, "Secretary of State". As we know, there is more than one and any one Secretary of State can exercise the powers of another. As usual, the legislation does not specify which Secretary of State, though I suppose the Minister is probably right to say that those powers would normally be exercised by the Secretary of State at the DTI but, if necessary, they could be exercised by another.
My noble friend suggested that I would expose glaring weaknesses in the Minister's arguments. I shall resist that temptation, great as it is. Basically, the Minister said that some of my amendments in this group were unnecessary and others his colleague, one of the Secretaries of State, would provide by regulation. I suppose that is something gained. All these points will need to be addressed by the committee of which I spoke earlier and I shall leave it at that for this evening. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Baroness Noakes moved Amendment No. 80:
Page 35, line 39, after "company" insert "or a member of a limited liability partnership
§ The noble Baroness said: In moving Amendment No. 80 I shall, with the leave of the Committee, speak also to Amendments Nos. 83, 88, 89 and 90.
§ Since the passage of the Limited Liability Partnerships Act last year it has been possible for partnerships to operate with limited liability. The regime set up under the Act, and more importantly the 663 regulations introduced under that Act, mimic the disclosure and public record requirements for companies. So members of a limited liability partnership will be required to register their usual residential address at Companies House.
§ Amendment No. 80 seeks to extend the scope of confidentiality orders under subsection (2) of new Clause 723B, introduced by Clause 44(2) of this Bill, to members of limited liability partnerships so that they too are treated in the same way as directors of companies.
§ I do not know whether any LLPs have yet been formed under the terms of the Act, but I am aware that one of the major accountancy firms has already announced that it is taking steps to achieve LLP status. Accounting and other professional firms involved with a company that is targeted by animal terrorists are likely to become targets themselves. We have seen in the case of Huntingdon Life Sciences how targeting has grown from the company to its bankers and its brokers. It is unlikely to stop there.
§ In its traditional form a partnership does not disclose the private addresses of its members. Limited liability partnerships will require those disclosures and hence their members need the protection of Clause 44. That is what my amendment seeks to achieve.
§ Amendments Nos. 83, 88, 89 and 90 are consequential amendments dealing with the provision of alternative addresses, the effect of the confidentiality orders, the impact on regulation-making powers and an interpretation clause. I beg to move.
§ Baroness Buscombe
I rise in support of my noble friend Lady Noakes. I had the privilege of taking the Limited Liability Partnership Bill through this House on behalf of the Opposition, as did, for the Government, the noble Lord, Lord McIntosh of Haringey. It was an important Bill and is an important Act. It introduces an important new vehicle into our legislation. I am somewhat surprised that it was not in the Bill. I would be even more surprised, and would go as far as to say that I believe the noble Lord, Lord Haringey, would be surprised, if it were left out of the Bill. I hope that we shall receive a positive response from the Minister to the amendment tabled by my noble friend Lady Noakes.
§ Lord Davies of Oldham
Perhaps I may say that for once I am able to fulfil the hopes of both noble Baronesses with regard to our proposals. We support the intention behind the amendments. We seek to give the assurance that we can achieve the common objectives we share through a slightly different route from the one outlined in the amendments.
The regulation-making powers are included in new Section 723B to 723F, to which I have already referred in discussing previous amendments. Regulations to be made following the Bill receiving Royal Assent will set out the details of the new arrangements. The Government will also introduce regulations under 664 Section 15 of the Limited Liability Partnerships Act 2000, which the noble Baroness, Lady Buscombe, knows well.
The regulations to be made under that Act will extend the provisions of new Section 723B to 723F and the regulations to be made under those sections to limited liability partnerships and to their members. Under the limited liability partnership regulations, a member of a limited liability partnership will be able to apply to the Secretary of State for Trade and Industry for a confidentiality order. In the light of those assurances I hope that the noble Baroness will see fit to withdraw her amendment.
§ Baroness Noakes
I thank the Minister for that statement. Indeed, I am grateful that the point has been taken. Perhaps I may make two points. First, limited liability partnerships are now a fact of our commercial world. I should like to see them move on to the face of legislation and not be confined to the limbo-land of regulation-making powers, which follows behind. I believe that limited liability partnerships are being forgotten. If that is not so, the Government might have included in the Explanatory Notes that this is how they intend to deal with this problem.
I am grateful for this recognition now. However, going forward one would like not to have to raise limited liability partnerships in any legislation which is akin to Companies Act legislation.
§ Baroness Buscombe
I echo the words of my noble friend Lady Noakes. There is every probability that limited liability partnerships will become the norm in the commercial world. Therefore, it is a pity that we do not now set a trend by ensuring that reference is made to them on the face of the Bill. Here is a perfect opportunity to do that.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 81 to 91 not moved.]
§ Clause 44 agreed to.
Baroness Buscombe moved Amendment No. 92:
After Clause 44, insert the following new clause—
"PLACING OF ADVERTISEMENT RELATING TO PROSTITUTION
(1) A person commits an offence if—
(2) For the purposes of this section, an advertisement is an advertisement relating to prostitution if it—
(3) In any proceedings for an offence under this section, any advertisement which a reasonable person would consider to be an advertisement relating to prostitution shall be presumed to be such an advertisement unless it is shown not to be.
(4) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or both.
(5) In this section—
public telephone" means—
public place" means any place to which the public have or are permitted to have access, whether on payment or otherwise, other than—
(6) In section 24 of the Police and Criminal Evidence Act 1984 (c. 60) (arrest without warrant for arrestable offences), in subsection (2) (offences which are arrestable offences), after paragraph (c) insert—
(ca) an offence under section (Placing of advertisement relating to prostitution) of the Criminal Justice and Police Act 2001;".
§ The noble Baroness said: Amendment No. 92 would make the placing of prostitutes' cards in telephone boxes—a practice commonly known as "carding"—a criminal offence. This is a matter which has long been of concern to residents, local authorities and telephone companies.
The Government issued a consultation paper on the issue as long ago as May 1999. It stated:
Prostitute cards in telephone boxes are undesirable and a nuisance to local communities. The cards can be offensive, create a bad impression with foreign visitors and can be an inappropriate influence on young people".
I do wish that we would stop using the word "inappropriate" when really the word is "wrong". This is a wrong influence on young people.
They hide important public service information and can cause serious litter problems. Those who place cards in boxes can be threatening towards the public and local authority cleaning teams. Furthermore, prostitutes' cards represent a cost to phone operators in terms of negative image and lost revenue and require local authorities to incur costs through cleaning operations".
The Government state that the problem is at its worst in central London and in the Brighton and Hove area. I am sure that the noble Lord, Lord Bassam, will be able to inform Members of the Committee of the extent of the problem in Brighton.
§ I understand from British Telecom that it spends more than £250,000 per annum dealing with this problem which affects more than 1,000 boxes in central London. Cards must be removed from those boxes six days a week and more than 13 million are collected each year. In Brighton and Hove, 250 telephone boxes are affected by more than 1 million cards a year.666
§ The number of cards has grown and the images and the description of the services offered have become even more explicit. The images used on the cards are sordid and people do not want to be confronted by such cards when they simply want to make a telephone call. In central London in particular the cards give foreign visitors a bad impression of this country. The cards are also an environmental nuisance, creating litter when they become detached from the telephone boxes and the so-called carders can become violent towards those who are trying to remove the cards.
§ As the Government have recognised, the existing state of the law is not adequate to deal with the problem. In their May 1999 consultation paper, they proposed creating a new criminal offence. In December last year, the noble Lord, Lord Bassam, gave further information to your Lordships' House about the conclusions of the Government's consultation and promised to legislate when parliamentary time allowed. The amendments have been drawn to reflect exactly the position taken by the Government in the light of the responses to their consultation document, a position outlined by the noble Lord, Lord Bassam, in December last year. I am delighted to see that the Minister has added his name to them.
§ Amendment No. 93 would allow the Secretary of State, with the approval of your Lordships' House and another place, to extend the scope of the offence to structures other than telephone boxes. I understand that that is necessary because it may be that the new offence created by Amendment No. 92 will displace the activities of the carders to bus shelters, lamp-posts or other structures in public places.
§ Finally, I invite the Minister to comment on the progress that is being made with Oftel and the telephone companies to ensure that the numbers advertised on the cards are being disconnected, a matter to which he referred in his statement in December last year. I beg to move.
§ Lord Faulkner of Worcester
I rise briefly to support the amendment and express satisfaction that it is a cross-party initiative. As the noble Baroness said, the way in which cards are littering telephone boxes is a major public nuisance and an affront to many people. It takes place mainly in London, and in Brighton and Hove, but increasingly in other towns and cities.
Many people find them offensive and many foreign visitors find them mystifying. Indeed, they come to the view that perhaps the telephone boxes are some form of advertising medium for prostitutes. I also read that children, particularly in primary school, collect the cards and exchange them rather like they do Pokemon cards. So it is a huge problem and this is undoubtedly a way in which it can be addressed.
I have two questions which I hope my noble friend will be able to answer. First, the amendment refers to prostitution services. Will it also cover what one might call "related services", or euphemisms for prostitution such as "massage parlours"? Will it still be legal if such cards appear in telephone boxes or other public places?
667 Secondly, what has been the response to the question posed on page 13 of the consultation paper produced in May 1999; namely, whether effective legislation against advertising in telephone boxes would result in an increase in street prostitution? That would be a most undesirable consequence of the implementation of this amendment. I am sure my noble friend agrees that it would also be dangerous for the women who take part in prostitution. Do the Government have any alternative ideas to deal with prostitution on the streets if this amendment leads to an increase? For example, have they thought of any other legal ways in which prostitutes can safely advertise their services without causing public offence?
§ Lord Dholakia
We on this side of the Committee support the amendment. The noble Baroness, Lady Buscombe, is quite right. The amendment is absolutely vital. This is very much an ugly feature of life in this country, particularly when decent people simply want to make telephone calls and, when they enter telephone booths, see the cards that are placed there. Children and women in particular find the cards fairly offensive. This matter has all-party support and I hope that it will become part of the legislation of this country.
§ Lord Bassam of Brighton
I am delighted that we have reached this set of amendments. Prostitutes' cards in telephone boxes is a matter which has given rise to concern on all sides of the House. When I was leader of Brighton and Hove council somewhat ironically I found myself entirely at one with the changing leaderships of the City of Westminster council, whatever form they took. We jointly campaigned to put into legislative effect powers such as these to outlaw and combat effectively the distasteful business of carding. Strangely, our two boroughs were at one in that joint concern. We, as local authorities, shared what we regarded as good practice in using planning legislation and other ruses to try to tackle the problem. It may be that we were ineffective in that, but at least we tried to tackle it. We now have a proposal which effectively is a joint "handout" amendment, and I am pleased that we have reached the point of discussing it.
This is a particular problem in Westminster and Brighton and Hove. I am grateful to the noble Baroness, Lady Buscombe, for reminding the Committee of the cost to the telephone companies and the environment and the impact on children, young people and visitors of these distasteful cards and their volume. I did not spend my days in Brighton counting these cards. However, if one needs to use a telephone box in the city centre one can hardly avoid seeing the cards. The fact is that they put people off using the telephones.
My noble friend Lord Faulkner asked whether cards which offered prostitutes' services by way of massage parlours and so on would be caught by this measure. According to the term that is to be adopted, prostitution really means any sexual services for reward. The amendment will cover any card in respect 668 of which a reasonable person reasonably regards the activity as a form of prostitution or sexual service. Therefore, it should cover massage parlours in the terms in which my noble friend Lord Faulkner indicates.
My noble friend also asked a question relating to page 13 of the report of May 1999; namely, whether we believe that this might encourage more street prostitution. Obviously, one cannot predict these matters; they are not a precise science. There is no evidence to suggest that that will be the case. I believe it is likely that those who seek to avail punters of prostitutes' services will advertise in other perhaps more acceptable ways. I do not want to speculate on what they might be. But we as Government are not in the business of encouraging prostitution. Far from it. What we have tried to do is to support those services that exist in many of our urban areas to try and help people in the sex industry get out of the world of prostitution and lead a more constructive and gainful existence.
We have set up prostitution projects to see what works in tackling prostitution. Through these projects we are looking to help prostitutes formulate exit strategies away from that business. Many of these concerns and considerations have been raised this week with the sad and tragic news of the death of Monica Coghlan, who was clearly caught up in that business. That has highlighted again the distasteful side of it. We need to do more; and the Government are strongly committed in that direction. I hope that has answered the points of the noble Lord, Lord Faulkner.
The noble Baroness, Lady Buscombe, raised an important point relating to Oftel. There have been many discussions. The Councils have had discussions with Oftel. I can remember a long time ago scripting letters to Oftel asking it to take responsibility in this field. The amendment is just one part of tackling the larger problem. There are other measures that can complement legislation.
My understanding is that Oftel has had discussions with the telecommunications industry about a call-barring scheme. Some progress has been made in that area. I am told that it is not a simple business. It needs to be developed. I hope that it can be. There will be further consultation with the industry following legislation in this area because schemes such as call-barring may play an important part in it. But it is not easy. It touches on the human rights of the individual who really should have access to telecommunications systems. So it is not a simple issue, but we need to make more progress.
I believe that these measures are right. The all-party support that exists for them is a measure of the strength of opinion in these matters. They will help prevent a nuisance in many of our city centres. I doubt whether the nuisance will long be confined to Westminster and Brighton and Hove. I am told by my colleagues in another place that their town city centres are increasingly being afflicted by the arrival of cards peddling this business and trade. After all, it is the oldest trade known to man.
669 I am grateful to the Opposition for tabling the amendment. I am happy to put my name to it. I am confident that the words are right. I am delighted that we have had all-party support for these amendments.
§ Baroness Buscombe
I should like to pick up on a couple of points made by the noble Lord, Lord Faulkner of Worcester. I agree with the Minister with respect to the terminology used in the amendments. On these Benches, it is our hope that other kinds of activities which are not blatantly prostitution, as it were, on the face of these cards will be caught under subsection (3). That states:In any proceedings for an offence under this section, any advertisement which a reasonable person would consider to be an advertisement relating to prostitution".We all have a good idea of the kinds of activities—be it saunas, massage or whatever—that would pertain to that and therefore be caught. At the risk of putting a dampener on the proceedings, I hear what the noble Lord says with regard to this proposal perhaps meaning a possibility of deflecting the problem from the phone box and on to the street, but, personally, I doubt that very much. What I fear—this is a matter that we shall all have to think about and indeed are already in terms of prostitution and pornography—is the use of the Internet for reaching out to potential clients. That is a problem, particularly with regard to young people. I need not expand on that point.
I do not think that we have closed off the problem. We have possibly moved it to some extent. But I think that we have been right. We should not be put off or be defeatist on this issue. We should not think that it is better to let the problem continue because we might produce another problem somewhere else. This is the right step to take. I raised the issue at Second Reading. I feel quite passionately about it. I am glad that the Government have added their support to our amendment. I thank the Minister for his response.
§ On Question, amendment agreed to.
Baroness Buscombe moved Amendment No. 93:
After Clause 44, insert the following new clause—
Application of section (Placing of advertisement relating to prostitution) by order to public structures
(1) The Secretary of State may, by order, provide for section (Placing of advertisement relating to prostitution) to apply in relation to any public structure of a description specified in the order as it applies in relation to a public telephone.
(2) In this section—
public structure" means any structure that—
public place" and "public telephone" have the same meaning as in section (Placing of advertisment relating to prostitution).
(3) At any time when an order under this section has effect, the reference in section 24(2) of the Police and Criminal Evidence Act 1984 (c. 60) to an offence under section (Placing an advertisement relating to prostitution) of this Act shall be construed as including an offence under that section by virtue of the order.
(4) The power to make an order under this section is exercisable by statutory instrument.
(5) No order may be made under this section unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.
§ On Question, amendment agreed to.
§ 10.15 p.m.
Baroness David moved Amendment No. 94:
Before Clause 45, insert the following new clause—
§ The noble Baroness said: Amendment No. 94 is the first amendment in a quite large grouping. The grouping includes Amendments Nos. 94, 94A, 94B, 94C and 94D, the Question whether Clause 45 shall stand part, and Amendments Nos. 144 and 145. Amendment No. 94 stands in my name and I have given notice of my intention to oppose the Question that Clause 45 stand part of the Bill.
§ All the amendments deal with child curfews, a subject which we have not discussed before this evening. I raised the matter at Second Reading and queried whether the provisions of the Bill were consistent with the Human Rights Act 1998. The Minister states on the face of the Bill that in his view it is compatible with convention rights. However, since the Second Reading debate, the Joint Committee on Human Rights has met and its report was published last Thursday. Paragraphs 52 to 57 of that report raise a number of points of concern. I am glad that we had a discussion on the Joint Committee a little earlier this evening, with the noble Lord, Lord Lester, taking a prominent part.
The report notes that the Government have consistently described the purpose of the child curfew schemes as being to prevent children and young people from engaging in criminal or anti-social behaviour. Yet that is not written into the Crime and Disorder Act 1998, which Clause 45 seeks to amend. I shall quote from the report. Paragraph 54 states:
The Government's purpose in introducing the power to make child curfew schemes was to prevent young trouble-makers from gathering regularly to commit crimes and cause disorder. However, neither section 14 of the 1998 Act nor clause 45 of the current Bill specifies that the power is to be used for that purpose. Furthermore, the legislation restricts the freedom of young people whether or not the individuals have committed, or are likely to commit, any offence, or have caused or are likely to cause disorder: the restriction is imposed on an area, not on individuals. Finally, a child or young person is liable to be taken into custody by a constable and taken home simply as a result of being in a place at the wrong time. The legislation does not require that the constable should believe or suspect that the individual has behaved, is behaving, or is likely to behave in a criminal or disorderly way".
Paragraph 55 states:
It is at least arguable that child curfew schemes interfere with human rights in three areas: the right to liberty; the right to privacy, or respect for private life; and the right to freedom of association and peaceful assembly. Children and young people are entitled to the right to privacy … the right to freedom of association and peaceful assembly, and the right not to be arbitrarily deprived of their liberty".
Paragraph 56 states:
We attempted to evaluate the proposed extension of child curfew schemes in the light of these human rights concerns. The cogent explanation of the purposes and operation of the schemes provided by the Government's response persuaded us that individual child curfew schemes may be capable of being justified as being for legitimate purposes … and that the powers of the police were intended to help to divert children and young persons away from the criminal justice system. However"—
this is important—
given the existence of other wide powers available to the police to protect young persons and to maintain public order, child curfew schemes may be disproportionate interferences with rights, in that they may not be the least restrictive measures necessary to accomplish the objectives set out by the Government. We accept that the making of individual schemes, and the exercise of the powers of the police and other officials in relation to them would be unlawful if they do not comply with the requirement of Convention rights, but the same is not true of non-compliance with the ICCPR and CRC which do not form part of national law".
Paragraph 57 is very important:
We recognise the importance of the Government's aims. However, we remain concerned about the proportionality of child curfew schemes, especially considering the extent of the discretion given to individual constables where a scheme is in force, taking account of the other powers available to the police to protect children and young persons and to prevent disturbances in public places. We consider that safeguards are needed against the arbitrary exercise of powers to make and operate these schemes".
I think that this is very important and that the Government should pay attention to what has been said by the Joint Committee on Human Rights. I hope that, when the Minister responds, he will say what he believes to be the status of the Joint Committee and what responsibility have the Government to comply with its decisions.
§ My amendments offer two possibilities. Amendment No. 94 seeks to repeal Section 14 of the Crime and Disorder Act 1998. That would mean that the curfew scheme for 10 year-olds would go and, therefore, that that section could not be amended. My second amendment seeking to delete Clause 45 would delete the arrangements for those aged up to 16, but it would also allow the curfew for 10 year-olds to remain. It is my hope that no curfews will remain. I do not believe that they are necessary when the police have other powers. I do not like the idea of curfews and I think that a great many people would agree with me on that.
§ The Minister may not agree, but I feel that he must go some way towards complying with the Joint Committee. I hope that, when he comes to reply, he will respond in a hopeful manner, at least so far as I am concerned. I beg to move.
I support Amendment No. 94 as well as the proposal that Clause 45 should not stand part of the Bill. I had asked that my name be associated with that of the noble Baroness, Lady David, in her Amendment No. 94. Unfortunately an omission was made by those responsible for preparing the Marshalled List. However, I wish to assure the noble Baroness, Lady David, that she has my full support for all that she has said.
672 I should like to speak to Amendments Nos. 94B, 94C and 94D tabled in the name of my noble friends Lord McNally and Lord Lester of Herne Hill. We support Amendment 94 which would repeal Section 14 of the Crime and Disorder Act 1998. Section 14 provides that local authorities and police forces could apply to the Home Secretary for approval to introduce a local child curfew scheme requiring children under the age of 10 to be at home after a specified time. That power has never been used, which indicates that the police and local authorities can see no point to it.
That is hardly surprising. If a child under the age of 10 is roaming the streets at night in a situation where he or she is clearly at risk, the police already have powers to take the child home or to a place of safety and to investigate the situation. On the other hand, if a group of children are playing football behind their houses at five past nine on a light summer evening, it does not seem a sensible use of police time to sort out the nine year-olds from the 10 year-olds in order to take the former home. We therefore support Amendment No. 94, which would repeal this ill-conceived measure.
However, far from admitting their mistake and repealing the measure, the Government have reacted to the fact that the current power is pointless and unused by proposing to extend it to cover children up to the age of 16. This would impose severe restrictions on the overwhelming majority of law-abiding young people and their parents. Many such young people go out in the evening to a wide range of activities, including sporting activities and training, youth activities and simply going round to each others' homes. If a curfew were imposed prohibiting young people from being on the streets after nine o'clock, they would be unable to take part in any activities which involved them coming home after that time. A single parent with two or three children each going out to different activities would be unable to let them go unless she was able to collect them all personally. This is simply not practicable.
Not only is this draconian and unreasonable, the evidence suggests that it will do nothing to reduce crime. When I spoke during Second Reading, I cited the research in the USA which had shown that the fall in youth crime had been no greater in areas which operate child curfews than in those which do not. Indeed, in the longer term curfews could be counter-productive in the fight against crime because they would prevent young people from taking part in many constructive organised activities and young people who take part in such activities are less likely to get into trouble with the law than those who do not. We therefore oppose Clause 45 of the Bill which seeks to extend an idea which clearly has failed and which is a distraction from more constructive measures which could genuinely make a difference to youth crime.
Many Members of the Committee and of the other place disagree with the Minister and do not see this extension as an improvement. In fact, many Members and NGOs, including Justice and Liberty, have called the original provision disproportionate to and incompatible with the Human Rights Act, as the noble 673 Baroness, Lady David, pointed out. Notably, in an important letter to the Home Secretary, the Children's Rights Alliance for England wrote:We hope that the Government will quietly discard the idea of child curfews once and for all. They lack professional support. Parents and young people see them as unfair and an infringement of basic civil and political rights".Liberty expressed concern in respect of the previous legislation as to the compatibility of any such order with the Human Rights Act, and in particular with Articles 5 and 8 of the convention, again a point made by the noble Baroness, Lady David.
Given this objection and the concerns raised by Members of this House and the other place, the Joint Committee on Human Rights paid particular attention to this clause. I am delighted that its report is now available. The Joint Committee obviously remains very concerned about proportionality and I shall be delighted to hear the Minister's view on this point.
In essence, if the law has not been used, I do not think we require a further extension of it in relation to another age group. I support the amendment.
§ Lord Cope of Berkeley
The noble Baroness, Lady David, seeks to delete all the local child curfew schemes. As the noble Lord, Lord Dholakia, pointed out, there have not been any yet and so it cannot be considered all that radical a move. Nevertheless, it is interesting. The noble Baroness also opposes that Clause 45 should stand part of the Bill.
This clause somewhat laughingly describes its purpose as an extension of these schemes. As they do not so far exist, it is not much of an extension.
§ Baroness David
There is a child curfew scheme in the Crime and Disorder Act for up to 10 year-olds. That is already in law.
§ Lord Cope of Berkeley
I realise that it exists in law. But it does not exist in practice; there have not been any such schemes implemented so far and, as far as I know, there is none under consideration. In that sense, although the scheme exists in law, the effect of the noble Baroness's amendment would be limited.
It seems to me that schemes for children up to the age of 16 would be less likely to be made than schemes for younger children. It is more appropriate to use such schemes for young children, and to confine them with a curfew up to nine o'clock, than it is to extend them to older children. So the Government are moving in an odd direction.
Another important point has been referred to; namely, the report of the Joint Committee on Human Rights, to which the noble Baroness drew attention. I shall not dwell on it as she explained its contents. Our Amendment No. 94A is an attempt to bring the so far unused Section 14 of the Crime and Disorder Act into line with the suggestions of the Joint Committee on Human Rights.
674 I appreciate that amendments tabled by the Liberal Democrats attempt to do the same but with slightly different wording. I do not know whether our wording or theirs is to be preferred from a legal point view. Either way, we are attempting to bring the clause into line in accordance with the recommendations of the Joint Committee. That seems to me desirable if we are going to bother to continue this power at all given that it seems to be just a waste of space on the statute book.
§ 10.30 p.m.
§ Lord Bassam of Brighton
Clause 45 increases the maximum age of children who could be covered by a local child curfew scheme from nine to 15, and Clause 46 allows the police to propose a local child curfew scheme.
The local child curfew scheme for children aged nine and under was introduced in Section 14 of the Crime and Disorder Act 1998 and has been in force since September of that year. The scheme allows a local authority, after consultation with the police and other appropriate local bodies and following confirmation from the Secretary of State, to set up a scheme under which it can ban children up to the age of nine from being out late at night (for a specified period between 9 p.m. and 6 a.m.) otherwise than under the control of a responsible adult.
The local child curfew scheme aims to tackle the problem of children and young people being unattended on the streets late at night, where they are at risk of becoming involved in anti-social or criminal type behaviour, and where they are also at risk from older peers encouraging them into criminal activities, or from adults such as pimps or drug dealers.
No local authority has applied to the Secretary of State to set up a local child curfew scheme. Following consultation with the police and local authorities we believe that a major reason is that the age range was too narrow given that children out on the streets are often aged 10 or over. The clause seeks to remedy this by increasing the flexibility of the schemes. It makes them more capable of playing a useful part in local crime and disorder reduction strategies.
I read with interest the report from the Joint Committee on Human Rights, and I have listened carefully to the exposition given by the noble Baroness, Lady David. I am pleased to note that the committee is persuaded that individual child curfew schemes may be capable of being justified as being for legitimate purposes—particularly for the protection of children and young people.
I note the committee's concerns about the proportionality of child curfew schemes. However, no scheme will be approved by the Secretary of State unless a clear case has been made demonstrating that such a scheme is necessary, right and proportionate in a particular area to tackle the problem of youth crime and general nuisance and also to protect children from being drawn into potentially dangerous situations.
The legislation does not criminalise children. Instead, it provides for the possibility of children being taken home from places where they are at risk in 675 certain circumstances and at particular times. It is a specific response to problems in particular trouble spots and simply allows a police officer to take a child home or to a place of safety if the child appears to be at risk of being encouraged into crime or at risk from others, such as pimps or drug dealers. That is a major consideration. There is no question of taking every child home who is found to be in breach of a curfew—particularly if he or she has a legitimate reason for being there and is not causing a nuisance or appearing to be at risk. New guidance will be issued to coincide with the launch of the scheme in which the criteria by which the Secretary of State will assess proposed schemes will be clearly set out. That will include the aims at which the scheme is addressed.
I turn now to the various amendments in this grouping. Amendment No. 94 would have the effect of abolishing the local child curfew scheme. Amendments Nos. 144 and 145 will have the effect of bringing the changes introduced by this Bill into force on Royal Assent and of limiting their effect to three years from that date. Complete abolition of the scheme would leave the police with no clear powers to take children home in particular trouble spots where they might be at increased risk of being encouraged towards crime, or where they faced risks from others.
Restricting the changes to the scheme introduced in this Bill to three years from the date of Royal Assent would, in our view, not be right. Statutory provisions are not normally time limited. Further, these provisions will give important additional powers to those responsible for protecting children and local communities. It would not be right now to say that these will no longer be appropriate in, say, three years' time: on the contrary, there is every reason to believe that they will be. They should remain available for use in local areas, where appropriate.
It would also not be right to bring such changes into force on Royal Assent. Before bringing these provisions into effect, we intend to issue guidance to the police and local authorities about the changes that they introduce to ensure that those who will use the scheme are fully informed about how they will work. For that reason, we believe that it is appropriate for there to be a delay between Royal Assent and the provisions coming into force. Our intention would be to make use of that delay by consulting and getting the guidance absolutely right.
In a recently circulated briefing, the Local Government Association, which obviously has important views on the matter, acknowledged that the extension of the scheme to under 16 year-olds may make curfews more appropriate and acceptable to everyone for use by local authorities and the police. That is a most important consideration.
Amendments Nos. 94A, 94B, 94C and 94D would appear to have been tabled as a result of the recommendations from the Joint Committee. Amendment No. 94A would prevent the Secretary of State from approving a child curfew scheme unless satisfied that it would help to avoid disorder or prevent the commission of offences by young people. 676 Amendments Nos. 94B, 94C and 94D would have the effect of requiring the local authority or chief officer of police making a curfew scheme, or the Secretary of State when approving one, to consider whether the scheme was appropriate and necessary to protect public order,or for the protection of children and young adults".The phrase "children and young adults" is not defined, but we take it to mean people under the age of 16.
We have considered the report and the recommendations very carefully. We also noted the concerns about the proportionality of child curfew schemes. Having taken those points on board, we do not believe that it is necessary to amend the legislation to reflect the aims of local child curfew schemes, which is clearly the intention of these amendments. The Government believe that the local child curfew scheme, together with the amendments contained in the Bill that will increase the age range and allow the police to initiate schemes, will make it one of a useful range of options available for consideration by local areas in their fight to reduce crime. I should stress, again, that that is part of a process and part of a range of options designed to tackle anti-social activity as much as anything else.
It is important that local areas, and the police, fully understand and comply with the aims of the scheme. However, we do not believe that legislation is necessarily the most effective way of achieving; that aim. As I said, new guidance will be issued to coincide with the launch of the scheme in which the Secretary of State will set out the criteria. I wish to make it quite clear that no scheme will be approved unless a clear case has been made demonstrating that it is necessary and that it will tackle a particular local problem.
We oppose these amendments. In a civilised society it is unacceptable to leave children and young people—some of the most vulnerable members of our society—out, alone, on the streets in particular areas where they can easily be at risk of being encouraged towards criminality and anti-social activity and behaviour that is damaging to them personally. We willingly confess that we originally set the age limit too low. Children up to the age of 15 can still be vulnerable and led astray by others. Indeed, that point has often been made in this Chamber in debates on family matters. Those young people are potentially vulnerable to extremely dangerous situations.
We believe that with the changes introduced in the Bill local child curfew schemes are capable of playing a useful part in the future in crime and disorder reduction strategies and we should give local communities the option of applying to set up schemes where they think that that is necessary, right and appropriate. For those reasons it is inappropriate to time limit the new schemes. For all the reasons we have given we believe that it is necessary to amend the legislation. Therefore, we cannot accept the amendment.
§ Lord Dholakia
Before the Minister sits down, he mentioned that the existing provision for children up 677 to 10 years old is far too narrow and that is why it has been extended. Has any research been carried out by local authorities and the police to find out whether the extension up to the age of 16 will be of any use?
§ Lord Bassam of Brighton
It is difficult to research something which has not been implemented. For that reason the Government favour using pilot schemes. There is some experience in Hamilton, Scotland, where curfew orders of a similar nature have been used as part of local crime reduction strategies. Although I do not have the details of the Hamilton scheme to hand, significant reductions in criminal activity have been achieved in particular hotspots. I accept that that is not necessarily directly applicable to situations where we would like to see curfews apply here. However, the Hamilton experience has informed some of our thinking. That approach should be seen as part of a wider package. I believe that that is how the matter has been approached in Hamilton.
§ Baroness David
I thank the Minister for his long reply. I also thank the noble Lords, Lord Dholakia and Lord Cope, for their support for my amendment. However, I do not think that the Minister has said why these extra powers are necessary when the police already have powers to remove children from the streets if they are in a dangerous situation. I believe that the extra powers are totally unnecessary.
The Minister has not replied to my question about the status of the Joint Committee on Human Rights. I thought that that was set up as an important committee which would have some power and would be respected by the Chamber. However, it does not appear to have that respect.
§ Lord Bassam of Brighton
I am grateful to the noble Baroness for giving way. I regret that omission but it was made in the full knowledge that in two previous debates we covered precisely that point. I have given the Government's position. We obviously take great heed of the Joint Committee's reports. It has been helpful to us even at this late stage of this important Bill. It will be important in enabling us to frame not just legislation but also guidance and background material to legislation where important human rights considerations are involved.
§ Baroness David
In case the Minister did not think that I had listened earlier, I should say that I did hear the earlier debates on the Joint Committee and the points made by the noble Lord, Lord Lester, and others. However, I still do not quite understand what standing the committee has. I thought that it was a new venture which would be paid attention to. However, it does not seem to me that that has been the case, either in this debate or in earlier debates on, for example, restrictions on travel. That was an important matter and more attention should have been paid to it. I am, of course, disappointed with the Minister's reply. As I say, these extra powers are quite unnecessary. There is enough legislation already in this regard. I did not say 678 earlier that all the children's organisations are strongly opposed to the new powers which the Government are trying to introduce. I shall consider the Minister's reply and discuss it with many people. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 45 agreed to.
§ 10.45 p.m.
§ [Amendment No. 94A not moved.]
§ Clause 46 [Power for police to make schemes]:
§ [Amendments Nos. 94B to 94D not moved.]
§ Clause 46 agreed to.
Baroness Buscombe moved Amendment No. 95:
After Clause 46, insert the following new clause—
§ "Indecent conduct: children
§ ENTICING A CHILD TO ENGAGE IN INDECENT CONDUCT
§ In section 1(1) of the Indecency with Children Act 1960 (c. 33), after "incites" there is inserted "or entices"."
§ The noble Baroness said: Amendment No. 95 is concerned with enticing a child to engage in indecent conduct. The Opposition first raised this issue in amendments to the Criminal Justice and Courts Services Bill considered by this House last year. On four occasions, both in your Lordships' House and in another place, the Government rejected our amendments to that Bill. They were also rejected in Committee and on Report in another place.
§ However, the Opposition feel strongly about the matter. We believe that the Government are wrong to resist our amendments. We look even now for a change of heart. I note that even the Liberal Democrats who voted against our proposals in your Lordships' House last year have now seen sense, if the comments of their colleagues in another place are to be believed.
§ The amendment is designed to close a loophole in the current law in order to tackle paedophiles who lure or entice young children using Internet chatrooms into meeting them offline for sex. Internet chatrooms can be used positively in order to bring children together but there are dangers for young, impressionable children who use those chatrooms unsupervised. Predatory paedophiles across the world have recognised the opportunity that the Internet has given them to contact children anonymously and at a safe distance and then to build up an online and offline relationship with them for the sole purpose of persuading them to meet in order to engage in sexual activity.
§ Internet chatrooms allow the predatory paedophile to have invisible access to impressionable children—young teenagers—from a safe distance, allowing contact to be made even while the child is using the Internet in the secure surroundings of his or her own home, often even his or her own bedroom. Once contact has been made the process known as grooming goes on, using e-mail messages, and perhaps over the child's mobile phone. The paedophile might represent 679 himself as an older teenager or someone in his very early 20s. For young teenage girls in particular the attentions of someone they believe to be an older boy or young man are especially flattering. They are immediately lulled into a false sense of security although the grooming process can go on for weeks and months as it may take this long for the child to feel comfortable.
§ At the end of the process, the paedophile proposes an offline meeting. The results of that meeting can be devastating. Innumerable cases of sexual abuse as a result of such meetings have been reported in the press. For example, only last week there was the case of Andrew Hall, a 34 year-old bus driver who posed as a 14 year-old boy in an Internet chatroom. He eventually arranged to meet a 14 year-old girl offline and had sex with her at his home. He was gaoled for 18 months for indecent assault and abduction.
Earlier this year there was the case of Mark Stephens, a 45 year-old van driver who also seduced a 14 year-old girl he met in a chatroom. In the chatroom he had told her that he was 26. Eventually they met and had sex in the van he used for work. He pleaded guilty to indecent assault and unlawful sex. The girl's story was published in a newspaper She said:
I knew something was wrong when I got in his van but after chatting to hint so much on the Internet he seemed like a friend".
Speaking out about the grooming process, she said,
He was nice and always asked me how my day was, and what I did at school. He said he liked skiing and he would take me skiing. He asked me for my mobile number so I gave it to him".
Eventually she agreed to a meeting. She said:
He told me how pretty I was, then opened the passenger door of his van and I got in. I would never have got into a van with a stranger normally but I felt I knew Mark well".
§ The second time they met he forced her to have sex with him in his van.
§ That is what can happen and what is happening, sadly, in this country today. But where there is a sexual assault, as in the case I have described, the paedophile can be charged and convicted. But it is at the very least unclear whether the current law in this country affords children the protection they need until an actual assault takes place when they are groomed by paedophiles. The Opposition believe that the addition of "or entices" to the Indecency with Children Act 1960 would offer protection that is not currently available.
§ I have described two cases in which a paedophile was convicted of a crime, but there are equally well known cases in this country in which the paedophile was not charged. The first relates to a girl known as Georgie. At the age of 13 she began to use Internet chatrooms and became infatuated with an online friend, who told her that he was an older teenager. They began talking on the phone and the relationship took on a sexual aspect. They then arranged to meet without her knowing even what this supposed teenage boy looked like. Luckily, her mother went along as well. It was clear at the meeting that the man was not a teenager, but was middle aged. The mother stopped anything happening, but the police could not take 680 action against the man because no physical assault had taken place. Charges of conspiracy to commit an act of gross indecency were dropped.
§ The second case is that of convicted paedophile Patrick Green. Last year at Aylesbury Crown Court he was sentenced to five years' imprisonment for sexually assaulting a 13 year-old girl whom he had lured into meeting him using an Internet chatroom. However, before his conviction he was released on bail and began to communicate with another teenage girl using a chatroom. He arranged to meet the girl, but was caught red-handed by the police while travelling to meet her for sex. However, because no assault took place, no action was taken against him in respect of the latter girl.
§ It seems from those cases and others like them that the law offers little protection to children, as a sexual assault has to be committed before charges can be brought. Adding enticement to the 1960 Act would enable charges to be brought in such cases. That would at least remove for a while the threat of the men involved contacting, grooming and approaching other children online.
§ In a case in which the police are able to intervene after a paedophile has turned up for a meeting but before a sexual assault has occurred, the offence of enticement could be proved relatively quickly and easily with e-mail and other documentary evidence. It would be a strong preventive measure and would send a clear signal to those trying to entice children online.
The Minister may say that the amendment is unnecessary and that the existing law is adequate. That is what the Minister of State said in another place on 14th March. The Home Secretary wrote to my right honourable friend Miss Widdecombe on 8th November last year, saying that the law did not need amending. He wrote:
We believe that, with respect to the particular concerns … raised, the law already makes this particular misuse of the Internet illegal".
That is what the Government said last year on numerous occasions, including in your Lordships' House. If that is so, why could the police take no action in the cases that I have described?
§ Finally, the noble Lord, Lord Bassam, argued earlier this year that the proposal would create thought crime. With respect, that is not the case. The amendment would focus on the actions of the predatory paedophile in enticing the child for the purposes of sex. There would need to be documentary evidence. I am told that the experience of other countries, particularly the United States of America, has shown that such an offence has enabled the conviction of adults who are a danger to children rather than allowing them to get away scot free, as happened in the cases that I have just described.
In a Standing Committee in another place, the Minister of State said:
I acknowledge that we have not yet squared the circle in this area … A great deal remains to be done".—[Official Report, Commons Standing Committee F, 6/3/01; col. 533]
The Opposition have been pressing the issue for nearly a year. It is important that the law gives the maximum possible protection to our children. Predatory paedophiles must be stopped in their tracks. I hope that the Government will be able to give a more constructive response to the amendment than was forthcoming in another place. I beg to move.
§ Lord Phillips of Sudbury
I support the amendment. Alternative proposals for amendment were put forward in the other place. My party's proposal was not far removed from that of the Conservatives in the House of Commons. Although we are aware that a major consultation exercise has been taking place for several months with regard to comprehensive reform of the law of sexual indecency and impropriety in this area, and, although in a perfect world one may wish to delay until one has reached conclusions on that and legislated, this appears to be a rather obvious and serious lacuna in the new communications age. Our inclination is to support the amendment as a stop-gap and to hope that it will achieve some restraint on the type of offence which the noble Baroness, Lady Buscombe, has outlined.
§ The Attorney-General (Lord Williams of Mostyn)
I am most grateful for the way in which the noble Baroness has put her case and for the way in which, slightly differently I believe, the noble Lord, Lord Phillips, has supported her. He said—I believe this is accurate—that he was looking for a stop-gap. The noble Baroness asked for a more constructive response. I hope to deal with both those matters.
Were the amendment to be carried, the Indecency with Children Act 1960 would read:Any person who commits an act of gross indecency with or towards a child under the age of sixteen, or who incites or entices a child under that age to such an act with him or another, shall be liable".The last words are very important as a matter of legal construction. I believe that the noble Baroness, the noble Lord, Lord Phillips, and I are agreed on one thing: we all want to protect children in a difficult area. If this amendment brought about that protection, I should be the first to support it. But it does not.
The 1960 Act to which I referred in its relevant parts obviously provides that it is an offence to commit an act of gross indecency with or towards a child. As I read out, it also makes it unlawful to incite a child to an act of gross indecency. For the purposes of completeness, we amended the Act in the Criminal Justice and Court Services Act. Therefore, a "child" is now someone under the age of 16, and the maximum penalty is now 10 years.
As I believe the noble Lord, Lord Phillips, identified, the only question to be asked is: if one adds "entice" to "incite", does that aid child protection? It does not. The courts have held that the word "incites" includes some form of persuasion, encouragement or pressure. It does not matter that the incitement is not 682 successful. Therefore, in law, enticement involving some encouragement is simply another form of incitement.
I know that there is always a temptation to look for cosmetic improvements. My unhappy experience—perhaps shared by the noble Lord, Lord Phillips—in the courts has always shown that it never works. First, it is wrong to put on to the statute book something that has no obvious further consequential meaning. It would bring about confusion as to the true meaning of "incite" in the 1960 Act and it could detract from the meaning of "incitement" in other relevant legislation. Therefore, ultimately we would not strengthen the law; we would cause doubt and, thus, weakness.
The noble Baroness asked for a constructive response and I hope to be able to give one, as I do also in response to the shorter comments of the noble Lord, Lord Phillips. We all share concern over the "grooming"—I believe that that was the phrase used by the noble Baroness—of children by paedophiles. Whether it takes place online or offline does not matter. Doing so online is simply a more devious and modern way of bringing about the ignoble purpose. Therefore, we all want to prevent that.
If in the noble Baroness's amendment "enticement" means an encouragement to the child to commit an act of gross indecency, that is already covered by the word "incitement", whether or not—I emphasise this point—the act of gross indecency takes place.
If the amendment were agreed to, it would not catch someone who simply arranged to meet a child. One would have to prove to the usual criminal standard—I stress that—that the "enticement" was to commit an act of gross indecency with the defendant or another. Enticing a child to a meeting would not amount to the offence by itself—that is extremely important. One would still have to prove that the purpose of the enticement was, to quote from the 1960 Act, to,commit an act of gross indecency".I recognise from the serious comments of the noble Baroness and the noble Lord, Lord Phillips, that this is an area that needs serious consideration. However, getting it wrong is no help or assistance to children.
The Home Secretary announced on 28th March a taskforce on child protection and the Internet. That will include representatives from all parts of the industry involved in Internet services, some of which were extremely responsible—I pay tribute to them—in my dealings with them when I was at the Home Office in previous years. Regulatory bodies, children's charities and law-enforcement agencies will be involved. I hope that I am putting this in a helpful way, as the noble Baroness invited me to do. We have invited representatives from both opposition parties to join the taskforce. This matter is much too important to make partisan points—none has been attempted this evening.
We are looking at a proposal that may meet the difficulties that I have tried to identify. I stress that it represents developing thoughts; it is extremely difficult to keep up with technology and new techniques, which develop rapidly. One thought is that a civil injunctive 683 order could be hacked up by the criminal law. That might be looked for by the police in respect of a course of conduct online or offline, which would give a reasonable person reasonable cause for concern that any meeting with a child arising from the conduct would be for intended unlawful conduct or perhaps specific types of unlawful conduct. I think that that would meet the danger and fill the gap identified by the noble Baroness and the noble Lord, Lord Phillips. I stress that these are initial developing thoughts. The model comes from the Protection from Harassment Act 1997 and the ASBOs in the Crime and Disorder Act. There is much work to be done in this regard. I do not think—I hope that in saying this I have every care for what has been said so moderately this evening—that the amendment would do any good. It would produce a degree of doubt in courts' minds. We should end up sadly and ironically doing damage to those whom we had hoped to protect.
We need to make the criminal law work and, above all, to make it flexible. Criminals use new tools and devices. The noble Baroness gave the example of a child who was obliged to have sexual intercourse without his or her—in the example, the subject was female—consent. Plainly, on the face of it that involves the sense of rape in any event.
I am grateful that this matter has been brought forward today. It has certainly not been put to sleep on the top shelf. I hope that my explanation, which was longer than I would have intended normally, has proved a comfort to the noble Baroness and to the noble Lord, Lord Phillips.
§ 11 p.m.
§ Lord Phillips of Sudbury
Before the Minister concludes and the noble Baroness responds, I have a question for him, although it may be unfair at this stage in the development of the proposals. Given the remedy involving a civil injunctive order backed up by criminal sanctions for breach of it, does it currently seem that that approach could be initiated not merely by the police but by, for example, a children's charity?
§ Lord Williams of Mostyn
I am grateful to the noble Lord for the scrupulous way in which he put that question. It seems to me that there is no reason in appropriate circumstances why that action should not be taken by the police or the Probation Service, if it has a legitimate interest in doing so. It seems to me that a parent or a guardian might have perfectly reasonably grounds for doing so. One wants certainty of protective outcome and flexibility of approach and that is what I tried to describe.
§ Baroness Buscombe
I thank the Attorney-General for his response to this amendment. I am grateful for his comments. Clearly he accepted our frustration in relation to this grave situation, which is very much on the increase. We feel strongly that something must be done as soon as possible and would welcome the opportunity of taking part in the task force to which the noble and learned Lord referred.
684 It is important to find a way to resolve this problem. I accept the point in relation to the word "entices"; it may deflect from the meaning of the word "incites" and create confusion. The Attorney-General understands why we have pressed this matter thus far and why we continue to raise it on different occasions. We would welcome taking the issue further as a cross-party initiative to see what can be done to progress the situation in a short timeframe, working with the different agencies. On that basis, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Cope of Berkeley moved Amendment No. 96:
After Clause 46, insert the following new clause—
§ "POWER TO RELEASE SHORT-TERM PRISONERS ON LICENCE: EXCLUSION
§ "(ba) the sentence is for any of the following offences—
- (i) an offence under section 89 of the Police Act 1996 (c. 16) (assaulting, obstructing or resisting a constable);
- (ii) an offence under section 38 of the Offences against the Person Act 1861 (c. 100) (assault with intent to resist arrest):
- (iii) an offence of common assault or an offence under section 18, 20 or 47 of the Offences against the Person Act 1861 (wounding, causing grievous bodily harm and causing actual bodily harm) which was committed against a constable in the execution of his duty, any member of staff of the emergency services in the course of his duty or any member of staff of the National Health Service in the course of his duty,"."
§ The noble Lord said: Amendment No. 96 relates to the Government's scheme for the early release of convicted prisoners. It seeks to exclude from that scheme those who assault police officers, other emergency workers and the staff of the NHS. The scheme was inserted into the law by the Crime and Disorder Act 1998.
§ As the Committee may be aware, the scheme allows prisoners sentenced to up to four years in prison to be released two months earlier than the normal half-way point of their sentence. So someone sentenced to three years may be let out after 16 months and someone sentenced to six months may be released after six weeks.
§ The latest figures show that since the time when the scheme began in January 1999 to 31st March this year—just over two years—a total of 33,737 criminals were released early under the scheme. On average they had received sentences of 14.3 months but had served just 5.6 months in prison before being released: that is, less than two-fifths of their sentence.
§ Those released on the scheme before serving half their sentences included 67 criminals convicted of manslaughter, eight of attempted murder, 4,443 of wounding, actual bodily harm or grievous bodily harm, 3,090 convicted of burglary, 1,446 of robbery, 4,607 of drug dealing and trafficking, 82 of blackmail, 51 of kidnapping and 1,413 of affray and violent disorder. Those are considerable statistics of serious crime; and there have been, in addition, nearly 1,100 685 further offences committed by prisoners released on the scheme during the two months when they were released early, including two rapes and dozens of other serious crimes of violence. That makes 1,100 offences that would not have been committed except for the Government's policy.
§ The Opposition have consistently opposed this scheme from its inception and over the past two years we have attempted to correct some of its worst defects. We proposed to exclude registered sex offenders altogether from the scheme three years ago. I am glad to say that last year that became law in the Criminal Justice and Court Services Act. So there has been movement by the Government in the direction of this amendment and we are trying to press them further. But so far they have consistently rejected this amendment which seeks to stop the release of criminals who assault police officers or resist arrest and those who assault NHS and emergency service workers.
§ So far, according to the Government's figures, 15 criminals convicted of obstructing a constable, 14 of assault with intent to resist and no fewer than 290 of assaulting a police officer have been let out under the scheme. Twenty-five further assaults on police have been committed by those released early when they should still have been in prison. The 290 criminals convicted of assault on police received on average a sentence of imprisonment of 4.7 months, but they served just six weeks, or less than one-third of the sentence handed down by the court. Far from ensuring the toughest possible sentences for assaults on police, the Government are making a mockery of the sentences handed down by releasing these criminals before they have served even one-third of their sentences.
§ That is extremely damaging to the morale of the men and women of our police force whom our Government claim to support. I note that the chairman of the Police Federation recently said that morale is the worst that he has ever seen. There are no comparable published figures for assaults on the other staff I have mentioned, such as ambulance staff, fire crews, nurses, doctors and so on. However, people who assault those staff should also be excluded from early release. It is important for the morale of our emergency service as a whole and of NHS staff that those who assault them should not benefit from this early release scheme.
§ In the short time available to us outside today's debate we have been able to understand a little of what has been happening with the demonstrations in London. Apparently the demonstrators drew inspiration from the board game, Monopoly. I hope that the Government will respond by abolishing this "get out of jail free" card. If the Government are serious about keeping up morale in the police force, the NHS and the emergency services, they should follow the example they set in the Criminal Justice and Court Services Act and accept the amendment. I beg to move.686
§ Lord Phillips of Sudbury
My colleagues in the other place tabled an amendment to the Conservative proposal before us to include the emergency services and staff members of the National Health Service. I support the amendment which now includes that addition.
§ Lord Bassam of Brighton
The amendment would create a new clause that would add prisoners who have committed certain specific offences to the list of classes of prisoners ineligible for home detention curfew.
Home detention curfew (HDC) does not work like that and was not intended by Parliament to do so. The list of groups of prisoners currently disbarred falls into five categories, all of which are concerned with risk to the public or risk of breaching the curfew. First, there are those who have previously breached trust; in other words, failed to return from temporary release, been recalled to prison while on licence or breached a previous HDC. Secondly, there are those subject to immigration enforcement action because of the risk of their breaching the curfew conditions in order to evade this enforcement action. Thirdly, there are those who are required to register with the police on release as a sex offender. Fourthly, there are those whom the court considers pose a serious risk of re-offending with a violent or sexual offence and are therefore sentenced to imprisonment with extended supervision. Finally, there are those offenders whose offending was brought about by mental illness such that the court has made a hospital order or something similar on the basis of risk to the public.
Nowhere is any class of prisoner excluded from HDC simply in order to demonstrate society's disapproval of their offence. Given the nature of the amendment, that is an important point to have underlined in this debate. Demonstration of society's disapproval or reprobation is a matter for the court in deciding the nature or length of a sentence. Parliament's involvement is in setting the maximum sentence for any offence.
HDC is not a method of rewarding offenders, to be withdrawn because Parliament does not like the nature of their offence. It is quite the contrary. It is a scheme to aid the reintegration of low-risk prisoners in the wider community by providing greater control during the early transitional phase of release. We would argue that the only criteria should be risk to the public and risk of breaching trust.
Exclusion of those who assaulted a police officer or an ambulance worker or resisted arrest can be explained only in reprobative terms. Such offenders are not, as far as is known, more likely than any others to repeat their offences while on home detention curfew. The court has already considered the need for reprobation in setting the sentence length. It must be borne in mind that those receiving sentences of four years or more are not eligible for HDC.
I have some information on the average sentence for the affected prisoners for resisting arrest. It is apparently at about five months. Automatic unconditional release would take place in any event at 687 the half-way point—at two and a half months—under existing legislation passed in 1991 and introduced by a previous Conservative government. Furthermore, it was a release which operates without any form of supervision. That is a distinction between that approach and the approach of HDC. HDC has led to the affected prisoners serving about four weeks of their custodial sentence on curfew instead of in prison, so it is a controlled transition from custody to the wider community.
In reply to the noble Lord's concerns, I would argue that the right approach is to ensure that each and every eligible prisoner who is considered for release on HDC is subjected to a most rigorous risk assessment which will take into account the prisoner's dangerousness, propensity to re-offend and propensity to breach the curfew. That is precisely what the present arrangements do with admirable success.
Only about 30 per cent of eligible prisoners have been released on home detention curfew, showing that the risk assessment is a serious business. Of those, 95 per cent of curfewees have successfully completed the curfew, and of those who have not, a small number have been found to have re-offended while on curfew. As at 31st March this year, 653 of the 33,737 were released on HDC, to which the noble Lord referred, or less than 2 per cent. The noble Lord, Lord Cope, has tabled a Parliamentary Question about home detention curfews which is to be answered soon.
If we were to go along with the course of action recommended in the amendment, the floodgates would be open to further amendments to HDC legislation, which is probably the intention behind the amendment, further narrowing down the range of those offenders who might be included in it. It would exclude any offender whose offence happens to be thought particularly heinous at the time; an offence which perhaps has been highlighted in the popular press and highlighted volubly by those who want to whip up a particular campaign against a particular type of offender.
It would also reduce the number of prisoners eligible for HDC. By how many is hard to determine since our inmate database system does not break offences down as narrowly as the amendment requires. At the last count we estimate that some 259 prisoners have been released on HDC whose index offence—that for which they received the longest sentence they are currently serving—was assault on a police officer, assault with intent to resist arrest or obstructing or resisting a constable. Where the offence was GBH or ABH but the victim was a police officer the index offence might 688 be recorded as wounding or ABH with no indication that it involved the police. Therefore, the figures may be far higher. We have no figures for assaults on NHS or emergency service staff.
There will be other prisoners who are serving sentences for such offences but for whom this is not their index offence. They would still be ineligible, but we have no way to calculate the numbers. We believe that it would be inappropriate to extend the list of those excluded from HDC in the somewhat arbitrary way suggested by the noble Lord. Exclusion from HDC is, and, I argue, should remain, based on risk to the public and risk of breaching the curfew, not an arbitrary view perhaps formed in the heat of the moment about a particular type of offence that might render the offender subject to the additional reprobation beyond that inherent in the sentence. It is for those reasons that we must resist these amendments.
§ Lord Cope of Berkeley
The noble Lord emphasised that the scheme was concerned to minimise risk to the public, but I spoke of the risk to the police, NHS and emergency service workers. The statistics that I quoted were different from those provided by the Minister, and I shall consider that matter further. Just as the Government in the end came round to excluding sex offenders from the scheme, they will come round to proposals of this kind. However, for the moment I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Cope of Berkeley moved Amendment No. 97:
After Clause 46, insert the following new clause—
"OFFENCE OF ACTIVITY OF USING CRACK COCAINE
In section 8 of the Misuse of Drugs Act 1971 (c. 38) (occupiers etc. of premises to he punishable for permitting certain activities to take place there)—
§ On Question, amendment agreed to.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.
§ House adjourned at twenty-two minutes past eleven o'clock.