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The Minister of State, Home Office (Mr. David Maclean): I take some comfort from the fact that the new clause suggests that the Labour party has finally accepted our view that preventing the misuse of sensitive victim statements and photographs is a particularly difficult and complex task. It is likely that rushing into inadequate legislation without the opportunity to consult practitioners on the detail would achieve little.
If the hon. and learned Member for Montgomery(Mr. Carlile) thinks that the new clause is a muddle, he should have seen the amendment tabled by the Opposition in Committee.
I am disappointed that the hon. Member for Cardiff, South and Penarth (Mr. Michael) has still not fully appreciated the intricacies of devising a workable and effective scheme.
The hon. Member for Swansea, East (Mr. Anderson) deplored the rhetoric and then condemned the Government. He fully supported the new clause but then went on to shoot it down by pointing out all the holes in it. He said that he was worried about the reasonable grounds and that there would have to be safeguards for this and that. He pointed out all the faults in the new clause, and he was right to do so because it is fatally flawed.
There is no disagreement in the House on the need for a scheme to prevent the misuse of some of the material that can circulate in prisons, but we should not underestimate the difficulties of legislation. When we last invited the views of interested parties on measures to tackle the problem, there was no consensus on how best to proceed. That is hardly surprising because there is a difficult balance to strike between the rights of defendants to know all the evidence against them and the need to protect victims from improper use of their statements or of photographs of them.
As my right hon. and learned Friend the Home Secretary announced last month, we have decided that a statutory scheme is needed. We have devised proposals that are workable and effective. We shall embark on a consultation process in the very near future, in the light of which we shall legislate as soon as possible. It serves
no interest, least of all that of the credibility of the Labour party, to try to anticipate that consultation by legislating on the basis proposed in the new clause.
Mr. Donald Anderson:
The Minister has used the phrase, "as soon as possible". My hon. Friend the Member for Cardiff, South and Penarth mentioned that the problem was first raised in 1994. Does that suggest that there is any real urgency on the part of the Government?
Mr. Maclean:
There is real urgency on the part of the Government. I remind the hon. Gentleman that, when my right hon. and learned Friend produced his famous 27 proposals, there was ridicule from the Labour party. Half the Labour party, including its leader, said that they were just an ineffective publicity stunt. We published those proposals and we have legislated on the vast majority of them. There is only one outstanding proposal, which the Bill includes. We now find the Labour party saying, "You should have done more." Labour Members ridiculed the proposals at the time, but they now say that they do not go far enough and that we should have included a host of other things in legislation. New issues which deserve to be tackled will always come along, but not a single Labour Member demanded that we included this measure with the 27 proposals and added it to a Criminal Justice Bill.
The hon. Member for Cardiff, South and Penarth should not provoke me in this short debate. If he looks at the voting record of Labour Members on this issue, or on other child protection issues that were debated in the 1980s, he will see that some of his hon. Friends have a sorry record.
I shall give the House two examples to show how the new clause is fundamentally flawed. First, any scheme must include provisions for its requirements to be enforced. We have made it clear that we believe that it should be an offence for defendants to have protected material in their possession other than in accordance with the requirements of a supervised access regime. Those responsible for protecting the material must also be liable if they commit any breaches of the regime.
The new clause would modify the duty on the prosecution. In those circumstances, it would not be right for an order made under it to provide for new offences and penalties to be applied to defendants. In addition, those new offences would require substantial penalties of up to two years' imprisonment to deal with the worst offences. When we introduce our statutory scheme, if we find that there are criminals in prison who have access to such material and who are breaking rules by circulating pornographic material, we want to have substantial penalties against them.
The House would never agree to a penalty of up to two years' imprisonment being created by order of the Secretary of State, even if the new clause contained an express power for the order to include criminal offences. The new clause is, of course, silent on this matter. If the Government said that the Home Secretary could, by order, introduce a power to send people to prison for two years, the Labour party would be the first to condemn us and, in that case, rightly so.
The second fundamental flaw in the Opposition's argument is this. We believe that all material that might be misused, whether or not it forms part of the prosecution case, should be protected. Any unused material--not just
the pornographic material--that might be part of the prosecution's case should be protected. There could be a whole raft of unused prosecution material that might be disallowed or not given in evidence. We cannot allow sexual material that could involve children to circulate around prisons because it has not been protected. There must be immediate and certain protection for victims.
The hon. and learned Member for Montgomery identified another problem. The new clause ignored the advice of the royal commission on criminal justice, which did not identify the information on common assaults or violent crime as a concern. That problem relates to sexual material. That is the only stuff that has currency in prison and is circulating. The new clause is far too wide in catching violent material. Sexually violent material would be caught under the sexual definition, but there is no point in including material on other assaults and violence. The core of the problem is not that, but sexual material. We want to home in on that and to provide automatic protection for all victims and all sexual material in statements, and we shall be consulting on that shortly.
It is not a matter of saying that we accept the spirit of the new clause and we shall tickle it or amend it in another place. The new clause is fatally flawed. If our experience on the Bill is anything to go by, it is worth consulting the legal practitioners before rushing into legislation.
Mr. Alex Carlile
indicated assent.
Mr. Maclean:
The hon. and learned Member for Montgomery is nodding in agreement. In that case, I agree with him on the matter.
There was no consensus when the Government last considered the matter. I hope that when we publish our consultation paper shortly, we shall have the views of the Law Society and others so that, if there are changes to be made, we can make them and introduce sensible and workable legislation that will protect victims as the new clause manifestly fails to do.
Mr. Michael:
The Labour party's voting record on crime and children's issues stands the test of time and it is mere bluster for the Minister to suggest otherwise. One has only to look at the series of issues on which the Opposition have been constructive long before they were identified by the Government to recognise that the Labour party is serious about tackling crime, just as it is serious about tackling the misuse of evidential material of a sexual and violent nature.
The Minister says that it is wrong to rush in. Let me make two points on that. First, that has not stopped the Home Secretary tackling any issue that he perceives to be popular with the Conservative party conference. He is renowned as the Home Secretary who rushes in without
advice on issue after issue. Secondly, the Government have had long enough to consult and to construct serious amendments. They do not need more time. It is an excuse, and not a very convincing one, to suggest that further delay should be allowed. If the Government were determined to end that disgraceful abuse, they would have started consultation two years ago.
The Minister suggests that merely sexual material and not violent material should be caught by any legislation. That is not enough. Photographs and material involving mutilation and violence on people have been at the core of many serious cases. The advice of those concerned with such issues is that there is often a mixture of sexual and violent motivation and that the domination of children and women is at the heart of many of the offences that we seek to cover in the new clause.
The Minister would be wise to recognise the need to extend the Bill beyond merely sexual evidence to sexual and/or violent evidence, as we have proposed in the new clause. If there is cross-party agreement, as the Minister suggested, that we should end this abuse, the Government should be finding ways to tackle the abuse, but yet again the Labour party shows the sense of responsibility appropriate to Government by trying to tackle the problem.
The hon. and learned Member for Montgomery should understand my slight frustration when he intervened during my first sentence on the new clause. Labour Members have spent time in Committee trying to make constructive suggestions and trying to tease out information when the Liberal Democrats chose not to be involved in the Bill. We have attempted to do that difficult job without the benefit of parliamentary counsel.
When the Minister makes minor criticisms of what we have done, he should bear in mind the fact that the Opposition are trying to fill the gap that has been left by the Government's unwillingness to tackle serious problems. Having said that, I thank the hon. and learned Member for Montgomery for his support for the new clause and for his constructive criticisms. I acknowledge that he has raised important issues. That is why we phrased the new clause so that the regulations would be required to take into consideration the practical details and would specifically require the disclosure to be no less as a result of the new clause in order to protect the interests of the defendant while also protecting the interests of those portrayed in photographs or interview evidence.
My hon. Friend the Member for Swansea, East(Mr. Anderson) asked who would decide how the measures would operate. That should be covered in the regulations. I have taken advice on the capacity to deal with that and appeal rights by statutory instrument. I would be happier for detailed legislation to be part of the primary legislation, but as the Government have not included it in the primary legislation, have not taken the hint in Committee and have not undertaken the consultation that should have started a couple of years ago, it is surely better to pass this enabling legislation and, in the fullness of time, to let the scheme be amended to make it perfect in the light of experience.
I am absolutely clear that the difficulties of producing appropriate legislation are no excuse for doing nothing. Immediate action is needed on this scandal. The new clause should be passed into law in order to make sure that we act on it now.
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