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Lord Cope of Berkeley: The interesting point about the Minister's response to the amendments was the

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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.

Baroness Farrington of Ribbleton: 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.

Lord Cope of Berkeley: 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.

Baroness Farrington of Ribbleton: 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.

Lord Cope of Berkeley: 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Amendment, by leave, withdrawn.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.]

5.45 p.m.

Lord Thomas of Gresford 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".

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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. 23B 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.

Viscount Astor: 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.

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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.

Lord Bassam of Brighton: 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.

Viscount Astor: 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

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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.

Lord Bassam of Brighton: 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.

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