Private Security Industry Bill [Lords]

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Mr. Fearn: I want to comment on a phrase used by the Minister. He said that he thought that between 300,000 and 350,000 personnel were involved. So far, during debates on the Bill, we have heard figures of 200,000, 250,000 and now 350,000. It seems impossible and amazing that we do not know how many people work within the business that we are about to regulate. Perhaps we will find out when the regulation comes about. In view of what the Minister said, I accept his explanation, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Bercow: I beg to move amendment No. 39, in page 4, line 13, leave out subsection (6) and insert—

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

    (a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both;

    (b) on conviction on indictment, to imprisonment for a term not exceeding five years, or to a fine, or to both.'.

I endorse what has been said and welcome your return to the Chair, Mr. Winterton. That is in no sense an affront or discourtesy to your co-Chairman Mr. Benton, who chaired proceedings with alacrity, patience and humour this morning, but we knew that you would follow in similar vein this afternoon. We look forward to your continued Chairmanship.

I am pleased to speak in support of amendment No. 39, which would increase the penalty, under the clause, for a person who engages in licensable conduct without a licence. It is necessary—or desirable at any rate—to explain the background to, and purpose of, the amendment. As the Minister is aware, the maximum penalty under the clause for the offence of licensable conduct without a licence is six months' imprisonment and a £5,000 fine on summary conviction. However, there is what might be argued to be an inconsistency or disparity between that provision, on the one hand, and other provisions in relation to fines and other penalties, on the other.

This is not entirely uncharted territory. As the Minister knows, similar issues were intelligently explored during the Standing Committee on the Vehicles (Crime) Bill in January of this year. On those occasions, the Minister offered us some reassurance, and I hope that he might be able to do so in this case.

I mentioned the maximum penalty of six months' imprisonment and a £5,000 fine and emphasised that it is out of kilter with other provisions. That has caused my brow to furrow and beads of sweat to descend on it and me to agitate for the Minister adequately to explain the apparent inconsistency.

The Chairman: Appear.

4.45 pm

Mr. Bercow: Perhaps the beads appear rather than descend.

Stiffer penalties apply for the offences under clause 5, which relates to the use of an unlicensed operative, and clause 6, which relates to the use of an unlicensed wheelclamper, a matter of considerable import, not least to the hon. Member for Doncaster, Central (Ms Winterton). The offences attract a maximum of five years' imprisonment and an unlimited fine—not the £5,000 maximum provided for in the clause, but an unlimited fine after conviction on indictment.

I emphasise, not even evaluatively but simply as a statement of fact, that it is a sign of the importance attached to some of the offences that they will carry penalties, if the Bill is unamended or as long as it is not amended in what might be called a liberal fashion, that will preclude consideration of individuals so convicted and punished for release under the Government's home detention curfew scheme.

I realise that, within the Home Office ministerial team, the Minister does not directly deal with the matter, but he will know that, under that scheme, the people who are eligible for early release are those who have been convicted of offences that would attract a custodial sentence of more than three months but less than four years. People sentenced to a custodial sentence of five years' imprisonment would obviously not be eligible for early release. That shows how important the offences are considered to be.

Will the Minister consider whether the Bill might be stiffened further? That is the objective of amendment No. 39. To take an obvious example, let us suppose for the sake of argument that a shopkeeper employs an unlicensed wheelclamper—I am delighted in referring to this important subject to see the return of the hon. Member for Doncaster, Central, whose efforts on these important matters have been tireless and effective in equal measure.

Let us suppose that a shopkeeper employs an unlicensed wheelclamper but does not have the defences available under clause 6(2). As the occupier of the premises in question, he would therefore be guilty of an offence under clause 6 and could be sent to prison for up to five years and fined an unlimited amount to boot. I am not cavilling at that or saying that it is a bad idea. It gives teeth and potency to the Bill. However, I am unclear why the Government do not follow a similar logic throughout, although there may be a good reason.

Although it is tempting to do so, I shall not dilate on the defences available under clause 6(2). Suffice it to say that a pithy summary is that they are along the lines that the person did not know or have any reasonable grounds for suspecting at the time that the activities were carried out that the person in question did not hold a licence. In other words, the defence is, ``I might have done it, guv, but I wasn't aware that I was in breach.''

The unlicensed wheelclamper himself would be guilty only of an offence under clause 3—engaging in conduct that is prohibited unless a licence is held. He would therefore be liable only to a fine of £5,000, rather than vulnerable to an unlimited fine. Therefore, the cowboy clamper would be subject to a lower penalty than would apply to a person who had used the individual's services. Does the Minister think that the maximum fine of £5,000 that is set out in clause 3 is adequate in such a case? There is a difference between the two penalties, and I wish to explore whether that is deliberate or accidental. If the difference is deliberate—I suspect that it is—will the Minister explain the rationale behind the differential treatment and, in the unlikely event that the difference is accidental, will he consider correcting the error?

Mr. Charles Clarke: As the hon. Member for Buckingham says, this is a deliberate question, and, because we have discussed the matter in other Committees, I shall immediately concede that. This is a legitimate subject for debate, and the amendment is appropriate.

We decided that it was important to distinguish between the offence of being an unlicensed security operative, and the offence of being an employer who uses an unlicensed security operative. I agree that there is a question of proportionality and balance of judgments, and the matter is a question of judgment. Therefore, I accept that the hon. Gentleman's case is legitimate—one can make the judgment in a different manner. However, we have used the wording in the Bill because we consider that it is important to recognise that an individual who had not obtained a licence was in a different position from an employer who was using people who were not licensed, when they should be aware of the situation. The danger to public security is an employer, such as a nightclub chain, that deliberately does not use people who are appropriately licensed. A heavier penalty should apply in such a case than should apply to an individual who should be licensed and is not.

I accept the hon. Gentleman's point that that is a balance of judgment. He asked for the reasons for that judgment, and that is the distinction between the effect of an unlicensed individual, compared with the decision of a user of a security service to use people who are not licensed. The latter is a more serious offence than the former, and therefore a different penalty is applied. That is the basis of our judgment, and I hope that the hon. Gentleman will withdraw his amendment.

Mr. Bercow: I am not entirely persuaded. The Minister has a case, which can be knocked back and forth, and an argument can be made either way. I wondered whether he would develop his argument on the basis of the significance of deterrents or, in the absence of sufficiently stringent penalties, the risk of copycat or imitative behaviour. He did not do so.

Mr. Clarke: Those are both powerful arguments for tougher targeting of the user of security, compared with the individual. There are other arguments concerning the general regulation of the industry, which are why we consider that to be the case, but the hon. Gentleman gave good examples of why we are trying to make that distinction.

Mr. Bercow: My generosity of spirit, which is almost always on display, got the better of me, and I aided and abetted the Minister by volunteering an argument that he had chosen not to deploy. I accept that there is an argument in that respect, although I am not sure how powerful it is. We would have to examine the evidence over a period of time to know whether the differential penalties applied. There may be a utilitarian benefit in taking such an approach, which would yield evidence over a period to examine whether that prognosis was vindicated. However, there is a danger, in the interim, that some people may be disadvantaged relative to others. Equality of treatment, which we may take as a reasonable principle of public policy and of the penalty for the breach of statute, will not be applied.

If individuals who are entirely knowingly in breach of the law are treated less severely than proprietors of businesses, is there any reason to believe that there will not be copycat behaviour and the commission of the sort of offences of which those individuals are guilty? My fear is that there could be.

I still think that there is something to be said for equality or equivalent treatment, but I accept that the Minister has made a fair point. I genuinely tabled the amendment in the spirit of opening up the argument and probing the case either way; I do not intend to press it at this stage. In response to what he has said, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

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