Criminal Justice and Court Services Bill (Hansard, 4 October 2000)

HL Deb 04 October 2000 vol 616 cc1518-64 1518

§ 3.6 p.m.

§ The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Bassam of Brighton.)

§ On Question, Motion agreed to.

§ House in Committee accordingly.

1519

§ [The LORD CHANCELLOR in the Chair.]

§ Schedule 4 [Meaning of "offence against a child"]:

§ Lord Bassam of Brighton moved Amendment No. 82: Page 54, line 22, at end insert— ("( ) an offence under section 160 of the Criminal Justice Act 1988 (possession of indecent photograph of child);").

§ The noble Lord said: Before turning to the substance of the technical amendment in front of us, I want briefly to mention that earlier this week I placed draft copies of the guidance for Part II of the Bill in the Library of the House. I must stress that this is a preliminary draft and at this stage we are merely seeking comments on it from a range of organisations. It is in no way, shape or form a finished document.

§ Baroness Blatch
I am grateful to the Minister for giving way. I was not aware of that and wondered whether other Members of the Committee were aware of it.

§ Lord Bassam of Brighton
The purpose of my making these simple observations at the Dispatch Box today is to ensure that everyone is on notice of the fact. I apologise that the noble Baroness was not previously aware of it but I am making it plain to the Committee today that we have taken this important step.
I am making the draft available now so as to provide an indication of how the scheme might work in practice. I hope that this will help to inform our consideration of this part of the Bill and also to ensure that the guidance reflects the intentions of both this House and the other place for the operation of the scheme.
The Government have tabled Amendment No. 82 to Schedule 4 which sets out the definition of an offence against a child and thereby serves to identify those who should be disqualified from working with children. The Government's technical amendment follows the proposed increased penalty for the possession of child pornography. The amendment ensures that those who receive a sentence of 12 months or more for possession of indecent photographs of a child will be disqualified from working with children under Part II of the Bill. I beg to move.

§ Baroness Blatch
I do not believe that I am the only Member of the Committee who is rather dismayed by the Minister's remarks. If the intention of placing a document in the Library of the House is to inform debate on the issue, none of us knew about it until this moment. We have had no opportunity to read the document that has been placed in the Library and debate on this part of the Bill will be complete by the end of today.

§ Lord Bassam of Brighton
I undertook to place a copy of the guidance in the Library of the House at the earliest possible moment so that debate at later stages of the Bill would be more complete. I raise the matter this afternoon as a matter of courtesy to the Committee. I apologise for the fact that the noble 1520 Baroness has not had sight of the document. However, we undertook to ensure that the document would be placed in the Library of the House at the earliest possible opportunity. We believe that to make available a copy of this document, which I stress is in draft form, at the earliest possible opportunity is in the interests of everyone and ensures that this piece of legislation is effectively thought through and that guidance upon it is well considered.

§ Lord Northbourne
Before the noble Lord sits down, perhaps he can clarify one matter. What is the guidance to or for?

§ Lord Bassam of Brighton
The guidance which relates to Part II of the Bill is a preliminary draft, not a finished document. It is hoped that it will enable people to have a better understanding of the proposed penalties for possession of child pornography. One would have thought that that would be a helpful step to take. I hope that the noble Lord finds the document a constructive and helpful read.

§ Baroness Blatch
My point is that it would have been helpful if Members of the Committee had been able to see it when it was deposited. Can the Minister tell the Committee when the document was deposited and why only now noble Lords are informed that it is in the Library?

§ Lord Bassam of Brighton
I said in an earlier response that we placed the guidance in the Library earlier this week. I shall try to ensure that the noble Baroness is made more precisely aware of when that occurred. I am informed that it took place on Monday.

§ Baroness Blatch
I do not want to prolong the debate, but I believe that to be outrageous.

§ 3.15 p.m.

§ Lord Northbourne
Not having seen the guidance or been aware that any had been produced, I must speak without the benefit of it. However, I support the amendment in principle. There are two reasons why pornographic photographs are very damaging. First, there is damage to the child itself when the photographs are taken; secondly, there is a tendency for pornographic photographs to stimulate fantasies. That leads adults with such a tendency to live out those sexual fantasies.
I ask the Government to define more closely what they mean by "indecent photographs of a child". For example, in one case reported in the press, Boots the Chemist was asked by a perfectly innocent person to develop photographs of his granddaughter sitting in the bath. The matter was reported to the police. The man was accused of being a paedophile and a very great deal of trouble and unfairness ensued. Can the Minister give an assurance that either in these guidelines or at some future stage there will be an opportunity to define the nature and character of "indecent photographs"?

§ Lord Dholakia
We dealt with the first part of the Committee stage as early as this week. At that time the 1521 Minister did not mention that the draft document would be placed in the Library. We have no difficulty in supporting this measure. However, in matters of this nature which have a direct bearing on the point, the Committee should know precisely what is available. As the Minister is used to sending so many letters to noble Lords on both sides of the Chamber, it would not have been out of place had he had the courtesy to send the document to us. If so, we would have been better informed and been able to contribute more positively to this debate.

§ Lord Bassam of Brighton
I am grateful for the interventions on this part of the legislation. This guidance is related to how we expect the provisions in Part II of the Bill to work in practice in relation to the disqualification of unsuitable people from work. The guidance is intended to inform the police, the Probation Service and voluntary organisations. We intend to go out to consultation on the contents of the guidance and we have simply shared it with the Committee as a courtesy. If some Members of the Committee regard my failure to mention it earlier as a discourtesy I apologise unreservedly. As the noble Lord, Lord Dholakia, observes, on many occasions I have undertaken to keep noble Lords informed at every stage of the process on which we are embarked. I apologise if some Members of the Committee feel slighted by this. I believed that I should raise this with the Committee this afternoon as a matter of courtesy. Although I do not believe that it would have had a direct bearing on the content of our debates this afternoon, on reflection perhaps it would have been more helpful if the Committee had been forewarned of its appearance.
We are pleased that we have produced the guidance as early as we have. It was completed in first draft form only at the end of last week. I am grateful for the forbearance of the Committee in this matter.

§ Baroness Blatch
I cannot claim to be totally satisfied by the noble Lord's response. This Committee sat on Monday. Was the Minister aware that the document was to be placed in the Library on Monday? If not, why not? He should have been aware of it. If he was aware of it, it would have been courteous had we been told that it was in the Library on Monday, and even more so if the Minister had taken the advice of the noble Lord, Lord Dholakia, and given Members of the Committee copies of the guidance.
The noble Lord made a baffling observation. He said that it did not have a direct bearing on our debates today. If the guidance is an explanatory note on Part II it will have a direct bearing on today's debate. This is a wholly unsatisfactory state of affairs.

§ Lord Bassam of Brighton
I always try to be helpful on these occasions. I shall come to the point raised by the noble Baroness in due course. It is worth pointing out that this part of the Bill was not reached on Monday. We were then busy with earlier parts of the legislation to which we gave careful consideration. 1522 I was not aware on Monday that the guidance was to be placed in the Library. I was made aware of that yesterday when I worked through the papers. We need to focus on what is before us this afternoon. This is simply a technical and, I believe, uncontroversial amendment. I had not predicted that advice to the Committee about something that we believed was constructive would create such interest and concern in the noble Baroness. I apologise if Members of the Committee feel slighted in any way, which was not my intention. At all times my intention is to be helpful and to have worthwhile and constructive debates on important issues of the day.

§ Lord Ampthill
In view of the comments that have been expressed with such strength from around the Committee, does the Minister agree that the amendment has merit but that it has been impossible to discuss it now because the draft of the guidelines has become available only very late in the day? Perhaps the Minister will consider withdrawing the amendment and bringing it back on Report when everyone will have had a chance to think about it.

§ Baroness Hilton of Eggardon
When I was in Opposition we did not get guidelines during the passage of a Bill. I should like to pray in aid the support of the noble Lord, Lord Harris of Greenwich, in relation to the Police Act 1996 and in relation to the Environment Act 1995. Those were large and important Acts. We did not get guidelines until after the Bill had passed through all stages of the House. I think that the Committee is lucky to have even draft guidelines which are available in the Library.

§ Baroness Blatch
In response to the remarks of the noble Baroness, Lady Hilton, the noble Baroness will know— certainly the Minister will know—of the difficulty of technical people in the background, the officials, the counsel and all the people involved in drafting guidelines. A Minister can only do his or her best to press for guidelines. I do not think there is a Minister on either side of the House who does not do his or her best in the backroom to press for guidance, because it is helpful to the Committee. I can honestly say, with hand on heart, that during the nine years I was a Minister that, if guidance existed, I certainly did not wait until the next Committee day to tell Members that it had been placed in the Library some days before.

§ Lord Bassam of Brighton
More is being made of this matter than is necessary. I certainly am not inclined to withdraw the amendment as it is a technical amendment. It sets out a definition of an offence against a child. The guidance is guidance. It is there for our information. If Members of the Committee feel that it is important to have a debate on that, no doubt the issue can be raised again on Report. The Bill makes perfect sense without the guidance, as does the amendment. The guidance is for those working in the childcare sector. That is where it is most important. 1523 That is where it will be applied. That is where it will be interpreted and understood. At the first opportunity I had I advised the Committee of the presence of the guidance in the Library of the House. I thought that I was being courteous in providing the Committee with the information in a timely way.

§ Lord Hylton
Will the Minister take note that his amendment is not terribly well-drafted. It should be inserted at lines 19 or 20 on page 54 of Schedule 4.

§ Lord Bassam of Brighton
I am grateful to the noble Lord. I shall reflect on his helpful observation.

§ Baroness Carnegy of Lour
Will the Minister respond to the noble Lord, Lord Northbourne, and give the Committee an adequate definition of what is an indecent photograph of a child? For those of us who have not been involved in the drafting of the Bill, but have been listening to the discussion with great interest, that seems to be the main point. Is that in the guidance that no one has seen? Is the Minister able to give a definition now or will he wait until Report stage? So far as concerns the amendment, clearly that is the nub of the matter.

§ Lord Bassam of Brighton
The definition is contained in Schedule 4 to the Bill. The guidance is guidance. It is interpretation, rather like the PACE codes are guidance to the Police and Criminal Evidence Act. When the noble Baroness has had an opportunity to look through the draft guidance I look forward to any constructive observations she has. I shall want to listen to any concerns she has about it. I shall be more than happy to meet and discuss those concerns. But what we are talking about this afternoon is actually what is on the face of the Bill and in the schedules.

§ Baroness Blatch
Perhaps the Minister would like to know that my noble friend Lady Seccombe has just been to the Library to get a copy of the guidelines for me and it is not there.

§ The Principal Deputy Chairman of Committees (Lord Tordoff)
I apologise to the Committee for being precipitous previously but I had not realised that the noble Lord, Lord Northbourne, wished to intervene. It is now my duty to put the Question. The Question is that Amendment No. 82 shall be agreed to. As many of that opinion will say, "Content". To the contrary, "Not-Content". I think the Not-Contents have it. Clear the Bar.

§ Division called.

§ Tellers for the Contents have not been appointed pursuant to Standing Order No. 54. A Division therefore cannot take place, and I declare that the Not-Contents have it.

1524

§ 3.30 p.m.

§ Baroness Blatch moved Amendment No. 83: Page 55, line 41, at end insert— ("( ) he commits an offence under section 4 of the Misuse of Drugs Act 1971 (restriction on production and supply of controlled drugs) by supplying a controlled drug to a child,").

§ The noble Baroness said: When this issue was discussed in another place—

Lord Shepherd
I wonder whether we could have an explanation. A number of my colleagues are still in the Division Lobby where they went as a consequence of the Opposition's action—

Noble Lords
No!

Lord Shepherd
At least time should be allowed for noble Lords to come back to the Chamber.

§ Lord Carter
I take full responsibility. A second teller was not appointed on the "Content" side.

§ Baroness Blatch
When this issue was discussed in another place the Minister said: There can be few incidences of the supply of drugs that are more serious than the supply of drugs to children. That is wicked beyond belief. The hon. Member for Surrey Heath is right to draw attention to the evil that it represents. When there is evidence of the supply of drugs to children, it attracts properly condign and exemplary punishment, and it is right that it should. It is also right that we should take a particularly dim view of those who exploit their position with children to peddle drugs to them. That is a very serious matter and one would expect the law to take it seriously". It is on the basis of the Minister's own words that I have moved the amendment today.
In the same debate the Minister said: The evidence, which forms the basis for the Bill, is that drug dealers seldom target the under-18s; they have a much more scatter-gun approach and are out to sell drugs to anyone whom they can lure into buying from them. They do not care how old someone is—which is partly where the wickedness lies".—[OffIcial Report, Commons Standing Committee G, 13/4/00; cols. 145–146.] I agree with the Minister that dealers do not care to whom they sell drugs. As long as they sell them they do not care who is buying them. But to say that they do not target children is monstrous. If we believe the statistics, we see that too many of our children are being supplied with drugs in their communities and at school gates. While they may not be targeted specifically, they are nevertheless being targeted.
We cannot continue to wring our hands about the drug problem among children if we are not prepared to make those who supply the drugs, particularly controlled drugs, pay the price by banning those people from working with children. That is what we are talking about in this amendment. It is about the disqualification order. Anyone who supplies drugs to children should be included in the disqualification order. I beg to move.

§ Lord Bassam of Brighton
On the face of it the amendment moved by the noble Baroness is attractive. I yield to no one in my determination as a Minister to 1525 do all that I can to ensure that we fight the drugs war and the drugs menace. As a parent, as a Minister and as a socially concerned person, I see it as one of the Government's primary responsibilities to do all we can to ensure that we counter the drugs culture and dissuade people from becoming interested in drugs, becoming involved in drugs and becoming drug dealers and drug users.
The supply of drugs to children is an extremely serious offence and should be treated as such. It can result in potentially long-term harm to children, either intentionally or recklessly. However, when you look at the actual facts on drug dealing, the amendment does not have the required impact, even if targeted at those who supply drugs to children. Neither in practical terms nor on an evidence-based approach would it be feasible to include this as an offence that merited disqualification from working with children. The evidence clearly indicates that drug dealers seldom, if ever, target under-18s as such but will supply drugs to those of any age who wish to buy. There is clear agreement across the political divide on that point.
The main group using drugs range from 16 to 29 and it will probably be a matter of chance whether a child figures on any indication of who takes drugs. Because the dealer may well not know the ages involved—if, for example, he is supplying drugs outside a night club—there could be an unacceptable degree of arbitrariness in the application of the disqualification. This question of practicality and arbitrariness is an important one. There are other serious drugs offences, such as possession with intent to supply or conspiracy to supply, which fall into the same area of harm. It would be odd and arbitrary to pick out only one drugs offence in the way envisaged in the amendment. However, the evidence in a case of possession with intent to supply is likely to concern lifestyle, quantity of drugs, equipment, and so on, not the possible identity of the person to whom the drugs would be supplied. For conspiracy to supply it is the agreement, not the actual supply, which would need to be proved. But this offence arguably catches the "bigger" fish.
Moreover, the offence of supply itself does not require any financial element. It would cover teenagers sharing pills even if no money changed hands. Indeed, the evidence is that children are introduced to drugs by their peers, not by older drug dealers, and the dealer allegedly hanging around the school playground is something of a myth. That is well established by the report on drug misuse and the environment produced by the Advisory Council on the Misuse of Drugs in 1998. For the reasons I have given I do not accept the amendment put forward by the noble Baroness despite its apparent attractiveness. I ask her to withdraw the amendment.
The second area of difficulty in including the supply of drugs in the schedule perversely arises from the extremely serious nature of the offence itself and the proper severity with which the courts deal with it. A student selling drugs outside a night club might well, quite properly, be dealt with very severely by the courts but riot pose a long-term danger to children such as would merit the disqualification.
1526 For these reasons we do not think it would be right to include this offence as a trigger for the disqualification order. It could not be delivered in practical terms or supported on an evidence-based approach. The practical and legal difficulties which lie behind the rejection of the amendment should in no way be misrepresented as a lack of concern over drug abuse by children or others, or a lack of rigour with those responsible for peddling illegal substances.
We should do all that we possibly can to bring such people to justice. But to include the offences in the list to trigger the ban would not help with that; nor would it serve better to protect children from abuse.

§ Baroness Blatch
I do not know on which planet the official who wrote that brief for the Minister is living. It would be wrong not to include as a person unfit to work with children someone who supplies controlled drugs to children. The noble Lord referred to the difficulty of identification. That might be used as a defence by a shopkeeper who sells cigarettes to children. Shopkeepers are expected, even though it may be difficult at times, to know who is under and who is over age. A publican is expected by law, though it may be difficult from time to time, to know who is under and who is over age. Why should it be any more difficult for a policeman to know whether drugs have been sold to someone who is or is not under age? In either of those cases, as the noble Lord pointed out, it is an offence. For that reason, someone who supplies controlled drugs to anyone else will be guilty of an offence.
But the other reason given by the noble Lord is completely baffling. He said that someone who supplies drugs outside a nightclub— I do not know why he referred so often to nightclubs; I am much more concerned about what happens outside the school gates or in youth clubs—is committing a very serious offence indeed. While that person may be severely dealt with by the courts for supplying drugs, in particular for supplying them to children, it does not make them fit people to work with children. In opposing my amendment, I must assume that the noble Lord is saying that a person who supplies drugs to a child can continue to be excluded from an order which prohibits them from working with children. I wonder if the Home Secretary would confirm that to the parents of Leah Betts or to all the other children who, sadly, have suffered from the effects of someone older supplying them with drugs.
I find that quite offensive and I shall return to this matter on another occasion. The noble Lord will have an opportunity to discuss the brief with his officials and perhaps reflect on what he has said. However, I can confirm that I shall certainly return to this issue and at that point I shall seek the opinion of the House.

§ Baroness Masham of Ilton
Before the noble Baroness withdraws her amendment, perhaps I may offer her my support. A few years ago, Barnardo's produced a report on child prostitution which looked in particular at children between 13 and 15 years of age. They were enticed into prostitution by being given drugs.
1527 Parents of children with drug problems in Glasgow visited us here in the House of Lords. Those parents were desperate because people were giving drugs to their children. This problem is bigger than perhaps the Minister truly realises.

§ The Earl of Listowel
Perhaps I may voice a concern as regards a particular point. It is quite credible to believe that young people are often supplied with drugs by their peers. For that reason, we may encounter a difficulty here, in that young people may be disqualified from working with other young people, perhaps as the result of a minor episode which occurred when they were still rather immature.

§ Baroness Blatch
The noble Earl, Lord Listowel, makes an important point and I take that on board. Indeed, if one examines the list of offences in the schedule, the same observation could be made about many of them. However, it is my understanding that when a disqualification order is contemplated by the courts, they have the ability to consider exceptional circumstances. It could be that the discretion conferred on the courts to make such a judgment is the best way to deal with that kind of situation.
Furthermore, we have in place revocation procedures whereby people may apply to the tribunal for a revocation order. If we are discussing young people under the age of 18 giving drugs to each other, while that is not something I condone, the period during which they can apply is somewhat shorter than for those who are over 18. The discretion is in place in the Bill as regards the application of a disqualification order and would deal with that point.
I regard this amendment as extremely important. The supply of drugs to children is the scourge of the age. The problem is so serious that we need to do as much as we can to prevent it. Furthermore, it is serious enough to warrant allowing the Minister time to reflect once again upon it. I shall return to this issue, but if at that stage the Minister is still not minded to accept an amendment along these lines, I shall then seek the opinion of the House. In the meantime, I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ Schedule 4 agreed to.

§ Clause 26 agreed to.

§ Clause 27 [Disqualification from working with children: adults]:

§ 3.45 p.m.

§ Baroness Blatch moved Amendment No. 84: Page 12, line 38, leave out ("either") and insert ("one").

§ The noble Baroness said: In moving Amendment No. 84 I shall speak also to Amendments Nos. 85, 87 and 96. I shall not be moving Amendments Nos. 86 and 88 and I shall explain why in a moment.

1528

§ Amendments Nos. 84 and 96 are consequential. Perhaps I may therefore move on to the core of this grouping; namely, Amendments Nos. 85 and 87. They introduce additional conditions which, if met, will result in disqualification from working with children.

§ Amendment No. 85 invites the court to make a determination, having regard to all the circumstances, that a convicted person over the age of 18 is likely or not, as the case may he, to commit a further offence. Amendment No. 85 applies the same condition to a convicted person who is under the age of 16.

§ As I have just said, I shall not be moving Amendments Nos. 86 and 88 on the ground that, on reflection, the word "further" in Clause 27(5) and 28(4) have the same effect as my amendments would have had. When he comes to reply, I should be grateful if the Minister could confirm my understanding of these amendments. I apologise for that. I need to table these amendments myself and, since I am not legally qualified, I do not always get it right. I beg to move.

§ Lord Bassam of Brighton
These amendments raise an important issue, crucial to the balance of the scheme in Part II of the Bill. Perhaps I may deal with them carefully and in some detail.
The Government's aim here is to ensure that an effective scheme to protect children is put in place. As currently drafted, the provisions seek to provide the strongest scheme possible but at the same time to ensure that the entire scheme is properly justified by the need to protect children.
There are three main reasons why we do not think it right to adopt the approach of allowing the courts to disqualify from working with children anyone who commits one of the trigger offences listed in Schedule 4. First, the disqualification has a serious impact on an offender's private life. It must be imposed only where clearly justified by the underlying criminal offence. It is no substitute for the imposition of lengthy custodial sentences where these are warranted by the offence and necessary for child protection. That is a vital point.
To make the disqualification available on a discretionary basis might encourage sentencers who are wavering on the issue of custody not to impose it on the basis that the disqualification would be an adequate safeguard. We believe that this would be a retrograde step.
I should also draw the attention of noble Lords to the express provision contained in Section 2 of the Criminal Justice Act 1991, which has now been consolidated in the Powers of Criminal Courts (Sentencing) Act 2000, on custodial sentences. This is that the sentence shall be: where an offence is a violent or sexual offence, of such longer term (not exceeding that maximum) as in the opinion of the court is necessary to protect the public from serious harm from the offender". That is clear and unequivocal. Where the individual poses a risk to children, his sentence should reflect that. I should note in this context that if there are, for example, compassionate circumstances which make a prison sentence unsuitable, a suspended sentence will also attract the disqualification order.
1529 Secondly, it is essential that the disqualification is imposed automatically, unless there are very exceptional circumstances, on all serious offenders against children. This adds enormously to the strength and coherence of the scheme. The requirement of a penalty of 12 months' imprisonment as a trigger serves to identify an offender for whom an automatic ban is justified. Underneath this level of penalty, there would have to be unfettered discretion for the courts, which would need to consider the risk likely on an individual case basis.
The discretion envisaged would serve only to dilute and weaken the scheme. It would bring its underlying principle in doubt. It would also add to its complexity, administration, bureaucracy and, inevitably, to its room for error.
I should like to make one further point in this respect. We regard it as essential to get the scheme off to a strong start. We should like disqualification to be seen as inevitable for adult offenders when the conditions are met—which is similar to registration under the Sex Offenders Act—although its severe nature makes the need for some residual discretion important. But that is not to say that, when the scheme has bedded in, the issue could not be revisited if the evidence is that this would add to child protection. As I said earlier, at present such a step would weaken the protections, but obviously this is something we properly need to keep under close review Thirdly, we believe that it is essential for the disqualification order to be awarded at Crown Court level or higher. Magistrates are not trained or qualified to make such decisions and they would be inappropriate people to award a lifetime ban. The use of 12 months imprisonment as a trigger serves to set the ban firmly at Crown Court level for cases either heard at Crown Court or referred there for sentence.
Of course, award of the ban could still be restricted to Crown Court level with lower penalties allowed. However, this would mean either that the same case could be liable to fundamentally different disposal depending on the mode of trial, even if the primary sentence was the same, or that provision would have to be made to refer large numbers of cases to the Crown Court for sentence to consider the ban. This could lead to great additional costs in time and money to the criminal justice system.
I should also draw attention to the substantial safeguards which exist against those receiving lesser penalties for the criminal offences in Schedule 4, or who are convicted for offences falling outside the schedule, to stop them working with children. First, once the criminal records bureau is up and running, if offenders seek any such work their full criminal records, including spent convictions and cautions, should be available if a check is made countersigned by a registered body. Secondly, if they were already working with children in areas covered by the schemes run by the Department of Health or the Department for Education and Employment and committed a criminal offence with a lesser penalty, they could nevertheless be banned.
1530 Of course there will be cases—such as that of Gary Glitter—in which the immediate reaction might be, "He should be banned", but the ban is no substitute for the proper prison sentence if risk to children is involved. Moreover, the disqualification order should be seen as part of a whole network of child protection measures and as only one part of what should be an increased culture of vigilance by all organisations involved in working with children, parents and so on.
I must stress that this a difficult, complex and tricky area. While we do not wish to weaken the disqualification scheme, we appreciate that there is a need for complementary measures to deal with those who fall outside the scheme but who may nevertheless, on the basis of a detailed assessment of their individual cases, pose a risk to children. This was debated at great length in another place and we listened very carefully to the concerns raised there. This is an area where we are all working to a common goal—the protection of children.
We have already in place the sex offender order which can be imposed on a sex offender after he or she is sentenced if there is a subsequent cause for concern that the public is at risk of serious harm from them. But this cannot be imposed at the point of sentence, even if there is already evidence of such risk.
To meet concerns over cases where there is a clear need for additional public protection evident at the point of sentence, we are bringing forward a new sex offender restraining order, to be available to senior courts at the time of sentence. We will discuss this in detail later in our consideration of the Bill, but it is perhaps worth saying now that it would allow a senior court, if the circumstances—particularly the need to protect the public—fully justified it, to impose the equivalent of a disqualification order at the point of sentence on any sex offender receiving a custodial sentence. This would be imposed on the basis of the merits of the individual case. This should go a long way towards answering concerns about any apparent rigidity of the present scheme and allow for flexibility without the dilution which would result from the noble Baroness's amendments.
The noble Baroness asked me to confirm her interpretation of her own wording. I am happy to do so. But, for the reasons I have outlined, I suggest to the noble Baroness that it may be advisable for her to withdraw her amendment.

§ Baroness Blatch
I am grateful to the Minister for such a detailed answer. However, it has unnecessarily complicated the issue.
My amendments concern a disqualification order for those people who are already convicted in court of an offence against a child but who do not qualify for a disqualification order. One has to think only of the awful crimes committed by Gary Glitter, who traded in child pornography. He received a sentence of less than 12 months and, because of that, he did not fall into the category of qualifying for a disqualification order. I am not saying that this would apply to him, but if the court, having regard to all the circumstances, 1531 believed that someone with a similar conviction was likely to offend again, it is right that he or she should be deemed unfit to work with children.
My amendment is concerned with whether people are suitable or not to work with children. If a person qualifies for a disqualification order—a matter which was referred to in at least two or three pages of the Minister's speech—there is no problem; they qualify and that is an end to it. But it is different where an offender does not qualify for an order—that is, where someone is sentenced for something very serious but receives less than 12 months.
I am not a magistrate, but my magistrate friends know that some pretty serious offences go through the courts and that the individuals receive sentences of less than 12 months. I can remember going into Lincoln prison. The governor was showing me around and pointed to someone who was due to be released the following week—he was serving a six months sentence—and said, "I know that this man will come back. It is a dead cert that he will come back".
All I am saying is that in circumstances where the court believes that a person is likely to commit a further offence against a child, that person should qualify for a disqualification order that deems him unsuitable to work with children. That is all the amendment seeks to do.

§ Lord Bassam of Brighton
I am grateful to the noble Baroness for her further clarification and explanation. I appreciate the arguments she is putting forward—I shall not beat about the bush on that—but I had hoped she would pick up the point that I made earlier that this is an issue which we may wish to revisit at a later stage, perhaps when we see the scheme and system properly kick in. At this stage we believe that we have got the measure about right. It is important that we try to get it right at the outset. There will be scope for further review.
It is perhaps worth making the additional point that disqualification is not a substitute for a proper sentence. The unfortunate impact of the noble Baroness's proposal is that it might undermine proper sentencing. We need to see the scheme working and to make a judgment at a later stage. I do not rule out that at some later stage we may have to revisit the issue.

§ Baroness Blatch
I am not sure that the Minister understands the Bill. I am not talking about a substitute for a proper sentence; I am talking about a person who has been given a proper sentence in the court. I am talking about a person who has committed a crime against a child and who has received a sentence which does not qualify him for a disqualification order. If the court, having regard to all the circumstances—which is the wording of my amendment—believe that that person is likely to commit a further crime against a child, he should be deemed unfit to work with children and thereby qualify for a disqualification order.
1532 I can only conclude from what the Minister said that the Government feel that somebody who is convicted of a crime against a child but who, as the Bill is set out, does not qualify for a disqualification order, nevertheless can be deemed fit to work with children. I beg leave to seek the opinion of the House.

§ 3.59 p.m.

§ On Question, Whether the said amendment (No. 84) shall be agreed to?

§ Their Lordships divided: Contents, 73; Not-Contents, 104.

1533

Division No.1
CONTENTS
Alton of Liverpool, L.	Lang of Monkton, L.
Anelay of St Johns, B.	Listowel, E.
Astor of Hever, L.	Lyell, L.
Attlee, E.	McColl of Dulwich, L.
Biffen, L.	McConnell, L.
Blatch, B.	Mackay of Ardbrecknish, L.
Boardman, L.	Marsh, L.
Brabazon of Tara, L.	Masham of Ilton, B.
Bridges, L.	Molyneaux of Killead, L.
Bristol, Bp.	Montrose, D.
Brougham and Vaux, L.	Mowbray and Stourton, L.
Burnham, L. [Teller]	Murton of Lindisfarne, L.
Byford, B.	Northbourne, L.
Campbell of Croy, L.	Northesk, E.
Carnegy of Lour, B.	Norton of Louth, L.
Clark of Kempston, L.	O'Cathain, B.
Darcy de Knayth, B.	Onslow, E.
Denham, L.	Oxfuird, V.
Dixon-Smith, L.	Palmer, L.
Elles, B.	Park of Monmouth, B.
Elliott of Morpeth, L.	Plumb, L.
Ferrers, E.	Renton, L.
Fookes, B.	Roberts of Conwy, L.
Fraser of Carmyllie, L.	Rogan, L.
Gardner of Parkes, B.	Rotherwick, L.
Glenarthur, L.	Seccombe, B.
Gray of Contin, L.	Selsdon, L.
Hanham, B.	Skelmersdale, L.
Hayhoe, L.	Stodart of Leaston, L.
Henley, L.[Teller]	Swinfen, L.
Hooper, B.	Tenby, V.
Howe, E.	Thomas of Gwydir, L.
Jenkin of Roding, L.	Trumpington, B.
Jopling, L.	Tugendhat, L.
Kimball, L.	Warnock, B.
Laird, L.	Wilcox, B.
	Windlesham, L.
NOT-CONTENTS
Acton, L.	Burlison, L.
Ahmed, L.	Carter, L. [Teller]
Alli, L.	Christopher, L.
Amos, B.	Clarke of Hampstead, L.
Andrews, B.	Cledwyn of Penrhos, L.
Bach, L.	Clinton-Davis, L.
Barnett, L.	Cocks of Hartcliffe, L.
Bassam of Brighton, L.	Craig of Radley, L.
Bernstein of Craigweil, L.	Crawley, B.
Blackstone, B.	Davies of Oldham, L.
Blease, L.	Dean of Thornton-le-Fylde, B
Borrie, L.	Desai, L.
Bragg, L.	Dubs, L.
Brennan, L.	Elder, L.
Brett, L.	Evans of Parkside, L.
Bruce of Donington, L.	Farrington of Ribbleton, B.

1533

Faulkner of Worcester, L.	Mason of Barnsley, L.
Fitt, L.	Massey of Darwen, B.
Fyfe of Fairfield, L.	Milner of Leeds, L.
Gibson of Market Rasen, B.	Mishcon, L.
Gladwin of Clee, L.	Mitchell, L.
Gordon of Strathblane, L.	Molloy, L.
Goudie, B.	Monson, L.
Gould of Potternewton, B.	Nicol, B.
Graham of Edmonton, L.	Patel of Blackburn, L.
Grenfell, L.	Paul, L.
Harris of Haringey, L.	Pitkeathley, B.
Harrison, L.	Prys-Davies, L.
Haskel, L.	Ramsay of Cartvale, B.
Hayman, B.	Rendell of Babergh, B.
Hilton of Eggardon, B.	Richardson of Calow, B.
Howells of St. Davids, B.	Roll of Ipsden, L.
Howie of Troon, L.	Sawyer, L.
Hoyle, L.	Shepherd, L.
Hughes of Woodside, L.	Shore of Stepney, L.
Hunt of Kings Heath, L.	Simon, V.
Imbert, L.	Simon of Glaisdale, L.
Irvine of Lairg, L. (Lord Chancellor)	Smith of Gilmorehill, B.
Islwyn, L.	Smith of Leigh, L.
Jeger, B.	Strabolgi, L.
Jenkins of Putney, L.	Strange, B.
Judd, L.	Symons of Vernham Dean, B
Kirkhill, L.	Taylor of Blackburn, L.
Laming, L.	Tomlinson, L.
Lea of Crondall, L.	Turnberg, L.
Lipsey, L.	Turner of Camden, B.
Lockwood, B.	Uddin, B.
Lofthouse of Pontefract, L.	Varley, L.
Macdonald of Tradeston, L.	Wedderburn of Charlton, L.
McIntosh of Haringey, L. [Teller]	Wilkins, B.
Mackenzie of Framwellgate, L.	Williams of Elvel, L.
	Williams of Mostyn, L.
	Woolmer of Leeds, L.

§ Resolved in the negative, and amendment disagreed to accordingly.

§ 4.9 p.m.

§ [Amendments Nos. 85 and 86 not moved.]

§ Clause 27 agreed to.

§ Clause 28 [Disqualification from working with children: juveniles]:

§ [Amendments Nos. 87 and 88 not moved.]

§ Clause 28 agreed to.

§ Clause 29 [Sections 27 and 28: supplemental]:

§ Baroness Seccombe moved Amendment No. 89: Page 13, line 39, leave out ("for a term of 12 months or more").

§ The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 90 to 93. The amendment relates to another very serious matter and follows on the previous amendment. It is important as it involves the protection of children.

§ As a magistrate, I was always advised that a sentence of imprisonment of any length cannot be imposed unless the Bench believes that there is no other appropriate way of dealing with it. It follows that only serious offences result in imprisonment of any duration.

§ Twelve months is a lengthy sentence in anyone's view, and to restrict disqualification to that period is not acceptable. It would not, and indeed did not, catch cases such as the former drummer of the Bay City 1534 Rollers or Gary Glitter. Many members of the public believe that such offenders should be disqualified from working with children, and we agree with them.

§ We appreciate that disqualification is a consequence of a serious offence—a conviction—as the Minister of State said in another place. However, we on these Benches believe that the protection of children is paramount. I beg to move.

§ Lord Bassam of Brighton
This set of amendments addresses precisely the same arguments as those just discussed. Therefore, it is not necessary for me to rehearse all of them again. There are three main reasons why we do not think it right to adopt the approach of allowing the courts to disqualify anyone who commits one of the trigger offences in Schedule 4 from working with children.
As I believe is commonly accepted between us, disqualification has a serious impact on an offender's life. It should only be imposed where it is clearly justified by the underlying criminal offence. It is also essential for the disqualification to be imposed automatically on all serious offenders against children. As I said earlier, we believe that it is essential for the disqualification order to be awarded at the right level of court as regards these more serious offences.
We are entirely at one across the Dispatch Boxes on the serious nature of these offences. As I said in the earlier debate, this is a matter that we shall continue to keep under review; indeed, we do so at all times. However, we need to have a provision that is both proportionate and workable. We believe that the current scheme qualifies on both those points. For those reasons, I urge the Committee to reject this set of amendments.

§ Baroness Seccombe
The Minister's response is most disappointing. The situation whereby people like Gary Glitter would be able to work with children seems to me to be quite wrong. I note that the Minister said that the matter will be kept under review. It is true that an automatic disqualification in such circumstances would be in force for a certain time, but the convicted person could always make an application to the court to have it removed if he had not offended for a period of time.
We should be concentrating on the protection of children. Surely it is the job of this Chamber to ensure that children are fully protected. I shall read the Minister's response in Hansard and discuss it with my colleagues. I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ [Amendments Nos. 90 to 93 not moved.]

§ Lord Bassam of Brighton moved Amendment No. 94: Page 14, line 10, leave out ("or guardianship").

§ The noble Lord said: This amendment relates to a minor technical change to Clause 29. A guardianship order is properly defined in subsection (1) at line 35 on page 13. The reference to a "guardianship order" on page 14 at line 10 is, therefore, superfluous. We believe 1535 that removing that reference and adding "guardianship order" (as defined previously in the clause) as a separate meaning of a "qualifying sentence" will solve the problem. For those reasons, I ask the Committee to accept this small, technical government amendment. I beg to move.

§ On Question, amendment agreed to.

§ Lord Bassam of Brighton moved Amendment No. 95: Page 14, line 11, at end insert ("or ( ) a guardianship order,").

§ On Question, amendment agreed to.

§ Clause 29 agreed to.

§ Clause 30 [Appeals]:

§ [Amendment No. 96 not moved.]

§ Clause 30 agreed to.

§ Clause 31 agreed to.

§ Baroness Blatch moved Amendment No. 97: After Clause 31, insert the following new Clause—

1564

§ Baroness Seccombe moved Amendment No. 109: Before Clause 37, insert the following new clause—

cc1535-49