Criminal Justice and Immigration Bill

Public Bill Committee, 27 November 2007.

Further Written Evidence to be reported to the House

Nicholas Winterton (Conservative, Macclesfield)

I welcome hon. Members to the 13th sitting of the Committee. It is a miserable, damp and depressing day outside, but I trust that it will be more interesting and exciting here. We have a clean start this morning. I have selected amendment No. 351 to clause 71 and therefore call the hon. Member for Somerset and Frome.

David Heath (Liberal Democrat, Somerton and Frome)

Somerton.

Clause 71

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 351, in clause 71, page 49, line 21, after ‘person’, insert ‘aged 18 or over’.

Thank you, Sir Nicholas. I welcome you to the Committee this morning. The name of my constituency seems to defeat even the most erudite Members of the House. Despite the overcast conditions outside, I am sure that your chairmanship will brighten our proceedings.

In an attempt to enliven our discussions, we now move on to the subject of prostitution. The amendment, which is in my name and that of my hon. Friend the Member for Cambridge, deals with people under the age 18 who are working as prostitutes. I hope that a lot of our debate on this aspect of the Bill will be about prostitutes as not so much offenders, but people who are exploited and the victims of others. I also hope that we shall explore people trafficking, a subject in which the Under-Secretary of State for the Home Department is very much engaged, as am I and others. We shall want to see how to mitigate the awful consequences of trafficking.

In the case of under-18s, we are dealing not only with people who might be from other countries and fall into the category of trafficked people, but those who are indigenous to this country and vulnerable to exploitation, whether or not they know that they are being exploited. The amendment would decriminalise the offence of loitering or soliciting for persons aged 17 and under. There is consistency between my proposal and what happens in practice. There are many fewer prosecutions of young people for prostitution offences than there were previously, and part of that is due to a change of attitude on the part of the authorities that seek to understand the behaviour of young people and to attack the reasons for their offending behaviour.

We are all conscious of the fact that many young people who find themselves in the world of prostitution do so because they come from a significantly difficult social background. A lot of them come from children’s homes. Unfortunately, it is a huge indictment of our system that so many young people from children’s homes are engaged in prostitution. Many others come from chaotic or disorderly home backgrounds and regard it as an escape.

Let me refer to the numbers of young people involved in loitering for prostitution purposes. In 2005-06, Barnardo’s worked with 2,148 young people between the ages of 18 and 24. Research that it undertook in 2005 showed that as many as 1,000 young children in London alone were at risk of, or involved in, exploitation. That can take many forms, but it often includes prostitution.

The question for the Committee is whether prosecuting a young person for this offence is the right way of dealing with them in the first instance, rather than using the other possible disposals available, and whether that is likely to have the right consequence of deterring reoffending. All the evidence shows that it is not. There is also a question about whether young people will recognise that the authorities are trying to assist them if the threat of prosecution is hanging over them, or whether they will be alienated further from those who can provide genuine assistance and remove them from the exploitative situation in which they find themselves. We must also recognise the vulnerability of young people in this context and that to call them offenders and bring them before a court is probably not the best outcome, either for the child or for the system that is being used. Rather, more caring and long-term support is needed.

If we do not remove the possibility of prosecution for young people, they will be persistent offenders. However the crime is defined, all the evidence indicates that they will not be single-time offenders, but will appear before the courts time and time again. They will eventually find themselves in more and more serious difficulties as a result. Removing that possibility is the principal objective of the amendment. The amendment is supported by the Standing Committee for Youth Justice and, particularly, by Barnardo’s, which often works with such young people, as well as the Children’s Society, and I commend it to the Committee.

David Burrowes (Conservative, Enfield, Southgate)

Welcome back, Sir Nicholas. I look forward to the proceedings of the Committee and our deliberations. The issue of street offences is no doubt serious and important. It is right to focus by way of the amendment on concerns about under-18s. Those concerns will be reflected during our debate on a number of amendments and clauses. There is focus on dealing with those who are vulnerable and exploited, and I particularly welcome the intentions behind the amendment.

I invite the Minister to respond to a concern that we all share about dealing with what is out there and happening in practice. It is accepted that clause 71 seeks to address the practice of persistent prostitution and to focus the criminality on persistence. I understand that current practice is that after the police have issued two cautions to those involved in prostitution, they would seek to prosecute. The concern to divert prostitutes away from their practice and trade is reflected in the other clauses that we will deal with when we examine the issue of rehabilitation. The issue raised by the amendment is whether clause 71, as it stands, will deal with the most vulnerable and most exploited. The amendment goes to the heart of that issue. There are reports that 85 per cent. of street-based prostitutes report physical abuse in the family and that 45 per cent. report familial sexual abuse. Those reported statistics are no doubt aggravated by age. Those who are under 18, by the nature of their age, are prone to exploitation and abuse. While we are all concerned to focus on how we can reduce trafficking into prostitution, plainly that issue is all the more important when dealing with those who are under 18. I therefore look forward to hearing the Minister justify clause 71 in relation to an over-18 threshold.

Vernon Coaker (Labour, Gedling)

Sir Nicholas, it is a delight to be on my feet for the first time after sitting through some very interesting discussions and debates. I also welcome you and your co-Chairman, Mr. O’Hara, to the Chair, and welcome all hon. Members to the Committee. I shall endeavour to answer questions to the best of my ability, and I apologise in advance if people feel that I do not do that.

This is a very important aspect of the Bill, and I take very much to heart the call made by the hon. Member for Somerton and Frome that I consider the matter carefully. We are trying to set out a way of dealing with this issue that is sensitive to the needs of street workers as well as to the need to maintain a sense of law and order in some parts of our community. It is that balance that we seek to strike.

I will deal with some of the issues raised by the hon. Member for Enfield, Southgate during the clause stand part debate. Again, he made a very important point about the need for us to consider carefully how we protect young people in respect of this measure.

The hon. Member for Somerton and Frome is right to point out the huge and welcome decrease in official cautions and prosecutions against under-18s in this area. It reflects a change in our view about how we deal with this particular issue and highlights the need for rehabilitation rather than prosecution.

The amendment would amend the offence of loitering or soliciting for the purposes of prostitution to exclude those under the age of 18. I have to say that I have some sympathy with that proposal. We certainly do not want children and young people to be unnecessarily criminalised. I am reassured—and I hope that the hon. Gentleman will be as well—that since the publication in 2000 of the guidance “Safeguarding Children Involved in Prostitution”, the numbers arrested and prosecuted are extremely low. In 2005, there were two cautions and one prosecution. Our guidance makes it clear that the criminal law should be used only when, following inter-agency discussions, it is considered that a young person has persistently and voluntarily continued to loiter or solicit in a public place for the purposes of prostitution. Therefore, in practice, the offence is rarely used with regard to under-18s.

I recognise that criminal sanctions, even as a last resort, do not rest comfortably with the concept that children involved in prostitution are always the victims of abuse. Nevertheless, I have some concerns about the potential impact of removing under-18s from the scope of the offence. There is a risk that such a move could be misrepresented or misinterpreted as the Government condoning the involvement of under-18s in such activity. In turn, that could result in an increase in the numbers of children and young people groomed for that kind of exploitation. No one would wish to see that. Any move in that direction would need to be balanced with the message that child sexual exploitation—the majority of which takes place off-street—is still a serious crime, but that the criminal law focuses on those perpetrating that crime, either by paying for the sexual services of a child, or by controlling, facilitating or inciting child prostitution.

We already have the legislative tools to deal with those who sexually exploit children and we must continue to ensure that they are being used to the full effect. Therefore, before we change the legal position, I want to be confident that we can match that with a clear message that child sexual exploitation is a grave crime that will not be tolerated, and that the child is always a victim.

I assure the hon. Gentleman that I am happy to reflect on the matter further in the light of the comments that have been made this morning. However, I cannot offer any commitment. We have to balance the message and the need to protect children, although I understand his point. I will consider whether, later in the Bill’s passage through this place and perhaps another place, there is a need to change the law. In the light of that, will the hon. Gentleman consider withdrawing his amendment?

David Heath (Liberal Democrat, Somerton and Frome)

I thank the Minister, and welcome him to a speaking part in our proceedings. He and I have had a few sedentary conversations during the course of the proceedings, but this is the first time that he has had the opportunity to strut his stuff.

I welcome the sensible way in which the hon. Gentleman has approached this issue, as is normally the case. However, I simply do not buy the constant refrain that, somehow, changes in the criminal law and in our statute are made for the purpose of sending messages. We do not send messages by having laws or making changes in laws that are inappropriate. The focus of our concern, quite properly, is the exploitation of young people. We have rightly created offences in that respect, and we want them to be used to the greatest possible extent to reduce this type of offending. We want our investigative and prosecuting authorities to do everything within their power to ensure that people who exploit children for sexual purposes are arrested, prosecuted, and given get the appropriate punishment.

That goes without saying, so what we are talking about is whether the provision for the criminalisation of young people in this respect is a vestigial provision. I think that the Minister has answered that question by giving the numbers involved: two cautions and one prosecution, I think he said. In the context of the modern approach to these matters, the offence is no longer necessary or useful—that is shown by the figures. Having recognised that fact, we as legislators should remove from the statute book a measure that is no longer sensible or useful. The message, if one was being sent, was being sent before that, precisely as he said, in the treatment of young people for sexual offences, and the guidance that has been given. That is the message: it is guidance that gives the message, and law that states the offence. In my view, there is not an offence in this instance: that is shown by the figures and by the principles that the Minister has outlined.

The Minister says that he will consider my proposal, and I really do hope that he does, because it would be a small but significant step forward in the law. I hope that he will put aside the consideration that he might be accused of somehow being soft on child sexual exploitation or something like that. In the context of the Bill, it would be absurd to keep a law in place simply because somebody might misconstrue its removal. I think that that was the only real argument that he used to suggest that the measure should be retained. In the light of what he said, I am very happy for him to consider the matter further, and I hope that we will come back to the subject on Report in this House. If we do not, I suspect that the job will be done in another place, whether he likes it or not. Such is the way of these things, but I think that it would be better if the House of Commons dealt with it and determined that this offence no longer has its place on our statute book. On the basis that I reserve the right to bring it back at a later stage if we are not satisfied that the matter has been properly dealt with, I beg leave to withdraw the amendment.

Clause 72

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss the following: New clause 8—Paying for sexual service s—

‘(1) A person (A) commits an offence if—

(a) he intentionally obtains for himself the sexual services of another person (B), and

(b) before obtaining those services, he has made or promised payment for those services to B or a third person, or knows that another person has made or promised such a payment.

(2) In this section “payment” means any financial advantage, including the discharge of an obligation to pay or the provision of goods or services (including sexual services) gratuitously or at a discount.

(3) A person guilty of an offence under this section is liable on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both.’.

New clause 22—Orders to promote rehabilitation of persons paying for the sexual services of a prostitute—

‘(1) The Street Offences Act 1959 (c. 57) is amended as follows.

(2) After section 1A (inserted by section 72 of this Act) insert—

“1B Orders to promote rehabilitation of persons paying for the sexual services of a prostitute who has been trafficked

(1) This subsection applies to any person who has paid for the sexual services of a prostitute who has been trafficked.

(2) The court may make an order under this subsection requiring a person to whom subsection (1) applies to attend three meetings with the person for the time being specified in the order (“the supervisor”) or with such other person as the supervisor may direct.

(3) The purpose of any order under subsection (2) is to promote the person’s rehabilitation by assisting him, through attendance at those meetings, to—

(a) address the causes of his conduct, and

(b) find ways to cease engaging in such conduct in the future.

(4) Section 1A applies where a court proposes to make an order under subsection (2) as if the person subject to the order were the offender.”’.

Philip Hollobone (Conservative, Kettering)

I shall speak to new clause 8, which would make it an offence under criminal law for a person intentionally to obtain for himself and pay for the sexual services of another person. I tabled the amendment because I have been impressed by the representations that I have received from CARE—Christian Action Research and Education —which is a well-established mainstream Christian charity that provides resources and help with matters of public policy and practical caring initiatives to those in need. In particular, I am grateful to Daniel Boucher and Rachel Davies who have researched the matter in great detail.

I should declare my interest as a member of the all-party parliamentary group on trafficking of women and children. CARE is a member of the Stop the Traffik coalition, which works in conjunction with an organisation called Chaste—Churches Alert to Sex Trafficking Across Europe. Both CARE and I believe that prostitution must be severely reduced, both because of the harm it does to men and women, and in order to tackle the growing problem of illegal trafficking of women and children into the UK. In his introductory comments to the last Government consultation on prostitution policy in England and Wales, the then Home Secretary said:

“Prostitution can have devastating consequences for the individuals involved and for the wider community. It involves the abuse of children and the serious exploitation of adults — many of whom are trafficked into and around the UK for this purpose.”

The new clause is designed to tackle the demand for prostitution. There is a growing body of support across the country for such a measure. With your permission, Sir Nicholas, I would like to quote in support of the new clause several letters that I have received from leading organisations in the field. Rosslyn Okumu, development manager for the National Christian Alliance on Prostitution, writes:

“I am writing in my capacity as development manager for the National Christian Alliance on Prostitution, which is a collaborative network of over 45 projects nationwide who work with individuals involved in prostitution to offer support and, where possible, sustainable exit routes... Over the years, NCAP affiliated projects have come into contact with literally thousands of women, men and some children who are involved in/exploited by prostitution. The majority, (more than 95 per cent.), do not wish to be working in prostitution. Most have stories to tell of violence, coercion, drugs and exploitation... With this in mind, our organisation highly commends new clause 8.”

Josephine Wakeling writes from Stratford:

“I am involved with the National Christian Alliance on Prostitution, and also with the Josephine Butler Society. I have been working on the streets with women involved in prostitution for 12 years... It is our Government’s duty to protect the vulnerable through law, and that at all costs should ensure that those abusing vulnerability from a place of power will be held to account. I would encourage any legislation which criminalised the demand side”

—as the new clause would—

“as it is the purchasers of commercial sex who remain hidden and fuel this exploitation of women.”

Dave Bagley from Boltan Urban Outreach, writes to tell me:

“During the course of my job, I witness on an almost daily basis, the devastation and abuse caused to sex workers by men who constantly manipulate them in seeking to have their desires fulfilled. We desperately need a justice system in Britain which recognises just how little autonomy so many sex workers have. We need a Bill which criminalises the actions of the perpetrators of this sexual abuse, rather than the women who are caught in an endless cycle of poverty, isolation and despair.”

In his letter, Bill Gallagher, the operations manager at Door of Hope, states:

“We are a Christian Charity who provide outreach and support services to street sex workers. Thank you for proposing the new clause 8 (NC8) which if your colleagues accept will afford significant protection to the vulnerable and exploited women we work with. Thank you for your work.”

Anne Dannerolle from the Hull Lighthouse Project writes:

“I am a trustee and volunteer with the Hull Lighthouse Project and I have been working on the streets with women in prostitution for 12 years. I have been following the progress of the Criminal Justice and Immigration Bill, and I would like to thank you for tabling New Clause 8... In 12 years, I have met nearly 400 women on the streets of Hull, and in all that time not a single women has said to me that she wants to be working in prostitution.”

Mrs. Valerie Gore of the Josephine Butler Society was kind enough to write to me to say:

“we are delighted that Parliament is at last discussing possibilities. Thank you for tabling this amendment and taking this important step.”

To tackle the demand for prostitution, the House needs to take into account some very impressive evidence from people who are working day to day with sex workers. At present, prostitution itself is not illegal in the United Kingdom. However, offering prostitution services on the street, loitering or soliciting are illegal under the Street Offences Act 1959, the Sexual Offences Act 1985 and the Sexual Offences Act 2003, as is seeking the services of someone involved in prostitution on the street, known as kerb crawling, under the 1985 Act. Pimping and brothel managing are also against the law under the Sexual Offences Act 1956. Therefore, supply of and demand for prostitution on the street is illegal, but the demand for prostitution off-street is not illegal. That is what my new clause would seek to do.

A staggering 80,000 individuals are involved in prostitution in the UK. Some 70 per cent. started out as children or young teenagers. As many as 95 per cent. of those involved in street-based prostitution are believed to use class A drugs. Not so long ago, we had the tragic case of five prostitutes who were murdered in or around Ipswich, all of whom were plying their trade because of their sad addiction to hard drugs. Some 85 per cent. report physical abuse in the family, as my hon. Friend the Member for Enfield, Southgate has remarked, with 45 per cent. reporting familial sexual abuse.

A significant number of people involved in prostitution in the UK have been trafficked from other countries to meet growing UK demand. According to some expert sources, most forms of prostitution can be thought of as amounting to trafficking. The UN special rapporteur on trafficking in persons, especially in women and children—that must be one of the longest titles of any UN official—made the following observation:

“For the most part, prostitution as actually practiced in the world usually does satisfy the elements of trafficking. It is rare that one finds a case in which the path to prostitution and/or a person’s experience with prostitution does not involve, at the very least, an abuse of power and/or an abuse of vulnerability. Power and vulnerability in this context must be understood to include disparities based on gender, race, ethnicity and poverty.”

Prostitution is based on an imbalance of power between those who are bought and those who buy. Buying can be done legally in this country. Given that the vast majority of people in prostitution are women, this commodification of women’s bodies serves to deepen gender inequality in our society. The imbalance of power is also seen along racial lines, as many individuals in prostitution are from ethnic or disempowered minorities or, indeed, increasingly from other countries. The Bill is surely a chance for the UK Government to continue to uphold the principles of racial and gender equality as an essential component of human rights.

CARE supports the Government’s welcome campaign, launched in May, to tackle demand for street prostitution by taking tough action on kerb crawling. I, too, commend Her Majesty’s Government for that. However, the law needs to go further than the current offence of kerb crawling, because that has not prevented a doubling in the number of men who have reported purchasing sex in recent years. That is specifically why the new clause, which calls for the demand side of prostitution to be tackled more widely, is needed.

Making all purchases of prostitution services liable to prosecution would be beneficial. It would provide a far more comprehensive basis on which to engage with the demand for commercial sex, which drives the whole industry. By so doing, it would make the law better able to engage with the sad fact that the number of men purchasing sex in the UK has doubled in the 10 years between 1990 and 2000—the latest figures available to me.

Reducing the market for prostitution services overall should in turn reduce the number of women—it is generally women—who are trafficked into the UK for sex. Most trafficked women are set to work not on-street, but offering off-street prostitution services—in other words, in brothels—which are entirely beyond the reach of current demand provisions. It is thought that as many as 81 per cent. of women working in brothels in the UK come from overseas. London and the UK are among the main drivers of the international trafficking market. The new clause would send out a strong signal from Her Majesty’s Government that it is not acceptable to encourage the commodification of the human body and that buying sexual services both degrades and exploits. It would help to build a more humane society by challenging a foundation of the distortion of the way in which men view women and vice versa.

Much attention has been given to the Swedish model of prostitution law. Sweden introduced a law to penalise the purchasers of sex in 1999, and Norway has recently decided to introduce a similar law. Evidence suggests that street prostitution halved after the law was introduced. It certainly makes Sweden far less attractive to pimps and brothel owners and, as a result, has reduced the demand for trafficking. The Swedish Government reported that Sweden now has far less trafficking than neighbouring countries. A European Union study of countries published in 2005 suggests that the number of trafficked people per 100,000 of the population was lower in Sweden than in any other country covered by the study, apart from the Czech Republic.

David Howarth (Liberal Democrat, Cambridge)

I am not sure that those figures on Sweden are universally accepted. Evidence from official sources in Sweden shows that the amount of street solicitation in Sweden has not declined at all and that internet advertising for sexual services has increased.

Philip Hollobone (Conservative, Kettering)

I would welcome any evidence that the hon. Gentleman can produce to that effect. The situation is unclear, but powerful evidence on my side shows that the demand for prostitution has been tackled by the change in the law in Sweden and, in particular, that Sweden is now a far less attractive destination for internationally trafficked women than more open countries, such as the UK.

I believe that, if new clause 8 were passed, it would put in place in this country a rigorous legislative framework that would reduce the levels of prostitution and thus trafficking. The opportunity to reform prostitution law does not come along that often, and I suggest that this is a very good opportunity to do that.

I shall try to anticipate and answer some of the criticisms of the new clause. It may be said that it is a naïve clause, and that there is no way that it will stop the world’s oldest profession. However, I am not suggesting that implementing new clause 8 would shut down demand for prostitution services; that would clearly be a ridiculous claim. However, if new clause 8 were to become law, it would make an important contribution to tackling demand; it would make life far more difficult for pimps; and it would send out an important signal that buying sex is not acceptable.

Another criticism might be that, although some people are forced into prostitution against their will, not all are—that some people choose to be prostitutes, and that new clause 8 would make it harder for clients to approach them. However, the evidence is that 95 per cent. of street prostitutes are class A drug users who sell themselves to feed their habit. We know that a significant and growing proportion of prostitutes are also trafficked individuals. If Her Majesty’s Government were to focus on those who are prostitutes because they genuinely want to be, we would be talking about a small but sometimes quite articulate minority of sex workers.

Another criticism is that new clause 8 just targets men—what about women? First, new clause 8 does not just target men; it targets the source of demand, which, although usually male, is not always male. Secondly, the clause does not repeal the current soliciting provisions that make it illegal for women to solicit in the street. It does not provide a pure Swedish approach, because in Sweden supply is decriminalised and demand is criminalised. It is true that, in the broader context of legislation, new clause 8 would mean that the law would tackle demand both on-street and off-street, while tackling supply only on-street, but I believe that this would be a sensible place to start.

In the bicentenary year of the abolition of slavery, our country has an opportunity to tackle this most horrendous type of modern slavery. William Wilberforce, in this House, set our country on a very proud and distinguished course to tackle the slave trade. In 2007, Her Majesty’s Government has a wonderful opportunity to build on that work done in this place 200 years ago, and to set in place appropriate legislation that would make it illegal for someone to obtain sexual services and pay for them. I believe that that would secure a dramatic reduction in prostitution and be extremely helpful in reducing the growing problem of internationally trafficked people.

Harry Cohen (Labour, Leyton and Wanstead)

I have sympathy with my hon. Friend the Under-Secretary who has this matter in his brief, because views on prostitution are starkly different, and actually incompatible, so it is difficult to determine the best course of action. He has to set aside the fact that he will not please everybody in his approach. One of those points of view was put by the hon. Member for Kettering, and he was right to call prostitution the oldest profession. I want to say more about the Swedish model in my speech, but the criminalisation of prostitution has a long history of failure. It is persistent; it continues, and there is supply and demand. The law has not been successful in the main about when it is right to prosecute and when it is right to criminalise it.

I tabled new clause 22, which is a suggested way forward. I was trying to apply a lighter touch and create a bit of parity, so that whatever measures the Government have proposed in relation to women should apply to men as well, and I know that that issue is a theme. Although it is a light touch that men should also receive rehabilitation, that purpose is owing when we are talking about trafficked women, as specified in the amendment, so that the men have an education about trafficked women and the surrounding issues. Trafficking is a new factor that should be taken into account.

At an earlier sitting the Minister said that he favoured the proposal that if a man is with a trafficked woman, that should be regarded as rape and it should be punished as rape. I think that that is excessive, and during the course of my speech I will discuss some further points on that and why it is not feasible. The issue of trafficked women is not that clear. It is a stereotype that trafficked women are all forced and I suspect that actually a minority of trafficked women are forced. That is still bad and must be dealt with, but I suspect that a lot of trafficked women are prepared to do it for economic reasons.

Vernon Coaker (Labour, Gedling)

The point that I always make is that where somebody has sex with a trafficked woman, knowing that they are trafficked and that there is no consent, they should be charged with rape.

Harry Cohen (Labour, Leyton and Wanstead)

I appreciate that and it is an important distinction.

David Howarth (Liberal Democrat, Cambridge)

I would like to put it to the hon. Gentleman and the Minister that there is a clear possibility of an offence being committed under section 4 of the Sexual Offences Act 2003, which is causing another person to take part in sexual activities. So even if it is not rape, there is a crime on the books that might be adapted to those circumstances.

Harry Cohen (Labour, Leyton and Wanstead)

The issue of consent is important, and that was a point well made.

Charles Walker (Conservative, Broxbourne)

I hear what the hon. Gentleman is saying, although I do not like it. He said that it would be a crime only if consent was not given. If a person does not have sex with a gentleman, and because they do not have sex with that gentleman their pimp is going to beat them, they might actually consent to sex, so we have to be very careful.

Harry Cohen (Labour, Leyton and Wanstead)

That is not consent, and I do not think that the law would in any way recognise that as being a matter of consent. The difficulty in this circumstance, for the men, is identifying who is trafficked and who is not, and whether they have genuinely given their consent. The amendment would put the onus upon the men in that situation.

I hesitate to say this—the phrase has been used by the Prime Minister in another context—but one of the implications of the amendment would be “British jobs for British workers”. It also has the implication of raising the price, which would be a discouragement to prostitution, if that is one of our aims. Those are some of the aspects behind the amendment.

The long-standing argument about prostitution is: criminalise or liberalise? I do not believe that criminalisation works. Even if the aim is to get at the men, it invariably ends up with the most vulnerable women suffering the most, which does not work. I favour liberalisation in that traditional argument.

Philip Hollobone (Conservative, Kettering)

I am not sure that there is a straight choice. In countries that have legalised prostitution, such as parts of Australia, there has been a growth in the number of illegal brothels. With prostitution, legal or illegal, there are many criminal gangs involved in the trafficking of women. I am afraid that we are not faced with the straight choice that the hon. Gentleman suggests we have.

Harry Cohen (Labour, Leyton and Wanstead)

We certainly want to take out the criminal gangs associated with prostitution. However, the whole history of prohibition, especially during the early part of the last century when it was to do with alcohol, was that criminal gangs grew exponentially with illegality. We should learn that lesson. However, the traditional argument is one thing, but the new element, which is very relevant, is trafficking and that must be addressed. Those issues are half addressed already through what is basically a tough immigration policy, particularly with regard to the deportation of women.

I want to bring one issue to attention, and I hope that the Minister will be able to answer me. Last Friday, the Deputy Leader of the Labour party spoke on “The Daily Politics” programme. She was asked whether, if trafficked women ask for help, they would be sent home, and whether she could give an assurance that we will protect these women and keep them here. The Deputy Leader asked “The women?”, to which the answer was “Yes”, and she replied “Absolutely, yes. Definitely”. However, I do not think that that is the Home Office’s policy, and it is something that needs clarification.

It is an important point, because if we try to help trafficked women, encourage them to come forward and report their situation, will they then be punished by being deported? We must have clarification. I am not convinced that her answer was correct.

The Deputy Leader was also asked about how we treat trafficked women, and I would like to draw the Committee’s attention to Amnesty International’s recent press release “Sex Trafficking: Better support needed for victims of sex trafficking in new crackdown”. It says:

“Amnesty welcomes the Government's renewed commitment to clamp down on trafficking as this sends a clear message that this vicious trade in women will not be tolerated. However it has to ensure that the victims who are discovered are given the appropriate care and support to help them recover from their dreadful ordeal. Unfortunately the original Operation Pentameter did not go far enough to achieve this. Amnesty International is concerned that there remains a severe lack of funding to provide adequate care for victims of trafficking. For example, there are currently only 35 beds available for victims through the government-funded London-based support and accommodation service, the Poppy Project. Although an extra 10 outsourced spaces have been funded during the course of Pentameter 2 this is insufficient.”

It claims that current capacity is,

“bulging at the seams and has only got the capacity to take on eight more women.”

It adds that the Government have signed the Council of Europe convention on action against trafficking in human beings, but they have yet to ratify the treaty, and the appropriate measures for that are not in place.

Charles Walker (Conservative, Broxbourne)

I shall try again. If someone is a victim of trafficking, can they give legitimate consent for sex? If they are a victim, it suggests that they have been brought here against their will, they have been told that they must perform sex acts otherwise they will not get their passports back and so forth. Can there ever be consent in those circumstances?

Harry Cohen (Labour, Leyton and Wanstead)

If someone is a victim, no. But if someone is not a victim, they can give consent, and they could still be trafficked. That is where the definition of what trafficked means is far too broad at the moment, and full of confusion, and there is a stereotype associated with it. Some women will come for economic purposes and effectively do give their consent. However, they could still fall under the broad generic term of trafficking. That is why we need a more sophisticated argument about what that is.

Very briefly, my hon. Friend the Member for Slough (Fiona Mactaggart), who supports the CARE proposals and the new clause tabled by the hon. Member for Kettering, made a proposal when she was at the Home Office that two or more women could practise and work from shared accommodation, which would be safer for them. That proposal has been dropped by the Government, and I do not know why. I do not think that it should have been dropped. Again, will the Minister clarify the Government’s position on that?

The Swedish model, which has been put before the Committee, has been analysed by researcher Petra Ostergren. I will raise a couple of points that she makes, mainly from the point of view of the sex workers themselves. Hon. Members can take what she says or leave it. Of the sex workers, who do not like the law, she states:

“They feel discriminated against, endangered by the very laws that seek to protect them, and they feel under severe emotional stress as a result of the laws.”

She then states:

“Most of the women I have spoken to wish to be able to work together with others. This is to ensure safety and to support each other.”

She says that at some point even if a few men get fined,

“the majority will continue buying sexual services as usual.”

She states that it will be harder for the sex workers to assess the clients.

“The clients are more stressed and scared and negotiation outdoors must be done in a more rapid manner. The likelihood of ending up with a dangerous client is thereby greater...Sexworkers are now more apprehensive about seeking help from the police when they have had problems with an abusive customer.”

She states that

“previous informal networks amongst the sexworkers have weakened. The result is that they are no longer able to warn each other about dangerous clients or give each other the same support.”

She goes on to state:

“Sexworkers say that contrary to the official belief, they are not the victims of their customers, but victims of the state...They also strongly discourage other countries from adopting similar legislation...They wish that prostitution in Sweden would be legalized (or at least decriminalized), that there would be unions and organizations for sexworkers, that the stigma around them would be lifted.”

A working group on the purchase of sexual services makes the point in a report that prostitutes’ reliance on pimps has increased as a result of prostitution being driven underground by that law. It states:

“Dependence on pimps has increased because someone is needed in the background to arrange transport and new flats so that the women’s activity is more difficult to discover and so that it will not attract the attention of the police.”

A final point on the Swedish model comes from Don Kulick, the professor of anthropology at New York university and Stockholm. He states:

“The impact of the law on sex workers has been of secondary concern to promoters of the new policy, dogma and international reputation being more important...Foreign sex workers were immediately deported and therefore would not report violence”.

That, therefore, is the critique of the Swedish model. There are other recent approaches that the Government could have taken into account. For example, the symposium on women, human rights and prostitution produced a report “From Morality to Rights: Debating Sex Work and Sexual Exploitation”. That was organised by the Hallam Centre for Community Justice at Sheffield Hallam university, and on the Bill it said:

“These clauses attempt to offer help and support to women within a criminal justice framework, and the Symposium would question whether this is the most appropriate means of offering such help and whether a more robust system of public health provision, accessed flexibly but voluntarily, might not be a more appropriate way forward. This could avoid the stigmatisation and criminalisation involved in court processes and open the way to providing a more balanced social response.”

Sally Keeble (Labour, Northampton North)

May I draw my hon. Friend’s attention to the multi-agency approach taken by the police in Northamptonshire with their Swan project. The police work closely with sex workers to protect their safety. They provide them with health care; they help with family issues and also to find alternative means of livelihood, which is the best way in which to get them out of prostitution.

Harry Cohen (Labour, Leyton and Wanstead)

I agree absolutely. That is where the emphasis of the Government’s policy should lie, and I am grateful to my hon. Friend for making the point. The symposium met as recently as July this year. Lots of people with expertise attended it from all walks of life. To underpin the debate, it advocated the following principles:

“reducing the use of criminal law against women selling sex, specifically prostitution-related law...moving away from the concept of prostitution as a nuisance activity and allowing space for other ways of seeing prostitution....exploring the use of non-criminal law to strengthen protection rights...adopting a rights based framework as a means of promoting inclusion...recognising that women make complex choices and that they weigh up the positives as well as the negatives from being involved in prostitution and in movement across national borders...accepting that the voices of diverse women in prostitution should be integral in determining the way forward...rejecting the concept of ‘child prostitute’ and making an explicit acknowledgement that what such terms refer to are children and young people being abused and sexually exploited...taking a different approach to ‘at risk’ young people that does not categorise them as either innocent victims (‘deserving) or active delinquents (‘undeserving’) and that is able to recognise their coping strategies—of which prostitution may be one—but is also clear that all children and young people exploited through prostitution deserve care and protection...understanding that purchasing sex is a more normalised activity than is generally acknowledged and is not restricted to a deviant minority of men.”

Vernon Coaker (Labour, Gedling)

I apologise for interrupting my hon. Friend. He has referred to the demand side, too, so while he is talking about young people, it is important to say that, under the Sexual Offences Act 2003, we criminalised or made it illegal to purchase sex for under-18s. We went some way towards meeting his concerns. It is important to put that point on the record.

Harry Cohen (Labour, Leyton and Wanstead)

I strongly support that, but the issues raised at the symposium are worth the Government picking up on and making part of the Bill. If we are considering the Swedish model, we should analyse the results of the New Zealand model, which has an element of decriminalisation.

I come now to a report from the Safety First coalition, whose members reviewed the situation after the murders in Ipswich. They met people, and the question “What can be done to protect the women?” was high on the agenda. It said that there needed to be a

“rapid response to reports of rape and other violence”

and

“resources and services to help women, who want to leave prostitution”,

but that

“the criminalisation of consenting sex”

just pushed prostitution underground, making women vulnerable to attack. The coalition comprised members of the Church, nurses, doctors, probation officers, drug reformers, residents in red light areas, sex workers, members of sex work projects and many others.

Safety First stressed that going underground increased the risk of violence to the women involved. Yesterday, I met representatives from Women Against Rape and the English Collective of Prostitutes and I shall put points they made to the Committee. They were saying that the Government’s approach seems to be that of increased criminalisation. They talked about the sentence for brothel keeping, which has gone up from six months to seven years. They referred to the case of a female brothel keeper who went to pick up a woman from the airport and who was charged under the trafficking offence; there was apparently no need to prove force or coercion in that case and she was sent to prison as a result. They also said that the number of women in prison has doubled over the last decade and that charges around prostitution are a factor in that. In addition, they pointed out that the fines have rocketed—£500 for a first offence, then £1000—and many of the poorest prostitutes simply cannot pay that; they end up in a cycle and go to prison.

The Government talk about rehabilitation—at the start of the debate, the Minister talked about rehabilitation instead of prosecution, which was interesting. That is the right approach, but the clause does not offer a realistic programme of rehabilitation—of getting women off drugs. By the way, I think that the idea that all the women are druggies is a stereotype; many do not do drugs. Again, some of them are involved in prostitution for economic reasons. There is a danger in working from such stereotypes.

We should also hear from the police about what they are doing in this area. At one of our evidence-taking sessions, I asked the police representative whether they could distinguish between trafficked and non-trafficked women; the answer was no, they could not. I understand that the police have put a lot of resources into the matter and they say that they have found about 80 women who have been trafficked. Can we have some analysis of what they found and what the implications are, before we legislate? We should at least know something of what the police are saying and discuss it.

I know that the measure is attractive to some of my colleagues, particularly among my female colleagues. They say that it is right to punish the men. As I said, my new clause ought to introduce an element of parity, so I am taking that point on board, but I wonder where we are going on this. My mind went back to when I was a councillor and the case of a fellow councillor, who was a smashing man. His wife, whom he loved dearly, died and he was absolutely shattered for quite a while. I recall him telling me that, in his loneliness, he had visited a prostitute. I am certainly not judgmental and I wonder why we are being judgmental if it is a normal arrangement like that. Why should a man in that position be punished?

In a way, I can answer my own question, because the new element is trafficking, coercion and such like. However, in the normal run of things, even if the woman has come from abroad, if she is not coerced and engages in prostitution for economic reasons with her own consent, I do not think that it is right for us to shape law that punishes men in similar circumstances to that man.

I have a briefing from Rev. Andrew Dotchin, who is a founder member of the Safety First coalition in Ipswich and who is critical of the Government’s approach. He writes:

“The strategy, far from providing a solution, is in fact sowing the seeds for further abuse and even murder of women... Under the new strategy if women continue to work on the streets they will eventually become subject to the inappropriate use of ASBOs, and the consequence of this will be the further criminalisation of women leading to their imprisonment and in many cases the taking of their children into care. Some of Ipswich’s young victims lost hope when their children were taken into care... Compelling people to undergo rehabilitation only serves to institutionalise those being rehabilitated and has very little chance of providing the happy ending towards which proponents of the strategy aspire.”

He then argues for,

“a consistent approach built around the protection and welfare of the person leading to their ultimate reintegration into society.”

I do not want to go on too long, this is my final point. Earlier in the Committee we had representations from the Zacchaeus 2000 Trust about bailiffs. It has obtained a legal opinion on the clause, and I would like to read it to the Committee:

“Taken as a whole, the proposals in the clauses and the accompanying schedule are incredibly vague given the serious nature of the problem, complexity of the issues and major infringements of civil liberties—effectively a person may be locked up for 72 hours or longer on remand for failure to attend a meeting without a reasonable excuse. The Bill does not even seek to create regulation-making powers. Although the use of regulations to create criminal and quasi-criminal sanctions is scarcely acceptable, such regulations at least might have provided some crucial details as to how such a scheme would work, given the civil aspects of the measures and skeleton nature of the provisions. Breaching an order will not be a criminal offence in itself, but a person may be subject to the same sanctions as would apply to the crime itself and potentially treated more harshly. It must be asked how the aims of rehabilitation are to be achieved by pushing a person further in the criminal justice system.

It is possible to foresee these provisions being a bureaucratic and administrative nightmare occasioned by uncertainties over procedure and differences in approach between supervisors”.

Whether those supervisors will be properly trained is questioned. The opinion continues:

“As noted above, there must be obvious concerns about the qualifications of the supervisor and their ability to act in such a role as well as the way in which the objectives of the Bill are to be achieved.

Disturbingly, there is no express requirement or duty in the Bill on anyone implementing the orders to take into consideration the impact on family life and anyone who resides with the offender, for example the children of the offender. As a result there may be implications under article 8 of the European convention on human rights... As the Zacchaeus 2000 Trust has repeatedly stated, a warrant system in the magistrates’ court can easily fail to provide protection of vulnerable persons and their dependents.”

These are difficult and complex issues. If we are going to make legislation that will be on the statue book for some years and criminalise a number of people, we must take all the issues into account. Perhaps it would have been better to look at the law on prostitution as an individual subject, even in an individual Bill, rather than as a few clauses in a complex Bill. I fear that we might be making a mistake with the clauses as drafted, which could have repercussions in the future.

Charles Walker (Conservative, Broxbourne)

I am finding common cause with the sisterhood on the Labour Benches to whom the hon. Member for Leyton and Wanstead referred. Like them, I am concerned about human trafficking and particularly the trafficking of women.

Undoubtedly, some women in eastern Europe make a conscious decision to travel to the UK to pursue a career in prostitution, but I imagine that many women from poor backgrounds and with low educational attainment are rounded up by ruthless businessmen who deal in human misery. They are told that a better life is waiting for them in England, but they are not told what price they will have to pay to pursue that better life when they get to England. On arrival in this country, I understand that many of them are taken to brothels, where their passports are removed and the grim realities of their career choice are explained to them; the consequences to them if they do not pursue that career are made clear.

That is why I am concerned about consent, which seems a low hurdle to jump. As Ministers will be aware and as we are all aware, 94 per cent. of women who take a rape allegation to court fail to secure a conviction. Those 94 per cent. are told, “You weren’t raped, after all. You have made a mistake.” I am sure that many of them are told that they somehow consented to the sexual activity. I am sure that a few—

Nicholas Winterton (Conservative, Macclesfield)

Order. May I suggest that the hon. Gentleman direct his remarks to prostitution, not rape? The clause is not about rape, it is specifically about prostitution.

Charles Walker (Conservative, Broxbourne)

I shall be guided by you, Sir Nicholas. I am trying to ascertain the details of consent. A woman who has been trafficked into the UK may have her passport removed and be threatened with terrible consequences unless she works hard and earns a certain amount of money in a certain period to buy her passport back. She is a prostitute, and a customer—a punter, as they are called—comes and sees her and offers to buy sex from her. She consents and says, “Yes, I will have sex with you.” That gentleman has sex with her and believes that he has secured consent, but in my mind that is not consent, because she knows full well what will happen if she does not say yes. That is why we must be careful about the word “consent.”

If that brothel is raided by the police a few months later and the girls there are found to be being prostituted and working under the most appalling conditions, and a book of clients is discovered, will those clients be subject to criminal prosecution? Will their argument that the ladies consented be upheld in a court of law? They may have felt that they got consent at the time, but it was actually only perceived, not real, consent.

David Howarth (Liberal Democrat, Cambridge)

I am not sure what is the answer to the question whether the police will proceed, but it is clear to most lawyers that the issue that the hon. Gentleman raises is covered by section 75(1) of the Sexual Offences Act 2003, which established a presumption against consent if the complainant was unlawfully detained at the time of the act and the accused was not. The hon. Gentleman is making perfectly good sense, but I am not entirely clear about what change he wishes to bring about.

Charles Walker (Conservative, Broxbourne)

The Under-Secretary of State for the Home Department said that people would not be prosecuted for having sex with a prostitute—a trafficked woman from overseas—if consent was secured. However, what we regard as consent is questionable and may not be all that it seems.

I hope that when we prosecute men for visiting prostitutes who turn out to have been trafficked, we do not allow them to hide behind ignorance by saying that they thought they had received consent to a sexual act. In the eyes of the law, ignorance is no defence. I would like to plant in the brains of men who visit prostitutes that they had better be damned sure that the woman whom they are visiting is a prostitute by absolute, 100 per cent. choice, because if that lady turns out to have been trafficked and there under any form of duress, they will face not a small fine but a significant term in prison. Ultimately, they may well have committed rape.

David Heath (Liberal Democrat, Somerton and Frome)

We have already had a long and complex debate in which various points of view have been eloquently expressed. As the hon. Member for Leyton and Wanstead said, this is a complex issue and there is no convenient black and white area, unless one takes a rather simplistic and naive view. I do not accuse the hon. Member for Kettering of that, because he defended himself against it from the start. However, unless one takes the view that one can eradicate prostitution from a society, something that has been attempted for thousands of years without success as far as I know in any society, no amount of criminalisation or prohibition will prevent the activity from happening.

There is also the view, which is perfectly proper and in accord with much legislative teaching, that prostitution is a sin—an inherently bad activity that should be frowned upon and made more difficult by society and its legal system. Again, our legal system has not traditionally taken that position; it has traditionally not criminalised prostitution and it is not illegal to be a prostitute. It is illegal to do several things that are accessory to the activity of being a prostitute, such as soliciting in the street, advertising, and running a disorderly house—a brothel—as it was once called. The view is perfectly proper and respectable, but it is not consonant with the way in which the British legal system has approached the issue hitherto.

There are some serious issues associated with prostitution, and we have dealt with them to some extent in the debate. We must range fairly widely, however, because of the context of the stand part debate and the substitute clauses before us. We have already dealt with coercion—a serious issue whereby there is reason to believe that a person has been coerced into offering services as a prostitute. The law and society should take it extremely seriously. There are several aspects to it, such as the position of young people, which we raised during our debate about the previous clause and my amendment to it. It is never right that somebody exploits for the sexual advantage of others a person who is vulnerable and powerless by virtue of their age, and that is why we take a strong view about those who put a child in that position.

There has rightly been much debate about trafficked people, and we need to reconsider the issue. I am strongly of the view that we need not only to ratify the European convention on human trafficking, but to put our law into a position in which it can be ratified. I listened carefully to the Under-Secretary yesterday, but I am still none the wiser about exactly what the Government intend to do to bring our law into compliance with the treaty obligations that we have signed by virtue of that convention. If the legislation before us is not the vehicle for doing so, it is hard to see a more appropriate statutory vehicle for ensuring that we can ratify the treaty. We need changes to our immigration rules and the right to remain. Those issues may be difficult for the Government for all sorts of reasons, but they need to grasp them and deal with them in short order if we are to deal effectively with trafficking.

I have some sympathy with those who say not only that knowingly using a person who has been trafficked for sexual purposes, as a prostitute, can be construed as an offence under present legislation but that we need to consider wider applications of appropriate offences. To me, it is a straight matter of accessory if the person involved knows the situation. I stress to the hon. Member for Broxbourne that reasonable knowledge is part of the equation. We cannot prosecute people at will simply because they have been to a person who turns out to have been trafficked for sexual purposes. There must be a reasonable belief that the person was not capable of giving consent, as set out in the Sexual Offences Act, which my hon. Friend the Member for Cambridge quoted.

The same applies to a British citizen who is not a trafficked person, but is literally coerced into being a prostitute by the threat or reality of violence against them by the person controlling them. That, too, is already a clear offence on the part of the pimp or whoever, but if we can ensure that it is better prosecuted, understood and dealt with in our legal system, we should do so.

We then move into areas that are not, strictly speaking, coercion, but where there is a strong imperative that leads a person to enter into prostitution. The key example is drugs. This is the one point on which I disagree significantly with the hon. Member for Leyton and Wanstead, who asserted that drugs were not often a driver. From my policing experience, I must say that they are the major motor for a lot of people who fall outside the other categories that we have discussed, or even for those who are in them. If we can successfully get people off highly addictive drugs, the need to fund their drug-taking activities, or simply get the next fix from their pimp if that is they way they find themselves operating, is removed, and much of the imperative to commit the high-value, acquisitive crime of prostitution disappears.

Harry Cohen (Labour, Leyton and Wanstead)

I do not think that the difference between us is stark. I do think that drugs are a key factor for many women on the streets, for example, but when considering the law on prostitution we should not consider that as the sole stereotype. What about the prostitutes from the home counties who commute to London, do a day’s work and go back out? They are not necessarily drug addicts.

David Heath (Liberal Democrat, Somerton and Frome)

I entirely accept what the hon. Gentleman says. I agree that we should not employ stereotypes, but it worried me slightly that he dismissed the drugs argument, whereas I think that it is a major factor.

The last driver that makes people wish to work as prostitutes is economic. That covers a wide range of people, from those who simply cannot subsist without an additional or main source of income and find themselves driven into prostitution as a consequence, perhaps but not necessarily to pay for a drug habit, to those at the other end of the scale who see it as an effective way of earning rather a lot of money. It would be hard to argue that such people had been coerced in any way; they see it as an attractive career option in which they wish to engage.

A wide range of issues push people into prostitution. That is why it is important to deal with the real mischief and ills of the system, which are principally to do with children, trafficking and violence. In a different way, the problems are about the availability of drugs and the ability to rehabilitate those on drugs. It would be unhelpful to generalise and say, “It is bad that this sort of thing happens and we want it to stop.” I do not think that that would be an effective solution.

There are other problems with street prostitution with respect to people’s behaviour, either when they are soliciting, or when their pimps are soliciting and advertising their activities, or on the part of clients. We should be aware of that behaviour. Legislation to deal with curb crawling and soliciting is in place, but it is not particularly effective. The legislation demands a great deal of police time and activity, sometimes in ways that move the police officer close to the role of agent provocateur—they might arrange for inappropriate behaviour to take place to make an arrest. We should be firmer on such behaviour because it causes the most offence to the general public. More generalised rules on harassment and a more vigorous prosecution of harassment cases would be entirely appropriate.

We should deal with another ill—the risk presented to prostitutes. If we need an illustration of that, we need look no further than the incidents in Ipswich to which the hon. Member for Leyton and Wanstead referred. We should be aware that prostitutes take high and sometimes lethal risks. They certainly risk becoming victims of violent behaviour, rape, and assault and battery. If we arrange our legal system to isolate prostitutes from support—the support could be mutual or institutional—we will increase the risks of such crimes. We need to have great regard to that. The more we remove the activity from view, the more we put people’s physical safety and, indeed, their lives, at risk. It is currently visible to an extent, and people are not afraid to go to the authorities, which are accountable, to report their suspicions or actual incidents of alleged criminality.

David Howarth (Liberal Democrat, Cambridge)

Another point on the same lines that my hon. Friend might wish to consider arises from the Kulick study, which the hon. Member for Leyton and Wanstead mentioned—it is also mentioned in Belinda Brooks-Gordon’s book “The Price of Sex: Prostitution, Policy and Society”—namely that in Sweden, one of the effects of criminalising the customer was a drop in price. Because the price dropped, prostitutes had to take more clients, and were consequently more exposed to the risks that my hon. Friend described.

David Heath (Liberal Democrat, Somerton and Frome)

There are a lot of question marks against the experience of Sweden, and I do not think that we should take at face value any initial results. We need to take care to look at every consequence of Swedish policy decisions and, indeed, as has been said, at other arrangements and their effectiveness.

I return finally to clause 72, which will introduce compulsory rehabilitation sessions. I am all for rehabilitation—it is an essential part of the provisions. I take “rehabilitation” to mean more than some sort of reverse coercion; I take it to mean genuine support to deal with the issues that women face—it is usually women—including their economic situation or drug addiction. I find it hard to reconcile what the Government are saying here with the reduction in the number of drug treatment centres around the country. We should be very worried about that, because this is a significant part of the proposals.

I question whether compulsory rehabilitation under the model that the Government propose will have the effect that they desire. This is not a criticism of Ministers’ intentions, but a concern about the outcome. I fear that it will result in the exact opposite of what the Government want. First, it runs the risk of criminalising a large number of prostitutes. Many will be unable or unwilling to meet the terms of rehabilitation orders, for economic or other reasons, and will find themselves in jail as a consequence. That is the way in which we used to deal with prostitution, and it was ineffective then, yet we are, apparently, to revisit it. That point was made expressly by Harry Fletcher, the assistant general secretary of the National Association of Probation Officers, who said:

“These new measures will turn the clock back by 25 years. Thousands of prostitutes face the prospect of being jailed for up to 72 hours if they fail to obey new court orders set out in the Criminal Justice and Immigration Bill...Prostitutes are unlikely to attend compulsory meetings when they know that there is no alternative source of employment or income. It is highly unlikely that three sessions with a trained counsellor will persuade any prostitutes to give up their work.”

He concluded that there will be a high breach rate and that a large number of people will be criminalised—a situation that we thought we had turned away from some time ago.

There are other questions about the effectiveness of the measures, particularly regarding who the counsellors and supervisors will be, what basic training they will have, what regulation will cover their operations and what sort of services they will offer. Will they be able to mandate other services to provide support that is diagnosed as being required? I return to drug rehabilitation; if that is a key component, as it often is, will other providers of supervision or support be leapfrogged in order to provide those services? If not, will there be long waiting lists for rehabilitation? That would also result in the breach of orders and mass criminalisation.

This policy is not mature and has not been properly thought through. I return to the point that the hon. Member for Leyton and Wanstead made: this is a huge, complicated and serious issue, and the measures are not a sensible addendum to this complex Bill, which has many disparate parts. The policy is well-meaning, but its likely consequences are difficult to discern. I find it difficult to accept that it will have the beneficial effect that Ministers hope for, and I fear that it will have a damaging effect.

I must say to the hon. Member for Kettering that I do not believe that criminalising demand is the right way forward. I respect his reasons for proposing his new clause, but I am not convinced that it would work. Indeed, it would attack the reasons for concern that I have identified and which I am anxious we should properly address if we are to ensure that vulnerable people are protected from harm.

David Burrowes (Conservative, Enfield, Southgate)

We have had a wide-ranging debate, given that we are dealing with a standard clause. I congratulate my hon. Friend the Member for Kettering on the considered way in which he dealt with this serious issue. I endorse his commendation of CARE and Chaste, and the reference that the hon. Member for Leyton and Wanstead made to the POPPY project, which plays a key role with other organisations that my hon. Friend mentioned in seeking to deal with the sharp end of the problem—trafficking—and to find accommodation and support for those vulnerable members of our community who are preyed upon in the area of prostitution. I thank my hon. Friend the Member for Broxbourne for the passion that he brought to the debate. We must focus on the seriousness of the issue and deal with the principles and practice of the clause.

On practice, I invite the Minister to clarify the problem that the Government are addressing. Is it that as many as 80,000 individuals are involved in prostitution in the UK? Is the purpose of the clause to reduce that number as a whole, or is that restricted to delivering an overall reduction in the number involved in street-based prostitution? Is the aim limited to street-based prostitution, or is there a general desire to reduce the number of people involved in prostitution generally? Is there a focus on the 70 per cent. who start in prostitution as children or young teenagers, and where in the clause do the Government seek to tackle that? Is the provision focused on those 95 per cent. involved in street-based prostitution who use class A drugs? Where do the Government seek rehabilitation orders for those with underlying concerns about family, physical abuse, domestic violence, debt, family breakdown, and so on, which are often underlying causes, and significant factors, that go hand in hand with drug abuse?

The principles must also be clarified. Where do the Government stand on the principles of prostitution? Those principles were outlined by my hon. Friend the Member for Kettering and, to some extent, by the hon. Member for Leyton and Wanstead. Where do human rights principles stand in relation to prostitution, and where do the Government stand on the principle, which we all seek to uphold, that in general the human body should not be a source of financial gain? That principle is generally upheld in British society, but it seems to be thought of differently in relation to prostitution. Surely the principle that the sale of human bodies and their parts is degrading and incompatible with human dignity should inform the debate in this area, as in other areas, when we are concerned about the purchase of one person’s body by another for sexual pleasure.

Another issue of principle relates to gender equality. Is that not also a relevant principle in prostitution, when that is built inherently on an imbalance of power? I seek to distinguish myself from the hon. Member for Somerton and Frome. He spoke about vulnerability, which we all coalesce around. However, any suggestion that this is an attractive option is at the margin of the debate. We should deal with the situation, in terms of statistics and principles, as an issue—

Charles Walker (Conservative, Broxbourne)

Does my hon. Friend accept that most men who visit prostitutes, for whatever reason, are in the main taking advantage of very damaged people?

David Burrowes (Conservative, Enfield, Southgate)

Yes. By the very nature of the situation, when a man goes into a brothel or seeks the trade of a street prostitute, there is an imbalance of power between the bought and the buyer. Given that the vast majority of prostitutes are women, we are concerned about the principle of the commoditisation of women’s bodies. That principle must underline our debate, and it is of concern to this and other societies when gender inequality is deepened. That imbalance of power can be seen in not only gender, but race. The individuals who are involved in prostitution are predominantly from ethnic and disempowered minorities, or from other countries. Indeed, 81 per cent. of prostitutes are now coming from overseas. Tied in with that, inevitably, is a greater risk of people being trafficked in the circumstances about which we are all concerned. When the Government tell us, as they often do, that they are upholding the principles of race and gender equality, and human rights, those principles must inform the debate, and clause 72 must deal with those issues properly.

We have all been talking about the protection of the vulnerable, and that must properly inform our approach to prostitution. We have heard the statistics, so I will not repeat them, but when we consider the large number of people who come from those vulnerable communities, it is important that the Government do not create incentives for the exploitation of vulnerable individuals in our society.

David Howarth (Liberal Democrat, Cambridge)

I am following what the hon. Gentleman is saying very carefully. He talks about the creation of incentives by the Government. I would like to hear his view of a case that I have come across, which is that of failed asylum seekers who, because of the Government’s policy of effectively putting such asylum seekers into a state of destitution, are caused to go into prostitution. Does he think that the Government are doing what he claims that society in general should not do?

David Burrowes (Conservative, Enfield, Southgate)

I appreciate your leave in permitting a wide-ranging debate, Sir Nicholas. I will not go into the areas of asylum and immigration policy at this stage, although there will be an opportunity later in the Bill to deal with immigration to a certain extent. However, there is a concern about statistics showing that it is those who have come from overseas, whether they are asylum seekers or others, who are, more often than not, the street and off-street prostitutes. They are prone to vulnerability, as the hon. Gentleman suggests. We therefore need to take the issue seriously.

I want to focus on the issue of kerb crawling. The Government have, under existing legislation, tried to criminalise supply and demand regarding street prostitution. We must accept that the law is inadequate in practice. I think of my experience, as a duty solicitor, of going to Haringey magistrates court in the morning and visiting the cells, which more often than not are filled up with street prostitutes. When one opens the hatch, there is someone in the corner who is probably withdrawing from class A drugs and in a state of half-life—damaged, vulnerable and exploited. They come before magistrates who, in a state of embarrassment, look at how they can possibly not do anything and come up with a token financial penalty. The prostitute then goes on their way and comes back the next week, month or year. I concede that the Government are seeking to deal with that by way of a rehabilitation order. I shall shortly address that in more detail.

The other side of the equation is the demand side, which is addressed by prosecution on the basis of public nuisance and the problems caused in the community. That seems to be the focus of attack in relation to criminalisation. We therefore get the ludicrous situation that I have seen in court when the driver who has stopped says in his defence that he was simply asking for directions, which is treated with short shrift by the magistrates—they have heard it all before.

Once the defence advocate has been unable to get any further in relation to soliciting, the case moves on to the other aspect, which is where it stands or falls, of whether the kerb crawling was causing a nuisance. While one can argue that an area has been downgraded so much that it would not be a nuisance to have prostitutes loitering on the street corner, the local magistrates give that short shrift when they still care passionately about that area, however much it might have gone downhill in recent years. The issue of nuisance is the area for enforcement and prosecution. That does not match the issues that have arisen in today’s debate, when we have examined the whole question of exploitation, trafficking and vulnerable people. There seems to be a mismatch in terms of current law and practice that clause 72 does not properly address.

Although the hon. Member for Leyton and Wanstead might suggest that there are many involved in this industry who are not deficient or deviant, this is not a benign matter. While it may not be the top of your list of television programmes to watch when you get home, Sir Nicholas, “The Secret Diary of a Call Girl” is nevertheless worth looking at. I hasten to add that the programme is on mainstream television. I understand that it is very popular and that it features Billie Piper and others—[Interruption.] I am trying to give a reason for watching it. In many ways, the programme portrays a glamorous side to the whole industry. As we have heard, that is not supported by the statistics, or the experiences of those who come before the courts and who are open to vulnerability and exploitation. Abuse, coercion and lack of choice are very real problems that the Government must address.

Looking at the Government’s approach, and particularly at clause 72 and the orders to promote rehabilitation for prostitutes, we must ask whether we have the resources to match the Government’s desire to rehabilitate street prostitutes and divert them away from their trade. The Government are focusing on drug addiction, which is certainly a key factor in street prostitution. However, where are the resources to deal with that in terms of rehabilitation?

There are 115 residential rehabilitation services in England with 2,441 beds. However, for women and single parents with children—which will be the case for many street prostitutes—there are just nine services that provide 143 beds. The provision is sparse, poor and reliant on the third sector, which often does not receive the funding assistance required.

Government measures to address the treatment of drug addicts predominantly involve providing a substitute drug. Some £110 million is spent on substitute prescriptions, predominantly for methadone, even though we know that that might not, indeed often does not, lead to recovery from addiction—it might lead to a hundred or so of those people a year moving towards full recovery from addiction. Nevertheless, one has to question whether the rehabilitation order will provide the true drug rehabilitation leading to recovery that is required.

If there were resources to match the rehabilitation order that could provide three meetings and encourage rehabilitation by way of methadone prescriptions, there would still be concern that people—predominantly women—would effectively be left to a half-life of addiction to methadone, which is more addictive than heroin and leads to great problems. The difficulty is whether the orders will deal with the heart of the problem, which is not just addiction, but child abuse, family breakdown, domestic violence and debt.

There is a reference in the clause to a “supervisor”. However, there appears to be no information about the person who will perform the role of supervisor, other than a broad test of suitability for the role. I invite the Minister to provide details of who the supervisor is intended to be, and whether there needs to be more specific information and guidance in the Bill. In proposed section 1(2A) of the Street Offences Act 1959, reference is made to “the supervisor” or,

“such other person as the supervisor may direct.”

It is unclear who that person is, or whether it is the supervisor or the courts that will determine the suitability to act.

The other question for the Minister is who will supervise and regulate the supervisors. There does not seem to be much in the Bill that deals with the suitability of a person to act as a supervisor. Finally, there are references in the provision to three meetings. What is the magic focus of that number of meetings? Why are three meetings prescribed for the rehabilitation order? Why not more? Why must they take place within a six-month period? The reality is that the Government are seeking to deal with the situation by way of trying to divert street prostitutes away from their trade and to deal with those who are addicted to drugs.

I know from many clients in such a predicament that they are chaotic. They have limited ability to keep appointments, and it is fair to say that their ability to attend three meetings in six months might be limited. The result of that—no doubt we will be able to debate the sanction in more detail under schedule 14—will be enforcement and detention for up to 72 hours. We must ask whether the Government are realistic in their approach on the rehabilitation order.

I move briefly on to new clauses 8 and 22. Both, in many ways, have the honourable intention of wanting to focus on trafficking, but they come at that from different angles. I welcome very much the context set out by my hon. Friend the Member for Kettering, which is the concern that more than 4,000 women are coming into the UK as a result of trafficking. We need to address the issue of demand. Should we be restricted to the issue of kerb crawling, or should we look more seriously at how to reduce the number of women going into prostitution per se, as opposed to just street prostitution?

It is welcome that we can use the debate to focus on the criminality of the pimp, the brothel owner, and those who traffic women. We need to look at ways in which they can be exited from the industry, rather than taking the limited and perhaps unrealistic approach of seeking just to rehabilitate street prostitutes.

The concern raised by my hon. Friend the Member for Kettering was very well put. There have been references to the Swedish model. However, it must be made clear—we can debate different countries’ examples at length—that despite the positive approach of Sweden, it appears from studies that it is subject to less trafficking than its neighbouring countries. An EU study of countries published in 2005 suggested that the number of people trafficked per 100,000 of population was lower in Sweden than in any other country in the study, except the Czech Republic.

David Howarth (Liberal Democrat, Cambridge)

The problem with such studies is that they do not take into account the problems of reporting. When prostitution is made illegal from the client’s point of view, the flow of witnesses in trafficking cases may well decline, so that comparison might not show what the hon. Gentleman thinks that it does.

David Burrowes (Conservative, Enfield, Southgate)

The concern about the clause and our whole approach to the debate about prostitution is one of “out of sight, out of mind”. People think that we can deal with the street prostitutes who are seen to be causing a nuisance in our communities, but that we are not quite sure about how to deal with those who are out of mind, so we do not. The debate initiated by new clause 8 is very helpful because it brings to the fore the women who are trafficked, who are often out of sight yet are already covertly exploited. We need to look at ways, whether through legislation or otherwise, in which we can try to bring them to light.

It is accepted that there may well be some flaws in that survey, but we need to work harder to bring this growing problem to light in our communities. The council in Enfield has been the first to carry out a study of the whole area of trafficking, across the realms of different forms of trafficking, to try to bring what is happening to light. There was a recent case involving a Lithuanian who had been trafficked when the brothel was prosecuted in a very limited way. That highlighted to people in Enfield, as much as elsewhere, that this is an issue on our doorstep that cannot be out of sight and out of mind.

As honourable as the intentions behind the new clause are, my concern is how we could reconcile it with the current offence of loitering or soliciting. How could the police use their discretion to criminalise the demand but not the supply? That issue needs further consideration.

In new clause 22, it is accepted that there is a proper focus on the prostitute who is being trafficked. It states that

“any person who has paid for the sexual services of a prostitute who has been trafficked”

could be required to attend three meetings. Looking at the details, however, what would be addressed at those meetings, and what measures would be put in place to ensure that a person ceased to engage in such conduct? I am not sure how realistic and practical those aims would be.

Away from legislation, I suggest that there is a great need for a cultural change. We need to follow the Swedish approach in relation to their campaigning and how they have sought, through a very effective public awareness campaign, to challenge men’s attitudes. My hon. Friend the Member for Broxbourne made a similar point when he talked about men’s attitudes towards purchasing sex.

Charles Walker (Conservative, Broxbourne)

Does my hon. Friend accept that no solution to prostitution will be perfect and answer all questions? However, there is no harm in public life in aspiring to make things better.

David Burrowes (Conservative, Enfield, Southgate)

Absolutely. Without wanting to range too widely, we have the Olympics coming up in which concern has been expressed by the POPPY project and Chaste about the potential problems of prostitution and trafficked women. We should take the excellent opportunity of the Olympics, when people are looking at this country and at London in particular, to take the lead in an awareness campaign in relation to this whole area of prostitution.

I would like the Government to ensure that proper referral systems are in place. There are now statistics on trafficked women within the criminal justice system, but we need to go further and have a proactive approach in terms of referrals at police stations, council buildings and other areas. We need to know the extent of the problem, and to ensure that adequate support mechanisms are in place for victims, including the safe houses that Chaste and POPPY seek to provide. I understand that those specifications would enable the Government finally to ratify the convention. I will be interested to hear what the Minister has to say about those particular details.

I welcome the debate, especially the contribution from my hon. Friend the Member for Kettering. I look forward to hearing the Minister’s reply.

Vernon Coaker (Labour, Gedling)

We have had an extremely interesting and wide-ranging debate, as it needs to be, ranging from the issue of prostitution to the interaction between that and the whole area of trafficking, which, in my view, has changed the nature of the debate. What we were talking about before mainly concerned street-based prostitution with some off-street brothels. Street prostitution has now expanded to include the involvement of women from overseas in off-street work. That has raised real concerns, which were first brought to my attention many years ago by my hon. Friend the Member for Northampton, North. She will not remember this, but almost 10 years ago, she discussed her concerns about what was going on in some of the massage parlours and brothels in Northampton. To be honest, some of today’s debate has really been about trafficking, which we would not have debated a few years ago. We would not have expected to be in the House of Commons in 2007 talking about modern day slavery. Effectively, we are talking about not just women who are chained, but women who are deceived. The important point that the hon. Member for Broxbourne made was that people can be deceived. Frankly, many of the people who are trafficked have been deceived, rather than locked up, chained and brought over here.

Important as all the other issues are—of course they are important—the issue of trafficking has produced a new sense of urgency and, frankly, it has challenged some opinions that we might have.

I agree with the point that sometimes some of these issues are difficult to wave a magic wand at, to solve overnight, and to change in a way that we would all want them to change by tomorrow morning. However, that should not deter us from the fact that we can make a difference—and do make a difference. While there might be a clash of opinion in debate, we should always seek to change public policy in a way that will benefit people, not only in our constituencies but throughout the country. To a very great extent, all the contributions that have been made by members of the Committee have done that.

In both my opening remarks and in the more formal part of my speech, I shall seek to address many of the points raised by hon. Members.

Mr. Hollobone rose—

Vernon Coaker (Labour, Gedling)

I will ask the hon. Gentleman if he would not mind being patient, because I will seek to address his points at the end of my remarks. I hope he will forgive me; I have not forgotten him and I will get to his points later. Indeed, what I will say then will also address some of the issues raised by the hon. Member for Enfield, Southgate, particularly the points about trafficking and what is being done to combat it. I shall make some general comments, but I will also make some specific points.

I would like to address the comments made by my hon. Friend the Member for Leyton and Wanstead. I do not agree with all his points, but the fact that he challenges all of us to think about whether these provisions are right is an important aspect of what we are doing.

I would just like to say that we do not want people to go to prison for this offence. That is why we have introduced this new measure, in particular, and it is one reason why we are introducing the new rehabilitation order.

On the issue of trafficked women and its interaction with immigration, which my hon. Friend the Member for Leyton and Wanstead raised, we are moving towards a position where, if somebody is identified as a victim of trafficking, they will not be subject to immigration rules. That is the point that we want to reach. There is an awful lot tied up with reaching that point, because part of the process is ensuring that—the hon. Member for Enfield, Southgate raised this issue—we set up a national referral mechanism so that people can be referred to a central point where we know that they will be identified in a credible and authentic way as victims of trafficking.

I know that my hon. Friend the Member for Leyton and Wanstead was not suggesting this, but we cannot have a situation whereby people just say that they are trafficked. There must be a process of identification. That process must be fair and we must assume that, once people have been through it, they are victims. We do not want to see victims of trafficking being subject to immigration rules. We are working on that process, and it is all part of our working towards a position in which we can ratify the Council of Europe convention.

The Government will ratify that convention—there is absolutely no doubt about that—and that will be supported by everybody in our Parliament. The debatable point is this: do we ratify the convention prior to knowing that all the processes and procedures are in place, such as the national referral mechanism that we need, or do we put those procedures in place in order to ratify the convention? We want to complete the process of ratification as quickly as possible. Some people say that if we were to ratify, we would put those procedures in place more quickly. There is no difference between all of us in trying to achieve the process of ratification.

Hon. Members, including my hon. Friend the Member for Leyton and Wanstead, will know that the strategy that we have on trafficking involves, first, preventing it happening to begin with. There is a huge amount of work going on in source countries to try to raise awareness of the problem. Secondly, we aim to enforce the law in this country. Indeed, we have changed the law. It was said on the Floor of the House yesterday that there have been 67 prosecutions under the Sexual Offences Act 2003. We want more to take place. We need to develop our work—this is where the Government accept that we need to do more—on the protection of victims and the assistance given to them. There is no question about that; we have accepted it and we are developing our work.

I defer to the barristers, lawyers and solicitors present—in the sense of the law, anyway—but I strongly believe that when somebody knowingly has sex with a trafficked woman and there is no consent, that is rape. I thought that the hon. Member for Cambridge—he will intervene if I get this wrong—made the point well that freely given consent is the key. Somebody can be frightened of violence and fearful of what may happen to them, and the court might choose to regard that as suggesting that consent was not freely given.

The issues are complex. A general point was made about rape, which is difficult prosecuting territory, as I understand it from people who prosecute it and want to raise the number of people prosecuted. The situation is no doubt similar when prosecuting people in the sphere of prostitution. We all need to understand that more people should be prosecuted. That is what we want, and we need to work together to understand how it can happen. I take the point that we need to examine further section 4 of the 2003 Act, which the hon. Member for Cambridge mentioned, to see whether we can use it to develop our work. I shall do that.

David Heath (Liberal Democrat, Somerton and Frome)

Have there been any prosecutions of “respectable” newspapers and magazines for advertisements that can be construed as relating to procuring the services of trafficked persons—the sort of thing that was illustrated in the intervention in the House yesterday? Many of us feel that some newspapers and magazines are happy to preach from a moral standpoint while taking revenue from the proceeds of trafficked women.

Vernon Coaker (Labour, Gedling)

The answer to that is no. As far as I aware, there have been no such prosecutions, as there is not a specific offence on that matter. To reiterate the point that I made yesterday in the House, I have met the Leader of the House and the Solicitor-General about this. I cannot remember all the other people who were present, but the Newspaper Society and the Advertising Association were represented. We talked to them about that very issue, and we shall return to see whether they have done some of the things that they said they would do and whether they are applying the guidance and codes of practice that are in place.

I say to the hon. Gentleman that we certainly need to consider the matter. There is no specific offence at the moment, but the matter is of concern not only to him, but to all members of the Committee. Frankly, some of the adverts that appear in newspapers should concern us all. My recollection is that one of the raids that took place under Pentameter 1 was done as a result of intelligence gleaned from adverts. That backs up the hon. Gentleman’s point that there is an issue of concern to consider. We have gone down the voluntary route and are talking to various people to see what more can be done, but we need to keep the matter under review.

Charles Walker (Conservative, Broxbourne)

Like the Minister, I think that this has been an excellent debate. We have discussed the issues without personal rancour, which is a refreshing thing to do in the House of Commons.

I am a little concerned about the fact that somebody must “knowingly” have had sex with a trafficked woman. Someone going to a brothel populated by eastern Europeans might or might not know whether those people were trafficked, but there is a chance that they were. If someone puts himself in that position, he should make absolutely sure that they are not trafficked. If he does not know, he should not be there, because he would face prosecution if he was caught.

Vernon Coaker (Labour, Gedling)

As a non-lawyer, I do not think that people can be prosecuted on the basis of chance: intent has to be proved.

David Burrowes (Conservative, Enfield, Southgate)

Legislation has sought to move, or at least limit, the occasions relating to intent when dealing with sexual intercourse with a minor. Someone’s defence may once have been that they did not know that the other person was under age, but the Government, through legislation, have sought to make it an offence for someone to have sex with a minor, regardless of whether they knew that that person was a minor, and their saying so may not afford them a defence. I invite Ministers to reflect on whether there could be a similar situation in respect of someone who enters a brothel and has sexual intercourse with a trafficked person, not knowing that that person was trafficked.

Vernon Coaker (Labour, Gedling)

I will reflect on that. However, with respect to rape, there needs to be no consent and no reasonable belief in consent. [Interruption.] I get there in the end. I will buy a wig at some point. Consent is important and we will need to consider it in respect of some of my later points, if hon. Members will be patient.

My hon. Friend the Member for Leyton and Wanstead mentioned changing the definition of a brothel. We consulted on that, but there was huge opposition to changing the rules to make them refer to two or more people. There was big opposition to such change, from the public and the police, and so on. We are reflecting on that and will perhaps be looking to consult again. That has not been forgotten; it is just that there was no consensus about trying to move forward on it.

I agree with the important point that my hon. Friend the Member for Northampton, North made about multi-agency working and people coming together. That is necessary and something that we need to do.

In respect of the rehabilitation orders, which the hon. Member for Somerton and Frome mentioned, the only current option is a fine. Although the hon. Gentleman was not saying so, it is important for there to be the option of a fine or a rehabilitation order. We have been consulting on that measure since 2004. The hon. Gentleman will know that among its supporters were the Association of Chief Police Officers, the National Christian Alliance on Prostitution, the Magistrates’ Association, the Justices’ Clerks’ Society and the Local Government Association. A considerable number of people supported it.

The hon. Member for Enfield, Southgate will know that we have concentrated on street prostitution in the new strategy that we introduced 18 months or so ago. Obviously, our broader strategy is trying to deal with prevention and under-18s, and so on. However, there is particular emphasis, as a result of the consultation, on tackling kerb crawling and the nuisance that was being caused and trying to support women out of prostitution. We would like to see more support and development of services in local areas. That will be an important area of work for local authorities and will be part of their local area agreements.

The clause would amend the Street Offences Act 1959 to introduce a new penalty for those convicted of loitering or soliciting for the purpose of prostitution. The Government published a co-ordinated strategy on prostitution in January 2006, which recognises that women and men involved in street prostitution are in need of support to help them develop routes out and envisages that every opportunity will be taken to signpost those involved towards dedicated services. Wherever possible, that should be done voluntarily, but where persistent involvement makes some coercion necessary, the strategy encourages diversion from the criminal justice system into treatment, through a conditional caution or a prostitution-specific court diversion scheme.

Those involved in street prostitution are often significantly socially excluded and disengaged from support services, often as a result of drug addiction. The complex issues that they face and their chaotic lives mean that routes out of prostitution will necessarily be slow and may involve a number of relapses. Many will refuse help that is freely volunteered and may exhaust the opportunities available for diversion from the criminal justice system before a route out is taken.

Philip Hollobone (Conservative, Kettering)

What is the Home Office’s official view on the reasons why prostitutes are prostitutes? There is a difference of opinion between those of us who think that most prostitutes are drug dependent, and the hon. Member for Leyton and Wanstead who believes that a lot of people are prostitutes for economic reasons.

Vernon Coaker (Labour, Gedling)

Our view is that the majority of people based in street prostitution have a drug addiction problem. The issue is much more complex in respect of off-street prostitution. I am generalising. I am not saying that drug addition applies to everyone on the street.

The strategy acknowledges that the law on loitering or soliciting requires reform for it to be fit for purpose. The offence of loitering or soliciting, which is currently punishable by way of a fine, is frequently described as a revolving door, so we wanted to introduce an alternative to a fine, such as the rehabilitative penalty. The new orders will not be highly prescriptive, nor will the requirements be particularly onerous, given the low-level nature of the offence. However, they will require offenders to attend three sessions with a supervisor in order to begin to deal with the reasons behind their involvement in prostitution.

The clause does not specify who can or should perform the role of supervisor, only that they should seem to the court to have the necessary qualifications or experience to help the offender make best use of the meetings to address the causes of their offending and find ways in which to stop it. In practice, we expect that role to be performed by someone based in a dedicated support project and already working with those involved in prostitution, but there could be others. Although the courts will have the discretion as to whom is considered appropriate and capable of carrying out the role, guidance will say very clearly that those with the most relevant skills will already be working in specialist projects. That partly answers the question of the hon. Member for Enfield, Southgate. There are numerous advantages in using existing project workers to act as supervisors, not least the fact that many might continue to be in contact with the individual long after the order has been completed.

Clause 72 also introduces schedule 14, which makes further provisions about the new order, including the consequences of breach and the mechanism for amendment. New clause 8 would make it an offence to pay for the sexual services of any person, whether that activity takes place on or off street and whatever the relationship between the people involved. It would introduce a maximum penalty for the offence of six months’ imprisonment or a fine not exceeding £5,000, upon conviction.

As the hon. Member for Kettering will know, the Government undertook a comprehensive review of the legal framework in relation to prostitution as part of the paying the price consultation in 2004. That review specifically considered the merits of introducing an offence to criminalise those who pay for, or offer to pay for, sex along the lines of the new clause and the approach adopted in Sweden.

The results of that consultation contributed to the development of the current co-ordinated prostitution strategy, which was widely welcomed by stakeholders as being a positive and constructive way forward. It is being rolled out at a national and local level. Although the strategy rejected the option of introducing a specific offence of paying for sex, it supported the principles of the Swedish model, focusing on the areas of prostitution where exploitation and violence are commonplace, and where the existence of a sex trade is a nuisance for local communities.

We are clear that, where street sex markets exist, enforcement activity should be directed at those creating the demand for prostitution—the kerb crawlers and punters on foot. We already have offences that enable the police to deal effectively with anyone buying or attempting to buy sex from someone on the street, and believe that robust enforcement and awareness-raising can and does have an impact on attitudes and behaviour.

As for off-street prostitution, the strategy states that the demand for commercial sex from under-18s or individuals trafficked to this country is completely unacceptable. We have specific offences that cover paying for the sexual services of a child. It is illegal. Rape remains the appropriate offence with which to prosecute those who pay for sex with an individual who does not consent.

New clause 22 would introduce a rehabilitative order similar to those under clause 72. I hope that my hon. Friend the Member for Leyton and Wanstead will concede that I have dealt with some of the matters that have been raised. While we have criminal offences covering kerb crawling, paying for the sexual services of a child and arranging or facilitating trafficking for sexual exploitation, paying for the sexual services of a prostitute who has been trafficked is not a specific criminal offence, although that is something that we are considering. It would therefore be unfeasible to introduce a rehabilitative order for that behaviour.

I come now to the point mentioned by the hon. Member for Enfield, Southgate and others. We have some concerns about a generic offence that criminalises paying for sex, as adopted in Sweden. Most notably, to pick up on the point made by the hon. Member for Cambridge and his hon. Friend the Member for Somerton and Frome, we have concerns about the impact that such a move might have on those involved in selling sex and their vulnerability to exploitation and violence.

I am also concerned that criminalising all sex buyers could force some of those involved in selling sex to continue to do so but to adopt more covert practices. That would drive it underground and create a more hidden sex market, making it increasingly difficult for support services and enforcement agencies to identify and make contact with those individuals. That could expose them to heightened violence, exploitation and unsafe sexual practice. As the hon. Member for Cambridge said, it is worrying that, since that offence was introduced advertising on the internet, for example, has increased.

I recognise that there is considerable support for us to do more to tackle the demand for prostitution and trafficking. I would not wish to rule out possible changes for the future. We need to look more closely at the experience of other jurisdictions, such as Sweden, that adopt alternative approaches to see how we might strengthen our approach to tackling demand in England and Wales.

Therefore, I intend to visit Sweden—and the Netherlands, incidentally—early next year. Ministerial colleagues will be coming with me. We will find out more about how the new offence is working—I think that that was the point made by Liberal Democrat Members—gather evidence and see the impact that the change of policy has had on those involved in prostitution. That will be part of a longer term piece of work to consider what more we can do to tackle the demand for prostitution and trafficking. We expect it to take about six months.

Let me now deal with some of the comments raised by hon. Members on both sides. We intend to look at the demand and at other aspects related to prostitution. That will start with the visit that I will make with ministerial colleagues early in the new year. In particular, we want to try to gather evidence so that we can answer some of the points about whether the measure has made a difference, driven the problem underground, sent it into other countries or whatever else. The research is limited and the research that has been received is mixed. We need to clarify what is going on.

Until then, our message is clear. Sex with a person who does not consent, whether an individual has paid for it or not, is rape. That remains the appropriate offence with which to prosecute in such circumstances. We also have offences in place to tackle the specific problems of street prostitution, paying for sex with under-18s and trafficking. I ask hon. Members to support clause 72, and hope that given what I have said hon. Members will not press their new clauses at the appropriate time.

Schedule 14

Nicholas Winterton (Conservative, Macclesfield)

Before I call the hon. Member for Enfield, Southgate, I advise the Committee that we have just three further sittings in Committee unless the programme motion is amended. It is not the duty or responsibility of the Chairman to enforce the programme motion, but I am well aware from the amendment paper and the Bill that some important matters will still require lengthy debate. It may be necessary for members of the Committee to show a little self-discipline. They should not not deal with matters, but should perhaps be a little more succinct in their comments than they might otherwise be.

David Burrowes (Conservative, Enfield, Southgate)

This is an opportunity to address the issue of enforcement when the rehabilitation order is breached. I understand that the breach will not be a criminal offence in itself, but that a person may be subject to the same sanctions as those that apply to the crime. Will the Minister provide some reassurance for people who are concerned that a failure to attend a meeting will—indeed, must—lead automatically to the supervisor beginning proceedings against the offender? Will their discretion be properly used when dealing with people who often have chaotic lifestyles and may miss a date or be late for a meeting?

The concern is that the detention could last for up to 72 hours and that the cycle of orders may involve a failure-to-attend order, a further order and then prison. Will the Minister explain the procedure that the court will adopt when a breach occurs? Will the offender be entitled to legal representation and a representation order, and will the procedures be based on the Magistrates’ Courts Act 1980 and the court’s rules?

Finally, will the Minister address the issue of adjournments of those hearings, which could lead to the offender being released immediately or remanded in custody? Is there not a risk that the schedule will perpetuate the situation for those who remain in prison, despite the Minister’s remarks that that is what he wishes to avoid?

Vernon Coaker (Labour, Gedling)

To reassure the hon. Member for Enfield, Southgate, our intention is that the measure should be very much a last resort, not something that is used as a matter of course. We felt, however, that it was important to include in the schedule a sanction that could be used should someone completely fail to comply with the rehabilitation order. That is the point of including the provision.

Failure to attend without a reasonable excuse will constitute a breach, so the Bill states that if the person who is subject to the rehabilitation order can demonstrate that it was reasonable for them to have missed the meeting, the supervisor will have to take that into account. When the individual fails to comply with the order, the supervisor will be required to inform the court—either the court where the order was made, or the court in the area to which the person who is subject to the order has moved.

The magistrates court will not then have to issue a summons, but it will be able to do so if it chooses. The supervisor will be required to report to the court any failure to meet the requirements of the order, alongside an assessment of the individual’s likely future compliance, and the court will then instigate breach proceedings. We do not wish the 72 hours provision to be used often, but at the end of the day it is important to make available a sanction should somebody knowingly, deliberately and wilfully choose to ignore the fact that they are subject to an order. I do not believe that it will be used in many circumstances; I think it will be used in very few.

David Burrowes (Conservative, Enfield, Southgate)

I should like the Minister to pick up on the point I made about the procedure process for the offender who is brought back before the court. How will they make representations as a result of the breach? Will they be entitled to legal representation?

Vernon Coaker (Labour, Gedling)

The hon. Gentleman made a good point, and I shall reflect on it, because we will need to ensure that whoever is subject to the order can make some sort of representation. I shall certainly consider that issue.

Clause 73

Vernon Coaker (Labour, Gedling)

I beg to move amendment No. 204, in clause 73, page 51, line 42, leave out subsection (4).

This technical amendment will extend the scope of the change that the clause makes in order to cover Scotland as well as England and Wales. With that brief remark, I hope that the Committee will accept it.

Edward O'Hara (Labour, Knowsley South)

Welcome back; I think we are all keen to get going.

Schedule 15

Maria Eagle (Labour, Liverpool, Garston)

I beg to move amendment No. 224, in schedule 15, page 185, line 16, at end insert—

‘(ba) inciting the commission of a nuclear offence;’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss Government amendments Nos. 225, 226 and 245.

Maria Eagle (Labour, Liverpool, Garston)

Welcome back, Mr. O’Hara, to the rollercoaster ride to the end of the Bill. We are getting there.

I remind hon. Members that the schedule relates to clause 74, which deals with offences relating to the physical protection of nuclear material and nuclear facilities. The amendments will ensure that the convention on the physical protection of nuclear material, including the 2005 amendments thereto, is fully implemented into UK law. They will allow prosecutions for incitement to commit offences against nuclear facilities, as is required by the amended convention. However, in such cases, it must be proved that the individual intended or believed that the offence would be committed. If the offence is not committed as incited, the inciter can still be prosecuted. They are basically transitional arrangements until the Serious Crime Act 2007 comes into force.

Amendment No. 245 makes consequential amendments to the definition of convention offences in schedule 1 to the Terrorism Act 2006. The amendment ensures that the schedule accurately reflects the new list of offences that will be set out in the amended Nuclear Material (Offences) Act 1983 and Customs and Excise Management Act 1979.

Are we dealing with the schedule stand part debate now, Mr. O’Hara?

Edward O'Hara (Labour, Knowsley South)

If there are no objections from the Committee.

Maria Eagle (Labour, Liverpool, Garston)

That is helpful, thank you.

The schedule creates new criminal offences and extends existing ones under the Nuclear Material (Offences) Act 1983, which is necessary for the UK to ratify the 2005 amendments to the convention on the physical protection of nuclear material. We are bringing UK law into line with certain changes made to the convention.

It might help if I give some background information on the changes. The convention was concluded under the auspices of the International Atomic Energy Agency in 1980. It came into force in 1987 and currently has just under 130 parties, of which the UK is one, having signed it in 1980 and ratified it in 1991. The amended convention requires each state party to establish, implement and maintain an appropriate physical protection regime for civil nuclear material and facilities under its jurisdiction, with the aim of protecting against theft, recovering missing or stolen material, protecting material and facilities against sabotage, and mitigating or minimising the radiological consequences of sabotage. It also provides for co-operation between states in the event of nuclear sabotage. It also incorporates a longer list of nuclear offences than the original.

The diplomatic conference of 2005 marked the end of a process initiated by calls for amendment of the convention from the IAEA director general in 1999, and given impetus by enhanced concern for nuclear security following the terrorist attacks in the United States in September 2001.

The new and extended offences cover the following broad areas of activity: misusing nuclear material here or abroad intending damage to be caused to the environment, or being reckless about whether it will be caused; doing something outside the UK that involves moving nuclear material into or out of a state without lawful authority; attacking a nuclear facility here or abroad intending that damage will be caused to the environment by exposure to radiation, or being reckless about whether such damage will be caused; attacking a nuclear facility abroad and intentionally or recklessly causing death, injury or damage to property as a result of exposure to radiation; attacking a nuclear facility here or abroad, intending that death, injury or property damage will be caused by exposure to radiation, or being reckless about whether that is the outcome, even if no such injury or damage occurs.

Philip Hollobone (Conservative, Kettering)

Those are some very serious offences. I have two questions. Why, at the end of 2007, are we getting round for the first time to implementing what the convention asked the Government to do about these very serious offences? Secondly, how many of the 130 signatories have already passed the measures into their law?

Maria Eagle (Labour, Liverpool, Garston)

State parties that have been involved in the negotiation of the amendments will have their own ways of extending the offences to be able to deal with the issue. My understanding is that about 10 to 15 have managed to ratify, so we are not that far behind. This is the first opportunity that we have had to deal with the matter, which is why, although it is a somewhat strange clause to include in this Bill, I hope that the Committee will accept it. What is happening is about extending co-operation across borders so that activities of the kind in question can be clamped down on properly by the authorities, without running into problems of jurisdiction, or of incompatible laws across state boundaries, given that the relevant matters cross boundaries very easily. We are fairly well up on the list of those who have got around to implementing the changes. It is simply a matter of appropriate legislative vehicles, which, as I hope the hon. Gentleman understands, can often be a problem.

As the hon. Gentleman may know, the existing convention has largely been about transport of nuclear material. It is partly the developments since 2001, and the increased security that states have decided, for obvious reasons, is required around nuclear material, that have led to the diplomatic conference and the amended convention, which we want now to implement. The director general of the International Atomic Energy Agency, Mohamed el-Baradei, said of the amended convention:

“This new and stronger treaty is an important step towards greater nuclear security by combating, preventing and ultimately punishing those who would engage in nuclear theft, sabotage or even terrorism.”

It is on that basis that I commend the schedule and the amendments to the Committee.

David Heath (Liberal Democrat, Somerton and Frome)

I welcome you to the Committee this afternoon, Mr. O’Hara. Do not the provisions show the extraordinary nature of the Bill—that part 6 can go from extreme pornography to prostitution and street offences, and then to protection of nuclear material in a universal jurisdiction? Later, of course, we shall go on to consider the penalties for unlawfully obtaining personal data. All that is included in a single part of the Bill—a Bill without a theme, as has been said.

I have some questions on the schedule. I thought that I would be extraordinarily clever, but it turns out that I am not. I was going to query the word “nuclide” in proposed new subsection (8) of section 6 of the Nuclear Material (Offences) Act 1983, because I had always used the word “nucleide” when I learned chemistry many years ago, and I thought it was a misprint, but it turns out that they have changed the word. I hope that I shall get the credit at least for having done my research to ensure that I did not query the use of a word whose usage had changed. I should probably blame the Americans for eliding the perfectly serviceable word “nucleide” into “nuclide”.

The provision is extraordinary in the context of British law, which is not to say that I shall argue against it. The measure provides universal jurisdiction, which is familiar in American law, but which is rarely used in this country. It does not matter where offences occur—it could be anywhere in the world—they will be indictable in a British court, and it will not matter who in the world is alleged to have committed offences because anyone can be tried for them in a British court. It is a substantial undertaking. A matter that has no connection to the United Kingdom or any of its subjects could be put before a British court. We should at least be aware of the breadth of the applicability of the schedule as we debate it.

I should also address one specific measure in the schedule. Paragraph 6 on page 186 deals with nuclear facilities, which are explicitly defined as

“a facility used for peaceful purposes”.

In other words, a facility is excluded if it is not used for peaceful purposes, which is to say

“if it contains any nuclear material which is used or retained for military purposes.”

That proposal seems to be an oddity. If a nuclear facility can in any way be described as having a military application, either in itself or any material contained in the facility, it falls outside the scope of the offence and of the legislation.

It raises some interesting questions of applicability. For example, what about the nuclear facilities that we believe are being built in Iran. The President of Iran tells us that the facilities are being built exclusively for peaceful purposes, which would make removal of material from those facilities an offence under the schedule. On the other hand, the Government’s position is that the facilities are not for peaceful purposes; rather, they have a military purpose, in which case, in a British court, it could be adduced that they do not fall within the definition because some would argue that they have a military utility.

There might be a perfectly proper reason for the specific definition, but it seems curious and perhaps less well specified than it might be.

Maria Eagle (Labour, Liverpool, Garston)

The reason is perfectly simple: the convention does not apply to military sites or materials, so the measures cannot do so. We are simply amending the convention as all agree it should be amended, which does not relate to military facilities.

David Heath (Liberal Democrat, Somerton and Frome)

I am simply making the point that that exclusion makes it more difficult to bring an effective prosecution. There will be grey areas of definition. For instance, is a civilian institute that uses nuclear material to develop nuclear safety and protection for our troops in the field a peaceful or a military institution? It is difficult to establish on which side of the line such an institution will lie in terms of the definition. It would in some respects be a purely defensive, almost academic institution, but it would use the research that it undertook for military purposes—the proper protection of our servicemen and women when they are in the field—and therefore fall foul of the clause.

I am simply saying that however well the provision may have read in the treaty and in the convention, in British law it is a bit of a nonsense. We should at least be aware that we are passing nonsense, even if we think it a good idea to pass the nonsense to bring ourselves into line with our international obligations.

My last point is made in response to the intervention by the hon. Member for Kettering. There have been perfectly good previous statutory and legislative vehicles for the measure. If it was agreed in 2005, we have had anti-terrorism legislation that could easily have been used for the purpose, raising the question why the Government did not feel it necessary to enact the measure until now, in this compendious cornucopia that we call the Criminal Justice and Immigration Bill.

Edward Garnier (Conservative, Harborough)

I want to ask the Minister a couple of questions. We must be careful when we extend the jurisdiction of our courts to extraterritorial offences, although I fully accept that it is necessary, for example, to protect our armed forces from charges under this aspect of the Bill in the event of our being at war. It raises the question whether anybody who does anything against us, albeit in the course of a military conflict, is protected from prosecution. I presume that they are, unless the Secretary of State issues a certificate exempting them from the protection. Let us not worry about that too much, however.

The question I really want to ask is this. Assuming that the offence is committed overseas, but by virtue of the Bill is prosecutable in this jurisdiction, would our prosecutors wait to see whether the country where the act took place prosecuted, and prosecute in this country only if there were no prosecution in the country where the act took place? Alternatively, would there or could there be a prosecution in both?

Maria Eagle (Labour, Liverpool, Garston)

Will the hon. and learned Gentleman give way?

Edward Garnier (Conservative, Harborough)

I had finished.

Maria Eagle (Labour, Liverpool, Garston)

In that case, the hon. and learned Gentleman has been remarkably succinct, for which I thank him. His first scenario is correct: we would wait to see whether there were a prosecution in the jurisdiction where the event took place. If there were not, and we had the person in our grasp, the prosecution could be undertaken in this country.

I have dealt to the extent that I can with the points that the hon. Member for Somerton and Frome made. I cannot extend the convention’s reach beyond that for which it was originally negotiated, so it is not possible for the offences, which are an amendment to the convention, to range more widely than its ambit. In that sense, parameters have been drawn. He may not like the fact that—[Interruption.] He is chuntering, so he obviously has not received a good enough answer.

David Heath (Liberal Democrat, Somerton and Frome)

I do not want to interrupt the Minister, but that argument is demonstrably not true. We are bound by our signing of the convention to put into effect that which is in the convention. Our signing does not limit us to that which is in the convention if it is better to extend it through statute law in this country.

Maria Eagle (Labour, Liverpool, Garston)

No, indeed. However, the hon. Gentleman may recall my saying that the clause is designed to put into effect the amendments to the convention—simply that.

David Howarth (Liberal Democrat, Cambridge)

Will the Minister give way?

Maria Eagle (Labour, Liverpool, Garston)

If the hon. Gentleman will give me a moment to finish my sentence, I shall happily give way to him.

I am not commenting on the range and ambit of the entire policy; I am simply saying that the clause and schedule 15 are about implementing the offences that we must implement to ratify the amended convention. That is simply what the Bill does, and in that sense I do not seek to go further. In the broader policy sense, the hon. Member for Somerton and Frome is perfectly right to say that, if one wished to apply offences to a wider range of activities or places, Parliament could do that—Parliament is sovereign—but that is not what we are seeking to do in the Bill. There is not much more I can say about that.

David Howarth (Liberal Democrat, Cambridge)

I should be grateful if the Under-Secretary answered a general question, either now or later. Does the treaty require the regime of conclusive certifying by the Secretary of State? If it does not, the question arises whether that is the right approach.

May I put a hypothetical case to the Under-Secretary? It may be fanciful, given present Government policy, but a future Government might take a different view. Let us say that a country—perhaps the United States—bombed an Iranian nuclear facility. If the question whether that was an action by armed forces arose and, for some reason best known to the Government of the day, the Secretary of State refused to issue a certificate under the appropriate section—new section 3A to the Nuclear Material (Offences) Act 1983, inserted by paragraph 5 of the schedule—there would then be a question whether the facility was military or peaceful. That matter is also, as I understand it, to be determined conclusively by the Secretary of State. A future Secretary of State could determine conclusively that such a facility was not military and was therefore peaceful. At that point, the armed forces of the other country would become subject to the universal jurisdiction that my hon. Friend the Member for Somerton and Frome mentioned and a case in the British courts becomes a possibility.

Maria Eagle (Labour, Liverpool, Garston)

Academic law is a wonderful thing, is it not? Hypotheticals are part of it. To answer the hon. Gentleman’s specific questions, the certification by the Secretary of State is not mandated in the convention, but that is the mechanism that we choose to adopt to deal with the issues in this jurisdiction.

David Howarth (Liberal Democrat, Cambridge)

The point was not that that might happen, but to illustrate the anomalies that might arise from using the mandatory conclusive certifying process, and to say that there might be a different way of doing it under which such difficulties would not occur.

Maria Eagle (Labour, Liverpool, Garston)

I am certain that there is probably another way of doing it, but this is how we choose to do it. I am happy to hear from the hon. Gentleman if he thinks of a better way that we ought to consider in future.

David Burrowes (Conservative, Enfield, Southgate)

Will the Under-Secretary clarify, either now or later, the timing of the provisions in relation to the incitement offence? I understand that that is, in effect, a transitional provision under the Serious Crime Act 2007. What will the timing be in relation to that Act and the Bill we are discussing? Which comes first? For how long will that be a transitional provision?

Maria Eagle (Labour, Liverpool, Garston)

Speaking from memory, as the provisions on encouraging and assisting in the Serious Crime Act come into force, they ought to cover what are currently common law offences. That ought to deal with the issue. I am trying to remember when the provisions on inchoate offences come into force. Whenever that happens, the transition will be over. I hope that that assists the hon. Gentleman. I just don’t have the date in my head and I apologise to the Committee for that, but it should not be in the too-far-distant future.

I hope that I have dealt with the points that hon. Members have raised. I commend the schedule and the amendments to the Committee.

Clause 75

Edward Garnier (Conservative, Harborough)

I want to discuss an anomaly that arises between the current civil liability under the Data Protection Act 1998, section 55, and the intended criminal liability that will emerge from clause 75, if and when it becomes the law of the land.

First, I have an interest, or used to have an interest, in this area of the law. I want to talk particularly about journalistic endeavour and activity, so I am speaking as someone who acts for and against newspaper journalists, publishers of one sort of another and it is right that I should put that on the record.

Secondly, I want to clarify a point that the Under-Secretary of State for Justice and I were discussing last week on the nature of the privilege that attaches to fair and accurate reports of the proceedings of Parliament. She was correct to say that in relation to Parliament, even contemporaneous fair and accurate reports are covered only by qualified privilege. However—this is where I confess to the confusion—judicial proceedings, when reported fairly, accurately and contemporaneously are covered by absolute privilege. Since we last met to discuss that subject I have yet to find a logical explanation of that difference; I think that it is one of those historical accidents where the statute law, which has amended the common law, has not caught up with itself. There may come a time when it does. I am happy to correct my earlier mistake.

I approach this discussion purely from the angle of journalistic activity; I am not concerned with discussing the fiasco over the data issues relating to Her Majesty’s Revenue and Customs, which is causing the Government and the Chancellor of the Exchequer rather a lot of embarrassment. I am not talking about data theft by malevolent people who wish to mine other people’s data sources and make improper use of data and sell it. Other occasions may come when others will want to talk about the Chancellor, the HMRC fiasco and so on, but today I do not want to deal with that.

Edward O'Hara (Labour, Knowsley South)

As long as they are in order when they do so, they may.

Edward Garnier (Conservative, Harborough)

When I said “on other occasions”, I meant on other parliamentary occasions. If others want to talk about it and they are in order today, I am sure that you would be very pleased to hear what they have to say, Mr. O’Hara, but I say for the third or fourth time that I am specifically referring to journalistic activity.

That is not necessarily a surprising thing to do because the Human Rights Act 1998 makes specific reference to journalistic activity. When we have a collision, as we frequently do, between competing rights—the right of free expression and the right of privacy—it is important that we as law makers get it right when we have the opportunity. Certainly under the common law, but now under the European convention where articles 8 and 10 come into play, there is that dispute between free expression and privacy. Under clause 75 and the underlying legislation, the Data Protection Act 1998, we have a similar collision.

The Secretary of State for Justice has acknowledged that difficulty. Recently—I do not know when; I should have checked, but it may well have been on Second Reading—he said that there were concerns about the misuse of personal data and that new rules in the Bill had caused concern because they might impede legitimate investigative journalism. As far as I can remember, he did not come up with any solutions for dealing with that difficulty. Relatively recently—in October—the Prime Minister also acknowledged it. You will remember, Mr. O’Hara, that the Prime Minister appointed the editor of the Daily Mail, Paul Dacre to review the 30-year rule on releasing secret papers. In a speech on liberty in modern Britain, the Prime Minister also said that a review of data protection law would be carried out by the Information Commissioner, Mr. Richard Thomas, who will also seek to protect legitimate investigative journalists from a planned crackdown on the trade in personal data, such as bills and health records. The Prime Minister announced a three-month public consultation on extending the scope of the Freedom of Information Act 2000, which allows the public to request confidential information from public bodies.

Why has clause 75 been made part of the Bill before the consultation process that was announced in October by the Prime Minister is completed? The answer to that may well be, as it so often is, that Bills are not implemented. Therefore, if this provision is passed into law, it may not be implemented until after the consultation process is complete. If it is, I suspect that the Government are putting the cart before the horse.

What we want, certainly in relation to journalistic activity, is a proper balance and sense of proportion. The Bill should allow for vigorous, journalistic and investigative activity which is in the public interest, and/or which the investigating journalist considers to be in the public interest during his investigation, while at the same time affording all proper protection to the data subject.

As I understand it, since 2004 there have been 26 prosecutions under section 55 of the Data Protection Act 1998, brought by the Information Commissioner. Of those prosecutions, only four have been in the Crown court—the others have all been in the magistrates courts—and only two have resulted in fines of more than £5,000. Where is the pressing social need to introduce, on summary conviction, a term of imprisonment “not exceeding 12 months”, or

“a fine not exceeding the statutory maximum, or...both”

but, “on conviction on indictment”— in the Crown court—

“imprisonment for a term not exceeding two years”,

or an unlimited fine? We must ask whether this measure is necessary and proportionate when we are dealing with legitimate investigative journalism, and when there is a difference between the civil and the criminal regimes—the civil regime as it currently is, and the criminal regime as it is intended to be under the Bill.

In making these remarks, I am relying upon assistance from the Newspaper Publishers Association, the Newspaper Society, the Periodical Publishers Association, the Scottish Newspaper Publishers Association and the Society of Editors. They have responded to the consultation paper, “Increasing penalties for deliberate and wilful misuse of personal data”, issued by the Government and the Information Commissioner. My concern, which is both informed by my own practical experience as a newspaper lawyer and based upon the advice of those groups, is that to introduce without justification a disproportionate sanction capable of discouraging the press from investigating matters of legitimate public concern, could have chilling effect on press freedom in this country.

Maria Eagle (Labour, Liverpool, Garston)

Does the hon. and learned Gentleman not believe that the defences already available under section 55 of the Data Protection Act are adequate? Is he just making the point about a chilling effect, or is he saying that the defences available are not sufficient to enable journalists to pursue legitimate matters of public interest?

Edward Garnier (Conservative, Harborough)

As I hope to explain as I develop my case, there is a distinction between the defences available at criminal law and at civil law. It seems to us that there should be no higher test in defending a criminal prosecution than in resisting liability under a claim for civil compensation. The Minister will know that a charge can be defended under section 55(2)(d) of the Data Protection Act when it can be shown

“that in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest.”

That language is to be contrasted with the language in section 32(1) of that Act, which states that the requirement for exemption from civil liability depends upon a journalist showing that he reasonably believed that publication would be in the public interest.

The difference in statutory language between those two sections produces the bizarre result that if a journalist investigating accusations of improper conduct, for example by a business man or a senior politician, proceeded in the honest and reasonable but mistaken belief that publication would be in the public interest, he would be able to establish an exemption from civil liability but not a defence against a criminal charge arising from the same facts. That anomaly, to which I referred at the outset, is a matter of serious concern. It will be significantly more serious if clause 75 is accepted and increases the penalty for offences under section 55 of the Data Protection Act from a fine to a sentence of imprisonment.

To return to the Minister’s points, every newspaper or magazine publisher is a data controller for the purposes of the Data Protection Act. Many journalists, particularly those operating on a freelance basis, are also data controllers for the purposes of that Act. The courts have held that the operations involved in producing a printed newspaper using electronic equipment inevitably amount to processing of data for the purposes of the Act and that that processing will include the acquisition, recording and use of information by journalists. Under the provisions of the Act, such processing may potentially give rise to both civil and criminal liability.

Civil liability may arise if the publisher or journalist breaches the statutory duty imposed by section 4(4) of the Act, which requires compliance with the data protection principle set out in part I of schedule 1. The Court of Appeal has recognised that in the operations required for the production and publication of a newspaper,

“it will be impractical to comply with many of the data processing principles.”

It follows that publishers and journalists are likely to incur civil liability for breaches of the Data Protection Act unless the exemption relating to journalism provided by section 32 can be invoked.

In the Naomi Campbell case against Mirror Group Newspapers—I do not know whether the Minister remembers it—the Court of Appeal held that the provisions of section 32 of the Act provide

“widespread exemption from the duty to comply with the provisions that impose substantive obligations upon the data controller”,

and that that widespread exemption applied both before and after publication. In practical terms the effect of section 32, as interpreted by the Court of Appeal in the case of Campbell, is to make available an exemption from civil liability for publishers and journalists, subject only to the following simple conditions set out in section 32(1)(b) and (c): first, that

“the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest”;

and secondly, that

“the data controller reasonably believes that, in all the circumstances, compliance”

with the data protection principles is incompatible with the purposes of journalism. The vital words contained in those conditions are

“the data controller reasonably believes”.

The effect of those words is that to invoke the exemption, the data controller does not have to prove that the publication to which the process relates would be in the public interest, only that he “reasonably believes” that it would be in the public interest.

That acknowledges the reality of deadline journalism. In the early stages of investigating a story, there may be reasonable grounds to believe that publication would be in the public interest, although it may ultimately transpire after full investigation that that is not so. It also avoids the imposition of civil liability on the journalist who honestly and reasonably, but mistakenly, believes that publication would be in the public interest.

The importance of that approach and the latitude that it allows to responsible journalists was expressly recognised by the then Under-Secretary of State for the Home Office Department, the right hon. Member for Knowsley, North and Sefton, East (Mr. Howarth), in the Standing Committee that scrutinised the Data Protection Bill. He said:

“Given the high importance of freedom of inquiry and expression to our society, we must, on balance, favour publication, subject to reasonable restraint on the journalist's actions. The present test has been designed with some care to do that. Of course journalists might get it wrong that is in the nature of things. But they need to get it significantly wrong before the law should intervene...We should maintain a proper emphasis on freedom of expression—[Official Report, Standing Committee D, 21 May 1998; c. 213.]

That is what the then Minister said when dealing with the civil regime under the 1998 Act.

As it is obvious that potential criminal liability might have more serious consequences for a journalist than potential civil liability, one would expect the same or a greater degree of latitude to be offered to a journalist in the provisions of the Act relating to criminal liability, but that is not the case, as we know. Section 55(1) of the Data Protection Act makes it a criminal offence for a person to

“knowingly or recklessly, without the consent of the data controller—

(a) obtain or disclose personal data or the information contained in personal data, or

(b) procure the disclosure to another person of the information contained in personal data”.

Clearly, investigative journalists may often obtain information directly or through a source without seeking the consent of the data controller holding the data containing that information. One has only to take the common example of an investigation into allegations of improper or unethical practices within a business organisation. Such a story could not be investigated effectively, particularly if a source within the business organisation was involved, without risking criminal liability under section 55 of the 1998 Act. Obtaining the information will almost certainly also give rise to potential civil liability, as it will be impracticable to comply with the data protection principles. The journalist will be able to invoke the provisions of section 32 to secure exemption from civil liability on the grounds that he reasonably believes that publication would be in the public interest, so why should he not also have at least the same level of protection from potential criminal liability arising from the same facts?

That anomaly is a matter of serious concern as the Act stands, and it will be exacerbated by implementation of clause 75. I have informed the Committee of the genesis or origin of those concerns, which I share, both as a newspaper lawyer and as a citizen. As I understand it, we have yet to see—certainly the people advising me on the issue have yet to receive—a rational response to their concerns, which they have passed to the Government. I shall leave it to the Minister to explain the Government’s response to my points, although I am sure that I know what it is.

First, the imprisonment sanction will have the chilling effect that the Minister mentioned in her intervention. To introduce imprisonment for investigative journalists who obtain information without the consent of the data controller who holds the data containing that information in circumstances when the journalist may be unable to establish that the obtaining was justified in the public interest is self-evidently capable of discouraging the press from actively pursuing the investigation of allegations raising matters of legitimate public interest, and accordingly is capable of having a chilling effect on press freedom.

Those concerns have not just been dreamt up in the bars of Fleet street or in the offices of lawyers who benefit from work from media companies.

In a judgment made by the European Court of Human Rights, on 17 December 2004, on the case of Cumpana v. Romania, a grand chamber of 17 judges, in the course of finding that the imprisonment of a journalist had infringed his article 10 rights on freedom of expression, stated:

“Although the Contracting States are permitted, or even obliged, by their positive obligations under Article 8 of the Convention”,

which deals with the protection of privacy, family life and so forth,

“to regulate the exercise of freedom of expression so as to ensure adequate protection by law of individuals’ reputations, they must not do so in a manner that unduly deters the media from fulfilling their role of alerting the public to apparent or suspected misuse of public power... Investigative journalists are liable to be inhibited from reporting on matters of general public interest—such as suspected irregularities in the award of public contracts to commercial entities—if they run the risk, as one of the standard sanctions imposable for unjustified attacks on the reputation of private individuals, of being sentenced to imprisonment or to a prohibition on the exercise of their profession.”

It continued:

“The chilling effect that the fear of such sanctions has on the exercise of journalistic freedom of expression is evident”.

A little while later, it said:

“Such a sanction, by its very nature, will inevitably have a chilling effect.”

In my view—I was going to say “and in the view of those who instruct me in this matter”, but hon. Members know what I mean.

Maria Eagle (Labour, Liverpool, Garston)

They are not paying you are they?

Edward Garnier (Conservative, Harborough)

No they are not. This is a public duty, which I enjoy.

In my view, it follows that the introduction of custodial sentences for section 55 offences committed by journalists is capable of interfering with their article 10 rights. Accordingly, under the consistent jurisprudence of the European Court of Human Rights, the introduction of those sanctions cannot be justified, unless there is a pressing social need and the interference is proportionate to the legitimate aim pursued. Furthermore, the reasons for introducing those sanctions must be relevant and sufficient.

The inclusion of a penalty of imprisonment within the civil liability deterrent regime has not been shown to be a necessary response to any pressing social need, or to be proportionate or otherwise justified. I said at the beginning of my remarks that there have been only 26 prosecutions under section 55 of the 1998 Act and that only two of those resulted in fines of more than £5,000. If that is correct, and on the facts as we know them, there does not seem to be a need to ratchet up the criminal regime so dramatically.

According to the Government’s response to the consultation process, or at least to the remarks from the groups that I mentioned before—the editors and so forth—they do not expect the number of prosecutions to increase if custodial sentences are made available. It must follow, therefore, that the prosecution of offences has not been discouraged by the lack of custodial sentences. Furthermore, in view of the few prosecutions that have taken place, the penalties imposed have tended to be modest fines—some in the low hundreds—even though a conviction on indictment makes an unlimited fine available.

The facts and arguments that I have presented to the Committee suggest that existing penalties are more than sufficient to deal with offences under section 55. On that basis, I urge the Government to rethink clause 75 and to consider whether their proposals are necessary and justified.

Maria Eagle (Labour, Liverpool, Garston)

I have been listening intently and shall try to deal with the points that the hon. and learned Member for Harborough made. However, it might be helpful if first I set out what we are doing in clause 75 and why.

The clause amends section 60 of the Data Protection Act 1998 to increase the penalties for offences under section 55 of the Act to allow for a period of imprisonment of six months in a magistrates court up to two years on indictment. It increases the current penalty, as the hon. and learned Gentleman said, which is limited at present to fines in either a magistrates or Crown court.

Section 55(1) and (3) of the Act provide that a person is guilty of an offence if they knowingly or recklessly, without the consent of the data controller, obtain or disclose or procure the disclosure of personal data to another person. Section 55(4) and (5) provide that a person is guilty of an offence if they sell or offer to sell personal data obtained in breach of section 55(1).

I wish to make it absolutely clear that the origin of the clause has nothing to do with trying to create a chilling effect on the legitimate activity of investigative journalism. It has nothing to do with that at all. The Information Commissioner’s report “What price privacy? The unlawful trade in confidential personal information”, which was laid before Parliament on 10 May 2006, highlighted the extent of the illegal trade in personal data and recommended custodial sentences for offences relating to its misuse, as the existing financial penalties were not sufficiently protecting individuals’ rights.

On 24 July 2006, the Government published a consultation paper “Increasing penalties for deliberate and wilful misuse of personal data”. They invited comments on proposals to increase the penalties available to include custodial sentences. The consultation closed on 30 October 2006. The majority of responses—not all of them—welcomed the introduction of custodial penalties to provide a greater deterrent to potential offenders and public reassurance that offenders would receive the appropriate sentence, and to achieve parity with several disparate pieces of legislation that deal with similar types of offence.

That is the origin of clause 75. I reiterate that the intention is not to try to undermine or chill in any way legitimate investigative journalism, nor do we wish inadvertently to cause problems in that regard. As the Committee will be aware, the clause does not create any new criminal offences. The hon. and learned Gentleman did not say that it did—I am not suggesting that he said that.

Edward Garnier (Conservative, Harborough)

You are reading the wrong paragraph.

Maria Eagle (Labour, Liverpool, Garston)

I am making it up. I am not reading any paragraph. I do sometimes read out paragraphs, but I am not doing so at present. The hon. and learned Gentleman was doing a fair amount of reading himself. I am sure that it was stuff that he had prepared earlier.

We are not creating a new criminal offence. [Interruption.] Everyone is chuntering this afternoon, Mr. O’Hara. It must be something to do with the time. In any event, I shall try to deal with some of the points that the hon. and learned Gentleman made.

We are not creating a new criminal offence. As a result of the process, we are increasing the penalty because we have been convinced that we need to do so. I do not want us to have too arcane an argument, but the hon. and learned Gentleman suggested that the defence for the civil offence under section 32 of the 1998 Act was of a higher threshold than the defence for the criminal offence under section 55. I am not convinced of that. We could debate exactly where the threshold is, but the point of much of what he was saying was bound up in that. If there are civil and criminal penalties for similar offences, one can understand why the threshold for the civil offence ought to be lower than for the criminal offence. That is common sense under our system of law.

However, sections 32 and 55 of the 1998 Act are different in numerous respects. Section 32 gives media organisations exemption from some parts of the Act that apply to them as data controllers. It exempts them from most of the data protection principles and certain other provisions of the 1998 Act if, after due regard to the public interest and freedom of expression and publication, they reasonably believe that publication is in the public interest.

Section 55, however, is not about the normal business of being a newspaper in the same way. It concerns a wilful obtaining, disclosing or procuring of information without the data controllers’ consent. The prohibitions in this section apply equally to everyone, as do the defences listed in 55(2). Section 55(2)(D) requires that the knowing or reckless obtaining, disclosing or procuring of information without the consent of the data controller to be justified in the public interest.

The purposes of those two provisions are very different. Section 32 ensures that the data protection principles do not prevent or inhibit responsible journalism, while section 55 ensures that the prohibition on the misuse of personal data does not prevent disclosures that are in the public interest. The Government do not believe that it is necessary to amend section 55 and to extend the exemption in section 32. We are not proposing to criminalise any behaviour that is not currently against the law. The section 55 offence with its public interest and other defences is a proportionate measure to deal with the risk to people’s privacy.

I accept that not everyone will agree with that. The hon. and learned Gentleman set out in great detail the reasons why he does not. Let me assure him that there is no intention to create a chilling effect, and to inhibit in any way responsible investigative journalism. Not everyone accepts that there would be a chilling effect. When the Committee on Culture, Media and Sport was considering self-regulation for the press, it looked at this provision and suggested that the penalty did not have a chilling effect, and it welcomed the amendment. There are other reasons of public policy for signalling very strongly that the obtaining and selling of public or private data is not only a breach of human rights, but a matter that causes a great deal of damage and it ought to be treated as seriously as the provision suggests.

As the hon. and learned Gentleman knows, because of his close interest in this matter, there have been meetings between newspapers and various interests who believe very strongly what he, the former Lord Chancellor, former Ministers and the Department for Constitutional Affairs put forward in respect of this. I am not saying that we will all agree, but we have considered the matter very carefully. We believe that the current clause is correct. While I am not promising to make any changes, I am perfectly happy to look very closely at what has been said today. I do not feel convinced that the hon. and learned Gentleman is right, but I will look very closely at what he has said and talk to him and the Newspaper Society further about it. However, we believe that clause 75 is the right provision. I have heard what the hon. and learned Gentleman has had to say, but I commend the clause to the Committee.

Edward Garnier (Conservative, Harborough)

I am grateful to the Minister for her explanation of her Department’s policy. May I say that the chuntering was an unnecessary intervention, and that the further chuntering was my attempt to apologise for that from a sedentary position?

There are a number of illogicalities and inconsistencies in the Government’s approach. It may be that in the rush to make laws and so forth, No. 10 is not talking to the Ministry of Justice and vice versa. [Interruption.] I interpret what the Minister of State is saying and that is not in the least bit unusual. It is interesting that the Prime Minister has said that he wants a further consultation period and an investigation or inquiry into the way in which the Freedom of Information Act and its provisions work and has asked Paul Dacre, the editor-in-chief of the Daily Mail to chair that investigation.

The Secretary of State for Justice said that the Bill raises concerns that it

“might impede legitimate investigative journalism”.—[Official Report, 25 October 2007; Vol. 465, c. 409.]

However, the clause will ratchet the penalty up. I am not talking about data thieves or blackmailers, even if part of the Minister’s response concentrated on that. I am not seeking to defend reckless, negligent or deliberately ill-motivated conduct by data processors—I would call it Her Majesty’s Revenue and Customs’ story and the Minister will doubtless hear more of it in due course because the Chancellor of the Exchequer will tell her. I want to ask her about what is in the journalist’s mind at two different times. If we look at the civil regime, we will see that it is anticipatory because the defence applies if

“the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would”—

in future—

“be in the public interest”

or, secondly, if he

“reasonably believes that, in all the circumstances, compliance with”

data protection principles

“is incompatible with the...purposes”

of journalism. We are therefore looking ahead when it comes to the civil liability regime, which allows the journalist to have some form of subjective input to his defence whereas, under the criminal regime, he has to show

“that in the particular circumstances the obtaining, disclosing or procuring was justified”—

that measure uses the imperfect tense—

“as being in the public interest”.

A proper construction of the expression

“was justified as being in the public interest”

is an object test, which the court, jury or magistrate will assess for themselves on the basis of the evidence before them and the advice they receive on the meaning of the expression “the public interest”.

Having said all that, I am grateful to the Minister for indicating that she would be prepared to read carefully the report of our discussions with her officials and the Department’s lawyers, and also for offering me the opportunity to have further meetings with the Fleet Street Lawyers’ Society. I mentioned Alastair Brett, who is the secretary of that group; he is also legal manager of The Times newspaper group, so I am talking about major media operators, not irresponsible, dodgy, fly-by-night members of the yellow press. Such people have a legitimate and responsible attitude toward both the need to protect people’s privacy and the need to take a proper interest in maintaining, and fighting hard for, the fundamental right of freedom of expression.

I shall take up the Minister’s offer and get back to those who have been in touch with me to see whether they would like to meet the Minister. Perhaps meetings can take place between now and Report, or at least before the Bill leaves this House and goes to the other place. I am reasonably sure that the clause will receive close attention in the other place, whose Members will not be under the same time constraints as us. I suspect that that will be the case because Lord Lester of Herne Hill was very busy during the deliberations on the Human Rights Act 1998 when discussing journalistic endeavour, as was my noble Friend Lord Fowler, who is both an ex-journalist and a newspaper executive. There will be plenty of interest in the clause in the other place, so it would be useful if the Minister would hold those meetings before the Bill goes there. Given those offers, which I accept with alacrity, I withdraw my resistance.

Clause 76

Vernon Coaker (Labour, Gedling)

I beg to move amendment No. 257, in clause 76, page 54, line 4, after ‘imposed’ insert

‘by a court in England and Wales’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss Government amendments Nos. 258 to 269, 278 to 284, 270 to 274, 285, 275 to 277, and 371.

Government new clause 42—Requests to other member States: Northern Ireland

Government new clause 43—Procedure on receipt of certificate by Lord Chancellor: Northern Ireland.

Government new clause 44—Modification of Magistrates’ Courts Act 1980.

Government new clause 45—Requests from other member States: Northern Ireland.

Government new clause 46—Procedure on receipt of certificate by clerk of petty sessions.

Government new clause 47—Modification of Magistrates’ Courts (Northern Ireland) Order 1981.

Government new clause 48—Transfer of certificates to central authority for Scotland.

Government new schedule 5—Penalties suitable for enforcement in England and Wales or Northern Ireland.

Vernon Coaker (Labour, Gedling)

Thank you, Mr. O’Hara. This is the first time I have had the pleasure of speaking while you are chairing the Committee, so I welcome you to the Chair. I might well be speaking for much of the rest of the sitting.

The amendments are technical, and I commend them to the Committee.

David Heath (Liberal Democrat, Somerton and Frome)

I have a brief observation to make. It is interesting that this part of the Bill, which has been introduced by a Home Office Minister, specifies that the Lord Chancellor has certain functions, whereas parts introduced by Justice Ministers specify the Secretary of State. Why was it necessary to specify the Lord Chancellor by title in this part of the Bill, but not in previous or subsequent parts?

Vernon Coaker (Labour, Gedling)

I think that it is because that is the appropriate title to use in this part of the Bill.

Clause 78

Clause 80

Schedule 16

Clause 81

Clause 83

Harry Cohen (Labour, Leyton and Wanstead)

I beg to move amendment No. 325, in clause 83, page 57, line 20, leave out ‘the public’ and insert ‘a person or specified persons’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss the following: Amendment No. 326, in clause 83, page 57, leave out lines 26 and 27 and insert

‘any specified members of the public in the United Kingdom’.

Clause stand part.

Amendment No. 327, in clause 86, page 59, line 35, leave out ‘the public’ and insert

‘a person or specified persons’.

Harry Cohen (Labour, Leyton and Wanstead)

My amendments are probing amendments, although they are a little radical. At least one of them would wipe out clauses 83 to 102, which I thought might appeal to my hon. Friend the Whip, as well as to other members of the Committee, because it would save time.

I want the Government to justify and explain how they will use violent offender orders. As with earlier amendments, I tabled these on behalf of Liberty, which has raised several concerns. It is not that I am trying to get rid of violent offender orders, but Liberty has made the case that non-molestation orders could be used as an alternative approach. However, that amendment has not been chosen for discussion, although it will be part of the package of proposals that I shall be speaking about.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman knows that I agree that the extension of non-molestation orders might prove an acceptable alternative to, or substitute for, the clause. Does he agree that it would be helpful if the Minister could say whether the Government even considered such a proposal before they drafted this new class of order, which seems to many of us superfluous?

Harry Cohen (Labour, Leyton and Wanstead)

The point has been made and I hope that, when the Government respond in the clause stand part debate, they will at least say how they view the non-molestation order.

The proposed violent offender orders continue the trend of creating civil orders, a breach of which would become a criminal offence. I share Liberty’s view that the orders could become too broad in their application and breach some of the conventions that we are rightly tied up to. Liberty also makes the point that, if the order is too broad, it is more likely to be breached. A person can get caught up in just too many things, instead of the order covering something specific so they know where they are. It said that extraordinary scope will be available for the imposition of restrictions on individual freedom under the clause.

Liberty is saying that the order is unnecessary in some ways because the Criminal Justice Act 2003 provides for anyone convicted of specified offences, punishable by more than 10 years’ imprisonment—violent offences—will be given an indefinite period of imprisonment for public protection and, once released from prison, will be on licence for a minimum of 10 more years. After that, they can apply to the Parole Board for termination of the licence, but the Parole Board might not decide to do so if it regards the person as such a risk. If it does not do so, the person would still be subject to conditions and to recall. The necessity of the orders is in question.

I should like a response from the Under-Secretary about a good point that Liberty makes about retrospection. It seems that, at least initially, the orders could be used retrospectively. Prisoners coming out of prison who were sentenced under the old system may suddenly find orders applied to them under this legislation. That would be a retrospective application of the provision. Again, that could put us in breach of our international legal obligations. Will the Under-Secretary say something about whether that is the intention? That may be justified, but I am not entering the argument on that point: I am just saying that there are problems with retrospection, if that is what is intended.

Liberty says that the provision raises the possibility of the order being applied for at any time and thinks it more appropriate for there to be a window of time, particularly when a licence is coming under review. That is the time for the orders to be applied for, if they are going to be in place at all. There should not be an open-ended approach, meaning that they could be applied for at any time.

Liberty also says that the danger with the orders lies in a risk assessment taking place that identifies someone as being a “risk of serious harm”, without needing to identify a particular person or persons that they are a risk to. That is where the non-molestation orders would come into play, because they would specify the individual. However, the provision becomes too broad, in Liberty’s view, when it relates to risk to the public.

I have mentioned Liberty’s main points as succinctly as I can. There are questions on this set of clauses for the Under-Secretary to respond to.

David Burrowes (Conservative, Enfield, Southgate)

I shall also speak to clause stand part. I endorse the comments of the hon. Member for Leyton and Wanstead, particularly in relation to seeking vainly, on one hand, to restrict the breadth of the order, while on the other hand—although a particular amendment was not selected—seeking to remove it completely from the Bill. On both those counts, I endorse his approach.

On 20 April 2006, the then Home Secretary indicated that there was a strong case for the introduction of violent offender orders along the same lines that have proved effective for sex offenders. The issue is primarily whether that strong case exists. Certainly, a long and extended family of civil orders is being built up, whether they be banning orders, ASBOs, sex offender prevention orders, foreign travel orders, risk of sexual harm orders or control orders. Indeed, it may be more appropriate to follow the title of the Home Office review with a rebalancing the criminal justice system in favour of the law-abiding majority order. Perhaps that would be the best way of grouping everything.

The key question is whether the provision is needed. The hon. Members for Leyton and Wanstead and for Somerton and Frome, made the point that there are public protection offences on the statute book: the Criminal Justice Act 2003, the non-molestation orders in the Family Law Act 1996 and the Domestic Violence, Crime and Victims Act 2004 all contain elements of public protection.

Many respondents to the Government’s review were sceptical about the need to legislate, but how do the Government aim to deal with the perceived problem? Their response appears to be inconsistent. On the one hand, they say that there remain gaps into which some offenders may fall. The Government say:

“For example, some may have been convicted of a schedule 15 offence before April 2005 and therefore not eligible for the public protection sentences. Others may not have been assessed as sufficiently dangerous at conviction, but their risk has increased since that time.”

I therefore invite the Minister to state clearly how many people fall into the gap that needs to be plugged. The indication is that as a result of the provision, there would be some 100 orders each year. Of those 100 in the gap, how many would not have been party to the conviction rate before April 2005?

Further on, the Government’s response suggests that there is a gap in public protection sentences. It talks the language of a sentence—indeed, of a punitive sanction and a criminal sentence. However, further on, it makes it clear that

“a Violent Offender Order is not a punishment but a civil preventative measure.”

It continues:

“The VOO is not imposed as an additional punishment for a Schedule 15 offence,”

despite the Government saying that they needed to plug the gap in public protection sentences. Even at the early stage of their response to the public consultation, there appears to be inconsistency about the nature of the order, which perhaps is inherent when one seeks to bring in a civil order in a quasi-criminal manner.

The clause mirrors other civil orders. Indeed, one could enter the debate during the passage of the Serious Crime Act 2007 into the record, sit down and carry on. That would be an easy but perhaps too brief way of doing it, and we would not go to the depths and lengths to which my hon. Friends, with great consideration, dealt with that Act.

I highlight three points. The hon. Member for Leyton and Wanstead made the point about the order applying at any time. The concern is that the order will be applied for, not at the conclusion of the sentence, when it has had its true effect, in order to determine whether there is a continuing public risk at the appropriate time, but at any time. The court will be able to determine the issue before the sentence has had an effect, which suggests that the violent offender order will at best add unnecessarily to a criminal sanction, and at worse circumvent and undermine the criminal justice process. That process is the crucial part of the order, and the one that raises most concerns.

The Minister will no doubt want to emphasise time and again that the provision is preventive not punitive, but subsection 1(a) states that the order

“contains such prohibitions, restrictions or conditions as the court making the order considers necessary.”

The conditions and examples of those prohibitions, restrictions or requirements were made explicit in the 2007 Act, so will the Minister explain why they are not made explicit in the violent offender order aspect of this Bill? Those requirements could affect an individual’s working arrangements, communication and association with others, access to and use of certain premises, travel, financial property, and business dealings or holdings. The liberty of such an offender could be circumscribed.

I do not want to go into too much detail about the preventive and punitive elements of the debate, but perhaps the orders could be made in line with community orders, which can contain preventive and punitive elements, but which are nevertheless dealt with in the criminal courts and with appropriate burdens of proof. No doubt we will return to that matter during our discussions on amendments Nos. 364 and 365 when we can debate the appropriate burden of proof—whether it is a civil or criminal burden.

Key to the process are the length of orders, which have no time limit that could be renewed indefinitely, and the resources needed to make such an order effective. It has been indicated that the police will be responsible for applying for, monitoring and enforcing an order. That will place a burden upon the police’s existing activities. Will the Minister confirm whether existing resources will be made available to deal with the effectiveness of such orders?

The bottom line is that there is no convincing evidence that the orders are necessary. Certainly some violent offenders are prevalent after sentencing and the public need protecting from them. However, the focus should be on ensuring that the criminal sanctions and sentences are effective and that the public are fully protected, rather than on establishing new legislative processes that blur the distinctions between the civil and criminal fields and between fundamental rights.

David Heath (Liberal Democrat, Somerton and Frome)

I shall be brief because the hon. Members for Leyton and Wanstead and for Enfield, Southgate have covered most of the points that I wished to raise.

Liberal Democrat Members have had long-term anxieties about the proliferation of injunctions against future offending. This is just the latest example of the way in which increasingly the Government see such injunctions as a means of reducing offending without having recourse to the criminal courts. It is hard to see their justification, because other measures are available. I repeat my request to the Minister concerning new clause 52, which was not selected for debate, but it is relevant to the clause stand part debate because it would provide an alternative way in which to address a problem identified—presumably—by the Government. However, it would do so by using existing laws and by extending provisions that are already on the statute book, and without increasing—yet again—the number of effectively non-criminal sanctions available for dealing with criminal behaviour, which is what most concerns us. Has the Minister considered that option, or indeed any other options? What is the distinctive nature of the new orders that makes them preferable to alternative disposals, available through existing practice or the courts, when dealing with those who break the law? What is wrong with the old-fashioned method of indicting them and letting a jury and a court determine the correct disposal?

Vernon Coaker (Labour, Gedling)

I thank the Committee for continuing with the constructive way in which it deliberated the Bill this morning. From the start, I accept that there is a difference between the Government and the hon. Members for Somerton and Frome and for Enfield, Southgate. I do not try to minimise it. All I want to do is to put the Government’s case and the alternative point of view in respect of the use of civil orders. I preface my comments with that because there is a very real difference—I understand that—but it is important to make the case again for the use of civil orders, notwithstanding the difference between us.

If we consider the use of civil orders—antisocial behaviour orders are the ones most often referred to—I think that generally speaking they have been successful. In fact, the cry about the use of civil orders in my and other people’s constituencies is not that we should not have them because they are civil orders but that they want more of them. They do not argue about whether antisocial behaviour orders are civil or criminal orders. They just see them as a useful way to control antisocial behaviour.

Similarly, football banning orders have been hugely successful in controlling behaviour, and they are civil orders. Sexual offences prevention orders—again, very successful—control sex offenders. Civil orders make a real difference to preventing harm in our communities and, therefore, to protecting the public.

The hon. Member for Enfield, Southgate mentioned again the debate that we had on the Serious Crime Act 2007. If people read it, they will find that it, too, involved a clash of views, opinions and deeply held beliefs. None the less, views and opinions were logically argued and, in the end, tested with a vote. People disagreed. The serious crime prevention orders that were passed during that Bill are another example of a civil order that we think will prevent crime.

The hon. Gentleman says, “The Minister will no doubt say that the orders are not punishments for past offences but preventive measures.” Of course that is the case that I will make. We are not saying that somebody who is a qualifying offender should be punished again for an offence that they committed. We are saying that if the chief police officer thinks that by going to the court he can prevent harm that may occur in the future, either to an individual—I shall come to the points made by my hon. Friend the Member for Leyton and Wanstead and the hon. Member for Somerton and Frome—or to the public, making this measure available to the courts, where there is a right of appeal, will be of benefit to the community.

In answer to the hon. Member for Enfield, Southgate, we expect about 100 such orders a year. We are not sure exactly what the breakdown of the orders is, but that is our best estimate at present.

Edward Garnier (Conservative, Harborough)

Subsection (3) sets out the specified offences: manslaughter, offences under the Offences against the Person Act 1861, wounding with intent to cause grievous bodily harm, malicious wounding and attempted murder. If the Minister does not think that those offences either under common law or under statute are not sufficient to prevent people from committing those crimes, why does he think that the imposition of a violent offender order will have any more effect?

Vernon Coaker (Labour, Gedling)

The argument is that the specified offences laid out in subsection (3) are the offences for the purposes of the order. People will have been punished for those offences through the criminal justice system. They will have been given prison sentences and perhaps allowed out on licence at the end of their prison sentences, depending on what happened. To qualify, the offender must have committed one of the specified offences, but this is not about punishing those offenders. Of course, it is about deterring people from committing such crimes, but the orders are for people who, in the eyes of the court, still pose a risk to others when the various punishments that they have been given for committing those offences have finished. The hon. and learned Gentleman will know that violent offender orders cannot be enforced while offenders are subject to a punishment imposed by a court. I reiterate that these offenders will already have been punished for committing a specified offence; the measures are about preventing future harm.

Edward Garnier (Conservative, Harborough)

It is probably entirely my fault, but I do not think that the Minister quite understood my question. Let us assume, as we must, that the specified offender has committed a specified offence in the past. On that basis, he is brought within the remit of the violent offender order system, and the court, if it is satisfied that it should do so, can impose certain restrictions on his movement and with whom he may associate. If he is sufficiently careless or mindless of the law, or knowledgeable about the law and prepared to breach it, to the extent that he will commit a specified offence, and has in the past, why do the Government think that he will pay the slightest attention to a violent offender order that seeks to prevent him from going to a particular address or associating with certain people?

If someone is minded to commit one of the serious offences in subsection (3), he will not be bothered by a violent offender order. The Government will fill our prisons with people who have breached these orders, as has happened with ASBOs. A great many people have been sent to prison for up to five years for breaching ASBOs, not because they fall under the categories in subsection (3), but because they are mentally ill, alcoholics or substance abusers. Such people have social or other issues that need to be dealt with, but not necessarily by a term of imprisonment. That is a different issue, but the same principle applies.

Vernon Coaker (Labour, Gedling)

I did understand the hon. and learned Gentleman’s point, and apologise if I did not answer it particularly well. I thought that I was explaining that the court would make a judgment on whether making someone who has been found guilty of a specified offence subject to an order under subsection (1) would prevent future harm and protect the public. That is why we have made the breach of such an order a criminal offence. If someone breaches a violent offender order, they could be subject to a term of imprisonment of up to five years.

I suggest that whether or not someone has been found guilty of a specified offence, if a court told them that they could not associate with certain people or go to a certain place because the court believed that they might cause harm to an individual or others, they would take note of that order if they were threatened with imprisonment if they did not. I take the hon. and learned Gentleman’s point about filling up the prisons, however. We think that a small number—about 100 people—might breach orders and be subject to a term of imprisonment, but that is a price worth paying to protect the public from certain individuals.

On the point made by my hon. Friend the Member for Leyton and Wanstead, the conditions linked to a violent offender order will always be linked with the specific risk posed by the individual. They will be a matter for the courts to determine, and of course they will need to be proportionate as the court will have to act in a way that is consistent with the Human Rights Act. The procedure will be exactly the same as that which operates for a whole range of other civil orders that the Government have introduced, whether antisocial behaviour orders or others.

The problem with just using non-molestation orders instead of violent offender orders would be that they can be used only to protect named individuals or individuals known to the person in question. Non-molestation orders may therefore not be able to protect individuals not known to the person subject to the order. Of course, non-molestation orders do not apply to the public. A person who is made the subject of a violent offender order will be someone who is believed to be a danger to the public. In that respect, a non-molestation order would not be appropriate and could not be used. I loved what my hon. Friend the Member for Leyton and Wanstead said—it was a bit of a radical proposal. I think that it was the nuclear option. He wanted the whole of part 8 struck out of the Bill.

Violent offender orders are intended to build on and complement other public protection measures, including determinate extended and indeterminate sentences, which were introduced in the Criminal Justice Act 2003. Whereas those measures are applied at the point of sentencing, the principal aim of the violent offender order is to protect the public from the most dangerous violent offenders who still present a risk of serious, violent harm at the end of their sentences, when there is no other risk management mechanism in place. We are introducing the orders to manage the risk of the most serious violent offenders, who fall into three main categories: individuals who were sentenced for a serious violent offence prior to the introduction of public protection measures in April 2005; individuals whose risk level was not considered high enough to warrant an indeterminate or extended sentence at the point of conviction, but who are now deemed to be at risk of causing serious violent harm, and individuals whose determinate extended or indeterminate sentences for a qualifying offence has expired but whose behaviour has come to the attention of the police as being high-risk. By closing those current gaps in supervision, violent offender orders will be an essential risk management tool in addition to existing public protection measures.

David Burrowes (Conservative, Enfield, Southgate)

The Minister refers to gaps in supervision. Is it not true that the genesis of the violent offender order was the tragic John Monckton case, which caused great concern across the House and among the general public? The response to that was the initiative of the order. Is not the gap in supervision the result of a gap not in legislation but in the resources going to the probation service to enable the proper face-to-face supervision that the public and victims should ordinarily get through a sentence imposed by a court? Should not the focus be on proper supervision, licence provision and the like in sentencing, rather than on extra legislation?

Vernon Coaker (Labour, Gedling)

I have tried to make the point that violent offender orders are supposed to be used where there is no other supervisory arrangement available. They are to fill that gap——for when somebody has finished their sentence, licence conditions are over and there is nothing else left with which to supervise or look after somebody. There will be a violent offender order when a chief police officer believes that an individual poses a risk, and takes the matter to the court. It will be when everything else has finished and there is nothing else left. There may be some people who are convicted offenders, who have committed specific offences and who have acted in a way that suggests that they may pose a danger to other individuals or to the public. This provision fills that gap and that is why we have introduced these violent offender orders.

David Burrowes (Conservative, Enfield, Southgate)

I hear the point that it is about when supervision has ended, but is not the issue less about the fact that the supervision period has ended than that the quality of supervision is lacking? We need to look at how, within the time available, we can have higher-quality and properly carried out supervision. That brings us back to the Monckton case where that supervision was identified as lacking. We need to deal with that gap, rather than saying that the time has ended for licensed supervision, and moving on to another order.

Vernon Coaker (Labour, Gedling)

That is a reasonable point—we must ensure that any supervisory arrangements that are in place for somebody who poses a risk are of high quality. It is a fair point, and one that we are all determined to improve on. However, when the period of licensed supervision is over, there is a gap. Therefore, whatever the quality of supervision—and one would hope that it would be such that in future there will be fewer people who pose a risk when it is finished—there still may be a problem with some individuals. The violent offender order is designed to fill that gap. I take the hon. Gentleman’s point, but it does not mean that violent offender orders are not necessary in any circumstances.

We have consulted a wide range of stakeholders in drafting the provisions and violent offender orders have received broad support. They are intended to protect the general public, or any particular member of the public, from the risk of serious physical or psychological harm caused by an individual committing one or more specified serious offences. The orders will be made on the basis of an up-to-date assessment of risk at the end of an individual’s sentence. Violent offender orders will enable the court to impose negative requirements, such as prohibitions, restrictions or conditions. The conditions of an order will be determined on the basis of risk, and imposed only when a court is satisfied that they are necessary to manage the behaviour of an individual in order to protect the public from the risk of serious violent harm. A violent offender order will be effective for at least two years, unless it is deemed appropriate to renew or discharge it before this time.

I repeat that I do not believe that non-molestation orders are an adequate substitute for violent offender orders. Non-molestation orders can be made by courts to protect an individual from molestation by a known person. That person must essentially be within the family sphere. The individual requiring protection will always be connected to the offender, for example a current or former spouse, cohabitant or relative child. The key point is that non-molestation orders must be used specifically to protect named persons. Currently, they can only be only be applied for by the person that is at risk of harm or on their behalf by a person who is associated with the offender. My hon. Friend the Member for Leyton and Wanstead suggests that a chief police officer should be able to apply to court for a non-molestation order for the benefit of an individual. There are undoubtedly wider benefits to such an amendment, particularly as it would mean that additional protection could be granted to individuals who are either unwilling or unable to apply for a non-molestation order themselves—for example, when an individual is too afraid to apply for an order.

I say to my hon. Friend the Member for Leyton and Wanstead and the hon. Member for Somerton and Frome that while the non-molestation order is not something that could be used instead of a violent offender order, the point made by the hon. Member for Somerton and Frome about others being able to apply for non-molestation orders is an idea that could be explored further. It is an extremely valid point and something that I am willing to look at to see how it could be taken forward.

The purpose of the violent offender order is to provide a means of continuously protecting the public from the most dangerous violent offenders who still present a high risk at the end of their sentence. It would be used when there are no other means for public protection authorities to manage that risk.

David Burrowes (Conservative, Enfield, Southgate)

The Minister says that breaches of the order would lead to some 20 additional prison places being required, but the National Association of Probation Officers estimates that around 3,000 additional places will be required in any one year. There is a big difference between 20 and 3,000, so is not an independent assessment of the provisions necessary to clarify accurately the potential increase in the prison population to provide confidence that there is capacity to deal with violent offender orders? The point also relates generally to other parts of the Bill.

Vernon Coaker (Labour, Gedling)

There is a huge discrepancy, as the hon. Gentleman said. We used the template of sexual offences prevention orders to guide us, and we made the best estimate. The idea is not for someone to breach the orders. They are preventive orders and I do not believe that many people will breach them, but we must have a sanction. We have used our best estimate and other civil orders to guide us. We estimate that 100 such orders might be made, requiring approximately 20 prison places. We will continue to keep the matter under review.

I have told my hon. Friend the Member for Leyton and Wanstead and the hon. Member for Somerton and Frome that I want to look at the idea of who can apply for non-molestation orders, and I hope that my hon. Friend will withdraw his amendment.

Harry Cohen (Labour, Leyton and Wanstead)

Notwithstanding the nuclear nature of one of the amendments, they are probing amendments, and provided an opportunity to discuss violent offender orders and their implications. I am grateful to the Minister for his explanation. I am also grateful to the Minister for agreeing to explore the possibility of extending non-molestation orders and who can apply for them. I am pleased that he picked up that point. I noted that the Minister said that the provisions of the order imposed will be specific and proportionate. That will fall to the authorities, and it is important that they take that on board.

Vernon Coaker (Labour, Gedling)

Obviously, we intend to issue guidance on clause 83(1)(a), and it will make it clear that the orders must be proportionate. My other point is that the courts must act in a way that is consistent with human rights legislation.

Harry Cohen (Labour, Leyton and Wanstead)

I appreciate that as well. I beg to ask leave to withdraw the amendment.

Clause 84

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 352, in clause 84, page 57, line 39, after ‘person’, insert ‘aged 18 years or above’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to take Government amendments Nos. 212 and 239, and Government new clause 37—Review of violent offender orders in respect of young offenders .

David Heath (Liberal Democrat, Somerton and Frome)

We are back to the issue of how we apply the various criminal sanctions to those who are under 18, as opposed to those who are 18 and over, and whether a difference should apply now. I feel that perhaps I am pushing a slightly open door because I have looked carefully at the Government’s amendments, which spend 50 or 60 lines moving in the direction of my simple amendment consisting of five words. Perhaps there is an element of doubt in the mind of the Minister as to whether it is appropriate to apply violent offender orders to those who are under 18 at the time of the implementation of the order. I emphasise that point because there will be some young people who have served a sentence for a violent offence, who would be subject to a qualifying offence but will have passed their 18th birthday by the time they can receive an order. I will state very quickly why it would be sensible to make the limitation.

The first point is the general case, which we have explored several times in the Committee, that there should be a different penal system for young people from that which applies to adults. The second point is about the number of people who are under 18 to whom violent offender orders would apply. In a moment I will ask the Minister to justify the existence of these orders, particularly with the further restrictions that he is proposing through the amendments, but I am advised by the Standing Committee for Youth Justice, which has done some work on this regarding criminal statistics, that well under 1,000 young people commit a range of offences that are eligible for VOOs. Of those, only a few dozen receive a qualifying sentence—one of 12 months or more. Of those few dozen, very few will not be over 18 by the time they are released, so the measure will apply to very few individuals, unless we get the sort of inflation that there has been in the world of ASBOs. It is a shame that the right hon. Member for Cardiff, South and Penarth is not with us because he would have a lot to tell us about ASBOs and how they were never intended to apply to young people. Perhaps that is why he has been allowed a leave of absence for this afternoon’s sitting; the fact that he is unavailable to make that speech has reduced our proceedings considerably. I will presume to make the point for him, as it is one that he has made forcefully on a number of occasions.

The next point is whether a violent offender order is likely to be either appropriate or effective in the case of a young person. I accept that within the orders there are positives as well as prohibitions, and therefore there are some aspects that could be seen as of value to a young person. Having said that, there are other ways of achieving those objectives without applying a violent offender order as a mechanism.

Finally, we already have a different way of managing young people on release if they represent a risk to others. We have reporting requirements that are more stringent for young people than for adults, and we have youth offending teams, which the Government always seem to forget until they bring back a proposal and then are reminded that such teams exist—perhaps they should listen to what they have to say in respect of young people. Such teams were the invention of this Government and their role is to assess the risk of serious harm and to develop a risk management plan. That is exactly the area in which the violent offender orders are intended to work. If the risk is really serious, we are talking about multi-agency public protection arrangements as well. They are a much more stringent regime than anything that a violent offender order is likely to offer.

Whatever the justification for violent offender orders in respect of adults, it is thus hard to substantiate a case for applying them to a person under the age of 18. It is hard to read the Government’s amendments without forming the view that they have reached the same conclusion. New clause 37 sets out a long list of requirements for under-18s. Government amendment No. 212 will introduce the need to consult youth offending teams. Quite honestly, if all the Government amendments are necessary, would it not be better to say that the violent offender order does not apply to young people and that we use the youth offending teams and multi-agency public protection arrangements in the case of more serious risk? In other cases we use the apparatus that the Government have put in place, which has not been deficient in this specific area and which will do the job extremely well. I look forward to hearing the Minister’s convoluted way of justifying something that is very hard to justify.

David Burrowes (Conservative, Enfield, Southgate)

I endorse many of the comments made by the hon. Member for Somerton and Frome. The convoluted way in which the Government have sought to deal with young offenders might be a response to the amendment that he tabled. It also illustrates the problems inherent within the violent offender orders. The more they try to deal with offenders who need special consideration, the more one sees that they have problems. That seems to be highlighted by the new clause and the way in which it will deal with those who are under 18, and those who are under 17 when the orders are made, and the complications that arise. I will be interested to hear the Minister’s response to amendment No. 352 and his justification for the new clause. Although it might improve the situation, it could raise more questions than answers about the need for offender orders in the first place.

Vernon Coaker (Labour, Gedling)

Just because ideas are proposed by other hon. Members, it does not mean that I will reject them—that is one of the things that I try to bring to Committees. There are issues about under-18s that need to be considered. I do not believe that anyone here wants to criminalise young people. In fact, in our earlier proceedings, my right hon. Friend the Minister of State spent a considerable amount of time debating that whole issue. Without digressing too far, because I will speak to the amendments about the application of violent offender orders to under-18s, we need to consider how we deal with young offenders. There is a real dilemma here. The Government have introduced all sorts of measures to try to ensure that we keep young people out of prison—or out of the criminal justice system—as far as we can. When addressing the small number of people who may cause a problem—I shall mention the numbers in a minute—it is incumbent on us to ensure that we protect communities. That is something to reflect on.

I shall put this thought into the minds of Committee members, including the hon. Members for Enfield, Southgate and for Somerton and Frome: there are some quite dangerous, violent young people under 18—I am not saying that hon. Members would disagree with that—and many of their victims are not 70-year-old pensioners, although that is what people believe from reading the newspapers, but other young people who are under 18. That is a huge dilemma. That is part of what this discussion and debate are about. Although we do not want to criminalise young people and make them subject to violent offender orders, it is because of our desire not to do so that we need to ensure that we have in place processes, procedures, a criminal justice system, and other civil orders, that protect other young people.

There is a difficult balance to strike and this is a difficult debate. I do not for one moment suggest that either of the hon. Gentlemen who have spoken want to put other young people in danger, but there is tension and difficulty here. Although we do not want many young people to be subject to violent offender orders, our view is that, for a very small number, those orders should be available to the courts.

To give a specific answer to the question that the hon. Member for Somerton and Frome asked, we estimate that the number is 20. That estimate in respect of such people for whom violent offender orders may be appropriate came from the Youth Justice Board, which also advised us that the figure could be less than 20. I hope that that answers the hon. Gentleman’s specific point about the numbers.

On the amendment tabled by the hon. Members for Somerton and Frome and for Cambridge—and, indeed, the Government amendments—we have considered in detail whether violent offender orders should apply to young people. That matter was specifically raised as part of the Government’s consultation on the orders earlier this year. This is a difficult issue that none of us likes to contemplate. The Committee will be aware that the primary aim of violent offender orders is to protect the public from the most serious violent offenders, a small number of whom, unfortunately, will inevitably be under 18. We therefore believe that violent offender orders must apply to both adults and young people.

More than 70 per cent. of respondents to the consultation, including the Crown Prosecution Service, the Association of Chief Police Officers, the Police Federation, Her Majesty’s inspectorate of probation and the Association of District Judges, agreed that violent offender orders should be applied to young people in some way. We have no wish to apply new interventions such as violent offender orders to young people without due thought and consideration about their appropriateness. Because of that, and in recognition of the dynamic nature of risk and risk management in respect of young people, we have been working closely with the Youth Justice Board to develop the appropriate, effective procedures and practices for the application of violent offender orders to young people that are set out in the Government amendments. We are trying to reflect some of the issues that the hon. Member for Somerton and Frome has raised. The provisions will not go as far as he wants, but they will hopefully include some safeguards.

Government amendment No. 212 will require the chief police officer to consult a member of a youth offending team prior to making an application for a violent offender order in respect of an individual under 18 to ensure that an order is necessary and appropriate. A youth offending team would already have been managing the young person following their serious offence and throughout their time in custody. That team’s advice on whether an order would be necessary or appropriate would be based on its extensive knowledge of the individual, including their offending history, family, accommodation, education, health, and needs with regard to substance misuse. It will also know what work has gone on with the young person to tackle their violent behaviour during the course of their sentence. It is important that all that information is taken into account when deciding whether to apply for a violent offender order for a young person.

Government amendment No. 239 will amend section 38 of the Crime and Disorder Act 1998 to enable youth offending teams to provide support to individuals below the age of 18 who are subject to such an order or interim order. Section 38(1) of the Act places a statutory duty on local authorities to make specified youth justice services available in the local area. The amendment adds to that list of specified youth justice services and requires the youth offending team to co-ordinate the provision of support for children and young people subject to an order or interim order.

I have already explained how a youth offending team manages a young person following their serious offence and throughout their time in custody, and how it will have built up an extensive knowledge of that young person. Inevitably there will be instances when a young person refuses that support. We cannot, of course, compel a young person to accept an offer of support, but none the less we feel that it should be made available in all cases.

We are currently working with the Youth Justice Board to consider the types of support packages that could be offered to individuals.

Sally Keeble (Labour, Northampton North)

Will my hon. Friend tell us what attention is being paid to ensuring that the youth offending teams are adequately staffed? Some have mentioned the considerable pressures in dealing with their current work loads. How will that work in practice?

Vernon Coaker (Labour, Gedling)

We are talking to the Youth Justice Board about how to ensure that those subject to violent offender orders can be properly managed by the youth offending teams using the resources available to them. We do not think that that will involve a huge number of young people, but I take the point that many of them will be quite resource intensive. We are discussing that with the board, however, to ensure that adequate resources are available.

Finally, new clause 37 introduces mandatory annual reviews of violent offender orders for individuals below the age of 17, which will help to ensure that orders made in respect of young people apply only for as long as the risk posed by them is assessed as sufficiently high to warrant it. That mirrors annual reviews for antisocial behaviour orders for individuals below the age of 18, which are being introduced by this Bill. A review will take place every 12 months after a violent offender order, or interim violent offender order, has been made, or was last varied or renewed, provided that the young person is still under 18.

I take to heart the points made about under-18s. We do not want them made subject to violent offender orders, but believe that that will be appropriate for a small number. We have tried, through the Government amendments, to take into account the concerns of people such as the hon. Members for Somerton and Frome and for Enfield, Southgate. We have tried to introduce into the Bill various safeguards that we hope go some way towards meeting those concerns while also ensuring that we do what we can to protect the public. With those remarks, I hope that the hon. Member for Somerton and Frome will withdraw the amendment.

David Heath (Liberal Democrat, Somerton and Frome)

It is difficult to pick a fight with the Minister. He presents himself extremely reasonably. I think that the Government amendments are a clear admission of the fact that the provision is unnecessary and that other routes are available. The case is self-evident. Having said that, my amendment would change the terms of the orders—admittedly in a very longwinded and complex way—and address a lot of my points. I shall reflect on whether there are circumstances for the fewer than 20 young people—so we are told—in which the violent offender order takes us any further than the existing reporting structures, risk assessments and the rest of the panoply associated with a youth offending team’s management of a case and the MAPPA restrictions. If it is clear that the order makes a significant difference to even a few, I shall not return to the issue on Report.

I shall reconsider the issue, and reconsider very carefully the amendments, which I shall not oppose, because they represent movement in the right direction. However, if I feel that the case has still not been made, I shall return to the matter because I feel very strongly that we must be very careful indeed when applying yet more criminal law to young people—even when they are pretty horrible young people who commit serious offences and from whom the public need protection. Having said that, I beg to ask leave to withdraw the amendment.

Clause 85

David Burrowes (Conservative, Enfield, Southgate)

The Justices’ Clerks Society has made a point about violent offender order applications and the police being the office holders who make the complaint to the magistrates court. I asked whether it would be more appropriate for the Crown Prosecution Service, which is independent of the investigation, to make the complaint, and that is my question to the Minister.

Vernon Coaker (Labour, Gedling)

We have used the procedures and processes for antisocial behaviour orders because we feel that they are appropriate for the violent offender orders. The chief police officer is the best person to make the judgment, because their liaison with all the statutory agencies will be greater than that of the Crown Prosecution Service. In that sense, the chief of police will be the most appropriate individual.

Clause 86

David Burrowes (Conservative, Enfield, Southgate)

I beg to move amendment No. 364, in clause 86, page 59, line 29, after ‘satisfied’, insert ‘beyond reasonable doubt’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss amendment No. 365, in clause 88, page 61, line 8, after ‘satisfied’, insert ‘beyond reasonable doubt’.

David Burrowes (Conservative, Enfield, Southgate)

The amendments raise an issue that has been debated before on the Floor of the House and in Committee at some length. I do not propose to take all that long—I shall highlight the salient and significant issues that we must consider. No doubt the other place will want to consider them in some depth.

Amendments Nos. 364 and 365 deal with the burden of proof to secure a violent offender order and an interim violent offender order. The amendments raise the problem of the burden of proof of a civil order.

Vernon Coaker (Labour, Gedling)

Standard of proof.

David Burrowes (Conservative, Enfield, Southgate)

Standard of proof, sorry. I am grateful for that intervention.

Vernon Coaker (Labour, Gedling)

I am always pleased to help with legal phraseology.

David Burrowes (Conservative, Enfield, Southgate)

The Minister is using again the joke that he made during the passage of the Serious Crime Act 2007. No doubt he will want to use it again as we examine the legal niceties of the standard of proof.

To try to help the Minister curtail his response, I can tell him that I know that he will say that it is unnecessary to state explicitly in the Bill that the standard of proof should be “beyond reasonable doubt”, and that there is a sliding scale of burden of proof dependent on facts and criminality. We might well wish to consider the case of McCann, in which consideration was given to the burden of proof in relation to antisocial behaviour orders, because it is relevant.

It is important to incorporate in legislation the required standard of proof. We need to clarify that burden so that, when lawyers and others come to practise it and courts consider making an order, they know clearly where the House is coming from. That is important for a number of reasons. Violent offender orders will have a significant impact on individuals’ liberty, not least when one considers the penalties available for a breach of the order: in a magistrates court, a 12-month sentence of imprisonment or the statutory maximum fine; or, on indictment in the Crown court, a maximum of five years, a fine, or both.

We must consider whether there is a need to state the proof needed in the Bill, or whether we can leave the matter to a sliding scale that will be subject to various vagaries. The concern is the time available for the order. It is a minimum of two years. How long will an order last? One sees that it will be renewable indefinitely. That must lead us to be cautious about going down the route of civil law by way of a quasi-criminal remedy.

There is concern that the courts might seek to use the balance of probabilities as their level of proof. They might consider whether it is more likely than not that it is necessary to protect the public from the risk of serious violent harm. That is important, because the definition of the purposes of the order in clause 83(2) is wide. We need as much clarity in the Bill as possible. No new offence may be committed after the appropriate date, and we need greater clarity, given the consequences of any breach.

When delivering the McCann judgment on the standard of proof upon which both sides of the argument may wish to rely, Lord Steyn said:

“in my view pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard.”

That was section 1 of the Crime and Disorder Act 1998, under which ASBOs can be made. That was echoed by others, notably Lord Hope, who said:

“I would hold that the standard of proof that ought to be applied in these cases to allegations about the defendant’s conduct is the criminal standard.”

We need properly to recognise those judgments, not least because of the seriousness of violent offender orders. There are significant restrictions that are not necessarily explicit in the Bill, but will have an impact on an individual’s liberty. It is important to reflect that properly and to achieve clarity, not only because of the seriousness of the orders and the impact of a civil order being a quasi-criminal remedy, but because of the general way in which the Bill deals with assessments.

Liberty has registered its concern about the process leading to the making of an order. An order will be made following an assessment by a court of whether the risk posed by an offender justifies an order to protect the public. Liberty argues that it will be based primarily on a psychological evaluation, rather than on proof of particular behaviour. The concern is that there should be greater clarity regarding the standard of proof. Given the seriousness of the order and its impact on the individual, that should properly be done by following the McCann judgment in the Bill and having a standard of “beyond reasonable doubt”, which the amendment would achieve.

David Heath (Liberal Democrat, Somerton and Frome)

I entirely associate myself with the comments of the hon. Member for Enfield, Southgate on amendment No. 364. We should have an appropriate burden of proof for the orders, which are effectively taking the place of criminal proceedings in a preventive way. They are something akin to a criminal injunction. The insertion of the words “beyond reasonable doubt” after “satisfied” would mean that the court would have to take proper cognisance of the evidence of propensity because that would be nothing more than propensity—there would be no evidence of wrongdoing, other than previous behaviour. As the courts are being asked to determine propensity, the condition needs to be in place.

I have more problems with amendment No. 365, which I should like to examine for a moment, if I may. Please advise me, Mr. O’Hara, if I stray too far into matters that should be discussed in the stand part debate on clause 88.

Edward O'Hara (Labour, Knowsley South)

Order. Should that happen, I shall rule that we should move formally to the clause stand part debate. Do not feel constrained.

David Heath (Liberal Democrat, Somerton and Frome)

I am most grateful, because it is quite difficult to dissociate the two issues. Amendment No. 365 would also insert the words “beyond reasonable doubt” into a clause. The consequence of that change would be that a court would have to be satisfied beyond reasonable doubt that a person to whom an application related was a qualifying offender, but that is rather simple to establish beyond reasonable doubt. Given that the qualification is simply whether they have previously been convicted of a qualifying offence, it is almost a redundant issue. However, I understand the intention behind the amendment.

It worries me that the more one looks at clause 88, the more one realises that interim violent offender orders are not even to be based on any proof of propensity, as far as the courts are concerned, let alone an actual offence having been committed. Applications are to be made purely on the basis of previous convictions, and the court is asked simply to consider whether it is just to grant an order. It is interesting to consider under what circumstances a court would consider it just to do so, in the absence of any other consideration.

So, the court is asked to do two things: to establish whether the relevant person is a qualifying offender, and whether it is just to grant an interim order. I am concerned that although the interim orders have effect for

“not more than 4 weeks”,

they may be renewed on “one or more occasions”. So, in the absence of a substantive order being made, there could be a running interim order, which could produce the same effects as a full order, being renewed over several weeks, months or even years if the courts were so minded, although I do not believe that they would be.

My reason for putting the matter forward is because, although I entirely supported the initial premise of the hon. Member for Enfield, the more that I see how it would be applied to clause 88, the more I feel that there is something more inherently wrong with the interim violent offender order clause, even above and beyond what we have already debated in respect of the general violent offender orders. It is hard to see how the court will assess the justice provision within the clause in a way that is consistent with justice.

Edward Garnier (Conservative, Harborough)

This is a genuine unprovoked intervention, not least because my hon. Friend the Member for Enfield, Southgate dealt fully with the issue. However, the matters raised by the hon. Member for Somerton and Frome lead me to mention again the concerns that I expressed about another aspect of the Bill. We are considering interim injunctions. The applicant says to the court, “While we get our evidence completely in order—and we have material to satisfy the court that this man will, unless he is constrained by various conditions, probably do the following—will you please freeze the position?”

It would be interesting to find out from the Minister whether the interim orders can be made only on an inter partes basis with both the complaint and respondent present or whether they can be made on an ex parte basis. There is probably a different way in which to describe the position when the applicant is there without the respondent. For an interim injunction, other than in defamation, the relevant expression that is used quite frequently is “the balance of convenience”. That could be where the balance of justice lies, but the Government must tell us what precisely they intend by the interim violent offender orders. Is it anticipated that they will be made on a continuous basis, allowing the Government without having foolproof—although reasonable—grounds on which to base their application? They should be made more or less on a rolling basis. Are they limited to a certain number?

David Burrowes (Conservative, Enfield, Southgate)

No, it is an open chain.

Edward Garnier (Conservative, Harborough)

There we are; the position gets worse and worse. I am amazed that we do not have interim nuclear facilities orders or interim prostitution orders. I think that I have made my point. We need to be sure what the Government want to do. If they are making a genuine attempt to prevent something from getting worse while evidence is being brought to court, that is understandable, although not very attractive. The combined arguments of my hon. Friend the Member for Enfield, Southgate and the hon. Member for Somerton and Frome require careful responses from the Government and some rather better thinking than is evident from the Bill.

Vernon Coaker (Labour, Gedling)

The interim violent offender orders are designed to be available to the court as an emergency measure. Mr. O’Hara, I know that a later clause covers such matters but, given that I have been asked about such matters, perhaps it is appropriate if I make my response now.

Edward O'Hara (Labour, Knowsley South)

I shall declare my intention when we reach clause 88 stand part. That seems the best way in which to deal with a difficult situation.

Vernon Coaker (Labour, Gedling)

In answer to the hon. and learned Member for Harborough and the hon. Member for Somerton and Frome, our intention in respect of interim violent offender orders is for them to be available to the courts as an emergency measure. I shall come to the standard of proof in a moment, but it would be a matter for the courts to determine whether the orders should be renewed. The Government or the chief police officer would not renew them. We would assume therefore that although we can say, for the purposes of argument, that four weeks, four weeks, four weeks and so on would be possible, my view is that a court would not consider that appropriate or proportionate.

David Heath (Liberal Democrat, Somerton and Frome)

I entirely accept that argument; my difficulty is with the question of the test that the clause requires the courts to apply, because it is by no means clear what test is to be applied to assess whether an interim order should be made. As far as a full order is concerned, there is at least clarity as to the matters to be taken into account and how that is to be done, although my party would prefer a strengthening of the provisions in that regard. Under clause 88, however, those matters do not apply.

Vernon Coaker (Labour, Gedling)

The test is whether, in the court’s view, an individual poses a serious risk to another person or to the public. The evidence to demonstrate that would have to be put before the court before an interim order could be made. The order is an emergency measure that would be available for the courts to impose temporarily while a full violent offender order was being applied for.

I respect the positions that have been set out by the hon. Members for Somerton and Frome and for Enfield, Southgate, but let me restate what I said about violent offender orders: there are clearly differences between us. That emerged in discussions about serious crime prevention orders during passage of the Serious Crime Act 2007, when there was disagreement about the standard of proof that should be applied. The Government considered that, as the orders should be civil orders, the relevant standard was the civil one, whereas the hon. Gentlemen thought that the standard should be the criminal test of reasonable doubt. The debate is similar this time.

David Heath (Liberal Democrat, Somerton and Frome)

Let us set aside our differences over whether violent offender orders should be made at all. I would understand the Minister’s argument if the conditions set out in clause 85(2) both applied in relation to interim orders. That provision requires additionally that the person has

“since the appropriate date, acted in such a way as to give reasonable cause to believe that it is necessary for a violent offender order to be made in respect of the person.”

If that requirement applied to applications for an interim order, evidence would have to be presented for an interim order in the same way as for a full order, which is exactly what the Minister said, and I would understand that he was suggesting that the same test should be applied. However, the requirement is absent from clause 88, so I ask the Minister to explain to us why a different test should be applied, given what he has told us about the evidential test for the making of an interim order.

Vernon Coaker (Labour, Gedling)

The hon. Gentleman is right to point out that there is a difference, so I will reflect on his point in the spirit of my general approach to the Committee. His point might be important. I am not saying that I will agree with him, but I shall explain on Report whether a change is needed. However, I hope that he will forgive me for repeating that the whole point of interim violent offender orders is to put something in place quickly if the court considers that there is a possible serious risk to the public.

Edward Garnier (Conservative, Harborough)

I am sorry to cut across my hon. Friend the Member for Enfield, Southgate, who has dealt with this point with great—

David Heath (Liberal Democrat, Somerton and Frome)

Aplomb.

Edward Garnier (Conservative, Harborough)

That will do very well, yes. The debate is throwing up quite a number of knotty problems that the Government need to be clear about before we put the clause to bed. The comparison between clauses 85 and 88 is worth exploring. In any event, we need to know whether the application for an order will be made orally, with the evidence also being oral and subject to cross-examination. Alternatively, will it be on the basis of statements? Is a police officer simply going to read from his notebook or will there be verified statements or sworn affidavits that are not susceptible to cross-examination?

In order to fulfil the conditions of clause 85(2)(b), it has to be shown that the person has

“acted in such a way as to give reasonable cause to believe that it is necessary for a violent offender order to be made in respect of that person.”

Will we therefore be looking for more than the fact that the designated offence has occurred? Clause 88 deals with interim violent offender orders, and subsection (3)(b) states that if the court

“considers it just to do so, the court may make an interim violent offender order in respect of the person containing such prohibitions, restrictions or conditions as the court considers necessary for the purpose of protecting the public from the risk of serious violent harm caused by that person.”

What is the material? Is it evidence that that person, since he has been released from prison, has done something that leads the applicant to suspect that he might do something and, therefore, needs to be prohibited from going from place A or talking to person B? Or is the evidence of a rather higher level, which clause 85(2)(b) seems to imply but is not clear about? Those differences need to be resolved with regard to the nature of the evidence and how it is presented to the court, which may or may not grant the violent offender order. Whether the respondent should know in advance that he is either going to be subjected to such an order or has a right to appear and argue against the evidence must also be considered.

Vernon Coaker (Labour, Gedling)

Clearly, we will put the guidance out to the courts in the normal way that they receive guidance on how to process all sorts of different procedures. With regard to evidence, my understanding is that one would not expect evidence in such matters to be oral. One would expect written evidence also to be made available to the courts so that judgments can be made with regard to it. We intend to ensure, through guidance, that many of the points that the hon. and learned Member for Harborough has made are covered.

On the standard of proof, as I said earlier to the hon. Member for Enfield, Southgate, we used the standard of proof argument that was used in the McCann judgment. We believe that that judgement, which was made in the House of Lords, is the appropriate one to use. Although it referred to antisocial behaviour orders, it was clearly stated that proceedings were civil under domestic law, that they complied with the European convention on human rights and that they were civil orders rather than criminal orders.

When it came to the actual standard of proof that was available, the hon. Member for Enfield, Southgate quoted from the judgments. The judgment stated:

“Lord Bingham of Cornhill has observed that the heightened civil standard and the criminal standard are virtually indistinguishable.”

I do not disagree with his view. Lord Hope said:

“it is not an invariable rule that the lower standard of proof must be applied in civil proceedings. I think that there are good reasons, in the interests of fairness, for applying the higher standard when allegations are made of criminal or quasi-criminal conduct which, if proved, would have serious consequences for the person against whom they are made.”

We went through that and said that the judgment that we use from the House of Lords with regard to civil orders, which we would expect to be applied to violent offender orders, demonstrates that there is a sliding scale and that a standard of proof virtually indistinguishable from the criminal standard should be the standard of proof that is used. I put that on the record with regard to violent offender orders, as I did with regard to serious crime prevention orders.

Edward Garnier (Conservative, Harborough)

Is hearsay evidence admissible in such circumstances?

Vernon Coaker (Labour, Gedling)

Yes. Again, that was part of the McCann judgment, which stated:

“Having concluded that the proceedings...are civil”,

it follows that hearsay evidence is admissible

“under...the machinery of the Civil Evidence Act 1995 and the Magistrates’ Courts (Hearsay Evidence in Civil Proceedings) Rules 1999”.

The McCann judgment covers the situation. We would expect the way in which the McCann judgment laid out the standard of proof for civil proceedings to be used in respect of violent offender orders.

Amendments Nos. 364 and 365 both relate to the standard of proof required for court decisions on violent offender orders. Currently, before making a violent offender order, a magistrates court must be satisfied that the person is a qualifying offender and has, since conviction for the qualifying offence as set out in clause 83, acted in such a way as to make an order necessary for the protection of the public from the risk of serious violent harm. Amendment No. 364 requires that a magistrates court makes a violent offender order in respect of an individual only if satisfied beyond reasonable doubt that that is the case.

Amendment No. 365 makes the same change in the case of interim violent offender orders. Currently, before making an interim violent offender order, a magistrates court must be satisfied that the person to whom the main application relates is a qualifying offender, and must consider it just to grant an interim order while the main application is being determined.

We have had a considerable debate on the standard of proof. The hon. Member for Enfield, Southgate believes that we need a criminal standard in the Bill, but we do not wish to include one for what is a civil order. We believe that the McCann judgment sets out clearly that the standard of proof for violent offender orders should be virtually indistinguishable from the criminal standard.

With those remarks, and a reminder to the Committee that violent offender orders are preventive not punitive—that is something that we need continually to remind ourselves of—I ask the hon. Gentleman to withdraw the amendment.

David Burrowes (Conservative, Enfield, Southgate)

We have had an important debate on significant issues that go to the heart of concerns about the violent offender order. It was good to hear from the hon. Member for Somerton and Frome. I welcome his support for amendment No. 364 and take on board concerns about the detail of amendment No. 365. The intention is to apply properly the standard of proof for interim orders as well as full orders. The purpose of the debate was highlighted by the intervention of my hon. and learned Friend the Member for Harborough, which I welcomed, on the disparities between the burdens that are already in the Bill, let alone imposing a criminal standard that would improve the Bill.

The debate highlights why we need more clarity in the Bill. The Minister tries to provide reassurance through the McCann case and makes the point that the standard of proof is indistinguishable from the criminal standard, but that leads me to ask why that cannot be made explicit in the Bill. Then, soon after saying that the difference was indistinguishable, the Minister spoke about a sliding scale. That raised concerns.

Concerns raised during the passage of the Serious Crime Act 2007 remain. Given the fact that the violent offender order is a civil order, given the serious criminal sanction should such an order be breached, and given the restrictions that can be placed on individuals and the operation of the order, I wish to press amendment No. 364 to a vote.

Clause 91

Vernon Coaker (Labour, Gedling)

I beg to move amendment No. 214, in clause 92, page 63, line 18, leave out ‘or’ and insert—

‘(ca) any prescribed change of circumstances, or’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss the following:

Government amendments Nos. 213 to 216, 242, 249 and 250.

Government new clause 40—Notification requirements: prescribed information.

Vernon Coaker (Labour, Gedling)

Amendments Nos. 213 to 216 provide the Secretary of State with the power to add to the notification requirements of violent offender orders by secondary legislation. The clause will require that all individuals subject to a violent offender order or an interim violent offender order are also subject to notification requirements. Additions to the existing notification requirements are currently made only by primary legislation, but the Government feel that the police and public would benefit from the greater flexibility offered by the measures.

The notification requirements imposed on sex offenders as introduced by the Sex Offenders Act 1997 have proved an effective method by which to manage the risks posed by sex offenders in the community. We have previously strengthened the requirements through the Sexual Offences Act 2003 by requiring sex offenders to register more information with the police and by shortening the time scales by which information must be provided. However, the protection of children from sex offenders review identified the benefits of requiring offenders to register more information, which could mean offenders providing more personal details and so on. To enable the requirements to be changed more easily, the review recommended that we should take a power to amend them by secondary legislation. That will enable us to respond more quickly to technological developments and new patterns of behaviour. Government new clause 40 will provide that power. The Association of Chief Police Officers expressed its support for the review’s commitment to the additional requirements.

Amendment No. 242 will allow the Secretary of State to make transitional arrangements when prescribing additional information that must be notified by sex offenders and to create different requirements for different types of offender. A power to allow the Secretary of State to amend the notification requirements of the 2003 Act by secondary legislation is provided by new clause 40 and Government amendment No. 242. It makes it clear that the amendment to the Sexual Offences Act 2003, which states explicitly that transitional provisions can be made through regulations, does not affect the validity of transitional provisions in regulations that have already been passed under the Act—for example, the Sexual Offences Act 2003 (Travel Notification Regulations) 2004.

Amendment No. 250 would repeal sections 86(4) and 87(6) of the Sexual Offences Act 2003, which allow regulations made under those sections—foreign travel notifications—to make different provisions for different categories of persons.

David Heath (Liberal Democrat, Somerton and Frome)

I note that this part of the Bill covers the English and Welsh jurisdictions, but not Scotland and Northern Ireland. What is the procedure for notifying Scottish or Northern Irish authorities when the home address notified under the initial requirement, or indeed under a notification of change, is in Scotland or Northern Ireland?

Vernon Coaker (Labour, Gedling)

I will have to get back to the hon. Gentleman on that. I cannot give him a proper answer now, but I shall try to do so at some point, or write to him.

Clause 92

Clause 98

Edward Garnier (Conservative, Harborough)

Subsection (6) sets out the penalties for offences in relation to notification. Will the Minister explain whether he seriously believes that it is appropriate that someone should be given up to five years’ imprisonment for failing to notify their national insurance number or home address on the date on which the notification should have been given?

Vernon Coaker (Labour, Gedling)

The only point that I want to make is that if the offence were as trivial as that, the court would not be expected to impose a five-year sentence. The hon. and learned Gentleman knows the courts better than I do, and that the relevant words are “up to”.

Edward Garnier (Conservative, Harborough)

I do not mind being rebuked by the Minister or anyone else, but he has put in the Bill a potential five-year term of imprisonment for failing to comply with a notification requirement. Presumably the assumption is that there will be circumstances in which it is appropriate for the courts to give a five-year term to someone who has failed to notify the material under clause 91, or the provision would not be in the Bill. Will he explain in what circumstances he would hope to find the courts dishing out a five-year sentence?

Vernon Coaker (Labour, Gedling)

I did not mean to rebuke the hon. and learned Gentleman—far be it from me to attempt to do that. I cannot possible imagine every circumstance that might come before the court. I repeat the point that I made earlier. If the offence was as trivial as that which the hon. and learned Gentleman has just described, we would not expect the court to impose a five-year sentence. I am sure that he would not do that in the courts in which he acts as a recorder, even if the power were available to him. I cannot envisage all the circumstances, but I repeat that the period is of up to five years.

Edward Garnier (Conservative, Harborough)

I think that I have made my point. The measure looks rather heavy-handed. Will the Minister consider what will allow a sentence of imprisonment, let alone a five-year sentence, for the offences described in clause 98? We are told, although I find it difficult to believe, that this is essentially a civil process. However, it is a civil process whereby people get banged up for five years if they do not notify the authorities of some relevant information. We need to keep some balance. It is either a civil process or it is not. It is either a serious crime or it is not. A five-year maximum is a heavy maximum. People can commit serious muggings, burglaries and drug offences and still not get five years.

If five years is to be the maximum sentence for simply not notifying people, that brings me back to the data protection issue that I did not talk about under clause 75. If we are to see fiascos such as the HMRC disaster, we need to be clear about the circumstances in which people will potentially be given quite heavy jail sentences.

Vernon Coaker (Labour, Gedling)

The hon. and learned Gentleman makes a point, but I say again that if he reads the whole of clause 98 and other parts of the Bill, as I know that he has, he will see that the penalty will match the severity of the offence. As clause 98 makes it clear:

“If a person fails, without reasonable excuse, to comply with any prohibition restriction or condition contained in...a violent offender order, or...an interim violent offender order...the person commits an offence”,

one would expect some of the provisions, prohibitions, restrictions or conditions that are breached to be more serious than the examples given by the hon. and learned Gentleman. I remind the Committee that other civil orders have that level of punishment if they are breached. As we know, the breach of the order is the criminal offence.

In reply to the hon. Member for Somerton and Frome, VOOs are applicable only in England and Wales. People would have to come to England and Wales to comply with the notification requirements.

Schedule 17

Harry Cohen (Labour, Leyton and Wanstead)

I beg to move amendment No. 328, in schedule 17, page 193, line 11, at end insert—

‘(d) the making of the order is not a disproportionate response to the disorder or nuisance caused;

(e) the making of the order will not cause unnecessary hardship or suffering to the families of those against whom the order is made;

(f) appropriate steps have previously been taken to address the disorder or nuisance without success.’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss the following amendments: No. 329, in schedule 17, page 193, line 30, at end insert—

‘(10) No closure order shall be made unless the magistrates’ court is satisfied that appropriate arrangements have been made by the local authority for alternative accommodation and support for those affected by it.’.

No. 354, in schedule 17, page 193, line 30, at end insert—

‘(10) If a child under 18 is resident on the premises, no action shall be taken until a multi-agency assessment of the child’s needs has taken place.’.

Harry Cohen (Labour, Leyton and Wanstead)

My amendments relate to the power of closure orders. Amendment No. 329, which is the key amendment, refers to vulnerable people and their families who might be a nuisance and could therefore be subject to a closure order.

Closure orders combined with antisocial behaviour orders have been very successful. They provide the power to close premises for three months and, in exceptional circumstances, for six months. They have been appropriate, particularly for premises in which there have been drug problems, although sometimes premises can be closed for too long, and they blight the rest of the neighbourhood. However, the orders have solved problems and they are popular. The Minister was right to say that orders such as ASBOs and closure orders are popular when a nuisance has been caused.

However, there are problems relating to the orders. One is the issue of vulnerable people; the other is what Liberty calls “cuckooing”, which means displacement. That is an unfortunate consequence. Once premises are closed down, people who are the subject of the order may then target very vulnerable people and move into their premises. On one level, the Government or the police authorities need to deal with that problem and be alert to the danger of cuckooing, which is the unfortunate consequence of a closure order.

The orders also provide powers to close premises for activities that are not unlawful. For example, lots of people coming in and out of premises might not necessarily be a sign that antisocial behaviour is going on. It might be that lots of parties are going on. I agree that they are a nuisance, but in themselves they are not necessarily unlawful. In a sense, that is a precedent that needs to be considered.

The only other point that I want to make is that when the original consultation came out, it included very strong safeguards. I will not take up the time of the Committee and read the whole report, but it mentioned putting in robust guidelines for the consideration and operation of the closure process, such as considering whether closure is the most appropriate course of action and addressing the needs of vulnerable people in the household, including children and young people. There was quite a detailed statement in relation to the original consultation, which is not reflected in the Bill. That is the point that I am most concerned about.

Vulnerable people are potentially involved—they are not necessarily the ones causing the nuisance, but may be relatives or others who live in the house. They could all be thrown out and made homeless. My amendment says that there should be provision to look after them and, if necessary, the local authority should provide alternative accommodation for vulnerable people.

David Heath (Liberal Democrat, Somerton and Frome)

I seem to spend a lot of time in this Committee asking, “What about the children?” In this instance, I am talking about children who have not been accused of any crime or even of any potentially offending behaviour, but who merely happen to reside in the house or premises that are subject to a closure order.

The hon. Member for Leyton and Wanstead has already made a number of the points that I wanted to make. Amendment No. 354 is a probing amendment to see how the Government intend, first, to assess the needs of vulnerable people on such premises and, secondly, to cater for them if a closure order is made. As the hon. Gentleman said, this issue was recognised in the Government’s own consultation paper, “Strengthening powers to tackle anti-social behaviour”, which the Home Office published in 2006. He quoted part of a passage from it that I had intended to quote when he said:

“The needs of any vulnerable people in the household, including children and young people, will need to be considered.”

It goes on to say:

“Their safety must not be compromised and a clear plan needs to be put in place to safeguard them and promote their welfare if the closure goes ahead.”

Amen to that. It is exactly what the Government should be considering in this context, but at the moment there is no mention as far as I can see, in either the parent clause or the schedule, to that assessment being made.

In other legislation of a broadly similar type, that linkage is made. Let us consider, for instance, housing benefit sanctions under section 31 of the Welfare Reform Act 2007. There is a link between the sanction and helping the family in question to deal with the consequences, but in the Bill no link is made between the closure order and rehabilitative services. In my view, there should be such a link. The Government appear to have at least considered it at an earlier stage, but it does not appear in the Bill.

How does the Minister propose to ensure that vulnerable people, such as children, who reside in the same premises are safeguarded in relation to actions that may be completely beyond their control—actions that are committed by another person, perhaps a parent or another relative, who is resident in the same premises? I ask that because we do not believe in collective punishment in this country. It is not appropriate that we should not have regard for the interests of innocent parties.

David Burrowes (Conservative, Enfield, Southgate)

I welcome the amendments to clarify what happens when closure orders have unintended consequences that affect the most vulnerable people. I am referring to family members or other residents of the premises who are not in any way associated with the behaviour that is the basis for the closure order. I also wish to take the opportunity to assert our support for the principle of closure orders and to acknowledge the success of similar orders in the past.

The points made by the hon. Members for Somerton and Frome and for Leyton and Wanstead on the two amendments were very well made. It is interesting to consider closure orders in Scotland. There, unlike in England and Wales, the sheriff must have regard to these two factors when determining whether to make a closure order: first, the ability of any person who habitually resides in a premises to find alternative accommodation and, secondly, any vulnerability of any such person who has not been engaged in antisocial behaviour that has occurred in the premises.

Those two additional requirements would not water down the purposes of closure orders, but they would deal with hon. Gentlemen’s concerns. They would explicitly make clear what would happen to vulnerable people who are not engaged in antisocial behaviour. Will the Minister say why a measure that is in place and explicit in Scotland is not proposed for England and Wales? The Home Office lauds the success with which the Scottish powers have been used, so perhaps the guidance that is available there should also be available in England.

Another practical point relates to homelessness—those who are unintentionally made homeless by closure orders. It is accepted that there should be no statutory duty to house those who have brought homelessness upon themselves through antisocial behaviour, but if local authorities increasingly implement closure orders, they will have to deal with the practical matter of housing vulnerable individuals who are left without a home because of the orders. I want the Minister to clarify that question and to provide some reassurance on guidance. Will additional or amended guidance be provided to local authorities for when they make decisions on housing people who, through no fault of their own, are as much the victims as the rest of the community are of behaviour that takes place in houses that become subject to orders.

Vernon Coaker (Labour, Gedling)

Welcome back, everyone.

May I begin by saying to the hon. Members for Enfield, Southgate, and for Somerton and Frome, and my hon. Friend the Member for Leyton and Wanstead, that I welcome their support for the principle of premises closure orders? I also welcome the recognition that, alongside crack house closures, they have made a real difference in many communities and have dealt with problems. Some premises in all hon. Members’ constituencies cause huge difficulties—we accept that. We are left with the question of what to do about the problem. I accept that any action must be proportionate and reasonable, but it must be effective. Sometimes, not addressing a problem can cause it to continue.

We all face the question of how many warnings to issue. When does the end point come? It is quite difficult to decide and, in fact, the question is rhetorical. I can think of examples from my constituency, as I am sure others can, in which the various measures that we might wish to take have been taken, yet the antisocial, disruptive behaviour continues. Sometimes, people are at a loss, and when they ask me why nobody is doing anything about the problem, I am forced to reply that lots of people are doing something, but we are left with the fact that it is not working. Allowing such problems to continue—I am not suggesting that hon. Members believe that it should be allowed—does not do a great deal for the children who live in such houses or those who live in the area. We are left with a huge dilemma for public policy and sometimes one wonders what can be done.

Premises closure orders are an attempt to plug a difficult gap and they had huge public support. The question is, how do we make them work proportionately and in a way that we can all feel comfortable with? The hon. Member for Enfield, Southgate, if I remember rightly, asked whether there will be guidance and rules and what the guidance will include. There will be robust guidance on how the orders operate and how the process is put into practice. I will ensure that we include housing considerations as part of the guidance. I make that commitment to the hon. Gentleman because he specifically asked about that. However, as part of the guidance we would also expect the police, the local authority and all of the other statutory agencies to show that consideration has been given to every other possible intervention prior to a premises closure order being applied for. In other words, the guidance will say that this process is only appropriate if it is an absolute last resort and nothing else seems to be appropriate.

In some circumstances, although this sounds contradictory, actually closing the premises will force the system to deal with the needs of children and vulnerable people. I say that as a teacher. I make the analogy that, as a deputy head teacher, I never wanted to exclude young people from school, but in one or two instances the only way to force a resolution to the problem was to take what I regarded as a draconian step. In respect of premises closure orders, in some circumstances, that point will be reached. In other words, the order can act as a catalyst.

I know what my hon. Friend the Member for Leyton and Wanstead is trying to do, and, as the hon. Members for Somerton and Frome and for Enfield, Southgate said, we have to protect children and vulnerable people. I believe that through guidance we can ensure that we do that, even though the safeguards are not necessarily on the face of the Bill. However, I point out to the hon. Gentleman and to my hon. Friend that new section 11B(7) of the Anti-social Behaviour Act 2003, inserted by schedule 17, states that upon application to the court for a closure order:

“The magistrates’ court may adjourn the hearing on the application for a period of not more than 14 days to enable—

(a) the occupier of the premises,

(b) the person who has control of or responsibility for the premises, or...any other person with an interest in the premises—

I would expect that to be a parent, whether a mother or a father, of children involved—

“to show why a Part 1A closure order should not be made.”

I would expect that in those circumstances people could make representations to the magistrates court. The magistrate can adjourn and, which may include children, people can then make representations to say that the premises closure order should not go ahead because proper consideration has not been given to the vulnerable people in the household that is to be shut.

Sally Keeble (Labour, Northampton North)

Does my hon. Friend agree that if serious consideration is to be given to not giving a premises closure order because there are young children in a house that is being used in certain ways, for example in crack houses, would it not be advisable at that stage for the medical safeguarding children board to be involved, to make an assessment of whether the premises should be closed, and to make proper arrangements for the protection of the children?

Vernon Coaker (Labour, Gedling)

That is a good point and I will take it on board. It should certainly state within the guidance that all along the way, local safeguarding children boards and such like should be available. As I have said, I hope that my hon. Friend the Member for Leyton and Wanstead will be able to withdraw his amendment. There are safeguards in the Bill and there will be guidance, although I take the point that alongside what is a good power, we must ensure that we protect the vulnerable.

Harry Cohen (Labour, Leyton and Wanstead)

I appreciate the assurances and frank answers given by the Minister, and I beg to ask leave to withdraw the amendment.

David Burrowes (Conservative, Enfield, Southgate)

The schedule has a very wide definition of premises associated with disorder or nuisance. I refer to new section 11K(13) of the Anti-social Behaviour Act 2003, inserted by the schedule, which states:

“Premises includes—

(a) any land or other place (whether enclosed or not);

(b) any outbuildings which are or are used as part of premises.”

That definition of premises has a wide remit, and I would like the Minister to comment on that and on the intentions behind giving such a wide ambit in relation to premises. Is it part of the purpose of that wide ambit to include open land that might be owned privately or publicly and which may, for example, include a Travellers’ site where there has been evidence of persistent disorder or nuisance? Would that type of persistent disorder or nuisance come within the ambit of premises closure orders?

Vernon Coaker (Labour, Gedling)

The hon. Gentleman is right to point out that we have made the definition wide. We have done so because there may be buildings or land to which these orders may be appropriate. Therefore, with that in mind, we included that measure within the Bill to give the opportunity for the police or local authority to apply to the court for such an order.

David Heath (Liberal Democrat, Somerton and Frome)

On a point of order, and to avoid unnecessary repetition, I wonder whether it might be for the convenience of the Committee if, contrary to the grouping on the paper, we might deal with amendments Nos. 337 to 339 and clause stand part together. I would be happy to do that if you, Mr. O’Hara, and the Committee were agreeable.

Edward O'Hara (Labour, Knowsley South)

That seems sensible, if it is for the convenience of the Committee.

Clause 104

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 337, in clause 104, page 70, line 14, at end insert ‘and’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss the following: Amendment No. 338, in clause 104, page 70, leave out lines 17 to 19.

Amendment No. 339, in clause 104, page 70, line 38, at end insert ‘and

(d) any surgery, clinic or other premises in which medical, surgical or paramedical treatment is provided to the public by NHS staff members,’.

Clause stand part.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful Mr. O’Hara, and I hope that I can curtail the debate a little.

The lead amendment would simply insert the word “and”, which is of limited value. However, I want to explain my concerns about the clause. Let me say at the start that nothing I say should in any way be interpreted as to suggest that I do not recognise the real problem of people causing nuisance or disturbance in hospitals and other NHS premises. It is absolutely deplorable when that happens, but unfortunately it is a growing trend. It worries me as much as I am sure it worries other members of the Committee. I am therefore intent on ensuring that if there are ways of reducing the risk of such a disturbance, we should take them.

I start from the premise that I am not convinced that we need a change in the law to achieve the Government’s objective. My fear is that we are back in the wonderful world of sending signals. The clause is sending a signal that one must not be naughty in hospital. However, nobody is taking the trouble to ascertain whether the change in law will help the authorities to investigate, arrest or prosecute successfully.

On Second Reading, I drew the attention of the Lord Chancellor to what appeared to me to be the extremely pertinent case of Porter v. Commissioner of Police for the Metropolis, 1999. The reason that I drew attention to that case was that it very clearly set out that where there is a breach of the peace, a civil trespass and a person refusing to leave the premises after being asked to leave, the attendance of the police and an arrest for breach of the peace are entirely in order. Therefore, there is no problem at the moment with the police intervening in precisely those circumstances.

I do not know whether anybody has had a chance to look at the case since the Second Reading debate and to see why it should not be applicable in the case of health service premises as opposed to any other premises. It seems to me that it gives a clear indication that the police would not be acting improperly if they were asked to deal with such a disturbance and to apply existing law. That is the first point.

The second point is that if there are, for some reason, the police or anybody connected with the health service have insufficient powers, why are the Government seeking to address this nuisance in respect only of NHS premises rather than other public premises and other Government offices? As we all know, there are premises run by the Department for Work and Pensions, for instance, where there is every bit as much of a risk of violent and disturbing behaviour on the part of the occasional client as there is in a hospital. Why is the protection afforded by the clause not open to other premises that are run by the state for the benefit of the citizen? There is no obvious answer.

I come to the third question. If the Minister can satisfy me that it is necessary to deal with health service premises and not any other Government premises, why does he restrict the application of this clause to hospitals? This point was made by hon. Members on both sides of the House on Second Reading. If the provision applies to hospitals, it should surely apply to other premises on which treatment is carried out on behalf of the health service, which are not described as hospitals: surgeries, clinics and any other premises where a doctor, nurse or paramedic of one kind or another practices.

Perhaps I should declare my interest as a qualified optician, although I have not practiced within the health service, or anywhere else, for a very long time. Presumably, there may be circumstances in which I re-register and provide services under contract to the health service again. If I did, why would I not be protected; why would a GP not be protected; why would the practice nurse not be protected in the same way as a hospital? That is why I tabled amendment No. 339, which covers all treatment provided by NHS staff members, who are defined in the clause as anyone working directly for the NHS or under contract to it, which covers every possible NHS treatment that might be provided. Why are those other NHS staff members excluded?

Amendments Nos. 337 and 338 would remove subsection (1)(c), which makes the extraordinary exclusion that the one type of person who cannot be subject to the provision is someone who arrives at a hospital seeking treatment. An awful lot of the people who cause disturbances in hospitals arrive seeking treatment—ask anyone who works in accident and emergency or trauma units and they will confirm that. Those people are specifically exempt from the provisions of the clause, which seems extraordinary. I suspect that it is to avoid any potential human rights implications of effectively refusing treatment to someone who has suffered a serious injury. I can only presume that that is the rationale, but it makes the clause almost ineffective. It means that staff can shoo off people who are so-called friends of a patient, but when patients—they may be intoxicated or simply fed up with waiting, and expressing themselves violently or not liking the treatment that they are getting—start throwing their weight around and causing a disturbance, the clause will not apply. A policeman, if called, will be required to assess whether the person causing the affray requires treatment and whether they are seeking it—a diagnosis that I would suggest the average police constable is not well equipped to make.

There seem to be a number of anomalies in the clause, well intentioned though its. I support the intention behind it, but the Minister needs to explain why it has been framed as it has and allay my suspicion that it is another press release translated into statute rather than a serious attempt to mitigate a real nuisance.

Edward Garnier (Conservative, Harborough)

I largely agree with the thrust of the hon. Gentleman’s points. Like him, I fully accept that there are NHS staff who live in genuine fear of violence and abuse, particularly on Friday and Saturday nights in some of our inner-city accident and emergency units. They deserve all the protection that any public servant should get when looking after the public.

We know from the consultation document, “Tackling nuisance and disturbance behaviour on NHS premises”, that violence against staff is estimated to cost the NHS between £10 million and £270 million per annum, depending on the degree of absenteeism due to sickness that can be attributed to an assault. It is quite a wide margin, but there is clearly a genuine problem.

I know from my constituency experience that the accident and emergency unit at Leicester Royal infirmary is not a nice place to be on a Friday night once the pubs have emptied, now that the Government’s 24-hour binge drinking is—no, that was a cheeky remark. We all understand that a lot of people who are high on drugs injure themselves for one reason or another and end up in the accident and emergency room. They cause injury not only to themselves but to the hospital and ambulance staff who do their best to assist them. I, like the hon. Gentleman, think that the staff deserve every protection. However, there is plenty of criminal legislation on the statute book already that can assist them.

The problem lies not so much in the need for new laws, but in the need for sufficient security staff employed directly by the hospital, or police officers, to sort people out when they are causing a nuisance. The police could arrest people and take them away and the security staff could presumably remove them from the hospital if they were causing a nuisance, threatening violence or using foul and abusive language and refusing to leave the premises when invited to do so. I do not think that there is an absolute right to receive hospital treatment. Is there? Perhaps the Minister will be able to tell me. People have no right to remain on hospital premises and to threaten to commit crimes or to commit them. I would not have any sympathy with anybody, even if he had a broken arm, who took a swipe at a nurse or was abusive to a porter and was asked to leave the premises. It must be a condition of entering the premises that people behave themselves. I do not see why we should be in the least bit sympathetic to people who need treatment but refuse to behave properly, especially if they have, of their own free will, got drunk or taken drugs that have loosened their inhibition.

Although the motive behind the measure is good, we need some persuading that it is necessary, or we will just clutter the statute book with yet more Acts. About 3,000 additional criminal offences have been created since the Labour Government came into office. We really need to implement a few of those. I cite the Criminal Justice Act 2003, which is still not implemented to a considerable extent.

I have just become the patron of the Lambeth branch of the Alzheimer’s Society. That encourages me to remind the Committee about something in the House of Commons Library brief, on page 91:

“A joint response from several charities concerned with mental health, learning disabilities and Alzheimer’s, available from Mencap, argues that:

We agree that nuisance and disturbance behaviour on NHS premises is a problem. But we do not support these proposals, which we believe are unnecessary and badly thought-through, and which we fear will fail to have the intended effect on nuisance and disturbance behaviour on hospital premises, while creating additional risks to vulnerable patients.”

In particular,

“The proposals could cause significant risks to the health and safety of disabled people and other vulnerable people on NHS premises...The Government has consistently failed to draw a coherent link between the problem of assaults on NHS premises and the proposed solution...The vast majority of people who do cause a nuisance or disturbance on NHS premises will not be covered by the proposals, which will not make the NHS safer.”

That links with the point that the hon. Member for Somerton and Frome made, relating to subsection (1)(c), which is that people cannot commit an offence if they are on the premises

“for the purpose of obtaining medical advice, treatment or care for himself or herself.”

Vernon Coaker (Labour, Gedling)

We have tried to deal with the hon. and learned Gentleman’s fair and reasonable point. Under clause 105(4),

“An authorised officer cannot remove a person under this section or authorise another person to do so if the authorised officer has reason to believe”

that

“(b) the removal of the person would endanger the person’s physical or mental health.”

Edward Garnier (Conservative, Harborough)

I am sure that the Government have tried to do a number of things. There are already instruments in our laws to make hospital premises safe, or safer, but that fundamentally requires people to do the making safe: passing laws does not necessarily do that.

First, we need hospitals to be sufficiently funded so that they can employ in-house security staff who do the job and are pretty forthright in their work when that is required of them. Secondly, we need sufficient numbers of police officers available—a Home Office responsibility —particularly in inner cities at the trouble spots, which are the accident and emergency departments on Friday and Saturday nights

Vernon Coaker (Labour, Gedling)

The hon. and learned Gentleman makes an extremely important point about those with mental health problems. Under subsection (1)(a), a person commits an offence if they act “without reasonable excuse”. I am not saying that some of the people in the instances that he quoted have an excuse, but I think that he understands my point.

Edward Garnier (Conservative, Harborough)

I do not think that we need to prolong this conversation for too long. We all agree that NHS staff need protecting, just as we all agree that DWP staff and library staff in town halls need protection. That is not the issue. The question is whether clause 104 and its successor clauses are apt to do what the Government and everyone else would like. I have my doubts. Essentially, it is a question of the police and NHS security staff doing the job that the public employ them to do. I agree that that is not easy and that primary care trusts and hospital trusts are either running a deficit or strapped for cash. If there is money to spare, they will spend it first on hospital equipment or medical procedures, rather than on security staff, who very often are the first to go if there is a need to make cutbacks. Again, however, that is a wider issue for the Government.

Like the hon. Member for Somerton and Frome, I accept that the clause has not been put in for a wrong or improper purpose, but I have grave doubts about whether it will improve the situation. To use an expression that is often used in defence debates, unless we have troops on the ground, we will not achieve very much. It might make us feel better, but it will not achieve anything. I am not going to vote against clause 104; I just think that it is one of those things that is nice to have, but which does not achieve much.

Vernon Coaker (Labour, Gedling)

I thank hon. Members for their comments.

The majority of health bodies that responded to the 2006 consultation, which dealt with tackling nuisance behaviour and disturbances on NHS health care premises, felt that the existing law was inadequate for dealing with low-level nuisance behaviour and that something needed to be done. We have tried to respond to points put to us by NHS staff about problems that they experience. I accept that if a doctor, nurse, cleaner or anybody on NHS premises is attacked—in the sense that we all understand that word—or violently abused, we would expect the police to be called. That is the right and proper response. However, the clauses before us deal with lower-level nuisance behaviour and disturbances that could escalate into something more serious if they are not stopped. I take the point that criminal sanctions are available for serious breaches of the peace and disturbances, but the clauses address what we were told is a very real need to deal with low-level nuisance behaviour. I think that they will make an important difference.

Accepting the amendments would run a significant risk of criminalising the actions of a person seeking medical treatment or advice, or of denying them a service, because they display low-level nuisance or disturbance behaviour. I say to the hon. Member for Somerton and Frome that I do not think that it is acceptable to deny medical treatment to those who need it. It may be vital to that person’s health and well-being that they receive the medical advice or treatment that they have sought by attending hospital. Their need for treatment may far outweigh any need to remove them from the premises for having committed the offence of causing a nuisance or disturbance on the premises. This is a strange reversal of the role, but it may be disproportionate to allow people to move those who are in need of that medical treatment.

The application of this offence to non-patients only is a targeted response to a specific problem. Our primary focus is to ensure that patients receive the care they need and that staff can work in NHS premises without risk of that disturbance and low-level nuisance.

Mr. Heath rose—

Vernon Coaker (Labour, Gedling)

Will the hon. Gentleman bear with me until the end? I just want to put a couple of arguments against the points that he made and then to say something that might be more helpful.

Widening the scope of the offence to apply to a broad range of NHS health care settings would prove impractical. GP surgeries, for example, exist in a different environment from hospital premises. Most hospitals have full-time security guards and CCTV coverage to protect staff from those causing a nuisance or disturbance and to deter potential offenders. In a hospital setting therefore, trained security staff could assist in exercising the power to remove a person from the premises should they commit the offence.

Not all GP practices—not many in my experience—have such security services available to them. Therefore enabling the offence to be committed on such premises would prove problematic as there would be no guarantee that a correctly trained person would be available to remove an offender from the premises, using reasonable force if necessary. Applying these proposals to GP practices would potentially put the safety of GPs and their practice staff at risk if they were to use these powers. Applying the offence to a pharmacy setting would also prove impractical, as it would be difficult to distinguish between whether the offence was committed against the pharmacist in their capacity for dispensing NHS prescriptions in their role as an NHS staff member, or in their capacity for selling general retail goods as a private business person.

The point that I am trying to make to the hon. Gentleman is that there are issues with respect to extending the scope of the offence outside NHS premises but, as the Lord Chancellor said, we will reflect on this. I know that the hon. Gentleman shrugged a little at a couple of the points I was making, but there are difficulties with extending this. It is more complicated than simply saying that the offence will be extended to premises such as NHS doctors’ surgeries or some others that might be considered to be associated with the NHS. The Lord Chancellor committed to looking at this and certainly I will commit to do that too.

I do not want to go into too much other detail about clause 104. I welcome the points that have been made in the sense that the issue is not that people oppose the clause, but whether they believe it will add anything to the safety of staff and the security of those who act appropriately in hospitals. All I can say is that this is a serious attempt to plug what we see as a gap. It is not in place of the police. It is an attempt to prevent the escalation of nuisance behaviour into more serious behaviour that might require the attendance of police officers. I hope that in the light of those comments the hon. Gentleman will consider withdrawing his amendment.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the Minister. I was not desperately convinced by some of his arguments. I wonder whether he entirely convinced himself. The idea that a pharmacist does not need protection if he happens to be selling a comb with the packet of aspirins that he is selling at the time seems a threadbare argument. I am also concerned that a Home Office Minister should come out with what is to me at least the novel argument that a person can commit an offence only if there are security staff available to detain him or to notify a constable. That appeared to be what he was saying. He seemed to be saying that that could be an offence if it was in a hospital, because there were security staff and CCTV, but if it was in a place where there happened not to be security staff and CCTV, it would not be an offence at all. I think that, if we require the attendance of a police officer for an offence to be committed, that has rendered most of the criminal law inoperable in most of my constituency. That seems a novel concept in the interpretation of statutory offences.

I also think that the Home Office has not cottoned on to changes in the way that we operate medicine in this country. I say that because hospitals will be, if Lord Darzi of Denham has his way, a thing of the past. We are going to move away from hospital provision towards smaller units, the so-called polyclinic. The polyclinic does not constitute a hospital and it is available for a particular range of medical or surgical procedures, but I would say that it falls between hospital provision and a general practice surgery. All those polyclinics, which the Government now have as a stated policy for the provision of services, will fall outside the ambit of the clause. Therefore, I think that the Minister needs to look seriously at how he chooses to define NHS premises for the purposes of this clause.

My last point concerns people with mental health problems, dementias and the like. The Minister drew our attention to clause 105(4)(b) in that respect. I doubt very much whether it is appropriate to require an “authorised officer”, by which we can assume that we mean a security officer, to have the necessary training to form a view that has any validity in law as to what damage he or she may cause to the “physical or mental health” of a patient by any action that he or she may take.

Edward O'Hara (Labour, Knowsley South)

Order. We are not straying onto the grounds of the next clause yet, I hope.

David Heath (Liberal Democrat, Somerton and Frome)

That would be quite wrong, Mr. O’Hara. I was simply responding to the point made by the Minister, who drew our attention to the next clause in partial answer to the point made by the hon. and learned Member for Harborough. If the Minister can use the next clause as a defence for his position, I think that I must be in order to attack his defence of his position, in response to the amendments and the clause stand part that is under discussion.

In summary—

Maria Eagle (Labour, Liverpool, Garston)

He is going to say it all again now.

David Heath (Liberal Democrat, Somerton and Frome)

I am not going to say it all again; I say that to the Minister, who interrupts from a sedentary position and extends my remarks in a way that is uncalled for.

I would like to say one particular thing in conclusion: the Minister makes his entire argument on the basis that there is no provision at the moment for dealing with low-level nuisance. He says that we are covered for assault; we all know that and we know that we are covered for serious violence offered to members of staff. However, he says that we are not covered for low-level nuisance. I believe that we are. The Minister has not addressed that issue. He has also not explained why, when the NHS bodies come to the Home Office and say that they have a problem in this regard, the Home Office does not answer, “Actually, you haven’t if the law is interpreted properly, and we will issue new guidance to the police and to your security services, so that you know where you stand.” Instead, he simply says, “Oh, you say you have a problem, so let’s change the law.” I think that that is rather a superficial approach for the Home Office to take, and he still has not convinced me of the utility of the clause in its present form.

Having said that, I do not intend to press my amendment to a Division because I hope that the Minister will still reflect of some of the issues that I have raised and return to them on Report.

Vernon Coaker (Labour, Gedling)

I said to the hon. Gentleman that I will reflect on what he has said.

David Heath (Liberal Democrat, Somerton and Frome)

I hope that the hon. Gentleman will be as good as his word. In fact, I am confident that he will be. On that basis, I beg to ask leave to withdraw the amendment.

The rest of the debate is in Hansard.