 House of Commons |
Session 2007 - 08 Publications on the internet General Committee Debates Criminal Justice and Immigration Bill |
Criminal Justice and Immigration Bill |
The Committee consisted of the following Members:Alan
Sandall, Committee Clerk
†
attended the Committee
Public Bill CommitteeThursday 29 November 2007(Afternoon)[Sir Nicholas Winterton in the Chair]Criminal Justice and Immigration BillWritten evidence to be reported to the HouseCJ&I 405
Backlash
CJ&I 406 Ministry of
Justice
CJ&I 407 The Spanner
Trust
CJ&I 408 Philip Morris
Limited
Schedule 21Minor
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.
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.
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
Mr.
Hollobone:
I am glad that the Minister has sympathy with
the view of my hon. Friend the Member for Enfield, Southgate. However,
is this not, therefore, a
charter for people to be even more offended—to be outraged in
fact? The more fuss that is made, and the more hurt that someone
supposedly felt, the greater the chance that they can persuade the
police to take action, given the guidance issued by the Association of
Chief Police Officers and the Crown Prosecution
Service.
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.’.
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”.’.
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.
2
pm
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.
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.
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.
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
section...it 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.
Some people say that we should
keep everything among professionals, others that everybody should have
the right to know everything. The Government thought, “How do we
respond to that? What is the best way forward?”. So we went out
to consultation, and the
then Minister, now the Under-Secretary of State for Culture, Media and
Sport, went to the United States to examine practice there. We
consulted a huge range of stakeholders, as every hon. Member knows.
They will have seen the review of protection in respect of child sex
offenders, and I do not want to read out every stakeholder, but people
from the Association of Chief Police Officers, through the probation
service, to children’s charities all made a contribution to the
very real debate about what we do to protect our children. We felt, and
I feel, that the reasonable approach that the review tries to take is
the way in which politics ought to be conducted. It presents a real
change while offering some reassurance to people who have concerns
about how their children will be protected.
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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