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Private Security Industry Act 2001 (Amendments to Schedule 2) Order 2006

Volume 684: debated on Wednesday 5 July 2006

rose to move, That the draft order laid before the House on 14 June be approved[30th Report from the Joint Committee].

The noble Baroness said: My Lords, since 2004 we have been rolling out the licensing of the private security industry under the Private Security Industry Act 2001. Crown employees who hold office, such as police officers and prison officers, are not within the scope of the Act so are not subject to licensing. The legislation had the unforeseen effect of including in its scope several groups of people who work for the police, including certain police community support officers, those in the Prison Service, the Immigration Service, the British Transport Police and others, in certain limited circumstances such as where they are supplied by their employer under contract to undertake a specific role.

It was never the intention that any of these people should be covered by the 2001 Act and it is the result of an unforeseen legislative anomaly that we are now seeking to correct. The order also addresses a number of other issues of scope. When the order was laid, it was to impact only on England and Wales since the 2001 Act had that limited territorial extent. However, before the laying and making of this instrument the 2001 Act will be commenced in Scotland, so this order will now impact on Scotland. I beg to move.

Moved, That the draft order laid before the House on 14 June be approved [30th Report from the Joint Committee].—(Baroness Scotland of Asthal.)

My Lords, again I thank the Minister and of course I shall support the order. However, she knows that I cannot resist teasing her a little on this matter because it has a chequered history. The Minister has explained clearly that it was not intended that the Private Security Industry Act 2001 should cover Crown employees who hold office, but the legislation has had these unforeseen consequences and has dragged in others within its remit who simply should not be there.

I have to make the comment that this Bill has an unhappy history of unintended consequences and is dropping stitches all over the place. I noticed that when the Government introduced this matter in another place, they explained the background. The Government had first hoped to introduce an affirmative order, but they had run out of time. To try to make sure that they could stitch things together quickly they put through an order by negative resolution to ensure that everyone was covered, but to do the right thing they then decided to carry out the consultation you need for an affirmative order and go for that as well. They sought to cover all the options, and how admirable is that? The consultation required by the affirmative procedure has borne the fruit that we see today. I have to say, as members of the Opposition always do, that it is a good idea to deal with matters by the affirmative procedure, and let us see more of it.

I see that the noble Lord, Lord Bassam, is in his place beside the noble Baroness. I have to say to him that other stitches have been dropped in this piece of legislation. When the Violent Crime Reduction Bill was in Committee in this House recently, it was made clear to the Government that there was another anomaly in the Bill that must be resolved. One of the Government’s own colleagues, the noble Lord, Lord Pendry, put it clearly: one of the unintended consequences of the Act is that it has inadvertently been applied to stewards at football grounds and sports events. The noble Lord, Lord Bassam, made it clear that the Government would look favourably at going out to consultation with a view to bringing forward an order to remedy that matter as well, thus stitching up another little hole in this Act.

I would be grateful if the noble Baroness could indicate whether we shall see yet another order in relation to this Act soon—I hope with regard to protecting stewards at football grounds.

My Lords, since the Private Security Industry Act came into force it has spawned 11 commencement orders, four sets of regulations, three other statutory instruments, two repeals and revocations, one exception order and one direction under Section 2(1), so it is not surprising that at that level of complexity both the Home Office and the Security Industry Authority have got themselves into a muddle—like most things that come out of the department. The Security Industry Authority is on permanent answerphone with a very irritating message that refers you to several options on its website, but does not allow you to talk to a human operator; it then cuts you off so that you have to start again from scratch.

Five years after the Bill went through Parliament, the Home Office discovered that private security guards and others working under contract for the prisons, the police, the transport police, the civil nuclear constabulary and harbour and immigration authorities, including those carrying out escort duties, had been inadvertently covered by Schedule 2 and were therefore compulsorily licensable under the Act. Licensing became compulsory on 20 March, so the Government had to rush through a negative resolution which came into force on the same day pending the drafting of this order. After the consultation the order now before noble Lords covers a much wider range of guards and other civilians employed under contract for the police and so forth. No doubt the Minister will tell us whether those who were not covered by the 20 March order and whose position is now to be regularised have meanwhile been technically employed illegally.

The Government say that the inclusion of all these groups in Schedule 2 is unforeseen, but I invite the Minister to agree that the error was an inherent consequence of the wording of Schedule 2 which came to light when it was properly construed. If that is correct, then it could have been foreseen at any time in the past five years and could have been dealt with accordingly in a single order instead of the two orders that we have now had to deal with.

In Grand Committee in March on the then Immigration, Asylum and Nationality Bill, there was some discussion about the delegation to private contractors of functions previously carried out by trained immigration officers, particularly as regards the detention of children outside our jurisdiction at the juxtaposed ports of entry. The Bill, which has now come into force, conferred new powers of arrest, search and detention on detainee custody officers who were originally authorised under Section 154 of the Immigration and Asylum Act 1999 only to hold persons who had been detained by immigration officers. Article 2 refers to the export or custodial functions covered by the 1999 Act but not to those that were added, for example, by Section 40 of the 2006 Act. I am advised that the reason for that may be that the commencement order bringing into force the relevant sections of the 2006 Act have not yet been laid. I would be grateful for the Minister’s confirmation that that is the case. Does this mean that when the commencement order is made, it will have to amend this order which we are now considering to ensure that the added functions conferred on these entrance custody officers are also exempt?

In another place, the Minister, Mr Vernon Coaker, said that the activities of those who tow away vehicles on behalf of the police or local authorities were being removed from the scope of the Act. As the noble Baroness will be aware, there has been great concern in London about irregularities committed by parking attendants, which are being covered in some detail by the Evening Standard. The victims cannot raise these matters on appeal because the adjudicators are not obliged to summon witnesses from the contractors or from the employing borough, as I found myself—and I declare an interest—when I appeared before an adjudicator recently. One can win an appeal very easily on the facts but one cannot expose the extent of the practices, which anecdotal evidence indicates are widespread. Are ordinary parking meter attendants to be subject to regulation under the 2001 Act, and does the Minister agree that there is a need for much better supervision of their conduct than we have now?

My Lords, I absolutely understand why the noble Baroness and the noble Lord take this opportunity to tease about the chequered passage. However, I think it demonstrates how flexible, emollient and reasonable the Government are to respond so swiftly and effectively to issues arising. Opportunities to demonstrate that flexibility seem to come our way on a number of occasions.

Perhaps I may start with the noble Baroness's questions, as the issue concerning the Bill is coming up. We will return to the issue on Report. The SIA and football stewards’ consultation was finalised in the middle of this month. The issue will be addressed on Report, which I think will now take place in spillover in the autumn. I hope that we will have a favourable and consensual resolution of the issue.

On PCSOs, the noble Lord, Lord Avebury, asks whether anyone is working illegally at the moment. It is impossible to give a precise answer, but it is possible that some PCSOs are inadvertently caught by the Act if they undertake licensable activities in certain circumstances. Broadly speaking, those circumstances are where they are providing a service for a third party and where they supervise contractors. Therefore, PCSOs who are only partly funded by the police authority may be caught by the Act. It is a very technical catching. The noble Lord will remember that PCSOs were not conceived of when the Act was passed and came into being subsequently. The flexibility with which they have been used has changed over time, and it probably was not contemplated that they would undertake contractual work that would be outside of the straight contractual work undertaken by local authorities. I cannot say no outright as there is a possibility that some may have been doing that. However, I should hope in these circumstances, where it was never intended that they should be caught, that this will not cause any significant difficulty.

The 2006 Act does not extend to the powers of detainee custody officers. It creates a new contracted-out role of authorised search officer to undertake the searching of freight vehicles. These ASOs are referred to in the order and are thus removed from the remit of the 2001 Act.

My Lords, I am thinking of Section 40 of the 2006 Act, which allows these officers not only to detain an individual for a period which is as short as reasonably necessary but does not exceed three hours; to take the person to a place for the purpose of delivering him to an immigration officer; to use reasonable force for the purpose of doing anything under previous paragraphs; and to conduct searches of a person so detained. All that is in Section 40 of the 2006 Act. We had quite a lot of discussion of that when the then Bill was in Grand Committee and we expressed grave concern about the extension of those powers, especially, as I said, as they relate to the juxtaposed controls at the French ports and the possibility they will be used on children. We had assurances about the Children's Commissioner overseeing how the powers were being used. I must therefore insist that there were considerable extensions of these officers’ powers. I would like very much to know whether they are covered by this order.

My Lords, I am given to understand that there is no need to include them in this order. I say that as confidently as I can. However, consideration has been given to it, and the decision arrived at is that the 2006 Act did not extend the powers of DCOs in such a way as to make it necessary for them to be licensed. That is our clear view. If that proves on reflection to be inaccurate, I will certainly write to the noble Lord. However, I understand that the very firm view is being expressed that what I have just told him is correct.

My Lords, where we may be at cross purposes is that Section 40 does not refer to detainee custody officers but to “an authorised person”. But that authorised person, who has the functions that I described, may be a civilian employed by a contractor.

My Lords, I understand that. The authorised search officer who will undertake the search of freight vehicles has consequently been specifically included. I would be very happy to go back and ensure that this has been thoroughly dealt with. We looked at all the new officers who might fall foul and were relatively confident that all those who should be included had been included. I am getting vigorous nods to confirm that that is the position. Bearing in mind the concern of the noble Lord, Lord Avebury, I think it might be wise for us to check that and write to him to deal with the matter more comprehensively, so that we can assure him that what I have said, and the argument and basis on which the decision was made, is correct. It may be worth having belt and braces, which I cannot provide at this moment.

Traffic wardens are not covered by the Act. The only wheel clampers who need to be licensed under the Act are those who immobilise, block in or tow away vehicles on private land and who charge a release fee for the return of the vehicle. They will be licensed, but the ordinary traffic warden—I do not mean to be disrespectful by suggesting that they are ordinary—would not be included. On that basis, I commend the order to the House.

On Question, Motion agreed to.