My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved accordingly, and, on Question, Motion agreed to.
House in Committee accordingly.
[The LORD SPEAKER in the Chair.]
Clause 39 [Intentionally encouraging or assisting an offence]:
93: Clause 39, page 25, line 9, leave out “But he is” and insert “A person is”
The noble Lord said: I shall speak to Amendments Nos. 99 and 100 as well. The Minister will be relieved that we have now come to what is probably the least controversial section of the Bill, Part 2. The amendments, which refer to drafting, suggest three changes, one each in Clauses 39, 43 and 44, which all fall under the part of the Bill that addresses “inchoate offences”. I am not entirely happy with those words, and the noble Lord, Lord Bassam, looks as though he agrees that they do not exactly trip off the tongue.
As the Committee will be aware, the Government’s policy on the reform of criminal law on encouraging and assisting crime in this part of the Bill is based on the Law Commission’s report No. 300. It looks to abolish the common law offences of incitement and in its place create new offences of “intentionally encouraging or assisting” crime and encouraging or assisting crime believing that one or more offences will be committed.
The Explanatory Notes state:
“The Bill contains defences (where an offence has been committed in order to prevent crime or limit harm, and where the encouragement or assistance is considered to be reasonable in the circumstances) and an exemption from liability where the offence encouraged or assisted was created in order to protect a category of people”.
I have tabled a number of amendments to this part of the Bill, which I hope will provide us with the opportunity to ask probing questions and address the details of the proposals. I hope that they will provide a platform from which the Minister can justify to the Committee the Government’s position where they deviate from the recommendations of the Law Commission. That is behind these and many other amendments to Part 2.
The amendments do exactly what they say. Amendment No. 93 would replace “But he is” with “A person is”. I was taught that a sentence should not begin with “but”, but no doubt parliamentary draftsmen are much braver and more radical than I am. I would be interested to know what is behind that. Amendment No. 99 merely suggests changing “about” to “concerning,” which is clearer, in Clause 43.
Amendment No. 100 proposes replacing “reckoning” with “determining”. “Reckoning” is ugly; it sounds like an accountant’s word. I am not sure that I have seen the word used previously in this way in legislation. That is important, in that a word such as “determining”, which is familiar from legislation, would be easier to comprehend. The Concise Oxford Dictionary defines “determine” as,
“find out or establish precisely … decide or settle … be a decisive factor in regard to”.
It is better suited to setting out the provisions in Clause 44(4). I would be interested to hear the noble Baroness’s comments. No doubt we will have further questions later. I beg to move.
We support these amendments for the simple reason that they seem to contain drafting recommendations by the Law Commission. There seems to have been some change on the part of the Government in their use of certain expressions, which do not fit with the definition. It would be helpful if the Minister could explain.
I thank the noble Lords, Lord Henley and Lord Dholakia, for the way they have put their remarks. It gives me an opportunity to explain how we are taking forward the Law Commission’s report. These offences all arose from the Law Commission’s report Inchoate Liability for Encouraging and Assisting Crime, published last year. The commission is also considering the law in relation to the other inchoate offences of conspiracy and attempt and secondary liability. It is expected to publish reports later this year, which we will carefully consider.
We decided to bring forward now these provisions on inchoate liability for encouraging and assisting because they stand alone and will contribute to the fight against serious crime. The Law Commission supports this move. We have discussed with it our amendments and our reasons for tabling them. It has assented to the amendments. The offences in this part apply across the whole of the criminal law and are unrelated to Part 1. They will be particularly useful in the context of serious crime. In the light of the phrasing of the amendments, I will deal with some of these issues generally so that we can look at how they fit in contextually.
The new offences would apply to acts of encouragement or assistance. Currently if a person encourages or assists an offence that goes on to be committed, he can be convicted of that offence as a principal. However, if the offence is not committed, he can be convicted only if he encouraged the offence, not if he assisted it. Clause 39 creates a new offence of encouraging and assisting an offence with intent. Clause 40 creates a new offence of encouraging and assisting an offence believing that it will be committed. Clause 41 creates a new offence of encouraging or assisting offences believing that one or more will be committed. A number of elements must be proved in relation to each.
First, it must be proved that a person, whom I will refer to as D—I understand what the noble Lord, Lord Henley, says about that—has committed an act that is capable of encouraging or assisting another person, whom I will refer to as P, to commit an offence. We will talk about this further as we progress through the clauses in this Part. It must also be proved that D acted either intending that an offence would be committed under Clause 39 or believing that it would, or that one or more would under Clauses 40 and 41. It must also be proved that D had some awareness of P’s state of mind and any circumstances or consequences that would be required for the commission of the offence. We shall discuss that a little later.
All the amendments tabled by the noble Lord, Lord Henley, appear, as he indicated, to be drafting and stylistic measures. For instance, Amendment No. 93 would make a minor drafting change to Clause 39(2), replacing “But he is” with “A person is”. They relate to style as opposed to substance. We cannot see that those changes would make any practical difference. I do not think that the noble Lord suggested that they would.
Amendment No. 99 would make a minor drafting change to Clause 43, which sets out further rules regarding what must be proved in relation to an offence under Clause 41. We shall discuss Clause 41 in a moment. It is a very detailed clause, which we must consider carefully, but for now it is sufficient for me to say that rules concerning what must be proved in relation to this offence are set out in Clause 43. Again, I cannot see that the change would make any difference to the operation of the clause. As such, for the present I resist these changes. Because they are stylistic I can, of course, raise this issue with the draftsman, but I cannot see that they would make any material difference. The same applies to Amendment No. 100. We believe that the way in which these measures are expressed will make them easier to understand.
Amendment No. 100 would amend Clause 44, which sets out supplementary provisions about the offences in this part. This brings us to the issue of infinite inchoate liability or, put more simply, how far liability for inchoate offences should extend. For example, D lends a van to P, who is planning to act as X’s getaway driver in a robbery. If the robbery is committed, D can be convicted as a principal offender even though his role was of a secondary party. However, if the offence is not committed, should he be guilty of an offence even though his act is not directly linked to the commission of the offence? Clause 44(4) seeks to limit D’s potential liability.
It is currently an offence to incite an incitement. The Law Commission concluded that the new offences should follow that position. At present, incitement is generally thought to require intent; therefore, D can be guilty of inciting P to incite X—staying with our example—to murder someone else only if it was D’s intention that P should incite X. The Law Commission concluded that this was a sufficiently stringent requirement to justify D incurring criminal liability and, as such, recommended that liability for encouraging and assisting other inchoate offences or statutory forms of incitement should be restricted to where D intends to encourage or assist another to commit an inchoate offence. That is an offence under Clause 39. If D gave the van to P, intending that he assist X to commit robbery, he could be guilty of an offence in this part. However, if he believed only that P would assist X to commit robbery, he would not. We believe that is a sensible way forward and have set out in Schedule 3 the offences to which Clauses 40 and 41 should not apply. These are generally statutory offences of incitement and other inchoate offences.
I am considering whether further offences should be present in Schedule 3, which is drafted as suggested in the Law Commission’s draft Bill. When we were reviewing that list, we found that additions could be made and we believe that other statutory forms of incitement should be added to ensure that the list is complete. If necessary, I would seek an agreement to make any amendment on Report. We will discuss Schedule 3 in a moment.
Amendment No. 100 would not alter the substance of Clause 44. I heard what the noble Lord said about “reckoning”; it is a well understood phrase. I do not believe that the noble Lord is suggesting that it would make a substantial difference, but it has given me an opportunity right at the start of our deliberations to explain why we and the Law Commission have crafted the issues as we have.
There is, as I have indicated, a slight change between the Law Commission’s draft and our own: it was in relation to D’s fault as to the consequences and circumstances from the Law Commission’s proposal. We provided that it should be possible to convict D when he has encouraged or assisted an offence intending that offence to be committed, but where he is reckless as to whether P has the necessary fault required for the offence, or whether P would operate in the required circumstances for the offence, or whether the required consequences would result.
My officials have discussed this issue with the Law Commission, which supports the change. I hope that I have helped to explain why we support the Law Commission’s detailed work. I thank the commission for its work in this regard.
I found that explanation extraordinarily helpful. To a non-lawyer this is all a very complicated business. I should probably know, but does the word inchoate simply mean “indirect” or has it a more precise meaning? Could the Minister also say what “fault” means in the context of the part of the Bill to which she refers?
Perhaps I can assist my noble friend Lady Carnegy. The smallest dictionary that I had on my desk defines “inchoate” as “undeveloped or just begun”, as the Minister made clear. I echo my noble friend’s observation that the Minister’s detailed explanation was most helpful. We will certainly want to look at it with enormous care.
As my amendments were largely about drafting and style, I was amused to hear an aside from my noble friend Lady Anelay picking up a split infinitive from the Minister as we started. I have no objection whatever to split infinitives; I refer my noble friend and the Minister to the amusing extract on the subject in Fowler’s Modern English Usage, which makes it clear that we can use them as we wish. I will certainly not tick off the noble Baroness for it but I might object to parliamentary draftsmen doing it.
I am very grateful for what the noble Baroness said about consulting the Law Commission on the changes to the drafts that it produced at the end of its report No. 300. All three amendments in the group are stylistic, drafting amendments, although Amendment No. 100 is slightly more than that. I note the noble Baroness’s response that “reckoning” is well known in legislation. I am not particularly familiar with it, and it seemed to me that “determining”, with which most of us are more familiar, might be a better word. Obviously, I will not press that point further, but the noble Baroness might want to take it up at some stage.
I will read very carefully what the noble Baroness said. I thank her for such a useful introduction to the rest of Part 2, on which, no doubt, both we and noble Lords on the Liberal Benches will wish to continue to explore the Government’s intentions. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
94: Clause 39 , page 25, line 11, leave out “foreseeable” and insert “reasonable”
The noble Lord said: I will speak also to Amendment No. 97. These amendments simply replace the word “foreseeable”, in Clause 39(2) and Clause 42(7), with “reasonable”. As I mentioned, both clauses form a part of the Bill that deals with inchoate offences. Clause 39 creates a new offence of,
“intentionally encouraging or assisting an offence”,
while Clause 42 sets out what needs to be proved to establish guilt in the offence in Clause 39 as well as those in Clauses 40 and 41. The Bill establishes that the foresight of consequences is not sufficient to establish intention. I recognise that the use of “foresee” was on this occasion suggested in the Law Commission’s draft Bill in the report that I referred to earlier.
The aim of the amendments is to question whether the use of the word “foresee” is appropriate when there is currently considerable debate in legal circles on the subjectivity or objectivity of the word. To whom, for example, is the consequence “foreseeable”? Is it the person who is considered to have encouraged or assisted the commission of the offence, for example the bartender looking on, or the policeman investigating? “Reasonable”, as I made clear on Amendment No. 100, is well recognised in law, and in this case it might be more appropriate. I beg to move.
Like the noble Lord, Lord Henley, we were puzzled by the use of the word “foreseeable”. We have never come across a situation where a court can determine whether something is foreseeable. I think we are talking about the type of powers that mean that we expect the courts to act as clairvoyants. Is that the reason? One problem is the use of words that do not seem to fit in. We agree with the noble Lord, Lord Henley, that “reasonable” would have more meaning in the clause, unless the Minister can convince us on the reason why the other word has been used.
I need to say straight away that the words were recommended by the Law Commission, and we have followed that recommendation. Let me explain why. Amendments Nos. 94 and 97 do not seek materially to change the substance of Clauses 39 and 42 where those clauses discuss the issue of intent. For liability to arise under Clause 39, it must be proved that D intended to encourage or assist an offence. The word “intention” is given a particular meaning by Clauses 39(2) and 42(7), so that it should be taken to mean D’s “purpose” and exclude the concept of virtual certainty. That was recommended, as I say, by the Law Commission, and we have followed it because we think it is sound. “Foreseeable”, in the context of both those clauses, can be accurately constrained and interpreted by Clauses 39(2) and 42(7). Clause 39(2) states:
“But he is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act”.
So there is a framework that enables us to have clarity. That was the view taken by the Law Commission, and we concur.
I thank the noble Baroness for that explanation, which I can accept fully. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 39 agreed to.
Clause 40 [Encouraging or assisting an offence believing it will be committed]:
94A: Clause 40, page 25, line 14, leave out “encouraging or”
The noble Lord said: Attempting to redefine incitement and encouragement is not at all an easy part of the law. It caused the Law Commission to change its view, and many of the problems that we are struggling with arise out of that change of view. We are concerned with defining the fault element in these new offences—or redefined offences—in Clauses 39, 40 and 41. I know that we have already dealt with Clause 39 but it is useful to start with that. The fault element in Clause 39 arises out of the word “intentionally”. In Clause 39(1)(b), a person commits an offence if:
“he intends to encourage or assist its commission”.
There is a distinction between intending to encourage the commission of an offence and encouraging an offence believing that it will be committed but without intending that it should be committed. When we get to the new offence set out in Clause 40, the issue to which the amendments we propose here give rise is whether the words “encouraging or” should be contained in offences which are not intended. Doing something intentionally is very different from doing something believing that certain consequences may follow. That was the position that the Law Commission discussed.
Our amendments would remove the offences of encouraging an offence believing that it will be committed and, in Clause 41, encouraging offences believing that one or more will be committed. As a result, “encouraging” would constitute an offence only where the person intended that encouragement to encourage the commission of an offence under Clause 39. In other words, we are seeking to narrow the scope of the offence as it is currently expressed in Clauses 40 and 41.
In 1993 the Law Commission published a consultation paper on assisting and encouraging crime. In that paper it suggested that there should be two separate offences—we have them set out here—one for encouraging crime and another for assisting crime. One of the major reasons for concluding that separate offences were necessary was the view that the fault element for encouraging crime should be narrower than for assisting crime. The commission said:
“If D’s conduct can truly be said to assist the commission of crime, and he is aware that that is so then there are strong arguments for imposing legal inhibition upon it, even though the giving of such assistance was not D’s purpose. Where, however, D’s conduct is not of assistance to P, but merely emboldens or fortifies P in committing a crime, it seems to extend the law too far to make D’s conduct itself criminal, unless D intended it to have that effect”.
The commission expressed concern that, unless purpose or intention was required in relation to encouragement, D would incur liability for,
“the unlooked-for outcome of his comments on a matter of public interest”.
That seems to follow the position under the commonlaw offence of incitement, which the encouragement offence is designed to replace. The dominant view would appear to be that the defendant must intend the person he is inciting to commit an offence. Smith and Hogan, in their work Criminal Law, comment:
“The mens rea of incitement is crucial to the offence … It comprises two elements. First, as with attempts, D must intend the consequences specified in the actus reus”.
However, as I said, the Law Commission changed its view, despite its 2006 paper referring to the leading case of Marlow, and giving compelling examples of why it would not be appropriate to criminalise a person’s conduct unless he intended his conduct to encourage another to commit a crime. The commission abandoned the view that intent should be required in relation to encouragement. It has now concluded that belief should suffice. That is the position that the Government have followed in the Bill.
As I say, it is a highly complex concept and we are not convinced by the reasons advanced by the Law Commission for its change of mind. It seems to result primarily from a desire to merge the acts of encouragement and assistance into a single offence on the basis that it is not easy to separate them—that they seem to be sides of the same coin. Because the commission has taken the view that belief is an appropriate fault element in relation to assistance, it argues that belief must also be sufficient in relation to encouragement, and states at paragraph 5.79 of its 2006 report:
“If there were to be different fault elements, a troublesome and unnecessary distinction would arise, which would give rise to problems of charging and would be a recipe for legal arguments at trial”.
We are not convinced that these practical arguments are sufficiently persuasive to outweigh the principled concerns about lowering the fault element for encouragement from intention to belief. Neither are we convinced by the argument that the principled concerns outlined above would be satisfactorily dealt with by the use of the defence of “acting reasonably” in Clause 46, or by the fact that the Human Rights Act would prohibit a prosecutor charging, or a court convicting, a defendant in a situation on the basis that it would breach his rights to freedom of expression or association.
Consequently, we propose to narrow the offence in Clause 40 so that a person commits an offence only if he does an act that is capable of assisting the commission of an offence, in the belief that the offence will be committed and that his act will assist in its commission. The like principles apply to the offence in Clause 41. I beg to move.
I agree with the noble Lord, Lord Thomas of Gresford, that the gestation which has brought about the current formulation has been long. The Law Commission has rightly looked at this with a great deal of care and patience. The 13 years—a bit longer than an elephant—which it has taken us to reach this conclusion has enabled us to come to a sound position. I agree with the noble Lord that this is not an easy matter, but we think that the rationale behind the Law Commission’s analysis bears close scrutiny which he has given it and is sound.
We concur with the Law Commission’s analysis. The whole purpose of Clause 40 was to enable us to create a new offence of encouraging and assisting an offence, because there were those who believed that such offences would be committed. That was a mischief that had to be addressed. The clause is intended to cover a person who does an act capable of encouraging or assisting an offence by another person, believing that the other person will commit the offence and that his act will encourage or assist him, but not intending the offence to happen. It will, for example, cover a person who provides encouragement or assistance in exchange for payment. We will discuss that issue in more depth later.
Clause 41 creates a new offence of encouraging or assisting offences believing that one or more will be committed. This offence is the one to which we have made the most changes since the Law Commission considered it. Again, we will consider that offence in greater depth in a while, but the intent is to cover a person who encourages or assists a number of offences believing that at least one of them will be committed and believing that his act will encourage or assist at least one of them to be committed.
I understand the way in which the noble Lord, Lord Thomas of Gresford, described Amendments Nos. 94A and 95A and the consequential amendments. They would remove acts of encouragement from the offences in Clauses 40 and 41. It would then be an offence to encourage an offence only where a person intended the offence to happen, but not where a person only believed that an offence would happen. A person would be guilty if he provided assistance believing that an offence would be committed but would not be guilty if instead he provided encouragement. I respectfully suggest that that does not sound entirely sensible.
I can see the reasoning behind these amendments. It is far more likely that a person who encourages an offence is likely to intend it to happen, but I do not think that that will always be the case. For example, D finds out that a sex offender—whom I shall refer to as X—has moved into the local area. He does not want X to live near him so he posts a message on the internet describing X and his convictions and telling him to “get out”. D believes that this is capable of encouraging another person to attack X, but that is not his intent. Nevertheless, knowing the local area, he believes someone will attack X. D’s act is one that is capable of encouraging an attack against X. He believes that an attack will happen.
This is a very important issue which the Law Commission considered carefully. Its view was that no distinction should be drawn between the acts of encouragement or assistance—I was grateful that the noble Lord, Lord Thomas of Gresford, referred to what the commission said about that—because the concepts could and would overlap. Making a decision on whether an act assisted or encouraged could involve fine distinctions. Even where an act appears to assist, it may have had an encouraging effect. Moreover, we do not think that it would be wise to rule out acts of encouragement that are not intentional.
The Government believe that these offences would be useful for capturing those who encourage hate or sex offences via the internet. Traditionally, those people have been very hard to prosecute because of the need to prove that they intended to incite an offence. For example, D is a 40 year-old man using a chatroom on the internet. He starts to talk to P, who is also a 40 year-old man. P says that he has started up a friendship with a 12 year-old girl and wants to meet up with her and possibly have sex with her. D tells him a story about a young girl whom he befriended over the internet and how they had a “relationship”. D has made the story up, but believes that it will encourage P to meet up with a young girl and rape her, although he does not intend it to happen. He cannot be said to have incited an offence, because he will claim that it was not his intent that the offence take place. Nevertheless, he believes that an offence will take place and that this act will encourage it. The Government agree with the Law Commission that this behaviour ought to be caught. For those reasons, we must resist Amendments Nos. 94A and 95A and the consequential amendments to which I referred.
It is right that we have the debate. I am grateful to the noble Lord for enabling me to explain our reasoning for finding the Law Commission’s position persuasive. The commission has got it about right. It struggled for a long time and we are grateful that it has come to a view with which we feel we can concur.
Will the Minister go back to her example, because I am not sure that I have quite got it right? She referred to D and P talking in the chatroom and D making up a story about what had happened to him, intending thereby to encourage P to do whatever he was going to do but not believing that he would. Is the Minister saying that the mere fact that he was encouraging him was sufficient for him to have committed the offence on this occasion, even though he did not believe that it would happen?
This is about someone believing that the other person will commit the offence, and that his act will encourage or assist that, but not necessarily intending that the offence should take place. His reasoning might be as follows: “If I say this to him, I genuinely believe that the effect is that he will be encouraged. I believe that he will commit that act, but I do not then necessarily intend for the act to take place”. We have had a number of situations, particularly relating to the internet, where the individual says, “Yes, I encouraged and I gave this information, but there is no cogent evidence to demonstrate beyond peradventure that I intended him so to do. I believed that the other person would commit the offence and I believed that the act that I committed would encourage and assist him, but you have to prove that I intended that particular act to take place”.
The provision therefore captures the culpability—the mischief—and it stops people being able to do that which they believe will encourage the commission of what is quite often a serious offence without having any culpability for which they might be brought to book. That is the mischief that the Law Commission believed was not being addressed appropriately. It considered this to be a sound way of dealing with it, because the prosecution would still have to prove belief and demonstrate that the act would have encouraged or assisted. Those benchmarks would still apply. The Law Commission has captured the offence in a way that enables us to feel that it is the right and proper way forward.
It is probably extremely unwise of me to venture into this very difficult area. Can the noble Baroness say what has happened to the doctrine that a person is to be taken to have intended the natural and foreseeable consequences of his act? If someone believes that the consequence will be as she has described, how can he deny that he has foreseen that it will?
I see the logic of what the noble and learned Lord says. We look at the practical circumstances. I gave the example of the internet because quite often the defence says, “You must demonstrate not that he had a general intent to encourage and assist the commission of offences, but that he intended the commission of this act on this day at this time”. That is always very difficult, because it could be general. You cannot say that he intended that Mr Smith should rape child X on 14 November 2006, because no evidence is capable of demonstrating that that was his intention. Therefore, he is entitled to say, “There is no evidence that I intended this defendant to commit that particular act on that particular day”.
One asks whether he believed that that would be the impact. Did what he did assist that person or encourage him so to act? You then do not have to prove that he intended the specific commission of the offence in relation to that individual. The noble and learned Lord knows that that has often been a stumbling block—general intent but not specific intent. That is why we think that the commission has come up with a sufficiently trenchant benchmark on belief. It will be quite hard for the Crown to bring forward cogent evidence to satisfy a jury. However, if those circumstances exist, it must be proper that that mischief be dealt with. I am afraid that there is now a greater degree of mischief than there has been in the past.
I am most grateful to the noble Baroness for her very careful explanation. I am glad that I am beyond the stage of having to sum up to a jury on offences of this kind. I shall study what she has said, fortified as she is by the detailed arguments that the Law Commission has set out in its latest report. I expect that I shall be able to accept her reasoning. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
95: Clause 40, page 25, line 16, leave out “believes” and insert “has reasonable grounds to believe”
The noble Lord said: I shall speak also to Amendment No. 96 and the Liberal Democrats’ Amendments Nos. 95B and 96B in this group. Clause 40 creates a new offence of encouraging or assisting an offence believing that it will be committed. It sets out what a person must do to commit the offence:
“(a) he does an act capable of encouraging or assisting the commission of an offence; and
(b) he believes—
(i) that the offences will be committed; and
(ii) that his act will encourage or assist its commission”.
The Government have consulted on whether the offence in Clause 40 should be widened. The majority of responses to question 5 in the consultation paper—new powers against organised and financial crime—were from police forces, banks and building societies. The Government’s summary of responses reported that the majority of respondents thought it right to criminalise the behaviour covered by Clause 40. However, opinions differed on the exact behaviour that should be criminalised. Responses were split between those who felt that the offence should be restricted to people who believe that an offence will be committed, as suggested by the Law Commission, and those who thought that it should be widened as the Government have suggested. Indeed, it seems that slightly more respondents favoured the Government's position.
Strong arguments were put forward both by those in favour of restricting the offence and by those in favour of extending it. The main reason put forward in favour of widening the offence was a concern that belief would be difficult to prove. There was concern that this could be given a narrow interpretation by the courts. As a result, several respondents put forward alternative suggestions, including that which forms the text of our amendments, covering those with “reasonable grounds to believe”. We have tabled the amendments to ask the Minister to put on record the Government’s reasoning behind their rejection of the wider interpretation of the offence.
We agree with the Government’s approach set out in their response to the consultation that the clause should not cover any person who has only the slightest idea that what he does might encourage or assist another to commit that offence, but that it should ensure that a person who commits an act capable of encouraging or assisting cannot avoid prosecution on conviction for the offence by claiming that, although he had a strong suspicion that the other person would commit an offence, he did not believe that that person would. I beg to move.
Amendments Nos. 95B and 96B have been proposed to us by Liberty. They would remove the defence of acting reasonably and in its place require the prosecution to establish that a defendant’s act was unreasonable in order to convict him of an offence under either Clause 40 or Clause 41. The need for a defence to cover the kinds of behaviour envisaged clearly demonstrates the extensive scope of the Clauses 40 and 41 offences.
The defence of acting reasonably in Clause 46 is designed to enable a defendant—whom I will call “D” to carry on the nomenclature of initials that we seem to have established in our debate this afternoon—to escape liability for the new offences in the following kinds of situations. These are minor but important examples. First, D, a motorist, changes motorway lanes to allow a forthcoming motorist, P, to overtake, even though D knows that P is speeding. Secondly, D—let us call him a reclusive householder—bars his front door to a man trying to get into his house to escape from a prospective assailant. The third example is that D is a member of a DIY shop’s checkout staff and believes that the man P purchasing spray paint will use it to cause criminal damage.
I believe that we would all agree that, in the examples that I have cited, the defendant should not be convicted of a criminal offence. The behaviour described is not criminally culpable. There can be little doubt that it would be entirely reasonable for some people to continue with an action even if they believed that it would encourage or assist the commission of an offence.
Nevertheless, under the Bill as presently drafted, a person would be committing an offence in such circumstances unless he could prove that he was acting reasonably. In our view, the offences in the Bill present an unjustifiably low evidential hurdle for the prosecution, given the very wide scope of the offences. Once that has been crossed, in order to escape unjustifiable criminal liability, the defendant is then required to jump a very high hurdle: he has to persuade the jury that his actions were reasonable and should not, therefore, carry criminal liability. That may well prove difficult given the inherently uncertain concept of “unreasonableness”. We believe that the burden of showing the reasonableness of the defendant’s actions should be borne by the prosecution. Shifting the burden in this way would appropriately limit the scope of the otherwise excessively broad offences.
I would like to add to the comments of my noble friend our opposition to the Conservative Amendments Nos. 95 and 96. We think that it should be at the very least necessary for the prosecution to prove that the person in the dock believed that an offence would be committed—in other words, has a subjective belief—and not that he had “reasonable grounds to believe”, which would introduce an objective test into this criminal offence. We think that that would widen the offences very considerably and would be highly undesirable. We will say more on whether the clauses should stand part in a few moments.
I bear in mind of course the internal tension between the two sets of amendments, but perhaps I can assist the Committee best by explaining why we think that the structure that we have in the Bill does what noble Lords want and why, although we have sympathy with some of the suggestions that have been made, we have chosen not to go along those lines.
Amendments Nos. 95 and 96, in the names of the noble Lord, Lord Henley, and the noble Baroness, Lady Anelay, would replace the requirement that D himself believes that an offence will be committed and that his act will encourage or assist with a requirement that there are “reasonable grounds to believe” that an offence will be committed and that his act will encourage or assist its commission. That would incorporate an objective element into the offences, so that if a jury considered that any reasonable person in D’s position would have believed that an offence would be committed and that his act would encourage or assist it, D could be guilty of the offences in Clauses 40 and 41 even if he did not believe that himself.
I am sympathetic to those amendments. Indeed, the level of fault required for the offences, and the use of the word “believes” in particular, was one of the issues on which we consulted in the Green Paper that preceded the Bill and which we have thought about very carefully. We considered whether to include those who had reasonable grounds to believe that an offence would be committed, and we also considered other variants, such as covering those who suspected that an offence would be committed or those who believed that an offence might be committed. Views were divided on the issue.
We considered the issue in conjunction with prosecutors and discussed it with certain members of the judiciary and concluded that, as these are inchoate offences and therefore apply regardless of whether any harm has resulted, liability should be restricted to those who have a high degree of awareness that an offence will take place. In addition, we do not think that setting out that a person would be guilty where they had reasonable grounds to believe that an offence would take place would make the offence any easier to establish. So I understand why the noble Lord, Lord Thomas of Gresford, comes to the view that the amendments would not work.
That wording would probably cover D who claims not to have believed that an offence would be committed and that his or her act would encourage or assist its commission, despite the fact that the evidence is strong enough to suggest that any reasonable person would have done so. If that is the case, we would expect the jury to conclude that D is in fact not telling the truth and did believe that an offence would be committed.
I shall give the Committee an example that may assist. D lends P a knife. The prosecution alleges that D believed that P would use the knife to commit an act of grievous bodily harm on X. D denies this. In order to prove that there were reasonable grounds for belief that grievous bodily harm would be committed and that D’s act would encourage or assist grievous bodily harm, the prosecution would have to show some evidence. For example, D knew that P is a member of a gang that has used violence in the past, or that P has a history of convictions for violent offences, or that P has in some way indicated that he will commit grievous bodily harm. Our view is that, if the evidence is sufficient to show this, it would be sufficient for a jury to take the view that D is simply not telling the truth about his lack of belief in order to avoid conviction for the offence in Clause 40. I hope that I have been able to reassure the Committee that we have considered this issue very carefully. Although I sympathise with the sentiment behind the amendments, I must resist them and ask for them not to be pursued.
Amendments Nos. 95B and 96B would, of course, add to Clauses 40 and 41 a new subsection that would exempt conduct by D that is considered reasonable. I agree entirely with the proposal that these offences should not cover conduct that is considered reasonable. This was recommended by the Law Commission, and we have taken forward that recommendation in the defence of acting reasonably in Clause 46. I know that we are going to discuss that defence shortly, but I reassure the noble Lord that the Bill provides that, if a jury considers that the defendant had been acting reasonably, he will have a defence to the offences in Clauses 40 and 41.
Amendments Nos. 95B and 96B would require the prosecution in each case to prove beyond reasonable doubt that the defendant’s behaviour was unreasonable. The prosecution will already have proved that the defendant has done something to encourage and assist an offence, believing that it will be committed. In those circumstances, it is surely for the defendant to establish that his or her behaviour was none the less reasonable. Only the defendant will be in a position to explain why he or she acted as they did. The particular circumstances that justify their behaviour will be peculiarly within their own knowledge. As in all cases in which the burden of proving a defence is on the defendant, the standard of proof is the balance of probabilities. We will be able to discuss that in a little more detail when we come to Clause 46. On this occasion, the disappointments will be equal, but the pleasure of greater understanding will also be shared.
I do not know whether the noble Lord, Lord Burnett, wants to intervene before I withdraw the amendment, but perhaps I shall say a few words first. I assure the noble Lord, Lord Thomas, that our amendments were tabled so that we could ask the Minister to put on record the Government’s reasoning behind their rejection of the wider interpretation of the offence. Having said that, I must say how grateful my noble friend and I are for the Minister’s detailed explanation, which I will certainly study with care. I think that it dealt with all the problems.
I was interested in the Minister’s response to the amendments in the names of the Liberal Democrat Peers. As one who likes things to be explained in very simple terms, I was rather hoping that she might respond to the three examples that the noble Lord, Lord Burnett, gave. One thinks particularly of the motorist changing lanes on the motorway to allow someone who is speeding to go past. That is something that we have all done on many occasions, and we would be greatly interested to know whether we would be committing an offence if we did so.
I, too, am grateful to the Minister for what she has said. I must not make too many confessions at this stage, but I do not often give way to people, although sometimes people very kindly give way to me. We will debate this again when we discuss Clause 46. Nevertheless, we will probably want to consider the Minister’s response and return to the matter on Report.
We have given notice of our intention to oppose Clause 40, but again this is a probing action. We have just discussed the issue covered in Clause 40 which sets out what a person would do in order to commit the offence of:
“Encouraging or assisting an offence believing it will be committed”.
Similarly, Clause 41 creates the new offence of:
“Encouraging or assisting offences believing that one or more will be committed”.
The similarity between the two offences becomes even more obvious when one notes that the headings are identical except that Clause 40 refers to one offence and Clause 41 to “one or more”. I appreciate that Clause 41 goes on to provide for more than that, but it would appear that one should include the other. Our question for the Minister is simple: if Clause 41 covers one or more offences, does it not cover exactly the same ground as Clause 40? Surely this is in effect the duplication of an offence, which could lead to confusion. Will a person who encourages or offers assistance under the provisions of Clause 41 believing that an offence will be committed also fall under Clause 40? Which clause will be used by those trying to enforce these proposals?
Perhaps the inclusion of these two clauses will give the impression that the Government are being tough on crime, or tough on this type of crime, but is Clause 40 necessary at all? I hope that the noble Baroness can give us an explanation for why we need both Clauses 40 and 41.
We sympathise with what the noble Lord, Lord Henley, has said on these clauses. We have added our names to the Questions of whether Clauses 40 and 41 should stand part of the Bill. I know that the clauses are not grouped together, but I shall set out my arguments relating to them both in order not to repeat myself.
My noble friends Lord Thomas of Gresford and Lord Burnett have spoken at length on the amendments tabled to Clause 40, so I shall explain what we hope to achieve by opposing the Question of whether Clauses 40 and 41 should be part of the Bill. As the noble Lord, Lord Henley, has just pointed out, the amendments to these clauses would remove the offences of:
“Encouraging or assisting an offence believing it will be committed”,
“Encouraging or assisting offences believing one or more offences will be committed”.
Therefore the only new offence created in Part 2 would be that of:
“Intentionally encouraging or assisting an offence”,
set out in Clause 39.
We agree that when a person acts with the intention of encouraging or assisting the commission of an offence, his state of mind is sufficiently fault-worthy to justify a criminal conviction. But in this context we would expect “intention” to mean, in effect, that the purpose of the person’s action is to make the commission of an offence more likely by encouraging or assisting it. It is understandable that society would wish to prohibit and punish such behaviour in the hope of deterring actions which, while otherwise lawful, are designed to increase the likelihood of criminal behaviour by others. However, we are not convinced that the belief that one’s action will encourage or assist the commission of an offence by someone else is sufficiently fault-worthy to justify criminalisation. The effect of the belief offence in the Bill would be to criminalise behaviour that is otherwise lawful and is neither designed nor intended to encourage criminal behaviour by other persons.
The argument in relation to both these clauses is that while we do not dispute the fact that the Human Rights Act 1998 should apply to prevent an unjustified charge or prosecution in some cases, we consider that a better safeguard against inappropriate prosecution would be a more appropriately drafted offence. We are also concerned that the Human Rights Act 1998 would not apply where the otherwise lawful action of the defendant does not engage any human right.
I do not intend to speak again on Clause 41, and it would be very helpful if the Minister could give us an explanation for both these clauses.
When the Minister answers my noble friend on whether Clause 40 is necessary when you have Clause 41, could she tell us whether it has something to do with the fact that in Clause 41,
“A person commits an offence if … he believes … that one or more of those offences will be committed, (but has no belief as to which)”?
That means he is vague about what might happen; it might be one of a number of offences. Below, however, we read that,
“the charge or indictment must specify the offences”.
I do not understand how those two provisions fit together. I am sorry if I seem confused.
The noble Baroness should not apologise at all in relation to these issues, because they are not easy. We need to go through them slowly to see how they fit in. I hope I will be able to help. I do not know if there is a suggestion that we should merge the two stand-part debates, but I shall give the short answer, and then if the Committee feels that more explanation over and above the discussions we have already had about the specific issues would be helpful, I will be happy to provide it.
The difference between Clauses 40 and 41, to come to the point of the noble Lords, Lord Henley and Lord Dholakia, is answered by the noble Baroness, Lady Carnegy of Lour, in her normal insightful way. Clause 40 deals with a person who believes that a specific offence will be committed, while Clause 41 deals with a person who believes that an offence will be committed but is not sure which. As such, the latter clause operates in a different way and needs to be dealt with separately.
For instance, you could have a situation where an individual believes that the offence of murder is likely to be committed, and that is the only reasonable offence within contemplation. The evidence therefore points towards a Clause 40 offence. However, there could be a situation where the belief is that one of a number of offences might be committed by an individual. For example, it may be that someone who rents out a property to an individual whom they know or believe to be a paedophile believes that an act of abuse may occur in those premises with a child of tender years, but they do not know which act it may be; it may a sexual assault, a physical assault, an attempt at murder or a murder. It is impossible to say with any precision which of those offences the person believes will happen, but they believe that one of them will happen. The Clause 41 offence is there for when there is a belief that one of a number of offences might be committed but there is no clarity in the individual’s own mind as to which it is most likely to be.
I hope that explanation assists, because one then sees why in Clause 41(1)(b), which we will deal with if we have another stand-part debate, the belief is set out separately. That allows for a situation where the defendant believes that one offence or more will be committed but there is no belief as to which, and there is a belief that the act will encourage or assist the commission of one or more of them. It is important, if we are separating them out, to say that in Clause 39 there is clear intention, in Clause 40 there is a belief of a specific offence, and in Clause 41 there is a belief that one of a number of offences may be committed and that the act or acts will encourage or assist the commission of one or more of them. That enables the defendant to know more clearly what is alleged against him and the court to deal with it more easily.
I am very happy to explain more fully the argumentation that came out of the Law Commission on this regard if it helps and to give some more examples for Clauses 40 and 41, if that will assist the Committee further. In part, we are trying to get on the record how we see these offences because others who read this debate will find that of interest. So I am very happy to give a fuller response if the Committee feels that would assist.
I was very confused and I agreed with the Minister when she said that the issues were not easy. I am marginally less confused now because she has assisted us in distinguishing between Clauses 40 and 41 by giving a very clear example to underline what was meant by those words in brackets,
“but has no belief as to which”.
There was an example, as the Minister will be aware, in the Explanatory Notes with our old friends D and P about a van being left and whether it was robbery or arson but that did not make the position as clear as the example the Minister gave. Perhaps I can suggest that, in addition to her other duties, in future she starts drafting the Explanatory Notes or at least provides examples for us. But she has assisted me sufficiently to see the difference between the two and therefore I do not seek to oppose the Question that Clause 40 shall stand part of the Bill.
Clause 40 agreed to.
Clause 41 [Encouraging or assisting offences believing one or more will be committed]:
[Amendments Nos. 95C to 96C not moved.]
Clause 41 agreed to.
Clause 42 [Proving an offence under this Part]:
[Amendments Nos. 96D to 96G not moved.]
96H: Clause 42 , page 26, line 36, leave out subsection (6)
The noble Baroness said: Clause 42 sets out what needs to be proved to establish the guilt of each of the offences that we have discussed in Clauses 39, 40 and 41. I add my thanks to the Minister for putting on the record the Government’s reasoning in those cases. In discussions with criminal practitioners before today, it was made clear to me that it was important to have the Government put the issues on record so that they could be taken into account when cases were subsequently brought. Obviously to those practitioners these matters will not be as confusing as they are to a mere layperson but it is important to see how it is intended these clauses shall be applied.
We now turn to Clause 42 and matters of assumption. According to the Explanatory Notes,
“Subsection (6) makes it clear that where subsection (5)(a)(iii) is relied upon…a person cannot escape liability purely because it is impossible for him or her to commit the offence”.
And subsection (5)(a)(iii) would be relied upon,
“where fault required for conviction for offences is established because the person who has done an act capable of providing encouragement or assistance has the necessary fault element for commission of the offence himself”.
The Explanatory Notes go on to suggest at paragraph 130 the example of where a woman encourages rape.
This amendment has been tabled to take forward matters of clarification. How can one assume that someone is able to do the act in question? Who is to have the power to make this assumption, and will it be open to challenge? How will the provision work in reality? We wonder whether the wording of the Law Commission’s draft Clause 15 might be clearer, while still covering the example of the woman and rape that is provided in the Explanatory Notes as a justification for the Government’s position. The wording in the draft clause would ensure that a person is capable of encouraging the doing of a criminal act, including a reference to his or her doing so by threatening another person or otherwise putting pressure on the other person to act. This would remove the need for assumption, so we would not have to consider that a woman is capable of the rape of another woman, should she have been a man—a rather tortuous position.
This probing amendment asks the Minister to justify why the Government’s drafting is preferable to that of the Law Commission. I beg to move.
I am grateful to the noble Baroness for the amendment and hope that we can cover the points on which she has asked for further elucidation.
Clause 42 sets out how the offences in this part of the Bill must be proved. Subsection (5) sets out that D can be convicted if he believed or was reckless as to whether P would operate with the required fault element for the anticipated principal offence or, if P does not have the fault necessary, but D does, that is sufficient. That would ensure that D could not escape liability by encouraging or assisting an offence by an innocent agent.
Subsection (6) provides that where the prosecution seeks to prove a case on this basis, there will be an assumption that D is physically able to do P’s act. This will cover a scenario in which D, a woman, encourages P, a man, to have sexual intercourse with V. D tells P that V will resist and tell him she does not want to but that it is all part of a game. P reasonably believes that V would consent to sexual intercourse with him so would not be guilty of rape. However, these provisions ensure that D could be found guilty of encouraging and assisting rape as she intends rape to happen, despite the fact that she would not be physically capable of raping V.
The amendment seeks to remove subsection (6). We consider that undesirable and, for that reason, will continue to resist it.
I am still not convinced that the Minister has explained why the Government’s position is preferable to that of the draft Clause 15. I appreciate that the way in which I tabled the amendment may mean that those advising him were not psychic so did not realise what kind of answer I was seeking. At this stage I will withdraw the amendment, but I will try to persuade the Minister to write to me between now and Report. The noble Baroness indicates that she would be prepared to do so. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 97 not moved.]
98: Clause 42 , page 26, line 46, leave out subsection (8)
The noble Baroness said: This is another probing amendment, which would remove subsection (8) from Clause 42. Subsection (8) provides further elucidation on what is to be meant by the phrase “doing an act”. It includes similar provisions to those proposed by the Law Commission: a failure to act; the continuation of an act that has already begun; and an attempt to do an act, except an act amounting to the commission of the offence of attempting to commit another offence.
It has been suggested that this provision removes the need to establish a link between the “prompt” and the “action”. This should be given careful consideration. The immediate analogy that sprang to mind in discussion before Committee stage was of the film “The Italian Job”, whether the first or the second version. I am afraid that I am old enough to remember the first one, and enjoyed it. The provision in this subsection could make it possible to charge Noel Coward with an offence under Clause 42, without having to prove a link to Michael Caine and the bullion that went AWOL.
A more up to date—others will be pleased to hear—example would be the charging of a preacher who released a video intended to incite others although no such video was found in the possession of a bomber who attempted to blow up Parliament. Can the Minister explain if that would be possible under this subsection as currently drafted? What assessment have the Government made of the number of people they expect to fall foul of this provision? Obviously, it is important to note whether it is worth while introducing the provision. How far could this provision realistically go? For example, could an MP who criticises the Mugabe regime be caught under this provision if someone then launched an attack on the Zimbabwe embassy in London?
Like it or not, we must not forget that the cornerstone of the legal system is the presumption of innocence—something we certainly talk about time and time again. We must therefore consider very carefully the wider ramifications of breaking the need for a link between an action and a possible prompt to that action. I beg to move.
I support this amendment. There is some confusion and a need for greater clarification. Does this provision mean that it is a criminal offence to fail to stop a crime in progress, or to fail to help someone who is being attacked? If that is the case, can the Minister clarify what would happen in a situation where a young woman is walking home alone and sees two men attempting to mug another man? Would she be held criminally responsible for not putting herself in danger by intervening?
I hope noble Lords will not lose the plot when I respond. I preferred the first of the two versions of “The Italian Job”, finding it easier to follow, but perhaps that shows my simple approach to these matters.
As the noble Baroness says, Amendment No. 98 would remove Clause 42(8), which sets out that the “doing of an act”—referring to P’s act—includes:
“a failure to act … the continuation of an act that has already begun … an attempt … to act”.
We do not think that it would be desirable to follow the amendment. The inclusion of a failure to act means that D could encourage P not to act, where P’s failure to act would amount to the conduct element of the offence. For example, D encourages P to starve V, her child, to death. D could be guilty of encouraging and assisting murder. This subsection does not impose liability for omissions on D, but refers to P’s act or failure to act. Liability for omissions is dealt with in Clause 58 and covers only those situations in which D has a duty to act and fails to do so. Subsection (8) was included in the Law Commission’s draft Bill and includes situations that should fall within these offences. For that reason we continue to resist Amendment No. 98.
The provision does not have the effect that the noble Baroness said it might. It does not break an action or offence. However, the note that I have is not as clear as I should like. I shall include a working example in the further correspondence because it might be a bit clearer than what I have in front of me. I apologise for that. However, we have set out fairly clearly how we intend this to work. I refer the noble Baroness to Clause 58 as it may assist her in understanding how this will operate.
One is reminded a little of the story of Alice in Wonderland in all this. I suppose one can always produce an example which is an illustration of the text. The question is whether the text of the Bill makes sense. I cannot help thinking that subsection (8)(a) reads rather oddly. It states:
“Reference in this section to the doing of an act includes reference to—
(a) a failure to act”.
You might just as well say, “Reference in this section to the doing of an act includes not doing the act”. I must say that it is somewhat peculiar. I hope that the noble Lord will explain again the bit that he did not understand. I admire very much the fact that he did not read out the part that he did not understand. He is absolutely right not to do that because it only muddles us. However, I hope that he can explain again how it comes about that the doing of an act includes the failure to do it.
The noble Baroness has understood that it is the omission or failure to act that is the fault element here. In some situations that will be absolutely right. That is why we have this provision and why it works as it does. I understand that it is a difficult concept to grasp. I, too, have struggled with it. I am sure that other noble Lords, particularly those of us who are not lawyers, have similarly struggled. But the omission, the failure to act, is the fault element.
There is still confusion. The Minister said that he would write to the noble Baroness, Lady Anelay, on this matter. I hope he will ensure that we get a copy of that. If the Minister finds the provision so difficult to explain, is it worth keeping it in the Bill?
I was trying to understand the note that was plonked in front of me. I do not often fail to understand these things but I am sure that it is my fault and not that of the note’s author. However, coming back to the noble Lord, I should have said to him that I thought the example that he gave would not be covered in the way that he thought it might. I hope that I may offer him satisfaction on that point. But, of course, any correspondence which is dispatched in the name of the noble Baroness, Lady Scotland, will be shared with all Members of the Committee so that everyone can be clear on the points raised.
We have certainly gone as far as we can with this probing amendment. It was tabled because there appeared to be confusion in the minds of those whom we consulted before tabling amendments to this part. I should be grateful for further elucidation to ensure that there is not a break between the act and the prompt. If the Minister can give a good concrete example that avoids the Alice in Wonderland world of the films to which I referred, I should be grateful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 42 agreed to.
Clause 43 [Proving an offence under section 41]:
[Amendment No. 99 not moved.]
Clause 43 agreed to.
Clause 44 [Supplemental provisions]:
[Amendments Nos. 99A to 100B not moved.]
Clause 44 agreed to.
Schedule 3 [Listed Offences]:
On Question, Whether Schedule 3 shall stand part of the Bill?
We have given notice that we object to Schedule 3 standing part of the Bill as yet another probing measure; we do not seek to excise it in practice. The offences listed in Schedule 3 are generally the statutory forms of incitement. We want to raise concerns mooted in discussions before Committee stage regarding the difficulties that could arise with the exclusion or disregard of some offences under this legislation. Earlier today, when the noble Baroness, Lady Scotland, responded to the first group led by Amendment No. 93, moved by my noble friend Lord Henley, she said that the Government would be considering whether other incitement-related offences might be added to the schedule. I found that very helpful. One of the reasons why we tabled a probing amendment was to ask the Government to explain, as we had done in Schedule 1, what was the motivation behind the list that we have before us.
As the noble Baroness pointed out earlier, Clause 44(4) and (5) set out that a person cannot be guilty of encouraging or assisting an offence under Clauses 40 or 41 believing that an offence under Clauses 39, 40 or 41—all those offences listed in Schedule 3—will happen. What process should be followed where an offence is considered to overlap between the provisions in the Bill and offences in other statutes, for example the Offences Against the Person Act 1861 or the Public Order Act 1986? Which legislation would be considered to have precedence? Which one would be applied first? Perhaps both would. Do subsections (4) and (5) mean that the original Acts would take precedence? If not, will the prosecution have to justify his or her choice of legislation in court, or does it create an opportunity to hedge one’s bets and to go for both in charging?
I notice that paragraph 21 of the schedule omits an offence of conspiracy falling within Section 5(2) or (3) of the Criminal Law Act 1977. The paragraph explicitly states that these are forms of conspiracy not affected by the abolition of the offence of conspiracy at common law. We will return to the issue of conspiracy in later amendments. For the moment, however, in the context of Schedule 3 stand part, can the Minister explain the benefits of what appears to be a piecemeal approach to legislation? It has been suggested to us that this exclusion is a significant gap, considering the changes the Government are trying to make. Why have they chosen to take this route? Why not repeal these offences, write them into the Bill and do it that way, rather than leave them to create what could be confusion later on?
Could the noble Baroness, Lady Scotland, also explain how these provisions are intended to fit in with the Terrorism Act 2000, for which we see a Section 59 offence is excluded by paragraph 20. Can the Minister indicate what consideration the Government have given to how these provisions are to fit with the much anticipated counter-terrorism Bill this parliamentary Session? We hear that it is an on-off event, but we assume that one will have to be brought sometime during the summer. It is vital that we consider how these exclusions may affect the everyday implementation of this legislation. These are all probing questions and we look forward to the Minister’s explanation of the reasons behind the list in Schedule 6.
Schedule 3 relates to Clause 44. As discussed in relation to Amendment No. 100, subsections (4) and (5) of that clause restrict liability for the offences in this part. Liability will not arise where the offence that D encourages or assists is another offence in this part or an offence listed in Schedule 3, unless D acts with intent.
Schedule 3 comprises statutory forms of incitement, the other inchoate offences of conspiracy and attempt, and offences contained in the Criminal Law Act 1967, to which the noble Baroness referred, of post-offence assistance. For example, D encourages P to conspire with X to commit murder. D intends that P should conspire to commit murder. D can be guilty of an offence under Clause 39. However, if D only believes that P will conspire with X to commit murder, he will not be guilty of an offence under Clause 40 because conspiracy is listed in Schedule 3 and is therefore one of the offences to which Clause 40 does not apply, under Clause 44(4).
We have already discussed the reasons for that restriction. Clause 44 and Schedule 3 ensure that liability will not extend too far. As we said earlier, we are considering whether further offences should be added to Schedule 3 to ensure that it is complete. If necessary, we would seek agreement to make any amendments to this schedule on Report.
In Schedule 3, the statutory offence is of incitement, which D will be able to encourage or assist only if he intends it to happen. The intention is important there. The noble Baroness asked about the overlap between this Bill and other legislation. The Bill will cover the ground covered by common-law incitement, for example, but it does not affect in any way specific statutory incitement offences. The noble Baroness explained that the purpose of the amendments was slightly different in some cases and there needs to be some variation in the responses given. We will, of course, pass over some of those issues.
The noble Baroness asked why we do not repeal offences in Schedule 3, a fair point and a fair question. We have considered whether offences in Schedule 3 could be brought within Part 2. Those have been enacted for specific reasons and sometimes have specific penalties, so they could not be brought within Part 2. On the reference to the Terrorism Act in Schedule 3, that offence is unaffected by this Bill. Any further changes to those terrorism offences would be addressed at some future time. I hope that those points further elucidate matters to the satisfaction of the noble Baroness.
I am grateful to the Minister. He said that the Government’s consideration of additional incitement-related offences would mean that the schedule would then be complete. Is he able to give an indication at this stage of which kind of offences are under consideration?
I am grateful to the Minister. As he will appreciate, although we have a little while between Committee and Report, it is not long. I was given an indication by the Government Whips’ Office just this morning of the potential dates for Report, which will take us into about the third week in April. Given that there is a two-week recess, although we will be working hard throughout—the violins play behind me—those who advise noble Lords may not be available. An early indication would be most welcome.
As I tried to indicate earlier, when we looked at the Law Commission’s list, using the same test as for those offences that should not be included, we noticed that there were other offences that the Law Commission, in all its brilliance, had not been able to trawl through. We are now using that same rubric, going right the way through, to see what else should be caught so that we have a complete list. As soon as that is available, we will be happy to share it with noble Lords. I can assure the noble Baroness that the test that we have laid out today will be the test that we will use to examine the offences that should be in the schedule and therefore excluded. We will do some homework for the noble Baroness and other noble Lords so that they can have a more peaceful sojourn, although ours may not be quite as restful.
I can assure the noble Baroness that her presence and vigilance will be borne in mind as we go through the schedule, so that we do not make any error.
Schedule 3 agreed to.
Clause 45 agreed to.
Clause 46 [Defence of acting reasonably]:
On Question, Whether Clause 46 shall stand part of the Bill?
The Minster has already referred to some of the issues in Clause 46. We have given notice of opposing Clause 46 only to obtain further explanation, not because we want to excise it—far from it.
Clause 46 sets out that it will be a defence to the offences in Clauses 40 and 41 if the person charged with those offences acted “reasonably”—that is, in the circumstances that he was aware of, or in the circumstances that he reasonably believed existed, it was reasonable to act as he did. I am going to be much briefer than I would have been because of the intervention by the noble Lord, Lord Burnett, who put forward three scenarios to test the Minister on whether, in those circumstances, offences would or would not take place.
We have another scenario. It has been suggested to us by Liberty, Justice and others that there could be an issue with whistleblowers. The scenario that we have in mind is as follows: someone with a position of trust or confidence, such as a civil servant, encourages a journalist to publish confidential evidence. Would that civil servant be able to argue under this clause that, first, he knew that certain circumstances existed and, secondly, that it was reasonable for him to act as he did given those circumstances? Could the clause offer protection for what are commonly known as whistleblowers? If so, that would appear to be contrary to what was envisaged by the Law Commission in its draft Bill.
The noble Baroness asks a reasonable and fair question. I do not have the answer. It is perhaps more complex than the worked-up examples that we have been through. We would like to reflect on the point before we provide her with a response; we might want to give further thought to it. It is worth simply saying that the whistleblower would in some, perhaps most, circumstances be able to argue that what they did was reasonable. I think that the Law Commission gave some thought to this and tried to anticipate that sort of situation. I would like to reflect more on this than I have been able to this afternoon at the Dispatch Box. Perhaps I may give this further thought and write to the noble Baroness in our correspondence on some of these worked-up examples. I think that she makes a fair point.
I am grateful to the Minister. This is a matter of concern and I am glad that he has offered to write to me—obviously, that correspondence will be copied to other noble Lords. When looking at that correspondence, I will see whether we can come up with an amendment on Report to deal with the matter sensitively, instead of going for the blunt instrument of leaving out a clause. It may not be necessary to pursue it in that way.
Clause 46 agreed to.
Clause 47 [Protective offences: victims not liable]:
101: Clause 47, page 28, line 28, leave out subsection (2)
The noble Baroness said: Grouped with Amendment No. 101 is Amendment No. 101A, in the names of the noble Lords, Lord Dholakia and Lord Thomas of Gresford.
Again, Amendment No. 101 is a probing amendment. The Explanatory Notes tell us at paragraph 148 that:
“Clause 47 sets out in statute the common law exemption from liability established in the case of Tyrell”.
The lawyers will know full well—it is not part of my knowledge—that, in that case, an under-age girl was charged with aiding and abetting a man to have sexual intercourse with her. She was acquitted because the court felt that the law had been designed to protect young women in similar circumstances. The Explanatory Notes highlight that, essentially, the person cannot be guilty of an offence under this section of Part 2 if,
“the person who does the act capable of encouraging or assisting that offence falls within the category of persons that offence was designed to protect and would be considered as the victim”.
That appears fairly to reflect the Tyrell case. The Committee will be aware of the example given by the Explanatory Notes, so one of the first questions that I would like to ask is why the Minister did not take the opportunity to address the issue in the Sexual Offences Act 2003. One wonders whether it was simply not under consideration.
We would also like to question the Liberal Democrats on their amendment. Have they considered the potential oddities that might follow from their proposal? I know that the amendment was suggested by Liberty for perfectly respectable and well argued reasons, but I have one concern. I am looking across the Liberal Democrat Benches and am not sure who is going to reply; perhaps it will be the noble Lord, Lord Dholakia. When they respond, will they consider the extreme and highly publicised case prosecuted in Germany in 2003 and 2004—it started in December—of cannibalism which ended in the death of the person? However, such cases may not end in that way; serious injury might have been the result. I hesitate because I can never pronounce German names; I apologise, though not to this particular person. Armin Meiwes put the advert round the internet and his potential victim, Bernd Juergen Brandes, responded and encouraged the act of cannibalism. In such a circumstance, would it be right under the amendment that encouragement of a vile offence should mean that the person would escape any prosecution? Is it the intent of those who tabled the amendment to give an escape clause in that way? I suspect not, but it was an oddity. I beg to move.
I speak to Amendment No. 101A in slight trepidation after the googly bowled at us by the noble Baroness. With the caveat that she has raised a compelling point that we should consider carefully, I say that the amendment has been proposed to us by Liberty, as she rightly said. It would create a new defence, to apply where a person is the principal victim of the offence that he encouraged or assisted and where no other person suffered significant harm from the offence. We are concerned that the new offences could inadvertently lead to a victim of crime being convicted of the crime committed against him.
We have an example: two men have a drunken argument in a pub and Mr A says to Mr B, “Go on then, if you’re so tough, punch me”. Mr B then punches Mr A repeatedly, causing Mr A grievous bodily harm. In that case, Mr B could be prosecuted for grievous bodily harm. What is strange is that Mr A, the victim of the attack, could also be prosecuted and receive the same sentence as Mr B, because Mr A’s jibe, “Go on then, if you’re so tough, punch me”, was an act capable of encouraging the attack that Mr A intended to, or believed might, occur. I know that the food in some pubs is not as good as in others, but fortunately we are not talking about any further offences, the likes of which were raised by the noble Baroness, Lady Anelay.
We do not believe that the Government should criminalise victims in that way. One would think that, in such a case, the victim would already have suffered enough without facing the possibility of a prosecution. The act of provocation would often be relevant to determine the appropriate sanction for the perpetrator of the principal offence. Under the current law, such provocation would commonly be taken into account as a mitigating factor impacting on the sentence imposed.
We can see why it would be wrong that all victims of an offence who had encouraged or assisted it should escape liability. For example, a minor shareholder should not escape liability if he persuades a company director to embezzle company assets in order to seek revenge against the major shareholder. The minor shareholder would not be able to rely on the proposed offence, but he would not be the principal victim and target of the offence. The defence also recognises that, where acts of provocation lead to third parties being injured, criminal liability may be appropriate—for example, where a person knowingly provokes another person with a sub-machine gun to start firing into a crowded room.
We want to hear what the Minister has to say about this proposed offence. As I said, having heard the compelling point made by the noble Baroness, Lady Anelay, we will probably be finessing this matter in due course.
I was simply going to say that the noble Baroness, Lady Anelay, bowled a bouncer—to use a cricketing metaphor—and that is something that we, not just the noble Lord, Lord Bassam, will certainly have to look carefully at on this side. As my noble friend Lord Burnett has pointed out, our amendment was suggested to us by Liberty, and we would like to discuss the issue with it to see what explanation is offered. We might at some stage return to this matter.
I am grateful to both opposition parties for their interest in this part of the Bill. Before I turn to the specifics of the amendments, it might be helpful to provide some background to Clause 47, to which they relate.
Clause 47 provides an exemption from liability for the offences created by Clauses 39 to 41 where the offences encouraged or assisted are protective offences. Such an exemption exists already in common law. For that reason, one could argue that there is no need to change things. Protective offences are offences that have been created to protect a particular category of people. One example is child sex offences. The exemption would apply where the person who provided the encouragement or assistance would in all circumstances be considered the victim of the offence had it taken place. For example, this clause would ensure that a girl of 12 who encouraged a man to have sex with her would not be guilty of encouraging or assisting child rape because if the offence had been committed she would be considered the victim.
Amendment No. 101 would remove the definition of protective offence from the clause. A definition is necessary and would need to be sufficiently wide. It should not be limited to sex offences; for example, the Care Standards Act 2000 includes offences to protect vulnerable adults residing in care homes. It would be difficult to define protective offences in any other way, yet it is important to exclude this category of person from the scope of these offences.
Amendment No. 101A would insert a new clause after Clause 47 and exempt a person who commits an act capable of assisting and encouraging an offence where he is both the perpetrator and victim of it and no one else is hurt. This would cover situations where the offence is not a protective offence. I have already spoken about why there needs to be a definition of protective offence and why it should be limited. However, offences of this sort, where D is the victim of the offence, should not be exempt from liability.
It would perhaps be helpful to provide an example to illustrate why. It is the example on which the noble Lord, Lord Burnett, drew. Two men are having a drunken argument in a pub. The first, D, states to the other, P, “Go on, then, if you’re so tough, punch me”. P punches D repeatedly, causing grievous bodily harm. It is true that a person could in theory be guilty of encouraging an offence where he is the victim if the offence is not a protective offence. However, in the example that I have used, it would be unlikely that a prosecution would be brought against the victim for encouraging grievous bodily harm against himself, although there might be cases where it would be in the public interest for a prosecution to be brought. D might deliberately be provoking P in a way that he knows will cause him to use violence, or D might be spoiling for a fight and provoking P so that he can say, “He started it”. It is not desirable that D should be able to encourage violence in this way and incur no liability. My guess is that those circumstances would be few and far between, but, for those reasons, we have to resist both amendments.
The noble Baroness, Lady Anelay, probably caused some consternation on the Liberal Democrat Benches, because she rather found them out with her German cannibalism example. If the term “finessing”, used by the noble Lord, Lord Burnett, is a cover for anything, it is probably for, “Well, we know we’re going to have to withdraw this one because it just does not work”. “Finessing” is therefore what noble Lords on those Benches will have to do, because the German cannibal would certainly escape conviction under the Liberal Democrat amendment.
The noble Baroness, Lady Anelay, asked why the point was not covered in the Sexual Offences Act. It is a fair point, and I do not have an answer to it. We will research it and include the answer in the growing correspondence to which we keep referring. I hope that, having heard that, the noble Baroness will feel able to withdraw her amendment.
I am grateful to the Minister for responding to the points that we raised. It was a probing amendment. I do not know whether it would lighten proceedings if I were to repeat the comment of my noble friend Lord Thomas of Gresford, who wondered how feasible it would be to prosecute someone who had been eaten.
I was careful to say that, although in that case the person died, I was proposing a case in which they did not die. I shall not describe the body part that was cut off, cooked and eaten first, but it was not that which killed the man; it was what happened afterwards. Let us say that the cannibalism happened first. The “BBC Search” website is very useful sometimes.
It is proper that a true victim should be protected. I appreciate that that is what the Government are trying to do through the drafting, but, as the Minister said, there will be cases in which on public interest grounds, as in the rather extreme example that I gave, a prosecution will have to go ahead. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 47 agreed to.
[Amendment No. 101A not moved.]
Clause 48 agreed to.
Schedule 4 agreed to.
Clause 49 [Prosecution of offences triable by reason of Schedule 4]:
101B: Clause 49, page 29, line 17, after “General” insert “or such a person as he nominates to discharge his functions under this section”
The noble Lord said: This is another probing amendment that would enable the Attorney-General to nominate someone else to discharge his functions under Clause 49. The clause sets out that where the jurisdiction does not fall within Clause 48 and therefore comes within the remit of Schedule 4—the extra-territorial schedule—the Attorney-General must give his consent to a prosecution in England and Wales. The aim of the amendment is to enable a wider debate about the growth of international crime as well as to allow the Minister to inform us what assessment the Government have made of the number of cases a year they expect to fall under the extra-territorial provisions. I hope the Minister will outline just how those provisions fit within the current unequal extradition agreement with the United States and the EU forum arrangements. I beg to move.
I have a longer speaking note than I probably need. We have restricted consent to the Attorney-General because that was recommended by the Law Commission and it is certainly consistent with the position on conspiracy where, by virtue of Section 4 of the Criminal Law Act 1977, proceedings in respect of a conspiracy to commit an offence outside the jurisdiction can be instituted only with the consent of the Attorney-General.
The consent of the Attorney-General is considered appropriate for cases of considerable sensitivity or public interest. Such cases may give rise to sensitive issues involving relations or issues with other states, and in those circumstances, it is appropriate for the Attorney-General, as a Law Officer, to give consent. However, by virtue of Section 1(1) of the Law Officers Act 1997, the Solicitor-General has the same powers as the Attorney-General. Therefore, the Solicitor-General will exercise the consent powers in such cases too. As far as I am aware, there is no other model or precedent by which any of the powers vested in the Attorney-General are delegated. I believe that deals with the noble Lord’s point. If not, I invite him to say so and we shall think about it further.
I take it the noble Lord is saying that the Attorney-General cannot delegate this and that it must be his personal decision—made by him and him alone—unless, using Section 1(1) of the Law Officers Act, he allows the Solicitor-General to do it. I understand that it is unlike some other actions of the Attorney-General in that he cannot delegate the matter at all. Perhaps the noble Lord could confirm that.
102: Clause 50 , page 29, line 23, leave out subsection (2)
The noble Lord said: This is another very quick and simple probing amendment. Clause 50(1) sets out that the mode of trial for an offence under Clauses 39 and 40 will be determined as though the person had been charged with committing the anticipated offence as a principal. That was a Law Commission recommendation proposed in Clause 9 of its draft Bill.
Meanwhile, Clause 50(2) sets out that an offence under Clause 41 will be tried on indictment. I understand that that was not a Law Commission recommendation. Therefore, I would be grateful for an explanation from the noble Baroness for the different treatment yet again for Clauses 40 and 41. The noble Baroness, having put me right on the difference between Clauses 40 and 41, removed my confusion, but it has returned in that I do not see why on this occasion the two should be treated differently. The offence under Clauses 39 and 40 is,
“triable in the same way as the anticipated offence”.
But for some unknown reason under Clause 41, the offence is triable only on indictment. I beg to move.
I am distressed that the confusion has descended again on the noble Lord, Lord Henley, and I am only too happy to try to dispel it. The noble Lord will remember that in relation to Clause 41, the individual may believe that a number of offences may have been or may be committed but is unclear as to which one. Those offences may, for example, vary from a common assault to murder. The common assault would be triable summarily. If one goes up the scale to a Section 20 offence, it might be tried either way. GBH and murder are only triable on indictment. Because of the variability of the nature of those offences, we decided that it would be preferable that all offences under Clause 41, where you have a more complex situation, should be tried on indictment as opposed to any other way. That provides certainty and clarity and it is likely to be the most troublesome of the three.
On intent you have specificity: you can identify the intended offence. In relation to Clause 40, again it will be person D who believes that a specific offence will be committed. Therefore, you can make a determination where it should be tried on the basis of the nature of that offence. Because in Clause 41 one has a number of offences, it would be better to choose to try them on indictment so that you have the best benchmark. This offence could be committed by D where he believes an offence will be committed, but is not sure which. That is where the complexity comes in. We just think it is safer if the offence is tried on indictment because it would give security in terms of process. I hope that is clearer than perhaps it at first appears. Shall I try again?
I do not want the noble Lord, Lord Henley, not to be with us. I could not support that position. Therefore, let us go back to Clause 41 and just trip through how the clause operates. The noble Lord will remember that the Law Commission’s draft Bill originally included an offence which would impose liability on a person whose act was capable of encouraging or assisting a number of offences and where he believed that an offence would be committed, but was not sure exactly which offence would be committed.
For example, D and P are friends. P is a paedophile who lives in a bail hostel and has a history of kidnap and violent offences against children. P asks D if he can borrow his flat for the weekend for a plan he has. He shows D a photo of a young child. When he arrives, P has a range of children’s toys with him. D believes that P will commit one or more of a number of offences in relation to a child. He thinks that any of them might be committed—kidnap, rape, a range of sexual assaults, grievous bodily harm or murder—but he may also contemplate that a common assault may occur. All are possible but he lets him use the flat anyway. P is in fact under surveillance and is arrested while walking to the flat with a young child.
Which offence did D believe would be committed: one, all or any of them? We then consider Amendment No. 102 and ask: why are we choosing “triable on indictment” under Clause 41? We are choosing on indictment because of the spectrum of offences that might be committed. Some of them may be summary, some of them may be triable either way, some may be on indictment. So the safest place to punt, if you like, is on indictment because we know that it could be in that bracket. That is why we differentiate between Clause 40 and Clause 41 in that regard.
I notice that the noble Lord, Lord Henley, is still looking confused. Unless I can assist him further, I will endeavour to write to him in a way that is clearer.
I apologise for causing distress to the noble Baroness but also for my confusion. I never was a very good law student and no doubt those who taught me saw on many occasions the same look of confusion coming over my face.
The noble Baroness is very good with her examples and gives us an example of a fairly extreme sort with our old friends D and P—P being the paedophile who might be intending to do a whole range of things varying from common assault. I accept that that could move onto something much more serious, from summary to either way or something triable on indictment.
Might there not be examples—the noble Baroness is much better at providing examples than me—where all the potential crimes that were likely to be committed would be summary offences? In which case, would it not be easier to leave offences under both clauses to be dealt with under Clause 50(1) instead of Clause 50(2), rather than having the complexity—well it is not particularly complex—that might lead to unfairnesses in some cases that would be triable on indictment where all that was ever intended to be encouraged or assisted was a summary offence or a range of summary offences?
The difficulty is that in Clause 41, the specific offence which D may be convicted of assisting or encouraging will often not be known until the end of the trial. Therefore, the mode of the trial for the offences would not have been determined. The whole process would therefore be dependent on it being clear that they were all summary at the beginning. That will not necessarily be the case. I see what the noble Lord means if it were the case, but I suggest that the evidential basis and proof of Clause 41 offences are quite difficult to establish. The possible complexity and difficulty of the Clause 41 type of offence means that it would be better heard in the Crown Court with a jury than summarily. It is, if you like, the third tier of offences, but one could reasonably anticipate that the category of cases falling into it are likely to be the more complex of the three tiers. The confusion which I see that causes the noble Lord, Lord Henley, confirms my view.
Why will it not have been known until the end of the trial? I am more and more confused. I will at this stage have to accept what the Minister has put to me, but I look forward to a letter in which she will try to reassure me with examples. I hope she will also accept that it is just possible that there could be some cases in which all that was ever intended to be encouraged was a summary offence. Therefore, an injustice might occur, should the defendant wish to be tried in a magistrates’ court, not the Crown Court. I will look very carefully at what the Minister has to say in her letter to me. It will provide me with interesting reading over the Easter break, if she can get it to me on time. We will consider whether we need to come back to this. I do not know whether it is of very great importance, but it has still further confused me with regard to the whole question of Clauses 40 and 41. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 50 agreed to.
Clauses 51 to 56 agreed to.
Schedule 5 agreed to.
Clauses 57 and 58 agreed to.
Clause 59 [Indirectly encouraging or assisting]:
On Question, Whether Clause 59 shall stand part of the Bill?
My opposition to the Question whether Clause 59, and with it Clause 60, shall stand part of the Bill is probing in nature in the light of concerns expressed to me that the combination of the provisions in those two clauses could have very real consequences in certain situations. Those concerns relate to the suggestion that the clauses amount in effect to a subtle way of trying to introduce a new kind of statutory conspiracy. I note in passing that we have in the Explanatory Notes our new friends A, B and C, rather than D and P, and that in the Bill we have yet further new friends, D1 and D2, but I mention that merely in passing.
The Explanatory Note to Clause 59 states that,
“Clause 59 sets out that if a person (A) arranges for another (B) to do an act capable of encouraging or assisting another (C) to commit an offence, then A can be regarded as having done B’s act”.
The Explanatory Note goes on to provide the example of a gang leader instructing a member of his gang to encourage another person to kill Mr X. Clause 60, meanwhile,
“makes it clear that an ‘act’ includes a course of conduct”.
I recognise that the Law Commission suggests that the drafting which makes up Clause 59 is reflected in Clause 16 of its draft Bill. However, the commission did not link these provisions with those of Clause 60 in the same way as this Bill seems to. As I understand it, under the offence of conspiracy, the conspiracy is complete when the agreement is made and no overt act is necessary for the proof of the offence. However, under Clause 60, a course of conduct may have the effect of narrowing the provisions of the offence of conspiracy. Surely this would create a gap through which all those who take careful steps not to carry out any overt acts would fall.
Can the Minister please explain the differences between the current statutory offence of conspiracy and the changes proposed in these clauses, and justify why that is being done? In doing so, will she also explain the working of these two provisions when they are taken in conjunction? I am worried that a further change to the law on conspiracy will only add more complication to an already complicated area of the law, and no doubt more confusion to myself. I certainly would not want to allow my confusion to cause yet further distress to the noble Baroness.
I endorse what has been said by the noble Lord, Lord Henley. Going back to the language used in the Explanatory Notes, can the Minister explain why the provisions we have already discussed do not catch gang leader A? We do not want to have a series of offences covering what is in effect the same liability.
I am grateful to the noble Lord, Lord Henley, for the helpful way in which he has outlined his confusion and I hope to be able to explain how these offences fit together. It may be important for us to bear in mind that the Law Commission is considering the law on conspiracy this year. These clauses were recommended by the commission and it should be noted that Clauses 59 and 60 are not linked. The noble Lord, Lord Henley, asked whether there is an overlap with conspiracy. Yes, there is, and I shall try to deal with that. We felt that some of these issues could be disaggregated in the way set out by the Law Commission in these provisions, and we think that the final clauses of this part do work.
Clause 59 is intended to ensure that where D arranges for an act of encouragement or assistance to be done by another person, he can be held responsible for doing that act. For example, if D1 arranges for D2 to provide a gun to P and both D1 and D2 believe that P will use it to commit an armed robbery, both D1 and D2 can be convicted of encouraging or assisting armed robbery. The Law Commission recommended this specifically, as the noble Lord indicated, to cover a gang leader who instructs those in his gang to provide encouragement or assistance, and the gang members may or may not be aware of the intended use of that assistance. The commission argued that, in this situation, D1 should be guilty of encouraging or assisting the anticipated offence rather than encouraging or assisting D2 to encourage or assist P, which would then bring it within the rules of infinite inchoate liability which we discussed in Clause 44(4). The commission argued that D1’s position of power and influence means that it can properly be said that he has arranged for D2 to do the act of assistance; otherwise there may be an argument that D1 should be able to take advantage of the prohibition because it is too remote.
Clause 60 makes it clear that an act includes a course of conduct. This is particularly relevant to those offences which require a course of conduct to be proved, such as those under the Protection from Harassment Act 1997. It also means that D could be liable under this part if he does a number of acts, none of which on its own would be regarded as having the capacity to encourage or assist an offence, if the cumulative effect of D’s course of conduct would be to encourage and assist and he believes that it will do so.
I shall give an example. D is asked by P to provide him with a mobile phone, as he is having problems with his. He says that he does not have time to go to the shop and fill out a lot of forms. D thinks nothing of this, and provides P with the mobile phone. P then starts to ask regularly if D could provide him with mobile phones. He repeats that he does not want to go to a shop because they ask too many questions. He tells D he will pay him more than the phones are worth for his trouble. D asks his friend X whether he knows what P is doing with the mobile phones. X tells D that P is a well known gangster involved in a large drug-trafficking ring, and he believes that P needs the phones in order to avoid detection by the police.
In deciding whether D’s conduct is capable of assisting drug trafficking and assessing whether he believed drug trafficking would be assisted, the court can look at the course of conduct in allowing the repeated use of the diverse phones. That is important, as some of those who encourage or assist crime play a minor but important role. If we want to crack down on the ways in which serious and organised criminals operate, it is important that we can criminalise this type of behaviour. It is the course of conduct that might in the final analysis demonstrate the culpability.
It is for that reason that we think the way in which the Law Commission has structured the offence is correct. We are grateful to it for that, and for agreeing to carry on and consider the law of conspiracy. We agree that there could be an overlap in relation to that offence, and the commission will look at that for us. These provisions stand us in good stead and, we think, work very well in the Bill.
As always, I am grateful to the Minister. I am less confused than I was at the start of that explanation. She is making considerable progress on this front. I am grateful for the example she gave, which set out the situation clearly. She said that Clause 60 could not be clearer, but it is one of those clauses you have to read two or three times before you can work out what it means. Again, though, after the example, I think I understand it a bit better than I did.
With regard to what she said about the Law Commission and the law of conspiracy, could she say a word or two more about what the Home Office has asked the commission to do, when it will be doing it and when it hopes to bring out another of its excellent reports?
What we are trying to look at is the course of conduct. On the first occasion when it happens, that is absolutely reasonable and there is nothing reprehensible. It does not necessarily create any difficulty. The way in which assisting occurs is if one continues to accept an excuse that becomes rather thin the longer it goes on. There comes a moment when it must be clear that there must be an assistance to the criminal. Many criminals use mobile phones as an essential part of their criminal activity. They have to have huge numbers of them, they do not want them traced and they have to be disposable. The people who provide mobile phones to them provide a very important service which facilitates and assists serious crime in a material way. The course of conduct may get to a stage where action needs to be taken in relation to it. That fits in with the work we have been talking about with regard to inchoate offences generally.
The Law Commission is going to publish a consultation on conspiracy later this year, and it will look at the whole basis for liability. We are grateful to it, because that is going to be a comprehensive look at these issues. We know the commission has dealt with this matter with incredible expedition and diligence, and I am sure it will be comprehensive in the way it reviews it.
Clause 59 agreed to.
Clause 60 agreed to.
Clause 61 [Disclosure of information to prevent fraud]:
102A: Clause 61 , page 32, line 20, leave out “preventing” and insert “detecting actual or attempted”
The noble Baroness said: With this amendment I shall also speak to Amendments Nos. 104B, 106A, 107A, 110C and 116A. We are now going to change gear rather and move on to consideration of Part 3 of the Bill, which, unlike Part 2, is controversial.
The consequence of accepting our amendments would be that the Bill would not authorise the sharing or mining of data for the purposes of preventing fraud or other forms of crime that have not yet been committed. The amendments would not, however, prevent data sharing or matching being carried out to detect fraud or other criminal activity that has already occurred or been attempted.
Part 3 proposes increased data-sharing powers across public and private sector bodies for the purposes of identifying and preventing fraud. It would also give express statutory authorisation for the practice of data matching, or data mining, which involves computerised fishing expeditions into the personal data of huge numbers of people, most of whom there is no reason to suspect have ever been involved in any kind of fraudulent activity. The Audit Commission is already conducting data-matching exercises on a bi-annual basis to identify fraud, as part of the national fraud initiative.
As we on these Benches said at Second Reading, it is important that we should make the best use of modern data systems to detect fraud. The methods adopted, however, must be not only effective but proportionate. We have serious reservations about some of the detail of the privacy implications of Part 3, which are reflected by the amendments tabled by my noble friends and me—not only my noble friend Lord Henley on the Front Bench but my noble friends on the Back Benches.
Part 3 would increase the scope of the existing practice of data matching by giving the Home Secretary the power to extend the purposes for which data matching can be undertaken, by increasing the involvement of private bodies in data-matching exercises and by amending the terms of the Data Protection Act 1998. This kind of mass data collection, data sharing and data mining is a familiar theme in Home Office legislation, we find. It raises serious ethical and constitutional issues.
These schemes have the potential to change the nature of the relationship between the state and the citizen, turning us, if we are not careful, from a nation of citizens into a nation of suspects. We are particularly concerned that these fishing expeditions could and would be used to identify patterns, trends or profiles that suggested the possibility of future criminal behaviour. That would be permitted by the Bill, which would authorise data sharing and data mining for the purposes of preventing fraud or other criminal behaviour, not merely investigating crimes and fraud that have already been committed or attempted.
We are not yet persuaded that it would be appropriate to mine data to predict the likelihood of fraud or other types of criminal behaviour with the aim of preventing them before they occur or are even attempted. I return to my enjoyment of some of the films one can see these days. The process we are being invited to agree to in this part of the Bill reminds me of “Minority Report”. Perhaps noble Lords will remember the Tom Cruise film. It is a scary future where individuals are arrested before any offence has even been committed. There is a series of personality profiling and the hero finds himself about to be arrested for a murder he has not committed and had not even thought of committing.
Some patterns, trends or personal profiles identifiable by any data-mining exercise might well suggest that a type of future behaviour is likely. Why should this be used to justify preventive action, particularly where this could be detrimental in some way to the person concerned? Not everyone follows normal or typical patterns, trends or profiles? We do not easily fit what those who are writing software programs would like us to comply with. Just because a person grows up in an area where nine out of 10 young people may commit crime at some time in their lives, it does not follow that he or she will follow suit. Individuals surely should be judged on the basis of what they do rather than what others who live near them or who may be like them have done in the past. Data mining to identify patterns of behaviour indicative of future risks cannot be 100 per cent successful. The fear is that it could lead to innocent people being unjustifiably identified and targeted. I beg to move.
We have put our name in support of these amendments. Clause 61 deals with the disclosure of information to prevent fraud, Clause 64 deals with data protection rules and Schedule 6 is about data matching.
We are well aware of the importance of this information in tackling fraud. In the very informative session that the Minister arranged with SOCA on this matter, fraud and trafficking in people and drugs seemed to be very high on the agenda. Everything must be done to give them the necessary powers but not at the expense of the dangers inherent in some of these clauses.
I support almost everything the noble Baroness, Lady Anelay, said. We are concerned about Part 3 which, like Part 1, is very problematic and obviously we will have to come up with appropriate recommendations for amendments on Report. Let me take an example given to us by Liberty. I make no apology; this is another German example but nothing to do with cannibalism, which the noble Baroness, Lady Anelay, talked about earlier. The example is an interesting one. It says that German law restricts the ability of the state to conduct data-mining exercises to investigate crimes that have already been committed. Not surprisingly, it places even more stringent restrictions on the ability of state bodies to mine personal data in order to identify the possibility of future criminal behaviour. In a recent case, the Federal Constitutional Court considered an anti-terrorist initiative that involved each of the federal state’s police forces co-operating in a Germany-wide data-mining exercise with the objective of identifying potential al-Qaeda terrorists. The court found this oppression to be unconstitutional and held that data mining for the purpose of crime prevention is permissible only if there is a clear and present risk. They identify three areas: the existence of the Federal Republic of Germany, the security of the Federal Republic of Germany or one of its federal states, and the life, limb or liberty of an individual. A general threat of terrorist attacks, as was assumed after 11 September, or political tensions with a particular state were considered to be insufficient justification. In order to mine data to prevent crime, the German police authorities would have to demonstrate a clear and persistent danger of, for example, an imminent terrorist attack. This was the example given to us by Liberty.
I think at this stage we need to tease out the Minister’s intention regarding these clauses, then on Report perhaps we could come up with an appropriate amendment to share our concern on this matter.
We come back at this part in the Bill to some very important issues with which some of us are all too familiar. Those who were leading with the Identity Cards Bill on the national identity register will recall all too vividly some of the issues we debated at length. It is essential to remember that the national data register is under construction; a great deal of information is already being gathered. Many other sources of data are being put together on the citizen; not all of them are reliable. Within the past few days, we have learnt about the extraordinarily large number of passports issued on entirely false data. That must mean that on the passport register there is a remarkable quantity of entirely unreliable information.
Against this background of a very large quantity of data being collected on the individual citizen, some of which may not be at all reliable—indeed some of which we know to be completely unreliable—we should take the greatest care with the powers we provide in this Bill. I am not a lawyer but I am advised that data sharing or data mining can be regarded as a fishing exercise and therefore possibly contrary to the European Convention on Human Rights. Certainly against the great tradition of English law it is a high-tech version of a general search warrant. Therefore we should be extremely careful about going down this road and even more careful about the way in which we share information and pass it from one organisation to another.
Data matching can be a very useful operation, particularly if you are trying to sell something, and many of us in our briefs have been given good examples of that. There are aspects of data sharing that can benefit the citizen. It may just be a terrible nuisance for the citizen. One of the examples given in a brief that I have read is that of the TV licence. That really stirred me up because alongside my home in Wales is a cottage—I live in an old converted water mill and it was the miller’s cottage owned by my father, then by a brother and now by a nephew—which has never ever had a television set. At the moment it is empty. But of course the data-sharing operation has gone into practice and so the data have gone in from the rating organisations which have guessed that there is a property paying rates. That is checked against the data in the television records which show that there is no television set. Then all sorts of things begin to happen and in comes an endless stream of letters. I feel rather strongly about that because the cottage is frequently empty—it is only used as a holiday home—and so those letters are very often delivered to my house and I have to forward them at first to my brother and now to my nephew. Occasionally I open them and they contain language which is really appalling. They threaten the citizen in a pretty rough way. They imply that he cannot possibly have a property that does not have a television set and if he does not do something about it pretty promptly, he will be in real trouble.
It may go further than that. It may not just be a nuisance, because with data sharing you can trace who has prompted an inquiry. One could come to the conclusion that because the particular property has prompted an inquiry on 20, 30, 40 or 50 occasions, there must be a criminal there deliberately ignoring the law on holding a television licence. That is the possibility we are dealing with and it shows why we must be so careful.
There may on occasion be very good reason for passing on information when one starts sharing data, but if there is not, it can be harmful to the individual. If data are passed on by the regulatory body, referred to in these provisions, to another organisation in the private sector, credit could suddenly be refused. Once credit has been refused, the individual may be in even greater difficulty. We should be extremely cautious about a casual widening of the powers of bodies to fish for data, share the results and potentially damage the rights of the citizen.
Clearly, if the person has a criminal record there are very good grounds for passing on that data, as my noble friend suggested in her amendment. But if there are no grounds and one is merely putting data together because the possibility exists that they may throw up information that is useful and can be passed on to other organisations, the Government need to justify that and show what safeguards are to be provided. We shall come to some of those in amendments to later clauses and the degree of supervision that I believe is essential if we are to go down this road.
The Government cannot expect to get away with changes in the law of this magnitude by saying, “We know there is an awful lot of serious crime around and we know that serious criminals are inventive, so we have to provide blanket powers just in case, occasionally, by using them, we will prevent a crime that may not otherwise occur”. We must equally be sure that we do not cause damage to innocent citizens because we have too little regard for the protections previously provided by the law extending the powers to individuals who are casual in their use.
I agree very much with what the noble Lord, Lord Crickhowell, has said. These are very far-reaching provisions; it is a statement of the obvious that the more who know about a matter, the less confidential it is. We owe it to our fellow citizens to scrutinise these provisions very carefully.
The Minister said on Second Reading that the powers to be given to Her Majesty’s Revenue and Customs would not include powers to go on fishing expeditions and trawl for information. She owes it to us and our fellow citizens to reconcile that statement with these provisions and to set out exactly what protections there are for the individual. The leaking of some of this information could be deeply damaging to entirely innocent people.
It will be a great pleasure to be able to quieten the beating heart of anxiety. I listened with great interest, as always, to the noble Baroness, Lady Anelay, exploring her fears—fishing expeditions, citizens becoming suspects, minority reports. The descriptions became ever more glamorous but I am afraid that they were not terribly accurate. I hope that I can assist the noble Baroness—we are doing nothing so dramatic.
On the assertion about fishing expeditions, let me make it clear that that is not what we are doing. I know that that is the anxiety, and I hear what the noble Lord, Lord Burnett, says as well. But nothing which is proposed is prevented under the Data Protection Act. Neither the Audit Commission nor law enforcement agencies nor any other body will be given new powers indiscriminately to collect or mine data held by the public sector. The data-sharing provisions will allow the public and private sectors to share information on suspected fraudsters to inform decisions on applications for services. This information will be shared on a case-by-case basis.
The data-matching provisions allow the national fraud initiative, currently run every two years, to match data sets to detect fraud. The Audit Commission will continue to carry out pilot studies before any new data sets are introduced to ensure that a significant match rate occurs, such that further investigation might be warranted by the body concerned. The new provisions do not in any way release the bodies involved in data-sharing and data matching from complying with data protection and human rights legislation. So there is no change there.
The noble Baroness says that data matching will predict fraud before it occurs and that that is what the patterns and trends imply. I assure her that that is not so. Patterns and trends help to predict risks of actual fraud and so assist in targeting efforts on to areas where actual fraud is occurring. That is the experience.
The Minister makes a perfectly valid point. Clause 61(4)(a) provides that nothing in the clause authorises a disclosure which,
“contravenes the Data Protection Act 1998”.
The Minister just used the expression “actual fraud is occurring” and she talked earlier of suspected fraudsters. Could she enlighten us on who is a suspected fraudster, who decides who is a suspected fraudster and whether suspected fraudsters will come within the ambit of these provisions?
The patterns and trends help to predict the risks of actual fraud taking place, so it assists in targeting efforts on areas where it is believed that actual fraud is occurring. It sets the framework to help us look with greater acuity at the areas where activity is occurring. If any Members of the Committee would like to see what the national fraud initiative is doing, I am sure they would find it very helpful. It gives a clear, graphic example of how this works.
I am very conscious that this is the Committee stage, not Second Reading, so after making these few initial points, I intend to go through the amendments to demonstrate why the concerns are not there. Let me say to the noble Lord, Lord Crickhowell, that I look forward to the scrutiny that this will be given. He gave a graphic example of why we were right to say that biometric data are of assistance in terms of identity. We were not talking about legitimate individuals having their information retained or given to the Passport Service; we were dealing with fraudsters who were able to make repeated applications using what appears at first blush to be appropriately valid documentation demonstrating identity, thereby obtaining false identities which were subsequently used to commit crime and acts of terror. If their biometric data had been held on the database, we would have been able to identify them as the frauds they were when they made the second application. The fact that we do not currently have the rigour to identify, and differentiate between, those who make repeat applications is a major difficulty.
I am grateful to the noble Baroness for giving way. The other day I read in some detail about a breakthrough in a test case where biometric information did not prove a reliable way of protecting against fraud—but that is not the point that I was making. Regardless of whether you have biometric information, we are dealing in these amendments with a great deal of information that is not biometric and never will be. I do not want to jump ahead to a debate that we will have on Clause 64. There are some, better lawyers than me—I keep confessing to the noble Baroness that I am in deep water in these legal exchanges—who argue that Clause 64, which deals with data protection rules, opens up the whole thing so that the protection which she says is in the clause, under the data protection legislation, is not in fact there. We could get into the problem of debating two parts of the Bill at once, but we will have to come back to this to make sure that the data protection laws apply in this case.
To develop the point a little, I ask the noble Baroness to clarify an important point: where information is exchanged between discrete public authorities with the intention of deriving patterns or trends, how on earth, in truth, can that be consistent with the second data principle?
It is consistent with the second data principle. We have been careful to consult the Information Commissioner throughout this process to ensure that he is content that his powers in relation to these issues will prevail. Therefore, to return to this Committee stage, and directing my attention to the amendments, I shall deal with the amendments in the name of the noble Baroness so that I can, I hope, demonstrate why her concerns and fears are not set out. I will take a little time over doing so because I understand that this begins to set the framework for our discussions from now on.
The noble Baroness and the noble Lords propose that the purposes for which data sharing and matching are undertaken should be narrowed. That is the purport of these amendments; it is not for the prevention and detection of possible fraud but for the detection of actual or attempted fraud. That is the drive. These amendments strike, therefore, at the objective that these provisions seek to achieve. I will attempt to explain why this is so. Prevention is a fundamental plank in the fight against fraud or, indeed, any crime. I would hope that noble Lords would agree that prevention is better than cure when there is a threat of criminal activity.
Public authorities receive numerous applications for services and benefits. This clause is addressed to helping to prevent fraudulent applications to these public authorities. The difficulty for them is in identifying the fraudulent from the true. Setting the threshold at the level suggested by the amendment would mean that public authorities would not be able to check the seemingly honest application against any information held by an anti-fraud organisation. That plays directly into the hands of fraudsters who will, by their nature, seek to conceal their attempt. It would defeat the clause’s purpose and whole object. I do not know if that is the intention of the noble Baroness; given her traditional approach to these matters I would be deeply surprised if it was.
The type of fraud prevention that the clause seeks to allow is well established in the private sector. If we apply for banking services our applications will routinely be checked to ensure that we have not previously submitted fraudulent applications. The Government do not see why it should be any different for applicants for benefits and services provided by public authorities. In relation to Amendments Nos. 110C and 116A, if the reasons for undertaking data matching were extended to include crime more generally—by means of the order-making power provided for in new Section 32G(1)—it is proposed that this should be for the detection of actual or attempted crime. The removal of the reference to preventing fraud would mean that the Audit Commission would lose the opportunity to use data matching to identify risk areas, where systems are open to abuse and need to be improved. It is a key role of an auditor to identify such risks. The national fraud initiative has to date played an important role in helping auditors to discharge this aspect of their statutory duty. They have been congratulated on the efficacy of their work.
Furthermore, it is unclear what exactly the noble Lords and the noble Baroness seek to achieve by this amendment. The national fraud initiative currently identifies real fraud—£111 million of it in the 2004-05 cycle. That is real and substantial. We would be loath to take a retrograde step that failed to enable us to stamp this out. It is possible, however, that the noble Baroness intends this amendment to have the effect of enabling the Audit Commission to undertake data matching only when it is known that actual or attempted fraud has occurred. If so, it reflects a fundamental misunderstanding of what data matching is designed to do.
If I have interpreted this amendment correctly, the noble Baroness has based it on the assumption that the Audit Commission or the participating bodies will know from the outset whether there has been any actual or attempted fraud or crime. The whole purpose of data-matching exercises is to identify anomalies that we would not otherwise know about. There can then be further investigation to establish if any actual or attempted fraud has been perpetrated. That is the methodology if one looks at the initiative engaged in now, and which has proven to be so successful. I say only briefly now—I will make this point again later—that if a body already knows that there has been fraud or attempted fraud, there will be no need for it to participate in data matching at all.
Amendments Nos. 106A and 107A stand in the names of the noble Lords, Lord Henley, Lord Dholakia and Lord Burnett, and the noble Baroness, Lady Anelay, and so are backed by a joint force. They have also suggested that the anti-fraud-organisation information sharing covered by Clause 64 be limited to the detection of actual or attempted fraud rather than to the prevention of it. These amendments are a continuation of the amendments that the noble Lords propose to Clause 61. On that clause, I hope that I explained the difficulties that we envisage if the formulation of, “detecting actual or attempted fraud”, was substituted for “preventing fraud”. The cover which is provided by Clause 64 is intended to apply to the form of data sharing envisaged by Clause 61. There should be consistency between the terms used.
For these reasons we resist the amendments. However, I am very grateful to the noble Baroness because she has enabled us to explore the framework within which the following amendments sit. We may deal subsequently with the issue of notification and the second data protection principle. That issue was raised by the noble Lord. I can deal with it now but it may be more convenient for us to deal with it in its place.
The Minister asked what we intended to achieve by the amendments and posed a different set of scenarios, all of which envisaged that we were trying to destroy the underlying principles behind data matching and data mining. However, she ended up by appreciating exactly why we had tabled the amendments; that is, to expose some of the Committee’s concerns about the implications of extending data matching and data mining without necessarily having the proper level of scrutiny. Later we shall discuss what scrutiny might be appropriate. My noble friends have tabled amendments on that matter.
I was grateful for support on these matters from the noble Lords, Lord Dholakia and Lord Burnett, and my noble friend Lord Crickhowell. There is a concern that there may not be sufficient rigour involved in data sharing as a result of the provisions of the Bill. That is a continuing theme running throughout these debates. We need to be extremely careful how we extend the sharing of information. I was grateful to the noble Lord, Lord Dholakia, for referring to the experience in Germany where they have been extremely cautious in the way that they have extended data sharing and data mining. They associate it with matters of state concern. As he said, it takes place only where there is a persistent pattern of behaviour that is a real threat to the security of the state.
As ever, my noble friend Lord Crickhowell brought us into the real world. I was intrigued when he referred to TV Licensing and described how information technology was not at its most perfect in the way that it dealt with people suspected of fraud. His story resounded very strongly with me. A long-standing friend of mine whom I met at university some 40 years ago—
Indeed, 40 years ago. What a time. She and her husband have a thing about television. We pull their legs about it. They will not have a television in the house and never have in all the years of their marriage. Magistrate and upstanding member of the community though she is, she was in receipt of the kind of letter to which my noble friend Lord Crickhowell referred. In its unwisdom, TV Licensing has determined that nobody in the very respectable town in Essex where she lives—I will not say exactly where she lives—could possibly do without a television. It accused her of fraud. She invited its staff into her home to try to find a television, if they dared. Certainly, data matching is not necessarily efficacious or fair upon its subjects.
The Minister picked up on the comments of my noble friend Lord Crickhowell about ID cards. We are all warriors in this regard. We remember—I shall not say with fond memories—the exchanges on the Identity Cards Act, as I regret to say it now is, for the time being. The Minister chided my noble friend when he talked about passports and said that, when she addressed that issue on that Bill, she talked about the importance of biometric information. We were given a graphic illustration of what she had talked about—facial recognition, iris scans and fingerprints. We were assured that all those three things would be brought together to make the perfect whole. So why have the Government dropped iris recognition as one of the biometrics? It undermines my confidence in what the Government will do in securing information in this country.
This is a first throw of the dice in looking at the appropriateness of government using information that may be collated on individuals. There are very proper reasons why government may seek to use data matching and data mining. We are all concerned that those who perpetrate fraud are becoming more and more adept at so doing as they manipulate information technology.
All those years ago when I was a student I used to do vacation work in the Inland Revenue. I trawled through information to find out whether people were sending in claims for children whose ages and number they seemed to forget. They were perpetrating fraud on a rather minor scale. However, that has escalated on a national scale and involves millions upon millions of pounds. We are friends with the Minister in trying to root out fraud but we may diverge on the extent to which we should transgress the liberty of the subject in seeking information. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
103: Clause 61, page 32, line 23, at end insert—
“( ) The Secretary of State shall lay before Parliament codes of practice relating to—
(a) anti-fraud organisations specified under this section; and (b) data sharing and disclosure for which provision is made by this section.”
The noble Baroness said: As we have just discussed, Clause 61 confers powers on a public authority to disclose any kind of information as a member of a specified anti-fraud organisation or otherwise in accordance with arrangements made by such an organisation for the purpose of preventing fraud.
Amendment No. 103 would insert a new subsection into Clause 61 to ensure that the Secretary of State will lay before Parliament a code of practice relating to,
“anti-fraud organisations specified under this section; and … data sharing and disclosure for which provision is made by this section”.
The aim of the amendment is to discuss how the sharing of information operates, and the safeguards that are in place, and to raise concerns expressed about the lack, so far, of a code of practice. That theme runs through several amendments.
I thank those involved in the national fraud initiative at the Audit Commission and the Bill team for providing a briefing on their work to my researchers on Monday this week. I say “my researchers” very grandly. There are four researchers in the Opposition Whips Office, two of whom went on a familiarisation visit to the Audit Commission. The four people work for the entire Front Bench, so 32 of us share four researchers. I am explaining for the benefit of the taxpayer that I do not have a huge resource of researchers. Two of them received an extremely helpful briefing from the Audit Commission. I have been offered a similar briefing which I intend to take advantage of after the Easter Recess. We are looking at dates for that.
The Government have cited CIFAS, the UK fraud prevention service, as the type of body they will designate under this clause. The Bill effectively enables public authorities to join such a body if they wish to enable them to risk-assess applications for services on the basis of the information exchange. The Minister has suggested that there could be substantial savings from this measure, citing between £137 million and up to £273 million a year. From what we have been advised, I understand that the information can be used only if it is in electronic form. Can the Minister indicate whether our understanding is correct and whether there are files that cannot be included because local authorities, among others, may still file them on index cards rather than on computers? What cost would be involved should they have to computerise to take part in this work?
There is some concern that the sharing of data will include the sharing of sensitive personal data such as medical records—an issue on which we felt very strongly, as the noble Baroness will recall, when we discussed the setting up of the national identity register during the debates on the Identity Cards Bill. One can only look at benefit fraud as a potential example. Provisions of this Bill would enable details of benefit fraud to be shared with mortgage lenders, and suspicious activity reports from the private sector could be matched with data held by the Inland Revenue authorities.
One assumes that the Department for Work and Pensions, the Passport Service and the DVLA would all come into play; they would all be pooling information in some way. As I understand it, there are no exclusions for the type of personal data requested for data-matching exercises run by the Audit Commission. So, as such, presumably they could cover sensitive personal data. Could the noble Baroness explore that and give us some reassurances on it? I understand that the Audit Commission may be selective in the data it uses, but can the Minister confirm if these data may include sensitive personal data as well as non-sensitive data?
Unlike the data-matching requirements, there appears not even to be a provision for a code of practice covering this aspect of data sharing, yet any member of staff who tips off the Information Commissioner or the press is treated as if that member of staff had alerted the individual under suspicion and, under the provisions of Clauses 62 and 63, could face two years in prison. Will the noble Baroness explain whether that is the case, and if so, why?
I anticipate that the Minister may argue that this clause aims to fill a gap, to top up data-sharing provisions without prejudicing the bodies and organisations that already have the power to share data. As such, a code of practice in the Bill would cover only those who choose to take advantage of the gateway itself.
As the Minister highlighted at Second Reading, there is no compulsion in the Bill—yet—to participate. In which case, the question is how can we be certain that all members of the bodies specified in this section—the complete list which is as yet unknown—will adhere to the same principles and operational practical steps of carrying out the work. It is essential that we get the administrative detail of privacy issues right.
The Committee will recall that, back in 2005, the PIU report stated that there were,
“signs that public concern about privacy [were] on the rise—both in the public and private sectors”,
and that while,
“there is a huge potential to make better use of personal data to deliver benefits to the public … this will only be realised if the public trusts the way the public sector handles its personal information—which means meeting their rights and legitimate expectations of the protection of personal privacy”.
That is certainly a wise observation.
I am sure that that case will be put forward very well by my noble friends Lord Northesk and Lord Lucas when they speak in more detail to their amendments. However, if the disclosure of information and information sharing will be able to happen across such a wide variety bodies, surely it is exactly why we need a code of practice—to ensure transparency and accountability. I beg to move.
My noble friend has just mentioned the evidence of a rise in anxiety about privacy. I know that it is very tiresome for the noble Baroness when people go on about this subject, but I wonder whether the Government realise just how careful they have to be in the whole matter of data sharing.
I heard only this past week of a neighbour of mine who, while on holiday in Kent, for some reason drove along in the bus lane and was charged. He was told that, if he did not believe it, he should look on the internet. He found on the internet a picture of himself and his wife driving along a bus lane in Kent. That absolutely terrified him. He is an intelligent man, and he said to me, “Soon they will know where all of us are all the time”.
The Government do not realise quite how alarming this is to people. We must very carefully consider any request for a code of practice and any way of making sure that people are told what the rules are about these new intrusions that the Government feel are necessary in order to foresee crime before it happens. This is an important amendment and I hope that the Minister will not find it too tiresome that I give this example. It is not just my noble friend Lord Crickhowell who is frightened; it is also other people, such as my neighbour.
I entirely agree with what my noble friend just said, and she may be encouraged to know that the British Bankers’ Association agrees with her general point, too. For obvious reasons, it strongly supports the general thrust of this provision. It makes an important and relevant point. If noble Lords will forgive me, I shall read what is has to say:
“Key to the implementation of the proposals is to ensure that the public has confidence that data sharing only occurs for the purposes of crime prevention and detection; is restricted to relevant and accurate data that achieves this aim; and occurs in a structured and accountable manner. We support fully the development of strict protocols in the form of codes of practice, detailing the type of information that can be shared and when. The development of such a code or codes of practice, endorsed by the Information Commissioner, will go a long way to provide such reassurance to consumers. We support therefore the proposed amendment to Clause 61 that specifies the need for codes of practice.
Clearly the views of the Information Commissioner will inform the process for deciding what is and what is not appropriate in terms of data mining of public and private sector databases. But, as a starting premise, we would support the mining for all suspected and confirmed fraudsters’ data across the public and private sectors for matches. The overriding principle of data-mining has to be that any matches are the spur to further investigation, not conclusive proof of criminality, and that no footprint should be left which might otherwise influence the future provision of services”.
That is an extremely important statement by the British Bankers’ Association. It establishes criteria and a set of procedures that I wholly support. I believe that, in moving this amendment, my noble friend has raised a very important issue. Clearly, if we do not pursue it today and if we do not get satisfactory answers from the Minister—although I hope that we will—we will have to take it up at a later date. With the support of the British Bankers’ Association, I find it hard to see how the Government can possibly resist the amendment.
Looking at the amendment, I realised that a couple of points might apply. First, if we want to do some data mining in order to look at trends, some of the provisions on data sharing could involve anonymising the data. That would solve a lot of problems under the Data Protection Act and allay people’s concerns. Also, I can see that, if we are investigating a particular fraud, and in some other work, we would not want the data anonymised. That made me wonder whether this provision could be used for something that is lacking at the moment. There is a big problem with fraud over auction sites and sales over the internet. At the moment, the Met is trying to set up a national crime co-ordination unit, with no resourcing and staffing. Although these are level 2 frauds—very small frauds—they aggregate to many millions of pounds and individually they hit people hard. It occurred to me that this anti-fraud organisation provision could also be used to authorise auction sites to exchange data with a national fraud alert site, for instance, which could then find the trends and possibly target certain areas afterwards. Of course, that data sharing would have to be looked at carefully, and therefore data sharing and disclosure provisions would need to be looked at carefully as well. I thought that this could be extended to deal with that and not just used for the massive state databases as envisaged at the moment.
We have heard some very interesting points, not least the powerful statement made by the noble Lord, Lord Crickhowell, about the banking approach. I hope that your Lordships will find that we are not outwith the concerns that have been expressed. It may be helpful at this stage if I outline what the safeguards are and how they will work. The noble Baroness, Lady Carnegy of Lour, is absolutely right that we have to be very sensitive to how people feel about this matter and make sure that data sharing is done in a safe, appropriate and sound way. That has been very much at the forefront of our minds when we have looked at the provisions. I hope that, as we go through them, the Committee will feel increasingly comfortable that we have taken these issues very seriously indeed.
As I tried to say earlier, the usual data protection requirements will continue to apply, and we will continue to work with the Information Commissioner and consult him on the codes of data-matching practice for the implementation of the proposals. The national fraud initiative provisions contain an offence of unlawful disclosure of data, which carries a maximum two-year custodial sentence. The safeguards can be summarised as follows; I will run through them because it is important at this stage that we bear them in mind. First, only the Audit Commission can decide which data should be matched. Secondly, the Audit Commission and other bodies are permitted to disclose information only for defined purposes. Tough criminal sanctions for breaching the disclosure provisions are provided. There is a statutory requirement for the Audit Commission to prepare a code of data-matching practice. Those are very much some of the issues that the noble Lord, Lord Crickhowell, touched on in his recitation of the banking approach.
The data-matching practice is a code to which all participating bodies must have regard. Under the existing code, the Audit Commission restricts itself to using sets of data where it has been established that fraud is known to be prevalent or to involve significant sums of money. The Bill restricts the purposes for which patient data, such as name, address and date of birth, can be used. They can be used only to combat fraudulent activity in the NHS. The Data Protection Act will continue to apply in full to data-matching exercises. All the protections that currently exist in relation to the Data Protection Act will apply with full force to these provisions, without exception.
The issue of what safeguards will apply to specified data-sharing organisations has been raised. All the existing legislation, principally the Data Protection Act 1998, will continue to apply. We have talked about the safeguards in other Bills, and they will still be there. The noble Baroness asked about the cost of the national fraud initiative. The Audit Commission charges each body about £2,000 to match its data. That currently happens once every two years, and all bodies keep the data needed in electronic form. The noble Baroness foreshadowed what I was going to say about this matter. It is providing a resource that people will be able to use, and it will be available. We expect all bodies to be using electronic databases. Information would be shared electronically through anti-fraud organisations, and bodies would need access to the internet to be able to share in that way. Bodies are charged relative to their size and their assets.
I have dealt with sensitive personal data, because their use is already moderated by the Data Protection Act. I hope that noble Lords will see that those protections are very real indeed.
Resources are, of course, always an issue. Every time any Minister gets to the Dispatch Box, there is usually a conversation about resources. We are working very closely with the Information Commissioner on making sure that the codes will operate in a way that he deems appropriate. We are working on the procedure that would need to be adopted by all the participating parties, and we are ensuring that his role and ability to scrutinise in accordance with the Data Protection Act are in no way diminished or undermined by any provisions in this Bill. We will continue to do that because we believe, as the noble Baroness and others believe, that this is an important function, which will help us to provide safeguards.
I have tried to deal with the general concerns and the debate that we have had, but it might be helpful, since I do not have very much to say, to deal with the amendment. The amendment suggests that there be a duty on the Secretary of State to lay before Parliament codes of practice relating to anti-fraud organisations and data sharing. I question the need to impose such a duty, because under Clause 61 data sharing will have to conform to the rules of the relevant anti-fraud organisation. In addition, Clause 62 provides safeguards against the further disclosure—the noble Baroness has been concerned about this in the past—of certain protected information that is shared under Clause 61. It seems to me that there is a risk of adding a further layer of regulation to that which is already provided by the Data Protection Act, something that I know the noble Baroness, the noble Lord, Lord Crickhowell, and others have always found objectionable.
When processing personal data relating to individuals, the specified anti-fraud organisation and its members will be required to comply with the Data Protection Act. We consider that there are sufficient measures in the Data Protection Act and in this Bill to reassure members of the public about how their information will be used, so we have not been able to see any good reason or need for this amendment. I absolutely understand that, yet again, the noble Baroness rightly is probing to make sure that there is clarity of understanding on how we go forward.
The noble Earl, Lord Erroll, made a very interesting suggestion, which we will look at, but one has to see that it would meet the rubric that we have set out on the proper constraints and safeguards. I am not suggesting that we can necessarily do that, but I undertake to think about it.
I am grateful to the noble Baroness for spelling out the position. She said that the Audit Commission can decide which sets can be matched, but obviously it does not cover all aspects of the matter. She went on to refer to various bodies and the Data Protection Act, and talked about the rules that apply to anti-fraud organisations. As I see it, the difficulty is that these rules have been developed one by one over time to meet the developing situation, and are likely to develop further as we change the law and move on. I go back to the British Bankers’ Association’s support for the development of such a code or codes of practice as those endorsed by the Information Commissioner. The British Bankers’ Association understood the importance of public confidence and of having something comprehensive that we could see as a whole.
The trouble with what the noble Baroness has been saying is that, yes, I dare say that if you search with all the resources that she has available you can find exactly what the rules are, how they are operated and what the protocols are. I suggest that this is a case where we need something more. We need something more because the situation is developing the need for it. We need it because public confidence is important. It is not good enough to refer back to a whole lot of previous rules and regulations with which people are wholly unfamiliar.
I hope that I have made it clear that the whole point of using the Information Commissioner, which is what the banking world has asked for, is that he is seen as the arbiter of good practice. The codes that are produced by the Information Commissioner are widely used and accepted as the benchmark. Therefore, it is not necessary to replicate those in a new code through a new avenue, because the skill, ability, breadth of knowledge and respect of the Information Commissioner are such that everyone concurs that he is the right person to monitor these issues. I was seeking to make it clear that, through the methodology that we have adopted, we will deliver what the banking world is asking for.
I think that it was the noble Lord, Lord Burnett—although it might have been the noble Lord, Lord Crickhowell—who said that, once you have the set, that is not the end of it; it is the basis on which you then make the inquiry. I hope that I made it clear in responding to the first set of amendments that the way in which the fraud initiative works follows that template. It appears to me at first blush that we are not at odds. I am seeking to explain the way in which the Bill has been structured in order to deliver and give the assurance about data protection that the Committee clearly wants and that the Government want, too. It was very important to us when we were developing this process that it was a process with which the Information Commissioner could feel comfortable.
Indeed. I am grateful to noble Lords who have contributed to this debate on what is a key matter, as the noble Baroness accepted. It is about public confidence. I appreciate that the Government are concerned about that. Any Government would be, otherwise they would not win the next election—although I hope that this one will not. The noble Baroness looks shocked. Does she think that I would hope otherwise?
It is difficult to see how the Bill as currently structured provides cohesive protection for the public. I know that the Government are trying to achieve that; I do not question that. The noble Baroness refers to the protection of, for example, the Data Protection Act; she has done so before. However, she will know from what I said at Second Reading that people outside this House have briefed us on their concerns that there are gaps; they have said that the Bill may have been drafted in such a way that the Data Protection Act does not cover all the new provisions. That is why we are testing the boundaries of protection.
The noble Baroness said that there are other safeguards, and she went through them, which was very helpful. However, I agree with my noble friend Lord Crickhowell that we could end up without a coherent system of protection to which one could easily refer. It may well be that that is not achievable, but our first stab at achieving it was to ask the Secretary of State to table a code of practice.
My noble friends and others have tabled amendments that look specifically at the role of the Information Commissioner. Like the Minister, I have great confidence in the work that the Information Commissioner does in supervising all these matters of data protection. The quotation that my noble friend Lord Crickhowell gave from the British Bankers’ Association directed us to the importance of getting those protections right. I appreciate the fact that we are not going to solve this tonight, but I think that we have made a helpful start in looking at how codes of practice may work in some way. It is a case of where that might fit in the Bill. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 104 not moved.]
104A: Clause 61 , page 32, line 37, at end insert “; or
(c) is personal data, within the meaning of section 1 of the Data Protection Act 1998 (c. 29), pertaining to a person who the public authority does not suspect of involvement in fraud.”
The noble Baroness said: I shall also speak to Amendments Nos. 111A and 112A. These again are probing amendments. They would authorise the sharing of personal data only if those data pertained to a person who is suspected of involvement in fraud. The amendments would place no additional restrictions on the sharing of non-personal data. They also aim to ensure that the Audit Commission’s power to require a body to disclose information does not displace any restrictions on the disclosure of information under the Regulation of Investigatory Powers Act 2000 and the Data Protection Act 1998.
This is a recurring theme in our debates. In fact in almost every part of new legislation we are concerned about the Government’s aim to enable a more permissive regime for data sharing. My noble friend Lord Northesk, who I am relieved to see in his place, quite rightly said during a debate on the Identity Cards Bill that,
“the statute book is groaning under the weight of successive legislation aimed essentially at creating a more permissive regime for data sharing”.—[Official Report, 14/12/05; col. 1351.]
Identity cards, DNA databases, and the children’s data sharing index are but a few examples. Data sharing of various types is proposed in the current Digital Switchover (Disclosure of Information) Bill. It is reflected in the provisions of the Offender Management Bill, which is to reach us very shortly, and of the Welfare Reform Bill. Members of this House have always questioned why there is a need for such wide-ranging, all encompassing exchanges of information.
Among others, Liberty is concerned that the information is being collected because it just might be of use at a future point or because, with the recent technological advances, by looking at the information the state might, not would, find that we have done something wrong. It all too neatly fits with an urge that we think the Government have to say that one is guilty until proven innocent. Collecting personal data in this way is treating us as suspects rather than as citizens.
At Second Reading, the noble Lord, Lord Thomas of Gresford, who I am relieved to see in his place after a short diversion, likened these data-sharing and data-mining powers to,
“a high-tech version of the writ of assistance”,
“is not necessary for there to be evidence of wrongdoing, a probable cause or a warrant based on reasonable suspicion”.—[Official Report, 7/2/07; cols. 738-39.]
We have always argued that any use of data needs to be both justified and proportionate. However, we also have to consider whether infringing the privacy of millions of people on the chance that a few cases of fraud will be identified is proportionate in respect of the Human Rights Act. I know that the Minister has said that it is compliant and that there is no problem. We have yet to be persuaded.
We are not saying that personal data should never be shared or searched to identify fraud. There is a strong case that the provisions of the Data Protection Act and Article 8 of the European Convention on Human Rights, as set out in Schedule 1 to the Human Rights Act 1998, provide a flexible and reasonable legal framework that already permits private information to be used to combat crime. Liberty, which has briefed noble Lords on this point, argues that this should not be done on an indiscriminate basis but in a limited way. The Minister has stated that she envisages data being shared in a narrow and targeted way. We wonder why the Government then feel that the current provisions are not adequate. I beg to move.
Can the Minister clarify a point that is troubling me greatly? I recognise that I am now so confused that I am probably asking the question in the wrong place. Do the clauses deal with my long-standing concern about whether in future the Stock Exchange council will be allowed to disclose to shareholders where a criminal offence has formerly been committed by someone moving to a position of authority and power in a public listed company? Some notable instances of that have led to direct fraud. The noble Lord, Lord Dear, and I share one common experience of this, for some £80 million of theft, and I have another one with the SFO that amounted to £400 million by a man who had a previous conviction for fraud in a foreign jurisdiction. Will the provisions overcome the Stock Exchange objection in the past that it could never tell anyone because it was prohibited from doing so under data protection and the workings of the Rehabilitation of Offenders Act?
I will respond first to the amendments. I notice with hurt surprise the repetition of “suspects” rather than “citizens”. I do not chide the noble Baroness in that regard, but it would be an unfortunate way to view such people because, as she would wish, we seek to justify the provisions on the basis that they are a proportionate use of the data. We will resist the amendments, but I hope that I will be able to explain why. I may take a little time doing that, because we need to sort it out at this stage if we can.
Amendment No. 104A seeks to prohibit the sharing of personal information as defined in Section 1 of the Data Protection Act, where it pertains to a person whom the public authority does not suspect of involvement in fraud. I am a little surprised by that, because we accept that fraud exists and is suffered in almost endemic proportions by both the public and private sectors, as the noble Baroness alluded to. To prohibit the sharing of information where there is no suspicion of fraud will devalue the worth of the data-sharing power. The amendment would prevent public authorities being able to check new and seemingly honest applications for services against the list of known or confirmed fraudsters held by an anti-fraud organisation. As I tried to say earlier, that would provide successful fraudsters with an opportunity time and again to exploit services, in the knowledge that their application would be assumed honest. I very much bear in mind the personal example that the noble Baroness gave earlier about the proper and vigorous attempts that I am sure she made to prevent this happening in her time. The amendment would raise the threshold so high as to make the clause incapable of being used to prevent fraud, which causes huge losses to the public purse.
Amendment No. 111A is about the provision of data by the mandatory bodies in Schedule 6. Specifically, it seeks to incorporate a new subsection that states that nothing in the provision authorises the disclosure of data in breach of the Data Protection Act or the Regulation of Investigatory Powers Act. That would mirror new Section 32C(3), which governs the disclosure of information by voluntary bodies. In addition, the noble Baroness seeks that personal data should not be provided to the commission by either mandatory or voluntary bodies, unless the supplying public authority suspects those individuals of being involved in fraud.
I gently suggest that the amendment is inappropriate and would seriously undermine the workings of the clause. First, it is not appropriate to mirror new Section 32C(3) in new Section 32B. New Section 32C(3) is effectively a saving provision designed to ensure that the Data Protection Act and the Regulation of Investigatory Powers Act continue to apply where data are shared on a voluntary basis. We need that because new Section 32C lifts the statutory bars that would otherwise prevent bodies contributing their data to the commission for the purposes of data matching. We therefore need to make specific provision to preserve the applicability of those two Acts, and to ensure that the key safeguards remain in place. By contrast, new Section 32B does not lift any statutory bars, and the Data Protection Act and the Regulation of Investigatory Powers Act will already apply where the commission is obtaining data using its mandatory powers. In other words, one does not need to put back what has not been taken away.
Amendment No. 112A is the proposal that personal data should be provided only for data matching where the public body suspects the individuals of fraud. If bodies already suspect individuals of fraud, they will not need to participate in data-matching exercises at all, as they will already be at the stage where they will need to investigate further. Bodies already do that for themselves without the need for the Audit Commission to be involved. I reiterate that data matching does not identify fraudsters per se; it simply identifies anomalies in data that warrant further investigation by the relevant body supplying the data, a point touched on by the noble Lord. If we do not allow that to happen, a valuable tool with a proven track record in the fight against fraud will be lost.
Two ancillary points should be made in relation to this amendment. The first is that it is inconsistent with the proposed changes to the data-matching purposes, which would require the detection of actual or attempted fraud. If that were the case, it would surely not be sufficient for a body merely to suspect that a person had been involved in fraud before it provided its data to the commission. In any event, as I hope I have explained, data matching can add little where a body either already knows or suspects an individual of fraud. The second point relates to the drafting of the amendment. It will not only be public bodies participating on a voluntary basis, and inserting the provision into new Section 32C would mean that public sector bodies alone would be subject to the restrictions, without their private sector counterparts. I do not believe that that is what the noble Baroness intends.
I turn to the question asked by the noble Lord, Lord James of Blackheath, in relation to the Stock Exchange. Only members of the specified anti-fraud organisations can share information. If both the London Stock Exchange and, for instance, the noble Lord were members, they could share information via the specified organisation, but would not be obliged to do so. I see that it is one minute before half-past seven, so I will be happy to write to him further in that regard if it will further assist him.
If the Stock Exchange is not the appropriate body, and as the DTI has responsibility for disqualifying directors after they have committed an error, should it not now accept the responsibility for screening them on appointment before they commit the error?
That will take a longer answer that even I, speaking as quickly as I can, could not get in within one minute. Will the noble Lord allow me to write to him? For the reasons I have explained, I hope that the noble Baroness will feel able to withdraw her amendment. I hope that, after consideration, she will not need to trouble to bring it back.
I am grateful to the noble Baroness for her extensive answer. She was right to note that we were not trying to destroy the provisions of this clause. I am grateful to Liberty for its briefing. Our position, when we looked at the clause, was to be concerned that there should be no circumstances in which information on health records, for example, could readily be exchanged.
The noble Baroness was concerned that if she gave a longer answer she might exceed the one minute remaining before 7.30 pm. Of course, as my noble friend Lord Henley, remarked, the noble Baroness can go long beyond 7.30, but the way in which the number of people on the Benches has changed in the past few minutes somehow makes me believe that if I continued beyond 7.30, I might not have much longer to live. So, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
As is customary, I beg to move that the House do now resume. It is also customary to name a time when we return to Committee, but I am happy to announce that we will not be returning to Committee on the Bill this evening.
Moved accordingly, and, on Question, Motion agreed to.