Committee stage in the Lords
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Lord BachLabour- Quote
- My Lords, on behalf of my noble friend Lord Hunt of Kings Heath, I beg to move that the House do now again resolve itself into Committee on this Bill. Moved accordingly, and, on Question, Motion agreed to. House in Committee accordingly. [The LORD SPEAKER in the Chair.] Clause 191 [Disclosure of information about convictions etc of child sex offenders to members of the public]:
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Lord Thomas of GresfordLiberal Democrat- Quote
- moved Amendment No. 175:
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Baroness Howe of IdlicoteCrossbench- Quote
- I very much support the amendment. This is one of those areas where I think many of us feel that far more time and prelegislative scrutiny should have been given because the issue brings worry and concern. As an old—and I mean old in every sense of the word—juvenile court chairman of many years, one went through the whole procedure of sending children off to approved schools. In those days, we did not know that those schools were natural gathering ground for paedophiles. It is therefore very much at the back of one’s mind. It is particularly important that the amendments are supported by both the NSPCC and Barnardo’s. That in itself gives a pretty clear indication of everyone’s concern about these areas, which are very troubling indeed. I urge the Government to think carefully about the wording and any disposition to change it. However, I would much rather urge them, as they have done on other occasions, to take back this bit of the Bill and to give it the consideration that it should be given.
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The Earl of OnslowConservative- Quote
- Two things struck me about what the noble Lord, Lord Thomas, said. One was: what happens if someone who is told not to tell consequently does tell and there is nothing that one can do about it? The other is the fact that the cat is out of the bag. We must be very careful about the lynch mob in these circumstances. We saw this in Portsmouth, and when a lot of people gathered because they got paedophilia muddled up with—
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- The Earl of OnslowConservative
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- Paediatrics—I thank your Lordships for helping me with my oratory. One must be very careful about those two things. Furthermore, as the noble Lord, Lord Thomas of Gresford, said, the vast majority of this unattractive behaviour happens in families. The noble Lord made a very strong case for a problem which the Government seem to have handled quite well up to now, so why should one change it, except in the way in which the noble Lord has urged?
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Lord MonsonCrossbench- Quote
- Although the noble Lord, Lord Thomas of Gresford, made an interesting and pretty convincing argument, at the risk of nit-picking I suggest that the grammar of his amendment—substituting “discretion” for “presumption”—is not quite right. I realise that he does not intend to press the amendment to a Division today, but I suppose he will return to it the next time around if he does not get a satisfactory answer today. When he does, perhaps it might be altered slightly.
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- A number of amendments have been tabled to Clause 191 both by the Government and by the noble Lords, Lord Kingsland and Lord Thomas of Gresford, and the noble Baroness, Lady Falkner. I venture to suggest that we share the same overall aims for the clause. We wish to ensure the effective protection of children from sex offenders while wishing to guard against the perils of inappropriate and unduly widespread disclosure, for the reasons that have been given by a number of Members of the Committee. Those aims are shared by the organisations and agencies which we consulted during the review of the protection of children from sex offenders, the conclusions of which, including the recommendation to introduce a statutory duty to consider disclosure, were welcomed by those organisations. In direct answer to the noble Lord, Lord Thomas of Gresford, this is not Megan’s law. It builds on the existing practice of controlled disclosure, and we took account of the NSPCC representations during the review and the passage of the Bill. It might be useful to give the example of an offender who is convicted of sexual assault against a child and becomes subject to the notification of requirements imposed by the Sexual Offences Act. That would place him under the management of MAPPA. The offender meets a new partner—a single mother with young children—and subsequently moves in with her. Under the notification requirements, he is obliged to inform the police of his new address, which he does. This being brought to the police’s attention triggers a risk assessment as part of the MAPPA process. It is identified that the offender poses a risk to his partner’s children who also reside at his new address and under the new duty imposed by this Bill, the MAPPA responsible authority is under a duty to consider disclosure. MAPPA has identified that there is a risk to children and concludes that disclosing information on this risk to his new partner is necessary to protect these children from serious harm. Disclosure is made in accordance with all the relevant principles to ensure that this is done sensitively and in a planned and appropriately managed way, taking account of all the risks, including to the offender. I put that in just to give a flavour of the way this would apply. We acknowledge that there are concerns about the nature of this clause, motivated particularly by the fear that it may lead to disclosure of information in inappropriate circumstances or to an unnecessarily wide extent. I wish to emphasise that this is not our aim. Our aims, as we made clear in the review, are to extend the use of controlled disclosure where it is an appropriate and necessary response to a risk of serious harm to a child or children to ensure that there is consistency—consistency is important—in the practice of disclosure and to ensure that the decision to disclose results from a formalised and auditable process. When these provisions were debated in another place, there were some concerns about the liability imposed on MAPPA authorities, for example in circumstances where they decided against disclosure. Consequently, I think it would be helpful for me to make it clear that the amendments to the Criminal Justice Act 2003, which Clause 191 will introduce, are not intended to impose liability on the MAPPA authorities for breach of their statutory duty to consider disclosure in accordance with these provisions or for a failure to disclose, despite the presumption applying. The amendments we have tabled maintain our overall aim but address concerns that aspects of this clause, as drafted, could lead to inappropriate disclosure. The amendments tabled by the noble Lord and the noble Baroness appear to be motivated by similar concerns but would undermine the need for a consistent approach to the practice of controlled disclosure and would also remove safeguards against inappropriate disclosure. Amendment No. 175 seeks to provide the Multi Agency Public Protection Arrangements authorities, commonly known as MAPPA, with the discretion to disclose information about convictions of child sex offenders to members of the public. These authorities already have this discretion and use it where appropriate in accordance with the statutory guidance. This amendment therefore would not provide further assistance to the MAPPA authorities in determining the circumstances in which information should be disclosed. Providing such assistance with the aim of ensuring consistency is the purpose of Clause 191. Amendment No. 176 seeks to remove the whole of subsection (4) of new Section 327A of the 2003 Act. Government Amendment No. 176A will remove subsection (4)(b) but we wish to retain subsection (4)(a), which indicates that the presumption to disclose arises whether or not the person to whom the information is disclosed requests the disclosure. It is important that the Bill makes it clear that the presumption to disclose does not depend on a request being made by a member of the public and that this clause relates to the proactive consideration of disclosure by MAPPA authorities while they are discharging their general duty to co-operate in the management of child sex offenders. I wish to emphasise at this stage that Clause 191 does not grant any new right to the public to receive information automatically on request. With regard to government Amendment No. 176A, the MAPPA responsible authorities already disclose to those who are not related to the child at risk, such as head teachers, landlords and leisure centre managers and it is intended that the presumption to disclosure should apply to any member of the public where disclosure to them is necessary to protect the child, whatever their connection to the child. However, as the paragraph was only intended to clarify the position rather than encourage the authorities to introduce significantly more widespread disclosure than occurs currently, we are prepared to remove this paragraph from the Bill. Amendment No. 177 would remove subsection (5)(b) of new Section 327A which provides that any MAPPA responsible authority, when making a disclosure, will be able to place conditions on the recipient to prevent that information being disclosed to others. Such conditions may well be necessary and the ability to impose these conditions will be an important safeguard against the inappropriate dissemination of information. It is necessary therefore to retain this aspect of the clause. If there is a breach of conditions in keeping information confidential, there is no specific penalty—the noble Lord, Lord Thomas of Gresford, raised this—provided in the clause, but an action can be brought for breach of confidence in the civil courts. This may result in an injunction being made. Existing communal penalties could also be available if it was felt that that was appropriate. This is mainly to put a block on people so that they understand that they should not just talk loosely about this. That is the prime reasoning behind it. We acknowledge concerns that the wording of the presumption as currently drafted could lead to unduly widespread disclosure, which was never the Government’s intention. However, we have tabled government Amendments Nos. 175A and 175B in order to address these concerns and to make clearer the circumstances in which the presumption will apply. Our amendments have been developed in consultation with the NSPCC and Barnardo’s, and address concerns that they have raised with us during the passage of the Bill. The NSPCC and Barnardo’s support these amendments and we are grateful for their contribution. If government Amendments Nos. 175A and 175B are agreed by the Committee the presumption to disclose would arise only if a child sex offender managed by a MAPPA responsible authority in a particular area poses a risk in that or any other area of causing serious harm to any particular child or children, or to children of any particular description, and the disclosure of information is necessary to protect the particular child or children, or the children of that description. This is a reasonable basis for such a presumption and will help to ensure that the MAPPA authorities have a clearer indication of the circumstances in which disclosure should be made. Government Amendment No. 177A is a technical amendment to Schedule 34, which inserts new Schedule 34A into the Criminal Justice Act 2003. It will ensure that a service conviction for an attempted or other secondary or inchoate child sexual offence is relevant for the purposes of defining a child sex offender, and determining what convictions should be disclosed under the presumption. I reiterate that the NSPCC and Barnardo’s have welcomed our amendments and they oppose Amendment No. 177. I hope that the noble Lord, the noble Baroness and other speakers will consider that our amendments address their concerns. We are not able to amend the Bill precisely as they would like, because to do so would undermine key aspects of the intention of this clause, but we believe that our amendments move in the same direction as they would wish. I hope that our amendments will persuade the noble Lord to withdraw his amendment.
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Lord Neill of BladenCrossbench- Quote
- As written, new Section 327A(1) of the Criminal Justice Act 2003, under Clause 191 of the Bill, states that the responsible authority must, “consider whether to disclose information … to a particular member of the public”. As written, new Section 327A(2) has this presumption in it. Even if that is altered in language, something along those lines will be there. I thought that I understood the Minister to say that there is no sanction for enforcing this, while under the old law mandamus a local authority could be compelled to carry out its duty. Is he saying that there is no way that any member of the public could enforce this provision and is there no criminal sanction? Is it an unenforceable “must”?
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Lord West of SpitheadLabour- Quote
- No criminal proceedings or anything can be taken against a MAPPA authority if it does not fulfil these statutory obligations. I shall have to check, but I am sure that one can look at judicial review with those sorts of authorities, but there is no other statutory punishment.
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Lord Mayhew of TwysdenConservative- Quote
- I wish to ask a question that is not intended to be a trick question and may turn out to be a silly one. What are the circumstances in which a presumption may be rebutted? I can understand a requirement that particular action should be taken, but where one comes across a presumption that it shall, one expects to see an explanation as to how that presumption may be rebutted. Perhaps that can be answered at some later time, if not today.
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- Lord West of SpitheadLabour
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- The noble and learned Lord raises an interesting point, to which I do not have an exact answer. I would like to come back in writing on that point. As I understand him, the noble and learned Lord is asking if this relates to MAPPA and whether it should rebut something, but I am not quite clear about his question.
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- Lord Mayhew of TwysdenConservative
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- Wherever a presumption is targeted, one looks to see whether there is a means by which that can be rebutted. One assumes that there can be, but at the moment—and I dare say that this is my fault—I do not see where that arises or how that is explained.
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- Lord West of SpitheadLabour
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- I think that the noble and learned Lord is probably absolutely right and that it probably is done on a case-by-case basis, but if I may I will get back to him in writing on that.
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Baroness Falkner of MargravineCrossbench- Quote
- I want to clarify the Minister’s remarks on Amendment No. 177. As I understood him, he said in response to our concerns about conditions that would be imposed on those people who were given the information that there would be no sanctions against those who breached the conditions on non-disclosure. Did the Minister intend to say that?
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- Lord West of SpitheadLabour
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- Perhaps I did not really make myself clear to the noble Baroness. If there is a breach of the conditions to keep information confidential the clause provides no specific penalty—but action can be brought for breach of confidence in the civil court, which may result in an injunction being made. Existing communal penalties could also be available. That will have to be looked at on a case-by-case basis, but primarily this amendment is to reinforce the realisation on these people that this is extremely important. We do not want this to go wider, but in those areas there could be some penalty on just that basis.
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- Lord Thomas of GresfordLiberal Democrat
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- I am grateful to the Minister for his considered reply. We are also very grateful for the way in which the Government have moved from the wide provision originally set out in Clause 191 after consulting with the organisations concerned about children. However, we have not quite got to the end of the matter at all. I take on board the criticism of the noble Lord, Lord Neill of Bladen, on the use of the word “must”; it might be better to say that the local authority or responsible authority has a duty to consider whether to disclose information. That might make the responsibility a little clearer. As for subsection (2) of new Section 327A, the noble and learned Lord, Lord Mayhew, rightly raised the difficulties in using the word “presumption”; other criticisms have been made of my English. Drafting on my knee, I wonder whether it might not be better to say that in a case mentioned in subsection (3), a responsible authority may, in its discretion, disclose information in its possession about the relevant previous convictions of the offender. I see that the noble Lord, Lord Monson, agrees with that quick drafting in order to accord with the rules of the English language. On enforcing conditions against an individual, it is not attractive to propose that the way to do that is to take them to court for breach of confidence and to obtain an injunction against them. For a person to be involved in court proceedings of that nature seems a sledgehammer approach.
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- The Earl of OnslowConservative
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- Would the very fact of going to court not also publicise the damage that has already been done? I think that we are concerned that that damage will cause the demonstrations and all those things with which we associate Megan’s law.
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- Lord Thomas of GresfordLiberal Democrat
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- That is a valid point, because only in very exceptional circumstances will the court sit in camera to consider any issue. I do not know whether it would be possible, in circumstances like these, to use initials or something that might conceal the identity of people concerned. Obviously, this issue requires further thought on all sides. For the moment, I will withdraw my amendment; I express my gratitude for some movement from the Government. It would be useful to have further conversations with Ministers to get a little nearer to a satisfactory result. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- Lord West of SpitheadLabour
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- moved Amendments Nos. 175A to 175B:
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- Lord West of SpitheadLabour
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- moved Amendment No. 176A:
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- Baroness Falkner of MargravineCrossbench
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- moved Amendment No. 177ZA:
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- Lord West of SpitheadLabour
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- I accept the spirit of this amendment and acknowledge the particular issues that arise when a MAPPA authority is considering the disclosure of information on the convictions of a child sex offender who is under the age of 18. The noble Baroness is right that this often concerns people who have been abused themselves over prolonged periods and who are extremely vulnerable. It is important that the welfare of young offenders is taken into account in these circumstances, but equally I know we all accept that the risk posed by young sex offenders to others still needs to be managed. The processes established by the existing duty to co-operate under Section 325 of the Criminal Justice Act 2003 ensure that such issues will be considered and assessed. In particular, social services and youth offending teams are under a duty to co-operate with MAPPA and will normally be expected to attend MAPPA meetings. Their involvement will help to ensure that the particular needs and welfare of the young offender are discussed when MAPPA decides whether to disclose information on that offender’s convictions to a member of the public. Any young person who becomes the subject of a disclosure would have been referred to MAPPA by the youth offending team who would be responsible for the management of that particular case and involved in the decision and the ongoing risk management plan. MAPPA does and will consider the children’s interests, as required by Article 8 of the Human Rights Act 1998. Youth offending teams should be involved in any disclosure decisions and the existing legislation clearly envisages MAPPA managing young offenders. Any young person who becomes the subject of a disclosure would, as I say, have been referred by the youth offending team. While I accept the intention of the amendment—I discussed this in some detail with my team—I did not feel it necessary to require the involvement of local safeguarding children boards. The noble Baroness has spoken very eloquently on this point and I would like to think further about it. Perhaps we can arrange a meeting before Report. I might possibly be convinced but I do not want to have unnecessary legislation in the Bill when this has already been covered. On that basis I ask the noble Baroness to withdraw the amendment.
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- Baroness Falkner of MargravineCrossbench
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- As the noble Lord recognised, our concern is to ensure that the safeguards are adequate. While we understand that the youth offending teams would bear in mind mitigating circumstances in making a decision about disclosure, we welcome the Minister’s idea of considering this matter further and going into some examples that we might have of how the system would operate. On that basis, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 191, as amended, agreed to. Schedule 34 [Section 327A of the Criminal Justice Act 2003: meaning of “child sex offence”]:
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- Lord BachLabour
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- moved Amendment No. 177A:
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Lord HenleyConservative- Quote
- moved Amendment No. 177AA:
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Baroness Miller of Chilthorne DomerLiberal Democrat- Quote
- Our general approach to this group of amendments is that we would like education to be used as the first weapon in the fight against children smoking and would prefer that further criminalisation of sections of the community was adopted as an absolute fall-back position. There is a lot of sense in the probing that the Conservative Front Bench is undertaking in this amendment. I am sure that this measure would pose less of a problem to larger retailers as they have more personnel overseeing this area and many more policies in place. However, we are concerned about small shopkeepers. Although they should not break the law and sell tobacco to underage customers, it is essential that they should, as a minimum procedure, be properly notified of the measure. We should bear in mind that they often comprise one-man bands trying to do a thousand different jobs. This is a necessary probing amendment. We certainly support it more than we do one or two others that we shall discuss shortly.
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Lord Graham of EdmontonLabour- Quote
- I declare an interest as an officer of the All-Party Parliamentary Retail Industry Group, which is supported by the retail consortium of which the Co-operative movement is a member. I have a declared interest there which I readily admit. One has to bear in mind that the representations that have been made, for instance by the retail consortium, represent 90 per cent of retail sales in this country. The Government should explain why they are not prepared to give due weight to, or why they should put aside lightly, the views of a body of that size. I am told that the relevant figure in connection with the Association of Convenience Stores is over 30,000. The noble Baroness on the Liberal Benches rightly pointed out that it is comparatively easy for the very large supermarkets, if they are found guilty of enabling these sales, to subject the individual who is alleged to have agreed to the sale in question to some stricture. However, as regards a small business—of which there are still very many—one has to be reasonably fair. The amendment moved by the noble Lord, Lord Henley, strikes me as sensible. Retailers are sensitive about their responsibilities as regards the sale of not only tobacco but alcohol. I hope the Minister will comment on comparability of treatment in these matters. I understand that guidance is to be issued on how effect will be given to this. The Minister will be well aware that guidance has no relevance in law; it is guidance. Therefore, some trading standards officers may operate under the guidance and some may not. Then you have a situation where small shops which trade fairly and legally fall by the wayside for one reason or another and are not treated in the same way as other retailers. I am certain that the law-abiding small trader whose attention is drawn to a dereliction will be quick off the mark to put it right, because his livelihood is at stake. Tobacco sales figure much larger for some shops than for others, but tobacco accounts for a sizeable proportion of sales even in big supermarkets. The Minister needs to take account of that. As far as I am concerned, the Government are right to respond to the general public’s plea that something should be done about the sale of alcohol and tobacco, but they also have a responsibility to recognise that it is sometimes not the fault of the retailer. Dawn Primarolo, the Minister for Public Health, has said that there is little evidence that the underage purchasing of tobacco is widespread. If it is not widespread, it is present. It is right that government should bring forward some sanction. I have no disagreement with the two manners under which the retailer is punished. Two of the three strikes which may be applied may come at the beginning of the two-year period, and the other might not take place until towards the end, but the whole of the two-year period is under review. That is inequitable and unfair. The Minister should take from this debate the genuine desire of the retail industry not only to comply with the law but to help the Minister to make good law. Most retailers are not only good citizens but good members of the community and the public. They do not want to see rogue traders deliberately and underhandedly aid and abet the purchase of tobacco by the underage—or even by those of age who purchase for the underage—and get away with it. I support the amendments in general and look forward to hearing what the Minister has to say.
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- Lord BachLabour
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- I am grateful to noble Lords who spoke to Amendment No. 177A, which draws attention to the provisions on the sale of tobacco. The Government believe that more needs to be done to tackle the problem of underage smoking. Children still have far too easy access to cigarettes. In a recent survey, less than a quarter of 11 to 15 year-olds who tried to buy cigarettes from small shops found it difficult to do so. We need to do more to educate young children in this regard, but we also need to do more to encourage retailers to comply with the law on the age of sale and prevent the sale to children and young teenagers of a product which, as the Committee well knows, can cause lifetime addiction, disabling illness and, too often, premature death. That is why we have introduced Clause 194—to enable magistrates to impose orders on retailers prohibiting the sale of tobacco for up to one year for persistent flouting of the law and restricting the sale of tobacco to people under the minimum age of 18. These orders are intended only for the most serious cases, let me make that clear. There will need to be three proven instances of breaking the law before trading standards officers can apply for a banning order. At least one of these must be a conviction that supports the application for the order. That will mean, in practice, that such an order will affect only those retailers who repeatedly flout the law and have been proven to do so through failed test purchases supervised by trading standards officers. The point has rightly been made that the vast majority of small retailers are law abiding and perform a wonderful service for their local communities. Of course, it is for trading standards in the various local authorities to apply the law as they see fit. They are advised by their local authority body, LACORS, to do so with a light touch and not always to move to prosecution at the very first instance. That is why we intend that the noble Lord’s objective should be achieved in comprehensive guidance on how trading standards should respond to this particular wrong. Although my noble friend Lord Graham makes a point about differences in trading standards between different areas, we hope the guidance will be accepted by trading standards across the board, I hope the Committee will welcome the provision. Of course we recognise that noble Lords have a more than legitimate concern that it should be delivered fairly, particularly for small retailers. If a legitimate retailer has trained his staff not to sell tobacco to people under 18, he will have a legitimate interest in knowing whether a rogue member of staff has breached the law. We understand why the amendment has been tabled and why it proposes a notification requirement. We support the introduction of such a requirement but believe that it should be delivered through guidance and not in the Bill. The tobacco provisions will be subject to the guidelines for implementation which, as I said, will be drafted by the Local Authorities Coordinators of Regulatory Services in consultation with retailers.
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- Lord Graham of EdmontonLabour
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- Will the Minister deal with my point that trading standards officers who receive evidence and are satisfied that a prosecution would be right often take time to formulate their procedures for the court? The amendment would provide that that advice and guidance—or that intention—should be conveyed quickly to the retailer. If the proposed guidance provides for that, it will partially meet the point, because trading standards officers will in practice be advised by the Government to immediately inform the shopkeeper that there has been a dereliction. That would go some way towards what we want.
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- Lord BachLabour
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- Although I understand that that is what the guidance will do, it is subject to consultation with all interested parties and I cannot guarantee what it will say. Certainly our view is that it should go close to saying that there should be early notification to retailers if it is thought that they have sold to underage children. We believe that working through guidance will allow time for consultation on the details of notification requests and provide for a more flexible process than a statutory notification requirement would. The amendment proposes an unrealistic and expensive obligation on trading standards that could divert some of their limited resources from their core functions, which is to prevent the sale of tobacco and alcohol to young people, one of the points made by the noble Baroness, Lady Miller. We think that an absolute duty to notify within 14 days would impose an obligation to trace and contact everyone performing a management function for a premises. That could be very difficult, expensive and impracticable to fulfil. It will not always be possible to identify and contact everyone working in a management position for a tobacco retailer within 14 days of an offence being committed; sometimes they are at one remove, but at big stores they could be much removed. We think that guidance is a much more appropriate way of addressing this issue. It is also not common to put this sort of amendment into primary legislation. I therefore hope the noble Lord will be satisfied with the offer and undertaking I have given.
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- Lord HenleyConservative
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- It would be churlish of me not to thank the noble Lord for giving me at least some of what I asked for. However, I found his closing remarks fairly extraordinary—and the look on the face of the noble Lord, Lord Graham of Edmonton, implied that he found them extraordinary as well. To suggest that 14 days is not long enough to notify all those in the management of a small corner shop, in particular, seems extraordinary.
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- Lord BachLabour
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- Is the noble Lord suggesting that the statute should distinguish small retailers from large supermarkets? If so, I would be grateful to know how he would plan to do that.
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- Lord HenleyConservative
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- No, I was not suggesting that. The noble Lord and I know perfectly well that the problem is more likely to apply to the smaller shops. Getting hold of their management would be relatively easy. Getting hold of the management of a large supermarket is also pretty straightforward—one just goes into the supermarket and asks to see the manager. That is another matter. I am grateful for the noble Lord’s offer of guidance. I still do not understand why this matter cannot be dealt with in statute. As the statute currently stands, it would be possible for an overzealous trading standards officer, no doubt trying to meet some target probably imposed by central government, to build up his record by not notifying the shop about the offence being committed. In due course, that shop would find itself prosecuted on the third occasion, not aware that it had committed offences on earlier occasions. The noble Lord says that those offences will have to be proven offences and that, in most cases, there had been a conviction. However, he also made it clear that there could be occasions when there had not been a conviction; that is, when he was tried for the third offence, they could show that he had committed offences on the earlier occasions. It would be more satisfactory, and more in keeping with natural justice, if the shop was notified on the first occasion so that it could improve the training of its staff and ensure that such offences did not happen again. I am sure the Minister will agree that, in the main, it is better to pursue an educative approach of that sort rather than add to the number of those acquiring criminal convictions when there would have been no need to do so if the proper approach had been pursued earlier. I am nevertheless grateful that the Minister has said that guidance will be available. Will he let me know in due course whether we might see some of that guidance before the Bill reaches the statute book, or can he offer at least some intelligence on when it is likely to appear? If he can respond now, I shall withdraw the amendment afterwards.
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- Lord BachLabour
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- If Parliament passes these measures, it is not likely that they will come into force until April 2009. The guidance, having been consulted on, will obviously be published before then. I cannot say that it will be done before the Bill passes through Parliament, as that would be completely unrealistic, but it will be done before the legislation comes into force. The proposed implementation date is April 2009 and the guidance will be available by then.
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- Lord Graham of EdmontonLabour
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- If the voices of 90 per cent of the retail trade and 33,000 small traders combine to disagree with the guidance when it is issued, can we have an assurance that reflection will be the name of the game?
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- Lord BachLabour
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- I want to give my noble friend whatever assurance I can. I do not know whether I can give him the actual assurance he seeks, but the consultation will be with the retailers—small retailers, and no doubt large ones too—as well as with other sections of the community. Remember the evil that we are trying to deal with: the sale of killer tobacco to young children.
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- Lord HenleyConservative
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- I will try to bear this in mind in April 2009, although we may have other things on our minds at that stage. In the mean time, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- Lord HenleyConservative
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- moved Amendment No. 177AB:
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- Baroness Miller of Chilthorne DomerLiberal Democrat
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- The amendments that we have more problems supporting are those that suggest that the ban should stay in place for only three months. The ban is to be imposed only after persistent offences and in a way that is very clear for members of the public, but how are the public to know that a ban has been imposed? I see nothing in the Bill about notices having to be issued. Will it just be left to the shopkeeper to say that a ban is in place? Three months is a difficult period, because it is just about long enough for the public to know that there is a ban before the shop is able to sell tobacco again. If the shopkeeper persists and offends again, there will be another three-month ban. The Government are more correct here in going for a more understandable period. I hear what the noble Lord, Lord Henley, says: it will be a huge burden on shopkeepers who fall foul of the law, albeit that they have knowingly transgressed that law, as will be the level of fine, which we shall discuss shortly. I want to check how the Government arrived at that tariff for this offence. In legislating about this, we are talking about children, but there is still a bit of a schizophrenic attitude in society in general—I am not suggesting that it is here this afternoon. The view is that smoking is very bad but, on the other hand, the Treasury and the shopkeeper must still be allowed to profit from it. Adults are still allowed to smoke if they want. I think that we are half way through an evolutionary process and it is right that we should take some time over it. I emphasise the need for more money to be spent on education, so that the children do not go to the shops in the first place. That is where local authorities come in. Enforcement will come down to LACORS. Trading standards officers are a bunch of people for whom I have tremendous admiration. They have a pretty unenviable job. Usually, they tread a fine line in trying to enforce things and doing so with the consent of the community, whether on the sale of tobacco or on other things. In the regulation of markets, it is difficult to keep the retailers onside. In this case, education must be the front line and I would expect local authorities to take that to heart. These measures will always be a last resort.
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- Lord BachLabour
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- I am grateful to the noble Lord, Lord Henley, for moving the amendment and to the noble Baroness for speaking to it. Of course, the amendments were tabled out of legitimate concern that the new measures should be implemented fairly. However, I hope to persuade the Committee that, while the amendments have obviously been tabled for the best of reasons, they would seriously undermine the aim of the new orders, which is to deter unscrupulous retailers from selling tobacco to children and young people aged under 18. This is a serious sanction for a serious breach of the law. Amendments Nos. 177AB and 177AD would reduce the maximum penalty for persistently flouting the law and selling tobacco to under-18s from a one-year ban on selling tobacco to a three-month ban. That would have the unfortunate effect of removing the deterrent against unscrupulous retailers selling tobacco to children. If the maximum penalty were only three months, an unscrupulous retailer might consider that he could afford to risk a restricted premises closure whereby the premises would be closed for up to three months for the sale of tobacco, after which he might resume business and continue to sell tobacco to people under the minimum age. While we appreciate the potential impact of a lengthy order on retailers, we are determined to deter all shops, whether large, small or medium, from selling tobacco to young people. Of course, the orders will be reserved for serious cases where the law is persistently being flouted. Twelve months is the maximum period for a ban on the sale of tobacco, not the minimum or the guidance period. Magistrates will determine the actual length of a ban in light of all the circumstances of the individual case. It is perhaps common sense to say that the 12-month period is likely to be reserved for the most serious cases. Amendments Nos. 177AC and 177AE would reduce, from two years to three months, the period over which persistent breaches of the law on selling tobacco to under-18s have to be demonstrated. Before an order is given, at least three tobacco offences must have been committed over the two years up to the date of the order. In practice, offences relating to the sale of tobacco to under-18s are typically demonstrated through test purchasing for compliance with age of sale for tobacco, undertaken by trading standards. On average, such test purchasing takes place for each tobacco retailer about once or twice a year. Also, it will take some time from the commission of an offence to the date when the magistrates’ court considers the order. The amendments would reduce the period over which that persistent sale must be proven to such a short period—from two years to three months—that the proposed orders would not be usable. Given that test purchasing takes place only once or twice a year, it would simply not be possible to demonstrate that three offences had taken place over a three-month period. We think that the two amendments would kill off the legislation. New orders would become entirely ineffective; they would become a laughing stock. I hope that the noble Lord will reconsider his amendments and be kind enough not to press them this afternoon. The noble Baroness, Lady Miller, has twice mentioned the primacy of education for young people. On behalf of the Government, I agree that it is absolutely crucial. National communications campaigns, which she will know about, have been highly effective and are continuing. They encourage people of all ages to stop smoking—of course, it remains legal for adults to smoke if they choose to do so—and they outline the dangers of smoking to people’s health. The noble Baroness will know that there is a lot of education going on for young people; there can hardly be too much. We agree that it is the primary way of stopping young people smoking—certainly not the measure that may or may not be proposed in the next amendment.
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- Lord HenleyConservative
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- I thank the noble Lord for his response. I have only one question. Was I right in saying that there is similar provision for alcohol sales, but the reference period is three months rather than two years? Would it not be fairer to have the same provision for sales of tobacco as for sales of alcohol?
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- I apologise for not answering that. I do not know the answer to that question, but no doubt I can find out by the time we complete our discussions on Clause 194. I will come back to the noble Lord on that.
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- Lord HenleyConservative
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- I thank the noble Lord for that. There is no desperate hurry; he can write to me in due course to let me know. I may come back to the issue on Report. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendments Nos. 177AC to 177AF not moved.]
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- Lord HenleyConservative
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- moved Amendment No. 177AG:
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- The Earl of OnslowConservative
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- No, please let us not make any more offences. There are enough of them cluttering up the children’s courts without more. No, no, no.
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Lady Saltoun of AbernethyCrossbench- Quote
- May I ask the noble Lord, Lord Henley, for a little clarification? Proposed new subsection (2) states that, “subsection (1) does not apply where the individual buys or attempts to buy the tobacco or cigarette papers at the request of … a constable, or … a weights and measures inspector”. Does that mean that a constable or a weights and measures inspector may ask a child to go into a shop and buy cigarettes or tobacco papers in order for him to see whether he can catch the shopkeeper out selling them?
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- Lord MonsonCrossbench
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- I, too, find subsection (2) rather sinister because it seems to encourage agent provocateurs. Subsection (3) would catch parents who bought a packet of cigarettes and who were seen later to offer one to their 17 year-old son or daughter. Surely that is not what the noble Lord, Lord Henley, intends; I would be interested to hear from him on that.
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Baroness Finlay of LlandaffCrossbench- Quote
- I would never want to be seen to speak up on behalf on anyone trying to sell tobacco to those who are under age, but I am a little confused over the amendment’s wording and I would be grateful for clarification on subsection (3). I note that the proposed offence is about buying or attempting, “to buy tobacco on behalf of the individual aged under 18”. I hope that that has been deliberate in omitting cigarette papers because there is a very particular position for young people who play musical instruments. Cigarette papers are very useful for drying the keys of flutes, clarinets, saxophones and other woodwind instruments during a concert. Apparently, they dry them better than anything else, so musicians will often slip a cigarette paper in a damp key to it get to function better. I hope that parents and, indeed, music teachers would be able to buy cigarette papers for such purposes and would not be committing an offence because it is in the interests of children’s education. Although I do not want cigarettes sold in any way to young people—we know the danger for young people in starting smoking—if they acquire a criminal record they get labelled and stigmatised later on. I have some concerns about giving to a teenager who may be at an experimental stage a criminal record that sticks on their file for life. They have a record of an offence and I am concerned about the issues involved with joining a group of people who have a criminal record. There may be an unintended adverse consequence from a proposal that is designed to stop young people getting cigarettes.
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- Lord MonsonCrossbench
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- Does my noble friend agree that another adverse consequence is that the young person in question would have their DNA compulsorily taken?
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- Baroness Finlay of LlandaffCrossbench
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- I disagree; the police need a DNA database.
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- Baroness Howe of IdlicoteCrossbench
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- I rather side with the view of the noble Earl, Lord Onslow; that is, that it would not be right to add more offences at this stage for these purposes, with agent provocateurs—whether a constable or whoever—trying to catch out some wretched young person. I also endorse the comment of my noble friend Lady Finlay about children of that age not being criminalised; there clearly is an opportunity for them to grow up, and they do so at slightly different speeds. I hope that the Minister and the Government will not go down this road.
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- The Earl of OnslowConservative
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- I will briefly make an extra comment: this is the first time that the Government have had any support on any amendment in the Bill.
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- Lord BachLabour
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- The noble Earl does not yet know what I am going to say.
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- Baroness Miller of Chilthorne DomerLiberal Democrat
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- I thought that the noble Lord, Lord Henley, was very brave when he moved his amendment. Indeed, he said as much in his opening comments. I will not detain the Committee for long. The noble Earl, Lord Onslow, put it succinctly when he said no, no, no; we thoroughly agree with that. We do not want to criminalise more young people. The amendment talks about buying tobacco on behalf of individuals aged under 18; people who are just 18 might be doing that for their younger friends and we will have a swathe of criminals before we know it. I absolutely agree with the comments on the DNA database, which we do not support. People will go through their life with a criminal record on the DNA database that cannot be removed unless the chief constable says so, which he almost never does. I simply come back to the fact that it is a matter of education. I could not disagree more with the amendment.
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Baroness Carnegy of LourConservative- Quote
- I am not sure that education works very well in this matter. The more you tell young people not to smoke, the more they do it, especially if teachers do it. I am therefore a little cynical about that. It is extremely difficult and we must struggle with it. It is extremely important that we stop them smoking, but it is not quite as easy as noble Lords seems to think. I should say to my noble friend Lord Henley that tobacconist friends of mine tell me that it is extremely difficult to know who is and who is not a child, and that an enormous number of 18 and 19 year-olds come in looking rather elderly and buy tobacco for young people. The problem is not easily solved. We would have a lot of new criminals of 18 and 19, which we probably do not want. I do not know what the Minister will say. I do not like to undermine the yeoman efforts of my noble friend on the Front Bench to improve the Bill, but he is on slightly shaky ground here.
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- Baroness Miller of Chilthorne DomerLiberal Democrat
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- I must comment on the noble Baroness’s remarks on education. The Speaker of your Lordships’ House has a wonderful outreach programme, which has meant that I have gone to lots of schools recently. However, the evidence, which is not mine—it goes much wider than that—is that if you tell young people simply not to do something or make it criminal, such as speeding, they tend to still do it. Indeed, it is sometimes much more exciting to do it. When you tell them why they should not do it, they start to take notice.
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- Lord BachLabour
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- It is perhaps not surprising that the Committee shows great interest in this important social problem. I am delighted that so many noble Lords have taken part in the debate on these amendments, or, if they have not taken part, are present to listen to it. Before I deal with the amendment, I shall come back to the alcohol point that the noble Lord, Lord Henley, mentioned in our debate on the previous amendment. Alcohol test purchases are much more frequent than tobacco test purchases, so three months is reasonable for alcohol, whereas it would not be reasonable for the much less frequent test purchases of tobacco. Amendment No. 177AG would make it a criminal offence for someone under 18 to buy or attempt to buy tobacco, or for an adult to buy or attempt to buy tobacco on behalf of someone under 18. We believe that criminalising young people who attempt to buy tobacco is not the best way to go about reducing the number of children who smoke, and is not in the best interests of young people themselves. It is far better to discourage children from smoking in the first place and to help young smokers to quit than to criminalise them. Our aim is to do everything possible to discourage young people from wanting to smoke by promoting, as the noble Baroness, Lady Miller, has just told the Committee, the health benefits of not taking up the habit when young. It is also important to try to help children who have taken up smoking—there are many of them—to quit. To achieve this, we are encouraging young people to get help from the NHS Stop Smoking Service. We are also making available nicotine replacement therapy to teenagers on prescription. Nor do we think that making an offence of purchasing tobacco by someone under 18 would be likely to be effective. I was delighted to see those who have quite rightly complained many times during this long Committee at the Government for introducing new offences, or for not doing enough to decriminalise young people’s behaviour, get to their feet. I would have been disappointed if the noble Earl, Lord Onslow, and many others in the Committee had not got to their feet to make the points that they have made.
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- Lord HenleyConservative
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- I cannot say I received overwhelming support for this amendment. As I made clear earlier, I am always rather loath to introduce new offences in government Bills. After that experience I will refrain from introducing any new offences for some considerable time. I acquired one fascinating piece of information from the noble Baroness, Lady Finlay of Llandaff, about the use of cigarette papers, which incidentally would be covered in Clause 194—page 139, line 29. My amendment merely replicates what is in the Bill. Perhaps the Government would want to look at the sale of cigarette papers in their own drafting of Clause 194. However, having acquired that information, the best thing that I can do is, on behalf of all flautists, saxophonists and others, beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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Lord Faulkner of WorcesterLabour- Quote
- moved Amendment No. 177B:
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- Lord MonsonCrossbench
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- The noble Lord, Lord Faulkner, and I have crossed swords over tobacco on many occasions in the past two or three years, so he may be surprised to hear that I have no quarrel, in principle, with his amendment—in principle, that is—although I wonder whether one year is sufficiently long to evaluate the success of the new legislation. Two years might be better. However, I am puzzled by the wording at the end of the noble Lord’s amendment. It refers to, “tobacco offences being committed against persons under the age of 18”. Supposing that one were to substitute “alcohol” for “tobacco”; if you heard somebody talk about an alcohol offence being committed against someone under 18, you would assume that that referred to drunken yobs launching unprovoked assaults on innocent teenagers. Such wording would not, however, be used to describe somebody selling a can of lager to those teenagers. Would it not be simpler if the noble Lord’s amendment referred simply to preventing tobacco or tobacco products being sold to persons aged under 18?
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- Baroness Miller of Chilthorne DomerLiberal Democrat
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- As is so often the case, the noble Lord, Lord Faulkner, has come up with an interesting and sensible idea that has merit. I was struck by the YouGov poll that showed such widespread public support—I think that it was 87 per cent—for the idea of a licensing regime for tobacco. That would be logical, as being licensed means that your staff are trained in requiring ID cards, assessing people’s ages and all that comes with that. When we think of the training in food handling needed for even a small shop to sell just a couple of food items—the certificates on food handling, and so on—it is extraordinary that when we come, as the noble Lord said, to selling a product with far greater health implications, one could walk in as a shop assistant and just sell it over the counter. There are many implications behind what the noble Lord says. As for the retailers, if we are to move forward by working out the best way of doing this in conjunction with both them and trading standards officers, then this is a practical way to progress that argument.
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- Baroness Finlay of LlandaffCrossbench
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- I do not wish to prolong the debate, as the noble Lord, Lord Faulkner, has most eloquently said most of the things that needed to be said. To emphasise his point, 82 per cent of adult smokers started as teenagers. It is during the teens that the addictive potential seems to be, physiologically, at its greatest, which is why all of the Government’s initiatives against teenage smoking are so important. The amendment, and its idea of reporting back, would give the opportunity for trading standards officers and those in the law enforcement process, such as magistrates, to feed back formally. In your Lordships’ House, we sometimes feel that we could do with feedback on how some new legislation is working. Perhaps we should formally collect the data. At the moment we put down Questions only to find that people have to scurry around trying to pull data together from lots of different sources. If this amendment were accepted, it would allow prospective collection of data that would then allow reporting back. That would be much less costly than a series of parliamentary Questions put down in a year’s time, with people scurrying around to pull data together.
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- Baroness Howe of IdlicoteCrossbench
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- I also very much support the amendment. All of the briefing we have had from ASH and others makes the situation clear. We do not have the facts and figures. If we have those in a year’s time, we may want to extend it a bit longer than that. However, initially, it will provide a helpful check on what will have been achieved at that stage. Of all the figures on the age at which you start smoking and the damage it does to you, the one that sticks in my mind is that, if you start smoking before the age of 15, your risk of lung cancer is at least doubled. That alone should make us think twice, if not four times, about any of these areas. I backed the rise in the age for purchasing tobacco from 16 to 18 so I very much support the amendment.
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- Baroness Carnegy of LourConservative
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- Above all, on this important problem, we have to change the fashion among teenagers for smoking. That will take time. It will not happen in a year but that does not mean that the amendment is a bad idea. Collecting the data within a reasonable length of time will be useful, although a year may not be long enough—I do not know enough about the technicalities. However, it is the fashion that has to change. We all know that teenagers spread fashions among themselves and that it is still very fashionable to smoke among many of them. That is why our education process, although useful, is not the end of the story. The teenagers themselves have got to change their minds about what it is fun and cool to do. At the moment, it is still cool for many to smoke. I hope that, gradually—through government measures, what is said in Parliament and, above all, through what is written in teenage magazines—the fashion will change. Then, we shall scotch the problem, but not until then.
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- The Earl of OnslowConservative
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- It is worth recalling how things have changed enormously in relation to tobacco over the past 50 years. When I went to Aden as a soldier in 1959, we were told that, if someone was wounded, we should give him a cup of tea, a cigarette and jam some morphine into him. Today, the concept of the medical profession advising people to have cigarettes is incomprehensible. Things have changed enormously. There is merit in what the noble Lord, Lord Faulkner, said, but we must go on solely by persuasion, persuasion, persuasion. I think it is a filthy habit but do not see why people should not do it. We must try and persuade them not to.
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- Lord BachLabour
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- I am grateful to my noble friend Lord Faulkner for his amendment and to all noble Lords who have spoken to it. I pay tribute to my noble friend for his constant work on this subject over many years. He talked about today being No Smoking Day. It is also Budget Day and measures have been taken on this that should also please him. He made a good point about retailers—quite rightly, we have had important debates on them. However, every time a retailer sells tobacco to under-18s, it is an offence to law-abiding retailers who do not. Therefore, it is for their benefit as well. We recognise that noble Lords are legitimately concerned that this proposal should be delivered in an effective and fair manner. I remind the Committee that we take the problem of under-age smoking very seriously. Noble Lords should have no doubt that we are working hard to make this policy a success. Before addressing the amendment itself, I should like to say a few words about positive licensing. The noble Baroness, Lady Miller, made some interesting points in that regard as did my noble friend in moving his amendment. Two years ago we consulted widely on this issue, and the majority of respondents supported a negative licensing system. While we agree that there would be some specific benefits in having a positive licensing system, as outlined by the noble Baroness, there would be additional bureaucratic burdens on local authorities and retailers that would outweigh those benefits. A positive licensing system would require prospective tobacco retailers to apply for a local authority licence before they could sell tobacco products, and retailers found to be persistently breaking the law on underage sales would have their licences removed either on a temporary or on a permanent basis. Under the negative licensing system that we are adopting, retailers are free to sell tobacco but can lose their right to do so under a court-imposed order. This is not a closed subject, of course, but for the moment we think that we are right to go down this path. A negative licensing scheme creates a powerful incentive for retailers to comply with the law on the age of sale without requiring a new and extensive bureaucracy to support it. However, I have no doubt that this debate will continue. This amendment would require the Government to report to Parliament within a year of commencement about the effectiveness of arrangements preventing the illegal sale of tobacco to persons under the age of 18. No doubt noble Lords would bring their customary thoroughness to scrutinising the effectiveness of this policy, but we are not sure that the amendment is an effective means of achieving it. As the noble Lord, Lord Monson, said, one year is not a realistic period in which to judge the effectiveness of the new system. Noble Lords will recall that the threshold for applications for the new orders will be high: at least three proven instances of non-compliance with the law, at least one of which must be a conviction; and even if a retailer has flouted the law, it will take some time to reach the threshold, particularly if fair and adequate notice is to be given to that business. An order can be made only where three episodes of non-compliance are demonstrated over a two-year period. As I have already told the Committee, the law is not expected to come into force until April 2009 so the result of a review in 2010 would suggest that the new orders were not being used a great deal for the obvious reason that compliance with the law is judged over a two-year period. I do not think that that would be of great assistance to the House in scrutinising this crucial area of policy. However, we understand very well the concern that lies behind the amendment. While we do not think that an inflexible statutory requirement to report to Parliament in a set period would be the best way forward, we believe that noble Lords should have access to full information about the success of this policy. I can therefore assure the Committee that the Department of Health intends to monitor these new measures carefully and report back to Parliament once their effects have become clear. Given that the period over which compliance is judged is two years, it is unlikely to report before 2011, but of course that does not stop noble Lords and Members of another place bringing up this subject in the mean time, which no doubt they will do. The types of information to be covered by the report might include the number of restricted premises and sales orders imposed, the number of prosecutions under the 1933 Act and the number of fixed penalty notices for the sale of tobacco to people under the minimum age. It might include the prevalence of smoking among young people, the number of those under the minimum age who attempt to buy tobacco from retailers, and the difficulty they encounter in making a purchase. That is reported annually in smoking, drinking and drug use surveys, as well as the number of failed test purchases. So I hope that the information that my noble friend is concerned that we should discuss will be before Parliament, but a year from April 2009 is too soon for the data to be as useful as they might be. For these reasons, and thanking him for the amendment, I would ask that he withdraw it.
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- Lord Faulkner of WorcesterLabour
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- I am a little overwhelmed by the degree of support for the amendment from all parts of the Committee, including from my old friend the noble Lord, Lord Monson, who quite rightly said that the wording is not perfect. I accept that immediately. If I were to continue with the amendment, I would talk to him about changing it. However, in view of the undertaking that my noble friend has given about a review after two years, I do not intend to do that. I would like to impress on the Government the importance of making it clear to trading standards officers and magistrates that the sale of tobacco to children and under-18s is a serious offence. It causes social mischief and creates a health hazard. The message has to go out from the Department of Health that this is unacceptable and that the department wants to see it stopped. Unless we can deal with the problem before people become addicted to this dreadful drug, the prevalence of tobacco will continue to be at a high level. In thanking everybody who took part in the debate and taking on board the assurances given by my noble friend, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 194 agreed to. Clause 195 agreed to. Schedule 35 [Amendments to armed forces legislation]:
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- Lord BachLabour
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- moved Amendment No. 177C:
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- Lord Thomas of GresfordLiberal Democrat
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- The Minister may recall that I was involved in the passage of the Armed Forces Bill. I declare an interest as chairman of the Association of Military Court Advocates. During the passage of that Bill, we asked that military law be rather more comprehensible. The number of amendments here to an Act that is only a year or two old is such that any practitioner will find it very difficult to understand where military law now stands. Will the Minister consider what steps can be taken to produce a loose-leaf volume containing all the amendments that are made to the Act?
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- That seems an extremely reasonable request. I would like to come back to the noble Lord when I have been able to talk to officials about what may be the best thing to do. On Question, amendment agreed to.
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- Lord BachLabour
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- moved Amendments Nos. 177D to 177N:
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- Lord BachLabour
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- moved Amendment No. 177P:
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- Lord BachLabour
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- moved Amendments Nos. 177Q to 178ZZA:
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- Lord BachLabour
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- moved Amendment No. 178ZA:
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- Lord BachLabour
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- moved Amendment No. 178A:
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- Lord BachLabour
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- moved Amendments Nos. 178AA to 180:
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- Lord BachLabour
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- moved Amendments Nos. 180ZZA to 180ZA:
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- Lord BachLabour
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- moved Amendments Nos. 180A to 180F:
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- Lord BachLabour
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- moved Amendment No. 180G:
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- Lord BachLabour
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- moved Amendments Nos. 181 to 184ZA:
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- 17:30
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- View in Hansard ↗
- Speaker
- Lord BachLabour
- Quote
- moved Amendment No. 184A:
- Time
- 17:30
- Source
- View in Hansard ↗
- Speaker
- Lord BachLabour
- Quote
- moved Amendment No. 185:
- Time
- 17:30
- Source
- View in Hansard ↗