Schedule 22

Criminal Justice and Immigration Bill – in a Public Bill Committee am 2:30 pm ar 29 Tachwedd 2007.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Transitory, transitional and saving provisions

Amendments made: No. 57, in schedule 22, page 227, line 22, at end insert—

‘5A In subsection (5) of section 148 of the Criminal Justice Act 2003 (c. 44) (restrictions on imposing community sentences), as inserted by section 11 of this Act, the reference to a youth rehabilitation order is to be read as including a reference to any youth community order within the meaning of section 147(2) of the Criminal Justice Act 2003 (c. 44) (as it has effect immediately before the commencement of paragraph 72 of Schedule 4 to this Act).’.

No. 206, in schedule 22, page 228, line 19, at end insert—

‘10A (1) Subject to the following provisions of this paragraph, the Rehabilitation of Offenders Act 1974 (c. 53) (as amended by Schedule 12 to this Act) applies to cautions given before the commencement date as it applies to cautions given on or after that date.

(2) A caution given before the commencement date shall be regarded as a spent caution at a time determined in accordance with sub-paragraphs (3) to (8).

(3) A caution other than a conditional caution (as defined in section 8A(2)(a) of the 1974 Act) shall be regarded as a spent caution on the commencement date.

(4) If the period of three months from the date on which a conditional caution was given ends on or before the commencement date, the caution shall be regarded as a spent caution on the commencement date unless sub-paragraph (7) applies.

(5) If the period of three months from the date on which a conditional caution was given ends after the commencement date, the caution shall be regarded as a spent caution at the end of that period of three months unless sub-paragraph (7) applies.

(6) Sub-paragraph (7) applies if—

(a) before the date on which the caution would be regarded as a spent caution in accordance with sub-paragraph (4) or (5) (“the relevant date”), the person concerned is convicted of the offence in respect of which the caution was given, and

(b) the rehabilitation period for the offence ends after the relevant date.

(7) The caution shall be regarded as a spent caution at the end of the rehabilitation period for the offence.

(8) If, on or after the date on which the caution becomes regarded as a spent caution in accordance with sub-paragraph (4) or (5), the person concerned is convicted of the offence in respect of which the caution was given—

(a) the caution shall be treated for the purposes of Schedule 2 to the 1974 Act as not having become spent in relation to any period before the end of the rehabilitation period for the offence, and

(b) the caution shall be regarded as a spent caution at the end of that rehabilitation period.

(9) In this paragraph, “the commencement date” means the date on which section 54 comes into force.’.

No. 373, in schedule 22, page 228, leave out lines 25 to 29.

No. 285, in schedule 22, page 230, line 33, at end insert—

‘(3) Section (Requests to other member States: Northern Ireland) does not apply in relation to financial penalties (within the meaning of that section) imposed before that section comes into force.

(4) Section (Requests from other member States: Northern Ireland) does not apply in relation to financial penalties (within the meaning of that section) imposed before that section comes into force.’.

No. 247, in schedule 22, page 231, line 24, at end insert—

‘Part 7A

Police

Police misconduct and performance procedures

24A (1) This paragraph applies if paragraphs 7, 8(3), 15 and 16 of Schedule 19 come into force before the relevant provisions of the Legal Services Act 2007 come into force.

(2) Until the relevant provisions of the Legal Services Act 2007 come into force—

(a) section 84 of the Police Act 1996 (c. 16) (as substituted by paragraph 7 of that Schedule and as referred to in the subsection (4) of section 85 of that Act substituted by paragraph 8(3) of that Schedule) has effect as if, in subsection (4), for the definition of “relevant lawyer” there were substituted—

““relevant lawyer” means counsel or a solicitor;”; and

(b) section 4 of the Ministry of Defence Police Act 1987 (c. 4) (as substituted by paragraph 15 of that Schedule and as referred to in subsection (6) of the section 4A of that Act substituted by paragraph 16 of that Schedule) has effect as if, in subsection (4), for the definition of “relevant lawyer” there were substituted—

““relevant lawyer” means counsel or a solicitor;”.

(3) In this paragraph “the relevant provisions of the Legal Services Act 2007” means the provisions of that Act which provide, for the purposes of that Act, for a person to be an authorised person in relation to an activity which constitutes the exercise of a right of audience (within the meaning of that Act).’.—[Maria Eagle.]

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

I beg to move amendment No. 248, in schedule 22, page 231, line 32, at end insert—

‘Part 9

Miscellaneous

Persistent sales of tobacco to persons under 18

26 The new sections 12A and 12B inserted into the Children and Young Persons Act 1933 (c. 12) by section (Persistent sales of tobacco to persons under 18) do not apply where any of the offences mentioned in those new sections were committed before the commencement of that section.’.

Photo of Nicholas Winterton Nicholas Winterton Ceidwadwyr, Macclesfield

With this it will be convenient to discuss the following: Government new clause 41—Persistent sales of tobacco to persons under 18.

New clause 50—Notification of tobacco offence

‘(1) The Children and Young Persons Act 1933 (c. 12) is amended as follows.

(2) In section 7 (sale of tobacco, etc, to persons under 16) after subsection (1A) insert—

“(1B) If an offence under subsection (1) has been committed on any premises, the person having management functions in respect of those premises must be notified within 14 days.”’.

New clause 51—Purchase of tobacco by or on behalf of children

‘(1) The Children and Young Persons Act 1933 (c. 12) is amended as follows.

(2) After section 12D (inserted by section [Persistent sales of tobacco to persons under 18] of this Act) insert—

“12E Purchase of tobacco by or on behalf of children

(1) An individual aged under 18 commits an offence if he buys or attempts to buy tobacco or cigarette papers.

(2) But subsection (1) does not apply where the individual buys or attempts to buy the tobacco or cigarette papers at the request of—

(a) a constable, or

(b) a weights and measures inspector who is acting in the course of his duty.

(3) A person commits an offence if he buys or attempts to buy tobacco on behalf of an individual aged under 18.

(4) Where a person is charged with an offence under subsection (3) it is a defence that he had not reason to suspect that the individual was aged under 18.

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

(a) in the case of an offence under subsection (1), to a fine not exceeding level 3 of the standard scale, and

(b) in the case of an offence under subsection (3), to a fine not exceeding level 5 on the standard scale.”’.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

The amendments address how we look at the control of tobacco sales to persons under the age of 18. The Government strongly favour the view that more needs to be done to tackle under-age smoking. All members of the Committee recognise that access to cigarettes remains far too easy for many. In a recent survey, fewer than a quarter of 11 to 15-year-olds who  tried to buy cigarettes from small shops found it difficult to do so. We need to encourage retailers to comply with the recent changes in the law to raise the level of the age of purchase of cigarettes to 18, and to prevent the sale to children and young teenagers of a product that it is generally recognised can cause addiction, long-term health problems and premature death.

Ministers at the Department of Health introduced in 2004 the “Choosing Health” White Paper, in which the Government signalled their intention to introduce preventive measures such as those before us that will effectively deal with those who repeatedly sell cigarettes and tobacco products to under-age children through a negative licensing scheme. The implementation of the scheme, which was discussed in the 2004 paper, was subject to public consultation last year by the Department of Health and my predecessors. The vast majority of respondents felt that the approach was preferable to the alternative, which would have been a positive licensing scheme.

Government new clause 41 puts into effect the proposals for a negative licensing system by enabling magistrates to impose orders on retailers prohibiting the sale of tobacco for up to one year for persistent flouting of the law restricting the sale of tobacco to people under the minimum age of 18.

Photo of Philip Hollobone Philip Hollobone Ceidwadwyr, Kettering

I would be genuinely interested to know how the proposal compares with similar proposals with regard to persistent sales of alcohol to those under 18.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

There is a difference of approach in relation to alcohol sales. One of the later amendments tabled, I think, by the hon. Member for Enfield, Southgate relates to that. I would like to listen to his arguments and potentially respond to the queries made by the hon. Member for Kettering at that point. Initially, I want to speak to the Government new clauses and pause to let the hon. Gentleman and others comment on the Opposition clauses. I will try to respond to those matters in due course.

The Government new clauses introduce two new types of order. First, a restricted premises order, which prohibits the sale of tobacco on the premises at which there has been persistent flouting of the law on under-age sales of tobacco. The second is a restricted sales order, which will prohibit any person to whom it relates from selling tobacco or cigarettes from a shop or vending machines, or from managing the shop where the offences occurred or other shops where tobacco is sold. Both orders are needed to ensure that the retailer cannot simply avoid the restrictive premises order by, for example, transferring management to another person.

It is my strong view that the measures adequately reflect the seriousness of selling tobacco to children and to young teenagers. Given the change in the law this year, which raised the age to 18, it is important that we look at those retailers that persistently flout the law.  Most retailers are responsible, sensible and attempt to abide by the law, but if we examine the performance of retailers across England and Wales, there will, sadly, occasionally be some who persistently flout the law. The sanction is reserved solely for the most serious cases. When there has been a persistent flouting of the law, local authorities will be able to apply to the courts for an order following conviction for breaking the minimum age law on at least two occasions previously within a two-year period. That is both fair and reasonable.

In the legislation, I am attempting to ensure that we do not come down on retailers at the first opportunity. That can happen and the retailer can be taken to court. If someone commits more than two offences within a two-year period, there is a serial nature to those offences, and the opportunity is there for the local authority to apply for an order. The order can be one of the two types before the Committee today. Managers of retail premises selling tobacco products have a responsibility to train their staff in compliance, to keep within the law and to ensure that, as far as possible, the minimum age requirements are met by those who work in the various outlets.

If there is doubt about the customer’s age, staff should ask—as I hope that they will do—to seek proof of age, such as driving licences, passports or other cards with tamper-proof holograms. There is an opportunity for us to look at changing the culture, setting a standard and giving local authorities the ability to tackle persistent offenders in a very strong way.

Government amendment No. 248 ensures that only offences committed after the commencement of new clause 41 would be relevant when the court considers whether to make a restricted premises or sales order. Whatever the outcome of our discussions on the Opposition amendments, I hope that those two clauses can be accepted in Committee. I await the discussions on the amendments and will respond accordingly.

Photo of David Burrowes David Burrowes Shadow Minister (Justice) 2:45, 29 Tachwedd 2007

I am glad to respond to new clause 41 and to speak to the amendments in our names. The context of the provisions is the extension of the minimum age of 18 to the availability of tobacco. That is an important point from which to start. My comments, and the new clause, are supported by the British Retail Consortium, which is the lead trade association and represents a whole range of retailers, from large multiples and department stores through to independents, selling a wide range of products in towns, rural areas and virtual stores and by the Association of Convenience Stores, which is the voice of 30,000 local shops in the UK and has members in town centres, neighbourhoods and rural areas across the country. The representatives of the BRC and the ACS cover a wide range of retailers, which support the Government’s new clause 41, but feel that the issue needs to be addressed proportionately. They express both concern and support for the Government’s target to reduce the availability of tobacco for young people, but want a consistent approach.

My hon. Friend the Member for Kettering mentioned alcohol, and there needs to be a consistent approach to the way that we deal with alcohol and tobacco sales and enforcement. It is also important—and I welcome the Minister’s comments in relation to responsible retailers—to  ensure that we are supporting responsible retailers, because they are at the front line, ensuring that any strategies concerning the availability of tobacco and alcohol for young people are properly enforced. We need to support those retailers.

We must also recognise the context in which this law would be applied. More often than not, that context would be the small local shop with a rapid turnover of staff, including temporary staff, who have to deal at the counter with people asking for alcohol or tobacco. There is also a fair turnover among the management of such shops.

Regarding tobacco, the other context is that industry figures show that, on average, tobacco accounts for up to 22.3 per cent. of turnover in such shops. The sale of tobacco is a key part of their business, particularly for those shops that, in many areas, are struggling for survival. It is important that we support those small shops in particular and show those shops that have responsible management that we are on their side.

New clause 41 warrants support, in that it presents tough but flexible penalties. In trying to have a proportionate response, the amendments put forward in my name and those of my hon. Friends—amendments (a) to (d)—seek to alter the time period during which the three offences can take place, from two years to three months, and also to reduce the maximum period of a ban on tobacco sales from one year to three months. Taken together with amendment (e), there would be a requirement for trading standards officers, if they have evidence that an under-age sale offence took place, to notify the premises involved.

The remaining amendments and new clause 51 try to achieve equality between the way that we apply tobacco laws and the way that we apply alcohol laws. We seek to make it illegal for someone under 18 to buy tobacco products and to make it illegal for someone over 18 to buy tobacco on behalf of someone under 18.

Photo of Philip Hollobone Philip Hollobone Ceidwadwyr, Kettering

As I understand it, the Licensing Act 2003 made it a criminal offence for a young person to attempt to buy alcohol or for an adult to supply them by proxy. Is this Bill not a superb opportunity to have the same rules and regulations with regard to tobacco products? I simply do not understand why the Government are not making that simple link.

Photo of David Burrowes David Burrowes Shadow Minister (Justice)

I am grateful to my hon. Friend for his intervention and it encourages me to take new clause 51 first. I support his point; from the point of view of both consistency and equality, there is a need to deal with the issue of tobacco in the same manner as we deal with alcohol. New clause 51 seeks to do that, to achieve equality between the law on selling tobacco and the law on selling alcohol. Presently, anyone under 18 who attempts to buy alcohol is committing an offence, but anyone under 18 who attempts to buy tobacco is not.

That puts the legal onus entirely on the retailer and our concern is that we should ensure that the young person themselves is also made accountable and we would achieve that by new clause 51. We would like to see the law changed so that the young person is made properly accountable for their actions, and that change would put the law on the side of the responsible retailer who wants to ensure that that young person knows that, if they attempt to buy tobacco, the law will come  down on them and not be on their side. In new clause 51, we would prefer that they were dealt with by way of a fine, which would be a proportionate response and act as a deterrent in the first place, to try to stop them buying tobacco themselves or having an adult buy it on their behalf.

The remaining amendments in our names seek to deal with the issue of proportionality in different ways. First, amendments (a) to (d) concern the length of reference period. We suggest that the reference period should be reduced from two years to three months. As discussed before, that would create parity with the sanction on the sale of alcohol in the Violent Crime Reduction Act 2006. It is important to recognise that staff and managerial turnover levels are high in the retail sector and the most effective way to put the sanctions in place through the Government’s approach would be for a short time frame. Three months would enable staff and management to deal properly with the matter. If there were three test purchases in a three-month period, that would certainly be a serious and persistent offence, which the Government would seek to address. It would need to be dealt with properly and firmly.

Given the high turnover, staff and management in business might have to deal with offences that took place two years ago, which is not right or fair. That is why we have tabled amendments (a) to (d), which would deal proportionately and effectively with the intention behind the Government’s new clause 40.

Amendment (a) would reduce the one year ban, which is too long a sanction. Proportionality is necessary, given that convenience stores and newsagents have a high turnover. It is also important to recognise that if we ban the selling of tobacco in those businesses, particularly the small ones, a key part of their trade would be wiped out, which could increase the threat of bankruptcy. We should instead be tackling persistent offenders over a short time frame. That is the essence of our amendments.

Amendment (e) deals with notification periods for the premises involved. The British Retail Consortium and the ACS are concerned because they think that it is important to give proper notice. When enforcement is needed and a prosecution is to take place, a 14-day period, in which the retailer can put matters right, would be more appropriate than to delay notification of enforcement. That would demonstrate that we are on the side of responsible retailers as well as those that want to put their house in order.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

The Opposition’s amendments make some useful points that are worth discussing in a helpful context. I cannot accept all the amendments, but some raise points worthy of further examination.

I shall start with the negatives, so that I can end on a positive note. Amendments (b) and (d) would reduce to three months the period prior to an offence that may be considered by a court when deciding whether to make an order, and amendments (a) and (c) would shorten the length of a ban. Those would not be helpful and I cannot accept them.

There are differences and similarities between alcohol and tobacco, but it is important to put down markers to support positive retailers that follow the  letter of the law and to crack down on those breaking it. The hon. Gentleman will know that previous legislation has examined the periods for alcohol, because it can cause immediate and severe damage to individuals and is linked to antisocial behaviour. Time frames for alcohol differ owing to its potentially serious consequences for individuals and the community. I think that we have got the right balance regarding the consideration period for offences and for the length the bans.

I cannot accept the hon. Gentleman’s case and I hope that my hon. Friends will reject it, particularly because many local authorities undertake test purchases of tobacco sales using young people once or twice a year only. It is not practical, therefore, to carry out test purchases within the three-month period that he suggested. Retailers that adopt the legislation, work hard to enforce it and train their staff effectively will not fall foul of the Bill or run the risk of the local authority asking a magistrates court to impose an order. I am confident that that includes the vast majority of retailers. We need to take action against retailers that flout the law persistently by imposing these fair and proportionate orders.

The hon. Gentleman makes a valid point about notification, and I am certainly not opposed in principle to the concept of a notification requirement. If he will let me, I shall be happy to take away that amendment today to look at it in detail. I have sat in opposition, too, and although good points are often made by the Opposition, the Government have to consider their implications in a wider context before they can be accepted. I am not opposed in principle to the hon. Gentleman’s suggestion about notification. I would like to reflect on it and if it is a practical, workable suggestion, I will certainly consider how we can address it at a later stage. I cannot commit as yet to introducing such an amendment at this stage, but I will certainly consider the issue.

I turn to new clause 51, tabled by the hon. Member for Kettering, to which the hon. Member for Enfield, Southgate also referred. It would make it an offence for a child to purchase tobacco or for an adult to buy tobacco on behalf of a child. I recognise the good intention behind the new clause, which tries to bring the legislation into line with what will happen with alcohol. My hon. Friend the Member for Brent, South (Ms Butler) has tabled an early-day motion on this topic and has worked very hard to get support for it. Indeed, my hon. Friend the Member for Ealing, Southall has signed it. I have checked, and he is the only Labour member of this Committee who has signed it so far. I know that he, too, will feel strongly about this matter.

There is merit in looking at this issue again. I can give no commitments to introduce any such measures, but I see the logic, particularly regarding adults over the age of 18 who purchase cigarettes and other tobacco products and give them to individuals under the age of 18. I should like to pray in aid my own daughter, who is 17 but is in school with 18-year-olds. She will not be 18 until next August, but she will have a whole year in which other people are passing their 18th  birthdays. As it happens, my daughter does not smoke and I do not think that her friends do, either. However, we are talking about a group of friends who will work and mix together, and it would be quite possible under the current provisions for an individual to purchase cigarettes, even for their own year group, and spread them around the younger members of that group, never mind adults generally.

There is an issue that needs to be examined and although I cannot commit to an amendment, it is worthy of examination. I would take issue with the criminalisation of young people under the age of 18 who may purchase cigarettes. Again, I recognise that there is an anomaly regarding alcohol and cigarettes, but I am not sure that I want to go down the route of criminalising young people under the age of 18 who buy cigarettes. However, I recognise that this is a difficult area and we need to ensure that we put preventive measures in place.

I hope that the change in legislation will also bring about a culture change, and that the under-18s realise that buying cigarettes is not only illegal but bad for them. That is why it is being made. It should set a benchmark for retailers and for people over 18, so that they recognise that that is the age of adulthood and that at that stage, people can make their free decision. However, there needs to be a culture change generally to reduce tobacco usage by the under-18s.

I ask the hon. Gentleman to withdraw his amendment, which I believe would water down the penalties and deterrents. I also ask him to withdraw his amendment on notification, so that I can consider it outside Committee, and his new clause 51. There are issues that I need to discuss with my colleagues in the Department of Health and others. I also need to examine the implications of his suggestions, and of those made by my hon. Friend the Member for Brent, South and other colleagues who have signed the early-day motion.

Photo of Nicholas Winterton Nicholas Winterton Ceidwadwyr, Macclesfield 3:00, 29 Tachwedd 2007

Before I call the hon. Member for Enfield, Southgate to respond to the Minister, I say to the Minister that the hon. Gentleman does not need to withdraw his proposals because it is a Government amendment that heads the group.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

I am grateful for your usual helpful guidance, Sir Nicholas. Even after 15 years in this place, I occasionally lose track, given the amount of paper before me, of what order the amendments are in.

Photo of David Burrowes David Burrowes Shadow Minister (Justice)

Thank you, Sir Nicholas. I welcome the Minister’s comments and accept the need to ensure that the legislation is proportionate.

The notification requirement goes to the heart of the concern of the Association of Convenience Stores and the British Retail Consortium that there should be an opportunity for retailers to get their house in order at an early stage. The Minister mentioned his daughter in the context of those around her who could potentially purchase tobacco. His daughter or her peers could also be behind the counter of a newsagent in a part-time job and have to deal with the situation of a bunch of their peers wanting to purchase cigarettes. Some of them would be 18 and some 17.

New clause 51 would put the responsibility on such a 17-year-old. It would ensure that they were accountable for their actions. They should not be purchasing tobacco. The deterrence from enforcement should be for them, rather than the onus being on the staff behind the counter—who are often part-time and young—trying to enforce the new limit.

A wider concern is that it is important for the Government to properly inform people about the changes. There should be publicity at an early stage, before implementation, which makes it clear to customers and retailers alike that there will be changes and that there will be new sanctions. A concern has been expressed by those organisations and by newsagents in my constituency about the complete lack of information and publicity for the changes on 1 October, which led to confusion and added pressure on small retailers. There must be proper communication of public information by the Government at an early stage.

I will explain briefly another wider concern that was expressed to me this week by the British Retail Consortium. It concerns the word “proportionate”, which I have mentioned a lot. While retailers want to support the Government in introducing tough penalties for tobacco and alcohol sales to those who are under-age, they are also concerned that there should be proportionality in the way that criminal offences are followed up and implemented on the ground. They have expressed concerns about shoplifting. There are increasing pressures on small shops from shoplifting day in and day out. There are often persistent shoplifters. The retailers complain to the police, but it is not followed through. It is thought of by some as a victimless crime, not least by the offenders. We know that that is not the case.

It is important that there is effective implementation. Retailers want to be on the side of supporting new legislation that stops the persistent sale of tobacco and alcohol to those who are under-age, but they also want support from the police to ensure that when they report offences, there is proper follow-through. It is important that that message gets across to retailers on the streets.

Amendment agreed to.

Amendment made: No. 249, in schedule 22, page 231, line 32, at end insert—

‘Sexual offences

27 The amendment made by sub-paragraph (1) of paragraph 12B of Schedule 21 is not to be read as affecting the validity of any supplementary, incidental, consequential, transitional, transitory or saving provisions included in orders or regulations made by the Secretary of State under the Sexual Offences Act 2003 before the commencement of that sub-paragraph.’.—[Mr. Hanson.]

Schedule 22, as amended, agreed to.

Clause 125 ordered to stand part of the Bill.