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House of Commons
Session 2007 - 08
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General Committee Debates
Criminal Justice and Immigration Bill

Criminal Justice and Immigration Bill

The Committee consisted of the following Members:

Chairmen: Frank Cook , Mr. Edward O'Hara , † Sir Nicholas Winterton
Burrowes, Mr. David (Enfield, Southgate) (Con)
Coaker, Mr. Vernon (Parliamentary Under-Secretary of State for the Home Department)
Cohen, Harry (Leyton and Wanstead) (Lab)
Eagle, Maria (Parliamentary Under-Secretary of State for Justice)
Garnier, Mr. Edward (Harborough) (Con)
Hanson, Mr. David (Minister of State, Ministry of Justice)
Heath, Mr. David (Somerton and Frome) (LD)
Hollobone, Mr. Philip (Kettering) (Con)
Howarth, David (Cambridge) (LD)
Hurd, Mr. Nick (Ruislip-Northwood) (Con)
Keeble, Ms Sally (Northampton, North) (Lab)
Khan, Mr. Sadiq (Tooting) (Lab)
Michael, Alun (Cardiff, South and Penarth) (Lab/Co-op)
Sharma, Mr. Virendra (Ealing, Southall) (Lab)
Walker, Mr. Charles (Broxbourne) (Con)
Waltho, Lynda (Stourbridge) (Lab)
Wilson, Phil (Sedgefield) (Lab)
Alan Sandall, Committee Clerk
† attended the Committee

Public Bill Committee

Thursday 29 November 2007


[Sir Nicholas Winterton in the Chair]

Criminal Justice and Immigration Bill

Written evidence to be reported to the House

CJ&I 405 Backlash
CJ&I 406 Ministry of Justice
CJ&I 407 The Spanner Trust
CJ&I 408 Philip Morris Limited

Schedule 21

Minor and consequential amendments
Amendment proposed [this day]: No. 237 in schedule 21, page 223, line 19, at end insert—
‘Football Spectators Act 1989 (c. 37)
6A In paragraph 1(c), (k) and (q) of Schedule 1 to the Football Spectators Act 1989 (offences)—
(a) for “Part III” substitute “Part 3 or 3A”; and
(b) for “(racial hatred)” substitute “(hatred by reference to race etc)”.
Broadcasting Act 1990 (c. 42)
6B (1) Section 167 of the Broadcasting Act 1990 (power to make copies of recordings) is amended as follows.
(2) In subsection (4)(b), after “section 24” insert “or 29H”.
(3) In subsection (5)(b), after “section 22” insert “or 29F”.’.
1 pm
Question again proposed, That the amendment be made.
The Chairman: I remind hon. Members that with this it will be convenient to discuss the following: Government amendments Nos. 246, 252 and 221.
Government new clause 34—Hatred on the grounds of sexual orientation.
New clause 49—Hatred on grounds of sexual orientation
‘(1) Save where expressly limited by subsection (2) below, nothing in this section affects any person’s right—
(a) to respect for private and family life, his home and his correspondence;
(b) to freedom of thought, conscience and religion, including the right to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance;
(c) to freedom of expression, including the freedom to hold opinions and to receive and impart information and ideas without interference by any person or public authority;
(d) to freedom of peaceful assembly and to freedom of association with others.
(2) It is an offence whether by words or acts for any person to do, or to incite any other person to do, any act with the intention of causing physical or mental harm to any person or group of persons on the basis of hatred of their sexual orientation or presumed sexual orientation.
(3) In this section “words” and “acts” include the making known to any third party of oral, written or printed words by any method of publication including electronic, wireless or internet media, and an offence under this section may be committed in a public or a private place.
(4) Where a body corporate is guilty of an offence under this section and it is shown that the offence was committed with the consent or connivance of a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity, he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
(5) Where the affairs of the body corporate are managed by its members, subsection (4) applies in relation to the acts and defaults of a member in connection with his functions of management as it applies to a director.
(6) No criminal proceedings under this section may be initiated or continued save by the Crown and with the permission of the Attorney General.
(7) A person guilty of an offence under this section shall be liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding two years, or a fine, or both; or
(b) on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both.’.
Government new schedule 2—Hatred on the grounds of sexual orientation
1 Part 3A of the Public Order Act 1986 (c. 64) (hatred against persons on religious grounds) has effect subject to the following amendments.
2 In the heading for Part 3A at the end insert “or grounds of sexual orientation”.
3 In the italic cross-heading before section 29A at the end insert “and “hatred on the grounds of sexual orientation””.
4 After that section insert—
“29AB Meaning of “hatred on the grounds of sexual orientation”
In this Part “hatred on the grounds of sexual orientation” means hatred against a group of persons defined by reference to sexual orientation (whether towards persons of the same sex, the opposite sex or both).”
5 In the italic cross-heading before section 29B at the end insert “or hatred on the grounds of sexual orientation”.
6 (1) Section 29B (use of words or behaviour or display of written material) is amended as follows.
(2) In subsection (1), after “religious hatred” insert “or hatred on the grounds of sexual orientation”.
(3) Omit subsection (3).
7 In section 29C(1) (publishing or distributing written material), after “religious hatred” insert “or hatred on the grounds of sexual orientation”.
8 In section 29D(1) (public performance of play), after “religious hatred” insert “or hatred on the grounds of sexual orientation”.
9 In section 29E(1) (distributing, showing or playing a recording), after “religious hatred” insert “or hatred on the grounds of sexual orientation”.
10 In section 29F(1) (broadcasting or including programme in programme service), after “religious hatred” insert “or hatred on the grounds of sexual orientation”.
11 In section 29G(1) (possession of inflammatory material), for “religious hatred to be stirred up thereby” substitute “thereby to stir up religious hatred or hatred on the grounds of sexual orientation”.
12 (1) Section 29H (powers of entry and search) is amended as follows.
(2) In subsection (1), omit “in England and Wales”.
(3) Omit subsection (2).
13 (1) Section 29I (power to order forfeiture) is amended as follows.
(2) In subsection (2)—
(a) in paragraph (a), omit “in the case of an order made in proceedings in England and Wales,”; and
(b) omit paragraph (b).
(3) Omit subsection (4).
14 In section 29K(1) (savings for reports of parliamentary or judicial proceedings), for “or in the Scottish Parliament” substitute “, in the Scottish Parliament or in the National Assembly for Wales”.
15 (1) Section 29L (procedure and punishment) is amended as follows.
(2) In subsections (1) and (2), omit “in England and Wales”.
(3) In subsection (3), in paragraph (b), for “six months” substitute “12 months”.
(4) After that subsection insert—
“(4) In subsection (3)(b) the reference to 12 months shall be read as a reference to 6 months in relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003.”
16 In section 29N (interpretation), after the definition of “dwelling” insert—
““hatred on the grounds of sexual orientation” has the meaning given by section 29AB;”.’.
And the following amendments thereto: (a), after paragraph 6, sub-paragraph (2) insert—
‘(2A) After subsection (1) insert—
“(1A) An action under subsection (1) may include any action intended to equate sexual orientation with a propensity or intention to commit an imprisonable offence.”’.
(b), after paragraph 13 insert—
‘(13A) After section 29I insert—
“29IA European Convention on Human Rights
Unless expressly limited by any provision within this Part, no right under Article 10 of the European Convention on Human Rights shall be affected.”’.
When we adjourned at 25 minutes past 10 this morning, which seems only a minute ago, the hon. Member for Kettering was on his feet, and I now ask him to resume his address on amendment No. 237.
Mr. Philip Hollobone (Kettering) (Con): —as to the Minister’s intentions with regard to how the legislation would affect the gentleman who was protesting in Parliament square. In that case, the gentleman was shouting that he felt that homosexuals could pervert children. Mr. Summerskill made it quite clear in his evidence that he felt that that was incitement, and that any legislation brought forward by the Government ought to make a prosecution of that gentleman rather more straightforward. Could there not be a situation whereby people quote from religious transcripts in such a way that others would be offended by it? Although they might not be trying to incite anyone to violence, huge offence could be caused nevertheless.
The Parliamentary Under-Secretary of State for Justice (Maria Eagle): I tried to make it clear that intention to incite hatred was a key part of the offence as drafted. Does that not answer the hon. Gentleman’s point?
Mr. Hollobone: It does not really answer my point. It may be that the individual concerned does not intend to cause an offence, under the terms of the new legislation, but that others may—
Maria Eagle: He does not have to intend to cause an offence, but he has to intend to incite hatred. It is quite clear.
Mr. Hollobone: It comes down to a debate about what is inciting hatred. To give an example, I will quote a reference made by Mr. Summerskill, in his evidence, from the Bible, in Leviticus, chapter 20, verse 13:
“If a man lies with a male as he lies with a woman, both of them have committed an abomination. They shall surely be put to death. Their blood shall be upon them.”
If someone were parading up and down the street outside with a banner displaying that quote from the Bible, while a legitimate homosexual meeting was going on in a nearby building, could not a prosecution for incitement to hatred be brought under the new legislation? The person doing the demonstrating is exercising their religious beliefs, which we may or may not share. The huge worry among evangelical Christian groups, Islamic groups and those of other faiths is that the legitimate, though perhaps sometimes offensive, expression of their beliefs, could be caught by the new legislation.
It is not only those of us with a religious perspective who have cause for concern about the new legislation, but also gay people. I find myself, rather surprisingly, quoting Mr. Peter Tatchell, who is a well known gay rights activist and has developed a considerable reputation for his activities. He says:
“If there are going to be laws against inciting hatred, they should be universal and prohibit all incitements to hatred—not just some. Singling out race hate and homo hate for special legal penalties strikes me as unfair and undesirable. It creates resentment among social groups who are not protected by such laws, which is bad for community cohesion. My view is very simple: everyone should be equal before the law, in which case all incitements of hatred should be an offence.”
Mr. Tatchell then goes on to define incitement, which is the point that the Minister has just made. He says:
“After all, similar laws have been abused in the recent past.”
He cites the example of an Oxford student who was arrested and fined under the public disorder laws for making a joke about a policeman’s horse being gay. The officers construed that joke as a homophobic remark and named the student under the already existing wide-sweep public order legislation, which bans behaviour that is likely to cause harassment, alarm or distress. He says:
“It is not clear whether it was the police officer or the horse that was supposedly offended by the student’s off-the-cuff quip.”
Then we have evidence in the newspapers this week that the Attorney-General herself may have some private concerns about the appropriateness of this legislation. It has been reported—I would welcome the Minister’s response to this—that Baroness Scotland has privately expressed concern about the controversial legislation being brought before us. The article in The Times states that:
“Baroness Scotland, who is also determined to crack down on the problem of homophobic behaviour, believes that there are sufficient laws on the statute book to deal with this issue.”
The article goes on to state:
“She is understood to have told colleagues that she wants to see more successful prosecutions in this area, but is unconvinced that a new law is the way to do it and would prefer to focus on existing procedures.”
The distinguished correspondent and former Member of Parliament, Mathew Parris, who is a homosexual himself, stated in The Times newspaper:
“Some groups may be so weak and fragile as to need the law’s protection from hateful speech. I’d like to think that we gays are no longer among them.”
From the entertainment profession, Rowan Atkinson has also criticised the proposals. He said that society was already “working things out” without the need for any legislative interference. He is concerned, as am I, about the extendable nature of the legislation because it could be extended in future to other groups. Rowan Atkinson cites as an example, “people with big ears”.
This week, both the Church of England and the Catholic Bishops’ Conference of England and Wales have commented on the proposals before us. In a joint initiative, the Churches stated:
“Our main concern is that any legislation on incitement to hatred on the grounds of sexual orientation permits the expression of traditional Christian (and other) opinions on sexual behaviour and consequent criticisms of particular forms of behaviour or lifestyle. As with incitement to religious hatred, we believe it is vital that there should be the maximum possible clarity about what is forbidden and what is permitted. Christians engaged in teaching or preaching and those seeking to act and accord with Christian convictions in their daily lives need to be assured that the expression of strong opinions on marriage and sexuality will not be illegal.”
In their submission, they point out the possible chilling effect on free speech, which formed much of our previous debates on the religious hatred legislation. They say:
“Uncertainty in the law has the effect of inhibiting behaviour which may not in fact be illegal.”
They call, as I do, for an exploration of the relevant safeguards, along with those included in the law of incitement to racial hatred, namely the famous section 29J, which this legislation is screaming out for.
I am also disturbed that a lot of the interpretation of this new legislation will be left in the hands of police officers, who will be faced with the confusing prospect of having, on the one hand, laws passed in this place under the Racial and Religious Hatred Act 2006, which contains a section 29J that explicitly states that there is not an offence as far as free speech is concerned, and the proposed legislation before us today that does not. Police officers might well be confused by that.
The guidance from the Association of Chief Police Officers on hate incident reporting procedure describes a homophobic incident as any
“incident which is perceived to be homophobic by the victim or another person.”
On the prosecution of cases of homophobic crime, the Crown Prosecution Service guidance defines homophobia as
“A fear of or a dislike directed towards lesbian, gay or bisexual people, or a fear of or dislike directed towards their perceived lifestyle, culture or characteristics, whether or not any specific lesbian, gay or bisexual person has that lifestyle or characteristic.”
The subjective emphasis of those definitions coupled with the growing pressure placed on the authorities to respond to such complaints will lead to significant problems. By emphasising the perception of the victim or any other person in defining something as an incident, regardless of the consideration of context or content that an objective valuation could make, there is a danger that a semblance of reasonableness could be stripped away.
It is suggested that the Crown Prosecution Service will provide a safeguard as it will only bring a case if there is a reasonable prospect of conviction and if that prosecution is in the public interest. I am disturbed, however, by the published guidance of the CPS. There are real concerns about the chilling effect on free speech. I shall cite examples of how legislation has been affected by differing interpretations on the street.
In 2005, a Christian couple—Joe and Helen Roberts—were interrogated by the police because they complained about their local council’s gay rights policy. The police said that they were responding to a reported homophobic incident under the guidelines. They later admitted that no crime had been committed and, following legal action by the Roberts, the police and the council issued a public apology. It all worked out in the end, but that is a rather alarming example of the chilling effect of legislation such as that proposed today.
The Bishop of Chester was investigated by the Cheshire constabulary in November 2003, after he told his local newspaper of research showing that some homosexuals reoriented to heterosexuality. The police passed a file to the Crown Prosecution Service, which decided not to prosecute. The Cheshire constabulary issued the following statement:
“The Crown Prosecution Service has been consulted with at length, and Cheshire Police are satisfied that no criminal offences have been committed, as current public order legislation does not provide specific offences based on sexuality.”
Again, it all worked out in the end, but that is another alarming example of the chilling effect of such a law.
In 2004, the Christian Union of the university of Cambridge was reported to the police following its distribution of St. John’s gospel to students and its hosting of an evangelical meeting at which the dean of Sydney cathedral put forward a traditional biblical view on homosexuality. In December 2005, police questioned the family values campaigner, Lynette Burrows, after she expressed the view on a radio programme that homosexual men may not be suitable for raising children. Police telephoned saying that they were investigating a reported homophobic incident.
I do not believe that the Government are malevolent about matters but, however well intentioned the legislation, it will give rise to alarming chilling effects on the way in which people with profound religious beliefs can espouse their views. Our nation does not require the measure. Enough legislation is already on the statute book to deal with the vile incidents of homophobic hate crime.
My argument is that our present law is not used effectively enough. One example of that is in respect of Northern Ireland. The Minister will claim that that is a different jurisdiction, but she has more experience of the affairs in that Province than I have, and she may well have been responsible for introducing the law to which I am referring—[Interruption.] I am told that it was the Minister of State, Ministry of Justice, my right hon. Friend the Member for Delyn. However, if this legislation is so wonderful—if it is really meant to do what it says on the tin—why have there been no prosecutions in Northern Ireland in respect of offensive rap lyrics against homosexuals? Why are the Government not using the legislation that they have already introduced to take action against such vile crimes?
1.15 pm
I am worried that we are putting another piece of legislation on to the statute book that will have a profound chilling effect on people who hold religious beliefs, that will damp free speech, and that will be another case of thought crime. Trying to make incitement to hatred of specific groups a criminal offence is the wrong way to go. I agree that we should consider making it an offence to incite hatred across the board, but picking that off group by group is the wrong way to go: it will set one group against another and will not help community cohesion but damage it.
Maria Eagle: We have had a good debate, during the morning sitting and concluding just now, about this issue and I think that most of the concerns from all sides of the debate have been covered. I want to deal with amendments (a) and (b) to new schedule 2 and new clause 49, tabled by the hon. and learned Member for Harborough. I will not re-rehearse the original Government amendment, which I dealt with this morning.
The hon. Member for Somerton and Frome highlighted a real problem with amendment (a) to new schedule 2 and I have a lot of sympathy with the concerns that he has attempted to formulate into a legislative phrase. He was characteristically modest in suggesting, before I had the chance to do so, that his amendments were defective or not as good as they might have been if he had been a parliamentary draftsman. However, he has not done a bad job.
My concern about his trying to formulate the issue as he has done is more about what it would do to the rest of the law. He said clearly that he thought that the Government amendments and new clauses pitched the offence at about the right level. He was particularly concerned about inhibiting free speech and thought that pitching the offence at the level of threatening words and behaviour with an intention to incite hatred was right. However, our problem is that amendment (a) goes further than threatening words. On one hand the hon. Gentleman says that he believes that the offence is pitched correctly in the Government amendments—the new clauses and new schedule—but on the other hand he says that he wants a little bit extra, extending the provision to what might be characterised as insulting, abusive language, which we have specifically excluded from the offence. That is our difficulty and I think that the hon. Gentleman recognises that. He wished to highlight a particular concern, which is that gay, lesbian and bisexual people are sometimes portrayed by those who wish to incite hatred as paedophiles who intend to corrupt and harm the young.
Mr. David Heath (Somerton and Frome) (LD): I am grateful to the Minister for the care with which she has responded to my suggestion. I want to make it clear that I am not trying to include language that is simply offensive: it has to be construed within the context of the general offence. In other words, it has to be threatening, the context has to be such that it is threatening and it has to have the intent of incitement to hatred. The fact that there is a subset within that group means that it does not extend the provision, but simply identifies a particular sort of language that is intended to incite hatred—which I am convinced it is.
Maria Eagle: I understand the point that the hon. Gentleman is trying to make and I have some sympathy with it. However, it is important that there is clarity: I think that all Committee members agree with that. As currently cast, the offence requires threatening words or behaviour. The hon. Gentleman is now talking about a threatening context, which is a slightly different thing. As the provision is currently drafted, the words or behaviour have to be threatening and there has to be an intention to incite in order for the offence to be made out.
It is undoubtedly the case that the kind of allegations to which the hon. Gentleman referred are insulting, demeaning, abusive and untrue, and might also amount to defamation in certain circumstances, in which case that could be dealt with by the civil courts. However, they are not necessarily threatening of themselves. That is the difficulty. The Government have confined the proposals to words or behaviour that are threatening or intended to stir up hatred. We think that that strikes the right balance between dealing with stirring up hatred and securing freedom of speech. Our proposed offences interfere with freedom of speech only when there is a need to do so to protect vulnerable groups and preserve public order.
I have every sympathy with the concerns that give rise to the hon. Gentleman’s amendment. However, we are trying to be very clear about the boundaries of the offence so as to provide a proper balance with people’s freedom to say what they think, and I believe that the amendment would make them less clear. That is why I cannot agree to it.
On amendment (b), the hon. Gentleman tried to indicate that his wording was not perfect, but actually it is otiose—I always try to get the word “otiose” into Public Bill Committee deliberations at least once. The Human Rights Act already provides the safeguard that he seeks, because the Bill as a whole has to be compatible with that Act. The difficulty with the express inclusion of such a provision—the same point applies to the hon. Gentleman’s proposed new clause 49, whose purpose he has explained—is that, if the Human Rights Act is generally implicit and is certified as applicable, express inclusion presents an issue for judges who try to construe the express provision.
Mr. Edward Garnier (Harborough) (Con): It does not if it is otiose. However, the decline in the respect accorded to Ministers’ rubber-stamping of Bills is now self-evident. Nobody really thinks that, when a Minister stamps a Bill to say that in their view the provisions of the Bill are compatible with the convention, they have seriously applied their mind to that question. It is just part of the printing on the front of the Bill. That might be grossly unfair, but it is what the public now think, and it is also certainly what many Members of Parliament think, so whether it is fair is neither here nor there.
As regards express mention of things that the Minister says are implicit, she is perfectly right that the convention is now justiciable under our law and that our courts must bear it in mind. However, not every judge and magistrate has the convention in the forefront of their mind. Indeed, I do not think I am being controversial if I say that not every judge and magistrate will even have read the convention. That might be the most appalling admission to make—indeed, I do not know how I dare say such a thing. However, for that reason I think that it is quite important occasionally to remind those who have to implement the law of what the law is.
Maria Eagle: I understand the hon. and learned Gentleman’s point. On the ministerial declaration, Ministers have to turn their mind to the question of compatibility. They are advised by officials and lawyers on compatibility, and I can assure the hon. and learned Gentleman that, in my experience as a Minister, that advice has been both seriously given and seriously taken. I do not know of any Minister who would ignore advice from departmental lawyers that suggested that any part of a Bill whose compatibility he was about to certify was in fact incompatible. He would not be in a position to do that. So this matter is taken seriously, although perhaps the hon. and learned Gentleman’s cynicism is born out of longer years in Opposition; he may become a lot more cynical before that period in Opposition ends.
Mr. Heath: I am never cynical.
The hon. Lady cannot have it both ways. Amendment (b) cannot be otiose and give difficulties to the judge in construing the Bill; either it affects the law or it does not. If it is unnecessary and makes no difference to the law, there is no difficulty in construing it. If it does make a difference, it is achieving the effect that I want it to have, which is to ensure that free speech is protected in every other circumstance except the circumstance that is specified within the Bill.
Maria Eagle: It makes no practical difference to the law, but it presents a problem in statutory construction; that is what I am saying.
Mr. Heath: Why?
Maria Eagle: I have tried to explain, but I do not want to get tempted down the highways and byways of this matter. In our view, it is not necessary expressly to put in different parts of the European convention that are implicit in the legislation and it would be bad practice in draughtsmanship to do so. I understand the points that the hon. and learned Member for Harborough makes about having judges read the law now and then. I am sure that most judges do so; one would hope that all of them do. Anyway, that is my point in respect of amendment (b). He might not agree with it; that is up to him.
Let me turn to new clause 49, with which I had considerable sympathy, in that the hon. Member for Enfield, Southgate wished to see a clear and succinct statement of the law. It is certainly a cause of some frustration to me that the way in which the amendments have been drafted by parliamentary counsel, although proper and correct, does not make it easy to read and understand precisely what the law says, if the Committee agrees to these amendments. That is why I have tried to be extremely clear in setting out what the law means and that is why I have said on a number of occasions during the debate that we will be issuing guidance, because clarity is important.
The hon. Gentleman has set out and spoken to the new clause with some aplomb and he has suggested why he set it out in the way that he has. As I say, I have some sympathy for it. Were we starting with an empty book, I would be much more willing to take on board what he has said, but because we already have law relating to incitement in similar circumstances it could cause a lot of problems if we started to cast a particular aspect of the law in completely different terms to the way in which similar offences are cast.
So, while I have some sympathy with new clause 49, that is my basic difficulty in being able to accept it. I am sure that the hon. Gentleman will understand my point. It is really for that reason that I am not able to take on board new clause 49 completely. Many of the offences that he sets out and that he spoke to with clarity earlier this morning are already on the statute book in other places and, as I have said, we are not starting with a blank statute book. That is my point.
Mr. David Burrowes (Enfield, Southgate) (Con): Does the Minister have some sympathy with our seeking to have an alternative language and framing of the law, particularly given the public order legislation? When that goes down to the officer on the beat, they see a range of offences from subsection (5) onwards and, as far as they are concerned, they see them in the language of perception, of how people perceive an offence to have affected them. That causes concerns about the application of the law.
Maria Eagle: I do have some sympathy with new clause 49; it touches upon the increasing complexity of the criminal law across a range of areas, and the fact that we have a common law and statute combined in a way that means that we must give some thought as to how similar offences and previous offences are cast. So I have some sympathy, but I think that the way forward that the Government have set out is the most practical way forward. I am not saying that I do not have sympathy for the way in which the hon. Gentleman is pleading for clarity; I have tried to provide that clarity in a slightly different way.
1.30 pm
Maria Eagle: I do not agree. The Committee has made common cause on the importance of freedom of speech, which nobody wants to impinge on more than is necessary. I think that I have tried to be extremely clear on where the offences would bite. I would have understood many of the hon. Gentleman’s points better if, like others, he had made them before the Government amendments, new clause and schedule had been selected. The offence has been pitched at the highest level by referring to the use of threatening words and behaviour intended to incite hatred.
I have discussed that matter in detail with many organisations on all sides of the argument since we made it clear that we would go down this path. The way in which the Government have cast the offence has been widely welcomed and has reassured many of those concerned. The briefing to the Committee from the department for Christian Responsibility and Citizenship, the Catholic Bishops’ Conference of England and Wales and the Church of England’s mission and public affairs division stated:
“We welcome the narrow focus of the amendment on the use of threatening words or behaviour which are used with the intention of stirring up hatred. This goes a considerable way towards meeting our concerns”.
That has also been my experience in talking to those in the theatrical profession who have also expressed concerns. We think, therefore, that the offence is pitched correctly and that it will provide the necessary reassurance.
Some of the more lurid examples used by the hon. Member for Kettering would clearly fall outside the ambit of the legislation. He spoke as though abusive and threatening words and behaviour would be caught—that sounds more like elements of the race hate offence. Were the amendment worded in that way, I would have much more sympathy with some of his concerns. However, such matters will not be caught, and he should not suggest that they are.
The hon. Gentleman referred to the Attorney-General, who was reported in The Times, on 26 November, as being “set to scupper plans to make gay hate a crime”—that is what the headline said. That proves that we cannot believe everything that we read in the newspapers, given that the Government amendments, which have to be cleared across Government, were tabled on 14 November. Clearly, the Attorney-General is perfectly happy with the amendments and the offence as it has been cast.
Mr. Hollobone: The Minister was kind enough to mention the submission from the Catholic and Anglican Churches, but surprisingly she did not go on to mention their subsequent submission, in which they say that they believe that it would be helpful for the Committee to explore safeguards along the lines of those in section 29J of the Public Order Act 1986. They go on to suggest a possible wording. The Minister’s explanation to the Committee is correct, but she did not indicate the Churches’ further concerns. They strongly believe that provisions such as those in section 29J of the 1986 Act should be included in the Bill.
Maria Eagle: We do not believe that that would be helpful. The offence has been pitched at the highest level. That is the appropriate way of proceeding. On that basis, I would oppose amendments (a) and (b), and new clause 49, and commend to the Committee the Government amendments, new clause and new schedule.
Amendment agreed to.
The Minister of State, Ministry of Justice (Mr. David Hanson): I beg to move amendment No. 238, in schedule 21, page 223, line 32, at end insert—
‘(5) Sub-paragraph (4) extends to England and Wales and Northern Ireland only.’.
The Chairman: With this it will be convenient to discuss the following:
Government amendments Nos. 217, 219, 220, 375 and 223
Government new clause 85—Amendments to armed forces legislation.
Government new schedule 11—‘Amendments to armed forces legislation.
Mr. Hanson: I do not believe that I need to detain the Committee for long. The amendments all make minor and technical changes to the extent and commencement provisions in the Bill.
Amendment agreed to.
Amendments made: No. 239, in schedule 21, page 224, line 4, at end insert—
‘(4) After paragraph (k) insert—
“(l) the provision of support for children and young persons who are subject to a violent offender order or an interim violent offender order (within the meaning of Part 8 of the Criminal Justice and Immigration Act 2008).”’.
No. 372, in schedule 21, page 224, line 4, at end insert—
‘Youth Justice and Criminal Evidence Act 1999 (c. 23)
8A The Youth Justice and Criminal Evidence Act 1999 has effect subject to the following amendments.
8B (1) Section 35 (child complainants and other child witnesses) is amended as follows.
(2) In subsection (3) (offences to which section applies), in paragraph (a)—
(a) before sub-paragraph (v) insert—
“(iva) any of sections 33 to 36 of the Sexual Offences Act 1956,”; and
(b) in sub-paragraph (vi), at end insert “or any relevant superseded enactment”.
(3) After that subsection insert—
“(3A) In subsection (3)(a)(vi) “relevant superseded enactment” means—
(a) any of sections 1 to 32 of the Sexual Offences Act 1956;
(b) the Indecency with Children Act 1960;
(c) the Sexual Offences Act 1967;
(d) section 54 of the Criminal Law Act 1977.”
8C (1) Section 62 (meaning of “sexual offence” and other references to offences) is amended as follows.
(2) In subsection (1) at end insert “or any relevant superseded offence”.
(3) After that subsection insert—
“(1A) In subsection (1) “relevant superseded offence” means—
(a) rape or burglary with intent to rape;
(b) an offence under any of sections 2 to 12 and 14 to 17 of the Sexual Offences Act 1956 (unlawful intercourse, indecent assault, forcible abduction etc.);
(c) an offence under section 128 of the Mental Health Act 1959 (unlawful intercourse with person receiving treatment for mental disorder by member of hospital staff etc.);
(d) an offence under section 1 of the Indecency with Children Act 1960 (indecent conduct towards child under 14);
(e) an offence under section 54 of the Criminal Law Act 1977 (incitement of child under 16 to commit incest).”
8D The amendments made by paragraphs 8A to 8C are deemed to have had effect as from 1 May 2004.
8E Where an order under section 61 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (application of Part 2 of Act to service courts) makes provision as regards the application of any provision of section 35 or 62 of that Act which is amended or inserted by paragraph 8B or 8C, the order may have effect in relation to times before the making of the order.’.
No. 55, in schedule 21, page 224, leave out line 6 and insert—
‘8A The Powers of Criminal Courts (Sentencing) Act 2000 has effect subject to the following amendments.
9 In section 19(4)’.
No. 56, in schedule 21, page 224, line 10, at end insert—
‘9A In section 92 (detention under sections 90 and 91: place of detention etc.) omit subsection (3).’.
No. 179, in schedule 21, page 224, line 10, at end insert—
‘9B In section 116 (power to order return to prison where offence committed during original sentence), in subsection (7), for “section 84 above” substitute “section 265 of the Criminal Justice Act 2003 (restriction on consecutive sentences for released prisoners)”.’.
No. 240, in schedule 21, page 224, leave out lines 18 to 21.
No. 241, in schedule 21, page 224, line 23, leave out paragraph 12 and insert—
‘12 The Sexual Offences Act 2003 has effect subject to the following amendments.
12A (1) In section 133(1) (interpretation), in paragraph (a) of the definition of “cautioned”, for “by a police officer” substitute “(or, in Northern Ireland, cautioned by a police officer)”.
(2) This paragraph extends to England and Wales and Northern Ireland only.’.
No. 242, in schedule 21, page 224, line 27, at end insert—
‘12B (1) In section 138 (orders and regulations), at the end insert—
“(4) Orders or regulations made by the Secretary of State under this Act may—
(a) make different provision for different purposes;
(b) include supplementary, incidental, consequential, transitional, transitory or saving provisions.”
(2) The amendment made by sub-paragraph (1), and the repeals in Part 3 of Schedule 23 of sections 86(4) and 87(6) of the Sexual Offences Act 2003 (which are consequential on that amendment), extend to England and Wales and Northern Ireland only.’.
No. 243, in schedule 21, page 224, line 27, at end insert—
‘12C (1) Schedule 3 (sexual offences in respect of which offender becomes subject to notification requirements) is amended as follows.-
(2) After paragraph 35 insert—
“35A An offence under section 64 of the Criminal Justice and Immigration Act 2008 (possession of extreme pornographic images) if the offender—
(a) was 18 or over, and
(b) is sentenced in respect of the offence to imprisonment for a term of at least 2 years.”
(3) After paragraph 92 insert—
“92A An offence under section 64 of the Criminal Justice and Immigration Act 2008 (possession of extreme pornographic images) if the offender—
(a) was 18 or over, and
(b) is sentenced in respect of the offence to imprisonment for a term of at least 2 years.”
(4) In paragraphs 93(1) and 93A(1) (service offences) for “35” substitute “35A”.
(5) This paragraph extends to England and Wales and Northern Ireland only.’.
No. 205, in schedule 21, page 225, line 12, at end insert—
‘16A In sections 88(3), 89(9) and 91(5) (days to be disregarded in calculating certain time periods relating to bail and custody under Part 10), before paragraph (a) insert—
“(za) Saturday,”’.—[ Mr. Hanson.]
The Parliamentary Under-Secretary of State for the Home Department (Mr. Vernon Coaker): I beg to move amendment No. 244, in schedule 21, page 225, line 12, at end insert—
‘16B (1) Section 325 (arrangements for assessing etc risks posed by certain offenders) is amended as follows.
(2) In subsection (8), for “section 326” substitute “sections 326 and 327A”.
(3) After that subsection insert—
“(8A) Responsible authorities must have regard to any guidance issued under subsection (8) in discharging those functions.”
16C In section 326(5)(a) (review of arrangements), for “and this section” substitute “, this section and section 327A”.’.
The Chairman: With this it will be convenient to discuss the following:
Government new clause 38—Disclosure of information about convictions etc of child sex offenders to members of the public—
and the following amendments thereto: (a), in subsection (2), leave out from ‘(3)’ to ‘disclose’ and insert ‘the responsible authority may’.
(c), in subsection (3)(a), leave out from ‘risk’ to end and insert
‘of serious harm to any identified person or persons, particularly a child or children’.
(d), in subsection (3)(a), after ‘causing’, insert ‘serious’.
(e), in subsection (3)(b), after ‘from’, insert ‘serious’.
(f), in subsection (3)(b), at end insert ‘, and
(c) the disclosure of information would be in the best interests of promoting public safety.’.
(b), in subsection (4), leave out ‘presumption under subsection (2)’ and insert ‘consideration under subsection (1)’.
(g), in subsection (4)(b), at end insert—
‘(4A) Nothing in subsection (4) above shall grant members of the public a right to request a disclosure from the responsible authority.’.
Government new clause 39—Sexual offences prevention orders: relevant sexual offence.
Government new schedule 4—‘Section 327A of the Criminal Justice Act 2003: meaning of “child sex offence”
Mr. Coaker: We come now to an interesting part of the Bill and our deliberations. We valued very much the huge range of contributions that we had during the review of the protection of children from sex offenders, which, as hon. Members will know, the Government published in June. It was an extremely good process, involving a wide range of stakeholders. Given the huge differences in opinion on the issue, I think that a reasonable compromise has been reached.
The review rejected the idea of a Megan’s law, but concluded that greater use of controlled disclosure was necessary to enhance the protection of children. Under existing guidance, police in England and Wales already disclose information about registered sex offenders in a controlled way. The guidance states that consideration must be given in each case to whether information about an offender should be disclosed to others to protect victims, potential victims, staff and others in the community. That applies to all categories and levels of multi-agency public protection arrangements cases.
The review found that the extent to which information is disclosed varied from area to area. We believe that greater use should be made of controlled disclosure, and that the process needs to be formalised and auditable, with clear guidance to ensure that it is consistent and accountable, as part of the MAPPA process.
New clause 38 builds on the existing duty to co-operate placed on all MAPPA-responsible authorities, which is included in the Criminal Justice Act 2003. It will ensure that MAPPA authorities are under a specific duty to consider the disclosure of a child sex offender’s convictions to members of the public. There will be a presumption that convictions will be disclosed, if a child is at risk of suffering harm through the offender’s committing another child sex offence, and the disclosure is necessary to protect the child. So for example disclosures may be made to employers, girlfriends, friends or family members, or individuals in organisations where children may be assessed, who are able to protect a child who is at risk.
The list of offences, convictions or cautions that could be the subject of disclosure is included in new schedule 4, which will become schedule 34A to the Criminal Justice Act 2003. It includes sexual offences that can be committed only against children, such as sexual activity with a child, and other sexual offences that are not specifically child sex offences, such as sexual assaults, in cases in which the victim was under 18. The duty will be relevant to any offender managed by a MAPPA authority who has been convicted of one of the offences against a child. However, the disclosure may include all previous convictions for a child sex offence, not just those that have led to the offender being managed by a MAPPA authority. It will also include spent convictions, and we are amending the Rehabilitation of Offenders Act 1974.
The duty placed on MAPPA authorities will be to consider disclosure, not necessarily to disclose. That is an important point. Although there will be a presumption that information will be disclosed if a child sex offender managed by MAPPA authorities poses a risk of harm to any child or children generally, there will not be an absolute duty to do so. That will allow the MAPPA authorities discretion to deal with each case.
Amendments (a) and (b) to new clause 38, tabled by the hon. Member for Somerton and Frome, would remove that presumption and place the MAPPA authorities under a duty to consider disclosure, which they are already entitled to do. Although that would ensure that all MAPPA authorities considered disclosure, it would not provide a steer to them on whether they should disclose. Furthermore, a presumption in the cases identified in the new schedule must surely be justified in the interest of public protection.
The Government’s view—I know that it is the view of everyone in the Committee and that the debate is about how we achieve it—is that the public will presume that, in cases where a risk of harm has been identified and disclosure would prevent that risk, an authority with the remit to do so would make that disclosure. That is certainly the Government’s position, as outlined in the review and reflected in the new clause.
The amendments to new clause 38 would also limit the duty to consider disclosure to cases in which the offender poses a risk to an identified child or children and such disclosure is necessary to protect the child or children from harm. Our view is that a MAPPA authority will at least need to consider disclosure in all cases, in order to identify the cases in which it is necessary. I say to the hon. Members for Somerton and Frome and for Cambridge that we shall consider on Report the inclusion of the word “serious”, as suggested in their amendments (c), (d) and (e), although we cannot accept the other changes that they suggest. I hope that the inclusion of that word will make a significant difference. I take the point that we need to consider the best way of making that change, and I do not want to get into whether amendments are flawed, but we accept the principle on the word “serious”.
I spoke about the concerns this morning to Dame Mary Marsh, the chief executive of the National Society for the Prevention of Cruelty to Children, and told her that, in response to the amendments, we will consider what we can do about using the term “serious harm”. It is an important point; it came out in the review, and on Report we shall look to put the word in. Although I am not able to give any comfort to the hon. Gentlemen on their other points, I hope that I have shown that Ministers listen and, when good points are made, try to include them in a Bill so that it is improved.
The other amendments to the new clause, which we cannot accept, would broaden the scope of the presumption to disclose to situations in which adults are at risk. The focus of the provisions is primarily the protection of children, which was identified as necessary in the review of the protection of children from sex offenders. MAPPA authorities are not prohibited from disclosing in other cases, but we want the duty to focus on cases involving children. The word “identified”, which is in amendment (c), would limit the duty to consider disclosure to identifiable individuals. There may be cases in which a risk to a group of children is identified—at a leisure centre, for example—but it is not possibly to identify precisely every individual child who may be at risk. We want to be able to protect all children who attend such a leisure centre and might be at risk, even if we cannot specifically identify a particular individual. That is why we have a problem with that part of amendment (c).
1.45 pm
Amendment (f) would add to the requirements necessary for the presumption to disclose to apply, by requiring that disclosure be in the best interests of promoting public safety. Our view is that it is unnecessary. Its apparent purpose is to ensure that a balanced risk assessment is made prior to disclosure. However, to comply with the Human Rights Act 1998, the MAPPA authority will already have to undertake such an assessment and conclude that the disclosure is both proportionate and necessary in the interests of public safety or, just as importantly, for the prevention of crime.
Amendment (g) appears to be intended to dissuade members of the public from making requests for information from their local police forces. Members of the public cannot be prevented from requesting disclosure, but they do not have the automatic right to such information. We do not anticipate that the duty to consider disclosure will automatically lead to a huge rise in the number of public requests. When a request is made, however, any decision to disclose will be subject to the relevant processes and safeguards. To whom the information is disclosed will be determined by the nature of the risk and whether disclosing information to a particular individual or organisation is necessary. MAPPA authorities will be able to impose conditions on the recipient of the information, limiting its further disclosure to other parties.
Whatever decision is taken, to disclose or not, the responsible MAPPA authorities will be required to record the reasons for it. We stated explicitly in the review of the protection of children from sex offenders that the new duty would include the presumption outlined in the Government amendment, to ensure the greater but more consistent use of controlled disclosure. As I have said, the review was conducted in consultation with stakeholders, from whom there was broad support for its outcomes.
The overall effect of the amendments tabled by the hon. Members for Somerton and Frome and for Cambridge would be to lessen the direction given to MAPPA authorities—I know that that is partly the intention—and hinder attempts to ensure greater consistency in the use of controlled disclosure. To ensure that MAPPA authorities are given further direction and to guard against inappropriate disclosure, the responsible authority will be required to follow any guidance issued by the Secretary of State on the duty to consider disclosure. Amendment No. 244 will amend the Criminal Justice Act 2003 to allow such guidance to be issued and to require the MAPPA authorities to have regard to it. They will also have to report on their disclosure functions in their annual reports.
I am taking my time and going through the amendments methodically, because it is important to outline their details. A lot of people will read the debates on the matter, so I apologise; I would normally be a bit more spontaneous—I hope. It is important to reiterate that controlled disclosure already exists. MAPPA authorities can and do disclose information if the circumstances warrant it. Amendment No. 244 will not prohibit the disclosure of other information not covered by the duty to consider disclosure, but it will ensure that disclosure happens more consistently and with greater accountability in the most critical cases involving the protection of children from sexual abuse. I know that we all share that aim.
I turn to new clause 39. The Sexual Offences Act 2003 introduced sexual offences prevention orders. They are used to impose prohibitions on violent offenders or sex offenders who pose a risk of serious sexual harm, for example by preventing an offender from loitering outside playgrounds. A sexual offences prevention order also makes the offender subject to the notification requirements of the Sexual Offences Act. The orders have proved an effective and well used method of managing the risks posed by sex offenders. However, we have identified a potential anomaly that allows offenders convicted of certain violent offences to be made subject to a sexual offences prevention order in a wider range of circumstances than offenders convicted of sexual offences. New clause 39 will widen the circumstances in which those in the latter category can be made subject to an order.
Currently, a sexual offences prevention order can be made against anyone convicted of, or cautioned for, an offence listed in either schedule 3 or schedule 5 to the 2003 Act. Schedule 3 lists sexual offences. Schedule 5 lists violent offences, which although not inherently sexual, could indicate a risk of sexual harm. However, schedule 3 is also used to determine whether an offender is subject to the notification requirements, commonly known as the sex offenders register. Consequently some of the offences listed in the schedule contain thresholds for the sentence length, type and the age of the offender and victim that must be met before an offender becomes eligible for the notification requirements.
These thresholds also apply to eligibility for a sexual offences prevention order, which means that if these criteria are not met, there is no discretion for a court to make an offender subject to an order, even if the offender poses a risk of sexual harm. By contrast, where someone has been convicted of one of the violent offences in schedule 5, no such thresholds exist and the court has discretion to make the individual subject to an order, regardless of any age or sentence criteria. Under new clause 39 thresholds in schedule 3 will be disregarded for the purposes of making an order. That will provide courts with the same discretion to make sexual offences prevention orders for those convicted of sexual offences as they currently have for those convicted of violent offences. That will help the police to restrict the offending behaviour of offenders in certain cases.
I apologise to the Committee for what was a fairly long introduction to this series of amendments, but given their importance, I wanted to read much of that into the record so that people would have clarity about what the Government are proposing. I look forward to the debate, as I know that we all share the aim of protecting our children from sex offenders.
The Chairman: It would be appropriate to call the hon. Member for Somerton and Frome first, because he has amendments that have been selected.
Mr. Heath: I am most grateful, Sir Nicholas. This is a very important debate within the context of this Bill and we need to take due care here. I very much appreciate the way that the Minister approached the subject and made the point that had to be made: if we disagree about the means it does not mean to say that we disagree about the end, which is the proper protection of children in our society from sexual offenders. He knows, because this has been a matter of enormous controversy over the years, the genuine reservations that not only observers but practitioners in this area have about the widespread disclosure of information on sexual offenders. They are concerned about the consequences for the management of those offenders in society and the ability to keep proper tabs on their activities and the consequences for the children who should be the focus of our attention.
The view from the Home Office over many years was to reject calls for anything that could be described as Megan’s law or Sarah’s law, on the grounds that it would make matters worse. There has been vocal support in some parts of the popular press, and indeed popular support, for such a law, because unless one thinks it through it seems an obvious move to let everyone know where a sexual offender lives and that they are in a particular community, so that everybody can take proper care. We cannot begin to address the issues properly until we think through what the consequences are in terms of the ability to manage someone on the sexual offences register and to ensure that they do not renege on the commitments that they give as part of their management regime and disappear, posing a much greater risk to children in other areas.
As I said, the Home Office rejected those calls for a long time. Then, for reasons that I do not entirely understand, there was a change of view. The view was that they should send a Minister over to America, and perhaps there is merit in Megan’s law after all. The Minister did his study tour of America and looked at the experience there. When he came back, the view was still that we do not want this measure.
The empirical evidence in America is very clear that this measure does not improve the protection of children from sexual offenders. Off the record, some of the best-known practitioners in the police forces of the United States who have worked within this legal construct and outside it say that we do it better. We do it better with MAPPA and the sexual offenders register. Far from making it easier for the police to do their work, this law makes it considerably more difficult. That is quite apart from the corrosive effect that the disclosure can have on the individual. Some people would say that they deserve it, because they have committed some of the most serious crimes that society can imagine, but if it causes further social disengagement, it perhaps encourages exactly the sort of crime that we want to discourage.
I am a little surprised that at the end of that process of careful consideration, the outcome was to bring the measure back to the Committee. I say from the outset that the measure before us is the least bad option: there were options that I would have been more strongly resistant to. This suggests to me that the Home Office feels constrained to do something by a decision taken by a previous proprietor. However, having taken everything into account, it wants to do the minimum that is consistent with the commitments that were made. I may be wrong, and I may be misinterpreting the position, but it feels strongly as if this is the bare minimum that the Home Office feels it can do to be consistent with previous policy, while not changing the arrangements too much. I understand that.
I respect the fact that the Minister is trying do the best job that he can on the policy area with which he is dealing. However, I still do not agree, because I think that the good practice that he described is being done already. Those for whom there is a real risk are notified under the present arrangements. That is done discreetly, quietly and is not splashed all over the tabloids or the local newspapers. It is absolutely right that they are told and that proper precautions are in place.
I sometimes criticise the resourcing that is available to MAPPA, because I am always fearful that we expect an awful lot from people in this very difficult area and do not always provide the resources that they need to do it properly. Nevertheless, my general view is that they fulfil their duties conscientiously, carefully, and with considerable success.
Ms Sally Keeble (Northampton, North) (Lab): I apologise that I was not here for the earlier part of the debate, Sir Nicholas.
Does the hon. Gentleman accept that where agencies engage in such good practice, they are left hung out to dry if something goes wrong? That has been a real issue in my constituency. They have no legal protection at all. If there is any criticism of what happens or there is a climate of fear because of what is going on in the tabloid newspapers, they clamp down and do not persist with good practice and things move backwards.
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Mr. Heath: I am grateful to the hon. Lady because I do recognise that issue. One of my concerns about the proposals is that they make that situation worse, by the word “presumption”. If authorities are no longer to have discretion, it will be expected because of the word “presumption” that they will release the information except where they judge that it is not in the child’s interests to do so.
What will happen when it goes wrong? If the authorities take the view that they should not release information to a family or institution and an incident happens, the media will crawl all over them saying, “The presumption was that you should have released the information, and you didn’t. How could you possibly have come to the conclusion that X, a known sex offender, should be on the loose in our community and not tell the local primary school or swimming pool, or the woman who lives two doors away?” With a presumption in favour of providing such information, it will be almost impossible for the responsible authorities to answer that question.
Mr. Coaker: I understand the hon. Gentleman’s point, but is it not true that that type of situation arises under existing arrangements as well?
Mr. Heath: Yes—I think that the hon. Member for Northampton, North made that point—but the measures will make it worse. They will change it from an entirely rational view taken by the authorities, on the basis of all the information at their disposal about whether to notify, to a presumption in favour of notifying and releasing information. That will raise expectations that cannot possibly be satisfied if the authorities are to do their job. It also raises the issue of liability. Where there is a legal presumption in favour of releasing information, the information is not given and an incident occurs, will there be a liability on the public authority for not having done what was presumed in the Bill?
While I am dealing with such issues, there is a further complication. If an individual is notified, they are required to keep it confidential. How on earth can Mrs. X be notified confidentially that her children are at risk from an offender? If she sees that the children of Mrs. Y, her good friend and near neighbour, are being befriended by that individual, do we really expect Mrs. X not to tell Mrs. Y the information that she has been given—that that person is a registered sex offender? Will that offender constitute a risk to Mrs. X’s children but not to the other children? It is not realistic to expect that that confidentiality can be respected, and I venture a guess that in certain circumstances it will not be. What will be the consequence?
To return to my amendments, the Minister, absolutely rightly, saw through some of them, quickly identifying that their purpose was to remove the presumption. That is exactly what they seek to do—to change the terms of his amendment to respect the current practice of MAPPA authorities. However, amendments (a) and (b) would move a little in his direction if they were passed. They would require every MAPPA authority, when making such assessments, to consider whether to release the information. They would leave intact the discretion but maintain the principle, which I think he was espousing, that consideration should be made in every case.
Mr. Coaker: What I struggled with was the difference between what the amendments propose and the situation now.
Mr. Heath: The Minister can struggle on, because I am trying to preserve best practice, which I believe we have, rather than introducing a distortion of that practice, which I believe is what the Minister intends. I hope that we can have a friendly discussion about it, however, because that presumption worries me.
I accept the Minister’s argument in the case of
“serious harm to any identified person or persons”.
I can conceive of circumstances in which children cannot be identified individually but in which they could be identified by being found in a particular situation. I shall not pursue that argument, although it still exists.
As for amendments (d) and (e), which would insert the word “serious”, I am grateful to the Minister for saying that he will consider the matter on Report. However, unless he is going to spell the word differently, why not accept the amendments now rather than taking time on Report, when time is always limited, so that the amendments can be in his name rather than mine? However, we get used to these strange things in Committee; we have to accept that the machismo of Government requires that they write in the word “serious” rather than me.
Mr. Coaker: I will ensure that the hon. Gentleman receives the credit, even if I move the amendment.
The Chairman: The Committee is grateful.
Mr. Heath: Aren’t we all grateful, Sir Nicholas?
Amendment (f) would insert the words:
“the disclosure of information would be in the best interests of promoting public safety”.
I think I heard the Minister say that such a provision is implicit in the Bill, in which case the amendment is less necessary.
I hope that the Minister will consider amendment (g) a little more, and the implication that the clause gives people a right to demand the information. He may underestimate the response of the general public, especially when they are reminded or encouraged—or whatever the appropriate verb is—by the tabloid press to take a positive interest; he may find it much more difficult to resist a request for information than he supposes.
I went through this some years ago, when Mr. Sidney Cooke—some Members will remember him—was on my patch, and it was not a happy experience. It took a lot of clear thinking and much determination, by the authorities and by elected Members, to resist the view that we should throw him to the wolves and advise everyone in which of our police stations he was resident. It was a difficult situation. I ask the Committee not to underestimate the fact that it can cause enormous upset in communities. Strong representations—I put it politely—will be made if people suspect that there is a sexual offender in the area.
I have spoken extensively on this group of amendments, because it is an important issue. Other innovative practices are in place at the moment, quite apart from the MAPPA proposals. Some members of the Committee may be aware of the Circle of Friends initiative; it is enormously valuable. I have spoken to people who give up their time to befriend others and to provide that sort of service. Some are Quakers, members of the Society of Friends, which is active in my constituency, but it is not exclusively a matter for them. I cannot sufficiently express my admiration for those who are prepared to undertake such difficult work in order to reduce reoffending by individuals for whom they have little personal sympathy. They try hard to act as mentors, as befrienders—as people to whom others can turn whenever they are tempted to reoffend. I do not want that to be disrupted and fear that the proposals, well intentioned as they might be, will undermine not only our formal protection procedures, but initiatives such as those I have described. For those reasons, I think that my amendments would improve the clause in the main. I am still not persuaded that the clause will advance the present situation—it may be a serious regression.
Mr. Garnier: Having heard the remarks of the hon. Member for Somerton and Frome, I think that I will be considerably shorter than I had originally intended. It is important that we think carefully about this issue, as I am sure the Government have done over the past eight years or so.
We all remember in September 2000, the then Home Secretary announcing what was called
“a package of measures intended to strengthen the protection of children and provide better information to the public on the management of sexual and violent offenders in the community.”
In the course of that press release, he was quoted as saying:
“These proposals have come about after close consultation with the police and probation services.”
Again, we have had further mention of close consultation from the Minister. The Home Secretary continued:
“As part of this, I have considered very closely the question whether there could be some form of controlled access to the Sex Offenders’ Register. But in practice controlling such access would be impossible to enforce. The arguments against a general right of access are well rehearsed. Such an arrangement would not in our judgement assist the protection of children or public safety.
Controlled disclosure is I believe the better and safer route. Therefore I have concluded that the professional agencies—the police and probation services—are best placed to determine the disclosure of information on individual sex offenders.
But I do believe that the public should have a right to know what measures the police and probation services have in place to protect the public. The guidance which I will issue will also include the question of disclosure of information to groups or individuals and will help to develop a consistent approach. The introduction of the Criminal Records Bureau will enable better information to be provided.”
I will not go into a long rant on the Government’s failure to follow the Bichard inquiry’s recommendations on the need to set up a more effective national police computer system. I will pray in aid MAPPA, as the hon. Gentleman has done. Although those arrangements have had a few hiccups, by and large they have worked pretty well—the failure rate is under 3 per cent. There will always be cases where the probation services or the police do not manage to keep an eye on a particularly ill-motivated person and a terrible crime is committed.
I know that the Government are in trouble over pretty well anything to do with IT. Problems over CNOMIS, which have been mentioned in the Committee before, and problems over VISOR, which is the violent and sex offender register IT system, are also becoming increasingly apparent. Huge sums of money are spent to make those systems work. Sometimes they do and sometimes they do not. Essentially, machinery is in place to ensure that children are protected from attacks or interference by sex offenders, as best as can be humanly arranged.
Since the Home Secretary made that announcement in 2000, various tabloid newspapers have become interested in such cases, no doubt for genuine reasons, but also for reasons of circulation and competition. They make good reading and sell newspapers. When a tabloid newspaper gets hold of an idea, Governments become frightened and lose their judgment. They do things that they might not do under cooler circumstances. I suspect that in this case, the Government feel that they have been forced into at least doing something, rather than doing everything that the various tabloid newspapers, which have run with these campaigns, want them to do. We all understand the difficulties of being in government, just as we understand that politics is not always a rational exercise of mental thought.
2.15 pm
I want to look at new clause 38. In case one starts feeling sorry for the Minister having to read rather than be spontaneous—I think perhaps that he meant extemporary rather than spontaneous—I hope that he was not being spontaneous, because then we are in even more trouble than I thought that we were. It is difficult to think that the Government are anything other than spontaneous, if one considers that since the Bill was first published, they have come forward with 85 Government new clauses. That has nothing to do with an interfering Opposition thinking up tedious points and moving commas around, these are 85 Government new clauses, and that is without adding up the number of amendments and new schedules. No doubt they are designed to improve the Bill. However, whether the Minister was being spontaneous, speaking extemporarily or reading verbatim things he had thought about earlier in his office, I am not sure that new clause 38 is the best way to improve the protection of children from child sex offenders.
What factors will weigh in the minds of those who have to do the considering, as referred to in subsection (1) of proposed new section 327A to the Criminal Justice Act 2003? What will be considered when deciding whether to disclose some information about the relevant previous convictions of a child sex offender to a member of the public? Are the considerations that would apply to member of the public A, different from those applying to member of public B? Would different considerations apply in relation to an institution such as a children’s home, or a facility open to the public, as exemplified by the hon. Gentleman—well, perhaps not exemplified—
Mr. Coaker: The hon. Gentleman should get his words right after he took the Mick out of me—
Mr. Garnier: I always obey the deputy headmaster, but I was about to suggest that the hon. Member for Somerton and Frome exemplified a swimming pool. That is not what I meant, and certainly not what I intended. I think that the deputy headmaster, the Under-Secretary, knows precisely what I mean, and so does everybody else. I will move on.
Maria Eagle: Let us not start speculating.
Mr. Garnier: Before I become confused, I will move on rapidly. There are equal concerns with regard to subsection (3)(b) of proposed new section 327A to the Criminal Justice Act 2003. That states:
“The case is where the responsible authority for the area has reasonable cause to believe that...
(b) the disclosure of information about the relevant previous convictions of the offender to the particular member of the public is necessary for the purpose of protecting children generally or any child from harm caused by the offender.”
—or “serious harm”, as we now think it will be.
There is the same relationship with regard to subsections (4) and (5). What do the Government expect the person to whom the information is disclosed to do with it? What do they expect the mother or grandmother of a child, or the carer of a group of children, to do when given information that in the next door flat or near to where they are, lives somebody with previous convictions for child sex offences? Are they expected to keep that information to themselves and say, “I’m glad I’ve been told that.” Are they expected to do something positive with the information such as move house, change schools, or not go to a particular swimming pool? Should they inform others? Clearly, they are not intended to inform others as that would be a breach of the disclosure arrangements. There needs to be some clearer thinking about what is proposed to be done by the person who receives the information. There will be breaches and people will probably contact the tabloid newspapers and say, “Guess what? I have been told that such and such a person lives four doors down the road,” or someone will have a conversation with a neighbour and so the rumour mill will grow.
No doubt the inaccuracy of the information will become greater as the story gets further and further from the original source and we will come to the extraordinary and utterly unpleasant situation that occurred in a housing estate in Portsmouth not so long ago, when a paediatrician’s property was attacked because the attackers did not know the difference between a doctor who looks after children and a child sex pervert who does anything but look after children. Although those are rather fanciful extensions of the position against which the Government seek to protect us all, it is amazing how often the most exaggerated examples prove eventually to come to fruition.
Mr. Heath: It is not clear what the sanction is for anyone who is given a disclosure subject to a condition that prevents them from disclosing the information to any other person. If it is a criminal sanction, can the hon. and learned Gentleman imagine any jury finding a person who has passed on information about a convicted sex offender to another parent guilty of any conceivable offence?
Mr. Garnier: I may have been careless but I am not sure I can see what the sanction is in the new clause, which would bite in the event of impermissible disclosure of information. There are references to the impermissible disclosure of information in other parts of the Bill, so perhaps we are supposed to guess how it fits. It might be a matter of summary events or lead simply to civil liability. It is bolting the stable door after the horse has left the premises to rush round getting an injunction, because that will have gone. It may be that one can do all sorts of things but we should be told what the Government have in mind and remind ourselves what the Secretary of State for Justice and Lord Chancellor said in 2000 about the confidentiality of the information, which will be extremely difficult to enforce.
The late Lord Donaldson, Master of the Rolls, when dealing with a case on the disclosure of confidential information said that publishing confidential information was rather like putting a block of ice in the sun, because once it is in the sun it melts and its value as confidential information goes. I do not know whether his tongue was in his cheek or whether he did not know how funny he was being.
We need to be careful about the consequences of the new clause. I think it is tabloid-driven and politically driven; I regret that the protection measures that have been in place since MAPPA and the creation of the sex offenders register although not perfect need to be further extended by this proposal and I urge the Committee to be extremely sceptical, to the point of rejecting new clause 38.
The hon. Gentleman quite properly said that the new clause could well raise expectations. We do not need to go into the detail of the arguments but it presents legal liability problems. I believe that the mother of one of the victims of the Yorkshire Ripper brought a case against West Yorkshire police for failing to protect her daughter from the activities of the Yorkshire Ripper—I think that the case was called Taylor, but the hon. Gentleman will tell me.
David Howarth (Cambridge) (LD): The hon. Gentleman should bear it in mind that that case was lost by the plaintive, and that it is difficult to obtain civil liability against the authorities in such circumstances, but the point that he is making about the lack of clarity on the sanction in the new clause is important. The normal presumption would be that where no criminal penalty is put forward, and where the obligation is not on the state but on a private individual, civil liability is intended by Parliament. I think that it is incumbent on Ministers to say what they mean.
Mr. Garnier : I am partly grateful, and partly peeved by the hon. Gentleman. I am peeved because I was about to explain that Mrs. Taylor—if that is what her name was—was not able to establish liability against West Yorkshire police for failing to protect her daughter from the future attack by the Yorkshire Ripper. However, the second point that he made is a good one and I entirely agree with it.
Mr. Coaker: I am sorry that the hon. Gentleman seems to imply that he may vote against new clause 38, but if he refers to subsection (5) of the proposed new clause 327A to the Criminal Justice Act 2003, he will see that it states:
“Where the responsible authority makes a disclosure under this may impose conditions for preventing the member of the public concerned from disclosing the information to any other person.”
My understanding of that situation is that if the authority imposed such conditions and then the person did disclose the information, there would be the sanctions of liability that the hon. Gentleman has already mentioned, but also, if in disclosing that information there was then an assault or any other type of criminal activity, that would of course be subject to the criminal law.
Mr. Garnier: That is all after the event. Once the information is out, its value as confidential information has gone. I can understand that the mother of a child might want to be told if a sex offender lived next door to her, but we do not know what the conditions are and we do not know what the sanctions will be for breaking the conditions. If they are going to be criminal sanctions, they ought to be on the face of the Bill. If we are extending the criminal law, we should know how we are doing it.
In relation to civil liability, how far down the chain of causality does one go? If I tell my neighbour, my neighbour tells someone else and we move 20 or 30 people down the road, and that twentieth person then grievously assaults or kills the sex offender, how far back does the Government think that they are going to go in pinning liability on the disclosure of the confidential information? Often, these people are not going to have any money to pay damages; often what is needed is anticipatory relief, not ex post facto relief. I am grateful to the hon. Member for Cambridge, who has now reminded me that the mother of the victim of the Yorkshire ripper was called Mrs. Hill. As I was about to say and he did say, she was unable to pin civil liability on West Yorkshire police.
I have said quite enough. I said that my remarks were going to be short but they have been rather longer than even I had intended.
2.30 pm
Mr. Coaker: I shall not be spontaneous but extemporary. In many of the debates, including that on the provisions on homophobia and incitement to hatred of gay people, the standard has been very good, particularly the contribution of my hon. Friend the Under-Secretary. Opposition Members have raised some interesting points, but the legislation before us is not tabloid-driven. There is a real debate in all our communities and in all sections of the country about the best way to protect our children from paedophiles. I accept that we all wish to do that, and I do not suggest that anybody in the Committee—from whatever party—intends to make the country less safe for children. To suggest otherwise would be ludicrous and insulting. However, there is a real debate, which is driven not just by tabloid newspapers, but by ordinary people, unless hon. Members’ constituencies are different from mine.
Ordinary people are talking. I do not mean that in a disparaging sense. People who live in our communities, take their children to school and worry about these matters ask what the Government are doing to protect them from people whom they see as a threat to their children. The answer could be that the Government are doing everything possible, nothing further needs to be done and we just shrug our shoulders or it could be that the existing system is fine and there is no need to change the law. Frankly, we did not feel that either response was appropriate, but we knew that there were huge variations of opinion.
I was grateful to the hon. Member for Somerton and Frome for his appreciation of my point about the reasonableness with which we have tried to advance the issue. I hope that the Committee consider the measure a reasonable response to a very difficult problem. The Government think it necessary to move forward, but we want to do so proportionately, without allowing, as the hon. and learned Member for Harborough said, those appalling scenes in which people mistake paediatricians or others for paedophiles. That, however, does not alter the fact that a very real issue exists.
We have not taken the move lightly, and I take absolutely the point from the hon. Member for Somerton and Frome that we must be careful and proportionate about the way in which we move forward. If we go too far, there is a real risk that, instead of protecting children and alerting people to the dangerous paedophile who may be in their community, we just lose track of the paedophile and control of the situation, because they go underground. Equally, we have tried to address the support and help that we could give parents or head teachers and how to provide them with information to assist them in protecting children who are their responsibility.
Mr. Charles Walker (Broxbourne) (Con): Although I believe in rehabilitation, there is a question that we need to address about whether dangerous paedophiles should be returned to the community.
Mr. Coaker: Risk to the community is a very real issue. At present, however, we are discussing the MAPPA arrangements, which have been very successful in dealing with child sex offenders and other violent offenders. We are considering what extension to the powers of disclosure would be helpful.
This is not Megan’s law. It is controlled disclosure, not automatic disclosure. The hon. Member for Somerton and Frome mentioned presumption, but there is a presumption in the existing guidance available to MAPPA. The decision on whether to disclose to third parties must be considered in all MAPPA-managed cases, and all level 2 and 3 MAPPA meetings must consider disclosure, with the presumption that it will occur.
The Government are putting a duty on the relevant authorities to try to overcome some of the variations between different MAPPA authorities in different parts of the country. It is surely right to have that consistency, so that the performance of the best MAPPA authorities is replicated across the country, and our children get the level of protection that we all want.
The hon. Member for Somerton and Frome mentioned America. He knows that there is automatic disclosure there, and that is not what is being proposed. I mentioned earlier to the hon. and learned Member for Harborough the conditions that we can impose in response to subsection (5)(b). We believe that sanctions are available through both the civil and criminal routes if people break those conditions. When people ask how that will stop someone disclosing when they should not, they underestimate the deterrent effect that the law can have. If we say to people, “These are the conditions under which you are to be given the information, and if you break them you may well be subject either to a civil sanction or to the criminal law”, that would for many people operate as a deterrent.
Mr. Walker: On a slightly technical point, if someone who owned a home was told that their new near neighbour was a paedophile who posed a danger to children, and, having learned that information, decided to sell their home and move on, would they be obliged to tell the purchasers or would the authorities do so?
Mr. Coaker: Not necessarily, because it would depend on the purchasers’ circumstances. If the purchasers had young children, it would be for the MAPPA authorities to consider whether they should be told.
We have had a good debate. I have tried to assure the hon. Member for Somerton and Frome in particular on the inclusion of the word “serious”, to which we shall return on Report. Without making any commitment, I shall consider his concern in relation to people demanding disclosure from the MAPPA authorities, and ensure that that concern is covered. At present, however, my understanding is that we can control the position by means of guidance.
Amendment agreed to.
Amendments made: No. 180, in schedule 21, page 225, line 15, at end insert—
‘Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions) Order 2005 (S.I. 2005/950)
17A In paragraph 14 of Schedule 2 to the Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions) Order 2005 (saving from certain provisions of the Criminal Justice Act 2003 for sentences of imprisonment of less than 12 months), for “sections 244 to 268” substitute “sections 244 to 264 and 266 to 268”.’.
No. 245, in schedule 21, page 225, line 15, at end insert—
‘Terrorism Act 2006 (c. 11)
17A (1) Schedule 1 to the Terrorism Act 2006 (Convention offences) is amended as follows.
(2) In the cross-heading before paragraph 6 (offences involving nuclear material), after “material” add “or nuclear facilities”.
(3) In paragraph 6(1), after “section 1(1)” insert “(a) to (d)”.
(4) For paragraph 6(2) and (3) substitute—
“(2) An offence mentioned in section 1(1)(a) or (b) of that Act where the act making the person guilty of the offence (whether done in the United Kingdom or elsewhere)—
(a) is directed at a nuclear facility or interferes with the operation of such a facility, and
(b) causes death, injury or damage resulting from the emission of ionising radiation or the release of radioactive material.
(3) An offence under any of the following provisions of that Act—
(a) section 1B (offences relating to damage to environment);
(b) section 1C (offences of importing or exporting etc. nuclear material: extended jurisdiction);
(c) section 2 (offences involving preparatory acts and threats).
(4) Expressions used in this paragraph and that Act have the same meanings in this paragraph as in that Act.”
(5) After paragraph 6 insert—
“6A (1) Any of the following offences under the Customs and Excise Management Act 1979—
(a) an offence under section 50(2) or (3) (improper importation of goods) in connection with a prohibition or restriction relating to the importation of nuclear material;
(b) an offence under section 68(2) (exportation of prohibited or restricted goods) in connection with a prohibition or restriction relating to the exportation or shipment as stores of nuclear material;
(c) an offence under section 170(1) or (2) (fraudulent evasion of duty etc.) in connection with a prohibition or restriction relating to the importation, exportation or shipment as stores of nuclear material.
(2) In this paragraph “nuclear material” has the same meaning as in the Nuclear Material (Offences) Act 1983 (see section 6 of that Act).”’.
No. 246, in schedule 21, page 225, line 28, at end insert—
‘Armed Forces Act 2006 (c. 52)
19A In paragraph 12(ah) of Schedule 2 to the Armed Forces Act 2006 (offences)—
(a) for “and 18 to 23” substitute “, 18 to 23 and 29B to 29G”; and
(b) for “racial or religious hatred” substitute “hatred by reference to race etc”.’.—[Mr. Coaker.]
Schedule 21, as amended, agreed to.
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