Police Reform and Social Responsibility Bill

Public Bill Committee, 15 February 2011.

Clause 134

Diana Johnson (Labour, Kingston upon Hull North)

I beg to move amendment 581, in clause 134, page 92, line 17, after ‘(b)’, insert ‘other’.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following:

Amendment 582, in clause 134, page 92, line 17, after ‘authorisations’, insert

Amendment 583, in clause 134, page 92, line 25, after ‘descriptions’, insert

Amendment 584, in clause 134, page 92, line 28, after ‘prescribe’, insert ‘additional’.

Amendment 580, in clause 134, page 92, line 34, at end add—

Diana Johnson (Labour, Kingston upon Hull North)

Good morning to you, Mr Benton, and to the Committee. This is the last group of amendments on licensing provisions and the late night levy, in particular. Amendment 581 would insert the word “other” at the start of subsection (1)(b), which relates to holders of relevant late night licence authorisations in relation to which, if a licence authority so desires, a reduced amount of the levy applies. Amendments 581 to 584 set out various ways in which to allow regulations to be produced under which categories of licence holders could pay a reduced amount at the discretion of the local authority.

Amendment 580 would require the levy to be reduced by 50% for premises participating in well-established and recognised corporate responsibility initiatives, specifically Best Bar None, business improvement districts —we have heard a great deal about them in relation to the Bill’s provisions on the late night levy—the Purple Flag scheme, Pubwatch and similar watch initiatives. If a reduction for those initiatives was left to the discretion of the local authority, the general view is that it might risk the reductions not being made and thus affect the credibility of participating in such initiatives, for which there is widespread support. It is also felt that those initiatives have achieved a great deal during the past few years and we are worried that the Bill might undermine the initiatives themselves.

In order to acknowledge the important contribution and investment that the industry has made to improve standards and address the challenges of the late night economy, particularly in town and city centres, it is appropriate that such high-profile initiatives are clearly identified under the Bill as requiring a reduced levy. That would also safeguard the initiatives themselves and encourage further take-up in areas where such partnership approaches do not yet exist. I should be grateful if the Minister would comment on the proposal because it would be positive for the late night levy and several of the existing initiatives.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Good morning, Mr Benton, and members of the Committee. I thank the hon. Member for Kingston upon Hull North for the way in which she introduced the proposals. Like her, I want to put on record my welcome and support for the local initiatives that she highlighted, such as business improvement districts, Best Bar None, community alcohol partnerships, Purple Flag and various others. It is important to recognise the contribution made by those local schemes to managing the night-time economy.

Our problem with the hon. Lady’s amendments is that we plan to consult on the details of the various categories of organisation or scheme that may be engaged with that sort of provision. The consultation will include close working with, and input from, best practice scheme representatives. That consultation would be pre-empted if we were to set out in the Bill a number of different local schemes, as amendment 580 would. Putting such a provision in the Bill would unduly circumscribe the clause because we would require primary legislation to change it. Indeed, the schemes themselves might alter, and new schemes might come onboard, so we think that it is best to conduct the consultation, although I certainly welcome what the various existing schemes do and the contribution that they make.

The other theme running throughout the licensing provisions is that they are an attempt to promote local engagement and local decision making. Licensing authorities, given their knowledge of local priorities, are best placed to decide which schemes to exempt. We should not try to limit that discretion by defining national exemptions in the Bill, which would set the situation in stone. I hear the hon. Lady’s point about whether our approach might be seen as a disincentive to the schemes, but I do not think that it will be. This is about analysing and assessing what works best in local areas so that local councils can determine how best to manage their night-time economy. I hope that many of the schemes will continue to be adopted and that they will grow. Therefore, in some cases, there will be no necessity to go down a statutory route. It will be at the discretion of local authorities and councils to determine what they do to reflect local circumstances and, in so doing, to recognise the contribution that the late night economy makes. I therefore hope that the hon. Lady will be minded to withdraw the amendment.

Diana Johnson (Labour, Kingston upon Hull North)

I am grateful to the Minister for his comments. It is absolutely right that there should be full consultation on the issues and a debate on other initiatives that might be helpful to local communities, and town and city centres, in dealing with the late night economy. However, the excellent approaches throughout the country through the schemes, and existing good partnership working, mean that the Government ought to focus on the schemes. They should acknowledge that as local businesses contribute voluntarily to those schemes as part of that partnership working, they ought to receive some credit. There is concern that local businesses will be asked to make a contribution to the late night levy in addition to their work with some of these initiatives. They should be given credit for the work that they already undertake, and that work should be acknowledged through a reduction in their funding of the late night levy.

I want to test the opinion of the Committee on amendment 580, but I beg to ask leave to withdraw amendment 581.

Clause 135

Diana Johnson (Labour, Kingston upon Hull North)

May I ask the Minister when the late night levy regulations will come before Parliament?

James Brokenshire (Conservative, Old Bexley and Sidcup)

Obviously, we will not be able to introduce regulations before Royal Assent, but we hope to move forward swiftly. The regulations are part of the implementation process, so I think that we will move forward with them in a matter of months, following consultation. As I have said before, we want to engage and have proper consultation, and it is intended that that will take place during the summer.

Clause 139

Vernon Coaker (Labour, Gedling)

Good morning to you, Mr Benton, and to all members of the Committee. We have now reached an extremely important clause. The clause repeals provisions in the Serious Organised Crime and Police Act 2005, which will be replaced with provisions in subsequent clauses.

It would be remiss of me not to welcome the Under-Secretary to the Committee. Before I had to leave on Thursday, he said some kind things about me, and I appreciate and reciprocate his remarks. His right hon. Friend the Minister for Policing and Criminal Justice is in the room, and I am glad that his iPad—or whatever is in front of him—is working.

This part of the Bill includes extremely important clauses, and clause 139 enables those clauses that follow it. There is no doubt that members of the Committee understand that policing protests can generate controversy, given the conflicts of interest that need to be balanced. It is important that the interests and rights are protected of not only the protestors, but those against whom the protestors are protesting. Of course, we must also consider the interests of the general public. Balancing all interests is difficult and sometimes controversial. The balance is even more difficult to strike when protests relate to what we think is appropriate around Parliament. Should the normal laws of the land apply or should additional provision be made, as we have seen over the past few years?

That is important because Parliament, for reasons that we do not need to go into, is a symbolic place for protest. It is where laws are made, so people rightly feel that they need to come here to protest if they feel strongly about a policy that the Government are, or are not, pursuing, or about a decision that has been made. Alongside that, Parliament has to function, so issues of security must be taken into account. Although the European convention on human rights gives people important rights under both article 10, on freedom of expression, and article 11, on peaceful assembly, such rights are not absolute.

It would be helpful in this stand part debate on the Bill’s big set-piece clause, if the Committee spent some time considering the background to the existing position. It will be interesting to hear the Minister’s justification for what the Government are doing and it is important to discuss how they arrived at this position. Before the Serious Organised Crime and Police Act 2005 was introduced, a number of byelaws and the Public Order Act 1986 applied to Parliament. In addition, there were Sessional Orders for the House of Commons and Stoppages Orders for the House of Lords, which related to access and gave the Metropolitan Police Commissioner the power to direct police officers to keep Parliament free from obstruction. I had not realised until a few years ago that those powers applied under an Act of 1839, which is astonishing.

In 2003, the Select Committee on Procedure carried out an inquiry into those powers as a result of demonstrations that had taken place outside and near Parliament. It was particularly concerned about the demonstration by Mr Haw who, in 2002, the High Court found, despite people’s irritation at his behaviour, was not obstructing the pavement. [Interruption.] Well, that is the courts. As my legal friend, the hon. Member for Northampton North would say, that was the result of a legal process, which is how things operate properly in a democracy—we have Parliament; then we have the legal process. The Procedure Committee went on to say that because of the various protests and demonstrations that had taken place, the law was inadequate—indeed, the House authorities and the police said that it should be adapted for modern circumstances.

Not every Committee member was in the House at the time, but many of us were. We remember the Countryside Alliance demonstrations in May 2004, when there were serious disturbances outside Parliament, and the five protesters who got into the House of Commons Chamber. Whatever the rights and wrongs of those protests and their causes, there were real concerns and, consequently, the 2005 Act was passed.

Almost as soon as that Act came into force, however, more concerns were raised about whether it struck the right balance. The SOCPA provisions cover a wide area and various behaviours are prohibited. We all remember the cases of Maya Evans and Milan Rai, who were arrested and prosecuted for reading out the names of British soldiers and Iraqi citizens who had been killed in Iraq. I do not think that any member of the Committee would think that that situation was acceptable, and yet it was a consequence of an Act passed in Parliament.

In a desire, quite rightly, to protect Parliament and to strike a balance between protests and the ability of Parliament to function, we unintentionally—I do not think anyone deliberately set out to do this—created a situation where someone could be prosecuted for such an act. We then saw people trying to find loopholes in the law and ways to get around it. On the one hand, the law has an unacceptable impact on individual citizens who, I believe, were participating in a simple and effective protest, but on the other hand, it cannot deal with the protesters we saw outside. The law is unacceptable if it is used to deal with individual protests, but at the same time it cannot deal with Mr Haw and others who have taken up residence in Parliament square. In the years after 2005, it became generally accepted that the provisions should be repealed. Such a proposal was included in the Constitutional Reform and Governance Bill that followed the Tamil protest, which was a good way of handling of the protests, but, as the Minister will know, that measure fell in the wash-up before the general election in May 2010.

The Government have introduced their own proposals to deal with the problem, but I think that it is helpful to provide background. I have said this in private to the Minister, and I will say it again in public: everyone has been wrestling with the problem, and everyone has said that it should be possible to deal with it more effectively. Everyone says it and all of us think it, yet it seems to present an enormous problem for us when seeking to legislate in a fair but effective way. The Minister needs to put on record the Government’s thinking behind the proposals in the Bill about the balance that they are seeking to strike in clause 139 and the following clauses between the right to protest, which the Government want to maintain—it would be idiotic to say that they are trying to stop that—and the right for people to go about their everyday business and to enjoy the square. We need to understand how the Government have arrived at their proposal in the Bill and how they have balanced those almost competing parts of the equation.

The proposals before us do not exactly mirror the SOCPA provisions, but some of the powers that they will give to police and authorised officers are significant. Clause 139 will repeal SOCPA, but the Government have introduced proposals that are similar to SOCPA, albeit that they will be applied to the much narrower and restricted geographical area of Parliament square. The Minister needs to explain how that decision—that that narrow bit of the square is the obvious piece of land to legislate for—was arrived at.

Michael Ellis (Conservative, Northampton North)

Will the hon. Gentleman enlighten the Committee on whether he thinks the encampment on Parliament square should be there?

Vernon Coaker (Labour, Gedling)

What has disquieted people is not the protest, but its permanence. The trouble that arises as soon as one asks that, as the hon. Gentleman did—I ask this without being sarcastic to him—is that one must define what one means by “permanent”? Is it one, two, four, three or six weeks? That is part of the problem in trying to legislate for that matter.

I am trying to keep my comments fairly broad, because we will come to the detail in later clauses, and I do not want you to rule me out of order, Mr Benton. There is a need for reform—I am not saying that there is not—but there is a problem with the Government’s proposal, because if the arrangement is reasonable and not permanent, people should be able to protest overnight. I do not have a problem with that. The Government cannot say whether a protest should stop at 11.30 pm or midnight. We have a problem with the permanence of it, rather than the right to protest in itself. How have the Government struck the balance in the Bill—dealing with the right to protest while at the same time dealing with some of the issues outside Parliament at the present time?

Mark Tami (Labour, Alyn and Deeside)

Does my hon. Friend share my concern that, however well meaning the Government may be on some of the same problems that we got into, there is a danger that if the area is narrowly defined, the protesters could move to the other side of the road or in the park round the corner and the same problem returns? It is a difficult issue to frame.

Vernon Coaker (Labour, Gedling)

My hon. Friend is absolutely right. The problem is not the legislative desire or intent, because the Committee would agree that the current situation is unacceptable. How do we move from where we are to where we want to be, balancing the two sides of the coin? To be fair, the Minister will have been struggling with that as well.

There are some practical difficulties, which my hon. Friend the Member for Kingston upon Hull North will deal when we debate subsequent clauses. That is why I asked how the provisions, which now relate to a small area outside of Parliament, have been arrived at. Westminster city council said, “Let’s have a massive designated area.” Without wanting to extend that area a great deal—we do not want that, before the Minister for Policing and Criminal Justice quotes me somewhere—there is a problem if that is not done. Why should they not just cross the road? If they were on Parliament square, they could just move to the other side of the road and put their tent up. We will come to these practical things as we debate later clauses, but my hon. Friend the Member for Alyn and Deeside is absolutely right to raise that issue.

Aidan Burley (Conservative, Cannock Chase)

I think the hon. Gentleman makes some excellent points. Does he agree that what the public find so confusing is that if they went down a pavement in their locality and pitched a tent, they would be moved on pretty quickly by the police? They do not understand why this one bit of pavement, which is similar to every other bit of pavement in this country, is allowed to have a permanent encampment that cannot be moved by the police. We all accept that people will camp overnight for Wimbledon tickets, and the police will turn a blind eye on occasion, but it is the continued permanence that people do not understand.

Vernon Coaker (Labour, Gedling)

That is a reasonable point. My understanding of the court judgment was that the obstruction being caused, because of where the pavement was, was not sufficient to justify the tent being removed. If it had been on the pavement nearest the Palace, where many people go past, it would constitute an obstruction under the law, and could be moved. The public and other Members of Parliament have to understand that, while we all want to do something, it is difficult to legislate for this. The hon. Member for Brentford and Isleworth has made a point about the visual impact, which we will come on to. The more important point is that while there is an obstruction if someone wanted to walk along that pavement, that is not the same thing as having the burden of proof for the judge to agree that the law has been broken. That was my understanding of what the law said in respect of the clause.

Mark Tami (Labour, Alyn and Deeside)

There is not only an issue on permanence, but on the nature of some of the protest as well. Some of it is not issue-based. As an MP, I feel that some of it is just abuse—someone with a megaphone abusing people day in, day out. That is not particularly nice for those concerned, or for people walking past coming into Parliament.

Vernon Coaker (Labour, Gedling)

I think that that is right. It is outside there all the time and there is abuse. There are clauses in the Bill to say that the use of a loudhailer is a prohibited activity. People cannot use amplified noise equipment to generate noise outside Parliament unless they get 21 days’ authorisation, so may I ask the Minister, what if I get 15 drums? People can make a hell of a noise with a load of drums and they are not amplified. The unintended consequences of the measure are enormous. People stand outside with a load of drums beating, or with cymbals—we can all make up other examples of noise equipment that is not amplified, but which can be used to make a significant noise—until it amounts to the abuse that my hon. Friend has pointed out.

Aidan Burley (Conservative, Cannock Chase)

I am grateful to the hon. Gentleman for giving way. We are in danger of a cross-party consensus. Another thing that is confusing for the public is that they all know pavements that are as wide as that bit around Parliament square, where they could equally pitch a tent, yet they are not allowed to do it there. What is so unique about that bit of pavement? It is not particularly wide, nor very different from other pavements. On the access point, is it not ironic that there is concern about access to that bit of pavement and yet, when Parliament square turned into a Glastonbury-style tented village, one could not walk across it? There was no access whatsoever and there did not seem to be concern about that.

Vernon Coaker (Labour, Gedling)

Again, that is a reasonable point, but the hon. Gentleman must be careful about gestures towards the Liberal Democrats. Luckily, his Whip did not see. The hon. Gentleman makes a reasonable point. The tents on the grassed area could be removed.

Aidan Burley (Conservative, Cannock Chase)

Eventually.

Vernon Coaker (Labour, Gedling)

Yes, eventually. Of course, that is Greater London authority-owned, as opposed to the pavement, which belongs to Westminster city council. Sometimes, Mr Benton, the public glaze over, as I do. It goes back to my earlier question—is it not possible just to get this sorted? The honest answer is that that is more difficult than it appears.

Moving on, is the focus of the Bill and the relevant clauses, particularly the enacting clause, clause 139, really driven by the tents? Is the individual target Mr Haw? Is that what has driven all this? I think that that is an important question, because what people say is that they are irritated by the tents and by Mr Haw. Is that what the Government are saying? We will come on to the clauses that focus on sleeping bags and sleeping equipment. Are the Government really saying that they do not want any overnight protest outside Parliament? Are they saying that it is fine if people stand up and stay awake all night, but that they cannot sleep? Can they sleep in the day? Can they lie on the pavement and sleep? This is where it is all going to go, so we need some clarity from the Minister about the motivation for the measure.

Michael Ellis (Conservative, Northampton North)

Does not one have to consider the mischief that the Bill is trying to address? Would it not be preferable if the shadow Minister and Labour Members were to agree with the concept behind the clause? This is clearly designed to prevent the mischief of the permanence of the encampment on Parliament square and the frequent noise that disturbs those who wish to work, live in and traverse the area. The purpose of the clause is to encourage tourism and, for example, to allow the quiet enjoyment of statues, many of which were placed in Parliament square by public subscription. Do not people have the right of quiet enjoyment of a public place as well as the right to peaceful protest? This is not a protest; it is an encampment. Should not the shadow Minister and his Labour colleagues be fully behind clause 139 and the subsequent clauses?

Vernon Coaker (Labour, Gedling)

Let me make it clear to the hon. Member for Northampton North—[ Interruption. ] South—I apologise.

Michael Ellis (Conservative, Northampton North)

No; North—[ Interruption. ]

Vernon Coaker (Labour, Gedling)

Someone has drawn the curtains; I will ignore that attempt to put me off what I was going to say.

We agree with the repeal of the SOCPA provisions and the need for further proposals. However, as the Minister and the hon. Member for Northampton North would know if they were in opposition, we cannot simply wave the provisions through without pointing out some of the difficulties. The reality is that scrutiny of the Bill and questions that are asked about it will improve and strengthen it, and make it more effective.

To be clear, we support the repeal of the SOCPA provisions and I am pleased that the Public Order Act 1986 will be used. However, the designation of Parliament square and the powers in the Bill to deal with that area cause other problems that we need to ask questions about, otherwise in a year’s time we will have an unworkable Bill and the Government will be introducing fresh revisions to deal with exactly the same problem.

Steve McCabe (Labour, Birmingham, Selly Oak)

We want to support the same position as the hon. Member for Northampton North—[Hon. Members: “Or South.”] Or wherever. We certainly want to will the ends, and we might benefit from his professional expertise, but past drafting to address this crucial area has not led to the outcome we intended, and that is exactly why we have to debate these provisions now.

Vernon Coaker (Labour, Gedling)

That is exactly the point. It might seem like dancing on the head of a pin, but if we do not get the wording right, there will be unintended consequences and loopholes for people to drive through. We agree with the intention, but we need to deal with the issues around it.

May I ask the Minister whether the House authorities are satisfied with the proposals in the Bill? How satisfied are the police? Can he reassure us that the clause is about trying to deal with protests in a balanced way, rather than simply trying to deal with something that people find visually unattractive? Is it the permanence of the protest that the Minister sees as the problem? He needs to confirm that protests will still be allowed. Will people still be allowed to protest overnight or even for a few days? The Bill seems to suggest that it is impossible for anyone to protest overnight if they go to sleep or have a sleeping bag.

A very helpful note from the Library has clarified what it understands to be the position with respect to the protest outside. According to TheSundayTimeson 30 January, the Mayor of London

“is to go to the High Court to remove Haw and Barbara Tucker, a fellow campaigner, from their camp. Westminster city council will also this week apply for an injunction to shift the shanty town of tents that has sprung up on the adjoining pavement.”

Will the Minister confirm whether that is the case, or did The Sunday Times get that wrong a couple of weeks ago? On 17 January 2011, the BBC reported that Westminster city council had served letters on the remaining protesters to vacate the pavement surrounding Parliament square. It stated:

“Peace protesters camping on the pavement surrounding Parliament Square green have been served legal letters to vacate the site. Westminster Council asked 30 people living in 20 tents to clear the area by Friday afternoon or face court action. People from what is called Democracy Village, moved on to the pavement after being evicted from the green in July following a High Court order.”

We have therefore seen two media reports—one on 30 January in The Sunday Times, and one on 17 January —so will the Minister clarify the exact position with respect to the protesters, because that will inform our view of the clause?

We have received a very helpful note from the Metropolitan police about the policing of the square. It would be helpful if the Minister advised the Committee about the policing aspect. The note states:

“It is important that Parliament makes clear to those who wish to exercise their democratic right to protest…what is not acceptable in the vicinity around Parliament…As an attempt to bring clarity to protest groups and the broader community that uses the Square, the MPS is supportive of the repeal of s132-138 SOCPA…and believes all marches and static protests in the area around Parliament should be governed by the Public Order Act 1986...The MPS believes that the POA should be amended to reflect the MPS Commissioner’s duty to ensure access to Parliament by defining exactly what access is required and allowing conditions to be imposed to allow this to occur…The MPS believes that the POA should be amended to apply to single protestors in the small area around Parliament Square and allow police to impose conditions on the grounds of security, as is currently catered for within SOCPA.”

As we discuss the repeal of SOCPA provisions and their replacement with provisions of the Public Order Act and the clauses in the Bill, it will be helpful to have the Minister’s response to the Metropolitan Police Service’s points.

Our debates on this and subsequent clauses are extremely important. We have all seen the power of protests recently—not only in this country, but across the world—and none of us wants to see protests restricted unnecessarily. I wonder whether the balance is correctly struck in the Bill, and whether some of the practical difficulties that we have started to address are dealt with. As we go through the Bill, we can deal with some specifics, but we, as a democracy, should be rightly proud of the right to protest and the way in which that is facilitated in this country. We should do all we can to ensure that that right is maintained.

There are questions about and irritation with what is happening outside Parliament. I reiterate to the Minister that although I understand points about the permanence of the protest, the visual aspects of it, access and other people’s human rights to enjoy the square, I am particularly concerned that that does not translate into something that would stop people turning up to protest there, even for a few days because they stayed overnight. There is a real difficulty in striking that balance. The Minister will have wrestled with it, and the Committee will be interested in what he has to say.

Julian Huppert (Liberal Democrat, Cambridge)

I welcome subsection (1) absolutely unreservedly. It is fantastic that sections 132 to 138 of SOCPA are going. I might say that that was one of the worst things done by the authoritarian aspect of the Labour Government, but they managed to beat it with so many other strictures that it does not even rate as one of the worst—[ Interruption. ] Indeed, there was the 90 days, as one of my hon. Friends says. Getting rid of the SOCPA provisions is a great achievement for this Government.

We have a good direction of travel on how to enable protests. I even discerned some of that in the speech made by the hon. Member for Gedling, who seemed to be recanting some of the ways of the past on protests. There is an issue about what protest is. I got the sense that he believes that protest should be allowed and that things should not be put in place to prevent it from happening. I agree with that, but I would go significantly further.

It is not just that we should tolerate protest and allow it to happen in a controlled way, but we should welcome it. We should support and encourage the fact that people in this country protest peacefully. We should not allow violent and illegal protest, but we should be pleased when people are sufficiently engaged with issues to take the time to show how they care and that they care. Protest is a great thing in a democracy.

While I am delighted that we are getting rid of the SOCPA provisions, and clearly some considerations must to be given to Parliament square for security and other reasons, we must ask the question that Shami Chakrabarti put very clearly in her evidence session: “What is the harm that we are trying to deal with?” I hope the Minister will answer that question. While it is possible that these protests affect tourism, I would be interested to hear evidence of that. I have heard comments that they are not very nice. There have certainly been comments that they have prevented other people from being able to protest, which is extremely serious, but while it is a fact that there is quite a lot of noise, we should not ban something just because we do not like it. I look forward to hearing the Minister explain how he has achieved such a balance. The direction of travel is excellent, however, and I am glad that it is sucking along members of the previous Government.

I understand that the Minister has received advice on how subsection (2) applies to assemblies that started or were being organised before the clause comes into force. I am not a lawyer, unlike other hon. Members, but there have been some problems in the past with such retrospective rules, so I would be grateful if he could comment on them. The Minister has been kind in the past in his discussions about such issues, but I need clarity on how the other clauses will operate, what they will mean, what is understood by them and how will they interact with each other, and I shall refer to such matters as we go through each of the provisions.

Chris Ruane (Labour, Vale of Clwyd)

I agree with much of what the hon. Member for Cambridge said. We should not just tolerate the protest outside the House of Commons—we should celebrate it. We need to connect with the people. Over the years, there have been some cracking protests outside, such as the Countryside Alliance protest and the almost continuous anti-war protests. More recently, we have seen student protests and the Tamil protests, and we will see more over the next few years as the swingeing cuts hit the ordinary people. They will want to voice their opposition to the cuts, and this is the place to do so.

One of the key issues is the permanence of the protests and their impact on a range of people, including tourists. The hon. Gentleman was a little dismissive of people who work in the Palace of Westminster and the surrounding streets, and of MPs and the rights of other people to protest. Let us consider the impact of protests on tourists. London is one of the most popular international tourist destinations in the world. Millions of people visit London each year and the Houses of Parliament must be one of the most visited destinations. As was said by the hon. Member for Northampton North, the gardens in the square are beautiful. There are important statues there of Nelson Mandela, Abraham Lincoln and Winston Churchill—all great people who have done a lot for their countries and, indeed, the world.

Mark Tami (Labour, Alyn and Deeside)

Does my hon. Friend accept what was said about permanence? There are many demonstrations at which people get their point of view across and then leave. They do not set up a permanent camp and abuse people.

Chris Ruane (Labour, Vale of Clwyd)

I agree entirely with my hon. Friend. We have beautiful statues that mean a lot to many people, some of whom go on a pilgrimage to contemplate them and reflect on what those great people have done. The ability to do that is diminished if people are creating a hell of a noise—screaming for days or weeks on end. We must not only look at it from the protesters’ point of view and celebrate their protest, but consider the tourists’ point of view.

Julian Huppert (Liberal Democrat, Cambridge)

The hon. Gentleman comes back to the question of tourism, which I dismissed for want of evidence on the subject. Presumably he has some sort of study that shows that tourism to the UK is down because of the protest, or feedback that suggests that there is a real problem. Is he just guessing?

Chris Ruane (Labour, Vale of Clwyd)

I am not guessing. I can give you cast-iron proof that tourists cannot do what they want to do near those statues; they cannot get near them because of the 6 to 8-foot fences.

Julian Huppert (Liberal Democrat, Cambridge)

Does that affect tourism?

Chris Ruane (Labour, Vale of Clwyd)

Well, it affects the ability of a tourist to get from A to B, because they cannot get over the fence to see Nelson Mandela or Winston Churchill, so the answer to the hon. Gentleman’s question is yes. I have witnessed that with my own eyes. I shall move on to local people who work in the area. Something like 17,000 pass-holders work in the Houses of Parliament.

Vernon Coaker (Labour, Gedling)

My understanding from the legal minds on the Committee is that that my hon. Friend has just made a prima facie case for an effect on tourism.

Chris Ruane (Labour, Vale of Clwyd)

If legal minds on the Committee want to support us, I welcome their legal advice—I look to my friend, the Member for Northampton North, to back us up. There are 17,000 pass-holders who work in the Houses of Parliament, and the square is the nearest place they can go to if they want a bit of time out. As we all know, those on the Committee and those serving the Committee—and those watching it—have a stressful job. This is a stressful time in the House of Commons, and the square is the nearest place to go to sit down and have some quiet reflection. The ability to do that is diminished by the scale and longevity of the protest.

There is also the right of MPs to gain access to the Houses of Parliament to do our job and our duty. The Tamil protest was one of the best protests outside Parliament. Those involved were protesting about really emotive stuff, and the protest spilled out on to the road, so the police came. I tried to get in to vote during the week of the Tamil protest. I was in the right-hand lane to turn right into the House of Commons in my car, and a police officer said, “No, you can’t do that. You’ve got to go over Westminster bridge and round the roundabout, and come back and take a left.” I complained to the Sergeant at Arms about that. She investigated and ruled that the police officer was incorrect in his observation of the rules and should have let me pass. So the protests have an impact on MPs getting into the House. We often have messages from our Whips—the authorities—on our bleepers saying, “Make sure you’re here early because there are huge protests outside.” They recognise that MPs cannot gain ready access to the House of Commons. We have eight minutes in which to vote, and protests outside, especially large-scale protests, affect our ability to do so.

There are also the rights of other protesters to protest. Has the area been colonised by one group of protesters? [Interruption.] Does the hon. Member for Cannock Chase want to intervene? I am getting some sedentary support from the Government, which is welcome. The permanence of the protest is damaging the rights of tourists, people who work in the House of Commons and the surrounding streets, other protestors and MPs.

The issue is not only the permanence of the protest, but how that protest is, on occasion, articulated—and I use the word “articulated” carefully. My hon. Friend the Member for Alyn and Deeside referred to the lady with the loudspeaker shrieking for hours on end. I was taking visitors from my constituency, who had come on a special day out, round the House of Commons. I took them on to the roof of the House next to Big Ben; it was a special moment for them. The lady was screaming and screeching for hours on end, but then she stopped for one minute. After the stop, she came back and said, “Now, where was I?” She herself did not know what point she was on, and she was looking to the public to tell her what important point she was making about whatever. Someone screeching and screeching for weeks and days on end could be seen as a bit of an abuse, and we have to look at that.

My hon. Friend the Member for Gedling referred to night-time protests, which we need to be careful about. Some of the best protests that I have been on were night-time protests. They are often organised by Churches, and include overnight candlelit vigils. Those protests made their points peacefully using candles, prayer and reflection, and posed no threat to anyone. Candlelit vigils and overnight protests should be respected.

Vernon Coaker (Labour, Gedling)

That is a good point. I am sure that a number of people have done something like that. For example, I am sure that quite a lot of hon. Members from across the House have slept out overnight to protest about homelessness. A practical consequence of the Bill could be that a charity that wanted to organise a sleep-out in Parliament square to raise awareness of homelessness would not be able to do so. The clause is drawn so widely that it catches people whom I do not think the Minister wants to catch.

Chris Ruane (Labour, Vale of Clwyd)

I agree entirely with my hon. Friend. In the press, we can already see the impact of the cuts on the homeless. The other week, the Evening Standard had a report about people sleeping in large bins—they go down a chute and sleep in the bins overnight. One of the worst effects of Thatcherism in the 1980s was that in the west end of London thousands of young men and women slept rough on the streets and on seats. I think that we will see a return to that situation, and the ability of people and charities to protest outside the House of Commons as they see fit, and in a way that causes no disruption, should be respected.

The balance, the wording and every dot, comma and apostrophe have to be right. The legislation drawn up when our party was in power failed to nail the issue down. We have another chance now, and we should take it.

James Brokenshire (Conservative, Old Bexley and Sidcup)

May I say how much I appreciate the manner in which the debate has been undertaken, and the genuine desire on both sides of the Committee to address what has been an issue for some time? The hon. Member for Gedling set out the history of the issue quite well, referring to court cases, the distinctions between each different part of the square—the front footway is owned and maintained by Westminster city council, while the gardens are part of the Greater London authority—and the distinctions and variations in the law. His contribution setting out the context was useful. I also appreciate the comments made by the hon. Member for Cambridge, and the entertaining but well-made points raised by the hon. Member for Vale of Clwyd, even though I was concerned that we might have to get some oxygen for my hon. Friend the Member for Cannock Chase part of the way through his contribution.

In line with our commitment to restoring the right to non-violent protest, we seek to repeal sections 132 to 138 of the Serious Organised Crime and Police Act 2005. We considered that they imposed unnecessary restrictions on the right to peaceful protest around Parliament and have had an almost chilling effect on that right, which has in some ways led to a breakdown in trust between the Government, the police and those who wish to protest. Those sections have criminalised non-disruptive peaceful protest, but have done nothing to prevent the abuse of our public spaces by a determined few, to the detriment of the enjoyment of those spaces by the wider public. I think that that is at the core of the issue, and I will seek to address a number of questions posed by hon. Members.

The law has not worked as some hoped it might, as we have heard this morning, and as the Metropolitan police have acknowledged, and it has created a bureaucratic burden into the bargain. We see no reason to retain the provisions, and I note—I think that the hon. Member for Gedling accepted this—that the previous Government had almost come to that point. When the issue was looked at in the draft Constitutional Renewal Bill in 2008, it was accepted that SOCPA was not the right way forward and that repeal was necessary to ensure that people’s right to protest was not subject to unnecessary restrictions.

We certainly welcome and recognise the consensus in Committee this morning that the current law did not work as intended and is not fit for purpose, and that we therefore need to move on from that situation. However, repeal of the provisions does not mean that anything goes in Parliament square. In relation to protest, the police will once again have powers under section 14 of the Public Order Act 1986 to impose conditions on public assemblies of two or more persons to prevent, where necessary, serious public disorder, serious disruption to the life of the community, serious damage to property or intimidation of others. The police will therefore have the same powers to deal with demonstrations around Parliament that they have for the rest of the country. Additionally, members of the public who wish to use the Parliament square gardens for a protest or rally will still need to seek the permission of the Mayor before they do so, in line with the byelaws that apply to the grass area.

Vernon Coaker (Labour, Gedling)

Section 14 of the 1986 Act deals with protests of two or more people. Will the Minister say something, either now or later, about the individual protester?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I will come on to single protesters, because I accept that it is one of a number of points that are probably easier to deal with in this stand part debate, together with the broad headline points, rather than when we get into the detail of the drafting. I accept the point that the hon. Member for Vale of Clwyd raised about dotting the i’s and crossing the t’s. We have been looking very carefully, with our lawyers and our legal team, at how the provisions are prepared, recognising that, as we have seen from previous legislation, it will be subject to challenge, and that there will be those who look for opportunities around that. I hope that from my comments, both on this stand part debate and when we get into the detail, hon. Members will see the consideration that we have given to a number of those points in order to test and to make sure that the provisions are a robust way forward. Obviously, we can test that in detail when we come to subsequent clauses and some of the amendments that I know have, quite fairly, been tabled.

We are clear that everyone must have the right to protest peacefully in the area around Parliament, and we believe that the police should have the same powers to police protests in that area as they do in the rest of the country. Understandably and rightly, Parliament square is a focus for protesters, but it is a limited space, and that is why we are bringing forward the provisions—so that everyone can access the square equally and enjoy its amenities. I know that that is the strongly-held view of members of the Committee and—as I know from conversations I have had outside the Committee with MPs—of Members across the House.

The approach that we are taking is to apply the law to everyone, not just protesters, in order to clarify that the issue being addressed is the taking over of public space. Our provisions are not about dictating who can and cannot be in Parliament square, or how long they can be there; they are about ensuring that the minority does not usurp the rights of the majority. As long as individuals are abiding by the byelaws that protect the Parliament square gardens and are not committing any other offences, we are not concerned if individuals choose to remain on the square.

By limiting the area to which the provisions apply and the type of activity that is prohibited, we intend to take a proportionate and targeted response to a documented problem of encampments in a specific location. In doing so, we are focused on addressing an evidenced harm. The area around Parliament is, understandably, one of the most protested-in areas in the country, and the measures are about ensuring that the right to protest is respected, in a proportionate way, while addressing the issue of encampments and fair access to the space. I stress the interrelationship between the provisions in the Bill and the byelaws that operate in the square and the surrounding areas. When we come to later provisions in this part of the Bill, the importance that we place on clause 148, which is on the enforcement of byelaws and the power of seizure, will speak to some of the displacement issues raised by Westminster city council. We believe that there is a mechanism in place to deal with its concerns.

The hon. Member for Gedling highlighted the current situation as regards certain legal actions. The Greater London authority’s action is ongoing in the High Court. Westminster city council has served notices of its intention to issue proceedings regarding the current encampment on the pavement directly in front of the House of Commons. Some individuals left following those notices, and Westminster city council has indicated that it intends to issue proceedings in respect of the notices that have been served. That is the latest information that I have.

Vernon Coaker (Labour, Gedling)

If those actions are successful, and the existing law can deal with the problem, what are the implications for the necessity of the powers in the Bill?

James Brokenshire (Conservative, Old Bexley and Sidcup)

The actions that are being taken should be seen as dealing with the short-term or temporary measures. There is a recognition from the Metropolitan police, Westminster city council and the Greater London authority that there is a need for a long-term settlement. Certain stop-gap measures may be applied, but that may be based on specific individual circumstances. The clear indication that we have received from all those agencies and partners, and the view from the House—I have had a number of discussions with the House authorities about Parliament square and setting out this long-term position—is that we need to create a sustainable, long-term position, which is what the provisions, as they relate to the byelaws and the strengthened byelaws that may follow thereon, are intended to provide.

The hon. Member for Gedling also highlighted the 1839 Act and how some of these provisions relate to old law. The Sessional Orders are viewed by the Lords authorities as providing a good indication as to expectations on access and certain other issues, which highlights the fact that, in many ways, there are practical issues that need to be considered. Sometimes, setting things out in statute does not necessarily deal with some of those practical issues. We are in discussions with the Metropolitan police and the House authorities on those specific provisions on access.

The issue of security has been raised. We have to be careful about blurring the line between security and protest. Separate provisions in the Serious Organised Crime and Police Act 2005 relate to security as distinct from protest. Blurring the two is not the right way to proceed on the matter, because, in essence, security issues arise from large gatherings, whether they be protests or otherwise. I will talk more about some of the issues that the Metropolitan police highlighted, but it is important to make that broader, high-level, point.

The hon. Member for Gedling highlighted the specific matter of noise amplification versus drums, and so on. Parts 3 and 4 will prohibit activities that Parliament and the public find offensive and disruptive. I accept the hon. Gentleman’s point about the noise and disruption caused by drums. It is worth mentioning, however, that a Greater London authority byelaw requires people to have the Mayor’s permission to use any musical instrument in Parliament Square gardens. There is, therefore, an interrelationship between existing byelaws and the specific issues with which we seek to deal. Noise amplification is the concern that hon. Members have highlighted the most in recent years, which is why we address it in the Bill. We recognise, however, the ancillary powers under byelaws, which cover other issues that the hon. Gentleman has highlighted.

My hon. Friend the Member for Cambridge expressed concern about retrospection in relation to section 14 of the Public Order Act 1986, which applies to public assemblies. The measure is not retrospective at all, but deals with a transition point from SOCPA to section 14 of the 1986 Act. It is about setting out that transition clearly and is not about retrospection.

The hon. Member for Gedling mentioned some of the points that the Metropolitan police service raised on the provisions, which I shall address specifically. I do not underestimate the enforcement challenges that are involved in securing the enjoyment of Parliament square for all. Determined individuals will try to circumvent the measures and there are genuine challenges in balancing different rights. The Metropolitan police service, the Greater London assembly and Westminster city council have engaged with us, however, and their input has helped to frame our current position.

Some people have said, “Maybe you should have taken more robust measures— maybe you should have extended them further.” This, however, is a question of proportionality and balance. We think that the provisions strike that appropriate balance in how they are framed and how they are intended to operate. One of the key drivers for repealing SOCPA is that the position on protests should apply to the area around Parliament in the same way that it does to any other area in the country. I hope that such a position will help operationally by applying the same law across the Metropolitan police districts instead of applying one law on one side of the line, and another on the other.

If someone wants to protest overnight, they may do so. The Government do not accept, however, that they should be entitled to erect temporary structures and take over public space to do so. Discretion and balance must be applied, and we will continue to discuss that with the Metropolitan police service. We recognise that any new law will be robustly tested by determined individuals, so we have tried to capture the attempts to circumvent the legislation that were raised by the police. I am sure that we will look at those in detail as we debate the Bill’s substantive provisions.

Vernon Coaker (Labour, Gedling)

Will the Minister reiterate that point? For absolute clarity, is he saying that overnight protest in Parliament square will still be allowed under the provisions? Is he also saying—this is where there will be some difficulty—that protesters will not be allowed to erect any sort of structure? I appreciate the point about “overnight” and we will come to what is meant by “permanent”, but it is important that people understand that overnight protest will be allowed. There is a problem about what is meant by “structure”.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I hear what the hon. Gentleman says, but tents and overnight structures are the issues that have been highlighted. We can look at the relevant clauses in relation to the directions power that exists for the police. The Government are clear that it is important that there should be a discretionary element to the provisions. That is consistent with the police service’s wider call to return discretion to the police and to trust the professional judgment of officers in that regard. It is important to make that point in this context.

We have considered lone individuals—I said I would come back to this point—and have decided that the power to deal with lone individuals is not deemed necessary in the rest of the country. Following the principles of providing clarity for the police, the Government see no compelling reason for the police to have specific powers to control an individual who is protesting around Parliament. That does not mean that they are immune from the wider criminal law—for example, obstructing the highway, committing public order offences, breaching byelaws or failing to comply with the proposed new directions in the Bill. It is appropriate to have the same operation of law outside Parliament, in the same way that it applies in the rest of the country. I have not been persuaded of the need to make separate provision.

I will return to the issue of preventing security. We need to be careful about conflating protest with terrorism, when there is no evidence that the protest, more than any other large gathering, poses a distinct security risk. To do so would be at odds with Her Majesty’s inspectorate of constabulary report “Adapting to Protest”, which was clear that the police had sufficient powers to manage public order and that changes to the law were unhelpful. As far as I understand it, the security issues around SOCPA have been used to limit the size of Brian Haw’s encampment, out of concern that devices could be hidden in tents. That is why tents are prohibited under the Bill. This measure is about dealing with any of those security issues.

Since sections 132 to 138 of SOCPA came into force, physical security measures around Parliament have been increased. There are operational measures in place for the protection of certain areas and it is fair to say that Whitehall is probably one of the safest of places. That is why Lord Carlile said that he was not convinced of the need to have special powers to operate around Parliament. We need to be careful about conflating the two issues, and ensure that we are focused on the problems that we have heard about this morning, as well as being quite distinct when looking at protest.

A number of issues will need to be carefully considered as we examine the specific provisions of this part of the Bill. The proposals that we have set forth are proportionate and address the concerns expressed by hon. Members and by others outside the House. I recognise the points that have been made, and it is important that Parliament has its role in the consideration of these matters, given that the provisions affect Parliament so directly.

I welcome our debate in the broad sense. It is important that we as a Committee, and Parliament in general, examine the provisions properly and consider them carefully. I hope that, on that examination, the Committee and the House will recognise that the provisions strike the right balance, will be effective and address the concerns that have been highlighted for some time.

Vernon Coaker (Labour, Gedling)

I thank the Minister for his response; a couple of points arise from it. I love the explanation of these measures being not retrospective, but transitional. I would love to delve deeper into that, but there we are—I shall have to leave it at that.

The Minister said that the Government do not want the provisions to apply to individuals, despite what the police have said. One problem is that there could be 15 individuals outside Parliament. Also, he did not deal with what is meant by “permanent”, so we will have to come back to that. All members of the Committee agree that a permanent protest that becomes an encampment is a cause for concern. We have already established that it is possible for people to stay overnight in Parliament square, provided that they do not use a structure. That is a step forward, and that is clear from what the Minister said.

Without being silly about it—I would be interested in what other members of the Committee think—I do not think it unacceptable for people to stay for two, three or four nights. I appreciate that, at some point, a protest turns into a permanent encampment, but as we go through the legislation, we need to explore what that means. The right of people to protest for a period is a difficult matter, although the Minister might say it is a discretionary matter for the police. Notwithstanding the discretion that he wants, Lynne Owens was clear that the police want clarity about what Parliament expects of them in enforcing the law.

The legislation is still not clear, however. How long is it acceptable for someone to stay in Parliament square and protest in a democratic, non-violent way? That will become an issue somewhere along the line.

Mark Tami (Labour, Alyn and Deeside)

Can my hon. Friend envisage a situation in which one person comes to protest and stays for one or two nights, then someone else takes over? In some ways, that is a permanent protest, but it involves different individuals.

Vernon Coaker (Labour, Gedling)

Of course, and that, again, is part of the problem. We have established, and the Minister has agreed, that an overnight protest in Parliament square is appropriate and allowable, provided no structure is used. The key question is exactly as my hon. Friend says: we could have a rolling programme of different people coming for 58 nights, 365 nights or whatever. Although there may be all sorts of possibilities and maybes, we face real difficulties when we are legislating, because of how the legislation is interpreted and the way it is perceived and acted upon.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Given what the hon. Gentleman has said, I want to test whether he has a problem with continuing protests. I do not want to put words in his mouth, but it is important to understand where he stands. Does he support our point that tents and structures appear to be the problem, regardless of the right of people to protest?

Vernon Coaker (Labour, Gedling)

One of the advantages of standing where I am now is that that issue is for the Minister to sort out. I am simply saying that there are potential loopholes. Of course I accept that it is difficult to determine whether a protest has moved from overnight to permanent, and of course I do not want somebody trying to use loopholes to overcome the intention of the legislation, but we are scrutinising the Bill, and highlighting loopholes and potential problems is part of the process of trying to ensure that we get legislation that works, which is what the Minister and I want.

James Brokenshire (Conservative, Old Bexley and Sidcup)

If it is helpful to the hon. Gentleman, I will say that, with regard to the issue of permanence, as far as the Government are concerned, people can remain outside and protest as long as they like, so long as they do not breach byelaws, contravene any criminal law or fail to comply with a direction. We are seeking to make it clear that that is how the provision is intended to operate.

Vernon Coaker (Labour, Gedling)

I think that is helpful. We have moved from having no definition of “permanent” to starting to address what it might mean. The Minister says that someone can stay outside for a long time, provided that they do not breach the law. That is a statement of the obvious, but it is helpful to have it on the record, because I am sure that when people read the report of our proceedings, they will see what he has just said—a permanent protest outside is possible provided that people conform to the law. That is a statement of the blindingly obvious, but we did not have it before, and having it now is helpful.

I agree with the Minister that this has been a worthwhile and interesting debate. The Committee is united in saying that the SOCPA provisions should go and that we need to put in place a workable solution. He is absolutely right to say that, as far as possible, what we have outside Parliament should replicate the law in the rest of the country and that we do not make special provision unless it is necessary. I am sure that when we discuss the later clauses in Committee, and when the Bill is considered further on Report and in the other place, there will be significant debate on the issues, but our debate on individual protests and whether people can stay overnight, in addition to the clarification on permanence, has allowed us to move forward considerably. I am sure that our debate will be read with interest by people outside, and I thank the Minister for his comments.

Clause 140

Steve McCabe (Labour, Birmingham, Selly Oak)

I beg to move amendment 626, in clause 140, page 94, line 30, leave out paragraph (b) and insert—

May I say at the outset that this is a classic probing amendment? I will not spend too much time on the detail of the wording, and it is not my plan to press the amendment to the vote.

The amendment follows on from the discussions that we have just been having. Given that we had such difficulty defining the area that we are trying to protect and preventing the types of protest that we find unacceptable, I am trying to understand, through the device of the amendment, how the Government came to define the prohibited area under the clause. I am also trying to understand whether we can be confident that that will be sufficient to meet the Government’s intentions and not simply move the protest to some other part of the area or an adjacent street. Rather than deal once and for all with the problem that has bedevilled us for several years, will it be shifted to another location, where the whole routine may start again?

This is a basic and simple probing amendment. I am trying to understand how the Minister arrived at the definition of the prohibited area under the clause, and I am anxious to hear whether he is confident that that will do the job this time and whether he recognises the anxiety that the problem could simply be transferred elsewhere.

Vernon Coaker (Labour, Gedling)

This is interesting. I am sure that all hon. Members will have looked at the explanatory note, which lays out the areas to be controlled. One of the difficulties, which we will come to later, is that the pavement is controlled by Westminster city council but the grassed area by the GLA. I want to reiterate this point because my hon. Friend’s amendment is important: the Minister needs to explain why someone will not simply cross the road to avoid the provision. If I have my tent and other structures—my umbrella on a post, which will presumably be a structure under the legislation—and go to the other side of the road, is the Minister confident that the powers that the hon. Member for Northampton North mentioned can deal with that?

The Minister will say that Westminster city council’s existing byelaws can deal with the issue. The problem for the Minister is that the people responsible for the byelaws do not agree with him; Westminster city council says that there is a problem. The argument is, “The hon. Member for Gedling doesn’t have to worry, because the byelaws are sufficient to deal with it”, but that is not what the council responsible for the byelaws says. The Minister can turn round and say that there is no problem, but I am simply telling him what Westminster city council says. I do not propose that we should accept this, but the council map covers a fairly wide area. The Minister will be able to tell me whether it is bigger than the existing area. It points not only to the pavements across the road but to the gardens down the road; supposing the protestors all pitch up there? I do not know if that is Westminster city council’s responsibility.

Who owns College green? The media put up their tents there, so are they affected by the measures? I bet the Minister does not get the media to take their tents down. The serious point is that Westminster city council raised the issue of College green, the gardens next to Parliament and the pavements. It is a serious problem. We are not trying to destroy the Bill; we are saying that the unintended consequences will be exploited. We have seen that the protestors outside Parliament are extremely adept at using the law and loopholes in the law to avoid being moved on and, in many ways, to thwart the will of Parliament and MPs to deal with the issues sensibly and proportionately.

Why does Westminster city council say that there is a problem, if the Minister says there is not? Does the council have it wrong? Does it not understand its own byelaws? Is it because the GLA owns or controls that area? I may have missed them, but I have not seen any representations from the GLA with respect to the grassed area. If I have missed something from the GLA, will the Minister correct me? What is the GLA’s view about the grassed area?

Julian Huppert (Liberal Democrat, Cambridge)

We heard comments about probing amendments, but I am still unclear as to whether the Opposition know what a probing amendment is. For clarity, is the hon. Gentleman calling for restrictions to cover a wider area than the Government propose?

Vernon Coaker (Labour, Gedling)

No. One thing about being in opposition, as the hon. Gentleman will find, is that someone can put down any amendment they want and not have to vote for it, whereas he has to vote for stuff to put it into law, or not vote as the case may be.

Mark Tami (Labour, Alyn and Deeside)

They do not vote for their own amendments.

Vernon Coaker (Labour, Gedling)

Yes, exactly.

The point I am making to the hon. Member for Cambridge is that the amendment was tabled to see what the Government’s thinking is on the problems that Westminster city council raised. The alternative is for us all just to sit here and wave the Bill through, but scrutiny is not about that.

Westminster city council has clearly and properly raised a problem with the Bill, because, in line with the amendment proposed by my hon. Friend the Member for Birmingham, Selly Oak, all that will happen is that people will cross the road. The Minister and the hon. Member for Northampton North say that will not happen because there are byelaws to deal with it. That is a reasonable point and it holds water except for the fact that the council that enforces the byelaws says they do not work. It will be interesting to hear what the Minister has to say, and no doubt we will respond accordingly.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I note the way the amendment was moved. One of the reasons why we sought to define the area was to deal with “highway” in that context. The controlled area under the clause is deliberately small. Members of the Committee will be aware of the map at the back of the explanatory notes, to which the hon. Member for Gedling rightly drew attention. We could have left things open for the sake of drafting, but we considered it important to provide further clarity on what the controlled area encompassed. Clarity is vital, and the area covered by the amendment would not provide the public with a level of general clarity. The amendment aims to broaden the controlled area to the roads and pavements around the island, but our approach is premised on a proportionate, targeted response; it is the minimum necessary to deal with a particular misuse of tents and structures on Parliament square gardens and the footways, which have been well documented.

We want to ensure that the area where the new regime applies is as small as possible so that it targets the problem of the unique situation of Parliament square, without extending matters further than necessary to strike a focused and proportional balance. However, we recognise worries that the controlled area is small by its nature and that the effect of such measures could displace disruptive activities to footways beyond the controlled area. Displacement is a risk, and I do not underestimate the determined individuals who will be looking at different ways to challenge new measures that we seek to bring into force. I shall come back to the hon. Gentleman’s point, but we have been working with Westminster city council and the GLA to ensure that relevant byelaws are strengthened to deal with disruptive activity in the wider area.

Obstruction of the highway will more clearly apply to the roads and pavements around Parliament square, given their far greater vehicular and pedestrian usage, and footfall. Our approach is aimed at targeting specific problems in the Parliament square area, empowering local authorities to take action by giving them the ability to enforce relevant byelaws more effectively. In the context of what the hon. Member for Gedling said about Westminster city council, I have met the council on several occasions and am well aware of its concerns.

However, I say to the hon. Gentleman that at my recent meeting with the council, after the note that it circulated to the Committee, it supported strengthening and amending the byelaws to deal with the displacement issue. It recognised that that was an important way in which it could address the issue. From subsequent discussions with the council, I think the position has moved since the note was prepared. I am not seeking to push the hon. Gentleman, but there have been ongoing discussions on the issue and the clarity that we have given Westminster city council may have dealt with its concerns.

The hon. Gentleman inquired about the GLA. I draw his attention to paragraph 5 of Committee document PR58, the memorandum from the Greater London authority, which states:

“The Mayor welcomes the Bill’s provisions on Parliament Square Garden (PSG) and considers that it will enable the more effective management of camped protests in PSG. The Mayor particularly supports vesting officers with powers of seizure in respect of prohibited activities and, more generally, breaches of byelaws.”

I hope that I have been helpful to the hon. Gentleman by highlighting the points made by the Greater London authority in that respect.

With those comments, I hope that the hon. Member for Birmingham, Selly Oak will withdraw the amendment. Although I recognise the point that he wants to make, I hope that with the assurances I have given, he will accept that it is something we have carefully considered.

Steve McCabe (Labour, Birmingham, Selly Oak)

I beg to ask leave to withdraw the amendment.

Clause 141

Vernon Coaker (Labour, Gedling)

I beg to move amendment 618, in clause 141, page 95, line 2, leave out ‘or authorised officer’.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following:

Amendment 619, in clause 142, page 96, line 14, leave out ‘or authorised officer’.

Amendment 620, in clause 143, page 96, line 35, leave out ‘or authorised officer’.

Amendment 621, in clause 143, page 96, line 37, leave out ‘or officer’.

Amendment 622, in clause 143, page 97, line 1, leave out ‘or authorised officer’.

Amendment 623, in clause 143, page 97, line 2, leave out

‘(in the case of a constable)’.

Amendment 624, in clause 146, page 98, line 29, leave out subsection (2).

Vernon Coaker (Labour, Gedling)

These are serious amendments. We have led with amendment 618, but a series of other amendments delete “or authorised officer” in various clauses. I should say at the outset that, of course, there are many examples of authorised personnel of local authorities who are not warranted police officers but who have certain powers—indeed, I think that came up in the evidence—but we are not talking about dog fouling or littering; we are talking about the policing of protest, so there is a significant difference in context if we are giving people who are not warranted officers the power to do certain things in those circumstances. When we read all the clauses, as members of the Committee will have done, we see that an authorised officer has quite significant power.

I understand that the power that an authorised officer has, in Parliament square in particular, is limited; he cannot do many of the things that a warranted officer does outside Parliament square, and the Bill effectively excludes and leaves out the authorised officer. Notwithstanding that, there are significant powers that an authorised officer can use, including, in Parliament square, the use of reasonable force. Given the agendas of the hon. Members for Edinburgh West and for Cambridge in particular, I find it difficult to understand that they can actually support authorised personnel, who are not warranted police officers, being able to use reasonable force to police protest. It is an incredible increase in the powers we are willing to give people who are not warranted officers.

Mark Tami (Labour, Alyn and Deeside)

Does my honourable Friend remember the comments of the hon. Member for Cambridge in the evidence session that police powers were in fact a form of state-sponsored violence?

Vernon Coaker (Labour, Gedling)

That was one of those moments when all the other members of the Committee looked aghast.

Julian Huppert (Liberal Democrat, Cambridge)

I think the hon. Gentleman will find that I said “state-sanctioned violence”. The point is that we sanction the use of violence, of reasonable force, by the police. That is a very good thing. It is not a criticism of the police doing that; it is an example of our allowing what we would not, in general, encourage other people to do. That was what was meant and I am sorry if Opposition Members did not understand it.

Vernon Coaker (Labour, Gedling)

It was not only Opposition Members who did not understand. Even given the point he has just made, I think the hon. Gentleman will recognise on reflection that saying that we sanction the police to commit violence is not quite what we do.

Mark Tami (Labour, Alyn and Deeside)

Does my hon. Friend recall the chief constable’s retort, which was that it was one of the most stupid comments he had ever heard?

Vernon Coaker (Labour, Gedling)

That was the comment of the chief constable of West Midlands police. Whether it was about sanctioning violence or whatever, the hon. Member for Cambridge will recognise on reflection that there were probably better ways of explaining what he meant.

It may be useful to remind the Committee of what was said in evidence about the use of force and about authorised personnel being able to do certain things. Lynne Owens said:

“Of course, individual citizens already have a right to use reasonable force to protect themselves or their property, and the measure would be an extension of that. Obviously, police officers are currently answerable to the law, but we operate with a lot of training, within a legislative framework, and with a significantly negotiated police regulatory structure and a misconduct procedure. The provision on the use of force would make us nervous. At the moment, when people are asked to move, they are generally asked to do so by bailiffs, and we stand by to prevent a breach of the peace”.

Shami Chakrabarti from Liberty said:

“I am also very nervous about non-police personnel exercising those powers. Technically, we all have the power of citizen’s arrest, but with the exception of Mr Straw and a few other politicians who have exercised it over the years, most of us do not run around arresting one another, and most of us would be ill-equipped to do so effectively and sensibly.”––[Official Report, Police Reform and Social Responsibility Public Bill Committee, 20 January 2011; c. 113, Q215.]

I agree.

Steve McCabe (Labour, Birmingham, Selly Oak)

Has my hon. Friend given any thought to who “other authorised officers” might be in that context? I wonder whether the term would extend to members of private security firms, particularly given recent news reports about G4S security.

Vernon Coaker (Labour, Gedling)

No doubt the Minister will provide clarification, because I, too, am not sure exactly who that term applies to. The Minister for Policing and Criminal Justice is very keen on outsourcing, as he said in a recent speech, and it will be interesting to know what the limitations are on outsourcing in this area.

It is not only Shami Chakrabarti and Lynne Owens who are concerned about the extension of the powers. The hon. Member for Edinburgh West, in response to a later remark by Shami Chakrabarti, said:

“I want to echo the point that you have just made. Having policed public order situations in a previous occupation”—

his service as a police officer has helped the Committee—

“I know that it is difficult enough as a police officer to get a lawful order given by a uniform to be accepted and acted upon, especially in stressful situations. You tend to find that different types of people will accept it, and others will say, ‘Who do you think you are?’ and, ‘Don’t you know who I am?’ We are potentially exacerbating that situation by asking those same people to accept that same type of, albeit lawful, order from a non-uniformed person, and we could make the situation worse.”––[Official Report, Police Reform and Social Responsibility Public Bill Committee, 20 January 2011; c. 114, Q219.]

I could not have put that better myself; it is a very good point. If the hon. Gentleman means it, which he clearly does, he will be as concerned as I am about the extension of powers to authorised people.

How will someone know that such people are authorised? Will they have a card to show it? How do we know that that will not be easily replicated? Who exactly are the authorised people? If they are authorised for Parliament square and they run across the road, presumably their powers will stop. Do the powers operate only within the defined area?

The Minister will know that I am not splitting hairs. Supposing someone jumps off the pavement just a couple of feet into the road, so that he is just outside the boundary. Does that mean that authorised persons’ powers would completely stop? The hon. Member for Edinburgh West is right, and he has made a really good point. Those are the sorts of stressful situations that he knows will arise.

On reasonable force, what on earth do we mean? What is “reasonable”? Someone resists, and the authorised people are okay—they can force, fight and struggle to remove the tent, loudhailer or structure from him. Are they allowed to take him away, or do they have to hand him over to a police officer? It is unclear to me, because clause 141 says:

“A constable or authorised officer who has reasonable grounds for believing that a person is doing, or is about to do, a prohibited activity may direct the person…to cease doing that activity, or…not to start doing that activity.”

How on earth will they know that someone is about to do it? We just leave it to discretion, and there are serious problems with that. The Metropolitan Police Service has said:

“It provides for a constable or an authorised officer—

we want “authorised officer” taken out—

“to direct a person to cease doing or not to start doing an activity they have reasonable grounds for believing to be a prohibited activity.”

The problem, as the MPS says, is that that places a huge burden on individual police officers’ interpretation of the law. If one of the most senior MPS officers says that it puts a great deal of emphasis on trained police officers to interpret the law, what sort of burden does it put on authorised officers—non-warranted people—in their interpretation of it?

Steve McCabe (Labour, Birmingham, Selly Oak)

My hon. Friend makes an important point. I do not think that any member of the Committee wants to make it difficult for the Minister to achieve his aims, but the issue is the interpretation. My hon. Friend asked earlier how the authorised officer would be identified. Will that not be crucial, particularly when it comes to seizing equipment? Someone might believe that they were being robbed, and could inadvertently find themselves part of a much bigger incident, if they did not know who the individual trying to seize their equipment was.

Vernon Coaker (Labour, Gedling)

That is an extremely important point, and presumably the Minister will tell us about the identification. Without clarity on the procedure, there will be real doubt. There are also things that cannot be written down—including training, experience and the way in which one has conducted oneself—that will relate to the interpretation of the law.

The Bill states that, in policing protests—not dog fouling—an authorised officer of the council has the necessary experience, training, skills and qualities to deal with what will potentially be a hugely stressful situation; that authorised officer in Parliament square will be seeking to take away tents or loudspeakers, or other structures or equipment. The power of my point is that it is not just me saying it, but one of the most senior Metropolitan police officers, in her additional memorandum to the Committee.

Michael Ellis (Conservative, Northampton North)

Does the hon. Gentleman not accept that there are others who are authorised to act in a reasonable manner in other and numerous circumstances in our society? Bailiffs, nightclub door staff and security guards in supermarkets and shopping centres, for example, might be called on to ask someone to leave their premises. They have that responsibility. Is not the shadow Minister conflating issues? In respect of what is reasonable and what is not, will that not always be a question of fact and degree—whether it be a police officer, a civilian or a householder?

Chris Ruane rose—

Vernon Coaker (Labour, Gedling)

I shall give way to my hon. Friend and then come back to the hon. Gentleman’s point.

Chris Ruane (Labour, Vale of Clwyd)

Can my hon. Friend give an estimation of the way in which bouncers, bailiffs and clampers are perceived by the public? Are they seen as trusted servants of society?

Vernon Coaker (Labour, Gedling)

I understand my hon. Friend’s point. Clearly, in many respects they are not well perceived by society.

On the point raised by the hon. Member for Northampton North, I said at the beginning that this context is different. It is the policing of protest in some of the most controversial and difficult circumstances, which is a completely different ball game from dog fouling and, with respect, from the valuable work that security people in supermarkets do. It would be perfectly fair if he disagreed with that because that would be his point of view, but this is different.

There is potential for real problems of a democratic clash between people of different opinions. Look at the difficulty that warranted police officers—some of the most experienced police officers—sometimes have outside Parliament. Yet we are saying that in Parliament square, one of the most symbolic areas of our country for obvious reasons, authorised police officers will have the power of seizure and forfeiture, and will be able to use reasonable force.

In her submission to the Committee, Lynne Owens made a particular point that is relevant to the comments made by the hon. Member for Northampton North:

“The MPS is concerned that the Bill as currently drafted could be challenged, both on the detail of what behaviours are prohibited and on the proportionality of any decision to enforce in an individual case. This would necessitate the defence of the decisions of individual officers”—

or authorised officers or officials—

“in court in order to make the legislation effective.”

She wrote that about police officers, but I think it can be applied to authorised officers. If the measure is a concern with warranted police officers, with all their training, it is a huge concern with authorised personnel.

Steve McCabe (Labour, Birmingham, Selly Oak)

Further to the point made by my hon. Friend the Member for Vale of Clwyd, is it not the case that people such as bailiffs or doormen are regularly involved in physical confrontations with the public? Was that not one of the arguments for introducing the Security Industry Authority, which I am sad to see is to be abolished? Surely the one thing that we do not want to happen in Parliament square is a series of physical confrontations; the whole object of the legislation is to try to clear away the current problem and reduce the potential for future ones.

Vernon Coaker (Labour, Gedling)

That is absolutely right. Obviously, a police officer can use reasonable force in any legal, proportionate and appropriate circumstances, but we are giving authorised officers—council officials and employees, or others—and warranted police officers the right to do so in Parliament square. The measure is a big extension of power.

I return to the point that was reasonably made by the hon. Member for Northampton North. I cannot for the life of me see how the present situation—with all the various ways in which people can use powers relating to bailiffs, dog fouling, littering, security personnel and so on—translates into meaning that it is okay for people to be involved in the policing of protests outside Parliament. That is a completely different ball game. I can only begin to imagine some of the consequences of council employees going out with their badges and trying to clear tents or structures. That is a real problem.

Chris Ruane (Labour, Vale of Clwyd)

My hon. Friend refers to highly trained and experienced police officers sometimes getting into tight situations. There was a death last year of someone who was not even a protestor—he was a newspaper man—and there was Blair Peach in the 1980s. If such police officers can sometimes get it wrong, what chance do those authorised people have of getting it right? They will be in stressful situations—there is a mob mentality out there. If authorised people are not highly trained and experienced, it is a recipe for disaster.

Does the Minister agree that the measure might be regarded as a back-door way to fill police and police community support officer numbers? If we are cutting back on such trained personnel, perhaps this is a way to get hundreds of authorised people in through the back door nice and cheaply.

Vernon Coaker (Labour, Gedling)

It certainly is the case that warranted police officers have had significant trouble in policing protests, even with all their experience and training. Now, in one of the most symbolic and highly charged atmospheres—outside Parliament—we are going to give, in many respects, the same rights to authorised officers. That is a problem.

Nick Herbert (Conservative, Arundel and South Downs)

Would the hon. Gentleman care to note that last week the Mayor of London announced that he intended to ensure that by the end of his term of office, there would be more sworn police officers in London than he inherited from the previous Mayor, contrary to the implication made by the hon. Member for Vale of Clwyd?

Vernon Coaker (Labour, Gedling)

I am not totally sure whether my hon. Friend the Member for Vale of Clwyd was making that implication. My understanding is that wherever the numbers go from and to, the Mayor’s intention is to ensure that they go up just before the election and drop afterwards.

Steve McCabe (Labour, Birmingham, Selly Oak)

Does my hon. Friend hope that that promise will have a bit more certainty than the Lib Dem promise before the election for 3,000 extra police officers?

Vernon Coaker (Labour, Gedling)

We all know where that went. [ Interruption. ] Sorry, Mr Benton, I can see that you are going to stand up, but that was a good point.

Chris Ruane (Labour, Vale of Clwyd)

The Minister just cited the example that the Mayor of London is going to put more police community support officers on the street. Is that an admission on the Minister’s part that what the national Government are doing is wrong, and that he will make up the mistake?

Vernon Coaker (Labour, Gedling)

If the Minister was facing an election in 2012, I doubt that he would want to go into it having just cut 10,000 from police numbers.

Joe Benton (Labour, Bootle)

Order. We are not going down the road of mayoral elections. May I bring the hon. Gentleman back to the amendment?

Vernon Coaker (Labour, Gedling)

I apologise profusely, Mr Benton.

Bridget Phillipson (Labour, Houghton and Sunderland South)

Does my hon. Friend agree that there appears to be some inconsistency at the heart of the Government’s thinking? On the one hand, they are committed to rolling back the powers of local authority officers, which they feel have gone too far, but on the other, in this case, they want to extend the powers to those officers. I simply do not understand the consistency there.

Vernon Coaker (Labour, Gedling)

My hon. Friend makes a good point, which is why I was gently chiding and challenging the two Liberal Democrat members of the Committee. This is a significant extension of power for non-warranted officers. The hon. Member for Edinburgh West made the point in Committee.

I would like to say to my hon. Friend that there is a later clause, which I know all Committee members will have seen, that contains an astonishing extension of powers. We will see whether other Committee members agree. For now, I will see what the Minister or other members of the Committee have to say about the amendment.

Julian Huppert (Liberal Democrat, Cambridge)

This has been a fairly heated discussion, and I have some concerns about the issue. First, let me say that I agreed with the hon. Member for Gedling, which I do not always do, when he said that my hon. Friend the Member for Edinburgh West spoke extremely well in the evidence sessions and throughout our sittings.

I have had a number of discussions with the Minister about the issue, trying to understand how he understands the role of such alternative officers. We give police officers certain responsibilities and allow them to use force and violence under controlled circumstances. That is a hard thing to manage, and it is tough for the police to work out. They do not always get it right. I am sure that all hon. Members would agree that it is a tough balance for the police. They struggle to get it right in all cases, so there are questions.

The hon. Member for Gedling talked about whether other authorised officers would have the skills, and I, too, think there are questions about that. I have spoken to the Minister previously about training, which I am sure he will comment on later. There is also the question of what a reasonable member of the public would expect. Nothing in the Bill states that such authorised officers should be uniformed, be trained, have particular identity cards or have evidence of what they can do. In addition, there are a number of questions regarding which powers officers will be expected to use.

I understand the hon. Gentleman’s comments about the amendment and his concerns, but there are a number of ways in which the Government may address them other than through the amendment. I would rather hear from the Minister a range of different solutions to the problem. If one took in all the possibilities, I would have real concerns. If they are constrained—whether by changes in the legislation, which the Minister might wish to continue with, or by clear guidance and controls on such people as a secondary option—then the concern rightly raised by the hon. Member for Gedling could be dealt with in another way.

I have faith that the Minister’s response will be helpful and constructive, and that he is not trying to turn Britain into a police state; I think that that was the last Government’s direction rather than this Government’s. I look forward to hearing his comments.

Bridget Phillipson (Labour, Houghton and Sunderland South)

I seek clarification from the Minister on a number of points raised by my hon. Friend the Member for Gedling (Vernon Coaker). The hon. Member for Cambridge appears to be concerned, but I am not sure what he is suggesting the Government should do to allay those concerns. That is somewhat unclear to me. He seems not to like the fact that the Government are suggesting that authorised persons should be able to take on some roles, but I am not sure what he is suggesting as an alternative to our amendment.

Julian Huppert (Liberal Democrat, Cambridge)

For example, I raised issues about uniform status, identity status, whether they have full powers to give directions for 90 days—we will come to that shortly—how they identify themselves, how they are controlled and how they are supervised. It was a range of issues. I did not feel the need to give the Committee every possible example; I am sure that the Minister will deal with them.

Bridget Phillipson (Labour, Houghton and Sunderland South)

I hope that the hon. Gentleman gets the reassurance that he seeks from the Minister, although I doubt that he will, so I will move on.

I have some concerns about non-uniformed council staff. Could they approach members of the public? Will members of the public be able to ask for ID and check such people’s identity? What safeguards will be put in place if a member of the public wants to complain about the conduct of an authorised person? It is clear when one is being approached by a police officer. They are either in uniform or carrying a warrant card. Most members of the public are clear about how to complain if they are unhappy about the treatment that they have received at the hands of a police officer. I am not sure that that will necessarily be the case if they are approached by a non-uniformed, non-ID-carrying member of council staff.

Steve McCabe (Labour, Birmingham, Selly Oak)

Is it clear to my hon. Friend from our discussion of the matter so far that a police officer and an authorised officer would necessarily have the same understanding of their duties and responsibilities in relation to the legislation, or is there potential for confusion and conflict for the public?

Bridget Phillipson (Labour, Houghton and Sunderland South)

I think that there is potential for confusion, particularly in difficult and pressurised situations. Police officers are trained to a high standard and receive training that allows them to deal with such situations, but the highly pressurised environment of a protest can prove difficult even for uniformed police officers. I expect that it might prove even more difficult for a less well trained, less suitably qualified authorised person and might actually inflame situations further when that need not necessarily be the outcome.

We heard the comments made by the hon. Member for Edinburgh West during the evidence session. He made the good point that certain situations can be difficult even for police officers, and that we must be careful when people are protesting not to inflame the situation further by handling it inappropriately. There is a far greater risk of that happening with an authorised officer acting on behalf of a local authority than with a police officer.

I am not quite sure how all the provisions make for a consistent picture of Government thinking. As I said earlier in an intervention, the Government tell us that they want to roll back powers where they feel that local authorities have overstepped the mark, such as in the use of the Regulation of Investigatory Powers Act 2000. However, in this instance, they are seeking to expand the powers of particular local authorities or local authority staff. I do not understand how those two things fit together. Will the Minister clarify it?

Chris Ruane (Labour, Vale of Clwyd)

On the issue of local authority staff being asked to take on those onerous positions, does my hon. Friend think that that could lead to undue pressure on council staff? They may be forced into situations that result in conflict and violence. Such undue pressure is unnecessary, if those are truly the functions of police officers.

Bridget Phillipson (Labour, Houghton and Sunderland South)

People could be in very difficult situations, particularly if they are not suitably experienced or trained in handling conflict situations, which the police deal with day in, day out as part of their job.

Will the Minister tell the Committee which local authority officers he intends should carry out such functions? Which people is he talking about? Is it civil enforcement officers such as traffic wardens, or the people who issue tickets for dog fouling or littering? It is a big leap from that to policing protests in Parliament square. Will the Minister explain who will carry out those functions?

I do not understand the consistency. It is important to have adequate safeguards in place so that when the public are approached by someone claiming to be operating on behalf of a public body—for example, a council—they are confident of the identity of that person and can ask for identification if required. It is important to have suitable safeguards in place should they wish to complain about the conduct of that person, if such an occasion were to arise. There are several serious issues at the heart of the provision, and I hope that the Minister will clarify how it will work in practice. The Bill as it stands is a cause for concern.

James Brokenshire (Conservative, Old Bexley and Sidcup)

At the outset, I should say that it is interesting how the measure has been characterised in terms of authorised officers policing protests. We need to be very clear about the provisions in the Bill and the power to seize property in clause 143. We have not got on to that clause yet, but it is important to stress the context of how such power will be vested. Suggesting that there will be an overarching power of delegation to local authorities to manage widespread protest is wide of the mark. It is important for me to explain the basis upon which we have sought to provide that power in the Bill.

Steve McCabe (Labour, Birmingham, Selly Oak)

On a point of order, Mr Benton. I apologise for interrupting the Minister. May I seek your ruling on members of the Committee tweeting our proceedings? Is that permitted?

Joe Benton (Labour, Bootle)

If there is anybody causing undue noise and disturbance, I am ruling it out of order, irrespective of what the official ruling is. A reasonable amount of noise is tolerated in the normal vicissitudes of Committee work. Increasing and enhancing noise is not allowable—not while I am in the Chair. Whatever the activity is, it is obviously disturbing other members of the Committee. I am not conscious of it, but I ask all members of the Committee to observe the rules and keep noise to a minimum.

Steve McCabe (Labour, Birmingham, Selly Oak)

Further to that point of order, Mr Benton. I apologise, but I may not have made myself clear. I was asking whether it is permitted to give an electronic account of the Committee’s proceedings while it is taking place, and is there any check on whether that account is accurate?

Joe Benton (Labour, Bootle)

It is not permissible to give an electronic account of the Committee’s proceedings, so if anybody is indulging in such activity, I caution them. I have no evidence that it is going on, but if it is going on and I find out about it, it will result in serious repercussions. Although I have no evidence, I am ruling now that it has to stop.

Julian Huppert (Liberal Democrat, Cambridge)

Further to that point of order, Mr Benton. I would be grateful if you could expand on that. There have been previous discussions with the Speaker’s office that have ruled that it is acceptable. I will happily accept your ruling for this Committee, but I would be interested in your commentary on it. The Members’ handbook is relatively clear.

Joe Benton (Labour, Bootle)

The point of order that was put to me was whether it was permissible for minutes or a report of the sitting to be dispatched. I say that that is out of order. The Speaker has made no ruling on that at all. It is out of order if that is what is happening. I am not aware of what is happening; someone has suggested to me that it might be happening and is seeking a ruling on whether it is in order for the proceedings of this Committee to be transmitted by Twitter or whatever you like to call it. I am ruling that that is out of order. I hope that that is understood, because I do not want to spend all day on that particular point. The point is that I have ruled on what has been raised, quite properly, as a point of order. That is it—final and conclusive. If there are any other problems about it, you can see me after the sitting, or raise it through the usual channels. It is improper and out of order to transmit the minutes or proceedings of this Committee through Twitter. I hope that that is now clear, because I want to proceed.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Thank you, Mr Benton. As I was saying, as the Committee is aware, the GLA manages the central garden, including the two footways, and Westminster city council controls the other two footways, opposite Westminster abbey and the Palace of Westminster. The GLA and Westminster city council are effectively responsible for what goes on in their areas, including ensuring that byelaws protecting those areas are complied with and that highways are not obstructed. The police’s role is to maintain the peace and prevent crime. We have always said that the provisions in part 3 need to work in tandem with strengthened local authority byelaws, which will need to be amended to bring them into line with the provisions of the Bill.

By removing the ability of the GLA and Westminster to enforce the new provisions on prohibited activity on their land, it would leave enforcement entirely as the police’s responsibility. In practice, that would mean that where, for example, a GLA heritage warden sees a person erecting a tent on the garden, he or she would be unable to direct that person to stop what they are doing, and would have to ask a police officer to issue the direction instead. That seems bureaucratic, time consuming and puts the onus entirely on the police. By way of another example, a person operating a loud speaker, in breach of any conditions imposed by either the GLA or Westminster, under the authorisation scheme provided for in clause 145, could not be directed by either the GLA or Westminster to cease operating the loud speaker. Enforcement would be left to a police officer.

Our provisions require a collaborative approach to enforcement by the Metropolitan police, the GLA and Westminster city council. That is a key to making our provisions work. By removing the ability of the GLA and Westminster to enforce the provisions, they are unlikely to work effectively to prevent encampments and other disruptive activity.

I assure the Committee that authorised officers, employed by the GLA, such as the heritage wardens, who are authorised to enforce the Parliament square byelaws, are readily identifiable to the public. Heritage wardens carry identification and wear a uniform. From the GLA, I understand that, to date, there have been no issues with their identification for the purposes of implementing the byelaws. From Westminster city council, I understand that its enforcement officers carry, as a matter of course, photo identification which they produce on demand and often routinely. They also carry documentation setting out their powers.

We are working with the GLA, Westminster and the Metropolitan police to draw up enforcement protocols and develop guidance. As part of that work, one of the areas we are considering is guidance on ensuring that authorised officers, who exercise the powers in part 3, are clearly identifiable to members of the public, and that the public understand what those officers are empowered to do and on whose authority. In that context, we are also considering the issue of complaints and clarity on how complaints may be made on authorised officers, if there is any question as to their conduct.

I also point out to the Committee that the enforcement of rights of seizure is not new. Officers authorised by Westminster city council already have many seizure powers, including in relation to unlicensed street trading and selling counterfeit goods, and so does the GLA, under its existing trading byelaws. Both the GLA and Westminster city council already deal with issues of identification, visibility and complaints in that context. I have been provided with a long list of various statutes under which rights of seizure already exist.

Michael Ellis (Conservative, Northampton North)

Does the Minister not find it a little rich that Labour should complain about the potential powers of authorised persons when numerous organisations were given extra powers to enter citizens’ homes in this country during the 13 years of the previous Government?

James Brokenshire (Conservative, Old Bexley and Sidcup)

The issue of rights of entry is certainly a pertinent one. I think that about 1,200 rights of entry now exist, which is why we are seeking to address this issue in the Freedoms Bill and why we are re-establishing many of the liberties and freedoms that were eroded during the last Government’s time in office.

Steve McCabe (Labour, Birmingham, Selly Oak)

I do not want to go over what the Minister’s hon. Friend, the hon. Member for Northampton North, has said. However, I want to establish if it is right to say that this is a new power and is the point that the Minister is making—that it mirrors existing powers that local government officers have, but it is itself a new power of seizure—an accurate one?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I was seeking to draw a parallel and to make it clear that a local authority’s right of seizure is not new. Therefore, some of the points that have been highlighted in this debate are equally applicable to those rights of seizure in connection with other existing powers under byelaws and certain other statutory provisions that local authorities currently exercise. It is important to note that the proposed provision needs to work in the context of existing byelaws and other statutory provisions and that such a collaborative approach is required.

I again draw the attention of hon. Members to the comments of the Mayor of London, who particularly supported the vesting of officers with powers of seizure in respect of these provisions. Both Westminster city council and the GLA recognise that such powers of seizure are important in terms of ensuring that the provisions are enforced effectively.

However, I agree about the need for a collaborative approach and attendant training. Having a memorandum of understanding between the police, Westminster city council and the GLA is key to how that approach is intended to work and it will be developed further as part of the Bill.

I hope that, having provided that explanation as to the purpose, the context and the reasons why other protections are afforded, that the hon. Member for Gedling will be minded to withdraw his amendment.

Vernon Coaker (Labour, Gedling)

With respect to the Minister, I am not minded to withdraw the amendment. There is an important point of principle here, so I would like to push the amendment to a vote when it is appropriate to do so.

The Minister says of the terms of clause 141 that it is only a seizure power, which is not much of a problem. Then, clause 142 says:

“Directions under section 141: further provision.”

If you have somebody who says, “I think you’re about to use that loud hailer for the purposes of a protest, you haven’t started yet but I think you will, so I will seize that”, it will not be the loud hailer that resists but the person. The authorised person can use reasonable force to ensure that property seizure.

I will not repeat this endlessly, but the Minister’s response regarding the safeguards and his inability to recognise the real concerns about this measure that have been expressed not just by members of this Committee but by the police is inadequate. I am sure that we shall return to the matter.

James Brokenshire (Conservative, Old Bexley and Sidcup)

In the context of what I said about the memorandum of understanding and the need for joint working, the hon. Gentleman will equally recognise situations in which the police work alongside other agencies that also have powers and that that collaborate approach can work extremely effectively. I caution him if he is saying that such powers have to be conducted by the police, even in the examples that I am giving. It would cause potential problems in enforcement generally if he were minded to pursue such matters, as well as practical issues in being able to ensure that local authorities and byelaw powers are properly enforced on seizing tents and other apparatus in circumstances when it would be wholly reasonable to do so.

Vernon Coaker (Labour, Gedling)

The Minister’s position would be stronger if the first line of the clause did not refer to a

“constable or authorised officer”.

James Brokenshire (Conservative, Old Bexley and Sidcup)

It is a direction power.

Vernon Coaker (Labour, Gedling)

That is right. If the clause referred to a constable

“with an authorised officer”

or put a collaborative approach into effect, it would be different. There is a point of difference between the Minister and myself, and I wish to test the view of the Committee on the amendment.

Steve McCabe (Labour, Birmingham, Selly Oak)

I beg to move amendment 625, in clause 141, page 96, line 1, leave out ‘mattress’ and insert

Perhaps I should start by saying to the Minister that, like my previous amendment, the proposal under discussion is a probing amendment and I am not planning to press it to a Division. I want to be clear whether the definition under the Bill will have the effect that the hon. Gentleman intends. Dos we define “sleeping equipment” as narrowly as a sleeping bag, a mattress or something similar? Would that enable ingenious people desperate to get round the Minister’s aim to thwart his intentions by producing other material and equipment that might strictly fall outside the definition that could be used for the same purpose?

I ask that question because I would not like a series of silly and pointless disputes to take place when people argued that the equipment they were carrying were intended to be used for a solely different purpose. I have not had quite as much experience as the hon. Member for Northampton North, but I have spent enough hours in juvenile courts in the past to hear some ingenious excuses for pieces of equipment that individuals happen to have on their person at particular times.

Nick Herbert (Conservative, Arundel and South Downs)

Is the hon. Gentleman confessing to a misspent youth or is he speaking in a professional capacity?

Steve McCabe (Labour, Birmingham, Selly Oak)

I am afraid that I am not a soul mate, but I was speaking with experience of a former professional activity. I am sorry to disappoint the Minister, but we will have to part company there.

Christopher Chope (Conservative, Christchurch)

This morning, points of order were made about the use of hand-held electronic devices in Committee. The hon. Member for Birmingham, Selly Oak was particularly concerned about it. I underline the ruling made by the Chair this morning that the overriding principle must be that the use of such electronic devices in Committee must not disrupt the proceedings. As for whether it is in order for an hon. Member to post on Twitter during proceedings in Committee, and thereby comment on proceedings in Committee, it is my understanding that that is in order as long as it does not involve criticising the Chair.

Steve McCabe (Labour, Birmingham, Selly Oak)

It is a pleasure, as always, to serve under your chairmanship, Mr Chope. Just before the break, the Minister for Policing and Criminal Justice was trying to establish whether my comments about the various things that I had observed in the juvenile court by way of excuses and explanations was something to do with my misspent youth. I was eager to assure him that it was in the context of my work with young offenders.

However, I am anxious to establish from the Minister whether he is confident that the current wording of the Bill will be sufficient to prevent those with an ingenious desire to evade his best intentions from arriving at the square or a similar location with equipment that could be used for the purpose, but that might not strictly meet the definition. We have been through such matters to a large extent, and I tabled the amendment simply as a probing exercise so that we could hear the Minister’s reasoning and seek his assurances that the clause will do the job.

Vernon Coaker (Labour, Gedling)

Good afternoon to you, Mr Chope, and to all members of the Committee. This morning, we had what I thought was yet again a good debate about a series of clauses and amendments on what was meant by different parts of the Bill, and about the general principles of protest and the balance between legitimate protest and the right of the general public to have free and proper access to Parliament. As my hon. Friend the Member for Birmingham, Selly Oak said, the amendment is designed to tease out what the Government mean.

On the face of it, the amendment seems almost trivial and silly, first because my hon. Friend the Member for Birmingham, Selly Oak tabled it and, secondly, because such matters are exactly where the previous Government often reached. Furthermore, with respect, for all his good intentions, the Minister absolutely needs to nail down such issues. If he does not, we will see individual protesters or groups using loopholes—unintended as they may be—to drive a coach and horses through the Government’s legislation. As we said this morning, we support the repeal of the Serious Organised Crime and Police Act 2005 provisions and the Government’s intention to do something about the permanent encampment outside, but we are determined to try to ensure that the legislation is as watertight as possible.

On defining what we mean by sleeping equipment, I suggest the Minister needs to get his lawyers and officials to go through the Bill again and again and look at it from the point of view of somebody who is trying to usurp what the Government are doing, or somebody who is trying to circumnavigate the intention of Parliament, the Minister and us. It is no good people getting defensive about it. People simply have to ask, “If you were trying to undermine the intention of the Bill, what would you do?” It is the point about sleeping equipment that we need to get to. The Minister and his officials would say that sleeping equipment

“means any sleeping bag, mattress”.

The catch-all is “or other similar item”, and the other similar item is designed to catch anything else

“(solely or mainly) for the purpose of facilitating sleeping in a place.”

The purpose of my hon. Friend’s amendment is to probe what that includes. The problem is that we cannot make an exhaustive list. As soon as we try to make such a list, we miss something out and somebody will turn up with something that is not on the list, so we have to have a catch-all. Presumably, I could turn up with a pair of pyjamas, a nightdress or five or six pairs of pyjamas in which to sleep on the pavement. I ask for the Committee’s forbearance, because, although it sounds as though I am joking, I am not. I cannot emphasise enough that that is what will happen. Unless we are absolutely clear and try to put some meat on the bones of what “or other similar items” means, we will have a problem.

Westminster city council raised a point about sleeping equipment. Obviously, sleeping equipment could be pyjamas or hot-water bottles. Someone could come along with 10 hot-water bottles to keep themselves warm, but let us suppose someone says, “I have a tent that is not for sleeping in but for storage”, or, “The structure I have put up is not for sleeping in but for storage.” We debated questions relating to the police and authorised officers this morning. They will be left trying to determine whether the structure is for sleeping or storage. We have police officers on our side of the road, but the structures will have to be permanently guarded to ensure that someone is not nipping in for an hour’s sleep. I am not trivialising the debate. It really is that important.

The Minister gave an important clarification this morning on the point that somebody can stay overnight and protest. The simple little amendment tabled by my hon. Friend the Member for Birmingham, Selly Oak could be repeated numerous times throughout the clause and throughout the Bill. We want the Minister to identify and define all those different things and try to lock the matter down.

Steve McCabe (Labour, Birmingham, Selly Oak)

Like my hon. Friend, I have been exercised over how easy it would be to evade the measures. We have had repeated experience of at least one individual being able to do exactly that. Is it clear from the wording of the clause that an individual in possession of equipment that might be thought to be for the purposes of sleeping would have to prove that the equipment was for them? If they carried it for someone else would that be grounds for evading the direction of the officer?

Vernon Coaker (Labour, Gedling)

I am not sure, but I do not think so. Again, the Minister will provide clarification, but we do get into problems. What about people who just walk through the square carrying such equipment? He will presumably say that the matter is at the discretion of the officer, who does not have to do anything, but may do something. It will be interesting to hear what the Minister says.

I do not want to add to those few comments; they relate to our debate this morning about other aspects of the Bill, and to debates that we will have on subsequent clauses. The matter is of much significance. As we said this morning, many people—I spoke to a couple during the break today—are exercised about the permanent encampment outside. From my straw poll, its permanency is the issue. There is concern or scepticism: “I bet they’ll find a way round it, if you are not careful.” All members of the Committee are genuinely concerned and worried about that. I would appreciate hearing the Minister’s comments on the amendment.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I thank hon. Members for the way in which they have highlighted their points, and their desire to ensure that the provisions meet the expectations not only of the Government and the Committee, but of the whole House and the public.

I say to the hon. Member for Birmingham, Selly Oak, that we have looked very hard at the provisions, as he would expect me to do when preparing the Bill. The sort of questions posed by him and the hon. Member for Gedling are those that I put to officials, as we considered the drafting and preparation of the Bill. We know that the provisions will certainly be subject to legal challenge; as night follows day, they will be challenged, so we have to be as satisfied as we can be about their drafting and their effect.

I accept what the hon. Member for Gedling said about exhaustive lists creating further problems. By creating such a list, we narrow the interpretative wording, so we should examine that proposal carefully. There are similar provisions in the clause, and subsection (7) is intended to operate in that way. On whether the provision is intended for a person, I draw the attention of Members to subsection (2)(d), which is not specific to the person concerned. Subsection (2)(d) is also intended to ensure that storage and such issues are equally captured, which reflects a comment that I made when we considered the drafting and preparation of the Bill.

I hear loud and clear the fair comments and points made by both speakers in this mini-debate. I assure the Committee that I will keep on kicking the tyres, testing the measure and seeing whether further questions come to my mind in the context not only of these provisions, but of others as we move through the Bill. I am satisfied that its provisions address the specific points raised by the hon. Member for Birmingham, Selly Oak, in his amendment, by virtue of the drafting of subsection (7). However, I will not rest on my laurels. The Government will keep the matter under close observation to see whether we can identify other circumstances that have not yet been addressed, but so far we have been focused in our approach and have gone through the Bill in some detail.

With that assurance, I hope that the hon. Gentleman will be minded to withdraw what I know is a probing amendment. It was intended to be helpful, for which I am grateful to him.

Steve McCabe (Labour, Birmingham, Selly Oak)

I beg to ask leave to withdraw the amendment.

Vernon Coaker (Labour, Gedling)

I have a question on the clause that needs to be clarified. This morning the Minister helpfully said that overnight protests will be allowed under the Bill. We do not want protests to be permanent, but could “permanent” mean two, three, four, five or six nights? The Minister recognises the problem. That is not to say that I could turn around and say what “permanent” means, but I am pleased that the Minister has clarified that overnight protests are allowed.

Clause 141(2)(e) states that

“using any sleeping equipment in the controlled area of Parliament Square for the purpose of sleeping overnight in that area”

is a prohibited activity. Is it possible, however, to sleep there overnight? Let us say that I am protesting outside Parliament, and I do not have any sleeping equipment—a tent, a structure, pyjamas, a hot water battle—

Chris Ruane (Labour, Vale of Clwyd)

A nightgown.

Vernon Coaker (Labour, Gedling)

A nightgown or a nightcap. If I do not have any of those items, can I just lie down on a pavement in a jacket?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I think the answer is yes.

Vernon Coaker (Labour, Gedling)

That is very helpful to know.

We have said that we are not trying to bring the law down to an individual level—it is about two or more people. If 15 individuals protesting outside Parliament overnight for an unspecific period—we are unsure what “permanent” means—lie down on the pavement and go to sleep, there is no power under the Bill to require them to leave. If one goes dressed in lots of clothes, for example in winter, that would be fine. They would be able to put a raincoat on, put a hood over their head and stay there for a period of time.

I raise this matter only because if we get 15, 20 or 25 individuals—not coming together as a group, because they would be silly to do that—on 15 different individual protests, they will be able to sleep overnight on the pavement, change their clothes in the morning and come back with a clean set of clothes. They will do that, because the provisions are about two or more people. Presumably, they can also sit on a chair and sleep in it, unless the chair is sleeping equipment, and I suppose it depends on what type of chair it is.

I am deliberately dancing on the head of a pin. I am trying to find fault in the Bill, simply to show how those outside who seek to usurp our intentions will find a way around the proposals. I am not wasting the Committee’s time. [Interruption.] The hon. Member for Northampton North has nodded because he knows, from his professional and legal experience, how people will try to do that. I think the Minister said that would be obstruction, but we have already seen the problem with obstruction: the judge ruled that Brian Haw and others could stay on that side of the road as it was not a thoroughfare or pavement with lots of people walking by. I therefore seek clarification more than anything else.

Julian Huppert (Liberal Democrat, Cambridge)

I thank the hon. Member for Gedling for highlighting an aspect of the Bill that I agree with completely. That is helpful to know and I was reassured by the Minister’s brief intervention.

On page 96, subsection (8) refers to

“a fine not exceeding level 5 on the standard scale”.

My understanding was that the aim was to replicate, as far as possible, the Public Order Act 1986, where I believe that the fine—I am not an expert in this, I hasten to add—for breaching directions is on level 3, which I believe is a £1,000 rather than a £5,000 fine. Will the Minister say why he went for this option rather than the other? I will happily talk for a bit longer if that would help him in answering, but if he knows the answer, that is fantastic.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I thank the hon. Member for Gedling for his approach to the matter. He will know from our debates and discussions over the years that I take getting the language right seriously. Having been a lawyer before entering the House, I know how important and significant these issues can be. [Interruption.] There was some booing and hissing there, and I will not take it personally—I am certainly not charging for this on the meter—but I do take the issues that the hon. Gentleman has highlighted seriously, because they concern language, interpretation and the manner in which others would seek to challenge and exploit the provisions.

We have been quite careful in drafting clause 141, which is intended not to stop overnight protest but as a remedy to the actions of those who wish to create tents, structures and other such arrangements. I accept that the clause is in some ways drafted quite broadly, and, as I said this morning, an element of discretion needs to be applied in its use. Given some of the issues that we have seen in the past, that is the better approach. A memorandum of understanding and guidance will sit alongside the provision, to give direction and certainty to the police in its application while ensuring an element of discretion and flexibility. As discussed in our previous debate about exhaustive lists, the manner in which provisions are drafted can sometimes cause problems.

On the point that the hon. Gentleman highlighted, we do not seek to stop overnight protest. Obviously, there are provisions that relate to certain parts of the highway being obstructed by crowds of people—for instance, blocking Carriage Gates—and those provisions are a direct remedy available in such circumstances. Again, we are seeking not to stop protest—I will return to this distinction on a regular basis—but to remedy arrangements such as overnight encampments. To address that underlying point, it is necessary to tie the definitions into that intent.

My hon. Friend the Member for Cambridge raised the issue of the level of fine. As the offence is quite targeted and focused, we felt that it needed an appropriate penalty and considered that, for an effective deterrent, the relevant mischief was at level 5 rather than level 3. I think that is the right approach, and I hope that setting it at that level will command the support of the Committee and the House. I note my hon. Friend’s point, although under the Act to which he refers, there are further sanctions—the penalty can go up, I believe, to three months’ imprisonment. Although the fine may be set at that level, we seek to create a different type of structure.

Vernon Coaker (Labour, Gedling)

Is the fine an “up to”, rather than a set amount?

James Brokenshire (Conservative, Old Bexley and Sidcup)

Yes, it is. It gives the court clear discretion in analysing the circumstances of the individual when setting the level of the fine. I hope that, with those comments, the Committee will be minded to accept that clause 141 stand part of the Bill.

Clause 142

Vernon Coaker (Labour, Gedling)

I have several questions for the Minister about the directions and further provision. The clause is significant because it gives effect to clause 141 and provides more power for the constable or the authorised officer to do more things, not only when a person is actually doing something, but before the person starts doing something. There needs to be clarity about how that will be determined. Will it be a matter for the individual constable or authorised officer to determine, and to say, “We believe that the person will actually do that, so we need to do something”? If that is so, it takes me to subsection (6) under which a direction can be given orally to two or more people or may be withdrawn or varied. Will the Minister explain to the Committee a little more about what that process entails?

The Minister for Policing and Criminal Justice and I had an interesting discussion recently about stop and search, stop and account and some of the changes in respect of that. The direction can be given orally, so does that mean that no record will be taken of what happens? I could give an oral direction to someone to stop doing something or to leave the area. Do I have to record that action? I do not understand what process will be used under the Bill. Clearly, such action matters. If I had given the direction orally, but then want to vary it, how will I have a proper record of what I am varying? The process will be done by memory. What will I be varying if I had not written it down? Matters will be haphazard if it were just a case of remembering what I had said to someone, especially if it was to more than one person. A direction can be given to “two or more persons”, so it could be given to a group of people. It had to be given orally, so there is a need for it to be recorded, particularly if the matter goes to court.

If the matter goes to court, presumably it is not the case that the constable or authorised person can turn up and say their recollection was that they gave a certain direction. Is it? [Interruption.] If it is, I am amazed that someone can be taken to court just on the basis of a recollection of someone’s memory. I know that we are all against bureaucracy but, if I had been directed by a police officer to move somewhere and I was taken to court for it, I would expect a little more than just, “Oh well, I think I said, ‘dah-di-dah’”. To be honest, the police and officers would expect a little more rigour in the process than that.

I want the Minister to spend a little time explaining the process. Will he explain the recording of the direction? Is it ever in writing? What happens when it goes to court? What happens if a complaint is made about it? If we are not careful, it will be a human rights nightmare. If the direction was given orally and someone believed there was a problem, how will the person receive redress if it were such an oral direction? Let us suppose that the person considered that the constable or authorised officer had gone over the top with respect to their powers under the Bill, and actually accuses the constable or authorised officer of giving them a direction that was over and above their powers? If the process was not recorded or written down, how can the person seek redress? I should be interested in replies to those questions.

I have a couple of other points. Will the Minister explain how the period of 90 days was arrived at? I accept that the clause refers to a time of up to 90 days and that it does not have to be a period of 90 days, but is that just an accepted period for such action or does some guidance arrive at it? Can the period of 90 days be repeated? If a person reaches a period of 89 days, can he go to court for a further 90 days. Can the period of 90 days be repeated, in a sense? In effect, the directions could apply to an unlimited period.

Will the Minister explain how the condition under subsection (5) relates to subsection (4)? The constable or authorised officer can give someone a direction to cease operating amplified noise equipment, if someone else can hear it. I would have thought that that was blindingly obvious. [Interruption.] With that, I shall sit down at the bell and wait for the hon. Gentleman’s response.

Julian Huppert (Liberal Democrat, Cambridge)

I wanted to follow on from the comments about clause 142(1) and the way in which a further power might work. It is clear why one would need a power to say that a direction requiring someone to stop an activity does not simply allow them to do it again immediately or as soon as the person giving the direction wanders off. We can all agree on that. My question is what is a reasonable length of time for that to continue? How will that actually work and operate? Is 90 days reasonable? Is that what somebody might expect, particularly if they are not specifically told that that is the period? The Bill does not require them to be told if it is longer than 90 days. If somebody is given an oral direction, that implies 90 days, but there is a question as to whether that is what they would expect.

I had the great privilege of discussing my concerns with the Minster earlier, and I thank him for his time and explanations. For example, I learnt that the law on trespass, which has similar provisions, specifically says that the longer time period applies to a person if they knew that that was the case. I hope I am paraphrasing the law correctly. Much of this could be dealt with by guidance. I can see why an oral direction is needed. It is better to have things in writing, but I understand that if there is a group of 50 or 60 people, it would simply not make sense for a police officer to go round saying, “Hang on, I’ve just got to write all this stuff down for each and every one of you.” I take the point that we need a quick way of saying, “Stop this and do not do it again.” Perhaps guidance would help, and perhaps the Minister will be able to comment on whether—for example, if it is to last for 90 days—best efforts will be made to provide a written record. If an oral direction is given to a group of people, perhaps it would not be for longer than a particular time period. Something like that would allow an individual case to be dealt with for a long time period, but it does not give rise to the problems that the hon. Member for Gedling and I have touched on.

Will the Minister say a little more about withdrawal and variance in subsection 6(c) and how that would work? How would the person be informed? There is another issue, which I am sure would not come up. It could be dealt with by guidance, and I would be grateful for reassurance on that. If a written direction were given, could that then be varied orally? That would not be a sensible thing to do, but clarification would be helpful. We must also consider how the direction is given—whether it is recorded and how it is recorded by the person giving the direction. Again, that can be dealt with in terms of process, but it would be helpful to understand what that might be. If an officer were required to give a direction to a group of 50 people, would he at least write down the fact that he did so, so that there was a record?

I am concerned about confusion in the minds of the people who are subject to the directions. We do not want a situation in which they genuinely do not know what they are expected to do and what they are not allowed to do. I am also concerned about what would happen if it came to the courts. I suspect that someone who had been given an oral direction without any record would come back three months later and simply say, “It wasn’t me.” It would be extremely hard to show that that person was given the direction. As I have said, most of this can be dealt with in the running of the system. look forward to hearing from the Minister.

James Brokenshire (Conservative, Old Bexley and Sidcup)

There are a couple of things to consider: the interpretative points and the practical issues. It is worth my highlighting what triggers the offence. Clause 141(8) states:

“A person who fails without reasonable excuse to comply with a direction under subsection (1) commits an offence”.

That is the point at which the court becomes engaged. The direction is given under clause 142, and it is only when that direction is breached that it becomes a criminal offence, and it is for the courts to determine whether an offence has taken place. It is important to draw that point to the Committee’s attention, such that if someone did not appreciate the duration of the direction, or if they had not been properly informed of it, they might be able to argue, “It was a reasonable excuse, because I was not properly told of the duration of the direction that I was supposed to comply with.”

These provisions are intended to work together. If a failure to adhere to a direction were to go to court, it would need to be shown on a criminal standard that someone had failed without reasonable excuse to comply with the relevant direction. There are evidential issues to consider. A police officer may well be able to record in his or her notebook what was said, and that may be evidentially sufficient, but we are seeking to provide further guidance to sit alongside the Bill to address the practical issues that may arise in those circumstances.

Vernon Coaker (Labour, Gedling)

Will the guidance be statutory, or will it just be some notes that sit alongside the Bill?

James Brokenshire (Conservative, Old Bexley and Sidcup)

It is intended to be non-statutory guidance, because it deals with the very practical relationship between Westminster city council, the Greater London authority and the Metropolitan police. It is intended to be helpful, rather than sort of statutory code, which may be more problematic, because people would begin to interpret it. It will be more beneficial to those involved, given that we are talking about practical circumstances, to have that in the form of non-statutory guidance.

Subsections (1) and (2) provide that a direction to stop a prohibited activity may include that a requirement that a person

“does not start doing that activity again”.

The direction continues in force for a period of time

“specified by the constable or authorised officer giving the direction”.

Where a period is not specified, subsection (2) provides that the direction may remain in force for up to 90 days from the date of the direction being given. We consider that it is reasonable to have a limit requiring the authorised officer or constable to renew the direction every three months. That is consistent with other areas of law that have direction powers.

This measure has not just been created for the Bill, and it has parallels with directions to leave land under section 69 of the Criminal Justice and Public Order Act 1994, for example. Without a limit, it would be unclear to the person directed not to start a prohibited activity at what point a direction ceased to apply. We therefore think that 90 days strikes the right balance.

Clause 142 also provides for directions to be given orally, either to

“a person individually or to two or more persons together”.

That is to provide flexibility for constables and authorised officers and to not restrict them to giving written directions in every case. We anticipate a constable or authorised officer giving a direction orally in a scenario where a person was unaware that they were doing a prohibited activity and then complied with a direction to stop doing it without further ado. Where a direction is given that is to remain in force for a longer period of time, we would expect the constable or authorised officer to provide it in writing to that person.

Clause 142 also sets out the limit on a direction that can be given to a person to cease operating or not to start operating any amplified noise equipment. The condition under subsection (5) is that the person is operating equipment, or is about to do so, in such a way as to produce sound that others in, or in the vicinity of, the controlled area of Parliament square can, or are likely to be able to, hear. The purpose of the measure is to ensure that a person is not directed to stop using some other device in the controlled area that is unlikely to be heard by others. I appreciate what the hon. Member for Gedling has said about that being obvious, but as he well knows, in this arena, the things that we think are obvious may not be, so there is a danger of leaving matters open to interpretation.

Again, the point is to road-test the measure to check out all the possible permutations that may apply in such circumstances. We do, however, want a constable or authorised officer to be able to direct a person who uses a loud radio on Parliament square to the disturbance of others to stop doing so.

Vernon Coaker (Labour, Gedling)

I thought that we were talking about amplified equipment; does the Minister mean an ordinary, loud radio?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I repeat that some equipment may be very large and very loud, which might be construed as amplification. We seek to cover off such interpretations.

Vernon Coaker (Labour, Gedling)

The powers under the clause relate to amplified noise equipment, not to a big radio that is loud.

James Brokenshire (Conservative, Old Bexley and Sidcup)

That can be noise amplification. I appreciate the hon. Gentleman is probing the issue, but we are seeking to ensure that the powers are effective, and we want to cover off the examples that he highlighted and which demonstrate how such powers can be tested.

As we have said all along, the Government are concerned about those members of the public who want to enjoy Parliament Square gardens peacefully; who wish to demonstrate or protest, whether or not they are using a loudhailer; or who wish to go about their lawful business without disturbance, including Members of Parliament. We have considered the provisions closely and carefully, and we think that they strike the right balance.

Julian Huppert (Liberal Democrat, Cambridge)

Will the Minister clarify a couple of points? He has discussed renewing the 90-day period, but I cannot see a provision for doing so unless somebody tries to break the rules again. If no information is given and a shorter time than 90 days is allowed, will he also consider the maximum of 90 days still being available for written options?

James Brokenshire (Conservative, Old Bexley and Sidcup)

We need to be careful about prescribing measures too closely in statute. My hon. Friend highlighted the issue of whether we could seek a further 90 days for a direction. Clause 141 refers to constables or authorised officers who have

“reasonable grounds for believing that a person is…about to do”

something. If they have such a belief, they will be able to provide a further direction. They might be dealing with someone about whom they have reasonable belief because of their behaviour pattern, and they will be able to issue a further direction in such circumstances. With that assurance, I hope that hon. Members will accept the clause.

Clause 143

Vernon Coaker (Labour, Gedling)

As we have said all along, we support the repeal of SOCPA and we are simply trying to ensure that the Government’s provisions are workable. Some of these issues will be discussed again on Report and beyond.

May I ask the Minister a couple of points about the clause? First, subsection (2) mentions

“any land outside of the controlled area of Parliament Square”.

Does that literally refer to anywhere in the country? Secondly, he will know that subsection (4) is controversial. We had a long debate about the use of reasonable force this morning, so I do not want to go over that again.

The Minister will know that Assistant Commissioner Owens, in the evidence that she gave to the Committee and in further evidence that she has submitted, raised concerns about extending the law. She made a point that I do not properly understand—I wonder whether the Minister might be able to respond to it or obtain some details—and said:

“The MPS foresee that the use of powers under this section will be subject to legal challenge (e.g. under s59 Criminal Justice and Police Act 2001).”

Will the Minister explain that? Clause 143 (6) states that any

“item may be returned to any other person appearing to have rights in the property”.

A property that has been seized can be returned to someone who comes forward to claim it, because they appear to have rights. If I may say so, and I am no expert on this, that that needs to be looked at, because a provision for someone coming forward and “appearing to have rights” does not have the strength that we would all want it to have. The police have stated:

“Clause 143(6) fails to address the position where the name and address are known but they are refusing or are unable to accept delivery of the property.”

What comments does the Minister have about those points on the clause?

James Brokenshire (Conservative, Old Bexley and Sidcup)

Subsection (2) states:

“A constable may seize and retain a prohibited item that is on any land outside of the controlled area of Parliament Square if it appears to the constable that the item has been used in connection with the commission of an offence”.

We have not sought to delineate the area, but are seeking to satisfy the requirement that it would need to be shown that the item had been used in connection with an offence, which will be a matter of evidence and proof. The hon. Member for Gedling said that that might be anywhere in the country, but I suggest that if that area is not proximate or if there is no other evidence suggesting otherwise, it would be hard to make use of subsection (2), although I hear his point.

On the hon. Gentleman’s more general points about subsection (6) and the return of property, guidance will be issued to sit alongside the Bill. I assure him that we are continuing to discuss the issues and provisions with the Metropolitan police, Westminster city council and the GLA to ensure that those concerns are positively addressed. I sought to do so in my most recent meeting with Westminster city council, and through my contact with the Metropolitan police, and I very much seek to continue that engagement.

The hon. Gentleman raised section 59 of the Criminal Justice and Police Act 2001, and the reference in evidence submitted to the Committee to a provision about giving back seized property. Perhaps Lynne Owens was trying to draw parallels with the Bill. Clearly, we want to learn from past experience, and we expect the provisions to be challenged, as I have said, as has consistently been the case over Parliament square. I can assure the hon. Gentleman that we will continue to have a dialogue with the police and other agencies to ensure that if there are points that have not been addressed fully or need to be clarified, they will be dealt with either in guidance or in other appropriate ways. We do not have a closed mind on the matter. We want to learn from the experience and we are certainly continuing to listen.

Clause 144

Vernon Coaker (Labour, Gedling)

I should like to reiterate a number of points that the Metropolitan Police Service has made on the clause, and mention an issue that I am concerned about, which I will ask the Minister to comment on.

Assistant Commissioner Lynne Owens made the following point:

“The Bill provides for a court making an order prohibiting a person from entering or engaging in an activity in Parliament Square…such measures result in supporters or sympathisers taking the place of the person subject to such an order”.

In other words, we get a rotating protest, with people just moving around. She says:

“It is not clear what the consequences of breaching such a court order would be, or how the matter would be brought back before the court for enforcement.”

I would like the Minister’s comments on that.

I am concerned about subsection (2), which says:

“An order under subsection (1)(b) may (in particular)”—

this is emphasised—

“require P”,

the convicted person,

“not to enter the controlled area of Parliament Square for such period as may be specified in the order.”

How long might that period be? Presumably “the order” is that of the court, but do the courts have any general guidance on the sorts of periods of time that might be specified in the order? We are giving the court quite a serious power. We are effectively allowing it to exclude an individual from an area of protest for quite a significant period. It is not that they cannot sleep there or be there permanently; we are excluding them from an area. That is almost like a curfew.

Michael Ellis (Conservative, Northampton North)

Is it not more like an injunction, although the order is more difficult to obtain? Whereas an injunction in the civil courts can be obtained on the balance of probabilities—that is potentially what Westminster city council is trying to do—a court order would be imposed post-conviction, so a matter would have been proved beyond reasonable doubt before the order could apply. Is that not safer than a civil remedy?

Vernon Coaker (Labour, Gedling)

That is certainly true, but the point to which I am drawing the Committee’s attention is that we are extending the power of the court to apply to the policing of a protest outside Parliament. The hon. Gentleman is obviously correct; he will know better than I do that he is correct. I am asking whether the response is proportionate. I know that the argument will be, “Well, it’s a matter for the court; the court will determine whether it is proportionate on the basis of the evidence” and so on, but the courts interpret and use the powers that we give them. We are giving them the power to prohibit someone, for an unspecified period, from going to a part of the country, namely Parliament square, to protest. That is quite a serious position.

The hon. Member for Cambridge and his colleagues have talked long and hard about the Protection of Freedoms Bill that was published last Friday. However, tucked away within the Policing Reform and Social Responsibility Bill, there are certain things that run a little counter to some of the measures in the Protection of Freedoms Bill. Extending the power of a court to operate an exclusion zone in a protest is a significant extension of power, and that is what subsection (2) will lead to. I would be interested in the Minister’s comments on those issues.

James Brokenshire (Conservative, Old Bexley and Sidcup)

It is worth expressing how we would get to the point where subsection (2) would apply. A direction would have been given and ignored. The matter would then come to court, and the court would have to determine a proportionate sanction.

One thing that we have learned over the past few years, during which the previous legislation was tested time and again, is how to provide a form of remedy that can address some of the relevant problems. You could just levy a fine, but if someone constantly comes back, it is right that there should be a sanction or order, limited to the very small area of land that we are talking about—the gardens and the footways around it. It would not prevent someone going to other areas around Parliament, if they sought to protest, but when there is a repeated breach of directions, and a person almost seeks to ignore the law, there must be consequences. We are not talking about some sort of summary power; it is for the courts to determine what is appropriate in clause 144(1)(b), which is why it is framed as it is.

I emphasise again that the provisions seek not to prevent protest, but to prevent someone continuing to carry out activities that are prohibited under clause 141. That is the intent behind the order-making power in clause 144(1)(b)—to provide that preventive relief, given that, sadly, experience indicates that people will try time and again to breach the terms of clause 141. We think it is appropriate for the court to have that power, when someone has been convicted—where something has been proved to the criminal standard, to mention the issues that have been highlighted—and there has been a breach of the relevant provisions. We think it is appropriate to maintain the provision, with those safeguards, for the purpose of preventing repetitive breach of clause 141.

Clause 145

Vernon Coaker (Labour, Gedling)

I would like some clarification. I have been surprised by some of the comments that have been made, but I was absolutely gobsmacked when the Minister said that a loud radio could be stopped from being used in Parliament square. Is the clause titled correctly? The title says “Authorisation for operation of amplified noise equipment”, but we have gone into other areas; the noise need not be amplified—it can come from a loud radio. If the Minister is saying that a loud radio could be stopped from being used in Parliament square, can someone apply for authorisation for that loud radio? Then you are into the question: what is a loud radio? That is about whether anybody else can hear it, which seems to me to be absurd—there is not much point in having a radio if you cannot hear it. With all due respect for the Minister’s competence, I do not think that the loud radio is the best example he has ever used.

More importantly, 21 days are required to apply for an authorisation, and that is too long. In other words, if you want to use a loudhailer or something at a demonstration, you have to make an application three weeks beforehand. It is too long a period of time. It interferes with people’s rights, and I think that the Minister has gone too far. To make sense of the legislation, there will need to be an authorisation period, but 21 days is too long. It means that somebody who decides spontaneously, in response to something that is occurring, to organise an event in a way that all of us would say was reasonable has to give three weeks’ notice. Sometimes things happen more quickly than that. What the right period should be—14 days?—I do not know, but 21 days is too long.

The permission can be withdrawn or varied at any time. Does that mean that once a demonstration has started and a loudhailer is being used, the authorisation can be withdrawn, even though it has already been authorised? Authorisation may have been given, but if it can be varied or withdrawn at any time, can the police or local authority decide to stop the use of a loudhailer, if they do not like it? Or is it the case that once authorisation has been granted and a loudhailer is being used during a demonstration, it can carry on being used? I would be grateful for the Minister’s response.

Julian Huppert (Liberal Democrat, Cambridge)

May I ask about the process for withdrawal of such an authority? I assume that it is clear, but it would be helpful to have the Minister clarify that responsible authorities should give as much notice as possible in such cases, and should give reasons wherever possible if they need to withdraw or vary an authorisation. I would be grateful if the Minister could confirm that that is what he expects. What we clearly do not want is authorities behaving in a way that is calculated to frustrate people by waiting as long as possible and then being rather unclear about their motivations.

James Brokenshire (Conservative, Old Bexley and Sidcup)

May I first address the point, highlighted by the hon. Member for Gedling, about 21 days? There are a few issues here. First, we are talking about a very limited area in which the authorisation to use amplified noise equipment is needed. In other words, it is just the square and the surrounding footways. An authorisation scheme is there to protect competing interests in a limited space. That is an important point to start off with.

The more general point is that 21 days is a standard maximum period for local authority authorisations. Westminster currently considers many applications to use loudhailers in the current SOCPA-designated area around Parliament, which is actually a much larger area than the proposed controlled area. In determining those applications, the responsible authority may need to consult others, which can take time, and that is why we have built in the provision for 21 days. We think that that is reasonable in the context of other permissions; it is intended not to be overly restrictive or bureaucratic, but to provide a reasonable period in which such issues may be addressed.

On the issue of withdrawal or variation in subsections (7) and (8), subsection (8) relates to the point raised by my hon. Friend the Member for Cambridge; where there is any decision to withdraw an authorisation or vary a condition, notice would have to be given in writing. We would expect that to be reasonable notice—in other words, the decision should not be used as a means of trying to catch people out. That would not be an appropriate use of the powers. I hope that I have been able to give him some assurance, and I am minded to consider putting the issue in the guidance that we will publish alongside the Bill.

I hear the points that have been made. The provision is not intended to be bureaucratic or overly restrictive. I will further consider the point raised by both hon. Members about whether reasons for changes should be given, so that there will not be some sort of carte blanche, and what the relevant factors should be. I will certainly consider whether it is appropriate to set that out in the guidance. It is a fair point, and I will reflect on the points made by both hon. Members.

Vernon Coaker (Labour, Gedling)

It is helpful that the Minister has agreed to look at that point. That may help considerably with respect to the clause.

Clause 146

Steve McCabe (Labour, Birmingham, Selly Oak)

I beg to move amendment 627, in clause 146, page 98, line 40, at end insert—

The purpose of the amendment is to try to clarify what will happen when there are two authorities representing different parts of the area that we are trying to protect. History shows that it has been virtually impossible to clear protestors from the square or the pavement because different authorities have had different responsibilities and do not always seem to have been too keen to co-operate in a fashion that most of us might have thought reasonable.

I am not desperate to see the amendment included in the Bill, but I am desperate for authorities to maximise co-operation, and to ensure that we do not fall foul of the previous argument that enables one party to refuse to take any action by saying that responsibility lies with the other party. That ping-pong has been happening for the past few years. The amendment would simply give the respective authorities the power to enter into an agreement that says that one could act on behalf of the other if they were both seeking to reach the same end point. That seems sensible. As I said, I am not desperate to see this particular amendment incorporated, but I am anxious to ensure that we finally address a problem with which the Minister will be extremely familiar. The amendment is designed to be helpful in trying to raise the issue of the co-operation that will be required to ensure that, with the minimum of fuss, powers can be used by either authority, and we do not end up with unnecessary legal delays and wrangles.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I thank the hon. Gentleman for the manner in which he introduced the amendment. I certainly recognise that it would be clearer for everyone if there were one responsible authority rather than two enforcing the provisions in part 3. Agreement between the Greater London authority and Westminster city council would, as he says, remove some of the practical difficulties for enforcement authorities enforcing different controls in adjacent areas. I accept that the situation is a little odd, with part of Parliament square gardens and the footway to the back of the square being within the GLA and the footway at the front being part of Westminster city council. It simply reflects the position that we are in.

The provisions in clause 146 and in part 3 as a whole are drafted to reflect the current ownership arrangements pertaining to Parliament square gardens and the adjoining pavements. It is important that there is clarity for the public about who is responsible for issuing authorisations for amplified noise equipment, and I am not convinced that the proposed amendment provides that clarity. I respect what the hon. Gentleman has said about the issue that he raises in his amendment and about the amendment not having been finessed into a final draft, and I fully accept that.

However, should the Greater London authority and Westminster city council reach an agreement on who should be the responsible authority for the controlled area, the Government would be happy to consider introducing an amendment to reflect such an agreement. We will be working on a memorandum of understanding in relation to the utilisation of the powers under the provisions. In the light of those comments, I hope that the hon. Gentleman will be minded to withdraw his amendment.

Vernon Coaker (Labour, Gedling)

That is a helpful response to the amendment introduced by my hon. Friend the Member for Birmingham, Selly Oak. May I make sure that I am clear on what the Minister has just said? If Westminster city council and the Greater London authority come forward with an agreement on the responsible authority, will the Minister accept an amendment on that? Will that encompass the authorised officer part of the arrangements? I was about to raise that issue in the clause stand part debate, but may I draw it to his attention now?

James Brokenshire (Conservative, Old Bexley and Sidcup)

Yes.

Vernon Coaker (Labour, Gedling)

That is very helpful. The ridiculous situation might arise in which someone had a loud radio on the pavement, but it could not be confiscated because the authorised officer was responsible for the grassed area, only 1 foot away, and was the GLA-authorised officer, not the responsible Westminster city council-authorised officer. The Minister should encourage the Greater London authority and Westminster city council to reach an arrangement so that the amendment that he might table is made a reality. Otherwise, someone 2 feet away would not be able to take action because they were not the responsible officer for that bit. Will the Minister consider whether the two bodies will come forward with such an agreement?

James Brokenshire (Conservative, Old Bexley and Sidcup)

That is ultimately a matter for Westminster city council and the GLA, but clearly discussions will continue. For the reasons that I have outlined, having one united authorised body in such circumstances would assist matters. However, that is clearly a matter for them, rather than for me.

Steve McCabe (Labour, Birmingham, Selly Oak)

In view of the Minister’s comments, I shall not press the amendment to a Division. Like my hon. Friend the Member for Gedling, I believe that it would be extremely helpful if the two parties could be encouraged to come to an agreement, and if the Minister could reflect on the matter further, with a view to amending the Bill later. I am happy to accept what he has to say, and I beg to ask leave to withdraw the amendment.

Clause 148

Vernon Coaker (Labour, Gedling)

This is a really interesting clause. I am always suspicious of miscellaneous provisions, as everyone should be. Let us suppose that the hon. Member for Gedling, and others from Westminster city council and the GLA, say that there might be a problem if people cross the road and pitch their tents. They ask the Government, who are flushed with enthusiasm about their new seizure and forfeiture powers in the preceding provisions, what they will do about it. The Government will say, “Don’t worry, the powers will apply to the byelaws of the GLA and Westminster city council and they will be able to use forfeiture and other powers to enforce them. We will give them some teeth.” That would probably be an acceptable thing to do. I am sure that the hon. Member for Cambridge has spotted this.

I then read the provisions again and realised why the Government were so flushed and excited by their extension of powers. Such powers will not apply only to Westminster city council and the GLA, but to all local authorities in England and Wales. I did not think that that could be right. Surely we cannot have a massive extension of seizure and forfeiture powers in respect of byelaws under the heading of “miscellaneous”.

I checked things out at the House of Commons Library because I was not sure that I could be right. I was told that it was right, and that clause 148 adds a new subsection to section 237 of the Local Government Act 1972 enabling local authorities to attach powers of seizure and retention of any property in connection with a breach of a byelaw relating to the prevention and suppression of nuisance. That is an absolutely incredible extension of power. I know that the Protection of Freedoms Bill has had its First Reading. The Ministry of Justice made this comment:

“Clause 148 creates a new power for byelaws to include provision for the seizure and retention of property in connection with the contravention of a byelaw and the forfeiture of that property on a person’s conviction of an offence or contravention of the byelaw. This is an extremely broad power; byelaws by their nature cover relatively minor transgressions and the exercise of coercive powers of seizure, retention or forfeiture of property will therefore frequently be disproportionate. If the government contend that this power is necessary to promote compliance with byelaws we believe that they should explain this and give examples of how this power might be used. We further believe that statutory criteria should limit the exercise of the power and structure judicial discretion to ensure proportionality.”

I will leave that on the table, or suggest that other hon. Members do what I did—look at some byelaws. I wanted Committee members to understand the consequences of what they are passing. These are the byelaws that I came across; I have not selected them on purpose. Warwick district council has “Byelaws for good rule and government and for the prevention of nuisances”. A “musical or noisy instrument” cannot be played near a church. Presumably, if someone contravenes that near a church, the musical instrument can be confiscated. There are byelaws on “Mud, etc, falling from vehicles to the highway”. On dog fouling, the byelaw states:

“No person in charge of a dog shall allow the dog to foul a footway or grass verge”.

We all agree with that, but the power under this clause will allow the dog to be confiscated.

Julian Huppert (Liberal Democrat, Cambridge)

I am sorry to spoil the hon. Gentleman’s fun on some of this. I appreciate his concern and how he has expressed it, but he has misinterpreted the clause. It does not say that all existing byelaws have the provisions retrospectively added into them, which I agree would be a rather unusual power. As far as I can tell, it means that byelaws can choose to include this provision. I would be surprised if any council decided to have a byelaw that said that the dog could be confiscated, and I agree that that should be struck down and removed.

Vernon Coaker (Labour, Gedling)

The hon. Gentleman may be right, but he is extending the power of seizure and of forfeiture to every local authority in this country. The hon. Gentleman says that they may decide not to use it. I am saying that there is an enabling power tucked away in the Bill. These are the sorts of things that byelaws cover.

Some local authority areas in this country will choose to use these powers. Justice has pointed out the disproportionality of that. I am pointing out that under a clause, tucked away in the miscellaneous provisions at the end of the Bill, is an enabling power, which allows a big increase in the powers available to local authorities to enforce byelaws. That is a big deal.

Steve McCabe (Labour, Birmingham, Selly Oak)

Does my hon. Friend share my view that the faith of the hon. Member for Cambridge in local authorities may be misplaced? Perhaps that is why his party supports the Protection of Freedoms Bill, and has been so vehement in its opposition to the Regulation of Investigatory Powers Act 2000—because of how local authorities have abused and misused powers that no one anticipated they would have.

Vernon Coaker (Labour, Gedling)

That is a very good point, which speaks for itself. We will hear what the hon. Member for Cambridge has to say about it. There are lists and lists of things that are available to local authorities. It may be that a local authority has a problem with the use of motorcycles and other vehicles. Sedgemoor district council has that problem. It has a byelaw, which states:

“These byelaws apply throughout the District of Sedgemoor, unless otherwise indicated.”

On the use of motorcycles and other vehicles, it states:

“‘public pleasure ground’ includes any pleasure ground or open space to which the Council’s pleasure ground byelaws apply, as indicated in the schedule to such byelaws…No person shall ride, drive or operate any motor bicycle or other mechanically propelled vehicle not intended or adapted for use on roads”,

and so on. It gives example after example of byelaws.

I understand the legislation, but it is a weak defence to say that the measure is not retrospective. It is an enabling power that means that once the Bill is enacted, every single local authority in this country can say, “We’ve got a problem. My byelaws are such that under section 139 we can introduce a power to seize that property, because we believe it is causing a nuisance.” That may be the will of Parliament. Other hon. Members may be more assiduous than I am, because I did not spot the problem until a couple of days ago—but there it was, tucked away. I thought, “What on earth does this mean?” It is amazing what we find out when we ask.

In addition, I am not clear who can enforce the powers. We have had a long debate about “authorised persons”. The enforcement concerns byelaws, so does that have to be carried out by a warranted police officer? If a council chooses to use the powers and the enforcement is carried out by one of its authorised officers, such an officer—not a warranted police officer—will have the power to seize motorbikes, dogs, musical equipment, or anything in the prevention of nuisance. I cannot find out whether in such circumstances an authorised officer of the council would be allowed to use reasonable force. I think that the answer will be, “Yes, authorised officers can implement those powers; but no, they cannot use reasonable force.” The Minister will confirm whether that is so.

The point is that, as an enabling power, the provision is a significant extension. In defence of the hon. Member for Cambridge, I should say that it is not retrospective; it is to do with anybody who chooses to use it in future. It is a dramatic change.

Mark Tami (Labour, Alyn and Deeside)

Does my hon. Friend agree that it is odd that the Government should be introducing the Protection of Freedoms Bill, which seeks to take powers away from local authorities, while giving local authorities a massive new power under this measure?

Vernon Coaker (Labour, Gedling)

The provision represents a significant extension of power. The Government cannot have it both ways—they say, “We are going to take away all these nasty, intrusive powers that the state makes available to local authorities”, which, as my hon. Friend the Member for Birmingham, Selly Oak has said, they sometimes misuse. The Government give authorities enabling powers with one hand and take them away with the other, because they do not trust them to use them properly. It is all incoherent.

Chris Ruane (Labour, Vale of Clwyd)

Are we on a slippery slope towards local authority sponsored and sanctioned violence?

Vernon Coaker (Labour, Gedling)

Perhaps the hon. Member for Cambridge can answer that. I shall leave it there, but it is worth hon. Members’ going through the clause to see what it is about.

My final point concerns a power that will cause a real problem, but which local authorities will be greatly tempted to use. If there is a byelaw about skateboarding causing a problem, local authorities will now be told, “Your authorised officers can confiscate the skateboards.”

Michael Ellis (Conservative, Northampton North)

So what?

Vernon Coaker (Labour, Gedling)

The hon. Gentleman may be right to say, “So what?” Perhaps every local authority’s authorised officers should be able to confiscate music equipment, skateboards and dogs that are causing a problem—[ Interruption. ] The byelaws include, “dogs causing a nuisance”. We are giving power to local authorities to confiscate items of property that are causing a problem. If the dog is causing a problem, presumably you can confiscate the dog. Whether that is right or wrong—some people say it is right—all I am saying is that it is a big extension of power to local authorities. I am highlighting it to the Committee so that we can make a judgment as to whether we think it is proportionate or not.

Steve McCabe (Labour, Birmingham, Selly Oak)

I think that my hon. Friend has stumbled on a simple element of coalition policy. Is it not the case that this is a coalition Government who believe in confiscation as the route to resolving some social difficulties? Those proposals are going to be part of the new antisocial behaviour proposals, so all we are witnessing is an earlier version of the same confiscation strategy.

Christopher Chope (Conservative, Christchurch)

Order. That is long enough, I think.

Vernon Coaker (Labour, Gedling)

That is a good point; I think the proposals do carry on that policy. I will finish there, Mr Chope. [Interruption.] The Government Whip shakes his head.

I say again that this is a significant extension of power to local authorities, and to authorised officers of local authorities, in implementing and enforcing byelaws in their areas. That may well be what this Committee thinks is right; it may well be what Parliament considers is right, but we need to have the debate in order to decide whether it is proportionate and reasonable for that extension of powers to be made available to local authorities, should they choose to use it.

James Brokenshire (Conservative, Old Bexley and Sidcup)

It has been an interesting and illuminating debate. I will make a few general points, go back to the specifics and come back to some more general points.

It is interesting that the hon. Member for Gedling’s comments have again highlighted this fear of localism—the provisions are not, apparently, about empowering local communities to take responsibility for nuisance and problems in their areas; the hon. Gentleman does not want that. There is the inconsistency as well. His Government were very centralist and very restrictive, and sought to take a very rigid approach. I am still not certain whether he is reneging on that; perhaps he has seen the light. His approach is very interesting.

Julian Huppert (Liberal Democrat, Cambridge)

Does the Minister agree that this is about giving power to local councils and local people to make decisions? Under the previous Government, we had to wait several years for the approval of a byelaw to allow control of parking on grass verges in Cambridge. We had been campaigning for that for many years.

James Brokenshire (Conservative, Old Bexley and Sidcup)

There is a clear role and responsibility for local authorities to deal with nuisance and problems in their areas. That is a central tenet that we should be looking at in terms of the active community.

I want to give further context on why this provision has direct relevance to Parliament square and to come back on a point that I made to the hon. Member for Gedling this morning about displacement issues. The power of seizure is important for Westminster city council and the Greater London authority in relation to some other areas surrounding Parliament square. Having a right of seizure is important for new byelaws, or amended byelaws that would need to come forward, to ensure that protection. If there is a displacement as a consequence of the provisions in the Bill, clause 148 will be absolutely instrumental in guiding that, and ensuring that the provisions are effective and that the provisions in the Bill and the byelaws interlock.

To reiterate, I should say that the provision relates to new byelaws and amended byelaws. In that context, there is clear oversight over the establishment of any new byelaw. It is something that takes place over many months; there is wide consultation and the council has to consult with and seek authorisation from the Department of Communities and Local Government. There are checks and balances, and human rights issues have to be properly considered at each stage of the process.

The clause is about localism, giving discretion back to communities and sorting out problems in their areas. The approach of the hon. Member for Gedling is illuminating in its inconsistency, but we shall see. We will no doubt be tested on the clause; I hope that he will back localism, but I suspect that he will not.

Schedule 16

Julian Huppert (Liberal Democrat, Cambridge)

I beg to move amendment 3, in schedule 16, page 175, line 22, leave out ‘two’ and insert ‘four’.

Christopher Chope (Conservative, Christchurch)

With this it will be convenient to discuss the following: amendment 4, in schedule 16, page 175, line 29, at end add

Amendment 5, in schedule 16, page 175, line 29, at end insert—

Amendment 6, in schedule 16, page 175, line 29, at end insert—

Amendment 615, in schedule 16, page 175, line 29, at end insert—

Julian Huppert (Liberal Democrat, Cambridge)

We move on to the interesting topic of how one controls drugs that are susceptible to misuse, and we will come on to discuss scientific evidence and the role of the Advisory Council on the Misuse of Drugs. As Members can tell from the small numbers, the amendments were tabled well in advance. In the intervening time, I have had several discussions with the Minister, for which I thank him, and we have seen the publication of the draft protocol. I am pleased to see that there is good progress in the protocol, which will very much help on the concerns that have been raised. Amendment 3 need not detain us, as it is a tidying-up amendment, so I will start by discussing amendments 5 and 6.

Amendment 5 relates to the idea that we will have temporary orders, and we all accept that there is an advantage in having a temporary system. Sometimes there will simply not be sufficient scientific evidence to make a permanent decision, but there will be a sense that action needs to be taken on the basis of preliminary data, and I understand that argument. Amendment 5 would require the Secretary of State to consult the ACMD before deciding whether to make a temporary class drug order. I was extremely concerned about that.

That concern was also raised by Professor Les Iversen in his evidence. In answer to Question 164 he said,

“I would have liked to see that written into the statutory requirements; it is not at the moment.”––[Official Report, Police Reform and Social Responsibility Public Bill Committee, 20 January 2011; c. 95, Q164.]

In reply to Question 161, he similarly said that

“we hope that Ministers would consult us beforehand, but that has not been written into the Act. I am not quite sure why, but it has not been.”––[Official Report, Police Reform and Social Responsibility Public Bill Committee, 20 January 2011; c. 93-94, Q161.]

That was the initial setting for my concern, because it would be worrying if Ministers had the freedom to make those decisions as a quick, gut-reaction response to headlines in particular newspapers, such as the Daily Mail. Over many decades, we have seen more than enough such gut reactions that have not been evidence-based or scientifically based.

Having said that, I am delighted to see the draft protocol. I realise that members of the Committee have seen it, but members of the public have not, so they will have to accept some of what we say as read. I have received clarification that it is at least possible to quote from the draft protocol in our discussion, and I am sure that Members will correct me if I stray beyond that. There is a section in the protocol that I find encouraging. It states:

“Advice from the ACMD…is key. It is therefore the full intention of the Government to consult and be advised by the ACMD before a temporary class drug order and make associated amendments to the misuse of drugs regulations.”

I find what the Government are trying to do encouraging, and I take great comfort in that section. However, I would be grateful for the Minister’s comments on why he decided to include it in the memorandum but not in the Bill. Personally, I agree with Les Iversen that it would be preferable to see it in the Bill, and I look forward to the Minister’s comments. In any case, I am grateful to see it in the memorandum.

Steve McCabe (Labour, Birmingham, Selly Oak)

On a simple point of clarification regarding amendment 4, I wonder why the hon. Gentleman is not satisfied that the Minister could make a decision based on the fact that the

“misuse is having, or is capable of having, harmful effects”.

The amendment would add the words,

“sufficient to constitute a social problem”.

Will he explain the thinking behind the amendment?

Julian Huppert (Liberal Democrat, Cambridge)

I will be delighted to. I should have clarified this: the logic of the matter meant it made more sense to speak to the amendments in a different order. I will explain exactly where that wording came from and why it is there.

I am encouraged about the issue addressed in amendment 5. Amendment 6 would require the Secretary of State, if the situation was so serious that she was going to make a temporary order, to ask the ACMD to start doing the longer piece of work that would be required to establish what the sensible rules ought to be and to take scientific and sociological advice to work out whether a drug should be moved on. I do not think any of us would want to see substances sitting on the temporary list for long—it is temporary, and we should either move things off it if it turns out that there are no problems, or move them on to become class A, B or C.

Again, I am encouraged by the protocol, which responds to the problem addressed by the amendment. It states:

“In circumstances where a ‘temporary class drug order’ is laid by the Home Secretary, the Home Secretary will make a formal referral to the ACMD to undertake with immediate effect, a full assessment pursuant under section1(2) of the 1971 Act.”

In both this and the previous case, it goes on to give more detail on how it might work. I am therefore delighted to see the issue of amendment 6 dealt with in the memorandum. Again, I would be grateful if the Minister answered why it is better for it to be in the memorandum but not in the Bill. I am sure that he will be able to comment on that.

The Minister has said that the memorandum will be made available to the public and laid in the Libraries of both Houses, which would be helpful. While I have no concerns about this particular Minister, the question is about what happens if a hypothetical future Minister who is not as enlightened as the current one comes along. How can we be sure that they will not change the memorandum in a way that causes the statutory protections that we would like to see to vanish? I realise that it is difficult for the Minister to conceive of future Ministers who would behave in such an abhorrent way, but I am sure that he will able to comment on that.

I am delighted that amendment 4 was picked up earlier. It is a reference to the original phraseology in the 1971 Act. Section 1 of that Act, which set up the ACMD, states:

“It shall be the duty of the advisory council to keep under review the situation in the United Kingdom with respect to drugs which are being or appear to them likely to be misused and of which the misuse is having or appears to them capable of having harmful effects sufficient to constitute a social problem”.

The extra words proposed in amendment 4 are in the original Act, and they apply to drugs in the way that the Act was intended. Interestingly, the phraseology in the Bill is almost exactly the same—the punctuation is slightly different; I assume that styles have evolved over the past few decades—but it leaves out the issue of causing a social problem. I am intrigued as to whether this is a serious issue. Is there an understanding of what is meant by “causing a social problem”? The idea that something could be used to cause harm applies to a huge range of things that we see every day. The question is, what is the scale of that harm? Is it sufficiently big that it creates a problem wider than just basic harm? There are many things that we find in everyday use that can be misused and cause harm. [Interruption.] Coffee is the suggestion from behind me. One can explore various other options.

I was intrigued whether the matter had some meaning, so I asked question 175 in our evidence session with Les Iversen. I will read out the exact words, as it makes more sense in context:

“Dr Huppert: And it has real meaning for you?

Clive Efford (Labour, Eltham)

I wish to speak to amendment 615, which is a probing amendment. I do not need to repeat the pertinent points made by the hon. Member for Cambridge, who quoted Professor Iversen’s evidence to the Committee. The issue concerns whether the Home Office should consult the advisory council before making a temporary drug order, and whether it should be given a similar status as a permanent drug order. I think the Home Office is required to consult the ACMD before making such an order. We have a statutory instrument before us tomorrow and the explanatory notes state that that is the case.

The measure would provide an important check and balance because, as has been alluded to, public campaigns can become very vocal. Pressure on politicians to respond to those can become very great, and therefore it is important that decisions are not made on the basis of what the latest red top is running a campaign on but on the scientific evidence. If the Government are required to take that scientific evidence before issuing a temporary drug order, an appropriate check and balance would be in place.

I also want to know whether it is the intention of the Government to seek the advice of the ACMD when making a temporary drug order, to assess the implications for its work load. That point was made by Professor Iversen in evidence to us. There should be some consultation about the implications for the ACMD and its capacity to carry out the work placed upon it, not only in relation to temporary drug orders but in relation to adding to its work load. There is, of course, the pressure of a time limit for a response, because the protocol sets out that there will be an agreed time limit between the chair and the Minister to set a time by which the ACMD should respond. Such matters are bound to have implications, so will the Minister say whether such an issue will be taken into consideration?

The hon. Member for Cambridge welcomed the agreements within the protocol but I seek clarification of one section of it. It states that, in those circumstances, the Home Secretary will consult before he makes his assessment, but then:

“In exceptional circumstances, for example, where there is a demonstrably urgent and substantive threat to public safety and/or health, Ministers will discuss the matter with the ACMD Chair before taking any action”.

What are the exceptional circumstances? Do they allude to the possibility that, outside the protocol, the Minister could act before seeking advice? The wording seems to be contradictory in that section. Is there an opportunity when the Government can act outside the protocol? I want some clarification on that point.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I thank the hon. Members for Cambridge and for Eltham for their contributions to our debate on the new temporary class drug orders. As they will appreciate, the new schedule is intended to provide further flexibility to respond to new psychoactive substances that might suddenly appear or become available, and the need for the Government in conjunction with the advice they receive to act swiftly when serious public health issues emerge. The lesson that we have learnt during the past 18 months to two years is that the ability to act swiftly, yes, proportionately and yes, reasonably is an important tool that we need to reserve to the Government to ensure that the supply of what are dangerous drugs can be acted on swiftly to protect the public—quite often young people—from harm.

The group of amendments would impose additional conditions that the Secretary of State must satisfy before making a temporary class drug order. Under the existing provisions in schedule 16, the Secretary of State must be satisfied, first, that the drug in question is not already a controlled drug and whether it is class A, B or C, and secondly, that it appears the drug is being or is likely to be misused and that misuse is having or is capable of having harmful effects.

The Committee might be aware that no such or similar conditions are placed on the Secretary of State before laying a draft Order in Council under section 2(5) of the 1971 Act to bring about the permanent control of a drug. The first amendment would extend the existing conditions so that the Secretary of State must also be satisfied that not only is the drugs misuse having or capable of having harmful effects, but the harmful effects are

“sufficient to constitute a social problem”,

as highlighted by the hon. Member for Cambridge. Just as the existing conditions are taken from the terms of reference of the ACMD under section 1(2) of the Misuse of Drugs Act 1971, so is the reference in the amendment to a social problem. The hon. Gentleman explained where the reference came from in that context.

In resisting the amendment, I want to remind the Committee of the underlying rationale for introducing temporary class drug orders. I shall then explain why it is not appropriate in such circumstances. The availability of the order is intended to enable us to take swift action to prevent harm. We are looking to restrict availability by enabling the police and other law enforcement agencies to take action against suppliers, minimise the opportunities for stockpiling and support a public health message. We know that some people equate legal with safe, sadly, and we have seen some issues and tragedies alongside that.

While we will continue to assess the new and emerging psychoactive substances on a case-by-case basis, it has become increasingly clear that, sadly, in many cases they are far from harmless and can have health risks similar to those linked to drugs, such as cocaine and amphetamine. The physical harms are likely to be evidenced by known pharmacology, as well as emerging evidence such as A and E admissions. “Social harms” remains a core element of the ACMD terms of reference, and an integral part of its advice following a full assessment of all the available evidence, often over a number of months, to inform a decision for permanent control under the 1971 Act.

In exercising the power to make temporary class drug orders, the Secretary of State mayhave evidence of “social harms” or be able to make reasonable inference from the properties of the drug in question and the experience of this new drug market. However, the view that we share with the ACMD is that harmful effects sufficient to constitute a social problem are not necessarily in evidence until some time after the first appearance of a drug. In his evidence to the Committee, Professor Iversen said that not only is a “social harm” hard to measure, but it is particularly so in a “short space of time”. However, while the drug remains freely available and could be doing untold harm, we do not intend to wait and see whether that is the case, in order to satisfy a condition of the nature proposed here. That would be a dereliction of the very duty we are seeking to bring to the fore.

In resisting the further amendments that require the Secretary of State to consult with—and in the case of the amendments tabled by Opposition Members, to seek the advice of—the ACMD before laying a temporary class drug order and to have referred to the ACMD for a full assessment of the drug’s harms in order to bring it under permanent control as a class A, B or C drug, I know that hon. Members have made reference to the working protocol that we have developed with the ACMD. I hope that the protocol has been helpful and informative to hon. Members as to how we would seek to operate the provisions of this part of the Bill in conjunction with the ACMD, as well as setting out the relationship as we see it between Government and the advisory council, building on the recommendations that we have received from the Omand Review.

The protocol makes it clear that the Government intend to consult and be advised by the ACMD before laying an order. The ACMD’s advice is likely to be key to enable the Secretary of State to satisfy the conditions about the harmfulness of a drug before invoking a temporary class drug order. The ACMD can also provide advice of its own volition, and based on the experience of the previous Administration in relation to mephedrone and synthetic cannabinoids, it is likely to. In such circumstances, any requirement to consult is redundant if the ACMD has brought the issue to Government in that way. The protocol will be a public document on which the Government should and will be held to account.

I will address the point about exceptional circumstances. It is hard for me to give specifics, but the protocol highlights the ability to consult the chair of the ACMD in exceptional circumstances—for example, if there is a sudden public health issue that we are picking up from A and E departments that many people are presenting with psychosis or other issues linked to drug harm, where it is possible to trace that there is a new psychoactive substance that may be causal, and a pattern of behaviour is being underlined very rapidly, with significant harms. In other words, it is not saying that we should not be seeking advice at all or that we should not consult the ACMD, but that we should be able to speak to the chair. The issue may be so serious, and the harms becoming evident so significant, that to wait for a full council meeting to be scheduled might be a danger to public health. That is why an exceptional process is important.

We are not saying that we would not want to seek advice as we have done in previous cases, but it is understood that there is a need in exceptional circumstances for Ministers to be able to act swiftly to provide protection, while discussing the matter with the ACMD chair, so that the chair is at least given the opportunity to take informal soundings from other council members. We have discussed that with the ACMD, and I attended its council meeting last Monday to talk about the protocol and to listen to the council’s points.

The hon. Member for Cambridge raised the issue of penalties and of any equation between a temporary class drug and a class B drug. We do not seek to suggest that any drug in the temporary class drug orders should be class B, and indeed it might be found that such a drug falls outside the categories altogether, because of evidence or information that comes to light on further analysis. The penalties have been aligned to class B and C penalties on indictment, because we want to send out a strong message to the public, the enforcement agencies and the judiciary that we do not consider the people dealing in these legal highs any less seriously than those dealing in illegal drugs. The measure will not provide a perverse incentive to traffickers to peddle drugs under temporary control, which might prove to be more harmful than those that are already subject to permanent control.

There was a broader point about why there are statutory consultations in the guidance but not in the Bill. There is a need to act swiftly, and if a consultation appeared in the Bill in a restricted way, a legal challenge could arise regarding the nature of that consultation. I appreciate the comments that have been made by members of the Committee and by Professor Iversen about the need for consultation with the ACMD, and I would like to consider whether the language could be framed in such a manner as to give comfort. As the memorandum clearly states, the Government’s intention is to consult and seek advice on the use of the temporary class drug orders in a way that is properly grounded in evidence. I hear the point that has been made by both the hon. Member for Cambridge and Professor Iversen about the fact that we have a good working protocol, but there is certainty and surety to be gained by virtue of putting something in statute. I will consider that further, and reflect on it, but on the basis of the comments that I have made I hope that the hon. Gentleman will withdraw his amendment.

Julian Huppert (Liberal Democrat, Cambridge)

I thank the Minister for his comments and for agreeing to look further at some of the issues, and I look forward to the outcome of his deliberations. I am delighted that we have a Government who want to take drug policy evidence seriously. That has shamefully been lacking for many decades, and I am glad to know that it will end.

I hope that the Minister will also look at the phraseology issue with the class B drugs. I absolutely take the point that it is not intended to say that such drugs are class B, but the question is about misinterpretation and the Daily Mail headlines when they are later re-categorised. Nevertheless, having heard many helpful comments from the Minister, I beg to ask leave to withdraw the amendment.

Clive Efford (Labour, Eltham)

I beg to move amendment 616, in schedule 16, page 176, line 5, after ‘revoke’, insert ‘or extend’.

Christopher Chope (Conservative, Christchurch)

With this it will be convenient to discuss amendment 617, in schedule 16, page 176, line 6, at end insert—

Clive Efford (Labour, Eltham)

These are brief, probing amendments that I do not intend to press to a vote. Amendment 616 is on the extension of an order. Has there been any discussion between the ACMD chair and the Minister about the possibility of having to extend a temporary drug order if the investigations cannot be completed in the agreed time scale? There does not seem to be any provision for that in the Bill. The Minister may say that the Government are confident that a year is ample time. In the evidence of Professor Iversen, there was a reference to the time scale for legislation being passed. He had been advised that it may take up to six months from a temporary order being invoked to the ACMD completing its investigations and legislation being passed. He went on to say that his experience was that legislation had been put in place on a much shorter time scale. He did not hold much with that extension. It is a probing amendment to find out whether there is any necessity in some form of backstop on the time scale and whether some flexibility is allowed. Professor Iversen said he hoped that the time scales would not be too prescriptive and that there would be some flexibility.

I welcome the commitment in the code of conduct to the Secretary of State not pre-judging these issues in advance of receiving advice from the ACMD. In the process by which the drug order is introduced, is there some restriction on the Government in responding to the ACMD if it says, “We think this is a drug that there should be a temporary drug order on”? How do the Government respond in terms of time on something raised by the ACMD? On amendment 617, I have one simple question: if an extension is requested by the ACMD, how will it be dealt with? Why have we settled on one year? What is the advice that has led the Government to decide that the temporary drug order should last a maximum of one year? Has there been some expert advice on that? What is the rationale behind that time scale?

James Brokenshire (Conservative, Old Bexley and Sidcup)

In answer to the hon. Gentleman’s last question, the 12-month period was selected following discussions with Professor Iversen and the ACMD on what would be a reasonable period to adopt to allow the breathing space to consider fully whether a temporary order should be made permanent. The clear message that I have telegraphed throughout the consideration of these provisions is that this temporary order should in no way be seen as a means of subverting the normal procedure for considering whether a drug’s classification should be permanent—in other words, the law under the Misuse of Drugs Act 1971. These provisions are specifically for dealing with the issues that we have outlined on newly emerging psychoactive substances that are appropriate to be treated in this manner. The normal course of action would be to seek the ACMD’s consideration of a new drug in the normal way, but with this power reserved to be able to address it. Ensuring that the 12 months are there gives the ACMD the scope and space to do that analysis and assessment on whether the temporary order should become permanent, to lessen some of the pressures that the hon. Gentleman mentioned in the previous debate.

The two amendments make provision for the Secretary of State to extend the temporary class drug order beyond its 12-month period, on the request of the ACMD. As the draft working protocol underlines, where a temporary class drug order is laid, the Home Secretary will make a formal referral to the ACMD to undertake, with immediate effect, a full assessment. We will agree a further timeline commensurate with enabling the Home Secretary to make a decision and, should it be considered appropriate, make a recommendation for permanent and full control to Parliament via the affirmative resolution procedure to approve a draft Order in Council under section 2(2) within 12 months of the temporary order coming into effect.

The ACMD will endeavour to provide its advice on permanent control within sufficient time to enable Parliament to introduce control, if appropriate, in the manner I have just alluded to. Indeed, the hon. Gentleman and I will, no doubt, be considering such an order tomorrow in such a way in a similar Committee Room to this. For our part, we will give due and proper consideration to any reasonable requests for additional research in order to inform the ACMD’s full assessment. We are discussing research and a number of other issues with the ACMD.

Our decision to adopt 12 months has been informed by a number of factors, including those I have already spoken about. First, the provision must be temporary, but sufficient to allow further and fuller consideration about a drug’s harm. Secondly, international models are generally based on a 12-month timeline with no obvious problems. Thirdly, the time frame within which the ACMD has previously provided advice to Government, more particularly relating to so called “legal highs”, from BZP to synthetic cannabinoids to mephedrone and naphyrone, has, to the great credit of the ACMD, generally been about six to nine months. We wanted to ensure that there was some flexibility beyond that—it would not have been right to have gone for the nine months—but keeping it to as fair a window as possible to allow the ACMD to do their work and to advise Government appropriately.

However, we acknowledge that in an exceptional situation, the advice relating to permanent control may not have been either received or actioned before the expiry of the 12-month period. In these circumstances, the Secretary of State may make a further temporary class drug order if the conditions in schedule 16 can still be satisfied. We are clear that this possibility is not a back-door route to permanent control. In keeping with this position, it remains incumbent on the Secretary of State to bring before Parliament a further order and to justify to Parliament the reasons for so doing.

The hon. Gentleman’s amendment seeks to empower the Secretary of State to grant an extension of a temporary class drug order. On the face of the amendment, it appears that the hon. Gentleman is suggesting that this should be an administrative action exercised by the Secretary of State without any reference to Parliament. I suspect that that may not be the intention and I note that this is a probing amendment to draw out the issues, but I suggest to the hon. Gentleman that such an approach is not in keeping with the recognised role of Parliament under the Misuse of Drugs Act 1971, more particularly when introducing, or, in this case, extending the term of, criminal offences.

The hon. Gentleman’s amendment also appears to promote the advisory council to a decision maker in the context of whether a temporary class drug order is extended or not. By placing the Secretary of State under a condition that a further order can only be made at the council’s request, the amendment undermines the relationship set out in the 1971 Act—namely that the ACMD provides advice, Ministers make decisions, but ultimately it is Parliament that decides.

In resisting this amendment, I appreciate the issue that the hon. Gentleman is attempting to highlight here. It is a matter that the Government will look to better address in the joint working protocol with the advisory council. This is still subject to further iteration, taking account, where appropriate, of points raised in Committee and in subsequent consideration by the House and in the other place. I hope that, with the assurances that I have given, the hon. Gentleman will be minded to withdraw his amendments.

Clive Efford (Labour, Eltham)

I am grateful to the Minister. He did not refer to any commitment on the Government’s part to respond to the ACMD. If I missed it, then I apologise, but a question struck me when reading through the Bill, and through the protocol in particular. If the ACMD brought a drug about which it had concerns to the attention of the Secretary of State, is there some commitment on the Government’s part, or have they considered what would be an appropriate time scale in which to respond?

I take the Minister’s advice on excluding the House of Commons from an extension to a temporary drugs order, but the reason for the amendment was that if such an extension were sought, the only reason should be to enable the ACMD to complete its investigations.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Before the hon. Gentleman sits down, I would point him to paragraph 4(6) of the memorandum, which says that “Ministers will look to provide a decision on all ACMD recommendations and publish a response within three months of receipt.” That is the general approach that we have set out to all advice that we receive, but clearly the circumstances may be such that we may wish to act more swiftly in individual cases. I hope that at least give him an assurance of the ultimate backstop that the Government are working to in terms of the recommendations that we receive from the ACMD.

Clive Efford (Labour, Eltham)

I am grateful to the Minister. It is a small point and I will not press it any further, but it was regarding the initial referral from the ACMD in order to initiate a temporary drugs order. I beg to ask leave to withdraw the amendment.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I beg to move amendment 567, in schedule 16, page 176, line 6, leave out ‘such’.

Christopher Chope (Conservative, Christchurch)

With this it will be convenient to discuss Government amendments 568 to 573.

James Brokenshire (Conservative, Old Bexley and Sidcup)

These are minor and drafting amendments with which I do not need to detain the Committee. They are of a technical nature and therefore I hope that the Committee will be minded to accept them.

Clive Efford (Labour, Eltham)

We welcome the Government’s temporary drug orders; they are needed, but I have one or two questions. First, what is the advice on what constitutes possession under paragraph 6? Under that paragraph, someone can be prosecuted under the Misuse of Drugs Act 1971 for possession of a class B drug if they intend to supply it to someone else. Under a temporary drug order, what advice do police officers follow to determine whether they should take legal action against an individual? Is any guidance or advice provided? Is it similar to the way in which drugs with permanent exclusions are treated? A drug’s classification could be changed to class C, so somebody who has been treated under the temporary drug orders as though they were in possession of a class B drug may feel justifiably aggrieved.

In their evidence to the Committee, Professor Iversen and the ACMD recommended that substances should be referred to the ACMD so that it could consider all the options for control after reflecting on the available evidence. What consideration have the Government given to the possibility of more flexibility in how a drug is classified under a temporary drug order if the ACMD indicates that it may be classified as class C? I apologise if I have misunderstood the ACMD’s evidence, but it seems to suggest that it would be appropriate to have flexibility in relation to the drug orders.

Do the Government intend to keep the science and research group in the Home Office to provide expert advice and a degree of research back-up to the ACMD, so that the Government have the capacity to respond appropriately to its recommendations? I would be grateful if the Minister clarified whether the Government intend to maintain that.

Will the Minister clarify how the matter will be referred to the House? I apologise if I am asking an obvious question, but in what form will Members of Parliament be informed of the Government’s intention to deliver a temporary drug order? Will it be via a statutory instrument or a written statement?

James Brokenshire (Conservative, Old Bexley and Sidcup)

On possession with intent to supply, the relevant issues are broadly equivalent to the law on drugs under permanent control, so there is a direct read-across. I add, however, that ACPO will consider the issue in the context of all legal highs and will review its policing guidance on new psychoactive substances, which will be directly relevant to how the provisions will be policed.

I want to clear up the question of the treatment of temporary class drug orders. The point is that, when a new psychoactive substance is identified, it will be brought within the temporary class drug order. That does not make it a class B or class C drug. It is simply the penalties highlighted in the schedule that would apply. As I said during a previous debate, we think that setting the penalties as we have is important in order to send out a clear message about the seriousness of trafficking or seeking to sell such psychoactive substances.

On a general point about legal highs, we are discussing new psychoactive substances, but sadly, in many cases, drugs sold as legal highs turn out on analysis to be neither legal nor safe; they include controlled drugs. We are mindful of that point in our public health messaging on the subject. That is also relevant to the hon. Gentleman’s point about science and research. In our new drugs strategy, the Government have committed to a forensic early warning capability to identify what new psychoactive substances might appear so that we are better alerted. We are considering how the work of the forensic early warning system will lead into broader research on drugs and psychoactive substances that might become problematic. That work is ongoing so that the two will fit together well.

This is an order-making power. It will work by statutory instrument under the negative procedure. It will be presented to Parliament, and if Parliament is not in favour, it can pray against it in the normal way. I hope that that clarifies the hon. Gentleman’s questions about the clause.

The rest of the debate is in Hansard.