Crime and Security Bill

Public Bill Committee, 23 February 2010.

Frank Cook (Labour, Stockton North)

I remind the Committee that the House has agreed to an instruction to the Committee in connection with the Bill. Copies of the instruction are available in the room. I call the Minister to move the amendment to the programme order standing in his name.

Clause 35

James Brokenshire (Conservative, Hornchurch)

Welcome back to the Chair, Mr. Cook.

When we adjourned for the February recess, the Committee was debating provisions on gang injunctions. Clause 35 amends the Policing and Crime Act 2009, which created gang injunctions for adults, so that the references to powers of remand in schedule 5 to that Act relate only to persons aged 18 or over. I seek clarification from the Minister. What is the thought process regarding how children might be treated if they breach one of the gang orders?

I understand the intent behind the clause, but the question remains whether, if there has been a breach of an injunction, a young person may need to be taken into protective custody, to ensure that they do not become the victim of reprisal or gang violence. Do the Government intend to rely on other legislation on protective custody and referral to secure accommodation, using child protection or child welfare provisions? If an injunction has been breached by someone under the age of 18 and there is a feeling of threat or risk to the community, and remand in custody would have been deemed appropriate if that individual was aged 18 or over, how will the community be protected? The amendment to schedule 5 to the 2009 Act does not appear to address that, so I seek clarification on the thought process behind the clause, to understand more clearly how it is intended to operate to protect both individuals and the community if an order is breached. What regime might apply to children when, if they had been an adult, remand might have been appropriate?

David Hanson (Labour, Delyn)

As the hon. Gentleman knows, the clause amends schedule 5 to the 2009 Act so that the court cannot remand 14 to 17-year-olds in custody. As the Committee knows, we have under legislation allowed county courts to remand adults into custody, and that power is familiar and is used. We have looked at how we deal with 14 to 17-year-olds. The usual process for dealing with injunctions and breaches is relatively fast, generally taking place within 24 hours. I hope that that helps the hon. Gentleman. Although I understand what he says, in most cases the hearings will take place almost immediately, so the risk is very limited. It is therefore not proportionate for the court to have a power to remand, because we are trying to avoid bringing young people into custody. Remanding into custody would mean immediate custody. The breach can be examined by the court and the circumstances considered. There could be an element of risk, but given that the matter will normally be dealt within 24 hours, that would not be the case. I hope that reassures the hon. Gentleman, but if it does not I will happily listen to his concerns again.

Clause 36

James Brokenshire (Conservative, Hornchurch)

I beg to move amendment 168, in clause 36, page 67, line 19, leave out from ‘must’ to end of line 20 and insert

‘receive a report from the relevant youth offending team in respect of the person and take such report into consideration.’.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss amendment 169, in clause 36, page 67, line 25, at end insert

‘, and the court shall state its reasons why it is so satisfied that a detention order is necessary.’.

James Brokenshire (Conservative, Hornchurch)

The clause sets out the powers of the court on breach of injunction by a person under the age of 18 in receipt of a gang injunction. There are some detailed matters relating to the general operation of the clause that we will discuss under clause stand part, but amendments 168 and 169 are designed to make specific provision for a report from the relevant youth offending team before any court decision is made on a breach of an injunction. Amendment 169 would require the court to state the reasons why it believes that a detention order is necessary, if that be the case based on the facts and circumstances presented to the court.

The reason for the amendment is that there is a requirement to consult a youth offending team under paragraph 4 of new schedule 5A to the Policing and Crime Act 2009 and to consider any representations. It seems possible to interpret the provisions of that paragraph in such a way that there is no actual requirement to receive a report, which would be the case if we were looking at a criminal case before the youth court. The relevant youth service would provide a report in relation to that young person, which would facilitate the court’s consideration of what sanction or order may be appropriate, based on the facts and circumstances of an individual case.

In its briefing notes on the Bill, the Standing Committee for Youth Justice states:

“We believe that these Orders are in effect criminal sanctions and that therefore the full protections of the youth justice sentencing process should be applied. For example, there is no proposal that any form of pre-sentence report should be provided before the court imposes one of these Orders, nor a requirement that the judge should give reasons for sentencing to custody as they would be required to do in criminal court.”

Clause 36 inserts new schedule 5A into the Policing and Crime Act 2009 with the intention of mirroring provisions that might otherwise be available to a court under normal criminal sanctions. That has been one of the problems with the application of those types of injunction to young people: the relevant flexibility, sanctions and provisions do not currently reside in the civil court structure. The intention, therefore, is to import those sorts of concepts via new schedule 5A, to facilitate an appropriate disposal if an order is breached.

There would be a normal requirement for a court to use its powers appropriately and to demonstrate compliance with a range of other measures, including the European convention on human rights and the UN convention on the rights of the child. The lack of a requirement on the court to state publicly why it believes that a detention order is appropriate raises the question how the court would be able to demonstrate its compliance with the relevant provisions.

A detention order will require the secure estate to provide a separate regime for those children—one that is distinct from the regime applied to children detained by the criminal courts. That is certainly the view of the Standing Committee for Youth Justice. Has the Minister considered that in the context of the use of the powers and court sanctions for breach of an order? Does he agree that, if there is a court sanction and the court is compelled to state publicly that a detention order is appropriate, a separate regime would be needed for children subject to sanctions under these civil orders? Or would young people sentenced to a criminal order and those in breach of a civil order both go to youth custody?

The interrelationship between the criminal and the civil systems is technically difficult and raises a number of problems, which is why the Government have taken their time in producing proposals on gang injunctions relating to young people. Relevant approaches need to be appropriately brought together to ensure there is no disconnect between the criminal system and the civil system, as enhanced by provisions imported in new schedule 5A.

There are two further limited points. Does rehabilitation need to be a factor in the court’s consideration of advice that it receives from the YOT and its decision on whether detention is appropriate? That is why the amendment states the court’s need to comply with its obligations in its consideration of why detention is necessary. In its briefing, Justice states that

“short-term custody for children and young people of 14-17 inclusive normally includes a rehabilitative element, ie it is a detention and training order, not merely a detention order—whereas these orders are purely punitive (detention alone).”

That is Justice’s interpretation of provisions in new schedule 5A. Whether a detention order, as phrased in new schedule 5A, is a detention and training order or simply a detention order may be relevant to the court’s consideration of whether to make such an order. We may get into debates about whether the intention is to punish or protect. The European Court of Human Rights has sensitivities on the nature of the orders and the fact that they need to be seen to be preventive rather than punitive to comply with relevant legislation.

We are importing provisions and melding two separate systems together into what might be characterised as a hybrid order in the context of the gang injunctions. It is important to understand clearly the factors that the court would need to consider and what it is required to state, to ensure that the requirements of relevant human rights legislation and convention obligations in relation to children are met. The amendments are designed to probe the Minister on that point—to discover whether the matter has been considered but what the amendments propose has been judged to be not necessary. Perhaps they would add something to ensure that the orders—in particular, the provisions relating to breach—properly reflect relevant legislation. The orders will be open to challenge if the relevant measures that might otherwise apply to a sanction given by a youth court on a criminal matter are not appropriately addressed.

David Hanson (Labour, Delyn)

I hope that I can reassure the hon. Gentleman. This provision relating to breach of an order would be the last resort, as has been stated in all of our debates on the matter to date, both on the Floor of the House and in Committee. We do not want a breach in the first place, but, if there is one, detention should be the last resort. If a breach occurs and a detention order of some sort is put in place, the injunction will have failed in its purpose, which is to ensure that individuals are not involved in and are removed from gangs. We have regimes for that, so it needs to be made clear that the provision relating to breach is the last resort and its use would signal a failure.

I have some sympathy with the points made by the hon. Gentleman, which are fair. We can look at how we can strengthen the provisions. The judge is already required under the legislation to consider representations made by the YOT, but that could be strengthened by a written report. I have no problems with that; it is a sensible suggestion. I am happy to look at that amendment, to test it and proof it, and perhaps to return to it on Report, if the hon. Gentleman will withdraw it today.

I anticipate that a judge handing down a detention order will give his or her reasons for doing so. However, as with the amendment on the YOT report, I think that the principle of amendment 169 is helpful. It could strengthen the provisions and may offer clarification. I have no problems with that. I hope, however, that the hon. Gentleman will withdraw that amendment, too, so that we can test it using our great powers of legal support, to ensure that it would not have unintended outcomes. Nevertheless, it is helpful and I am happy to consider it.

The hon. Gentleman asked fair and legitimate questions about whether there will be a separate regime. We intend to discuss the type of regime with the Youth Justice Board, which is responsible for establishments in which an individual will be detained. We want to ensure that all the board’s experience is brought to bear on the regime, which will be drawn up in accordance with the needs of the individual child or young person, and of the types and groups of young people brought in. I must emphasise that that work has not been done to the extent that the hon. Gentleman might wish. The provisions are intended not to be breached. We do not want to see people going into detention.

James Brokenshire (Conservative, Hornchurch)

I understand what the Minister says. If an order is issued, one would hope that it will be effective and that an individual will desist from following a particular path. However, we have to contemplate orders being breached. If, ultimately, everything has not worked out and detention is thought to be appropriate, will there be a training element attached, as is the case with normal youth custody? It would be a missed opportunity if the period of detention were not used to address the behavioural or other problems that had led to a breach.

David Hanson (Labour, Delyn)

The detention for breach is entirely separate from a detention for conviction for a general criminal offence, so the regime would not be the same as that under normal youth justice. We have not come to any conclusions about the type of regime, but we are going to discuss it with the Youth Justice Board. I hope that there will not be breaches. Part of the logic of the clauses, which the Government have discussed internally, is that if we only had lesser sanctions than the ultimate sanction of detention, there would probably be further breaches. The fact that there is an ultimate sanction of detention for breach means that an individual young person will know that they face a serious consequence if they breach an injunction. We have discussed the implications of that with the Department for Children, Schools and Families and the Ministry of Justice, but we have to have an ultimate sanction; otherwise, we water down the whole purpose of the injunction.

Finally, all of the legislation is compliant with the European convention on human rights and the United Nations convention on the rights of the child. As ever, that could be tested in a court or by both parties, but we believe that it is compliant.

James Brokenshire (Conservative, Hornchurch)

On decision, I am interested to note that the Minister has had discussions with his colleagues in the DCSF and other Departments. Is he prepared to consider giving young people in these situations some quite specific support? If a young person who is in a gang goes into some form of youth custody, their gang membership may be hardened because of the other people who may be in that establishment. There might need to be a separate regime to protect that young person if the intention of the order is to prevent a pattern of behaviour that has become ingrained through gang membership. Is that line of thinking being developed?

David Hanson (Labour, Delyn)

If we reach the stage where the young person is detained, the whole thing has failed. If they are detained, we need to make sure that when they are returned to the community, they do not go back into a gang, and we do not want them to be involved in a gang in any youth justice facility either. Regimes drawn up by the Youth Justice Board to manage gangs in existing facilities are already in place, because it is not uncommon for gangs to form in prison or for members of rival gangs to find themselves in prison. Strategies are in place to ensure that we manage that now and the system under the Bill will be no different.

Whether there is an entirely separate regime has not yet been considered. The Youth Justice Board will reflect on the matter, but how we manage individuals if the new system fails and they end up in prison is crucial if we are to succeed in turning their lives around. I hope that that helps the hon. Gentleman. I will happily look at bringing back on Report a revised version of his amendment—or perhaps even the same version—to strengthen the provisions and to ensure that those objectives are met.

James Brokenshire (Conservative, Hornchurch)

I am grateful for the Minister’s constructive response to the amendments. I will not press them to a vote. I hope that he will take legal advice and give the amendments appropriate consideration in the light of the need for clarification to mitigate any risk of challenge. I understand that that risk cannot be completely avoided. I was interested to hear what he said about the regime that might operate should detention prove necessary because all other interventions have failed. I beg to ask leave to withdraw the amendment.

James Brokenshire (Conservative, Hornchurch)

I have a few more general points to make on the clause and the interrelationship between the gang injunction provisions and the ordinary use of the criminal law.

As with antisocial behaviour orders and other orders, there might be overlap between the criminal law and the preventive order. If a gang injunction is issued at the same time as some other form of criminal sanction is imposed, how will the concurrent jurisdictions of the civil and criminal courts work? We did not explore this potential conflict when gang injunctions were introduced for adults. It is pertinent, therefore, that we explore the impact of gang injunctions on young people, particularly as the powers have yet to be tested and there is no experience of their use in relation to adults, let alone in relation to children.

What would happen if an act constituted a breach of not only a young person’s gang injunction but of the criminal law? Which would have primacy? Gang injunctions are intended to be dealt with by the civil courts, but if an action breached the criminal law a case would have to be proven before a criminal court. We understand what would happen if a gang injunction were issued on a stand-alone basis, with no extraneous criminal procedures, but if there were that interrelationship between the civil and the criminal, how would the process work? It would perhaps be easier to prove a breach of an injunction on the balance of probabilities. Would that impede or assist a criminal case? We are talking about two different courts and regimes: the civil and the criminal. Is it intended that the criminal route would take primacy?

The Minister has previously said that criminal prosecutions would be preferred to the use of civil orders. Such factors would be tested in the pilot operations that the Minister has, I think, already mentioned, but, because of the range of new provisions that the Bill seeks to import into civil proceedings, the role of the district judge might also need to be considered. A district judge might not be familiar with using such powers to deal with a breach. How does the Minister intend to work with the judiciary, on further training on the powers, for example?

There is the potential for double jeopardy. Is there any perceived risk in the same facts and circumstances being connected to both a criminal sanction and a breach? Antisocial behaviour orders and some of the other orders that the Government have introduced have been criminal sanctions, breaches of which trigger a criminal offence. We now have a civil breach and a criminal sanction sitting alongside each other, and they cannot be dealt with by the same court at the same time, although magistrates might be given a dual mandate. In essence, the approach is modelled on the traditional contempt of court approach in the civil courts.

An additional factor is that a breach of a civil order—a gang injunction—would appear to be not a criminal breach but a civil one. How does the Minister contemplate the information being recorded? Would it be flagged up on the police national computer, for example? How might the interrelationship between the civil and the criminal work, and what disclosure might be necessary in relation to, for example, Criminal Records Bureau checks? This is a complex area of law, melding concepts from the criminal law into the civil system. My comments are intended to check and to understand better how the Government intend the new approach, which is a new view on how quasi-criminal sanctions can be used in a more purely civil setting, to operate. Therefore, it would be helpful to hear how the Minister expects the interrelationship between the two regimes to operate in practice.

David Hanson (Labour, Delyn)

The hon. Gentleman makes valid points and it is reasonable to test them in Committee. Self-evidently, if there were civil and criminal proceedings against an individual, both courts would know what was happening. That would be normal practice. It is not unusual, and it happens now. Whatever the system might be, it would ensure that both courts knew that an individual was before them.

The hon. Gentleman gave an example of a concurrent breach of an order and a criminal offence. We would expect the breach to be dealt with relatively speedily and that the criminal offence would be understood at the time of the breach and would be taken into account by the judiciary accordingly. The activity on the breach would probably be dealt with quicker than the criminal offence, and when the criminal offence was dealt with that breach would be taken into account.

I might be missing the challenge, but I do not think there is a problem with the two systems working side by side. We need to ensure that we give guidance to the judiciary. We need to ensure that in both civil and criminal courts individuals are aware of the Bill’s provisions. As the hon. Gentleman is aware, a pilot will operate in a relatively small number of areas initially. If problems are identified, we can rectify them in due course.

James Brokenshire (Conservative, Hornchurch)

I hear what the Minister says about the desire to deal with breaches of the orders speedily. He will appreciate that the criminal courts might deal with separate breaches of the criminal law for which concurrent, rather than consecutive, sentences may be handed down. Let us suppose that a multiple breach of the civil order is considered first and detention is thought to be appropriate because of the seriousness and, sadly, the nature of what occurred? The court dealing thereafter with the criminal offence might also wish to impose some form of detention. Would there be some linkage? If both matters are being considered by the same court, a judge may give a sentence of a year for each offence, to be served concurrently, but that concurrence is not available to the criminal court at that latter stage.

David Hanson (Labour, Delyn)

We are in danger of micro-managing the outcomes of the judicial system. I say that with the utmost respect to the hon. Gentleman. We are giving legal powers to impose a gang injunction. Breaches under the gang injunction could lead to detention if they are sufficiently repetitive or serious. A range of other matters could be considered in parallel by different courts or by the same court. I cannot determine the outcome today. The hon. Gentleman’s valid points may need to be reflected upon, but I cannot give him the definite answers that he seeks based on a range of potential circumstances.

Offences would not be recorded on the police national computer as matter of course, although individual forces may record them for enforcement purposes. An offence would not automatically be uncovered by a CRB check, but it might come to light in an enhanced CRB check, depending on the nature of the breach and the comments of magistrates or judges who dealt with it. Breach hearings could be postponed. All sorts of things could happen. Perhaps this is the place to test the consequences of the activities of a particular judge, but I cannot clarify those issues to the extent that the hon. Gentleman wishes. I hope he will ultimately accept the clause as proposed.

Clause 37

James Brokenshire (Conservative, Hornchurch)

I shall speak on the requirement for family circumstances to be taken into account before making an ASBO. We recognise the sense of the provision, given inter-generational deprivation and sometimes the abuse of children in the home. While not justified or condoned, behavioural issues may arise when a young person is in a very disjointed and unstructured family setting. It is interesting to note the comments of Joyce Moseley, chief executive of Catch22, the young people’s charity, on these provisions. She said:

“In our experience, parents do want help when it comes to improving their children’s behaviour. If there is now to be a process of mandatory assessment of parenting needs, then these assessments must be followed up with targeted support to help parents develop the skills necessary to make a real difference to their children’s behaviour.”

That fastens on an important point about the requirement to report on family circumstances. Is it a report to aid the court when granting an ASBO and the conditions to be attached to it? That may be relevant in determining what is appropriate in making of one of these orders. Is it intended, through parenting orders or some other means, to provide preventive support, to try to break a pattern of behaviour that has triggered the interest of the court and other agencies?

Catch22 has said it would like the following included in parenting assessments: housing situation, financial situation and debt, family breakdown, conflict and bereavement, worklessness and/or long working hours leaving insufficient care of children, mental health in the family, and drug and/or alcohol dependency in the family. I would not like to see a list set out in the Bill, but clause 37 recognises that the Secretary of State would issue regulations in respect of the provisions. The helpful suggestions made by Catch22 would be relevant when considering subsequent regulations.

We need to look at earlier intervention for young people who may be displaying delinquency or behavioural issues. Whole family approaches and interventions are relevant for examining the causal factors behind a young person’s behaviour. Therefore, it is sensible to have the formal requirement of a report when considering an ASBO. The question is what happens then and what further interventions may be provided to assist that young person and the family situation. As we have said in debate on other injunctions, the hope is to prevent breaches from taking place. The purpose of an order should not be, as some may see it, to criminalise a young person and get them before the courts in a different way. It needs to be preventive to be effective, to stop offending and provide relief for families and communities. We will come to that in relation to ASBOs in a broader sense in the next clause.

It would be helpful to understand how the Under-Secretary sees clause 37 operating in practice. There is sense in it, but the question is how it will be applied. Does he see it as a mechanism for facilitating wider interventions, or would it simply be limited to informing the court when it makes decisions on granting an ASBO and the conditions attached to it?

Alan Campbell (Labour, Tynemouth)

It is, as ever, a pleasure to serve under your chairmanship, Mr. Cook.

I am grateful to the hon. Member for Hornchurch for his helpful comments. I also pay tribute to the work of Joyce Moseley and Catch22; we should listen carefully to her wise words.

Clause 37 requires agencies considering applying for an ASBO against a 10 to 15-year-old to prepare a report on his or her family circumstances for the court. The purpose of that, to answer the hon. Gentleman’s question, is for the court to be fully apprised of the young person’s background before making a decision on whether to grant an ASBO. Moreover and crucially—this is linked to our future deliberations—the court must also consider whether to grant a parenting order alongside the ASBO. The report will help in reaching that decision.

The hon. Gentleman talked about the reasons why young people might behave in an antisocial way. It is suggested that it is often the result of a chaotic home life. The reality is that some parents want support for their children, but do not know how to ask for it or are not sure what is available. The assessment would, therefore, inform the agencies dealing with the young person and the family of the problems, and enable the agencies to find the means of addressing them. If we did not have the clause—if we did not take this further step, and there was no legislative aspect—it could not be guaranteed that practitioners would obtain information about family circumstances, and the situation would not further improve. They might miss important information about a young person’s home circumstances when they decide to issue an ASBO. That is why we are introducing the provisions.

The hon. Gentleman rightly points out that it is important that we intervene at an early stage to nip in the bud antisocial behaviour. If it escalates, it is a problem not only for the individual and the family, but for the wider community. An assessment is a vital part of the process. I strongly believe that we should be challenging parents to do more to prevent their children from getting involved in antisocial behaviour and offending. The reality, however, is that we need to support them to do more. There is evidence that when that happens, it often has a positive effect. The difference between the current situation and what we are suggesting is that agencies would require it to happen. We would, therefore, catch the minority of individuals who currently may fall outside the system.

I welcome the broad support of Catch22, as well as that of the Magistrates Association. A broad range of antisocial behaviour practitioners support the provisions.

Clause 38

James Brokenshire (Conservative, Hornchurch)

We come to the question of mandatory parenting orders on breach of an ASBO. As has been highlighted in preceding debates, the issue of antisocial behaviour is pertinent. According to the National Audit Office, the cost to Government agencies of responding to reports of antisocial behaviour in England and Wales is approximately £3.5 billion a year. In 2008-09, 3.7 million incidents of antisocial behaviour were recorded by the police in England and Wales, equivalent to more than 10,000 every day. On average, 70 per cent. of the population perceive high levels of antisocial behaviour in their area, with the young and the less well-off being disproportionately affected, so I understand why the Government are proposing the measures. The question is whether they will be effective and what difference they will make should they be brought into effect.

All of us in the Committee are acutely aware of the impact antisocial behaviour can have on communities, families and individuals. It was brought into focus by the terrible case of Fiona Pilkington, a mother who killed herself and her daughter Francesca because of intimidation and the pressures of antisocial behaviour, feeling that there was no response in the community to deal with it appropriately. It is disturbing to hear the reports from the inquest into their deaths. The family suffered 10 years of bullying and intimidation from a gang of teenagers who congregated outside their home in Leicestershire and hurled missiles, shouted verbal abuse and committed other unspeakable acts.

The question the case raises is how that was allowed to happen. I appreciate that the case goes wider than the clause, which deals with mandatory parenting orders, but it provides a context for trying to break patterns of offending. Will imposing mandatory parenting orders on the breach of an ASBO, as contemplated in the clause, be effective considering the nature of ASBOs? Is it simply too late in the day to change patterns of behaviour at that stage?

There are questions about the effectiveness of ASBOs as a means of preventing antisocial behaviour, as the Under-Secretary is aware, given that we have previously debated the level of breaches. Between June 2000 and December 2007, 54 per cent. of ASBOs were breached. The breach rate for 10 to 17-year-olds is even higher—around 64 per cent. Research by the Library indicates that on average each ASBO in England and Wales has been breached 4.1 times. Nearly three quarters of breached ASBOs have been breached more than once, with the overall breach rate of ASBOs by juveniles running at 64 per cent., as I said.

The Government are proposing a mechanism to try to involve parents in a mandatory format at the latter stage, once an ASBO has been breached. Despite questions about the effectiveness of ASBOs, it is interesting to hear Ministers claim that the proposals would help to prevent young people from being sucked into a life of crime. However, the number of parenting orders each year under the proposals could, in fact, be just a handful. Figures in the regulatory impact assessment of the Bill published by the Home Office show that because ASBOs have fallen out of favour and fewer and fewer are being issued, there were just 126 breaches of ASBOs by 10 to 15-year-olds in 2007—the latest year for which figures are available.

It would seem, therefore, that the mandatory parenting orders that would be covered by the provision will be very few and far between, particularly considering that discounts would need to be applied for multiple breaches. Some of the 126 breaches of ASBOs are likely to be multiple breaches, so that will reduce the number even further. Presumably, further discounts would need to be applied to take account of young people in local authority care and the fact that the courts have the right not to issue a parenting order in exceptional circumstances. It is perhaps hardly surprising, therefore, that the RIA acknowledges that the number of cases when a mandatory order, as set out in clause 38, would apply is “small”. Even then, the effectiveness of the measure in changing behaviour is questionable, given that patterns of behaviour will have been well established if a young person has received an ASBO and has then breached it.

The Minister also knows that parenting orders are available on the initial grant of an ASBO, under provisions in the Crime and Disorder Act 1998. In deciding whether a parenting order on the issuance of an ASBO is appropriate, the court has to take account of various grounds of suitability, and some guidance is provided by the Youth Justice Board in its briefing note on parenting contracts and orders:

“The suitability of a parent or guardian for a parenting order is normally determined by an assessment process carried out by a practitioner from a YOT. If the assessments provide evidence that parents could be supported to positively influence their child’s behaviour and the parents are not willing to engage with support voluntarily it will usually be appropriate to recommend a parenting order to the court. The recommendation should take into consideration the potential needs of both the parents or guardians and the child and the likely effectiveness in terms of changing their behaviour.”

If there is a requirement on the issuance of an antisocial behaviour order to consider suitability for a parenting order at that point, and the youth offending team deems the parents not “suitable”, who will be left in relation to the mandatory requirement that will be triggered on the breach? The court will have already considered on the grant of the order whether a parent is suitable and whether a parenting order is likely to be effective. If the order is then breached, will the case fall into the exceptional circumstances category? How will that operate? How many parents will be caught by the provision if the youth offending team has already determined that a parent is unsuitable? If the team determines that the parent is unsuitable at the time the ASBO is granted, what changes between the granting of the ASBO and its breaching? I genuinely struggle to see how the provision adds effectiveness if there is already a process for assessing the effectiveness of a parenting order.

It is also worth looking at the profile of young people who breach their ASBOs. A December 2004 study by the Youth Justice Board identified the majority of young people entering custody as a result of breaching an ASBO as prolific offenders, with 43 young people who received custody for such a breach having a total of 1,779 offences between them. One of the problems in youth offending at the moment is prolific offenders. Would a mandatory parenting order be effective for the category of young people who breach their ASBOs?

One only has to look at the appalling case of James Moore. He received an ASBO and multiple control and supervision orders, which he breached, yet little seemed to be done about it. Sadly, he went on to kill 16-year-old army cadet Joseph Lappin by stabbing him through the heart with a 4-inch blade, at a youth club in Everton, Liverpool. That appalling case is instructive, and perhaps puts into context the likely effectiveness of the orders, which will also have been considered earlier in the process. Moore had breached his ASBO 10 times, there had been 41 individual complaints against him, and he had also breached further referral orders several times. It comes down to what should happen on the breach of an ASBO.

At present, there appear to be no meaningful consequences for multiple breaches. At the Labour party conference last October, when the Prime Minister trailed the orders contained in the Bill and in particular in clause 37, he said that

“we have said that every time a young person breaches an ASBO, there will be an order, not just on them but on their parents, and if that is broken they will pay the price.”

What does the Minister understand by “paying the price”? We are talking about the breach of an ASBO triggering a mandatory parenting order. Is that the price the Prime Minister was contemplating?

Will the Minister expand on what the regulatory impact assessment says about the sanctions for a breach of an ASBO? The RIA says that they range from a fine or community order to up to two years in youth custody, although in practice that will be reserved only for the most serious and exceptional circumstances. I entirely understand the desire not to put young people in custody too hastily, but what are regarded as the most serious and exceptional cases? Something appears to be going wrong if a breach of an order on multiple occasions does not appear to trigger a meaningful sanction that protects the community and gets the young person to change their behaviour.

There is also the question of the relevance the order would have for children already in local authority care. The sad reality is that a disproportionately high number of young offenders come from the care system. More than a quarter of young men and nearly half of young women in juvenile prisons have spent time in care. Those who have experienced a sustained period in care are more than twice as likely to offend as other young people. Does the Minister feel that the measure would add anything? Would it place further responsibilities on local authorities that might be failing in their support for young people who have been issued with an ASBO and then go on to breach it? My reading is that a mandatory parenting order does not apply to a local authority or to that sort of arrangement, so another category of young people breaching their ASBOs would fall outside the provisions of the clause.

Parenting orders are already available on the issuance of an ASBO. Why did the Minister not consider making it mandatory for a parent whose child has received an ASBO to be given a parenting order at that stage? That might allow earlier intervention. If an ASBO has been granted, something quite serious has occurred, so why was it decided to make the mandatory parenting order requirement sit at the time of the breach, rather than when the ASBO was issued? It is interesting to note that, according to the RIA, take-up of parenting orders on the granting of an ASBO is very low, for a variety of reasons: up to 2007, only 128 compulsory parenting orders were made. Can the Minister explain why that was? It is germane to our understanding of the number of orders that would be granted in relation to a breach of an ASBO.

It appears that mandatory parenting orders will not be a mainstream response. On what evidence that parenting orders will be effective at such a late stage in a developed pattern of delinquent behaviour does the Minister rely? Of the Youth Justice Board’s budget of £97 million from 2008-11, how much has been spent or is committed to be spent on each parenting order? The RIA gives a figure of about £2,000, but are the orders intended to come out of that same budget? I assume that they are, given the wording in the RIA.

How much does the Minister expect to be spent on mandatory parenting orders each year? We assume that it will be a fairly low figure, given that only a few will be handed out, but how many does he expect to be issued? What has been the experience of the operation of section 9 of the Crime and Disorder Act 1998 with regard to the court stating the reason for not issuing a parenting order? That applies when a young person has committed an offence; there is a separate regime for the granting of a parenting order in those circumstances as well.

ASBOs are sometimes issued contemporaneously with a criminal order, and a criminal breach sanction may be handed down as well. What are the parallels? What will the relationship be between the clause’s provisions and section 9? It is highly likely that there will be circumstances in which an ASBO is breached and section 9 would apply, because there will have been a criminal sanction. Which regime would apply? I assume that it would be the sanction for breach of an ASBO.

It is strange that subsection (2) suggests that a breach of an ASBO is regarded as more serious than a criminal offence. It requires a mandatory parenting order on the breach of an ASBO, but not when there has been a breach of the law. Is my analysis right? What thinking has gone into making the mandatory requirement sit on the breach of an ASBO rather than also applying it to a criminal breach that would trigger a section 9 provision?

I am trying to understand how the provision will make a significant difference to dealing with the problem of antisocial behaviour, which has a material impact on the lives of so many people in our constituencies up and down the country. Various claims have been made that the provision will make a difference, but I am left with the impression, from the evidence provided to date, that it will apply only in a small handful of cases. The provision will, therefore, have a limited effect at best, rather than being a positive step forward in dealing with the broad spread of antisocial behaviour relating to young people. That needs to be significantly addressed, because of the problems to which I have alluded.

Alan Campbell (Labour, Tynemouth)

The hon. Gentleman is right to highlight concerns that still exist in some areas about antisocial behaviour. It is his job to do that, but he seems to gloss over the progress that has been made in many areas, not least due to the work of local agencies, the police and the many brave residents who make a stand against antisocial behaviour in their area. The latest British crime survey shows that figures relating to perceptions of antisocial behaviour being a major problem in some areas are still too high, but they are coming down. We are working hard, particularly with the worst affected areas where perceptions are still too high. That is why we need to ensure not only that partners have legislative powers, but that they are using them and that the powers are effective.

I will outline the thinking behind the proposals, and I hope that will address the hon. Gentleman’s concerns. He talked about breaking persistent offending and the behaviour that underpins it. Our contention is that parents have a crucial role to play. Many parents engage in the process and have a beneficial effect, but the reality is that not every parent is held to account.

The hon. Gentleman rightly pointed out that, in many cases, young people who get ASBOs breach them. He was also right to reflect on the fact that ASBOs seem to be synonymous with young people and antisocial behaviour when, in fact, around half of those that are issued do not go to young people, but to older people. I do not defend breaches of ASBOs, and I certainly do not defend the indefensible in some of the cases that he highlighted. There is, however, an underlying point, namely that ASBOs are part of a process. Nobody has ever said that they are the be-all and end-all, or that they should necessarily be the first intervention. They are part of a process. Breaching an ASBO says more about the people who breach them than about the ASBOs themselves. It is important that there is an escalatory approach and, if a breach does occur, that the people involved in the process, including the courts, hold the individual, and if necessary, the parents, to account.

We cite very often—because it is true—an authoritative report from the NAO about the use of antisocial behaviour powers. On the first intervention, around two thirds of individuals change their behaviour and by the third intervention, 93 per cent. have changed. From that, we can work out that 7 per cent. do not change. We have to ensure that every power and influence we have is brought to bear, and that includes holding parents to account.

I will set out briefly the current situation and what clause 38 would do. The clause would require the court to make a parenting order when a 10 to 15-year-old breaches an ASBO. It is already a requirement that the court must consider making a parenting order when placing an ASBO on a young person. The requirement ensures that the presumption is that a parenting order would be in the interests of preventing further antisocial acts by the young person. Therefore, the big difference for the hon. Gentleman is that we want to move from may to must, to make sure that parents are involved, although many of them already are. They can play a vital role in preventing their children from offending or reoffending.

James Brokenshire (Conservative, Hornchurch)

I hear what the Minister says but the key point is the time when the mandatory requirement takes place. He is right to say that parents need to be involved in the actions of their children, and to be held to account. The question is why that occurs or is mandated only upon breach, rather than on the grant of the ASBO or the committing of a criminal offence.

Alan Campbell (Labour, Tynemouth)

I was about to come to that point. I return to a phrase I have already used today—our determination to support parents but also to challenge them to accept their full responsibilities. Parents often seek help and we will seek to provide it. However, some are unwilling or unable to do so. The hon. Gentleman talks about the point at which we seek to intervene, as if there were no intervention at earlier stages. I would like to think that there is involvement of parents at the earliest stages. I have been out in my constituency with local police and my local authority on a scheme called Child Safe, which entails going around, particularly on Friday and Saturday nights during term-time, taking alcohol off young people and then taking them home. From seeing the reaction of some parents, I know that intervention is sufficient to prevent their children from getting involved not only with alcohol but with the antisocial behaviour that sometimes follows. The approach does not always work with all the young people who are picked up, so there is a need to escalate to the point when it becomes mandatory for the parents to be held to account.

We have to see the proposals as a process in which people are held to account throughout. When they are not willing to be involved voluntarily, we should mandate them. That is where the provision comes in. The hon. Gentleman talks about engaging parents and changing behaviour. I would go so far as to say—though I have no evidence to back it up—that the cases when parents do not get involved may be those relating to the worst and most persistent offenders. The chaos of the household that leads the child to antisocial behaviour may also be reflected in the unwillingness of the parents to engage in the process or show much interest in what their children are doing. I cannot point to the evidence, but that is my gut reaction.

James Brokenshire (Conservative, Hornchurch)

I respect everything the Minister says. My concern, as I have previously indicated, is that very few parenting orders under the existing arrangements appear to be issued in relation to the grant of an ASBO. It would be helpful to understand what factors lead to that, because it may affect the operation of the clause. Equally, it would be helpful to understand how many parenting orders a year the Minister expects to fall within the ambit of the clause.

Alan Campbell (Labour, Tynemouth)

Again, the hon. Gentleman pre-empts my comments. The nub of the issue is who will be caught by the provisions, without which there would be no legal consequence for parents of children aged 10 to 15 who breached an ASBO. Under the status quo, antisocial behaviour practitioners would continue to rely on the current system for making the parents of young people with ASBOs take responsibility for their children’s behaviour. That is entirely voluntary. Shifting from that voluntary system to our present proposals is the important step.

As I have mentioned, it is not a matter of involving parents at a late stage, as the hon. Gentleman said. The Youth Justice Board advises us that about 85 per cent. of parents are willing to engage with the authorities, but there is little leverage to compel unwilling parents to co-operate. That is the point, I think, behind the hon. Gentleman’s question. It is about making that minority get involved in the process, because, as the law stands, that cannot be done. The provisions are about bringing them into the system and holding them to account.

James Brokenshire (Conservative, Hornchurch)

The Minister probably knows that section 9 of the Crime and Disorder Act 1998 states:

“Where a person under the age of 16 is convicted of an offence, the court by or before which he is so convicted...if it is satisfied that the relevant condition is fulfilled, shall make a parenting order; and...if it is not so satisfied, shall state in open court that it is not and why it is not.”

Therefore it appears that there is compulsion and an ability to make parenting orders. The breach of an ASBO is effectively a criminal offence, so the section 9 regime would operate. The Minister is obviously highlighting deficiencies in the operation of section 9, which it appears already provides a mechanism to impose a parenting order if that is thought appropriate.

Alan Campbell (Labour, Tynemouth)

I am saying that we want to ensure that we have a comprehensive system in which the issue is taken up and in which it is not the case that individual cases are looked at in isolation and the mandatory element is not taken up by the court. My understanding is that section 9 will not apply to criminal breaches of ASBOs and that new section 8A will. We are thus seeking to change the situation.

Perhaps the hon. Gentleman is reading into that the idea that we are not content that the current system is clear enough or, most important, that it is used sufficiently, and that is what is behind the provisions. We want to ensure that parents are involved at an early stage and bring a positive influence to procedures, and we accept that in the vast majority of cases they are involved in that way. We hope that is one reason why young people change their behaviour.

However, we accept that in a small minority of cases—about 15 per cent., according to the Youth Justice Board—parents do not willingly get involved, and we want to ensure that the system catches them. It is a matter of giving leverage with respect to the most difficult parents, to ensure that they accept their responsibilities.

James Brokenshire (Conservative, Hornchurch)

I note everything that the Minister says, but he has not responded to the specific question about how many parenting orders he would expect to be issued per year. Would it be five, 10 or 20? Can he give any suggestion, so that we can assess the likely effectiveness of the clause?

Alan Campbell (Labour, Tynemouth)

That follows from the remarks I have just made: the provisions are designed to hold to account the minority of parents who are not engaged in the process. We are not talking about hundreds of instances, but about the worst cases in which breaches occur. Many ASBOs are effective and are never breached. Many parents get involved in the process, but we are concerned about a minority of cases. I cannot give the hon. Gentleman a definitive answer. I shall try to find a closer answer.

We are talking about relatively few cases, because we do not see the problem as a wide one. It is about engaging the minority of parents who, as the law stands, do not engage voluntarily where the law is not strong enough to ensure that that is what they must do. The provision is about providing the tools to ensure that parents who require support to manage their children’s behaviour, or who refuse to engage with authority, get the help they need. Implicit in the hon. Gentleman’s comments is the question whether there are resources to ensure that that happens. The resources are there at a local level through family intervention projects and the many ways in which engagement can already take place, and we expect them to be widely used.

Finally, the hon. Gentleman asked about local authorities where children are in care. Many such children are the most complex and often tragic cases, which is why they are with the local authority in the first place. We expect that local authorities acting as the parent or guardian would not only accept that responsibility and engage, but would bring all their resources and expertise to try to change the behaviour of children. They may have more influence and resources than some parents have—or at least believe they have—to come to terms with the behaviour of the child involved.

I hope that with those comments the hon. Gentleman understands the Government’s position. We seek to ensure that parents are engaged and to move beyond just allowing them to be brought into the system, to actually ensuring that they are in the system, because at the end of the day they have a crucial and positive role to play. That is good for their children and good for the wider community. I commend the clause.

Frank Cook (Labour, Stockton North)

It has come to my attention that some members of the Committee are indicating that they feel somewhat chilly. The question of the temperature was raised 15 minutes before the Committee started this morning and I had hoped that it would have been corrected by now. Rest assured that it will be rectified for the afternoon sitting. I will see to that personally.

Clause 39

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I beg to move amendment 89, in clause 39, page 79, line 13, at end insert ‘or’.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss amendment 88, in clause 39, page 79, line 15, leave out from ‘vehicles)’ to end of line 23.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

These are not very weighty amendments. While “or” is very interesting—it is of course the lead amendment—amendment 88 is perhaps of greater significance. If I may, Mr. Cook, I will deal primarily with amendment 88.

Amendment 88 seeks to prevent the Secretary of State from adding to the range of categories covered by the licence things that the Secretary of State might deem to be appropriate to be included by order. I can see the advantage for Government in doing that, because they want to be able, from time to time, to extend the range of activities. Broadly speaking, I am against that. I do not like giving delegated powers to the Secretary of State if I can avoid it and I do not see a compelling need in this case.

I know perfectly well that parliamentary control over secondary legislation is jolly slight. I cannot remember offhand whether this is an affirmative or negative resolution procedure—I should have checked but I do not know. No doubt the Minister knows off-hand. Whether it is or it is not, if it is negative it will never be debated; if it is affirmative it is not amendable. It is objectionable on both counts, so I am against it and I hope that the Committee is too.

Andrew Rosindell (Conservative, Romford)

It is a pleasure to welcome you back to the Chair and to serve under your chairmanship, Mr. Cook.

I want to remark briefly on the comments of my right hon. and learned Friend the Member for Sleaford and North Hykeham on his proposed amendments. It is useful that the amendments have been tabled, because the Minister needs to clarify precisely what he seeks to achieve.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Extension of powers.

Andrew Rosindell (Conservative, Romford)

That is one thing, but the extent of those powers needs clarification; “such other activities” needs to be clarified. I probe that matter in the hope that the Minister will clarify it, and we can clearly see exactly the other actions upon which he—or perhaps she at a later date—would want to act. Without such clarification, it is difficult to know whether we can support the clause. I thank my right hon. and learned Friend for tabling the amendments, and I await the Minister’s clarification.

Alan Campbell (Labour, Tynemouth)

Clause 39 provides for the regulation of vehicle immobilisation businesses by the Security Industry Authority and, via new section 4A(2)(c), for business licensing to be extended to other licensable sectors by means of separate designation by the Secretary of State. The right hon. and learned Member for Sleaford and North Hykeham and I have served together on a number of Committees, and he is entirely consistent in his opposition to the approach and to its underlying principles. I doubt whether I will assuage his long-held view.

I confirm that the affirmative rather than the negative procedure will be used. We have no plans to introduce business licensing to other sectors of the private security industry, but we consider it sensible to leave open that possibility. Failings in another sector of the private security industry might mean that regulation is needed at business level in the same way as has been identified in the vehicle immobilisation sector, so we do not want to rule that out. However, as the right hon. and learned Gentleman knows, if we went about the matter in another way and were seeking to take action on that, it would require primary legislation, which it is not always possible to access.

It is useful that the Bill is on the stocks, and we have deliberately moved vehicle immobilisation into it, not least because it is a big problem in many of our constituencies. Primary legislation might not always be available if we wished to move further.

It is also possible that regulation at business level could become the most appropriate way to regulate a sector or sectors of a particular industry, rather than regulation at individual level. We simply do not want to rule out that possibility, or miss the opportunity should we have it. I shall give the right hon. and learned Gentleman an example, which I think has already been acknowledged. We are considering the activities of bailiffs. The right hon. and learned Gentleman will probably know from his postbag that some of their practices are almost as despicable, if not as despicable, as those of some of the wheel-clamping companies. Were we seeking to move on that behaviour—for which I think we would have public support—we would want to be able to do so at the first opportunity. That is why, despite the right hon. and learned Gentleman’s opposition to the underlying principle, we support having the power available to the Secretary of State.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

May I respond, Mr. Cook? I understand why Governments do this; they always do it. We did it when we were in office, and will doubtless do it when we get into office again. I would be much happier with the affirmative procedure if the time for debate were longer—it is usually 90 minutes—and if the motion were amendable. If motions were amendable, I would not have a great deal of complaint about the affirmative procedure, but they are not and that is why I constantly complain. I agree that there are advantages in using a statutory instrument rather than primary legislation—that speaks for itself—but it is the absence of amendability that I find so offensive.

I shall not press the amendment to a vote, because I do not believe that I have the support of big battalions on it, but this is an opportunity once again to complain and to say that the secondary process would be a lot more acceptable if motions were amendable.

I beg to ask leave to withdraw the amendment.

James Brokenshire (Conservative, Hornchurch)

I beg to move amendment 171, in clause 39, page 79, line 33, at end insert ‘or agent’.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss amendment 172, in clause 39, page 79, leave out lines 41 to 43.

James Brokenshire (Conservative, Hornchurch)

Amendment 171 is technical and probing. I wish to better understand the ambit of the clause. The insertion of new section 4A in the Private Security Industry Act 2001 provides for the licensing of businesses. As I understand it, employees fall outwith subsection (4). My reading is that a licensed business is a licensable activity and that employees of that business should not have to go through the same arrangements as a business and provide registration. They do, however, have to meet requirements in relation to their individual activities.

I seek clarification of the relationship between the rights of employees and those of agents. It is possible that someone may not be an employee—they may be self-employed—but may be engaged by a business as an agent. The regulated business may rely upon an agency and its activities may be carried out by that individual. This probing amendment seeks to understand how agency and self-employed contractors providing services on behalf of a business are captured by new section 4A.

I understand that if one has a licensable business, the provision is not intended to capture employees. Employees conducting activities must have the appropriate Security Industry Authority licence, so the provision is trying to avoid duplication. An agent, however, is not an employee in strict legal terminology; in other words, an agent is not employed and may have a contract for services rather than for employment. However, they act in the capacity of an employee, albeit through a separate contractual arrangement, and fall outwith the definition of subsection (4). Is that the intention? Might the concept of agency need to be considered further in relation to self-employed persons employed by a regulated business? They would not have to register as a business in their own right if they were covered by regulations. Is there a risk of duplication? Will the Minister reflect upon the matter?

Tony Baldry (Conservative, Banbury)

This is the first of the amendments that relate to wheel-clamping, other than that tabled by my right hon. and learned Friend the Member for Sleaford and North Hykeham, but that was of the general sort that he always tables—

Douglas Hogg (Conservative, Sleaford and North Hykeham)

That is a rather disparaging way of putting it.

Tony Baldry (Conservative, Banbury)

With great Ă(c)lan, I hasten to add.

I wonder whether we can establish the casus belli of the issue. It would be helpful to recap.

Aeons ago, it seems, when the Committee took evidence—Bill Committees now do so as though we were Select Committees—the president of the AA gave evidence. I cannot recall whether you chaired that session, Mr. Cook, or whether it was Sir Nicholas. I asked Edmund King what the AA would like to see in the Bill. Lo and behold, no sooner had he given his shopping list than the Minister, like Cinderella at Christmas, produced a list that I think it would be fair to say—I do not know other colleagues’ position—met most, if not all, the points of concern raised by the AA and others among us about wheel-clamping and the public mischief caused by it hitherto.

On the back of the amendment tabled by my hon. Friend the Member for Hornchurch, one question is still outstanding about how such companies might be controlled, although it might just be my misunderstanding. I think the Government have dealt with wheel-clamping per se, but what is their position on people who place what look like parking tickets or demands for fines on vehicles? They are effectively obtaining pecuniary advantage by deception, as they are giving the impression that the ticket is a statutory demand when it is not.

When the AA and others gave evidence, they said that practice would still be a public curse, because there was a danger that what we were doing would only cause wheel-clamping to be displaced by the placing of alleged financial demands on vehicles and the chasing up of such demands. I have had correspondence from constituents, as I am sure have other colleagues from all parties, who have been persistently chased by companies wishing to extract purported fines from them. Only when they have asked in return, “What is your statutory justification for seeking to extract this money from me?” have the companies eventually gone away, but not all people do so. As far as I am concerned, that is the only serious issue left in relation to the measures, given the Minister’s helpful concessions earlier in our proceedings.

Frank Cook (Labour, Stockton North)

Order. I have been rather tolerant with the hon. Gentleman. Wonder was the inspirational motive behind his contribution, but we all wonder. Personally, I was wondering what his speech had to do with amendments 171 and 172, but doubtless the Minister will tell us.

Alan Campbell (Labour, Tynemouth)

I have been called many things, but Cinderella at Christmas, or Cinderella’s fairy godmother, is not one of them. [Interruption.] We will leave the ugly sisters out of it.

You will tell me if I am out of order, Mr. Cook. The hon. Member for Banbury raises an alternative to what we are trying to do in the Bill: what would happen if the wheel-clampers decided to use ticketing as a way to avoid the provisions? We have discussed a range of issues, including that one, with the Department for Transport. We are not blind to the fact that those who want to persist in practices such as those we are outlawing might look for other ways to do so. The Government would, I am sure, want to take action in such circumstances, but the provisions concern wheel-clamping specifically.

The changes we seek to make have widespread support in general, including from some people in the wheel-clamping sector. They want the sector to be better regulated. They do not want cowboys to be part of it. I know that later we will debate whether there should be a wheel-clamping sector at all, but if we are to have one, some in the industry would welcome what we are doing, because we are seeking not to displace such behaviour—ticketing might be a way of responding to that—but to change it.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Ticketing is unenforceable, which is why they have resorted to wheel-clamping.

Alan Campbell (Labour, Tynemouth)

Absolutely. The right hon. and learned Gentleman is correct that enforcement is much easier if a wheel clamp is put on a car and removed only when the money has been paid, especially if it is the extortionate fees currently charged. It is much more difficult with ticketing.

The general point that worries the hon. Member for Banbury is whether people will try to use an easy option. As in many aspects of the security industry, we are seeking to drive out not just the cowboys but those who act on the other side of legality. The Government do not believe there will be an easy option and will take action if one becomes evident. This may not be the last time we need to return to tackling those who seek an unacceptable regime for controlling parking.

Mark Oaten (Liberal Democrat, Winchester)

In that last remark, is the Minister not highlighting the difficulty with the Government’s approach? He is acknowledging that the issue will probably have to be revisited, because industry will find a way round the licensing scheme. The fact that the Minister said that industry welcomes it suggests that it thinks the scheme is a soft touch.

Alan Campbell (Labour, Tynemouth)

No, I am happy to say that is not what I intended to say. I am sorry if my words gave the hon. Gentleman that impression. The measure is about getting rid of practices widely regarded as unacceptable. It is not about knowingly entering a new regime with the expectation that there will be displacement. That is precisely the point I am making. We do not expect those consequences. In response to the hon. Member for Banbury, I am saying that were there to be unintended consequences, any Government would seek to rectify them. I certainly do not believe that the industry accepts the scheme because it thinks it will be easy to evade. There are more in the industry against what we are doing because evasion is not easy. As in many sectors, there are people who want to work in a properly regulated industry and to drive out the cowboys who bring it into disrepute, as well as causing harm to the public. I refute what the hon. Member for Winchester said, although I am sorry if I gave him that impression.

Let me return to the amendment. Subsections (4) to (7) of new section 4A limit the business licence requirement to those responsible for control of, or decisions of, businesses carrying out the licensable activity. That is very much about the controlling minds that we want to reach—those who set the regime that many people find unacceptable. Subsections (4) and (5) together exclude from the business licensing requirement individuals carrying out vehicle immobilisation activity on behalf of another. Subsection (5) provides examples of particular cases where that is so, for example, subsection (5)(a) covers employees acting on behalf of their employer.

Amendment 171 would exclude agents as well as employees from the business licence requirement, but we believe that is unnecessary given the drafting of the clause, as subsections (4) and (5) apply when a person acts on behalf of another. We believe that is covered by what we are suggesting.

Amendment 172 would remove the particular arrangements for contractors set out in subsections (6) and (7) which have the effect of ensuring that where an individual is employed by another individual who is a subcontractor, only the main contractor is liable, as we do not want the employing subcontractor to be liable in those circumstances.

Let me explain clearly why that should be the case. A main contractor might be retained to manage a firm or shop’s parking area, with complete discretion to apply his own business policies, such as the size of release fees or what signs they would use currently.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I was just reflecting on what the Minister said. I think that he said that subsection (4) covers agents because of the phrase

“carries out an activity...on behalf of another person”,

but then I go to subsection (5), which defines the meaning to be attached to subsection (4). The central question I ask the Minister is this: is subsection (5) an exhaustive interpretation of subsection (4), because if it is it does not cover agency? It might not be an exhaustive definition of subsection (4), so in other words subsection (4) is then capable of carrying the agency point. We need to know whether or not subsection (5) is an exhaustive definition of subsection (4) activities.

Alan Campbell (Labour, Tynemouth)

I am grateful to the right hon. and learned Gentleman. It is not an exhaustive list, but a number of examples, so our view is that it would include agents. I will go away and reflect on that point, because if we need to be more prescriptive I am happy to consider that point. That comes to the nub of the amendments and why we believe them to be unnecessary. We are not seeking to have individual responses to the different ways the industry might be organised in particular areas. We are trying to ensure through the business licensing requirement that we regulate the business practices of every vehicle immobilisation business, whatever their business model. We are seeking to avoid a situation in which people will move to a different business model to get around the kind of regulations we are looking at. Our general approach is to ensure that we focus on those who ultimately decide on the practices in an area, meaning the businesses themselves, so we are confident that that is the best way to proceed and will be most effective. Therefore, I hope that the hon. Member for Hornchurch will not press his amendment.

James Brokenshire (Conservative, Hornchurch)

I am grateful to the Minister for his response and for his being prepared to reflect on the comments made on the interrelationship between subsection (4) and subsection (5), which obviously have to be read together for their interpretation. However, the carve-out at the bottom of subsection (5) states that it will not cover situations in which a person is

“acting pursuant to a contract for the supply of services”.

It seems to me that that might undermine some of the things he said about agency and that there might be unintended consequences. However, I fully recognise, particularly in that area, the need to ensure that people do not try to abuse the provision, and I can see circumstances in which that might be the case and in which people will try to test the operation of those provisions. Therefore, in the light of his helpful response, I beg to ask leave to withdraw the amendment.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I beg to move amendment 90, in clause 39, page 80, line 14, leave out from ‘conviction,’ to ‘to’ in line 15.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following: amendment 93, in clause 39, page 80, line 16, leave out ‘or to both’.

Amendment 91, in clause 39, page 80, line 17, leave out from ‘indictment’ to first ‘to’ in line 18.

Amendment 92, in clause 39, page 80, line 18, leave out ‘or to both’.

Amendment 137, in clause 39, page 80, line 18, leave out ‘five’ and insert ‘two’.

Amendment 135, in clause 39, page 80, leave out lines 19 to 25.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The amendments relate to the penalties available to the court in the event of breach. We are dealing with both magistrates courts and Crown courts. As far as magistrates courts are concerned, which are dealt with in subsection 8(a), I am seeking to prevent the penalty of imprisonment being available. You look puzzled, Mr. Cook, so I hope that I have got this right. I thought you were about to say I was out of order.

Frank Cook (Labour, Stockton North)

Please carry on.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

So far as the Crown court is concerned, that is dealt with by subsection (8)(b). The present draft enables the Crown court to impose a term of imprisonment of up to five years and of up to 12 months in the case of the magistrates court. The general proposition has to be that prison is imposed only in the absolute minimum of circumstances. The prison population is far too high. When I was Prisons Minister at the back end of the 1980s, the prison population was 40,000. Only 20 years or so later, it is now more than 80,000. As one who practises in the criminal courts, I know perfectly well that large numbers of people who are in prison should not be there. It is not necessary to include the power of imprisonment as a penalty for every class of offences that is enacted by Parliament.

Should a magistrates court be able to send a person to prison at all for this kind of offence? I think the answer is no. If it is a really gross matter then let it go to the Crown court, but if it is a matter that should be dealt with by the magistrates court then prison is not appropriate, so I am against this so far as the magistrates court is concerned. I have tried to strike it out altogether. I feel the same about the Crown court. I do not think this is the class of offence for which people should be sent to prison. But if I am wrong about that, for goodness’ sake, two years as a maximum is quite enough. Five years is quite ludicrous for this kind of thing, especially when it is backed by the ability to impose a fine. This is simply part of a general mentality of including prison whenever an offence is created.

We should not be doing this. Indeed, it is contrary to overall Government policy, which says that prison should be a matter of last resort. I agree with that. It is also contrary to the approach taken by the superior courts, which constantly make the point that prison should be the penalty of last resort. I hope that the Government will give serious attention to this. We send all the wrong signals when we impose terms of imprisonment for offences that are not of the class to carry a term of imprisonment as a penalty. That is all I want to say about the matter. I am fed up with terms of imprisonment being in legislation with which I am asked to deal.

Andrew Rosindell (Conservative, Romford)

My right hon. and learned Friend makes a number of extremely valid points. I have some sympathy with his views. Sending someone to prison for an offence such as this should be considered only in extreme circumstances. I see no need to have five years; two years should be the maximum. This is a sledgehammer to crack a nut. I would not agree with everything my right hon. and learned Friend said but we need flexibility to deal with such a case, particularly if it is a persistent offence. I do not think that the possibility of using a custodial sentence should be taken away completely, but the Under-Secretary should reassure the public and the Committee that such a sentence would be used only in the most extreme cases. The sentence should be proportionate to the crime, rather than a five year sentence. I find it hard to see how that could ever be applicable.

Alan Campbell (Labour, Tynemouth)

The hon. Gentleman has just highlighted the dilemma we face. He is quite right to draw attention to the issue of whether or not the penalties are appropriate, but of course there is a need for penalties, because we are talking about people who, in breaching licences, can be guilty of carrying out pretty terrible practices. That is the dilemma.

I want to try to set out why we have got to this position, because it is important to remember that this work will be part of the work of the Security Industry Authority, whose actions will be governed by statute. The clause as drafted provides that a person who commits an offence under new section 4A of the Private Security Industry Act 2001 would be liable on summary conviction to imprisonment for a term not exceeding six months, or to a fine up to the statutory maximum of £5,000, or to both. On conviction on indictment, an offender would be liable to imprisonment for a term not exceeding five years, or to an unlimited fine, or to both.

Amendments 90 to 93, and amendment 135, would have the effect of removing the option of imprisonment in either court. Amendment 137 would have the effect of reducing the maximum term of imprisonment on conviction on indictment from five years to two years. We are asking the SIA to be the providers of the licences for businesses and they are, of course, subject to the 2001 Act. The clause, as currently drafted, provides for penalties directly in line with those in section 5 of the 2001 Act for the offence of using unlicensed security operatives.

We can have a debate about the repercussions of the clause on the wheel-clamping industry and on the type of practices that people find abhorrent, but of course in other areas that the SIA regulates there are some terrible practices which, particularly where security is involved, can often have awful consequences. So we should not in any way underestimate the damage that could be done if we were to take too light a view of the type of work that is regulated in the clause.

The same provisions apply in section 6 of the 2001 Act to the offence of using unlicensed wheel-clampers as committed by the occupiers of premises. In a sense, I think that we are coming at this issue from the other end of the spectrum to the right hon. and learned Member for Sleaford and North Hykeham, because we see no reason not to have the option of imprisonment as a sentence for businesses that commit such an offence. I accept, however, that he is arguing about the length of the sentence, rather than whether or not there should be a sentence.

I am happy to place on record our view that, although we support the option of imprisonment for people who break the law in this area, many cases will not warrant imprisonment. Offences against the business licence requirement and the terms of licences are serious, but we would want to leave such offences to the discretion of the court. We believe that imprisonment is a necessary option for the worst offences, and that is consistent with current provisions applicable to the employment of unlicensed wheel-clampers.

The penalties are therefore consistent with those in section 5 of the 2001 Act for the offence of using unlicensed security operatives. We believe that the offences that might be committed in this sector are as serious as those that might be committed in other sectors. Therefore, we do not see any reason to vary those penalties simply for vehicle immobilisation businesses. We have talked to others in Government about whether or not there should be a lesser sentence. We could not decide what the criteria should be for reducing the sentence from five to two years, other than that there would be a lesser sentence. There did not seem to be any real criteria or comparison to explain why two years would be more acceptable or more proportionate, except that a two-year sentence suggests that the offence is less serious than a five-year sentence would suggest.

It may offer some comfort to the right hon. and learned Gentleman to learn that there is debate—not only within parties but within government, and indeed outside government—about whether or not long prison sentences are the way to go, so the length of sentencing and the penalties are kept under review. At some point in future we might return to that.

Andrew Rosindell (Conservative, Romford)

I am listening carefully to the Under-Secretary, and he is explaining the position very clearly. However, I am not certain why we need a prescribed period, if it is up to the courts to decide the sentence in proportion to the crime. Why not let the courts make a decision based on the offence? Why prescribe two, five or any number of years?

Alan Campbell (Labour, Tynemouth)

We are talking about five, because that is what is in section 5 of the 2001 Act. The legislation is already there; Parliament has already decided whether, in similar areas that are licensed by the Security Industry Authority, it is appropriate to imprison someone, and what an appropriate sentence would be. Our question would be the opposite of the hon. Gentleman’s. We would not ask why wheel-clamping should be included in the list, but why it should be dealt with differently. What is it about wheel-clamping that makes it worthy of a lesser sentence? The courts might take the view that what is available to them is a maximum of five years’ imprisonment and an unlimited fine, but that they will impose a lesser sentence or perhaps no period of imprisonment. The option should, however, be available to them, and we see no reason to deviate from a route that has already been laid down. That is why, unfortunately, we cannot support the amendments.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

With your permission, Mr. Cook, I would like to make three observations. The first is that the Under-Secretary began his comments by saying that he and I were approaching the matter in rather different ways. He is right. He said that the proper approach is to ask why wheel-clamping should not attract a prison sentence. I ask a different question: why should it? It is perfectly true that that is a difference of approach. The Under-Secretary’s approach raises the presumption that wheel-clamping should attract a prison sentence; I raise the presumption that it should not. That is a fundamental difference between us. I strongly believe that the prisons are overflowing, packed with people who should not be there, and that one reason is that people are constantly saying that a whole range of activities should attract a prison sentence when they simply should not. I regard the Under-Secretary’s presumption as a heresy with which I strongly disagree.

Secondly, I am offering a compromise. I am not usually a compromising man on this issue. The compromise is something like this: we drop the prison sentence for the magistrates court—only relatively minor cases will be triable by that court if there is an alternative of trying on indictment—and we confine prison to trial on indictment in the Crown court. That is a compromise. At that point, we have to determine only the term. I am strongly in favour of two years over five, which in this context means 12 months, unless I am wrong. That is a substantial sentence for wheel-clamping; I certainly do not want to serve 12 months for any offence, far less for wheel-clamping. I should have thought that, in reality, a penalty inside of 12 months was perfectly adequate. Even if I was wrong about that and I settled for five years, provided that the compromise was accepted, justice would perhaps be met, because in those circumstances the prosecution authority would send cases involving repeated offences to the Crown court. That is what concerns my hon. Friend the Member for Romford, and I suspect the Under-Secretary also. His position is therefore guarded and so too is mine—hence the compromise.

My last point is made in response to the Minister’s least attractive argument, which is that as the 2001 Act already commits the heresy we should commit it again. I have always thought that that was an absolutely rubbish argument: the fact that previous legislation imposes sentences of imprisonment, where that is not necessary, is not a good reason for going on committing the sin. I commend my very modest compromise to the Minister, and hope that he may feel able at least to reflect on it before Report.

Alan Campbell (Labour, Tynemouth)

I am always happy to reflect on such things, but I must return to the fundamental point that we are trying to deal with vehicle immobilisation in the context of the SIA and the 2001 Act. If vehicle immobilisation were brought into that framework the penalties would already be laid down. I shall reflect on the matter but, as I suggested towards the conclusion of my previous remarks, there is debate in Government anyway about the appropriateness and length of sentences, so the right hon. and learned Gentleman might get what he wants from a different route.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

It is very gracious of the Minister. I recognise that the undertaking was not full-hearted, but it was none the less generous as far as it went, and I shall be interested to see whether, in June or July, the roles will be reversed, and the Labour party will be arguing against imprisonment, in circumstances in which the Conservative Front Bench may argue in its favour. That would be an interesting contrast, which I shall not be intimately involved in, anyway, in this House. On that basis I beg to ask leave to withdraw the amendment.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I beg to move amendment 143, in clause 39, page 81, line 3, at end insert—

‘(aa) the occupier fails to display by a notice displayed in a prominent place the name, address and telephone number of the person referred to in paragraph (a);’.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following: Amendment 138, in clause 39, page 81, line 4, after ‘person’, insert ‘to the knowledge of the occupier’.

Amendment 139, in clause 39, page 81, line 6, after ‘section’, insert

‘and the occupier is aware of that fact’.

Amendment 140, in clause 39, page 81, line 33, after first ‘or’, insert ‘wilful’.

Amendment 141, in clause 39, page 81, line 33, leave out from ‘of’ to end of line 34.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

This is me with my libertarian hat on again; I try to wear it the whole time, as a matter of fact.

I am against absolute offences. I think that the courts should always be careful to convict only when it is just to do so. Parliament is far too swift to create absolute or strict offences. In tabling the amendments, I have tried to do two things, which relate to the new subsection 1A(b) that clause 39(3) would insert into section 6 of the 2001 Act. Amendments 138 and 139 would mean that subsection 1A(b) stated: “the carrying out of those activities involves that other person to the knowledge of the occupier engaging in conduct licensable under section 4A in respect of which he is not the holder of a licence under that section and the occupier is aware of that fact”.

I hope that the Committee sees the justice of that. It is important that the occupier should be liable only for those activities of which he is aware, to the extent that he is aware that they are licensable. If the occupier is not aware that the activities are licensable, it seems jolly unfair that he should be subject to criminal penalties.

That takes me to the second point. It is right that the occupier should be convicted only in the event that he or she knows that the person carrying out the activities is not the holder of a licence. To put the thing the other way round, is it fair that the occupier should be held liable in law when they do not know that the person does not hold the licence?

Mark Oaten (Liberal Democrat, Winchester)

Surely the occupier has some responsibility to establish those facts when they choose to contract out to someone who takes on the work on their behalf.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

They may have a responsibility, but what if they are deceived? There is a limit to what occupiers can do, especially if they are people of fairly modest circumstances, and one must recognise that they might be deceived. It is perfectly fair to say that the occupier perhaps should act in that way, but what if they are lied to? Then the question relates to whether they should be held liable in the criminal court for receiving that lie and not taking it further.

That is the dilemma, and it arises in an awful lot of cases. For example, someone who receives stolen goods may well ask the person who brings them, “Do you own it?” and get the reply “Of course I do”; but he is being lied to. That is the sort of issue that arises.

In those cases, the prosecution should be under a duty to establish the necessary knowledge, first, that the activities are licensed, and secondly that the person carrying out those activities did not possess a licence. That is what the Crown should be obliged to prove.

Alan Campbell (Labour, Tynemouth)

Amendments 138 and 139 would separately require that for someone to be guilty of an offence under proposed new section 4B(3)—the offence of allowing an unlicensed wheel-clamping business to work on their premises—the occupier of those premises must know that the business is carrying out licensable activities without being licensed. We believe that what the amendments seek to achieve is already provided for in the 2001 Act. Proposed new section 4B(3) will insert the new offence into section 6 of the 2001 Act as subsection (1A). However, section 6(2) of the 2001 Act already provides a defence for the occupier which is either

“that he did not know, and had no reasonable grounds for suspecting...that the individual in question was not the holder of a licence”,

or that he took “all reasonable steps” to ensure that the individual did not carry out licensable activities when he did not hold a licence.

We believe that there is sufficient scope in the current Act for a person in the situation described by the right hon. and learned Gentleman to have a defence and claim either that they had no grounds for suspicion and did not know, or that they had taken all reasonable steps under the circumstances. What the amendment seeks to achieve is already covered by the 2001 Act.

Amendments 140 and 141 would amend proposed new section 4B(6), which provides for the prosecution and punishment of offences committed by unincorporated associations under the 2001 Act. New section 4B(6) is intended to cover situations where, for example, a group of wheel-clampers acts as a body but without any separate legal status as such. It would make both the unincorporated association and specified members of it liable to prosecution for offences relating to business licensing. Under new section 4B(6), the relevant authority, such as a partner or officer, could be prosecuted if the offence was committed

“with the consent or connivance of, or to be attributable to any neglect on the part of”

the individual concerned.

Amendment 140 would add the word “wilful” before “connivance”, which would suggest the intention to do something. Our view is that connivance is tacit permission and already implies an act of will, whether through a deliberate action or by deliberately disregarding something. The amendment would raise the threshold for prosecution and, for reasons that we cannot see, would make it more difficult to prove an offence.

Amendment 141 would remove the possibility of prosecution for an offence attributable to neglect by the individual. Again, that would raise the threshold for liability for prosecution, so that intention rather than negligence would be required for an individual to be prosecuted. We believe that there could be cases where individuals fail to act where there is a breach of the law by the group of individuals they are working with. Proving intention may be impossible, but that does not mean that people should not be held criminally responsible when appropriate, such as when they have not taken appropriate care to avoid using unlicensed operatives.

Amendment 143 would amend proposed new section 4B(3) to create an offence in which an occupier fails to display a notice as described in the amendment. I understand the good intentions behind the amendment, but, as I am sure we will come on to discuss, we have deliberately set out not to put the licensing requirements in the Bill, but to set them out in secondary regulations. I assure the Committee that notices will figure largely not only in that set of requirements, but in our deliberations.

The regulations will cover, at the necessary level of detail, not just signage but matters such as maximum release fees, time limits on removing vehicles, methods of payment, and information—a discussion we had during the evidence sessions—as well as warning signs, size, design, contents and positioning. Those issues, as well as signage, will be addressed in the regulations. Not putting the regulations in the Bill gives us an opportunity for the important next stage, which is to have a consultation with stakeholders to ensure that we get the regulations right and that we can amend them, if necessary, through statutory legislation. From time to time, we may need to add things to the regulations.

I understand the intent of the amendments, but I hope that by setting out our intentions with regard to the regulations and referring to what already exists in the 2001 Act, we have addressed the concerns raised by the right hon. and learned Gentleman.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Mr. Cook, I now understand why you were looking a bit puzzled when I first rose to my feet. The lead amendment, as the Minister rightly pointed out, is amendment 143 and I was not in fact referring to amendment 143 when I made my preliminary remarks, I was referring to the other amendments. Now I understand why you looked so puzzled.

I have three sets of observations. First, as regards the notices covered by amendment 143—I am jolly glad to hear that the Minister will deal with this subsequently—my recollection of the evidence session is that one of the problems relating to wheel-clamping is that, when a person comes to find his or her vehicle clamped, they have not got a clue how to get it unclamped.

Frank Cook (Labour, Stockton North)

I’ve been there.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

As you say, Mr. Cook, you have been there yourself. It is very important that the details—the telephone number and so on—of the clamper should be made public so that the person can achieve a speedy release. I am in favour of that.

The second point that the Minister dealt with was with regard to my amendment seeking to insert “wilful” before the word “connivance” and striking out “attributable to...neglect”. He said, quite rightly, that I was trying to raise the barrier—and yes, I am. Why do I want to raise the barrier? I am against criminal offences unless they are absolutely essential. Contrary to the Minister’s position, my presumption leads me to ask why we should make this a criminal offence, not why we are not making it a criminal offence.

The word “connivance” as it stands is capable of passive acquiescence as well as active intervention. I would like to see the word “wilful” in the phrase, because it suggests a higher level of culpability. That is the reason. As regards striking out “attributable to any neglect”, I do not want, as a general proposition, to see neglect amounting to a criminal offence. Sometimes it is negligent; however, whether it should be criminal seems to me to be a quite different issue. So, yes, I want to lower the bar and the Minister wants to raise the bar. There is that between us and in the end it is a matter for the Committee. I am not going to press the matter to a vote, but I am not in favour of having what is pretty much a strict offence.

My last point concerns drafting in general. The Minister may well be right—I accept his word about this—when he says that what he was trying to achieve with regard to amendments 138 and 139 is covered by the 2001 Act. That actually makes a general point about drafting. Where offences are spatchcocked into an existing Bill, it is actually quite difficult to follow. It is better by far to redraft the entire relevant clause into the amending Act, because otherwise there is constant cross-referencing and one fails to see things.

I have raised that point about drafting before. I am glad that the Minister has pointed out that the 2001 Act provides for an offence, but he will recognise, I think, that anyone reading the draft, which is an amendment, would not have a clue of that fact. That is a lacuna in our drafting process. It is not the fault of the Minister, but it is a fault of those of us who have been involved in the way that Parliament performs.

I beg to ask leave to withdraw the amendment.

Frank Cook (Labour, Stockton North)

With this it will be convenient to consider the following: new clause 3—Limitation on powers to immobilise, restrict or remove vehicles—

‘(1) The Private Security Industry Act 2001 is amended as follows.

(2) After section 4 there is inserted—

“4A Limitation on powers to immobilise, restrict or remove vehicles

(1) A person may not carry out an activity to which paragraph 3 (immobilisation of vehicles) or 3A (restriction and removal of vehicles) of Schedule 2 applies unless he is either—

(a) a public authority, or

(b) acting on behalf of a public authority.

(2) For the purposes of subsection (1), the person carries out an activity on behalf of a public authority in particular—

(a) if he is, and is acting as, the public authority’s employee, or

(b) if he is acting pursuant to a contract for the supply of services with the public authority only where that contract does not allow him, or any other person, to benefit from a variable financial incentive which is dependent on the number of vehicles immobilised, restricted or removed.”’.

New clause 27—Prohibition of immobilisation or restriction and removal of vehicles—

‘(1) A person commits an offence if the person carries out any of the following activities—

(a) the immobilisation of a motor vehicle by the attachment to the vehicle, or to a part of it, of an immobilising device;

(b) the demanding or collection of a charge as a condition of the removal of an immobilising device from a motor vehicle;

(c) the moving of a vehicle, or the restriction of the movement of a vehicle, by any means;

(d) the demanding or collection of a charge as a condition of any release of a vehicle which has been so moved or restricted;

unless that activity is carried out with the consent of the owner, keeper or user of the vehicle.

(2) A person who is an occupier of any premises commits an offence if—

(a) another person carries out, in relation to vehicles on those premises, any activities falling within subsection (1), and

(b) those activities are carried out with the permission of that occupier or for the purposes of, or in connection with, any contract for the supply of services to him.

(3) A person guilty of an offence under this section shall be liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to a fine.

(4) The Private Security Industry Act 2001 is amended as follows—

(a) omit section 6;

(b) in Schedule 2 omit paragraphs 3 and 3A.’.

New clause 30—Code of conduct (Private Security Industry Act 2001)—

‘The Secretary of State shall by regulations make provision for the introduction of a code of conduct in respect of vehicle immobilisation activities and the issuing of penalties for parking on private land undertaken by any business licensed under section 4A of the Private Security Industry Act 2001 (inserted by section 39 of this Act), including making provision for requirements for appropriate signage on private land and maximum levels of penalties which may be levied.’.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I will be brief. The question, it seems to me, is whether we should have a licensing regime for wheel-clamping or prohibit it. On balance, I am in favour of prohibiting it. I remember that during the evidence session, the Minister—I think that it was this Minister, but it might have been his right hon. Friend—said, “Well, ultimately we might have to ban the whole thing, but in the meantime, let’s try an industry-led solution.” That is an understandable position, but I am bound to say that, considering it broadly, I had some difficulty seeing why we should allow wheel-clamping on private property. On the whole, it seems a thoroughly undesirable activity, and I am personally in favour of banning it.

Rob Flello (Labour, Stoke-on-Trent South)

Does the right hon. and learned Gentleman agree that ultimately, it should be up to the primary landowner to screen off their land if they do not want vehicles on it, or to put up a barrier and a proper access system if they want to allow vehicles, whether or not they charge for it? We could get rid of the legislation if they took those simple steps.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

That might be possible in most urban contexts, but it is not possible in a rural context. I have a small parcel of land adjoining my house. Anybody can come and park there. I could not fence it off in any way, because it is too extensive. The hon. Gentleman’s proposal might be appropriate for pubs, car parks adjoining houses and so on, but it is not appropriate to the rural context, where the extent of the land is often far too great to allow for that approach. However, there is good sense in it with regard to the urban context.

Again, I seek compromise. I always do. A nice way forward would be something like this. We could keep the licensing regime in place, but we could also include a prohibition with a delayed implementation date that could take effect only with the affirmative resolution of the House. Of course, it would be an amendable resolution. What would then happen is that we would have a licensing regime, which the Minister will agree with the industry and so on, so that companies can go on conducting their business provided that they comply with the terms of the agreement. Behind all of that would be a ban, which would not come into effect unless implemented and would not be implemented provided that the industry did what it said it would. It would be the ultimate deterrent and a jolly good compromise.

Mark Oaten (Liberal Democrat, Winchester)

I want to speak to new clause 3, which seeks to go further than the Government’s proposals. The question is whether we believe that the industry can regulate itself under a licensing scheme or whether we need some new form of control over wheel-clamping. New clause 3 suggests that the process of vehicle immobilisation should be the responsibility of a public body. That is not to say, of course, that private companies could not be involved in delivery, but the regulation and the management would be run by public bodies, which could then contract out the work.

New clause 3 also seeks to remove the practice of linking financial incentives to the amount of clamping done. In essence, it would strengthen what the Government are doing with the licensing regime but take the matter out of the hands of the private sector and put it into those of public bodies to manage and oversee. We think that that is the most appropriate way to handle an issue that has clearly got out of control in the past four or five years.

The current system is not working. The Government recognise that, which is why they are proposing the changes. There has been an enormous increase in the number of private companies operating in the area, including a 58 per cent. increase in the past year; 2,100 private clamping firms now operate. We know from our mailbags as constituency MPs that the number of companies that are charging based on incentives in relation to how much clamping takes place is increasing. In some cases, companies provide a £50 commission per clamp for the individuals who do the clamping. Some companies have been setting targets of five clamps a day. Some companies offer a free clamping service because they will ensure that they make up their money through the amount of clamping charges that they put in place.

The existing system does not have an adequate right of appeal. That is why so many of our constituents ask us to take up their cases against the private companies. There is no system for genuine cases to be able to appeal. We also know from our mailbags that the charges being put in place are astronomical. The highest one that we found evidence of was the £314 that a disabled motorist had to pay to prevent her car from being towed away, even though her disabled badge was on display. There are endless examples; I am sure that we all have them.

The recent snow in my constituency brought the most bizarre cases of individuals who had to abandon their cars because they literally could not drive any further, only to discover that they had a clamp within 24 hours. I have three such constituents and I have not been able to win the case for any of them. I have not been able to get any justification for that from the private sector, from which the most appalling letters have been written back to me, basically dismissing me and my constituents out of hand.

All that leads me to take the view that it is time to get much tougher on the industry. The proposed licensing scheme is not adequate to deal with the severity of the problem and the practices in which the industry is involved. Obviously, as a Liberal, I do not like new laws; I prefer to see whether industries can self-regulate. That is my starting process, but the industry has had a chance to self-regulate. There are codes that the British Parking Association has in its guidelines, but they are being ignored by the industry. The codes on maximum fees are being ignored by companies, and the licensing scheme, in my judgment, will not be much more than an extension of the codes that currently operate. I have very little confidence that the industry will abide by that licensing scheme.

When the AA gave evidence at one of our hearings, the head of the AA expressed concern about the licensing scheme and said that when a licence is issued, that could just be a licence to print money. The AA’s concern was that once a company has the licence, it will feel free to do as it wishes. It would almost be like a badge of honour to have the licence, but with regard to enforcement and whether the licence and the conditions that go with it, which we do not know about yet, would have any policing, the AA did not feel confident that that would take place. It also raised the concern that a company whose licence was revoked because it failed to meet its criteria would just rebrand and rename itself as another company. We know that that happens in all sorts of situations.

Therefore, there is concern that the licensing scheme will not be adequate and will not deal with the concerns. Surely we now have enough evidence that the industry has lost its right to regulate itself and that it is time to bring such a sensitive matter, which can impact on individuals enormously given the figures involved, into the public sector—into a public body—so that it can regulate and manage it and do away with the bad practice and the practice whereby individuals are, bluntly, making commission and profit on the back of something that should be regulated in a sensible and measured way. That is why we feel strongly enough about new clause 3 to seek to divide the Committee unless the Minister can give us very strong reassurances that the licensing scheme will be effective.

James Brokenshire (Conservative, Hornchurch)

As I read new clause 3, the hon. Gentleman would be looking for local authorities to take over the responsibility. Why does he believe that that would be a better way of addressing things than a regulatory scheme in relation to the activities of those who, once they are regulated, should comply? Why does he see local authorities as the way forward in this regard?

Mark Oaten (Liberal Democrat, Winchester)

I am grateful for the intervention. Let us take the example of the three constituents who were snowed in and whose cars were clamped. I have greater confidence that those constituents and I, as their Member of Parliament, would have a fair hearing by arguing that case through a public body than the way in which I was dismissed by the private sector. There is more chance that the industry could be managed if public bodies were overseeing it. I am not arguing that private companies should not be able to deliver the service, but that it should be under the control of, and contracted by, public authorities rather than operating as it does currently, which is with no control at all.

Andrew Rosindell (Conservative, Romford)

There is some consensus about the issue. All of us know of a huge number of constituents who have been done by cowboy clampers, and we all understand how angry people are when that happens. It is right that the Government are attempting to deal with the matter. However, much tougher action needs to be taken and I shall be seeking assurances from the Minister that under secondary legislation and, indeed, in the Bill measures will be effective in dealing with the widespread problem throughout the country.

New clause 30 would make provision for a code of conduct. It is essential. A code of conduct has to be enforceable under the Bill. The Liberal Democrat spokesman referred to giving local government control over such matters, but I am not convinced that that is the solution. We took evidence earlier from Councillor Shona Johnstone from the Local Government Association. She was clear that the possible cost implications on local government need to be considered. I appreciate and sympathise with the point of the hon. Member for Winchester that, if constituents go to their Member of Parliament or local councillors, they are likely to receive a response, whereas they do not from private companies, such as LBS Enforcement Ltd in my constituency. Like me, my hon. Friend the Member for Hornchurch has suffered from South East Clamping. Cowboy clamping demands huge sums from constituents. Of course, it is much harder to deal with a private company than it is with local government, but I must say to the hon. Member for Winchester that, if we allow local government to enforce all types of things to do with the private sector, where will that end? We must have laws that deal directly with the issue and are directly accountable rather than go through a public body in such a way.

I will not support local government taking control over such things, apart from the arguments regarding cost implications, finance and the manpower needed to enforce such a law were it to be introduced. I wish to give one or two examples because it is worth stating the extent of the problem. We all suffer from it. I draw attention to a lady in my constituency, Joan Orchard. She is a disabled, retired lady and was clamped and fined £280 by LBS Enforcement. She did not have the money in her account; she was forced to use a credit card with additional charges. She was told that it was contracted to work only until 5.30 pm. The clamping had occurred at 7.30 pm. Suffice to say that she appealed, but did not get anywhere. In any circumstance, that is a breach of the system.

We heard useful evidence about such matters in our earlier sessions. I made notes about three issues that need to be taken on board. I hope that signage will be enforced strongly under secondary legislation. That should apply to ticketing, too. There also needs to be a code of conduct. I want the Minister to take those matters into account under the Bill, as well as in the secondary legislation.

Alan Campbell (Labour, Tynemouth)

First, I shall cover the comments of the right hon. and learned Member for Sleaford and North Hykeham. A delayed ban is an interesting prospect. I suppose that it goes back to our earlier discussion about whether we have faith in the Bill. Well, we would not be discussing it in Committee if we did not. We expect it to work, but there has been a pattern whereby we licensed individuals involved in wheel clamping and we are now moving to businesses.

Frank Cook (Labour, Stockton North)

I remind the Committee that with this it will be convenient to discuss the following: new clause 3-Limitation on powers to immobilise, restrict or remove vehicles-

'(1) The Private Security Industry Act 2001 is amended as follows.

(2) After section 4 there is inserted-

"4A Limitation on powers to immobilise, restrict or remove vehicles

(1) A person may not carry out an activity to which paragraph 3 (immobilisation of vehicles) or 3A (restriction and removal of vehicles) of Schedule 2 applies unless he is either-

(a) a public authority, or

(b) acting on behalf of a public authority.

(2) For the purposes of subsection (1), the person carries out an activity on behalf of a public authority in particular-

(a) if he is, and is acting as, the public authority's employee, or

(b) if he is acting pursuant to a contract for the supply of services with the public authority only where that contract does not allow him, or any other person, to benefit from a variable financial incentive which is dependent on the number of vehicles immobilised, restricted or removed."'.

New clause 27-Prohibition of immobilisation or restriction and removal of vehicles-

'(1) A person commits an offence if the person carries out any of the following activities-

(a) the immobilisation of a motor vehicle by the attachment to the vehicle, or to a part of it, of an immobilising device;

(b) the demanding or collection of a charge as a condition of the removal of an immobilising device from a motor vehicle;

(c) the moving of a vehicle, or the restriction of the movement of a vehicle, by any means;

(d) the demanding or collection of a charge as a condition of any release of a vehicle which has been so moved or restricted;

unless that activity is carried out with the consent of the owner, keeper or user of the vehicle.

(2) A person who is an occupier of any premises commits an offence if-

(a) another person carries out, in relation to vehicles on those premises, any activities falling within subsection (1), and

(b) those activities are carried out with the permission of that occupier or for the purposes of, or in connection with, any contract for the supply of services to him.

(3) A person guilty of an offence under this section shall be liable-

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to a fine.

(4) The Private Security Industry Act 2001 is amended as follows-

(a) omit section 6;

(b) in Schedule 2 omit paragraphs 3 and 3A.'.

New clause 30-Code of conduct (Private Security Industry Act 2001)-

'The Secretary of State shall by regulations make provision for the introduction of a code of conduct in respect of vehicle immobilisation activities and the issuing of penalties for parking on private land undertaken by any business licensed under section 4A of the Private Security Industry Act 2001 (inserted by section 39 of this Act), including making provision for requirements for appropriate signage on private land and maximum levels of penalties which may be levied.'.

Alan Campbell (Labour, Tynemouth)

I was responding to the right hon. and learned Member for Sleaford and North Hykeham who was, unusually, promoting the notion of a ban-albeit a delayed one-that would be introduced, ironically, through a statutory instrument. Therefore, I assume that this is a rather academic discussion.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The Minister will recall that I suggested an amendable statutory instrument.

Alan Campbell (Labour, Tynemouth)

Amendable, but a statutory instrument nevertheless. That will not be necessary because the short history of the issue shows that the Government have moved from the licensing of individuals involved in wheel-clamping to the current proposals on the licensing of companies. We have demonstrated our intent, and we would not have got to this stage-a major part of a major Bill-were we not determined to take the correct action that will have the desired effect. I do not accept that we should have a ban, albeit one that hangs like the sword of Damocles.

I shall respond quickly to my hon. Friend the Member for Stoke-on-Trent, South, who suggested that we could avoid the problems if the owners of private land simply fenced it off. We had a short discussion about whether that was mainly a rural issue. It is an urban issue, too, because there are many areas, including old people's homes, hospitals and a variety of private land, that require some form of parking control. There is a host of areas for which it would be impractical to insist that if owners did not want people to park there, they should fence them off. That is why we are making our current suggestions.

The hon. Member for Romford highlighted the need for the action we are taking, because he gave a number of examples of the type of unacceptable behaviour that we are trying to get rid of. These include release fees, signage and so on, which will be an important part of the code of practice.

I want to concentrate slightly longer on the comments made by the hon. Member for Winchester, who set out a range of objections to the route we are taking. I shall try to persuade his colleagues and others that ours is the right route. He advocated that local authorities should take control of the situation. Like the hon. Member for Romford, I cannot recall from the evidence session that the representative of local authorities showed a great deal of enthusiasm for the idea of them taking this on. We kept coming back to the perennial cost question and an acknowledgment that, were we to go down that route with an entirely different model, there would be a cost involved. I am not sure that the local taxpayer should pick up the cost. The way in which we are proceeding represents a fairer and more proportionate system.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I wonder whether the Minister can recall any enthusiasm from the witnesses for the Government's solution.

Alan Campbell (Labour, Tynemouth)

The hon. Gentleman says that but, in fact, we have been consulting on a range of proposals for some time. I accept that nobody came out in complete support of everything that we were doing. However, by and large, we have managed to satisfy a majority on most of the issues raised in those sessions and during the consultation process, such as what a code of practice would look like, or crucially whether there should be an independent appeals mechanism. I admit that at one point it was not clear that that was what we were proposing-but we are. People often have their own views and put forward alternatives. However, in the absence of a clearly more acceptable alternative, I think that we have broad support for our suggestions.

The hon. Member for Winchester mentioned incentivisation, which we have discussed before, with regard to whether there will be a great incentive to carry out wheel-clamping to maximise profits. Incentivisation might have an attraction now, because there is a fairly open-ended and loose system through which people can make extortionate profits, but part of what we are doing is to put limits on things such as release fees and to address issues regarding what happens if vehicles are impounded overnight and whether people have to pay for that. Many incentives that might have been in place will not exist under the scheme that we are advocating. The hon. Gentleman also mentioned the need for an appeals procedure. As we will discuss later, there will be not only such a procedure, but an independent one.

The hon. Gentleman also spoke about some entirely unacceptable examples of people who were forced to abandon their cars during the bad weather coming back to find that they were wheel-clamped. I cannot give a complete undertaking that that will not be possible in the future, but if we address issues such as signage and release fees, many of those problems could be resolved. If Members of Parliament and others are thinking about going to the companies and saying, "Surely this is unfair," please remember that companies will need to have an appeals procedure and, under the code of practice, they will also need to have a complaints procedure. Beyond that, there will also be an independent complaints procedure, through which I am sure some such complaints could be not only heard, but upheld.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

With regard to the appeals procedure and its independence, who will determine the criteria that the independent appellate body will have to apply?

Alan Campbell (Labour, Tynemouth)

The code of practice will set out clearly what companies will be allowed and not allowed to do. It will deal with issues such as how much had been charged, whether the signage was adequate, whether there was information about whom one could complain to, which company was responsible in the first instance, and how one could get in touch with the appeals procedure. All that will be dealt with in the code of practice. Therefore, in a sense, the independent adjudicators will not only be addressing the code of practice because, as we will get on to later, legal minds will be brought to bear, so I am sure that they will be able to bring some reasonableness and common sense to the issue.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am sorry to press the Minister on this matter, but it is important. An element of discretion will always be involved, and I am trying to ascertain whether the independent adjudicator in the appeals process-

Frank Cook (Labour, Stockton North)

Order. I ought to advise the Committee that we are straying into the area covered by Government amendment 110 and Government new clause 10. It is not strictly relevant.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Given that the issue has been raised, Mr. Cook, whether it would be convenient to deal with it now is a matter for you. If not, I will postpone my comments-whatever you think fit.

Frank Cook (Labour, Stockton North)

That would be the proper way to approach it.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Then that is what we will do.

Alan Campbell (Labour, Tynemouth)

The hon. Member for Winchester also raised the question of self-regulation. We are not going down that route. He talked about some of the problems that have arisen with ticket parking. We are determined not to go down that route because we want to ensure that our proposals have teeth. He also asked, as his defence of using local authorities as the best route on this matter, whether the proposal amounted to a licence to print money. I remind the Committee that we intend to cap fees and, through that, to change business behaviour.

Let me say-I do not think that this has been raised, but it is pertinent to the whole of our deliberations-that while the proposal is about changing the behaviour of the businesses currently involved in vehicle immobilisation, it is also about changing motorists' behaviour. The reality is that quite a number of people who are clamped are clamped for valid reasons-they should not be parking where they have parked. Therefore, we must have a system that is proportionate.

Finally, the hon. Gentleman expressed concern that if it was left to the companies, and not the local authorities, the companies would simply disappear, and rebrand and relaunch themselves. I have two points to make about that: first, they would still need a licence if they attempted to do that; and, secondly, the Security Industry Authority is very experienced in dealing with such practice, because it has been attempted in other areas of its activity. It is very good at holding to account people who try to evade the rules and directors who think they are being clever by setting up a different company. I am confident that we are taking the right route.

By restricting wheel-clamping activities to local authorities, new clause 3 would effectively ban wheel-clamping on private land, because of course local authorities have no power to control parking on private land. We would be taking quite a big step if we went down that route. Some people have advocated that as a way forward, but we believe that a system of licensing businesses will deal with the matter more effectively.

Let me briefly turn to new clause 27(1), which would ban wheel-clamping and related activities, restriction and removal against a release fee. Subsection (2) of the new clause would mean that an occupier of the premises would be committing an offence automatically if anyone else carried out wheel-clamping and related activities on his premises with his permission. It would only require the occupier to have given permission for the activity to take place, or for those activities to be carried out under a contract for the supply of services to him. That would not be the right approach. It is appropriate to allow wheel-clamping on private land in England and Wales to continue. I know that that is not a universal view, but that is our belief, subject to the new controls on the wheel-clamping businesses. We want to strike the right balance between the rights of motorists and the rights of landowners, who are entitled to control or prevent parking on their land. For example, businesses in a town centre or near a railway station will quite reasonably want to keep their parking space free for customers. We do not believe that we should limit their choice of how they do that, provided that they comply with the law. We want to ensure that the sector is regulated properly and that we get rid of exploitation and excess, which is what our measures will do.

New clause 27(3) would restrict the penalties available to a fine without the option of imprisonment. As we discussed that matter earlier today in relation to amendments 90 to 93, I will not go into any more detail.

New clause 30 would create a statutory requirement to make regulations that would provide for a code of practice for the business licensing scheme. The provision is unnecessary because the Private Security Industry Act 2001 already provides for regulations to be made whereby the Secretary of State can specify the conditions to be attached to any licence that the Security Industry Authority issues. We have made it very clear-and I am happy to repeat it again-that we plan to make regulations that will be the basis for a code of practice. We expect that they will cover warning signs, release fees and a range of other matters. We will put it in secondary legislation because, having listened to a fairly lengthy debate both inside and outside the House, we want to decide on the contents, and consult publicly on the details. I hope that I have explained sufficiently why new clauses 3, 27 and 30 are not necessary, and I hope that clause 39 will stand part of the Bill.

Shona McIsaac (Labour, Cleethorpes)

Thank you for calling me to speak in this debate, Mr. Cook. I shall try to be brief. I tried to catch your eye earlier, but the Under-Secretary stood up and blocked me.

Frank Cook (Labour, Stockton North)

Order. In view of what has just been put on the record, and given my 27 years of experience in the House, may I offer the hon. Lady a small word of advice? In future, when choosing a seat, make sure you are in full view of the Chair.

Shona McIsaac (Labour, Cleethorpes)

I have already taken that advice on board, Mr. Cook, which is why I have moved from where I was sitting this morning. I will now be able to catch your eye whenever I wish this afternoon.

I have sympathy with some of the new clauses about wheel-clampers. During the evidence sittings, it became apparent to me that we do not really need wheel-clamping firms. Whatever the Minister says about people who park illegally, surely we do not need clamping firms to enforce regulations. We should have a properly regulated ticketing system, which I will talk about later.

I agree that we need good signage, limits on release fees and a code of practice, but, as we heard in the evidence sittings, the fear of the RAC and others is that the firms currently making a lot of money through practices that extort money from people will move to ticketing. I am sorry to say that the types of restrictions that we are introducing for wheel-clamping firms will not read across to ticketing. The same firms often carry out such practices. As we heard, they will put up a closed circuit television camera and small, insignificant notices, and if people overstay an hour's parking, they will end up getting a parking charge disguised as a penalty charge notice.

In my area-part of my constituency is a seaside resort-many visitors, as well as residents, keep getting caught out, because private firms operate alongside local authority car parks. We have to do something to prevent that leaching to ticketing. Those firms make their money through excessive charges. The right hon. and learned Member for Sleaford and North Hykeham may correct me, but I believe that there is absolutely nothing in criminal law that says that such firms can issue excessive charges. There is no way that they can take somebody to court or put points on a licence.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I think that is correct. The only way in which that could technically be done would be for the owner to lodge a civil suit for trespass. The unauthorised parking of a vehicle on private property is a trespass for which, in theory at least, one could claim damages, which would represent some form of rental charge. I think that is the only legal process that would ever be available to an occupier of private land in the circumstances under discussion.

Shona McIsaac (Labour, Cleethorpes)

I appreciate that clarification. It is, therefore, correct that the firms rely on ignorance of the law by issuing things that look, to all intents and purposes, like a penalty charge notice. They have the same lay-out and use the same typefaces, and they threaten to take one to court, even though they cannot do so. I am worried that the unintended consequence of what we are doing for the wheel-clamping firms-or vehicle immobilisation firms-is that they are simply going to make their money in an unregulated way.

I realise that there are limitations in the Bill, because we are dealing with the security industry. However, I understand that it is the Department for Transport that would have to do something to deal with ticketing if the firms choose to go down that road to make their money. What discussions has my hon. Friend the Under-Secretary had with the Department for Transport about those issues? Is there any chance that we can address those worries on Report?

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I apologise on behalf of my hon. Friend the Member for Winchester, who cannot be here to listen to the Minister's detailed and considered response to the points made by my hon. Friend on new clause 3.

I listened carefully, but the bottom line is that the Minister is not in a position to give any assurances. The Minister cannot assure the Committee that someone who is clamped-whether legally parked or otherwise-on a cold and windy night and not sure who owns the land will not be fleeced by a wheel-clamper. New clause 3 makes the matter clear; it is very simple and straightforward.

The Minister may be right that local authorities would not be keen on the responsibility if they were required to pick up the operating cost themselves, but I am sure that there are ways and means of ensuring that that would not be the case, and that those seeking support for wheel-clamping, rather than the council tax payer, would pay the fee. We would support making sure that there was no linkage between the number of clamps applied and the fee that any company, local authority or private contractor employed by a local authority could obtain from the clamping.

Again, the bottom line has to be whether the measure will work to protect drivers in all circumstances. The Minister cannot assure the Committee that what he is proposing, for which there was no great enthusiasm among the witnesses, will do the job. When there is an opportunity to vote against the clause, I shall certainly do so.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

May I make this point to the hon. Member for Carshalton and Wallington? The problem about voting against the new clause is that, in theory, we are left with nothing, which is bad news. I would prefer the total ban, but I do not think that I shall be allowed to vote for that and, in any case, I do not suppose I have the big battalions. If we vote against clause stand part, we are left without any form of regulatory regime, which would be bad news. Although, personally, I am uncomfortable with the way forward and would prefer the course of action that I advocated to the Committee, I shall not be supporting the hon. Gentleman and I rather hope that my colleagues will not.

Alan Campbell (Labour, Tynemouth)

We have been looking at the issue for some time and I understand that there are different views about the best way forward. Should local authorities be responsible? Should we ban wheel-clamping in the first place? In reality, in many cases, private landowners need some way of regulating parking on their land and, in some cases, of preventing parking on their land. In the Bill, we are cleaning up an industry which, as it currently operates, has many examples of unacceptable practice.

That does not, however, necessarily lead to the conclusion that there is no room for wheel-clamping at all, which to some extent is a matter of choice for landowners. If they go down that route, then by licensing the businesses with a strict code of conduct, we expect the excesses to disappear and the industry to be as responsible as it can be in the circumstances.

On the issue of ticketing, clamping is dealt with because we are doing it through the SIA-clamping is dealt with through the Private Security Industry Act 2001, but ticketing is not. I have had discussions with colleagues from the Department for Transport, in particular when we were looking to secure an independent appeals procedure and looking for models that we could either piggyback or replicate somewhere else, but the issue of ticketing is for them to deal with. In the Bill, we are dealing with wheel-clamping.

The hon. Member for Carshalton and Wallington claims that I am not in a position to reassure people that their circumstances will be better on a cold and windy night, when they risk being fleeced. However cold and windy it happens to be, unless there is adequate signage that is informative about what can and cannot take place in that area, the code of practice will be being breached.

If by "being fleeced" the hon. Gentleman means that people will be given excessive charges for release, I should say that that will not be allowed under the code either. If they are not happy and cannot come to some agreement with the company if wheel-clamping is taking place, there will be an independent appeals procedure which will have the final say. Ultimately, if a company acts in the way suggested by the hon. Gentleman, it risks losing its licence. If it loses its licence it cannot take part in the industry in future. I am not as pessimistic as the hon. Gentleman about the outcome of the Bill.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I thank the Minister for giving way. How will he ensure that drivers have a clear understanding of what they are supposed to be seeing on the notices on this hypothetical cold, windy and perhaps wet night? He cannot give those assurances. He cannot give an assurance that they will know what is required to be on display and therefore the risk of people being clamped in unacceptable circumstances remains, because they will not be in a position to challenge it.

Alan Campbell (Labour, Tynemouth)

That is precisely why we are consulting widely and thoroughly on not only the question of signage, but what would be on the signs. I take the point that if it is dark the signage needs to be lit. Many people in all of our constituencies use car parks on cold, windy and wet nights, but that is not an excuse to say, "I'm not going to pay that fine because I could not understand the sign". Those signs will have been worked out; the lighting will be adequate. The machines will be clear, so there will be no prospect of people's not knowing what their responsibility is if they park their vehicles.

Andrew Rosindell (Conservative, Romford)

The fact is that however a new law on vehicle clamping is implemented, there will be problems to be resolved. There is some consensus between the Government and the Opposition on the fact that if we do nothing, we leave a problem without a solution. Does signage need to be explained to every driver? Everywhere we go on every highway there is signage. Surely it is common sense that, if we park our cars somewhere, just as we do when we park in a public car park, we check the signs to see whether there is a fee to pay and what the rules are. If the Liberal Democrats oppose the measure, a lot of people out there will wonder why. A lot of people are very angry about the current law and they want it to be tightened. The clause may not go as far as we would like, but it is a step in the right direction.

Alan Campbell (Labour, Tynemouth)

I am grateful for that support. It would not be the first time that the Liberals were on the wrong side of the public, and I suspect it will not be the last. The public are not fools, particularly when there is publicity for such issues, and they know what their responsibilities are. I am sure that where there are anomalies or disagreements, if the two parties cannot agree, there will be an opportunity to resolve those matters once the complaints and independent appeals procedure is in place. There are many views about how the problems can be resolved, but we have produced a set of proposals that commands general support. I hope that the Committee will support them.

Clause 41

Andrew Rosindell (Conservative, Romford)

I beg to move amendment 173, in clause 41, page 83, line 24, after 'telephone', insert

'or any device capable of sending or receiving electronic data'.

The amendment would tighten up the sensible policy of removing mobile devices from prisoners serving custodial sentences and not allowing them to communicate with the outside world. There is, however, little point in doing that unless we ensure that other devices are also unavailable to the prisoner. In the modern world, all sorts of devices, particularly those that access the internet, allow people to communicate with the outside world, so there is little point in singling out the mobile phone, although we support that prohibition wholeheartedly. With the amendment, we are asking the Government to consider other devices that may be used.

We have seen examples recently of how other devices have been used and we urge the Government to look at that before deciding what to do. Devices nowadays can do a lot more than make or receive calls; many can access the internet. There have been several incidents involving their use, which we need to consider carefully. Murderers have boasted about their life behind bars, which is something that no one in prison should be allowed to do. Imagine the victim or their relatives knowing that the murderer is boasting via the internet. We need to tighten up the law.

The law should stop such people flaunting their crimes and taunting the justice system. Only a couple of weeks ago, the murderer of Ben Kinsella updated his Facebook page, writing that he wanted a remote control to "mute or delete people" when he needed to. That is another example of how an electronic device can be used in prison to intimidate people outside. Less than two weeks ago, an arsonist serving an indefinite life sentence updated his Facebook page to describe a life of playing computer games, getting drunk on home-brew and enjoying sleep-ins-mocking the innocent victims of the crimes for which he was jailed. The Government should tighten up the provisions and extend the principle, so that not just mobile phones but other devices are covered. Recently, Ashley Graham in HMP Lindholme updated his Facebook page with:

"HMP Holiday's a place where men can come for a nice relaxin break from their moanin women and crying kids. No stress just rest."

Mark Elliot, who as part of a group savagely beat a father of three to death, also had access to Facebook via a phone, and updated comments and posted pictures. The problem is widespread.

People are put in prison to lose their freedom and be punished for the crime they have committed against society. It cannot be right to allow any prisoner easy access to people in the outside world, to communicate with them and perhaps work with them to commit other crimes or intimidate people. Prisoners should not be allowed the same freedoms that law-abiding people enjoy. That is a simple principle. I hope that the Government will take that into account, reconsider, and accept our amendment.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I rise to speak in support of what I think may be a probing amendment to flush out the Government's thinking. If the Government seek to ensure that it is an offence to use telephones in prison because they are used to pursue criminal activities, thereby discouraging that use, they need to bear in mind that there are many other things that prisoners can and do use in prison for that purpose that can be just as harmful, as the hon. Member for Romford set out. A considered response is therefore required.

This may be another opportunity to briefly raise the fact that the most effective way of tackling the problem of telephone calls in prisons is a technical blocking device that can stop calls coming through, which is being investigated. I will listen with interest to why the Minister of State does not feel it necessary to extend the legislation to things such as Facebook, which are clearly used by criminals to pursue their criminal activities.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I rise to support the amendment in its terms, but I am bound to say that I do not entirely agree with my hon. Friend the Member for Romford. I hope he will forgive me if I explain why.

So far as the terms of the amendment are concerned, my hon. Friend is right. If the definition of the mobile telephone in some other piece of legislation is not sufficiently wide to encompass BlackBerrys, for example-one of which I hold in my hand and on which I have been busily communicating with various people during the Committee sittings-it should be wide enough in the Bill. We all use BlackBerrys and know that they can be used to communicate with the outside world. They are not, on the face of it, mobile telephones, unless there is a definition of which I am unaware. My hon. Friend is right to try to extend the definition to include BlackBerrys, laptops and other equipment that is capable of communication with the outside world.

Where I differ with my hon. Friend is as follows. I have a certain amount of experience here, as many years ago I was Prisons Minister for two years and I represent clients in prison, so I see a lot of prisoners. Over the past five years I have seen 50 or so prisoners, usually in prison, and I am familiar with prisons. One has to ask oneself an important question: what is the purpose of prison? The purpose is to punish, but the punishment lies in the deprivation of liberty. I do not believe that that extends to all the ordinary facilities of life. We are certainly not in the business of humiliating prisoners or depriving them of education and work more than need be, and it is terribly important that they retain contact with their families.

I absolutely agree with the proposition that prisoners must be prevented from running criminal activity from inside-that is clearly essential, and often requires the confiscation of all mobile telephones, so that prisoners cannot communicate with people outside. It is at least arguable that they should be prevented from using mobile communications to insult or humiliate people who have been affected by their crimes. That is an interesting proposition, which my hon. Friend made, in part, and I understand that some things that go on Facebook are abusive and might upset victims. However, we need to keep in mind that prisoners must be able to communicate with their families, and there are lots of activities on the internet-accessing information and learning-that I would want to encourage.

The secret lies in the phrase "without authorisation". New section 40D(3A) of the Prison Act 1952, inserted by the clause, refers to

"A person who, without authorisation, is in possession"

of such a device. It is a matter for the prison governor. He or she should have the ability to see what the prisoner is using the communication device for. If the prisoner is using it for any of the purposes that we have identified as being profoundly wrong, such as organising crime outside, he should be stopped. If he is using it for the sorts of purpose that the prison governor deems to be offensive to the victim or whoever, he should be stopped. However, I do not accept the proposition that we should stop all possession, because that will lead to a greater punishment than I favour.

Andrew Rosindell (Conservative, Romford)

I respect entirely my right hon. and learned Friend's views. My concern is how such a situation could be monitored. When we have hundreds of prisoners in a jail, how is the prison governor expected to monitor the use of electronic devices? That question has to be answered. Although I agree wholeheartedly that prison should not be used to humiliate people and take away their dignity-they are entitled to a certain standard, as is every human being-I am not convinced about the use of Facebook and free access to the internet for non-educational purposes. Many people cannot use modern electronic devices because they cannot afford to do so. I think that many members of the public would be rather concerned if free access were to be allowed in prison.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I do not twitter and I am not familiar with Facebook. I use e-mails, but I do not have a clue about Facebook and I do not know what one has to pay to twitter. Those things are slightly outside the scope of my knowledge, and I have not the faintest intention of acquiring such knowledge. However, I go back to the broad propositions. It is wrong that people should be able to organise crime from within; that clearly requires them, in certain circumstances, not to have access to electronic communications. I do not want them to say things on their electronic media that distress the victim; I agree with that. But I do not go much further than that. I do not want to restrict their ability to obtain information about prospective jobs or deprive them of the ability to learn about things that might be useful in later life. I certainly do not want to prevent them from maintaining contact with their families.

My hon. Friend made a perfectly fair point about monitoring. I accept that, and it is not easy, but we have to decide where the balance lies. My judgment is that it lies with the prison authorities. The prison governors and officers in charge of the prisoners have to form a view of the sort of characters they are dealing with, and generally speaking, they do. When a prisoner has been in prison a long time and has been reported on by officers over a period of time, they form a fairly clear view of what they are dealing with. It is less easy when people are being moved from prison to prison. I would leave it to the good sense of the governor, without adopting-I hope my hon. Friend will forgive me-the widespread objection that he has raised. I would try to confine my prohibition pretty narrowly.

David Hanson (Labour, Delyn)

I thank colleagues for their contributions to the debate. I have some sympathy with the points made by the hon. Member for Romford and I will certainly consider the amendment. Essentially, we need to provide sufficient scope to ensure that mobile phones and other electronic devices are not used by prisoners in prison. That is why, when I was the Minister responsible for prisons, like the right hon. and learned Member for Sleaford and North Hykeham was, I took through the Offender Management Act 2007, which banned mobile phones being imported into prison. We do not want a situation wherein prisoners, as well as maintaining contact with their families, which is a noble cause, can undertake communication with the outside world that is intimidatory and threatening, and where murders have been commissioned from prison by prisoners using mobile phones. That is not acceptable, so we need to close that loophole.

That is why this is not only a question of mobile phones being imported into prison and the Offender Management Act 2007; it is about closing the loophole so that individuals caught in possession of a mobile phone in prison face an additional sentence, which is very severe, whether it involves custody and/or other potential measures.

There is great sympathy on that issue. If the hon. Gentleman withdraws the amendment, I shall consider the issue so that we can draft an amendment on Report that will catch up with a growing technology. When I was first elected to this place 18 years ago, my mobile phone was this big, and now it is that big-probably far too large; for the purposes of Hansard, I should say that it is 6 or 8 cm wide.

Simon Burns (Conservative, West Chelmsford)

Not inches?

David Hanson (Labour, Delyn)

I was going to talk in inches, but I thought that I would show myself as very old if I did that, so I resisted the temptation.

The key thing is the need to future-proof the situation to cover all the electronic technology that will undoubtedly develop in the next few years, which will affect mobile phone use. I shall happily look into the issue if the hon. Member for Romford withdraws the amendment.

The hon. Member for Carshalton and Wallington rehearsed an argument that we have wrestled with for years in the prison system: how do we block mobile phones as a whole? We have considered blockers, and have introduced body orifice security scanner, or BOSS, chairs. If we can, we shall, through the Ministry of Justice, consider the idea of telephone blockers, but the difficulty is that prisons are often in urban areas where, just over the wall, live people who have every right to use their phones, which could be blocked. We have been looking at the issue for some time. If the technology is appropriate, my colleagues in the Ministry of Justice will certainly consider it. We have even considered, through a range of activities, increased security and checks, and a range of measures in relation to imports, through the Offender Management Act 2007 and the Bill. We take the issue extremely seriously.

There are occasions when electronic equipment can be used for rehabilitation purposes. The right hon. and learned Member for Sleaford and North Hykeham is right: we want people to be able to use computers, think about rehabilitation and look at job opportunities. In prisons, that is undertaken in a controlled environment, under the auspices of the governor. There are controlled circumstances in which such access can happen. The provisions are essentially about stopping individuals from making contact from their cells, through mobile phones, to commission drugs, murder and intimidation.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I agree with what the Minister of State and my hon. Friend the Member for Romford say about the undesirable use of mobiles or BlackBerrys, but can I pose a question on a matter of principle? The Minister said that he did not want such devices used in a cell. I understand that. However, if the mobile phone were being used exclusively to speak to the family-and this raises many difficult questions-would that be objectionable?

The answer may be that we cannot so confine it, or that we could not be so sure of the bona fides of the prisoner that we could permit that activity. However, what if those practical arguments-which are real and substantial-were stripped aside, to enable us to ask a narrow question? If we could confine the use just to calling the family, would that be wrong?

David Hanson (Labour, Delyn)

That poses enormous difficulties for security and the prison, and for the contact. Even if the right hon. and learned Gentleman were to suggest a list of five phone numbers for the family, there is no way in which we could assume that the person at the other end would be the one who should be contacted by the prisoner. It is very difficult to control the use of mobile phones in prison, and for security purposes it would in my view be pernicious to allow their use.

There are methods for contact with families, through personal visits, and there are regular numbers that can be put through normal phones that are available on wings in prisons. It would be very difficult to give sensible consideration to the right hon. and learned Gentleman's proposal given the security issues in a place that is, as the hon. Member for Romford said, ultimately about punishment as well as reform and rehabilitation. It would be very difficult to undertake.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

To return briefly to the issue of blocking, will the Minister confirm whether there are time scales during which the blocking technology is being reviewed, and whether there is an implementation programme? He might need to write to members of the Committee about that.

I had a conversation with someone who, until recently, was a prison governor at one of the large London prisons. His view was that the technology worked and that it was more a question of cost than of whether the technology was effective.

David Hanson (Labour, Delyn)

I left the Ministry of Justice about nine months ago when it was trialling the position on potential mobile phone blockers. It is an expensive business, but the principle is that if we can do it, we should. For me and for the Ministry of Justice, the question was whether we could make the blockers effective so that they worked in prisons. We need that element of security to know, first, that the technology works in prisons, and secondly whether it would have an impact outside prison. Both points are genuine issues that were being looked at in the trial.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I have a lot of sympathy with the context of the blocker. However, let me say to the Minister of State that when I go into prisons, which I frequently do, I surrender my mobile, which is put into a secure box before I go into the secure area. However, the hon. Member for Carshalton and Wallington might wish to bear in mind that outside the secure area, but within the prison, we do use our mobiles to contact solicitors or families, or to call a taxi and those sorts of things. That might be an obstacle to the use of the blockers. Once someone is inside the secure area, that is one thing, but they could be just outside it, where hitherto we have all used our mobiles.

David Hanson (Labour, Delyn)

The key point is ensuring that the technology works. If it works, it will be looked at. The trialling has been ongoing. We are looking, and have been looking, for a solution, and if we can block signals in a defined area we should do so. However, I do not need to remind hon. Members that Wandsworth prison, Wormwood Scrubs, Liverpool prison in my neck of the woods, and Manchester prison are all next door to residential areas. So is Wakefield prison.

Simon Burns (Conservative, West Chelmsford)

Chelmsford.

David Hanson (Labour, Delyn)

Indeed-so is Chelmsford prison in the hon. Gentleman's constituency. I had the pleasure of visiting about 50 prisons during my time as Minister, and I rarely went to a rural location. Most prisons are in neighbourhoods and sometimes have people living close by them in flats. The issue is difficult; we need to find a technological solution that works.

The solutions that we have brought forward have introduced scanners for when people enter prison and increased security measures, training for staff and severe penalties for when, occasionally, mobile phones are brought into prison. Two years ago, a provision was introduced under the Offender Management Act 2007. It means that if someone does manage to smuggle a phone into the prison, through whatever means, or if they are caught with a mobile phone in prison-and I could widen that to include the amendment that looks at electronic communication devices-they will face an additional custodial sentence. That has to be a deterrent.

If I am honest, even with that measure there will be occasions when people will try to get mobile phones. Once this legislation is passed, there will still be those who think that doing so is worth the risk in order to run their businesses from prison or to continue intimidation from prison. We must be continually vigilant.

I cannot guarantee that this clause will stop every mobile phone from getting into prison. However, I can say that we are stopping mobile phones from getting into prisons and that if individuals are found in prison with such a device, they will face a custodial sentence. They will go before the courts; ultimately, people will find themselves facing penalties if they are caught.

We must do what we can to reduce the use of mobile phones in prison, not because we want to deny people family contact, but because mobile phones in prison are by and large used for purposes that are not supported by the state and the Government. I hope that the hon. Gentleman will withdraw his amendment.

Andrew Rosindell (Conservative, Romford)

I thank the Minister of State and I hope that the Committee has been reassured by his comments. He has accepted that it is possible for other modern electronic devices to be used to communicate for illegitimate purposes outside prison, and I am pleased that he has said that the loophole should be closed. On the basis that the matter will be looked at closely and considered in the way that has been outlined, I beg to ask leave to withdraw the amendment.

Clause 42

Andrew Rosindell (Conservative, Romford)

I beg to move amendment 174, in clause 42, page 83, line 33, leave out 'take reasonable precautions to'.

We have moved swiftly to the subject of air weapons. Once again, it is an area where I am sure there will be a degree of consensus. It is absolutely right that no young person, whether they are 18 or 14, should have access to an air gun or a weapon of any kind. An adult or older person must ensure the protection of that child in respect of the use of that air gun, and that it is properly monitored.

Sadly, we have seen many accidents in which a young person's managing to obtain an air gun or weapon of some sort has led to the deaths of either themselves or somebody else. There will be no argument from this side of the House about the need to stop young people from using such weapons.

I would like to give one or two examples. Last March, a teenage boy died after being shot with an air rifle in a tragic accident while doing target practice in his back garden. In 2007, Mitchel Picken, who was only 12, was shot dead when his friends were playing with the family air rifle. One has to ask oneself what a family rifle was doing in the garden where very young people were playing games. No responsible adult should ever allow that situation to come about. Another example is from the same year. Danny Marsh, aged 17-slightly older-was supposedly larking around with two friends when their air gun went off accidentally and killed him. That is where any right-minded person would want to see a tightening up of the law.

However, if we are to tighten the law, we must ensure that we do it in a practical and enforceable way. My concern about the clause is with the words "take reasonable precautions"; that is why I tabled the amendment. How is that to be done? I fear that putting those words in the Bill weakens the position. It is better to make it absolutely clear that it is the duty of the adult to prevent such an incident from happening, rather than to take precautions.

An adult may claim that he has taken precautions when he may not have taken nearly enough. Who is to judge what that phrase means? Unfortunately, although the principle of the clause is, I think, supported by everyone in the room, the fact that the words "take reasonable precautions" are in the Bill weakens the clause and will not lead to what we want to see-the end of accidents of this nature. I hope the Minister will consider my point. The amendment would strengthen the legislation, rather than allow it to be weaker, which is what it is as it stands.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I hope that my hon. Friend the Member for Romford will not take it personally when I say again that I disagree with him. It is becoming a pattern of mine, and I apologise to him. I hope that he will forgive me if I explain my reasons.

I hold a .22 rifle and several shotguns, and I am duly certificated in respect of all of them. They are held in a steel cabinet. Within the cabinet are a couple of airguns, which I have had since I was a boy. The steel cabinet is locked. We have to dispose of the keys somewhere, but let us assume that a young person finds them, opens up the steel cabinet and takes out the airgun. Is it right that I should be liable under criminal law, having locked the cabinet and put away the keys securely? The answer is manifestly no; I would have taken reasonable precautions as required by the police. The fact that my precautions were undone by a devious juvenile should not make me liable for a criminal offence.

If we accept the suggestion of my hon. Friend the Member for Romford, we would be adopting the principle of what is known as either strict or absolute liability. As a general proposition, I am against strict or absolute liability and I would confine it to the most particular and special of circumstances. I hope that he will reflect that, while some of his examples are perfectly sound, most people-like myself-actually lock up their airguns, although it is not a strict requirement. We keep them in steel cabinets and that seems as much as we can reasonably be expected to do.

Andrew Rosindell (Conservative, Romford)

My right hon. and learned Friend makes a good point, but my examples are not relevant to it. The guns were not locked away. If the matter ever went to court, any reasonable judgment would be that, if the owner of the gun had locked it in a cabinet and the keys had been stolen, the act would not be considered irresponsible if the owner had taken such precautions.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Forgive me, but my hon. Friend is misunderstanding the nature of his amendment. If it were accepted, the Bill would state that

"It is an offence for a person in possession of an air weapon"-

such a gun, when in a steel cabinet, is probably in my possession-

"to fail to prevent any person under the age of eighteen from having the weapon with him."

My hon. Friend would be removing the "reasonable precautions" requirement to say that any failure amounts to an offence. In the circumstances that he clearly outlined to the Committee, the owner of the gun failed to take reasonable precautions. If we leave a gun lying around in our room, but someone takes it and shoots a duck or, much worse, a person, there has been a failure to take reasonable precautions. All such people are caught under what is proposed. I am worried about the person whose reasonable precautions were got round by the young person, but who is still made liable. That cannot be right.

Alan Campbell (Labour, Tynemouth)

The clause is all about prevention. I am heartened to hear the reassurance from the hon. Member for Romford, who is leading for the Opposition, that he shares our ambition to ensure that weapons that can on occasion cause harm do not get into the wrong hands. I am grateful for his offer of consensus with our aim.

I have two points to make about the effect of amendment 174. Clause 42 requires people to take reasonable precautions to prevent young people from gaining unauthorised access to weapons. The amendment would remove the requirement for reasonable precautions to be taken. That would shift the effect of the offence because it would apply only after a young person had gained access to an air weapon, and that could mean that the damage, including a fatality, had taken place. That is not acceptable.

We want to prevent the damage from being done in the first place, an ambition that I am sure the hon. Gentleman shares. I am in favour of using the law as a deterrent. The offence as he would like to amend it could provide some kind of deterrent, but we want the police to be able to take preventive action where they encounter an unsecured air weapon, rather than wait for a young person to pick it up and risk a tragic accident. I am sure that that would be an unintended consequence of his amendment, but we do not want to wait for the accident or the damage before action is taken.

On the second point, I agree entirely with the right hon. and learned Member for Sleaford and North Hykeham and he argued very well from personal example. The amendment would mean that an offence would be committed irrespective of any safekeeping measures taken by the owner. We could end up with an injustice whereby someone takes every reasonable step possible, including locking up the weapon in a cabinet, and then somebody gains access to the keys, opens the cabinet, takes the weapon out and causes damage. Therefore, it is our view that the offence ought to be based on the failure to take reasonable precautions. We believe that that would be both a fairer and more proportionate response to the dangers we have mentioned, and would not put such people, whom the right hon. and learned Gentleman made a very responsible plea for, in that position.

On the basis that the amendment would have unintended consequences and could penalise those whom we do not seek to penalise, I hope the hon. Member for Romford will withdraw it.

Andrew Rosindell (Conservative, Romford)

I thank the Under-Secretary for responding to what was a probing amendment. I felt it necessary to raise the issues and have a debate, albeit brief, and it has been a valuable discussion. I will withdraw amendment 174, but I urge him to consider the definition of taking responsible precautions and how that will be interpreted. Every one of us in the Committee Room wants every possible precaution to be taken to ensure that a death in this way never occurs again.

I beg to ask leave to withdraw the amendment.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I beg to move amendment 142, in clause 42, page 83, line 34, leave out 'eighteen' and insert 'fourteen'.

I have a feeling that my hon. Friend the Member for Romford is not going to agree with me on this amendment. I might sound a bit old-fashioned about all this, but I think I had my first gun-a single-barrel shotgun, 16. bore-when I was 10. My father was a lawyer and well acquainted with the need to maintain public safety, but he had not the slightest inhibition about giving me that gun for my 10th birthday. I had an airgun, certainly access to an airgun, at about the same age. It is important to keep in mind that at the age of 18 young people can be serving in Afghanistan with modern weaponry on the front line, yet we are saying that, in effect, a person of 18 should not have access to an airgun.

Let us be clear about this. I accept that there are powerful airguns, especially those that are pump operated; I also accept that some are capable of a high penetrative power. Most airguns are not capable of that, although they can cause serious injury-I do not dissent from that view. They are the first weapon people have when they learn to use guns. In the end it is a matter of judgment. I think that 18 is far too old. I made the point that 18-year-olds are serving in Her Majesty's forces in Afghanistan using the most modern weaponry. To then say that that is the age necessary to justify possession of an airgun is, frankly, disproportionate. Whether I am right in saying that 14 is the right age when I had an airgun at 10 is a matter of debate, but I am quite clear that 18 sets the age barrier far too high.

Alan Campbell (Labour, Tynemouth)

We established in the previous debate that the point of the measures we are introducing is to safeguard people from accidents involving air weapons; we are in common agreement about the need for that. I felt from the right hon. and learned Gentleman's remarks that we were in danger of rerunning earlier debates about the age at which it would be appropriate for someone to have unsupervised possession of an air weapon. Parliament has decided that. The age of 18 was set in the Violent Crime Reduction Act 2006, which was implemented in October 2007. I remember our long debates then, but Parliament decided that the age limit should be 18. That is notwithstanding the arguments about those who can use other weapons in theatres of war. That is why we have chosen 18. It is the age the law sets out for unsupervised possession of an air weapon.

However, we have stipulated certain circumstances in which people can use air weapons, but under controlled conditions. Someone under 18 can have access to an air weapon and use it when they are supervised by someone aged 21 or over; when they are engaged as a member of an appropriate, approved target-shooting club or in a shooting gallery; or, aged 14 or over, if they are on private premises with the consent of the occupier. Clause 42 will not affect those arrangements. Indeed, subsection (2) makes it clear that the new offence will not apply when the young person is authorised to have an air weapon with him in those circumstances.

The amendment would take away that precautionary element for people aged 15, 16 and 17. Our argument is quite simple: it is as appropriate to secure against improper use by a 15-year-old as by a 14-year-old. The potential for accident or misuse is the same, and that is why we resist the amendment. It is both logical and necessary to have an age limit of 18, and the safeguards should apply. Our proposal does not change the current arrangements for use by young people. Although he may not agree, I hope that the right hon. and learned Gentleman will withdraw his amendment.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I do not disagree and I will withdraw the amendment, if only because I do not wish to suggest for a moment that there is any dissension on the Conservative Benches. I have a feeling that my hon. Friend the Member for Romford may not agree with me on this issue, in view of what he has said in other debates. As the Conservative party is entirely united on all major issues, this is not a moment to suggest otherwise. I therefore beg to ask leave-having said that, the Committee may deny me leave-to withdraw the amendment.

Clause 44

Alan Campbell (Labour, Tynemouth)

I beg to move amendment 110, in clause 44, page 85, line 8, leave out 'and 40' and insert

'to [charges for vehicle release: appeals]'

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss Government new clause 10-Charges for vehicle release: appeals.

Alan Campbell (Labour, Tynemouth)

We return to wheel-clamping and the important matter of an independent appeals procedure. The Committee is well aware of our intentions in relation to wheel-clamping. The Security Industry Authority will issue licences to businesses and there will be a code of practice covering issues such as fees for clamp release, towing and impounding, rules on signage warning motorists that they risk being clamped, time limits for towing vehicles, and other conditions governing the circumstances in which a fee can be charged. It will also cover things such as methods of payment, record keeping and the proper consideration of complaints, which is a crucial part of our deliberations.

I want to make it clear that we would expect, as part of the code of practice, that individual businesses, as part of getting their licence, would have a complaints procedure. Therefore, if an individual was clamped and wanted to protest, their first port of call would be the company. However, as is the case with tickets, people sometimes want to go beyond the first level of complaint and seek an independent view of whether they have been clamped properly. We intend to establish an independent complaints procedure with adjudicators who are legally qualified. We have been looking, as I alluded to earlier when talking about my discussions with the Department for Transport, at whether we can piggyback on to an existing tribunal-there is one that deals with ticketing that has legally qualified adjudicators -or whether we can replicate one in a separate form. We accept the need for independent adjudicators. They will be legally qualified, but we have not exactly decided whether they will use the existing system or a new one.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Now is the appropriate time to tax the Minister on the scope of the appeal-I am grateful, Mr. Cook, for your previous guidance.

Proposed new subsection (4) in new clause 10 deals with the grounds that may be relied upon. The Minister will note that they extend to the contravention of a code of practice together with the contravention of any requirement. What I do not see in that subsection is any general discretion given to the adjudicator-if that is the appropriate word-to determine whether it would be right in general terms to waive the charge. Is the adjudicator being given a general discretion to do what is fair, even when the act complained of does not necessarily constitute a breach of the code?

Alan Campbell (Labour, Tynemouth)

That is certainly our intention. The right hon. and learned Gentleman was not impressed when I suggested earlier that I would look at the issue, but I will look at it. We are absolutely determined that the system gives the rights and protection that motorists seek. There will be a series of things to which the adjudicator will be able to refer in the code of practice, but it would be perfectly reasonable if they were given some discretion, because every case that comes before them will be different in some way. It will not be a cheap system, and if we bring in legally qualified people, we should trust their discretion on such matters. I give the right hon. and learned Gentleman an undertaking that we will look at the issue in the continuing deliberations.

On funding, an independent appeals procedure will cost money. We propose that the scheme will be funded partly by the fees paid by the businesses themselves. When they get a licence, part of that will go towards the set-up costs of the appeals procedure. We also think it is right that, where the businesses lose an appeal, they should be responsible for its cost. They should not get away with the fact that someone has had to go through the appeals procedure to get back money that they should not have lost in the first instance.

I am quite open about this, so let me say to the right hon. and learned Gentleman that we are also looking at whether there should be a small-a very small-administrative fee for people who take their case to appeal. We have to protect against vexatious appeals. If we have a system that is entirely open from the moment a vehicle is clamped to the end of the appeal, we have to ensure that people do not automatically decide to go through the appeals procedure. Because there will be an administration cost, we are looking at the possibility of a small fee, bearing in mind that if people win the appeal, they will get back a great deal more than that would cost.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I think that I am right in saying that there is no fee for the parking adjudicator, so why in this case does the Minister consider that there might be vexatious complaints?

Alan Campbell (Labour, Tynemouth)

We have looked at this in detail. The main reason is scale. Around one in 10 of people who get parking tickets appeals first to the local authority and then, of that number, one in 10 takes it to the independent appeal. The extent of the ticketing system means that the local authorities can pay for the appeals procedure. We believe that the cost of the appeals procedure for wheel-clamping should be largely-perhaps entirely-met by the businesses themselves through the licensing system. The scale of the local authority set-up means there is a great deal more money compared with the wheel-clamping sector. That is why we were looking to piggyback on that system. We are looking to make the process as affordable as possible, even though we recognise that there could be some money involved. I want to reassure people that most of the cost of the appeal will fall on the businesses themselves. We are bringing the proposal forward in this way because it is a matter for continued discussion and consultation. Having an independent appeals system is very important and gives people confidence.

Amendment 110 ensures that the amendments made to the Private Security Industry Act 2001 providing for appeals against charges for vehicle release extend, like the rest of that Act, to England and Wales, Scotland and Northern Ireland. As many people will know, however, Scotland bans wheel-clamping, so we are caught in a slight dilemma with regards to extension to other parts of the country. However, the existing wording of the Act means that Scotland will not be caught. It does not need to be, as it does not have wheel-clamping in such a way. However, as we heard in our earlier deliberations, clause 39 is not confined in its potential scope to that sector of the private security industry, since it allows for business licensing to be extended to other sectors. We want to leave the door open for the extension of other sectors, but we appreciate that measures on wheel-clamping will not be necessary for Scotland. With that, Mr. Cook, I hope the Committee will support our proposals.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I welcome what the Minister has said and I accept his undertaking to think further about the point I made. One has to ask what criteria the adjudicator-the appellate authority-will have to consider at the appeal. At the moment, proposed new section 22A(4) of the 2001 Act is pretty narrow. It states that the grounds of appeal

"may include in particular...contravention of a code of practice"

and

"contravention of any requirement imposed by...this Act".

I would like to another provision to cover any other matter that, in the opinion of the adjudicator, makes it unfair to levy the charge.

The hon. Member for Winchester spoke this morning about his constituents who had their vehicles clamped as a result of the snowstorms. If, for example, we left our car in a private place because of the snow-because we could not move it-and it was clamped, we would probably be in breach of the requirements of the clamping authority or the owner, but it would be unfair to require us to pay. I can think of lots of other examples: we might leave our car in a pub car park and fall ill or something so that we could not remove the car immediately; or someone might nick our handbag that had the keys in it, so again we could not move the car. In such circumstances, we would be in breach of the requirements imposed by the occupier, but none the less it would be unfair-if we could justify and prove the facts-to require us to pay the charge.

It is probably important that the Under-Secretary reflects on the matter so that when the provisions are made by regulation, the adjudicator will have sufficient discretion to waive the charge when in her or his opinion levying that charge would be unfair.

Alan Campbell (Labour, Tynemouth)

Proposed new section 22A(4) states:

However, I take on board what the right hon. and learned Gentleman says. The list is not exhaustive by any means and I shall see what we can do to reassure him.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I accept that the list is not exhaustive, but the problem is that it rather points to some procedural defect. I want to see some form of general discretion appearing in the regulations.

Alan Campbell (Labour, Tynemouth)

I understand that point, which is why I have given the right hon. and learned Gentleman such reassurance. However, we have to be careful, because the companies need to know where they are too. If they are carrying things out, they need to know that, while there might be some discretion, they would not be put in the position of genuinely thinking that they were acting within the scope of the code of practice only for someone else to come along later and rule that they were acting outwith what would be, if not the code of practice, a test of reasonableness. I am sure that we can deliberate and see if we can come up with better wording, especially as the matter will be dealt with in regulations.

Andrew Rosindell (Conservative, Romford)

The inclusion of an independent adjudicator appeals process is something that the Opposition have argued for and supported from day one. We are pleased that it has now been included in the Bill. However, I want to make one or two points.

First, from studying new clause 10, I notice that on numerous occasions the word "may" is used in proposed new section 22A. For example, proposed new subsection (3) states that "appeal may be made", while proposed new subsection (4) states that "grounds may include". Is that word strong enough? If the legislation is to be effective-we all hope it is, because we have debated at length how much of an issue it is to our constituents-is the word "may" as strong as it needs to be? Should not the word "shall" be substituted for it in certain cases, when appropriate?

I also wish to respond to some of the points made by my right hon. and learned Friend the Member for Sleaford and North Hykeham. I agree with him about the situation if people are unable to access their vehicle through no fault of their own, such as because of bad weather. The hon. Member for Winchester made an important point earlier about people's vehicles being immobilised because of snow, and yet being clamped. Any code of practice ought to take such circumstances into account. However, I slightly disagreed with my right hon. and learned Friend when he mentioned people falling ill. If they park in a pub, as he mentioned, and then are ill, we may wonder why they have become ill, so perhaps the legislation should not be quite so lenient in such circumstances.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

That would be a matter for the adjudicator.

Andrew Rosindell (Conservative, Romford)

Indeed, and that is why it is important that the adjudicator has flexibility and is able to judge fairly and take into account all the circumstances while not letting people get away with parking illegally and ensuring that clampers do not use the power they have via the licence to clobber people and extort money unfairly. On that basis, I have no doubt that Members of the House, local authorities and all those engaged in this aspect of legislation will be consulted to ensure that the provisions are effective. Hopefully, MPs' case loads will then be much smaller, as our constituents will not have to complain so regularly.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

If the Government go down that route, an independent adjudicator will be required, and I hope that he or she will be as effective as the parking adjudicator, whose role is widely recognised as positive and independent. The Under-Secretary raised the issue of a small charge being levied, and the only word of caution that I have for him is that the charge should not be at such a level as to discourage people from pursuing an appeal if they feel that they have been wrongly clamped.

Alan Campbell (Labour, Tynemouth)

In response to the hon. Member for Romford's point about the use of the word "may" in proposed new subsection 22A(3), we say that the regulations shall specify the grounds on which an appeal may be made because we hope that people will not need to make an appeal. We leave the door open for that, but we hope that there will be no need to appeal when the regulations are in operation.

The use of the word "may" in proposed new subsection 22A(4) goes back to what I told the right hon. and learned Member for Sleaford and North Hykeham: the list is not prescriptive. We need to make regulations, which is why "may" is there, but there will be requirements and the regulations will be clearly set out. I shall certainly take on board what he has said.

The hon. Member for Carshalton and Wallington has no great enthusiasm for the system that we are introducing, but he is right that an independent appeals procedure is needed. Although we are considering the possibility of the appellant paying, I am conscious of the hon. Gentleman's point, and we would not want to put people off appealing. However, if there was a clear way to proceed without any real thought about the cost, there would be a danger of the system being swamped, and we must be careful to prevent that from happening. I acknowledge what he said about the parking adjudicator, which is why we are trying to get as close as possible to that model.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

The Under-Secretary has clearly stated that deliberations are going on about the charge. Has any figure come forward?

Alan Campbell (Labour, Tynemouth)

I cannot give the hon. Gentleman a figure. I am talking first about the principle of whether we have a charge and then about the general commitment to the bulk of the cost falling throughout the system on the businesses themselves, which, after all, are making the profits. I give the hon. Gentleman the undertaking that if we were to go down that route, the charge would be as small as possible, while nevertheless having the effect of sending out a message about vexatious claims.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

There is a lot to be said for the proposition that the unsuccessful party should pay the charges. If private motorists fail, will there be a charge on them? There is a justification for that: it would prevent vexatious appeals.

Alan Campbell (Labour, Tynemouth)

We considered that, but not for long. In having one's car released and going through the appeals procedure, there is still the risk of facing a hefty bill that would be disproportionate. The process will not come without a cost. We therefore accepted the principle that the businesses should pay. I understand what the right hon. and learned Gentleman is saying, and there is some logic to his suggested system. To avoid the kind of situations that the hon. Member for Carshalton and Wallington hopes that we can avoid, we alighted on the notion of an administrative fee and people should not be expected to pay the full cost of the appeal. We have to get the balance and the proportion right, which is where we are heading.

David Hanson (Labour, Delyn)

I beg to move amendment 111, in clause 44, page 85, line 11, at end insert-

'( ) Sections [Introductory] to [Parliamentary control] (compensation of victims of overseas terrorism) extend to England and Wales, Scotland and Northern Ireland.'.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following: Government amendment 112.

Government new clause 11-Introductory.

Government new clause 12-Compensation scheme.

Government new clause 13-Eligibility and applications.

Government new clause 14-Payments.

Government new clause 15-Claims officers etc.

Government new clause 16-Reviews and appeals.

Government new clause 17-Reports, accounts and financial records.

Government new clause 18-Parliamentary control.

Government new schedule 1-Compensation of victims of overseas terrorism: consequential amendments.

Government amendment 113.

David Hanson (Labour, Delyn)

The amendments and proposed new clauses and schedule provide the framework for a compensation scheme for the victims of overseas terrorist attacks, as announced by my right hon. Friend the Home Secretary on Second Reading. Self-evidently, we are introducing the provisions because we wish to ensure that the British victims of overseas terrorist attacks have support from the Government on similar terms to victims of terrorist attacks in the United Kingdom.

Hon. Members will be aware that we have had a criminal injuries compensation scheme for some years. However, it covers only the victims of violent crime, including terrorism, in Great Britain, while a separate scheme operates in Northern Ireland. That has led to a great deal of unfairness, which we seek to address today. We hope never to have to use the provisions, because we hope to prevent further terrorist attacks. A victim of a terrorist attack in this country will be compensated, whereas a British citizen who is the victim of a terrorist attack overseas may have no realistic prospect of securing comparable compensation in the country concerned.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I ought to know the answer to this, but I have not checked the new clause. If the British citizen secures compensation abroad, either from a comparable scheme or, I suppose, through civil litigation, is credit given to the British compensatory authority, so that there is no double recovery?

David Hanson (Labour, Delyn)

Yes, and I am grateful to be able to clarify that for the right hon. and learned Gentleman.

Sadly, there have been some serious terrorist attacks overseas that have impacted on British citizens: the Bali attack in 2002, the Sharm el-Sheikh attack in Egypt in 2005, and the latest attack, which we can recall vividly, took place in Mumbai in 2008, when British citizens were, or could have been, killed or injured. The people involved in such attacks are often targeted simply because they are British citizens or western, and we need to bring the compensation scheme in line to reflect that, whether or not they are indiscriminate terrorist activities.

The new victims of overseas terrorism compensation scheme will broadly mirror the domestic criminal injuries compensation scheme. In particular, I envisage that the compensation awarded under the overseas scheme will be calculated on the same basis as the compensation payable under the domestic scheme in force at the time of an overseas terrorist attack. As with the domestic scheme, the Criminal Injuries Compensation Authority, based in Glasgow, will administer the victims of overseas terrorism compensation scheme. Under the existing domestic scheme, adopted in 2008, awards are calculated according to the seriousness of the injury or injuries sustained and, where appropriate, loss of earnings and special expenses.

The trigger for the new scheme will be the designation, by the Foreign Secretary, of an overseas terrorist attack. Such designations will be only for the purposes of the scheme. In deciding whether to designate an attack, the Foreign Secretary will take into account all relevant factors, including-this is an important factor-whether the Foreign Office had advised against travel to the area where the attack took place.

As we are dealing with overseas terrorist attacks, we believe that the focus of the scheme should be on compensating British citizens. In addition to British citizens, we will also cover, in fulfilment of our European treaty obligations, EU and EEA nationals with sufficient connections to the United Kingdom. We are currently considering what the eligibility criteria should be.

The proposed national statutory scheme will take effect, in the event of Royal Assent, from 18 January 2010, which was the date of the Bill's Second Reading, when my right hon. Friend the Home Secretary announced the new scheme. I hope that it will be a positive development from 18 January. Many British citizens have been victims of terrorist attacks in recent years, some of which I referred to earlier, such as those in Sharm el-Sheikh and Bali. They continue to face hardship as a result of the ongoing consequences of a disability arising from injuries that they sustained in those terrorist attacks. Such victims will not be able to claim compensation under the statutory scheme provided for in the new clauses. We have concluded that if the scheme is enacted, we should also provide some financial recompense to those victims who continue to live with the consequences of the injuries that they sustained. It is important that we recognise that, although we cannot make clauses retrospective.

Accordingly, my right hon. Friend the Justice Secretary has established a time-limited scheme open to those eligible who were injured in designated terrorist attacks abroad since 1 January 2002. He will develop and establish a scheme following Royal Assent. I should stress that that will be a wholly separate arrangement from the new statutory scheme. We will not be retrospectively legislating on these matters, but we feel that awards payable under the time-limited scheme should be made. In these circumstances, the awards payable will be put in place by my right hon. Friend the Justice Secretary. There will be no awards to those who were bereaved in past attacks or to those who were injured and have now recovered. I accept that that will be a difficult situation for many individuals, but we will ensure that for those with an ongoing disability, one-off payments will be made, calculated by reference to the tariff based on the seriousness of the injury or injuries that we have indicated in previous discussions today. No payment will be made for the loss of earnings or special expenses. That will be a disappointment-I accept that it will be difficult-but I hope that the Committee will accept that we are legislating for a new scheme from January and that we are making strenuous efforts to ensure that we can help individuals who have ongoing difficulties.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

May I make one point, which, I am sure, the Minister already has in mind? It is important that the sums payable under the scheme should not exceed the sums available to members of the armed services who are injured in conflict. If that were to happen, there would be a terrible row. People are rightly very sensitive about compensation payable to servicemen, and there would be the most appalling row if servicemen received less compensation than other British citizens who are injured overseas.

David Hanson (Labour, Delyn)

As I have said, any payment made will be on par with a tariff, which is a well-established practice to date. My understanding is that that will not be higher than individual service awards. I will certainly take those points on board and reflect upon them in due course. I am advised that the armed forces scheme is even more generous than the criminal injuries compensation scheme. There is no opportunity for an overlap, which would be detrimental to those brave individuals who serve in our armed forces. We aim to establish the time-limited scheme for victims of attacks since 2002 as quickly as possible once we have enacted the statutory scheme. I hope that that will be helpful.

I hope that the Committee will agree to the new clauses and amendments. I hope that we never have to implement the provisions, for the simple reason that we do not wish terrorist attacks to occur. None the less, I hope that the Committee will recognise that the Government have made an effort to ensure fairness for those who may be injured in terrorist attacks, and to offer some help to those who have ongoing difficulties as a result of terrorist attacks.

James Brokenshire (Conservative, Hornchurch)

I share the Minister's sentiment when he said that we hope that the provisions outlined in the new clause will not be necessary; if they are, it will mean that some form of terrorist action will have taken place overseas and that British people will have been caught up in it. However, the sad reality is that it may happen, and I note the sensitive way in which the Minister approaches the matter.

For me, the Second Reading debate was marked by the contribution of my hon. Friend the Member for Bournemouth, East (Mr. Ellwood), whose brother was caught up in one such terrorism atrocity. That highlighted the personal issues that can result from those appalling actions, and the impact they can have. We obviously support the work of our security services, our armed forces and the other law enforcement agencies in seeking to ensure that our fellow countrymen and women are protected against such appalling actions.

We recognise the call for support made by those who fall victim to appalling acts of violence abroad who would have received a financial contribution if those acts had occurred in this country. I hear what the Minister said about the new provisions and, as I said on Second Reading, we will reflect closely on them.

I note that the Government have considered the matter and have moved from their previous approach of suggesting that a statutory compensation scheme for British victims of overseas terrorism was not necessary because European legislation required member states to apply compensation to any victims of terrorist acts within their territories. That goes only so far. A number of incidents have occurred outside the bounds of the European Union and the European economic area, and it is in that context that the Government have reflected on the representations made to them and have proposed the scheme outlined in the new clauses.

The provisions were initially announced in a Ministry of Justice press release, and the Home Secretary noted on Second Reading that the Government would be bringing forward proposals. As the Minister said, the scheme is intended to apply not only to UK nationals but to nationals of other EU member states and other countries in the EEA that have sufficient connection with the United Kingdom. I assume that will be based on shared arrangements in meeting treaty obligations, and that we will almost have reciprocity-the arrangements possibly being utilised by other member states.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Could one not be more robust? We could say something to the effect that citizens of an EU state should not be entitled to make a claim under the scheme unless the state to which the claimant belonged had a reciprocal arrangement that would enable UK citizens to make a claim.

James Brokenshire (Conservative, Hornchurch)

As always, my right hon. and learned Friend makes an important point. If individual schemes operate in other EU member states, is there some ability to share in any payments that are made? Should there be some sort of credit? How would individual schemes operate across the EU? If a resident of another EU state is entitled to claim under the UK scheme, should there be an arrangement to seek recompense from that other member state, so that there is a level playing field across the EU? It would be interesting to hear from the Minister on that point about the application of the scheme.

Clearly, the proposal is intended as a fall-back or safety net for when the country where the incident has occurred does not fulfil its European or international obligations. We seek assurances that all steps will be taken to ensure that countries do not ignore their responsibilities under their own schemes. It is interesting to note, for example, that in 2008-09 awards to the value of £539,491 were made under the criminal injuries compensation scheme to overseas residents who were victims of terrorism in the UK. The UK is clearly meeting its responsibilities in that regard, and it is important to ensure that other countries step up to the plate and similarly respect their liabilities and responsibilities. I will listen carefully to how the Minister envisages the operation of the scheme in that context, and to what discussions he has had with colleagues about the international application of the relevant procedures.

It would also be interesting to hear whether the Minister has had any discussions with the insurance market about terrorism exemptions in insurance policies, and about the interrelationship of the proposed scheme with other insurance that may or may not be available. From what he has said to my right hon. and learned Friend, I imagine that the Minister envisages that if payment is received from other sources, it would act as a credit against sums or payments that might be due under the scheme. It is important to understand that better. Equally, if payment is made under the scheme, and further subsequent payment is made either by the host country or other sources, how is it envisaged that that would operate in practice?

As we understand from statements in the Ministry of Justice press release, and from what the Minister has said, it is intended that the scheme be administered by the Criminal Injuries Compensation Authority, based in Glasgow. The Minister may be aware that in the recent past, that organisation has come in for scrutiny and some criticism by the Public Accounts Committee. A PAC report made 14 recommendations relating to the performance of the criminal injuries compensation scheme. For example, the PAC highlighted issues such as the fact that some of the forms needed to use plain English, that some applicants felt that they needed to be legally represented in order to make an application and receive compensation from the CICA, and that there were performance issues regarding the answering of telephones. Obviously, if we now add the new requirements for victims of overseas terrorism to the obligations, responsibilities and administration of the criminal injuries compensation scheme and the authority, it would be helpful to know how the CICA has responded to previous criticisms.

I know that the Ministry of Justice had been seeking to set up action plans to respond to the criticisms made by the PAC and, through the Committee, the National Audit Office. We are trying to ensure that should the scheme come into effect, and compensation is due to those who suffer horrendously from incidents abroad, the process should be clear and understood, and that no obstacles should be put in the way by the operation or administration of the CICA. Therefore, it will be helpful to hear from the Minister how the authority is responding. How does he anticipate that the CICA will operate under the scheme to ensure that claims are made as painlessly as possible in terms of paperwork, and that claimants can contact the CICA for advice, guidance and assistance getting through the process, without feeling that recourse to legal advice is necessary?

The Minister said that the levels of compensation will, in broad measure, reflect the existing criminal injuries compensation scheme. Will certain exclusions apply to the operation of the new scheme, similar to those that apply in the existing scheme? New clause 13 states:

"The Scheme may make provision about a person's eligibility for a payment under it by reference to any or all of the following factors",

including

"any other factors that the Secretary of State considers appropriate".

My understanding is that under the criminal injuries compensation scheme, there could, for example, be a question about whether a previous conviction was relevant in deciding about the award of a payment. It would be helpful to understand what is meant by the detail of the proposed scheme-whether it will reflect principles similar to those in the existing one.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

That is an important point. It would help us if the Minister could amplify on it. I do not want to disqualify someone simply because they have a criminal conviction in the past, but if a person happened to be, for example, running drugs when he was caught up in an explosion, I would not be sympathetic to his claim for compensation. That is the sort of issue that has to be spelt out.

James Brokenshire (Conservative, Hornchurch)

My right hon. and learned Friend is absolutely right. The Minister has set out the broad mapping of how he envisages the operation of the scheme. He said that it would broadly follow the existing criminal injuries compensation scheme. That is helpful, but it would be even more helpful if it was set out in further detail.

My right hon. and learned Friend made an important point that I was intending to raise-the issue of service personnel. I understand that there was originally some delay in proposing the scheme regarding the interrelationship with the armed forces compensation scheme for the appalling incidents that we have seen in Afghanistan, such as roadside bombings, which could be considered terrorist insurgent action. How does the Minister see the interrelationship between the scheme for compensation for service personnel and this scheme? As I understand it, the proposed scheme is separate and would not apply to service personnel-they would be excluded because they are already entitled to apply to another scheme. There would thus be no overlap between the two schemes. It would be helpful to have it set on the record that that is the intention of the proposals.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

My hon. Friend is clearly right, but individuals such as journalists may be embedded with UK forces. Under which scheme will they make a claim? It is important that they do not receive more than service people.

James Brokenshire (Conservative, Hornchurch)

The Minister says that he anticipates that the payments under the scheme would be less than those that go to service personnel. Obviously, there would be a need to spell out in the detail of the regulations and the scheme what exclusions would apply and, if someone were in a theatre of conflict, whether there would be application under one scheme or the other. It is just a matter of ensuring for definitional purposes that the details are made clear.

It is open to the Secretary of State, as stated under new clause 11, to make the requirements to designate whether a particular incident is to be covered under the scheme. We can debate if the provision is too loosely worded about whether the Secretary of State may or may not designate, although I appreciate that certain facts and circumstances might need to be established if something is to be regarded as a terrorist incident. That is why defining the scheme and the application of new clause 11 will become important.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

May I try something out on my hon. Friend? There will be several situations in which people-journalists or whoever-are working in conflict or danger zones as part of their job. There would be a case for saying that such persons should be required to take insurance so that the scheme can get the credit for the insurance payment. For example, it could be said that a journalist embedded with the forces should be insured against the damages that they suffer, otherwise the whole cost would fall on the scheme.

James Brokenshire (Conservative, Hornchurch)

Hence the reason for my earlier comment to the Minister about what consideration he had given to the availability of insurance. In certain circumstances, people might not be able to obtain cover in the insurance market and, in that context, perhaps the Government would consider the scheme as the safety net. The point about credits or recompense through other routes is relevant and one that we have touched on in the debate, so it will be interesting to hear from the Minister about how that will operate in practice.

The Government have determined that they accept their moral obligation to recompense people caught up in acts of terrorism abroad, but they are not seeking to recompense victims of serious crime that is not terrorist action or atrocity. Will the right hon. Gentleman explain why the Government have sought to take the approach of looking at the criminal injuries compensation scheme and saying that they are prepared to accept it to a certain extent, but not in relation to other circumstances? It would be genuinely interesting to hear the Minister's thoughts about the logic and the process and how, in the terms of definition, an action could be a terrorist action or violent crime. Perhaps the Secretary of State will contemplate such matters by virtue of the provision embedded in new clause 11 that gives him discretion to decide whether something is caught by the scheme. It would be helpful to understand the limits and scope of what is intended, and the approach that has been taken.

I turn now to a couple of more detailed points about the new clauses. I understand that the provisions would not prevent ex gratia payments from being made, should the Government determine that appropriate. Subsection (3) of new clause 11 states that

"Nothing in this section affects any power of the Secretary of State to make payments to, or in respect of, persons who are injured as a result of terrorism outside the United Kingdom."

Does that still allow discretion for some element of ex gratia payment over and above the compensation scheme, or has that provision been included for another reason? I want to understand the logic that is being applied.

Going back to the point about the Secretary of State having discretion to decide whether it would be appropriate to designate the particular act to ensure that compensation would be payable under the scheme, what sort of factors does the Minister anticipate, because obviously the provision has been drafted with some thought? What sorts of exclusions are anticipated regarding reserving that right of the Secretary of State to determine that something should not be covered?

New clause 18 makes it clear that any scheme under these provisions would need to be laid before Parliament. What thought has been given to the pre-consultation that should be carried out in relation to the scheme? Once it is laid before Parliament, we would not be able to amend it under the anticipated procedures, so does the Minister plan to have a formal consultation procedure on the scheme to ensure that relevant points can be incorporated before it is finalised?

Douglas Hogg (Conservative, Sleaford and North Hykeham)

May I make a further suggestion that my hon. Friend proposes to the Minister that it would be a good idea if the scheme could be debated in draft before it was laid in its final form before the House?

James Brokenshire (Conservative, Hornchurch)

The Minister might be able to clarify this, but new clause 18 states that the scheme cannot be made unless a draft has been approved by a resolution of each House. Therefore, it seems that a draft would need to be laid and approved by both Houses before it could come into effect. The point that I was making was that the draft would be laid, but it could not be amended, so it would have to be accepted or rejected.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I think that new clause 18 refers to the draft that becomes the final resolution. What sometimes happens, as my hon. Friend will know, is that Governments come forward with a draft that is debated, but not necessarily voted upon. The Government then take it away and incorporate into the final draft such changes as they deem appropriate as a consequence of the debate-that was what I had in mind.

James Brokenshire (Conservative, Hornchurch)

Equally, my right hon. and learned Friend will be aware of the process whereby a Select Committee can consider a draft Bill or draft orders. I am trying to make the point that there should be an opportunity for debate to facilitate the best operation of the scheme and to ensure that relevant points can be fed into the process. The Minister might be planning a formal consultation period that would facilitate that and there might be some parliamentary involvement. Given the interest that many right hon. and hon. Members have in the subject, they may want to have such engagement. At the very least, there should be a process to facilitate such input to ensure that the scheme will be more effective and will take those issues into account.

I will listen carefully to what the Minister says in response to this debate because this is an important issue. We must reflect carefully on those people who have suffered in terrorist incidents overseas. There is an issue of fairness. If such an incident had occurred in the UK, they would be entitled to compensation, but because it took place overseas in a territory that does not have a scheme to provide compensation directly, there is a clear gap. I recognise the moral issue here, which I am sure is part of the reason why the Government have brought forward these proposals.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I welcome the proposals, although I note the restrictions applying to retrospective compensation. When considering what compensation to provide, going back to 2002, were any estimates made of the number of people anticipating being included, but who are not included?

The hon. Member for Hornchurch raised a large number of interesting points about the way in which the proposals interlink with existing schemes-EU schemes, insurance schemes, and the interface with the service personnel scheme-and whether the principle of non-payment to people with previous convictions that applies in relation to criminal compensation is to be extended to this scheme. He raised a number of valid points to which I am sure that the Minister will want to respond.

I would like to echo another issue raised by the hon. Gentleman that is slightly outwith what we are debating, although I hope that you will allow me one or two sentences on it, Mr. Cook. The Government have established the principle of compensating British citizens who are victims of a heinous crime abroad-terrorism. The hon. Gentleman made a strong point about the deliberations the Government went through to arrive at the restriction to victims of terrorism abroad. The Minister might be aware of a case involving the son of one of my constituents who was attacked and seriously injured when he was on holiday in Malia in Crete. We had a meeting in Westminster a couple of weeks ago to look at the issue of victims of crime abroad. A regrettably large number of British citizens have been affected by crime in Greece. I would like to know whether the Government have considered taking the remit beyond victims of terrorism into other areas of serious crime. The Minister has a number of challenging points to respond to, but the principle he has set before us is one that I think all Members will support.

David Hanson (Labour, Delyn)

I am grateful for the broad level of support from the hon. Members for Hornchurch and for Carshalton and Wallington. They raised a range of points and I will try to respond in due course.

The compensation scheme is first and foremost designed for British victims and their families. I recognise that we have obligations under European Union treaties. Article 18 of the treaty on the functioning of the European Union expressly states that we may not discriminate against citizens of other member states on the grounds of their nationality, and there is case law on that. Through the proposals I have brought before the Committee, we are trying to ensure that individuals from abroad who are eligible for this scheme should have strong links with the United Kingdom, and those strong links are defined by case law.

The hon. Member for Hornchurch mentioned the important point of travel insurance. Travel insurance is not designed to provide compensation in the way in which the scheme is designed to do. If I am asked the straightforward question of whether individuals should take out travel insurance, the answer is yes, they should. They should also check that it covers terrorist activity, which around a third of travel insurance schemes currently do. As I have already indicated, if alternative methods of finance are provided, the scheme will take that into account when determining the awards.

The hon. Member for Hornchurch asked whether the eligibility for criminal convictions would be similar. The existing UK criminal injuries compensation scheme will be the basis for the scheme operating abroad, which will have similar provisions.

The hon. Gentleman commented on the ability of the Criminal Injuries Compensation Authority to deal with the claims. I have every confidence that it will be able to do so. It aims to provide compensation as quickly as possible, not just as a matter of course but because it is important that the compensation goes to individuals who require it. Last year, the average time for the authority to decide an application was about nine months and 57 per cent. of applications were decided within eight months. To put that into context, last year 36,461 compensation awards were made in the UK, and since 2002 about 300 of our people have been killed or injured abroad because of terrorist activity. I hope that it never happens but, looking at past form, the increase in the authority's work load would be relatively minor and within its ability to cope.

A number of Members mentioned the armed forces compensation scheme, which is entirely separate from the victims of overseas terrorism compensation scheme. A member of the armed forces injured while on active service would expect to apply to the armed forces scheme and not to the victims of overseas terrorism compensation scheme. We had an interesting discussion about people who might be embedded within the armed forces, working for them as journalists or civilian contractors. We would expect contractors and journalists to be covered by private employer insurance schemes, and in the unlikely event that they were not, the Foreign Secretary would have to consider whether to include them in his designation of terrorist activity. To clarify, the Foreign Secretary, when determining a designation, will consider the identity of the attacker, the design and purpose of the attack, the nature and circumstances of the attack, and the broad thrust of why the attack took place.

The provision will allow ex gratia payments-payments to be made outside the scheme-which were again mentioned by the hon. Member for Hornchurch. An existing Ministry of Defence scheme and Foreign and Commonwealth Office exceptional assistance are both covered, and the Secretary of State for Justice will be able to introduce the arrangements that I mentioned on Second Reading for some of those injured since 2002.

Consultation was mentioned by both the right hon. and learned Member for Sleaford and North Hykeham and the hon. Member for Hornchurch. As I have said on numerous occasions, we are modelling the system on the Criminal Injuries Compensation Authority scheme, which is a natural scheme in practice, and on which we do not need further consultation. We will lay draft orders before the House for approval or otherwise, and I do not want at this stage to commit to full-blown consultation. The principles are established and we do not consult on the current CICA scheme. Furthermore, I do not want to delay the introduction of the scheme. I want it to be operational for anybody who is a victim of a terrorist attack in the near future.

I am trying to think as quickly as I can to cover the points that have been mentioned. Overall, the scheme should be welcomed, and I commend it to the Committee.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I think that the Minister was searching for some points to which he meant to respond. Both the hon. Member for Hornchurch and I asked what consideration the Government have given to extending compensation to victims of not just terrorism abroad, but other things such as serious crime.

David Hanson (Labour, Delyn)

The hon. Gentleman pins me down on an issue that I was not trying to avoid, but was not keen to explore in great detail. We have had to make some considerations on all the matters. Resources are always limited and we have to consider the issues in the round. We have determined that there is a difference between terrorist attacks at home and terrorist attacks abroad, and we have therefore decided to support the scheme. It is right that we should make provisions for British victims of terrorist attacks abroad.

There is a tangible expression of outrage when a terrorist attack occurs, and I recognise that such injuries need to be considered in detail. We have to consider the wider picture, however. I cannot give a commitment to extending the CICA scheme to victims of ordinary crime abroad. We have tried to make terrorism a special circumstance. I hope that the hon. Member for Carshalton and Wallington will accept that that is progress, even if he wishes us to pursue the matter further. I commend the new clauses to the Committee.

Alan Campbell (Labour, Tynemouth)

I beg to move Government amendment 175, in clause 44, page 85, line 11, at end insert-

'( ) Section [Power to restrict sale and supply of alcohol] (power to restrict sale and supply of alcohol) extends to England and Wales only.'

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following: Government new clause 31-Power to restrict sale and supply of alcohol.

Government amendment 176.

Alan Campbell (Labour, Tynemouth)

Government amendment 175 ensures that Government new clause 10 will extend only to England and Wales. Government amendment 176 is merely consequential. I hope that the Committee will forgive me for spending a little time speaking to these measures, as we did not have the opportunity to discuss the matter on Second Reading.

Government new clause 31 would amend the Licensing Act 2003 by inserting five new sections. New section 172A will provide licensing authorities, almost all of which are local authorities, with the power to ban sales or supplies of alcohol between 3 am and 6 am, either in the whole of its area or in a smaller, more confined part of it. The provisions require that such an order may not be made unless certain preconditions are met; I shall return to those shortly.

The effect of an order would be to override the effect of any premises licence, club premises certificate or temporary event notice otherwise authorising sales or supplies at that time in the early morning. We have chosen to restrict such bans to the period between 3 am and 6 am as a result of the findings of an evaluation of the 2003 Act that was published in March 2008. In a written statement to Parliament, the then Secretary of State for Culture, Media and Sport, my right hon. Friend the Member for Leigh (Andy Burnham), said of the 2003 Act:

"Its introduction has not led to the widespread problems some feared. Overall, crime and alcohol consumption are down. But alcohol-related violence has increased in the early hours of the morning and some communities have seen a rise in disorder."-[Official Report, 4 March 2008; Vol. 472, c. 102W.]

The evaluation reported an increase in the number of offences committed between 3 am and 6 am that was small in absolute terms, at 236 incidents, but large in proportionate terms at about 25 per cent. Our intention is not unnecessarily to restrict or inhibit the night-time economy, which is often important to local economies, but to focus sharply on the problem that has been identified.

Returning briefly to the preconditions, first, the order must be necessary for the promotion of one or more of the four statutory licensing objectives. I remind the Committee that they are: the prevention of crime and disorder; public safety; the prevention of public nuisance; and the protection of children from harm.

Secondly, new section 172B requires the licensing authority to advertise the proposed order and to consider at a hearing any relevant representations made to it by any of three different groups. The Secretary of State is empowered under the new section to prescribe the detailed procedure governing how and when relevant representations should be made and how they will be processed. Under the provisions, representations are relevant if they concern the likely effect of the order on the statutory licensing objectives, and are made in the prescribed form and within the prescribed time.

Of the three groups that may make representations, the first includes any persons affected by the order, which means the licence and club certificate holders, people who give temporary event notices, and the holders of provisional statements. The second group includes responsible authorities-for example, the police and environmental health officers. The third group comprises interested parties, including residents or other businesses in the vicinity of the affected premises. It also includes local councillors who are members of the licensing authority. Where no relevant representations are received, the licensing authority will be free to make the order it had proposed and advertised, but, where representations have been received, the licensing authority must hold a hearing before finalising its decision. The arrangement for such a hearing will be set out in the regulations.

The legislation was passed in 2003 and came into force in November 2005, so it has been in force for more than four years. At the time it was enacted, the Government promised to keep its impact under close scrutiny. The new measure is designed, in the light of our evaluation, to extend the powers that we originally gave to licensing authorities. The question has been asked whether we expect the power to be widely used. The answer is no, we do not. The 2003 Act has been a considerable success in many areas and we believe that the existing powers in the Act are sufficient in those areas. In other areas, however, we need to go further.

There are 378 licensing authority areas. In the case of public bars, pubs and nightclubs, some 73 per cent. of those licensing areas have either one or no premises licensed for 24 hours. Nationally, we believe that no more than 3 per cent. of licensed premises trade between 3 am and 6 am. That suggests that no more than 6,000 premises would be affected if every area made such an order, which is highly unlikely. Our approach, therefore, is targeted and proportionate.

Some local authorities, however, have more demanding night-time economies, and they tell us that they would welcome the power to manage crime and antisocial behaviour better, in the interests of their residents. There is a general principle that we wish to empower local people to have an even stronger say in what their towns and cities are like, particularly in the early hours of the morning. It is fair to ask, in anticipation, why we are not giving licensing authorities a free hand to set their own hours of closure when making orders. We believe that the measures are reasonable and proportionate. We do not want to create unjustified problems for businesses that are emerging from recession, or provoke job losses, unless there is a good, evidence-based reason.

As for why we are centring on the hours between 3 am and 6 am, a fixed closing time of 3 am minimises the disruption to businesses, with only those trading between 3 am and 6 am potentially affected. We believe that 3 am is late enough to allow closing times and departures from licensed premises to be staggered, which the police continue to value as a support for dispersing large numbers of people from city and town centres. Moreover, 3 am should be sufficiently late not to interfere with plans for wedding receptions and other special celebrations that may continue later than a normal evening's pleasure. At the other end of the closure period, 6 am allows people to sell alcohol with breakfast. It may come as a surprise to some that that is a habit, but I am told that champagne breakfasts sometimes have an appeal for tourists. People celebrating Christmas might also decide that they want a particularly early start, so 6 am offers that flexibility and allows the period for closure.

New section 172E will allow the Secretary of State to make an order exempting certain cases and circumstances from the effects of an order made under new section 172A. Those cases and circumstances will be defined in particular by reference to certain types of premises and certain days. On certain premises, hotels have always been free to supply alcohol to their residential guests, so we think that they should be exempt from the arrangements. Moreover, we would not want to exempt sales made to the general public at certain other premises. Warehouses to which the public have no access for purchasing alcohol, for example, hold 24-hour licenses and operate after 3 am. Such premises may be distribution centres for wine purchased over the internet or by mail order, with the goods sometimes starting their journeys in the small hours. We would expect such premises to be exempt because they do not present any obvious danger to the licensing objectives.

As for particular days, we would consider appropriate for exemption new year's eve every year and specific days such as the diamond jubilee weekend of 2012, for which occasion it might be suitable to exempt days, but-I stress this point-the effect would not be that all licensed premises can trade between 3 am and 6 am on the exempted days. The effect of an exemption would be that the normal permission for such licences and certificates would be in force. Thus, premises whose hours have always been restricted by their licences and certificates would continue to be restricted despite the existence of an exemption on the day or days.

James Brokenshire (Conservative, Hornchurch)

I am gratified that the Minister had the good grace to accept that the provisions in the new clause are likely to have limited effect. I hope, for his sake, that they will not have the same limited effect as the new alcohol disorder zone provisions, none of which has been used at all.

I appreciate and recognise that the Government, by virtue of the provisions, accept that they got 24-hour licensing wrong. The Minister rightly identified the increase in violent crime between 3 am and 6 am-from the DCMS report-which is tantamount to admitting why the Government are introducing the new clause. They are right to take action. We have seen not just the rise in crime but the rise in hospital admissions of patients with an alcohol-related diagnosis-between 2004-05 and 2008-09 such admissions went up by 47 per cent. Similarly, the number of children admitted has risen, and death rates from alcohol have increased by 47 per cent. since 1997.

The provisions are an admission and recognition of the problems caused by the Government's approach. I appreciate what the Minister said about keeping things under review, but the situation is not one they have woken up to overnight, because the problems relating to the small hours of the morning were first identified in July 2007. Why have the Government taken so long to act? Furthermore, incidents that occur at that time are likely to be the result of drinking much earlier in the evening-the whole concept of pre-loading and the consumption of alcohol in the home. Although the problems might be exhibited in the hours between 3 am and 6 am, it does not mean that the alcohol was consumed then. When we understand that, we see a much wider problem than the Minister alluded to.

I have a few comments on the specifics of the new proposals, but I do not intend to use this afternoon's sitting for that wider debate, because it would not necessarily be appropriate or in order. However, proposed new section 172A in new clause 31, states:

"If the licensing authority considers it necessary for the promotion of the licensing objectives, it may"

take the relevant action. From what the Minister said, that appears to be tied to the four licensing objectives, but I want to understand that a little better. The DCMS press release of 4 February 2010 stated:

"Councils would need to show that the restriction was necessary to prevent crime and disorder or public nuisance or to promote public safety."

What obligation does that place on councils? Can they make a restriction if they consider it necessary, or must the necessity be demonstrated with objective evidence? In other words, is the provision likely to be fettered by guidance that would sit alongside it, which would make it very difficult for a council to show that evidence and to rely on the provisions set out in the new clause.

We have heard, in the review from the DCMS, that there were just 470 pubs, bars and nightclubs with 24-hour licences, but there was no evidence that more than a handful operate on that basis. If there were so few licensees trading or operating during that time, how would a council be able to demonstrate that the four criteria-the licensing objectives-would meet the hurdle that the Government appear to be setting up? Would it create a restriction on the utilisation of the powers, even if a council wished to do so? It is all very well putting down in legislation that new powers exist, but if the bar is set so high for councils to satisfy the relevant criteria-to go through the procedures that the Minister has alluded to-the likelihood is that they will not bother, even if they feel that it might be useful or helpful for them to do so.

The whole of that fettering-all the other arrangements that sit alongside the provisions-is germane. We have seen guidance fetter local councils in their ability to utilise the staggered arrangements alluded to by the Minister. In essence, the council always has to prove why a licence should not be granted, rather than a licensee having to prove why they should be granted the licence in the first place. It is about balance and discretion. Therefore, although I welcome and appreciate the fact that the Government recognise that a change needs to be made, the question is what impact it will have and whether the provisions will actually be used at all.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

The proposal is recognition that we are not yet ready for continental-style 24-hour licensing. The measures needed before that change were not in position. It is not entirely clear to me whether this change-the restriction that will now apply between 3 am and 6 am-will actually achieve what the Government intend. They have previously stated that the provision was to try to address peaks of violence associated with drinking. It is clear from evidence supplied from Guildford that the peaks of violence happen earlier than the 3 am to 6 am slot, so it will not address the problem in that city, or presumably in others.

Underlying the change is the need to deal with other fundamental problems of alcohol consumption that have not been addressed-pricing, promotions, advertising, the strength of alcohol and under-age drinking. Those are matters that I am sure we would all like to debate, Mr. Cook, but you would not allow us to do so. It is possible that the change will make a slight dent in the problems associated with irresponsible drinking, but I think it will be a slight dent only and there are still many major issues that we need to address.

Alan Campbell (Labour, Tynemouth)

I anticipated to some extent the points that the hon. Member for Hornchurch made. We had a fairly substantial rehearsal on the Floor of the House when we debated the programme motion. He cites alcohol disorder zones as evidence of the worthlessness of such actions, but he knows as well as I do that they are a very useful stick with which to prod, if not to beat, local licensing committees and agencies involved in making town and city centres safer. They are to some extent, the ultimate weapon to have at one's disposal, because they bring with them a certain stigma about what a town or city centre might be like. Quite often, partners will go to almost any length-in other words, make the improvements they have been offering to make but never quite got round to-to manage a problem in a town and city centre and fall short of becoming an alcohol disorder zone. I will not, therefore, dismiss alcohol disorder zones, as clearly I would not want anybody to dismiss the measures either.

I refute the suggestion that the Government got all of it wrong; that denies the change in behaviour for the better in many towns and cities throughout the country. It is not the case that every town and city centre is an alcohol-fuelled wild west. That would be unfair to the police and those in local authorities who take the matter seriously. A lot of people need to take it more seriously, but many do a good job. If further measures are necessary, they need to be targeted and proportionate, which includes referring to times when there are specific problems.

We have not just woken up to the issue. As I explained to the hon. Member for Hornchurch on the Floor of the House, he must accept that the development of policy in such an important area as tackling alcohol-related disorder is a never-ending continuum. We want to get it absolutely right, often with the advice of the police and others on how best we can do so. Pre-loading is a worry. However, if we decided to close bars and clubs at the point when people were arriving in a pre-loaded state, we would be moving the measures to much earlier- 10 or 11 o'clock at night. That would not be proportionate or necessary.

The hon. Gentleman asked why we needed an evidence base to support such an order. That is how the licensing system works. It is an evidence-based system. Police and others need to bring forward evidence that there is a problem. Sometimes in my area there is a difference between the views of the trade, as we would expect, and how bad the situation is for residents and how bad it is for the police. Nevertheless, it is important that such matters are based on evidence and not the whim of a party. We do not expect the measure to be used hugely, because a lot of things can be used to deal with single premises or a few premises in an area, but only when the perception of a general problem in a city or town centre is such that those responsible for making the decision at local level believe that it would be helpful. That is why we want the provision in the Bill.

The hon. Member for Carshalton and Wallington is absolutely right to put the provision in the context of all the other things we need to discuss and act on to tackle alcohol in our society, including pricing. However, the matter is not about pricing, but what happens in town and city centres between 3 am and 6 am. Evidence suggests that one of the down effects of the changes to licensing was an uplift in the statistics on alcohol-fuelled violence. It is therefore right to introduce the measure.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I do not dispute the effect to which the Minister refers, but presumably he is not disputing the fact that in some of our towns and cities, the uplift in violence happens at an earlier stage so the hours between 3 am to 6 am miss the peak in violence.

Alan Campbell (Labour, Tynemouth)

That time does not miss the peak in violence because, in reality, there was also an uplift during the hours that we are addressing. I am not disputing the fact that in the early morning there are problems in some towns and cities. Measures can be brought into play at such times but, because of the uplift at a particular time of the early morning and because we want a proportionate response, we believe that between 3 am and 6 am is the right time for the measure. If the hon. Member for Carshalton and Wallington is arguing that the police and local authorities will be knocking on our door asking whether the timing is right and will we be considering extending the measure to other times, I cannot read into that. All I am saying is that we believe that there is an evidential base for the measure. It will help locally both those whose job it is to organise the night-time and early morning economy, and residents.

David Hanson (Labour, Delyn)

I beg to move amendment 177, in clause 44, page 85, line 11, at end insert-

'( ) Section [Persons subject to control order: powers of search and seizure] (persons subject to control order: powers of search and seizure) extends to England and Wales, Scotland and Northern Ireland.'.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following:

Government new clause 32-Persons subject to control order: powers of search and seizure.

Government amendment 178.

David Hanson (Labour, Delyn)

New clause 32 and the consequential amendments will introduce a power for police officers to search the person of a controlled individual in specified circumstances, and allow them to seize articles of concern as appropriate. The clause fills a gap, which has been identified by ourselves and-dare I say it?-the courts in relation to how we deal with controlled individuals who are on control orders in the community at the moment. The important power of personal search of a controlled individual is on the face of the Prevention of Terrorism Act 2005. We have recently had two court judgments, the latest of which was in November last year. Members may be aware that Lord Carlile, in his fifth report on control orders published on 1 February earlier this month, indicated that we need to rectify the situation and bring it into an appropriate legal framework.

The Prevention of Terrorism Act 2005 provides that the Secretary of State may impose "any obligations" on an individual, which are considered

"necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity".

The Act provides a number of obligations for the individual that the control order "may include", but does not expressly include an obligation for the individual to allow him or herself to be searched. Given that the wording of the Act makes it clear that the list of obligations that may be imposed is indicative rather than definitive, we considered that the general power was available, but sadly-or otherwise-the courts have taken a different view. In July last year, the Court of Appeal held that the 2005 Act was insufficient to authorise the imposition by a control order of an obligation to submit to a personal search.

In November last year, as I have already indicated, the High Court handed down a further ruling, which indicated that we could not enforce a requirement for a controlled person to submit to a personal search prior to being escorted by the police outside their boundary. Those two judgements, whatever our views of them, are causing operational difficulties on the ground. Both the Security Service and the police have assessed that our lack of ability to search a controlled individual under the 2005 Act is a loophole that causes difficulties for us. For example, individuals could have mobile phones, which are not permitted outside the controlled area, and if we cannot search the individual, would proceed with them to alternative places.

Most controlled individuals have geographical boundaries to restrict or disrupt their ability to engage in terrorism-related activities. The judgments make it very difficult for us to manage the risk when those individuals need to make trips outside their geographical boundaries. For those reasons, I have brought forward proposals that would allow for a search of controlled individuals, which I hope will be welcomed by the Committee. It is important, for the small number of people who have a control order, that we have the ability for the police to undertake searches. The numbers are extremely small-currently about 15 individuals. We need this power and I hope the Committee will support it.

James Brokenshire (Conservative, Hornchurch)

The amendment and the new clause underline the practical problems with control orders and why we believe they should be reviewed-a view consistent with the security situation-to examine ways in which a suspect could be tried through the normal courts system. As the Minister has said, in essence, the provisions address points that have been brought forward as a consequence of the Court of Appeal decision in the case of GG and the High Court decision in BH. The Court of Appeal judgment found unanimously that section 1(3) of the Prevention of Terrorism Act 2005 could not be read as allowing the inclusion of a personal search obligation and control order, and that its omission from the list of example obligations in section 1(4) meant that there was no statutory basis for the power to include an obligation to submit to a personal search.

The Minister has alluded to the provisions in the separate High Court case concerning BH, which involved the requirement to submit to a personal search so as to enable someone subject to a control order to be escorted outside a controlled zone. I would like to understand whether that is a question of drafting. Was the court case, and the issue that the Minister seeks to address, simply a point of drafting needed to correct a legal lacuna in the Prevention of Terrorism Act, or do more underlying concerns under the European convention on human rights drive the amendment to permit the search in this way? What consideration has been given to it?

As the Minister said, in his report published earlier this month Lord Carlile recommended that this issue be addressed. Obviously, in the short term, we recognise that this is a case for the management of control orders, and therefore we will not object to or vote against the new clause and the amendment that the Government have tabled. However, that does not show any inconsistency in our broad approach regarding how we believe it is essential to bring people to justice before the court wherever possible. It is a question of getting that review done and of examining ways in which that can be achieved. The Minister has made various points about the short-term necessity of this provision, and we understand that. However, it would be helpful to know whether this is a point of drafting, or whether he seeks to address a more fundamental issue.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I, too, have heard the Minister's explanation. Our starting point is that we do not think that control orders are appropriate, so we would perhaps not be in the position that the Government are in. We would like to see the judicial process used to ensure that there is no requirement for control orders in the first place.

David Hanson (Labour, Delyn)

First and foremost, this is a point of drafting, which I hope helps the hon. Member for Hornchurch. The purpose of the legislation is to ensure that when we search individuals on control orders, we do so in recognition of the legal responsibilities that the Court has indicated we need. We can have a wider debate in the future about the necessity of control orders. I believe that they are necessary. They are not taken lightly but they provide protection for the British public against potential terrorist activity. They are small in number, strictly controlled and have external scrutiny through Lord Carlile. I would commend them to the Committee in any debate, but today I restrict my comments to the new clauses, which are a valuable addition to help protect the British public and ensure that individuals on control orders can be searched under legal cover.

Rob Flello (Labour, Stoke-on-Trent South)

I beg to move amendment 147, in clause 44, page 85, line 11, at end insert-

'( ) Sections [Prohibition of alcohol consumption in public places] to [Interpretation of sections [Prohibition of alcohol consumption in public places] to [Places which are not a restricted public place]] extend to England and Wales only.'.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss new clause 22-Prohibition of alcohol consumption in public places-

'(1) Subsection (2) applies if a constable reasonably believes that a person is, or has been, consuming intoxicating liquor in a restricted public place or intends to consume intoxicating liquor in such a place.

(2) The constable may require the person concerned-

(a) not to consume in that place anything which is, or which the constable reasonably believes to be, intoxicating liquor;

(b) to surrender anything in his possession which is, or which the constable reasonably believes to be, intoxicating liquor or a container for such liquor (other than a sealed container).

(3) A constable may dispose of anything surrendered to him under subsection (2) in such manner as he considers appropriate.

(4) A person who fails without reasonable excuse to comply with a requirement imposed on him under subsection (2) commits an offence and is liable on summary conviction to a fine not exceeding level 2 on the standard scale.

(5) A constable who imposes a requirement on a person under subsection (2) shall inform the person concerned that failing without reasonable excuse to comply with the requirement is an offence.'.

New clause 23-Restricted public places-

'(1) A place is, subject to section [Places which are not a restricted public place], a restricted public place if it is a public place in the area of a local authority.

(2) A local authority may for the purposes of subsection (1) by order identify all public places in their area if they are satisfied that-

(a) (i) nuisance or annoyance to members of the public or a section of the public, or

(ii) disorder

has been associated with the consumption of intoxicating liquor in their local authority area; or

(b) at least 20 per cent. of the electors in that local authority area have petitioned the local authority requesting the area covered by the local authority be a restricted public place.

(3) The power conferred by subsection (2) includes power-

(a) to identify a place either specifically or by description;

(b) to revoke or amend orders previously made.

(4) The Secretary of State shall by regulations prescribe the procedure to be followed in connection with the making of orders under subsection (2).

(5) Regulations under subsection (4) shall, in particular, include provision requiring local authorities to publicise the making and effect of orders under subsection (2).

(6) Regulations under subsection (4) are to be made by statutory instrument and are subject to annulment in pursuance of a resolution of either House of Parliament.'.

New clause 24-Places which are not a restricted public place-

'(1) A place is not a restricted public place or a part of such a place if it is-

(a) private land, a dwelling place or any place to which the public would not normally have access;

(b) licensed premises or a registered club;

(c) a place within the curtilage of any licensed premises or registered club;

(d) a place where the sale of intoxicating liquor is for the time being authorised by an occasional permission or was so authorised within the last twenty minutes;

(e) a place where the sale of intoxicating liquor is not for the time being authorised by an occasional licence but was so authorised within the last twenty minutes;

(f) a place where facilities or activities relating to the sale or consumption of intoxicating liquor are for the time being permitted by virtue of a permission granted under section 115E of the Highways Act 1980 (c. 66) (highway related uses).

(2) In subsection (1)-

"licenced premises", "occasional licence" and "registered club" have the same meaning as in the Licensing Act 1964 (c. 26); and

"occasional permission" has the same meaning as in the Licensing (Occasional Permissions) Act 1983 (c. 24).'.

New clause 25-Effect of sections [Prohibition of alcohol consumption in public places] to [Places which are not a restricted public place] on byelaws-

'(1) Subsections (2) and (3) apply to any byelaw which-

(a) prohibits, by the creation of an offence, the consumption in a particular public place of intoxicating liquor (including any liquor of a similar nature which falls within the byelaw); or

(b) makes any incidental, supplementary or consequential provision (whether relating to the seizure or control of containers or otherwise).

(2) In so far as any byelaw to which this subsection applies would, apart from this subsection, have effect in relation to any designated public place, the byelaw-

(a) shall cease to have effect in relation to that place; or

(b) where it is made after the order under section [Restricted public places] (2), shall not have effect in relation to that place.

(3) In so far as any byelaw made by a local authority and to which this subsection applies still has effect at the end of the period of 5 years beginning with the day on which this subsection comes into force, it shall cease to have effect at the end of that period in relation to any public place.'.

New clause 26-Interpretation of sections [Prohibition of alcohol consumption in public places] to [Places which are not a restricted public place]-

'(1) In sections [Prohibition of alcohol consumption in public places] to [Places which are not a restricted public place], unless the context otherwise requires-

"restricted public place" has the meaning given by section [Restricted public places] (1);

"intoxicating liquor" has the same meaning as in the Licensing Act 1964; and

"public place" means any place to which the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission.

(2) In sections [Restricted public places] to [Effect of sections [Prohibition of alcohol consumption in public places] to [Places which are not a restricted public place] on byelaws] "local authority" means-

(a) in relation to England-

(i) a unitary authority;

(ii) a district council so far as they are not a unitary authority,

(b) in relation to Wales, a county council or a county borough council.

(3) In subsection (2) "unitary authority" means-

(a) the council or a county so far as they are the council for an area for which there are no district councils;

(b) the council of any district comprised in an area for which there is no county council;

(c) a London borough council;

(d) the Common Council of the City of London in its capacity as a local authority;

(e) the Council of the Isles of Scilly.'.

Rob Flello (Labour, Stoke-on-Trent South)

Along with, I suspect, most if not all other hon. Members of the House, since being elected not a week goes by without my casework-be it letters, e-mails or callers at my surgery-involving issues associated with antisocial or criminal behaviour. Frequently, such behaviour is alcohol-related and causes a huge range of problems. Such behaviour might occur in the local park down in Fenton, or in the back alleys of Fenpark. It might occur in the shopping centres in and around Longton, up on Sandford Hill or Meir Hay, across at Meir where the shops are, or in some other area such as Meir Park or Trentham. Across the constituency, time and again alcohol-related problems are arising because people are engaging in antisocial behaviour or criminal activity in the street due to drink.

Over the past few years I have held a number of public meetings at which I have brought together the police, the local authority and different agencies to tackle these issues with the community. At some of the meetings, hundreds of people have come together to address the problems arising in their area. Time and again those problems have the common theme of being alcohol-related.

Residents ask me at those meetings why people are allowed to sit or stand drinking outside an off-licence, perhaps down on the Meir, almost from when it opens. They open the cans, drink and act in an intimidating way, blocking the pavements where parents with pushchairs or prams are trying to get past. They do not always engage in direct antisocial behaviour or criminal activity, but they are often threatening or intimidating. Residents ask me why it seems okay for people to sit on the bandstand in our shopping area with bottles of cider all day, every day, drinking and causing a nuisance, being intimidating through their antisocial behaviour. They also ask me why it is okay at 9.30 in the morning for a couple of guys to be walking through a residential area with cans in their hands. As a can is finished, it is discarded and the next one opened. Time and again residents ask why this is permitted.

Where it can be shown that there is a direct link between alcohol consumption and crime or antisocial behaviour, alcohol restriction zones can be considered, but they, of course, relate to a specific place. There are tough tests to get the ARZs, and there is a perception issue. A particular community-Newstead, for example-might not want an ARZ because it does not want people to have that perception of its area. ARZs are time limited and often, a problem is solved in one area because it has moved somewhere else. When that somewhere else gets fed up with the problem and an ARZ is considered for that area, the drinkers are moved on. Where do they move to? They move back to the first area that was the problem and had the ARZ to start with. There are cost implications in constantly having to go through the process of applying for an ARZ, putting up signage and doing all the associated things.

Following those questions about why such things are permitted, I asked agencies, individuals and residents' associations across my constituency for their views on imposing a blanket ban across a local authority area by simply saying, "You are not allowed to drink in a public place unless it is a designated picnic area or a licensed premises within the curtilage." The unanimous view of individual residents, residents' groups and police officers was that it was a darned good idea. People should not be routinely able to sit in a busy shopping area or walk down residential streets from dawn to dusk drinking, discarding cans and causing a nuisance through intimidating behaviour, which often leads to other issues.

In my part of Stoke-on-Trent there are lots of back alleyways. People say they get fed up with the local idiots who have filled themselves with beer standing on the street corner on a Friday night, going past a fence or house and giving it a good kicking, throwing over bottles and worse. There are all the problems that come with that, and criminal and antisocial behaviour arises.

With the new clauses I am trying to do two things: prohibit the drinking of alcohol in public places and-through new clause 23-allow residents to override the normal requirements of an ARZ. It would not just be about disorder or nuisance and annoyance to members of the public; people in a local authority area could say, "No, we do not want this in our area." For example, in the city of Stoke-on-Trent, we do not want people to be able to walk down the street drinking alcohol, causing a nuisance, and generating the criminal and antisocial activity that goes with it, irrespective of the wishes of everyone else.

The clauses propose an authority-wide ban on drinking in public as a way of restoring confidence and giving people ownership over their area, so they do not have to be intimidated by groups of drinkers or constantly have to clear up the bottles, cans and associated damage that goes with people thinking it is acceptable to stand on the street corner and drink for however many hours they want. If people want to drink, great; there are plenty of pubs that we want to promote to ensure that people go back to them. It is fine if people want to drink, but they should do it at home or on licensed premises. Communities-our high streets, shopping areas and parks-are not places to drink. The clauses send out that message and would allow ordinary, hard-working, decent people to get their cities back.

Alan Campbell (Labour, Tynemouth)

First, I pay tribute to my hon. Friend the Member for Stoke-on-Trent, South not only for raising an important matter but for doing so in that thoughtful way, demonstrating his knowledge of the subject and his constituency. I do not feel that I need to visit it, as I know it so well after his description. [Interruption.] We can bring politics and majorities into it but, when my hon. Friend's constituents read Hansard-as I am sure they will-his majority will go up.

We broadly support my hon. Friend's proposals, but many of the powers he proposes are already available to local authorities and the police through designated public place orders in the Criminal Justice and Police Act 2001. There are 766 DPPOs in existence, and that high take-up demonstrates the popularity of the policy in its current form and the lack of too high an evidential barrier.

I want to point out one or two problems we have with my hon. Friend's proposals and to compare them with the current legislation on drinking in public place orders; for example, the proposed exemption for private property, or any place to which the public do not normally have access, from being part of a restricted area. I am not sure what the scope of that exemption would be, but it could prevent the police from confiscating alcohol in a supermarket car park late at night, thereby reducing their ability to tackle some cases of alcohol-related antisocial behaviour.

My hon. Friend raised an interesting and innovative idea about petitions. If 20 per cent. of local electors petition for the entire borough to be made a restricted public place, the local authority can create a restricted public place without first gathering evidence of the need for one. The petitions duty in the Local Democracy, Economic Development and Construction Act 2009, will require local authorities to respond to petitions on all matters of local concern, including alcohol-related crime and disorder. The proposed statutory guidance, which will underpin that duty, will say that local authorities are expected to consider the creation of a DPPO if they are petitioned on alcohol-related crime and disorder.

The petitions duty is more accessible and less prescriptive than the provisions suggested in new clause 23. For example, it would require 20 per cent. of local electors to sign a petition to trigger a response. We estimate that in Birmingham the figure would be in the region of 150,000 signatures. The new clause would remove the current requirement to gather evidence before creating a borough-wide DPPO if the local authority received a petition from 20 per cent. of local electors, yet-we keep coming back to this issue-an evidential base is important and a crucial step in ensuring that action is both appropriate and proportionate.

As the amendment would replicate existing powers, and the proposed policy would, we believe, face difficulties that the existing policy avoids, I am sorry to say that I cannot accept the amendment and the new clauses and I invite my hon. Friend to withdraw them. None the less, I pay tribute to his valuable work in drawing the matter to the attention of the Committee.

Rob Flello (Labour, Stoke-on-Trent South)

I would like to return to a couple of points. First, on the electorate having their say, although an evidential basis is crucial, it is down to the electorate to make their views known and be listened to on some things-for example, public drinking. With respect to supermarket car parks, I suspect that it is probably not beyond the wit of most people to address the issue. However, I take on board the Minister's comments. I ask him to reconsider in the weeks ahead whether there is scope for widening the DPPO route and making it more accessible.

Mr. Campbellindicated assent.

Rob Flello (Labour, Stoke-on-Trent South)

The Minister is nodding, indicating that he will consider the issues further. On that basis, I am content, and I beg to ask leave to withdraw the amendment.

Clause 45

Frank Cook (Labour, Stockton North)

With the leave of the Committee, I would like to take Government new clauses 10 to 21 and 31 and 32 together.

James Brokenshire (Conservative, Hornchurch)

If possible, I would like to divide the Committee on new clauses 19, 20 and 21. Other than that, I have no other objection to grouping the new clauses in that way.

The rest of the debate is in Hansard.