The Sport and Recreation Alliance, Fair Play for Children and other charities have highlighted the problems in using the notion of supervision for deciding whether a person is in a position to exploit their relationship with children. That person could, as I have just said, be a volunteer in a classroom listening to children read, or a volunteer helping the school caretaker, and they are therefore able to build relationships with the pupils as they carry out their voluntary role. The problem is not the activity they are performing, which could well be

11 Oct 2011 : Column 247

properly supervised; rather, it is the fact that they are building relationships with children which they might go on to exploit. The charities I mentioned point out that supervision is an inappropriate notion in this context as it ignores this secondary access that can be used to build up a relationship with a child or vulnerable adult. If someone is in such a position of trust, they might later take action that could be detrimental to the child or vulnerable adult.

Meg Munn: May I reiterate the concern that is felt? The failure to provide barred status information on people in these unregulated areas is precisely the loophole that the Government should be closing, because if somebody is a risk to children and is having regular contact with them, albeit supervised, the person who is taking them on as a volunteer should have the necessary information to decide whether that is appropriate.

Diana Johnson: My hon. Friend puts the case very well, and I hope the Minister will reflect on the issue of barred status information not being made available—which we have just voted on—and on this whole area of supervision, and consider whether to redefine or remove entirely the concept of supervision.

Let me discuss the example of David Lawrence. For many years he was a football coach volunteering for a team in a junior league in the Avon area. In the late 1990s, working with Fair Play for Children, the Football League tightened its safeguarding procedures and uncovered a string of allegations made against Mr Lawrence dating back to the 1970s, but he had no convictions. He was removed from the football club and shortly afterwards was convicted of an offence against a young boy. Shockingly, just two months after release, in the early 2000s, he was once again volunteering at a local football club. It was a club in a league affiliated with the Football Association, but it was not conducting even basic checks on those who volunteered with it. Mr Lawrence was in a series of supervised volunteer positions, but if this Bill is passed in its current form there will be no legal requirement to conduct any checks on his background. The case shows that statutory regulation is needed to force activity providers to conduct background checks on individuals. Because so much of the relevant information is often soft information—we have just debated that at length—these background checks should go through the Independent Safeguarding Authority.

A redefinition of “supervision” is set out in amendments 114 to 116, which seek to deal with the Government’s definition of the term. We discussed that at great length in Committee, including a number of different options for the definition. Using a definition of “day to day” supervision to cover people such as a football coach or an assistant in a school classroom is not sufficient, as it allows individuals to be left unsupervised for long periods. For example, a football coach could take the same group of children to a different part of a playing field regularly—on a weekly basis—and that is of concern. The definition would also allow a volunteer at a drama group to teach mime to a group of children in a different room from the person supposed to be supervising them. Someone with that ability to take part in activities away from where their supervisor is should be subject to background checks.

11 Oct 2011 : Column 248

A survey conducted by the National Confederation of Parent Teacher Associations suggested that three quarters of parents want background checks to be carried out unless they have personally chosen the person who has access to their child. The brief on which the National Society for the Prevention of Cruelty to Children led stated:

“We are concerned that the proposed definition of regulated activity does not cover some groups of people who have frequent and close contact with children. This creates risks for children. Those who seek to harm children can be predatory and manipulative. If certain types of work are exempt from vetting and barring, in some sectors or settings, but not in others, dangerous adults are likely to target those organisations with weaker arrangements.”

It continues:

“Our key outstanding concern is about the exclusion of supervised work from regulated activity: The Bill exempts many positions from regulated activity simply by virtue of them being under ‘regular day to day supervision’. However supervised employees and volunteers are still able to develop relationships with children which could be exploited. For example, a volunteer teaching assistant in a classroom of 30 children, with only light-touch supervision by the classroom teacher, has plenty of opportunity to develop inappropriate relationships and groom children.

The definition of ‘regular day to day supervision’ is not sufficient because it could be understood to include individuals who have a ‘supervisor’ on site, but who are able to work with groups of children on their own for significant periods of time, with no one directly supervising their work.”

The first recommendation in the report by the all-party group on child protection was to tighten up the definition of “supervision”. In its response to that report, the Home Office said that it agreed that regulated activity should cover all those positions where individuals have close contact and can develop trusting relationships with children. Unfortunately, the Government have not tabled any amendments to allow us to deal with that.

We welcome Government amendments 22 and 63. We are glad that the Government have heeded the calls made by the Opposition and by leading charities in the area, including the NSPCC, to introduce statutory guidance on the issue of supervision.

Jim Shannon: One of the concerns that many people and lots of organisations have about supervision—this has been expressed to me and I suspect to many others in the House—is the level of complexity and the degree of risk involved. Does the hon. Lady feel that the Government should reconsider that issue and how they can best address it to everyone’s satisfaction?

Diana Johnson: The hon. Gentleman makes a very important point. All members of the Public Bill Committee had real concerns about this issue, and wanted further explanation and statutory guidance to be produced by the Government. We are therefore pleased that these amendments will assist that definition, but we are also concerned that we have not had an opportunity in the House to debate and discuss exactly what “regulated activity” and “supervision” are, how they fit together and whether or not we need to revisit the matter. I hope the Minister will be able to give an assurance that the protection set out in the Bill and these Government amendments will be sufficient to deal with the kind of examples that I have given, where people have been able to abuse their position in schools, charities or other voluntary sector groups.

11 Oct 2011 : Column 249

The all-party group’s second recommendation was that the Government should introduce statutory guidance, so again this move is to be welcomed. I would be grateful if the Minister could respond to those points.

Lynne Featherstone: There is not much time available, so I shall be brief. There was considerable discussion in Committee about the nature of “supervision”. The Bill describes “supervised work” as being

“any such work which is, on a regular basis, subject to the day to day supervision of another person who is engaging in regulated activity relating to children”.

That is a tight definition. Supervision must be ongoing, so a once-a-week meeting between the supervisor and supervised would not meet the requirement. The supervision must be on a daily basis and it must be done by someone who is in regulated activity themselves and, therefore, has been checked against the barred list.

We believe that our proposals in this part of the Bill strike a better balance between the roles played by the state and the employers in situ in protecting the vulnerable. Those activities presenting the greatest risks, such as unsupervised work with children or vulnerable adults, remain subject to the central barring and vetting arrangements. We do not think those arrangements are necessary where regular supervision takes place on a daily basis. I should emphasise that that does not mean that checks should not, or cannot, be carried out in relation to work that falls outside regulated activity.

Lastly, I wish to say that I am glad that the hon. Lady is pleased with our movement on statutory guidance.

Diana Johnson: As I said, I do not intend to press the amendment to a Division and I am pleased that the Government have seen the sense in having statutory guidance on supervision. It is unfortunate that the House has not had the opportunity to consider any draft guidance that the Government might wish to introduce, although I assume that we will see that later in the day.

Jim Shannon: I thank the hon. Lady for giving way; I am conscious of the time. Does she feel that this measure is about reducing the number of those being checked? If it is, it is flawed. That is one of my concerns. Most employers will carry out a non-regulated activity that will not require the barred list information or an enhanced disclosure. In other words, things will thereby not be done in the way they should to get full disclosure. I know that we are not going to divide the House on this point, but I am very concerned about what it means.

Madam Deputy Speaker (Dawn Primarolo): Does the hon. Lady wish to withdraw the amendment?

Diana Johnson: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.30 pm

Proceedings interrupted (Programme Order, 10 October ).

The Deputy Speak er put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).

11 Oct 2011 : Column 250

Clause 66

Alteration of test for barring decisions

Amendment proposed: 111, page 49, leave out from line 32 to line 5 on page 53 and insert—

‘(1) In sub-paragraph (3) of paragraph 2 of Schedule 3 to the Safeguarding Vulnerable Groups Act (inclusion subject to consideration of representations), after paragraph (b) insert—

“(c) give the person the opportunity to present evidence and call witnesses at an oral hearing in front of a panel of at least two persons.”.

(2) After sub-paragraph (2) of paragraph 3 of that Schedule (behaviour) insert—

“(2A) The right to representation must include the right to present evidence and call witnesses at an oral hearing in front of at least two persons.”.

(3) After sub-paragraph (2) of paragraph 5 of that Schedule (risk of harm) insert—

“(2A) The right to representation must include the right to present evidence and call witnesses at an oral hearing in front of at least two persons.”.

(4) After sub-paragraph (3) of paragraph 8 of that Schedule (inclusion subject to consideration of representations) after (b) insert—

“(c) give the person the opportunity to present evidence and call witnesses at an oral hearing in front of a panel of at least two persons.”.

(5) After sub-paragraph (2) of paragraph 9 of that Schedule (behaviour) insert—

“(2A) The right to representation must include the right to present evidence and call witnesses at an oral hearing in front of at least two persons.”.

(6) After sub-paragraph (2) of paragraph 11 of that Schedule (risk of harm) insert—

“(2A) The right to representation must include the right to present evidence and call witnesses at an oral hearing in front of at least two persons.”.’.—(Diana Johnson .)

Question put, That the amendment be made.

The House divided:

Ayes 221, Noes 290.

Division No. 361]

[7.30 pm


Abbott, Ms Diane

Abrahams, Debbie

Ainsworth, rh Mr Bob

Alexander, rh Mr Douglas

Alexander, Heidi

Allen, Mr Graham

Anderson, Mr David

Ashworth, Jonathan

Austin, Ian

Bailey, Mr Adrian

Bain, Mr William

Balls, rh Ed

Banks, Gordon

Barron, rh Mr Kevin

Bayley, Hugh

Beckett, rh Margaret

Begg, Dame Anne

Bell, Sir Stuart

Benn, rh Hilary

Berger, Luciana

Betts, Mr Clive

Blackman-Woods, Roberta

Blenkinsop, Tom

Blomfield, Paul

Bradshaw, rh Mr Ben

Brennan, Kevin

Brown, Lyn

Brown, rh Mr Nicholas

Brown, Mr Russell

Bryant, Chris

Burden, Richard

Byrne, rh Mr Liam

Campbell, Mr Alan

Campbell, Mr Gregory

Campbell, Mr Ronnie

Chapman, Mrs Jenny

Clark, Katy

Clarke, rh Mr Tom

Clwyd, rh Ann

Coaker, Vernon

Coffey, Ann

Connarty, Michael

Cooper, Rosie

Cooper, rh Yvette

Corbyn, Jeremy

Creagh, Mary

Creasy, Stella

Cruddas, Jon

Cryer, John

Cunningham, Alex

Cunningham, Mr Jim

Cunningham, Tony

Curran, Margaret

Danczuk, Simon

Darling, rh Mr Alistair

David, Mr Wayne

Davidson, Mr Ian

Davies, Geraint

De Piero, Gloria

Denham, rh Mr John

Dobbin, Jim

Dobson, rh Frank

Docherty, Thomas

Dodds, rh Mr Nigel

Donohoe, Mr Brian H.

Dowd, Jim

Doyle, Gemma

Dromey, Jack

Dugher, Michael

Durkan, Mark

Eagle, Ms Angela

Eagle, Maria

Edwards, Jonathan

Elliott, Julie

Esterson, Bill

Evans, Chris

Fitzpatrick, Jim

Flello, Robert

Flint, rh Caroline

Flynn, Paul

Fovargue, Yvonne

Francis, Dr Hywel

Gapes, Mike

Gilmore, Sheila

Glass, Pat

Glindon, Mrs Mary

Godsiff, Mr Roger

Goggins, rh Paul

Goodman, Helen

Greatrex, Tom

Green, Kate

Griffith, Nia

Gwynne, Andrew

Hain, rh Mr Peter

Hamilton, Mr David

Hamilton, Fabian

Hanson, rh Mr David

Harman, rh Ms Harriet

Harris, Mr Tom

Havard, Mr Dai

Healey, rh John

Hendrick, Mark

Hepburn, Mr Stephen

Hillier, Meg

Hilling, Julie

Hodge, rh Margaret

Hood, Mr Jim

Hopkins, Kelvin

Hunt, Tristram

Irranca-Davies, Huw

Jackson, Glenda

James, Mrs Siân C.

Jamieson, Cathy

Jarvis, Dan

Johnson, Diana

Jones, Helen

Jones, Susan Elan

Joyce, Eric

Kaufman, rh Sir Gerald

Kendall, Liz

Khan, rh Sadiq

Lazarowicz, Mark

Leslie, Chris

Llwyd, rh Mr Elfyn

Love, Mr Andrew

Lucas, Ian

Mactaggart, Fiona

Mahmood, Mr Khalid

Mahmood, Shabana

Mann, John

Marsden, Mr Gordon

McCabe, Steve

McCann, Mr Michael

McCarthy, Kerry

McClymont, Gregg

McCrea, Dr William

McDonagh, Siobhain

McDonnell, John

McFadden, rh Mr Pat

McGovern, Alison

McGovern, Jim

McGuire, rh Mrs Anne

McKechin, Ann

McKenzie, Mr Iain

McKinnell, Catherine

Meacher, rh Mr Michael

Mearns, Ian

Michael, rh Alun

Miller, Andrew

Mitchell, Austin

Moon, Mrs Madeleine

Morden, Jessica

Morrice, Graeme


Morris, Grahame M.


Mudie, Mr George

Munn, Meg

Murphy, rh Paul

Murray, Ian

Nandy, Lisa

Nash, Pamela

O'Donnell, Fiona

Onwurah, Chi

Osborne, Sandra

Owen, Albert

Paisley, Ian

Pearce, Teresa

Perkins, Toby

Pound, Stephen

Qureshi, Yasmin

Reed, Mr Jamie

Reeves, Rachel

Reynolds, Emma

Reynolds, Jonathan

Riordan, Mrs Linda

Ritchie, Ms Margaret

Robertson, John

Robinson, Mr Geoffrey

Rotheram, Steve

Roy, Mr Frank

Roy, Lindsay

Ruane, Chris

Sarwar, Anas

Seabeck, Alison

Shannon, Jim

Sharma, Mr Virendra

Sheerman, Mr Barry

Sheridan, Jim

Shuker, Gavin

Simpson, David

Skinner, Mr Dennis

Slaughter, Mr Andy

Smith, rh Mr Andrew

Smith, Angela

Smith, Nick

Smith, Owen

Spellar, rh Mr John

Straw, rh Mr Jack

Stringer, Graham

Stuart, Ms Gisela

Sutcliffe, Mr Gerry

Tami, Mark

Thomas, Mr Gareth

Thornberry, Emily

Timms, rh Stephen

Trickett, Jon

Turner, Karl

Twigg, Derek

Twigg, Stephen

Umunna, Mr Chuka

Vaz, Valerie

Walley, Joan

Watson, Mr Tom

Watts, Mr Dave

Whitehead, Dr Alan

Wilson, Phil

Wilson, Sammy

Winnick, Mr David

Winterton, rh Ms Rosie

Woodcock, John

Wright, David

Wright, Mr Iain

Tellers for the Ayes:

Nic Dakin and

Graham Jones


Adams, Nigel

Afriyie, Adam

Aldous, Peter

Amess, Mr David

Andrew, Stuart

Arbuthnot, rh Mr James

Bacon, Mr Richard

Baker, Norman

Baker, Steve

Baldry, Tony

Barclay, Stephen

Barker, Gregory

Baron, Mr John

Barwell, Gavin

Bebb, Guto

Beith, rh Sir Alan

Bellingham, Mr Henry

Benyon, Richard

Beresford, Sir Paul

Berry, Jake

Bingham, Andrew

Binley, Mr Brian

Blackwood, Nicola

Blunt, Mr Crispin

Boles, Nick

Bradley, Karen

Brady, Mr Graham

Brake, rh Tom

Bray, Angie

Brazier, Mr Julian

Brine, Mr Steve

Brokenshire, James

Brooke, Annette

Browne, Mr Jeremy

Bruce, Fiona

Bruce, rh Malcolm

Buckland, Mr Robert

Burley, Mr Aidan

Burns, Conor

Burns, rh Mr Simon

Burrowes, Mr David

Burstow, Paul

Burt, Alistair

Burt, Lorely

Byles, Dan

Cairns, Alun

Campbell, rh Sir Menzies

Carmichael, rh Mr Alistair

Carmichael, Neil

Carswell, Mr Douglas

Cash, Mr William

Chishti, Rehman

Chope, Mr Christopher

Clappison, Mr James

Clark, rh Greg

Clarke, rh Mr Kenneth

Clifton-Brown, Geoffrey

Colvile, Oliver

Cox, Mr Geoffrey

Crockart, Mike

Crouch, Tracey

Davey, Mr Edward

Davies, David T. C.


Davies, Glyn

Davis, rh Mr David

de Bois, Nick

Dinenage, Caroline

Djanogly, Mr Jonathan

Dorries, Nadine

Doyle-Price, Jackie

Drax, Richard

Duddridge, James

Duncan Smith, rh Mr Iain

Dunne, Mr Philip

Ellis, Michael

Ellwood, Mr Tobias

Elphicke, Charlie

Eustice, George

Evans, Graham

Evans, Jonathan

Fabricant, Michael

Farron, Tim

Featherstone, Lynne

Francois, rh Mr Mark

Freeman, George

Freer, Mike

Fullbrook, Lorraine

Gale, Mr Roger

Garnier, Mark

George, Andrew

Gibb, Mr Nick

Gilbert, Stephen

Glen, John

Goldsmith, Zac

Goodwill, Mr Robert

Gove, rh Michael

Graham, Richard

Gray, Mr James

Grayling, rh Chris

Green, Damian

Greening, Justine

Grieve, rh Mr Dominic

Griffiths, Andrew

Gummer, Ben

Gyimah, Mr Sam

Hague, rh Mr William

Halfon, Robert

Hames, Duncan

Hammond, rh Mr Philip

Hammond, Stephen

Hancock, Matthew

Hancock, Mr Mike

Harper, Mr Mark

Harrington, Richard

Harris, Rebecca

Hart, Simon

Harvey, Nick

Haselhurst, rh Sir Alan

Hayes, Mr John

Heald, Oliver

Heath, Mr David

Heaton-Harris, Chris

Hemming, John

Henderson, Gordon

Herbert, rh Nick

Hinds, Damian

Hollingbery, George

Hollobone, Mr Philip

Holloway, Mr Adam

Hopkins, Kris

Horwood, Martin

Howell, John

Hughes, rh Simon

Huhne, rh Chris

Huppert, Dr Julian

Hurd, Mr Nick

Jackson, Mr Stewart

James, Margot

Javid, Sajid

Jenkin, Mr Bernard

Johnson, Gareth

Johnson, Joseph

Jones, Andrew

Jones, Mr David

Jones, Mr Marcus

Kawczynski, Daniel

Kelly, Chris

Kirby, Simon

Knight, rh Mr Greg

Kwarteng, Kwasi

Latham, Pauline

Laws, rh Mr David

Leadsom, Andrea

Lee, Jessica

Lee, Dr Phillip

Leigh, Mr Edward

Leslie, Charlotte

Letwin, rh Mr Oliver

Lewis, Brandon

Lewis, Dr Julian

Liddell-Grainger, Mr Ian

Lopresti, Jack

Lord, Jonathan

Loughton, Tim

Luff, Peter

Macleod, Mary

Main, Mrs Anne

May, rh Mrs Theresa

Maynard, Paul

McCartney, Jason

McCartney, Karl

McIntosh, Miss Anne

McLoughlin, rh Mr Patrick

McPartland, Stephen

McVey, Esther

Mensch, Louise

Menzies, Mark

Mercer, Patrick

Metcalfe, Stephen

Miller, Maria

Mills, Nigel

Milton, Anne

Moore, rh Michael

Morgan, Nicky

Morris, Anne Marie

Morris, James

Mosley, Stephen

Mowat, David

Mulholland, Greg

Munt, Tessa

Murray, Sheryll

Murrison, Dr Andrew

Neill, Robert

Newmark, Mr Brooks

Newton, Sarah

Nokes, Caroline

Norman, Jesse

Nuttall, Mr David

Offord, Mr Matthew

Ollerenshaw, Eric

Opperman, Guy

Ottaway, Richard

Parish, Neil

Paterson, rh Mr Owen

Pawsey, Mark

Penning, Mike

Penrose, John

Percy, Andrew

Perry, Claire

Phillips, Stephen

Pincher, Christopher

Poulter, Dr Daniel

Prisk, Mr Mark

Pugh, John

Raab, Mr Dominic

Redwood, rh Mr John

Rees-Mogg, Jacob

Reevell, Simon

Reid, Mr Alan

Robertson, Hugh

Robertson, Mr Laurence

Rogerson, Dan

Rosindell, Andrew

Rudd, Amber

Ruffley, Mr David

Russell, Bob

Rutley, David

Sandys, Laura

Scott, Mr Lee

Selous, Andrew

Shapps, rh Grant

Sharma, Alok

Shelbrooke, Alec

Simmonds, Mark

Simpson, Mr Keith

Skidmore, Chris

Smith, Miss Chloe

Smith, Henry

Smith, Julian

Smith, Sir Robert

Soames, rh Nicholas

Soubry, Anna

Spelman, rh Mrs Caroline

Spencer, Mr Mark

Stanley, rh Sir John

Stephenson, Andrew

Stevenson, John

Stewart, Bob

Stewart, Iain

Stewart, Rory

Stride, Mel

Stuart, Mr Graham

Stunell, Andrew

Sturdy, Julian

Swayne, rh Mr Desmond

Swinson, Jo

Swire, rh Mr Hugo

Syms, Mr Robert

Tapsell, rh Sir Peter

Timpson, Mr Edward

Tomlinson, Justin

Truss, Elizabeth

Turner, Mr Andrew

Uppal, Paul

Vara, Mr Shailesh

Vickers, Martin

Villiers, rh Mrs Theresa

Walker, Mr Robin

Wallace, Mr Ben

Walter, Mr Robert

Ward, Mr David

Watkinson, Angela

Weatherley, Mike

Webb, Steve

Wheeler, Heather

White, Chris

Whittaker, Craig

Wiggin, Bill

Williams, Mr Mark

Williams, Roger

Williams, Stephen

Williamson, Gavin

Willott, Jenny

Wilson, Mr Rob

Wollaston, Dr Sarah

Wright, Jeremy

Wright, Simon

Yeo, Mr Tim

Young, rh Sir George

Zahawi, Nadhim

Tellers for the Noes:

Stephen Crabb and

Norman Lamb

Question accordingly negatived.

11 Oct 2011 : Column 251

11 Oct 2011 : Column 252

11 Oct 2011 : Column 253

11 Oct 2011 : Column 254

Clause 76

Minor amendments

Amendment made: 22, page 64, line 16, at end insert—

‘(6) After paragraph 5 of Schedule 4 to that Act (regulated activity relating to children) insert—


5A (1) The Secretary of State must give guidance for the purpose of assisting regulated activity providers and personnel suppliers in deciding whether supervision is of such a kind that, as a result of paragraph 1(2B)(b), 2(3A) or 2(3B)(b), the person being supervised would not be engaging in regulated activity relating to children.

(2) Before giving guidance under this paragraph, the Secretary of State must consult the Welsh Ministers.

(3) The Secretary of State must publish guidance given under this paragraph.

(4) A regulated activity provider or a personnel supplier must, in exercising any functions under this Act, have regard to guidance for the time being given under this paragraph.”’.—(Lynne Featherstone.)

Clause 87

Transfer schemes in connection with orders under section 85

Amendments made: 23, page 70, line 43, leave out from beginning to end of line 2 on page 71 and insert—

‘(7) For the purposes of this section—

(a) references to rights and liabilities of ISA include references to rights and liabilities of ISA relating to a contract of employment, and

(b) references to rights and liabilities of the Secretary of State include references to rights and liabilities of the Crown relating to the terms of employment of individuals in the civil service.

(7A) Accordingly, a transfer scheme may, in particular, provide—

(a) for an employee of ISA or (as the case may be) an individual employed in the civil service to become an employee of DBS,

(b) for the individual’s contract of employment with ISA or (as the case may be) terms of employment in the civil service to have effect (subject to any necessary modifications) as the terms of the individual’s contract of employment with DBS,

11 Oct 2011 : Column 255

(c) for the transfer to DBS of rights and liabilities of ISA or (as the case may be) the Crown under or in connection with the individual’s terms of employment.’.

Amendment 24, page 71, leave out lines 8 and 9.—(Lynne Featherstone.)

Clause 97

Interpretation: Chapter 4

Amendment made: 25, page 77, line 22, at end insert—

‘(7) For the purposes of subsections (5) and (6) an attempt to commit an offence includes conduct which—

(a) consisted of frequenting with intent to commit the offence any river, canal, street, highway, place of public resort or other location mentioned in section 4 of the Vagrancy Act 1824 (as it then had effect) in connection with frequenting by suspected persons or reputed thiefs, and

(b) was itself an offence under that section.’.—(Lynne Featherstone.)

Schedule 7

Safeguarding of vulnerable groups: Northern Ireland

Amendment made: 63, page 144, line 26, at end insert—

‘(6) After paragraph 5 of Schedule 2 to that Order (regulated activity relating to children) insert—


5A (1) The Secretary of State must give guidance for the purpose of assisting regulated activity providers and personnel suppliers in deciding whether supervision is of such a kind that, as a result of paragraph 1(2B)(b), 2(3A) or 2(3B)(b), the person being supervised would not be engaging in regulated activity relating to children.

(2) The Secretary of State must publish guidance given under this paragraph.

(3) A regulated activity provider or a personnel supplier must, in exercising any functions under this Order, have regard to guidance for the time being given under this paragraph.”’.—(Lynne Featherstone.)

Schedule 8

Disclosure and Barring Service

Amendment made: 64, page 148, line 23, at end insert—

‘Use of information

15A Information obtained by DBS in connection with the exercise of any of its functions may be used by DBS in connection with the exercise of any of its other functions.’.—(Lynne Featherstone.)

New Clause 13

Emergency power for temporary extension and review of extensions

‘(1) After Part 3 of Schedule 8 to the Terrorism Act 2000 (extension of detention of terrorist suspects) insert—

Part 4

Emergency power when parliament dissolved etc. for temporary extension of maximum period for detention under section 41

38 (1) The Secretary of State may make a temporary extension order if—

(a) either—

(i) Parliament is dissolved, or

11 Oct 2011 : Column 256

(ii) Parliament has met after a dissolution but the first Queen’s Speech of the Parliament has not yet taken place, and

(b) the Secretary of State considers that it is necessary by reason of urgency to make such an order.

(2) A temporary extension order is an order which provides, in relation to the period of three months beginning with the coming into force of the order, for paragraphs 36 and 37 to be read as if—

(a) in paragraph 36(3)(b)(ii) for “14 days” there were substituted “28 days”, and

(b) the other modifications in sub-paragraphs (3) and (4) were made.

(3) The other modifications of paragraph 36 are—

(a) the insertion at the beginning of sub-paragraph (1) of “Subject to sub-paragraphs (1ZA) to (1ZI),”,

(b) the insertion, after sub-paragraph (1), of—

(1ZA) Sub-paragraph (1ZB) applies in relation to any proposed application under sub-paragraph (1) for the further extension of the period specified in a warrant of further detention where the grant (otherwise than in accordance with sub-paragraph (3AA)(b)) of the application would extend the specified period to a time that is more than 14 days after the relevant time.

(1ZB) No person may make such an application—

(a) in England and Wales, without the consent of the Director of Public Prosecutions,

(b) in Scotland, without the consent of the Lord Advocate, and

(c) in Northern Ireland, without the consent of the Director of Public Prosecutions for Northern Ireland,

unless the person making the application is the person whose consent is required.

(1ZC) The Director of Public Prosecutions must exercise personally any function under sub-paragraph (1ZB) of giving consent.

(1ZD) The only exception is if—

(a) the Director is unavailable, and

(b) there is another person who is designated in writing by the Director acting personally as the person who is authorised to exercise any such function when the Director is unavailable.

(1ZE) In that case—

(a) the other person may exercise the function but must do so personally, and

(b) the Director acting personally—

(i) must review the exercise of the function as soon as practicable, and

(ii) may revoke any consent given.

(1ZF) Where the consent is so revoked after an application has been made or extension granted, the application is to be dismissed or (as the case may be) the extension is to be revoked.

(1ZG) Sub-paragraphs (1ZC) to (1ZF) apply instead of any other provisions which would otherwise have enabled any function of the Director of Public Prosecutions under sub-paragraph (1ZB) of giving consent to be exercised by a person other than the Director.

(1ZH) The Director of Public Prosecutions for Northern Ireland must exercise personally any function under sub-paragraph (1ZB) of giving consent unless the function is exercised personally by the Deputy Director of Public Prosecutions for Northern Ireland by virtue of section 30(4) or (7) of the Justice (Northern Ireland) Act 2002 (powers of Deputy Director to exercise functions of Director).

(1ZI) Sub-paragraph (1ZH) applies instead of section 36 of the Act of 2002 (delegation of the functions of the Director of Public Prosecutions for Northern Ireland to persons other than the Deputy Director) in relation to the functions of the Director of Public Prosecutions for Northern Ireland and the Deputy

11 Oct 2011 : Column 257

Director of Public Prosecutions for Northern Ireland under, or (as the case may be) by virtue of, sub-paragraph (1ZB) above of giving consent.”,

(c) the substitution, for “a judicial authority” in sub-paragraph (1A), of “—

(a) in the case of an application falling within sub-paragraph (1B), a judicial authority; and

(b) in any other case, a senior judge”,

(d) the insertion, after sub-paragraph (1A), of—

(1B) An application for the extension or further extension of a period falls within this sub-paragraph if—

(a) the grant of the application otherwise than in accordance with sub-paragraph (3AA)(b) would extend that period to a time that is no more than 14 days after the relevant time; and

(b) no application has previously been made to a senior judge in respect of that period.”,

(e) the insertion, after “judicial authority” in both places in sub-paragraph (3AA) where it appears, of “or senior judge”,

(f) the insertion, after “detention” in sub-paragraph (4), of “but, in relation to an application made by virtue of sub-paragraph (1A)(b) to a senior judge, as if—

(a) references to a judicial authority were references to a senior judge; and

(b) references to the judicial authority in question were references to the senior judge in question”,

(g) the insertion, after “judicial authority” in sub-paragraph (5), of “or senior judge”, and

(h) the insertion, after sub-paragraph (6), of—

(7) In this paragraph and paragraph 37 “senior judge” means a judge of the High Court or of the High Court of Justiciary.”

(4) The modification of paragraph 37 is the insertion, in sub-paragraph (2), after “judicial authority”, of “or senior judge”.

(5) A temporary extension order applies, except so far as it provides otherwise, to any person who is being detained under section 41 when the order comes into force (as well as any person who is subsequently detained under that section).

(6) The Secretary of State may by order revoke a temporary extension order if the Secretary of State considers it appropriate to do so (whether or not the conditions mentioned in paragraphs (a) and (b) of sub-paragraph (1) are met).

(7) Sub-paragraph (8) applies if—

(a) any of the following events occurs—

(i) the revocation without replacement of a temporary extension order,

(ii) the expiry of the period of three months mentioned in sub-paragraph (2) in relation to such an order,

(iii) the ceasing to have effect of such an order by virtue of section 123(6A) and (6B), and

(b) at that time—

(i) a person is being detained by virtue of a further extension under paragraph 36,

(ii) the person’s further detention was authorised by virtue of the temporary extension order concerned (before its revocation, expiry or ceasing to have effect) for a period ending more than 14 days after the relevant time (within the meaning given by paragraph 36(3B)),

(iii) that 14 days has expired, and

(iv) the person’s detention is not otherwise authorised by law.

(8) The person with custody of that individual must release the individual immediately.

(9) Subject to sub-paragraphs (7) and (8), the fact that—

(a) a temporary extension order is revoked,

(b) the period of three months mentioned in sub-paragraph (2) has expired in relation to such an order, or

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(c) such an order ceases to have effect by virtue of section 123(6A) and (6B),

is without prejudice to anything previously done by virtue of the order or to the making of a new order.”

(2) After section 123(6) of that Act (orders and regulations under the Act) insert—

“(6A) An order under paragraph 38 of Schedule 8 is to cease to have effect at the end of the period of 20 days beginning with the day on which the Secretary of State makes the order, unless a resolution approving the order is passed by each House of Parliament during that period.

(6B) For the purposes of subsection (6A) the period of 20 days is to be computed in accordance with section 7(1) of the Statutory Instruments Act 1946.”

(3) After section 36(4) of the Terrorism Act 2006 (review of terrorism legislation) insert—

“(4A) The person appointed under subsection (1) must ensure that a review is carried out (whether by that person or another person) into any case where the period specified in a warrant of further detention issued under Part 3 of Schedule 8 to the Terrorism Act 2000 (extension of detention of terrorist suspects) is further extended by virtue of paragraph 36 of that Schedule to a time that is more than 14 days after the relevant time (within the meaning of that paragraph).

(4B) The person appointed under subsection (1) must ensure that a report on the outcome of the review is sent to the Secretary of State as soon as reasonably practicable after the completion of the review.”’.—(James Brokenshire.)

Brought up, and read the First time .

7.45 pm

James Brokenshire: I beg to move, That the clause be read a Second time.

Madam Deputy Speaker (Dawn Primarolo): With this it will be convenient to discuss the following:

New clause 14—Extension of pre-charge detention—

‘(1) The Secretary of State may by order extend the permitted period of detention under section 41 and Schedule 8 of the Terrorism Act 2000 to 28 days if the Attorney General has certified that exceptional circumstances apply;

(2) An order made under subsection (1) shall expire three months after commencement;

(3) The Secretary of State must arrange for a statement to be made to each House of Parliament as soon as possible once an order under subsection (1) has been made.

(4) A review of each order made under subsection (1) must be conducted by the Independent Reviewer of Terrorism Legislation, or a person appointed by him, and each review must be published as soon as any risk of prejudice to judicial proceedings has ceased to exist.

(5) Every year, the Secretary of State must lay before Parliament a report listing any orders made under subsection (1) since the commencement of this section, or since the date of the previous report as the case may be, explaining what exceptional circumstances applied in each case; and if—

(a) six weeks have elapsed from the report being laid, without the report being approved by a resolution of each House of Parliament, or

(b) either House of Parliament declines to approve the report by resolution

this section, and any order made under subsection (1), shall cease to have effect.

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(6) When an order under subsection (1) is in force, a High Court judge may extend the period of detention without charge of any person arrested under section 41 of the Terrorism Act 2000 up to 28 days if he is satisfied that—

(a) the person has been lawfully arrested on reasonable suspicion of having committed a specified terrorist offence;

(b) it would be exceptionally difficult to decide whether to charge the suspect with a terrorist offence unless the suspect were to be detained without charge for more than 14 days;

(c) there are reasonable grounds for expecting that it would be possible to decide whether to charge the suspect with a terrorist offence if he were detained without charge for more than 14 days but no more than 28 days; and

(d) the public interest in the administration of justice would be undermined if the suspect were to be released without charge.

(7) An application to the High Court under subsection (6) requires the authorisation of the Director of Public Prosecutions.’.

Government amendments 79, 80 and 75.

James Brokenshire: The coalition’s programme for government committed the Government to reviewing counter-terrorism legislation. Included in this broad review was the issue of pre-charge detention. The Government are committed to making our counter-terrorism powers fairer and more effective, and they announced in January 201l that, following the results of the review of counter-terrorism and security powers, the limit on pre-charge detention for terrorist suspects should be reduced to 14 days. The 28 days order was always meant to be an exceptional provision; it had become the norm. The Government are not prepared to allow this to continue. The last 28 days order was therefore allowed to lapse on 24 January. The maximum limit for pre-charge detention is now 14 days.

There was a recognition—I will come on to this in the context of the counter-terrorism review—that it might be necessary in an emergency, in exceptional circumstances, for pre-charge detention to be extended back up to 28 days, and it was for that reason that the Government introduced fast-track legislation to pre-legislative scrutiny. I will come on to the pre-legislative scrutiny in due course, recognising that right hon. and hon. Members from the Joint Committee are here this evening, and I look forward to their contributions in this debate.

Alun Michael (Cardiff South and Penarth) (Lab/Co-op): I want to clarify one point that is not dealt with in the Home Secretary’s response to the Committee’s report, although it was dealt with when she came before the Committee to give evidence. It is silent on a point that is central to the issue—the fact that an extension of detention can be made only if more time is required for investigation and in order to bring cases before the court, and is not intended to be some form of preventive detention. Will the Minister confirm that that is still the Government’s view? It frames the whole of the discussion from that point on.

James Brokenshire: The right hon. Gentleman is absolutely right about the evidence that the Home Secretary gave to the Joint Committee, and I am happy to confirm that that retains and maintains the Government’s position on the use of the fast-track legislation and the emergency provisions that we have talked about.

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New clause 13 introduces an urgent order-making power for the Secretary of State temporarily to increase the maximum period of pre-charge detention for terrorist suspects under schedule 8 of the Terrorism Act 2000 from 14 days to 28 days in very limited circumstances.

An order may be made only where the Secretary of State considers that to be necessary, by reason of urgency. This is an emergency power exercisable only when Parliament is dissolved, or in the period before the Queen’s Speech following the Dissolution of Parliament.

As I have said already, the counter-terrorism review that the Government initiated, which reported at the start of the year, concluded that the limit on pre-charge detention for terrorist suspects should be set at 14 days and that this should be reflected in primary legislation, which is what we have in the Bill. The counter-terrorism review, after examining the options for dealing with the emergency situation, stated that emergency legislation extending the period of pre-charge detention to 28 days should be drafted and discussed with the Opposition but not introduced, in order to deal with urgent situations in which more than 14 days is considered necessary, for example in response to multiple co-ordinated attacks and/or during multiple, large and simultaneous investigations. Lord Macdonald, who was the independent reviewer of the Government’s counter-terrorism analysis, agreed with that, stating:

“It is my clear conclusion that the evidence gathered by the Review failed to support a case for 28 day pre-charge detention. No period in excess of 14 days has been sought by police or prosecutors since 2007, and no period in excess of 21 days has been sought since 2006…I agree with the Review’s conclusion that the risk of an exceptional event, requiring a temporary return to 28 days, is best catered for by having emergency legislation ready for placing before Parliament in that eventuality. This is the option most strongly supported by the evidence gathered by the Review.”

Alun Michael: I am following the logic of what the Minister says very carefully. He referred to multiple attacks and multiple investigations. Does he accept that multiple attacks in themselves would not justify the use of the power, and that it is the weight of investigation and preparation of cases that would be the trigger? I know that this sounds a little like dancing on the head of a pin, but I hope that he will accept that clarity here is crucial to an understanding of what the Government intend.

James Brokenshire: The right hon. Gentleman will obviously have seen the Home Secretary’s response to the Joint Committee’s report. In relation to legislating for exceptional circumstances, the Committee agrees that it does not make sense to have an exhaustive list. She set out three broad scenarios in which a longer period of pre-charge detention may be necessary in response to a fundamental change in the threat environment: first, when the police and Crown Prosecution Service anticipate that multiple, complex and simultaneous investigations would necessitate 28 days’ detention; secondly, during an investigation or series of investigations—but before arrests—that were so complex or significant that 14 days was not considered sufficient; and thirdly, during an investigation but after arrests had taken place. That was how the Home Secretary framed it, and that is the scenario and the analysis that we would point to in this context—although the Joint Committee did set out some other thoughts on exceptional circumstances, which the Home Secretary and the Government welcome as a helpful guide for supplementing the analysis that she set

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out in the three points to which I have already alluded. Therefore, I think that it is helpful to Parliament to have the additional points referred to in the Joint Committee’s report available to inform consideration in this regard.

Nicola Blackwood: Will my hon. Friend give some indication of the role that operational independence will have in considering when investigations have become so complex and difficult that the police will require the extended period in order to complete their investigations?

James Brokenshire: I will cover that point in further detail in the latter part of my contribution, but I will say that the distinction between individual cases and legislating for the generality, and the need to make a clear distinction between the two, was something that the Joint Committee rightly scrutinised in that context. We believe that it is possible to draw the distinction between an individual case with individual circumstances, and legislating on a need to extend pre-charge detention from 14 days to 28 days as a principle. In order to plan for such circumstances, the Government have published, but not introduced, draft emergency legislation that would increase the maximum period from 14 days to 28 days, which has been subject to the scrutiny of the Joint Committee.

Rehman Chishti (Gillingham and Rainham) (Con): I have heard the words “exceptional circumstances” used. Am I right in saying that including those words strikes the right balance between defending civil liberties and protecting the British public?

James Brokenshire: I think that is right. In many ways it is why the Government have taken the approach that we have. Ultimately, it would be for the House to decide whether the circumstances justified the introduction of the emergency legislation. That is an important protection, and represents the underlying distinction in the Government’s approach.

Hon. and right hon. Members who sat on the Public Bill Committee will recall that we had extensive debates in Committee on what the maximum period should be, in what circumstances the Government might seek to extend that period, and what kind of contingency mechanism they might employ to extend the maximum period. As I said then, the Government have prepared draft fast-track legislation, which at the time was subject to pre-legislative scrutiny. The Joint Committee undertaking that scrutiny reported in June, and I am grateful to Lord Armstrong of Illminster and the other members of the Committee for their careful consideration.

Mr William Cash (Stone) (Con): Does the Minister believe that habeas corpus itself is in any way affected by the proposals before the House in the new clause, and does habeas corpus not, as Lord Steyn has said repeatedly, supervene against any other jurisdiction, provided that its operation is not excluded by statute?

James Brokenshire: I know that that is a particular concern for my hon. Friend, but we do not think that it is engaged in that way. I know that he has introduced a Bill previously on this subject, but the clear advice I have received is that the answer is no.

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Although the Government still believe that fast-track legislation is the most appropriate contingency mechanism for increasing the maximum period of pre-charge detention, we recognise that, as the Committee pointed out, that approach would not be feasible during any period when Parliament was dissolved. No contingency mechanism will be perfect or able to meet all operational needs while at the same time satisfying every concern that Parliament and the public might have, but we recognised the point raised by the Committee about what would happen if Parliament were dissolved. New clause 13 has been introduced to address that specific concern.

I am aware that the Committee concluded that the Government’s intention to rely on fast-track legislation for other periods was not appropriate, citing potential problems with parliamentary debates and possible difficulties with recalling Parliament during a long recess. New clause 14, tabled by the right hon. Member for Wythenshawe and Sale East (Paul Goggins), attempts to deal with that issue by introducing an order-making power to increase the maximum period of pre-charge detention, which would be available when the Attorney-General certified that exceptional circumstances applied. The new clause also includes a number of proposed safeguards relating to that power, including retrospective parliamentary approval and a number of conditions that would have to be satisfied before a High Court judge could approve any individual applications for extended detention up to 28 days.

I very much welcome the continuation of the debates that the right hon. Gentleman and I have had over terrorism legislation, and many of the themes that come through in this debate were apparent in our debates on the Terrorism Prevention and Investigation Measures Bill, the enhanced regime and the provisions that it introduced. I think that it is right and proper that we have the debate on the issue in this Bill, particularly as the Joint Committee’s investigation related to the emergency draft legislation to which the Bill is in essence connected with regard to an increase from 14 to 28 days. However, we believe that the exceptional nature of these powers to extend the maximum period beyond 14 days means that, where feasible, the principle of 28- day detention should be debated and approved by Parliament.

In response to the Joint Committee’s report, the Home Secretary said:

“An order-making power of the type described in the Committee’s report”—

and in many ways reflected in the new clause that the right hon. Member for Wythenshawe and Sale East has tabled—

“would…not be a clear expression that the ‘normal’ maximum period of pre-charge detention should be no longer than 14 days.”

She went on to say:

“28 day detention is so exceptional that I continue to believe that Parliament should have the opportunity to debate the issue first, and that the most appropriate and effective way to do this is by using emergency primary legislation.”

8 pm

Sir Menzies Campbell (North East Fife) (LD): The Government have opted for legislation rather than for the order-making procedure, but by introducing new clause 13 the Minister demonstrates that the legislative approach is a principle that can be departed from in

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certain circumstances. The Committee found that an essential way to create a pragmatic response would be to apply the order-making procedure in all circumstances. So far, the Government’s response on the matter has been exiguous to say the least.

The first problem is that if we recalled Parliament for a statement and a debate, we would be doing something quite different from recalling Parliament in order to make primary legislation, remembering that that would have had to pass through not only this House but the other place. But there is a further point, and it seems even more significant as a matter of principle. How could one be assured that, in the course of a debate here about such primary legislation, nothing would take place that did not have the effect of prejudicing the right to a fair trial?

James Brokenshire: Parliament has shown itself capable in the past of conducting debates about sensitive issues and of being recalled quickly in exceptional circumstances. The current consideration of issues such as phone hacking illustrates how Parliament can consider and discuss very sensitive issues, and Parliament’s response to the riots over the summer also highlighted the fact that it is possible for the House to be recalled and to return at very short notice.

We return, however, to the principle that maintaining 14 days in primary legislation, rather than having a general order-making power, represents a clear expression of the very exceptional nature of the powers sought, gives Parliament the opportunity to debate the issues and, crucially, avoids 28 days becoming the maximum by default, as it appeared to be under the previous Government.

Alun Michael: I accept the hon. Gentleman’s point, and I do not think that anybody is arguing for access to periods in excess of 14 days in normal circumstances. The principle that he underlines is absolutely right, but the problem with a debate by the House of Commons is that the evidence of the need for a longer period will be based only on a specific case or number of cases. If we have a massive number of cases, we will get away from the individual case, but that is an unlikely circumstance, and if the need for detention beyond 14 days relates just to one case, or to two or three, it is almost impossible to envisage a debate that would not refer to them—so what would be the point of such a debate?

James Brokenshire: That point was considered in the counter-terrorism review, and the view clearly expressed was that the debates and consideration would need to be handled carefully, but in our judgment that does not make the process impossible; far from it. Indeed, as I have told the House, Lord Macdonald, in his review of counter-terrorism, said that that was the appropriate way to proceed, reflecting what I have said about telegraphing very clearly the norm: 14 days, rather than 28 days. Therefore, we judge that this measure is the appropriate way forward, but no contingency mechanism will be perfect and meet all the needs of everybody. We do believe, however, that it is workable and practical, and underlines most clearly the norm for pre-charge detention.

Nicola Blackwood: In addition to the question of whether it is appropriate for Parliament to be the body that debates the conferring of exceptional powers, is it

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not also significant that what will be discussed is an exceptional threat to the nation? Is it not appropriate to recall Parliament to discuss that? Should not we be required to confer exceptional powers?

James Brokenshire: I have already said that on this matter neither I nor the Home Secretary feel that crystal ball-gazing is appropriate, but we are looking at exceptional circumstances, and as I have said the process can be handled and managed by the House. We have seen circumstances in which matters have been handled sensitively, and, although we recognise that that issue is a factor, we think that it can be addressed through the consideration of emergency legislation and the recall of Parliament.

Importantly, we have allowed scrutiny of the draft Bill, its operation and functions, so, if it is necessary to take legislation through the House, such deliberation and consideration will be aided by the scrutiny and exceptional work that the Joint Committee has already undertaken.

Alun Michael: I am grateful to the hon. Gentleman for giving way, because he is dealing with important issues. He is right about scrutiny, but it cannot simply be the threat that leads to the power before us being brought in. That would apply to prevention of terrorism legislation, to the Emergency Powers Act 1964 and so on, but in relation to this power only the investigation and preparation of specific cases and the need for additional time can justify the use of such legislation. The House can be sensitive and, in some circumstances, speedy, but surely the Minister accepts that in the consideration of such matters there is a fault line which is problematic for the Government and for the House.

Mr Deputy Speaker (Mr Lindsay Hoyle): Order. We need shorter interventions, as we still have a lot of business to go.

James Brokenshire: The Joint Committee set out that point very clearly in its report, and we have heard it, but we believe that a distinction can be drawn between the principle of extending 14 days to 28 days and the consideration of an individual case—and that it is entirely possible and practical for the House to do so.

I appreciate that in considering a detention of terrorism suspects (temporary extensions) Bill, Parliament would not be able to discuss matters relating to particular individuals or anything that might compromise an investigation or a future prosecution, but it is important to recognise the clear difference between Parliament's considering whether 28-day detention should be available in principle and the judiciary’s role in determining whether in an individual case to extend a detention warrant under schedule 8 to the 2000 Act. Parliament would not take a decision about an individual suspect or suspects; that would be a decision for the proper judicial process.

Parliament would take a decision about the principle of 28 days in a given set of circumstances, which would be explained in as much detail as possible. Parliament would also be able to discuss in general the issues of the threat and the reasons why an increased threat might require a longer maximum detention period.

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Mr Cash: I am sure the Minister appreciates that he is treading a rather wobbly line, because clause 57 talks about a permanent reduction in the maximum detention period to 14 days, yet, during the rather special circumstances when Parliament is not sitting or has been dissolved, he is prepared to countenance the idea of an emergency arrangement that would produce 28 days. I happen to be in favour of more than 14 days, but is it not the case that, ultimately, the test should be what is in the interests of the security of the nation, and that, if it is good enough to extend 14 days to 28 in such circumstances, it should apply or could apply generally?

James Brokenshire: We come back to what I spoke about—the exceptional nature of the powers sought and the point that 14 days should be the norm. Through the new clause, we seek to address the very limited circumstances in which Parliament is not functioning, and we recognise and take on board the Joint Committee’s comments on that. In those circumstances, the Home Secretary and the Government need to be able to act in the national interest to ensure security. For that reason, the emergency order-making power in new clause 13 is limited to periods when the introduction of primary legislation would not be possible—that is, when Parliament is dissolved or before the first Queen’s Speech of the new Parliament.

As we set out in the Government’s response, published last week, to the Joint Committee’s report, we welcome two of the Committee’s further recommendations for increased safeguards, and we have included them in new clause 13. First, applications for any warrant of further detention that would see an individual detained for longer than 14 days may be made only with the personal consent of the Director of Public Prosecutions or the equivalent post holder in Scotland or Northern Ireland. Secondly, whenever an individual is detained for longer than 14 days, their case will be reviewed by the independent reviewer of terrorism legislation, or someone on their behalf, and a report of that review will be sent to the Secretary of State as soon as possible.

Both those changes will also be incorporated in the draft fast-track legislation to increase the maximum length of pre-charge detention to 28 days. New clause 13 and consequential amendments 79 and 80 ensure that there is an effective contingency mechanism for increasing the maximum period of pre-charge detention in the limited period during which Parliament is dissolved. It is right that we should continue to rely on fast-track primary legislation in all other circumstances. On that basis, I commend new clause 13 to the House.

Chris Bryant (Rhondda) (Lab): I will start with some general comments and then come directly to the amendments and new clauses. Obviously, this is the first time that I have spoken about these matters in a shadow ministerial capacity, and I want to underline the fact that Her Majesty’s loyal Opposition remain loyal on these issues. It is often said—just because it is a truism does not make it untrue—that the single most important thing that a Government have to do is protect their citizens, and we fully accept that.

It was said earlier that it is important to balance the security of the nation and civil liberties. I disagree with the framing of the debate in that way, because I think that the two are intertwined—someone has personal

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liberty only if they are safe and feel it, but they have liberty only if those particular liberties are granted to them as well. I would try to say that the two are not mutually exclusive, but intimately intertwined.

Outside London, people often think that issues of counter-terrorism are primarily the responsibility of the Metropolitan police and to do with what happens in the metropolitan areas of the country. However, I clearly remember that after 11 September, when Americans stopped flying, people were laid off at GE Aviation in Nantgarw just outside my constituency because it did not need to make any more aircraft engines. We are all intimately involved. Following the bombings in London, all the schools in my constituency cancelled their visits to Westminster for about a year, because there was a nervousness about coming up to London. We need to get these issues right.

8.15 pm

On the specific issue, I think that the Government have got themselves into something of a conundrum. There are plenty of issues on which we now fundamentally agree. Broadly speaking, everybody agrees that the norm should be 14 days—indeed, we would prefer it if all 14 days were not used; it is a fundamental principle that as soon as it is possible to bring charges, those charges should be brought and the system of criminal justice then proceeds. Whenever somebody is detained pre-charge, that is ostensibly an embarrassment at least and an undermining of that person’s civil liberties.

As the Government’s amendments on what would happen in Dissolution reveal, it is universally accepted that there may be exceptional circumstances in which we would need to go beyond 14 days. Many have speculated about them; my right hon. Friend the Member for Cardiff South and Penarth (Alun Michael) mentioned, for instance, when a large number of cases come simultaneously or when it is particularly difficult to gather some of the evidence pre-charge—for example, if a person who was part of a plot left the country and had to be brought back. After 7/7, the European arrest warrant helped us, as we were able to bring people back from Italy much faster than we could have done otherwise.

The Government would not have advanced the power-making role during Dissolution unless they accepted that there might be exceptional circumstances. However, they do not want to provide in statute now for making such a power available to the Secretary of State, however corralled around it is by protective measures. That is where they have got themselves into a bit of a problem.

The power to dissolve Parliament and, for that matter, the power to hold the Queen’s Speech, is held by the Crown, by Government. It seems bizarre that in that exceptional moment, when the Government have more power than at any other time, we would give them the power to allow an extension to 28 days—corralled around in the various ways that the Minister provided for—but not in other circumstances, when Parliament can hold the Crown to account. The amendment relating to the power of Dissolution is ludicrously over-complicated. It certainly would not pass any “easy English” rule, given the number of sub-clauses and intricacies.

Sir Menzies Campbell: What’s new?

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Chris Bryant: Indeed—but we are trying to do better, and I honestly think that there is a danger. At that time, when there would be a Government but not a Parliament, we would end up with something of a constitutional crisis if the Government chose to delay having a Queen’s Speech to invoke the power, notwithstanding the other elements to which the Minister referred.

Then there is the route of emergency primary legislation. The right hon. and learned Member for North East Fife (Sir Menzies Campbell) referred to the dangers, and he is absolutely right. Obviously, there would be a series of debates in this and the other House, because we would have to go through all three stages in both Houses. I cannot conceive of a set of debates in which one would not get close to having to argue why it was all necessary now and therefore it would not be prejudicing any potential prosecution. That is the Government’s big problem about the route of emergency legislation.

I should also say that, on the whole, emergency legislation is a bad idea. In my experience, the Commons does not do emergency legislation well, and their lordships do not do it much better. I presume that the Minister would want all three stages in both Houses in one day, or at most two. There are real problems with that, because Members would have to be able to table manuscript amendments on Report and would not be able to listen to the Second Reading debate before considering the tabling of amendments. All that would be in danger of leading to bad legislation.

James Brokenshire: I welcome the hon. Gentleman to his position and wish him well in his new responsibilities and duties. Does he accept that when the previous Government were considering the extension to 42 days, they were proposing to use exactly the same mechanism?

Chris Bryant: I think we have moved on somewhat; certainly I have. Also, the facts have changed. There was a time when a lot more people feared much more that we might need more than 14 days rather more frequently, but the fact is that the powers have not been used—they have not been necessary. The facts have changed, time has passed, and we need to move on. I am grateful for the Minister’s wishing me well, with a slight barb to it.

The Minister said that in the case of phone hacking the House moved remarkably swiftly. In fact, all that happened was Executive action, because the Government were finally persuaded that they should set up the Leveson inquiry. Parliament did absolutely nothing. We did not legislate; we certainly did not go through three stages of a Bill. We may end up legislating in that respect, but it will not happen for some time.

We have had the pre-legislative scrutiny process, and I am grateful to the right hon. and hon. Members who sat on the Committee. However, there is still the danger that following the moment that necessitated emergency legislation—I do not know whether that would be 10, 11 or 12 days in—we would effectively be undertaking ad exemplum legislation, which is always a mistake. I sympathise with the squaring of the circle that the Government are trying to achieve whereby we all accept that the norm should be 14 days, and while in normal circumstances we do not want all those 14 days to be used, we none the less accept that there might be some exceptional circumstances in which 20 days might be

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necessary. However, I believe that the Government are going down the wrong route in trying to achieve that, as does the pre-legislative scrutiny Committee, which said:

“We believe, however, that the parliamentary scrutiny of primary legislation to this effect would be so circumscribed by the difficulties of explaining the reasons for introducing it without prejudicing the rights of a suspect or suspects to a fair trial as to make the process of justifying the legislation almost impossible for the Secretary of State and totally unsatisfactory and ineffective for Members of both Houses of Parliament.”

Mr David Winnick (Walsall North) (Lab): As someone who does not have to move on from 42 days, having taken, in my view, the right decision at the time—and previously on 90 days—like my hon. Friend I have the greatest reservations about emergency legislation all in one day. If it is to be detention without charge for 14 days, which, like him, I certainly welcome, I would vote against any measure that the Government clearly have in mind whereby it would be 14 days-plus. That would be totally unsatisfactory, for all the reasons he has cited.

Chris Bryant: I think that “I told you so” came at the beginning of my hon. Friend’s comments. Quite often he does turn out to be more correct than me, but there we go—that’s life.

I can imagine a point where we are nine days into somebody’s detention and then the Government realise that they need their emergency legislation. They would not be able to start that process until the 11th day, and then they would suddenly be saying, “Right, we’ve got to put it all through this House and the other House in one day.” That leads to very dangerous decision making, and it is a bad route to go down. It would be a mistake for us to decide in principle that that is what we want to do in some given circumstance. That is why I prefer the route advanced by my right hon. Friends the Members for Cardiff South and Penarth and for Wythenshawe and Sale East (Paul Goggins), the right hon. and learned Member for North East Fife (Sir Menzies Campbell), the right hon. Member for East Yorkshire (Mr Knight), and the hon. Member for Poole (Mr Syms) and for Banbury (Tony Baldry). Having said that, we still need to resolve some of the issues about the level of corralling needed to ensure that the power is not used gratuitously, that the Secretary of State is not able to proceed unhindered, and so on.

Tom Brake (Carshalton and Wallington) (LD): Has the hon. Gentleman already thought through what some of the safeguards should be to ensure that the Secretary of State does not use the provision as an administrative facility to progress from 14 to 28 days?

Chris Bryant: New clause 14 makes clear some of the specifics involved. If the Government have things they think should be additional, that debate needs to be had. I suspect that this will not be the end of the matter in this House and that their lordships will want to look very closely at whether there is a better route to achieve the same end.

Nobody is trying to end up in a different place in this regard, but the process of emergency legislation that the Government are using is a mistake. In essence, they have already accepted the principle that there should, in exceptional circumstances, be an additional power.

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They have accepted that in relation to Dissolution and effectively said that it should be present at other times. The issue is simply about how we make sure that the Secretary of State, if he or she were to have that power, would then be circumscribed by Parliament and by other bodies. Undoubtedly, High Court judges and the Director of Public Prosecutions make decisions that do not allow the Secretary of State to act gratuitously. However, we prefer the route that new clause 14 lays out, and I hope that the Government will think again. I do not expect that we will want to divide the House on this matter, but I hope that their lordships will look at it again.

Mr Cash: I will speak briefly because I have already gone through this issue on a number of occasions.

I believe very strongly that if there is a case for extending the period from 14 to 28 days, the Government, by referring to the period in question as merely 14 days and describing it as a permanent reduction in clause 57, and then talking about certain circumstances of an emergency nature that extend it to 28 days, effectively sell the argument down the river. I am trying to look at the principle. In my opinion, 28 days is justified. We have been through the arguments, as the hon. Member for Walsall North (Mr Winnick) said, about whether it should be 42 days or 90 days. Fourteen days can be a very short period, so if there is a case for it being 28 days in certain circumstances, for heaven’s sake let us just accept that 28 days will be used very rarely and only in special circumstances.

Furthermore, to go back to a point that the Minister made, there is the distinct, continuing right of habeas corpus. If a judge thought that somebody was being ill-treated during a period of detention, which is really what this is all about, and he was satisfied by evidence from other sources and an application for habeas corpus, he would go straight down—in Belmarsh, for example, there is a tunnel—and ask to have the person who was being detained produced for him. He would rapidly work out whether that person was being subjected to unfair or unreasonable treatment—we are talking here about the realities of life—and whether he should be given the full benefit of habeas corpus. Habeas corpus means, “You shall have the body,” or, “You shall produce the person.” That, in my judgment, is ultimately what this is all about.

8.30 pm

I introduced a Bill on this matter right back when the former Member for Folkestone and Hythe was the leader of the Conservative party and my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) was the shadow Home Secretary. I had a bit of a disagreement with them because they wanted to do a deal with the Liberal Democrats and I disagreed with that. That was not an unusual circumstance, but I try to stick to my principle. I produced the Prevention of Terrorism (No. 2) Bill for the reason—I have done it again more recently, as the Minister agreed—that I believe that we should justify our actions by reference to legislation that we produce here.

I just throw into the bargain that I think that the Human Rights Act 1998 has a lot to do with this. I am very glad that the Home Secretary has made her speech

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on the repeal of that Act, never mind what the Deputy Prime Minister says. I was responsible for that policy when I was shadow Attorney-General. I got it through the shadow Cabinet at that time and it stayed right through to the manifesto. The point is that if one disentangles the unnecessary complications of the Human Rights Act from the essence of the question, what we must have is a fair trial, as the right hon. and learned Member for North East Fife (Sir Menzies Campbell) said—I suspect that that is the only point on which we are likely to agree. That was in my Bill. We must also reaffirm the principles of habeas corpus and due process. The combination of those things can be achieved by legislating on our own terms; not through being caught up in all the unnecessary complication of having these matters adjudicated in Strasbourg or wherever.

If there is a vote on the new clause, I shall abstain on a simple issue of principle. I think that the hon. Member for Rhondda (Chris Bryant) is right when he says that the Government are creating a problem for themselves. There is a confusion of principle here. What is sauce for the goose is sauce for the gander. If there is a case for extending the period to 28 days when there is a Dissolution or before the Queen’s Speech, frankly that is a matter of principle and it should be clear in the Bill that 28 days is an appropriate period. Why is it appropriate? Because the security of the nation requires it. That is the first priority. We have our civil liberties only if the security of the nation is guaranteed. I therefore will not support the Government on the proposal, and I believe that my argument is based on reason, principle and practicality.

Paul Goggins (Wythenshawe and Sale East) (Lab): It is a pleasure to follow the hon. Member for Stone (Mr Cash).

I will focus on new clause 14, which stands in my name and the names of the five other Members mentioned by my hon. Friend the Member for Rhondda (Chris Bryant) who served on the Joint Committee on the Draft Detention of Terrorist Suspects (Temporary Extension) Bills, which was appointed earlier this year and whose work on scrutinising the Bills has been mentioned. I am grateful to the Minister for his remarks about the Committee’s work, as I am sure are my colleagues. We are also grateful to my hon. Friend the Member for Rhondda, whom I congratulate on his recent appointment to his important new responsibilities.

The Minister referred to the fact that he and I have begun to engage with each other regularly on these issues. What we are learning is that there are no perfect solutions to these problems; they are difficult and challenging, and often we are looking for the least worst option rather than the perfect option. That is the spirit in which I make my remarks this evening.

The six Members of this House whom I mentioned were joined by six highly regarded and experienced Members of the other place on a Committee that was expertly chaired by Lord Armstrong of Ilminster. We met on 11 occasions, had seven public evidence sessions and took evidence from a wide range of experts. New clause 14 reflects our conclusions and recommendations.

For reasons of principle as well as practicality, our starting point as a Committee was that a maximum period of 14 days’ pre-charge detention is adequate, save in exceptional circumstances. For some members of the Committee—certainly for myself—that represented

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a change of mind, as my hon. Friend the Member for Rhondda pointed out. Despite all the fierce debates that we have had over the years, I and many colleagues have had to face the fact that detention beyond 14 days has only ever been used on 11 occasions, and not at all since 2007. However, the majority of the witnesses from whom we took evidence acknowledged that contingency arrangements were required for extension beyond 14 days in exceptional circumstances. That, of course, is the view of the Government as well, as the Home Secretary made clear in her evidence to the Committee, and again on 3 October in her letter to Lord Armstrong, to which the Minister referred. In that letter, she set out the Government’s response to the Committee’s report and stated that

“it is sensible to acknowledge that longer than 14 days may be required, and to plan accordingly.”

The question of the best way to make the necessary powers available remains. As we have heard, the Government are in favour of new primary legislation—a full Bill, to go through all stages in both Houses. The Committee’s view was that that route was both unsatisfactory and unreliable, and it recommended an order-making power for the Home Secretary, albeit with a number of important safeguards.

In her letter to the Committee of 3 October, the Home Secretary set out the three broad scenarios that the Minister has described. I will not read from the letter, because he has already read into the record the detail of what she said, but in summary, the three scenarios are: a situation in which there is a heightened threat and a likelihood of many and extensive investigations; an ongoing investigation that is so complex that 14 days is not sufficient; and a situation in which arrests have been made, the investigation is ongoing and it is clear that there is insufficient time for it to be completed within the maximum 14-day period. Frankly, I think the Home Secretary’s assessment of those three scenarios is rather more reasoned and balanced than the one provided by Lord Macdonald of River Glaven, the former Director of Public Prosecutions, who made clear his view that extension beyond 14 days could only ever be justified in the context of what he described as a “national catastrophe”. The balance of the evidence given to the Committee was that that was far too extreme a view to be practically helpful.

The objective of the Committee and the Government is the same, but the question is how to extend beyond 14 days. The Committee concluded that the route of primary legislation was simply too risky and uncertain to be relied upon in what, in any event, would be extremely challenging circumstances. I draw the Minister’s attention in particular to the third scenario that the Home Secretary outlined in her letter, in which arrests have been made, an ongoing investigation is being carried out and the clock is ticking. Perhaps nine, ten or 11 days of questioning have already passed, and only three or four days are left before the maximum is reached.

It is as well to remind the House that during the course of our taking evidence, a number of arrests were made under terrorism legislation in Northern Ireland. Two suspects were held for 13 days and then released without charge, and one suspect was charged on the 14th day of his detention. We are talking not only about matters of theory and principle but about real-life situations that are ongoing in the current climate.

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Ben Gummer (Ipswich) (Con): In the example that the right hon. Gentleman has just used, we do not know, of course, whether the police could have charged before 14 days. That they charged on the 14th day does not mean that they did not have the evidence to charge on the seventh day.

Paul Goggins: I respect the hon. Gentleman and he and I have had exchanges on this issue, but I contest strongly his assertion. When an ongoing investigation requires detention to be extended beyond seven days for any further period up to 14 days, there is very close scrutiny by the courts. It would be impossible for the police to detain a suspect beyond seven days—for 10, 13 or 14 days—without the court’s explicit approval. A court would certainly not approve the detention of somebody who could have been charged earlier, so I completely refute his argument.

The Committee had a number of specific concerns about the primary legislation route. First—others have touched on this important point—parliamentary scrutiny of such primary legislation would be so limited as to be rendered completely unsatisfactory and ineffective. By definition, such a Bill would be fast-tracked through the House, with very little time for debate. The circumstances in which the legislation would be introduced would dramatically limit what Ministers could say without jeopardising the suspect’s right to a fair trial, or without compromising national security.

I am sure that the Minister would come to the House very well briefed on what he could and could not say—he usually does, and any such future debate would not be an exception—but neither he nor anyone could guarantee that a Member of the House would not say something that could lead to a subsequent trial being compromised. I ask hon. Members present to put themselves in this position: what if 50 or 100 of their constituents had just been blown up and they had to participate in a debate on a request that the suspect who is potentially responsible for those explosions is held for longer than 14 days? We would all be exercised in that situation and might be prone to say something out of place, which would be reported in the media and lead to further speculation that, in turn, could compromise a trial. Both Lord Carlile, the former independent reviewer of counter-terrorism legislation, and Keir Starmer, the current Director of Public Prosecution, told the Committee that putting too much information into the public domain could prejudice a fair trial. Alternatively, so little information might be given by the Minister in the context of the debate that the whole process would be completely meaningless.

The Home Secretary is right to draw a distinction between a debate and a decision on the principle of extending the powers beyond 14 days and the practical application of those powers in each individual case. As my right hon. Friend the Member for Cardiff South and Penarth (Alun Michael) reminded the House earlier, the application is a matter entirely for the courts and not for Parliament. However, in practice, particularly in relation to the third scenario that the Home Secretary gave, the debate on the principle and the debate on the practical application in an individual case would become very blurred. There is a real danger of confusion between the role of Parliament and the responsibilities of the court. Parliament could be asked to vote on legislation,

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and within days, the court has to decide whether that legislation can be applied in a specific case in specific circumstances. In paragraph 84 of its report, the Constitution Committee concluded:

“It is ill-advised to create a decision-making process that requires Parliament and the judiciary to ask and answer similar questions within a short space of time—or at all. Far from being a system of checks and balances, this is a recipe for confusion that places on Parliament tasks that it cannot effectively fulfil and arguably risks undermining the rights of fair trial for the individuals concerned.”

That is an important point. The close proximity of the parliamentary debate and decision, and the application in an individual case, is fraught with difficulties.

Then, of course, there is the practicality of emergency legislation, which others have touched on. Normal business could be set aside if Parliament was sitting, but there is the question of what happens if it is not sitting but in recess. The Clerks advise us that a minimum of 48 hours would be required to recall Parliament during a recess. Of course, it was recalled very speedily this summer in the aftermath of the riots, but that was for a statement and debate, not to pass legislation. My right hon. Friend the Member for Blackburn (Mr Straw), a former Home Secretary, advised the Committee that after the worst atrocity in the history of the troubles in Northern Ireland, when 29 people were killed and more than 200 were injured, it took nine days to reconvene Parliament. In the context of an ongoing investigation into particular suspects in a particularly urgent inquiry, that would make the whole process of primary legislation completely impractical.

8.45 pm

It was the Committee’s unanimous view that the Secretary of State should be given an executive order-making power to extend the permitted period of detention beyond 14 days up to 28 days. However, it suggested a number of important safeguards, some of which the Minister mentioned. First, the Attorney-General would have to certify that exceptional circumstances applied. We know that making that judgment can be difficult, but it would not just be the Home Secretary who had to make it; the Attorney-General would have to make a similar judgment for the order-making power to be available.

Mr Cash: Is the right hon. Gentleman aware of the Attorney-General’s views on this question of 14 days, seven days and all the rest of it? Does the right hon. Gentleman have much confidence that it would ever be extended?

Paul Goggins: I have enough confidence in the current holder of that position to know that he would set aside his personal opinion and deal with the legislation as he saw fit. It is interesting. I am asked about the Attorney-General and I am often asked about the Home Secretary. It sometimes appears that Opposition Members have more confidence in the Attorney-General and the Home Secretary than some of their own colleagues, because we want them to have these powers to use when they are absolutely necessary. It is important to have that confidence.

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Jeremy Corbyn (Islington North) (Lab): I apologise for missing the earlier part of my right hon. Friend’s speech—I was at a meeting in another part of the building. I understand what he is saying, but very few other countries go beyond 14 days for detention periods and some go much less. Why does he think that we should legislate to allow an extension to 28 days?

Paul Goggins: My hon. Friend knows enough about this matter to know that we cannot draw simple comparisons between our system and other systems. Other systems sometimes appear to hold suspects for shorter periods when in fact they are held for longer periods. We have a system that reflects our own judicial culture but also recognises the fact that we face enormous threats and challenges from terrorists in this country, perhaps particularly in this city. We have had to work our way through this, but if he missed the earlier part of my speech, he will not have heard me say that I have had pause to reflect and that I have changed my mind. I think that 14 days should be the maximum in most circumstances, apart from the exceptional circumstances that I am referring to.

Mr Winnick rose—

Paul Goggins: I shall give way one more time, but then I want to bring my remarks to a conclusion.

Mr Winnick: I am grateful to my right hon. Friend. I accept that he is a convert to 14 days, although I suspect that if we were debating 42 days, he would not necessarily be up on his feet protesting. On the point about the Attorney-General, are we really to believe—this is not a reflection on the Attorney-General in any Government—that if the Home Secretary told the Attorney-General, in the usual way that these things are done, that it was necessary to increase the 14 days in exceptional circumstances, the Attorney-General would say to the Home Secretary, “No”? It is unrealistic.

Paul Goggins: I do not accept that it is unrealistic. It would depend on the individual judgment of the Attorney-General linked to the judgment of the Home Secretary, who would have been briefed by the Security Service and others. On its own, it is not a total safeguard, but it is one among several, and I shall briefly go through the others. The Secretary of State would have to give a statement to both Houses as soon as possible. There would have to be a review by the Independent Reviewer of Terrorism Legislation of any case in which a suspect was detained for more than 14 days. There would have to be an annual report by the Home Secretary listing any orders that had been made; that report would have to be debated and voted on in six weeks. Finally, the Director of Public Prosecutions would have to give his personal authorisation to any application to the High Court for a further warrant for detention. We know that that already happens in practice, but it should be on the face of the legislation. Members of the Joint Committee will be pleased that the Minister has tonight confirmed that he will introduce legislation to make the order-making power available during the Dissolution of Parliament, and that he has acknowledged the importance of an independent review of each case and of the personal authorisation of the Director of Public Prosecutions.

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The Minister is a reasonable man who genuinely seeks to strike the right balance, but I believe that he has landed in the wrong place on this issue. His preferred route of primary legislation is too risky: time might be against him, and a subsequent trial might be prejudiced. This measure is exceptional, and we all hope that it will never have to be used, but if it is required, it is important that it be absolutely reliable and available as soon as possible.

The Committee’s recommendation respects the Government’s view that 14 days should be the normal maximum; frankly, I think that that is the settled view of Members on both sides of the House. That would give greater certainty in the face of extraordinary challenges, threats and attacks. On behalf of the six members of the Committee, I am happy to commend our recommendations to the Minister, and I hope that, even now, he will give them further consideration.

Tom Brake: I shall speak briefly in support of new clause 13. I welcomed the Government’s review of counter-terrorism security powers, which concluded that the maximum period of pre-charge detention for terrorists should be 14 days. I had anticipated that conclusion, but I had not anticipated that the review would further conclude that there might be exceptional circumstances in which it was necessary to increase the limit on pre-charge detention to 28 days. I cannot foresee the exceptional circumstances in which that might be needed, but I suppose that exceptional circumstances are, by definition, very hard to foresee.

Once the review had concluded that there might be such exceptional circumstances, measures had to be put in place, and I support the Government’s approach to fast-track primary legislation. My concern is that, if we had not done that, we might not have had in place the necessary safeguards to ensure that we would seek an extension to 28 days only in exceptional circumstances.

Clearly, this is not as elegant a solution as simply opting for 14 days. In requiring the additional step, we must ensure that pressure is maintained during the first 14 days to ensure that cases are very actively pursued. I have been told that, in some cases, there has not been quite the necessary degree of energy and commitment during those 14 days. Creating a significant hurdle for exceptional circumstances that requires a parliamentary legislative process should ensure that the necessary safeguards are operated, and it reflects the fact that we have not used 14 days since 2007.

I welcome what the Government are doing. They have identified the need for emergency legislation to be available not only while Parliament is sitting but when it is in recess, and the issue that was correctly identified with regard to Dissolution has also had to be addressed. I am happy to speak in favour of new clause 13 and to welcome it this evening.

Alun Michael: The Minister responded reasonably to interventions earlier and I welcome the tone with which he has responded to the debate. However, my hon. Friend the Member for Rhondda (Chris Bryant) was absolutely right that the Government have dug themselves into a hole, and we are trying to help the Home Secretary and the Minister to climb out of it.

The Minister accepted that the powers in the emergency legislation cannot be triggered on the basis of the threat level, but only by the need for extra time for specific

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investigations. The debates on emergency legislation would therefore either be so general and free from evidence as to be meaningless in terms of scrutiny, or be about specific cases, in which event they could be prejudiced. The right way is for a clearly exceptional power to be set out in primary legislation, with a high bar and stringent requirements to make abuse virtually impossible. As the Government have set their face against that approach, my right hon. Friend the Member for Wythenshawe and Sale East (Paul Goggins) and the rest of us have tabled new clause 14, which is a reasonable attempt to find a way around this that would not be damaging to the reputation of the Government, this House or the legislative process.

I urge the Minister, if he can do nothing else, to say that he has heard the debate and to give an undertaking to think further on these points, which are made not to cause difficulties for Ministers, but to try to enable the Government to get us to the right place as far as principle and law are concerned.

James Brokenshire: We have had a good debate on the new clauses. I again pay tribute to the work of the Joint Committee for scrutinising the emergency legislation and, in many ways, for the nature of the debate that we have had this evening.

It is correct to say that there is no perfect solution to any of the scenarios raised—I have said that in respect to the manner in which we have considered this issue, too—but it ultimately comes down to the judgment about settling on 14 days. We have heard contributions from all parts of the House acknowledging that 14 days is now the accepted period for pre-charge detention; that is a recognition on both sides of where to strike the appropriate balance. I very much welcome the comments that have been made about that. If 28 days is absolutely the exception, the structure that we create must recognise that. That is why, although I accept both the help and assistance that has been proffered across the House this evening and the work of the Joint Committee, we have resolved in reflecting on the issue that the structure that is being created with the draft emergency legislation, along with new clause 13, is the appropriate way forward.

At one stage there was a suggestion that, for example, the Civil Contingencies Act 2004 might provide a mechanism for dealing with the issue. That was not the view of the Joint Committee, which is a view that we share. However, it is appropriate that exceptional circumstances may justify a 28-day detention, and the Home Secretary’s letter set out those three scenarios. They are: a fundamental change in the threat environment; an investigation or series of investigations—albeit before arrest—that were so complex or significant that 14 days was not considered sufficient; and a scenario that arose during an investigation but after an arrest had taken place. Those are the three elements of exceptional circumstances which we have focused on for when powers might need to be sought to increase the period.

However, as other Members have said, we hope that that scenario would not arise or ever exist. Goodness only knows, that is not something that we would wish to contemplate, but we have to contemplate it, hence the reason why we have drafted the emergency legislation and the new clause before the House. We believe that the structure being created is reliable and available, and that the House is able to make the distinction and

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understand its role, as contrasted with that of the judiciary; hence the reason why I commend new clause 13 to the House and urge Members to reject new clause 14, although I recognise the important points that the Joint Committee made. In many ways we have reflected on that and have sought to incorporate certain of the Joint Committee’s recommendations in the new clause, but on balance and after careful consideration—

9 pm

Debate interrupted (Programme Order, 10 October).

The Deputy Speaker put forthwith the Question already proposed from the Chair (Standing Order No. 83E), That the clause be read a Second time.

Question agreed to .

New c lause 13 accordingly read a Second time, and added to the Bill.

The Deputy Speaker then put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E) .

Clause 28

Interpretation: Chapter 2

Amendments made: 16, page 18, line 32, leave out ‘and (3)’ and insert ‘to (3A)’.

Amendment 17, page 19, line 15, leave out ‘identify’ and insert

‘establish or verify the identity of’.

Amendment 18, page 19, line 16, leave out from ‘obtained’ to end of line and insert

‘or recorded with the intention that it be used for the purposes of a biometric recognition system.’

Amendment 19, page 19, line 22, at end insert—

‘(3A) In subsection (2) “biometric recognition system” means a system which, by means of equipment operating automatically—

(a) obtains or records information about a person’s physical or behavioural characteristics or features, and

(b) compares the information with stored information that has previously been so obtained or recorded, or otherwise processes the information, for the purpose of establishing or verifying the identity of the person, or otherwise determining whether the person is recognised by the system.’.—(James Brokenshire.)

Clause 98

Release and publication of datasets held by public authorities

Amendments made: 26, page 78, line 35, at end insert—

‘(2A) The public authority may exercise any power that it has by virtue of regulations under section 11B to charge a fee in connection with making the relevant copyright work available for re-use in accordance with subsection (2).

(2B) Nothing in this section or section 11B prevents a public authority which is subject to a duty under subsection (2) from exercising any power that it has by or under an enactment other than this Act to charge a fee in connection with making the relevant copyright work available for re-use.

(2C) Where a public authority intends to charge a fee (whether in accordance with regulations under section 11B or as mentioned in subsection (2B)) in connection with making a relevant copyright

11 Oct 2011 : Column 278

work available for re-use by an applicant, the authority must give the applicant a notice in writing (in this section referred to as a “re-use fee notice”) stating that a fee of an amount specified in, or determined in accordance with, the notice is to be charged by the authority in connection with complying with subsection (2).

(2D) Where a re-use fee notice has been given to the applicant, the public authority is not obliged to comply with subsection (2) while any part of the fee which is required to be paid is unpaid.

(2E) Where a public authority intends to charge a fee as mentioned in subsection (2B), the re-use fee notice may be combined with any other notice which is to be given under the power which enables the fee to be charged.’.

Amendment 27, page 79, line 20, at end insert—

11B Power to charge fees in relation to release of datasets for re-use

‘(1) The Secretary of State may, with the consent of the Treasury, make provision by regulations about the charging of fees by public authorities in connection with making relevant copyright works available for re-use under section 11A(2) or by virtue of section 19(2A)(c).

(2) Regulations under this section may, in particular—

(a) prescribe cases in which fees may, or may not, be charged,

(b) prescribe the amount of any fee payable or provide for any such amount to be determined in such manner as may be prescribed,

(c) prescribe, or otherwise provide for, times at which fees, or parts of fees, are payable,

(d) require the provision of information about the manner in which amounts of fees are determined,

(e) make different provision for different purposes.

(3) Regulations under this section may, in prescribing the amount of any fee payable or providing for any such amount to be determined in such manner as may be prescribed, provide for a reasonable return on investment.

(4) In this section “relevant copyright work” has the meaning given by section 11A(3).”’.

Amendment 28, page 79, line 40, at end insert—

‘(2B) The public authority may exercise any power that it has by virtue of regulations under section 11B to charge a fee in connection with making the relevant copyright work available for re-use in accordance with a requirement imposed by virtue of subsection (2A)(c).

(2C) Nothing in this section or section 11B prevents a public authority which is subject to such a requirement from exercising any power that it has by or under an enactment other than this Act to charge a fee in connection with making the relevant copyright work available for re-use.

(2D) Where a public authority intends to charge a fee (whether in accordance with regulations under section 11B or as mentioned in subsection (2C)) in connection with making a relevant copyright work available for re-use by an applicant, the authority must give the applicant a notice in writing (in this section referred to as a “re-use fee notice”) stating that a fee of an amount specified in, or determined in accordance with, the notice is to be charged by the authority in connection with complying with the requirement imposed by virtue of subsection (2A)(c).

(2E) Where a re-use fee notice has been given to the applicant, the public authority is not obliged to comply with the requirement imposed by virtue of subsection (2A)(c) while any part of the fee which is required to be paid is unpaid.

(2F) Where a public authority intends to charge a fee as mentioned in subsection (2C), the re-use fee notice may be combined with any other notice which is to be given under the power which enables the fee to be charged.’.—(James Brokenshire.)

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Clause 111


Amendments made: 29, page 87, line 14, after ‘Schedule 8’ insert

‘and section (Tax in connection with transfer schemes)’.

Amendment 30, page 88, line 4, at end insert—

‘(fa) section (Tax in connection with transfer schemes),’.

Amendment 31, page 88, line 8, leave out ‘Part 2’ and insert ‘Parts 1A, 2 and 6A’.—(James Brokenshire.)

Clause 112


Amendment made: 32, page 88, line 36, at end insert—

‘(za) sections 85 to 87 and section (Tax in connection with transfer schemes),’.—(James Brokenshire.)

Schedule 9

Consequential amendments

Amendments made: 65, page 149, line 26, at end insert—

‘House of Commons Disqualification Act 1975

A1 In Part 3 of Schedule 1 to the House of Commons Disqualification Act 1975 (other disqualifying offices) insert at the appropriate place—

“Commissioner for the Retention and Use of Biometric Material”.

Northern Ireland Assembly Disqualification Act 1975

A2 In Part 3 of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (other disqualifying offices) insert at the appropriate place—

“Commissioner for the Retention and Use of Biometric Material”.’.

Amendment 66, page 150, line 1, after ‘to’ insert ‘19,’.

Amendment 67, page 150, line 7, at end insert—

‘Part 1A

The Surveillance Camera Commissioner

House of Commons Disqualification Act 1975

2A In Part 3 of Schedule 1 to the House of Commons Disqualification Act 1975 (other disqualifying offices) insert at the appropriate place—

“Surveillance Camera Commissioner”.’.

Amendment 68, page 151, leave out lines 18 to 33 and insert—

‘(1) This section applies to an application to the sheriff for an order under section 23A or 32A.

(2) Rules of court must make provision for the purposes of ensuring that an application to which this section applies is dealt with in private and must, in particular—

(a) require the sheriff to determine an application in private,

(b) secure that any hearing is to be held in private, and

(c) ensure that notice of an application (or of any order being made) is not given to—

(i) the person to whom the authorisation or notice which is the subject of the application or order relates, or

(ii) such a person’s representatives.’.

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Amendment 69, page 151, line 36, leave out from third ‘to’ to first ‘is’ in line 37 and insert ‘which this section applies’.

Amendment 70, page 151, line 38, leave out ‘any order made under’

Amendment 79, page 154, line 26, after ‘substitute “’ insert ‘is’

Amendment 80, page 156, line 17, at end insert—

‘Terrorism Act 2006

27A In section 36 of the Terrorism Act 2006 (review of terrorism legislation)—

(a) in subsections (3) and (4) for “under this section” substitute “under subsection (2)”,

(b) in subsection (5) after “Parliament” insert “as soon as the Secretary of State is satisfied that doing so will not prejudice any criminal proceedings”,

(c) in subsection (6) for “to carry out a review under this section” substitute “under subsection (1)”, and

(d) after subsection (6) insert—

“(6A) The expenses mentioned in subsection (6) include, in particular, any expenses incurred by the person appointed under subsection (1) in ensuring that another person carries out a review of the kind mentioned in subsection (4A) and reports on it.”’.

Amendment 71, page 165, line 33, at end insert—

‘Part 6A

The Disclosure and Barring Service

Parliamentary Commissioner Act 1967

117A In Schedule 2 to the Parliamentary Commissioner Act 1967 (departments etc. subject to investigation) insert at the appropriate place—

“Disclosure and Barring Service.”

House of Commons Disqualification Act 1975

117B (1) Schedule 1 to the House of Commons Disqualification Act 1975 (disqualifying offices) is amended as follows.

(2) In Part 2 (bodies of which all members are disqualified) insert at the appropriate place—

“The Disclosure and Barring Service.”

(3) In Part 3 (other disqualifying offices) insert at the appropriate place—

“Member of the staff of the Disclosure and Barring Service.”

Northern Ireland Assembly Disqualification Act 1975

117C (1) Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (disqualifying offices) is amended as follows.

(2) In Part 2 (bodies of which all members are disqualified) insert at the appropriate place—

“The Disclosure and Barring Service.”

(3) In Part 3 (other disqualifying offices) insert at the appropriate place—

“Member of the staff of the Disclosure and Barring Service.”

Freedom of Information Act 2000

117D In Part 6 of Schedule 1 to the Freedom of Information Act 2000 (other public bodies and offices: general) insert at the appropriate place—

“The Disclosure and Barring Service.”’.—(James Brokenshire.)

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Schedule 10

Repeals and revocations

Amendments made: 72, page 167, line 23, leave out ‘Section 10(4) and (6)(d).’.

Amendment 73, page 167, line 28, leave out ‘21.’ and insert ‘19.


Section 21.’.

[ James Brokenshire.]


Amendment made: 75, line 8 leave out

‘provide for a maximum detention period of 14 days’

and insert

‘amend the maximum detention period’.—(James Brokenshire .)

Third Reading

Queen’s consent signified .

9.1 pm

The Secretary of State for the Home Department (Mrs Theresa May): I beg to move, That the Bill be now read the Third time.

The first responsibility of any Government is to keep the British public safe and free. That means protecting them from crime, terrorism and other threats, but it also means defending our democratic institutions, our liberties and our way of life. This Government are determined to cut crime and reduce the risk of terrorism, at the same time as we restore the freedoms and liberties that define British society.

Mr Cash: Will my right hon. Friend be kind enough to give way?

Mrs May: I can never resist my hon. Friend, although I give way always with a certain degree of trepidation and a suspicion that one word will always come into his question.

Mr Cash: I am grateful to the Home Secretary—and may I congratulate her on her staunch statement at the party conference on the repeal of the Human Rights Act? As she has not yet an opportunity to do so, would she like to reaffirm on the Floor of the House that she would like to see it repealed?

Mrs May: I am happy to confirm that to my hon. Friend. At the general election, Conservative Members, of course, stood on a manifesto that promised to do just that. As I have said, we will also bring forward some changes to the immigration rules to ensure what we consider to be the correct balance in the operation of article 8 of the human rights convention.

My hon. Friend the Member for Stone (Mr Cash) was trying to tempt me to go down a road that I know I should not go down any further on Third Reading of this Bill. Let me return to the point I was making about the balance between keeping the public safe and defending our liberties.

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For 13 years the previous Administration chipped away at those freedoms and liberties, and in doing so, they did not protect the public. They chipped away at the notion that a person is innocent until proven guilty. Not only did they fail to take the DNA profiles of all of those guilty of a crime; they also provided for the indefinite retention of the DNA profiles of more than 1 million innocent people. They treated more than a quarter of the whole work force—some 11 million people—as potential abusers of children and vulnerable adults, by requiring them to be monitored as part of an overbearing vetting and barring system.

The previous Government chipped away at the right to liberty by seeking to extend the maximum period of pre-charge detention to 42 and even 90 days—until forced by the will of this Parliament to settle for 28 days. They then made 28 days the norm rather than the exception. They chipped away at the historic right of trial by jury; they chipped away at the notion that people should be able to live in safety and security in their own homes by creating hundreds of new powers of entry; and they chipped away at our right to privacy by creating a number of enormous Government databases—the national identity register and ContactPoint being but the worst examples.

The Bill continues the work of this Government in repairing the damage done to our traditional freedoms and historic civil liberties, while at the same time taking a careful and proportionate approach to protecting the public. In adopting the protections of the Scottish model for the national DNA database, it strikes the right balance between protecting our communities and protecting the rights of the innocent. When people are convicted or cautioned for a recordable offence, their DNA and fingerprints will be retained indefinitely, exactly as happens now. In all cases in which DNA and fingerprints are taken on arrest, they will be subject to a speculative search so that past offenders cannot evade justice, exactly as happens now. Under this Government, criminals who leave their DNA at a crime scene will not be able to escape justice if they are arrested again.

Moreover, we are now taking the DNA of all convicted prisoners, including hundreds who were convicted for the most serious offences such as murder and rape. That is something that the last Government failed to do. In June last year, we started a programme to identify individuals in the community who have previously been convicted of either a sexual offence or homicide, and whom the last Government failed to place on the DNA database. That process has so far identified more than 13,000 people whose identities have been passed to local police forces, and we are now working with the police to find the individuals and obtain samples. When someone is not convicted of an offence, however, there will be strict limits on the period during which that person’s DNA and fingerprints can be retained. That is exactly as it should be: justice is not served, and our communities are not made safer, by the stockpiling of the DNA and fingerprints of hundreds of thousands of innocent people for year after year.

The Bill includes sensible measures to help to maintain public confidence in the use of CCTV and automatic number plate recognition systems. CCTV is a valuable crime-fighting tool, which also helps to reduce the fear of crime—we saw that most recently after the summer’s riots—but it will not be able to continue to deliver such

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benefits if cameras are perceived to be spying on communities, or if they simply do not work as they should. We saw that most recently in the west midlands, where the installation of CCTV systems without the support of the local community meant that public confidence was lost and the cause of community safety was set back. By providing for a code of practice overseen by a new surveillance camera commissioner, the Bill will help to ensure that CCTV retains public support and therefore continues to be an effective tool in fighting crime.

The Bill also applies much-needed common sense to the criminal records regime and the vetting and barring scheme. Let me make one thing absolutely clear: the protection of children and vulnerable adults is of paramount importance to this Government, and robust systems for employment vetting play a vital part in ensuring that it is provided, but tying up employers and voluntary organisations in red tape and bureaucracy does no one any good. I do not think it is sensible to force some 11 million people to register with a Government agency, and I do not really think—and I doubt that the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) really thinks—that 11 million people should be continually monitored.

There was a real danger that the very scale of the vetting and barring scheme designed by the previous Administration would create a culture of irresponsibility in which employers felt that it was not up to them to protect children or vulnerable adults in their care. Employers must take their responsibilities seriously, and when innocent people are treated like suspects, it is society that suffers.

The Bill has been much improved by the process of scrutiny undertaken by this House. I thank all the members of the Public Bill Committee for their detailed and forensic examination of it, and I thank all Members who contributed to the debates on Report.

Andrew Miller: Unfortunately we did not manage to complete our scrutiny, because of the timetabling of the Bill. One issue that was brought to my attention by Universities UK was the potential for application of the Freedom of Information Act to impede international collaboration in research. That was dealt with in the Freedom of Information (Scotland) Act 2002, and I tried to insert a parallel provision in this Bill. Will the right hon. Lady instruct the appropriate Minister to meet representatives of Universities UK to discuss the issue as a matter of urgency?

Mr Deputy Speaker (Mr Lindsay Hoyle): Order. As the hon. Gentleman knows, we are discussing the Bill as it is now, not the new clauses that were not reached.

Andrew Miller: I was trying to improve it.

Mr Deputy Speaker: I understand that, and I am sure that the hon. Gentleman has been very helpful.

Mrs May: I think the hon. Gentleman, and I take a different view on the issue he raises about scientific research and the application of freedom of information provisions. However, although we disagree, I am happy to ensure that an appropriate Minister will be available to meet Universities UK and discuss this matter with it.

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I have already paid tribute to the members of the Committee and to all Members who have contributed to our various debates on the Bill. I wish to pay particular tribute to the tireless and sterling work done by the Department’s Under-Secretaries, my hon. Friends the Members for Old Bexley and Sidcup (James Brokenshire) and for Hornsey and Wood Green (Lynne Featherstone). They have steered the Bill through its parliamentary stages with great skill—and, I must say, significant patience in dealing with all the issues that have been raised. I also thank all the officials who have worked on the Bill.

As a result of Members’ scrutiny, the Committee and subsequently the House have agreed a number of important changes to the Bill. We have clarified the circumstances in which DNA may be retained for a period where someone has been arrested for, but not charged with, a serious offence. We have further clarified the extent of regulated activity, including bringing those working with 16 and 17-year-olds within scope and making provision for statutory guidance to be issued to regulated activity providers. We have also provided for the establishment of the new disclosure and barring service to give a more efficient end-to-end service to employers and voluntary organisations. Further, we have strengthened the protection for motorists in private car parks at the same time as we have provided further help for landowners to combat unauthorised parking.

We are fortunate that in this country, it has not taken bloody wars and violent revolutions to weave into the very fabric of our society and parliamentary democracy the freedoms and liberties that we hold so dear. We take them for granted at our peril. Once lost, they are not easily regained. They need to be nurtured and protected. It is in this spirit that I wholeheartedly commend the Protection of Freedoms Bill to the House, and look forward to its safe and speedy passage through the other place.

9.12 pm

Yvette Cooper (Normanton, Pontefract and Castleford) (Lab): I join the Home Secretary in thanking all hon. Members who have toiled throughout the passage of the Bill, and pay tribute to my hon. Friend the Member for Gedling (Vernon Coaker), whom I congratulate on his appointment to the shadow Cabinet, and my hon. Friend the Member for Eltham (Clive Efford), who, conveniently, has been moved to the Department for Culture, Media and Sport just in time for the Olympics. I also thank my hon. Friend the Member for Kingston upon Hull North (Diana Johnson), who has done important work particularly on child protection, and my hon. Friend the Member for Alyn and Deeside (Mark Tami), who has kept us all in order. I thank, too, my right hon. Friend the Member for Delyn (Mr Hanson) and my hon. Friend the Member for Rhondda (Chris Bryant), who in the last couple of days have stepped in admirably to steer the debate through its final stages in this House.

There are sensible measures in the Bill that we support, such as removing old convictions for gay sex, removing restrictions on marriage, adding sensible extensions to freedom of information and putting in place tighter restrictions on the Regulation of Investigatory Powers Act 2000 and stop-and-search powers. We also welcome the action on rogue wheel clampers, but we would have preferred the Government to go further by taking further

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action on rogue ticketers. We agree, too, with the principle of moving down to 14 days of pre-charge detention. However, the Home Secretary was unwise not to have made changes as a result of the last debate, in which Members from both sides of the House who served on the Joint Committee that she set up raised concerns that the mechanism that she has put in place to deal with emergencies will be impractical and unworkable. Why did she set up a Committee if she was just going to ignore its expert views?

We have some serious and deep concerns about the Bill, however, which mean that we cannot support it tonight. We agree with making changes to child protection, especially now that Criminal Records Bureau checks can be made portable, but it is vital that as we do so, we make sure this House can reassure parents throughout the country that sensible and strong safeguards are still in place to protect their children.

The Government cannot now do that, as a result of this Bill, because they are creating serious loopholes in child protection. They have been urged to close them not just by our Front-Bench team but by the National Society for the Prevention of Cruelty to Children, Action for Children, the Children’s Society, the Government’s own Children’s Commissioner, the Scouts, the Rugby Football Union, UK Athletics and many more sports organisations. The Government have consistently ignored their advice.

I wonder how many Conservative Members realise what they voted for in the Lobby this afternoon. They voted to stop someone who has committed a sexual offence against children being automatically barred from working with them in future. Conservative Members voted today to stand up for the right of convicted child rapists not to be included on a barred list: that is what they voted for. The Bill also means that if someone who has been barred for grooming a child applies for a supervised post working with children, the organiser will not be told that they have been barred.

The Government have chosen to stand up for the privacy of people who have been barred by the experts from working with children, against the concerns of head teachers, sports organisations, children’s charities and, above all, parents who want to know that their children are safe. I say to the Home Secretary very strongly, as a parent, that parents across this country do not want to discover that a voluntary teaching assistant or a supervised sports coach who spends hours with their child has, in fact, been barred by the experts from ever working with children again, but that—thanks to the Home Secretary’s decision to protect that person’s privacy—nobody was told. That is the consequence of her Bill; it is the decision that Government Members have just voted to support.