Protection of Freedoms Bill

Public Bill Committee, 3 May 2011.

Vernon Coaker (Labour, Gedling)

Good morning to you, Mr Caton, and the rest of the Committee. Looking around, many Members are as suntanned as I am.

On a point of order, Mr Caton, may I ask for your guidance? The first amendment for consideration this morning—amendment 162—refers to the Detention of Terrorist Suspects (Temporary Extension) Bills. Committee members will know that alongside this Committee, there is pre-legislative scrutiny of those Bills, and the scrutiny Committee is due to report on 9 June. Given the importance of what that Committee may report, can you do anything to ensure that Report of the Protection of Freedoms Bill does not occur until after 9 June, so that we have time to consider the deliberations of the pre-legislative scrutiny Committee before we consider the Bill on Report?

Martin Caton (Labour, Gower)

I am afraid that that request is above my pay grade, but the point has been well made. It is on the record and I am sure that it will be listened to.

Clause 57

Vernon Coaker (Labour, Gedling)

I beg to move amendment 162, in clause 57, page 38, line 37, at end add—

‘(3) The 14 days limit may be temporarily extended through the Detention of Terrorist Suspects (Temporary Extension) Bills to 28 days in exceptional circumstances.’.

Martin Caton (Labour, Gower)

With this it will be convenient to discuss amendment 163, in clause 57, page 38, line 37, at end add—

‘(4) A Commission will be established to develop a framework of bail conditions suitable for some suspects after 14 days of pre-charge detention.’.

Vernon Coaker (Labour, Gedling)

Given the events of the past few days, let me state categorically at the start that whatever differences of opinion we might have on this part of the Bill and whatever debates I might have with the Minister or other members of the Committee, there is no suggestion that any of us is not united in our determination to fight terrorism, to prevent terrorist attacks and to keep our communities as safe as possible. I say that to the Minister, because it is important for all of us that it is put on the record. We will sometimes disagree about aspects of the debate on the issue, as we shall see on this clause and when we deal with other clauses on stop and search, but it is important to say that every Member of Parliament—now, and in the future as in the past—has always had the protection of their communities and the safety of our country as their first priority.

Schedule 8 to the Terrorism Act 2000 introduced seven days as the pre-charge detention limit. That was amended by the Criminal Justice Act 2003, which raised the period to 14 days, and the Terrorism Act 2006, which raised it to 28 days. The provision has been subject to annual reviews, which occurred in 2007, 2008 and 2009. Since 2007, no individual has been detained for more than 14 days under existing legislation. In June 2010, the counter-terrorism review was announced, and it was expected to report in November. Given that there was some discussion and disagreement about the Bills, the review was delayed and not published until two or three months later than expected.

At the same time as the announcement of the counter-terrorism review, the Home Secretary gave a temporary six-month extension to the 2006 Act, and not the usual year’s extension. That ran out on 25 January 2011, when we reverted to 14 days, albeit with the retention of the order-making power in section 25 of the Act should the Home Secretary wish to return to 28 days. That is the context for my amendment, because I need the Minister to answer several detailed questions, which, as he will know, are also being asked by the pre-legislative scrutiny Committee.

The counter-terrorism review recommended 14 days in primary legislation and the need to scrap the order-making provision, which the Government seemed to accept. However, two draft Bills—the draft Detention of Terrorist Suspects (Temporary Extension) Bills—are currently being subjected to the scrutiny of the pre-legislative Committee, which, to reiterate my point, is due to report on 9 June. We have heard your comment on that, Mr Caton. Will the Minister comment? Does he, too, think that to help the deliberations of the House, Report of the Protection of Freedoms Bill should be delayed until the pre-legislative scrutiny Committee has reported? Such a delay would ensure that all the Bill Committee members and other Members of the House could consider the scrutiny Committee’s recommendations before Report. Those findings may influence the decisions that Members of Parliament and Committee members take about the provisions in the Bill. We cannot consider the Bill without taking into account the draft Detention of Terrorist Suspects (Temporary Extension) Bills that are running alongside it.

Clause 57 introduces a permanent reduction to 14 days of the maximum pre-charge detention period for terrorist suspects, and an order that abolishes the power to extend that period if necessary. That is straightforward, but the Minister needs to inform the Committee what has happened, because the Government have got themselves in a bit of a bind. They have permanently reduced the period to 14 days in the Bill and they have abolished the order-making power in the 2006 Act, yet somewhere along the line they thought, “Oh, goodness, what happens if we need more than 14 days? How do we do this? Do we retain the order-making power? Do we keep the legislation as it is or do we follow some other route?” They have decided that the way forward has to be emergency legislation. They are clearly worried about not having some sort of power to extend the period beyond 14 days, even if it is via emergency legislation. They are clearly concerned about simply saying, “We are going to 14 days; this is a matter of principle. There are no circumstances in which we can ever imagine the limit going beyond 14 days.” They are worried about doing that.

No doubt there are Committee members and members of the Government who think that the limit should be reduced to 14 days; it should be on the face of the Bill, with absolutely no possibility of extension and no possibility whatever of doing anything about it. Such is their concern with civil liberties that they think the maximum should be 14 days and that is it. Clearly, however, that is not the Government’s view; they envisage circumstances in which it may be necessary to go beyond 14 days, hence the draft emergency Bills. It is no wonder that the review was delayed, because from my experience in the Home Office, I can imagine what was going on inside Government to try to come up with an alternative that would be agreed across Government. There was clearly some discussion and debate.

The Government’s route was to come up with draft Bills for the detention of terrorist suspects. It is necessary for the Minister to answer a number of important questions about that approach and to explain it to the Committee and to those who read our deliberations on this important matter. Will he explain why the Government have chosen emergency legislation? What was the evidence for that decision? Why not have an order-making power? What is the difference in practice between the existing legislation, which allows 28 days to lapse without the annual review, and what the Government are currently proposing?

I understand the difference between an order-making power and emergency legislation, as does everyone on the Committee, but what is the actual difference in practice? Will the Minister lay out for the Committee the circumstances in which the temporary Bills would be introduced? The Government are abolishing the powers that go beyond 14 days. We have the emergency legislation, but the Committee needs to know the circumstances in which it would be introduced.

In his evidence to the pre-legislative scrutiny Committee, Lord Macdonald, the former Director of Public Prosecutions, said that such legislation should happen only in a national emergency. Does the Minister agree? If he does, how does he define a national emergency? In what circumstances would the Government wish to introduce emergency legislation? The former Director of Public Prosecutions does not believe that we should introduce such legislation under the draft Bills. He said that a better way would be to use the Civil Contingencies Act 2004.

Will the Minister explain the circumstances in which he would imagine the draft Detention of Terrorist Suspects (Temporary Extension) Bills being introduced? The point of the amendment is to try to get the Minister to explain those really important powers to the Committee. The former Director of Public Prosecutions now favours the use of the Civil Contingencies Act rather than the emergency legislation proposed by the Government. When he was DPP, he actually agreed to 11 people being held for more than 14 days, so clearly something has changed his mind to the view that he holds now, and that is an important point, although of course we are all entitled to change our view.

Would emergency legislation be used only in relation to an individual or does there need to be a group of individuals? Can an emergency or threat to national security be caused by one person or does it have to caused by a group? Such points were raised in the evidence sessions by Lord Macdonald and others. Lord Macdonald’s view is that the Government have reached a position where they believe that they can introduce emergency legislation for one person rather than for—as he originally believed was the intention—a group of people.

At the Joint Committee reviewing the legislation, a number of former Home Secretaries under the previous Government made a really good point, and I wonder what the Minister’s view is. The problem with emergency legislation, or legislation such as the draft Bills, is that at a time of exceptional circumstances or national emergency, we are reacting after something has happened. Is not the whole point of terrorist legislation to intervene to try to prevent terrorist acts from happening in the first place? When the Minister tells us what is meant by a national emergency or exceptional circumstances, will he also explain why we should wait for something that is so bad that it is declared a national emergency? Why wait until then to introduce emergency legislation? Why not try to intervene at an earlier stage to try to prevent something from happening? In other words, can emergency legislation be introduced because it is believed that something might happen, or can it be introduced only when something has happened? When is the appropriate time?

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Does the hon. Gentleman have his own definition of a national emergency? Does he think that it is possible to codify precisely what it is in practice?

Vernon Coaker (Labour, Gedling)

I am not sure that this is the best way of proceeding, because it is difficult, as the hon. Gentleman said, to define the national emergency that would act as a trigger for the introduction of the legislation. The hon. Gentleman asks a good question, but the fact that I have to say, “I cannot tell you exactly how to define a national emergency”, shows some of the problems with the Bills. He will know, from the pre-legislative scrutiny, that that is one of the problems with the draft Bills, which virtually every Member of that Committee has identified.

The measures are defined as temporary emergency legislation, brought in for a time-limited period of three months to deal with a specific emergency. As the hon. Gentleman said, the problem is that the circumstances need to be defined. Otherwise, how will anyone know what thresholds or criteria the Government are using to bring such legislation forward? The hon. Gentleman’s question is fair. It is a question for the Minister, which is why I am asking him to define the circumstances for us. The Government must have an idea. Other than the words “exceptional” and “national emergency”, there is a lack of any definable trigger in the legislation that would tell the hon. Gentleman or myself in what circumstances such a Bill would be used.

Those are not the only problems with the emergency Bills. Will the Minister explain exactly how the process would work? Let us imagine we have got over the hurdle of defining a national emergency. If the Government are abolishing the existing order-making powers and we are moving to the temporary Bills, is it practical to extend the legislation in that way? Lord Carlile is highly respected by everyone across the country, the security services, the police and the House. He said that in his experience, although the provision has not been used since 2007, it was often only between 10 and 12 days into the detention that the police or security services decided whether they needed to interview or detain someone beyond 14 days. If that was the case, could emergency legislation be introduced quickly enough for that problem to be overcome?

For example, if somebody is held for 10 days and the police decide that there is a need to hold them beyond that, how would the Government introduce emergency legislation quickly enough to deal with the problem? What if it was a Thursday night, or Christmas eve? Obviously, I am trying to think of when the legislation would cause difficulties, and the Government may say that I am thinking up the most difficult and awkward situations. That is true, but the circumstances would none the less be difficult. A more potent example relates to what would happen if the emergency occurred when Parliament was in recess or dissolved. The Madrid bombings took place when the Spanish Parliament was dissolved.

If the Government want to extend detention beyond 14 days, what would happen when, as Lord Carlile said, the person had already been held for 10 or 12 days? Those are real, practical difficulties. Will the measures be implemented quickly enough to cope with a real threat? For example, after the Omagh bombing, it took three weeks for Parliament to be recalled. Is the Minister certain that the practical problems that will arise as a result of the Bill can be overcome, so that the nation’s safety is not compromised? It is not that the Government wish to compromise that safety, but practical problems may arise.

Another issue was raised by nearly everyone in the pre-legislative scrutiny Committee. What will the Home Secretary be able to say to Parliament about why the emergency legislation is needed? I defer to the legal people present, who will know the legal arguments better than I do. The Government have said that the legislation could relate to an individual. How can the Home Secretary go to Parliament and say, “Individual X is such a threat to national security that we must pass the emergency legislation”, without prejudicing a future trial? I do not know. Perhaps the Home Secretary will just say, “Such is the national threat that the country is facing that we need emergency legislation.”

Members of Parliament have debated the issue up hill and down dale over the past few years, with entrenched and principled views held on both sides of the argument. As I said in the beginning, I understand that people have deeply held views about the issue. Does the Minister believe that he can go to Parliament and say, “We need to increase the pre-charge detention period from 14 to 28 days because there is a national emergency”? Lord Macdonald said that MPs will be disciplined and will not want to know more than that because they will trust the Home Secretary. Irrespective of whether we are talking about the current Home Secretary or previous ones, of course everyone trusts the Home Secretary. However, I do not think that Members of this House or the House of Lords will find the Home Secretary’s words alone sufficient to accept the emergency legislation. I think they will want a bit more detail, and I do not know how the Government can provide that. All the people who gave evidence at the pre-legislative scrutiny Committee said that there is a serious legal issue about what can be said in Parliament under privilege that would not prejudice a future trial, such that a judge said, “I am not sure that a fair trial can take place under such circumstances”, and threw the case out.

The Minister will correct me if I am wrong, but my understanding is that the Home Secretary, on the advice of the police or the security services, will go to Parliament to apply for the emergency legislation. Am I right in saying that a police officer has to agree with the Home Secretary to apply for emergency legislation? If so, what would the rank of the police officer need to be, both in the Met and in forces outside the Met? I do not know the answer, and I wonder whether the Minister could help us.

Much more importantly, although this is not in the Bill, does the Minister agree that it would be helpful if not only the Home Secretary and—I am not sure about this—a senior police officer, but the Director of Public Prosecutions, were involved in certifying the application? Therefore, when the Home Secretary goes to the House of Commons, she can say not only that she believes an extension of pre-charge detention is right, but that the DPP has said that it is appropriate. Does the Minister have a view on that? Does he think it could be helpful?

At the moment, extending the pre-charge detention period from 14 to 28 days is a judicial decision. There is no role for the legislature—for Parliament. At 14 days, Parliament is given the general power, but the decision to go from 14 to 28 days or any portion of that rests with a High Court judge. Does the Minister understand that there is concern and can he explain the Government’s thinking about that?

On numerous occasions, the House has said that involvement with the judiciary is essential if we are to maintain people’s confidence in the legislation. A proper balance must be struck between civil liberty and the security of our nation, and there must be compliance with European and our own human rights legislation, so the role of the judiciary is fundamental. Can the Minister say what the Government’s thinking is about introducing a role for Parliament in that process? Is it right that the legislature now has a role, or would it be better to retain the current system where the judiciary alone make the decision? Can the Minister imagine a situation such as the following example? Parliament agrees that such is the national emergency facing the country, the Home Secretary of the day comes to Parliament, with the full support of the Government, and says that it is fundamental that the Detention of Terrorist Suspects (Temporary Extension) Bills are passed. The application is made on the specifics of the individual case, not the generality of whether detention should be 14 or 28 days. Suppose that Parliament agrees; that decision must go before a High Court judge for agreement. Can the Committee imagine the process? The Home Secretary, the guardian of our country’s security, goes to Parliament on an individual threat that is seen as so serious by Parliament that the application is agreed to, and then the High Court judge says, “I do not agree”. [Interruption.] The Minister says there is separation of powers, which is exactly what I might have said in his position. I understand that point, but with deference to him, all I am saying is that when we legislate, it is important for us to understand the consequences of the legislation we are making. I realise the Minister knows that. The situation I described raises a particularly difficult point that was made in the pre-legislative scrutiny Committee.

James Brokenshire (Conservative, Old Bexley and Sidcup)

The existing law relates to 14 days, yet if we follow the hon. Gentleman’s analogy, he would not seek to intercede on decisions made by the Crown Prosecution Service and the courts on whether to utilise the full period of 14 days. I do not think he is saying that therefore the 28-day period should automatically be used in those circumstances either.

Vernon Coaker (Labour, Gedling)

No, I am not saying that. I am saying that there is a real difference when Parliament is legislating for a general power that can go beyond 14 days, so that we have a 28-day provision but whether that is used is a matter for a High Court judge. There is a difference between having a general power on the statute book, and the police believing, along with prosecutors—as the Minister said—that going beyond 14 days is necessary and they apply to a High Court judge. That is totally different from a situation in which the Home Secretary first goes to Parliament and says, “Such is the seriousness of the threat we face that we need the emergency legislation.”

The emergency legislation would be brought in because Parliament was persuaded by the Home Secretary that the threat to the national security of our country was such that it was essential. That interim step is an important one. It would not be a generality; we would be dealing with an individual, specific case where Parliament believed that there was a threat to national security, and in that specific case a High Court judge said, “I do not agree.” That may be just a point of difference between the Minister and me, but I think there is a real problem, and the judiciary, the legislature and Parliament will see it as a problem. Having Parliament as an intermediary is where the Minister and I differ. I see a potential problem in what the Minister outlined.

James Brokenshire (Conservative, Old Bexley and Sidcup)

The hon. Gentleman may be coming to this in due course, but could he explain to the Committee how he has reconciled the points that he has just made with the points raised by the previous Government in relation to their draft Bill on 42 days?

Vernon Coaker (Labour, Gedling)

As the Minister knows, the 42 days provision was defeated because Parliament did not agree with the Government. Parliament believed that the Government had gone too far and had not got it right. I am not sure Parliament will believe that this Government have got the measure right under their proposals. I will not constantly repeat the point, but Parliament being involved in the decision to extend from 14 to 28 days and then a High Court judge reviewing it is different from a general power whereby the police apply to a High Court judge and there is purely a judicial decision.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I am sorry to press the hon. Gentleman, but he will be aware that the previous Government laid a draft 42-day Bill in the Library, which was in many ways similar to the draft legislation that we have tabled. How has he reconciled his position now, as contrasted with the position then?

Vernon Coaker (Labour, Gedling)

In the end, the Government of the day set out what they think is the best thing to do, and then Parliament scrutinises it and makes a decision. Parliament’s decision then was that the Government had got it wrong on 42 days. My own view is that the Government will find it problematic. They will need checks and balances and safeguards to get Parliament’s agreement, as I have already pointed out. The Government, Parliament and the judiciary will be in a very difficult position.

Other countries do not seem to have a problem with the number of days. Different jurisdictions have different models of justice. Many countries make use of the investigatory function of the magistrate; people can be held; holding charges are used and so on. In other countries, intercept as evidence can be used, as can post-charge questioning. Will the Minister update us on the Government’s view of intercept as evidence and post-charge questioning? Some people say that if we went down that route, we would actually solve many of the problems that the Government are seeking to solve with the draft Bills. I am not clear what the Government think about that.

Rehman Chishti (Conservative, Gillingham and Rainham)

The hon. Gentleman talked about the different legal systems in different countries, for example the inquisitorial system in France and Switzerland and the adversarial system in the UK. Is he advocating that we should move to an inquisitorial system from the adversarial system we currently have?

Vernon Coaker (Labour, Gedling)

No, I am not advocating that. I am saying that other jurisdictions overcome in different ways some of the issues that have been debated not only across the Chamber, but within different parties. Certainly, one of the things that has been said is that if intercept evidence could be used and were there to be an allowance for post-charge questioning—rather than the shutters coming down as soon as a charge is made—it would help the judicial process of this country.

The previous Government considered that for a considerable period. There have been inquiries on the issue and the current Government are also considering what to do. It is an important part of our scrutiny in this Committee to ask where the Government have got to on that issue, how it informs this debate and whether there is anything we should know about it. Different countries have different traditions and ways of doing things. That is right and proper. Alongside any review of the measure, the issue is so serious that we should ask questions about how we can make improvements and what differences can be made to how we do things, to overcome some of the difficulties.

That brings me to another point that some people have raised. I want to test the Government’s thinking. The Minister will know that Lord Carlile’s preferred option is the status quo, but notwithstanding that, the Joint Committee on Human Rights and Lord Carlile have said that if there is to be change, we should move to some sort of counter-terrorism bail when 14 days is reached and an individual or group of individuals are still regarded as a threat. That raises a lot of other issues, not least how we could be sure that an individual did not continue to be a threat without imposing such draconian restraints or constraints that they would be virtually under 24-hour house arrest with security all around. Having said that, a number of people involved in counter-terrorism have suggested counter-terrorism bail as an alternative to the draft Bills. Will the Minister outline why the Government have rejected some sort of bail for people who might still be considered a threat to the security of the nation after the 14 days have passed?

Will the Minister explain the Government’s thinking on process? What will happen if the pre-legislative scrutiny Committee—a cross-party body with Members from this House and the other place—says, “The measure won’t work, despite the Government’s best intentions and their desire to find an alternative. They need to think again.” I am interested to know what the Government would do in that case. Will they say, “Well, we have looked at it and listened carefully to what the pre-legislative scrutiny Committee said. We take on board their fine opinions, but actually we’re going to ignore them”? Alternatively, if the Committee said, “Good point”, what would the Minister’s thinking be?

There is a series of questions for the Minister to answer. Why introduce emergency legislation? Why not follow other routes? In what circumstances would there be an application for an extension from 14 days? What is meant by “exceptional circumstances”? Why is there no sunset clause in the draft Bills? Why is there no role for the Director of Public Prosecutions in certifying the Home Secretary’s application to Parliament? How much will Parliament be told? How will Parliament receive the information necessary to make a decision about whether emergency legislation is needed, and how can that be done without prejudicing a trial? Is the Minister confident that the correct balance has been struck between protecting the civil liberties of detained individuals and the wider civil liberties of us all? Is parliamentary involvement in the process appropriate given that it deals with particular situations rather than general safeguards, with the courts deciding on individual applications?

I have tried to ask those questions in a calm and reasonable way. To be fair to the Minister and the Government, the matter is difficult; I, too, wrestled with it in government. It is always a worry that something will happen to make people say, “If you had done this, you would have prevented that from happening.” The Government are worried about that, too. Part of the coalition wants to go back to 14 days—full stop. But the Government are—rightly—worried about what would happen if they did that and something then happened because of the individual who had been released.

These are important questions for the Minister. I am sure that his answers will be read carefully, not only by the pre-legislative scrutiny Committee, but by people outside who, like all of us, want our country to maintain its tradition of civil liberties and its respect for them, but also want to know that our communities and our country are as safe as possible.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Good morning to you, Mr Caton, and to the Committee, as we consider these important aspects of the Bill.

I welcome the approach taken by the hon. Member for Gedling in the amendments. I agree that this is a significant part of the Bill, and that the House stands united in combating terrorism and those who would prey on the interests of the country and of our constituents, many of whom have sadly been caught up in horrific incidents in the past. It is important, therefore, for everyone to remain focused on the continuing threats from terrorism—to remain vigilant and to report suspicious activity to the police. It is in that context that we debate the matter. The Government’s overriding desire and focus is to deliver public protection from those who would seek to harm us and harm our country, as they have in the past.

At the outset, I pay tribute to the outstanding work of our police and prosecutors in investigating and prosecuting terrorists. To take one example, in February this year, the airline computer expert, Rajib Karim, was convicted of a series of terrorism offences. Even in those circumstances, which involved some of the most sophisticated computer encryption arrangements that the police have encountered in a terrorism case, he was charged, prosecuted and convicted. Interestingly, he was charged in fewer than 14 days.

On the initial point made by the hon. Member for Gedling about the timing of Report, you said that that was beyond your pay grade, Mr Caton, and making that determination is probably beyond mine. As the hon. Member for Gedling knows, the Committee will run until 17 May, so it is too early to consider the date of Report, but I am sure there will be discussions through the usual channels. We have certainly heard him clearly make his point about the interrelationship of the Joint Committee’s consideration of the draft Bills and the timing of our consideration of this part of the Bill on Report.

Essentially, the hon. Gentleman’s amendments seek to provide for a temporary extension of the maximum period of detention up to 28 days in exceptional circumstances, and to establish a commission to devise a framework of bail conditions for terrorist suspects to be imposed after the maximum period of pre-charge detention has elapsed. We have already committed ourselves to provide for a contingency mechanism in the form of draft emergency legislation—we have already talked about that and I will address the hon. Gentleman’s comments—so amendment 162 is unnecessary.

Our approach to the Bill—there may be a difference between us on this—is that our objective is clear: 14 not 28 days should be the norm for the pre-charge detention of terrorist suspects. For us, that would be an exceptional measure, which means precisely that. The amendment may run contrary to that position, since it seeks to establish, potentially, the exception as the new norm. Fundamentally, the clause is about setting out what the norm should be. We regard the norm as 14 days, which is why we have dealt with the matter as we have. The draft Bills, which are being considered separately, relate to exceptional circumstances that may arise.

I will first address the hon. Gentleman’s last point, on bail, because that is a distinct issue compared with the more general points that he raised about timing and the draft Bills. He will be aware that we have considered the issue of bail for terrorist suspects as part of our review of counter-terrorism and security powers. The review concluded that conditional bail would be inappropriate for suspects who are considered a significant risk to the public, given that the nature and extent of their involvement in terrorism would not have been fully investigated. I think the hon. Gentleman made that point; he recognised that specific challenge when he moved his amendment.

It is worth emphasising to the Committee that the previous Government took the same approach. Interestingly, in the last Session of the last Parliament, the 17th report of the Joint Committee on Human Rights on “Counter-Terrorism Policy and Human Rights” highlighted the bail issue. In their evidence, the previous Government said that they had

“accepted the operational advice of ACPO that bail should not be available in relation to terrorism offences because of the risk to public safety that might be involved.”

In reflecting on that, we are seeking to adopt the same approach.

Our review of counter-terrorism powers concluded that providing for some form of bail for terrorist suspects for the 14 to 28-day period does not, given that it is so rarely needed, justify creating a regime that continues to impose conditions on an individual who should be either charged or released. That conclusion was endorsed by Lord Macdonald, who, as the Committee will know, provided independent oversight of the review. In his report published alongside the review, he said:

“The Review is also right to reject the option of a further 14 days of strict bail being made available to the police. This new restriction would not have been justified by any evidence gathered by the Review, and it would have been widely regarded as an unwarranted form of control order. It is unnecessary.”

We intend to ensure that the detention of terrorist suspects strikes the right balance between protecting the public and respecting individual liberties. However, as hon. Members will have gathered from my comments, we are not persuaded that bail is the appropriate way forward, and Lord Macdonald reached a similar conclusion.

On the more general issue of 14 days and the utilisation of 28 days, it is worth highlighting to the Committee what Lord Macdonald said, as I think the hon. Member for Gedling may have suggested something otherwise inadvertently. In his comments on pre-charge detention, Lord Macdonald said:

“I agree with the Review’s conclusion that the risk of an exceptional event, requiring a temporary return to 28 days, is best catered for by having emergency legislation ready for placing before Parliament in that eventuality. This is the option most strongly supported by the evidence gathered by the Review.”

The hon. Gentleman may have suggested that Lord Macdonald was giving it a slightly different emphasis, but that is clearly what he said in his report responding to the counter-terrorism review conducted by the Government.

As I have said to the hon. Gentleman, the essence of our approach is that 28 days should be the absolute exception and 14 days should be the norm. Therefore, retaining 28 days would in some ways be looking backwards. It would suggest that the provision of 28 days is readily available, and that that would become the norm. Therefore, we have been clear that 14 days is the norm. However, in exceptional circumstances, the provision of 28 days is available, but only through the passing of emergency legislation. Laying draft legislation, which is being considered by the Joint Committee, will assist in speeding that through. That is the responsible way to proceed.

Vernon Coaker (Labour, Gedling)

Notwithstanding the Minister’s point, does he accept that because the provision for 28 days will be on the statute book, that therefore becomes the norm? No one has been held for more than 14 days since 2007.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I absolutely accept that, and I am glad that the hon. Gentleman has drawn that to the Committee’s attention. Any extension beyond 14 days has not been utilised since 2007, and therefore that is, in many ways, part and parcel of the proposals under clause 58, which will omit the relevant sections of the Terrorism Act 2000, underlining that that is the case.

The hon. Gentleman also tried to second-guess what an emergency is, the reasons why the Government are seeking to introducing draft legislation and whether it is the right way to do things. I return to the point that I made when I intervened on him. The draft legislation is there should the Government believe it to be necessary to introduce the extension. The whole point of the draft legislation is that it is available should there be an emergency, when we can table it before this House and the other place. Those are the words that the hon. Gentleman used when he discussed the draft 42-day Bill that the previous Government sought to keep on the side in readiness. The basic structure of the draft legislation that is currently being considered by the Joint Committee takes a similar framework. It is interesting that the hon. Member for Gedling may be saying that the approach is fundamentally wrong, because that was the approach that he sought to support and adopt as recently as November 2008—perhaps there has been a substantial move away from that. He is right, however, to ask questions and to highlight some of the issues around the introduction of legislation. I shall come on to discuss some of the points that he has highlighted.

It would not be sensible or helpful to speculate and try to second-guess every eventuality in every circumstance in which such draft legislation might be necessary. In general, the measure will be used only in truly exceptional circumstances—when a threat is so significant and a plot, or expected plot, is so complex that going beyond 14 days is considered necessary. I have already given the hon. Gentleman an example of a very complex case that people were absolutely capable of dealing with in the 14-day detention period.

It is also important to emphasise that Parliament is not being given the power to extend to 28 days for a particular individual. One of the points that the hon. Gentleman has highlighted is the separation of powers. Parliament is being given the power to allow the CPS to ask a High Court judge whether detention may be extended beyond 14 days.

In the event of a large-scale terrorist plot, it is likely that there will already be a significant amount of media and public interest, and comment, so parliamentary debates on the subject are unlikely to risk prejudicing any criminal trial in such circumstances. There is existing parliamentary guidance on sub judice issues, and Parliament is well used to considering sensitive issues without endangering national security or possible future trials. For example, Parliament regularly considers the proscription of terrorist groups or the renewal of control order legislation without undermining such trials. Furthermore, it will be able to scrutinise the principles of whether it considers it appropriate to move up to 28 days in the light of arrests without discussing any matters that might prejudice a criminal prosecution. For example, Parliament can scrutinise whether a terrorist suspect’s welfare will be properly protected if the detention period is extended. We can discuss practical scenarios such as the recall of Parliament and various other significant issues. In the past, Parliament has been recalled, statements have been made, and questions have been answered and responded to without prejudicing trials in such eventualities.

Vernon Coaker (Labour, Gedling)

Can the Minister confirm what I think he said, or whether I have misheard or misunderstood him? Did he say that the emergency legislation cannot be used for one individual, but only for groups of individuals?

James Brokenshire (Conservative, Old Bexley and Sidcup)

In essence, there are three scenarios in which the draft legislation might be used. Again, I am not seeking to second-guess, because we envisage that situation arising in truly exceptional circumstances. First, it could arise because of a threat level or particular intelligence. In other words, before any incident has occurred, Parliament might believe that the heightened status of circumstances is so significant that it is justified in utilising the draft legislation. The second scenario is before arrests, during an investigation that is so complicated and significant that 14 days is not considered sufficient. The final scenario is during an investigation, but after arrests. On the basis of evidence considered by the review, all those scenarios are extremely improbable but cannot be ruled out. I hope that explanation assists the hon. Gentleman.

Vernon Coaker (Labour, Gedling)

If I have understood the Minister correctly, his answer is no, it cannot be used for one individual. Unless I misheard him, he did not speak of arrest but arrests, so will he confirm whether the emergency legislation could be used for an individual or does it have to be for a group of individuals?

James Brokenshire (Conservative, Old Bexley and Sidcup)

It is ultimately for Parliament to decide when emergency legislation is passed. It will be for Parliament to decide whether the CPS and the courts have this power through the emergency legislation made available. I am trying to assist the hon. Gentleman in relation to the circumstances that may arise. Only in an absolutely exceptional situation would we anticipate the draft legislation being utilised. It is difficult to say definitively that it would be used in these circumstances but not in those, simply because of the truly exceptional nature of events that would trigger Parliament debating such a situation in the first place. I have given the hon. Gentleman the various scenarios that we consider likely, but I would not wish to second-guess the circumstances or rule them in or out.

We will look in detail at the report that the Joint Committee is undertaking on the draft legislation. The hon. Gentleman tempts me to second-guess not only the circumstances in which the draft legislation will operate but the outcome of the Joint Committee’s report. As tempting as that might be, I will not be drawn down that route. Clearly, we will consider carefully the Committee’s report and its recommendations.

On what happens in extremis and if Parliament is not sitting, the answer is that Parliament can be recalled. It is worth drawing the Committee’s attention to the timing of the recall. For example, following the 9/11 attacks, Parliament was recalled within two days of the notice of recall by the Speaker. In October 2001, following terrorist attacks in the US, Parliament was recalled within one day of the date of the notice issued by the Speaker. Even in a situation such as the sad death of Her Majesty the Queen Mother, Parliament was recalled within three days. Perhaps the hon. Gentleman will always seek to give examples that may be unhelpful or push the envelope in some way, but it is important to note that Parliament has been responsive when there have been significant terrorist incidents, and it is worth putting that on the record.

On potential prejudice, there were parliamentary debates after 7/7, 21/7 and the London and Glasgow bombings in 2007, and the subsequent trials were prejudiced as a consequence of those debates. There are means of addressing the points that the hon. Gentleman highlighted, and Parliament does behave well and recognises the context of its debates.

The hon. Gentleman raised specific points about post-charge questioning and the use of intercept as evidence. Provisions for post-charge questioning of terrorist suspects were included in the Counter-Terrorism Act 2008. The previous Government did not implement the necessary changes to the police codes of practice—the PACE codes—so the provisions have not yet been commenced. The review recommends that they be commenced to provide the police and prosecutors with an additional investigative route, and the Government will consult on the associated changes to the PACE codes shortly.

On the use of intercept material as evidence, the Government are committed to seek a practical way to allow intercept as evidence in court. The Home Secretary informed the House on 26 January that the advisory group of Privy Counsellors was being reappointed to consider the issue. The intention is for the group to provide a report to Parliament in the summer. The Government are focused on that, and we will take it forward. There will be further reports to Parliament in due course.

The hon. Gentleman asked whether there is a sunset provision. The draft emergency legislation will limit the period of extension, from 14 days to 28 days, to a maximum of three months. How the draft legislation has been framed is clear to Parliament, regarding the extent to which the authorisation can be granted, and its duration. Given my previous comments on exceptions and norms, it is right and proper that that should be time-limited and does not become the norm thereafter. It has been acknowledged that Parliament will be taking those decisions, and I hope that that is helpful to the hon. Gentleman, if there has been any confusion as to what the situation will be.

Regarding how we get to that stage, the hon. Gentleman was probing around the question of what steps the Home Secretary will take to introduce legislation. Neither the Bill nor the draft legislation specifies that, for example, the police must request the Government to introduce the draft 28-day legislation, albeit that the police at a senior level would almost certainly be involved, and so will the CPS and the DPP. Ultimately, the decision to introduce will be one for the Home Secretary, and as to whether it is passed, for Parliament, and if the Bill is enacted, for individual cases to be determined by the CPS and the High Court judge. There is a clear escalation.

Vernon Coaker (Labour, Gedling)

Did the Minister just say, “If the legislation is introduced for individual cases”? That answers my earlier point—that the legislation may be introduced for individuals rather than groups of individuals.

James Brokenshire (Conservative, Old Bexley and Sidcup)

It is clearly possible to do that within the scope of the legislation. The safeguard is there. The CPS and the High Court judge are able to determine whether the legislation is appropriate based on the evidence.

I have sought to address the hon. Gentleman’s comments as fairly as I am able to, and I do not want to predetermine or fetter the scrutiny that is rightly being applied to the draft legislation by the Joint Committee with my comments. We will reflect carefully on the response and recommendations made by that Committee, but in light of my comments, I hope that the hon. Gentleman will withdraw his amendment.

Vernon Coaker (Labour, Gedling)

I thank the Minister for his reply. I do not intend to press either of the amendments to a vote. They are intended for clarification, but we may have to come back on one or two specific issues on Report. Certainly, amendment 163 is intended to probe the Government’s thinking on terrorist bail, given that the proposal has some support, albeit not across the board, from some people.

I say again—especially so that the Government Whip can pass this on to those who make the decisions—that it is absolutely essential that the Bill is not reported to Parliament before 9 June. I do not want to say that it is an outrage, because that is emotively over the top, but it would make it extremely difficult for Parliament properly to scrutinise the Bill and to decide about the way forward should the report of the pre-legislative scrutiny Committee on the draft Bills be published after Report in the House of Commons. I know that the Government Whip will have heard that important point.

The Minister did as good a job as he could—he always does a pretty reasonable job—although in one or two cases he floated round the answer without actually answering. After several questions, we in the end heard that the provision can apply to an individual. That will be of real interest outside Parliament, because we have had a discussion about whether the Government believe that it can be used for an individual or only for a group. The Minister has clearly said today in Committee that it can be used for an individual, which is a big step forward. It will clarify matters for those who read our proceedings and for the pre-legislative Committee that we now have certainty that there can be a national emergency or an exceptional circumstance in relation to one individual rather than groups, which is extremely helpful.

The Minister was not able to define “exceptional”, other than to say that it applies to a situation that is exceptional. That answers the question in so far as it is true, but it does not answer it for those of us who are trying to understand what the criteria would be for that. Frankly, the Minister cannot define it. He confirmed that it is the decision of the Home Secretary, acting of course on advice, to come to Parliament to say that a situation is exceptional. Again, apart from saying that Members of Parliament can be expected to act properly, the Minister was unable to reassure us about how far any discussion might take place—on whether legislation was necessary and whether Parliament should grant its approval—Parliament, rather than simply taking the matter on trust, would be given sufficient information to make that judgment without prejudicing a future trial. Those with legal expertise will know better than I do, but that might become even more difficult should the exceptional legislation apply to an individual rather than a group.

Another interesting question that the Government will need to answer at some point is: does the Home Secretary, in coming to Parliament to say that a set of circumstances is exceptional, have to state whether that relates to one individual or to a group? That is one for us to discuss later. The Minister has cited examples of when Parliament was recalled in the requisite amount of time, but practical problems might arise. The Minister says that they will not, but I am saying that it is possible—indeed, the pre-legislative scrutiny Committee also believes that it is possible—that we could be in a situation where it is clear that there are exceptional circumstances or there is a need for the extension of these powers, and the practical difficulties make it difficult for those powers to be given in time.

I have one other point, which the Minister may want to intervene on. How does it work when Parliament decides that an extension from 14 to 28 days is necessary, given that it has to be agreed by a High Court judge? I should have asked that earlier. The Minister may not have the answer at his fingertips. Does the decision go straight from Parliament to a High Court judge to be agreed, or does it take another day or two? If the Minister cannot answer that immediately, maybe he will be able to explain later how that would happen.

There are a lot of unanswered questions, which we will continue to look at in this Committee and to which we will return on Report. Many others will want to know the answers to those questions. They are important questions. I say that in case it is a helpful comment that the Minister wants to use. I will know in a minute.

James Brokenshire (Conservative, Old Bexley and Sidcup)

All I will say to the hon. Gentleman is that the process is the normal one. The CPS sets out the case to the judge at the 14-day point.

Vernon Coaker (Labour, Gedling)

That was a helpful answer. I am not sure I totally understand it, but there we go. With those remarks, I beg to ask leave to withdraw the amendment.

Clause 58

Vernon Coaker (Labour, Gedling)

I beg to move amendment 164, in clause 58, page 39, line 3, at end add—

‘(2) An inquiry shall be established to investigate the effectiveness of the National Policing Improvement Agency’s guidance for stop and search in relation to terrorism.’.

I shall speak briefly on the amendment because I intend to make some broader comments in the clause stand part debate. I do not know whether that helps the Minister, but I want to help the Committee progress. I also do not want to get into a position where I am continually repeating myself, or the Minister is continually repeating himself. The amendment is probing; I do not intend to press it to a vote.

As the Committee knows, most powers to stop and search require reasonable suspicion. Section 43 of the Terrorism Act 2000 requires reasonable suspicion. The debate, as we know, has often been on section 44, where a senior officer can designate an area and someone can be stopped and searched in that area if they are suspected of terrorism, without reasonable suspicion.

It is an irrefutable fact that there was a considerable rise in the number of stop and searches under section 44. The figures tell us that the number tripled to reach some 210,000 in 2008-09. Most of those were in the Metropolitan police area, where the number rose 266%, compared with a 35% rise in police forces outside of London.

What I am interested in, though, is this: the Minister will know that there was concern in the previous Government at that time—I know, because I was a member of it—on the increased use of section 44. The National Policing Improvement Agency was asked to produce guidance. As a consequence of that guidance, there was a huge reduction in the number of section 44 stop and searches. There was a 54% reduction in the figures for 2009-10. We will come on to the more general points in the clause stand part debate.

Can the Minister explain the difference between what the Government are proposing and what the NPIA guidance states, apart from having to put it into legislation? The NPIA guidance said that it must be stressed that the powers are exceptional. It noted that the geographical area in which the power can be used must be clearly defined. It also said that the police must ensure that the Home Secretary is given up-to-date, detailed justification for the application to use section 44 and that a proper community impact study must be done alongside that.

Given that the NPIA guidance has clearly made a difference and that there has been a huge reduction, and given that much of the NPIA guidance is now contained in what the Government propose, in that it deals with geography and exceptionality and tries to deal with disproportionality, will the Minister say whether he thinks the guidance was a success? Were some of the worries and concerns starting to be addressed? Why have the Government taken the approach that they have in the Bill?

I have a lot of other comments, but I will deal with them in the stand part debate, if that is in order and meets with your approval, Mr Caton.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Obviously, the amendment would set up another inquiry to investigate the effectiveness of the NPIA’s guidance on terrorism stop-and-search powers. The Government of course support the need to consider the effectiveness of guidance relating to terrorism stop-and-search powers and, more fundamentally, the powers themselves. I suppose that such consideration is the ultimate point behind all this and behind the more general points that the hon. Gentleman will no doubt seek to raise in the clause stand part debate, although I, too, will hold my fire about the nature of, and the thought processes behind, the changes that have been made, which were obviously considered in the counter-terrorism review.

The review provided the evidential basis for the Bill’s counter-terrorism provisions, including the repeal of the old section 44 stop-and-search powers and their replacement with something more focused, more effective and more proportionate. Ultimately, this is about reassuring the public. As the hon. Gentleman alluded to, there has been significant disquiet over the utilisation of the old section 44 power. The most effective way forward is to look at that power and to ensure that the power on the face of statute is more reasonable, more proportionate and more focused. That is therefore the approach that we have sought to take. A code can seek only to interpret or apply legislation and cannot change legislation in its own right. There is therefore an important distinction between the law and the guidance and other documentation that sits alongside it and relates to how it is applied and utilised.

As the hon. Gentleman will be aware, we envisage there being a statutory code, and we will come to the relevant provisions later. The hon. Gentleman may wish to comment on the code that was issued alongside the remedial order. He will have points about that, and we will no doubt come to them in the stand part debate on this clause or on other clauses in this part of the Bill. However, it is important that there is a robust statutory code, and the code will be subject to consultation with stakeholders across the security and law enforcement community, with the public and with other interested parties. The code will also be subject to the affirmative resolution procedure, so it will have to be debated and approved by both Houses. That is an important distinction as regards the old NPIA guidance, and perhaps some of the points that the hon. Gentleman is seeking to probe in calling for a commission will be addressed by consideration of the statutory codes that are envisaged and contemplated by virtue of the provisions in the Bill.

For those reasons—I note that this is probing amendment—I hope that the hon. Gentleman will feel minded to withdraw the amendment.

Vernon Coaker (Labour, Gedling)

I will withdraw the amendment in due course. I am pleased that the hon. Member for Oxford West and Abingdon has returned, because she will realise that she has had a dramatic impact on my amendment; instead of an independent inquiry, we have gone to a commission. Throughout the weekend, I researched the cost of independent inquiries, and found out that it is cheaper to have a commission. I have been suitably reprimanded, and will call for commissions instead of independent inquiries.

Notwithstanding that, my point was that the power in section 44—searching without reasonable suspicion—is important, and it must be used proportionately, sensibly and in compliance with human rights. There was concern about the big increase in the use of section 44 and its application. The point that I was seeking to put on the record was the significant reduction consequent to the introduction of the NPIA guidance, which—I take the Minister’s point about the code and the current legislation—included much of what is in the statutory code that he is seeking to introduce. I beg to ask leave to withdraw the amendment.

Vernon Coaker (Labour, Gedling)

This is a significant clause, and this is a significant stand part debate. I apologise to the Committee, because a lot is going on that informs our discussions. What has happened with stop and search during the past 10 months has been nothing short of a shambles.

The clause repeals existing legislation on stop-and-search powers, and the Government sought to do so without a clue about what would replace it. The Gillan judgment said that stop and search had been used disproportionately and breached human rights—that was prior to the National Policing Improvement Agency guidance—but disproportionality in stop and search had been rejected by the Home Affairs Committee in 2005 when the Prime Minister was a member.

There is no doubt that the Government needed to respond to the Gillan judgment, and in a statement to the House on 8 July 2010 the Home Secretary announced interim guidance on stop and search pending conclusion of the Government’s review of counter-terrorism legislation. The Home Secretary sent out that guidance via the Association of Chief Police Officers, and published it on the website. It said that authorisation of the use of section 44 would be changed—the Home Secretary was trying to comply with the judgment as she saw it—and that officers would no longer be able to use section 44 powers to search without reasonable suspicion, but must use section 43 powers, which require reasonable suspicion. The guidance allowed the powers to be used with regard to vehicles, but not to people. The Home Office would confirm authorisations, because use of section 44 has to be authorised, and the power could be used only when there was reasonable suspicion. That was a big change sent out to the police. Police forces were no longer able to stop and search individuals without reasonable suspicion.

That change was announced and introduced in July 2010. That was the Government’s position. They did not wait for the counter-terrorism review. They did not wait to take advice. They just made the announcement and sent out the guidance. Then the problems started. The Government’s counter-terrorism review, which the Home Secretary and the Government should have waited for before changing the guidance, said that there was an urgent need—not a need, but an urgent need—for a counter-terrorism stop-and-search power that could be used without reasonable suspicion. The Home Secretary, in pre-empting the counter-terrorism review, had taken the decision, but her own review said, “For goodness’ sake, there is an urgent need for the police to have a power to search without reasonable suspicion.” I would like the Minister to comment on the urgent need identified in the counter-terrorism review. Why did the Home Secretary pre-empt that?

The Joint Committee on Human Rights is now calling for evidence on this matter and the use of the remedial order. I will read to the Committee what the JCHR says, because either the JCHR has got this wrong or it is a very serious point. It states:

“The Government also says that the experience of the police since the suspension of the current powers in July last year has indicated that there is a clear operational gap in responding to specific threat scenarios which cannot be met by other, existing powers.”

That is the JCHR, a Select Committee, saying that the Government of this country have taken a decision to leave the police without the necessary powers to counter specific threat scenarios. The counter-terrorism review told us that the Government had sought to abolish section 44 without knowing what to do and that there was an urgent need to replace it, and now the call for evidence by the JCHR is telling us the same thing.

We are discussing clause 58 and other provisions in the Bill to replace section 44, but we are doing so without clarity about why or how the Government have arrived at this situation. The JCHR also says in its call for evidence that because of the urgent need for the gap to be filled, the provisions need to be implemented immediately. So what do we get? In July, the Government suspend the power to stop and search without reasonable suspicion. The CT review says that there is a gap that urgently needs to be filled. The JCHR says that the Government have now recognised it as well. The Government are told by the JCHR and their own CT review that there is a gap. Panic sets in, and the Government bring forward a remedial order to plug the gap, pending the passage of the Protection of Freedoms Bill. The Government say, “Well, we’re going to need some legislation,” and they bring it forward in this Bill and introduce the remedial order.

On 18 March, a remedial order was passed by the House. It gave the police the power to stop and search without reasonable suspicion, albeit with certain caveats that the previous regime did not have; I accept that. However, between July 2010 and March 2011 the police of this country were left without the power to stop and search without reasonable suspicion, in a way that was said to be inappropriate by both the counter-terrorism review and now the JCHR review. According to the call for evidence by the JCHR, the Government have admitted that there has been a gap.

Was it satisfactory for the Government of the day, in their desire to rush through a change to stop-and-search procedures, to introduce something that just a few months later, their own review says has left an operational gap? I am absolutely amazed and astonished that the Government came forward with a proposal to omit section 44 and change the whole stop-and-search practice without a clear idea of a replacement, and then found that the replacement that they had put in place—which was to have no replacement—had left an operational gap.

Clause 58 will omit section 44, and in a later clause, which really relates to this clause, we will reintroduce a replacement for it, which the Government, because of the situation that they found themselves in, introduced on 18 March. I will tell the Committee what happened. Discussions would have gone on. The CT review would have been looked at. The Government would have recognised that there was a gap—the police would have been telling them there was a gap. They would have been worried about all sorts of things, and the Government would have said, “Goodness me. What are we going to do about it?” If something had happened when the Government had that gap, which their own review, the police and others have told them about, and they left the police of this country without the powers needed to tackle terrorism, what on earth would have happened? There would have been panic, and a remedial order.

It is a shambles, and I say that in sadness. I do not blame this individual Minister for it, but in the desire to be seen to do something on the matter, the Government took a decision that left the police with an operational gap, as defined by their own review. That is a serious matter, and I look forward to the Minister’s reply.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Does the hon. Gentleman agree that it was not the Government’s desire to be seen to do something about section 44, but that the Government were required to do something about it because of the disproportionate nature of those powers?

Vernon Coaker (Labour, Gedling)

The powers were not found to be disproportionate by the Home Affairs Committee in 2005. The European Court of Human Rights looked at the situation that predated the guidance changes in 2008. It looked into the way in which stop and search was used at an earlier time, rather than as it was being used in 2008.

The Home Secretary took the decision in July 2010 to respond to the ECHR judgment by saying that the police could not search without reasonable suspicion. Her own review, plus the Government, have now admitted that that left an operational gap. All I am saying is that if the Government wish to comply with the judgment, they should do so in a way that does not leave an operational gap. The Government have clearly found a way of doing so. I am saying that such is the importance of the issue that that should have been found at the time. If the Government had responded by saying, “We accept what the ECHR is doing. We will continue with the current legislation under the existing guidance, which has already seen a significant drop in the use of those powers, while we look at ways in which we can more effectively comply with the judgment,” that would have been fine. That is what the Government should have done, rather than leave themselves with an operational gap for nine months, which they have had to plug with a remedial order.

I shall be interested to hear what the Minister has to say in response to those comments.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Perhaps it will not surprise the Committee and the hon. Gentleman that I entirely reject his characterisation of the Government’s approach. He is trying to cling to a false premise. The nub of what he has said is: “Well, actually, it was all fine, because we issued some new guidance, so basically the European Court of Human Rights got it wrong.” Yet the judgment was not about operational practice. It was not about how the powers were being used. The judgment in the Gillan and Quinton case found that the legislation was in breach of article 8: not the use of the legislation but the legislation—the Act itself. It is because the previous Government sought to take a broad view on liberty and so on that we are having to address their mistakes.

Interestingly, even in the previous debate, the hon. Gentleman seemed to be suggesting that it was just fine and dandy that we should be searching some 45,000 people a year, which is the most recent full year’s figure that we have for the use of the powers. We continue to regard that as disproportionate and not an effective use of the police’s counter-terrorism powers, and it affects the public’s confidence in the use of those powers. That is why we have the legislation before us.

The hon. Gentleman says that the Government have been irresponsible and that the focus of public protection has not been at the forefront of our approach. Again, I absolutely reject that. As I said in my comments in the earlier debate, I underline that the protection of the public is the Government’s fundamental driver. We take our approach and our responsibilities seriously in response to what is, sadly, the continuing threat from terrorism that we all face.

We were left in a situation where we had to deal with the mistakes and problems of the previous Government and their failure to reflect and respond appropriately to the issues. That is why the Home Secretary introduced her remedial order. In March, she was advised that the police needed to be able to utilise stop-and-search powers not on the basis of suspicion, on the basis of the assessments of threats at the time. The introduction of the remedial order was therefore right and proper. There has been no confusion about the fact that the powers have been carefully reviewed as part of the wider review of counter-terrorism issues and that they are being implemented through the Bill, which we are debating in Committee. I make no apology for deciding to use the remedial order as an interim measure, given the operational and legal requirements that were highlighted earlier this year. I do not accept the hon. Gentleman’s characterisation. I appreciate his political points and the way in which he sought to raise these matters in an earlier format during the passage of the Bill.

We believe that the proposals in clause 59 and thereafter provide a proportionate mechanism for reassuring and protecting the public in the fight against terrorism and giving the police a proportionate focus and reasonable power, the utilisation of which will command public confidence. Therefore, while it is open to the hon. Gentleman to make whatever points he may wish, I reject his characterisation and reaffirm the Government’s commitment to protecting the citizens of this country.

Clause 59

Vernon Coaker (Labour, Gedling)

The clause deals with section 43 of the Terrorism Act and with replacement powers to stop and search persons and vehicles where there is reasonable suspicion.

I have a couple of questions for the Minister. Will he explain why he thinks the omission of the provision dealing with the requirement for searches to be carried out by a person of the same sex is appropriate? One could talk about practical grounds, and I understand that, but would it not be better if there was an option? In certain circumstances, particularly in some communities, this might be a particularly sensitive issue.

The implication of the provisions seems to be that there is a blanket exemption, or is the Minister saying that it is for the officer to determine things on the basis of the circumstances in which he seeks to carry out the stop and search? That prompts the question whether somebody can request that a stop and search be carried out by somebody of the same sex. If that is the case, would the police officer be obliged to accept that request?

This is quite an important issue. We can dance on the head of a pin when it comes to some of the other stuff about stop and search, but this point is quite important, and it needs careful answering. The Minister will say that it will be covered in guidance, but people read the proceedings of Bill Committees, which are used to determine the appropriate way of acting, and the Minister needs to answer some quite serious points.

Can the Minister also clarify—I should know the answer, but I am not sure I do, to be honest—whether stops and searches have to be carried out by an officer in uniform? I think the answer is yes, but will the Minister clarify that in case I have missed something. [Interruption.] Actually, I think I have just found the answer, but notwithstanding that, will the Minister clarify the position for us? As I said, I think the answer is yes.

Can the Minister also explain to us the extension of the power to searching a vehicle? It used to be possible to use the section 43 power only in respect of an individual. The new section 43 power can now be used in respect of not only an individual, but a vehicle. Can the Minister therefore clarify subsection (5), which relates to the searching of vehicles? It refers to the captains and pilots of aircraft, hovercraft and vessels. People sometimes think that we are having fun in Committee by being pedantic, but we are legislating. Does subsection (5) mean that somebody who wanted to search a pilot or the captain of a ship could hold the plane or the ship up? Does it mean that they could search the whole plane? What practical processes are involved in searching vehicles?

Frankly, the public would say, “Do you mean they could not search vehicles before?” If officers stop someone under section 43 because they think they are a terrorist—with reasonable suspicion they stop and search—people would think it pretty stupid if they could not search the vehicle. The clause includes a plane, a boat and a hovercraft. The hovercraft is interesting. Presumably, the clause covers people trying to flee the country. The Minister should explain the Government’s thinking on why a vehicle is now included and how we have arrived at this situation with respect to drivers.

Will the Minister confirm that the provision also includes uniformed officers of the Civil Nuclear constabulary and the British Transport police? I know that it does, but it would be helpful for those who read our proceedings to see that the provision is in the Bill. Will the Minister also confirm that the provision is UK-wide, because terrorism applies to the whole of the United Kingdom? I know the answer, because someone asked me about it the other day. I said that was the case but that I would get it confirmed in Committee. I hope those questions are helpful.

James Brokenshire (Conservative, Old Bexley and Sidcup)

The answer to the hon. Gentleman’s specific questions is yes, yes and yes on the availability of the powers to all police forces, including the nuclear inspectorate. Yes, the officer will be in uniform, and yes, the provisions have a UK-wide application. I hope that is helpful to him in connection with those specific issues and the questions that have been raised with him.

Section 43 of the Terrorism Act 2000 currently allows the police to stop and search individuals if the police officer reasonably suspects that the individual is a terrorist. The counter-terrorism powers review recommended that the “reasonable suspicion” power should be extended so that it covered vehicles and individuals rather than just people. The provisions in clause 59 therefore give effect to that by creating a new stop-and-search power in respect of vehicles by inserting new section 43A in the 2000 Act. The new section provides the police with the power to stop and search a vehicle, including its driver, any passengers and anything in or on the vehicle, if a constable reasonably suspects that the vehicle is being used for the purposes of terrorism. Anything discovered during a search, which the police officer reasonably suspects may be evidence of terrorism activity, may be seized and retained.

Clause 59 also extends the existing section 43 so that if a vehicle is stopped as a result of stopping a person, the vehicle can also be searched. This means that police are able to stop and search a vehicle whether the reasonable suspicion is attached to a person in the vehicle or because of the vehicle itself; for example, if it matches the description of a suspicious vehicle, or is being driven in a way that gives rise to suspicion. The provisions give clarity for the police and ensure that section 43 is more likely to be used for a terrorism-related stop and search.

In order for the provision to be a viable tool, we consider that there may be circumstances when it is not feasible to wait for an officer of the same sex to arrive on the scene, so that should not be a legal requirement. The clause therefore removes the requirement for same sex searches, although the statutory code of practice will make it clear that same sex searches should be conducted where possible. It is also important to emphasise that searches under sections 43, 43A or 43B are not intimate searches. At most, the police can ask the person to remove their shoes, hat, gloves, jacket or outer coat. Moreover, the change will bring the search powers in the Terrorism Act 2000 into line with those under the Police and Criminal Evidence Act 1984, which have been in place since 1985, where there is no similar requirement for such searches to be undertaken by a person of the same sex. The provisions in the Police and Criminal Evidence Act have not caused any difficulties, and I would not, therefore, anticipate any problems as a result of this change. Much of it will be dealt with by virtue of the statutory code of practice, as PACE already has in relation to the utilisation of the power.

Vernon Coaker (Labour, Gedling)

That is helpful. Where are we with stop and search in relation to headdresses? Supposing a Muslim woman or someone wearing a shawl or a turban was stopped, what would happen? Is requiring somebody to remove a turban for searching allowable under the measure? If so, is it regarded as intimate? I know that there has been quite a bit of debate about that.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I am happy to give clarity to the hon. Gentleman. He will be aware of section 60AA of the Anti-Terrorism, Crime and Security Act 2001, which relates to the ability to require the removal of certain face or head coverings, and how the police have sought to utilise that. I am happy to write to the Committee to confirm and clarify the utilisation of the powers.

Vernon Coaker (Labour, Gedling)

It would be extremely helpful if the Minister will write to us. I have raised the issue a few times, and I understand there has been a postcard campaign about the searching of Sikhs at airports and so on. I am not saying that that is anything to do with the measure, but it would be helpful to the Committee for the Government to lay out their thinking on such issues.

James Brokenshire (Conservative, Old Bexley and Sidcup)

It is certainly a sensitive issue, as the hon. Gentleman appreciates, and it is something that the Home Secretary is examining and considering further as a consequence of public order incidents, rather than terrorist incidents. I would not want to conflate the two, because the hon. Gentleman will be well aware of the sensitivities of conflating legislation and using it in other ways. There is a clear distinction between the use of public order powers and the use of counter-terrorism powers. He makes a fair point about the utilisation of counter-terrorism powers. If it will be of assistance, I am happy to take this away and to see what further clarity can be provided.

Obviously, the issues of reasonable suspicion apply to the provisions. I want to address the hon. Gentleman’s point about the distinction and why we are bringing in provisions in clause 59 that distinguish vehicles and individuals. As I think I have explained, a distinction applies. If, for example, the police are searching for a particular individual within a vehicle, they can obviously stop the vehicle and conduct searches. It is worth highlighting, however, that that is one of several measures that exist. From his previous role, the hon. Gentleman will be aware of various powers such as those for the protection of the border and similar provisions. The clause needs to be viewed as part and parcel of the various measures available to the police in conducting their duties and ensuring that appropriate safeguards are provided when protecting the public.

Clause 60

James Brokenshire (Conservative, Old Bexley and Sidcup)

I beg to move amendment 109, in clause 60, page 40, line 6, leave out from beginning to end of line and insert

‘Before section 48 of the Terrorism Act 2000 (and the italic cross-heading before it)’.

Martin Caton (Labour, Gower)

With this it will be convenient to discuss Government amendments 110 to 120.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I will not detain the Committee at great length on this group of amendments. They are largely technical and consequential, and they provide clarity about some of the numbering in connection with the introduction of the existing rules that now apply, pursuant to the remedial order. They ensure that there is clarity between the numbering of the remedial order and the numbering in the Bill.

I am sure that hon. Members will want to make other, more substantive points about the clause, even if the numbering is as per the amendments. However, the amendments are of a technical and drafting nature, and are consequential on the making of the remedial order.

Vernon Coaker (Labour, Gedling)

That was a crucial amendment: changing 43B to 47A was one of those dynamic changes, but we missed it, so I apologise to my hon. Friends on the Opposition side. We should have spoken to it at great length and pressed it to a Division. Tucked away in here—I point this out only to show that I read all the proposals—is Government amendment 119, which repeals the remedial order that the Government brought in. We will not, however, return to the debate in which, uncharacteristically, the Minister got a bit shirty, and so did I. We are now back in normal territory.

Clause 60 brings replacement powers to stop and search, and it refers to specific areas. I think that we need more detail from the Minister about this matter, and it is not only me who requires it. People sometimes think that we stand up and say these things, and that we are alone in doing it. However, I say to those hon. Members who have not served on Committees before, “Watch as it goes down the tracks and see what gets changed. Watch and see the issues that arise, when people think that the hon. Member for Gedling is speaking on his own, that nobody listens to him and that he hasn’t a clue what he’s talking about.” Then, in about three months’ time, people realise that the legislation has suddenly been changed to adapt to what was said. That is how I found things as a Minister, and that is what will happen with some aspects of the Bill.

Clause 60 and the whole remedial order business, which Government amendment 119 refers to, is not only subject to my scrutiny: the Joint Committee on Human Rights is interested in how on earth the Government got themselves into the position that they did, and what they are now doing about replacing what was in the provision. There are a number of questions that arise on clause 60, and I will try again with what clause 59(5) meant, because the same point is repeated in this clause. I guess that the Minister was hoping that was not the case, but clause 60(8) returns to it, when it states:

“In this section…‘driver’ has the meaning given by section 43A(5)”

I want to say a few things about the clause. It has been introduced to plug the operational gap that we talked about with respect to clause 58, which repeals sections 44 to 47 of the Terrorism Act 2000. Can the Minister explain the operational gap that clause 60 seeks to fill? What evidence have the Government used to determine that this is the most appropriate way of plugging the operational gap that was laid out for us by the counter-terrorism review, which the JCHR has accepted? The Committee deserves a little more detail from the Minister, now that we are on an even keel again, about what “operational gap” means, about how the clause seeks to plug it and about the relevant evidence.

Can the Minister also tell us how an officer will decide to authorise stop and search under these powers without reasonable suspicion in a specific location? Is the process exactly the same as before, namely that the officer decides that it is necessary and applies to the Home Office for it to be authorised?

The clause introduces schedule 5, which lays out some of the detail about how the power operates. Why have the Government decided on 14 days for an authorisation of stop and search, not 28 days? How have they arrived at 14 days and not 12 days, 16 days or 10 days as a sufficient time scale? If a virtually automatic renewal can be granted after 14 days, 28 days might as well have been granted in the first place. A 14-day authorisation looks good, but it does not mean anything if it is just reapplied or rubber-stamped through to make it 28 days. If at the end of 14 days someone decides that they want the authorisation to be renewed, does that renewal have to be on the basis of fresh, new evidence or can it be on the basis of the information for which the authorisation was originally granted? In other words, does the renewal have to be granted on the basis of completely fresh or new information?

How many times can the authorisation be renewed? Will that be laid out in guidance, or will it be decided on the basis of the evidence at the time? Is there some idea about how many times a renewal might be granted?

We are dancing on the head of a pin, but the Government have made much of the fact that in order to abide by the human rights judgment, it was important to restrict the geographical area under which the power in clause 60 can be used. What do we mean by restricted geographical area? What does geographical area mean? It is important that we restrict it because otherwise we will not conform to human rights legislation, and it was granted on the basis of too big an area before. Everybody accepts now that section 44, granted for the whole of the Metropolitan police area, was perhaps not appropriate, but that has changed thanks to the police and the previous Government. What is an appropriate geographical area? If that was not appropriate, would a division be appropriate? Would a neighbourhood be appropriate? Or is it defined not by the size of the area but by the perceived threat? What sort of criteria and judgment will there be of how big the geographical area is? There is no real definition of that, and it would be helpful if the Minister would clarify it for us.

Should the authorisations for the clause 60 powers be made public? The argument is: if we make them public, what is the point of having them because people will avoid the area? However, lots of people say that if there is a perceived threat in the area, it helps if they know about it. If the authorisations should not be made public, what is the Government’s thinking on that? Is it simply regarded as unnecessary, not helpful or whatever?

Can the Minister also tell us whether the decision will simply continue to be a policing and Home Office one? Does he see a role for any judicial authorisation with respect to the use of stop-and-search powers? We have seen the huge disquiet there was under the previous use and some of the issues that have arisen. Does the Minister think that some sort of judicial authority will be involved in the authorisation of stop and search—not a High Court judge but perhaps a magistrate?

If the Minister is concerned about compliance with human rights legislation, the judgment of the European Court of Human Rights and the need to retain public confidence in something that is intrusive and, at times, controversial, should there be a judicial process? Even if there is no judicial process for the whole 14 days, is there a case for judicial authorisation to allow the police to take immediate action if they need to do something within the next 24 or 48 hours? Would that be appropriate?

Is the Minister convinced that these new powers, which are essentially stop and search without reasonable suspicion—albeit in a more tightly defined area—are still significant? Is the Minister confident that the powers that he and the Government have laid out are sufficiently circumscribed in their extent, and are the safeguards that we all think necessary included in the Bill? Will the Minister take us through the process referred to in clause 60? I presume the term “senior officer” means a superintendent or above because that is the case under the Terrorism Act 2000. However, I want to make sure that there will be no change in that respect and that an officer of the rank of superintendent or above can make a decision on stop and search. Is it necessary for the senior officer to reasonably suspect? The Bill states

“reasonably suspects that an act of terrorism will take place,”

but what does that mean? Does it relate to a belief that such an act will take place or does there have to be evidence that it will take place? Fairly obviously, if someone has a belief that something will happen, it is a little less tight than if someone suspects that it will. The legislation states “suspects,” but will the Minister clarify whether he actually means “reasonably believes” that such an act will take place?

As I said, many of these matters will be dealt with in the detail of the Minister’s comments. It is very easy to say that the measure will be used only when the senior officer reasonably suspects that officers should be able to stop and search without reasonable suspicion on the ground; it is very easy to say that there will be a much tighter geographical area and it is very easy to say “no longer than is absolutely necessary”. All those things are fine, but what do they actually mean in practice? We need more clarification and detail from the Minister about those aspects of the Bill. As the measure is set out at the moment, it contains very broad powers and broad definitions. However, there is not much clarity about them.

Finally, I would again like to ask the Minister what “driver” means. Under section 43, the driver of an aircraft, a hovercraft or a vessel—a captain or a pilot—may be stopped and searched not only with reasonable suspicion, but without reasonable suspicion. How will that work in practice, given that it is not just the captain or pilot who may be searched, but any member of the crew? Is the Minister saying that a liner or an aircraft may be stopped and every member of the crew searched without “reasonable suspicion”? There is a lack of clarity. The Government are trying to say the right things, and they have put the words in the Bill, but many of us in the Committee and out there need to know a little bit more about some of the definitions that the Government have used.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I hope to be able to respond to as many of the hon. Gentleman’s questions on the new provisions in clause 60 and the replacement powers of stop and search.

There is wide acceptance that the police need, and should have, some form of terrorism stop-and-search power that does not require the officer on the ground to reasonably suspect that an individual is a terrorist. That is the distinction between what we have in clause 60 and what was in clause 59. Lord Carlile, the previous statutory reviewer of terrorism legislation, indicated that, and Lord Macdonald, the reviewer of the counter-terrorism and security powers, agreed.

Clause 60 will insert new section 43B in the Terrorism Act 2000, and there are supplementary provisions in schedule 5. Together, they will replace the powers in sections 44 to 46 of the 2000 Act. For example, the hon. Gentleman asked about the level of seniority of the police officer, and that provision is contained in schedule 5. Details are provided in clause 60, but I also draw hon. Members’ attention to schedule 5, and no doubt we will debate specific issues on that.

The new powers will allow a senior police officer to authorise the stopping of vehicles and pedestrians to search for anything that may constitute evidence that a person is a terrorist or that the vehicle is being used for the purposes of terrorism. A constable in uniform may exercise the powers once authorised, even when they do not have a reasonable suspicion that such a search will result in evidence of terrorism. However, a senior police officer may make an authorisation only in restricted circumstances. An authorisation may be given only if the senior police officer reasonably suspects that an act of terrorism will take place and considers that the authorisation is necessary to prevent such an act. Furthermore, the areas or places specified in the authorisation must be no greater than is necessary and the duration of the authorisation no longer than is necessary. The threshold for granting authorisation will be far higher than previously. The power will be far more focused, and the safeguards to prevent misuse of the power will be stronger.

To return to a number of points that the hon. Gentleman made on the change to the test, which is important, he will note that the concept of “reasonable suspicion” is encapsulated in existing section 43. That concept has been brought across to the powers that we are discussing. It was interesting that the right hon. Member for Kingston upon Hull West and Hessle (Alan Johnson) said

“it does seem to me sensible to change the test for authorisation from ‘expedience’ to ‘necessity’ and to use a test of ‘reasonable suspicion’”.—[Official Report, 8 July 2010; Vol. 513, c. 541.]

We are seeking to raise the bar on what will be required in the utilisation of the approach and the process. We have sought to apply consistency with terminology that is already understood, and applied by the police in their utilisation of the existing provisions. Reasonable grounds for suspicion depend on the circumstances in each case. There must be an objective basis for the suspicion; we cannot just create one. The suspicion must be that the person is a terrorist, for example, or the vehicle is being used for the purpose of terrorism based on relevant facts, information and intelligence. “Reasonable suspicion” must rely on intelligence and information about, or behaviour by, the person or vehicle concerned. I hope that gives some clarity as to why we have arrived at that use of words and how they may be interpreted in any given situation.

Vernon Coaker (Labour, Gedling)

That is helpful and I agree with it. That is a higher threshold. I also agree with my right hon. Friend the Member for Kingston upon Hull West and Hessle.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I am grateful to the hon. Gentleman for coming back on that. I hope I will be able to address some of his other points as well, such as those on geographic area. As I have indicated, we want to ensure that the provisions are used appropriately. No doubt the hon. Gentleman has looked at the code of practice, which has already been published alongside the remedial order. The guidance in those notes is that the area authorised should be no wider than necessary. It looks at necessity based on the information and intelligence that is available to the police in making that decision. There has been some pressure to say that the area should be limited to 1 square kilometre. Liberty recommended that at one point. I understand that the intention is to provide certainty, but the problem is that intelligence is not an exact science. The provisions provide for a more focused and fairer power, but it would not be appropriate to restrict the power yet further. That view was supported by Lord Macdonald who provided independent oversight in the review.

The hon. Member for Gedling flagged up a point about whether we had considered some form of additional oversight by the courts through a judicial process. That comes back to our consideration of the measure. The responsibility for national security decisions resides ultimately with the Government, albeit that the courts are there to review such decisions as necessary. We concluded that the appropriate way forward was to make provision in this way, rather than having some form of extra judicial authorisation, which we decided was not appropriate in this case.

The hon. Gentleman also highlighted the limiting of the authorisations to 14 days, rather than 28 days. We are looking at authorisation being for a limited period and being as short as possible. Although we may provide for 14 days as a maximum, there are other provisions. If the Secretary of State felt that an authorisation was too long, for example, it could be restricted under a new provision in schedule 5—I apologise if I am jumping around, but I hope that it explains some of the rationale and why it is intended to be a limiting power—and it would be used to that limited extent.

We chose the 14-day period because, obviously, intelligence about terrorist attacks rarely gives an exact time and place. Restricting the maximum time limit even further would risk making the new power ineffective. That is why we fastened upon 14 days.

The hon. Gentleman also talked about the availability of information and evidence, and the approach taken to an authorisation and its duration. He raised that in relation to renewals, and so on. An authorisation should be given for no longer than necessary and should not be made for the maximum period unless it is necessary based on intelligence about a specific threat. Justification should be provided with the length of an authorisation and should set out why the intelligence supports the amount of time authorised. If an authorisation is similar to another immediately preceding it, information should be provided about why a new authorisation is justified and why the period of the initial authorisation was not sufficient.

That point is set out in the code of practice that was published alongside the remedial order and gives further clarification and guidance. New authorisations are not intended to provide some sort of rolling authorisation under

“section 47A of…the Terrorism Act 2000. A new authorisation… may be given if the intelligence which informed the initial authorisation has been subject to fresh assessment and the officer giving the authorisation is satisfied that the test for authorisation is still met on the basis of that assessment. Where a successive authorisation is given, it may be given before the expiry of the existing authorisation…but that existing authorisation should be cancelled.”

I hope that the hon. Gentleman and the Committee find that informative on the manner in which the power will be applied.

On making the authorisations public, as the hon. Gentleman knows, we are seeking to take an approach similar to that taken in section 44 of the Terrorism Act. It would not be sensible to publicise the existence of no-suspicion authorisations beforehand as it may give some indication of the thinking of the police or the security services on a terrorist threat. It may be of assistance to terrorists and those who seek to prey and cause harm to know what the police may be thinking about operationally and what intelligence the police may have on particular issues. It would not be sensible, therefore, to make such information public in that way. It could prove more harmful than beneficial.

On authorisation to search vehicles, in principle anyone could be searched without reasonable suspicion if a vehicle was stopped. The definition of a vehicle is the same as in the Terrorism Act. It is an exceptional power, but unlike the section 44 powers, it has much stronger safeguards to ensure that it is not misused by the police. We have sought to adopt the existing terminology in the Terrorism Act, which was drawn up under the previous Government. We are not trying to create new definitions. The language follows the established precedent.

Vernon Coaker (Labour, Gedling)

I know we will have to carry on this discussion later this afternoon, but will the Minister explain how the provision will affect subsection (5) of proposed new section 43A of the Terrorism Act, which addresses the drivers of planes and boats, and so on?

James Brokenshire (Conservative, Old Bexley and Sidcup)

Good afternoon, Mr Streeter. We have been making good progress on our consideration of the provisions in part 4, which amend counter-terrorism powers. Before we adjourned for lunch, the hon. Member for Gedling and I were discussing certain definitional issues, particularly the use of the term “vehicle” for the purposes of the changes in clause 60 and how that relates to clause 59. The hon. Gentleman sought clarification on the use of the term and on how it may be applied, and I hope that the following may be of assistance.

The definition of “vehicle” is set out in section 120 of the Terrorism Act 2000. As the hon. Gentleman will be aware, it includes an aircraft, hovercraft, train or vessel. The existing definition of “driver” is set out in section 44(5A) of the 2000 Act, which provides that

“‘driver’, in relation to an aircraft, hovercraft or vessel, means the captain, pilot or other person with control of the aircraft, hovercraft or vessel or any member of its crew and, in relation to a train, includes any member of its crew”.

That definition was inserted by the Terrorism Act 2006 and came into force on 13 April 2006. The reference to “driver” in the remedial order and in clauses 59 and 60, which provide for the new sections, involves the same definition as that inserted into section 44 of the 2000 Act by virtue of section 30 of the 2006 Act. In summary, the definitions of “driver” and “vehicle” that are used in the context of these terrorism stop-and-search powers will not change as a result of the present clauses.

On the issue of searching, the hon. Gentleman asked whether these are things that we just include without being quite sure why, and about how the public relate to them. Given some of the issues being covered, one might wonder how they relate to the way in which we confront terrorist incidents. However, when one considers that we have a river by the side of the Palace of Westminster, it is clear that we need the ability to stop and search a vessel in the context of counter-terrorism operations, and that is why some of the provisions are quite relevant.

I point the hon. Gentleman to the code of practice that was issued alongside the remedial order. Paragraph 3.8 sets out some of the applications in connection with inland waters such as lakes, reservoirs and rivers. That perhaps gives us a context and explains why the broad definition of a vehicle is appropriate, given how these powers might be utilised. That perhaps gives some practical explanation of the need to frame the legislation in such a way.

Proposed new section 43A(2) of the 2000 Act means that a constable may stop and search a vehicle and the driver of the vehicle provided that they reasonably suspect that

“the vehicle is being used for the purposes of terrorism.”

They could stop and search the individuals in the vehicle only if the reasonable suspicion attached to them.

In the event that an authorisation is given under section 47A of the 2000 Act, the police could stop and search a vehicle, including anyone in it, without reasonable suspicion. In relation to a specified area or place that, for example, includes an airport, the powers will authorise any constable in uniform to stop and search the aircraft in that specified area or place, as well as the pilot, passengers and anything carried in or on the aircraft, or carried by the pilot or a passenger. The same powers may also be exercised in relation to any other vessel, as defined, as well as the captain and the crew, provided the vessel is in the specified area or place.

In relation to the maritime area, paragraph 12 of proposed new schedule 6B provides that an authorisation may specify an area or place together with

“the internal waters adjacent to that area or place; or…a specified area of those internal waters.”

I know that that is complex, but further guidance on and definition of the term “internal waters” is in the code that is issued as part of the steps that are being taken. I hope that that gives further guidance on the application.

Vernon Coaker (Labour, Gedling)

That is quite technical, but it is helpful. I understand that the definition of “internal waters” does not mean the middle of the sea.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Correct.

Vernon Coaker (Labour, Gedling)

Is it correct—this is what I would guess—that it means the shoreline, river estuaries and so on? I know that we will consider Northern Ireland when we discuss clause 62, but are the provisions on internal waters the same for Northern Ireland?

James Brokenshire (Conservative, Old Bexley and Sidcup)

As the hon. Gentleman knows, the provisions in the clause are UK-wide. Again, it might help him to know that the code of practice refers to the term “internal waters”. In essence, it is the low water line at the coast.

The hon. Gentleman asked me to help the Committee by being specific. As he knows, when getting such things right—I remember many happy days at university studying the laws of the sea and some of the technicalities involved—it is important to understand what we are talking about and how the powers will be used. Perhaps this is a bit of light relief from some of the discussions that we have had in preceding debates. We have sought to be quite technical. The terms are understood in the context of the Bill and we have not created any new construct or terminology. Therefore, having genuinely tried to address the hon. Gentleman’s questions on clause 60, I hope that the Committee will be minded to agree to it.

Schedule 5

Vernon Coaker (Labour, Gedling)

In the spirit in which the Committee has conducted its business, I wish the Minister luck with clause 60, to which schedule 5 refers, because it will be a lawyers’ dream. I understand his difficulty with definitions, and I honestly wish him luck. The search of liners in port and so on will be interesting.

Schedule 5 sets out provisions to be added to the 2000 Act. I re-emphasise some of the points about the schedule to the Minister and the Committee. Again, it refers to the power of the constable. I reiterate that I am pleased that the Minister said that he would reconsider the searching of headgear and write to the Committee about what it will mean. We have seen what problems have occurred, so the point is important.

The schedule includes powers to search headgear in public, but there is no provision to do so in private. An officer cannot stop and search someone and say, “You must come back with me to the station in order for me to conduct that search.” Presumably, “in public” means on the street or in a public place. It would be helpful if the Minister confirmed the “in public” aspect of the provision.

There is no upper limit on the amount of time for which a person or vehicle may be detained. The schedule sets out that a person may be detained for such time as is “reasonably required”. What is reasonable? Will the Minister point out whether anything in the code of practice specifies what might be regarded as a reasonable period? He will appreciate that points such as defining what is reasonable never matter until they matter. However, there is no upper limit, so I hope that the Minister will tell us more about what is reasonable.

If someone is stopped and searched, they will be able to request a statement setting out why. Will the Minister explain why people can still apply for such a statement 12 months afterwards? People need to be made aware that they can request a statement, and I understand why they might want a couple of weeks, a month or six weeks to apply, but I do not understand why they would need 12 months. Perhaps there is a good legal reason that I have not thought of, or perhaps the Government are simply trying to be extremely fair. It strikes me, however, that 12 months is an inordinately lengthy period for someone to consider whether they want to ask the police for a statement of why they or their vehicle have been stopped and searched. Is there a reason behind that?

A senior police officer will be able to authorise a stop-and-search without reasonable suspicion if there is an urgent need to do so, but such an authorisation will last only 48 hours if it is not confirmed by the Secretary of State. The Secretary of State may refuse to grant an authorisation if she chooses to do so, and anything that has happened as a result of the senior police officer’s authorisation will not be regarded as having been unlawful. If that situation occurred on a number of occasions, particularly in one area, would there be a review of what was happening in that area to cause those applications for authorisation to be made? There might be a need for some sort of general understanding of what was going on in an area to determine why that was happening.

We would expect the number of refused authorisations to be small, particularly with the new tightened criteria that the Government are introducing in the schedule. If something was regarded as urgent, however, and the Home Secretary refused it, it would be important to try to understand what had happened. Would that be subject to a review?

Under the schedule, stop-and-search powers may be used not only in one area, but in different areas. Will the Minister explain that process? Will each area need a separate authorisation, or can one authorisation apply to four or five different areas covered by a police force? I am not clear, because, according to the explanatory notes and the Bill, it seems that authorisations could be for different durations. Can such an authorisation capture a number of areas, or are multiple authorisations required?

Alongside that, is it possible to have authorisations between police forces? If it is not, it should be. Will it be possible under the schedule to have an authorisation in one police force area that relates to an authorisation in another? If so, which assistant chief constable will authorise that? Will there be a joint authorisation between two or three assistant chief constables of two or three relevant police forces, or will there be an agreement that one assistant chief constable may authorise on behalf of the others?

I apologise to the Minister for the one or two technical points that I have made. In some respects I am trying to support what the Government are doing, but I am also trying to tease out some of the potential practical consequences and difficulties in pursuing the Government’s aims. I look forward to the Minister’s response.

James Brokenshire (Conservative, Old Bexley and Sidcup)

The hon. Member for Gedling and I have had various exchanges over the years in which he has passed himself off as an effective legal analyst. After all the training that he has done, and given some of the points that he is raising, I am now wondering whether he is starting to rival my hon. Friend the Member for Northampton North.

Vernon Coaker (Labour, Gedling)

Flattery will get you everywhere.

James Brokenshire (Conservative, Old Bexley and Sidcup)

It will get you a certain way.

The hon. Gentleman made serious and detailed points. His understanding of the term “public” is right. He asked about the length of time for which a person or vehicle may be detained. That must be reasonable and kept to a minimum, and the search must be carried out

“at or near to the place where the person or vehicle is stopped.”

A person or vehicle may be detained under stop-and-search powers at a place other than where the person or vehicle was first stopped only if that place—a police station or otherwise—is nearby. That is very much the context of what is reasonable.

It is worth saying—this perhaps touches on another of the hon. Gentleman’s points—that the powers will be subject to review by the statutory independent reviewer. He will have access to all relevant information, including any relevant classified information, and may provide reassurance about the confirmation or otherwise of the authorisations. That touches on the practicality of how some of the powers are being used, and also on the point that the hon. Gentleman made about patterns of authorisations that were sent to the Secretary of State for approval and then not approved—in other words limited to a 48-hour period. If I were the Secretary of State in such circumstances, I imagine that I would be asking questions about the forms and how the process was operating practically. As a further external assurance to Parliament, the independent reviewer would be able to examine such a matter further.

The hon. Gentleman asked whether an authorisation could cover more than one area. The answer is yes. For example, if there was intelligence that various geographical areas might be affected, such a process could be contemplated by virtue of the Bill’s provisions.

The measures allow an authorisation to specify one or more areas, as I have said. That could cross police force areas. The Association of Chief Police Officers counter-terrorism co-ordination centre will facilitate any such cross-force request. We can envisage that there might be a specific geographical area that straddles police force areas, and the process would be co-ordinated through ACPO to ensure that the matter was dealt with appropriately.

The hon. Gentleman talked about geographical factors, but there is also the non-geographical, such as if we are talking about the co-ordination that might apply with the British Transport police. It is worth drawing his attention to how the code of practice would operate practically and the notification that would be given to the relevant police force. For example, if the British Transport police sought authorisation in relation to a particular station where it had jurisdiction in a geographical police force area, there is specific guidance on how the notification to the relevant police force area should operate. The application process can work in a number of ways, but there is a need to ensure, for example, that appropriate notification is given to host police force areas in the normal way.

Vernon Coaker (Labour, Gedling)

I am not quite clear about that. The Bill specifically sets out what rank of officer can apply for an authorisation. The Minister has just said that if the application went across police force areas, the ACPO counter-terrorism lead would co-ordinate it. Does that mean that they would apply for the authorisation? Who applies for the authorisation? If two adjacent police forces are affected, do two assistant chief constables apply, and is that then verified by the ACPO lead? Will the Minister flesh out the process?

James Brokenshire (Conservative, Old Bexley and Sidcup)

My understanding is that the ACPO counter-terrorism co-ordination centre would facilitate discussions between the relevant senior officers in the police force areas to determine who would be best placed to make the application and put it to the Home Secretary. The mechanism is more a process of practical facilitation, but if I have in some way misstated that, I will look carefully at the record of our debate and add further clarification, if that is appropriate. However, that is my clear understanding of the matter.

Vernon Coaker (Labour, Gedling)

That would be very helpful. Is there then one authorisation for police force areas? Perhaps the Minister will clarify that point, because I am not sure myself.

James Brokenshire (Conservative, Old Bexley and Sidcup)

My understanding is that there could be one authorising officer, given the nature of the drafting. If I have in any way misstated that, I will certainly seek any appropriate clarification, just to be certain for the Committee and others. However, that is my understanding of the how the provision has been drafted. As the hon. Gentleman knows, under section 44, as was, these issues have been relevant. I am quite sure that there is established practice, protocol and procedure for resolving such cross-border issues. I think that this is a point of practical and operational detail, rather than a substantive issue of concern about the application of the provisions, but I hope that my comments have been helpful.

Clause 61

Vernon Coaker (Labour, Gedling)

The clause deals with the code of practice. The Minister referred to this code of practice, which was published alongside the remedial order that the Government brought in quickly, shall we say, as we are being nice to each other again, and for all sorts of reasons. I have some questions about the code of practice.

Proposed new section 43C(1) of the Terrorism Act 2000, particularly paragraph (d), needs to be looked at again. It is not that it is a dramatic problem or totally wrong or anything like that, but it lays out who the Secretary of State should consult. It says:

“The Secretary of State must prepare a code of practice containing guidance about… the exercise of any of the powers mentioned in paragraphs (a) to (c) as the Secretary of State considers appropriate.”

We need to be careful about how we consult and who we consult with.

Was there any consultation about the code of practice that was published alongside the remedial order? Have the Government invited any comment on that code of practice, so that dealing with this code of practice, which is essentially the same legislation as we have just passed, will be informed by a consultation on the code of practice that is out there at the moment?

The Minister talked about the significance of consultation, which is really important. Who are the sorts of people he thinks should be consulted about a code of guidance? The communities that are affected? Other people? It would be interesting for us to know who he thinks should be consulted.

Adherence to the code is statutory. How does the Minister see the code operating? How will people be informed of their rights under the code? What is the process? He rightly made great play of reducing bureaucracy, but what will an officer be required to tell somebody whom they stop and search on the street? How will that be recorded? Will it be monitored by the Government? Will a police and crime commissioner do the monitoring? Even if there is piloting, how will that be done? The Deputy Prime Minister said on the “Today” programme this morning that we could pilot the police and crime commissioners’ examination of those powers. What does the Minister expect the code of guidance to say about that?

The code of practice sets out a number of quite important things. I will use a couple of examples, rather than going through all the various examples that I might give. The code of guidance refers to stopping and searching with respect to photography, saying that it is not the intention of any Government legislation to prevent people from taking photographs. We all know about the problems with the taking of photographs and the numerous complaints that we all received about people who had been taking photographs but had their camera taken from them because they were taking photographs of a building.

I always found that amusing in one sense, not because it happened—obviously, that was wrong—but because at the time that it was happening we would often be asked by people outside the House to hold their cameras and take pictures of police officers and Parliament. There did not seem to be any restriction at all. Similarly, in Downing street everyone takes photographs, yet we had continual complaints about people being stopped, and indeed searched, because they had been taking photographs—presumably because they were regarded as having acted suspiciously. The code of practice says that that must not happen. Indeed, the previous Government often said that it should not and must not happen, yet it continued to happen.

I say to the Minister that a code of practice is one thing and a statutory code another, but how we put the code into practice is quite important.

Can the Minister say a little more about the actual process that he expects to take place if someone is stopped and searched under the powers? What exactly is expected to be recorded? What information is supposed to be given to the person? Who is responsible for monitoring the information? Will the local police force be solely responsible for collecting or managing the data, or will the Government look at the data and see how many stop and searches are taking place? On the other hand, in their efforts to reduce bureaucracy, will the Government not want to collect the information on a national basis?

Also, importantly, the code of practice talks about the need to ensure proportionality. Can the Minister confirm that the code of guidance will lay out clearly whether ethnicity will still be expected to be recorded under the stop-and-search powers and whether it will be an important part of what is happening? A concern that everyone has on stop and search is disproportionality. Will the Minister clarify for us how the code of guidance that he intends to issue will address proportionality?

To be fair to the Minister, I thought that the code of practice was a good document. I have to say that I have issued quite a number of good documents. Not all were good—some were brilliant, some were good and others were not quite up to the standard that one would expect, in retrospect—[Interruption.] It is difficult to believe, but it is true. I will not use every single example that I could from the code of guidance, or we could be here all day, but I have used some examples regarding disproportionality, photography and the processes that we expect to happen in the interrelationship between a police officer and a member of the public. Notwithstanding what the Minister said—that the document will be statutory—how does he expect to make the code a reality on the street? Many documents and codes of practice have the force of law behind them and yet do not always deliver the results that we would want when it comes down to it.

Will the code of practice make it clear that the powers are expected to be used by uniformed police officers? What will be the case for a warranted officer but not in uniform? I know it sounds ridiculous, but a warranted officer not in uniform has no power under the clause. Will the code make clear what powers a police community support officer will have? A PCSO has powers under the stop-and-search clauses. I think there is always confusion between what a PCSO can do and what a police officer can do. The thing that I did not see in the code of guidance—the Minister may be able to point this out—is what power a PCSO has on stop and search, as opposed to the power of a fully warranted officer. Above all, I would like the Minister to confirm that consultation is taking place on the current code of practice that is attached to the remedial order, that people are being encouraged to comment, and that those comments will be used to inform the future code of practice published under the provisions of the Bill.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I welcome the hon. Gentleman’s comments on the code of practice that has already been issued, and I thank him for his kind comments, not for me, but for the officials and the team who were involved in the preparation of the document. The code is kept under review.

The hon. Gentleman asked me about the preparations for that code. We consulted the police on the remedial order code of practice. Because of the need to move quickly, it was decided that it should be published and made available through the Home Office website in the usual way, given that at the moment it is a non-statutory document.

The provisions in the clause recognise the statutory nature of the code of practice. I am sure the hon. Gentleman will have noted my earlier comments about the consultation that we intend to undertake on the code of practice to be issued for the new section that the clause will insert into the Terrorism Act 2000, given that that code will have a slightly wider application than the one for the remedial order. As I said this morning, the code will be subject to consultation with stakeholders across the security and law enforcement community, civil liberties groups, other interested parties and the public. The code will be subject to the affirmative resolution procedure, and it will therefore have to be debated in this House, when further points and issues can be flagged. It is intended that the preparation of the code will be subject to that wider consultation, following the passage of the Bill.

We have learned the lessons of section 44 of the 2000 Act that non-statutory guidance and widely drafted terrorism powers run the risk of being misused. I point out to the hon. Gentleman that the much more focused section 47A power will reduce the scope for that. It is not simply about the guidance; it is about the law and how the law is framed and applied. He cannot simply look at the code in isolation, but must go back to the law.

The hon. Gentleman has sought clarification on the steps that will be taken before any search, including explanations to be given to people if they are stopped and searched under the powers, and on the record made of searches. I point him to what is currently envisaged in the code about what will happen—for example, paragraph 5.4 is on the nature of the information that will be recorded. That goes into a lot of detail, and rather than detain the Committee by reading out large extracts of the published code, I refer the hon. Gentleman and other hon. Members to the detail in paragraphs 5.2 and 5.4 of the code.

Vernon Coaker (Labour, Gedling)

I accept that. I understand, from what the Government have said about the Bill and what is included in it, that figures will be collated at a local, not a national, level. Is the Minister satisfied with that? Frankly, I am not. There should be a national collation, so that we can understand the national impact. Can the Minister confirm that figures will be collated at a local level, and that there will therefore be no national compilation of stop-and-search figures, particularly on disproportionality?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I take seriously the point made by the hon. Gentleman. Obviously, in the past there has been a national collation on the existing use of stop-and-search powers, and there will be in the future. My clear understanding is that there will be a national collation of those figures, so that those factors and issues can be assessed properly, and that information is relevant.

Vernon Coaker (Labour, Gedling)

Is the Minister talking about ethnicity or the general stop-and-search power?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I understand that there will be a collation of the general stop-and-search power. Again, if there is some misunderstanding between us on that point, I will certainly look into the issue further for the hon. Gentleman, and if it would be helpful, I will provide further clarification.

Vernon Coaker (Labour, Gedling)

I have no ego about such things. If I am wrong, I am wrong. My understanding is that the national compilation of stop and search will be with respect to ethnicity, not the general sorts of things. One of us has not quite got this right, and if I am wrong, I am wrong, so we will leave it at that. Perhaps the Minister could clarify whether I am wrong or he is, or whatever.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I would never want to try and rub the hon. Gentleman’s nose in it and say that he is automatically wrong, but my clear understanding is that there is to be national collation of the stop and search numbers. We can have a discussion outside of the Committee in due course as to the whys and wherefores, but I hope that is helpful, because it is important to have national collation.

The hon. Gentleman also mentioned the reality of a document and the utilisation of the code and how it will operate in practice. He will obviously be familiar with the Police and Criminal Evidence Act 1984 and the codes that sit alongside it and with how they have been real, practical and usable documents that are part and parcel of the utilisation of powers within the stop and search provisions in PACE. There is nothing to suggest that the code would not develop in the same way, be used in the same way and have the same status that the PACE code has. While I hear the hon. Gentleman’s concern about wonderful documents that get created and how they are then used, it is a practical document in its own right, which will have the same standing as, for example, the PACE codes that relate to stop and search under those separate provisions and under that separate Act.

Police community support officers can stop a pedestrian or a vehicle in the company of a supervising constable. They can search anything in or on a vehicle or anything carried by a person, but they cannot search people or their clothes. I provide that clarification to the Committee, and I am sure that whether there is any need to spell out further details about PCSOs will be part of the consultation on the code of practice.

I hope that I have addressed the hon. Gentleman’s questions about the code of practice, how we intend it to operate and the fact that it will be an important document and an important part of the way that the provisions are used practically. As I have said, they will be subject to further consultation, which will give hon. Members, and those most directly connected with the prevention of terrorism, the opportunity to reflect not only on this debate, but also on the existing code that has been published in the development of the statutory code that will sit in relation to clause 61.

Clause 62

Vernon Coaker (Labour, Gedling)

I beg to move amendment 165, in clause 62, page 42, line 40, at end add

‘except in removing the right for PSNI to stop and search for unlawful munitions and wireless apparatus without reasonable suspicion’.

Let me say to the Minister that it has been a very good three hours or so in which we have debated the Bill today. I now have the information that I wanted to enable me to bring a couple of things forward on Report, which will be more informed than they would have been before, so I thank him for that.

Clause 62 introduces schedule 6, which includes the stop-and-search provisions as they relate to Northern Ireland. I tabled the amendment to gain an understanding of the Government’s intentions. First, can the Minister confirm that the Northern Ireland Government agree with the provisions in clause 62 and schedule 6? With respect to amendment 165, why are the Government removing the right for the Police Service of Northern Ireland to stop and search for unlawful munitions and wireless telegraphy without reasonable suspicion? Why is that right being removed from the PSNI but retained by the military? I am trying to get clarification in my own mind about why this change is being brought about.

I am not an expert on Northern Ireland, and the hon. Member for Strangford may wish to make a contribution. However, given the normalisation with which we are all engaged, and the progress that we have all been trying to achieve in Northern Ireland, it seemed odd to me. There may be a good reason for it. However, this is a probing amendment to find out why the military will have an extensive power to search without reasonable suspicion but the PSNI will not have that power.

Jim Shannon (DUP, Strangford)

I would not say that I am an expert on Northern Ireland, but I have lived there all my life, so perhaps I have a slight edge in my knowledge about it. However, I wish to reiterate the points that the hon. Member for Gedling has made.

First, policing and justice have been devolved. I am aware that a lot of responsibility has been handed over. I would like to know what correspondence and discussions there have been with the Policing and Justice Minister and, indeed, with the First Minister. I do not understand why the British Army would have the right of search, whereas the Police Service of Northern Ireland does not. Perhaps we might have some clarification of how that rolls out.

The reason why it is so important today—I am not making a political statement, I am just making a comment—is that we have moved on from an IRA campaign of 30-plus years. We all support the democratic process and we are moving forward. At the present time there is an increase in dissident republican activity, which is out to destroy the political process which we all agree with.

Can the Minister tell us how and why there should be any disadvantage to the Police Service of Northern Ireland, which has had responsibility for search powers on many occasions? The British Army does not have the active role on the streets of Northern Ireland that it once had. I do not agree with that; I would like to see it on the streets. However, I would like some clarification. It is important that we are all aware of where we have been, where we are today and where we are going to be in the future, ever mindful that certain people out there are trying to destroy that.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I appreciate the comments made by the hon. Members who have contributed to this debate. It is clear that there is a continuing threat, and we have seen that in recent weeks, brought into stark focus by the murder of Police Constable Ronan Kerr on 2 April. It was a despicable act on a young man serving his community, perpetrated by individuals intent on defying the wishes of the people of Northern Ireland for a peaceful future free of fear and intimidation. It underlines the need for resilience and real focus, as the terrorists will not succeed in their attempts to destabilise the political process and return Northern Ireland to the dark days of violence in the past. I think we are all unified in that approach.

I want to reassure the hon. Gentleman and other members of the Committee that these changes do not water down the powers or hinder police use of them. The changes put additional control and accountability mechanisms in place to keep the powers consistent with UK-wide powers in the Terrorism Act 2000. My right hon. Friend the Secretary of State for Northern Ireland has discussed these provisions with the Chief Constable of the PSNI and with the Northern Ireland Justice Minister, and they are content that the changes will not hinder the PSNI in its works, or create unnecessary bureaucracy. If the test for authorisation is met and the powers are necessary, the powers will be available. It is important for me to state it in those terms.

Clause 62 gives effect to schedule 6, which amends the stop-and-search powers in the Justice and Security (Northern Ireland) Act 2007. The proposed provisions in the Bill make changes to the stop-and-search powers exercised without reasonable suspicion. They do not remove those powers. The provisions seek to ensure that the stop-and-search powers in Northern Ireland are consistent with the replacement section 44 stop-and-search powers in the Terrorism Act 2000, which operate UK-wide. Accordingly, we are introducing a similar authorisation process for the use of stop-and-search powers without suspicion, as is being provided for in the 2000 Act. An authorisation may be granted where a senior officer reasonably suspects that the safety of the person may be endangered by the use of munitions or wireless apparatus and that the authorisation of powers is necessary to prevent such danger.

The provisions in schedule 6 also create a new power for the police to search with reasonable suspicion. As I have said, that has been closely considered by my right hon. Friend the Secretary of State for Northern Ireland in the context of the PSNI and with the devolved Administration. They are clear that they will not hinder the PSNI in its work. While I recognise the point that the hon. Member for Gedling is seeking to probe, we consider that the PSNI will ensure that safety and security is maintained.

The hon. Member for Strangford highlighted the distinction between the PSNI and the military. This has been given careful consideration. It is worth stating that the military powers are designed to be used only in extremis—for example, if military support were needed during serious public disorder. It is equally worth underlining that there has been no recorded use of the powers since 2007. The military operate under police tasking, so in any event there would already be significant controls in place. It has been carefully considered and obviously we wish to bring together a normalisation approach, as the hon. Members for Strangford and for Gedling have rightly identified.

This is a step in that direction, albeit we very much hope that we will continue to work with the devolved Administration to further that, to continue progress and to ensure that Northern Ireland has the settled, peaceful environment that all members of the Committee would wish to achieve. Part and parcel of that is ensuring security and safety so that we can develop and take those very important reforms forward and deliver on that very important goal for Northern Ireland. I hope that those comments are helpful and that the hon. Member for Gedling will be minded to withdraw his amendment.

Vernon Coaker (Labour, Gedling)

Up to a point, that is fair enough. What the hon. Member for Strangford was saying is important. We all deplore the recent murder of the police officer and we all want a peaceful Northern Ireland. I do not intend to press the amendment to a vote, but I find it strange that the Minister felt the need to justify the Army’s retention of this power. He said that it had not been used for years and was only to be used in extremis, but in the context of normalisation it is quite strange for the police to be denied a power that the military retain. The Minister’s defence was partly that this was simply about trying to bring Northern Ireland into the same position as the rest of the UK, but one difference, certainly—I do not know whether the hon. Member for Strangford has noticed this—is that a senior officer could authorise stop-and-search powers for the whole of Northern Ireland. That is not a limited area; the geographical area could be the whole of Northern Ireland. The Minister has said that we are changing the law to make it consistent with the rest of the UK, but I do not think that allowing a stop-and-search authorisation to be granted for the whole of Northern Ireland is consistent with the position in the rest of the UK. I do not know whether there are other differences with respect to that; there may be.

I do not intend to put the amendment to the vote, but when the hon. Member for Strangford talks to his colleagues they might be surprised. We may find that when people become aware of it, they will be surprised that the military retain a power that will be restricted for the police, even if the Minister does not accept that it will be taken away from them.

Jim Shannon (DUP, Strangford)

We are the only part of the United Kingdom to have a terrorism war that lasted for 30-plus years. We are the only part of the United Kingdom—unlike Scotland, Wales and England—that had more than 3,000 people killed in the terrorist campaign. Our need to have that potential has been well underlined. I do not think that the intention is to press this to a vote, but in response to the Minister we want to put it on the record that the police need every weapon in their armoury so that they can combat terrorism whenever it comes. At this moment in time, it is very real.

Vernon Coaker (Labour, Gedling)

I accept that, and the hon. Gentleman’s obvious passion and feeling says everything. It is not my intention to press the matter to a vote, but when people read this, the Government will need to justify their proposal further.

I am not playing with words, but the Minister was being very careful to say that the Chief Constable in Northern Ireland and the Justice Secretary in Northern Ireland were content. We need to know, however, that there is wholehearted agreement with the change. That is different, in a sense, from being content. We all know that we sometimes say that people are content with something, by which we mean that they sort of agree.

We need to have a greater debate and a bigger discussion about this matter. The hon. Member for Strangford and I will be asking more people how this has come about, the reason for it and whether it is consistent with what people would expect to happen in Northern Ireland. It seems strange to me that in principle we are passing legislation that restricts the power of the PSNI but maintains that power for the military, at a time when we are trying to move to a more normal process. I am not sure that the Minister has totally answered that, but I beg to ask leave to withdraw the amendment.

Clause 63

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I beg to move amendment 121, in clause 63, page 43, line 18, at end insert—

(za) physical assistance which is given to a child who is in need of it by reason of illness or disability and is given in connection with eating or drinking (including the administration of parenteral nutrition),’.

Gary Streeter (Conservative, South West Devon)

With this it will be convenient to discuss Government amendments 122 to 142.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

Before I speak to the Government amendments, it might assist the Committee if I put them in context. This is the beginning of the part of the Bill on vetting, barring and criminal records.

The vetting and barring scheme was developed by the previous Government following the Soham murders, which shocked the whole nation. The scheme was developed from a desire to protect children and to ensure that the Soham murders never happen again, but in its development the scheme went too far and became disproportionate. There have been unintended consequences in which 11 million people would have been required to register and be monitored under the original scheme.

The previous Government recognised that there was an issue and asked Sir Roger Singleton to look at it, and his recommendation reduced the figure to 9.3 million people. The coalition agreement said that the Government would

“scale it back to common sense levels.”

We want to find a balance so that we protect children and vulnerable adults by ensuring that we deal with the real risks without stopping those people who want to help and mean no harm. We also want to find a balance between the employer and the state, which have a shared responsibility in safeguarding children and vulnerable adults. We were concerned that the scheme had become a tick-box process. Our measures address that imbalance.

Colin Reid of the NSPCC summed it up well:

“We support the concept of not having unmerited checking.”

We will discuss what is meant by “unmerited”. He continued:

“I think that checking everything distorts what the CRB and the ISA are about, and we welcome structures being put in place to stop unmerited and unsuitable checks being carried out, because that has been one of the issues that has dogged this scheme, where people have felt that they need to get checks for a one-off disco in a school. That really does not help any of us in the protection of children.”––[Official Report, Protection of Freedoms Public Bill Committee, 24 March 2011; c. 127, Q369.]

That is a brief description of what we are tackling.

We are bringing the vetting and barring systems together. The barring system, along with the CRB check, will be retained for those people considered unsuitable to work with children and vulnerable adults. The clauses in this part will scale back the scope of work by reducing the range of work defined as regulated activity, which is covered by barring.

The need to register with the scheme and the monitoring of criminal records will be scrapped. Controlled activity will also be scrapped. Some 9.3 million people will no longer have to register with the scheme, but a check on barred status will be needed for those going into regulated activity. Changes to the scope of such activity will reduce the numbers subject to the barring list, but enhanced criminal records disclosures will remain available to employers of staff or volunteers who may have close or regular contact.

Criminal records will be provided in future only to the applicant and will be able to be challenged. Disclosures will become more portable, which has been one of the biggest issues for everyone involved in the checking scheme. They will be pleased about that.

There will be an independent review mechanism, which will be introduced to enable more centralised and consistent decision making. We will not allow a person’s information to be disclosed to an employer without their knowledge or consent. Disclosures will not be provided for anyone under the age of 16.

Drawing all those things together will give us the umbrella of protection that we need. Sir Roger Singleton, the chair of the Independent Safeguarding Authority, said:

“The Bill adopts a different approach to its predecessor, but in general, our view is that the safeguarding interests of children and young people are well considered and they are protected in the Bill.”––[Official Report, Protection of Freedoms Public Bill Committee, 22 March 2011; c. 70, Q203.]

The amendments in this group will refine the scope of regulated activity as it applies to children and vulnerable adults.

I will address the amendments to clause 65 first, because a number of the changes to the scope of regulated activity as it applies to children flow directly from the changes made as it applies to vulnerable adults. Taken together the amendments to clause 65 will ensure, as far as possible, that there is clarity on which services carried out by workers and volunteers will fall within the definition of regulated activity. That is important because, as was discovered during the review of the vetting and barring system, there was a wide interpretation of which services and which workers were within the scope. That meant that employers and voluntary workers tended to err on the side of caution, which is not unnatural because they did not know what was right and what was wrong. They were planning to register their staff just in case.

Amendments 133 to 142 make it clearer where regulated activity begins and ends in relation to vulnerable adults so that employers and voluntary organisations can be more confident about who is within scope of the vetting and barring system when recruiting new staff. Should there be any future doubt as to whether a particular health care or personal care service is in or out of scope, clause 65 will enable the Government to prescribe whether such a service is to be included in the meaning of regulated activity.

Let me detail the key amendments in turn. Amendments 133 and 139 remove community care services from the list of activities that constitute regulated activities. Any services that were always intended to be in scope are already covered by other definitions, those being “health care”, “relevant social work” and “relevant personal care”.

Similarly, amendment 135 removes the reference to the provision of training, advice and guidance given in relation to an individual’s specific health care needs. The definition of health care is sufficiently wide to cover training, advice or any guidance that a health worker would provide to one of their patients to help them through their illness or to manage their medical condition.

Amendment 138 moves any form of training, instruction, advice or guidance that is provided to an adult in relation to personal care within the definition of relevant personal care. That relates to the performance of any of the activities listed in new paragraph 7(3A)(a) of schedule 4 to the Safeguarding Vulnerable Groups Act 2006 that are provided to an adult by reason of age, illness or disability, such as eating, toileting and washing. The amendment is included because care workers might provide training or advice to an individual relating to their personal care needs, but not actually provide the care itself.

Amendment 134 is about living independently. It removes the reference to

“the provision to an adult who is in need…by reason of age, illness or disability of any services for the purpose of enabling the adult to live, or continue to live, in accommodation independently”.

That is because such services could be interpreted to include things such as gardening or other property management services. It could even be interpreted to cover delivery drivers for an online shopping service, for example. However, the amendment does not mean that all workers who support people to help them live independently would be excluded from the scheme. The intention is to cover health care, social work, personal care services and day-to-day financial assistance so that workers who provide those services will still be included as a result of falling within the separate definitions in the scheme.

John Robertson (Labour, Glasgow North West)

Could the Minister clarify something? From what the Minister says, it seems that somebody who goes to a person who needs help and talks to them does not need to get any qualifications or certificates, but they could still explain to that person what they are expected to do when they receive some information. That could be a grey area. They may not necessarily be the person who comes to help someone on to the toilet, but they could be the person who comes along to talk to the individual and explain the new bath.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

As I said, the intention is to cover health care, social care, personal care services and day-to-day financial assistance, so the provisions do not cover someone who is just talking.

John Robertson rose—

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

As I said earlier, training, assistance or advice count as part of health care or social care—I thought I had clarified that.

Amendments 135 and 140 narrow down the category relating to the provision of financial assistance so that it covers only persons—“persons” does not include members of the family—who have direct access to the income of an adult who, by reason of their age, illness or disability need assistance with the day-to-day management of their financial affairs. It does not refer to formal arrangements such as those with an enduring or lasting power of attorney, which are covered elsewhere. The effect of the narrowing is to make sure that the provision is not interpreted to cover persons such as bank staff or independent financial advisers who provide occasional financial planning advice. The amendments ensure that the workers who have hands-on access to a person’s wallet, purse or bank account, where the person needs help with their money because of their age, illness or disability, are the ones who will be engaged in regulated activity.

The amendments to clause 65 make two additions to the definition of regulated activity. Elsewhere we are narrowing or lessening the roles. In this case, we are making two additions. Amendment 136 is about first aid volunteers—for example, St John Ambulance, which can give anything from a kind word and a sticking-plaster to life-saving procedures such as resuscitation. In that sense, they are analogous to paramedics who are already covered by the scheme, so the amendment includes volunteer organisations, such as St John Ambulance, but will not include workers who are designated as first aiders in offices and other workplaces.

Amendment 142 brings within regulated activity social security appointees. As with all regulated activity, the amendment does not apply if carried out by a family or personal relation. The amendment is consistent with the approach for including within the scope those who have direct access to an adult’s income and assist with day-to-day management of cash by reason of the adult’s age, illness or disability. That covers the amendments as they apply to vulnerable adults.

Turning to clause 63, many of the amendments—namely, amendments 121 to 128—broadly mirror the ones that I have just described in terms of the changes to regulated activity for vulnerable adults. There is, however, one amendment—amendment 131—that I should single out for special mention. This amendment keeps teaching, training, instruction, supervision of, and all forms of care for, 16 and 17-year-olds in regulated activity. While we are keen to scale back the scheme by removing areas of work from regulated activity where possible, we have met representatives of a number of organisations that work with children, including the NSPCC, the Children’s Society, the children’s commissioner and the Scout Association. They have argued strongly for keeping these types of work with 16 and 17-year-olds in regulated activity. We have listened carefully to them and the amendment does indeed keep 16 to 17-year-olds within the scope of regulated activity. The NSPCC chief executive, Andrew Flanagan, said:

“The government’s amendment is absolutely right. We welcome this wholeheartedly as it will make a huge difference to the safety of young people.”

The amendment is also supported by Opposition Members.

We have to strike a balance between safeguarding young people and ensuring that the vetting and barring scheme is proportionate and does not create unnecessary burdens. The amendment would bring relatively low numbers of people back into the scope of regulated activity, who would not have been if 16 and 17-year-olds had not been included. We believe the figure is around 40,000. Beyond that, the group contains numerous minor technical and drafting amendments. Taken together, they make sensible changes to the scope of regulated activity. I commend them to the Committee.

Diana Johnson (Labour, Kingston upon Hull North)

I thank the Ministers and their officials for the helpful briefing held a few weeks ago. From the Minister’s opening remarks on the amendment, it is clear that the issue is complicated and that it will take the Committee a little time to work through some of the Government amendments fully.

The Government amendments amend the provisions on regulated activity in the Safeguarding Vulnerable Groups Act 2006. I understand that the Government’s intention is to simplify and apply a common-sense approach to the matter, but I caution them that the way that the 2006 Act is being amended will prove even more complicated. The voluntary and community sector are paying close attention. Those who volunteer within it might find the situation in relation to regulated and controlled activity more complicated than previously. Has any thought been given to starting again with the system in order to make it clear what the Government’s intention is? It will prove difficult. As the debate goes on, we will come to amendments tabled to assist the Government by providing for the Home Secretary to make clear guidance and regulations in some areas so that all parties with an interest in this important issue will be clear what their responsibilities are, because it is still confusing.

Government amendment 131, as the Minister pointed out, is supported by the Opposition and deals with the problem that in the Bill as originally drafted, 16 and 17-year-olds were excluded from being covered by regulated activity, meaning that people working with them would not have been covered by vetting and barring arrangements. Employers would not have had to do a CRB check on people working with them, and even if those people chose to do so, the employer or organisation would not have been told whether the individual was barred by the Independent Safeguarding Authority. We welcome the Government’s view that 16 and 17-year-olds should be included in the Bill.

Sir Roger Singleton said to the Committee at the start of our deliberations:

“The evidence is that girls, particularly in years 11 and 12, are the subject of inappropriate conduct mainly, but not exclusively, by men. We have not raised that because we understood that there had been quite a bit of discussion about it and that the matter was well understood.”––[Official Report, Protection of Freedoms Public Bill Committee, 22 March 2011; c. 71-72, Q209.]

It is pleasing that the Government have agreed to bring 16 and 17-year-olds within the scope of the Bill. The Opposition are pleased to support that amendment.

I seek further guidance from the Minister about several of the amendments that she has discussed. In particular, will she comment on Government amendments 121 to 124 and why she feels it appropriate to make them? The amendments refer to activities such as eating. Why did she feel it appropriate to spell that out and bring children who are assisted with eating within regulated activity?

Also, is amendment 125 just about correcting a drafting error? Will the Minister spell out what amendment 129 means, because unfortunately I do not understand it? It refers to a provision in the Safeguarding Vulnerable Groups Act 2006 that I cannot find. Will she reassure me on that? On Government amendment 130, I assume again that it is about a drafting error, but will she confirm that?

Turning to the Government amendments that, as the Minister has rightly pointed out, deal with vulnerable adults and how they will be offered protection, will she confirm again that Government amendment 132 is a drafting amendment? Government amendment 133 will take out reference to community care. I would be grateful if she could return to that amendment. It will amend clause 65(2)(c), which regards

“relevant social…or community care services to an adult who is a client or a potential client”

as a type of regulated activity. The Government propose to remove the phrase “or community care services”, and I am confused as to why she feels that that is necessary. Given the Government’s cuts to social services budgets to local authorities and their belief in the third sector taking over that work in greater numbers, should it not be spelled out that community and social care are within the remit of the provisions, at the very least so as not to cause confusion?

I also want to ask about Government amendment 134, which will remove subsection (2)(e). Will the Minister confirm that that is covered by amendment 140? Also, is Government amendment 135, which is about training, covered by Government amendment 138?

I am grateful that the Minister explained Government amendment 136, which is about organisations that provide health care. It is interesting that the example quoted by the Minister was about St John Ambulance, which does a sterling job and is staffed by volunteers. That is interesting, because we will come later to a discussion about the use of volunteers and about when their activities should come under regulated activity and therefore be subject to CRB checks and information on barring. I am interested in the fact that the Minister has brought the activity of volunteers within the scope of regulated activity.

Jenny Chapman (Labour, Darlington)

I, too, noticed the issue about St John Ambulance. My experience is that the greatest threat in safeguarding happens when an individual volunteer has the opportunity to develop a long-standing relationship of trust with a vulnerable adult or a child. I volunteered for St John Ambulance a long time ago, and we would not be doing our job properly if opportunities in that particular context with members of the public became a regular occurrence. Therefore I was slightly surprised that that was included in the clause.

Diana Johnson (Labour, Kingston upon Hull North)

My hon. Friend makes an interesting point. That group is probably most unlikely to be able to build up the kind of relationships in a position of trust that other volunteers—for example, a volunteer teaching assistant in a classroom, even if they are supervised—might be able to do. We will come on to that issue, but I think my hon. Friend has made an interesting point.

I am concerned that there may be a loophole regarding Government amendment 140. The amendment deals with general household matters, but I understand that it removes general financial assistance from regulated activity. Will the Minister comment on whether that is a loophole that might be exploited? The amendments cover a complicated area, so I understand if the Minister wants to take a few moments to go through my questions carefully.

Jim Shannon (DUP, Strangford)

I am conscious, as an elected representative, of past knowledge about the barring process. People are barred in Northern Ireland or in other parts of the United Kingdom, and sometimes there is not an exchange. I know that there will be an exchange under the provision, but will the Minister explain how that will work? If someone is barred in the court, through a trust, or through a board in Northern Ireland, for example, will that information be passed on directly to the regions of Wales, Scotland and England? It is clear that there will be an exchange, but how will it take place?

I have some knowledge from being an elected representative over a number of years—wearing a different hat from the one that I wear in this place, of course. On occasions in the past, people have been barred, but they have moved across the water. They have changed their name, by deed poll or something similar, and then, all of a sudden, someone who has been barred has almost vanished under the radar. Will the Minister give us some indication of the firm detail of how those exchanges will work in reality?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I shall do my best to answer the questions that have been raised by the hon. Member for Kingston upon Hull North. First, the hon. Lady believes that we should have started again, which we decided was unnecessary. It is a matter of being as clear as we can and moving towards clarity. As we discuss the various measures in the Bill, it will become clearer where the divisions are. I reiterate that we looked at the scheme as a whole, removed the parts that we did not consider necessary—for example abolishing monitoring and controlled activity, which were different levels of complication in the existing scheme. We are refining the provisions that caused uncertainty, such as regulated activity, which we are redefining so that it is much clearer. We are amending some sections to make the scheme more proportionate, which links the bar to regulated activities. There is a clear link—if someone works in a regulated activity, barring will apply.

Diana Johnson (Labour, Kingston upon Hull North)

I understand the Government’s position—they wish to dismantle various parts of the system. It strikes me, however, that the system held together, and we could clearly identify what was happening in each part. One of the problems with the regulated activity being reduced, controlled activity being abandoned and monitoring going, is that the new system does not hang together as effectively as the old one. I understand the Government’s new take on the matter, but it seems that if we dismantle, we will lose the sense of the whole.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I beg to differ with the hon. Lady; obviously, I do not think that the old scheme hung together. Rather, it hung together in a way that caused a huge percentage of the population of this country to be under permanent suspicion. That is what happened in the effort to protect children and vulnerable adults, and it gave rise to all sorts of unhappiness.

Jenny Chapman (Labour, Darlington)

I cannot resist intervening. The Minister will have read the submission from Girlguiding UK. I think that there is not a voluntary sector body—or there should not be—that provides services to vulnerable adults or children that does not have a robust safeguarding policy. In such policies, all the issues are properly understood and implemented, and volunteers sign up for that. The system has not been a bar to volunteering or an impediment in the way that the Minister has suggested.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

That is not the case. Girlguiding UK is an excellent example of an organisation that uses huge numbers of volunteers and is in that position, but not everyone who volunteers does so for an organisation that has its capability or understanding. In other circumstances, there have been all sorts of stories of people being unnecessarily required to register and be monitored. They are often reported as saying, “It made me feel like a criminal; I did not want to do it.” There was a flower arranger in a church—I do not know where—who was asked to have a check in case children came in. That was not the intention of the scheme but many people did not understand it. They thought that they could not take their neighbour’s children to school, and other things that were never intended by the old scheme. That was how it was interpreted, so it did not work perfectly.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Has the Minister or her officials looked at how many people were unable to secure employment because of the length of time it took for their CRB check to come through? The job went.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

My hon. Friend raises an important point, which will be relevant when we move on to the provisions about how we are changing the system of CRB checks and consider their portability and speed.

Evidence from Nacro will show the hon. Member for Kingston upon Hull North how the system was misinterpreted. It has stated:

“From the calls received by Nacro’s helpline, as well as doctors, nurses, teachers, carers and social workers being checked”—

one might think that that was appropriate—

“employers also deem the following groups to be working with vulnerable people: dog wardens, IT, secretarial and administrative staff, refuse collectors, customer service staff, firemen, plasterers, rent collectors, ticket inspectors, train drivers, tenancy officers, carpenters, environmental health officers, electricians, car park attendants, plumbers and bus drivers, plus many others who by the very nature of their job have some form of contact with the public.”

On all sides of the Committee, we are doing our best to safeguard vulnerable children and adults. The difference between us is on the scale of the scheme—who is in and who is out—and we should strike a balance whereby those who do not need to be put in regulated activities are not.

Diana Johnson (Labour, Kingston upon Hull North)

With the greatest respect to the Minister, I think that she is straying into a wider debate. My point was about the amendments and the confusion that will still remain. I accept what the Minister has said about people not being clear about where vetting and barring applied in the past, but I not sure that how the Government are proceeding will make the matter any clearer; we can move on to debate the other issues.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

As we all become more familiar with the schemes—indeed, as employers and organisations that will have to operate them, with guidance that will be issued in due course, do so—it will become clearer that applying the provision in relation to social or personal care is much simpler than having the different levels of controlled activity, or what is in and what is out. I take what the hon. Lady said in good spirit, but the system will be much clearer than it ever was in the past, and with the guidance it will become even clearer. However, there is no doubt that there is a job to be done in providing people with education and information.

I shall run through the other points raised by the hon. Lady. Amendments 122 to 124 relate to physical assistance given to children in connection with eating because of age, illness or disability, as close and personal assistance might lead to the formation of a relationship. Amendment 125 is a consequential drafting amendment. Amendments 129, 130 and 132 are technical amendments. Amendment 135 is linked to amendment 138, and amendment 134 is linked to amendment 140.

The hon. Lady particularly raised amendment 133, which is about community care. Community care services could cover a range of services, from older people attending a weekly luncheon club in order to enhance their well-being to their having a complex care package to meet all their personal care needs. Clearly “regulated activity” is about the latter, not the former. Rather than focus on the particular type of service, the definition that we are giving of “regulated activity” for vulnerable adults focuses on the nature of the activity carried out within a service. Where health care or relevant personal care is provided, no matter the name or place of the service, it will still be within the scope of the scheme itself.

Diana Johnson (Labour, Kingston upon Hull North)

So the Minister is saying that the way that the clause is amended will offer the widest possible protection to vulnerable adults. Is that correct?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

It will offer very focused “regulated activity”, whether it is health care, social care or personal care. Those three things are the key. Regarding a vulnerable adult, for example, it is about the situation and part of it is to do with not simply labelling people as “vulnerable adults” just because they are adult. It is about the situation, the care and the service that they are receiving.

For example, I am an adult but I am not vulnerable. [Laughter.] No laughing. Perhaps the way to put it is that I do not regard myself as vulnerable. However, if I were to go into hospital, or if I were ill and needed care in my house, I would become vulnerable, because of that change in my own circumstances. That is the clarity that we are seeking to provide. It is the nature of an adult’s need at a particular time and the service that is given that is important, not anything else. And it is about not labelling people, because adults generally do not like to be labelled as vulnerable, particularly when it is relation to age.

Diana Johnson (Labour, Kingston upon Hull North)

Would the Minister give me an example of an activity that would be covered under “regulated activity” at the moment but that would not be covered in the future, as a result of this amendment, just so that I am clear what kind of activity we are talking about?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I will have to come back to the hon. Lady on that, if she wants an example. Meanwhile I will continue with the list of various activities.

Amendment 132 to clause 64 would amend section 60 of the Safeguarding Vulnerable Groups Act 2006, which is the section on interpretation. It is intended to ensure that there is no doubt about or misinterpretation of that section. It makes it clear that wherever the term “vulnerable adult” is used in legislation in connection with safeguarding vulnerable groups it refers to adults receiving the services that clause 65 sets out as “regulated activity”. That is why we have done that, so that we do not have to do it every time we refer to a vulnerable adult.

Regarding the issue of the Independent Safeguarding Authority maintaining a Northern Ireland barred list, all of this recognises all the lists, if you like. Therefore I do not understand why the hon. Member for Strangford raised the issue of things not happening that should happen. Nevertheless, it is the case that the ISA maintains the Northern Ireland barred list as it is, and that list is recognised in England and Wales. So there should not be any cross-duplication. Later in the Bill we will come to some measures around barring. There are some explicit measures around that issue.

Jim Shannon (DUP, Strangford)

Obviously I did not make my point very clearly. My accent is sometimes hard to follow too and perhaps that is part of it. But the point that I was trying to make is that there have been occasions that I am aware of where people have been put on a barred list and that information has not been exchanged. I will give the example of someone who goes from Northern Ireland to England, who gets their name changed by deed poll and who basically disappears into the ether. The barring that they have had in the past has not followed them. I am not trying to be particular or smart—I am just asking a question. Does the Minister feel that there are enough safeguards in the system to ensure that that cannot happen again?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

Certainly, the legislation’s intention is to ensure that the lists are interconnected, that everyone observes everyone’s lists and that the lists are not duplicated. I am sure that there must be a legal response to people changing their name by deed poll, so that it is not done, but people must be aware, and those lists should be cross-checked at all times. That is my understanding of the issue.

In terms of the general financial assistance that we have discussed, removing incidental financial assistance, such as advice by bank staff, does not create a loophole. We want to capture within regulated activity people with direct access to vulnerable adults. For instance, if someone is paying such an adult’s bills, doing their shopping or having actual hands-on opportunities to do wrong with their finances, either by taking things out of their purse or by doing something at the bank, obviously that needs to be a regulated activity. However, occasional ad hoc information or advice from someone involved in the financial industry is not the same thing and does not require the same level of cover.

Amendment 129 covers a particular situation in Wales and was requested by the Welsh Assembly. We accept that we need to provide guidance on the revised scheme just as we would have been required to do under the old scheme. It is important, and one of the successes of the scheme will be that it does not get off to a misinterpreted start where all sorts of things are happening that were not originally intended. There is obviously a scaling back, because we believe that 11 million people are too many to be incorporated into the scheme. We know that 95% of CRB checks, for example, are clear and always clear. It is about ensuring that, with the barring system, we recognise and deal with the greatest risks.

We should not forget, either, that the employer—the person who is on the spot, making decisions and who knows where people will be and what job they will be doing—is the best at judging whether there is an opportunity or risk that is above and beyond the barring system or regulated activity. They will have the ability, in anything that is moved from regulated to non-regulated, to seek a CRB check.

John Robertson (Labour, Glasgow North West)

Is the hon. Lady telling me that she is quite happy to accept that some people will get through the system by mistake, simply because they will not be part of the system? Under the circumstances that we have today, they would have been caught, they would have been part of that 5% and they would not be allowed to work with vulnerable people. Is she telling me that she is quite happy to accept those people going through the system, because we are not going to check as many people as we used to?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I thank the hon. Gentleman, but it is not about not checking people; it is about trying to separate out those who pose real harm or danger to vulnerable adults from those who do not. In the previous Government’s scheme, it was quite clear that too many people had been drawn in. The list from Nacro that I just read out should be enough to set alarm bells ringing.

Diana Johnson (Labour, Kingston upon Hull North)

I am just a little concerned about the obsession with numbers, because we all want to ensure that those people who should not be anywhere near children or vulnerable adults are nowhere near them. With the new raft of amendments, will the Minister give us an indication of the current estimate of how many people will now come under regulated activity?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I agree with the hon. Lady that it is not a numbers game in that sense.

Vernon Coaker (Labour, Gedling)

How many do you want?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I will come back with a number, but I am trying to say that there is an overall size issue. That is not so much because of the numbers, but rather that there are so many people who did not need to be in that scheme to the level that they were. They did not need to register, be monitored and be regulated. We are clearly going to disagree on that as we go through the Bill. The Government do not think that everyone who was in the previous scheme needed to be in regulated activity, and that is the reason for reducing the scheme. It is not just about getting the numbers down. If 11.3 million, or whatever the number was, needed to be in regulated activity, then that would be a different thing, but actually that is not the outcome. The current estimate, under the revised scheme, is 5.5 million. The estimate under the existing scheme was 9.3 million, if it had been enacted. Prior to Sir Roger Singleton’s review, I believe that that was more than 11 million. [ Interruption. ] The hon. Gentleman talked about numbers; those are the numbers.

The essence of the scheme is to strike a balance between protecting children and vulnerable adults, and allowing people who do not mean harm to volunteer in those fields. In relation to criminal records, it is also to allow people to volunteer who employers might judge as unfit for a job when they are fit for a job. Barring is about those who are clearly unfit—those who have committed serious crimes and should never be let anywhere near. Those are the issues. [Interruption.] And in regulated activity. The difference that we are making is that regulated activity is supervised and that we share the responsibility between state and employer. There is a lot more to being a good employer than whether someone has passed a CRB check or a vetting check of any sort. We know, from the Vanessa George case and the nursery in Plymouth, that people can get through everything that is in place. We can never say never, and that is very sad. This is about a proportionate response. As the hon. Member for Kingston upon Hull North said, however, I have strayed slightly.

The hon. Lady asked for an example of someone covered under the old scheme. One I mentioned in passing would be a gardener in a care home, who will no longer be in regulated activity. The gardener is not giving care, personal assistance or relevant personal care to a person in the care home; they are doing the gardening. That is a change to what was caught before, and such a person will be outwith the scheme now—just to reiterate, in case I did not make that clear.

Diana Johnson (Labour, Kingston upon Hull North)

Would the gardener not have been under controlled activity? Would he have been under regulated activity? Is that correct?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

He would be under controlled activity.

Diana Johnson (Labour, Kingston upon Hull North)

Right. Well, on that basis, I just want to be very clear, because that is difficult to get one’s head around. Will the Minister give me an example of another employee in a care home who would not now be covered—someone who would have been covered previously under regulated employment, but would not from now on?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I will come back to the hon. Lady with an example. If I do not have one by the time I sit down, I will write to her. To clarify the situation relating to community care services again, we are removing the reference to community care service from the list of activities that constitute regulated activity—as I said when I spoke to amendments 133 and 139—because they are covered either under health care, relevant social work or relevant personal care. They are already caught and therefore do not need a separate reference.

John Robertson (Labour, Glasgow North West)

I want to go back to the gardener. I do not know whether the hon. Lady has visited care homes, but the gardens are some of the nicest places, and people who have learning difficulties like to go out into the garden. A lot of the time, the gardener is helping those people by showing them how to plant and tend flowers. Because under the rules that she is talking about, a gardener will not now go through the system in the way that they used to, will they no longer be allowed to show people how to plant, because, in effect, they are in charge of them and building relationships with people who are planting flowers?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

There are two responses. One is that if the gardener is being supervised, it is unregulated activity. The other is that of course they will be able to help elderly people, or others in the care home, learn about gardening and tend the garden, but it will be the employer who will make the judgment about the gardener. If it is unregulated activity, and if the employer is concerned, for the reasons that the hon. Gentleman raised, that employer will seek to get a CRB disclosure to make the judgment about whether that person should have been employed in the first place.

Jenny Chapman (Labour, Darlington)

I am only intervening now because I think we are getting to the nub of something. I do not quite understand this, so perhaps the Minister can explain it to me. Is there not a threat that if the gardener had been barred, because they are applying for non-regulated activity, perhaps in a care home working with vulnerable adults who may have learning difficulties—albeit there would be some level of supervision—that bar would not become known to the employer?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

For a person working in unregulated activity, the bar would not be revealed in an enhanced CRB check, but the local intelligence from the police would reveal it. We will come on to that later, so I suggest we leave that issue until then.

Diana Johnson (Labour, Kingston upon Hull North)

I appreciate that. What the Minister says is absolutely right, but the evidence that we have received shows that 50% of allegations in care homes never get to the police, so that information may not be anywhere near a CRB check.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

This is a discussion that we will have later, and it is one of the issues that we are keen to engage on.

I am sorry for jumping around. Let me go back to changing a name by deed poll in Northern Ireland. The hon. Member—[Interruption.] The hon. Member for Strangford made a point on this. My apologies; I should know his constituency, because I have had a Westminster Hall debate with him. This issue comes down to proper identity checking by the employer in England, Wales or Northern Ireland, when, for example, applying for a CRB check. A code of practice exists for employers conducting identity checks for CRB applications, including a list of acceptable ID documents.

I now have an example for the hon. Member for Kingston upon Hull North. A cook in a kitchen would be another example of someone who was in regulated activity, who has now possibly moved to unregulated activity. I hope that answers the hon. Lady’s point.

Diana Johnson (Labour, Kingston upon Hull North)

I beg to move amendment 167, in clause 63, page 44, line 10, leave out subsection (5) and insert—

‘(5) After paragraph 1(2) insert—

(2A) Work falls within this sub-paragraph if it is any form of work, other than any such work which—

(a) is undertaken on a temporary or occasional basis, and

(b) is not an activity mentioned in paragraph 2(1) disregarding paragraph 2(3A) and (3B)(b).”.’.

Gary Streeter (Conservative, South West Devon)

With this it will be convenient to discuss the following: amendment 168, in clause 63, page 44, line 23, leave out ‘day to day’ and insert ‘close and constant’.

Amendment 171, in clause 63, page 44, line 23, leave out ‘day to day’ and insert ‘regular and direct’.

Amendment 174, in clause 63, page 44, line 23, leave out ‘day to day’ and insert ‘close’.

Amendment 177, in clause 63, page 44, line 23, leave out ‘day to day’.

Amendment 178, in clause 63, page 44, line 28, leave out ‘day to day’.

Amendment 169, in clause 63, page 45, line 28, leave out ‘day to day’ and insert ‘close and constant’.

Amendment 172, in clause 63, page 45, line 28, leave out ‘day to day’ and insert ‘regular and direct’.

Amendment 175, in clause 63, page 45, line 28, leave out ‘day to day’ and insert ‘close’.

Amendment 170, in clause 63, page 45, line 38, leave out ‘day to day’ and insert ‘close and constant’.

Amendment 173, in clause 63, page 45, line 38, leave out ‘day to day’ and insert ‘regular and direct’.

Amendment 176, in clause 63, page 45, line 38, leave out ‘day to day’ and insert ‘close’.

Amendment 179, in clause 63, page 44, line 38, leave out ‘day to day’.

Amendment 180, in clause 63, page 46, line 23, at end insert—

‘(12) After paragraph 10 insert—

(11) For the purposes of this Bill supervision will be defined as constant monitoring by an individual who is on the same site and able to maintain constant visual and audio contact with the person under supervision.”’.

Diana Johnson (Labour, Kingston upon Hull North)

Amendment 167 was tabled to try to deal with paid and unpaid people who work in regulated activity. Under the vetting and barring arrangements that have been set out, nearly all work in some prescribed settings, such as schools, counts as regulated activity. Clause 63(5) exempts some people in these settings. Subsection (5) distinguishes between paid and unpaid employees in those prescribed settings, and it provides that paid work in prescribed settings undertaken as part of a contract for occasional or temporary services will be exempt from regulated activity unless it is an activity described in paragraph 2(1) of schedule 4 to the Safeguarding Vulnerable Groups Act 2006. It also provides that similar temporary or occasional unpaid work in prescribed settings will be exempt from regulated activity and that unpaid work will be exempt from regulated activity if it is supervised. That means, for example, that a paid teaching assistant working under supervision with children in schools will be included in regulated activity, but an unpaid assistant in a similar post will not.

Our amendment would remove that distinction so that both paid and unpaid work are treated the same. Unpaid staff in schools would not be exempt from regulated activity simply because they are supervised. The NSPCC has sent the Committee a helpful briefing on that subject, which it is particularly concerned about. Decisions on thresholds for vetting and barring should be made on the basis of risk. Volunteers, as the NSPCC and many other children’s organisations have said, are no less likely to cause a child harm than a paid employee.

The other amendments in the group address supervision, which is closely linked to that issue of unpaid and paid people in such positions. Amendments 168 to 180 address the definition of supervision.

Amendments 168 to 170 would replace the Bill’s definition of “day to day” supervision with “close and constant” supervision. Amendments 171 to 173 test the meaning of supervision by replacing “day to day” supervision with “regular and direct” supervision. This is an opportunity to think practically about what supervision means and how it affects what goes on with volunteers. I have already given an example from the classroom.

As I set out when I spoke to the lead amendment, regulated activity related to children no longer includes any supervised teaching, training or instruction of children or the provision of care or supervision of children by a person who is being supervised by another. The only exceptions are certain types of personal care or health care provided to children, or where activities are carried out by a paid person in a specified place such as a school, child care setting, children’s home or children’s centre.

As supervised activities are exempt from vetting and barring arrangements, individuals working in such positions do not have to have a CRB check. Crucially, barred individuals may end up working in such unpaid positions.

Our amendments attempt to tighten up the definition of supervision. Rather than the current wording of “day to day” supervision, we want to look at the NSPCC’s preferred amendment of “close and constant” supervision and our proposal of “regular and direct” supervision. This is an opportunity to address that whole question.

People who work closely on a frequent and regular basis should be covered by regulated activity, unless there is clear and close supervision that is sufficient to ensure that those individuals are not able to harm children. We do not think that regular day to day supervision at the moment is sufficient to keep children safe. This is a difficult issue. I understand the Government’s problem in defining in one sentence, in one clause of a Bill, exactly what the nature of supervision should be and what is acceptable for someone who is exempt from regulated activity; but it is clear from the evidence the Committee received that this is a genuine issue that is exercising the concerns of many in the field.

In its evidence to the Committee, the Christian Forum for Safeguarding said that it was concerned about the whole issue of definitions, and it believes that it is very difficult, particularly for a largely volunteer organisation, to implement legislation and guidance if there is a gap in the understanding and a lack of clarity in the wording it is asked to look at. On page 1 of its submission to the Committee, it specifically refers to the definition of supervision. It has a real issue with that. It went on to talk about the nature of regulated activity, and it believes that it is important that good and clear guidance be issued about exactly what regulated activity is, with full details of what supervision should be.

Perhaps the Minister will correct me, but I cannot see where the Bill sets out the Minister’s responsibilities to provide clear guidance to the voluntary sector and groups such as the Christian Forum for Safeguarding. Is such an undertaking in the Bill, or will it be provided later? Everybody would benefit from knowing that clear guidance will be produced.

I have a couple of examples that I would like the Minister to comment on. One is from the NSPCC, and obviously we look very carefully at what it says as it has a great deal of experience and knowledge in this area. It gives the example of an expert speaker who goes to a scout group to deliver sessions on a particular issue. The speaker works with the whole group, with the scout leader watching over the session. The speaker need not be in a regulated activity because the scout leader is able to watch what they are doing all the time, and they cannot develop close relationships with particular children.

The NSPCC goes on to talk about an assistant football coach who coaches a group of children for significant periods of time on a pitch that is away from where the main coach, who of course would be in a regulated activity, is working. It says that since no one is directly supervising the assistant football coach in his interactions with the children, he does have the opportunity to develop close relationships with those children, which could be exploited.

Can the Minister look at the definitions that we have set out: the “close and constant” and the “regular and direct”? Also, can she look at amendment 180, which deals with constant monitoring and is the final amendment in the group? It does not simply look at definitions around “close and constant” or define supervision in different ways. It actually introduces the possibility of a new subsection, which would give clear definition to supervision. In that case, the subsection would say that there should be

“constant monitoring by an individual who is on the same site and able to maintain constant visual and audio contact”.

We tabled that amendment to allow the debate to take place on this issue. We give the example of a school volunteer drama teacher or a sports coach. The individual could come into school and work with a small group on a regular basis. It would not be a regulated activity because there would be supervision, but parents would like to know that if an individual who is not vetted is to have access to their children, there is more than just the day to day supervision set out in the Bill. Amendment 180 makes it clear that if an individual is to be left alone with children, especially if they are in a different room from a supervisor, they should be subject to full vetting.

This group of amendments aims to test with the Government the problem identified by the NSPCC and many other children’s charities—the rather loose definition of day to day supervision. I hope the Minister can accept that these amendments are put being forward in the spirit she talked about at the beginning, that we all have the best interests of children and vulnerable adults at heart and that we want to get this measure right. At the moment there is a major problem, not only with the distinction between paid and unpaid workers but with this very loose definition of supervision. Unfortunately, that definition is open to people who might feel that, with this new system and new scheme, there is an opportunity for them to get into schools, churches and other groups where they would have access to children.

The Christian Forum for Safeguarding set out very clearly its genuine concerns about what this measure would mean for the Churches that have all signed the letter on this subject. I must say that when I went through the letter I was struck by the fact that it features everybody: the Salvation Army; the Catholic Safeguarding Advisory Service; the Lutheran Council of Great Britain, and the Church of England. It really is a who’s who of the religious world. There are genuine concerns and I hope the Minister will look very carefully at what is being proposed in this group of amendments.

Jenny Chapman (Labour, Darlington)

I rise to speak briefly in support of the amendments proposed by my hon. Friend and to agree with the NSPCC. Given the difficulty the Minister has had in providing examples, I would like to know if she has visited the Independent Safeguarding Authority and spoken to the decision makers there and looked at their case files, or if she has read any of the evidence that is used when decisions are made. If she has, she will at least be aware that much of the evidence used when making a barring decision does not actually come from the police at all, and that ISA makes many further inquiries to help it make its decisions. I have actually done all those things, and perhaps I could assist the Minister in making her decisions on this matter.

I will use an example, not of a football coach but of a badminton coach this time.

Jim Shannon (DUP, Strangford)

A minority sport.

Jenny Chapman (Labour, Darlington)

I am trying not to offend anybody. This is a real example of something that happened. The badminton coach was working in schools. Some parents became concerned about the coach’s inappropriate behaviour and, rightly or wrongly, they took it upon themselves to watch the training sessions covertly. They became convinced that the coach’s behaviour presented a risk, and they contacted the police and the school so that action could be taken.

The police investigated and they found stories made up about the children on the coach’s computer, which he himself had written. These stories involved descriptions of sexual contact with girls he was teaching and they described his fantasies towards children. He had also constructed highly inappropriate questionnaires, asking the children for their basic information—their name, address and so on—but also for their Facebook profile information, before going on to ask some extremely inappropriate, intimate questions. I will not explain what they were.

It seems to me and it seemed to ISA, which went on to bar this individual, that he had a sexual interest in children, and there is no doubt that he should not be anywhere near children—in a regulated, unregulated or any context whatsoever. However, he had actually committed no offence. No photographs were found on his computer, and one could say that no child had been harmed. Certainly no child was prepared to pursue a formal complaint. Nevertheless, ISA was able to bar that person from working with children. Under the current system, such people do not have the opportunity to work with children as easily as they will in future under a revised scheme, because we know that having a sexual interest in children alone is not an offence.

In conclusion, I find the Minister’s position slightly naive. As the Girlguiding UK submission observes, the Government are confusing the system further, and the measures might deter volunteers. Volunteer guiding and scout commissioners do not want to be in a position to make the barring decision, thank you very much. They want ISA to do so and to inform them of that decision. They are saying that they do not want that on their hands. Has the Minister visited ISA, and will she listen to the views of the NSPCC and Girlguiding UK?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I turn first to the who’s who of the religious fraternity. Yes, they have best interests at heart and so on. In considering the definition of supervision, as we are seeking to do, the Opposition propose constant monitoring, whereas we say that if something is unsupervised, it is regulated activity, but if it is supervised, it is not. It is the difference between regular, day to day monitoring, which we say is adequate, and constant monitoring, which the hon. Member for Kingston upon Hull North says should be the bar for deciding whether something is regulated or not. I am trying to describe the difference.

Diana Johnson (Labour, Kingston upon Hull North)

I understand, and I am grateful to the Minister, but will she explain what she expects day to day supervision actually to mean? I think that that is what people are struggling to understand. What do she and the Government expect day to day supervision to look like in a voluntary sector group, school or wherever?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I will come to that. I wanted to deal with the point about “constant”. At the moment, for example, if a teaching assistant were being supervised, they would therefore be unregulated. If supervision needed to be constant, if the person supervising them—who must be cleared for regulated activity—popped out of the room to the loo, that would mean that the coach or assistant would immediately become regulated. If the word “constant” is used, the slightest nipping out for anything would not be acceptable, because the legislation would make it illegal, and the person concerned would go from unregulated to regulated activity in that moment, because they would not be under constant supervision.

That is the area in which we are working. It is impossible to cover everyone all the time. The amendment would put us right back where we started; perhaps that is the Opposition’s intention. Supervision under the hon. Lady’s amendment would have to be constant and direct.

Diana Johnson (Labour, Kingston upon Hull North)

I understand what the Minister says about “close and constant” supervision, but what about “regular and direct”? Does she think that would work?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I interpret “direct” to mean pretty much the same as “constant”, because that directness is lost the minute that somebody is not there. We seek to scale back the measures to a common-sense level. Otherwise, we would find ourselves back in the position under the current scheme.

On “supervised”, even under the last Government’s scheme, the proposals would, in some instances, have left an unchecked individual unsupervised with children. That demonstrates how difficult it is to be sure in every event. One example is infrequent activity that, if it had become more frequent, would have become a regulated activity. I do not have the details to hand, but it was x times a week or month, so if someone did an activity less frequently than that, it was unregulated, and if they did it more frequently than that, it became regulated. Therefore, there were similar things. There was also a series of specific exceptions, such as for home-hosting for schools and for the supervision of children in employment.

Moving on to how the Bill defines “supervised”, the wording in the Bill, as the hon. Lady says, is

“any such work which is, on a regular basis, subject to the day-to-day supervision of another person who is engaging in regulated activity relating to children”.

That is a tight definition. Supervision, for example, cannot just be done initially when someone arrives. People cannot supervise someone in the first week of their unregulated activity and then say, “Well, I have supervised you now, and you are fine. I can leave you on your own.” That is the point. It cannot be done once, but must occur every week, day to day. Also, it cannot be done just by anyone, but must be done by someone who is in regulated activity, and who must or can be checked against the barred list.

Diana Johnson (Labour, Kingston upon Hull North)

Is the Minister saying that the supervision cannot be done for a week, but it can be done just at the beginning of the day? Therefore, the person who is in regulated activity may see the volunteer at the beginning of the day in a particular environment and say, “Today you are going to go off with a group of children into a room to do a drama lesson,” and that is okay. Is that the Minister’s view?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

That is where the employer’s judgment comes into the area. We are trying to say to the employer or the organisation that they have the joint responsibility in not just their procedures, but the judgment of what supervision is and what the risks are. When the Scout organisation came to give evidence, it used the example of volunteers as scout-masters, with lots of scouts. They were being supervised, so that was unregulated and was not an issue. However, it posed the question: what happens if each of those volunteers then takes a group of children off into a room for a length of time on a regular basis, where they cannot be seen? The answer is that that is unsupervised, and will therefore become regulated activity. The level of activity will have to be judged by the organisation, but if the situation is as described in that evidence session, that will be regulated activity, as it is unsupervised and on a regular basis, and the same people are engaged with the children.

That is the dividing line. If something is unsupervised, it becomes a regulated activity. When the hon. Lady says, “At the beginning of the day,” that will be for the employer to decide. We will give guidance on the matter, but the definition is that if it is at the beginning of the day, it depends on how far, how long and how often. It is far better for employers or organisations to make such judgments because they have the responsibility on the spot, can look at the situation and know the physical location and lay-out. It is better than having a blanket approach, saying to everyone that if they are out of the room for two moments, supervision is not constant, and therefore the activity has to be regulated. It is about using the expert judgment by the person on the spot, who is in the best position to judge whether there is any risk or danger. Either it can become a regulated activity, and therefore subject to the barring regime, or organisations can ask for an enhanced CRB check, in which case they will get all the local police intelligence that might lead to a barring, even if a barring is not shown.

Jenny Chapman (Labour, Darlington)

I appreciate that the Minister may be getting exasperated, but the issue is important. Information on the CRB check is not all the information that is available to the barring organisation, the ISA. That is not correct.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

Is the hon. Lady referring to employer information, which does not go to the police at any point but which can sometimes lead to a barring by the ISA?

Jenny Chapman (Labour, Darlington)

At the point that the bar is made, the police do not have all the information that the ISA has. To use the example of the badminton coach, a person who has been registered with a professional body may fail to return their pass. I am clutching at examples. Some people may deliberately try to evade the system. Someone is barred because they are unsuitable to work with children. They are dodgy, everyone knows they are dodgy, and they are damn well sneaky as well, nearly all the time.

Gary Streeter (Conservative, South West Devon)

Order. Interventions should be short.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

If they are dodgy, they will not be able to work in regulated activity. In the case that the hon. Lady raised, the school reported it to the police.

Jenny Chapman (Labour, Darlington)

But what about the next time?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

It would be on local intelligence thereafter. Indeed, the parents are a good example of common sense coming into play. They saw something suspicious and they reported it. Moreover, we have to send a message to employers loud and clear that if anything goes on in their establishment or their auspices, they must tell not only the ISA, but the police as well. If it is serious enough to lead to a barring decision by the ISA, it is serious enough for the police. We want to encourage people to report things to the police, rather than circumventing it as employers have done. Rather than dealing with things, they have alleviated their conscience by telling the ISA but not the police. It is important that employers and organisations tell the police in those circumstances.

John Robertson (Labour, Glasgow North West)

First, I should declare an interest, because my wife is the manager of the equivalent bureau in Glasgow that does the criminal records checks. I have some information on the matter.

As I understand the system, the individual will ask for and pay for the check. The only person who will get the information back will be the individual. The Minister seemed to be saying that the organisations would be asking for checks. I made the point some time ago that there are times when groups, such as airports, put in block checks. Who gets that information? How does the company get the information back? I am sorry to speak for so long on this, but it is an important point. If there are budgets involved, and they do not want to get checks, who will pay for them at the end of the day?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

If the hon. Gentleman will forgive me for the moment, I will return to that in a moment because I have the answer in my pack. He raised this issue in the evidence sessions. I will try to progress through some of the points raised, before I deal with any new points.

On supervision and guidance, we will be issuing guidance. We will be working with all the agencies on that guidance, and consulting with them, so that there is a common understanding across all the organisations and employers of what supervision means, on a scale between constant—which means that the supervisor cannot leave the room—and unsupervised. I give that undertaking now. We have to find a clear explanation that people can happily subscribe to.

Diana Johnson (Labour, Kingston upon Hull North)

Would that be statutory guidance? Will it have that force? What concerns me is that many community and voluntary groups are saying that they want clear guidance and understanding of what they are, or are not, doing. I think it should be statutory guidance.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

We are not intending it to be statutory guidance. We think it will be clear guidance, but not statutory guidance.

The hon. Lady raised the issue of the difference between paid and unpaid work. If a volunteer is unsupervised, that will be regulated. If a member of staff is unsupervised, that will be regulated. The difference that we have established is that paid supervised staff in schools will be more strictly treated than supervised workers in other settings. That is because we listened to parents, who view schools and similar establishments as having a particular status where the law should require particular safeguards. If someone is supervised, it could be unregulated, but that would not be the case in a school. That is the answer to the hon. Lady’s questions.

Overall, on intensively supervised volunteers in schools we propose that supervised workers—this continues the point—should not be in regulated activity, whether paid or unpaid. It is not that we are being less restrictive. We are actually being more restrictive on supervised staff in schools by proposing that all paid staff remain in regulated activity, even if they are supervised. That is because we listened to parents. We think that it would go too far, however, to put supervised volunteers in a school—such as parents who volunteer to help with reading for a couple of hours a week—into regulated activity. Being unable to just go in and volunteer is the sort of thing that has made people very unhappy.

Diana Johnson (Labour, Kingston upon Hull North)

Does the Minister accept that that could mean that a former teacher, who has been barred from being a teacher and volunteers their services in a school to do reading classes with the children while supervised by a class teacher, would be taking part in an unregulated activity? The school will not know that there is a bar—it will not have any information about that. Is that not a concern for most parents?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

As I said, we can never say never, and not every situation that was not covered before is covered this time, otherwise there would be no point in our putting forward these changes. It does not have to be an ex-teacher, but it is possible for someone who was barred to be working in unregulated activity in a school. However, they will be supervised. They will not be unsupervised. If they are unsupervised, then it is regulated activity—that is the point. It is quite hard to imagine—we will work through this in the guidance—that a school would enable just anyone to work with children. I imagine that they would get the enhanced Criminal Records Bureau disclosures, which would show the local intelligence, if not the bar. It is only the bar that is not shown—anything else would be shown.

Diana Johnson (Labour, Kingston upon Hull North)

I am a little concerned by that. I understand what the Minister is saying, but the problem is that most parents, if we are applying a common-sense approach, would want to know whether any child of theirs at school had a volunteer in the classroom who was barred because of activities that made the ISA feel that it was appropriate to bar them from dealing with, or teaching, children. Any parent would want to know that, and what concerns me is the level of supervision. If one did not know that someone had been barred, would not the level of supervision be slightly different from what it would be if one knew they had been barred?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

That is a point, but they will have had the same information, barring the bar, on the local intelligence, the convictions, the spent convictions and all of the information that comes through on the disclosure from the enhanced CRB check.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Does the Minister agree that a school always has to maintain a high level of supervision of volunteers, because it could be that a volunteer commits their first offence in that school?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

My hon. Friend makes a really helpful point. The point that I keep trying to go back to is that the employing organisation has the responsibility, if anyone is there under their auspices, carrying out an unregulated voluntary activity, to make sure that their supervision is adequate to the cause.

The hon. Member for Glasgow North West raised the prospect of the individual making the application and the certificate going to someone and the firm not knowing. The individual makes the application, but it has to be signed by the registered employer, now and in the future, so the employer will know that the application has been made. There is no difference between the two schemes on that particular point—it is a matter for the employer who pays the fee. We would expect the employee to show the CRB certificate to the employer once any disputes have been resolved. They have the opportunity to dispute information if they do not like it. Regulated activity employers will be under a duty to check whether a person is barred, and one of the ways to fulfil that obligation is by seeing the word “barred” on the enhanced CRB check.

John Robertson (Labour, Glasgow North West)

I accept exactly what the Minister says, and I have a real problem with it. That person can now disappear and get another job, and nobody from that employer will ever ask any questions about whether they should have obtained a copy of the information about whether that person was barred.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I am not sure that I understand the hon. Gentleman’s point. Is he saying that the person had some information that they did not want the employer to see and, therefore, did not go forward with the application? In the end, the person will not be employed unless he convinces the employer and shows them the CRB check.

John Robertson (Labour, Glasgow North West)

The Minister has got part of it. The person gets the answer back to them as an individual. They apply for the check, and they are told that they have failed, and either they probably knew that already or they perhaps thought that their record had disappeared, but they do not tell the employer that they have failed. One question that was asked during the evidence sessions was, “How long does that take? How long could that stretch out for?”, and the answer was basically, “How long is a piece of string?” That person could actually stay in the job for quite some time before moving on, without the employer ever knowing anything about it.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I am sorry. I thought the hon. Gentleman said that the person in question did not get the job because when they saw their CRB certificate, they realised that the employer was not going to employ them if they saw it, and therefore they did not get the job in the first place.

Gary Streeter (Conservative, South West Devon)

Order. It is important that the Minister speak to the entire Committee and that we do not have a fireside chat between two individuals.

John Robertson (Labour, Glasgow North West)

I apologise, Mr Streeter. I was saying that the person who receives the information will not impart it. The employer will know nothing about it because, as we heard in our evidence sessions, such people were employed before the results of the check emerged. The check was done as a result of continued employment and was not done to get the job.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I think the hon. Gentleman is making the point that there is a time lag.

John Robertson (Labour, Glasgow North West)

Yes.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I will have to come back to him on that. I have the details of the speed of CRB checks and disputes and such things, but there is indeed a time lag.

When the hon. Member for Kingston upon Hull North asked why we did not put certain things in the Bill, that, again, was about guidance. As I said, we are happy to give the undertaking that there will be guidance. New clause 14 deals with that, so I am sure the hon. Lady will return to that point at a further date. She asked why we do not say in the Bill that there will be guidance. We do not consider it necessary to refer in the Bill to the provision of guidance. However, I am stating in Committee that that will be the case, which it will.

The hon. Member for Darlington said that she has spoken with several charities. I have met a number of charities, too, and the result of one of those meetings was listening to them about the issue of 16 and 17-year-olds, which we discussed earlier. She used the example of a badminton coach working in a school and parents noticing some inappropriate behaviour. They contacted the police and the school. The coach was clearly in an inappropriate position. I trust that they lost their role as a sports coach, which she omitted to say. That whole event was triggered by common sense. I do not know at this point, from what the hon. Lady said, what checks were actually done on that person before they took up the role of coach. However, even if it is unregulated, it is still the school’s responsibility to ensure that, whatever the circumstances, anyone who works with children—regardless of how often or how long for—is appropriate. As I said, CRB checks will be available and will have local intelligence, unless none is yet available. I return to the Vanessa George case: with all the checks in place, she was able to work for a long time at a nursery doing the most dreadful things. One can never say never, but that is the balance that we are trying to strike.

Jenny Chapman (Labour, Darlington)

The Minister is right that one can never say never, and a lot of this comes down to the culture of the organisation and how safeguarding is managed in a given context. My point in giving the badminton player example, however, was that the barring decision came about as a result not just of police information but of other information that would not be available through a CRB check in an organisation. Also, if I understand correctly, under the proposals this person, who clearly has a sexual interest in children, would be able to volunteer at a scout association and no one would be any the wiser that they were barred.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

The hon. Lady said that the case was reported to the police and that the individual in question was barred. That would be in the local intelligence, because information regarding sexual intentions towards children would constitute local intelligence. It cannot be said that this individual had not done anything; he had crossed a line and would therefore have come to the notice of the police, and information about him would have been available. The employer, being a good school, would and should have checked. On the obligation to check whether someone is barred, that must be done before the employer allows the individual to engage in regulated activity. Where the activity is regulated, it is the employer’s duty to establish the bar before employment commences, as clause 72 states.

On bulk applications—I do not know whether the hon. Lady was interested in those—the employer will be told when the certificate has been issued, but not about the information on the certificate.

John Robertson (Labour, Glasgow North West)

Why can that not be done in every case, so that every employer will know that a certificate has been issued? That way, we would not have some of the problems that have been raised.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

May I come back to the hon. Gentleman on that? It is a new “what if” that I have not yet considered.

In an NSPCC press release of 2 May, the organisation says that it broadly supports the new scheme and is keen to ensure that it is properly communicated to employers, voluntary organisations and parents. Andrew Flanagan said that the NSPCC looks forward to working with the Government as the new scheme is implemented. The work we do with these organisations, which have a primary interest, is the key to getting this right. The hon. Member for Kingston upon Hull North raised the issue of clarifying the definition of what is supervised and what will be regulated and unregulated, so that the doubts can be removed. We will do that by working with the organisations and consulting on the guidance.

Diana Johnson (Labour, Kingston upon Hull North)

I am interested in what the Minister says about the NSPCC. Every Committee member would no doubt say that it does an excellent job in advocating for and protecting children, and clearly, it has identified that the wording “day to day supervision” presents a problem. Could the Minister, having paid tribute to the NSPCC, say a little more about why she is dismissing its concerns at this stage?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I am not dismissing its concerns. The hon. Lady’s amendment, which would change the wording to “constant supervision”, would make the situation absolutely impossible. If someone nipped out of the room, the activity would no longer be unregulated and supervised: the moment the supervisor was out of the room, the supervision would not be constant. If we make the definition too tight, hardly anyone would fall into that category, which would undermine the point of trying to scale this back to a common-sense level. Common sense must dictate that a supervisor’s nipping out to the toilet should not change someone from unregulated to regulated activity, which would cause them to be barred. That definition would be too tight.

We will publish draft guidance well before Royal Assent, which will go into more detail, with case studies on supervision. The real point is that we do not want either extreme—neither a manager who pops in only once a day, nor a supervisor who is never out of the room. We will consult on the draft guidance and we look forward to hearing the views of practitioners. I am sure that the NSPCC will be pleased to work with us, as Andrew Flanagan said.

To cap it off and to explain—without intervention, perhaps—where regular supervision takes place on a daily basis, we do not think that the arrangements are necessary. It is for the employer or voluntary organisation that is responsible for regulated activity to decide what is appropriate in the regular and daily supervision of activity. That fits with the Government’s basic intention to create a more balanced vetting and barring scheme, under which responsibility for ensuring that appropriate safeguards are in place rests with those who are best placed to make such judgments—not with the state. We will, however, provide guidance.

I re-emphasise that the provisions do not mean that checks should not or cannot be carried out in relation to work that has been taken out of regulated activity. In such cases, employers should continue to carry out other available checks. As the hon. Member for Darlington has said, that is part of being a good and responsible employer. It also includes carrying out criminal record checks, which will be available to organisations that work in areas that have been taken out of regulated activity. Where such checks are made, an enhanced criminal record certificate will include all criminal convictions or cautions, including spent ones, and the relevant local police information.

The purpose of the provision is twofold. First, it provides employers and organisations with greater flexibility to use supervised volunteers and staff by not requiring them to carry out the checks that apply to regulated activity. Such employers will have some flexibility in determining the vetting level that is appropriate to their work. As I have said, the person in situ has the responsibility, and understands the location, the geography, the nature of the work, and all the targeted matters that apply to a particular role in a particular situation.

Secondly, the provision places the responsibility for safeguarding children with those who are directly responsible for providing services to children. It encourages them to have proper supervision or other safeguards in place. Our definition ensures that supervision will be substantial; an occasional, or even weekly, meeting between supervisor and supervised will not be sufficient.

The amendments would render the definition of supervision unworkable. Constant supervision would defeat the object of scaling anyone at all out of regulated activity, because it is impossible for anyone to say that they are never going to leave a room for a moment. Yet that is the nature of the word “constant”. The proposal goes totally against the Government’s intention of creating a more proportionate vetting and barring scheme. It would mean that if a volunteer were working in a sports club, under the supervision of a qualified sports instructor, their work would become regulated as an activity if the qualified instructor left the room at any stage, because supervision would not then be constant or direct.

The amendments would therefore effectively undermine our aim to scale back the vetting and barring scheme to common-sense levels. They would impose an unrealistically high test for supervision. We want to provide sensible and proportionate arrangements, not unworkable requirements that will simply add burdens to employers and organisations. That said, I have accepted the need for guidance in this area, as in others. With the assurance that we will provide such guidance, I hope that the hon. Member for Kingston upon Hull North will agree to withdraw the amendment.

Diana Johnson (Labour, Kingston upon Hull North)

I have to say that I am very disappointed with the approach that the Government are taking. The amendments were tabled in good faith, because they relate to clear problems with how the Bill is drafted. The coalition is failing to recognise the reality of what is happening in organisations and charities. In particular, people who run small organisations, charities and sports clubs are asking for definitions of supervision to be clearly set out, so that they can be sure in their own mind about what they are expected to do. The approach will put a huge burden on many individuals in organisations that rely on volunteers doing regulated activities and that offer supervision to those volunteers. The Minister says that it is down to those individuals to make judgments and to decide for themselves.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

The hon. Lady says that it is terrible to put a burden on those individuals; it was equally terrible to take the burden away from them, because they could feel that they had gone through a process in which they ticked a box and everything was somehow all right. That may mean that they took their eye off the ball, because it is crucial that the person in situ—in a supervisory and employment position or running an organisation—has the responsibility to ensure that children under their auspices are properly safeguarded. If it has gone through a Government tick-box—

Gary Streeter (Conservative, South West Devon)

Order. The Minister has had a fair intervention.

Diana Johnson (Labour, Kingston upon Hull North)

The Minister’s response typifies her failure to recognise that I am concerned about the mums or dads who volunteer to organise local football tournaments on a Saturday and Sunday, and who take on those responsibilities because they believe in the importance of volunteering. The Government say, “It is down to you to sort out if anyone should not be with children on a Saturday or Sunday; we completely abdicate from any responsibility for it, because it is an unregulated activity.”

That is what concerns me and, as much as we all support volunteering and want more people to do it, we have to give them the support and regulations that allow them to do their job properly. None of us wants to end up with people working with children who should not be doing so, perhaps because they have been barred from other employment roles. That is my concern about how the Government are turning their face away from providing the help for which people are asking.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

The hon. Lady is using the instance of people volunteering to look after children on a pitch one afternoon, but those people would themselves be being supervised. The burden is not on them; it is on the supervising authority.

Diana Johnson (Labour, Kingston upon Hull North)

I shall not labour the point, but the majority of sports clubs are mums, dads and relatives, who get involved and want to run local football teams or tournaments for the good of their community. They are not big institutions, such as the Scout Association or Girlguiding UK, which have a whole organisation behind them. I am concerned that groups that want to provide community facilities for children and do the best by them will find themselves cut adrift by the drafting in the Bill. It will be down to them to sort out whether someone is dodgy, which is a big concern. The amendments are an attempt to deal with supervision by making it clear to organisations, employers and the voluntary and community sector what would be expected of them in ensuring that children are properly protected.

I am disappointed that the Minister does not feel that it is appropriate to provide statutory guidance to organisations that are crying out for it. I have read some of the material from the Churches, who are saying that they want clearly spelled out to them exactly what the provision will mean. It is disappointing that they will not have the benefit of statutory guidance, which would have given them that.

The Minister must accept that the proposals in the Bill and her rejection of the amendments might mean that people who have been barred from teaching get back into the classroom and the school would not necessarily know, which is a big issue. The Minister has to take responsibility for the loopholes in the Bill and tell us how the Government will deal with them.

In the Bichard inquiry and other inquiries into the abuse of children, one of the big issues identified time and time again is about flows of information; for example, that everyone who needs to know whether someone is barred does not know, and that is one of the problems with the way that the Bill is currently drafted. The NSPCC, which is expert in this field, recognises that the “close and constant” definition of supervision would benefit all parties, and it is disappointing that that has just been rejected by the Government. The idea that it will all come down to common sense does not recognise and deal with the reality of what is happening out in the community. It is a great shame that the Government have not taken the opportunity to accept the amendments.

On that basis, may I test the Committee’s opinion on amendment 167? I also seek guidance from you, Mr Streeter, about how I press, if possible, a vote on the definitions. I know that the drafting is such that it means there are a number of amendments. Do I need to identify each amendment that I wish to press to a vote or can I just take one from each group? What is the appropriate way to deal with this?

Gary Streeter (Conservative, South West Devon)

We are certainly prepared to take amendments separately. We will take the main group first and then the hon. Lady might be able to identify what she wants to do after that.

Diana Johnson (Labour, Kingston upon Hull North)

We have had an extensive debate on the amendments, but I wish to raise several other issues arising from clause 63. I refer the Minister to the submission from the Association of Chief Police Officers, which makes an important point that I would like her to address. Clause 63, as drafted, contains no provision to deal with any exemption from regulated activity for the police service. People have to go through extensive checks to be employed as police officers and police civilian staff, so it seems rather silly that they would have to go through further CRB and enhanced CRB checks to take part in any regulated activity. Will the Minister comment on why the clause does not contain such an exemption? Is she minded to look at that?

I am particularly concerned about subsection (7)(a) and (b). Currently, under the old system, therapy provided to a child is always a regulated activity, but that would change under paragraphs (a) and (b). I am concerned that being in therapy is a vulnerable position for a child to be in. I seek reassurance from the Minister about whether it is the Government’s intention to remove vulnerable children in therapy from the list of regulated activities. Surely they deserve to have that protection, perhaps more so than many other groups.

I also want to address the evidence presented by Fair Play for Children, which has made a series of comments on clause 63. It is interesting to note what the Minister has said about taking a common-sense approach to regulated activity, because Fair Play for Children has given us its bottom line. Unfortunately, the Government often seem to be using the phrase “common sense” without being able to back up with firm evidence their reasons for taking certain steps.

Fair Play for Children states that it would have been helpful if the provisions on regulated activity could have been looked at in a pilot. We all know that the right hon. Member for Sheffield, Hallam (Mr Clegg) is coming round to the idea that certain measures ought to be piloted, and he is in step with Fair Play for Children. Fair Play for Children refers to the pilots that were used to look at Sarah’s law and to provide the evidence base for introducing a measure that was quite contentious and that people were concerned about. Such a pilot might be helpful because, as I have said a number of times, the provisions on regulated activity are difficult for many groups and organisations to understand. If they were piloted, some of the concerns could be dealt with and ironed out before the provisions are rolled out to the whole country.

Fair Play for Children also suggests that

“regulated activity status be aided by a statutory risk assessment guidance framework which employers would be able to access online for a step-by-step process which would inform them that the position was regulated, or not, or borderline and requiring further consultation with CRB. We propose that this would enable case-by-case determination of regulated status before the recruitment stage rather than a blanket approach and thus be more proportionate.”

Will the Minister look at that proposal, because it seems to be a helpful suggestion for dealing with some of the concerns that groups have?

Fair Play for Children also makes the point that there is a danger in redefining regulated activity with a

“one-size-fits-all approach”.

It recommends

“a risk-assessment approach to defining regulated activity”.

It believes that, if a framework is established to which employers can have regard, it may put off those applicants who we perhaps would not want to obtain positions as volunteers, because they will understand that there will be a proper, considered process that all voluntary and community groups and employers will be looking at. Fair Play for Children believes:

“Deterrence is a major element in vetting and barring”.

It thinks that such a framework would be helpful in dealing with that.

I also want to mention the Public and Commercial Services Union, which represents 86% of staff at the Criminal Records Bureau, as well as staff at the Independent Safeguarding Authority. The PCS has made a submission on clause 63. It believes that the problem is with the clause restricting

“the definition of a ‘regulated activity’ relating to children, to only those roles which involve close and regular unsupervised interaction or paid roles in specified settings such as schools and children’s homes.”

It believes that the amendments

“ignore the ability of people who work in supervised or voluntary roles to build significant relationships with children. For example, somebody working as a volunteer children’s football coach would no longer need to be subject to vetting and barring under these arrangements.”

We have talked at length about that.

The Christian Forum for Safeguarding set out in its evidence its concerns about clause 63 and the need for full guidance and assistance in dealing with the definitions set out in the Bill. We already know that there will be problems in understanding the exact meaning of “day to day supervision.” The Minister has made it clear that she will be working closely with organisations to develop some guidance for them. It is clearly a matter that all these groups and individuals are concerned about at the moment.

I want to point the Minister to the final paragraph of the letter from the Christian Forum for Safeguarding. It states that the CSF urges

“the government to re-instate the work being done before the election last year, relating to Faith Sector guidance on these issues. In particular, this should recognise the specific potential risks in the churches, posed by those who are established in responsible positions, which involve authority, trust, influence, and the opportunity to build a rapport with children and/or vulnerable adults. In the vast majority of cases, this is a fair reflection on the high calibre of our people. In a small percentage, it can act as a passport to abuse.”

It would be helpful if that dialogue starts again with those groups, as they want to ensure that they do everything they need to do on this issue.

I am interested to hear the Minister tell the Committee the numbers that she thinks will be affected by regulated activity. The ISA was talking about the number of people on barred lists. Some 19,111 were on the barred list for vulnerable adults, while there were some 21,409 on the list for children. Will the Minister say something about the number of those who will be able to get involved in unregulated activity in the future? How does the Minister think those numbers will work? On those points we have set out our concerns about the new, limited, regulated activity list. There are still problems that need to be addressed, but that concludes my comments.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

The hon. Lady asked about ACPO and wondered why there was no provision in clause 63 to deal with the exemption for the police. In fact, the exemption is already in paragraph 6 of schedule 4, so there is no need for anything further in the Bill.

The hon. Lady asked about the criteria and how we know that these are the right posts to remove. We have stated our criteria for the removal of the posts. The leading children’s organisations, some of whom, as she rightly said, gave evidence to the Committee, have stated that they are broadly content with our direction of travel. It is a risk-based approach. We will, as I have said, issue clear and succinct guidance to help managers and individual workers understand when an activity is, or is not, a regulated activity.

The hon. Lady has asked about therapy, and the description of treatment and therapy gave rise to speculation about what was meant by therapy and whether that included activities such as crystal or colour therapy. Such activities were never intended to be within the scope of the vetting and barring scheme, and the review has provided the opportunity to be much more precise about which medical and therapeutic services would bring workers and volunteers within the scope of the scheme.

I assure the hon. Lady that treatment and therapy that is provided by regular, regulated health care professionals, and by those who are directed or supervised by such professionals, will be under the scope of the scheme. I am pleased that the hon. Lady has given me the opportunity to put that on the record. That includes all registered doctors, nurses, dentists, opticians, pharmacists and all those that are regulated by the Health Professions Council, which includes art therapists, biomedical scientists, chiropodists, podiatrists, clinical scientists, dieticians, hearing aid dispensers, occupational therapists, operating department practitioners, orthoptists, paramedics, physiotherapists, practitioner psychologists, prosthetists, orthotists, radiographers and speech and language therapists. The list is quite extensive.

The hon. Lady mentioned the suggestion in the evidence from Fair Play for Children that there should be a pilot. We do not believe that a pilot is necessary; we think that working with organisations to define supervision is the right approach. She has also referred to the comments of my right hon. Friend the Deputy Prime Minister on Radio 4 this morning. I believe he said that Baroness Hamwee was entitled to suggest that there should be a pilot scheme for police and crime commissioners, because she is scrutinising in the House of Lords what we have been scrutinising here. The Deputy Prime Minister said that she had every right to do so and that he was not averse to pilots, but that was not specified.

The hon. Lady asked why the scheme could not be operated on a case-by-case basis. That would lead to a huge amount of work and result in a lack of clarity, when we are trying to create a world in which those who should not be working with children do not work with them unsupervised. The hon. Lady has said that the Christian Forum for Safeguarding has asked for full guidance, and we have said that we will work with organisations to produce guidance.

I cannot give the hon. Lady an answer on how many people working with vulnerable adults and children who are on the barred list might transfer to unregulated activities. As we discussed earlier, however, it is not a numbers game. The point is whether someone is fit and able to be on their own with children. If they are not, they will be supervised and will be working in unregulated activities.

A note has arrived in a timely manner about the number of barred persons who would be able to engage in unregulated activity, which says that in asking that, the hon. Lady has missed the point. I did not put it so cruelly myself. The barring scheme is designed to bar people from working in regulated activity, which is the point that I have just made. If they are in unregulated activity, they will be supervised—[Interruption.] They cannot do what they want, as the hon. Lady says from a sedentary position; they will be supervised.

On supervision, which we have debated fully in terms of what it means and does not mean, we will issue guidance. It is right that all hon. Members are concerned to get this level right, and we will continue to disagree about where that bar should be set. For clarity, it might be helpful to place on record what activities have been taken out of the regulated category and put into the unregulated category.

Teaching and providing certain types of care or guidance for children that are supervised by another person engaged in regulated activity and do not take place in a specified setting such as a school or a children’s home will no longer be regulated activity. For example, a coach who is paid to instruct children in a sports club and is supervised will not be doing regulated activity. In addition, the activities of supervised volunteers in specified settings will no longer be regulated activity.

The provision of legal advice to a child, and the occasional or temporary work by contractors in certain places such as schools which does not require the worker to interact with children, will no longer be regulated activity. An example of the latter is work in schools by maintenance contractors and builders. However, teaching by supply teachers will still be a regulated activity.

A range of posts and offices that do not necessarily require the postholder to work closely with children on a regular basis, will no longer be regulated activity. Examples of work that were caught previously include school governorships; work for the Children and Family Court Advisory and Support Service and its Welsh equivalent; senior roles such as local authority directors of children’s services and the Children’s Commissioner for England; and the work of inspectorates in England, including the Care Quality Commission. Also, the day-to-day management and supervision on a regular basis of any of the types of the work that I referred to will be removed from regulated activity.

The last area to be removed is any work that is currently a regulated activity solely because it takes place in a children’s hospital and provides an opportunity for an individual to have contact with children, such as the work of receptionists.

I would like to make it clear that we are moving decisively against the wrong assumption that each and every incidental contact with children, their data or their environment should be regulated by the state. Our proposals will require those directly responsible for looking after our children to have in place effective risk-management processes when taking on individuals in any position that involves work with children, even if the work does not fall within regulated activity.