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New clause 1 presents the opportunity to include a measure in the Bill to increase consumer protection for everyone who uses sunbeds, particularly those hired from sunbed operators. On the other hand, it could be argued that we should confine our concerns about sunbed users to people under 18, as the promoter of the Bill would argue, or to people under 16. As we rarely have the opportunity to legislate on such issues in the House, we should incorporate new clause 1 in the Bill, as that would be a major step forward. I am delighted that my hon. Friend the Member for Boston and Skegness (Mark Simmonds) agrees with me. Although it might
appear counter-intuitive for me to argue for a wider scope for regulation, I think we should deal with the big issues as much as possible, rather than try to confine our interests to the narrow ones. I am therefore delighted that the Sunbed Association very much supports new clause 1, and it made its position quite clear to the Government last Monday.
I am disappointed and dismayed by the Minister's response to the new clause, as she said that we could not introduce such a provision without further consultation with the European Union. Previously, she argued that the measure would need the co-operation of the Department for Business, Innovation and Skills, and the Secretary of State, the right hon. Lord Mandelson, but today she has a different proposition-that there must be consultation in the EU. I cannot understand why that should be a problem even if it is necessary, but if it is necessary, why were we not told sooner? I am sceptical about the Minister's claim, but even if it is correct, the Bill will not take effect for at least 12 months after Royal Assent, so there is more than enough time for the necessary discussions and consultations with the EU.
Describing such a period of discussion as a standstill completely overstates the case, as the Minister did-not unusually-in saying that new clause 1 would cement a standard into primary legislation that could be altered subsequently only by more primary legislation. One reason why I gave more than two weeks' notice of my proposal was to enable the Government or the Bill's promoter to table an amendment. If the Government thought that such a standard might subsequently need changing, they could easily have sought to amend the Bill so that that could be done by regulation, yet they declined to do so. That might be because the Minister was preoccupied with other affairs at the time, but I do not know.
It is typical that the Government have come along today with another red herring as an objection to new clause 1. I suspect that they are angry about the proposal because they did not think of it themselves, and because they realise that I am on the side of the angels in this debate, and that they are lagging behind on consumer protection for people who are exposed to higher than necessary UV from artificial sunbed tubes.
I am absolutely convinced that the Bill would be better for the inclusion of new clause 1, and I am strengthened in that belief by the support of my hon. Friend the Member for Gainsborough, who is an extremely experienced legislator. I am concerned that the Minister, in reading out her scripted response, has not really engaged in the detail of what is involved in new clause 1. She asserted-wrongly-that no other EU countries have introduced similar regulations to those proposed in the new clause and she mentioned Spain, Finland and France. However, as far as I know, those countries have introduced similar legislation, so it is fanciful to suggest that there is a problem with it. The only problem is the lack of will on the part of the Government, an all too typical stubbornness and a reluctance to change a Bill when the case has been overwhelmingly made, not only in the House today but by people outside, not least the very knowledgeable and sensible members of the Sunbed Association. I commend the new clause to the House.
Question put, That the clause be read a Second time.
The House divided: Ayes 0, Noes 40.
AYES
Tellers for the Ayes:
Mr. Christopher Chope and
Mr. Edward Leigh
NOES
Brennan, Kevin
Brown, Lyn
Clark, Paul
Coaker, Mr. Vernon
Dobson, rh Frank
Eagle, Angela
Follett, Barbara
Francis, Dr. Hywel
Gardiner, Barry
Grogan, Mr. John
Hanson, rh Mr. David
Hopkins, Kelvin
Iddon, Dr. Brian
Irranca-Davies, Huw
James, Mrs. Siân C.
Jowell, rh Tessa
Kaufman, rh Sir Gerald
Keeble, Ms Sally
Keen, Ann
Kirkbride, Miss Julie
Lamb, Norman
McCarthy, Kerry
Michael, rh Alun
Naysmith, Dr. Doug
O'Hara, Mr. Edward
Pelling, Mr. Andrew
Pound, Stephen
Raynsford, rh Mr. Nick
Robinson, Mr. Geoffrey
Ruddock, Joan
Skinner, Mr. Dennis
Slaughter, Mr. Andy
Spellar, rh Mr. John
Taylor, Matthew
Taylor, Dr. Richard
Thomas, Mr. Gareth
Timms, rh Mr. Stephen
Waltho, Lynda
Ward, Claire
Wicks, rh Malcolm
Tellers for the Noes:
Laura Moffatt and
Nia Griffith
Question accordingly negatived.
Mr. Chope: I beg to move amendment 7, page 2, line 10, leave out '£20,000' and insert '£5,000'.
Mr. Deputy Speaker: With this it will be convenient to discuss the following: amendment 21, page 4, line 6, leave out 'any facilities, assistance or'.
Amendment 22, page 4, line 11, after 'which', insert 'he knows'.
Amendment 23, page 4, line 12, leave out 'and'.
Amendment 24, page 4, line 13, leave out paragraph (b).
Amendment 25, in clause 9, page 4, line 22, leave out from 'by' to end of line 23.
Amendment 32, in clause 10, page 4, line 43, leave out '£20,000' and insert '£5,000'.
Mr. Chope:
The amendments in the group deal with offences and penalties. Amendment 7 seeks to reduce the maximum penalty in clause 2(6) from £20,000 to £5,000. That would be a more reasonable and proportionate maximum penalty in this context, because a maximum penalty of £20,000 on summary conviction of the offence of breaching the duties imposed by the Bill would be devastating for someone carrying on a sunbed business. Many such businesses are relatively small, employing small numbers of people-perhaps one or two-and as my hon. Friend the Member for Upminster (Angela Watkinson) said earlier, we are talking about something that is tantamount to a strict liability offence. It will
therefore be very easy for people to be found to be in breach, albeit not knowingly in breach-for example, if a sunbed is used by somebody who is under 18, but who looks significantly older.
We know that offences relating to the sale of alcohol to under-18s, which is pretty rife up and down the country, do not result in penalties anything like as great as that which is proposed by clause 2. I hope that the Minister will explain why she thinks that a penalty of £20,000 is appropriate.
There is a difference between this proposed penalty and the penalty of £20,000 that I envisaged in new clause 1, which would have been imposed for a breach of equipment regulations in which someone had supplied equipment, for hire or otherwise, that was unsafe for use. That is a very different proposition from the imposition of a fine on someone because they have been duped by a young person into unwittingly allowing them to gain access to a sunbed.
Amendments 21 to 25 relate to clause 8, which deals with the obstruction of so-called authorised officers. Amendment 21 would have the effect of making clause 8(2) read as follows:
"A person who without reasonable excuse fails to give to an authorised officer, acting in the exercise of the officer's functions under this Act, information which the authorised officer reasonably requires of the person for the performance of those functions commits an offence."
As currently drafted, that subsection states that the offence would be committed if the person failed to give the authorised officer
"any facilities, assistance or information".
That is far too vague and wide-ranging, given that it would trigger an offence for which there would be a substantial financial penalty. I hope that the Minister and the promoter of the Bill will be able to explain what those words add to the Bill.
The clause, as drafted, says that anyone who does not answer the questions put to them will be committing an offence. That seems to cut across the principle of being innocent until proven guilty, and the principle that no one should incriminate themselves under English law. My amendment would not exclude all that; it merely says that those principles should not be undermined simply because someone fails to provide facilities or assistance. We all remember people in "Dixon of Dock Green" assisting the police officers with their inquiries. Under clause 8, anyone who did not assist the police officer with his inquiries would be guilty of an offence, and that seems a step too far.
Amendment 22 tries to address the mischief of strict liability. Clause 8(3) states:
"A person ("P") commits an offence if, in purported compliance with any requirement of an authorised officer mentioned in subsection (2)-
(a) P makes a statement which is false or misleading in a material respect".
I believe that that should be an offence only if the person knows the statement to be false or misleading in a material respect. Even in this House, even by Government Ministers and even perhaps by the Prime Minister, statements are sometimes made that are
"false or misleading in a material respect",
but they may not be "knowingly made"; rather, they can be described as "inadvertently misleading the House". Why should someone who inadvertently makes
a misleading statement be guilty of an offence? I hope that the Minister will address that issue, as I would suggest that this is not a million miles away from some of her own recent experiences.
12.30 pm
Amendment 23 would simply leave out the word "and", taking out the conjunction between subsection (3)(a) and (b), while amendment 24 would remove paragraph (b). It would remove the words:
"P either knows that it is false or misleading or is reckless as to whether it is false or misleading."
The purpose is to emphasise that actual knowledge rather than any lesser test should be necessary before an offence is committed. I hope that the amendment will commend itself to the House.
I also hope that amendment 25 to clause 9 will find favour. Clause 9(2) provides:
"If the offence is proved to have been committed by, or with the consent or connivance of, or to be attributable to any neglect on the part of...any director, manager or secretary of the body corporate, or...any person who was purporting to act in any such capacity",
"is guilty of the offence and liable to be proceeded against and punished accordingly."
It seems to me that it would be much better to limit that to offences proved to have been committed by the person. As currently drafted, the clause extends the effective criminal liability to somebody who is conniving with an action or is guilty of "any neglect". A very stringent penalty is being imposed on someone working for a body corporate, who by definition does not have knowledge of what is happening. Once again we are over-egging the pudding, so I hope that the House will accept the amendment.
Amendment 32 is similar to amendment 7 in that it would reduce the maximum penalty from £20,000 to £5,000. In this context, the Local Government Association has asserted that the Bill will result in an additional regulatory burden for the whole of local government, amounting to a cost of only £88,000 a year. That is not a net but a gross figure. If the whole Bill is going to cost only £88,000 to police, a maximum penalty of £20,000 seems disproportionate. The promoter clearly failed to understand the nature of the sunbed industry, and failed to heed the warning that such draconian and stringent penalties might cause people to take their business underground rather than risk the consequences of inadvertently committing an offence.
Although this is a narrow point in one sense, it is serious none the less. The Bill creates new criminal penalties, coupled with the power to amend and extend them. We need to ensure that those penalties are tightly defined, and not more extensive than is reasonable in all the circumstances.
I hope that the Minister will engage in the debate rather than reading out a prepared script, so that we can understand the position fully. If, when the Bill has been enacted, any of our constituents-perhaps not many in the south of England, as this does not seem to be such an issue there-find themselves before the courts, they will look back at this debate and wonder why the
offences were drawn so widely. They will wonder why it was necessary for the Bill to make it so difficult for people to avoid conviction even when they had been unwittingly duped into believing that a person using a sunbed was not under age.
Mark Simmonds: My hon. Friend the Member for Christchurch is right in saying that the additional burden specified in the regulatory impact assessment is only £88,000 for the whole of England and Wales. I expressed concern about that figure on Second Reading and in Committee. We must ensure that it is monitored carefully. It would be helpful if the Minister confirmed that it really is so low, given that it relates to an additional responsibility for staff in local authorities throughout the country who already have other responsibilities. Enforcement is key to the success of the Bill.
I do not agree with my hon. Friend the Member for Christchurch about the penalties. I think it important to provide for significant penalties that will act as a deterrent. However, my hon. Friend made a good point about the burden of proof, and about people who are not knowingly in breach of the provisions. It would also be helpful if the Minister made it clear that the £20,000 figure is a ceiling rather than a fixed penalty, and also that it will probably apply to repeat offenders only. As my hon. Friend said, it is a significant amount. We do not want genuine, responsible sunbed operators to be deterred from entering the market and operating within the legislative structure that we are creating. Some of them operate on very slim margins.
Ann Keen: The hon. Member for Christchurch (Mr. Chope) has tabled a number of amendments relating to the offences and penalties specified in the Bill.
Amendments 7 and 32 apply to clauses 2 and 10, and seek to reduce the maximum level of the penalty from £20,000 to £5,000. The risk posed to young people who use sunbeds is great, and sunbed businesses must take their duties under this Bill seriously. The Government believe that the maximum fine should be substantial, so that we can ensure that the sanction provides an adequate deterrent. The maximum penalty is proportionate to the offence. However, it is important to stress that this is the maximum fine that can be imposed for committing the offence. Clause 10(3)(a) enables offences created by regulations to incur that maximum fine.
Amendments 21 to 24 relate to clause 8. Clause 8(2) requires people to co-operate with enforcement officers who have entered the premises, but amendment 21 would require only that information be given to the enforcement officers. Clause 8 is about facilitating co-operation with enforcement officers, and in order for enforcement officers to do their job properly, it is reasonable to expect that they may need more than information; they may need to access files on a computer, for example.
Clause 8(3) creates an offence where a person makes a false or misleading statement either knowing or not caring that the statement is false or misleading. Amendments 22 to 24 would amend the offence so that it coverered only people making statements that they knew to be false or misleading. The problem with amending clause 8(3) in this way is that it means that there is no recourse against a person who is asked for information by an officer and guesses an answer, but does not care whether the answer is wrong or right.
Mr. Leigh: Clause 8(2) refers to:
"A person who without reasonable excuse fails to give to an authorised officer, acting in the exercise of the officer's functions under this Act, any facilities, assistance or information".
What exactly does that mean, and what does the word "facilities" mean in this context? As Chairman of the Public Accounts Committee, I am also worried about the £88,000 figure. It seems to me that we are racking up ever higher costs for regulating this industry. I simply do not believe it will cost only £88,000 to implement and regulate the Bill's provisions.
Ann Keen: These points were addressed in Committee. I therefore suggest that the hon. Gentleman read the record of the proceedings in Committee, where he might find the answers he seeks.
Amendment 25 relates to clause 9. Clause 9(2) allows for a director, manager or secretary of a body corporate who agrees to play a part in, or turns their back on, the commission of an offence under the Bill to be guilty of the offence, in addition to the company. The effect of amendment 25 would be that those individuals would be caught by this provision only where they had actually committed the offence themselves. That would make the provision too narrow.
I ask the hon. Member for Christchurch to withdraw his amendment.
Julie Morgan: The issue of the cost of £88,000 per year has been raised several times, and I just want to reassure Members that the Local Government Association specifically worked out how many situations it would have to deal with. It is also important to remember that this work would be done by existing environmental officers. Therefore, this figure of £88,000 has been very carefully calculated. It is also important to remember that Scotland is allocating no additional money for enforcing this, because it thinks it can be done with existing staff.
The only other point I want to make is that £20,000 is the maximum fine, and we would not expect it to be imposed very often. This is a very serious issue, however, so it is important to have that high sum as the maximum fine.
12.45 pm
Mr. Chope: I was disappointed with the Minister's response, particularly her response to the intervention from my hon. Friend the Member for Gainsborough (Mr. Leigh). Knowing that my hon. Friend was not invited to be a member of the Standing Committee and was therefore unable to participate in its proceedings, the Minister asserted that the issue that he raised in relation to the proper interpretation to be put on the words in clause 8(3) was discussed in Committee, and she told him to look up the Committee proceedings.
It so happens that I have the Committee proceedings before me. They show that there was no debate whatsoever in the Committee on clause 8 or on clause 9. I hope the Minister will intervene on me to explain what she had in mind when she told my hon. Friend that the issue had been dealt with in Committee. Obviously, that is the only procedure by which we will be able to get an answer to my hon. Friend's point.
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