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Policing and Crime Bill

Volume 492: debated on Tuesday 19 May 2009

[Relevant Documents: The Tenth Report from the Joint Committee on Human Rights, Legislative Scrutiny: Policing and Crime Bill, HC 395, and the Fifteenth Report from the Committee, Legislative Scrutiny: Policing and Crime Bill (gangs injunctions), HC 441, and the Government’s reply.]

Consideration of Bill, as amended in the Public Bill Committee

New Clause 1

Destruction of samples etc: England and Wales

‘(1) Section 82 of the Criminal Justice and Police Act 2001 is repealed.

(2) Sections 9 and 10 of the Criminal Justice Act 2003 are repealed.

(3) After Section 64A of the Police and Criminal Evidence Act 1984 (c. 60) insert—

“64B Destruction of fingerprints and samples etc

(1) After a person is released without charge or acquitted of the offence for which a sample has been taken that sample shall be destroyed within one month of the fingerprints or samples being taken or the person being acquitted, unless the offence was of a violent or sexual nature.

(2) If the offence was of a violent or sexual nature that sample must be held for a period of three years, after which it must be destroyed.

(3) This section applies to the following material—

(a) photographs falling within a description specified in the regulations,

(b) fingerprints taken from a person in connection with the investigation of an offence,

(c) impressions of footwear so taken from a person,

(d) DNA and other samples so taken from a person,

(e) information derived from DNA samples so taken from a person.

(4) For the purposes of this section—

(a) “photograph” includes a moving image, and

(b) the reference to a DNA sample is a reference to any material that has come from a human body and consists of or includes human cells.”’.—(Chris Huhne.)

Brought up, and read the First time.

With this it will be convenient to discuss the following:

New clause 2—Destruction of samples etc: service offences

‘(1) Section 113 of the Police and Criminal Evidence Act 1984 (c. 60) (application to armed forces) is amended as follows—

(2) After subsection (1) insert—

“(1A) After a person is released without charge or acquitted of the offence for which a sample has been taken that sample shall be destroyed within one month of the fingerprints or sample being taken or the person being acquitted, unless the offence was of a violent or sexual nature.

(2) If the offence was of a violent or sexual nature that sample must be held for a period of three years, after which it must be destroyed.”’.

New clause 3—Destruction of samples etc (Northern Ireland)

‘(1) That Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/3141 (N.I 12)) is amended as follows—

(2) After Article 64A insert—

“Destruction of samples etc

“(1) After a person is not charged or acquitted of the offence for which a sample has been taken that sample shall be destroyed within one month of the fingerprints or samples being taken or the person being acquitted, unless the offence was of a violent or sexual nature.

(2) If the offence was of a violent or sexual nature that sample should be held for a period of three years, and then be destroyed.

(3) This section applies to the following material—

(a) photographs falling within a description specified in the regulations,

(b) fingerprints taken from a person in connection with the investigation of an offence,

(c) impressions of footwear so taken from a person,

(d) DNA and other samples so taken from a person,

(e) information derived from DNA samples so taken from a person.

(4) For the purposes of this section—

(a) “photograph” includes a moving image, and

(b) the reference to a DNA sample is a reference to any material that has come from a human body and consists of or includes human cells.”’.

New clause 31—Retention of voluntary samples etc.

‘(1) That the Police and Criminal Evidence Act 1984 (c. 60) is amended as follows.

(2) After section 64(1A)(b) insert—

“(c) any other provision in this Part does not prohibit or restrict their retention or require their destruction.”.

(3) For section 64(3AC) substitute—

“3AC Retention of voluntary samples etc.

Where a person from whom a fingerprint, impression of footwear or sample has been taken consents in writing to its retention—

(a) that sample need not be destroyed under subsection (3) above;

(b) subsection (3AB) above shall not restrict the use that may be made of the sample or of any information derived from it; and

(c) that consent shall be treated as comprising a consent for the purposes of section 63A(1C) above;

provided that—

(1) No sample or information derived from any sample may be retained on any child under the age of 10 years; and

(2) Consent given for the purposes of this subsection shall be capable of being withdrawn by such person upon making written application to the responsible chief officer of police or person authorised by the Secretary of State for such purpose whereupon such sample and any information derived therefrom shall be destroyed as soon as possible following receipt of such written application.”’.

New clause 32—Retention of samples following arrest

‘(1) The Police and Criminal Evidence Act 1984 (c.60) is amended as follows.

(2) After section 64A insert—

“64B Retention of samples

(1) Subject to subsection (2), where a sample has been taken from a person under this Part, unless such a person has been given consent in accordance with section 64(3AC), all such samples and all information derived from such samples shall be destroyed as soon as possible following a decision not to institute criminal proceedings against the person or on the conclusion of such proceedings otherwise than with a conviction.

(2) Subsection (1) above shall not apply—

(a) where the record, sample or information in question is of the same kind as a record, a sample or, as the case may be, information lawfully held in relation to the person; or

(b) where the person is cautioned for a recordable offence or given a warning or reprimand in accordance with the Crime and Disorder Act 1998 for a recordable offence in connection with the decision not to institute criminal proceedings or following the withdrawal or cessation of criminal proceedings; or

(c) where sections 64C or 64D apply.

(3) For the purposes of this section, criminal proceedings shall not be deemed to have concluded until the earlier of the (1) the lapse of any applicable appeal period and (2) a decision is made not to appeal such proceedings.

64C Retention of samples etc (violent and sexual offences)

(1) This section applies where any sample has been taken from a person under this Part where criminal proceedings were instituted against such person in respect of a sexual offence or violent offence and such proceedings concluded otherwise than with a conviction or with the person being cautioned for a recordable offence or given a warning or reprimand in accordance with the Crime and Disorder Act 1998 for a recordable offence.

(2) Subject to subsections (6) and (7) below, the sample and any information derived therefrom shall be destroyed no later than:

(a) 3 years following the conclusion of the proceedings (“the initial retention date”); or

(b) such later date as may be ordered under subsection (3).

(3) On application made by a chief officer of police within the period of 3 months before the initial retention date, the Crown Court, if satisfied that there are reasonable grounds for doing so, may make an order amending, or further amending, the date of destruction of the relevant sample and any information derived therefrom.

(4) An order under subsection (3) shall not specify a date more than 2 years later than the initial retention date.

(5) Any decisions of the Crown Court may be appealed to the Court of Appeal within 21 days of such decision.

(6) Subsection (2) does not apply where—

(a) an application under subsection (3) above has been made but has not been determined.

(b) the period within which an appeal may be brought under subsection (5) above against a decision to refuse an application has not elapsed; or

(c) such an appeal has been brought but has not been withdrawn or finally determined.

(7) Where—

(a) the period within which an appeal referred to in subsection (5) has elapsed without such an appeal being brought; or

(b) such an appeal is brought and is withdrawn or finally determined without any extension of the time period referred to in subsection (2),

the sample and any information derived therefrom shall be destroyed as soon as possible thereafter.

(8) For the purposes of this Part a “sexual offence” or “violent offence” shall mean such offences of a violent or sexual nature as shall be set out in any order made by the Secretary of State with reference to this section.

64D Retention of Samples - Residual Power

(1) On application by a chief officer of police, the Crown Court may make an order requiring the retention of a sample taken from a person and any information derived therefrom in circumstances where such a sample and any information derived therefrom would otherwise be required to be destroyed if it has reasonable grounds to believe that:

(a) there is a serious risk of harm to the public or a section of the public; and

(b) such retention would prevent, inhibit, restrict or disrupt involvement by the person in the commission of a sexual offence or violent offence.

(2) An order under this section is not to be in force for more than 5 years beginning with the date of the commencement of the order.

(3) Any decision of the Crown Court may be appealed to the Court of Appeal within 21 days of such decision.

(4) Where an application has been made for an order under this section, the relevant sample and any information derived therefrom shall not be destroyed until such application and any appeal thereof has been determined.

(3) At end of section 113(1) insert—

“provided always that the protections in Part 5 relating to the retention of samples and any information derived therefrom shall also be applied to persons investigated or under arrest under such Acts.”.’.

Amendment 28, page 116, line 16, leave out Clause 95.

Government amendment 112.

Amendment 29, page 117, line 32, leave out Clause 96.

Amendment 30, page 118, line 3, leave out Clause 97.

Government amendment 113.

These new clauses and amendments address the issue of the retention of fingerprints and other DNA samples stored on the police national database, and seek to fulfil two purposes. Amendments 28 to 30 would seek to remove clauses 95 to 97. New clauses 1 to 3 then replace the current rules on the retention of DNA samples with our preferred alternative. We believe that this is both legal in the eyes of the European Court of Human Rights and the Human Rights Act 1998, and puts liberty, respect for a private life, and the presumption of innocence at the heart of the rules.

The UK has the largest DNA database in the world; it is far larger than its American equivalent. It contains records from more than 4 million British citizens; 1 million of those people have no record on the police national computer, and 1 million were added as children. Almost one in two of all black men are on the database. This has been not so much a policy—that would have entailed some systematic attempt to collect DNA—but a random accretion of profiles from anybody who happens to run into the police.

On 4 December last year, the European Court of Human Rights ruled that the retention of the DNA samples of two men—S and Marper—was illegal, and that it violated their right to a private life. The ruling stated that the judges were

“struck by the blanket and indiscriminate nature of the power of retention in England and Wales”.

They ruled that

“the retention in question constituted a disproportionate interference with the applicants’ right to respect for private life and could not be regarded as necessary in a democratic society”.

That is a damning indictment of the Government’s policy on DNA retention, and serves to highlight the Government’s dangerous and illegal obsession with massive, Big Brother-style databases, whether for DNA, e-mails and phone calls, or biometric data collected for ID cards. A report by the Joseph Rowntree Reform Trust concluded that out of 46 databases examined, one quarter were almost certainly illegal, as the existing DNA database has been found to be, and fewer than 15 per cent. of those assessed were effective, proportionate or necessary.

The effectiveness of this random accretion in the DNA database is itself highly questionable. Figures have shown that despite the huge increase in the number of profiles on the database—from 2.1 million in 2002 to 5.6 million at the last count—the number of detected crimes in which a DNA match was available has fallen from 21,098 to 17,614 last year. Ministers have failed to produce any respectable peer-reviewed research that supports their case for this random increase in the collection of DNA samples and profiles—indeed, size is, in itself, problematic, as it makes the data more unwieldy in finding matches. Ministers like to say that DNA is essential in detecting crime, and of course it is, but the most significant application of DNA testing is when DNA is found at the scene of a crime and can then be matched with a suspect. That process will continue, and it should do, but what should not continue is the topsy growth for no reason in the number of samples and profiles added to the database.

Given the weight of evidence in favour of reform of the DNA database, the Government have signally failed to justify their current proposals. I am forced to conclude that Ministers are putting forward what they believe to be the absolute minimum that they can get away with before the European Court, while hoping that campaigners will not mount any further legal challenges. I think that Ministers will be proved wrong; to hold records for six years on people charged with or convicted of no crime, and to hold them for 12 years on those arrested for serious offences, makes a mockery of the presumption of innocence that has been fundamental to our law for centuries. There is no evidence that such a lengthy retention period is proportionate, necessary or effective.

Despite the extremely sensitive nature of these issues, the Government are essentially asking us to defer all serious decisions to statutory instruments that will be introduced at a later stage—there would then be no requirement even for a debate on the Floor of the House. The House backs far too many, “I’m a Minister, trust me” clauses in any case, but it should certainly not accept their use in this important matter—to do so would frankly be an outrage. This is an issue of national significance and national debate that potentially affects the human rights of millions of people, and it should be addressed only through primary legislation. Ministers will say that time was pressing, consultation periods are long and that what they propose is the only practical way of dealing with the issue, but that is nonsense. We have a precedent for a tailor-made, one-purpose Bill in respect of the Criminal Evidence (Witness Anonymity) Act 2008, which was also drafted in response to a court judgment and commanded support from all parts of the House.

The Government should not be allowed to get away with passing legislation that has not been subject to proper scrutiny in this House—we heard in the programme motion debate how little scrutiny the Bill received in Committee. Their manoeuvring with consultations and the use of secondary legislation is simply unacceptable, given the seriousness of the issue. We, on the Liberal Democrat Benches, along with Members from all parts of the House, have signed amendments to remove the DNA provisions from the Bill and we will certainly push them to a vote.

Let me turn to our proposed alternative. We propose a similar system to that which has worked so well in Scotland. When we were in coalition in the Executive in Scotland, my Liberal Democrat colleagues in the Scottish Parliament led the charge to introduce less Orwellian rules for Scotland than those currently in place in England, Wales and Northern Ireland. The Scottish provision allows that any samples and profiles taken, voluntarily or otherwise, from somebody who is subsequently released without charge or acquitted of an offence should be destroyed within one month. However, if an offence was of a violent or sexual nature, a sample can be held for up to three years—we propose that the same period apply.

There is a legitimate debate to be had over the length of time that retention is acceptable in the cases of those arrested for serious violent or sexual offences. The Government propose to set this limit at 12 years, whereas the Scottish system sets it at three years, as in our new clauses, but allows for a possible two-year extension. The Conservatives’ proposals are similar, but we part company with the official Opposition where they allow for a blanket application to retain samples and profiles for up to five years after an arrest for any offence because we believe that to be disproportionate and to depart from the spirit of the Scottish legislation.

To my mind, the Government’s proposals—and, I am afraid to say, those of the Conservatives—do not get the balance right between liberty and the prevention and detection of crime. If there was evidence that the retention of samples for five years or 12 years was significantly more effective in preventing or detecting future crimes, there would be a case to be weighed in the balance, but we have not heard that case from the Government. It is my belief that we should err on the side of the tried and tested principles of British justice, respected as they are and will continue to be north of the border. The presumption of innocence is a cornerstone of our judicial system and must be protected. Our provisions would adequately roll back these intrusive and illiberal powers, while recognising that DNA is an important crime fighting tool and that the taking of samples during investigations must continue. Our proposals get the balance right, and I commend them to the House.

I have a great deal of sympathy with the hon. Member for Eastleigh (Chris Huhne), who based his arguments on the system in Scotland, which offers us an example of what can be done. I feel—this prompted my intervention during the discussion on the programme motion—that this serious and important area of policy deserves a proper debate in the House, rather than the time that we have allocated for this debate.

The Government are reacting to a judgment of the European Court of Human Rights. When the judgment was made, the Home Secretary made a statement to the House at the end of last year. Several months passed before the Government decided what their new policy would be. The Government have not met the fundamental objection to holding the DNA of innocent people on the DNA database. Either someone has committed an offence, or they have not. If they have not committed an offence, it is fundamentally wrong that their DNA should be retained on the database. If it is retained, as the Government hope, and an arbitrary figure, such as six years or 12 years, is chosen—I am not sure why those periods were chosen—the worry is that if that arbitrary figure cannot really be justified, it goes against the whole argument in changing the principle.

When this matter has been raised in the House on numerous occasions, Ministers have said that we need to retain the DNA of individuals in case they commit criminal offences in the future. Ministers have given many examples of the retention of DNA over one issue resulting in people being arrested or imprisoned for another issue several years afterwards. They come to the House with legitimate arguments and evidence to support their view, but I think that that is evidence in support of an even bigger database—the mother of all databases—on which would be retained the DNA of every individual in this country. Either we should have it for everybody, or we should retain only the DNA of those who have been convicted of an offence. The retention of DNA on the presumption that people who are in trouble over one issue will get into trouble over another because they have some kind of criminal tendency is, I think, wrong. That is the problem with the Government’s argument—it is the fundamental flaw that they have in trying to address the proper ruling of the European Court of Human Rights. The suggestions made by the hon. Member for Eastleigh deal with that point.

I hope that when the Minister comes to reply he will be able to tell us that the DNA samples of children—of all children—have now been removed from the database. The Minister for Security, Counter-Terrorism, Crime and Policing is nodding, but I give the Under-Secretary the opportunity to put that on the record from the Dispatch Box. I do not think that we have heard that from the Dispatch Box since this matter first came into the public domain.

Let me give an example of an innocent person who suddenly has his DNA retained. A hooray Henry—a helpful guy—goes into a pub to enjoy himself. He intervenes to prevent a fight. The police are called to stop everyone in the pub, or outside it, causing a disorder. The police take everyone in and the DNA of the person who intervened to stop the fight is retained.

One of my constituents did exactly that. He intervened to prevent a fight, was arrested, detained overnight in a police station and had his DNA taken. He had no criminal record whatever, yet his DNA was retained. Why retain his DNA? Why presume that he might commit another offence when he has an absolutely clean record and intervened only because he was trying to prevent two people from fighting? He went out to enjoy himself with his friends. He was not involved in the disorder—he tried to stop it.

A Member of the House has raised the following matter on a number of occasions. When an elderly member of his family died in suspicious circumstances, the police took the DNA of all members of the family. The hon. Gentleman tried for months—it may be years now—to get an answer from the relevant chief constable and to have his DNA removed. He came to me, as Chairman of the Select Committee on Home Affairs, and the Committee wrote to the Home Secretary to ask what was happening about the hon. Gentleman’s DNA. I am not talking about the hon. Member for Ashford (Damian Green), although he too has a legitimate case for asking for his DNA back.

Why should the DNA of a Member who was not involved in any criminal activity be retained? He was not even at the scene of a crime, but happened to be related to a person who died in suspicious circumstances—although I understand that they are no longer suspicious.

Does the right hon. Gentleman share my concern about the example I gave in Committee? Two boys had their DNA taken because they built a tree house in a cherry tree—many people probably built tree houses when they were young. Earlier, the right hon. Gentleman asked whether children’s DNA would be removed. If those boys were 15 or 16 when their DNA was taken, would their DNA be removed when they were over 18 and adults?

I absolutely share the hon. Gentleman’s concern. A particular incident could lead to DNA being retained. The House knows very well the circumstances relating to the hon. Member for Ashford, and the Select Committee recently published a report about them, although it did not mention the hon. Gentleman’s DNA. However, the fact is that his DNA was taken and there would be no prospect of its being removed for six years under the Government’s proposals, unless we were to make an exception for Members of the House, and in the current climate we should never be in a position to make exceptions for hon. Members. But why retain that DNA?

We know that the DNA of a disproportionate number of black and Asian people is held on the database, because if a disproportionate number of black and Asian people are stopped and searched under stop-and-search legislation there will be more DNA from people from the black and Asian community. Their DNA, too, is retained on the database. Why do the Government say that their DNA should be retained for six years or even longer because they were stopped under stop-and-search powers? There is a fundamental flaw in the Government’s argument: either it is okay for everybody or it is okay only for people who have committed criminal offences.

The hon. Member for Eastleigh did not deal with the possibility of loss of data, although I am sure he would have done so if he had had the time he sought under the programme motion. Although the situation is better, unfortunately the Government were afflicted by loss of data for a period last year. I do not just blame the present Government—any Government who sought to retain so much data would be affected. The more data the Government possess, the greater the likelihood that the data will be lost, so why hold information if nothing is being done with it?

Ministers must address those issues if we are being serious about the subject. It is not that those who say that a limit is needed are against catching criminals. Of course we want to catch criminals, and we want to use everything in our power—every piece of new technology—to achieve that.

The professor of genetics who invented the way in which DNA is extracted and retained is Alec Jeffreys of the University of Leicester—one of our most eminent citizens, recently given the freedom of the city of Leicester—and he is on record as saying that he does not understand why the Government have made these proposals. He has talked about other ways in which such things can be used to aid the police and other authorities, without the retention. If our arguments are dismissed because we are not experts, I hope that the Government will listen to the expertise of none other than Sir Alec Jeffreys, who says that the Government are wrong on the issue. I know how fond Governments are of relying on experts, so the Government should take it from Alec Jeffreys, if not from us, that they need to think again.

As the Bill is going through Parliament, the view is, “Let’s just stick it in the Bill, because we don’t know when the next one is coming out.” We have had 66 such Bills, as the hon. Member for Eastleigh said—quite a lot of Bills—and we have had almost as many immigration Bills. We need to think carefully before we adopt something that is a knee-jerk reaction, and we should not have a knee-jerk reaction, because we have known about this for seven months, so there is every reason for people to have thought about it very carefully. I hope that Ministers will reflect on the proposal before they push it through the House. I have every sympathy for the Liberal Democrat suggestion, and I hope that the Minister can reassure us that sufficient safeguards are in place.

One of the best safeguards is that, when people write in, they receive replies. In the case of the hon. Gentleman whom I mentioned, he has not had the decency of a reply from the chief constable. At the very least, there should be a robust process of challenging. It should not be exceptional; there should be a reasonable way in which people can challenge the retention. I wrote about my constituent, and I received a very flimsy reply from the custody sergeant. I expect more and better from a Government who are keen to ensure that our liberties are protected.

In Committee, I said that the Government’s proposal to deal with the retention of DNA data under an order-making power was utterly unacceptable and that we would oppose it vigorously. The Government have not changed their standpoint, and neither have we. The irony was that the Committee debate was held in a vacuum: we had absolutely no idea what the Government would propose. We were simply asked to provide a blank cheque. Now that we have some more details, we do not have the time to debate them sufficiently. Therefore, it is ironic that the most scrutiny allowed for any proposed order would last an hour and a half in Committee, although these very sensitive and controversial issues need to considered carefully.

Despite the Government’s promises of consultation outside the House—obviously, we hear what they say—we must wonder why the Government are seemingly prepared to debate this highly sensitive issue anywhere other than the House. The Constitution Committee of the other place recommended in its recent report, “Surveillance: Citizens and the State” that

“The Government should introduce a Bill to replace the existing regulatory framework governing the NDNAD. This would provide an opportunity to reassess the length of time DNA profiles are retained under regulatory oversight of the NDNAD.”

We agree. The use, retention and destruction of DNA records and the oversight that sits behind it require detailed primary legislation in their own right, with full and detailed debate and examination in Parliament.

There is little doubt about the importance of DNA as an evidential tool in prosecuting criminals and bringing them to justice. DNA can form an important part of the evidential case to prove guilt and ensure that serious criminals are brought to justice. The fight against crime—in particular, organised crime and terrorism—depends on the use of modern scientific techniques of investigation and identification. However, as the European Court of Human Rights noted in the case of S and Marper, basic freedoms

“would be unacceptably weakened if the use of modern scientific techniques in the criminal justice system were allowed at any cost and without carefully balancing the potential benefits of the extensive use of such techniques against important private-life interests.”

That frames this debate. The Government were well and truly on the wrong side of the line, and we would argue that they are still on the wrong side of the line.

This country claims a pioneering role in the development of DNA technology, and consequently bears a special responsibility in striking the right balance between public protection and the protection of personal liberties and freedoms from intrusion by the state. At the heart of that—and, I believe, the basic starting point when considering what is appropriate in terms of the retention of DNA data—is the premise that a person is innocent until proven guilty. The indefinite retention on the national DNA database of the DNA of people who have never been changed with any crime, or who have been acquitted by a court, is unacceptable in a society founded on that principle. With regard to the national DNA database as currently constituted, that presumption is reversed: a person is always regarded as potentially guilty unless shown to be innocent. Everyone on the database is regarded as a potential suspect.

Until recently, the Government took the blanket, indiscriminate approach of simply growing the database, viewing that as a good in itself—and the number of profiles on the DNA database has certainly grown, from 2.1 million in 2003 to 5.6 million by the end of March this year. The full impact of that growth becomes clear only when we break the number down by the countries of the United Kingdom. We are talking about some 4 per cent. of the population of Northern Ireland, nearly 5 per cent. of the population in Scotland, and nearly 10 per cent. of the population of England and Wales. Under the Police and Criminal Evidence Act 1984 as amended by the Criminal Justice and Police Act 2001, fingerprints and samples, including DNA samples, can be taken from anyone arrested for a recordable offence and detained in a police station. However, the Home Office has confirmed that more than 1 million people on the database have never been convicted, cautioned, formally warned or reprimanded, as recorded by the police national computer. GeneWatch UK has calculated that there are records of more than 100,000 innocent children on the database. The database contains the records of about 40 per cent. of black men in the UK, as compared to 30 per cent. of Asian men and just 9 per cent. of white men.

Despite the huge growth in profiles, the number of detected crimes in which a DNA match was available has actually fallen. Between 2002-03 and 2007-08, the number of detections fell from 21,098 to 17,614. The total number of detected crimes in which a DNA match was available or played a part, and the percentage of crimes detected in which a DNA match was available, as opposed to crimes where potential DNA material was collected, have remained static, despite the huge increase in the number of profiles. Simply growing the database has not resulted in a growth in detections. We therefore welcome the Government’s acceptance that the status quo is unsustainable. The problem is that it is simply unsupportable to think that such an important issue can be remedied by ministerial edict.

The Minister will no doubt say that the Government cannot act quickly enough to respond to the judgment of S and Marper, and that they need to go through a public consultation before they can do anything, but I just do not buy that line of argument. If the order-making power was some sort of legislative shortcut pending subsequent primary legislation, it could have included a sunset clause, but the Government have chosen not to include one. The approach is made even more perverse when one considers that the Home Office’s consultation document on DNA retention, released just a few weeks ago, envisages that primary legislation will be required to take samples post-conviction, or from UK residents convicted of violent or sexual offences abroad who are returning to the UK. If primary legislation is required for that, surely it is right that basic protections regarding samples, profiles and the DNA database and its oversight should be embodied in statute.

There are points on which we do agree with the Government. There should be different treatment for the young, in terms of the retention of DNA profiles. The DNA profiles of under-10s should not be retained. DNA samples should be destroyed as soon as practicable once a profile has been taken. Where an adult has been convicted of a recordable offence, DNA should be retained indefinitely. Where consent has been volunteered for DNA profiles to be put on the database, that consent should be capable of being withdrawn. Accordingly, we trust that the Government will support our new clause 31.

We have long argued for the need to ensure that the police can retrospectively take samples for a longer period after conviction and from those convicted overseas, so we are glad that the Government have responded positively to that call. However, we differ on the retention of profiles on the DNA database of people arrested but never charged with an offence, or of those acquitted of any wrongdoing. The Government argue that in these circumstances it is appropriate to keep the profile—to treat someone as a future potential suspect in a criminal investigation, even though they are supposed to be innocent in the eyes of the law—for between six and 12 years, depending on the nature of the offence for which they were arrested.

The Government seek to argue this on the basis of the hazard rates and purported patterns of future reoffending, as set out in their consultation document, yet these models are based on individuals convicted of having committed a crime and an assumption that they are relevant to those arrested but never convicted. This fundamental assumption is not fully substantiated. All the Government say is that their assumption is partially supported by analysis from the Jill Dando Institute, but this analysis has not been published and my understanding is that it has yet to be peer reviewed.

We believe it is appropriate to introduce an approach on DNA retention similar to that introduced in Scotland, where the DNA profiles of those convicted of an offence would be retained only in circumstances where charges relating to a crime of violence or a sexual offence had been brought. In these circumstances DNA profiles could be retained for a maximum period of five years, subject to judicial oversight after an initial period of three years. That is where we differ from the Liberal Democrats’ analysis and their proposal. It is interesting to note that the Scottish DNA database has a higher success rate in matching profiles with crime scene samples than the national DNA database.

We recognise that there may be circumstances in which a serious risk of harm has been identified by the police and where the power to retain DNA information may be appropriate as a means of mitigating that risk, if a court considers that there is sufficient evidence. New clause 32 reflects this approach, and with your permission, Mr. Deputy Speaker, we shall test the opinion of the House on it.

Our amendments may not be perfect, but they demonstrate that it is possible to write these important protections into primary legislation. Government suggestions that that is too hard or inflexible miss the fundamental point that such protections need to be spelled out in this way precisely because it will be harder to change them in the future. That is why we believe these freedoms should be put on a firm statutory footing, and why the House should treat with the utmost suspicion the Government’s approach of keeping the issue out of the House and out of sight.

I shall respond to the amendments and new clauses tabled by Opposition Members and speak to those tabled by the Government.

I begin by saying to my right hon. Friend the Member for Leicester, East (Keith Vaz) that, in line with commitments given by the Home Secretary in her speech in December, I am pleased to confirm that the DNA of all under-10-year-olds has been removed from the database. My right hon. Friend also asked about the security of data on the DNA database. There has not been a single instance of the loss or misuse of data retained on the DNA database. I hope I have reassured him on those points.

I shall respond to the points raised by Opposition Members in the substance of my remarks. I welcome the aim of new clauses 1, 2 and 3 because they acknowledge that it is important to ensure that the biometric data of those suspected of violent or sexual offences are subject to a different regime of retention and destruction from the biometric data of a person arrested but not convicted. We would, however, have great difficulty supporting the amendments. I shall deal with the technical problems with them and then put them in the context of the wider argument.

First, the amendments do not clearly define the status of a person who has been released without charge. They could apply to a person released without charge and on bail, or to a person released without charge and informed that no further action would be taken. I can only assume that the latter is the intention of the amendment. The definition of an offence

“of a violent or sexual nature”

may be too vague. It may be more appropriate to list the actual offences involved and, therefore, clarify what offence is and what offence is not subject to a specific period of retention for DNA and fingerprints. It is neither correct nor appropriate to amend section 113 of the Police and Criminal Evidence Act 1984, as proposed, because the section allows equivalent legislative provision in part 5 of the Act to be applied to the armed forces, subject to modifications that are considered necessary to cater for the different circumstances in which the armed forces operate. Any amendments in respect of part 5 of the 1984 Act would be reflected in the statutory instrument that applied those provisions to the armed forces.

Those are technical points. I now turn to the more substantive point about the need to engage the public in any new framework that we propose for the retention of biometric data that are taken during a criminal investigation. I shall also reply to the accusation that we are responding simply to the judgment, because, in fact, we seek to go further than that.

I recognise that some people who are currently on the national DNA and fingerprint databases who have been arrested but not convicted may well ask why, in the light of the European Court of Human Rights judgment, their samples are not being destroyed. The judgment did not hold that any retention of samples of unconvicted people is unlawful per se; rather, it held that we cannot maintain a blanket scheme of retention that applies to all samples. Moreover, as Members will be aware, the existing law stands until such time as Parliament changes or amends it.

The contents of the Government’s enabling clause will allow for a retention and destruction framework to be put in place to ensure compliance with the European Court judgment within a reasonable time, and for such regulations to be subject to the consideration of both Houses.

Hon. Members who tabled new clauses 31 and 32 may have done so in the absence of sight of the Government’s proposals that were published on 7 May in the consultation paper entitled, “Keeping the right people on the DNA database”. It sets out very clearly our proposals to implement the judgment of the European Court in the case of S and Marper, but it also shows that in some areas we have gone further than the judgment requires. One such area is samples.

It is important to get on the record the fact that we have announced our intention to destroy all samples, whether they were taken from a person who was arrested and not convicted, or arrested and convicted, amounting to about 4.5 million samples. That is in direct response to the level of public concern about the retention of living samples by the criminal justice system. In addition, we have indicated that in future all samples must be destroyed as soon as possible and held only up to a maximum of six months for the purposes of ensuring that an acceptable profile is placed on the DNA database. The proposals that hon. Members have set out in new clause 32 do not make the important distinction between samples and profiles, and they fail to take into account a key area of public concern and an issue that was raised in the S and Marper judgment.

Does the Minister accept that it would be far better to introduce primary legislation following the—albeit welcome—consultation that he just mentioned? The House would be able, by amendment rather than by resolution after a one-and-a-half hour debate, to give its view on the response to those discussions. That would be the most effective and mature way of developing legislation on these complex topics.

We had that debate at length in Committee, and there are several points to make in response to the Opposition’s call for a primary legislation route. First, we have to meet the time scale of responding to S and Marper, and our legal advice is that we have a 12-month period, so there would be absolutely no opportunity to introduce any primary legislation in that time. I must also say to the hon. Gentleman that to believe that such a rule has been applied to date is to misunderstand the way in which the current framework has evolved. Such a proposal would set an important precedent, because DNA guidelines and their operation move over time. If he is saying that every time the DNA guidelines change, we must have primary legislation, he misunderstands the way in which the DNA issue moves—and moves very quickly.

Of course we consult and take advice. At present, I am not in a position to tell my hon. Friend exactly what that advice is, but I am sure that I will be able to find it and provide it to him in the foreseeable future.

I turn to retention periods. New clause 34 proposes a retention period in respect of those arrested for violent and sexual offences, but only for a period of three years, subject to potential extension for a further two years on application to the Crown court. New clause 32 proposes a residual power on top of that, allowing a chief police officer to apply to a county court to make an order requiring the retention of a sample for up to five years when there is serious risk of harm to the public or when it would inhibit or disrupt the involvement of the person in the commission of a violent or sexual crime. If the provisions in new clause 32 simply relate to arrests, violent and sexual offences would be capable of a five-year retention period under proposals in its new section 64C. If the threshold of arrest is not involved, the criterion proposed is worrying. I assume that what was intended was a criterion of “risk of serious harm”, rather than of “serious risk of harm”; otherwise, such an order could be applied in respect of any situation where there was harm or potential harm. In respect of inhibiting, restricting or disrupting the involvement of a person in the commission of one of those offences, the police already have the necessary powers.

I turn to the reasoning behind the retention periods that we propose—six years, or 12 years in the case of serious sexual offences. During the consultation period, we have set out the basis on which we have arrived at those decisions. There are two key aspects at work. Those who commit so-called minor offences also tend to commit more serious offences, and vice versa. Secondly, those arrested and not convicted have a propensity to offend—we did not say “reoffend”, as the hon. Member for Hornchurch (James Brokenshire) said we did—comparable to that of those who are arrested and convicted but not given a custodial sentence.

We are emphatically not losing sight of the fact that people are innocent until proven guilty, and we are not saying that people arrested and not convicted will go on to commit offences in future. What we are saying is that our research suggests that some of them—a greater proportion than in the population at large—do tend to go on to commit offences, including serious offences. If we could identify those people at the point of first arrest, life would be easy. But we cannot, and that is why we propose a proportionate retention period based on the individual’s propensity to offend.

I shall not, because I am running out of time. Research by the Jill Dando Institute indicates that 52 per cent. of subsequent offending takes place within the first six years of initial conviction, and that two thirds takes place within 12 years. Studies from the United States suggest that it takes up to 15 years for an individual who has been arrested to have the same risk of being arrested again as exists among the general population.

A point was made about the Scottish model. We did consider that model, which involves shorter retention periods. However, in the light of the research evidence available to us, which did not inform the Scottish Executive’s decision, we have decided to propose six-year and 12-year retention periods. We recommend six years for most crimes and 12 years for those with high impact such as serious violent offences and sexual and terrorist-related offences.

One and a half hours having elapsed since the commencement of proceedings on the programme motion, the debate was interrupted (Programme Order, this day).

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

New Clause 32

Retention of samples following arrest

‘(1) The Police and Criminal Evidence Act 1984 (c.60) is amended as follows.

(2) After section 64A insert—

“64B Retention of samples

(1) Subject to subsection (2), where a sample has been taken from a person under this Part, unless such a person has been given consent in accordance with section 64(3AC), all such samples and all information derived from such samples shall be destroyed as soon as possible following a decision not to institute criminal proceedings against the person or on the conclusion of such proceedings otherwise than with a conviction.

(2) Subsection (1) above shall not apply—

(a) where the record, sample or information in question is of the same kind as a record, a sample or, as the case may be, information lawfully held in relation to the person; or

(b) where the person is cautioned for a recordable offence or given a warning or reprimand in accordance with the Crime and Disorder Act 1998 for a recordable offence in connection with the decision not to institute criminal proceedings or following the withdrawal or cessation of criminal proceedings; or

(c) where sections 64C or 64D apply.

(3) For the purposes of this section, criminal proceedings shall not be deemed to have concluded until the earlier of the (1) the lapse of any applicable appeal period and (2) a decision is made not to appeal such proceedings.

64C Retention of samples etc (violent and sexual offences)

(1) This section applies where any sample has been taken from a person under this Part where criminal proceedings were instituted against such person in respect of a sexual offence or violent offence and such proceedings concluded otherwise than with a conviction or with the person being cautioned for a recordable offence or given a warning or reprimand in accordance with the Crime and Disorder Act 1998 for a recordable offence.

(2) Subject to subsections (6) and (7) below, the sample and any information derived therefrom shall be destroyed no later than:

(a) 3 years following the conclusion of the proceedings (“the initial retention date”); or

(b) such later date as may be ordered under subsection (3).

(3) On application made by a chief officer of police within the period of 3 months before the initial retention date, the Crown Court, if satisfied that there are reasonable grounds for doing so, may make an order amending, or further amending, the date of destruction of the relevant sample and any information derived therefrom.

(4) An order under subsection (3) shall not specify a date more than 2 years later than the initial retention date.

(5) Any decisions of the Crown Court may be appealed to the Court of Appeal within 21 days of such decision.

(6) Subsection (2) does not apply where—

(a) an application under subsection (3) above has been made but has not been determined.

(b) the period within which an appeal may be brought under subsection (5) above against a decision to refuse an application has not elapsed; or

(c) such an appeal has been brought but has not been withdrawn or finally determined.

(7) Where—

(a) the period within which an appeal referred to in subsection (5) has elapsed without such an appeal being brought; or

(b) such an appeal is brought and is withdrawn or finally determined without any extension of the time period referred to in subsection (2),

the sample and any information derived therefrom shall be destroyed as soon as possible thereafter.

(8) For the purposes of this Part a “sexual offence” or “violent offence” shall mean such offences of a violent or sexual nature as shall be set out in any order made by the Secretary of State with reference to this section.

64D Retention of Samples - Residual Power

(1) On application by a chief officer of police, the Crown Court may make an order requiring the retention of a sample taken from a person and any information derived therefrom in circumstances where such a sample and any information derived therefrom would otherwise be required to be destroyed if it has reasonable grounds to believe that:

(a) there is a serious risk of harm to the public or a section of the public; and

(b) such retention would prevent, inhibit, restrict or disrupt involvement by the person in the commission of a sexual offence or violent offence.

(2) An order under this section is not to be in force for more than 5 years beginning with the date of the commencement of the order.

(3) Any decision of the Crown Court may be appealed to the Court of Appeal within 21 days of such decision.

(4) Where an application has been made for an order under this section, the relevant sample and any information derived therefrom shall not be destroyed until such application and any appeal thereof has been determined.

(3) At end of section 113(1) insert—

“provided always that the protections in Part 5 relating to the retention of samples and any information derived therefrom shall also be applied to persons investigated or under arrest under such Acts.”.’.—(James Brokenshire.)

Brought up.

Question put, That the clause be added to the Bill.

Clause 95

Retention and destruction of samples etc: England and Wales

Amendment made: 112, page 117, line 29, at end insert—

‘(4) Before laying such a draft before Parliament, the Secretary of State must consult—

(a) the Association of Police Authorities,

(b) the Association of Chief Police Officers of England, Wales and Northern Ireland,

(c) the General Council of the Bar,

(d) the Law Society of England and Wales,

(e) the Institute of Legal Executives, and

(f) such other persons as the Secretary of State thinks fit.’.—(Mr. Alan Campbell.)

Clause 97

Retention and destruction of samples etc: Northern Ireland

Amendment made: 113, page 119, line 5, at end insert—

‘(10A) Before making regulations under this Article, the Secretary of State must publish a draft of the regulations and consider any representations made to the Secretary of State about them.’.—(Mr. Alan Campbell.)

New Clause 20

Interim injunctions: duration

‘(1) An interim injunction granted under sections 38 or 39 must include the period for which it shall have effect.

(2) The period specified in subsection (1) above must not exceed four weeks.

(3) Interim injunctions granted under sections 38 or 39 may not be renewed.’.—(Mr. Dismore.)

Brought up, and read the First time.

With this it will be convenient to discuss the following:

Amendment 37, in clause 32, page 26, line, leave out ‘two’ and insert ‘four’.

Amendment 40, page 26, line 6, leave out ‘on the balance of probabilities’ and insert ‘beyond reasonable doubt’.

Amendment 201, page 26, line 13, leave out paragraph (b).

Amendment 38, page 26, line 13, at end insert—

‘(3A) The third condition is that the applicant has demonstrated that prosecution of the respondent for a criminal offence was considered but not proceeded with.’.

Amendment 39, page 26, line 13, at end insert—

‘(3B) The fourth condition is that the respondent is aged 18 or over.’.

Amendment 202, page 26, line 17, leave out paragraph (b).

Government amendment 60

Amendment 149, line 20, at end add—

‘(6) In this section “gang” means a group of people who see themselves or are seen by others as a discernable group and exhibit any one or more of the following factors—

(a) engaging in criminal activity;

(b) identifying with a particular geographical area;

(c) having some form of identifying organisational feature;

(d) being in conflict with other similar gangs.’.

Amendment 204, in clause 33, page 26, line 32, leave out subsections (3) and (4).

Amendment 205, page 27, line 4, leave out ‘and requirements’.

Amendment 206, page 27, line 9, leave out ‘or (3)’.

Amendment 207, in clause 34, page 27, line 13, leave out ‘or requirement’.

Amendment 43, page 27, line 14, leave out from ‘injunction,’ to end of line 16 and insert

‘the period for which it shall be in force.’.

Amendment 208, page 27, line 16, at end insert

‘except that no injunction shall remain in force for a period longer than two years from the date it is made.’.

Amendment 42, page 27, line 16, at end insert—

‘(2A) The period specified in subsection (2) above must not exceed three years.

(2B) Injunctions granted under section 32 may not be renewed.’.

Amendment 209, page 27, line 23, leave out paragraph (b).

Amendment 210, page 27, line 26, leave out ‘or requirement’.

Government amendment 61

Amendment 150, in clause 36, page 28, line 10, at end insert—

‘(c) any primary care trust, mental health trust or other NHS authority that the applicant chief officer considers would be appropriate to consult; and

(d) any youth offending team, local probation service or office of the National Offender Management Service that the applicant chief officer considers would be appropriate to consult.’.

Amendment 151, page 28, line 16, at end insert—

‘(c) any primary care trust, mental health trust or other NHS authority that the constable considers would be appropriate to consult; and

(d) any youth offending team, local probation service or office of the National Offender Management Service that the constable considers would be appropriate to consult.’.

Amendment 152, page 28, line 22, at end insert—

‘(c) any primary care trust, mental health trust or other NHS authority that the applicant local authority considers would be appropriate to consult; and

(d) any youth offending team, local probation service or office of the National Offender Management Service that the applicant local authority considers would be appropriate to consult.’.

Government amendments 62 and 63

The new clause was tabled by the hon. Member for Oxford, West and Abingdon (Dr. Harris), my hon. Friend the Member for Ealing, Southall (Mr. Sharma) and me on behalf of the Joint Committee on Human Rights in order to give effect to the recommendations we made in our 15th report. The Government responded to them only today. The amending provisions relate to the Bill’s treatment of gang-related violence. In the report we expressed our concern about the fact that provisions highly significant for individual liberties and human rights appeared not when the Bill was first published, but only in the later stages of the Committee proceedings.

During the Committee stage, the Government explained that provisions were needed because of a judgment by the Court of Appeal in the case of Birmingham city council v. Shafi. In that case, the council had sought civil injunctions against individuals who were alleged to have been involved in gang-related offences and public nuisance. The Court of Appeal noted that the terms of the injunctions sought were identical, or almost identical, to those of antisocial behaviour orders. It noted the “striking feature” that the local authority sought ASBOs against those aged under 18 and injunctions in identical terms against those aged over 18. The court recognised that Parliament had laid down a number of specific safeguards applying to the grant of ASBOs, some of which might not apply to injunctions granted at common law.

The court held that the council should therefore seek an ASBO so that

“the detailed checks and balances developed by Parliament and in the decided cases”

would apply. The court considered that it would be bizarre if a different standard of proof applied. As the order sought by the council was essentially the same as an ASBO, the lower court had been correct to apply the same standard of proof that applied in proceedings for an ASBO. The court had to be sure that the defendants had acted in the antisocial way alleged. The court recognised that there might be cases in which the injunctions sought were not identical, or almost identical, to an ASBO, or which involved more complicated facts. In such cases, the civil standard might apply.

The first issue that we raised was the fact that there was no definition of what constituted a gang in the first place. Government amendment 60 deals with that, although I question whether it is sufficiently precise. I note that the Opposition have tabled an amendment on the same issue which is a little more precise. We were told that guidance would be laid before Parliament as soon as possible before the legislation came into force, for the purpose of interpretation.

We were anxious to ensure that the provisions were not open-ended, and that they were necessary. Given the findings of the Court of Appeal, we asked the Minister to explain why the existing law was inadequate, and why it was proposed to use civil law to tackle what was effectively criminal behaviour. We requested an explanation of why the Government had opted not to require those seeking an injunction to explain why criminal prosecution in an individual case was impossible. That is the purpose of amendment 38. In our view, the Government have failed to provide a satisfactory explanation of the need for the provisions, including the rather bizarre clause 32(3)(b), which is apparently intended to protect the respondent from himself. The Government have not published any statistically robust evidence showing why the existing law is inadequate.

I am not here to defend the Government. My organisation, the Centre for Social Justice, produced an important report on gangs and gang-related violence after its members had travelled to Boston, Los Angeles, New York, Liverpool and Glasgow to see what was going on in those places. A key principle, which I think the Government have now generally adopted—although there are some faults in the arrangement—is that the provision is required for the simple reason that we are trying to get ahead of the problem. We need to identify people who may be at risk of violence, and who may end up being in street gangs. Where this has been applied, it has worked: it has worked in Boston and Los Angeles, for instance.

I shall come to the points that the right hon. Gentleman has made. He has given us some evidence in support of what the Government propose, but so far we have not been given such evidence by the Government. All that we have been given are anecdotal explanations based on the Birmingham cases. If there is robust evidence from overseas, I am surprised that the Government have not produced it in response to our report or our earlier correspondence with the Minister.

The Minister told us that using the criminal law to deal with gang-related violence remained the preferred option. However, the Government considered it not advisable to make it a prerequisite for the Crown Prosecution Service to explain why it was impossible to charge an individual beforehand. The Minister said that the Government were clear that injunctions should not short-circuit the criminal justice process, but we were very concerned about the issue.

In earlier reports, we have drawn attention to the unsustainability in the long term of resort to methods of control which are outside the criminal process, and which avoid the appropriate standards of fairness. Gang injunctions constitute another step in that direction. In our view, the civil law is an inappropriate tool to deal with what is effectively criminal behaviour. We are pleased to note the Government’s commitment to use of the criminal law as the preferred option, but it worries us that the Bill does not make that explicit, and that there are no safeguards in the Bill to ensure that it occurs. In particular, there is no requirement for those seeking an injunction to demonstrate that criminal prosecution has been considered as an option first.

We recommend in amendment 38 that the Bill be amended to impose an express duty, throughout the period during which the injunction has effect, to ensure that the question of criminal prosecution is reviewed and is kept under consideration when there is a reasonable prospect of successful prosecution of the subject of the injunction. We have raised a similar issue time and again in relation to control orders. It seems that once a control order has come into effect, little effort is made to prosecute those involved.

I am particularly concerned about the impact of the Bill on children and young people, as amendment 39 makes clear. It is in this regard that I consider the Government’s response to be weakest. We welcome the Government’s commitment not to amend the Bill to cover children and young people explicitly. However, we do not agree with their contention that part 4 will not be applied to children or young people. We recommend that the Bill be amended to make that clear, and to set a minimum age limit of 18 for respondents.

We spent a lot of time on our report. One of the reasons why we recommended no age limit of 18 was that street gangs, as defined in places such as America, Liverpool and Glasgow, consist of people ranging from children of 11 to men of 26. It is crucial to use civil orders to deal with those people in order to take them out of the gangs. If we wait until they are 18 and on a criminal charge, we shall have to wait until they have done what they intend to do, which will make the position much more dangerous.

The problem with the right hon. Gentleman’s contention is that the process is likely to bring the law into disrepute. Injunctions against those under 18 are unenforceable. According to the response that we received from the Government today,

“Injunctions must be enforceable and it is unlikely in practice that these injunctions would be enforceable for under 18s because the court cannot fine someone without a source of income.”

The Government also refer to the penalties for those over 18, which could involve fines or imprisonment. They say:

“a court cannot sentence an individual under the age of 18 to detention…for a civil contempt of court. Therefore where when a gang member is under 18 and is without an independent and legitimate source of income, the court would be unable to sanction any breach and so would not grant an injunction.”

That constitutes a paper tiger. That is why we have ASBOs.

The Government go on to say that

“there may be occasions where it would be both appropriate and enforceable”,

and that

“whilst these instances are likely to be rare”,

they want to retain their provisions in the Bill. However, we have not been given an example of where those provisions would be enforceable. If injunctions cannot be enforced, or are refused because they cannot be enforced, there is no point in having the power in the first place. It will simply bring the law into disrepute.

The other issue that concerns us particularly, as is reflected in amendment 40, is the applicable standards of due process. Breach of an injunction is a civil offence which is treated as civil contempt of court, but must be proved to the criminal standard of “beyond reasonable doubt”. In the leading ASBO case, although ASBOs were considered to be civil orders—like injunctions—the House of Lords upheld the argument that the proceedings relating to ASBOs should carry the criminal standard of proof. Magistrates should apply that standard: they must be sure that the individual in question acted in an antisocial manner before they can make the order. We believe that similar standards should apply to injunctions which are very akin to ASBOs.

The analogy with ASBOs is particularly acute given the judgment of the Court of Appeal in the Shafi case, which recognised that ASBOs in identical terms could be sought. Some of the proposed injunctions are identical to or more severe than ASBOs, which require proof on the criminal standard. If they are to be more demanding than an ASBO, the argument that they should require the criminal standard of proof is all the stronger.

The hon. Gentleman must have seen in his surgeries, as I have in mine, numerous people who have been victims of antisocial behaviour on the part of gangs, collections of young people, or whatever we want to call them. Why is he trying to make it difficult to enforce order and peace for the benefit of the law-abiding community?

That is not the point. What I am trying to do is ensure that when we introduce draconian powers, we make certain that the individual concerned is subject to those draconian powers. That is the view that the courts have expressed time and again. We should bear in mind the debate in the country more widely about civil liberties, for this is a civil liberties argument. The hon. Gentleman suggests that we go down the route of the civil standard and conclude that, on the balance of probabilities, people have been involved in extremely violent criminal behaviour.

If we go down that route, we will run the risk of a major infringement of our civil liberties. If there is evidence of that, I think the criminal standard ought to be applied, bearing in mind the severe restrictions available through the injunction process and the fact that a breach of an injunction will be a criminal offence. As I have said, so far as young people are concerned the injunction process is pretty pointless; the ASBO is the only way in which can be dealt with, and, as the House of Lords has said, that should be judged by the criminal standard.

The other issue that I particularly want to raise is set out in amendment 43 and new clause 20: the duration of an injunction. Injunctions can be of indefinite duration—they can go on for 10, 15 or 20 years—if there is no maximum period. We have tabled this amendment and new clause primarily because we think it is important for the House to have the opportunity to consider whether there should be a maximum term. That is especially the case in relation to the interim injunction process. That is not subject to a maximum time limit, but the whole point of an interim injunction—which can be obtained without notice to the individual concerned, and on a lower standard—is that it should be interim and subject to a proper hearing fairly promptly afterwards to determine whether it should be converted into a full injunction.

So far, we have been unconvinced by the Government’s arguments as to why injunctions of indefinite duration are necessary. They say that if there were a maximum time limit—we have put forward a suggestion as to what it should be, merely for purposes of debate—those applying for the injunctions would automatically apply for the finite maximum period. The alternative argument, however, is that if there were a maximum period, the investigators applying for the injunction would then have to start thinking hard about getting the necessary evidence for a criminal prosecution, rather than relying on the softer option of the available indefinite injunction.

We do not have much time to speak on these matters, and as I will not be able to respond in detail to my hon. Friend’s remarks, may I put on the record the fact that we will look at the issue of time limits and duration in respect of injunctions?

I am grateful to my hon. Friend. As a result of that assurance, I do not feel the need to put my argument any more strongly today. I am aware that other Members wish to speak, so I shall now bring my remarks to a close.

As many Members will be aware, the background to the Government’s gang injunction proposals is the approach in Birmingham, where injunctions under section 222 of the Local Government Act 1972 were deployed to combat gang-related violence. Discussions of their use with West Midlands police and Birmingham city council have made it clear that they regarded the injunction as a useful tool to combat serious gang activity, basing a claim on the nuisance caused by gang activity and seeking to bring this within the remit of the Act. In many respects, the use of the injunction to disrupt gang activity is a model based on the tools used to disrupt gangs in Boston, where the injunction is seen as an important mechanism available to law enforcement officers.

We should be under no illusions about the nature of some of the challenges currently facing young people in this country. The children’s charity NCH—now Action for Children—highlights the shocking situation of young people growing up with the real fear of becoming a victim of crime, particularly violent crime. Therefore, we are certainly prepared to consider the application of injunctive relief to communities and neighbourhoods. The House will be aware that injunctions are used to prevent domestic violence, for example, and their application in a preventive sense in respect of harm is understood by the courts. However, in the case of Birmingham city council v. Marnie Shaft and Tyrone Ellis the use of section 222 injunctions was ruled to be inappropriate by Nottingham county court, and that decision was upheld by the Court of Appeal last October.

As I said in Committee, I understand why the Government have thought it appropriate to bring these proposals before the House. One of the most insidious aspects of the organised criminal gang structure is that gangs consciously focus their recruitment of new members on some of the most vulnerable members of society, such as those with poor educational attainment, weak family structures, addictions and mental illness. They also try to undermine the family ties that do actually exist.

Various approaches have been taken to combat gang crime and pernicious gang activity in different parts of the country, reflecting the fact that gangs are different in their structure and nature in the different areas in which they operate. It is right, for example, that Birmingham should be able to adopt a strategy different from that followed in Manchester, Liverpool or London, based on the particular problems it experiences and the nature of the relevant gang activity. Some gangs are simply interested in territory; others are motivated by broader criminal intent and the wish to fund a lifestyle. What they all tend to have in common is a sense of identity, often using colours to distinguish which gang people are part of, and aping some of the activities of gangs in the US.

The key question is whether the injunctions sought by the Bill are appropriate, and in particular whether they overstep the line from being preventive to being punitive, with all of the consequences in human rights law that that would impose. The Joint Committee on Human Rights has made a number of important points in its fifteenth report, and I am only sorry that the response to it—promised in the Home Secretary’s statement today—had not reached the Vote Office prior to the commencement of the debate on this Bill, so that Members have not had a proper opportunity to assess and assimilate the Government response. I hope the Minister will be able to set out some of the Government’s thinking on some of the key issues that have been highlighted, in particular the application of the criminal standard. The Minister will be aware of the McCann case, as we have discussed it at length.

The issue of the treatment of children is also relevant. It is my clear understanding that these injunctions would not be suitable for application to children, but from my brief look at the Government response to the Joint Committee it appeared that there was some suggestion that they could be used in certain restricted circumstances. We need to have a clearer understanding of the application of these provisions if they are intended to operate in that way; the Minister will be aware of issues in respect of enforcement and the fact that they would come not before the youth court but before the High Court or county court. There is certainly a very different enforcement regime governing breach of what is a civil injunction than breach of an ASBO, for example, which would be treated as a criminal matter and the individual concerned would be brought before a youth court.

The Minister will be aware that the injunctions seek to impose positive conditions on the recipient. That goes much further than what might be considered to be protective, either for the individual concerned or for the community affected. These provisions will inevitably be challenged, ultimately before the courts, on their compliance with applicable human rights law. The Minister needs to satisfy the House that they are likely to withstand this challenge. This is particularly the case for injunctions that are designed to be open-ended in duration and without formal review within a specific period as to their continuing suitability or necessity. I heard, however, what the Minister said about this being a live issue that the Government are looking into, and I welcome that.

On a slightly more conciliatory note, I should acknowledge that the Government have sought to address some of the concerns highlighted in Committee. These injunctions centre around the concept of gang-related violence but without defining what is understood by the term “gang”, with Liberty asking:

“Is it simply a group of young people wearing hoodies?”

We understood from what the Minister said then that it was not, and the Government have now brought forward an amendment to provide some greater clarity, but we need still more clarity. We have tabled an amendment in relation to this issue, and the work done by my right hon. Friend the Member for Chingford and Woodford Green (Mr. Duncan Smith) and the Centre for Social Justice has set out some of the alternative thinking. The definition of the term “gang” is important if we are to define the application of these provisions properly, so that they are used in a manner appropriate for serious gang activity.

We also believe it is appropriate for relevant NHS bodies, and for probation and other relevant agencies, to be involved in the consideration of these injunctions. I note that the Minister has introduced further amendments to address those issues, which we welcome.

The further issues and concerns highlighted in Committee and in some of the amendments introduced today are important, and a response to them is necessary. Too many young lives are being lost as a result of gang-related disputes over postcode territories or minor disagreements where a perverse notion of “respect” is seen to have been challenged. We need to be satisfied that these injunctions are appropriate, and the Government still need to make out their case for certain important aspects.

As was said during the programme motion debate, this complex issue was introduced late in the Public Bill Committee—in the last week. That meant that we could not discuss it in full and prepare properly in Committee, and we have a derisory 30 minutes to discuss it now, so clearly nobody can be satisfied with the amount of scrutiny that we can give it at this point.

Has the hon. Gentleman noticed that both Ministers have excused their inability to answer questions by saying that they do not have enough time? Is it not time that they realised that the time is in their hands, and that the reason why they do not have enough time is that they have denied themselves that opportunity?

Absolutely, but as the case was well made during the debate on the programme motion, I shall not go back over that ground.

The injunctions on gang members were said by the Government to be very effective in Birmingham, but Nottingham county court and then the Court of Appeal ruled that, first, the evidence being used to justify such draconian controls on people was too flimsy to justify them, and secondly, that existing powers and legislation were adequate.

In the short time that we had to debate this matter in Committee—perhaps this will also be the case in the two or three minutes that the Minister will have to answer today—the Government have in no way been able to make an adequate case as to why they think the existing legislation is inadequate and needs this draconian step forward; why such serious restrictions, which could almost amount to a control order, depending on how they are imposed, should have a lesser burden of proof—the civil burden of proof rather than the criminal standard—and why the state should protect people against their will in some cases, other than, obviously, in cases involving mental health legislation.

The Government have not given us any evidence, either, that they have considered the USA evidence from California and Chicago. The Stanford Law Review examined the approaches there, which have been in use for 20-odd years in some cases, and said that gang injunctions appear to work, but in fact simply move the problem to the next neighbourhood and do not have any effect, except to stigmatise large groups of people. It cited the case involving a 16-year-old, in which the police told the school involved that he was a cousin of some gang members who lived on his street and was thus probably in the gang, so he ended up being suspended from school, although there was no evidence that he had any involvement at all.

The university of Manchester has done research in Britain that shows similar stigmatisation occurring. It has studied the American examples and shown how the gang injunction process in America has slipped into mainstream law. In Committee, I, like other hon. Members, raised the issue of the way in which various pieces of legislation—counter-terrorism legislation—have similarly slipped into use in mainstream law in terms of controlling peaceful demonstrations at arms fairs, environmental events and so on.

Finally, the Government have not explained why, given that most of the examples the Minister gave at the start of the debate in Committee involved 15, 16 and 17-year-olds carrying guns and knifing each other, this legislation does not apply to anybody under 18 and, as has been said, is therefore a toothless paper tiger. Liberal Democrats believe that, as I argued in Committee, for such serious restraints on people’s liberty, which potentially amount to control orders, a criminal standard of evidence, and time limits, should apply to injunctions. We expressed doubt about the state imposing draconian restrictions on someone “for their own protection”, so we tabled our amendments, which are very similar to the conclusions reached by the Joint Committee on Human Rights and the amendments that resulted from those.

Given the derisory and insulting amount of time— 30 minutes—that we have had to debate this matter today, which means that the Minister will barely be able to answer, I do not propose to push the amendments standing in my name and those of my colleagues to a vote. I know that in Committee the Minister feared that this provision would not get through the House of Lords. I hope that that House will take note of what was said in Committee, and what has been said—very briefly—today, and will go through this in great detail and at great length. I hope that either it will insist that the Minister makes some very convincing arguments, which we have not yet heard, or it will radically alter the Bill when it reaches the other place.

I shall be brief, because everyone is waiting for the Minister to sum up. The only reason why I wish to speak is that I produced a report, having sent a number of people around America and the UK, whose outcome tends towards this approach. The Government have drawn some of the provisions in this particular area from the report, and I therefore congratulate them on having read it. They are going in the right direction, but I wish to make two points.

The UK has a major and growing problem with street gangs. The way in which cities in other parts of the world, particularly in America, have been successful in tackling the problem has been based on the idea of getting to younger kids earlier, on a looser parameter—not to make criminals of them; quite the contrary: the aim is to draw them out of criminality. The voluntary sector is involved, these people go into remedial education and they are got out of the gangs. Very few of them end up going through the criminal process in Boston—only the ringleaders do—and this approach is crucial in pulling them out of that once they have been identified. What follows is the necessary step of other organisations in the police stations picking them up straight away, and that has yet to be resolved.

The definition is crucial in all of this; the hon. Member for Hendon (Mr. Dismore) was right to say that we need a clear definition. We know that the Home Office has a definition and that it has stuck it back in as an amendment, but we do not think it is sufficient; we think that the better amendment is one based more on what has been put forward by my hon. Friend the Member for Hornchurch (James Brokenshire), because it is drawn directly from our report. There was a reason for that definition too, because we drew that from what people in Boston, New York, Glasgow and Liverpool, where there had been remarkable success, said to us.

The point about the definition is first, that it must be good, and secondly, that all countries should use it. The Home Office definition is not used by every police force—it gets changed—but it should be universal, so I urge the Government to get the definition right and make it universal. I say to the Government and to colleagues on both sides of the House that gangs are a major problem. My area of Waltham Forest has seen murders and continuing violence from street gangs, and the situation is getting worse, not better. The police are tearing their hair out over this, and they need some help and support. Tackling this issue needs all the Government agencies, as well as the police, to operate, so I congratulate the Government on making the right moves forward, although much remains to be done.

I wish to make a couple of quick points in the time available to me. I thank all the Members who have spoken, albeit briefly, because some important points have been made. I particularly thank the right hon. Member for Chingford and Woodford Green (Mr. Duncan Smith), because we have tried to draw on the work that he has done.

Before I deal with the issue of under-18s, I wish to make another point. The hon. Member for Chesterfield (Paul Holmes) asked about the evidence. In Birmingham, the injunctions were used for over-18s, not under-18s. In Handsworth-Lozells-Newtown, the level of robberies in the four months prior to the injunctions averaged 55 a month—compared with 33 a month while the injunctions were in place; after the injunctions were removed, the level rose again to 48 a month. In Aston-Nechells, an average of 11 firearms incidents took place in the four months preceding the orders, compared with four for the period when the orders were in place, and after the court judgment the figure rose to nine—

If the hon. Gentleman does not mind, I shall continue.

Firearms usage in the city centre dropped from eight incidents in July 2007 to one in September 2007, but again, after the injunctions were removed firearms usage increased, leading to a peak of nine incidents in May 2008. We thought that that evidence demonstrated that the injunctions had made an impact in respect of over-18s and that, given the fact that the courts had said that Birmingham had exceeded its powers, we ought to bring something forward to enable this approach to be used across the country.

I am not a lawyer, but lawyers tell me that there is an issue to address about using civil injunctions for under-18s and that it arises from the inability, in most cases, to enforce any breach. As that would be a civil contempt of court, one cannot imprison under-18s for it, and somebody has to be able to pay a fine in a legal way, and not many of those who would be subject to one of these injunctions would. I have said that the Home Office is looking to see how it can introduce similar legislation to deal with the under-18s issue in due course, and we will certainly try to do that.

The right hon. Member for Chingford and Woodford Green and the hon. Member for Hornchurch asked about definitions. We have included a definition of a “gang” in the Bill, but it will need to be debated. I am sure that as it is debated, as the Bill goes through Parliament, we will be able to improve it still further, but we have started the process and I hope that we can end up with something that we would all want. We are looking, as we said we would, at putting guidance before the House to ensure that people are properly informed about the use of these injunctions, and we have widened the number of people who will be consulted on whether or not the injunctions are used.

I agree absolutely with those who say that gangs are a major problem in our society in some parts of our cities. These injunctions will be a useful tool with which the police and local authorities will be able to combat some of the most serious and damaging individuals in our society and—

Two and a half hours having elapsed since the commencement of proceedings on consideration, the debate was interrupted (Programme Order, this day).

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

Question negatived.

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

Clause 32

Injunctions to prevent gang-related violence

Amendment made: 60, page 26, line 19, leave out from first ‘of’ to end of line 20 and insert

‘, or is otherwise related to, the activities of a group that—

(a) consists of at least 3 people,

(b) uses a name, emblem or colour or has any other characteristic that enables its members to be identified by others as a group, and

(c) is associated with a particular area.’.—(Mr. Coaker.)

Clause 36

Consultations by applicants for injunctions

Amendment made: 61, page 28, line 4, leave out subsections (2) to (4) and insert—

‘( ) The consultation requirement is that the applicant must consult—

(a) any local authority, and any chief officer of police, that the applicant thinks it appropriate to consult, and

(b) any other body or individual that the applicant thinks it appropriate to consult.’.—(Mr. Coaker.)

Clause 45

Guidance

Amendment made: 62, page 31, line 5, at end insert—

‘( ) The Secretary of State must lay any guidance issued or revised under this section before Parliament.’.—(Mr. Coaker.)

Clause 47

Interpretation

Amendment made: 63, page 31, line 24, at end insert—

“consultation requirement” has the meaning given by section 36(2);’.—(Mr. Coaker.)

New Clause 22

Penalty for contravening notice relating to encrypted information

‘(1) Section 53 of the Regulation of Investigatory Powers Act 2000 (c. 23) (failure to comply with notice relating to encrypted information) is amended as follows.

(2) In subsection (5A)(a) after “case” insert “or a child indecency case”.

(3) After subsection (5B) insert—

“(6) In subsection (5A) “a child indecency case” means a case in which the grounds specified in the notice to which the offence relates as the grounds for imposing a disclosure requirement were or included a belief that the imposition of the requirement was necessary for the purpose of preventing or detecting an offence under any of the provisions listed in subsection (7).

(7) Those provisions are—

(a) section 1 of the Protection of Children Act 1978 (showing or taking etc an indecent photograph of a child: England and Wales);

(b) Article 3 of the Protection of Children (Northern Ireland) Order 1978 (S.I. 1978/1047 (N.I. 17)) (corresponding offence for Northern Ireland);

(c) section 52 or 52A of the Civic Government (Scotland) Act 1982 (showing or taking etc or possessing an indecent photograph of a child: Scotland);

(d) section 160 of the Criminal Justice Act 1988 (possessing an indecent photograph of a child: England and Wales);

(e) Article 15 of the Criminal Justice (Evidence, Etc.) (Northern Ireland) Order 1988 (S.I. 1988/1847 (N.I. 17)) (corresponding offence for Northern Ireland).”

(4) The amendments made by this section apply in relation to cases in which the section 49 notice was given after the commencement of this section.’.—(Mr. Campbell.)

Brought up, and read the First time.

With this it will be convenient to discuss the following:

New clause 4—Loitering: decriminalisation of under 18 year olds—

‘(1) The Street Offences Act 1959 (c. 57) is amended as follows.

(2) In subsection (1) of section 1, after “prostitute”, insert “aged 18 or over”’.

New clause 7—Protection of children (encrypted material)—

‘(1) Section 53 of the Regulation of Investigatory Powers Act 2000 (c. 23) (failure to comply with a notice) is amended as follows—

(a) in subsection 5A, after paragraph (a), insert—

“(aa) where subsection 5C applies, five years;”,

(b) after subsection 5B, insert—

“(5C) This section applies where—

(a) the offender has been previously convicted of a relevant sexual offence,

(b) an indecent photograph of a child as been found in his possession, or

(c) the court is satisfied that it is more likely than not that the protected information may contain an indecent photograph of a child.

(5D) For the purposes of subsection (5C)—

“relevant sexual offence” means an offence under—

(a) section 1 of the Protection of Children Act 1978 (c. 37) (indecent photographs of children);

(b) section 160 of the Criminal Justice Act 1988 (c. 33) (possession of indecent photographs of a child);

(c) section 170 of the Customs and Excise Management Act 1979 (c. 2) (penalty for fraudulent evasion of duty etc) in relation to goods prohibited to be imported under section 42 of the Customs Consolidation Act 1876 (c. 36) (indecent or obscene articles), if the prohibited goods included indecent photographs of persons under 16;

(d) sections 48 to 50 of the Sexual Offences Act 2003 (c. 42) (abuse of children through prostitution or pornography) where the victim was under 18 and involved in pornography;

“indecent photograph of a child” has the same definition as in sections 1 and 7 of the Protection of Children Act 1978 (c. 37) and for the avoidance of doubt includes a reference to a pseudo-photograph of a child or a tracing of an indecent photograph within the meaning of section 7(4A) of that Act.”.

(2) In Schedule 3 of the Sexual Offences Act 2003 (c. 42), after paragraph 35 insert—

“(36) An offence under s. 53 of the Regulation of Investigatory Powers Act 2000 (c. 23) where subsection (5C) applies.”’.

New clause 25—Paying for sexual services of a prostitute known to be trafficked or coerced: England and Wales—

‘After section 53 of the Sexual Offences Act 2003 (c. 42) insert—

“53A Paying for sexual services of a prostitute known to be trafficked or coerced: England and Wales

(1) A person (A) commits an offence if—

(a) A makes or promises payment for, or uses, the sexual services of prostitute (B), and

(b) A knows, or ought to know,

(i) that B is the victim of trafficking.

(ii) that the sexual services have been provided through coercion of B,

(iii) that B has provided sexual services in order to gain access to controlled drugs, or

(iv) that a third party has influenced the activity of B by direction or instruction in circumstances where B does not freely consent to such direction or instruction.

(2) It is irrelevant where the sexual services have been or will be provided.

(3) In this section, ‘trafficking’ means the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.

(4) In this section, ‘coercion of B’ includes—

(a) violence against B or another person,

(b) threats against B or another person, or

(c) intimidation of B.

(5) A person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months, or a fine not exceeding the statutory maximum, or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years.”’.

New clause 26—Paying for sexual services of a prostitute known to be trafficked or coerced: Northern Ireland—

‘After Article 64 of the Sexual Offences (Northern Ireland) Order 2008 (S.I. 1769) (N.I. 12)) insert—

“64A Paying for sexual services of a prostitute known to be trafficked or coerced: Northern Ireland

(1) A person (A) commits an offence if—

(a) A makes or promises payment for, or uses, the sexual services of prostitute (B), and

(b) A knows, or ought to know,

(i) that B is the victim of trafficking.

(ii) that the sexual services have been provided through coercion of B,

(iii) that B has provided sexual services in order to gain access to controlled drugs, or

(iv) that a third party has influenced the activity of B by direction or instruction in circumstances where B does not freely consent to such direction or instruction.

(2) It is irrelevant where the sexual services have been or will be provided.

(3) In this section, ‘trafficking’ means the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.

(4) In this section, ‘coercion of B’ includes—

(a) violence against B or another person,

(b) threats against B or another person, or

(c) intimidation of B.

(5) A person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months, or a fine not exceeding the statutory maximum, or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years.”’.

New clause 37—Definition of a brothel—

‘(1) The Sexual Offences Act 1956 is amended as follows.

(2) After section 33A insert—

“33B Definition of a brothel

(1) Premises shall not be regarded as a brothel where—

(a) no more than two prostitutes, with or without a maid, are working together or separately on any given day; and

(b) each prostitute retains control over her or his individual earnings from the prostitution carried out at the premises.

(2) In this section ‘prostitute’ has the meaning given by section 51(2) of the Sexual Offence Act 2003.”’.

New clause 38—Decriminalisation of associated workers in brothels—

‘(1) The Sexual Offences Act 1956 is amended as follows.

(2) After section 33A insert—

“33B Associated workers in brothels

For the purposes of section 33 and 33A, a person who is not directly involved in the provision of sexual services is not to be treated as assisting in the management of a brothel by reason only of being employed in a brothel.”’.

Amendment 142, in page 15, line 25, leave out clause 13.

Amendment 211, in clause 13, page 15, line 27, leave out from beginning to end of line 2 on page 16 and insert—

‘“53A  Paying for sexual services of a trafficked prostitute

(1) A person (A) commits an offence if—

(a) A makes or promises payment for the sexual services of a prostitute (B), and

(b) B has been trafficked, and

(c) A is aware, or ought to be aware, that B has been trafficked.

(2) Whether A ought to be aware that B has been trafficked is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B has been trafficked.

(3) It is irrelevant where in the world the sexual services are to be provided and whether those services are provided.”’.

Government amendment 46.

Government amendment 47, page 15, line 30, leave out from ‘(B),’ to end of line 32 and insert—

‘(b) a third person (C) has used force, deception or threats of a kind likely to induce or encourage B to provide the sexual services for which A has made or promised payment, and

(c) C acted for or in the expectation of gain for C or another person (apart from A or B).’.

Amendment (a) to Government amendment 47, in line 2, leave out ‘of a kind likely to induce or encourage’ and insert ‘which caused’.

Amendment 235, page 15, line 31, at beginning insert

‘A knows or ought to know that’.

Amendment 236, page 15, line 36, leave out paragraph (b).

Government amendments 48 and 49.

Amendment 237, page 16, line 3, leave out subsection (4) and insert—

‘(5) A person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months, or a fine not exceeding the statutory maximum, or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years.’.

Amendment 215, page 16, line 4, at end add—

‘(5) For the purposes of this section “force” includes coercion by threats or other psychological means including exploitation of vulnerability.’.

Amendment 143, in page 16, line 5, leave out clause 14.

Government amendment 50.

Government amendment 51, in clause 14, page 16, line 11, leave out from ‘(B),’ to end of line 13 and insert—

‘(b) a third person (C) has used force, deception or threats of a kind likely to induce or encourage B to provide the sexual services for which A has made or promised payment, and

(c) C acted for or in the expectation of gain for C or another person (apart from A or B).’.

Amendment (a) to Government amendment 51, in line 2, leave out ‘of a kind likely to induce or encourage’ and insert ‘which caused’.

Amendment 238, page 16, line 12, at beginning insert

‘A knows or ought to know that’.

Amendment 239, page 16, line 17, leave out paragraph (b).

Government amendments 52 and 53.

Amendment 240, page 16, line 21, leave out subsection (4) and insert—

‘(5) A person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months, or a fine not exceeding the statutory maximum, or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years.’.

Amendment 216, page 16, line 23, at end add—

‘(5) For the purposes of this section “force” includes coercion by threats or other psychological means including exploitation of vulnerability.’.

Amendment 6, in clause 15, page 16, line 32, leave out ‘three months’ and insert ‘one week’.

Amendment 7, page 17, line 1, leave out clause 16.

Amendment 194, in clause 25, page 22, leave out lines 1 to 3.

Government amendments 54 to 59.

Amendment 199, in schedule 3, page 149, line 3, leave out paragraphs 1 and 2.

Government amendment 119.

First, I want to deal with the matter of encryption keys. New clause 22 and amendment 119 are together intended to have the same effect as new clause 7, which was tabled by the hon. Member for Mole Valley (Sir Paul Beresford). I want to place on record our gratitude to the hon. Gentleman for his interest in this area and for the way in which he has pursued this point.

New clause 22 and amendment 119 relate to the maximum sentences that can be imposed when people fail to comply with a notice relating to encrypted information issued under part 3 of the Regulation of Investigatory Powers Act 2000. Specifically, the amendments raise the maximum sentence on indictment from two years’ to five years’ imprisonment in child indecency cases. At present, the sentence in such cases is limited to two years. Given that sentences for child indecency offences can be far higher, as the hon. Member for Mole Valley has pointed out, we are proposing to raise the sentence for failing to comply with a notice to five years. In addition, the amendments allow individuals convicted of failing to comply with a notice or tipping off in connection with such a notice to be made subject, in appropriate cases, to a sexual offences prevention order under the Sexual Offences Act 2003.

We have adopted a slightly different approach from that proposed by the hon. Gentleman, because of the technical problems with the drafting of his new clause. We have also not included all the offences that were in new clause 7. That is not because they are not important offences, but rather because—in so far as they involve indecent images of children—they would be redundant. In other words, when they do not involve such images, the offences that we have included are the relevant offences so the higher sentence should be available anyway.

Our amendments will also make high sentences available in relation to specified offences in Northern Ireland and Scotland, and I should clarify that the Scottish Executive have welcomed those provisions. I want to conclude this section of my speech by repeating my thanks to the hon. Member for Mole Valley. I know that his efforts have been appreciated by members of the law enforcement community, particularly the Child Exploitation and Online Protection Centre. I hope that he will feel that there is no need to press his new clause and that he and all hon. Members will be able to support new clause 22 and amendment 119.

The Minister will be aware that this is an issue that we highlighted in the Public Bill Committee. I am sure that my hon. Friend the Member for Mole Valley (Sir Paul Beresford) will be pleased to hear that the Government have accepted the concept in tabling these amendments. Can the Minister give any explanation or guidance as to how the provisions will be rolled out? Is it intended that CEOP will take this forward, or will further broader guidance be given to police forces on the application of this new offence? Obviously, we hope that it will be effective in dealing with these pernicious paedophiles, who seek to hide away appalling images in computers and other systems in an encrypted form.

Of course, CEOP plays a vital part in tackling this hideous crime. It is important that police officers in forces across the country are aware of this criminality and are able to spot it and know what to do with it. We will bring forward guidance in due course.

I want to move now to the issue of “controlled for gain”, which took a great deal of time to debate in Committee. The debate in Committee was positive and constructive, even though we did not always agree. Amendments 142 and 143 would remove clause 13 and clause 14 respectively and replace those clauses with a new offence that seeks to address some of the concerns that have been raised about those clauses as the Bill has progressed. First, they seek to clarify the scope of the offence. In Committee, there were concerns that that the phrase “controlled for gain” was too wide and not sufficiently clear. We have tabled our own amendments in response to those concerns.

We believe that our amendments are preferable to the approach taken by new clauses 25 and 26 and a number of amendments that have been tabled that relate to the definition of “controlled for gain” or the scope of this offence. First, we have used the terms “force”, “threats” or “deception” as we consider them to be more precise than the word “coercion”. Secondly, although there appears to be consensus that the offence should cover those who pay for sex with someone who has been trafficked, we do not feel that it would be appropriate to adopt the approach followed by using the term “trafficked” in the legislation. For that reason, we also have reservations about amendment 211.

Using the term “trafficked” would mean that if someone had been trafficked and escaped from their traffickers, but still chose to work as a prostitute, it would still be an offence to have sex with that person if the payer knew or ought to know about the prostitute’s past. Instead, our amendment focuses on the conduct that is likely to have induced or encouraged the person to provide the sexual services to the payer.

Has the Minister seen the report of the Select Committee on Home Affairs on human trafficking, which was published last Thursday, and the concern that we expressed about the enforceability of what he is talking about? The evidence that the police gave us was that it would be very difficult to enforce. I welcome the shift in position. The Government have taken an important step forward in the few months since the publication of the Bill. Has the Minister been able to go back to the police to ask them whether this new proposal will be workable?

I welcome the report by the Select Committee and the interest that it has taken in such matters. Of course, we speak to the police regularly about a host of things, and not least the enforceability of the legislation. Let me say by word of caution that we have brought forward a new definition that we believe is more workable. However, I think that this is still a work in progress. I will be listening carefully to the arguments that are made today from people with all sorts of different points of view on the matter. It is crucial that we get this definition right. Of course we want the definition to be right as the Bill leaves this place and goes to another place, but I am sure that this point will be the subject of great discussion at a later stage.

I would modestly suggest that a definition that can satisfy everybody is all but impossible to achieve. There is a definition that covers anybody who employs a cleaning lady, for example, who might be an illegal immigrant. It is no defence to say, “I didn’t know that she was an illegal immigrant.” It is a crime under our law, decided by this House, to employ someone who is an illegal immigrant. Therefore, if someone has sex with someone who has been trafficked, it should be no defence to say, “I did not know that she was trafficked.” [Interruption.] My right hon. Friend the Member for Leicester, East (Keith Vaz) says, “Ridiculous”, but this is a profoundly important point. We have to send a signal out to the traffickers that if they bring girls into Britain and men pay for sex with them, buying that sex is a crime. Until we cut off some of the demand with tough measures we will never deal with the supply.

My right hon. Friend goes to the crux of the debate. I understand that there are different views, not only about the workability of this measure but about whether it was a good idea to embark on it in the first place. However, my contention in Committee, which still holds, was that this is a fundamentally important piece of legislation. We need to focus on the Government’s intention when we set out. The intention has not changed, but we have learned lessons on how best we can define the way in which we can take this forward. As I say, the debate continues.

First, may I take this opportunity to welcome the fact that the Government have thought further about restricting the definition of “controlled to gain” to the language used in their amendment? It is probably equivalent to the way in which provisions are made in new clause 25, of which I hope to speak in favour if I catch your eye, Madam Deputy Speaker. We can recognise that that definition is work in progress, but the key issue concerns the strict liability and the fact that that is associated with a trivial penalty, even for someone who knowingly has sex with someone whom they know to have been coerced. That is what divides us still at the moment, and therefore that is what I think most of this debate will be about.

I intend to cover that very point. It is important that we have a workable definition that does the job we ask it to do, but it is also important that we have a proportionate response. I shall return not just to strict liability but to the penalties that flow from such offences.

We expect our proposed definition to cover most cases when a prostitute is still under the control of traffickers. We also expect it to cover most of the cases intended to be captured by the fourth scenario mentioned in new clause 25, whereby someone is directed or instructed to provide sexual services but the person does not consent to that direction, provided that they were not simply free to ignore it. In such cases, we imagine that such directions or instructions would be backed up by force or threats.

Our new clause will deal with the case of a prostitute who agrees to work as a prostitute because their pimp would otherwise refuse to supply them with controlled drugs. However, unlike new clause 25, it would not cover a person who decides to work as a prostitute and chooses to use the money to pay for controlled drugs. Although we accept that there are clearly desperate circumstances in which people provide sexual services to gain drugs or money for drugs, we believe that element of the proposed new clause is drafted too widely.

New clauses 25 and 26 would capture anyone who uses the sexual services of a prostitute who, under the definition, was trafficked, coerced or otherwise considered exploited, rather than just someone who pays for sexual services. There would be a danger that the offence would also criminalise consenting sexual relationships, such as those between the prostitute and their partner or spouse. It is payment to those who are controlling the prostitutes that fuels demand for them, so that act is the focus for our offence.

I am grateful to the Minister for giving way again. It is useful for the House to discuss these points as he makes his critique, because we may never come back to them.

Is the Minister saying that the reference in new clause 25 to a person who

“uses…the sexual services of a prostitute”

might be felt by the police and the courts to apply to the husband or wife of a prostitute? Is he seriously saying that that is a flaw in the provision?

We are saying that we have to be careful about the language we use. The hon. Gentleman may be dismissive of the fact, but someone who uses a woman who is a prostitute is different from someone who exploits them for gain. There is a clear distinction and as we are talking about moving to a better definition it is important that we get the language absolutely right, or as close as we can.

New clauses 25 and 26 seek to address the other significant issue that has been discussed in relation to the offence—strict liability. We cannot accept the other amendments that have been tabled on the issue and we have concerns about that aspect of the new clauses. We still believe that strict liability is the most effective way of ensuring that those who pay for sex are forced to consider the circumstances of the prostitute who will be providing the sexual services, and that it protects those who have not chosen to be involved in prostitution.

My next point about the new clauses goes to the heart of the hon. Gentleman’s point about penalty. The proposals would increase the maximum penalty for the offence under clauses 13 and 14, which is currently a fine of £1,000, to 14 years’ imprisonment. Amendment 240 would have the same effect. We intend to continue to make the offence one of strict liability. In our view, it remains appropriate to maintain the maximum penalty as a fine. That is consistent with similar offences aimed at tackling the demand for prostitution, such as kerb crawling. If someone has sex with a person and they do not reasonably believe that the person consents, they should be prosecuted for something else—namely, rape.

The hon. Member for Oxford, West and Abingdon (Dr. Harris) is shaking his head. I realise that the Members who tabled the new clauses and amendments will not be satisfied by all the aspects of our response, but I hope that our amendments to the scope of the offence will be of some reassurance and persuade them not to press the new clauses.

I am not sure that I have adequately understood what my hon. Friend said about the penalty. If someone knowingly or recklessly pays for sex with a person they know is subject to force, deception or threats, surely that is rape and a £1,000 fine is completely inadequate.

The crux of the matter is whether there is evidence. The point I made is that if there is evidence of rape, the person should be prosecuted for rape and the penalties would be considerably higher. We seek to introduce for the first time an offence, and a penalty, to deal with people who have until now been able to get away scot-free. It would cover situations when traffickers have been held responsible for the women who were victims. We know what to do with the victims, but the men were able to walk away. We are saying—indeed, I am strongly saying—that if there is evidence that can be used to prosecute another offence that tackles the problem, that is what should be done. We are talking about reducing demand by sending out a strong message, based on strict liability. The penalty that goes with that strict liability offence is compatible with other measures that we want to introduce, and associated action we could take, to press down on demand—whether that is kerb crawling or other areas. We are saying to men, “If you pay for sex with a woman, whether or not you know she has been trafficked, you will be held responsible and the penalty will be commensurate with that offence”. However, I agree with my hon. Friend that if something else can be brought to bear in such circumstances, the authorities should use that offence.

It is difficult to get a conviction for rape, even in the starkest circumstances outside prostitution. I do not think that there have been any convictions of rape in prostitution and I should be grateful if the Minister could tell us whether he knows of any rape prosecutions against the clients of prostitutes. Does he still agree with Home Office evidence to the Joint Committee on Human Rights that there is no prospect of obtaining a rape conviction in the context of paid sex with a prostitute? If that is the case, that option is not an answer to the hon. Member for Birmingham, Selly Oak (Lynne Jones), so her proposal offers the better way forward.

The hon. Gentleman is in danger of making our case for us. The difficulty in holding people to account has led us to introduce the strict liability clause and although he does not accept it, the penalty we propose is proportionate because it corresponds with other actions that can be taken to suppress demand. He asks me for examples of prosecutions for rape. My understanding is that the figures would not be broken down in that way; if that is not true, I shall set out the alternative. We could not say categorically whether people had been prosecuted for rape in such circumstances, but we must not lose sight of the reality that the men we are talking about have not been held to account. Whether the evidence—in the view of some people—would be akin to rape or whether it was actually evidence of rape, men have walked away from their responsibilities. The offence is one of the measures that we are putting in place to hold them to account and it is an important step forward.

I turn to the amendments tabled by the Home Secretary and a number of Members, which deal with control for gain in relation to clause 13. Amendments 211 and 214 would narrow the offence under clause 13 by removing the term “controlled for gain” and substituting the word “coerced”. Members tabled similar amendments in Committee and the matter was discussed at length. The amendments tabled by my hon. Friends the Members for Hayes and Harlington (John McDonnell) and for Slough (Fiona Mactaggart) and the hon. Member for Totnes (Mr. Steen) and the new clauses tabled by the hon. Member for Oxford, West and Abingdon, which I have already discussed, would clarify the scope of the offence to ensure that it could not be used to prosecute men paying for sex with prostitutes who have freely consented to their involvement in prostitution, who work in a safe environment and who are directed, in a limited way, by a madam.

Our amendments would remove the term “controlled for gain” in light of concern about what would be covered by the word “control”. We do not want to interfere with the way in which “controlled for gain” has been interpreted by the courts in relation to other offences under the Sexual Offences Act 2003 by attempting further to define the term in the Bill. We have instead replaced the word “control” in the offence with a requirement that the prostitute involved must have been subject to force, threats or deception. We believe that that is consistent with the aims of a number of amendments tabled in Committee and on Report. I note in particular that, by using the term “force, deception or threats”, our amendments appear to have a similar effect to amendment 211, tabled by the hon. Member for Totnes.

Government amendments 46 to 53 would amend clause 13 to make it an offence to pay for sex with someone who has been subject to force, deception or threats from a third party of a kind likely to encourage the provision of sexual services for which payment has been made or promised. The third party must have acted for or be in expectation of gain for himself or another person. We believe that the term “force, deception or threats” covers the conduct that we have always been clear that we wish to capture—for example, paying for sex with someone who has been trafficked and forced to work as a prostitute—while clearly excluding circumstances in which someone chooses to work as prostitute entirely of their own free will. We have used those terms because we believe that they best respond to the concerns raised in Committee, while ensuring that we do not compromise the policy objective of tackling the demand for prostitutes who are being exploited.

On the amendment tabled by my hon. Friend the Member for Birmingham, Selly Oak (Lynne Jones), we do not feel that the word “coercion” would add greater clarity to the offence, as it is still not clear what threats or other types of pressure it might cover. We have therefore chosen language that we consider to be more precise.

The Minister’s proposed definition, which severely waters down the Bill’s original intention, will not cover any of the poor women who were killed in Ipswich. They were not forced, deceived or threatened. They were killed, because they were prostitutes, by a man who would face absolutely no pressure from any police authority to stop him buying sex and then taking the women away to kill them. I urge the Government to look very seriously—if not here, certainly in another place—at the amendments that would introduce the definition in relation to forced marriages, because the Minister’s definition would not have protected any of the Ipswich victims.

As I have tried to point out throughout my remarks, we believe that this debate will continue—it will do so this evening, and it will certainly do so in another place—but I reassure my right hon. Friend that I am not deaf to the remarks that I hope will be made from several quarters of the House tonight. We believe that we have alighted in the right place; but as the debate is continuing, we will certainly be open to it. I want to make it absolutely clear that our intention is not to water down severely the proposals.

I very much hope that the Minister will listen carefully, as I am the Member of Parliament in whose constituency two of those sad girls were found. I do not think that I can overstate the feeling locally that the proposals do not go far enough; nor can I overstate the fact that, when people are coerced by their providers of drugs, so that they are provided with drugs on terms in which prostitution is the only route that they feel that they can go down, to exclude the protection that they ought to have under the Bill is something that we feel very strongly about, and I hope that the Minister will listen to those who press him.

I am grateful to the right hon. Gentleman for his remarks, because they go to the nub of why this is such an important part of the debate on an important part of the Bill. I have listened carefully to what he has said, and we must avoid in any way letting down his constituents or, of course, the individuals whom we are talking about.

The Safety First coalition, which developed following the Ipswich murders, is very much against many of the measures in the Bill, simply because it believes that they will make women more vulnerable to attack. That is the strong view of other interested organisations, such as Royal College of Nursing, and it has certainly been expressed by the Police Federation.

That illustrates the problem that I have in trying to get the Bill into the right form to satisfy as many Members as I can, if not all of them, while remaining true to the intention that we set out in the Bill. Very strong views have been expressed from the first day that the Bill was mooted, and I am sure that those views will continue to be expressed. Even when the Bill becomes an Act, a strong debate will continue, because, of course, there are strong and different views about prostitution per se. We have tried, and we are still trying, to ensure that the Bill addresses a particularly horrific set of circumstances, whatever one’s view of prostitution. I hope to satisfy as many right hon. and hon. Members as possible.

Of course, to talk about force, threats or deception might suggest a kind of static process, but we expect that the offence would still be active when the sexual services were provided. If, however, someone was forced into prostitution by a pimp but later chose to continue to work as a prostitute on her own, it would not be an offence to pay for sex with her during that later period. We have also used the term “likely to induce or encourage” because we do not believe that it will be necessary to show the actual affects of the force or threats on the prostitute, as that would be more likely to give rise to the need for the prostitute to give evidence to show the particular affect of the force or threats on her.

My hon. Friend will know that I have tabled amendments designed to address that problem, which relates to the point about enforceability made by my right hon. Friend the Member for Leicester, East (Keith Vaz). I hope that my right hon. Friend will be reassured by a meeting that I had just a few days ago with Tim Brain, the lead for the Association of Chief Police Officers on prostitution and sex crimes, who feels, having studied it more carefully, that the offence is enforceable, even in its initial wording. However, I have tabled my amendments as a result of speaking to lawyers who work in the magistrates courts and who believe that the phrase

“of a kind likely to induce or encourage”

will provide another means to argue about whether an offence has taken place. We want a strict liability offence to operate in magistrates courts, but the complicating factor created by that phrase will make such offences harder to prosecute successfully.

Of course, Madam Deputy Speaker, it is a matter for your discretion, but I hope that my hon. Friend catches your eye, because I want to listen carefully to her remarks, as I do to those of other Members. She has a great deal to say about the psychological pressure that women are put under in such circumstances and about the concern that our current definition will not address that, but let me make it clear—this goes back to what was said by my hon. Friend the Member for Birmingham, Selly Oak—that we do not want to exclude any vulnerable woman in prostitution from the protection afforded by the offence. So we will be interested to hear views on this important matter if my hon. Friend and other hon. Members who want to express them are called to speak. I hope that my explanation has at least highlighted the difficulty of defining what we are trying to combat. I also hope that a constructive process continues, building on the work done in Committee. I am grateful to right hon. and hon. Members for their views.

I turn now to strict liability. Amendments 235, 236, 237, 238, 239 and 240 replicate amendments that were tabled in Committee and would remove the strict liability aspect of the offence. I am grateful for the dialogue that we have had, for the prospect of further amendments that will allow the debate to continue and to the Joint Committee on Human Rights for its report on the Bill. We particularly note the Joint Committee’s comments in relation to the offence’s compatibility with article 8 of the European convention on human rights. However, we do not accept the Committee’s conclusions. We are satisfied that the new offence complies with both the European convention and principles of common law. We do not accept that article 8, which is about the protection of person’s private and family life, includes a right to pay for sex. In any event, we consider that any interference with a person’s private life would be in accordance with the law and can be justified as necessary for the protection of health, morals and the rights and freedoms of others.

The JCHR has suggested that the offence is not sufficiently certain; we simply disagree. We believe that the clause is clear. A person will know that if they pay for sex with someone who is found to have been controlled for gain, they commit an offence. If someone who intends to pay for sex has any doubt as to whether the prostitute is being controlled for gain, they can choose not to pay for sex with that person. The amendments that we have tabled to clarify the scope of the offence will make clearer the circumstances in which it will be illegal to pay for sex with a particular person, and that should help people to regulate their behaviour accordingly.

I have noted the points raised in Committee by the Joint Committee on Human Rights, and by a number of hon. Members, and I hope to be able to address all their concerns explicitly. None the less, we still believe that strict liability is the most effective way of ensuring that those who pay for sex are forced to consider the circumstances of the prostitute providing the sexual services, and of protecting those who have not chosen to be involved in prostitution. It is vital, and right, that we do not ignore the desperate and exploitative circumstances that affect some of those involved in prostitution. It will not be a defence to say, “I didn’t know that this person was controlled for gain.” That is the key aim of the offence—to ensure that sex buyers are held responsible for their conduct, and to ensure that we deal with those who fuel demand for prostitution. Strict liability is fundamental to ensuring that.

To clarify, when the Minister says that he wants strict liability in order to force men, if we can generalise, to consider the consequences of their actions, is he not saying that they should make inquiries as to whether the person is controlled for gain, or whatever the definition is? Yet under a system of strict liability, if men did make such inquiries, as we want them to, but were misled, or got it wrong, they would still be penalised, although they had made every effort to ensure that the person was not controlled for gain. That does not encourage them to make those inquiries, because whether they do or not, if they are misled, they will be caught by the offence. Does the Minister recognise that the measure will therefore not have the impact that he hopes it will? He certainly has not produced evidence that it would have such an impact.

I think that we have to take one step back from those circumstances. We heard in Committee, and in the evidence sessions, about men who had come forward to say that they believed that women had been trafficked, or were being controlled for gain. They had alerted the women about where they might seek support in order to exit from prostitution, but I think that we have to take one step back from that and say to men: “If you get involved in these situations, it is no good saying that you didn’t know.” One might say: “How do you not know something that you do not know?” but that is a risk that they take. The bottom line is that if a person visits a prostitute, and there is any suggestion or hint that the prostitute was trafficked or is controlled for gain, or if the question even is in their mind, the person should not go ahead. That is a choice that they can make.

To add to that, as the hon. Member for Oxford, West and Abingdon will know, because he was on the Committee, there are circumstances in which men point women in the direction of support, but in every single example that the POPPY project cited, the men who pointed them in the direction of help and support had sex with them first. We are not talking about a simplistic, black-and-white situation; we are talking about a complex set of circumstances. The easiest and clearest way to put it is this: “If you don’t want to get caught up in this offence, and there is any doubt in your mind, whether there is any evidence or not, just don’t do it.”

I want to turn to another issue that rightly took up the Committee’s time: lap dancing. In particular, I want to speak about amendments 194, 198, 199 and Government amendments 54 to 59. Lap-dancing clubs have grown in number in recent years, and have become an issue of concern for many local communities, who do not feel that existing legislation is adequate to address the impact of such venues on a local area. We have brought forward measures in the Bill to reclassify places that provide lap dancing and other similar entertainment as sex establishments under the Local Government (Miscellaneous Provisions) Act 1982. That will give local authorities greater powers to control the number and location of lap-dancing clubs.

Is it the intention of the Government, under the Bill, to close down lap-dancing clubs that were opened, in good faith, under previous legislation?

The purpose is to give communities the opportunity to have their say. In some cases they accept lap-dancing clubs, but in many cases they oppose them. The measure is about empowering communities that do not feel that they are, or have been, part of the process to date. There is a concern that lap-dancing clubs have grown in number, and that they could continue to grow in number unless communities are able to have a stronger say. Under the changes that we propose, if a lap-dancing club is a well-established and well-run establishment, there is no reason why it would not continue in business. The measures address the deficit that there was in the past, with regard to what local communities were able to say about lap-dancing clubs, particularly new ones, in their area.

I am grateful to the Minister for his clarification, but do his proposals introduce any kind of grandfather rights for lap-dancing clubs that were opened, in good faith, under previous Government legislation?

We are currently working on that. The other debate on grandfather rights that I remember was on the introduction of the Licensing Act 2003. The reality is that lap-dancing clubs will, like other establishments, need to be licensed. If local authorities adopt the legislation, such clubs will, at some point, need to be licensed. We are not saying that the legislation will do away with lap-dancing clubs; that was never the intention, and it is not the intention now.

Does the Minister realise that there has been a rash of applications for lap-dancing licences, just prior to the legislation coming into force? If there were to be grandfather rights, would there be a distinction between those establishments that have been opportunistic and are suddenly getting in on the act, and others?

If establishments have rushed to apply for a licence before the legislation comes into force, thinking that they will thereby get some advantage in the long run when their local authority adopts the legislation, that view is misplaced. It would be short-sighted of them to do so. The reality is that they will be subject to the legislation, as will new lap-dancing clubs.

We understand that there are concerns about aspects of clause 25, including the decision to remove venues that provide infrequent entertainment of the type that we are discussing from the definition of a sex encounter venue. The purpose of the provision is to recognise that not all premises that provide relevant entertainment should be classed as sex encounter venues. An example is a pub that hosts a birthday party for which a strippergram has been booked; we do not believe that such premises should be regulated in the same manner as a lap-dancing club that offers adult entertainment nightly. We accept that not everyone agrees with that distinction, but we believe that the legislation needs to be both targeted and proportionate. In practice, under the provisions, any premises offering relevant entertainment nightly, weekly or even monthly will be required to obtain a licence. Only relatively infrequent or one-off performances of “relevant entertainment” will be permitted without a sex establishment licence; such entertainment will continue to be regulated under the Licensing Act 2003.

In Committee, my hon. Friends the Members for Stourbridge (Lynda Waltho), and for City of Durham (Dr. Blackman-Woods), who have done so much to bring the issue to public attention, spoke plainly about their concerns that the provision would create a loophole that would be exploited by lap-dancing operators who wished to avoid tighter regulation. It is clear from amendment 194, which is in the name of my hon. Friends and the hon. Member for Shipley (Philip Davies), that those concerns remain. We take those concerns very seriously. It is not our intention to create opportunities for lap-dancing operators to avoid the impact of the reforms, but at this stage, the Government are not minded to remove paragraph 2A(3)(b) of schedule 3 of the Local Government (Miscellaneous Provisions) Act 1982, which will be inserted by clause 25. Instead, we propose safeguards against potential abuse of the provision.

Government amendments 55 to 59 introduce a limited order-making power that will allow the Secretary of State or, in Wales, Welsh Ministers to tighten the exemption or remove it altogether if there is clear evidence that, following implementation, it is being exploited in a way that is obviously against the spirit of the reforms and the wishes of local people. That will allow us to monitor the situation further, and to respond to concerns quickly by limiting exemption powers, or removing the exemption entirely.

I am aware that my hon. Friends the Members for Stourbridge and for City of Durham have raised specific concerns that temporary event notices will enable lap dancing to be provided on a regular basis by a number of licensed establishments working in partnership to facilitate that. We do not believe there is compelling evidence that the problem is likely to occur, because that opportunity already exists, but we take these concerns seriously.

Since the Committee stage, the Culture, Media and Sport Committee has published its report on the Licensing Act 2003, which considered a number of issues in relation to temporary event notices and made specific recommendations, including giving local councillors, as representatives of their local community, the ability to object to such notices. Before formally responding to the Select Committee, we will consider more fully all these recommendations and the impact that they will have on other activities covered by temporary event notices.

I know that hon. Members would like to see the exemption removed. I hope that the order-making power and the comments that I have made in relation to TENs will give them some reassurance and that they will feel able to withdraw their amendments.

Government amendment 54 will clarify the conditions that will allow venues to provide infrequent performances without requiring a sex establishment licence. The amendment makes it clear that in order to provide relevant entertainment without a sex establishment licence, three conditions must be fulfilled: no more than 11 events in any 12-month period, no event lasting longer than 24 hours, and at least one calendar month between events.

Amendments 198 and 199 would make schedule 3 of the Local Government (Miscellaneous Provisions) Act 1982, and by extension provisions introduced by clause 25, mandatory for all local authorities. My hon. Friend the Member for City of Durham tabled a similar amendment in Committee and I know that these concerns remain. Unless provisions are mandatory, my hon. Friends argue, local people will not be guaranteed a greater say over the regulation of lap-dancing clubs in their area.

Schedule 3 of the Act, which also deals with the licensing of other sex establishments, such as sex shops and sex cinemas, is currently optional for local authorities. It recognises that while the presence of sex establishments can raise particular concerns for many local communities, the issues are not necessarily universal. Many local authorities do not have lap-dancing clubs in their area.

We cannot be exact regarding numbers, but we estimate that under half of all local authorities have lap-dancing clubs or similar venues in their areas, so the Government do not believe it right to impose the legislation irrespective of need, especially in areas where there are no lap-dancing clubs, and therefore no means of recovering any cost, however small, of implementing the regime.

Does not my hon. Friend think that the system as he has just outlined it could create anomalies? In neighbouring local authority areas, particularly within a conurbation, there could be one regime in place on one side of a borough border, and another on the other side. That is no way to help regulate lap-dancing clubs.

The basis upon which we intend to introduce the legislation will give local people and local communities a greater say. I cannot stress enough the importance of localism in this context. The situation that my hon. Friend described pertains to the Licensing Act as well. A different set of circumstances pertain in the Bigg Market of Newcastle from those that pertain in the Esplanade of Whitley bay, yet local authorities are able to manage the situation as they believe best suits their local communities.

It is likely that the Suffolk Coastal district council would not have need for any of these applications, but I commend the Government for their way of looking at these things. I wish they would extend that to many other topics, but in this case I hope the Minister will rebuff those who want to be more universal. His position would be accepted and welcomed.

I cannot give an undertaking that this will be the norm for Government policy, but we believe that it is right on this occasion. Local authorities should have the flexibility to decide whether the provisions are necessary, based on local circumstances.

I welcome much of what my hon. Friend has said, but my difficulty is that Dudley has been particularly timid in using the current licensing law. For instance, when a club asks for a later licence, it is granted, then another and another, because the council is frightened to death of being taken to court. We have had so much trouble with lap dancing, particularly in Stourbridge, and my worry is that Dudley will choose not to take up the powers and my constituents will be in the same position as they are now, with no voice.

My hon. Friend and I have discussed this at great length. We do not share the same views, but we have the same concerns. When we went out to consultation, no shortage of local authorities clearly indicated that, were the powers available, they would take them up. Ultimately, my hon. Friend’s constituents decide the fate of the local authority. A local authority or lap dancing club that thought it could set itself against a local community would be short-sighted. It is important that local people hold local authorities to account. If lap-dancing clubs are a big issue in their area, the excuses that my hon. Friend attributes to her local authority would not hold water with residents.

I shall move on to other important issues and try to deal with them properly and quickly, as I am taking up a great deal of time. On the decriminalisation of under-18 prostitution, new clause 4 seeks to amend the offence of loitering or soliciting for the purpose of prostitution so that those under the age of 18 cannot commit the offence. The hon. Member for Oxford, West and Abingdon tabled similar amendments in Committee. I want to be clear that the Government have a great deal of sympathy with the issue. There is a fine line between the positions held.

We recognise that children who have become involved in prostitution are the victims of a sexual offence and should be offered appropriate support. That is in our advice, “Safeguarding children involved in prostitution”, which was issued in 2000 and which we will update along similar lines this summer. Since the publication of that guidance, the numbers of those under 18 cautioned or prosecuted for this offence have been very low. It is clear, therefore, that in practice, the offence is used extremely rarely in relation to under-18s, and that in most cases children are treated as victims.

The approach of treating children abused through prostitution as victims will rightly continue to be that approach that agencies take, but on balance—and it is a fine balance—we believe there are still reasons for retaining the current position on statute. First, decriminalising under-18s would risk sending out a message that we do not think it is acceptable for adults to be involved in street prostitution, but that somehow it is acceptable for a child or young person to loiter or solicit for the purposes of prostitution. If one child is deterred from getting involved in prostitution because they would be at risk of breaking the law, that would justify our position.

Secondly, abolishing the offence could encourage pimps to target children, as they would know that the police could not arrest child prostitutes if they were found loitering or soliciting. Thirdly, we are concerned at the risk that such a move would encourage the trafficking of women into street prostitution, having been briefed to lie about their age. This may be a particular risk as it may be difficult to establish the age of women trafficked form abroad. There may be exceptional cases where support from agencies has been made available but the child refuses to accept that support. At that point, criminal justice agencies may be important to push the child towards that support. Our approach is supported by the Association of Chief Police Officers and the Crown Prosecution Service. On that basis we cannot accept the amendments.

With reference to persistent prostitution and orders requiring attendance at meetings, amendment 7 seeks to remove clause 16 from the Bill and prevent the Government from introducing orders requiring attendance at meetings for someone convicted of loitering and soliciting contrary to section 1 of the Street Offences Act 1959. Following the publication in 2004 of a consultation paper, “Paying the Price”, the Government published in 2006 a co-ordinated prostitution strategy that recognised the concern in communities not only about the nuisance that street prostitution can cause, but that there must be a way for prostitutes to exit prostitution should they wish to do so. Respondents strongly indicated that women who are involved in street prostitution have multiple and complex needs, and that our approach must recognise that complexity.

It is important that the offence of loitering and soliciting for the purpose of prostitution is maintained and used where appropriate, and we have also identified the need for some important reforms to ensure that the offence is used consistently. However, we want to help people to begin exiting prostitution—something that is difficult to achieve with a fine, which is the current maximum penalty. We intend to remove “common” from the offence of loitering and soliciting for the purpose of prostitution.

Is not the largest barrier to sex workers leaving the industry the stigma that is associated with prostitution? In what way will the legislation going through the House today help to remove that stigma?

I am not sure that there will never be a stigma associated with prostitution in some people’s eyes, because it raises very strong feelings. However, we are looking for a series of practical measures to bear down on the demand for prostitutes when they have been controlled for gain and, in particular, when they may have been trafficked. We are offering a way out for prostitutes who wish to exit the sex industry, and, as part of that process, we believe that orders are very important.

Amendment 6 would narrow the definition of “persistence”, so that the offence of loitering and soliciting could be used to protect those found loitering and soliciting only on two occasions in one week. We believe that that would be unenforceable in terms of police resources, so we cannot accept the amendment. If someone is found loitering and soliciting within a three-month period, which is a relatively short space of time, the police should have the power to take action against them. They may receive a caution or continue to receive a fine, but they may also be able to access the help that they need. That is why the new clause would introduce a rehabilitative penalty as an alternative to a fine, allowing someone convicted of loitering and soliciting to address why they were involved in prostitution, and helping them to exit street prostitution.

The orders should be tailored to individual requirements, and a series of meetings will take place as a gateway to their accessing the help that they need. If they breach the order, which will be a part of the process that the court puts in place, they should be held accountable for it. There is a misconception that the order would criminalise further those involved in street prostitution and that, as a result of making such persons subject to an order, they would face tougher sanctions, including imprisonment, for having breached it. That is not the case. If someone breaches an order, they will be brought back before the court, but its option at that stage will be the same as its option on conviction. The court will be able to impose a fine or a new order. In deciding what sentence to impose, the court will take into account the extent to which the offender complied with the previous order. A breach will not mean further criminalisation or the imposition of tougher sanctions.

One other issue that was raised in Committee is that the provisions allow an order to be imposed without the consent of offenders. Ideally, we want people to choose to engage with support services in order to leave prostitution, but persistent involvement makes some element of compulsion necessary. The strategy encourages a diversion from the criminal justice system towards support services and, ultimately, away from prostitution. If people relapse, they should get help, but they should be pushed towards accessing that help.

The orders are an important part of the development of the Government’s prostitution strategy. I have outlined the reasoning behind its introduction and some of the major concerns that were raised Committee. I hope that hon. Members will reflect on my remarks and on what the Government intend to do, and remember that we are still in listening mode.

In the Government’s response to the legislative scrutiny Committee, there is a statement about the process that my hon. Friend the Minister has set out. It says that a person will end up in police detention only as a last resort, and that the period of detention will be as short as possible. Is there any estimate of the numbers that will be detained? What is the shortest estimated time scale for detention itself?

I cannot give my hon. Friend any estimates off the top of my head, but I shall find out that information for him. He will know that when similar provisions were introduced in other legislation, a time scale of 72 hours was mentioned, but it was felt to be too long. We sought to introduce the phrase “as soon as practicable” to make the time scale shorter than 72 hours. In some people’s eyes, it opens up the measure to an indefinite extension, but that is not what we propose. Given that a prostitute may be picked up on a Friday, with little prospect of going before a court until the following Monday, we believe that the measure is an appropriate response.

It would be really helpful if we could get as much information as possible on those estimates, and if we could get on the record what the Government mean by “as soon as practicable”, because, on some interpretations, it might elongate to 72 hours. Before the Minister finishes, I should also welcome any comments on new clause 37 and the definition of a brothel.

I undertake to find out that information, and I am sure that, if my hon. Friend catches your eye, Madam Deputy Speaker, we will return to the other issue that he mentioned.

The Minister’s speech shows two things: first, that we had good debates in Committee, because three Ministers were willing to take interventions and have a debate, and Government amendment 47 now demonstrates that willingness at least to listen and to consider the important issues; and, secondly, the fact that the Minister spoke for almost an hour shows that before us we have an enormous group of amendments, covering a huge number of issues. I therefore hope that we will have the opportunity to decide as many of those issues as possible at the end of the debate.

I shall restrict my remarks to two new clauses that have been tabled in my name and those of Back Benchers from all parts of the House. New clause 4 relates to the decriminalisation of prostitutes under the age of 18 and the decriminalisation of the victim. Given the Government’s acceptance of the need to narrow the definition of “controlled for gain” in the strict liability offence, new clause 25 deals mainly with the question of whether we should have strict liability, and with the consequent low penalties for people—men—who have sex with prostitutes whom they know to have been, or are reckless as to whether they have been, trafficked or coerced into sex.

On new clause 4, the Minister just said that he thought that there was a fine line between our two positions, but that is difficult to accept, because, regardless of whether the line is fine, our distinction is fundamental. If one believes, as I and those organisations that represent children, their welfare and their best interests do, that criminalisation of under 18-year-old prostitutes on the street puts them at greater risk of exploitation and further from help, we have a fundamental difference. There is clear evidence for the position that I and other hon. Members who tabled the new clause hold—that criminalisation is detrimental to the welfare of children and fundamentally against their rights. Although the Minister tried to make the best fist of his case for continued criminalisation, he provided no evidence to support his contention.

We need to be very clear that children’s charities and human rights organisations, including the United Nations committee on the welfare of children, have for a long time sought the decriminalisation of under-18s in prostitution. Back Benchers are divided on strict liability; the hon. Member for Slough (Fiona Mactaggart), for example, differs from me and the other Members supporting the amendment on the strict liability provision. However, there is a consensus, including the hon. Lady, that decriminalisation of prostitutes under 18 is critical.

The Standing Committee for Youth Justice represents a number of organisations, including Barnardo’s, the Children’s Society, the Children’s Rights Alliance for England, the Howard League for Penal Reform, JUSTICE, Nacro, the National Children’s Bureau, the National Society for the Prevention of Cruelty to Children and others, and they generally support decriminalisation. Why is it harmful to maintain the power to prosecute in such cases? According to the Standing Committee for Youth Justice, although the levels of prosecution for child prostitution are very low, young people on the street are not aware of that. That is damaging. What they know, or what they will be told—[Interruption.]

Order. The level of conversation among Members who have just come into the Chamber is unfair on those who have been here throughout this debate.

Thank you, Madam Deputy Speaker. I understand that they have not come to hear this debate or me, but I hope to make progress on these important matters in nine minutes.

What young people on the street know, or will be told, is that prostitution continues to be illegal and that they are therefore at risk of prosecution. That alone will make them sceptical about seeking help from the authorities.

During a Joint Committee on Human Rights visit, the hon. Gentleman and I spent an evening that I will always remember on the Via Cristoforo Colombo in Rome; we were looking at the trafficked women there. If women have been trafficked into a country, does he agree that they are even less likely to understand the laws of the land and will be even more fearful of entering into any contact with authority?

The hon. Lady is absolutely right. We are talking about extremely vulnerable people, regardless of whether they have been trafficked; the idea that they could be arrested rather than assisted by a police officer will be the driving force. The Standing Committee for Youth Justice also points out that research suggests that continuing to criminalise these young people in this way actively assists the controlling influence of those who exploit them.

Obviously, pimps can exercise control over the children whom they pimp by saying, “If you cross me, I will report you to the police because what you do is criminal.” The young people are not in a position to know the Minister’s figures, which show that only one or two people have been prosecuted for such an offence in any given year; they are in a position to hear from the pimp that they are at risk of prosecution and had better toe the line.

The literature recognises that point in respect of domestic child abuse. Such threats, even when not founded on statute, hold huge sway with vulnerable young people and children, yet the Government continue to ignore the research base. They make their own pronouncements without a shred of published evidence, or even the pretence of evidence, to back them.

The Standing Committee for Youth Justice also tells us that fear of the police can result in young people taking health risks. Young people involved in commercial sexual exploitation are less likely to carry and use condoms. They fear that if they are found with them, that will give away the fact that they are on the game. That is a problem if we want to reduce harm. That is why there is so much pressure from human rights organisations and charities for the law to be changed. We thought that we had won the argument when, during the passage of the Criminal Justice and Immigration Act 2008, the Minister for Security, Counter-Terrorism, Crime and Policing acknowledged that children involved in sexual exploitation are victims and that he wished to give

“a clear message that child sexual exploitation is a grave crime that will not be tolerated, and that the child is always a victim.”––[Official Report, Criminal Justice and Immigration Public Bill Committee, 27 November 2007; c. 538.]

The child is not always the victim if on occasion they can be the criminal. It does not work for the Government to say that messages are sent out. This Minister has claimed that the decriminalisation of child prostitutes would send out a message that it was okay for children, but not adults, to be prostitutes. Again, that cannot be right without the evidence.

Order. Once again, I ask all hon. Members who have just come into the Chamber and who have not been part of this debate to keep their conversations at a low level.

For the Government to rely on the assertion that reversing the criminalisation of children who are victims of exploitation sends out such a message, evidence must be provided, because the evidence base is on the other side. Similarly, a Minister has argued that pimps will seek out child prostitutes because they will not be arrested and therefore be a shelter from the law, but that also has no evidence behind it. However, the issue underpins the importance of concentrating police and criminal justice efforts at the pimps, traffickers and exploiters rather than further criminalising the vulnerable people. Furthermore, I do not believe that children or older women would be forced into street prostitution and encouraged to lie about their ages. Pimps already encourage their prostitutes to lie—that is the nature of pimping. If the new clause is agreed to, we can protect children, and that is critical.

Many hon. Members are here, and I make a plea to them. When new clause 4 is moved at the end of the debate at 9 pm, as I hope it will be, I ask them to listen to the likes of JUSTICE, the NSPCC, the United Nations Committee on the Rights of the Child and the Children’s Rights Alliance for England and to say, “Enough is enough. It is time to do what the Government undertook to do during the passage of the Criminal Justice and Immigration Act 2008.” The Minister for Children, Young People and Families said as she gave evidence to the Joint Committee on Human Rights that child prostitutes are always victims and never criminals. It is time to support new clause 4 on that basis.

The case has been made overwhelmingly, even before we consider the recommendations of the Joint Committee on Human Rights.

Evidence has been collected from children who have been prosecuted and had to live their lives with that hanging over them; that relates to the issue of stigma, mentioned by my hon. Friend the Member for Birmingham, Selly Oak (Lynne Jones).

I absolutely agree with the hon. Gentleman, whose contribution to this debate has been important. I am grateful to him and Back Benchers from all parties for their support on new clause 4.

The Joint Committee on Human Rights said:

“We are therefore unconvinced by the Government's explanation of the continuing need for the criminalisation of children involved in prostitution, which is in direct opposition to the conclusions of the UN Committee on the Rights of the Child. In particular, we are not persuaded by the assertion that the criminal justice system may be needed to enable children to access support. The provision of revised guidance is insufficient to address our central point of concern. We recommend”—

as I do now—

“that the Government reconsider its opposition to decriminalising children involved in prostitution and suggest an amendment to the Bill.”

In the minute that I have left, I should like to turn to new clause 25; I imagine that I will have to come back to it after the Speaker’s statement. The new clause is one of the key parts of the debate. [Interruption.]

The House is anxious to hear the statement, and I understand that. [Interruption.] If I do not speak, someone else will, so there is no choice.

I am talking about an important matter. Hon. Members will have been lobbied about the Government’s proposal for a strict liability offence that meant that paying for sex with a prostitute controlled for gain will be a criminal offence whether or not the person was aware, or should have been aware, that the prostitute was controlled for gain. The fundamental problem with that approach is that the penalty for someone who is aware that they are having sex with a trafficked or coerced woman will be a maximum fine of £1,000. The offence that I am talking about is akin to rape. It cannot be right that the Government’s provisions fail to capture a person who goes on to have sex with someone, against their will, who they know has been trafficked and coerced. It is clear that that person cannot be prosecuted or convicted for rape. The Minister could provide no examples of where rape prosecution would work in the context of prostitution. New clause 25, which is supported by official Opposition Front Benchers, Liberal Democrats and Back Benchers on both sides of the House, would provide for an offence that would suitably punish people in that respect.

After the Speaker’s statement, I will set out why the Government’s approach is wrong and ours is right. This amendment is supported not only by those who work in prostitution but by health service workers such as those in the Royal College of Nursing, who voted by 10 to one during their last conference to oppose deeper criminalisation of the vulnerable people working in prostitution. It is supported by organisations such as Justice and Liberty, which recognise that it is fundamentally against people’s human rights to be hit with a strict liability offence that criminalises them, particularly in a private matter.

Debate interrupted.