House again in Committee on Clause 1.
moved Amendment No. 4:
Page I, line 22, leave out ("training") and insert ("skill").
The noble Lord said: The first and most obvious point made by the amendment is that expertise in all the various fields covered by the Bill, as well as much more widely, is acquired by both training and experience. It seems to me that the wider word "skill" would reflect that fact. It would make the authority and everybody else conscious of the fact that they are not thinking just in terms of training but of the skills acquired by the individual.
This clause is separate from those which deal with licensing. It gives the authority the function of setting and approving standards of conduct for adoption by the people involved. The authority can make other requirements under the criteria for issuing a licence. The fact that its only concern here is training does not necessarily mean that the criteria for a licence might not include an element of experience or probationary conduct.
A number of British standards in this area will no doubt assist the authority when it comes to carry out its functions under this subsection. Some are set out in the White Paper. As they stand, they are not onerous. I refer, for example, to two days' initial training. Nevertheless, they have been set out and agreed. Since the British standards listed in the White Paper, BS7960 of 1999 takes the matter further.
I realise that the authority will not have legal permission to run training courses. That is not provided for in the Bill; quite rightly. I do not believe that that is its function. I am unclear as to whether approving the standards of training in the way suggested will give the authority permission to run examinations, for example, and whether the Government envisage that happening. A large number of training courses are already organised in the industry, notably by the Security Industry Training Organisation, which is a joint body set up by the industry. That organisation, and others, are capable of running the training, so I do not think the authority needs to do that. Whether it should consider examinations is a different question. I beg to move.
Amendment No. 4 would mean that the security industry authority was required to set and approve standards of skill instead of standards of training. The Government agree that it is important for the security industry authority to have the ability to incorporate references to skills into the standards which it sets. We believe, however, that subsection (2) as drafted already allows the authority to achieve that. The subsection also requires the authority to set standards of conduct, training and levels of supervision. The provision would therefore allow the authority to incorporate relevant skill levels into the standards it sets for conduct and training. It already achieves the objective of the amendment.In addition, I believe that it is widely acknowledged that the private security industry is acutely aware of the importance of training and attaches considerable importance to the authority being proactive in setting standards in that area. We believe that to delete the word "training" from the statement of the authority's functions would be undesirable. It would shift the area of responsibility, which we do not think would be wise. As we envisage the SIA, it will not run examinations itself. However, we do recognise that there is a need to consider how examinations might contribute to its standard setting and delivering role. The authority will have an interest in this aspect, but will not run it. The examinations will be set and run by others. The authority may well monitor this and report on it, and obviously it will have a carefully thought-through role in the examination process. If we were to accept the amendment it would rather change the nature of the SIA's role, and that would not be wise. Obviously we shall read carefully what the noble Lord has said because these matters will need to be studied carefully within the industry itself.
I am grateful to the Minister, particularly for his undertaking to ponder the matter between now and the later stages of the Bill. In the light of that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
moved Amendment No. 5:
Page 2. line 4, after ("anything") insert (", except borrow money,").
The noble Lord said: I beg to move Amendment No. 5, with which it is suggested that we should discuss Amendment No. 43. Both are about the power of the authority to borrow money. The Bill provides in paragraph 14 of Schedule 1 that the authority can borrow money with the permission of the Secretary of State. The amendment suggests that it should not be able to borrow at all. It is a probing amendment. I do not intend that it should never be allowed to borrow in any circumstances, but I should like to know how borrowing by the authority will be dealt with in the Home Office's accounts, particularly now that we are on resource accounting. Will it show up as government borrowing? I suspect that it will not, and that is because permission of the Treasury is not required. Generally speaking, in matters of borrowing or expenditure the Treasury is careful to make sure that this is written into every Bill. As far as I can see, permission of the Treasury is not going to be specifically required although it may have have sufficient control over the Secretary of State for Home Affairs to deal with it.
I hope that the authority will not be borrowing large sums of money, although it may not be able to function entirely without borrowing. Any well conducted business should certainly consider doing that and indeed may have to borrow considerable amounts. I do not see why the authority should be different in that respect. However, because it is a public institution dealing with public money, it should obviously be carefully supervised in this respect.
I am grateful to the noble Lord for giving me the opportunity to explain lines of accountability. The SIA will be established as a self-financing non-departmental public body. The bulk of its income will be derived from fees charged for individual licence applications and inspections under the approved contractor scheme and will be used to fund these processes. However, we believe there is a case—I think the noble Lord accepts this—for the authority to have limited ability to borrow money. I emphasise the word "limited". This would allow it some flexibility in conducting its business. It is not an open-ended guarantee. Any wish to borrow money will require the consent of the Secretary of State. So there will be parliamentary accountability and he will expect to see a proper business case made out.The authority will also be subject to external controls. It will be required to keep proper accounts and to prepare a statement of those accounts annually. These will be laid before Parliament and will also be subject to audit by the auditor general. So although we understand the nature of the amendment, we think it would unnecessarily constrain the operation of the authority—a point which I believe the noble Lord accepts. I urge him to withdraw the amendment.
Will any borrowing show up as government borrowing in the main government accounts?
I am sure that this body, as a non-departmental public body, will operate like all other such bodies. Borrowing by the SIA will be reported within the accounts; it will be necessary for the Secretary of State to approve it, and he will consult with Cabinet colleagues as appropriate. This would allow an opportunity for the Treasury to give its 'view. Borrowings would therefore be clearly shown in Home Office accounts and properly fed through to Parliament and there would be all the other checks and balances which operate throughout Whitehall.
I am grateful to the Minister for putting that on the record. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Clause 2 [ Directions etc. by the Secretary of State]:
moved Amendment No. 6:
Page 2, line 23, at end insert—
("() The Secretary of State shall lay a copy of any such direction before each House of Parliament.").
The noble Viscount said: This amendment relates to directions given by the Secretary of State. The Explanatory Notes say clearly that the authority must comply with directions given to it by the Secretary of State and must provide any information requested by him. Also, the Secretary of State must consult the authority before giving any directions.
My first question is a general one. I should like to ask the Minister what kind of directions the Secretary of State might give. What area might be covered that is not in the Bill and cannot be done by either an order under Schedule 2 or in some other way? Can it relate to costs, for example—either the annual running costs of the authority or indeed the costs or charges that the authority might impose on the industry? The Minister will realise that there are many order-making powers within the Bill, giving the Secretary of State the chance to do lots of things in Clause 2 and Clause 3(3) about designated activities. What kind of things have the Government in mind under these rather broad and sweeping powers?
Also, it is not guidance; it is a direction. The Bill says that the authority will comply with any general or specific directions. What is the difference between a general direction and a specific one? Presumably any direction would have to be specific if the authority was to comply with it. I do not understand the meaning of the phrase "general direction". Surely, the general directions are largely contained in Clauses 1 to 3. Indeed, if it is a specific direction, will it not be included in the general powers in Schedule 2?
My last question is: how will the Secretary of State give these directions? Will they be laid before Parliament, enabling Parliament to see the nature of the extraordinarily wide power that the Home Secretary is giving himself in relation to the authority? These are important questions and I beg to move.
There will probably be a wider variety of possibilities, from requesting special reports about incidents of concern to the addition of reports if need be. I believe that the standard arrangement is for the Secretary of State to be able to give directions to non-departmental public bodies. If necessary, that could include the placing of a cap on fees. Therefore, they are general reserve powers. I understand that they will be subject to the usual statutory instruments procedure.I hope that that reply is helpful to the noble Viscount. I do not believe that the consideration is as sinister as he suggested. We believe that it is a helpful way of assisting the Secretary of State to conduct business flexibly.
Before my noble friend responds, will the Minister explain the position a little further? He said that directions would comply with the normal statutory instrument procedure but I wonder whether he is sure about that. If so, would they be affirmative or negative instruments?
In giving the Minister time to consider his answer perhaps I may turn to Clause 22, which defines orders and regulations and their use. I have studied the clause with some care. I may have missed something, but I cannot find anything relating to the directions which may be given out by the Secretary of State under Clause 2. Therefore, I do not believe that the directions are given by any form of statutory instrument, whether negative or affirmative. It is important that we have a clear answer from the Minister on this.
On this occasion, the noble Viscount is right and I am wrong. I apologise to the Committee for that. Directions are not statutory instruments; they are merely a mechanism for a more informal way of establishing priorities and registering concerns. I hope that that clarifies the matter and I apologise to the Committee for having misled it earlier.
I am grateful to the Minister for that correction. Will the directions be published?
If the noble Viscount will bear with me, no doubt I shall be able to give him an answer. I would hope that such directions would be a matter of public record because they would be helpful to all concerned. It is important that we are clear about what we are trying to do with orders and directions.
I rise in anticipation of the Minister's reply. We should be extremely unhappy if the directions were not a matter of public record and all those licensed and involved in the industry were not clearly able to see directions made by the Secretary of State.
There is no absolute obligation to make them public. However, having heard what the noble Viscount said, I am prepared to reflect on the matter. In some situations, there may be an advantage in clearer communication and there may be benefit in that communication being in the public domain. I shall reflect on the point and happily write to the noble Viscount.
Will the Minister also agree that there could be circumstances in which the authority would want to see publication of the directions? It could then make clear to those being regulated why it had taken a certain action.
As always, the noble Viscount makes a sensible and telling point and I shall reflect on it. He is probably right.
The Minister's final words in reply to my question went to the heart of my amendment. It is important that the Home Secretary cannot impose secret directions on the authority, leaving those licensed or affected by the authority unaware of them.I am grateful to the Minister for saying that he will reflect on the matter because if he had not done so I should have been forced to take it further and test the opinion of the Committee. However, I am grateful for the Minister's constructive attitude and I shall return to the matter on Report. By then the Minister will have had an opportunity to reflect on what has been said. It is important, not only in safeguarding the industry but also the authority and the role of the Secretary of State in giving such directions. I am sure that the Minister believes in open government. We must try to make these provisions as open and clear as possible. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Clause 3 [ Conduct prohibited without a licence]:
had given notice of his intention to move Amendment No. 7:
Page 2, line 29, leave out ("it shall be an offence for a person to") and insert ("a person shall not").
The noble Lord said: I do not propose to move Amendments Nos. 7 and 8 because of the most useful meeting that the Minister arranged for me with some of his officials.
[ Amendment No. 7 not moved.]
[ Amendments Nos. 8 to 11 not moved.]
moved Amendment No. 11A:
Page 3, line 45, at end insert ("; or
(k) he is required in the course of his employment to engage in licensable conduct falling within paragraph (b)").
The noble Lord said: In moving Amendment No. 11A, I shall speak also to Amendment No. 52A. They have only one thing in common; they deal with issues in respect of which the Government have completely reversed their thinking.
As regards Amendment No. 11A, the Government stated in their White Paper that the provisions of the Bill are to include in-house directly employed security personnel. They added that:
"The Government believes that to exclude in-house security personnel from the scope of licensing would create an unacceptable loophole and reduce confidence in the system".
I took up that matter during the Second Reading debate. In reply, the noble Lord, Lord Bassam, stated that the Government had changed their thinking since publication of the White Paper, further stating:
"In-house guards are vetted by employers and we see no need to add a further layer of bureaucracy".—[Official Report, 18/1/01; col. 600.]
Therefore, the reason for changing from an unacceptable loophole reducing confidence in the system to the Government's present position was simply because employers vet their employees.
That misses the point entirely. The whole purpose of the Bill is to ensure that those who engage in security work are properly vetted and trained and have the necessary skills and ability to deal with the public which will enable them to carry out their tasks properly.
If people are simply vetted and then engaged by an employer, who may or may not know anything about the provisions of this Bill or check the skills and training of those individuals, almost certainly a loophole will be created. Through that loophole can creep undesirable people. Firms will believe that they have engaged individuals who can carry out the functions of security guards but they will be deceived. In the end, what is achieved is a two-tier system whereby those who are employed by security firms are properly trained and have the necessary skills, and those who manage to creep into jobs with employers are not. I agree with the Government's original view that that is unacceptable and look forward to hearing the Minister's response.
I turn to Amendment No. 52A which deals with installers and so on. In paragraph 5.12 of the White Paper the Government state:
"The lower end of the domestic market does not tend to be covered by these arrangements and although reputable companies do exist, it is likely to be those that are most vulnerable who will be most at risk from unscrupulous operators".
The White Paper goes on to make the very good point that,
"Those who install or maintain alarms and CCTV systems have a unique opportunity to gain inside knowledge of the systems which could be used to facilitate or commit crimes".
I also raised that matter at Second Reading on the 18th December, and at col. 600 the Minister responded:
"[The Government] take the view that that sector is already well regulated. It already has to meet high police and insurance standards and purposes. Also, it consists of many small businesses".
I cannot over-emphasise the current role of CCTV systems in dealing with crime. They have a central role in dealing with major criminal activity in this country. For much of the evidence adduced in court the role of CCTV is crucial in relation not merely to burglaries and break-ins but to violent scenes and so on. If a criminal gang infiltrates a CCTV managing system so that it controls what pictures are taken, retained and so on, big criminals, not small ones, will have an important opportunity to commit serious crime. As the White Paper originally suggested, I believe it is sensible that unscrupulous operators should be kept out of this field entirely. Those who are unlicensed and without the necessary skills, training, vetting and so on provided for by the Bill should not be allowed to offer their services to the general public. I look forward again to hearing the Minister's response. I beg to move.
I absolutely agree with the noble Lord, Lord Thomas of Gresford, that the Government have made an about-turn between the publication of the White Paper and the introduction of the Bill. However, unlike the noble Lord I believe that the Government are right to do so. Within the industry many large firms, trade associations and so on are keen that in this field both in-house operatives and those who fit alarms and deal with CCTV should be covered by the licensing system. The Bill, however, provides that only in-house door supervisors and wheelclampers, if a release fee is required, should be included, not those concerned with either alarms or CCTV.I refer first to other in-house guards. One of the matters to be considered is what I term the "receptionist problem". Almost every business, professional firm or doctor's surgery has a receptionist of some kind at the front door who deals with visitors. From time to time, the receptionist, commissionaire or whoever it is, may have to deal with someone whose presence in the building is not welcome and fulfil guard-type duties. That may involve sending for others to assist in the process. We have heard a good deal recently about violence in hospitals, but it also occurs in health centres and doctors' premises. One of the difficulties is where one draws the line in relation to a person in that position who provides an element of guarding. That will vary from one doctor's practice to another. Some practices will be in inner-city areas where there are drug problems to which they will be much more susceptible. An individual who does that job will spend much more time engaged in that kind of activity, whereas in another area no such trouble may arise from one year's end to the next. Where does one draw the line between the two? However, there must be a clear line because a licence is required. A person can be fined or sent to prison if he does not have a licence. The public and individuals are entitled to know whether or not a licence is required. Therefore, there is great difficulty in definition. In any case, I am temperamentally against regulation unless it is absolutely necessary. An enormous amount of legislation already affects firms of all sizes and to extend it further is something of which we should be very leery. I made that point at Second Reading and shall not labour it. I do not believe that there is much difference between alarm companies and locksmiths. In each case someone comes to one's house or business premises and fits the necessary equipment, whether it be an alarm or lock of some kind, and leaves knowing the security precautions that have been taken. To a degree one needs to trust that those people will not misuse the information that they have gained. One can extend that to others who are not locksmiths but fit items that are to do with the security of premises. They may do the job incorrectly or pass on information. There is also a problem as to where one draws the line. The position in relation to CCTV is a little clearer. We all know what we mean by it. However, I am not in favour of including something unless it is absolutely necessary. A firm or individual who hires a specialist organisation needs to be able to rely on the fact that it is up to the job and has proper standards. The Bill will provide that safeguard statutorily as opposed to the voluntary standards that apply now. I am not in favour of extending it further than is needed. Therefore, on this particular matter I prefer the Bill as drafted.
I declare an interest as a director of Reliance Security. Conceptually, I am very much in favour of the amendment moved by the noble Lord, Lord Thomas of Gresford, but I believe that this is a matter of definition. If a suitable form of definition can be found to cover in-house security men—I slightly question whether it can—it should be explored very carefully.
I am grateful to the noble Lord, Lord Thomas, for tabling these amendments. It gives the Government the opportunity to explain why we have taken a different view, although some of these arguments were rehearsed at Second Reading. As the noble Lord said, in our White Paper we propose to regulate the whole of the manned guarding sector, including in-house staff.However, we are a government who listen. We gave the matter further consideration. We concluded that to require all in-house staff to undergo what would effectively be two vetting processes by the employer and by the authority would add a largely unnecessary layer of bureaucracy on to business. Having heard comments today in your Lordships' House, it is plain that there is a fair measure of support for not going along that route. In general, we believe that we can rely on companies satisfying themselves about the probity of their own, or potential, employees. However, it is also the case that the Bill seeks to regulate some in-house staff. Door supervisors and wheelclampers are sources of particular public concern. These operatives are in a different category. Door supervisors are in a position of authority, often with young people, and wheelclampers are in a position of considerable power over the owner of the vehicles they have immobilised and which only they can release. We therefore believe it is right to extend regulation to all those working in these sectors, the in-house employees as well as those supplying services under contract. The noble Lord asked, why exclude the locksmiths and the alarm installers? He rightly said that in the White Paper we suggested they would be subject to regulation. We recognise that these industries wish to be included in our regulatory proposals. But we have decided not to include them for a number of reasons: first, there is no evident high level of criminality in either of these sectors. That is a widely accepted point. Secondly, and this touches on what the noble Lord, Lord Cope, said, self-regulation has worked particularly well in the alarm installation sector due to the influence of the insurance industry and the police; for example, the police will not guarantee an immediate response to an alarm unless it has been fitted by a company approved by an ACPO recognised inspectorate. That makes a big difference. Thirdly, there is a significant number of small businesses in this sector. We are conscious of the regulatory burden this might place on them and of the barrier to them expanding and developing their business. Fourthly, the main focus of the Bill relates to those sectors of the industry where there is the biggest problem, particularly door supervisors and wheelclampers. Could the locksmiths and alarm installers be included later? We have established a flexible framework within which Parliament can include or exclude particular sectors of the industry according to perceived need. We would prefer to get the SIA, the authority, up and running with the significant body of work the Bill already gives it and then make an assessment as to whether other categories, such as locksmiths and alarm installers, might be a priority for legislation. We are prepared to look at these matters at a later stage. We do not think that at this stage they are a priority. Therefore, we do not believe that they should be brought into the remit of the Bill. It is about getting the balance of regulation right. The Government do not want excessive regulation or to overly burden business. We believe that we have the balance right in this case.
Perhaps I may ask a question which has arisen from what the Minister has just said. An in-house security person on licensed premises need not be licensed unless he is the door supervisor. From what the Minister said, he becomes a door supervisor if he steps outside the premises. I am not sure if we have understood the Minister correctly, but can the definition of a door supervisor depend in any circumstances on whether he is inside or outside the premises? If so, is that what determines whether he is subject to the additional controls?
I am not entirely certain that I have the matter right, but I suspect that one is a door supervisor if one undertakes specific functions and activities. Door supervisors work at licensed premises. They are fairly carefully described in the Bill. We need to rely on the Bill's definition. If further clarification is needed, I am happy to try to provide it at a later stage. But it very much relates to what they are licensed to do rather than necessarily where they are undertaking the activity.
I should like to ask the Minister a question. I declared my interest in the bars business in London at Second Reading. As far as I understand the matter, in-house security personnel who remain in-house looking after the security of the premises are not covered by the licence. But someone supervising the door, out on the street, is covered and has to be a licensed person. But if there is a fracas on the street and someone who is an in-house person steps out into the street and, say, gives them a hand, is he not allowed to do that because he is not licensed for it? I am sure the noble Lord has seen door supervisors in his trawl of the pubs and clubs. Most of them stand on the pavement with a rope, sometimes looking friendly and sometimes looking menacing, saying, "You can come in and he cannot". Do they need to be on the street? What happens to door supervisors who are inside? Are they covered by the Bill? If they are employed by, for example, the club they are in, are they in effect in-house if they are inside? Where is the demarcation line?
We could get into some frightfully complex discussions as to whether, when and how one becomes a door supervisor and someone controlling entry. By the nature of the business, their duties are at the licensed premises. I shall go away and seek further clarification as to in what circumstances they become responsible for particular actions. But they have to be licensed. They have to be licensed for a specific purpose. It is that licence that enables them to carry out particular functions and work. That is how I understand the matter. I am happy further to pursue the detailed points that the noble Lord wishes me to. I shall provide him with further detail on that matter perhaps between now and Report stage.
One of the problems that seems to have arisen is whether there should be door supervisors at the door and a second row inside who are under no control, have no training, skill or whatever and who have not been vetted for violence at all, who simply parcel up a person who attends one of the noble Viscount's establishments and hands him to the door supervisor to throw down the stairs. I do not think that we should leave these definitions up in the air. When one looks at the paragraph it says "Door supervisors etc". It does not say what "etc" is at paragraph 8 of Schedule 2. As the noble Viscount, Lord Astor, said, the matter should be clarified considerably.
I am sorry to interrupt the noble Lord. I should hate for someone to have the impression that any person coming to the bars with which I am involved is ever thrown down the stairs. If someone is asked to leave, that person is escorted to the door with great care and respect. We do not operate in Wales, and I have no idea what happens to people who get into trouble there.
I have no personal experience of the noble Viscount's door supervisors or of being escorted to the door at his bars or in Wales.I am grateful to the noble Lord, Lord Bassam, for his considered response. He referred to the flexibility of the Bill in bringing in other people. The noble Lord, Lord Cope, referred to the position of a receptionist as opposed to a hospital guard. Reference has also been made to the need for definition. Paragraph (2)(5) of Schedule 2, which deals with manned guarding, states that the licensable conduct,
The concept of someone doing something incidentally to their main employment does come out in that sub-paragraph as it does in sub-paragraph (6). Although it is fuzzy, it might cover the position of the receptionist to whom the noble Lord, Lord Cope, referred. Hospital guards have a very clear main activity of manned guarding; that is why they are there. It would be very unfortunate if the manned guarding among hospital staff, which is obviously in-house, should be carried out by people not properly qualified, skilled or vetted to perform that function. I turn to CCTV. The operator at a bank of screens inside a factory or hospital is governing the way in which that building is being operated. They can stop people coming in; they can issue alarms; they can warn the police if something undesirable is happening. My point is that to permit an in-house CCTV operator such access leaves it open for an unscrupulous criminal to get control of an entire factory or hospital. All kinds of problems could then arise. The Government should have a further look at this point. I hope to come back to it at a later stage. I beg leave to withdraw the amendment."does not apply to the activities of a person who, incidentally to the carrying out of any activities in relation to a group of individuals which … are neither … the activities of a security operative, nor … activities comprising the exercise of any such control as is mentioned in sub-paragraph (4), maintains order or discipline amongst those individuals".
Amendment, by leave, withdrawn.
[ Amendment No. 12 not moved.]
moved Amendment No. 13:
Page 3, line 50, at end insert—
("() An order under subsection (3) shall not include any activities other than those set out in Schedule 2 to this Act.").
The noble Lord said: With this amendment it is suggested that we discuss Amendments Nos. 14, 35, 36 and 37. Amendment No. 13 is very similar to Amendment No. 12 and others that we discussed earlier. It seeks to ensure that the Home Secretary does not designate activities that are not within Schedule 2, bringing them within the licensing regime. The Minister sought to reassure us that this could not happen because of the way the Bill is worded. No doubt he will say that again.
Amendment No. 14 is of a slightly different character. It suggests that when the Secretary of State designates various activities as requiring a licence he should do so by means of an affirmative order. Amendments Nos. 35, 36 and 37 are consequential on Amendment No. 14.
The designation of activities brings into play the whole licensing regime. From that point on it will affect a person's employment and ability to obtain a job or to retain the job that he has at the moment. It will affect the ability of firms to stay in business. A series of other things flow from the licensing regime. That is what one would expect. It is important that Parliament should not leave this matter to the Secretary of State entirely but should be able to control—at least to the degree of an affirmative order—what the Secretary of State is doing.
I assume that one of the purposes of this provision will be to introduce the licensing regime by stages. That would be sensible from the mechanical point of view of the authority widening its responsibilities as it gets going.
There is considerable concern that the authority should not immediately start to do everything it can and bring in the licensing regime too quickly. Many people and firms are engaged in these various activities. There is a very large turnover, particularly in some of the categories of employment involved. The business of vetting people will be a very considerable operation. Parliament ought to keep an eye on the setting up of the authority and on the gradual extension of the licensing regime to different categories in order to make sure that it is being done within the capacity of the authority to do it sensibly. It should not over-extend itself or be pushed into over-extending itself by the Secretary of State.
I am aware of the Select Committee on Statutory Instruments. It looked at all the possibilities for statutory instruments and the various parliamentary procedures to be gone through and did not especially recommend. Nevertheless, I felt that it was worth suggesting it to the Committee. I beg to move.
It is important that the legislative framework underpinning the licensing regime is flexible enough to take account of future developments in the industry and concomitant future decisions about the application of the licensing regime. Accordingly, paragraph 1(2) of Schedule 2 enables the Secretary of State to amend the activities which designated the licensing purposes. Any such orders proposed would be subject to parliamentary scrutiny. However, orders made under Clause 3(3) are designation orders activating the licensing requirements for those security services which have been or will be designated in Schedule 2. Sectors of the industry that may fall to be regulated in future—such as perhaps alarm installers—will first need to be added by order to Schedule 2. Such an order is to be subject to parliamentary scrutiny. There would then need to be a practical lead-in time to enable advance preparations to be made before licensing was activated by an order under Clause 3(3).The scope or orders made under Clause 3(3) is limited to the activities that have already been defined through legislation as the activities of a security operative which are subject to regulation. Those are the activities listed in Part 1 of Schedule 2. Amendment No. 13 would not therefore have any additional effect. I hope that the noble Lord will consider withdrawing it. I turn to Amendment No. 14. We believe that this amendment stems from a misinterpretation of what Clause 3(3) does. The number of employees in the private security industry who are brought within the regulatory framework of the Bill is, as the noble Lord recognised, probably around 300,000. That is clearly a considerable undertaking and will need to be achieved by means of a phased programme of implementation. This programme will be activated by means of a series of designation orders, one the security industry authority and the Secretary of State have agreed an implementation strategy. Orders made under Clause 3(3) are designation orders activating the licensing requirements for those security services designated in Schedule 2. Such orders are not normally subject to the degree of scrutiny proposed by the amendment. Orders adding activities to Schedule 2 are subject to the affirmative resolution procedure. Clause 3(3) orders only "switch on", as it were, the activities listed in Schedule 2. I hope that my explanation will persuade the noble Lord not to press the amendment. The arguments I advanced a moment ago apply also to Amendment No. 35. I turn to Amendment No. 36. We do not believe that there is any need for the amendment. Clause 22(4) requires the Secretary of State to consult the security industry authority before bringing forward any regulations, orders or draft orders. We intend there to be an open channel of communication between the Secretary of State and the authority and full consultations will, as a matter of good business, be essential if the authority is to do its job properly. As well as the good business sense of this consultation, Clause 22(4) already requires it to take place. I hope that the noble Lord will see that adequate provision is already made to secure the objectives that he seeks. The same factors apply to Amendment No. 37. I hope that the noble Lord will not press the amendments.
The interesting point about the Minister's response to the amendments was the hint that she gave, presumably to the noble Lord, Lord Thomas, that the Government might extend the order-making power in Schedule 2 to cover alarm installers.
To be fair, and to have placed it on the record, I think I indicated that there is the facility for so doing under the terms of the Bill. The amendment of the noble Lord, Lord Cope, allowed us to make that clear.
As a matter of fact, it was relevant to the previous amendment. But that later intervention of the noble Baroness has poured cold water on the idea that the Government will extend the provision in the near future. She drew back from saying that it does anything more than provide the facility for them to do so.
For the benefit of the noble Lord, Lord Cope, and also for the benefit of the noble Lord, Lord Thomas, it is important that I place on record that I was neither indicating a willingness or desire to do so immediately nor any rejection of that course of action. Perhaps I should place on record my interest in this subject. On the night before a rugby match I was refused entry to a public house in Wales by a bouncer. Members of the Committee will not be surprised to learn that all I wanted to do was buy a packet of cigarettes. He said that no one who was a stranger would be allowed across the threshold in case they started a fight.
The noble Baroness appeals to our sympathy with her account of that unfortunate experience. We know that in matters of cigarettes it is sometimes important that supplies are available to people. However, I shall draw a veil over that. I thank the noble Baroness for making clear—or clearer—the Government's intentions with regard to alarm companies and others. In view of the substance of her remarks on the various amendments, I beg leave to withdraw Amendment No. 13.
Amendment, by leave, withdrawn.
[ Amendment No. 14 not moved.]
moved Amendment No. 14A:
Page 4, line 5, leave out from beginning to ("shall") and insert ("A person is guilty of an offence if he wilfully contravenes subsection (1) of this section and").
The noble Lord said: I am sure that had the noble Baroness, Lady Farrington, been wearing a red jersey and a red and white bobble hat on that occasion she would have had no trouble in getting her cigarettes.
With this amendment I seek to raise the question of absolute offences. As the Bill is drafted, Clause 3(1) states:
"Subject to the following provisions of this Act, it shall be an offence for a person to engage in any licensable conduct except under and in accordance with a licence".
I approve of the proposed amendment of the noble Lord, Lord Cope, to remove the words,
"it shall be an offence for a person",
and have a simple prohibition that a person shall not engage in any licensable conduct. But I have not been party to his discussions with the noble Lord, Lord Bassam, and so I do not know what has emerged from them.
The purpose of my amendment is to introduce into the concept of an offence which carries a sentence of imprisonment for a term not exceeding six months the idea of knowledge or intention. The word "wilfully" is appropriate in such circumstances. In order to make it absolutely clear that a person is not committing an absolute offence to which he has no defence, Amendment No. 14A introduces the words,
"wilfully contravenes subsection (1) of this section".
Amendment No. 23B is linked to Amendment No. 14A and refers to Clause 8. In Clause 8 we have something rather worse. One has a reverse burden of proof. It is clear from Clause 8 that an absolute offence is set out in subsection (4). It states:
"Any person who contravenes the conditions of any licence granted to him shall be guilty of an offence and liable … to a term of imprisonment".
There is a statutory defence in subsection (5) that,
"it shall be a defence for that person to show that he exercised all due diligence to avoid a contravention of the conditions of the licence".
Reverse burdens of proof of this kind are reasonably frequent in the criminal law but they do cause problems. Instead of the prosecution having to prove the case, it is for the defendant to prove his innocence. That is what it amounts to. Human rights considerations do arise. Amendment No. 2313 seeks to insert the word "wilfully" into subsection (4) and Amendment No. 23C seeks to omit the statutory defence for the purposes of clarifying that mens rea—intention and knowledge—must be proved before people can be sent to prison for up to six months for a breach of the legislation. Heaven knows, the legislation that goes through the House introduces so many new offences. It should be government policy to ensure that in all those cases absolute offences are not created and that mens rea is a necessary ingredient. I beg to move.
I should like to support in particular Amendment No. 23B, spoken to by the noble Lord, Lord Thomas of Gresford, when he moved Amendment No. 14A. He referred in particular to the absolute offence which has been created here.The Bill will confer substantial powers on the Secretary of State through various order-making procedures and, indeed, by in effect issuing directions to the authority. The security industry is large and complicated. Given that, orders will be introduced over a comparatively long period and the transition period will be lengthy. I believe that it will be extremely difficult for everyone to remain absolutely innocent all of the time. No doubt some corners will be cut and grey areas encountered. The authority needs to be given time to work out those problems. It seems to me that, without incorporating a defence of some kind, we shall run the risk of convicting a person because there will be no choice but to convict him, simply because that is what is stated in the law. However, that person may have a perfectly valid and reasonable explanation that should, under normal circumstances, be taken into account in any court of law.
The Government consider that, for regulation to be effective and for the authority to have teeth, it is important that the licensing provisions are supported by criminal offences. I would hope that all of your Lordships involved in these discussions and debates would support that principle. However, it is important that the offences created are appropriate for the type of conduct they have been designed to prohibit and that they can be clearly understood.Clause 3 as drafted creates a strict liability offence of engaging in licensable activity without a licence and no proof of intent is necessary. The penalty for this offence is set out in Clause 5. The purpose of the offence is to put the burden on operatives within the industry to ensure that they are properly licensed for the activities which they perform. To accept this amendment would be to add a requirement that a prosecution of an unlicensed person must also prove that they "wilfully" or intentionally failed to have a licence. In our view that would draw the teeth of the offence. It would be difficult to show that a failure to have a licence was "wilful". A defendant could easily show that, far from being wilful, he had been simply negligent or had made a mistake. As it stands, the clause properly puts the burden on the operative. Clause 8(4) creates a strict liability offence of contravening the conditions of a licence. The purpose of this offence is to put the burden on operatives within the industry to ensure that they do not breach their licence conditions. To accept the amendment would mean that the prosecution would again have to prove that the person wilfully or intentionally breached their licence conditions. That would effectively shift the burden of proof away from the defendant. We want to give defendants adequate protection where there is no intention to subvert the licensing system. We also want to put the onus on them to ensure that they hold the appropriate licence for the work that they are performing. That is an important point. For those reasons, I cannot accept the amendments and I hope that the noble Lord will now consider withdrawing them.
The Minister pointed out that a person must take steps to have the appropriate licence for the job that he is performing. Perhaps I may cite the example of a person employed by one of the large security firms. That person will hold a licence. Does that mean that many different types of licensing will be necessary for someone undertaking many different tasks? What will be the appropriate licence in each case? Will one person hold a licence for guarding and another person hold a licence for a different duty? If an employee of a large firm is licensed and his firm says, "Tomorrow you are going to do this", is the onus then put on the employee to check whether his individual licence covers that duty, or will the licence be a corporate entity?I might have misunderstood the noble Lord when he referred to "appropriate licences". I was not entirely clear about what he had in mind.
The noble Viscount will appreciate that licences will relate to individuals. In other words, the individual must hold an appropriate licence to enable him to carry out the duties included in his job. It is the licence which needs to be "appropriate". I hope that that explanation is of help to the noble Viscount.
I believe that an important matter of principle has arisen in relation to these amendments. The Government are not being consistent here. On reading Clause 18(3), which deals with entry, inspection and information, a person is guilty of an offence under that clause if he "intentionally obstructs any person" or,
Furthermore, Clause 20(1) states that,"fails, without reasonable excuse, to comply with any requirement".
It appears that some of the offences which can be committed under the provisions of the Bill will be absolute—if you are found guilty you are liable to be sent to prison, even if you were acting with a completely innocent mind and had no idea that a licence was required for what you are doing. That is wrong. There is no consistency in the Bill because mens rea is required for other offences. The problem is therefore highlighted. I would ask the Government to think again on this point because I shall certainly return to it at a later stage. For the moment, however, I beg leave to withdraw the amendment."A person is guilty of an offence if for any purposes connected with the carrying out by the Authority of any of its functions under this Act—
(a) he makes any statement to the Authority which he knows to be false in a material particular; or (b) he recklessly makes any statement to the Authority which is false in a material particular".
Amendment, by leave, withdrawn.
Clause 3 agreed to.
Clause 4 [ Exemptions from licensing requirement]:
[ Amendments Nos. 15 and 16 not moved.]
moved Amendment No. 17:
Clause 4, page 4, line 47, at end insert—
("() A person shall not be guilty of an offence if he—
(a) carries out any of the activities prescribed by Schedule 2 to this Act without financial or other reward and he does so where he, and those for whom he so acts, perform such activities on a non commercial basis; (b) is not ordinarily employed as a security operative or required, in the course of his employment, so to act; or (c) is employed (whether remunerated or not) by a school, church or a registered charity.").
The noble Lord said: Amendment No. 17 seeks to insert into Clause 4 the words as set out in the Marshalled List. In a moment we shall discuss with it Amendment No. 18.
Amendment No. 17 comprises a new subsection of three paragraphs, each of which excuses people from committing offences under the Act. Paragraph (a) would excuse those carrying out activities on a non-commercial basis. Paragraph (c) covers those,
"employed … by a school, church or a registered charity.
They are similar, although not identical. Paragraph (b) has in effect already been covered. It refers to a person,
"not ordinarily employed as a security operative".
although he may act as such from time to time. As I have said, we have already discussed the matter of security activities being "incidental" to the main activities. For that reason, I shall not press new paragraph (b) of the amendment.
However, as regards paragraphs (a) and (c), I think that it is important that the regulations and licensing system should not cover innocent people who would be criminalised by the Bill if it was strictly interpreted. One can cite all kinds of activities where people take on the role of temporary door supervisors. I have in mind several jumble sales that I have attended in Chipping Sodbury town hall. Sometimes a considerable press of people wishing to get into the jumble sale first to secure the best bargains may be encountered at opening time. The same can happen in commercial premises, but when the jumble sale is run, as such sales habitually are, by a charity or some other deserving cause, this can occur. On a strict reading of the Bill, someone acting as a door supervisor for that purpose might be held to require a licence. If so, the organisers of the event would also require a licence, because they would be taking on people to act in that capacity, even if there was no remuneration.
It is also regrettably the case that occasionally a church service is disrupted for one reason or another. We all know that there was an interruption in Canterbury cathedral in the middle of a sermon by the most reverend Primate the Archbishop of Canterbury not so long ago. I am thinking particularly also of midnight masses at Christmas and Easter, which sometimes coincide with the pubs turning out. That can lead to unfortunate incidents, one of which I witnessed a few years ago. In such cases, people have to act as door supervisors, sometimes for an extended period. I want to be sure that that kind of activity is not covered and that there is no requirement for a licence. Another example is a school caretaker who provides security services occasionally, but he is probably covered by the "incidental" words we discussed earlier.
Amendment No. 18 provides that one can go to the local magistrates' court to apply for a temporary licence. This is intended to cover a one-off event, where the organisers may wish to take people on to act as door supervisors and so on. There are some large one-off events in our part of the country. One thinks of the Glastonbury festival. I have never been to it, but a large number of people do go, and the organisers have a great deal of trouble controlling the entrance, to such an extent that they are not holding the festival this year. Such events can be policed—if that is the right word—by one of the large security firms, but also by people employed by the organisations running the events.
No doubt under the Bill, although there is no special provision for this, organisers could ask for a temporary licence from the security industry authority. However, it would be more sensible for them to be able to go to the magistrates, although the magistrates should use the same criteria as the authority would. We have made it clear in the amendment that the licence would exist for only one month and would not be renewable, so this is not a way of opening up a separate channel for acquiring a licence.
The magistrates' court is probably a good place to go for a temporary licence, particularly as the magistrates will be likely to be issuing a temporary licence for the sale of alcohol, for example, and perhaps for dancing or public entertainment; they are likely to be in the business of licensing the particular event that is being organised. Rather than having to apply separately to the security industry authority, a person should be able to apply to the magistrates for the necessary security licence as well.
The provision would also cover urgent cases in which something was being set up quickly. The national authority may be very slick in its operations and its issuing of licences to individuals and firms, but not all such authorities have proved very slick in the past, whereas the magistrates' court is up and running and one can go to it any day to apply for licences and get going. Once again, the licence would run for only one month. If it was a permanent activity starting urgently, one would still need to go to the authority to obtain the proper licence to proceed.
I expressed on Second Reading my concern that the Bill, which we support in principle, should not catch unnecessarily activities outside the main stream of the security industry, and these two amendments are designed to try to bring this matter into focus and to make sure that the Bill does not apply to people to whom the Committee—and, I feel sure, the Government—would not wish it to apply. I beg to move.
I support the noble Lord, Lord Cope of Berkeley, on these two amendments. With the jumble of images that he has given us—the bursting open of the door at jumble sales, the vergers at risk on Christmas Eve and so on—he has painted a picture of the kind of situation in which people become involved in performing, on a temporary basis, some of the activities described in Schedule 2, and those people should not be caught by the provisions of the Bill.I also agree with the noble Lord that the swift procedure of obtaining an order from the magistrates' court would be of great value. If the application could be heard together with the applications for the temporary liquor licence and the temporary dancing licence, that would be a very easy way of having some control over the kind of things that go on at special events. I am sure that the authority itself would welcome the use of the magistrates' court, rather than having to set aside part of its operations to deal with urgent and temporary applications.
If I ever have to attend a jumble sale in Chipping Sodbury I shall now feel much more secure in the knowledge that the noble Lord, Lord Cope of Berkeley, is likely to be on the door taking my 10p, or whatever the entry fee is.It is not our intention to be excessive in the way in which we apply this part of the legislation. No person falling into the categories which are the subject of Amendment No. 17 will be taken into the regulatory regime established by the Bill as currently drafted. The Bill is directed to those who provide services under contract, or, in the case of door supervisors and wheelclampers, those also employed in-house, as I clarified earlier. These are covered by the provisions of Clause 3 and Part II of Schedule 2. The licensing arrangements do not apply to those who undertake the activities of a security operative on a non-contract or reward-free basis, nor to those who carry out security-related activities which are incidental to their main employment, a matter that we have already discussed. If a school, church or registered charity hires security operatives under contract, we still take the view that it is right that those organisations should expect them to have been vetted to a national standard and licensed. If the security operatives that they use are employed in-house, they will be exempted from the licensing requirement; in those circumstances it will be the responsibility of the organisation to vet its own staff. The Bill already takes account of the issues which the noble Lord has suggested as the basis of the amendment, and we think that for that reason the amendment is unnecessary. Perhaps I might add that it is not our intention to cover innocent people inadvertently, and I hope that the clarification I have given will help in that regard. Regulations may specify in greater detail by description who is excluded. Further than that, the security industry authority itself will be able to make it clear that groups such as those mentioned in paragraph (c) of Amendment No. 17 are not covered. I hope that that helps the noble Lord. Turning to Amendment No. 18, we do not believe that a temporary exemption from the need for a licence is necessary or desirable. It would potentially introduce an unnecessary layer of bureaucracy into the licensing process. It could also lead to different standards being temporarily applied across the country. That would be a recipe for confusion and would lead to the development of a rather uneven package. That is not something we should encourage. We want a level playing field. Provisions already exist in Clause 4 for exemptions from the need for a licence. Clause 4 permits exemptions where the authority is satisfied that a valid alternative to its own vetting procedures exists. It also allows firms which have received approved contractor status under Clause 13 temporarily to engage unlicensed persons who have none the less applied for a licence. The security industry authority will be a one-stop shop arrangement. To establish a separate exemption scheme through the courts would again lead to confusion. It would weaken the licensing regime rather than strengthen it and add to the work of magistrates. The noble Lord suggested that one-off events could be approved by magistrates' courts in the same way as a temporary licence. We would argue that one-off events needing door supervision on a licensed basis should be staffed by properly licensed people, particularly an event such as a pop concert. It is appropriate that such events continue to be covered. In some respects, urgent cases may be an ideal opportunity for criminals to offer their services. Where the need arises rather rapidly is exactly the kind of situation where people with a dodgy background may seek to become engaged. For those reasons—to ensure probity and evenness of application—we do not think that the amendment should be supported. Having heard that explanation, I hope that the noble Lord will feel able to withdraw his amendment.
So far as concerns Amendment No. 17, can I take it from what the Minister said that the Government do not wish to catch people working for charities and so on, even if they are lowly paid or volunteers? The suggestion seemed to be that if they were paid they were covered. Sometimes people who undertake these duties get a small remuneration.
If it helps the noble Lord, that is exactly the case. I completely concur with the extra elucidation given by the noble Lord and with his interpretation.
I am grateful to the noble Lord. He also said that regulations could vary. I am not sure which regulations he had in mind.
The point I was trying to make was that in the description of regulations we will be much more forthcoming in setting out how they might work and how the exemptions might work. There will be further clarification then.
We shall look forward to that. So far as concerns Amendment No. 18, I am not really persuaded by what the Minister said. He talked of marginally differing standards. The Bill provides subsequently for local authorities to have powers of licensing. Presumably that will lead to marginally different decisions being made by local authorities. So the Government are already providing for that on a permanent basis. Under the amendment there may be slightly different standards between magistrates' courts—although they are supposed to apply the same rules as the security authority—but, by definition, they will apply only temporarily, for not more than one month. I do not think the Minister has a powerful argument in these circumstances. A licensing system whereby a temporary licence can be granted by a magistrates' court—particularly in combination with an application for a licence to sell alcohol or for dancing and so on, as I described—could be extremely helpful.
I can see the parallel and the comparison, but, of course, singing, dancing and entertainment licences are taken through the local authority process. It is our long-term intention to bring liquor licensing into the local authority orbit as well. The noble Lord's argument—certainly in the medium to longer term—does not hold quite as much water as he would have us believe.
It may be the intention of the noble Lord and his colleagues in government to bring licensing into the local authority's purview instead of the magistrates' court, but it is certainly not Parliament's intention—not yet, at any rate. I am not inclined to think that that is a good idea. But that is not an argument for today.I do not share the view which seems to be taken by the Government that magistrates' courts are something basically to be got rid of—at least that the lay magistrates' courts are something to be got rid of. The Government seem to want to stick pins in them all the way round. However, that is a much larger argument. We should not involve ourselves too much with it today. Magistrates' courts will be very good places to go for licences as long as they are responsible for alcohol licensing, dancing, entertainment and so on. If at some future stage the Government lay a Bill before the House to remove that power from magistrates and give it to local authorities in respect of alcohol sales and other matters, no doubt the power to license in this case would be removed at the same time. That would be logical. But that is a different argument from the one that applies today. We have to proceed on the basis of the law as it is. And the law states that alcohol licensing and so on is carried out by the magistrates' courts. That is why it is a sensible arrangement to have the temporary licence provision arranged in the way I suggest. From the nature of his reply, it seems to me that the Minister does not want to give this matter further consideration. I am encouraged by the support of the noble Lord, Lord Thomas, and the Liberal Democrats to seek the opinion of the Committee.
On Question, amendment negatived.
moved Amendment No. 18:
Page 4, line 47, at end insert—
("(6) A person may apply, on notice to the Security Industry Authority, to the magistrates' court having jurisdiction over the area affected by the designated activities, for an exemption from the requirements to apply for a licence and the Lord Chancellor may make an order as to the procedure to be followed on such an application, including on urgent applications; and the test to be applied by the court is the same as that which would have been applied had an application been made to the Security Industry Authority.
(7) A licence under subsection (6) shall not be granted for a period exceeding one month and shall not be renewable.")
The noble Lord said: I have spoken to the amendment. I beg to move.
On Question, Whether the said amendment (No. 18) shall be agreed to?
Their Lordships divided: Contents, 88; Not-Contents, 98.
Division No. 1
|Addington, L.||Luke, L.|
|Alton of Liverpool, L.||Lyell, L.|
|Astor, V.||Maddock, B.|
|Astor of Hever, L.||Mancroft, L.|
|Attlee, E.||Mar and Kellie, E.|
|Barker, B.||Marlesford, L.|
|Beaumont of Whitley, L.||Molyneaux of Killead, L.|
|Blaker, L.||Montrose, D.|
|Blatch, B.||Moynihan, L.|
|Boardman, L.||Newby, L.|
|Bridgeman, V.||Northbrook, L.|
|Brougham and Vaux, L.||Northesk, E.|
|Burnham. L. [Teller]||Park of Monmouth, B.|
|Byford, B.||Peel, E.|
|Campbell of Croy, L.||Phillips of Sudbury, L.|
|Chadlington, L.||Plumb, L.|
|Colwyn, L.||Reay, L.|
|Cope of Berkeley, L.||Rees, L.|
|Crickhowell, L.||Renfrew of Kaimsthorn, L.|
|Dean of Harptree, L.||Renton, L.|
|Dholakia, L.||Roberts of Conwy, L.|
|Dixon-Smith, L.||Rodgers of Quarry Bank, L.|
|Elliott of Morpeth, L.||Rotherwick, L.|
|Elton, L.||Russell, E.|
|Flather, B.||Sandberg, L.|
|Fookes, B.||Scott of Needham Market, B|
|Gardner of Parkes, B.||Seccombe, B.|
|Garel-Jones, L.||Sharp of Guildford, B.|
|Glentoran, L.||Shaw of Northstead, L.|
|Goschen, V.||Shutt of Greetland, L.|
|Greaves, L.||Skelmersdale, L.|
|Harris of Richmond, B.||Stodart of Leaston, L.|
|Haslam, L.||Strathclyde, L.|
|Henley, L.[TeIler]||Swinfen, L.|
|Higgins, L.||Taverne, L.|
|Hooper, B.||Thomas of Gresford, L.|
|Howe, E.||Thomas of Gwydir, L.|
|Howell of Guildford, L.||Thomas of Swynnerton, L.|
|Jopling, L.||Tordoff, L.|
|Kimball, L.||Waddington, L.|
|Kingsland, L.||Wallace of Saltaire, L.|
|Knight of Collingtree, B.||Walmsley, B.|
|Liverpool, E.||Williams of Crosby, B.|
|Lucas, L.||Young, B.|
|Acton, L.||Islwyn, L.|
|Ahmed, L.||Jay of Paddington, B. (Lord Privy Seal)|
|Allenby of Megiddo, V.||Jeger, B.|
|Alli, L.||Jenkins of Putney, L.|
|Amos, B.||Judd, L.|
|Andrews, B.||Kennedy of The Shaws, B.|
|Archer of Sandwell, L.||Kirkhill, L|
|Bach, L.||Lipsey, L|
|Barnett, L.||Lockwood, B.|
|Bassam of Brighton, L.||Macdonald of Tradeston, L.|
|Berkeley, L.||Mclntosh of Haringey, L.|
|Blackstone, B.||Mclntosh of Hudnall, B.|
|Borrie, L.||Mackenzie of Culkein, L.|
|Bragg, L.||Mackenzie of Framwellgate, L|
|Brookman, L.||Mallalieu, B.|
|Brooks of Tremorfa, L.||Marsh, L.|
|Burlison, L.||Mason of Barnsley, L.|
|Carter, L. [Teller]||Massey of Darwen, B.|
|Cocks of Hartcliffe. L.||Merlyn-Rees, L.|
|Crawley, B.||Molloy, L.|
|David, B.||Morris of Manchester, L.|
|Davies of Coity, L.||Nicol, B.|
|Davies of Oldham, L.||Orme, L.|
|Dixon, L.||Palmer, L.|
|Dubs, L.||Patel of Blackburn L|
|Elder, L.||Plant of Highfield, L.|
|Evans of Parkside, L.||Ramsay of Cartvale, B.|
|Evans of Temple Guiting, L.||Randall of St. Budeaux, L.|
|Evans of Watford, L.||Rea, L.|
|Falconer of Thoroton, L.||Rendell of Babergh, B.|
|Farrington of Ribbleton, B.||Sewel. L.|
|Filkin, L.||Shepherd, L.|
|Fyfe of Fairfield, L.||Simon, V.|
|Gale, B.||Smith of Gilmorehill, B.|
|Gibson of Market Rasen, B.||Smith of Leigh, L.|
|Goldsmith, L.||Stoddart of Swindon, L.|
|Gordon of Strathblane, L.||Stone of Blackheath, L.|
|Graham of Edmonton, L.||Symons of Vernham Dean, B.|
|Hardy of Wath, L.||Taylor of Blackburn, L.|
|Harris of Haringey, L.||Turnberg, L.|
|Hayman, B.||Uddin, B.|
|Hollis of Heigham, B.||Walker of Doncaster, L.|
|Howells of St. Davids, B.||Warwick of Undercliffe, B.|
|Howie of Troon, L.||Weatherill, L.|
|Hughes of Woodside, L.||Whitaker, B.|
|Hunt of Chesterton, L.||Whitty, L.|
|Hunt of Kings Heath, L.||Wilkins, B.|
|Irvine of Lairg, L. (Lord Chancellor)||Williams of Mostyn, L.|
|Woolmer of Leeds, L.|
Resolved in the negative, and amendment disagreed to accordingly.
Clause 4 agreed to.
Clause 5 agreed to.
moved Amendment No. 19:
After Clause 5, insert the following new clause—
LIABILITY FOR SECURITY OPERATIVES
(" .—(1) An individual, partnership or company which employs security operatives to which paragraph 8 of Schedule 2 to this Act applies (door supervisors, etc. for public houses and clubs and comparable venues) shall be liable (in contract and in tort) for the acts and omissions of those individuals.
(2) It shall be the duty of any such individual, partnership or company, to maintain, for public inspection, upon reasonable notice and upon the payment of such fee as the Secretary of State may from time to time prescribe, a list of the individuals and their addresses, to which paragraph 8 of Schedule 2 to this Act applies and the dates upon which they worked, and their hours of work.
(3) For the purposes of this section, an individual, partnership or company employs a security operative if he has security operatives on his premises, notwithstanding the fact that those security operatives may be employed or remunerated by another individual, partnership or company.").
The noble Lord said: This proposed new clause provides a liability for the acts, or omissions, of door supervisors when they do the wrong thing. In order to police the liability, the amendment goes on to provide that those who employ door supervisors must keep a record of those whom they employ in that capacity and their times of employment. As subsection (3) makes clear, that applies even if the security operative—in this case the door supervisor—is the employee of another company but is merely working in that club or public house at the time.
The purpose of the amendment is to provide a remedy to a problem which I am told is quite common; namely, the trouble that may arise between a door supervisor and some of the guests or customers of an establishment. If there is an argument that the door supervisor has assaulted a customer, it is often not possible for that customer to pursue a civil action against that individual because the door supervisor will almost certainly lack the means to pay any necessary damages. It appears that employers are unlikely to be found liable in such cases because the victim (the customer) is likely to be met with the defence that the employee was acting on his own behalf, that he was on a frolic of his own and was, therefore, outside the course of his employment.
I express myself in those terms in the light of conversations that I have had with a barrister who has experience of these matters. As the law stands, if a night club reasonably contracts out its security functions to another company, an action against the venue could not succeed. This amendment seeks to ensure that if an altercation takes place, during which a customer feels he has been unfairly set upon by a door supervisor, it will be possible for him to bring a successful action for damages against the company that owns the club or public house in question. That may not occur in the best conducted establishments, but it may and apparently does occur in some.
In my view, it is the duty of a club to keep control over its employees. If those employees behave improperly and, for example, throw somebody down a flight of stairs, the company, as well as the individual security operatives, should be liable. I should add that that concept will not necessarily always involve a flight of stairs. The altercation may take place on the pavement outside the premises, which would make it all the more difficult, as the law stands at the moment, to pursue the club itself. The purpose of the amendment is that one should be able to pursue the club as well as the individual door supervisor. I beg to move.
If this amendment is intended to cover a security operative who acts on a frolic of his own, it is a startling extension of liability in contract and in tort. It has wide insurance implications. For example, if a door supervisor produced a knife, which the owner of the club had no reason to suspect he had on his person, and used it, the club would be liable for the injury that was occasioned. As I understand the way in which the noble Lord, Lord Cope, puts the case, it may or may not be desirable from a public point of view, but it does have very wide implications.With regard to subsection (2) of this new clause, anyone with experience of the Crown Courts of this country will understand precisely the problem to which the noble Lord referred; namely, that security operatives who cause trouble disappear or cannot be identified, either in respect of their criminal liability or their liability in tort. It is a very good idea to have a register of club or public house door supervisors. Whether it should encompass the whole of this clause, with its wide extension of liability, is a different matter.
I support the intent behind my noble friend's amendment. There clearly is an issue to be considered with regard to the relationship between the management of clubs and the actions of door supervisors. I have listened with care to the remarks of the noble Lord, Lord Thomas of Gresford, about the various legal difficulties with this approach. There is perhaps another approach that the Minister or another Member of the Committee might volunteer. However, it would be extremely regrettable if the management of a club could say, "We have moved from the previous position of employing any old gaoler on the door. We have now employed a licensed doorkeeper, who has committed an act for which we have no responsibility whatever".One of my concerns relates to drug dealing by doormen and the control of drug dealing in night-clubs. Responsible night-club owners will want to ensure that drugs are not used in their night-clubs. However, there are rogue night-club owners as well as rogue doormen. In the circumstances that I have described, how does the Minister suggest the relationship between club management and doorkeepers should work? In the example of a doorkeeper throwing someone down a flight of stairs or on to the pavement, the management may say to a doorkeeper, "We employ tough doormen who will throw people out. We do not want any bother. We want to see these guys out on the pavement and treated harshly". The doorkeeper may do exactly that, and the customer may try to pursue a claim against that doorkeeper. However, the fault could well lie with the management of the club for encouraging their doormen to exercise undue violence, or because of concerns relating to dealing in drugs.
I have some sympathy with the point made by the noble Lord, Lord Cope of Berkeley. However, I am not sure that this amendment deals with it in the right way. I prefer the point made by the noble Lord, Lord Thomas of Gresford. The amendment would place additional requirements on employers of door supervisors and those who may use door supervisors. I also argue that it places a vicarious liability on those employers or other users for the actions of their door supervisors.We believe that the duty that would be placed on employers to keep publicly available records of door supervisors' names, addresses, dates and hours of work would impose an additional burden on employers for very little public benefit. Any member of the public who has a complaint against a door supervisor should already be able to ascertain the relevant details from his employers, and, if necessary, the police may be called upon to assist. We believe that this additional burden would go too far in the direction of a regulatory burden on companies. We take the view that reputable companies should already be able to do what the amendment seeks to impose. Although I am not at present in favour of such a requirement, if a problem should arise and it became apparent that it was larger than at first thought, there would be nothing to stop the security industry authority from making it a condition of the approved contractors scheme under Clause 14—a scheme that we expect the majority of reputable companies to join. The issue of vicarious liability raises further questions. Vicarious liability is firmly established at common law as a principle that will make employers liable for the acts and omissions of employees who are acting,
rather than, as has been said, going off on a frolic of their own. The amendment would extend the vicarious liability principle substantially. A bouncer's employer would be liable in contract and in tort for all actions and omissions of his employee. Theoretically, a situation could arise where a pedestrian, knocked down by a motorist who happens to be an off duty bouncer, would be able to claim against the bouncer's employer. More practically, if a bouncer decided to stab someone while carrying out bouncer duties, it means that the employer would be liable to pay compensation for the actions, even if the bouncer were acting independently out of anger or revenge. Subsection (3) of the amendment considers that an employer employs a bouncer if he has bouncers on the premises, even if that person is supplied under a contract of services. So a landlord may go to the trouble of employing a reputable company and yet still be liable for misdeeds on the part of the bouncer. The proposed extension of the vicarious liability principle goes far beyond the needs of common law. We believe that it would impose an unfair and unjust system on those who retain door supervisory staff. Therefore, in good conscience, I am afraid that we cannot support such a measure. In view of my comments, I hope that the noble Lord will feel able to withdraw the amendment. For my part, I shall certainly reflect on the issue raised. However, I cannot recommend the proposed new clause as a solution to the Committee."in the course of their employment",
I thank my noble friend for his support for my proposed new clause. I believe that there is a problem in this respect. Indeed, the Minister has agreed to reflect further on the matter. As regards subsection (1) of the amendment, I realise that this proposes a very considerable extension of the liability involved. If there is an easier way out of the dilemma that occurs from time to time, we should obviously choose it.Notwithstanding the support that I received from the noble Lord, Lord Thomas, I am also very susceptible to the argument that subsection (2) would, as the Minister said, place an "additional burden" on companies. In the circumstances, I believe that we should all reflect further on the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 [ Licensing criteria]:
moved Amendment No. 20:
Page 5, line 42, leave out paragraph (b).
The noble Viscount said: The two amendments in this group are probing amendments that are designed to highlight a range of issues that arise as a result of Clause 6 and subsection (3) in particular. We seek clarification on how the authority will be able to gauge "the skills" and the "criteria" when deciding whether to issue licences. If Members of the Committee look at Clause 6(3)(a), they will see that it refers to,
"such criteria as the Authority considers appropriate for securing that the persons who engage in licensable conduct are fit and proper persons to engage in that conduct".
That seems to be perfectly reasonable. It is normal duty that is often imposed upon such bodies.
However, subsection (3)(b) extends the criteria, in that the authority will have to consider whether such persons,
"have the skills necessary to engage in the conduct for which they are licensed".
What do the Government mean by "skills"; for example, what skills are these people supposed to have? I can only assume that they mean "training" in some way. If that is the case, the legislation ought to say so. Will training schemes be set up for the purpose? Will the authority demand that people undertake some training before they can be considered for a licence? If so, will that training form part of an educational system like NVQs? What form will such training take? I do not understand the position. Such a requirement seems to me to be unnecessary. "Skills" seems to be a rather meaningless word in this context.
Can the Minister say what kind of skills applicants will be required to have? Either those concerned will be fit and proper persons or they will not be. I do not understand the meaning of the word "skills" in this provision. It seems to me to be both confusing and unnecessary. If the Government really mean to impose a serious regime of training for the industry, they should say so. They should come clean and state their position clearly on the matter.
I turn now to subsection (3)(c), which seems to me to be an extraordinary belt and braces clause. It appears to say, "If we haven't covered anything further than the conditions in paragraphs (a) and (b) which relate to someone being a fit and proper person and having the necessary skills, we can consider anything else that we want, no matter what it is"—in other words, the authority will have a totally undefined power that will enable it to say, "Whatever we think, we can say no".
I should like to know why the Government consider such a provision to be necessary. If the authority is to be responsible for people's livelihoods, it seems to me that a clear duty should be placed upon it to state what it regards as being "fit and proper" and what is not; and what it regards as appropriate training. As it stands, this is an incredibly wide provision, especially when one considers the extraordinarily wide powers that the Secretary of State will have to add further provisions to various parts of the legislation.
The Minister may correct me if I am wrong in this respect, but it seems to me the current licensing functions will be sub-contracted out to local authorities. Therefore, the powers under Clause 6(3)(a)(b) and (c) will also be sub-contracted to local authorities; in other words, local authorities will have a whole series of rather vague rules by which they will have to decide such matters.
When we discussed a previous amendment, the Minister said that the one thing we do not want is different rules applying to different areas. So how will these provisions work? Before the authority contracts out to the local authority, will it stipulate "the skills" required? Further, will it state what training will be required and then outline all the different conditions that are to be attached to the licence application? When one looks at the Bill, one sees that the authority has the power to add conditions once a licence has been issued. How will that work in practice? Like the Minister, I am concerned that there should not be different rules for different parts of the country.
I should like to hear more from the Minister about how the proposed system will work with local authorities. The Government must define what they mean in subsection (3). Indeed, the Minister must explain why it is necessary to have paragraph (c) in the clause. I beg to move.
My noble friend has highlighted an interesting inconsistency. I recall that we argued a similar point a short time ago. At that stage, my noble friend Lord Cope sought to have the word "skill" inserted into the Bill in place of the word "training" in Clause 1(2)(e). However, we have a direct reference to "skills" in Clause 6. The Minister put forward a convincing argument against the word "skill" at that time. He said that it was much better to have the word "training" in that clause. Nevertheless, a few pages further on in the Bill, the Minister had changed his mind by the time that we reached Clause 5, where we have the word "skills" instead of the word "training". It seems to me that both words should be used. We could then sleep carefully and safely at night.As Amendment No. 21 has been included in this group, perhaps I make take this opportunity to raise a rather wider point that I trust the Minister can answer at this stage. However, if he cannot, perhaps he will be able to respond in relation to another clause of the Bill. Although the issue is relevant to Clause 6 and Amendment No. 21, the point goes a little further and relates to the issue of revocation. Criticism has been made of the Bill that it will target individuals and that the licensing system is based around the activities and licence ability, if you will, of the individual concerned, not of the firm for which he works. I understand that criticism and to some extent support it. There will be individual licensing of all individual security operatives rather than one overall licence for a firm and the imposition of duties on that firm, which would ensure that the people who worked for it were the right sort of people. There is a difficulty concerning bad firms. What happens when firms go wrong? One knows that the dodgier elements, to use the Minister's expression, of the security business have in some unfortunate episodes overlapped with some elements of the criminal fraternity and that criminals have been involved with the provision of security services. That is why the Bill is felt to be necessary. I am concerned that licences may be given to firms that are substandard and, perhaps, run by criminal elements. Amendment No. 21 relates to Clause 6(3)(c), which states that the authority,
It would assist the Committee if the Minister said whether the type of employer will be taken into consideration when a licence is issued. In other words, a firm may be known to be dubious—it may be infiltrated, owned or run by criminal elements—and someone in it, perhaps a new recruit, may apply for a licence. That person may be perfectly acceptable, apart from the fact that he works for a dubious firm. Will that be taken into account in an application or would that discriminate against the individual, who may be a perfectly decent person? There may be a failure to impose sanctions on a substandard firm. My point boils down to this. How can substandard firms—by "substandard" I mean those about which the police and the licensing authority have strong suspicions that criminal activities are going on—be effectively put out of business? As I interpret the Bill, various individuals can have their licences suspended or revoked, or they may not be issued in the first place, but that does not appear to be the case with a firm as a whole. I do not think that I should prejudge the Minister too much if I guess that his answer will involve a reference to the approval scheme. Some of my remarks definitely relate to it. At Second Reading, he said:"may also include criteria relating to such other matters as the Authority thinks fit".
That explanation did not involve the approval process. That argument, which is relevant to Amendment No. 21, involves the type of criteria that the authority can take into account when deciding whether to issue a licence. However, that argument is also part of a much wider question. I should appreciate it if the Minister would respond to that wider question, but if he cannot at this stage perhaps he would discuss the narrower question of the issuing of licences in connection with an employer."But we do not believe that the threat of withdrawal of approval will necessarily be a deterrent if companies feel that illegal activities are the way to gain their business objectives".—[Official Report, 18/12/00; col. 600.]
We have had a useful debate on the two amendments. It is important for the authority to have the flexibility to decide on the licensing criteria that should be applied. Each sector of the industry has different requirements, and the authority may decide, following consultation with the industry, police, local authorities and other interested organisations, that to obtain a licence in order to undertake a particular type of recruitment activity, a particular skill or standard would need to be achieved. That is an important tool, which the authority will use to drive up standards across the industry. The Bill is therefore designed to give the authority flexibility in determining the criteria that will best ensure that standards are raised in an appropriately targeted way, where necessary, and that regulation is overall more effective.The noble Viscount, Lord Goschen, raised the prospect of the relevant criteria perhaps being skills and/or training.
Yes. I am attracted to that proposition and I am grateful to the noble Viscount for making it. It may help us to clarify the word "skills" in line 43 on page 5. I shall take the suggestion away without commitment, although I am interested in it. It may help us in relation to the clause and with our earlier debate—it may be relevant in both instances. I hope that we can be helpful in this regard.When the authority sets out criteria against which it will judge licence applications, subsection (3) will require it to include criteria to establish whether applicants are "fit and proper persons". That subsection will also allow the authority to include criteria relating to necessary skills. Amendment No. 21 would remove the authority's ability to include a third set of criteria relating to,
From our perspective, that amendment would reduce the authority's flexibility. It is important for the authority to have the flexibility to decide on the licensing criteria to be applied. Each sector of the industry will have different requirements, and the authority may decide, following consultation—this is important—with the industry, the police, local authorities and others, that to obtain a licence for a particular kind of security work a particular skill standard should be required. That is an important tool, which the authority will use to drive up standards across the industry. That is why we want it. It would be wrong to remove the authority's room for manoeuvre when it responds to particular demands. It goes without saying, of course, that it will not use that flexibility capriciously or without good purpose. It is important to remember that the criteria will continue to be published, so that applicants for licences will know what is expected of them. The noble Viscount, Lord Astor, asked why paragraph (c) was so open ended. The relevant conditions will be published by the security industry authority as part of its public statement on standards. It would need the flexibility to review old conditions as circumstances demand. The relevant conditions will all be published, so people will know what is required. The noble Viscount also asked about how skills will work when contracting out to local authorities. Local authorities will need to give effect to the authority's standards and published criteria; they will not be able to introduce their own criteria. In a helpful contribution, the noble Viscount, Lord Goschen, asked whether the type of employer would be taken into account when a licence was applied for. Personal licences do not necessarily relate to the individual's employer—such licences are, after all, personal. There is a common understanding in that regard. If the security industry authority knew that a substandard firm was seeking involvement, it might add—I argue that it should add—conditions to a personal licence, which would ensure that the threshold would be raised. Clearly, that would create the necessary difficulties. Perhaps I may refer to our earlier debate about the need to license directors or those with management responsibility. That would provide another safeguard and check. I believe that I made the point that we need to regulate properly the owners or directors of a company precisely to see off the type of difficulty which the noble Viscount mentioned in his contribution to the debate on this amendment. I hope that I have answered most of the points raised."such other matters as the Authority thinks fit".
I am grateful to the noble Lord for giving way and for his helpfulness in covering my wider points. I give notice that I should like to return to this point on Report.Given the Minister's explanation of where the matter now lies within the context of the Bill, I am not sure that sufficient leverage can be applied to a rogue firm. I understand his point with regard to the licensing of directors. However, as we know, the nominal directors of an unscrupulous company may not reflect who controls and, indeed, owns the benefits from the company. I believe that such information would be more difficult to tie down. If an individual is not overly concerned about having people "roughed up" or if he deals in drugs, and so on, he will probably not be too concerned about the provisions of the Companies Act or shadow directorships. Therefore, I believe that the Bill is not yet sufficiently tight in that regard. However, I appreciate the Minister's explanation thus far.
I understand the issue that the noble Viscount raises. He is trying to get to grips with the character of a company and the company which its owners or directors might keep. I shall reflect further on that matter but I do not believe that there is an easy solution. We may well get to the root of it by taking the approach which we suggest in relation to setting standards and criteria. I am prepared to give the problem further consideration. If the noble Viscount is able to put forward any ideas in the interim, I shall happily pursue those, too. In the meantime, perhaps I may suggest to the noble Viscount, Lord Astor, that he withdraws his amendment.
I am grateful to my noble friend Lord Goschen for putting forward the argument about skills and training. The words in the Bill are almost contradictory in that Clause 1 refers to training and Clause 6 refers to skills. The Minister kindly said that he would address that issue.I want to put three questions to the Minister. First, I believe that the criteria will be crucial to the successful running of the authority. I should like to receive a commitment from the Government that they will publish draft criteria for consultation. Secondly, the security industry training organisation has been established. Can the Minister tell me whether that will be used in assessing the criteria for training? My third question is a request for confirmation of what the Minister said. I believe he said that if anything were contracted out to a local authority, that authority would have to take note of the criteria. In order to clarify my understanding of the situation, am I right in believing that he is saying that the security authority would not contract out to a local authority unless that local authority, in effect, signed up to the criteria and that, therefore, there would be no question of a local authority using criteria which were different to the criteria decided by the authority? I am grateful to the Minister for his reply and, of course, shall withdraw Amendment No. 20. With regard to Amendment No. 21, I note his reply and am somewhat delighted by it because I feel that it will provide me with a far more powerful argument when I come to deal with my Amendment No. 23. In the meantime, I give the Minister the opportunity to respond to those questions.
The answer to the noble Viscount's points are: yes, no and yes. That is as brief and as complex a reply as I would wish to give at the moment. However, I believe that we do meet the points that he raises. First, yes, the draft criteria will be published for consultation. Secondly, no; possibly they will be used to examine training criteria, but we do not want the SIA's hands tied at this point. Thirdly, yes, the local authority will not be able to introduce its own criteria; we believe that that would be quite wrong.
I am grateful to the Minister for being clear. With regard to my second point, the security industry training organisation has been in place since 1991 and has a number of years' experience. Therefore, I ask the Minister to consider how that industry organisation, which is well respected, will be brought into discussions about the authority. Obviously, I shall let the Minister consider that point and, in the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendment No. 21 not moved.]
moved Amendment No. 22:
Page 6, line 14, at end insert—("() In determining whether or not a person is a fit and proper person to hold a licence, the Authority shall have regard to any representations made to it, whether in orally or in writing, and it shall in any event seek such representations in advance of refusing to grant a licence, giving the applicant an opportunity to respond to any grounds upon which it proposes to refuse a licence.").
The noble Viscount said: In moving Amendment No. 22, I wish to speak also to Amendment No. 23. I do not believe that I need to say a great deal about them because the Minister will see that we have been somewhat verbose in our drafting, perhaps in order to make our views clear.
I shall deal, first, with Amendment No. 22. It is important that the authority has regard to the representations that are made to it. It will have the opportunity to be as open as possible with those who apply for a licence. That will be a complicated process and there will be various transitional provisions. A huge number of individuals—as we have heard, more than 300,000—within the industry, not including new entrants, will have to apply. It will be easy for people to fall through the gaps and not be given a licence, but they will not know why. The process will be difficult.
The Government are trying to raise standards in the industry. We do not want people to have to wait or to remain unpaid because they cannot obtain a licence. We want people to have confidence that when they apply for a licence they will have a reasonable chance of obtaining one. If they are not to be granted a licence, they should be told the reason why. We have all had experience of records kept by government organisations or large bodies being wrong. In fact, they are more often wrong than right. I believe that an applicant should have the opportunity to make his case and find out what happened.
That leads me to Amendment No. 23. As we heard, the authority will have extraordinarily wide powers to say "yes", "no" or "maybe" to an applicant. I believe that any quango with that type of power over people's lives should be mindful of the consequences. One way to make government organisations mindful of the consequences is to include a process whereby, if an applicant has been treated badly and claims to have suffered damage, under reasonable terms as set out in Amendment No. 23 the authority would have to pay compensation. I do not believe that such a situation would arise often. However, it would be in the minds of those who run the authority that they must operate with care and in a proper manner.
The Minister may reply that recourse may be made to judicial review. That response is often given by governments; we have heard it time and time again. However, we all know that judicial review is enormously cumbersome and incredibly expensive. Anyone who applies for a job for the first time does not have a hope in hell of going down that path. 'Therefore, that is not a good argument and I hope that i t will not even be considered by the Government.
I accept that perhaps these two amendments are not drafted as well as they might be. However, I hope that the Government will consider the principle behind them and be able to give the Committee some reassurance. I beg to move.
Amendment No. 22, moved by the noble Viscount, Lord Astor, would oblige the security industry authority to have regard to any representations made to it and require it to seek such representations before it refuses to grant a licence. The Bill already provides for a transparent system of licensing. The criteria upon which the authority will reach its decisions will be published. The authority will wish to ensure that applicants are given every opportunity in their application forms to provide the strongest case in support of their applications. Unsuccessful applicants will have rights of appeal against the decision to refuse them a licence.Therefore, the Government do not believe that it is necessary to add a further requirement for applicants to be afforded an opportunity to comment when the authority is minded to refuse a licence. The noble Viscount recognised that we are already proposing a complicated process. To do what he asks in the amendment would add a disproportionate further layer of bureaucracy and cost in contrast to no real gain in natural justice for the applicants. There is already a duty to make a speedy response so as not to cause applicants to have to wait too long. The SIA's published criteria should include a statement of its turnaround times for applications and targets. Some applications may be more difficult than others. However, applicants are justified in expecting to know when a decision should be available. I hope that that has reassured the noble Viscount, who we know does not want to see the system become more time-consuming or more cumbersome. There will be a system of appeals against SIA decisions, as the noble Viscount said. Ultimately, there will be the availability of judicial review, but that would be additional to the right of appeal which is set up under the Bill. I turn to Amendment No. 23. We believe that the duties of the authority and the rights of individuals already exist within the drafting of the Bill or elsewhere in existing statute or common law. Therefore, Amendment No. 23 would not add substantively to either the duties of one or the rights of the other. As the noble Viscount said, the security industry authority will, in common with other public bodies, have a general duty to act reasonably, including with appropriate care and skill. Similarly, individuals already have the right to take legal action where their rights have been infringed. We believe that individuals who consider themselves adversely affected by the decision not to grant a licence to undertake security activities or to modify or revoke their licences will, in addition to any more general rights of redress, have a specific right of appeal against the authority's decision. I hope that in the light of those explanations and assurances the noble Viscount will not press his amendments.
I am grateful to the noble Baroness for those explanations. She referred to a general right of appeal. I presume that she referred to Clause 10. As far as I can see, the Secretary of State has to make an order for the bringing in of appeals. I wonder whether she could answer my question on that. Is there a right of appeal elsewhere in the Bill or is it just in Clause 10 and has to be initiated by an order?
The process of setting up and enacting the Bill on completion of its passage through Parliament is one that has to be phased through a series of orders by the Secretary of State, as we recognised earlier. The noble Lord, Lord Cope, recognised that there needs to be discussions with industry. That is why there is a process. The process of bringing into effect the matters referred to in Clause 10 is the one which I have outlined. I hope that that satisfies the noble Viscount. If it does not, I shall write to him with further clarification.
I think that means that the noble Baroness agrees with me that an appeal system will be brought in by order by the Government under Clause 10. We shall see what that order says. I give the Government due warning that if I am to withdraw my amendment now, we want them to take note of what has been said during this debate so that they may get right the order. Otherwise, we shall have to look at it. I am sure the noble Baroness will consider that.As regards Amendment No. 22, the comments of the noble Baroness satisfied me to a degree. I am not quite so happy with her reply to Amendment No. 23. It is always difficult for someone to obtain compensation. That is always a good test to put on anybody. Perhaps this should be dealt with by an order. It may not be right for it to be dealt with on the face of the Bill. I shall consider that point and read carefully what the noble Baroness said.
It may assist the noble Viscount if I remind him that in responding I also said that the right of appeal is set up by the Bill. The procedures, details and timing are obviously part of the negotiations and discussions with the industry. However, the right of appeal is established.
I am grateful to the noble Baroness for repeating her comments. My point is that we shall have to consider the nature and terms of appeal. As regards Amendment No. 23 and compensation, we shall have to consider whether we need to be specific. The noble Baroness said, quite reasonably, that the authority will have to have targets and turnaround times. We all know about government targets and turnaround times. We know how long it takes to reach targets, and about the targets for asylum seekers, which have not yet been met. I think that almost no turnaround time in government has ever been met by anybody. That was the same when we were in power, just as it is now. Perhaps it has become worse; perhaps not. Who knows?It will be extraordinarily difficult for the authority to keep to its target. The only way it will do so is by having a long transitional period. Otherwise, it will never get through all the people who are to be covered by the Bill. I am grateful to the noble Baroness for her reply. I am somewhat satisfied by her reply to Amendment No. 22. I shall consider carefully whether I wish to come back on Amendment No. 23. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendment No. 23 not moved.]
Clause 6 agreed to.
Clause 7 [ Licences to engage in licensable conduct]:
moved Amendment No. 23A:
Clause 7, page 6, line 41, at end insert—
("() The Authority shall state its reasons in writing, by reference to the criteria, for—
(a) a refusal to grant a licence under subsection (4), and an imposition of additional conditions under subsection (6).").
The noble Lord said: Amendment No. 23A is linked to Amendment No. 23D. Under Clause 7, Amendment No. 23A is concerned with the refusal of a licence. Amendment No. 23D is concerned with Clause 9 and the revoking or modifying of a licence. All those are decisions which are likely to give rise to an appeal by the applicant—adverse decisions to him.
I was pleased to hear the noble Baroness refer to the intention to create a transparent system here. The purpose of my Amendments Nos. 23A and 23D is to achieve transparency because it is necessary for the authority to state its reasons for a refusal on the one hand and the revocation or modification of an existing licence on the other. Those reasons should be given in writing and they should refer to the criteria which the Government have indicated are considered to be very important so that an appeal can be effective.
A simple blank refusal of a licence without reasons or the modification or revoking of a licence without reasons would clearly be contrary to natural justice and probably to the rules appertaining to tribunals in any event. So those reasons should be given. I hope the noble Baroness considers this a sensible suggestion, and I await her response.
Before the noble Baroness replies, I should like briefly to say that we support the intentions of the noble Lord, Lord Thomas of Gresford, in his amendments. In these he might have gone a long way to satisfy the concerns which were behind our earlier amendments. Therefore I look forward to the Government's reply.
Before the noble Baroness replies, I have said nothing about the proposed subsection (5). It seems to me that there is missing from the Bill a duty to notify the authority of matters which may lead to the modification or revocation of a licence. Two bodies are concerned: the police and the public. If the police hear of something adverse to the licence holder there should be an arrangement enabling the police to inform the authority of that so that consideration can be given to the continuation of the licence either as it exists or in some modified form.As for members of the public, no doubt they will have complaints against licence holders from time to time. How are they to be dealt with? It is no use writing to the authority if its response is, "I am sorry: we have no way in which we can give effect to your complaint." There must be some way in which the authority can respond to the proper concerns raised by members of the public in respect of their particular licence problem.
I think all sides of the Committee share a concern that this system will work. We do not believe there is a need for the requirements to be on the face of the Bill. The establishment of an appeals mechanism against licence decisions by the authority will require the authority to state in all cases the reasons for a decision it has reached—a point which I hope will please the noble Lord, Lord Thomas of Gresford—and these must be set out very clearly against the criteria which it must also have published. The SIA will need to work closely with the police, as the noble Viscount recognised, and come to an operational understanding with them as to how to pass on relevant information. We believe that precise arrangements are best left to the authority, once established, and the police to decide that they are required to do this. We do not want to shackle the arrangements that will be reached in achieving the objectives we all share by prescribing them in detail on the face of the Bill.The authority will also wish to establish a complaints procedure against licence holders. In deciding whether to continue, modify or revoke a licence, the views of the public and customers of licence holders will, as your Lordships recognise, be an important factor. Therefore it is important for the authority to establish and publicise a complaints system. Again, we see no need to specify this as a requirement on the face of the Bill. I hope I have been able to give an assurance that will enable the noble Lord, Lord Thomas of Gresford, to withdraw his Amendment No. 23A and not press Amendment No. 23D. I can assure both speakers in this short debate that the Government share their concern that this procedure should be absolutely clear and reassure them that the Bill requires that this process be followed.
Before the noble Lord, Lord Thomas, replies may, I say that it seems to me rather a contradiction for the noble Baroness to say, "This is what we are going to do but we don't want to put in the Bill that we are going to do it." If the Government are going to do it, I do not see why it should not be in the Bill. I hope the noble Lord, Lord Thomas of Gresford, will consider that.
Before the noble Viscount sits down, can I make it absolutely plain that the detail of how to achieve the objectives we all share, we believe, should not be on the face of the Bill. The requirement to provide that detail and to work closely with the police to make it work is a duty to be achieved by the Bill.
I have listened to the very helpful reply of the noble Baroness. I am not seeking for detail on the face of the Bill, as she will observe. So far as subsection (5) of Clause 9 is concerned, I am simply setting out the duty of the authority to do precisely what she says it is going to do. I do not think that that unduly clutters up the Bill. It is not detail, and it is not seeking in any way to impose a straitjacket upon the negotiations with the police or to prescribe precisely how complaints from the public are to be handled.I should have thought that as a matter of public presentation a duty of this sort should he made absolutely clear because unless it is on the face of the Bill it is impossible for anybody to demand it of the authority, once set up. I shall think very long and hard about what the noble Baroness said. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 agreed to.
I beg to move that the House do now resume. In doing so, I suggest that the Committee begins again at 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.