30 Nov 2012 : Column 491

30 Nov 2012 : Column 491

House of Commons

Friday 30 November 2012

The House met at half-past Nine o’clock


[Mr Speaker in the Chair]

Mr Speaker: I have received a report from the Tellers in the No Lobby for the Division at 2.30 pm on 29 November on the amendment to the main Question. The hon. Members for Livingston (Graeme Morrice) and for Perth and North Perthshire (Pete Wishart) have informed me that the number of No votes was erroneously reported as 321, instead of 311. I will direct the Clerk to correct the numbers in the Journal accordingly. The Ayes were five and the Noes were 311.

Point of Order

9.34 am

Thomas Docherty (Dunfermline and West Fife) (Lab): On a point of order, Mr Speaker. During his statement yesterday afternoon, the Prime Minister referred to his predecessor by name, rather than by title. I understand from a number of colleagues that that has become a pattern in the past few days. I am sure that you agree that all Members are entitled to the same courtesies and respect, so is there some way of bringing that to the attention of the Government?

Mr Speaker: I am grateful to the hon. Gentleman for his point of order. It is a question not merely of drawing that to the attention of the Government, as he puts it, but of drawing it again to the attention of all Members of the House. He has already played his part in so doing, and I feel sure that his point of order and my response to it will have been widely noted.

30 Nov 2012 : Column 492

Mental Health (Discrimination) (No. 2) Bill

Consideration of Bill, not amended in the Public Bill Committee

9.35 am

Clause 2


Mr Charles Walker (Broxbourne) (Con): I beg to move amendment 1, page 1, line 9, leave out from beginning to ‘, for’ in line 10 and insert—

‘(1) In section 1 of the Juries Act 1974 (qualification for jury service)—

(a) in subsection (1), omit paragraph (c) (but not the “and” after it),

(b) omit subsection (2), and

(c) in subsection (3), for “Part 2 of the Schedule” substitute “Schedule 1”.

(2) In Schedule 1 to that Act (the title to which becomes “Persons Disqualified for Jury Service”, with the title to Part 1 becoming “Persons subject to the Mental Health Act 1983 or Mental Capacity Act 2005” and the title to Part 2 becoming “Other Persons Disqualified for Jury Service”)’.

My amendment would make a minor technical change to the amendments the Bill makes to the Juries Act 1974. It would remove the term “mentally disordered persons” from section 1 of the Act and tidy up the cross-referencing between section 1 and the list of those disqualified for jury service in schedule 1. The amendment is supported by my hon. Friend the Member for Croydon Central (Gavin Barwell).

Specifically, the references to “Mentally disordered persons” in section 1 of the 1974 Act will be removed and further provisions made in section 1 consequential to that. That will leave the section so worded as to provide that those persons listed in schedule 1 to the 1974 Act will be disqualified from jury service. The title of schedule 1 to that Act will be amended to read “Persons Disqualified for Jury Service”. The headings to parts I and II of schedule 1 are amended accordingly, from “Mentally disordered persons” to “Persons subject to the Mental Health Act 1983 or Mental Capacity Act 2005” and from “Persons disqualified” to “Other persons disqualified for jury service” respectively. The substantive change that the Bill makes to the 1974 Act, which is to remove the disqualification on service as a juror from those who voluntarily receive treatment in the community for a mental health disorder, remains the same.

Mr Kevan Jones (North Durham) (Lab): I support the amendment. It will not change the Bill’s original wording to a great extent, but the language implications are very important. We must ensure that we deal with people who suffer from mental illness without the stigma of titles, so this small amendment is important. Clause 2 is also very important. Since we started discussing the Bill, I have received numerous e-mails and correspondence about it. A solicitor wrote to me to say that although she practises in court every day, she cannot be a juror because she is currently undergoing treatment for a mental health condition. The amendment would make a small change to the language, but I think it is important

30 Nov 2012 : Column 493

for the wider debate and for the wider implications of the Bill to ensure that we end discrimination against people who suffer from mental illness.

Sir Peter Bottomley (Worthing West) (Con): I support the amendment and welcome the contribution from the hon. Member for North Durham (Mr Jones). I want to raise a point that I do not think is covered by the Bill but which is associated with the thought: whether someone who has or has had a mental health condition and who feels that they would not be capable of serving as a juror at a particular time can say so and whether that would be accepted by the court. My hon. Friend the Member for Broxbourne (Mr Walker) might not be able to answer straight away, but I would be grateful if the Minister could let me know later, perhaps in writing.

The Parliamentary Secretary, Cabinet Office (Miss Chloe Smith): I support amendment 1, tabled by my hon. Friend the Member for Broxbourne (Mr Walker). It is of a minor and technical nature and it builds on the amendments to the Juries Act 1974 under clause 2 of the Bill. The Government are happy to accept the amendment, which, although it is technical and does not affect the substance of the Bill, is very important in terms of presentation because through its inclusion the Bill will more fully reflect the intention that we all share in this House of removing legislative provisions that prevent people from participating fully in society merely because they have a mental health condition.

I am happy to confirm to my hon. Friend the Member for Worthing West (Sir Peter Bottomley) that there are indeed measures that would still allow a person called for jury service to indicate that they felt unable to carry it out. I shall be happy to provide any further information that he requires on that.

Gavin Barwell (Croydon Central) (Con): As my hon. Friend the Member for Broxbourne (Mr Walker) said, I am happy to support his amendment. I hope that he will not be embarrassed but I congratulate him on the expert way in which he described the technical effects of the amendment so clearly. Given his ability to do so, I think it is only a matter of time before he is summoned to the Front Bench. The hon. Member for North Durham (Mr Jones) clearly explained his rationale for supporting the amendment.

As I said on Second Reading, the Bill has two purposes. In certain clearly defined areas, it seeks to remove legislative provisions that prevent people from contributing to various aspects of our public life, but its wider aim is to challenge the stigma that people with mental health conditions experience in our society and to send a wider message beyond this House to society as whole. It is therefore absolutely essential to get the language right. That is why I support the amendment.

In response to my hon. Friend the Member for Worthing West (Sir Peter Bottomley), the provision that he has in mind does exist. Anyone summoned for jury service is entitled to request an excusal or deferral by completing the relevant section of the summons form. Such applications are then considered by officers of the Jury Central Summoning Bureau.

Amendment 1 agreed to.

Third Reading

30 Nov 2012 : Column 494

9.42 am

Gavin Barwell: I beg to move, That the Bill be now read the Third time.

I will speak only briefly because we had a very full debate on the Bill on Second Reading and a good debate in Committee.

I want to underline the importance of this Bill and what it is seeking to achieve. Over the period of my adult lifetime, this House has passed important legislation to deal with other areas of discrimination such as race relations, gender and sexual orientation, but on mental health there remain on the statute book several provisions that are openly stigmatising and serve no good purpose in terms of public policy. The Bill tries to bring the law of this country into the 21st century by removing those provisions so that people with mental health conditions can serve on juries and contribute to our criminal justice system. The hon. Member for North Durham (Mr Jones) referred to the nonsensical situation of people who are able to practise as solicitors in our courts of law but unable to serve on a jury.

The Bill also makes changes in relation to company directors. A provision in the model rules says that if somebody lacks capacity, as judged by their GP, they can lose their position as a company director. That is another provision relating solely to mental health that is wholly unnecessary and stigmatising.

Finally, and just as important, the Bill amends the provisions relating to a Member of Parliament who is detained under the mental health legislation for a period of six months or more. No equivalent provision exists in relation to preventing those with physical conditions from serving. Indeed, Members can be sentenced to prison for longer than six months and not lose their position in this House. The Bill deals with those issues, but I hope that it also sends a much wider message to society about the need for a change in attitudes to those with mental health conditions.

I conclude by expressing my thanks to a few people for their support on the Bill. First, I thank Lord Stevenson of Coddenham, who in the previous Session introduced a very similar Bill in the other place that sadly was unable to complete its passage owing to a lack of parliamentary time. I thank Mind, Rethink Mental Illness and the Royal College of Psychiatrists for their support and the background work that they have done on the Bill and the wider campaign that they have been running, Time to Change, which is trying to change attitudes towards those who experience mental illness.

Finally, I thank my hon. Friend the Minister and the officials in the Cabinet Office who have provided very welcome help and support, and those in my own office. Members on both sides of the House will know of the huge contribution that our staff make in supporting the work that we do as Members of this House. I am hugely grateful for all that help. I hope that today the House will see the completion of the passage of this Bill, which will be a welcome landmark statement that attitudes towards those with mental health conditions are changing. I also hope that it will have speedy passage through the other place.

30 Nov 2012 : Column 495

9.46 am

Mr Kevan Jones: I congratulate the hon. Member for Croydon Central (Gavin Barwell) not only on selecting this subject for his private Member’s Bill but on eloquently arguing its case throughout its parliamentary stages. He can rightly congratulate himself—of course, he will feel in need of some congratulations in Croydon after yesterday’s by-election result—on arguing so strongly for it. As a member of the small club of individuals who have got a private Member’s Bill passed by the House—I hope to welcome him to it—I know about the hard work that has to go into steering a Bill through this House. He was right to thank the staff, who I think will not be encouraging him to put in for the ballot in future given the amount of work that they have done.

The Bill should be supported because it gets rid of anachronistic legislative provisions. The provision on the disqualification of Members of Parliament has changed very little since 1886. The only thing that has changed is the description of who has to draw up the report for you, Mr Speaker. Possibly some of the language has been modified over the years, but in effect the same provision still applies.

Another issue is jury service. The existing provisions stigmatise those who are receiving treatment for mental illness by saying that they can practise as a solicitor or a barrister but cannot serve on a jury. That makes no sense at all. The important provision about company directorships has not received a great deal of coverage during the passage of the Bill, but it will make a difference to company directors who suffer from mental illness.

As the hon. Gentleman said, the Bill is important not only for those provisions but for the broader message that it sends out about the view of this House and of society about mental illness. I, too, pay tribute to the organisations that he mentioned, which have campaigned and worked very hard not only on making sure that there is support for the Bill but on helping to ensure that the stigma around mental health is eradicated. Will the Bill in itself do that? No, it will not—I do not think that for one minute—but I hope that it will show, as the hon. Gentleman said, that this House is determined to ensure that mental health stigma becomes a thing of the past.

It will take time to change people’s attitudes, but the debate in this House on 14 June and the passage of the Bill show that mental illness is on the political radar and will not go away. I encourage the House to continue the debate because our recent debates show that this is an issue that we should talk about. Mental illness is often not prioritised in terms of resources or in the workplace because it is not talked about. Let us hope that we will continue to talk openly about mental illness, not as something that is an impediment to people making a full contribution to public life or to their own personal life and development, but as something that, with effective treatment and support, allows individuals to make a proper and rightful contribution to society.

I thank the hon. Member for Croydon Central again for bringing the Bill forward and congratulate him on the way in which he has done so.

9.50 am

Mr Charles Walker: I just want to express a few thanks. I thank my hon. Friend the Member for Croydon Central (Gavin Barwell) for piloting the Bill so expertly

30 Nov 2012 : Column 496

through Parliament. What a fantastic job he has done! I thank Rowena Daw of the Royal College of Psychiatrists, who has been a fantastic supporter of the Bill. I thank the officials. I suspect that there has been a true Horatio among them who has worked very hard to bring the Bill to fruition. I thank the hon. Member for North Durham (Mr Jones) for his sterling support from the Opposition Benches. He, too, has been a true hero.

This is great occasion for Parliament and I am glad to have had a small walk-on part in it.

9.51 am

Philip Davies (Shipley) (Con): I, too, congratulate my hon. Friend the Member for Croydon Central (Gavin Barwell) on introducing the Bill. It would be fair to say that we do not agree on everything, but I think we agree on more than he realises. We certainly agree about the Bill. He works tirelessly not only on behalf of his constituents but on behalf of the important causes to which the Bill relates.

I also congratulate the hon. Member for North Durham (Mr Jones) and my hon. Friend the Member for Broxbourne (Mr Walker) on their work in this field. They have shown great courage in speaking out on these matters when other people may not have done so. We should all be grateful for what they do. They were both worthy recipients of awards at Dods’ The House magazine awards this week. I cannot think of two more deserving winners. This has been a red-letter week for them.

I want to tease out some points about the Bill’s three main clauses, which my hon. Friend the Member for Croydon Central could perhaps clarify. Even though I support the Bill, it is important to clarify on the record any points that may arise.

Clause 1 relates to the mental health of MPs. It abolishes section 141 of the Mental Health Act 1983, and also relates to the devolved Assemblies and Parliaments. The Cabinet Office website states, so it must be true:

“The provisions in Section 141 of the Mental Health Act 1983 replaced provisions in the Mental Health Act 1959 which itself replaced provisions in the Lunacy (Vacating of Seats) Act 1886.”

As far as I am aware, section 141 of the 1983 Act has never been used. Perhaps it is good to get rid of legislation that is anachronistic and has never been used, but we could ask whether there is any point in doing so. As I understand it, the only time that any of this legislation has been used was in 1916, when Dr Charles Leach was removed from his seat after a protracted illness. I think it is worth getting rid of this section, but I note that it has never actually been used.

I want to flag up a potential anomaly. I assure the House that, as usual on such occasions, I do not intend to speak for long. I say that for the avoidance of doubt, because I do not want anybody to be concerned. I merely wish to rattle through a few points. Under the Bill, there would be no bar on somebody standing for Parliament with a mental health condition of any kind and there would be no procedure to remove somebody who developed a condition while they were in Parliament. Does that mean that the Bill could create a situation in which the constituents of an MP end up with effectively no representation for an entire term of office because a condition is found to exist very late in an election campaign or early on in a Parliament?

30 Nov 2012 : Column 497

Mr Kevan Jones: I agree with that point, but there is no difference between that example and a Member who has a stroke and goes into a long-term vegetative state. There is no provision to remove such a Member. The Bill is just saying that mental illness should be on a par with other medical conditions.

Philip Davies: I agree with that point. I am merely using this opportunity to ensure that people know exactly what the Bill would do and to check whether there are potential anomalies. I accept the hon. Gentleman’s point that the same situation applies to people with other conditions and that there should perhaps be no difference between them.

Another anomaly that may arise is that somebody could stand for Parliament and continue as a Member of Parliament who may not be eligible to vote because of the existing regulations on voting. As this is a Third Reading debate, I must talk only about what is in the Bill, rather than what should be in the Bill, but I hope that you will allow me to say in passing, Mr Speaker, that perhaps the work of my hon. Friend the Member for Croydon Central in this field is not yet done. Although I support the Bill, it might create anomalies that we have to come back to on another occasion. I therefore hope that this is a work in progress.

I am not sure whether the provisions on juries deal with somebody who has just been released from being sectioned or who ought to have been sectioned but has not been because nobody knows about their condition. Perhaps the Bill might have been better if it had included an additional time period for such people. I am not sure whether the lack of such a period will cause a problem. The point has been well made throughout the debate that mental illness is not necessarily permanent or constant, but safeguards need to be in place to limit the exposure of those with recent conditions and those who have perhaps not been identified.

The proposals on company directors cover the model articles of association for normal companies and right-to-manage companies. Unless I have missed something, which is not impossible, there is nothing in the Bill to prevent a company from using the old provisions in its articles of association if it chooses to deviate from the model articles of association. Will companies that are already in existence be affected by the Bill? If so, and if it has an immediate effect, what will happen if a company has already invoked this particular part of their articles of association from the model version and is in the middle of proceedings? If the Bill affects only new companies, does that mean that the 2.5 million companies that are already registered with Companies House will not be covered? It is important that we deal with the model articles of association because they are the default position, but have we missed something with regard to individual articles of association? What happens if a company has only one director and they have the most serious long-term mental health condition?

I support my hon. Friend—the whole House should support and congratulate him—but there are anomalies in the Bill, and the Bill might create even more. I hope the House can tackle those in future to ensure that we do what my hon. Friend and other hon. Members intend, which is to give the best possible opportunities to people with mental health problems, who for far too long have been unfairly discriminated against under the law.

30 Nov 2012 : Column 498

10 am

Mr David Nuttall (Bury North) (Con): I add my thanks to those of my hon. Friend the Member for Shipley (Philip Davies) to my hon. Friend the Member for Croydon Central (Gavin Barwell) for his work in piloting the Bill so skilfully. As a Member who has been involved in such matters, I know how much work goes on behind the scenes to achieve what he has achieved. He deserves massive thanks from everybody. I thank him not only on my own behalf but on behalf of all the organisations and groups in my constituency, which are extremely grateful to him for his work and that of my hon. Friend the Member for Broxbourne (Mr Walker), with the support of the hon. Member for North Durham (Mr Jones).

The Bill is important because it specifically removes discrimination on grounds of mental health, but its greater importance is in the wider message it sends to society about how we should see those who, sadly, suffer from mental health problems. If the Bill goes some small way towards removing the taboo of mental health, it will have played a very important role. It will help to remove the prejudice and misunderstandings surrounding mental health, and put mental health on the same footing as other disabilities and illnesses.

I do not propose to detain the House for long. I simply wanted to put on record, as I did on Second Reading, my thanks to my hon. Friend the Member for Croydon Central for his work. I wish the Bill well in the other place and a speedy passage on to the statute book.

10.2 am

Robert Flello (Stoke-on-Trent South) (Lab): May I add my congratulations to the hon. Member for Croydon Central (Gavin Barwell) on introducing the Bill? Plenty has been said in congratulating him, but it is an important Bill. I am slightly jealous that he has got his private Member’s Bill this far and been so successful. I cannot think of a better issue to debate in the House.

I also add my congratulations, thanks and support to my hon. Friend the Member for North Durham (Mr Jones) and the hon. Member for Broxbourne (Mr Walker) on everything they have done on the Bill. It is important that we change attitudes and perceptions of mental health. It would sometimes be nice to get attitudes into the 20th century, never mind the 21st century, but it is crucial that Parliament leads the way and shows that mental health must be addressed. The changes to archaic and discriminatory laws will, I hope, send an important message to wider society that unfair discrimination has no place in modern Britain. People who suffer mental ill health have a wealth of knowledge and experience and can now play their part in public life in a number of ways. It is crucial that we do not lose knowledge and experience that can benefit and improve society.

I do not wish to detain the House. I reiterate my congratulations. I hope the Bill is the start of ensuring that 21st-century Britain is as accepting of people with mental ill health as it is of people who have sprained an ankle or broken an arm, or who have another day-to-day ailment. The number of people with mental ill health in the UK means that it is a day-to-day problem. I congratulate and thank the hon. Member for Croydon Central.

30 Nov 2012 : Column 499

10.5 am

Miss Chloe Smith: If my hon. Friend the Member for Croydon Central (Gavin Barwell) is happy for me to attempt to answer a few of the points on the detail, which were raised mainly by my hon. Friend the Member for Shipley (Philip Davies), I shall do so, and further indicate the Government’s support for the Bill.

On clause 1, my hon. Friend the Member for Shipley queried whether the House should seek to amend measures that have never been used when we could simply let them wither on the vine. It is my firm view and that of other hon. Members that we ought to tackle discriminatory and stigmatic anachronisms when we come across them. We are proud that the Bill does that.

My hon. Friend asked how constituents can be represented by an MP who comes under the provisions of the Bill. When Members suffer from a physical health problem, informal arrangements are made and support is given to them by the House and their party. The Government believe that similar arrangements should apply in cases of mental illness. He asked about eligibility to vote, and I will be happy to come back to him on that another time.

My hon. Friend asked whether there should be a post-detention time limit with regard to jury service. I can confirm that when somebody is no longer detained under the Mental Health Act 1983, they should no longer be subject to constraints. After all, they will have been assessed and deemed not to be suffering to an extent that prevents them from leading a normal life. It is possible to see the Bill in that light.

Finally, my hon. Friend asked about the provision on directorships. I can confirm that the provision applies only to companies—whether existing or new—that use model articles.

I hope that that covers my hon. Friend’s questions. It falls to me to add once again the Government’s support for the Bill. I congratulate my hon. Friend the Member for Croydon Central on promoting the Bill to this conclusion. He has done an excellent job in gaining such overwhelming support for it. I, too, am grateful to all hon. Members who have taken part in debates on the Bill, and to two hon. Members at least for their humbling openness.

I am particularly grateful to my hon. Friend the Member for Broxbourne (Mr Walker) for playing his part in making the amendment today. I can confirm that the reforms in the Bill are, in totality, an essential part of the Government’s drive to tackle the stigma and discrimination still associated with mental health. It is my hope that the work hon. Members have done on the Bill today and in other debates will encourage more sympathetic treatment, not only in law, but in the mainstream media and other places. The Bill represents a simple but fundamental change in removing discrimination against those who suffer from mental health disorders so that they can participate in public life in a number of key ways, and I commend it to the House.

10.9 am

Sir Peter Bottomley: I thank my hon. Friend the Minister for her support for the Bill. I was honoured to be asked to be a sponsor of the Bill. It would be wrong

30 Nov 2012 : Column 500

if Third Reading was completed without hon. Members recognising that some of the changes come from the Speaker’s Conference on parliamentary representation. One of the roles of the holder of your office, Mr Speaker, is to allow issues to be considered and proposals to be put that benefit the House. We should thank you and your colleagues for that.

Taking medication for being over-happy or unhappy, or in some other way affected, should be as interesting or as uninteresting as consuming pills to deal with the pain in my heel or taking statins to deal with cholesterol. Instead of some people having their behaviour or misbehaviour described in the media, and then writing articles 20 years later saying that they used to be on drugs—illegal street substances—people should be able to be open now about the fact that they are unhappy or manic, or that they have a phobia or an obsession. I am not saying that everyone should lay out all their conditions, but it should be as easy as saying, “I see you have a broken leg or carcinoma.”

I pay tribute to my hon. Friends on both sides of the House. It would be useful to have a major debate every two years on progress in mental health and mental illness. Hospital closures and accident and emergency wards matter, but each of us in our constituencies has people who are affected by unhappiness, mental health or mental illness. I pay tribute to the many people who are involved professionally and voluntarily in helping and serving them.

Perhaps I can conclude with a minor reflection on a remark made by my hon. Friend the Member for Broxbourne (Mr Walker) about the people he referred to as the “Horatios”—I think Horatia would look rather better, unless the Department has sent front people out who look rather different.

10.11 am

Gavin Barwell: With the leave of the House, I would like to respond to my hon. Friend the Member for Shipley (Philip Davies) and to make one final point. I have a very high regard for my hon. Friend. As he said, we do not agree on every issue, but he is an excellent Member of this House. He made two points and I thought it was worth making one further point in response. He asked about the value of repealing legislation if it has never been used. There is a danger with the law as it currently stands of an hon. Member with a health condition being reluctant to seek medical treatment because of the consequences—the risk of losing their job.

The Speaker’s Conference recommended that a Select Committee might look at how the wider issue of the lack of constituents’ representation if their MP has a serious mental or physical health condition is addressed beyond the informal arrangements to which the Minister referred.

Mr Kevan Jones: That is a problem because, as the Parliamentary Secretary, Cabinet Office, the hon. Member for Norwich North (Miss Smith) said, I think most parties will put informal arrangements in place, as they do for MPs who suffer from long-term physical conditions, or those who take holidays on reality TV shows in Australia.

30 Nov 2012 : Column 501

Gavin Barwell: The hon. Gentleman seeks to draw me somewhere I do not wish to go—neither intellectually nor physically, I should say, in case any of my constituents are watching. I have direct experience of the point that he and the Minister made about informal arrangements. My predecessor as the hon. Member for Croydon Central suffered some difficulties with his mental health and my hon. Friend the Member for Croydon South (Richard Ottaway) covered both his office here in this House and his surgery and other duties during that period. Those arrangements can certainly work, but from the point at which I introduced the Bill people have contacted me and made the point that the hon. Member for Shipley makes. It is well worth a Select Committee looking at those issues and deciding whether the informal arrangements are sufficient, or whether there should be other rules.

The hon. Member for North Durham (Mr Jones) teased me mildly in his remarks about the results of the Croydon North by-election. The by-election has a relevance to this issue. It was a good result for Labour and I look forward to Steve Reed taking his seat, but the swing was significantly less than in the other by-elections we have had recently and in the national opinion polls. The reason for that was the Conservative party candidate. In his gracious concession speech, Andy Stranack made the point that, as someone who suffers from cerebral palsy, he hoped that one of the lessons of his campaign was that he had not in any way not been able to run a robust, energetic, effective campaign and do the job expected of a parliamentary candidate.

That is relevant to the debate, because I want to end by saying a word or two about the hon. Member for North Durham and my hon. Friend the Member for Broxbourne (Mr Walker). Their courage, in the debate we had earlier this year on mental health, in talking about their own experiences, and in their participation in this House on this business and on other issues, demonstrates visibly that those who experience mental health difficulties are just as able as anybody else to fulfil the duties of being a Member of this House. That sends an important message and point to the country as a whole as we try to change attitudes and perceptions.

I do not want to detain the House any further, but I want to end, if the hon. Member for North Durham will forgive me, by saying something about my hon. Friend the Member for Broxbourne in particular. When my name came high up in the ballot for private Members’ Bills, I was inundated by e-mails and phone calls suggesting issues that I might like to take up. Some might have found favour with my hon. Friends on the Front Bench, and others might have been less well regarded. A key reason for choosing this issue was my hon. Friend the Member for Broxbourne. He came to my office and explained to me for about half an hour why he regarded it as being of such importance. In the two and a half years I have been in the House, I never heard anyone speak with such passion about the subject and about the effect that legislation can have. My name is on the Bill and I hope it will go on to become an Act, but one of the people who deserves enormous credit for reaching this point is my hon. Friend the Member for Broxbourne and his passion for this issue. I think that that is a fitting point on which to end my remarks.

Bill read the Third time and passed.

30 Nov 2012 : Column 502

Prisons (Property) Bill

Consideration of Bill, not amended in the Public Bill Committee

Clause 1

Power to destroy or otherwise dispose of property

10.17 am

Philip Davies (Shipley) (Con): I beg to move amendment 2, page 1, line 9, leave out ‘,’ and insert

‘or any other location that the prisoner attends while in custody,’.

Mr Speaker: With this it will be convenient to discuss the following:

Amendment 3, line 16, after ‘prison’, insert ‘or prison officer’.

Amendment 4, line 23, at end insert—

‘(d) for any unauthorised or unlawful purpose.’.

Amendment 5, page 2, line 9, at end insert

‘recycling it or donating it to any charity.’.

Amendment 6, line 12, leave out from ‘force’ to end of line 14 and insert

‘and which is held by the prison on that date;’.

Amendment 7, line 15 , leave out paragraph (b).

Amendment 8, line 17, leave out from second ‘article’ to end of line 20 and insert

‘covered by this Act if it had been in force at the time the items were seized.’.

Amendment 9, line 20, at end insert—

‘(1A) The power under subsection (1) shall not be exercisable in relation to anything which might contain or constitute evidence of a criminal offence.’.

Philip Davies: This is a rare situation for me. We have come to the second private Member’s Bill of the day, both of which I wholeheartedly support—an unusual occurrence for a Friday. I find myself in a slightly uncomfortable situation in that regard. I have tabled the amendments not to bury the Bill, but to try to improve it. It is already an excellent Bill, but it could be further strengthened. I hope to persuade my hon. Friend the Member for Pudsey (Stuart Andrew), whom I congratulate on getting the Bill to this stage, that my amendments would enhance his Bill, and I will give it my best shot.

I begin by congratulating you, Mr Speaker, on not selecting my first amendment. It is what is known, I believe, as a consequential amendment, and it suggested leaving out the word “or” and inserting a comma instead. The House would probably not have wanted to have had a Division on such a lead amendment, so I congratulate you on not indulging the House with it. The other amendments are well worthy of at least consideration.

On the disposal of unauthorised or unattributable property, clause 1 states:

“an article found inside the prison or in a prisoner escort vehicle”.

Amendment 2 suggests an addition to include:

“any other location that the prisoner attends while in custody,”

Obviously, the Bill covers the prison and prison escort vehicles—that is perfectly reasonable. I am concerned, however, about all the other places prisoners might find

30 Nov 2012 : Column 503

themselves while in custody. It would be bizarre if something was not covered because of a technicality—because the prisoner did not happen to be in prison or a prisoner escort vehicle at the time.

Sir Peter Bottomley (Worthing West) (Con): I understand my hon. Friend’s point. When I attended a hospital out-patients department on the Isle of Wight, half the people there appeared to be prisoners under escort. That is an example of precisely what he describes

Philip Davies: I am grateful to my hon. Friend. He might think it easy for me to say—now he has made the point—but I was specifically thinking of hospitals when I drew up the amendment. As he said, lots of prisoners have health problems and require medical treatment, entailing a trip either to a doctors’ surgery for an assessment or to hospital for treatment or a more detailed assessment. The last Government did an awful lot in that regard, taking forward telemedicine so that people could be seen while still in prison via video link. That was a perfectly good innovation, but it does not apply in every case. As my hon. Friend said, prisoners often have to visit hospital.

It is not just about hospitals, however; lots of prisoners go out to work on day release, if they are coming to the end of their sentence, as part of their rehabilitation. Many people in open prisons go out to work or out into other parts of society to do some rehabilitation work. As things stand, however, it seems that the Bill would not cover those people. People in custody also go to court, either to have their remand hearing considered or to have further charges put to them, and it would be bizarre if something was found while somebody was in court but was not covered by the Bill just because they happened to be in court rather than in prison.

I genuinely do not know—perhaps the Minister will tell us—how many trips are paid to hospital, how many people go out to work each day or how many court appearances are made, but I am sure there are people with better minds in this place who do know. It would help to have that information. It seems to me, however, that many people make such trips, so there might be a large loophole when prisoners are away from their prison and prisoner escort vehicle and therefore not covered by the Bill.

I am also slightly concerned about the use of the term “prisoner escort vehicle”. I wonder exactly what it covers. Again, I would not want people to get away on a technicality. We have lots of clever members of the legal profession in the House, my hon. Friend the Member for Bury North (Mr Nuttall) being one of them, and I would not want any of those clever people—much cleverer than me—to be able to find a loophole by which it could be claimed that a vehicle was not strictly speaking a “prisoner escort vehicle”. I wonder, therefore, if we have a definition of exactly what it means.

Mr David Nuttall (Bury North) (Con): My hon. Friend makes a valid point about the definition of “prisoner escort vehicle”, but I am concerned that the problem would not be dealt with by his amendment 2, on the grounds that a similarly silver-tongued lawyer might say that “location” does not include a moving vehicle.

30 Nov 2012 : Column 504

Philip Davies: I would never describe my hon. Friend as a silver-tongued lawyer—it seems to have a rather pejorative connotation—but he is certainly a clever lawyer, and I take his point. I am not a lawyer, and I do not know whether a vehicle would be a location. Again, there are finer minds in the House than mine who will clarify that point. Even if he is right, as he normally is on these matters, the much tighter definition in the amendment would still be a step forward, because it would, as my hon. Friend the Member for Worthing West (Sir Peter Bottomley) said, include areas such as hospitals, courts and other specific locations. I would like to think that my amendment also covered other vehicles, but I will let the House debate that point, if it so wishes.

In simple terms, for the duration of a prisoner’s sentence or the time they are on remand, they are in custody, so, for the purposes of the Bill, they should be treated in exactly the same way as if they were in prison, wherever they might be and whatever they happen to be doing. My amendment therefore covers any period while the prisoner is in custody, and so would deal with time spent in court and the other eventualities Time will tell whether it includes vehicles other than those deemed to be prisoner escort vehicles. I hope that my hon. Friend the Member for Pudsey will see that I am trying to help, rather than hinder the Bill’s progress.

Proposed new section 42A(2) states that an

“article which a prisoner is authorised to have in his or her possession is to be treated for the purposes of subsection (1) as not so authorised where the governor or director of the prison reasonably believes that the article is being, has been or may be used for any of the purposes mentioned in subsection (3).”

Amendment 3 would add, after “governor or director of the prison”, the words “prison officer”. I seek to make it easier for a decision to be taken on the possible unauthorised use of an item by allowing prison officers, who are most likely to have the direct intelligence about someone or something, to make those decisions. I have always believed that the people who know best are those on the ground and doing it all the time. When I worked for Asda, there was no doubt that the people on the shop floor and the checkouts were best placed to know exactly what was going right and what was going wrong in our stores. I have no doubt that in a prison the people who are best placed to know exactly what is going on are the prison officers, who deal daily with prisoners.

I was a bit concerned that if a prison governor or director always had to make the decision, one of two things could happen. Either the governor would spend a lot of his time being told little details to authorise a course of action under the Bill, or the slowness of the process or lack of involvement from the governor would hinder its effectiveness. I am sure that my hon. Friend the Member for Pudsey had neither of those scenarios in mind when he introduced his Bill. Surely, if a prison officer sees or hears something that leads him to confiscate an item on the basis of any of the Bill’s provisions, that should be more than adequate for the item then to be disposed of under the Bill. I wonder whether we are introducing too much bureaucracy by insisting that it has to be a prison governor or director.

The implication of not including prison officers is that we do not trust them to make these decisions. It would be rather unfortunate if the message went out

30 Nov 2012 : Column 505

from the House that we did not think them capable or trusted enough to make those decisions, which should be the types of decisions they take daily anyway. It would certainly improve the Bill and, I am sure, the morale of prison officers if we made it clear in the Bill that we trusted them to take such decisions and did not put too many barriers in their way. Indeed, putting up such barriers might inadvertently undermine their authority in the prison among the inmates. If the inmates thought, “Well you can’t do anything about this, so I’m not really interested in what you think,” that would be a rather unfortunate consequence of what my hon. Friend the Member for Pudsey is trying to do.

10.30 am

We come to amendment 4. [Interruption.] Does my hon. Friend the Member for Bury North wish to intervene?

Mr Nuttall indicated dissent.

Philip Davies: I was misguided in thinking that my hon. Friend momentarily wanted to intervene, but he did not. He has obviously been so persuaded by my case that he could not think of anything in amendment 4 to disagree with, as he could with amendment 3.

Proposed new section 42A of the Prison Act 1952, in clause 1, deals with

“Disposal of unauthorised or unattributable property”.

Where an article is being used for any of the purposes set out in subsection (3), it is not authorised. Those purposes include

“concealing an article which a prisoner is not authorised to have in his or her possession…causing harm to the prisoner or others…prejudicing the security or operation of the prison.”

My amendment 4 would add another category, in proposed new subsection (3)(d), which reads:

“for any unauthorised or unlawful purpose.”

Again, the amendment is designed to strengthen the reasons in the Bill for which property may be confiscated and destroyed. Perhaps it is too restricting simply to use the criteria currently set out in subsection (3). There could be circumstances where property was being used for another unlawful or unauthorised purpose, which would not be covered without my amendment. Surely we are not talking just about things that cause harm to the prisoner or prejudice the security or operation of the prison. Subsection (3)(a) refers to

“concealing an article which a prisoner is not authorised to have”,

but what if someone is caught red handed with an article that they are not concealing, but brandishing openly in front of everybody? Would we then find ourselves in the ridiculous situation where if a prisoner was hiding the article, that would be covered, but if they were brandishing it openly, that would not?

Perhaps my hon. Friend the Member for Pudsey is satisfied that everything is covered by the Bill. However, there is certainly no harm in the belt-and-braces approach adopted by my amendment. For example, what if an item was being used to facilitate the taking of drugs? That would not necessarily fall under either “concealing” an item or

“causing harm to the prisoner or others”,

30 Nov 2012 : Column 506

nor would it be

“prejudicing the security or operation of the prison”,

yet I am sure we would all want to ensure that those things were covered. My amendment would introduce a catch-all element to ensure that any property associated with any unauthorised or unlawful use could be seized and disposed of.

Amendment 5 would insert

“recycling it or donating it to any charity”

at the end of proposed new section 42A(5)(c) of the 1952 Act, as set out in clause 1. Again, I guess—[Interruption.] I am pleased to see the return of my hon. Friend the Member for Bury North, because this might be another area where he can help out, with his undoubted expertise on legal matters. As the Bill stands, proposed new subsection (5) says:

“In this section…references to disposing of an article include selling it”,

but I do not know whether the Bill is trying to say, “You can do that if you want to,” or whether that is the preferred way of dealing with such articles. In any case, if references to the disposal of an item are to include selling it, it seems perfectly worth while to include other options, including recycling things or donating them to any charity. If items could only be either destroyed or sold, that would leave out some of the things that most people would consider to be the most appropriate ways of disposing of them. If we were talking about things of particular use to a charity or things that could be recycled, why would we not want to do that?

Sir Peter Bottomley: No doubt the Minister will in time sort this issue out for us, but proposed new section 42A(1) of the 1952 Act says:

“The governor or director…may destroy or otherwise dispose of”,

so clearly there are ways of disposing with such property other than destruction, otherwise that phrase would not have been included. However, we are still left with the question, which my hon. Friend is raising, why selling is then specified. If something is not sold, the only other thing that can be done is to give it away—or perhaps leave it somewhere for someone else to steal, although if one does not want it back, I suppose that is not stealing. We await with interest to hear what my hon. Friend the Minister has to say.

Philip Davies: I am grateful to my hon. Friend. As ever, he is eagle-eyed on these matters. The point he makes about proposed new section 42A(1) is a good one, but like him, I would have thought that if “otherwise dispose of” included any other method, there would be no need for the words “selling it” in proposed new subsection 42A(5). Perhaps the Minister may like to explain that. My concern is that the Bill might encourage prisons to go down that line—it is as though that kind of behaviour is being encouraged. Personally, the behaviour I would most like to encourage is recycling or donating to charity. The things that are most likely to be caught include mobile phones, for instance, which mobile phone companies are trying to encourage us to recycle. It would be bizarre if we ended up destroying things that could otherwise be recycled.

Mr Nuttall: In drafting amendment 4, my hon. Friend has not referred specifically to a “registered charity”, but simply to a “charity”. I wonder whether he could

30 Nov 2012 : Column 507

clarify whether, in not using the word “registered”, he had in mind general good causes, which might not necessarily have formally registered as charities.

Philip Davies: My hon. Friend makes a good point. It just goes to show the value I would have gained from speaking to him before I drew up my amendments. There is certainly a lesson in there for me. Indeed, given his nature and the fact that he is so expert at looking at such details, I am rather surprised that I did not discuss my amendments with him before tabling them. He makes a good point, although he seemed to imply that I went through a certain thought process—that I considered putting down “any registered charity”, but made a conscious decision not to and instead just put down “any charity”. He is doing me far too much credit by suggesting that I went through that thought process. The fact of the matter is—as I am sure you would have well known, Madam Deputy Speaker, knowing me as you do—that I did not go through any such thought process. I merely put down the sentiment, I guess, that such items should be given to any charity. I will certainly consult my hon. Friend in future, because as ever he spots things that I always miss. If he will bear with me, I will leave that detail to one side for the moment.

We should trust the prison officers, governors and directors to decide how best to deal with the items in question. I would not want us to push them down a particular route if there was a better one available. They might wish to support a local charity, for example, and the amendment would encourage them to use their discretion as widely as possible. My suggestion on Second Reading regarding the use of eBay was mentioned in Committee. Prisons might be able to make some money from the sale of the items. Times are tough, and I would not have a problem with a prison setting up its own eBay personality to sell those items in order to make money that could be reinvested in the prison. I want to give prisons the greatest possible flexibility.

Amendment 6 would remove the words after “force” and insert the words

“and which is held by the prison on that date”

into clause 1(6)(a). As the clause stands, the power to dispose of property

“may be exercised in relation to the relevant article found before the day on which this section comes into force if the article remains unclaimed at the end of six months beginning with that day.”

I think that that is too prescriptive. I would like to give the prisons the widest possible scope, and they should not have to wait six months to dispose of an item. If they think that the prisoner should not have an item, and that it ought to be disposed of, why should we insist that they wait six months to see whether it is claimed?

I want to speed through these matters a bit more now, and I will briefly mention amendments 7 and 8. Amendment 7 would remove clause 1(6)(b), which states that the power to dispose of items

“may not otherwise be exercised in relation to an article found before that day.”

Amendment 8 would remove parts of clause 1(7) and insert the words

“covered by this Act if it had been in force at the time the items were seized.”

30 Nov 2012 : Column 508

All three amendments are trying to make the same point. As the Bill stands, it would cover only items seized after its introduction, or a limited type of item that had not been claimed six months after its introduction. That is very weak. It should be dealing with all confiscated items, not just those that have not been claimed. Whether or not they have been claimed is wholly irrelevant. It is beyond me to understand why on earth an unauthorised or illegal item should be given back to someone just because they claim it is theirs.

There are many examples of the appropriateness and correct application of this approach. A pertinent one relates to sentencing. Someone might commit a crime before a change to the sentencing guidelines, but if they fall to be sentenced after the change, they will be sentenced as per the new guideline. I am suggesting a similar approach in the Bill. It would be ironic if someone had an item confiscated after committing a crime and it was handed back because it had been confiscated before the change took place, and if that same person could go to court and be sentenced on the basis of the sentencing guidelines that pertained on the day of sentence, rather than on the day of the offence. That would be a topsy-turvy situation.

10.45 am

It is unacceptable to hand back items that have been confiscated, and the Bill should take immediate effect. That would have the added bonus of saving money straight away. There is a considerable cost involved in storing items on behalf of prisoners, as was discussed on Second Reading. Surely we do not want a prison to be a holding and collection service for prisoners’ unauthorised or illegal items. We should have no sympathy for people who are caught with things that they should not have. At that point, they should forfeit those items. Amendments 6,7 and 8 would deal with that issue, and I hope that my hon. Friend the Member for Pudsey will acknowledge that they would strengthen his Bill.

Amendment 9 relates to the “relevant article” that is to be destroyed. Clause 1(7) sets out that such articles may include cameras and sound-recording devices, and

“devices capable of transmitting or receiving images, sounds or information by electronic communications”.

The amendment would add that the power to dispose of such unauthorised articles

“shall not be exercisable in relation to anything which might contain or constitute evidence of a criminal offence.”

I want to ensure that any property that could contain vital evidence in the form of recordings or images could not inadvertently be disposed of too rapidly, without having been checked to ensure that it did not contain anything that could implicate someone in a crime. Such articles should be available for use in any internal disciplinary hearings or as evidence in a court case.

Mr Nuttall: I have been gently supportive of my hon. Friend’s amendments so far, but I have my reservations about this one. I fear that it might be used to ensure that items of property were never disposed of. There is always a chance that a device could contain evidence, even if it was not known about at the time of confiscation, and that, in six months or a year’s time, that evidence could turn out to be relevant to a crime.

30 Nov 2012 : Column 509

Philip Davies: My hon. Friend kindly says that he has been “gently supportive” of my amendments. He could have fooled me! I have heard nothing but criticism from him so far, so I would hate to think what he would have said if he had disagreed with me. I ought to be grateful that he is gently supportive. He makes a good point; we might well want to avoid enabling the scenario that he mentions. I am sure that he would acknowledge, however, that it would be a travesty if an item that contained evidence of a serious offence could no longer be used by the authorities because it had been disposed of. The prison authorities could find themselves in an embarrassing situation if the perpetrators of a serious offence had been recorded on a device, and that device had been tossed away without giving any thought to the possibility of it containing such evidence. We could all end up looking rather silly if that were to happen.

Amendment 9 would protect the data on phones, for example. If the measure looked likely to result in a significant reduction in the number of items being disposed of, it might be sufficient to say that an expert should remove all the data from the device and assess it. The device could then be disposed of.

I do not really know what happens at the moment. This is an important issue for this particular amendment. I do not know—perhaps the Minister can explain it—whether or not all illegal phones or unauthorised phones that are confiscated in prisons or any other recording devices or whatever are scoured for evidence or intelligence whenever they are confiscated. I do not know whether that is a natural practice that happens in prisons. I absolutely hope that that is what happens when these things are confiscated. I hope that we do not have some sort of ridiculous human rights law stopping prison officers and prison governors from looking into these things to see whether what they have confiscated contains any evidence. If it does already happen as a matter of course, I would be the first to concede that the amendment might not be necessary. If that is not happening, however, and if the Government are not giving out that guidance to prisons or other laws are preventing that from happening, I would like to think that my amendment is an essential safeguard to stop any particular offence going undetected.

In a nutshell, those are my amendments. I congratulate my hon. Friend the Member for Pudsey on his Bill, which I warmly support. I hope that my amendments will not be seen as trying to ruin the Bill; I hope my hon. Friend sees that I am trying to strengthen it. His heart is absolutely in the right place with this Bill. I simply think that my amendments would improve it further.

Stuart Andrew (Pudsey) (Con): I welcome the interest of my hon. Friend and constituency neighbour the Member for Shipley (Philip Davies). I have no doubt that he wants to do all he can to make sure that the Bill achieves what we all want it to achieve.

It was said on Second Reading and in Committee that this was a simple Bill—led by a simple person, I suppose—and I hope that we are not going to over-complicate it. As I say, I want the Bill to do what we set out to achieve through it. Let me go through all the points that my hon. Friend made, as I hope to persuade him that many of the legitimate issues he raised are already covered in the Bill.

30 Nov 2012 : Column 510

Beginning with amendment 2, the power already exists for these items to be confiscated wherever they may be. If a prisoner is in a hospital or at another venue as my hon. Friend described, they will, on return to prison, be searched, and if an item is found, it will be confiscated. Equally, if it is found on them in the hospital, it can be confiscated and taken back to the prison where it will be dealt with through the processes that we seek to introduce through the Bill.

Sir Peter Bottomley: On that point, proposed new subsection (1)(a) refers to

“an article found in the possession of a prisoner who is not authorised to have it in his or her possession”,

while (1)(b) refers to

“an article found inside the prison or in a prisoner escort vehicle”.

My hon. Friend may be able to assist us now, or perhaps the Minister later, to clarify why the prisoner escort vehicles provisions are sufficient to deal with the point that the amendment addresses.

Stuart Andrew: My hon. Friend is challenging me, so I am going to defer that one to the Minister. I thank him for his interest, but I am going to move on to amendment 3.

Philip Davies: Before my hon. Friend moves on, I take the point he made about my amendment 2, which was a helpful clarification. I am grateful to my hon. Friend the Member for Worthing West (Sir Peter Bottomley) for pressing him on it, but the problem is that the provisions talk about articles

“found inside the prison or in a prisoner escort vehicle”


“found in the possession of a prisoner”,

but if something is found in the possession of the prisoner in another place such as a hospital, I wonder whether that could be a potential loophole.

Stuart Andrew: As I understand it, prisoners would not be able to take such an item back into prison with them—that is the whole point. If an item is found in the prisoner’s possession in the hospital and the prisoner tries to take it back to prison with them, it will be confiscated as an unauthorised item. It would therefore be subjected to disposal and destruction.

Philip Davies: I am sorry to press my hon. Friend, but there are two remaining loopholes. The first is that some of these things are not detected by the detection units when the prisoner goes back into prison. Some of these things like BOSS—body orifice security scanner—chairs do not always work, so we cannot always be confident that these things will be found. Furthermore, if in a hospital, a prisoner could take something out and leave it for somebody else to collect outside the prison.

Stuart Andrew: The issue here is that the item can be taken from prisoners, but that the confiscation process would happen back at the prison. I believe that the provisions cover this point clearly.

Sir Peter Bottomley rose

30 Nov 2012 : Column 511

Stuart Andrew: My hon. Friend wants to intervene, so perhaps he can help me.

Sir Peter Bottomley: I think we are beginning to get closer to the issue, but the Minister will no doubt be able to sort us all out. As I pointed out before, (1)(a) talks about

“an article… in the possession of a prisoner who is not authorised to have it”.

Wherever the prisoner has such an article, it can be removed from them. On the other hand, (1)(b) refers to prison-controlled areas

“inside the prison or in a prisoner escort vehicle”,

so everything else is presumably not controlled by the prison. If the prisoner happened to be somewhere else and either leaves property there himself or it is left there for him, the escort officers may not be able to show that the item is the prisoner’s or was left for him, so they may not be able to take it. If people are trying to pass items to prisoners in a non-prison-controlled area, it should be possible for someone to say, “This item is suspicious” and something should then happen to it. My guess is that either the Minister or my hon. Friend will tell us that the item will go to the police who will judge it on its merits, and they will probably have powers of disposal.

Stuart Andrew: I think that is probably correct, but we need absolute clarification from the Minister. I see the point, but as I understand it, the processes involved are clearly dealt with in the Bill and in the guidance notes for governors that will follow implementation. Let us wait for the Minister to clarify.

Sir Peter Bottomley: On that point, we may be able to help the Minister. Amendment 9 refers to items that

“might contain or constitute evidence of a criminal offence.”

With a criminal offence carried out outside the prison or outside the prison vehicle, the article may need to be taken back by the prison, and the police may need to liaise with it. There is therefore going to be an issue about what happens in practice. It may not be essential to the Bill or to the amendment, but if we are trying to deter crime, knowing how often people in prison or under prison control obtain illegal or unauthorised substances—mobile phones or street drugs—we need to ensure that any potential evidence is taken and linked to the prisoner. I add a last statistical point. On how many occasions when a prison has illegal drugs is it recorded as a crime? If it is detected by the prison warders, it probably is not, or if it is detected by the police, it probably is. There is a degree of uncertainty regarding liaison between the two services.

Stuart Andrew: We are talking about unauthorised items here. Illegal items would be referred to the police, and there would then need to be a criminal investigation. I am grateful for my hon. Friend’s points, and I feel sure that the Minister has taken note of them and will answer them in due course.

On amendment 3, I support what my hon. Friend the Member for Shipley said. The people at the front line are often those who know the circumstances best. It is not true to say that we do not trust them. Prison officers currently have the ability and the right to confiscate items under powers given to them by the prison governor.

30 Nov 2012 : Column 512

They have the delegated authority of the governor to confiscate the item in the first place, and it is then up to the governor to decide what to do with it.

11 am

As for amendment 4, I understand my hon. Friend’s wish to strengthen the existing provision, but in my view probably the most significant point is already covered in subsection 3(c), which refers to

“prejudicing the security or operation of the prison”.

That will apply to any criminal activity, including, for instance, intimidation.

Amendment 5 relates to the question of what should be done with items that have been confiscated, which has been the subject of considerable discussion. I think we all want to ensure that, when it is possible to obtain money for them that could be given to, say, victims’ charities, we should do so, but we do not want to be too prescriptive. That is why the clause uses the words

“destroy or otherwise dispose of”.

It gives the governor the option to make the decision.

The Prison Service instructions, which will advise governors and directors about the implementation of the Act, will need to provide clear guidance on the disposal of property, which should include recycling or donating the items to charities, whether registered or otherwise. EBay has been mentioned. There is, of course, a risk that devices may contain information that we would not want others to get hold of—we all know how difficult it can be to erase everything from them—but I believe that the words “otherwise dispose of” covers the points raised by my hon. Friend.

I know that my hon. Friend the Minister will want to discuss amendments 6, 7 and 8 in a little more detail, but retrospective legislation is always liable to present obstacles to some, and I am keen to ensure that it does not impede the Bill’s progress. The six-month period provides an opportunity for someone from whom a legitimate and authorised item has been taken by another prisoner at least to appeal, and to have the appeal heard, in order to establish whether the item can be returned. My hon. Friend wonders why all the items should be got rid of on day one. The six months is a one-off, in a sense, allowing people to appeal on the basis that they have a legitimate right to be in possession of an item. Of course, if it is found that they have no such right, all the items will be destroyed. The main problem in the Prison Service at present is storing 40,000 mobile phones. If a phone has not been claimed after six months and an appeal has not been granted, it can be destroyed, and the problem—which is costing the Prison Service more than £20,000 a year—will be solved once and for all.

I agree with my hon. Friend the Member for Bury North (Mr Nuttall) that there is a danger that amendment 9 could perpetuate the mischief that we already face. It could mean that many mobile phones could not be destroyed because people might claim that they contained evidence. The last thing we want is to find ourselves in exactly the same position as before. The prospect of all those phones still having to be stored at such great cost is certainly not welcomed by the Prison Officers Association, or indeed by many of the victims’ families to whom I have spoken.

30 Nov 2012 : Column 513

I am, however, grateful to my hon. Friend the Member for Shipley for his keen interest in the Bill. As he says, we have a shared goal. It is unacceptable that, at present, prison officers and governors are powerless to destroy items that prisoners are not supposed to have anyway.

Mr Nuttall: I should say at the outset that I know that the amendments presented so ably by my hon. Friend the Member for Shipley (Philip Davies) are not in any sense wrecking amendments designed to destroy the central thrust of the Bill. Indeed, they are very much in the spirit of the Bill, and are intended to strengthen it so that it achieves the purpose that we all want it to achieve.

Let me begin with amendment 2. As we have heard, there are many reasons why a prisoner may be away from the confines of the prison. He may, for example, be visiting a hospital, or he may have been released to attend a funeral. The question has been raised of how many times a prisoner will leave the prison in the course of a year. Given that there are 85,000 people in prison, and given all the reasons why a prisoner might want to leave the prison, the number of such occasions must amount to many hundreds of thousands.

Philip Davies: As my hon. Friend knows, it is not just a question of 85,000 prisoners. Far more than 85,000 people go to prison over the course of a year. There are about 80,000 people in prison at any one time, but obviously many more thousands go to prison during the year, and all of them may at some point leave the prison for the day.

Mr Nuttall: My hon. Friend is right. There are probably 85,000 prisoners at any given moment in time, but over the course of a calendar year the number will be vastly greater. When, back in 2007, my hon. Friend the Member for Christchurch (Mr Chope) asked how drugs had got into Dorchester prison, the right hon. Member for Delyn (Mr Hanson), who was a Minister at the time, replied that in a single year there had been

“Under the current system, 405,259 releases on temporary licence”.—[Official Report, 19 June 2007; Vol. 461, c. 1253.]

There is, therefore, some evidence to support my estimate that there are some hundreds of thousands of such releases each year.

It now seems to me that the point about the definition of “prisoner escort vehicle”—I wondered whether my hon. Friend the Member for Pudsey (Stuart Andrew) would mention this—is covered by clause 1(5), which defines it as

“a vehicle used for taking a prisoner to or from a prison or other place while in custody”.

I think, on reflection, that I am satisfied that the provision is drawn widely enough to defeat any silver-tongued lawyer who might suggest that a vehicle was not, in fact, a prisoner escort vehicle. I therefore intend to support amendment 2.

I think that there is some merit in amendment 3. Those who are closest to the prisoners and to what is going on in the prison environment should be allowed to determine whether something is used or may be used for unauthorised purposes, within the terms of the Bill, instead of having to refer the matter to the governor or director of the prison. I appreciate that some may not share that view, however.

30 Nov 2012 : Column 514

Sir Peter Bottomley: I used to feel the same way as my hon. Friend, but I think that if a prison officer decides that an unauthorised item should be destroyed or disposed of, a senior manager of the prison ought to agree with that. The issue is not about whether an article is unauthorised or being used in a way that is unauthorised; it is about the disposal of the article afterwards. I am now convinced that the right approach is for a prison officer to be able to confiscate an article and for the governor or director of the prison to decide about disposal.

Mr Nuttall: My hon. Friend makes a valuable point, and he has persuaded me on it. I would be interested to know, however, whether the Minister has had any feedback on amendment 3, perhaps from the Prison Officers Association.

Amendment 4 is a sensible proposal, and I have nothing further to say on it this morning.

Amendment 5 is of considerable interest. I asked in an intervention whether my hon. Friend the Member for Shipley had deliberately not put “registered” before “charity”. Whether or not that is the case, it is the right decision, as it overcomes any bureaucratic problems that might arise over whether a local charitable organisation had gone through the registration process. Such an organisation may be in the process of registration—indeed, that is often the case. The amendment would serve to avoid long-winded discussions as to whether individuals who are doing good work should be prevented from benefiting from confiscated property. Most of this property is mobile phones and there is a considerable market in recycling them, so they have a great value, especially as nowadays most of them are, in fact, small mobile computers.

Amendment 9 addresses the question of the data on these phones. The right solution is for the data to be routinely taken off the phones and stored on a central hard disc, logged with the prisoner’s name and number. Therefore, if at any point in the future it turns out that some of that information is pertinent to an alleged offence, it can be used in evidence.

Philip Davies: I agree with my hon. Friend, but does he agree that there would be a different perspective on this question if the Minister were unable to give the assurance that these data will be routinely checked and stored? Does my hon. Friend agree that that would give some merit to my amendment that the Minister currently does not see?

11.15 am

Mr Nuttall: That is right. Our concern is that property that was disposed of might later turn out to have contained evidence that was central to securing a conviction. I am sure my hon. Friend the Member for Pudsey, the promoter of the Bill, would not want that information to be unavailable. There is a great deal of merit in having routine cleansing of phones, but only after having saved all the data contained on them on a central hard disc for possible future use.

We know from the Minister’s comments on Second Reading that 41,000 phones are currently stored, so I accept that storing these data would be a major task. We were told on Second Reading that the cost of storing the phones is £20,000 a year, and they are seized at the rate of 800 a month. This is a major problem, therefore, and there would be a great deal of merit in the

30 Nov 2012 : Column 515

Minister’s exploring the possibility of a standardised system whereby information is taken off phones and stored for future reference.

Sir Peter Bottomley: About 13 years ago I became rather conscious of what was going on in prisons. I had taken part in a campaign to help overturn the convictions and to free Ruth Wyner and John Brock, who had been working at the Wintercomfort project in Cambridge, helping the homeless. I remember helping to lead a procession across London that had the slogan, “Help the homeless: jail the social workers?” An account of these events is given in Alexander Masters’ book, “Stuart: a life lived backwards”. With the knowledge of the police, these two people were running a project for homeless people, some of whom were addicted to illegal street drugs. Another police officer found that some people were exchanging drugs on or outside the premises, and for some ludicrous reason the people running the project were prosecuted and jailed.

In jail, Ruth Wyner was asked to sign a confidentiality agreement so as to give counselling to other prisoners who were getting illegal street drugs in prison. I asked how many times each year someone in prison was detected as having used illegal street drugs. The answer was about 20,000, which is really quite high. I then asked somebody who had worked for me but who went on to work in the Prison Service how the drugs got into prison. The answer was, “Sometimes they’re thrown over the wall.”

I also refer Members to the first book Lord Archer wrote about his prison experience. It described how new prisoners, most of whom were inexperienced at crime—and at life—were sent to a high-security prison for a period, and if they were not on drugs before they went, they were often on drugs by the time they had finished their three weeks there, because the senior, experienced prisoners would arrange for the new prisoner to get their family to pay the experienced person’s family or associates outside the prison. That demonstrates why the mobile phones issue is important and why detecting unauthorised possession of mobile phones matters.

We ought to support the Bill. The question of how to deal with the amendments will be determined by the Minister’s responses to the points made by my hon. Friends the Members for Shipley (Philip Davies) and for Bury North (Mr Nuttall). I am grateful to the Bill’s promoter, my hon. Friend the Member for Pudsey (Stuart Andrew), and I wish him success with it.

We must address the underlying issue, which is that 800 mobile phones are detected a month, and many more surely go undetected. A technical fix ought to be possible, so that any use of a mobile phone in a prison is linked to the identification number of a phone, and if any phone is used that is not part of the approved list, investigations should take place and people should find out where it is. The technology cannot be that difficult. Perhaps that is how it is done anyway, and that is why the detection rate is as high as it is.

I am a great believer in helping prisoners to be rehabilitated, but if there is a currency in mobile phones in a prison, let alone in controlled or illegal drugs, we need to stop it. The Bill is about the particular issue of how one can dispose of or destroy items that are not illegal to possess but that are unauthorised in prisons. Its limited purpose is one that this House should support, and I do support it.

30 Nov 2012 : Column 516

The Parliamentary Under-Secretary of State for Justice (Mrs Helen Grant): Amendment 2 proposes an addition to proposed new section 42A(1) of the Prison Act 1952, as inserted by clause 1 of the Bill, which would extend the power of a governor or director to places outside a prison or prison escort vehicle, such as a hospital, court cells or a police station where a prisoner might be detained in custody. In some circumstances, the prisoner, although they are in custody, will not be in the custody of the governor. It would therefore not be appropriate to extend the powers in such a way. I think that deals with the question raised by my hon. Friend the Member for Worthing West (Sir Peter Bottomley) about extending the power beyond the prisoner escort vehicle.

It is already possible to remove any unauthorised items found on a prisoner while they are in custody outside the prison. Such items would be returned to the prison with the prisoner and dealt with as the prisoner re-entered the prison. The prison governor or directors could authorise the prisoner to keep the item with him or her in prison or disposal could be required. If appropriate, the governor could confiscate it and use the general power of destruction already provided in the Bill. I hope that my hon. Friend the Member for Shipley (Philip Davies) will therefore withdraw his amendment.

Amendment 3 is not necessary. Prison officers will have the power to act in the way envisaged by the amendment through the delegated authority of the prison governor. It is therefore not necessary specifically to include them in that power. In addition, “prison officer” is the term used to describe officers in a public sector prison and would not cover prison custody officers, who carry out the same function in private sector prisons. I therefore hope that my hon. Friend will not press that amendment.

The purpose of amendment 4 would appear to be to create a catch-all power to cover all property used for any unauthorised or unlawful purpose. Although I can understand my hon. Friend’s reasons for tabling the amendment, I do not believe that it is necessary. Any unauthorised item could be confiscated and destroyed under the power created in subsection (1)(a) or (b) of proposed new section 42A. Furthermore, an item used for unlawful or unauthorised purposes that would clearly prejudice the security or operation of the prison or cause harm to prisoners or others would be dealt with by proposed new subsection 3(c) or (b). I therefore hope that my hon. Friend will agree with me that the amendment is not necessary.

On amendment 5, I applaud my hon. Friend’s desire to see that confiscated property is put to good use and to ensure that charities might benefit wherever possible. The Bill already enables that. Proposed new section 42A enables a governor or director to

“destroy or otherwise dispose of”

confiscated property. My hon. Friend’s amendment is not necessary, because the phrase “otherwise dispose of” would allow the item to be recycled or donated to charity. I can assure him that the guidance given to governors and directors in the relevant Prison Service instruction will make it clear that those options are available.

The sale of property, mentioned by my hon. Friend the Member for Worthing West, would involve a financial gain for the Prison Service and has therefore been specified in the Bill. Other methods of disposal, such as

30 Nov 2012 : Column 517

recycling, do not need express provision as they are covered, as I have explained, by the expression “otherwise dispose of”.

Amendments 6,7 and 8 are the most significant and have the potential to undermine the progress of the Bill. The Bill as drafted contains a limited retrospective power and although retrospective legislation is generally not a good idea, that limited power has a specific purpose with which I am sure the House will agree. It is intended to enable the Prison Service to deal with the large number of mobile telephones held in storage. The House will be aware from previous debates on the Bill that more than 40,000 telephones are held at a cost of £20,000 a year and it is appropriate that we should take a power to deal with them. It is, after all, a criminal offence both to possess a mobile telephone in prison and to bring one into a prison. Governors and directors have options for other property that is not illegal per se. They can authorise the item, place it in central storage, require a prisoner to send it out of the prison or otherwise dispose of it. There is therefore no need for a general retrospective power to deal with such property and I hope that my hon. Friend will not press those amendments.

Amendment 9 is intended to address the ability of the Prison Service to destroy or dispose of mobile phones found in prisons. It is unlawful to possess or use a mobile phone in prison. The amendment would therefore prevent the Prison Service from disposing of them, as it is likely that every unauthorised mobile phone found in prison would contain or constitute evidence of a criminal offence. My hon. Friend asked about the checking of mobile phones and I understand that they are interrogated for evidence of criminality on confiscation. I hope that in the circumstances he will therefore agree not to press the amendment.

Mr Nuttall: The Minister has told the House that the mobile phones are interrogated. Will she briefly expand on what happens to any information that is found after they have been interrogated?

Mrs Grant: I will have to write to my hon. Friend with the precise detail on that.

11.30 am

Philip Davies: I am grateful to everybody who has contributed to the debate on the amendments, and to the Minister and my hon. Friend the Member for Pudsey (Stuart Andrew) for addressing the points that I raised.

Let me take the amendments in a rather jumbled-up order. Amendment 3 refers to “prison officer” as well as “prison”. The Minister’s explanation that the definition of “prison officer” would not include prison custody officer did not entirely convince me, because that suggests that my amendment needs to be expanded rather than left out. However, I took the point made by my hon. Friend the Member for Pudsey—my hon. Friend the Member for Worthing West (Sir Peter Bottomley) made the same point—that nothing stops a prison officer confiscating an item, and that it may be in everybody’s best interests, not least the prison officer’s, if the authority to dispose of property was taken by a senior manager

30 Nov 2012 : Column 518

or the prison governor. Like my hon. Friend the Member for Worthing West, I was much persuaded by the point made by my hon. Friend the Member for Pudsey. I am grateful to him for that.

I was reassured to a certain extent by the explanation that amendment 4 is already covered. I hope that the Minister is right that

“prejudicing the security or operation of the prison”

has exactly the same effect as,

“any unauthorised or unlawful purpose.”

I am not entirely convinced that the amendment is covered by the Bill, but I am happy to leave it and see who turns out to be right.

I am not convinced by the Minister’s explanation about amendment 5 and “otherwise dispose of”. My hon. Friend the Member for Pudsey said that he thought that the amendment might be too prescriptive, but that does not explain why the Bill includes “selling it” in the “references to disposing of”. The Minister claims that the phrase “otherwise dispose of” covers

“recycling… or donating it to any charity”,

in the amendment. Again, that does not explain the paragraph,

“references to disposing of an article include selling it”,

if the Minister claims that everything is covered by “otherwise dispose of”.

Sir Peter Bottomley: We have picked up that if the Prison Service was going to make a profit or a gain, that would need a separate provision. The item could be sold in other ways—for example, the money could be given to a charity, so that the Prison Service did not gain, but that is not being proposed. Therefore, at the risk of sounding like someone who is after a job, I would say that the Minister explained the matter quite well.

Philip Davies: My hon. Friend is obviously more easily persuaded than me, but I know that, like me, he does not do anything to try to get a job. Nobody could ever accuse him of that, and I hope that he would never accuse me of it. However, I was not persuaded because I am not sure what “otherwise dispose of” means. I am concerned that “dispose of” implies getting rid of something, perhaps by throwing it in a bin.

Stuart Andrew: The Minister clearly said that there would be a Prison Service instruction that would give guidance so that “otherwise dispose of” will include recycling or donating items to charity. That will be covered in the Prison Service instruction.

Philip Davies: I knew that if I gave my hon. Friend enough of a chance, he would come up trumps and persuade me of the merits of his case. I will take my hon. Friend’s word that the substance of the amendment will be covered in guidance to prisons to encourage them to follow that route, despite the only reference to a definition of disposal being “selling it”. He has eventually reassured me; my hon. Friend the Member for Worthing West was reassured much earlier.

I take the point that the Minister and my hon. Friend the Member for Pudsey made about amendments 6, 7 and 8. As I said at the start, I do not intend to do anything to cause the Bill any problems. If my hon. Friends say that those amendments would introduce too much controversy into the Bill, and that they may not be supported elsewhere, thus putting the measure at risk, I accept that they are not worth pursuing.

30 Nov 2012 : Column 519

On amendment 9, I am greatly reassured by the Minister’s comment that things are interrogated for evidence when they are confiscated. That is very helpful. I noted that she said that she would write to my hon. Friend the Member for Bury North (Mr Nuttall) with more detail about that matter. We thank her for that.

However, we come back to amendment 2. We had an interesting and extensive debate about what was covered. The Minister tried to make it clear that everything that amendment 2 tries to do is already covered by the Bill. I am afraid that I am not persuaded that that is the case. The Bill therefore contains a loophole that should be avoided. Even if the Minister turned out to be right and I turned out to be wrong—it certainly would not be the first time and I am sure that it will not be the last—I do not understand what harm the amendment would do. It tries to ensure that everything is covered. If the Minister thinks that it is unnecessary, it nevertheless does nothing to detract from the measure. In the worst case scenario, it would be a belt-and-braces approach. I do not want some of the loopholes that my hon. Friends the Members for Bury North and for Worthing West discussed to be left in the Bill.

My hon. Friend the Member for Pudsey has done a brilliant job in getting the measure this far. Today is probably our only chance to get it right. I cannot see anybody revisiting it ever—or at least not for many years—and I am anxious that we do not leave any loopholes in it. I therefore want to press the amendment 2 to a Division.

Question put, That the amendment be made.

The House divided:

Ayes 2, Noes 40.

Division No. 109]


11.38 am


Davies, Philip

Hollobone, Mr Philip

Tellers for the Ayes:

Mr Peter Bone


Mr David Nuttall


Aldous, Peter

Andrew, Stuart

Berger, Luciana

Boles, Nick

Bottomley, Sir Peter

Browne, Mr Jeremy

Campbell, Mr Alan

Clark, rh Greg

Creasy, Stella

Doyle-Price, Jackie

Featherstone, Lynne

Field, Mark

Fitzpatrick, Jim

Flello, Robert

Goodman, Helen

Grant, Mrs Helen

Hammond, Stephen

Hancock, Matthew

Hayes, Mr John

Heath, Mr David

Herbert, rh Nick

Jones, Graham

Jones, Mr Kevan

Kaufman, rh Sir Gerald

Laing, Mrs Eleanor

Lidington, rh Mr David

McCarthy, Kerry

Miller, Andrew

Morris, David

Murray, Sheryll

Newton, Sarah

Onwurah, Chi

Ottaway, Richard

Pincher, Christopher

Poulter, Dr Daniel

Randall, rh Mr John

Rosindell, Andrew

Timms, rh Stephen

Timpson, Mr Edward

Webb, Steve

Tellers for the Noes:

Mr Robert Syms


Nicky Morgan

Question accordingly negatived.

Third Reading

30 Nov 2012 : Column 520

11.49 am

Stuart Andrew: I beg to move, That the Bill be now read the Third time.

The process of getting the Bill through Parliament has been a steep learning curve for me, but a most enjoyable one too. I am grateful for the cross-party support that we have had. There have been many contributions during the Bill’s passage through the House which have helped us to scrutinise the detail of it. Although it is a small and, as I said earlier, simple Bill, it is important that we get it right.

Prior to 2009 unauthorised items which may have presented a threat to prison security, such as mobile phones, were seized from prisoners and destroyed, in reliance on powers contained in the Prison Rules 1999. However, in 2009 the administrative court held that governors have no authority to do that. We are now in the bizarre situation where unauthorised property can be taken from prisoners but cannot be destroyed. Instead, it must be stored until they leave prison and can claim it. Some 40,000 mobile phones are now being stored by the Prison Service, at great cost—£20,000 is spent every year to store items that prisoners know they should never have had in the first place—which is terrible.

It really is odd that we have had to introduce this Bill, but it is absolutely necessary that we do so, because the effects that possession of a mobile phone in prison can have are quite stark, as I mentioned on Second Reading. It is important to refer to a number of cases in which mobile phones have been used either to perpetrate further crime or to intimidate victims and witnesses. On Second Reading I mentioned the case of Andrew Wanogho, who was shot dead on a London street in the early hours of April 2006. Delphon Nicholas seemed to have a cast-iron alibi because he was on remand in Belmarsh prison at the time, but that did not prevent him from co-ordinating the murder by using a smuggled mobile phone.

In 2007 Ryan Lloyd was jailed for life for the murder of Liam Smith, who was shot dead outside a prison in Liverpool in 2006. Lloyd had used a contraband mobile phone to call an accomplice. In 2009 a gang leader, Nigel Ramsey, was jailed for organising from his cell in Humberside the murder of a 17-year-old. The fact is that prisoners can use mobile phones not only for social purposes but to organise crime.

Mobile phones can be used to sell drugs. When Jordan Moore found himself behind bars, he soon realised that he had a captive market of addicts and quickly worked out a way to take control and cash in on them. He used his mobile phone to operate a business from his prison cell by arranging for drugs to be thrown over the prison walls, which we heard about a moment ago.

Violent criminals, including murderers, have also been using Facebook to taunt victims and their families from behind bars. Other prisoners have maintained their criminal empires via social networking sites. Inmates are of course banned from accessing the internet, but they manage to get online by using mobile phones that have been smuggled into prisons. As my hon. Friend the Member for Bury North (Mr Nuttall) rightly pointed out, mobile phones are so much more that just phones these days; they are mini computers. Prisoners can access all the social networks out there and communicate

30 Nov 2012 : Column 521

to the wider world. In fact, in the past two years nearly 350 prisoners have been discovered posting messages on Facebook. It is likely that dozens of others are using the site without the authorities being aware of it. Javed Khan, the chief executive of Victim Support, has said:

“Offenders using Facebook from prison make a mockery of the idea that they are being punished. It adds insult to injury when they use it to intimidate victims and witnesses. Victim Support would like to see this more tightly controlled and monitored.”

I hope that the Bill will at least make that organisation happy.

Ministry of Justice figures released after a freedom of information request show that 143 Facebook profiles were removed between July 2009 and June 2010 and another 199 were removed between July 2010 and June last year. They were all closed by Facebook following investigations by prison officials. The bizarre thing is that these mobile phones will simply be taken off prisoners and stored, when frankly they should be destroyed. Statistics compiled by the National Offender Management Service show that between February 2009 and January 2010 the authorities found over 4,000 mobiles and 4,300 SIM cards in prison in England and Wales.

As well as using mobile phones themselves, many inmates charge others to use them at extortionate rates. It is a lucrative business.

Graham Jones (Hyndburn) (Lab): The hon. Gentleman suggests that the phones should be destroyed. Does he think that they should be interrogated before they are destroyed, and is that addressed in his Bill?

Stuart Andrew: I am grateful to the hon. Gentleman for that intervention. Funnily enough, we have just had this discussion. The Minister has confirmed the position, and I believe that she is going to write to my hon. Friend the Member for Bury North about the processes involved. Yes, the phones are checked for any information that might lead to any criminal convictions or be of any other use.

Graham Jones: Will that action be retrospective on the 40,000 phones that are currently held or will it apply only to those that are confiscated once the Bill is passed?

Stuart Andrew: I am pretty sure that that is absolutely correct, but I am looking to my hon. Friend the Minister for clarification; perhaps she can give a more definitive answer.

Most mobile phones now have cameras, and these have been used to take photographs of prison officers so that those on the outside can target and intimidate them. That is clearly unacceptable in this day and age.

The taunting of victims from prison is also unacceptable. We all heard about the tragedy of the killing of 16-year-old Ben Kinsella. One of his killers, Jade Braithwaite, used Facebook to taunt the victim’s family from behind bars, boasting that he was “down but not out.” For his profile picture he mocked up a T-shirt emblazoned with his face and the slogan “Free Jade Braithwaite”. It is horrible for the families to be taunted in this way.

I have had a personal experience of this through a dear constituent of mine, Lorraine Fraser. Four of the people who killed her 16-year-old son are in prison, but

30 Nov 2012 : Column 522

one of them escaped to Pakistan and has been taunting her via Facebook. I know the impact that that has. It is bad enough that she knows he is on the run in Pakistan, with the torment that that causes her, so imagine what it must be like to know that the person is in prison and able to taunt the family in this way. It is simply unacceptable.

There have been ridiculous examples where people boast about the criminal activities that they are taking part in while in prison. David Wibberley was an inmate who used his mobile phone, which had been illegally smuggled in, to boast on Facebook of smoking cannabis in prison. He posted updates on the social networking site from a prison in Cumbria, where he is serving time for the possession of the class B drug. In the posts that could easily be seen online, he boasted about “chilling” in his “pad”, “skinning up” cannabis joints and being stoned or, as he called it, “whiffed out me ’ed”. Such examples are totally unacceptable. That is why it is imperative that we do everything that we can to help those who work in the prison system.

Prison officers often report that the inmates know their rights. When officers confiscate unauthorised items, there is nothing more frustrating than the prisoners demanding that they be stored for them until their release. That is why the Prison Officers Association was very keen to support the Bill. I have received a message of support from it. I have also received messages of support from support groups for victims and their families, because they find it unbelievable that this anomaly exists. That is why I believe that the Bill is crucial.

I am grateful to Members from all parts of the House for the support that they have given the Bill so far.

12.1 pm

Philip Davies: I do not intend to detain the House for long. I just want to thank my hon. Friend the Member for Pudsey (Stuart Andrew) for bringing the Bill forward. He has done a great service to the House, and done so with the levels of charm, skill and talent that we have come to expect from him. The only bad thing about him is that he is my constituency next-door neighbour and regularly outshines me in the local area. One might say that that is not difficult, but he does it nevertheless. It shows my inadequacies as the Member of Parliament for Shipley when my constituents see such a guiding light next door.

In all seriousness, this is an important piece of legislation. It deals with a situation that my constituents, like those of my hon. Friend next door in Pudsey, are sick to the back teeth of. As they see it, the rights of prisoners seem to come ahead of the rights of everybody else. This legislation will even up the score on the side of the victims of crime and decent, law-abiding people. If the Bill completes its passage, it will give people confidence that prisoners will be treated much more appropriately than they are at the moment. That is something that we should all support.

I am sorry that my hon. Friend could not see the merit of my amendments. I maintain that the Bill would have been even better if amendment 2 had been accepted. Despite that, it is still an excellent piece of legislation of which he should be very proud. It takes great skill and it is a great honour to bring forward a piece of legislation that completes its passage through the House of Commons

30 Nov 2012 : Column 523

and, hopefully, into law. That will never happen to me, but is something that I can only dream of. My hon. Friend should be extremely proud of himself because he has done a fantastic job. He should know that many of my constituents will think that this is an extremely worthwhile piece of legislation, unlike many Bills that come before the House on a Friday.

12.3 pm

Sir Peter Bottomley: It is a pleasure to follow my hon. Friend the Member for Shipley (Philip Davies). I have gone into the private Members’ Bills ballot on 36 occasions and I have not come up once. I suppose that that is roughly right, given that there are some 650 MPs. That might be wrong, but my maths has deserted me this afternoon.

I join in the congratulations to my hon. Friend the Member for Pudsey (Stuart Andrew). It seems a bit odd that we have had to wait this long to put right the consequences of a decision by an administrative judge, but that is life. It might be worth it if the judiciary got to understand the consequences of some of the decisions that they make. Obviously, they have to judge the issues on their merits, but the consequences of their decisions ought to be one of the merits. We are trying to put right a situation that has caused a great deal of confusion.

The way in which the Bill has been prepared and presented has been admirable. If it has the blessing of my hon. Friend the Member for Shipley, it must be very good indeed.

12.4 pm

Mr Nuttall: I rise merely to thank my hon. Friend the Member for Pudsey (Stuart Andrew) for steering the Bill to Third Reading. The Bill is sponsored by Conservative Members only and does not have cross-party sponsorship, but it has nevertheless received cross-party support. On behalf of my constituents, I thank my hon. Friend for his work, and wish the Bill a speedy passage in the other place.

12.5 pm

Robert Flello (Stoke-on-Trent South) (Lab): I add my congratulations to the hon. Member for Pudsey (Stuart Andrew) on introducing the Bill, which addresses a serious issue. I do not wish to repeat the valid and sound points he raised on prisoners misusing equipment, terrorising people, and furthering their criminal activities. I, too, wish the Bill a speedy enactment, and look forward to the benefits it will bring when it is enacted and begins to address the huge problem the hon. Gentleman has described.

12.6 pm

Mrs Grant: I congratulate my hon. Friend the Member for Pudsey (Stuart Andrew) on his success in the private Member’s Bill ballot in the summer and on introducing this worthwhile measure. In promoting the Bill, he has given the House the opportunity to debate the security and good order of our prisons, which is important. The Bill was fully debated on Second Reading, and Members made some helpful contributions. It also passed successfully through Committee. Clearly, there is considerable support for it in the House.

30 Nov 2012 : Column 524

My hon. Friend explained that his Bill will enable prison governors and directors to confiscate, destroy, dispose of or sell property that prisoners should not have in their possession, including items that it would be illegal to possess in the community, such as illicit drugs; items that can threaten prison security and good order, such as mobile phones; authorised items that have been adapted to conceal illicit items; and items that have been smuggled into the prison or coerced from another prisoner. In principle, the Government believe that the objective being pursued is justified and we welcome the Bill.

Although the Bill has been debated previously, it might be helpful if I again explain the process by which prisoners’ property is managed. Prisoners’ property needs to be managed efficiently, effectively and with care. Maintaining the security and good order of the prison is paramount. Therefore, within the constraints of the prison environment, prisoners can have sufficient property in their possession as is considered necessary for their day-to-day life, and which will help them to achieve the aims of their sentence. Prisoners must also comply with the rules on what property they can have in their possession.

On Second Reading, my hon. Friend said he found his visit to Leeds prison extremely interesting. Leeds is a busy local prison. Prisoners have lots of property that they want to keep with them, including property that they brought with them at reception from court and items they have received during their period in custody. Prisoners arriving at Leeds prison—this is the case for prisoners arriving at all other prison establishments—are provided with detailed information on the items of property they can retain in their possession. That information is also displayed throughout the prison, including in residential units and the library. Prisoners should therefore be in no doubt about what they can and cannot possess while in prison. All property accompanying prisoners on entering any prison, whether they are new to custody or being transferred from another prison or other criminal justice agency, will be searched and recorded on a property record card, which is an inventory of a prisoner’s property. Depending on the item of property, prisoners will be able to keep it with them in their cell, or it will be confiscated or stored and given to them on their release.

Stored property will be kept in local storage or at the prison, or it will be sent to the Prison Service’s central storage facility. The prisoner’s property card will record where the property is held, and will be updated during the course of their imprisonment to reflect changes in its location. The property will be returned to them on their release from custody. As the House will by now appreciate, some prisoners’ property will be stored for many years. Alternatively, prisoners may send their property to a relative or a friend instead of keeping it in storage. At present, property that is left behind by a prisoner after release can be disposed of only after a year has elapsed.

Property that a prisoner can keep in their cell is known as in-possession property—property they have been authorised to have in their cell by the governor or director. What they can keep in their cell will depend on many variables, such as whether the prisoner is on remand or has been convicted and sentenced, what level of privileges they have, and, sometimes, the nature of

30 Nov 2012 : Column 525

their offence. Most prisoners will be allowed to have in their possession such items as photographs of relatives, basic toiletries and some books.

That said, the amount and type of property a prisoner can have in their possession is restricted. This is important as it aids effective searching and assists governors and directors in applying a prison’s privilege regime. Prisoners should be clear about the type of property they are allowed to retain in their possession, as lists of types of items that can be held in their cells are normally displayed in a prison’s reception areas and on wings. Prisoners are not allowed to transfer in-possession property to the ownership of other prisoners unless the governor or director is satisfied that such transfers are voluntary and for acceptable reasons. Property must not be transferred as a result of bullying or in exchange for illicit items, and transfers must not undermine good order or discipline, or, indeed, the system of granting privileges to prisoners for good behaviour. For example, prisoners who have earned the privilege of having a radio in their cell should not be allowed to transfer the radio to a prisoner who has not earned that right. If a transfer of property is authorised by the governor, it must be recorded on the appropriate property card of the prisoners concerned.

Unauthorised property is property that a prisoner has in their possession that is not recorded on their property card. It will include: items that are unlawful to possess in the community generally, such as controlled drugs and offensive weapons; items that are illegal to possess inside a prison, such as mobile phones; items that may threaten good order and discipline, such as alcohol; items that may threaten the security of the prison, such as property that has been adapted to hide illicit items; and items that may have been smuggled in to the prison by visitors, or even by throwing them over a wall.

As I have explained, prisoners may also have obtained property from another prisoner by bullying or coercion. However, there will also be situations where prisoners have transferred what I might refer to as innocuous property between themselves, but for which they have not sought prior approval of the governor or director. Such property is unauthorised, and so will not have been included on the prisoner’s property card. The current arrangement for dealing with unauthorised property is that, when discovered, the item will be confiscated unless it is noxious, in which case it will be destroyed, or unless it is, for example, an offensive weapon or controlled drug, which will be passed to the police.

Other items may be confiscated only temporarily. The consequence of this limitation is that the property has to be stored either locally or at the Prison Service’s

30 Nov 2012 : Column 526

central facility until the prisoner is released from custody. If the prisoner asks for the item to be returned to them on release, the prison must do so. This cannot be right. The historical context to the existing position is that in 2009 the administrative court decided that there was no lawful basis for prisons permanently to confiscate and destroy unauthorised property. The case before the court related to a mobile telephone. As a result, prisons are currently storing unauthorised property, as I outlined earlier. That is perverse, particularly in relation to mobile phones seized from prisoners or found within a prison and which are not items that can be lawfully possessed in prison.

I will give hon. Members an example of the lengths to which prisoners will go to smuggle in illicit items, including mobile phones, and often conceal them in authorised items of property. In January 2012, the National Offender Management Service north-west team reported a seizure by team members of three weapons at HMP Wymott. During the course of a search of prisoner accommodation, staff found three adapted slashing weapons, wrapped together in a strip of bed sheeting, wedged behind copper piping in a wing toilet. The weapons had been adapted from authorised items, namely disposable razors and toothbrush handles, a strip of bed sheeting and disposable razor blades. I hope that gives a sense of the task that prison staff face daily.

The intention behind the Bill is to provide a lawful basis for the disposal of all unauthorised property found in prisons. For the power to be effective, it needs to be retrospective in respect of certain categories of property seized prior to the Bill becoming law. The Bill is a common-sense measure. It strikes a fair balance between prisoners’ property interests and the public interest, in removing from prison and destroying property that might prejudice good order and discipline or prison security. I am sure that many ordinary people will be startled to learn that, as the law stands, jails can find items that should not be on the premises but have no power to destroy them. The Bill is an important step forward and rectifies an unacceptable anomaly. It should help build trust in the system and allow governors to run safe and secure regimes, with rules that are meaningful and enforceable. I applaud my hon. Friend the Member for Pudsey for taking up this issue, and I commend the Bill to the House and support its continuing good passage through the other place.

Question put and agreed to.

Bill accordingly read the Third time and passed.

30 Nov 2012 : Column 527

Marine Navigation (No. 2) Bill

Consideration of Bill, not amended in the Public Bill Committee

Clause 2

Pilotage exemption certificates: grant

12.18 pm

Jim Fitzpatrick (Poplar and Limehouse) (Lab): I beg to move amendment 1, page 2, line 5, leave out clause 2.

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

Amendment 2, page 2, line 7, leave out

‘a member of the crew’

and insert

‘master, first mate or senior navigating officer’.

Government amendment 12 , line 7, leave out ‘member of the crew’ and insert ‘deck officer’.

Government amendment 13, line 8, leave out

‘omit “of which he is master or first mate”’

and insert

‘for “master or first mate” substitute “a deck officer”’.

Amendment 3, line 8, leave out

‘of which he is master or first mate’

and insert

‘master, first mate or senior navigating officer’.

Amendment 4, line 9, leave out

‘a member of the crew of the ship’

and insert

‘master, first mate or senior navigating officer’.

Government amendment 14, line 10, leave out ‘member of the crew’ and insert ‘deck officer’.

Government amendment 15, line 12, leave out ‘person’ and insert ‘deck officer’.

Amendment 5,  line 12, leave out ‘person’ and insert

‘master, first mate or senior navigating officer’.

Government amendment 16,  line 12, at end insert—

‘( ) In section 31(1) (interpretation) at the appropriate place insert—

“deck officer”, in relation to a ship, includes the master and first mate;”.’.

Jim Fitzpatrick: I am delighted to be here today. This is the third time we have had to debate clause 2. On Second Reading, we raised concerns about clause 2 and the pilotage exemption certificates, and in Committee we debated amendments that detailed some of our concerns. The Minister undertook to consider those and gave us some assurances. Those assurances were accepted, and we withdrew the amendments. We are pleased, now, to have what we hope will be a final debate on clause 2. It is the only clause that causes the Opposition any concern.

As we said on Second Reading and in Committee, we support the Bill and would like to see it pass today, but that will be down to the will of the House, the assurances we receive from the hon. Member for South East Cornwall (Sheryll Murray), whom I congratulate on piloting—forgive the pun—the Bill to this point, and, obviously, the assurances that the Minister can give on our amendments.

30 Nov 2012 : Column 528

I am grateful for the opportunity to discuss the amendments in my name, including amendment 1, which the hon. Member for Shipley (Philip Davies) supports. I know that the Government take every amendment seriously—even more so when those on the Opposition Front Bench attach their names to it—but when the hon. Gentleman adds his tag it captures the Government’s attention, because they know there will be a good discussion about the amendment. Amendment 1 would delete clause 2 in its entirety, whereas our amendments 2 to 5 would amend it.

Amendment 1 registers the principle of opposition to change, based on the need for the certainty that exists at present. In previous debates I quoted from the Library note on the Bill, which outlines the history of pilot exemption certificates—and, indeed, the pilotage regulations—when it says:

“In March 1997 the Marine Accident Investigation Branch…published its findings into the grounding of the Sea Empress at Milford Haven in February 1996.”

The MAIB found that

“the initial grounding was caused by pilot error, due in part to inadequate training and experience in the pilotage of large tankers. It recommended that procedures should be developed and implemented for the effective monitoring of”

competent harbour authorities’ “standards and examination” of all pilots. That is what led to the present arrangements to ensure that vessels are piloted. That is the key issue, because any collision involving a vessel will lead to damage of the vessel or vessels and also poor infrastructure, while any subsequent pollution can have significant consequences, which we all want to avoid.

It was clear in Committee that there was support from the UK Maritime Pilots Association, which I know has been in correspondence with the hon. Member for South East Cornwall, the Minister and others. It said in an e-mail to me that clause 2

“is based on the specific commercial requirements of a small (aggregate dredging) sector of the UK shipping industry which for operational reasons is falling foul of the Working Time regulations. The net result of the clause will be to increase the risk of a serious maritime casualty within a UK port or approaches, seriously threatening: the safety of mariners and riparian communities, the safety of other shipping or vessels, ports’ infrastructures and ability to operate efficiently, environmental protection through increased risk of pollution”.

That is the UK Maritime Pilots Association’s starting point. I know that the whole House agrees that safety is a prime consideration in transport; therefore, when professional organisations raise concerns, they need to be addressed adequately. I am sure that in due course the Minister will respond in detail to the points I raise.

After the UKMPA’s e-mail there was correspondence from the officers’ representative body, Nautilus International, which said:

“It is important to state at the outset that Nautilus has been concerned for many years about the way in which PECs”—

pilot exemption certificates—

“are issued.”

Nautilus continued:

“we struggle to find any rational justification for the clause”—

clause 2—

“which would remove the existing restrictions requiring that PEC candidates should be a bona fide first mate or master.”

30 Nov 2012 : Column 529

If amendment 1 is not accepted, which is contingent on what the Minister and others add to this debate, amendments 2 to 5 would address what we believe to be an inadequacy. The Government agree that there is a deficiency, as they have joined the hon. Member for South East Cornwall to table amendments 12 to 16, which give additional detail about the appropriate officer who should be empowered to pilot a vessel, so clearly there is an issue to clarify. We propose to add the words “senior deck officer”, whereas the Government and the hon. Lady propose the words “deck officer”. We are keen to hear the Government’s logic behind that—I will return to why we would include the word “senior” in a moment.

The Transport Committee’s 2008 report referred to pilotage exemption certificates and to the amendment in the original draft Bill to amend the provision for pilotage to extend the scope of those who can hold a PEC. The report stated: