House of Lords
Tuesday, 8 July 2014.
Prayers—read by the Lord Bishop of Truro.
Vehicles: Heavy Goods Vehicles
My Lords, the Government have plans to strengthen enforcement, including: continued targeting; introducing four new purpose-built Driver and Vehicle Standards Agency check sites; using the joint DVSA and police HGV task force in London set up last year; and a fixed-site automatic number-plate recognition camera network. We are consulting about proposals to use financial penalty deposits for historical drivers’ hours offences, developing plans for some specialised vehicles, and working to get more serial offenders to traffic commissioner inquiries more quickly.
I am grateful to the noble Baroness for that comprehensive Answer. I would like to know when some of these things are going to happen, but they sound really good. My reason for asking was that I recently met an HGV driver who had driven on trade plates from the south of England to Edinburgh, and then back to the south of England and back to Edinburgh, within 24 hours. I hope that these regulations will stop that kind of thing. Will the Minister confirm exactly how it could be stopped in the future?
My Lords, the noble Lord raises an important issue about trade plates. Vehicles which have not yet been put into service are exempt from the EU drivers’ hours rules and so do not need to use a tachometer. However, drivers of these vehicles would need to comply with the GB domestic drivers’ hours rules, which restrict driving to 10 hours a day with a duty limit of 11 hours a day. Obviously, for enforcement, without the tachometer we are very much dependent on intelligence. I have passed the noble Lord’s information back to the various authorities to pursue. Intelligence is an important part of enforcement here. We also rely heavily on whistleblowers. Drivers are encouraged to report any breaches of these rules to the DVSA on its helpline, which is 0300 123 9000. All calls will be treated in confidence and driver anonymity is ensured. I will confirm to the noble Lord the various processes that follow on from the receipt of that information.
Can the Minister tell the House how many people are employed countrywide in the enforcement of these regulations? How many prosecutions have there been under these regulation over the past 12 months? If she does not have that information to hand, I would be happy to read about it in Hansard.
I will be delighted to follow up with any gaps. The noble Lord will be aware that an important task force in London, the new Industrial HGV Task Force, which is made up of eight officers from VOSA and eight from the Metropolitan Police, was launched in September 2013. That has been extremely effective in increasing enforcement. The task force is running a whole series of exercises. Between 1 October and 27 June, it stopped 2,798 vehicles: 764 were compliant—about 27%;—1,232 prohibitions were issued; 724 fixed-penalty notices were issued; and 35 vehicles were seized. Somewhere here, if I can find it, I have more general information; I will write to the noble Lord with that.
Can the Minister tell the House whether she has information about how many people have been killed or seriously injured by drivers who were driving outside the limits, and whether for the latest year—if figures are available—she has any evidence of what happens to such drivers?
Accidents that involve HGVs have been falling for the past five years, although slowly. In 2013, there were 6,524 reported accidents, of which 270 were fatal. That has fallen by 8% since 2009. Where evidence exists to show that an HGV driver is at fault, he is reported for prosecution. We do not hold the numbers of those prosecuted and the results of those prosecutions, but we will refer that to the Home Office to see whether it has further detail.
My Lords, 90% of goods in this country are delivered by road most efficiently. That is ever likely to be so because the alternative—to send them by rail—is a three-stage journey that is entirely uneconomic in a small country such as ours. Therefore, will the Minister resist any pressure to raise transport costs, which affect us all, particularly when advocated by members of the rail lobby?
My Lords, at what point does the Minister think she will be in a position to mandate the use of sensors on HGVs to detect cyclists? It cannot be done immediately, but at some point we should be able to do that. When does she think she will be able to do that?
The noble Earl is quite right that that will be an important safety development. At the moment the sensor equipment we have that reliably detects other vehicles, pedestrians and cyclists is still in development. Unfortunately, some of the systems treat a tree as if it were a cyclist, and of course, once you get wrong information, the driver begins to ignore it. Therefore we are pursuing these issues very rapidly, and the department will welcome any uptake of effective systems by vehicle owners. However, vehicle registration is at the EU level, and mandatory fitment will need to be agreed with the other member states.
My Lords, will the Minister consider amending the construction and use regulations to remove the exemption for skip lorries and cement mixing lorries from the requirement to have a safety bar? These are the vehicles which are killing many bicycle riders now.
My Lords, there are constraints on some of these vehicles, but the noble Baroness is right to say that there are special vehicles which are exempt. We have been looking at reducing those exemptions, and I will be glad to keep her up to date with where that process is going.
Faith Group Relationships
My Lords, the Department for Communities and Local Government published its strategy Creating the Conditions for Integration in 2012. This sets out the work of the Government and other organisations in helping to create the right conditions for everybody in society to participate. The Government are supporting projects to break down barriers, encourage community cohesion and celebrate what we have in common.
My Lords, I thank my noble friend for that Answer. With some young British Muslims being radicalised, does she agree that it is very important that they are taught at a very young age, either in school or elsewhere, to understand the similarities between all religions, in particular the shared values of the Abrahamic religions, so they can understand that Christianity and Judaism are not the enemies of Islam? Can she suggest the best way to make this come about?
My Lords, it is important that all people, especially young people, have an understanding of the diverse communities in which we live, including different faith communities. My noble friend may be heartened to know from surveys, including a DCLG survey from a few years ago, that 90% of Muslims agreed that people from different backgrounds get on well, as opposed to 87% of the general population; 89% of Muslims agreed that it is possible to fully belong to Britain and maintain a religious identity, compared to 72% of the general population; and 74% of Muslims believe that there should be more mixing between different communities and different ethnic and religious groups, compared to 71% of the general public.
As an ex-chairman of the Conservative Party, I wish I could get the media to stop publishing demonising articles. The noble Lord raises an incredibly important point. One of the strands of the work of the cross-government group on anti-Muslim hatred is looking at how we can work with the Society of Editors, among others, to ensure that headlines are, first and foremost, not sensational, but secondly, reflective of facts.
Does the Minister agree that in many parts of the country, relations between Muslims and other faith communities are extremely good? This was true in the diocese of Oxford when I was there and continues to be so. Because of the good relationships between faith leaders, including Muslim leaders, it has been possible to dissipate many potential signs of trouble.
The noble and right reverend Lord makes an incredibly important point. I am incredibly proud of the work that the Government have done in harnessing the power of faith groups to create that understanding. One flagship has been the Near Neighbours programme. The Government have invested £8.5 million since the start of this Government in the Church of England’s Church Urban Fund, using the network of the Church of England to create better understanding between different faith communities.
My Lords, my noble friend makes an important point; everything that we do in tackling extremism must be done in a way that actually resolves extremism. Our language, our policy approach and our conduct must satisfy the end goal rather than the process.
My Lords, would the Minister take the opportunity to pay condolences to the family of the student Nahid al-Manea, who was brutally murdered on the streets of England? Does she accept that some of these very brutal attacks and the rise of Islamophobia are real reasons why some young people are resistant to working across different faith groups? I agree that an enormous amount of work has been done in this country. Would the Minister accept that England’s record in the arena of multifaith work is second to none?
My Lords, the issue of anti-Muslim hatred and Islamophobia is something that I have personally championed. One of the first speeches that I gave in government was about Islamophobia. I used the phrase, “Islamophobia has passed the dinner-table test”—and probably still bear the scars of it. It is important that we fight this new form of hate crime and that the Government have, rightly, invested in projects such as Tell MAMA, to record and make sure the data on anti-Muslim hate crime are accurate and credible.
It is important to make another point; we have been here before. There have been moments in our history when we have not been entirely comfortable with a faith community and we have questioned the loyalty of faith communities, whether that was the Jewish or the Catholic community. But our trust in our institutions and values has got us through it—and we will get through it again.
My Lords, I have an interest on this Question because one of my two sons has become a Muslim and one of my two daughters has become a Muslim. I have 12 lovely grandchildren, seven of whom are little Muslims—or not that little now, because one of them is 21. And, of course, I have a Muslim son-in-law and a Muslim daughter-in-law. Family relationships since those events took place have been as happily familial, as close and as good as any parent or grandparent could wish. If an improvement is needed in relationships between faith groups, one way of promoting that might be to encourage interfaith marriages.
First and foremost, my Lords, it is important that we allow people to marry somebody of their choosing, whatever faith they belong to. That is why I am incredibly proud that the Government have done so much work on the issue of forced marriages, including criminalising a practice that should have been criminalised many years ago.
NHS: Rural General Practitioner Dispensing
To ask Her Majesty’s Government whether they will hold talks with NHS England about steps that could be taken to slow down the closure of rural dispensing general practitioner practices, against the background of the operation of the one-mile rule covering new free-standing pharmacies, and the phased withdrawal of the minimum practice income guarantee.
I and my ministerial colleagues are in regular contact with NHS England. We are not aware of significant closures of rural dispensing practices. The “one-mile rule” is a long-established precept under NHS pharmaceutical services legislation, which determines whether patients in designated rural areas remain eligible to receive dispensing services from their GP. We have no plans to review or amend that precept. NHS England is asking practices that believe they may be adversely affected by the phased withdrawal of the minimum practice income guarantee scheme to contact their local area team to discuss their concerns.
I thank the Minister for that reply, but the British Medical Association, at its conference last week, produced a statement citing NHS England as expecting scores of closures of such dispensing practices. I have a supplementary question and a proposal, but I think that the House may find it useful if I give the background.
Given the loss of income from the double whammy of what is called the one-mile rule and the phased withdrawal of the minimum practice income guarantee, many practices will go below the red line of viability. Will the Minister therefore hold talks with NHS England and suggest that, when there is such a double whammy, the one-mile radius rule could be applied to new patients but not to existing patients—so numbers would be reduced through mortality over the years?
My Lords, the phasing out of the minimum practice income guarantee is being gradually implemented over seven years to give adequate time for GP practices to adjust. In fact, most practices stand to gain under that arrangement. I would encourage any practice to take the matter up with the local area team at NHS England if it has particular concerns. The provisions governing whether a doctor can continue to provide dispensing services to eligible patients when a new pharmacy opens nearby, which is a separate issue, have been in place for a long time and are subject to a long-standing agreement. If an application for a new NHS pharmacy is made to NHS England that would affect, for example, the noble Lord’s dispensing practice, that practice is able to make its views known. There is an appeals process as well. If a new pharmacy were approved that does affect the practice’s dispensing patients, it is open to NHS England to phase in gradually the shift from using the practice’s dispensary to a pharmacy for those patients affected.
My Lords, does the Minister agree that this agreement arose from the 1911 Act—well over 100 years ago—and that there is extreme unrest among patients who are forced to go to a pharmacy when they have been used to using a dispensing doctor? Does the Minister intend to continue subsidising what are known as essential small pharmacies and not give patients a choice?
My Lords, I do not think that it is a question of opposing choice against the rules that we have in place. The rules are there as a result of very long-standing agreements between the medical profession and the pharmacists. I do not think that there is an appetite on either side to open those rules up for renegotiation. A balance has to be struck somewhere and the professions are content with the balance that has been struck.
My Lords, given that half of patients who use dispensing GP services include at least one person over 65 and that one in six is a disabled person, can the Minister tell us whether the one-mile rule makes sense in very rural areas, where public transport may be very sketchy, especially as the one-mile rule is as the crow flies, not via the roads?
My noble friend makes a good point. That is why the rules contain an exception for those who find it difficult to travel and who may therefore wish to have medicines dispensed from their own dispensing GP practice. Those rules do apply to disabled people and to those whom my noble friend describes.
My Lords, does the Minister not regard it as somewhat ironic that yesterday we had the Government trumpeting their Deregulation Bill but today he defends what essentially is an uneasy truce between the BMA and the pharmaceutical interest, in which often the public are the losers? Is it not time for that to be reviewed again?
My Lords, I am grateful for the assurances that the Minister has given so far in respect of possible closures as a result of the change in the financial arrangements and also, of course, of developments in towns, which inevitably result in the creation of new general practices and new associated pharmacies. On the question of rural practices where a proportion of patients are very old indeed, I ask the Minister to reiterate that great care will be taken that they will not be disadvantaged in any way by the future arrangements.
Yes¸ my Lords. As I have described, there is a provision in the rules to take account of elderly and infirm people who find it difficult to travel and who may therefore still wish to have their medicines dispensed by their own dispensing GP rather than be forced to travel a longer distance.
My Lords, the humanitarian situation in South Sudan is extremely critical and could get dramatically worse due to existing vulnerabilities and the unpredictability of the current conflict: 4 million people are at immediate risk of food insecurity and up to 7.3 million people are estimated to be at some risk. Should harvests fail, famine in late 2014 is a very real possibility in conflict-affected areas.
My Lords, I thank the noble Baroness for a very comprehensive and encouraging analysis of where we are in South Sudan. However, in view of the grim predictions made by the Disasters Emergency Committee, does she agree that the international community has to do more, provide more funding to ensure that we can make a difference and act very quickly to avert a catastrophic famine? She will know that humanitarian access is a major obstacle facing relief agencies working in South Sudan. What are the Government doing to press for greater humanitarian access to be granted by all parties in the conflict in South Sudan, including cross-border access?
The noble Baroness shows great understanding of the situation in South Sudan. As she rightly points out, the key to this is the conflict there. That is at the heart of why there is a problem—and why there is a problem with access. She rightly highlights the difficulty of getting aid in. We are working very hard on logistics with the UN, the ICRC and international NGOs to try to get assistance in through air transport and other means but it is proving extremely difficult. Clearly, the cessation of hostilities would be the key to sorting this out.
My Lords, considering that fewer than half the pledges made at the Oslo conference in May have been honoured, should not the Disasters Emergency Committee write to the defaulters pointing out that, if they paid up, the shortfall of $1 billion needed to avert famine in Sudan would be cut by a third? Why are the BRIC countries and the oil-rich Gulf states missing from the list of 26 contributors to the crisis response plan?
The Oslo conference, at which my honourable friend Lynne Featherstone worked very hard to secure contributions, did indeed produce firm commitments from international donors. We entirely agree that the pledges should be honoured and we welcome any steps taken in that regard. As regards the one my noble friend has just suggested in relation to the DEC, we would certainly welcome it taking such a move. On his second point, he is right: we constantly seek to expand the number of contributor countries.
My Lords, given that the whole of South Sudan is mired in violence and, indeed, corruption, what confidence does the noble Baroness have that the aid will reach the people it is meant to reach and will not be subverted for other purposes? Will she also comment on the reports published yesterday that the situation in the north is also deteriorating, with 5 million people there now suspected of being at risk of famine?
The noble Lord is quite right to point to these challenges. He will probably also know that the EU should be bringing forward a sanctions regime shortly, which we support. The United Nations is also looking at that because it is extremely important that problems such as looting are dealt with and that anyone who is getting in the way of the delivery of humanitarian aid is properly challenged and tackled.
My Lords, the situation is dire. As well as the 4 million people in need of humanitarian aid, more than 10,000 people have already been killed and 1.4 million people have been displaced. When we are facing such terrible problems it is important not to underestimate the role played by various agencies already on the ground, including many Anglican and ecumenical agencies working with the Anglican Alliance. Indeed, Archbishop Daniel Deng has been a leader in the efforts to bring peace. How can Her Majesty’s Government support the churches working on the ground in their humanitarian and peace efforts and in delivering aid?
I too pay tribute to those who are working in these extremely difficult circumstances. The right reverend Prelate will know that the United Kingdom is a leading donor. We are meeting about 7.5% of the total appeal at the moment and working to support all the agencies that are managing to get in. We do not underestimate the difficulties.
My Lords, I declare an interest as a trustee of the Disasters Emergency Committee. Does the noble Baroness agree that it is essential to flag up and respond to these complex and developing crises, which can be just as devastating if not as instantly newsworthy as the sudden catastrophic natural disaster?
The noble Baroness is absolutely right. Of course it is the fact that this is a very fragile state which leads to the problems that we are indentifying here. It is one of the reasons too why it is important to act early and to plan ahead, which the United Kingdom is seeking to do.
Does the noble Baroness agree that the key players in this future operation will be Kenya, Uganda and Ethiopia, which is receiving hundreds of thousands of refugees already? What are Her Majesty’s Government doing to back up those resources on the border?
We are concerned about not only those in South Sudan but obviously those who have been displaced into the neighbouring countries, who indeed have a destabilising influence. We are supporting both those within South Sudan and those in the neighbouring countries, and are very concerned about the instability caused by that.
My Lords, I pick up a theme that has already been partly covered. People in this country respond generously to disasters when they happen. Here we know that a disaster is going to happen and that millions may die; they have not died yet. Can we have an assurance from the Government that they will act now rather than wait for a disaster to happen?
I assure the noble Lord that not only are we acting now but we were one of the leaders in putting into place plans in anticipation of what might happen. We took very seriously the advice that was put forward a year or two ago about being early responders, and are implementing that.
Openness of Local Government Bodies Regulations 2014
Housing (Right to Buy) (Maximum Percentage Discount) (England) Order 2014
Motions to Approve
That the draft regulations and order laid before the House on 3 April and 5 June be approved.
Relevant documents: 1st and 2nd Reports from the Joint Committee on Statutory Instruments (special attention drawn to the instruments). Considered in Grand Committee on 1 July.
Jobseeker’s Allowance (Supervised Jobsearch Pilot Scheme) Regulations 2014
Motion to Approve
Serious Crime Bill [HL]
Committee (2nd Day)
Clause 34 agreed.
Clause 35: External orders and investigations: meaning of “obtaining property”
Amendment 30 had been withdrawn from the Marshalled List.
30A: Clause 35, page 28, line 5, at end insert “to the extent of the property or advantage obtained”
My Lords, this is a tiddler of an amendment, which it is embarrassing to move if there are noble Lords waiting for enlightenment about the philosophy and underlying architecture of the Bill. I have succeeded in imprisoning a number of my noble friends up here, because I was unable to find anywhere closer to the front.
My Lords—while my noble friend takes her seat—we are now in the second day in Committee on this Bill. Admittedly a smallish number of Peers are seeking to take part, but that number take the Bill very seriously. I am sure that, like me, they would like to hear from my noble friend Lady Hamwee as she moves her amendment.
My Lords, I am grateful to my noble friend. This amendment relates to an interpretation provision. In Clause 35, new subsection (6B) provides for what:
“References to property or a pecuniary advantage”,
mean in the context of the proceeds of crime. It seems to me that in that legislation and in the legislation that we are amending, some references to property or advantage would be to the whole of it—for instance, if the property is to be subject to confiscation—while some would be to the extent of what has been obtained by a criminal act, for instance the amount confiscated. My amendment really amounts to a question to the Minister as to whether to take it that we should read what is appropriate in the context. In other words, is what I have said implicit and am I worrying about something quite unnecessarily? The second of these examples—in other words, a limited extent—seems not to be provided for in the clause. I beg to move.
Perhaps I may help my noble friend and reassure her because Clause 35 deals with a technical amendment to the Proceeds of Crime Act, which will expand the types of cases that UK authorities can deal with on behalf of their international counterparts. The Proceeds of Crime Act currently enables, among other things, requests and orders made by courts in other jurisdictions to be given effect in the United Kingdom. One such order is that allowing for the recovery of specified property or money where that property or money is believed to have been obtained as a result of, or in connection with, criminal conduct. The scope of the order is therefore restricted solely to the recovery of specific property or money.
Domestic law, by contrast, recognises that the proceeds of crime can include not just specific money or property but a so-called pecuniary advantage, such as not paying a tax that is lawfully due. The reason that pecuniary advantage was not originally included within the assistance that could be provided to other jurisdictions was due to the scope of international agreements at the time when the Proceeds of Crime Act was enacted. In recent years, however, the international approach has broadened but the law has not kept pace. As a result, law enforcement agencies are unable to assist those in other jurisdictions in recovering from a defendant convicted of crimes such as tax evasion amounts held in the United Kingdom.
I am sure that my noble friend agrees that it is right that we should be able to co-operate as widely as possible in such matters; this clause will help us achieve that. The clause does not affect the position with regard to domestic cases. However, it extends our ability to assist foreign jurisdictions with the recovery of any pecuniary advantage obtained as a result of criminal conduct. I hope that, with that explanation, I have satisfied my noble friend and she will be able to withdraw her amendment.
My Lords, this is one of those occasions when one wants to hold back and read the answer, which is not at all to suggest that I doubt my noble friend. Of course, I share the intention and I am grateful to him for that. I will read the answer but, for the moment, I beg leave to withdraw the amendment.
Amendment 30A withdrawn.
Clause 35 agreed.
Clause 36: Confiscation orders by magistrates’ courts
31: Clause 36, page 28, line 7, at end insert—
“( ) In section 97 (confiscation orders by magistrates’ courts), for subsection (1) substitute—
“(1) The Secretary of State shall by order make provision for enabling confiscation orders under Part 2 of the Proceeds of Crime Act 2002 (confiscation: England and Wales) to be made by magistrates’ courts in England and Wales.””
My Lords, my amendment is concerned with confiscation orders in magistrates’ courts. Under the Proceeds of Crime Act 2002, magistrates’ courts lost their power to make confiscation orders. They had previously had this power for appropriate offences under the Criminal Justice Act 1988. Magistrates continue to this day to have responsibility for the enforcement of confiscation orders.
Section 97 of the Serious Organised Crime and Police Act 2005 gave the Secretary of State power to make provision for magistrates’ courts in England and Wales to impose confiscation fines of up to £10,000. This would have to be done by means of an affirmative instrument. While Section 97 has been brought into force, it only gave the Secretary of State the power to make provision by order. In the intervening nine years, this has not happened. Given that magistrates used to have this power, and continue to play a role in the non-payment of confiscation orders, I can see no reason why this should not be taken forward.
The Government have set out in a briefing note that they have work in hand to bring these measures forward. They have not given any timescale by when the measures will be brought forward. Indeed, the Home Office forward planner of secondary legislation mentions confiscation orders, but it does not give any detail about the timescale. So the amendment, which I have put down as a probing amendment, would replace the current text of the section of SOCPA 1997 which gives the Secretary of State the power to make provision for confiscation orders in magistrates’ courts, with a new text which would require him to do so.
I hope that I am pushing at an open door. I would be very grateful for clarification of the timetable for bringing forward this provision. I beg to move.
My Lords, both my Amendments 31A and 31B would delete wording, but they enable me to ask a question. The Secretary of State, and in the case of Northern Ireland, the Department of Justice, have the power to make an order to substitute a different amount for the maximum amount of the confiscation order which can be made by a magistrates’ court. Can the Minister give the Committee an assurance that the Secretary of State will consult before such an order is made? I appreciate that it is not in his gift to give any assurance on behalf of the Department of Justice, but he might be able to make a comment, because I know that the Government have been in touch with the Northern Ireland Assembly.
My Lords, as the Proceeds of Crime Act currently operates, a confiscation order may only be made by the Crown Court. As a result, if someone is convicted of an offence in the magistrates’ court and the Bench considers the case is appropriate for a confiscation hearing, the matter must be referred to the Crown Court. This is clearly not the most effective use of resources for handling simple cases. As the noble Lord, Lord Ponsonby, notes, there is already legislation on the statute book that would enable the Home Secretary to modify Part 2 of the Proceeds of Crime Act so as to enable confiscation orders to be made in a magistrates’ court in cases where the criminal benefit did not exceed £10,000. The relevant legislation can be found in Section 97 of the Serious Organised Crime and Police Act 2005.
I can fully understand the frustration of the noble Lord, as a sitting magistrate, in having to refer all confiscation cases to the Crown Court when it would be perfectly possible for straightforward cases to be dealt with in the magistrates’ court, subject to that £10,000 threshold. The noble Lord is all the more frustrated given that the legislation to allow magistrates’ courts to make confiscation orders has been on the statute book for almost 10 years, as he pointed out. The provision in Section 97 of the 2005 Act had, of course, already been on the statute book for five years when this Government came to office. Like the previous Administration, we judged that there were other priorities for improving the asset recovery regime and responding to serious and organised crime, including the setting up of the National Crime Agency. However, we are now working towards enabling magistrates’ courts to make confiscation orders, including putting in place the necessary judicial training from spring 2015.
Given that we are now actively working to implement a scheme empowering magistrates to make confiscation orders, I hope the noble Lord will agree that his amendment, which places a duty rather than a power on the Home Secretary to make such a scheme, is unnecessary. I would be happy to update the noble Lord in the autumn on progress in this area. On that note, I hope that he will be content to withdraw his amendment.
Turning to Amendments 31A and 31B, my noble friend Lady Hamwee indicated that her intention was not to remove the power to vary the £10,000 limit by order but simply to seek an assurance that there would be proper consultation before the order-making power was exercised.
Generally, our approach is that magistrates’ courts should be able to make confiscation orders only in less serious cases. However, there may be situations in which the defendant has been convicted in the magistrates’ court but is potentially liable to an order greater than £10,000. Such a case would still need to be sent to the Crown Court to be dealt with. The order-making power in the clause allows for the £10,000 threshold to be varied if the evidence following implementation shows that the limit is generally too low.
Once we have brought into effect the provisions allowing for confiscation orders to be made in magistrates’ courts, we will keep the arrangements under close review. I assure my noble friend that before any change is made we will consult with the senior judiciary, the Magistrates’ Association and other practitioners as to whether the £10,000 threshold can sensibly be raised.
I also remind my noble friend that this order-making power is subject to the affirmative procedure, so any change would need to be considered and approved by both Houses. I hope that with these comments I have been able to provide my noble friend with the assurance she is seeking.
My Lords, I thank the noble Baroness for that answer. I think we got half a step forward. She said that there would be training in 2015 but could not quite go all the way and say when magistrates would actually receive these powers. Nevertheless, as I said, this was a probing amendment. I have got a little bit more information so I beg leave to withdraw the amendment.
Amendment 31 withdrawn.
Amendments 31A and 31B not moved.
Clause 36 agreed.
Clause 37: Unauthorised acts causing, or creating risk of, serious damage
31C: Clause 37, page 29, line 25, leave out “sea adjacent to” and insert “waters of”
My Lords, Amendment 31C is a small probing amendment. There is a definition in the clause of “a country or territory”, which provides that references to them include,
“the territorial sea adjacent to a country or territory”.
My amendment would change that to “territorial waters”. I simply ask how extensive is territorial sea that is adjacent? It must be less than territorial waters. The natural meaning of adjacent, I would have thought, is “very close to the land”. Why is there a limit and what is the limit? I would guess that this is relevant in the context of the clause about computer misuse to damage to such things as wind turbines and oil rigs, and perhaps, in a transport context, ferries and maybe fishing. I am sure there is a list of matters. I am fairly unclear as to what the clause means. If my noble friend can help, so much the better. I beg to move.
My Lords, I hope I can clarify things to my noble friend’s satisfaction. As we know, cybercrime has a global reach; a perpetrator sitting in their bedroom in London could be hacking into a computer system anywhere in the world. The new offence acknowledges this reality and captures serious damage caused in any country. The clause goes on to define a reference to “country” as including a reference to a “territory” and to,
“(i) any place in, or part or region of, a country or territory;
(ii) the territorial sea adjacent to a country or territory”.
It is the last of these three points that my noble friend’s amendment seeks to address, and she raises a very interesting point.
The Territorial Sea Act 1987 specifies that the breadth of the territorial sea adjacent to the UK is 12 nautical miles. I can therefore reassure my noble friend that this form of words does not mean, as one might usually expect, the sea very close to the coastline, but captures the full 12 nautical miles of territorial water surrounding the UK.
However, the position will not be the same for all countries. Although the 1982 United Nations Convention on the Law of the Sea sets 12 nautical miles as a maximum for territorial waters, some states may have chosen a smaller limit. The boundary line for a country’s territorial waters will be governed by its own laws and by international agreements and conventions. The non-specific language in the Bill reflects this variation. Where the damage is caused in the UK the territorial sea adjacent to the country will be the 12 nautical miles around the UK. Where the damage is in another country we would expect the court to take into account the laws of the country in question, together with any relevant international conventions, such as the UN convention, and any other agreements, in determining the territorial sea’s breadth. I hope that my noble friend has found this explanation helpful and that she will agree to withdraw her amendment.
Can my noble friend say whether territorial waters and a territorial sea adjacent to a country are normally co-terminous? My noble friend referred to some countries defining a territorial sea as extending less than 12 nautical miles, but she did not say whether it was less than the territorial waters of the country. I hope that is not too arcane.
My question was very similar—perhaps I will put it in a slightly different way. The explanation as I heard it is that this is about territorial waters. The language used seems to be that which is used to define territorial waters, whichever country one is talking about. However, it seems that there is no difference between the territorial sea adjacent to somewhere and the territorial waters. To give the Minister slightly more breathing space, perhaps I can also ask her to explain what a “territory” is, as distinct from a “country”?
My Lords, to answer my noble friend’s question last, and hopefully throw light on my other noble friend’s question: a “territory” is a geographical concept, the land and sea over which a state has jurisdiction. A country’s land mass may be divided into several territories, so the state of a country may also have jurisdiction over far-flung territories. For example, the state of the country of the United Kingdom has jurisdiction over various overseas territories, such as the British Virgin Islands. However, it is a matter for each state to determine, subject to the 12-mile limit. I hope I have not further confused the House.
My Lords, I hope to make a marginally relevant point. Is it not the case that by now the whole concept of a belt of territorial jurisdiction, 12 miles out from land, has been outdistanced by the realities of time? Grotius, I believe, was the international lawyer, who, many centuries ago, advocated a three-mile limit. Why? Because that was the range of a powerful cannon in those days. Then, ordnance became more and more powerful. Today, 12 miles is nothing in relation to the power of ordnance. Should not the whole question of the 12 miles therefore be eradicated?
Before my noble friend answers that question, might I ask whether our gas and oil rigs and our large, hideous windmills that are beyond the 12-mile limit are within our territorial waters? If so, do not our territorial waters in some instances stretch very much further, and have we not claimed areas out into the Atlantic within the continental shelf in order to protect our own oil rights? Is the limit not much greater than 12 miles?
Perhaps I can help on that. The law of the sea gives a territory an exclusive economic zone of 200 miles, which covers such things as mineral rights, wind farms and so on. Territorial waters are quite different: it is where jurisdiction is exercised over people within territorial waters. The limit is still 12 miles. Occasionally, it may be less if it overlaps with another country’s 12 miles, as it would, for example, in the Channel, where a median line is drawn between the United Kingdom and France.
If my noble friend will forgive me, if we have territorial rights that are limited to only 12 miles, who has jurisdiction over the gas and oil rigs that are further out than 12 miles? Are they outside the jurisdiction of the United Kingdom? If a crime is committed on them, is it not a free-for-all?
I thank my noble friend Lord Bourne for very helpfully clarifying the issue over mineral rights et cetera. If a crime took place on an oil rig, windmill or anything out to sea, it would be a matter for whichever country had a flag on it. I hope that clarifies the matter in respect of anything that might be in any sea anywhere in the world.
On whether the 12-nautical mile radius should still stand, I do not think that that is a question for today. The fact is that it does stand.
My Lords, after the tutorial that we have had from the noble Lord, Lord Bourne, I feel that I should just say that I surrender—but, before I do so, I will comment that it would be easier if the Bill were to refer to each country’s territorial waters as that country has determined, rather than using what appears to be general language without making reference to the technicalities. I am grateful to my noble friend the Minister, who no doubt now knows a great deal more about territorial waters than she really ever wanted to. I beg leave to withdraw the amendment.
Amendment 31C withdrawn.
Clause 37 agreed.
Clause 38 agreed.
Clause 39: Territorial scope of computer misuse offence
31D: Clause 39, page 30, line 11, leave out subsection (4)
My Lords, I will speak also to my Amendment 31H. Perhaps I should speak slowly to give the noble Baroness, Lady Smith, an opportunity to work out how to make her points in the debate on this clause.
In Clause 39, Amendment 31D would omit subsection (4) and Amendment 31H would omit subsection (7), both of which refer to a case in which the accused is in one country and the offence is linked to another jurisdiction, which will very often be the case when there is computer misuse. My amendments are probing; I am asking my noble friend whether there is a risk that a person could be prosecuted for the same act in more than one jurisdiction, and how it should be determined which jurisdiction takes precedence. Obviously, this point arises not only in connection with the Bill and the new offences, so I am not raising a novel point, but it would be very helpful to the House to understand how that conflict might be determined—I use the term “conflict” somewhat hesitantly as, technically, it is not a conflict—when more than one jurisdiction is involved. The first of these two amendments refers to the UK and the second to Scotland. I beg to move.
I am grateful to my noble friend for the explanation of her amendments. I believe that I can provide the reassurance that she seeks. I know that a number of noble Lords are interested in this issue; indeed, it was raised in the House at Second Reading.
It might help if I briefly explain why we are making the amendments to the Computer Misuse Act in Clause 39 and then set out the safeguards against subjecting a person to double jeopardy. As the Committee is well aware, cybercrime is a serious threat that often crosses international boundaries. The Computer Misuse Act already recognises the transnational nature of cybercrime and provides for the extraterritorial jurisdiction of certain of the offences under the Act where there is a significant link to the United Kingdom.
Clause 37 adds nationality to the categories of significant linkage to the UK. This means that a UK national would be committing a computer misuse offence while outside the UK even where there was no link to the UK other than nationality, provided that the offence was also an offence in the country where it took place. Therefore, in the case of concurrent jurisdiction, a UK national could be prosecuted under the Computer Misuse Act in the UK subject to the usual extradition arrangements or the accused voluntarily returning to the UK.
Decisions about prosecution rest with the Director of Public Prosecutions. It would be for prosecutors in the affected jurisdictions to negotiate where the prosecution should take place. For example, in the EU, Eurojust was established to deal with criminality that extends over borders, and it has guidelines to help prosecutors decide where a case should best be tried. There is a similar protocol agreed by the Attorneys-General of the US and the UK for cases that in theory could be tried by either jurisdiction. The Crown Prosecution Service has domestic guidelines that its prosecutors are expected to follow to help them decide whether to bring a prosecution in the UK or cede jurisdiction to another state with an interest.
My noble friend is rightly concerned to ensure that an individual cannot be prosecuted in both jurisdictions where there is a concurrent jurisdiction. This is a risk that the existing guidance and agreed processes have been designed to manage. Using the UK and Clause 39 as an example, a UK national could commit a number of Computer Misuse Act offences in country B even if the criminality did not impact on the UK. As I described, the way in which we would expect this to work is that the prosecutors in the UK and country B would decide where to pursue the prosecution. In the absence of country B taking forward a prosecution, the UK could take one forward and would need to go through the extradition process to return the subject to the UK. If the case was prosecuted and the sentence served in country B, and the subject returned to the UK, the UK could not then take forward its own proceedings. Double jeopardy would prevent the subject being prosecuted for the same offence in the UK.
It is important to note that the extraterritorial scope of the offences in question does not place any requirements for the offences to be prosecuted here, especially in cases where the offence has taken place outside the UK and the only link to the UK is the nationality of the subject. Similarly, if the subject was outside the UK, the usual extradition procedures would be followed where prosecutors agreed that the prosecution should be pursued in the UK. I trust that that provides the assurance that my noble friend is seeking and that she will be content to withdraw her amendment.
My Lords, that was very helpful. I may have missed this, in which case I apologise, but I take it that the arrangements to which the Minister referred at the beginning of her reply deal with where the prosecution actually takes place and the decision between two states as to who takes the lead.
Amendment 31D withdrawn.
31E: Clause 39, page 30, line 39, at end insert—
“(2A) A sheriff shall have jurisdiction in respect of an offence under section 3ZA above if—
(a) the accused was in the sheriffdom at the time when he did the unauthorised act (or caused it to be done), or (b) the computer in relation to which the unauthorised act was done was in the sheriffdom at that time.”
My Lords, this is a technical amendment. Clause 39 extends the extraterritorial jurisdiction of certain offences under the Computer Misuse Act 1990. In doing so, the clause amends Section 13 of the 1990 Act, which relates to criminal proceedings in Scotland, to establish the criteria for when a sheriff court has jurisdiction to try certain offences under that Act. Our amendments to Clause 39(6) and (7) extend these provisions so that they also apply to the new Section 3ZA offence—inserted into the 1990 Act by Clause 37—of impairing a computer such as to cause serious damage. I beg to move.
Amendment 31E agreed.
Amendments 31F and 31G
31F: Clause 39, page 31, line 8, leave out “or 3” and insert “, 3 or 3ZA”
31G: Clause 39, page 31, line 10, leave out “or (2)(b)” and insert “, (2)(b) or (2A)(b)”
Amendments 31F and 31G agreed.
Amendment 31H not moved.
31J: Clause 39, page 31, line 14, after “3” insert “, 3ZA”
Amendment 31J agreed.
Clause 39, as amended, agreed.
Clause 40 agreed.
31K: After Clause 40, insert the following new Clause—
“Annual reports: cyber-crime strategy
(1) The Police Reform and Social Responsibility Act 2011 is amended as follows.
(2) In section 12 (annual reports), after subsection (7) insert—
“(8) A report under this section must include details of the policing body’s strategy to deal with cyber-crime.””
My Lords, I apologise if there has been some confusion. When the Question was whether Clause 37 should stand part of the Bill, I was loath to say no because, although I gave notice of my intention to oppose the Question, I really have no intention of opposing the clause. As noble Lords will agree, one way to have a general debate on the principle of an issue, rather than its individual parts, is to raise a clause stand part debate.
At the same time as moving Amendment 31K, which would require the annual reports of police authorities and police and crime commissioners to contain a statement on how they are tackling cybercrime, I will make some general comments on cybercrime and computer misuse. This is a probing amendment. The Bill amends the 1990 Act to create a new offence of unauthorised acts that cause serious damage, to implement the EU directive on attacks against information systems and to clarify the savings provisions for law enforcement. We have no difficulties with those provisions, but we wish to have a general debate and promote a discussion on whether the Government are doing enough or whether the Bill could go further and provide better and more effective protection from cybercrime.
Noble Lords may be aware that we also sought to table an amendment to create a new offence of identity theft. We have raised this issue with the Government before because it needs new legislation. We were disappointed that the Government did not take the opportunity to include something along those lines in the Bill. Noble Lords will know that, within cybercrime, identity theft causes a great deal of concern and affects a large number of people. However, it was not included in the Bill and, unfortunately, our amendment to address this was not in scope. I am sure we will return to this issue another time but, when dealing with cybercrime now, it is important to look at and address the loopholes in existing legislation.
There is little doubt that digital technology and the internet have changed our lives and provided us with new opportunities. However, they also create new challenges and provide new opportunities for criminals. Returning to the theme of Al Capone, even his creative criminal mind could not have imagined the opportunities that would be available to his successors in the 21st century. A recent HMIC report says that this could either be,
“where criminals use computers to help them commit crimes that would have been committed previously without the benefit of such technology, for example fraud and theft, or where they commit new crimes that were not possible before”,
or were not even thought of,
“such as an attack on government online services using ‘malicious software’”.
Recorded incidents of fraud have increased by a quarter over the past year but convictions have gone down. However, business crime—which surveys indicate is going up—is not counted in official figures despite online crime exploding.
The consumer watchdog Which? estimates that half of us have been targeted by online scams. Anyone who looks religiously through their spam in the parliamentary e-mail system will see scams offering services which I am sure most of us, particularly the women, would not want to take advantage of. Recorded online fraud is up by 30% but that is just the tip of the iceberg, because most of it is never reported to the police.
The Home Affairs Select Committee concluded in its report last summer that,
“there appears to be a ‘black hole’ where e-crime is committed with impunity. Online criminal activity which defrauds victims of money is not reported to or investigated by law enforcement. Banks simply reimburse the victims with no pursuit of the perpetrators. Criminals who commit a high volume of low level fraud can still make huge profits”.
Many members of the public take out insurance with banks and other organisations to protect themselves against online crime and identity fraud. I have yet to understand how easy that is or how it pays out to a victim. Although they may get their money back, the inconvenience, distress and worry caused by it are tremendous.
Despite that, the Bill does not offer a coherent government plan for tackling online fraud and economic crime, even though it would have been an ideal opportunity to do so. Looking at large-scale cyberincidents, the recent HMIC report has some very worrying findings. Only three police forces, Derbyshire, Lincolnshire and West Midlands, have developed comprehensive cybercrime strategies. The rest of us who live in other areas have to rely on some kind of knowledge within the police force because there is no specific strategy. Only 15 forces have considered cybercrime threats in their strategic threat and risk assessments and, where those assessments exist, the plans focus only on investigating cybercrime and are silent about preventing it and protecting people from the harm that it causes. While the Government and PCCs are increasing their investment in regional organised crime units, those units have not yet developed the necessary cybercapacity to assist the police forces. That indicates that there needs to be a real debate around these issues. There need to be new plans, new strategies and new actions in place to tackle new threats. The police need to do more, not less, to tackle online fraud and crime.
I have outlined that there is no serious strategy and that fragmented forces lack the skills and organisational structure to be effective. The shadow Home Secretary has said previously that that has to involve better skills and that the police need to have the skills in this very specialised area. They need better organisation, and they also need to co-operate with the private sector. That needs to be part of strengthening the law on identity theft. We have seen that there is some good practice within the police, but it is patchy. If it is going to be effective, it needs to be universal. Ensuring that this issue is addressed in the annual report will focus greater attention on it and on the strategies and plans that have to be made. What does not have to be reported can be forgotten or added as an afterthought. If it is central to the PCC report, we will have some way of measuring the actions taken. The scale of the challenge is too great for it to be forgotten or an afterthought.
I am not suggesting that the report itself will effect a marvellous change overnight, but it will help to ensure that the importance of this issue is recognised. As well as the impact on business, there is growing recognition of the implications for national security and our national infrastructure and its resilience. The security services and GCHQ also recognise that they need to do more to tackle the growing number of cyberattacks and the effects they could have. That means building on the work being done with major public and private sector organisations because we have to ensure that they are resilient against hacking and major online onslaughts. We have also said that we want major reform of oversight functions and responsibilities and accountabilities, and we want a major overhaul of the system of independent oversight commissioners, stronger safeguards and a serious review of the legal framework, including a full review of RIPA.
These clauses are welcome. They have our support. The reason for Amendment 31K is evident. It is to try to raise the issue which is of such importance. I seek assurances from the Minister that the Government recognise just how much this is needed. I express some disappointment. We think the Bill is an opportunity to go further, do more and really address the issues of resilience, national infrastructure resilience and national security. We are disappointed that an important issue in this area—identity theft—is out of scope of the Bill so we cannot address it. We support what the Government are doing. We think there could be more. We would like more. We would like to work with the Government to achieve more. I beg to move.
My Lords, I strongly support what the noble Baroness, Lady Smith of Basildon, said. The issue—if you can call it an issue as it is a series of issues—in relation to cybercrime could scarcely be of greater importance to our society. It is not just an economic crime of the greatest potential but a crime in all dimensions.
The only reservation I have about the amendment is whether it goes far enough. Besides having to deal with the strategy in relation to cybercrime, I would hope for something in the report about the extent of the implementation and enforcement of the laws we are passing and the laws we have already passed. It has become a commonplace in this House to remark upon the fact that we pass laws as if there is no tomorrow but fail again and again to implement the laws we pass. I therefore hope that the report will deal with that crucial aspect of the so-called strategy.
I am not clear as to whether we are in this group also now discussing whether Clause 37 shall stand part of the Bill. We are not? Right.
My Lords, when I first studied the Bill and saw that there were clauses relating to cybercrime as well as substantial parts focused on the problems of drugs, I thought that the sections on cybercrime would have something to offer on the development of the Government’s strategy to deal with our immense problems with drugs. However, I cannot see that there is any connection between these different parts of the Bill. That is a disappointment.
Will the Minister share with the House some of the thinking of the Home Office as to how it proposes to address the rapidly developing and immense problem of drugs-related cybercrime? As I noted at Second Reading, the internet has transformed the marketing and distribution of drugs, whether they are proscribed or whether they are new psychoactive substances that are not proscribed. It is now far easier for those who produce these substances and those who sell to be linked up with those who are interested in consuming them. Social networking has intensified this ease of communication. For example, I understand that it is not at all uncommon when party invitations are distributed by means of social networking that the message will contain a link to the point at which particular fashionable, newly arrived substances can be obtained.
This problem presents huge challenges to policing in terms of protecting the safety of all people, particularly young people. The Government and law enforcement agencies must be thinking very hard indeed about this. It would be helpful if the Minister would say, were he to accept my noble friend Lady Smith’s amendment, what he would expect to see in these annual reports on the subject of drugs-related cybercrime. We have social networking, which uses relatively familiar and accessible networks of communication, but there is of course the dark web. The Home Office must again be pondering and working very hard indeed to find ways in which it can even know what is going on on the dark web, let alone to police it. These are hugely important issues, and perhaps the noble Lord would share his thoughts on them with us.
I also support the amendment. In doing so, I declare an interest: I run a medical charity that does all its work online, with doctors and nurses in 74 different countries. However, I am not so much worried about that, because I hope that our confidential information is secure. I am thinking of people using cybercrime to find their rivals’ pricing information and new product designs when tendering for various projects; in other words, hacking into other people’s and firms’ computers and getting confidential information for their own pecuniary and business advantage. This is an important amendment and I hope that my noble friend on the Front Bench will consider it sympathetically.
My Lords, to pick up on the point about drugs, it does not seem to me that they are necessarily excluded. The new section of the Computer Misuse Act deals with an act creating,
“a significant risk of, serious damage of a material kind”,
which includes “damage to human welfare”, which is in turn such as to cause, among other things, “loss to human life” or “human illness or injury”. All that links up very closely with what the noble Lord has been talking about. If what he has described is not covered, we will need to go back to Clause 39—but not today.
My Lords, the noble Baroness, Lady Smith of Basildon, has created a new parliamentary device. I had long heard of the paving amendment, but today she has moved a door-stop amendment. It has enabled us to discuss an important aspect of the Bill, and I am pleased that we have the chance at least to consider the clauses that are designed to deal with cybercrime.
The Government’s approach and the scale of the investment that we have made across law enforcement agencies to develop and strengthen the operational response are designed to combat that emerging and complex threat. In 2010, the national security strategy named hostile attacks on UK cyberspace by other states and large-scale cybercrime as a tier-one threat to national security. To put these provisions on computer misuse into context, they are principally aimed at that level. That means that for the Government cyber is regarded as on a par with international terrorism as regards the risks to our national security. The Government have responded to that threat by committing £860 million over five years to the national cybersecurity programme. So far, we have invested over £70 million of that funding to strengthen law enforcement’s ability to tackle cybercrime.
We know that a co-ordinated approach is needed to tackle serious and organised crime, including cybercrime. We set out how we plan to achieve that in the Serious and Organised Crime Strategy, and I think that the noble Baroness will find some of the thoughts of the Home Office in that document, which we launched in October last year. At the same time we launched the National Crime Agency, which leads the UK response to serious and organised crime. The National Cyber Crime Unit in the NCA was established to provide the national crime-fighting response to the most technologically sophisticated cybercrime.
The National Cyber Crime Unit therefore provides the focus for our national response to combating cybercriminals. It is using its increased operational resources to arrest those responsible and to prevent and otherwise disrupt their activities. The National Cyber Crime Unit is also investing in state-of-the-art equipment and specialist expertise, keeping pace with the criminals who threaten the public. It also uses the NCA’s enhanced intelligence picture to proactively pursue criminals, targeting them where they are most vulnerable and signposting the public towards advice on how to protect themselves. Approximately half the NCA’s officers are being trained in digital investigation skills. That shows that we recognise the significance of cybercrime in fighting serious crime in this country.
The National Cyber Crime Unit has already had an impact in pursuing those criminals and disrupting their activity. Examples include the recent operation with its international partners to disrupt the communications used by criminals to connect with computers that are infected with malicious software, or “malware”, such as GameOver Zeus and CryptoLocker.
However, the NCA and the National Cyber Crime Unit cannot tackle that threat alone. The policing response to national threats is set out in The Strategic Policing Requirement, which chief constables and police and crime commissioners must have regard to, and which recognises both cybercrime—as a form of organised crime—and a large-scale cyber incident as national threats that require a policing response. While police forces can draw on the support of the National Cyber Crime Unit, it is also vital to build force capability to tackle the cyberthreat locally. We have therefore also provided funding to support the creation of cybercrime units within eight of the regional organised crime units.
The cyberunits will support the National Cyber Crime Unit and also help local forces prosecute and disrupt cybercriminals. They are also building links with institutions such as this to understand better the threat we face and the best tools to use in response. This year we have offered £25 million to support regional organised crime units. With funding from the national cyber security programme, the College of Policing is investing in new courses to build cybercapabilities in local forces. The training will increase knowledge and understanding of cybercrime and how to investigate it. It includes four e-learning packages and classroom courses to train 5,000 officers by 2015.
Lastly, we are also funding Action Fraud and the “Be Cyber Streetwise” campaign so that the public have a clear single point of reporting if they are victims of cybercrime, in particular financially motivated cybercrime, and know how to protect themselves and so reduce the risk of becoming a victim of cybercrime—the identity theft that the noble Baroness mentioned. Turning to Action Fraud first, we have rationalised the reporting arrangement so that Action Fraud is now the national reporting service for fraud and financially motivated cybercrime. The public and businesses can use it to report online or by phone. All reports go through Action Fraud, which then passes the reports to the National Fraud Intelligence Bureau. Both are now run by the City of London Police, the country’s national lead force for fraud. In January the Government launched a “Be Cyber Streetwise” campaign, delivered in partnership with the private sector, to encourage individuals and small businesses to adopt safer online behaviours to help them better protect themselves.
Although we have included Clause 37 in the Bill, I shall say a little about the new offence therein to capture cyberattacks which cause, or create a significant risk of, serious damage. This was referred to by my noble friend Lady Hamwee. Improvements in technology have brought many benefits and the use of IT systems has increased exponentially since the Computer Misuse Act was passed in 1990. It is surprising that we are building on that Act of 1990—it was a far-seeing piece of legislation. However, as we rely more and more on computer systems, and as they become increasingly interlinked to deliver maximum benefits, the potential for a cyberattack to cause serious damage also increases.
It is now possible that a major cyberattack on essential systems—for example, those controlling power supply, communications or food distribution—could result in loss of life, serious illness or injury, serious damage to the economy, the environment or national security or severe social disruption. However, the existing offence of impairing a computer, currently the most serious of the Computer Misuse Act offences, carries a maximum sentence of only 10 years’ imprisonment. This does not adequately reflect the level of serious economic or personal harm that a serious cyberattack could now cause.
The new offence will apply where an unauthorised act in relation to a computer—that is “hacking”, in common parlance—results, directly or indirectly, in serious damage to human welfare, the environment, the economy or national security, or creates a significant risk of such damage. The offence will carry a maximum life sentence where the attack results in loss of life, serious illness or injury or serious attacks to national security. Where the attack results in serious economic or environmental damage or social disruption, the maximum sentence will be 14 years’ imprisonment. This offence will ensure that, in the event of serious cyberattack, a suitably serious offence will be available to the prosecution and a suitable sentence available to judges.
A number of other issues have been raised, and it may be helpful to noble Lords if I write a summary covering different aspects. Identity theft was raised by the noble Baroness, Lady Smith, and the drugs issue was raised by the noble Lord, Lord Howarth. We recognise concerns about the whole business of legal highs and their availability on the internet. The Minister for Crime Prevention, Norman Baker, is currently reviewing law in this area, and the House will have an opportunity to consider the review’s findings later this year. It would be helpful to use the opportunity of this debate about the particular aspect of cyber misuse that is of serious consequence for me to write to noble Lords, including my noble friends Lord Phillips of Sudbury and Lady Hamwee. I would like to be able to reassure them on that point. Indeed, I think that my noble friend Lord Swinfen also raised a point that I would like to address in that way.
I hope that, given the reply that I have been able to make, and including those points in a more general discussion about this area, the noble Baroness will be in a position to withdraw her amendment. We have clauses in the Bill that address cybercrime and we have taken a significant step in recognising the importance of this to our national well-being.
I thank the Minister for what he said about drugs-related cybercrime. Will he also seek to offer the House some reassurance on a very major issue that he touched on? He emphasised the Government’s very proper concern to protect our critical national infrastructure against cybercrime. I believe that it is the case that a good deal of cybercrime emanates from China. The Government have just completed a negotiation with the Chinese whereby it is agreed that they will build our nuclear power stations. What reassurance can he give to us that we are going to be protected in the event of cybercrime coming from a Chinese source, conceivably in unfortunate diplomatic circumstances authorised by the Government in China? I appreciate that this goes beyond a routinely or merely criminal issue, but it seems exceedingly important to me—and something that the Government must have been thinking about. As he has been advising us on the Government’s measures and strategies to deal with cybercrime, perhaps he could also say something about that.
I think that I said in my general speech in response to the noble Baroness’s amendment in addressing this area that we recognise that serious damage to national interests and human well-being can be caused by individuals and also by organisations and states. I do not want to give an answer to the noble Lord’s particular suggestions. All I can say is that, obviously, we are anxious to work with China. It is an important nation in the world’s affairs and its assistance is important economically to the prosperity of the world.
If I can add any more to what I have just briefly said, I will write to the noble Lord, but in any case I will be writing to all those who participated in the particular debate on this issue, because I think that could be useful.
What is the definition of cybercrime? I think it is a very wide one. I ask the question deliberately, because some time ago my charity—which, as I said before, works in 74 different countries—had its website hacked. It was repaired and the following day it was completely destroyed. We suspected that it was destroyed possibly by officials of another nation who did not approve of us giving medical advice to doctors working in that country. I suspect they thought that there might have been some nefarious purpose in it, although in fact it was purely charitable. I would be grateful if my noble friend would give me a definition of cybercrime.
Cybercrime is the use of computers—indeed, I may have it here. I have the Serious and Organised Crime Strategy, which uses the term. Cybercrime is the use of computers and electronic systems to commit a crime. Clearly, what happened to the noble Lord’s charity is a crime, committed extraterritorially. One of the aspects of cybercrime is that it is not globally isolated to particular territories or countries—hence the debates that we have been having on this particular issue. That is why we need to tackle it globally and why we need to be globally active in order to deal with it.
I believe that the clauses in this area are designed specifically to bring the Computer Misuse Act, which is what lies at the bottom of it, up to date, to recognise the threat that can exist from computer crime and particularly nowadays, when electronic use is so much greater than it was in 1990, when the Act was first brought in.
My Lords, I am grateful to the Minister for his explanations and response to the debate and, indeed, grateful to those noble Lords who supported and spoke to my amendment. I am also grateful to the noble Lord for allowing a more wide-ranging discussion, although it may not have been technically correct. I quite like the idea that on the fourth anniversary of my introduction to your Lordships’ House I have created a new form of amendment, as the noble Lord put it.
As the noble Lord said, the question on the definition of cybercrime from the noble Lord, Lord Swinfen, was particularly appropriate. In this debate we have hit the nail on the head of how wide and vast this issue is. At one level we have the very big issues of national security and the resilience of our national infrastructure, which could be attacked by cybercrime. Then there are the issues around business security, with charities and organisations that can be affected by cybercrime. Then we come to the personal, which goes from merely inconvenient to causing misery and tragedy. All those things are encompassed in the term cybercrime.
The noble Lord’s explanation of what the Government are doing was very helpful. I do not see that any of that detracts from my amendment or makes it any less relevant. I remind the noble Lord of the point I made at the beginning: only three police forces—Derbyshire, Lincolnshire and West Midlands—have developed comprehensive cybercrime strategies. Only 15 forces considered cybercrime threats in their strategic threat and risk assessment. I do not doubt that at a national level a lot of work is going on and that it is well funded. However, it seems to me that if the annual report of the police and the police and crime commissioners focused on this issue and identified the work that was being done on it, that would let the public know what is going on and create awareness of this matter. The point made by the noble Lord, Lord Phillips of Sudbury, is absolutely right: this would be a way of monitoring implementation and enforcement. I do not see that anything the Minister said detracts from the usefulness of Amendment 31K.
If I felt that it could be useful, I would take a slightly different approach towards it. I hope that the noble Baroness will read what I said about the efforts being made to ensure that police forces take proper account of this issue. The HMIC report was a wake-up call: it made us realise that, for all the progress we have made in the National Crime Agency and the National Cyber Crime Unit, we also need a local presence on the ground and the involvement of local police forces.
I would like to finish what I am saying. I should just say that the HMIC report drew on evidence gained last summer and in the early autumn. A lot has happened since that time, so I ask the noble Baroness to read what I said in response to her amendment. I think she will be impressed by the amount of progress that has been made.
The noble Lord has referred a second time to the new reporting initiative for police forces and mentioned specifically the City of London police. As it happens, I was with them this very morning, when the initiative to which he referred was discussed. However, resources are a matter of acute concern for every police force in this country. We must go beyond simply saying that the Government have initiated a new plan or a new regime because, as I tried to indicate earlier—the noble Baroness agreed with me—it is absolutely fundamental that we give police forces sufficient resources to enable them to undertake the duties that we lay on them. I hope that my noble friend will take that very much into account.
My Lords, the point the noble Lord makes about police resources is very appropriate. I know how many police officers have been lost since 2010 in my own county of Essex. I am grateful to the Minister for coming back to this point. He described the wonderful things that are being done and how impressed I will be by that. I will read the report and look forward to being impressed. However, my point is that, if the work being done is impressive, why not tell people about it and include it in the annual report? As I have said before, I have been a Minister, albeit in the other place, and I have received notes telling me to resist amendments. However, it seems to me that Amendment 31K simply asks for a commentary in the annual report of the police and crime commissioners or for the police force to say what they are doing in this regard. I think that it would give people confidence as regards this issue.
As I say, I am grateful to the Minister for explaining this range of actions but, if they are so impressive, I see no reason why they cannot be included in the annual report. We may return to this issue. I will read the Minister’s comments and the documents to which he pointed but, for now, I beg leave to withdraw the amendment.
Amendment 31K withdrawn.
Clause 41: Offence of participating in activities of organised crime group
31L: Clause 41, page 32, line 13, after “group” insert “only”
My Lords, I have a number of amendments in this group. The clause deals with a new offence of participating in the activities of an organised crime group. The various amendments in this quite long group seek to unpack, as it were, what all that means.
Amendment 31L would provide that a person participates in the activities of an organised crime group only if he takes an active part in those activities. How involved does somebody really have to be in order to participate, as spelt out in Clause 41(2)? Does he have merely to facilitate an activity or actually enable it? Those are very different matters. The provision concerns helping an organised crime group to carry on the activities in question. One can make it possible for a group to carry on activities or one can make it easier for it to carry on activities. I do not know whether there is a distinction between those in the new offence.
The offence is committed if,
“the person knows or has reasonable cause to suspect”,
that there are criminal activities or that he is helping an organised crime group to carry on those activities. That is not actually suspecting—it is having reasonable cause to suspect.
I am aware of the Government’s range of concerns and the need to create the new offence in order to contain what is within the frame here. The threshold for the offence concerns me. I think we need to hear a defence of such a relatively low threshold. I am aware of course that the noble Baroness would make it even lower; certainly her position is closer to the Government than that in my amendment.
My Amendment 31S questions—perhaps this goes in the other direction—why an organised crime group for this purpose consists of three or more persons. Is there not a crime group that consists of only two people and would not fall within this?
The last of my amendments, before I come back to some general points on the clause, is rather different. Clause 41(8) provides a defence if the,
“person’s participation was necessary for a purpose related to the prevention or detection of crime”.
I wondered, when I read that, whether this was about undercover policing. If it is, are there some distinctions between this offence and other offences? Or is there something particular about this offence that requires a defence to be spelt out specifically in this way? The question of undercover policing is of course a very topical and concerning one.
I raised at Second Reading, as did others, the concerns of the accountancy and legal professions about what their members—I do not mean dodgy accountants and dodgy solicitors, but ones who are perfectly respectable—have to do to ensure that they do not fall foul of these provisions. I think that the Minister has now met both the professional organisations. Perhaps this will be an opportunity for him to report to the Committee what progress has been made. I am picking up that it is good progress but I have not picked up much detail about it yet.
Both professions are highly regulated so perhaps I may say to the noble Baroness, Lady Smith, that her Amendment 31R, which would exclude the regulated sectors, is blindingly obvious and I do not know why I did not think of it. I do not know whether its wording goes in precisely the right direction but it seems a very sensible approach. We debated the Deregulation Bill yesterday and both professions have to do a great deal to comply with all the regulations now in place, not least in connection with money laundering. What level of due diligence they would have to undertake to demonstrate that they could not have had reasonable cause to suspect their clients is not clear to me. I have had the experience of not entirely trusting what a client was telling me. However, when I was a practising solicitor, how far did I have to go actually to cross-question a client and take a position which was not to assist the client but, in effect, to oppose him and doubt what I was being told? That is a difficult and uncomfortable situation. What risk management processes does a firm have to put in place? The Minister will understand that I am talking about burdens such as time, money and all sorts of resources.
The Local Government Association has been in touch with me, as it will have been with other noble Lords, about the position of local authorities as not only housing providers but social landlords. One might well think of examples such as cannabis factories that could fall within this clause. If you let a house to a drug-dealing organisation, what precautions do you have to take to ensure that it is not an illegal organisation undertaking illegal activities? The activities of local authorities cover such matters as alcohol, public entertainment licences and the licensing of taxis. Cleaning services within council offices were also mentioned, as were letting contracts to resurface roads. The list would be extremely long. I am aware that in correspondence before today the noble Lord has mentioned the difficulties—I think that they are difficulties rather than restrictions—of prosecuting a body corporate, such as a housing provider. I hope that he can take this opportunity to explain that position to the Committee and put the matter on record. I beg to move.
My Lords, I have three amendments in this group, Amendments 31N, 31R and 31T, and I have given notice of my intention to oppose the Question that Clause 41 stand part of the Bill to enable a wider general discussion around the issue. On the individual amendments, Amendments 31N and 31R concern a point referred to by the noble Baroness, Lady Hamwee, about the regulated professions. Currently, the standard for the new offence is,
“knows or has reasonable cause to suspect”.
That is deemed by organisations to be too high. The small businessman or sole trader may not have had experience of money laundering. This amendment removes that standard for lay persons and replaces it with “suspect” but keeps it for regulated professions with protections equivalent to those of Section 330 of the Proceeds of Crime Act 2002. Amendment 31T inserts protection from prosecutions similar to the consent regime in the Proceeds of Crime Act 2002 to provide a defence from prosecution where the person has sought consent from the Financial Intelligence Unit to continue with their work.
Clause 41 creates a new offence of participating in the activities of an organised crime group. It will be an offence to participate in an organised crime group’s activities knowing, or having reasonable cause to suspect, that those are criminal activities or that their participation will assist the organised crime group to continue with those criminal activities. The criminal activities can be any offence that is punishable by a prison term of seven years or more. The clause seeks to reach all of those who are engaged in criminal operations, including those whose specific role may itself be legitimate and appear legitimate, if they are actively supporting or benefiting from criminal activity.
Many criminal gangs include corrupt and complicit professionals who use their professional expertise and skills to evade the law. At Second Reading, I referred to this as being the “Al Capone” clause. I remind noble Lords that Al Capone was never convicted of crimes related to the worst aspects of his criminal empire. He was convicted of tax evasion. I have since been told that I am getting old and that my reference is dated. I should in fact have referred to a spin-off from the series “Breaking Bad” which stars a dodgy lawyer in the title role. The programme is called “Better Call Saul”. To prove that I am with it and up to date, I use a new reference at which the noble Lord is shaking his head in despair.
Cultural references aside, as I said at Second Reading, the activities of serious and organised crime gangs today are evil. They exploit the weak, the poor and the vulnerable. Whether they engage in drug trafficking, people trafficking into slavery and prostitution, organised illegal immigration, or extreme and violent pornography, the human misery caused by such gangs is limitless. It defies our imagination. They are also engaged in money laundering as a way of hiding the rewards of criminal activity. If we are really serious about tackling such evils, we must agree that the law should be able to reach all those who are involved in and benefit from such criminal activity.
Of course there has to be duty on any individual or organisation to take reasonable steps to assure themselves that their business dealings are legitimate and anyone who knowingly profits from criminal activities should be held legally accountable for their actions. We have given notice of our intention to oppose the clause standing part of the Bill. I stress that it is not because we oppose the clause—we do not—but because we want to seek some assurances from the Minister about the way it will work in practice. Some points are similar to those made by the noble Baroness, Lady Hamwee, and some are points that I raised in general at Second Reading.
We have discussed the clause and received representations and briefings, as have other noble Lords, from professional organisations whose members could be affected. I want to make it clear that in all cases, despite concerns they have raised about the wording of the legislation, they are very clear that any professional engaged in criminal activity brings their profession into disrepute and should face the full legal and professional consequences of their actions. There is no doubt about that. I am clear that they share the same commitment to ensuring that those who break the law should face the consequences. It is worth commenting that in addressing such issues I hope the Minister and his colleagues will want to work with the professional associations of those professions that could be affected to ensure that we get the legislation right. If he is able to say anything about the discussions and meetings he is having with those professions, it would be helpful. We want the legislation to be accurate and watertight. My experience is that no respectable professional organisation wants to see criminals within its ranks and they share the desire of the Government to work with the authorities to root out and deal with rogue professionals.
I now move on to something that is slightly an aside, but it is an issue that we have dealt with before. Like other noble Lords, I was surprised and disappointed not to see it tackled in the Bill. It concerns greater regulation and licensing of the private security industry. I am not going to labour the point. The Minister is smiling at me. He knows of my interest in and concerns about this issue. But this is a sad example of professionals wanting to work with the Government to seek better regulation of their industry and prevent bad behaviour and even criminality, yet the Government have failed to act in that area. The professionals I have met are clear that they share the Government’s objectives but they have concerns about whether the clause is needed and whether there might be unintended consequences. I will put on the record some of the concerns and hope that the Minister will be able to respond.
The Institute of Chartered Accountants in England and Wales does not consider that the clause is necessary. Developing the point made by the noble Baroness, Lady Hamwee, professionals within the regulated sector are required to undergo anti money-laundering—AML—training. They have legal responsibilities already under the Proceeds of Crime Act and the Money Laundering Regulations, including a duty to make suspicious activity reports to the Financial Intelligence Unit upon knowing of or suspecting any money-laundering. But there is currently no such requirement on an enterprising individual who sets up their own business outside the regulated sector and who may have no concept or proper understanding of what due diligence really means when entering into business relationships, despite the best intentions they may have.
The Institute of Chartered Accountants says that the clause as drafted would be too onerous on such individuals and could have the effect of criminalising a negligent or simply naive provider of goods or services when they are doing nothing wrong—just trying to earn a living—but the due diligence would be very onerous on them. The institute has suggested the amendments we have tabled. I cannot claim credit for thinking them up myself, as the noble Baroness, Lady Hamwee, suggested. I am grateful to the institute for its advice. The amendments retain the current objective standard of proof for regulated professionals but replace it for lay persons. It would be helpful if the Minister could respond to that point.
The duty on regulated professionals under the Proceeds of Crime Act to make reports of suspicious activity provides valuable intelligence for law enforcement agencies, giving them information on crime in action as well as past criminal activity. It also provides the person reporting the activity with defence from prosecution where they have sought consent from the Financial Intelligence Unit to continue with the work. Although that defence exists under the Proceeds of Crime Act, it is not present in Clause 41. My concern is that that could deter a professional who, having already started working for a client, realises or suspects that something is suspicious but, in reporting it, may fear being caught by the provisions of this Bill because it does not have the same defence mechanisms as the Proceeds of Crime Act, where reporting it provides a defence from prosecution.
In addition, the concept of assisting an organised criminal gang to carry on criminal activities is potentially problematic. The Law Society has pointed out that it is not clear under the offence,
“how far an individual must go to satisfy themselves that whatever service they are providing is not assisting criminal activities down the line somewhere. Certain criminal activities, such as drug trafficking, are more easily identifiable in some circumstances, e.g. a client may not be able to provide any evidence of legitimate income. Fraud and other financial offending, however, are not as easy to identify. It is not clear from the draft Bill what level of due diligence a solicitor would need to carry out to ensure that they could not be said to have turned a blind eye to criminal activity”.
Amendment 31T extends the application of Section 328 of the Proceeds of Crime Act to offences under this clause.
Returning to the question we raised at Second Reading as to who would be covered by the Bill, the Law Society says in its briefing that although the,
“Home Office wishes to target so-called ‘professional enablers’ with this new offence … the legislation is drafted so widely that it would capture far more people”.
I raised this point at Second Reading; the noble Baroness, Lady Hamwee, has raised it today. I declare an interest as another of the vice-presidents in your Lordships’ House of the Local Government Association.
As Second Reading, my specific question was whether local authorities—I also included social housing providers and private landlords—could be caught by these provisions. The example I used was a drug dealer illegally using a rented property that a local authority, housing association or private landlord had rented in good faith. If that activity is reported to the landlord or the authority and no action is taken to remove the tenant, I asked whether there could be a case for action against the landlord if it could be argued they knew or had reason to suspect that criminality was taking place.
I am grateful to the Minister, who responded to me about this in a letter and confirmed, if I understood him correctly, that the provisions could apply to these particular groups, but that reasonable cause to suspect would have to be firmly grounded on specific facts. That is helpful, and it would also be helpful if he was able to repeat on the record, for the clarification of your Lordships' House, some of the points he made in his letter.
However, the issue goes wider, and again I am grateful to the noble Baroness, Lady Hamwee, on this. The Local Government Association has sent noble Lords specific examples of where it is concerned about, or wants clarification on, whether or not an offence could be committed. One which the noble Lord might comment on again relates to organised crime gangs in cases where the council tenders for contracts to repair potholes and resurface roads. It may be that it carries out no background checks on the individuals and companies tendering for the contract and then awards the contract to the lowest bidder—particularly if it is under financial pressure, it may not do the checks one might expect it to do. It turns out that the company is run by a member of an organised crime gang and they are using that as a legitimate business in order to launder money gained from crime: it is actually a money-laundering exercise for the proceeds of crime. Would the local authority—or any individual who employed such people—be liable for prosecution? It may be that it would, but clarity is needed from the Minister as to the likelihood of such a thing happening—whether, under a strict application of the law, it would be liable.
Finally, I have a question about burdens on businesses. The impact assessment says there is no additional cost for businesses. However, when I spoke to the Law Society and the Institute of Chartered Accountants in England and Wales, it told me that the extra diligence requirement would mean firms having to put in place structures and processes to cope with the additional level of risk that has to be addressed, and that would place administrative burdens on firms, leading to greater costs in terms of time, money and resources. What assessment was undertaken in the impact assessment to reach the conclusion that there would be no additional costs on businesses? All the briefings and discussions we have had with organisations indicate that there would be additional burdens on businesses. Therefore, I cannot understand why it is considered that there will be no extra costs.
The solicitors said that they already carry out anti money-laundering, due diligence and risk management procedures. Criminal activity under this clause is far wider than just money-laundering, and the compensatory processes might not be adequate to avoid a Clause 41 allegation, particularly if you take into account the issue I have already referred to, Section 328 of the Proceeds of Crime Act. Therefore, it seems likely and to be expected, given that there is no defence—as there is in the Proceeds of Crime Act—that there would have to be different structures and administrative checking processes in place to deal with the additional risk. That would inevitably involve some additional cost. It would therefore be helpful to know from the Minister why the Government consider that there would be no extra costs.
The Government are rightly seeking to deal with the problem of professional enablers. We need to ensure that the defence works in practice, and helps to solve the problem, rather than sweeping up in its wake those who are innocent of any wrongdoing. Neither do we want to deter individuals who have information that would be helpful to the authorities in tackling crime from passing that information on because they fear prosecution.
I appreciate that I have raised a number of issues with the Minister, and I hope that he will commit to giving further consideration to these issues: not to the principle—I am not asking him to concede the principle at all—but in order to make sure that this works. If there is some merit to the concerns that have been raised, can he address them and perhaps bring something back at the next stage of the Bill?
My Lords, as the noble Baroness, Lady Smith of Basildon, said, Clause 41 creates a new offence of participating in the activities of an organised crime group. I am pleased that she and my noble friend Lady Hamwee welcomed the general principles that underline this measure.
I think that we would all accept that, for far too long, many of those who take part in organised crime have been able to remain out of the reach of law enforcement. As we set out in the Serious and Organised Crime Strategy in October 2013, we are committed to doing everything we can to pursue them. The new participation offence complements the existing offence of conspiracy, which is central to the majority of law enforcement investigations into organised crime and will remain so. As noble Lords will be aware, conspiracy is used to prosecute two or more individuals who have agreed to commit an offence where the agreement can be evidenced and where the individuals intended the offence to be committed or knew that it would be.
In practice, there are a range of players in many criminal enterprises. “Conspiracy” is used to target the major players who commit the offence or who are fully aware of it and their contribution to it. The participation offence will ensure that there is an appropriate and proportionate sanction for those others who “oil the wheels” of organised crime, who deliberately ask no questions and who then rely on the defence that they were not part of the overarching conspiracy.
The participation offence is therefore complementary to “conspiracy” and can form the second tier of such an investigation. It will be triable only on indictment, with a maximum sentence of five years’ imprisonment. It will ensure that we can prosecute effectively the full spectrum of those engaged in organised crime.
Perhaps I may turn to the anxieties which noble Lords expressed about the way in which we have constructed the clause. Both the noble Baroness, Lady Smith, and my noble friend Lady Hamwee pointed to a number of concerns about the offence that have been raised by both the Law Society and the Institute of Chartered Accountants in England and Wales. As was pointed out, I had said that I hoped to meet those organisations and, since Second Reading, I have been able to meet representatives of both. We had positive and useful discussions about a number of issues. I am pleased to say that those discussions are continuing with officials at the Home Office; we see this as a continuing dialogue.
One of the concerns raised was that the participation offence risks extending the reach of the criminal law too far, and as a result capturing the naive or unwitting; or catching individuals where the “facts” seem more firmly grounded with hindsight than they might have done at the time; or creating anxiety among people that they might inadvertently be captured by the offence. There is a tension between defining an offence that addresses the broad range of activity that sustains organised crime and avoiding inadvertently capturing activities innocently carried out. Noble Lords have pointed to that in their contributions. I believe that Clause 41 gets this balance broadly right.
First, the offence requires a person to have actively participated in or facilitated the criminal activity in some way. To which end, I understand why my noble friend proposed Amendment 31M, which would insert text to emphasise this point. However, it may exclude the possibility that an omission or failure to act would be captured by the offence if it were both deliberate and arose for the purposes of furthering the criminal activities of an organised crime group.
Secondly, an organised crime group must consist of at least three persons. Amendment 31S would seek to remove this stipulation, but I put it to my noble friend that this definition reflects the definition set out in the United Nations Convention Against Transnational Organised Crime. Thirdly, the group must be committing offences carrying a sentence of seven years’ imprisonment or more. This threshold was adopted to catch typical organised crime group activities—for example, blackmail, trafficking in class A or class B drugs, people trafficking, assisting unlawful immigration fraud and theft.
Finally, the effect of subsection (2) of Clause 41 is to define the circumstances in which a person could be considered to be participating in an organised crime group in support of the offence outlined in subsection (1) of the clause. The definition has been drawn so as to capture those persons who know, or have reasonable cause to suspect, that their activities are criminal activities of an organised crime group or will help an organised crime group to carry on such activities. A “reasonable cause to suspect” must be firmly targeted on specific facts, and it will of course have to be proved by the prosecution beyond all reasonable doubt.
My noble friend Lady Hamwee highlighted the concern that local authorities could be unwittingly caught by the same offence. However, it is possible to envisage a number of scenarios where this offence could be of significant benefit to local authorities—or, indeed, banks or other businesses, since it goes beyond the professions. It would provide an appropriate and robust sanction against corrupt insiders: for example, where a bank employee steals customer data and supplies it to organised criminals; or where a local council employee receives corrupt payments to facilitate organised crime.
It is also worth repeating that for the participation offence to be committed, a person must have had reasonable cause to suspect, firmly grounded and targeted on facts, as I have said. If those facts are present, the granting of licences, for example, should not happen. Licences should not be granted if there is reasonable cause to suspect, or knowledge. Any prosecution would also need to prove that the person actively participated in or facilitated the criminal activity in some way. That test may not be met in the letting of contracts for the provision of services to a local authority. As a further safeguard, the Crown Prosecution Service must be satisfied that any prosecution would be in the public interest. I want to take this up further with the Local Government Association because I think that some of its anxieties are unfounded, but I want to be certain that we are reading this correctly in this respect.
I am grateful to the noble Lord. That is very helpful. I have just two questions. First, may I give him the list that the LGA provided to me and ask him to comment on it in writing to noble Lords? That would be helpful. Secondly, in the case that he mentioned of offences where somebody within an organisation is passing information or money out to an organised crime gang, would they not be offences already; or does this create a new offence, or just greater penalties? I would have thought that those kinds of activities would be offences already, perhaps under conspiracy.
Yes, they could be if they were seen as integral to the conspiracy. However, the whole concept of a participatory offence is the arm’s-length connection that there sometimes has been, which has made conspiracy an aspect of the law that is not particularly easy to use. By creating a participatory offence, we would make those connections with criminality that much easier to establish and, indeed, would cut off the support that organised crime groups have frequently had from insiders who have provided them with assistance. As I said, I hope to talk to the Local Government Association about its anxieties. I would be grateful if the noble Baroness let me have a copy of the particular things that she was concerned about and I will do my best to answer them in correspondence. I will make sure that other noble Lords and the Library are made aware of that, too.
Before the Minister sits down, I should say that I did not speak earlier in the debate because my noble friend Lady Smith said everything I wanted to. Could the Minister develop his response a little to one very important point that she made? It was on the question of due diligence. There is a serious anxiety among professional people that it will be very difficult for them to demonstrate that they performed the due diligence that would clear them from any charge that they knew or had reasonable cause to suspect that their clients were engaged in organised crime. It would be helpful if the Minister gave us some illustration of the kind of due diligence that would be satisfactory and pass that test. Obviously, if people do not have cause to suspect, then proceed to provide the professional service to their client and so participate, how can they be confident that they will not be caught under Clause 41 in this regard?
I do not want to prolong this. In fact, I still have quite a lot to say on these amendments. I was not about to sit down at all. Indeed, I really ought to carry on or noble Lords will grumble that the Minister is taking too long to reply. However, I think I can address these issues.
The noble Baroness, Lady Smith, asked me if I could elaborate a little on things I already said in correspondence to her, for the benefit of noble Lords, so I will just give some description. A person commits a participation offence if they take part in activities where they know or have reasonable cause to suspect that they are criminal activities of an organised crime group or where it would help an organised crime group. That must be firmly grounded. Although it would be for the jury to decide whether the threshold had been met in the circumstances of a particular case, the prosecution would need to prove that, for example, a landlord’s activity—the noble Baroness asked about this—participated in or facilitated criminality in some way. As a further safeguard, the Crown Prosecution Service must be satisfied that it is in the public interest.
Amendments 31L and 31Q seek to make other modifications to the scope of the offence. I understand my noble friend’s intention with these amendments and hope she will agree with me that these amendments would not materially change the effect of the provision. The main issue lies in the threshold—the mens rea, as lawyers would say—for the offence.
I listened carefully to my noble friend’s arguments and those set out by the noble Baroness, Lady Smith, that further consideration should be given to ensure that the participation offence does not capture the unwitting or naive. I also acknowledge that many situations look different with hindsight. What to a jury considering a case after the event will be a whole series of red warning signs clearly indicating organised criminal activity might have not appeared to be anything of the kind to the defendant at the time the events actually took place.
I understand the problem of definition of mens rea. However, the threshold or mens rea of belief provided for in Amendment 31P may be said to be the state of mind of a person who says to himself, “I cannot say I know for certain that the circumstances exist but there can be no other reasonable conclusion in the light of all that I have heard and seen”. Quite honestly, this is a very high threshold, which would remove much of the utility of the offence, which we are not in a position to accept.
There are some 36,600 members of organised crime groups involved in drug trafficking, human trafficking, organised illegal immigration, firearms offences, fraud, child sexual exploitation and cybercrime, and then there are the professional and non- professional enablers who help organised crime. A threshold of “believe” will set the bar too high and will not change the way these people operate or deter them from helping an organised crime group. However, a balance must be struck and, in the light of this debate, I am persuaded that we should give further consideration to ensuring that the mens rea is such that it does not capture the naive or unwitting.
I also acknowledge the points made in questioning the need for a general defence to the participation offence as well as the desire of the noble Baroness, Lady Smith, to have defences specific to the regulated sector, which is the nub of Amendment 31R. It is important that there is no anxiety among people, including in the regulated sector, that they might be inadvertently captured by the participation offence. It is therefore right to consider, alongside the level of the mens rea, the need for a defence, but bearing in mind that if one is needed it needs to take into account that the participation offence will apply to professionals and non-professionals alike. We need to have this captured within the mens rea and the defence which should be all-embracing for the regulated and non-regulated sectors.
Amendment 31U seeks to remove the defence in Clause 41(8). This defence is required to protect, for example, undercover police officers who are participating in the activities of an organised crime group for the purposes of frustrating those activities or collecting sufficient evidence to bring the perpetrators to justice. The use of undercover officers will still need senior level authorisation and the police and others will have to demonstrate that the use of the officer is necessary and proportionate. There are a number of precedents for such defences in other statutes, including in respect of the offences in the Bribery Act 2010 and the offences in respect of indecent images of children in the Protection of Children Act 1978.
I will make some points on the particular concern, in Amendment 31T, that someone who has received consent in the submission of a suspicious activity report should not be prosecuted for the participation offence. As it stands, the clause would leave the decision to prosecute the participation offence under these circumstances to the discretion of the Crown Prosecution Service. It would be disproportionate to import the suspicious activity reporting regime for the participation offence when it is most unlikely that it would be in the public interest to prosecute someone in these circumstances; such a prosecution might even constitute an abuse of process. There is also the practical reason that the defence under Section 328 of the Proceeds of Crime Act is only in respect of entering into an arrangement which facilitates money-laundering; if there is evidence of actions constituting part of a wider programme of criminality, this should still be investigated and, if appropriate, prosecuted.
The noble Baroness, Lady Smith, also asked to what extent people must satisfy themselves that there is no wrongdoing. This is part of the question of due diligence raised by the noble Lord, Lord Howarth. The offence will address those who have reasonable cause to suspect or know they are assisting organised crime. It does not require people to carry out additional due diligence. It is for this reason that we do not consider that there will be additional costs for business. There is a much closer relationship between people’s actions in a professional, business or commercial occupation carrying out their trade than in some of the more sophisticated checks that have to be undertaken by professionals concerned with other legislation.
On the other hand, the regime that the Government are creating through this legislation must not be too easygoing because we face extensive problems of money laundering and participation in other offences. It must be the case that across the country there are professional people who are facilitating organised criminals to launder their money and transfer the proceeds of their crime out of the illegal economy into the legal economy. The Minister is walking a tightrope. I asked him earlier not to lay unreasonable burdens on professional people to demonstrate their innocence. On the other hand, the system has to be tough enough to make an impact on the problem that we suffer from as things are.
Right at the beginning of my speech, I talked about balance. I said that I thought we have got the balance in Clause 41 just about right. We do not want to upset the balance. We want to reassure people, particularly the professional groups that have been to see us and the Local Government Association, that that balance can be made to work for them. If it means that we come back on Report with some ideas on that, I am sure the House will welcome them because generally the House understands exactly where the Government are on this issue. Even though probing questions have been asked by my noble friend and the noble Lord and the noble Baroness, I understand that underlying them is their support for this participation offence and that they want to make it work.
I want to raise a point on Amendment 31T. The Minister rejected the idea of a defence if a potential offence is suspected and reported. For example, under the Proceeds of Crime Act, a potential offence can be reported to the financial investigation unit. That is a defence, but not a guarantee, against prosecution. My concern is that one of the reasons that that defence is in the legislation is so that those who uncover what they believe may be illegal activity are not deterred from reporting it to the relevant authority. It is very useful information. Has the Minister considered whether it will have a deterrent effect if somebody working for somebody discovers some way down the line that there may be criminal activity? Does he consider that they may fear reporting it if there is no defence for them to be gained by reporting it? When the Minister meets the professional associations concerned, will he discuss the processes by which they will establish due diligence to see whether there are any additional costs involved that they can outline to him?
Our discussions went into that area. We discussed how these matters would be considered by them. The noble Baroness will appreciate that as we want to encourage people to report suspicions as soon as they have grounds to suspect, even more so if they know, they should have every incentive to report the matter. However, one would not want to create a general defence that would enable somebody to have, in effect, a “get out of jail free” card so that when things got a bit hot, they were automatically able to create immunity for themselves against prosecution. I am not convinced by the argument that where we are is wrong. We want to talk to professional organisations because we see how important it is to have them on side in the fight against crime. I know from what they have said to us that they are approaching this issue in exactly that way. They want to make sure that their professions are supportive in the fight against crime, and that any within their professions who are not pursuing that objective but are assisting crime are punished.
The noble Baroness teased me about the Security Industry Association; I know this because I was with the noble Baroness, Lady Henig, going home on the bus last night. I can say only that I am working to achieve what I think the House would support on this, but it is a little removed from the general subject of the Bill.
This has been a good debate. I will reflect on the points that have been raised because I consider them to be of high value, particularly on the potential for the new offence to capture the unwitting or naive participant and on the need for a defence to address the concern that people might inadvertently be captured by the offence, particularly when acting in the normal course of their business. I will therefore reflect further on whether the offence as drafted achieves the desired result on these points and return to the House on Report. While I can give no undertaking at this stage to bring forward government amendments on Report—noble Lords would not expect me to—we will, in particular, examine further Amendment 31N and the case for a defence when somebody is acting reasonably.
Equally, I trust that noble Lords will also reflect on the comments that I have made in responding to the other amendments in this group. I assure noble Lords that we will continue to work with the professional bodies for the legal and accountancy professions as the Bill makes further progress.
I am confident that the participation offence will give law enforcement agencies a new and powerful tool to target those who oil the wheels of organised crime, and put relentless pressure on a greater proportion of the 5,300 organised crime groups operating in this country and, in doing so, identify those who help them. On that basis, I invite my noble friend to withdraw her Amendment 31L and urge the Committee to support Clause 41 in the knowledge that we will come back to these issues in the autumn.
My Lords, of course I will reflect, but I think that I will add a couple of things to my noble friend’s list between now and Report. I am of course pleased to hear what he says about the work with the Local Government Association. I think the noble Baroness, Lady Smith, was suggesting that I was a vice-president of the LGA, as she is. Some time ago, I was chucked out on the basis that I had been a vice-president for too long. I do not know quite what that says about anything, but I am not a vice-president. I was, however, practising as a solicitor and am still on the roll; perhaps I should have said that, but I think it has been clear.
My noble friend used a phrase like “giving an incentive to report when one is suspicious”. That has to be seen in the context of a client relationship. That is not easy. My noble friend has talked about balance but it is not a two-way balance; there are a lot of factors in it.
Clause 41(8) provides that it is,
“a defence for a person charged with an offence under this section to prove that the person’s participation was necessary for a purpose related to the prevention or detection of crime”.
It would be helpful if that had been drafted in a way to refer one—with a “subject to”, for instance—to the provisions which make it necessary for authorisation for the undercover policing to take place. I do not know whether I can put that thought into my noble friend’s mind.
Finally, the Minister suggested that the terms “help” and “enable” are synonymous, but I do not think they are. To help means to assist—to make something easier, while to enable means to make it possible. They are not the same, which is one issue within all this that I would like to reflect on further and maybe come back to at the next stage. However, I have no doubt that my noble friend, in his usual generous way, will want to discuss some of that before we get to that stage. It is clearly a matter of considerable concern around the House that we get the clause right. No one is opposing it, but we want to make it workable, and supported by all those who may be affected. I am grateful for the detail of the response, and I beg leave to withdraw the amendment.
Amendment 31L withdrawn.
Amendments 31M to 31U not moved.
Clause 41 agreed.
Clause 42 agreed.
Schedule 1: Amendments of Serious Crime Act 2007: Scotland
31V: Schedule 1, page 57, line 30, at end insert “; or
(b) in addition to an order discharging the person absolutely.”
My Lords, these amendments make further amendments to Part 1 of the Serious Crime Act 2007 as a consequence of extending serious crime prevention orders to Scotland.
The most substantive amendment in this group is Amendment 31Z, which inserts proposed new Section 27A into the 2007 Act. Sections 27 to 29 of the 2007 Act already make provision for the winding up of companies, partnerships and other bodies corporate where they have been the subject of a serious crime prevention order and are then convicted of a breach of that order under Section 25 of the 2007 Act. Hitherto, all SCPOs have been made against individuals rather than bodies corporate, but it is important that the legislation continues to provide for the possibility of an SCPO being made against a company or other commercial enterprise.
Proposed new Section 27A of the 2007 Act makes bespoke provision for the winding up of companies or other relevant bodies and dissolution of partnerships in Scotland. As now, the test of the winding up of a company or other relevant body or dissolution of a partnership will be that it has been convicted of the offence of breaching a serious crime prevention order and Scottish Ministers consider that it would be in the public interest for the company—or, as the case may be, relevant body—to be wound up or the partnership to be dissolved. Amendment 31Z effectively completes the provisions in Schedule 1, ensuring that all elements of Part 1 of the 2007 Act are extended to Scotland.
Amendment 31AA is in response to the helpful comments made by the noble and learned Lord, Lord Hope of Craighead, at Second Reading. In his comments, the noble and learned Lord correctly identified that new Section 36A of the 2007 Act, as inserted by paragraph 23 of Schedule 1, went wider than the England and Wales equivalent in Section 36 of the 2007 Act. As drafted, new Section 36A provides that in any proceedings before the High Court of Justiciary or the sheriff in relation to serious crime prevention orders, the civil standard of proof is to apply. Amendment 31AA clarifies that the civil standard of proof applies where the High Court of Justiciary or the sheriff, when sitting in a criminal capacity, are considering the making of an SCPO on conviction, or the variation of an order made on conviction, or the variation or replacement of an order following a conviction for breach. The criminal standard of proof would naturally apply, as now, to criminal proceedings in relation to the offence of breach of an SCPO. I am most grateful to the noble and learned Lord for highlighting the need for this amendment.
The other amendments in this group are minor technical or drafting amendments. I beg to move.
Amendment 31V agreed.
Amendments 31W to 31Z
31W: Schedule 1, page 58, line 12, at end insert “; or
(b) in addition to an order discharging the person absolutely.”
31X: Schedule 1, page 58, line 43, at end insert “; or
(b) in addition to an order discharging the person absolutely.”
31Y: Schedule 1, page 59, line 33, leave out “Scottish Ministers” and insert “Lord Advocate”
31Z: Schedule 1, page 60, line 17, at end insert—
“After section 27 insert—
“27A Powers to wind up companies etc: Scotland
(1) The Scottish Ministers may present a petition to the court for the winding up of a company or relevant body, or the dissolution of a partnership, if—
(a) the company, relevant body or partnership has been convicted of an offence under section 25 in relation to a serious crime prevention order; and(b) the Scottish Ministers consider that it would be in the public interest for the company or (as the case may be) relevant body to be wound up or the partnership to be dissolved.(2) The Insolvency Act 1986 applies in relation to—
(a) a petition under this section for the winding up of a company; and(b) the company’s winding up;as it applies in relation to a petition under section 124A of the Act of 1986 for the winding up of a company and the company’s winding up (winding up on grounds of public interest) but subject to the modifications in subsections (3) and (4).(3) Section 124(4)(b) of the Act of 1986 (application for winding up) applies in relation to a petition under this section as if it permits the petition to be presented by the Scottish Ministers.
(4) The court may make an order under section 125 of the Act of 1986 (powers of court on hearing of petition) to wind up the company only if—
(a) the company has been convicted of an offence under section 25 in relation to a serious crime prevention order; and(b) the court considers that it is just and equitable for the company to be wound up.(5) Where a petition is made to the court under this section for the dissolution of a partnership, the court may make an order to dissolve the partnership only if—
(a) the partnership has been convicted of an offence under section 25 in relation to a serious crime prevention order; and(b) the court considers that it is just and equitable for the partnership to be dissolved.(6) Where the court makes an order to dissolve a partnership under this section, the Partnership Act 1890 applies in respect of the dissolution as if it were a dissolution under section 35 of that Act.
(7) The appropriate Minister may by order provide for the Act of 1986 to apply, with such modifications as that person considers appropriate, in relation to a petition under this section for the winding up of a relevant body and the relevant body’s winding up.
(8) An order made by virtue of subsection (7) must ensure that the court may make an order to wind up the relevant body only if—
(a) the relevant body has been convicted of an offence under section 25 in relation to a serious crime prevention order; and(b) the court considers that it is just and equitable for the relevant body to be wound up. (9) No petition may be presented, or order to wind up or dissolve made, by virtue of this section if—
(a) an appeal against conviction for the offence concerned has been made and not finally determined; or(b) the period during which such an appeal may be made has not expired.(10) No petition may be presented, or order to wind up or dissolve made, by virtue of this section if—
(a) the company or relevant body is already being wound up by the court, or(b) the partnership is already being dissolved by the court.(11) In deciding for the purposes of subsection (9) whether an appeal is finally determined or whether the period during which an appeal may be made has expired, any power to appeal out of time is to be ignored.
(12) In this section—
“appropriate Minister” means—(a) in relation to a relevant body falling within paragraphs (a) to (c) of the definition of “relevant body” below, the Treasury; and(b) in relation to any other relevant body, the Scottish Ministers;“company” means—(a) a company registered under the Companies Act 2006 in Scotland, or(b) an unregistered company within the meaning of Part 5 of the Insolvency Act 1986 (see section 220 of that Act),but does not include a relevant body;“the court”, in relation to a company, means a court in Scotland having jurisdiction to wind up the company;“partnership” does not include a relevant body; and“relevant body” means—(a) a building society (within the meaning of the Building Societies Act 1986);(b) an incorporated friendly society (within the meaning of the Friendly Societies Act 1992);(c) a registered society within the meaning of the Co-operative and Community Benefit Societies Act 2014;(d) a limited liability partnership; or(e) such other description of person as may be specified by order made by the Scottish Ministers;and the references to sections 124 to 125 of the Insolvency Act 1986 include references to those sections as applied by section 221(1) of that Act (unregistered companies).”(1) Section 29 (powers to wind up: supplementary) is amended as follows.
(2) After subsection (1) insert—
“(1ZA) The Scottish Ministers may by order make such modifications as they consider appropriate to the application of the Insolvency Act 1986 by virtue of section 27A(2).”
(3) In subsection (2)—
(a) after “subsection (1)” insert “, (1ZA)”;(b) after “section 27(3) and (4)” insert “, 27A(3) and (4)”.(4) After subsection (3) insert—
“(3ZA) The Scottish Ministers may by order make such consequential or supplementary provision, applying with or without modifications any provision made by or under an enactment including an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament, as they consider appropriate in connection with section 27A(2) to (4).”
(5) In subsection (4)—
(a) after “section 27(5) or (6)” insert “, 27A(7)”;(b) after “subsection (1)” insert “, (1ZA)”;(c) after “enactment” insert “including, in the case of an order made by virtue of section 27A(7) or subsection (1ZA) above, an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament.””
Amendments 31W to 31Z agreed.
Amendments 31AA to 31AC
31AA: Schedule 1, page 60, leave out lines 32 to 34 and insert—
“(1) Proceedings before the High Court of Justiciary (the “High Court”) or the sheriff arising by virtue of section 22A, 22B, 22C or 22E are civil proceedings.
(2) One consequence of this is that the standard of proof to be applied by the High Court or (as the case may be) the sheriff in such proceedings is the civil standard of proof.
(3) Two other consequences of this are that the High Court or (as the case may be) the sheriff—
(a) is not restricted to considering evidence that would have been admissible in the criminal proceedings in which the person concerned was convicted; and(b) may adjourn any proceedings in relation to a serious crime prevention order even after sentencing the person concerned.(4) Despite subsection (1), an Act of Adjournal under section 305 of the Criminal Procedure (Scotland) Act 1995 (Acts of Adjournal) may be made in relation to proceedings before the High Court or the sheriff arising by virtue of section 22A, 22B, 22C or 22E.
(5) A serious crime prevention order may be made as mentioned in section 22A(6)(b) in spite of anything in sections 246 and 247 of the Criminal Procedure (Scotland) Act 1995 (which relate to orders discharging a person absolutely and their effect).
(6) A variation of a serious crime prevention order may be made as mentioned in section 22B(4)(b), or (as the case may be) a variation of or a new serious crime prevention order may be made as mentioned in section 22C(4)(b), in spite of anything in sections 246 and 247 of the Criminal Procedure (Scotland) Act 1995.”
31AB: Schedule 1, page 61, line 25, at end insert—
“( ) in subsection (6)—(i) for “statutory instrument” substitute “the Secretary of State or the Treasury”;(ii) after “27(6) or (12),” insert “, 27A(7)”;”
31AC: Schedule 1, page 61, line 29, at end insert “, 27A(7) or (12), 29(1ZA) or (3ZA)”
Amendments 31AA to 31AC agreed.
Schedule 1, as amended, agreed.
Clauses 43 and 44 agreed.
Clause 45: Extension of order where person charged
31AD: Clause 45, page 35, line 36, after “22A” insert “or 22C”
Amendment 31AD agreed.
Clause 45, as amended, agreed.
Clause 46 agreed.
32: Before Clause 47, insert the following new Clause—
“Dissuasion Panels to prevent gang-related violence and drug-dealing activity
(1) A police officer may refer a person aged 14 or over to a Dissuasion Panel under this section if the following two conditions are met.
(2) The first condition is that the officer is satisfied on the balance of probabilities that the person has engaged in or has encouraged or assisted—
(a) gang-related violence; or(b) gang-related drug-dealing activity.(3) The second condition is that the officer thinks it is necessary to make the referral for any of the following purposes—
(a) to prevent the person from engaging in, or encouraging or assisting, gang-related violence or gang-related drug-dealing activity;(b) to protect the person from gang-related violence or gang-related drug-dealing activity;(c) to determine whether the person is drug dependent and may benefit from drug treatment.(4) A Dissuasion Panel must be comprised of at least three people from the following backgrounds, with preference given to professionals with prior knowledge of the individual—
(a) medical, including mental health;(b) social work;(c) legal;(d) any other profession that the court believes will be useful and as it directs.(5) The Dissuasion Panel will—
(a) assess the individual’s personal circumstances,(b) consider whether these have impacted on the activities at subsection (2), and(c) determine whether interventions are needed to—(i) prevent the person from engaging in, or encouraging or assisting, gang-related violence or gang-related drug-dealing activity;(ii) protect the person from gang-related violence or gang-related drug-dealing activity;(iii) address drug dependency.(6) Following assessment of a person by a Dissuasion Panel under this section, the Panel may—
(a) make no further intervention; or(b) require the respondent to do something which they reasonably believe will—(i) prevent the person from engaging in, or encouraging or assisting, gang-related violence or gang-related drug-dealing activity;(ii) protect the person from gang-related violence or gang-related drug-dealing activity;(iii) address drug dependency.(7) Requirements may include, but are not limited to—
(a) treatment for those who are drug dependent;(b) counselling;(c) education;(d) training;(e) reporting to the Panel for review.(8) If the person does not agree to the proposed requirements they will be referred to court for alternative action under section 34 of the Policing and Crime Act 2009, as introduced by section 47 of the Serious Crime Act 2014.
(9) At any review by the Dissuasion Panel, the Panel may—
(a) permit the contract to continue with its current terms;(b) vary the contract by—(i) adding a requirement; (ii) removing an existing requirement;(iii) amending an existing requirement;(c) cancel the contract and refer the person to court for alternative action under section 34 of the Policing and Crime Act 2009, as introduced by section 47 of the Serious Crime Act 2014.(10) If the person breaches the contract, he or she will initially be referred back to the Dissuasion Panel who may—
(a) permit the contract to continue with its current terms;(b) vary the contract by—(i) adding a requirement;(ii) remove an existing requirement;(iii) amending an existing requirement;(c) cancel the contract and refer the individual to court for alternative action under section 34 of the Policing and Crime Act 2009 as introduced by section 47 of the Serious Crime Act 2014.(11) For the purposes of this section, something is “gang-related” if it occurs in the course of, or is otherwise related to, the activities of a group that—
(a) consists of at least three people, and(b) has one or more characteristics that enable its members to be identified by others as a group.(12) In this section “violence” includes a threat of violence.
(13) In this Part “drug-dealing activity” means the unlawful production, supply, importation or exportation of a controlled drug.
(14) “Production”, “supply” and “controlled drug” have the meanings given by section 37(1) of the Misuse of Drugs Act 1971.”
My Lords, I rise to move Amendment 32 and to speak also to Amendments 33 to 39, all of which are probing amendments. I emphasise that we are presenting quite a detailed proposition. The new clause was drafted by a lawyer from Release at my request. Neither she nor I claim that every word will be approved by government lawyers. We ask for your Lordships’ indulgence on that. I am grateful to the Minister for the meeting we had yesterday to discuss these amendments. It was extremely helpful.
I shall deal quickly with Amendments 33 to 39. They are substantially consequential on the new clause and I do not want to take the time of the House to discuss them in any detail. The exception is Amendment 34, which replaces the lower standard of proof with “beyond reasonable doubt” as the basis for injunctions. Any order of a court which could involve penalties should, in our view, be based on the criminal standard of proof. We are simply asserting that and I shall not debate it. Amendments 38 and 39 also relate specifically to injunctions and ensure that the requirements or prohibitions spelled out in an injunction relate specifically, in Amendment 38, to,
“engaging in, or encouraging or assisting, gang-related violence or gang-related drug-dealing activity”
and in Amendment 39, to
“protect the respondent from gang-related violence or gang-related drug-dealing activity”.
I shall be interested in what the Minister has to say about those amendments, but I shall focus my remarks more generally on Clause 47 and specifically on the new clause.
We understand the objective of Clause 47 and are not arguing against the granting of injunctions in a number of situations envisaged by the Government. Our concern is that the injunctions referred to in Clause 47 and in the Policing and Crime Act 2009 require the young person to go to court where the injunction may be issued. We discussed this issue yesterday with the noble Lord. The involvement of the court in our view is an extremely costly and in many cases unnecessary process. It is also a process which criminalises the young person and makes it harder for them to return to normal life and earn a living.
We understand that an injunction may place a range of prohibitions and requirements on the young person, including the requirement to participate in rehabilitative activities. We realise that they are not just blunt instruments. We welcome the requirement in the statutory guidance on the implementation of gang injunctions of 2011 that the body proposing to apply for the injunction must consult the youth offending team and may also consult schools, probation and other bodies. Local authorities also have an obligation under the National Health Service and Community Care Act 1990. If a young person may be suffering from drug, alcohol or mental health problems, local authorities must have regard to that.
The evidence on what works with gangs highlights the key success factors—community mobilisation, social intervention, provision of social opportunities, organisational change and development of local agencies and groups. The court process is not a success factor. Clause 47 does nothing to enhance the rehabilitative or preventive elements already available—or available at least in theory. I emphasise the words “at least in theory” because, of course, a lot of these things are being stripped of their funding as we speak. I would go further. If the individual is a problem drug user, an injunction will not work. An addict cannot make rational choices without a great deal of support in a structured setting and, generally, over a period of time.
In Amendment 32, we propose that a young person could be referred to a dissuasion panel by a police officer—not a court—who has reason to believe that the individual is dealing in an illicit substance. For the purposes of this legislation, the individual is likely to be acting in association with a gang, whatever that may mean. The dissuasion panel’s role is to identify whether the individual is drug dependent. If so, the panel will draw up a contract with the individual, which will certainly include attendance at a treatment programme and a range of other actions designed to deal with the problems identified and help the individual to turn his back on drugs and drug dealing. These actions could include the provision of counselling, attendance at an educational or training establishment and even mandatory community service—and also reporting to the panel for review at a specified time.
The important points are that the dissuasion panels would not be a soft option, but they would avoid criminalising the problem drug user and they would involve the young person in drawing up a contract to solve his problems rather than passively receiving a penalty handed down by a court. This is really pretty crucial with these people. If you simply hand down orders, it will not work with these sorts of individuals. The new clause provides for the contract to be changed at review, if appropriate, or for the contract to be cancelled and the individual to be referred to court for alternative action. We accept that a referral to court will be unavoidable in some circumstances.
The rationale for these amendments is that young people who become involved in gang-related activities, often involving drugs, generally have serious personal and family problems. Sending them to court can simply make matters worse. Our amendments draw on the experience of the dissuasion commissions which have been in operation for 13 years in Portugal. These commissions have taken the place of the court for very many young people. There the dissuasion commission includes three people, generally from the legal, medical and social work fields. The functions of the commission in Portugal are very much reflected in our amendments. The model in Portugal has seen a very significant increase in the number of drug addicts in treatment and a sharp reduction in the proportion of the prison population having drug problems. Fewer young people become addicted to drugs in Portugal than in neighbouring countries that pursue more traditional policies. It seems that we really do have a lot to learn from that experience and the experience of other countries. It is worth noting that the drug policy has been supported over the years by all the political parties in Portugal, which was not the case when the policy was introduced. We have to pay attention to that. Why is it that politicians in parties that opposed the policy should come round and then support it, unless the policy works? It clearly does.
We already have in the UK a range of services for young people at risk of being involved in gang-related violence and drug-dealing activity. The problem is that these services are underfunded, chaotically organised and subject to constant reorganisation, thus undermining their efficiency. Already funds are devoted to drug courts when they would be better spent on the services needed by young people.
In conclusion, can the Minister give an assurance to the House that his department will assess the costs and benefits of dissuasion panels in dealing with drug-related offences, and, in particular, with people who are dependent on drugs? This work would follow naturally from the Government’s probably excellent review of international drug policy, which included a look at the Portuguese system. I beg to move.
The noble Baroness has put forward a very attractive proposal, at which I hope my noble friend will look carefully. I do not doubt that it will need a lot more work on it before it can be in statute. I hope that the length of the interval between Committee and Report will make that possible.
I have a question for the noble Baroness, having only cursorily looked at the amendment. It seems to me that it depends very much on the quality of the sentence or referral that the panel makes. There should be a requirement that any child or young person who is put into its orbit should not be able to fall out of the system so that they simply have to report at intervals. I would like to see the word “monitor” in there somewhere. A responsible adult or organisation should be required in the statute; otherwise, we will get people fading away, as they have done in the past under probation.
My Lords, I was extremely happy to add my name to the amendments in this group, tabled by my noble friend Lady Meacher, and I pay tribute to the work that she does as chair of the All-Party Parliamentary Group on Drug Policy Reform. She is deeply knowledgeable in this field, and I know that the House will always listen with great care to the proposals that she makes. She is right, of course, to make the point that injunctions on their own will achieve nothing, and that people with a drug dependency or who find themselves in the ambit of drug-related gangs are people who need help. She is right to suggest that the help that they need should very likely be help in terms of their health. It is better with these young people to treat their predicament not as a criminal but as a health issue. That is the model that has been established in Portugal since 2001, as my noble friend said, initially amid some considerable controversy—because Portugal faced an appalling crisis of drug trafficking and addiction and a whole generation of young people in very great danger. It was to many people countercultural primarily as a health-related issue rather than as a criminal issue. But the evidence shows that, over the years, the approach has paid off and results have been very good indeed.
I commend to the noble Lord, Lord Elton, and others the report on the Portuguese experience published by the charity, Transform, and available on its website. It looks very carefully at the evidence of what has happened in Portugal. I add to the highlights that my noble friend Lady Meacher mentioned the facts that drug use has,
“declined among those aged 15-24, the population most at risk of initiating drug use … Rates of past-year and past-month drug use among the general population—which are seen as the best indicators of evolving drug use trends—have decreased”,
“Rates of continuation of drug use (i.e. the proportion of the population that have ever used an illicit drug and continue to do so) have decreased”.
On all these important indicators, the policy has been vindicated. However, it is also important to say that this Portuguese strategy is one of investing very considerably in support services for the young people who are brought before disuassion commissions. The young people come to an agreement with the disuassion commission about a course of action that they will take. Not only will they seek to co-operate willingly with what is recommended in terms of their health, but there are many other courses that the disuassion commission may recommend for them, including job training and all kinds of activities and processes to help them to integrate successfully with society. This strategy came at a time when Portugal was broadening the range and depth of its welfare state and of its support services for vulnerable and fragile young people. Of course, Portugal has been under very serious fiscal pressure in recent years. It may well be that the quality and extent of these services are not what the authors of the strategy would ideally have wished; none the less, the results have been very good.
It will be necessary, if we are to adopt a constructive, positive, humane strategy of the kind that has been pioneered and demonstrated in Portugal, for the Government of the day in this country to be willing to invest in the resources needed to make a full success of that. We all know how very difficult that is going to be for a Government now or in the foreseeable future to do. That is a kind of caveat; but it would not at all invalidate the adoption of a strategy such as the one my noble friend has commended to the Committee. I very much hope that the Committee will favour what she has suggested.
My Lords, like my noble friend and other noble Lords, I do not want to comment on the fine detail of the amendment but simply to support the noble Baroness. Her points about avoiding criminalisation and what I might summarise as an active, supportive, constructive response, are immensely important. Under the noble Baroness’s chairmanship, some of us met a number of MPs from Portugal. We were very struck by the agreement across the parties about the benefits of this measure and the lack of contention around it. We actually ran out of questions to ask them on that issue. Clearly, in that country they have succeeded in taking some of the heat out of the drugs issues, which has been a very considerable achievement. I hope that we might learn from that example.
My Lords, I am grateful to the noble Baroness, Lady Meacher, for giving me a copy of her amendment and a briefing note on it when she tabled it. I was not aware of the Portuguese experience as my noble friend, Lord Howarth described it. It is interesting and bears further consideration. I am not an expert on whether the detail of the amendment is correct. It looks complicated, which might be because it was drafted by a lawyer, but I suspect that it is not so complicated in practice.
These dissuasion panels would sit alongside the injunctions, such as is proposed in the Bill, and a police officer would refer a young person if they were involved in gang-related violence or a drug-related activity. The panel would be tasked with assessing the young person. It would determine whether there was a need to require the young person to undertake some form of action, whether that be treatment or counselling, to prevent them engaging in further activities, to protect them or to address their drug dependency. That seems to be a more holistic approach to tackling the drug culture and drug abuse.
That chimes with some of the things we have been looking at, in that there is a plea here for joined-up government. We disagree with those who argue that criminalisation of drugs prevents addicts from seeking treatment. In the UK we have been, and currently are, a world leader in providing drug treatment. If we look at the figures from the European Monitoring Centre for Drugs and Drug Addiction, we see that we are streets ahead of some of our European neighbours—I exclude Portugal from that. In 2010 at least 60% of opioid users in the UK were accessing treatment. The figure was just 12% in the Netherlands and 25% in Sweden. Drug-related deaths among the under-30s more than halved in a decade. In any other area of policy that would be seen as a success to date—although more work is needed—and as a record to work on to get further progress.
My fear is that even with the problems we have had, the progress that has been made to date could be lost. If we go back to 2001, we started to change how we dealt with drug addiction. The first stage was to increase provision for those who needed treatment. In 2001 there was a nine-week wait to access treatment. By 2011 that was down to five days. However, creating places for drug treatment is not enough because the key problem was that people were not completing their treatment and were dropping out half way through; so the problem became trying to keep people in treatment. In 2005-06 37,000 people dropped out. That figure was down to 17,000 by 2011-12, which was still too many but progress in the right direction. That allowed the focus to switch to those who were completing treatment. In 2011-12, the figures had nearly reversed; the figure of 17,000 dropping out was far below the number of those who completed treatment.
My noble friend Lord Howarth made a point about investment. The sea change in providing treatment was because of investment, and clear leadership. From 2001 until last year drug treatment was delivered by the National Treatment Agency, which was joint between the Home Office and the Department of Health. Both departments had to work together: they controlled NHS budgets on drug treatment and oversaw delivery. Home Office involvement is key.
That is one of the interesting things about the amendment. Drug treatment is seen by some to be poor value for money in terms of eventual health outcomes. However, if we look at the wider social outcomes for the individual concerned and the community, including crime, drug treatment is a highly cost-effective investment. It is estimated that drug treatment in the UK prevents about 4.9 million crimes a year and saves the economy about £960 million. That kind of involvement from the Home Office, leading through to treatment, is being lost, because responsibility for drug treatment has been devolved to local authorities, assisted by health and well-being boards, with no requirement for input from the criminal justice system. The very point the noble Baroness, Lady Meacher, is making is that when somebody comes into contact with the criminal justice system on a drugs-related offence, that is the opportunity to ensure treatment and intervention from a panel such as she outlines in her amendment. At present about 80% of the funding that local authorities receive comes from what was the pooled budget for drug and alcohol treatment. The Government are giving money to local authorities with one hand and taking it away with the other, because budgets are being slashed. The money that was ring-fenced for drug treatment is now being taken away and absorbed in other costs, putting enormous pressure on the services.
I come back to the point made by my noble friend Lord Howarth. The Government no longer know how much money is being spent on drug treatment: the figure is not available. The amendments tabled by my noble friend Lord Howarth and the noble Baroness, Lady Meacher, recognise the wider social implications and the involvement of the criminal justice system. At the first point at which someone comes into contact with the criminal justice system, they look to bring in other agencies and work with a more holistic approach. When we talk about drug victims it is not just those whose lives are controlled or ruined by the personal use of drugs, but those who have suffered as a result of drug crime, whether acquisitive crime or anti-social behaviour. Therefore, the proposal of the noble Baroness, Lady Meacher, is worthy of detailed consideration and I hope that the Minister will take the opportunity to look at it. It would not detract from the injunctions in the Bill, and it is right that they should be available. However, if we could have a process working alongside injunctions to enable us to deal not just with the criminal process but to develop treatment to deter drug abuse and those who fall victim to it, whether they be the individuals taking drugs or the victims of drug-related crime, that seems to me a result worth paying for.
My Lords, I am grateful to the noble Baroness, Lady Meacher, for explaining her thinking behind these amendments, and to noble Lords for taking part in this interesting debate. I am also grateful to the noble Baroness, Lady Meacher, for coming to see me yesterday, when we had a good discussion, so that I could understand what she wanted to achieve through her amendments on tackling drug dependency. I know that she takes a strong interest in this issue. We have often discussed drugs policy in this Chamber while wearing other hats. I recognise that her intention is to place a stronger focus on addressing drug dependency and on meeting the needs of vulnerable individuals who may become involved in gang-related violence and drug dealing. Therefore, I welcome this opportunity to discuss these issues.
However, as my noble friend Lord Elton indicated, gang injunctions are a much wider issue than that of just drug abuse. Drug abuse can be an element of gang activity but gang injunctions go much further than drug abuse alone. I hope that I can help noble Lords by talking about what the Government are doing to tackle drug-related offending and reoffending. The Government strongly support local investment in integrated offender management approaches, including identifying drug-using offenders and directing them to treatment. This is going on now. The Government are also: piloting drug recovery wings, focused on abstinence and connecting offenders with community drug recovery services on release; increasing the number of drug-free environments and piloting payment by results for drug and alcohol recovery services; testing a new “through the gate” model for substance misuse services to complement the introduction of transforming rehabilitation proposals; and developing and testing liaison and diversion services in police custody suites and at courts. I mention these initiatives because I do not want it to be assumed that no effort is being made at a local level to try to make drug users’ lives better. A great deal of effort is being expended in this area.
The expansion of activities covered by gang injunctions is not a substitute for seeking the prosecution of someone for a serious crime such as drug dealing. However, there are instances where a gang injunction may help prevent respondents engaging in gang-related drug activity or protect people being further drawn into such activity, which is particularly important for children, girls and young women.
Amendment 32 introduces the concept of dissuasion panels with the purpose of assessing the personal circumstances that could have led a person to engage in gang-related violence or gang-related drug-dealing activity. The panels would be composed of persons from a medical, legal or social work background. The amendment also confers powers on these new panels to impose requirements on an individual to prevent them engaging in the gang-related violence or gang-related drug-dealing activity, to protect the individual from such violence or activity, and to address drug dependency.
Although referrals to a dissuasion panel appear to be discretionary, the tenor of the proposed new clause seems to be to prevent an application for a gang injunction being considered by a court until the case has been referred to the dissuasion panel—I think I heard the noble Baroness aright in that regard—and the person concerned declines to abide by any requirements imposed by the panel. The result of the proposed new clause would be the introduction of a two-stage process. While I have considerable sympathy for the outcome the noble Baroness is seeking to achieve, I believe that interjecting a dissuasion panel into the process applying to a gang injunction is unnecessary.
I should make it clear that the amendment proposes that only if a police officer identifies drugs as a problem for the individual concerned will they be referred to the dissuasion panel. If they have engaged in violence and there is no indication of drugs being involved, then, of course, they will go straight through to the court.
I am grateful to the noble Baroness for that explanation but I do not think that it totally weakens the argument I am trying to make for adopting a holistic approach to gang activity, which is contained in the gang injunctions. An individual’s personal circumstances leading to his or her involvement in gangs are already part and parcel of the matters taken into account as part of the gang injunction process. The Policing and Crime Act 2009 includes a consultation requirement. This requires the applicant to consult any local authority, chief police officer and other body or individual that the applicant thinks it is appropriate to consult. The Government’s statutory guidance on gang injunctions—we are considering gang injunctions in the Bill—published in 2010, stresses this point and suggests that the consultation process may include voluntary or support services working with the respondent and/or their family as well as the respondent’s school or housing provider, among others.
I agree that it is essential to take into account mental health or substance misuse issues, as these can be very relevant to someone’s involvement in gangs, together with any other personal circumstances, and this is already the case as part of the application process for a gang injunction. I also agree that it is important to stress this point further. However, I believe that the best place would be in guidance rather than introducing an additional statutory layer to the process. The guidance on gang injunctions is currently being revised and will be reissued in the autumn, as I explained to the noble Baroness yesterday. The revised version will make clear that the consultation process should include medical practitioners where appropriate and any other relevant professional who may assist in determining the individual circumstances of the case, and in particular whether substance misuse or mental health issues are factors that need to be taken into account.
New subsection (7) of the proposed new clause stresses further the point that requirements to prevent or protect a person from gang-related violence or drug dealing may include treatment for drug dependency, counselling, education or training. Gang injunctions are intended to help respondents leave the gang and may already include positive requirements such as the ones highlighted in Amendment 32 that work towards this end. The statutory guidance encourages applicants to be creative about helping respondents to leave the gang and specifically suggests that anger management sessions, coaching, counselling or other behavioural sessions may be appropriate. The revised guidance will stress further the positive requirement element of the gang injunction as a way of helping break away from gang-related violence, which is one of the elements we are seeking to address, and/or drug dealing.
Amendment 34 would change the standard of proof which applies to the determination of whether a person has engaged in, or has encouraged or assisted, gang-related violence or drug dealing from the “balance of probabilities” to “beyond reasonable doubt”; that is, from the civil to the criminal standard.
Gang injunctions are civil tools and that is why I consider them so important. As such, the standard of proof is quite properly the “balance of probabilities”. As is the case in other civil proceedings, the court will be guided by a wide range of evidence before determining whether a gang injunction should be imposed. This may include direct evidence from witnesses, hearsay evidence from community members or police officers, statements from professional witnesses or other expert evidence. Courts will impose a gang injunction only after careful consideration of all the evidence and only after they are convinced that the injunction is necessary for the purposes set out in the legislation. It would be iniquitous to apply the criminal burden of proof to what are civil proceedings.
Amendments 38 and 39 seek to reinforce that gang injunctions have both a preventive and protective purpose. I believe that the amendments are not needed given that Clause 47 as it stands already provides that a gang injunction is granted for such a purpose. I would also point the noble Baroness to Section 34(4) of the Policing and Crime Act 2009, which makes it clear that an injunction may prohibit or require the respondent to,
“do anything described in the injunction”.
We had these sorts of things when we discussed injunctions against nuisance and annoyance in the most recent Bill. This provision affords the court significant flexibility to set out appropriate conditions and requirements to prevent the respondent from engaging in gang-related violence and drug dealing.
I have set out why I think in the gang injunction we have the foundations for a proper relationship between those who are participating in gangs and an opportunity for them to move away from such a lifestyle. I say to the noble Baroness that as a result of her visit yesterday and how she described the Portuguese experience, we will look at the scheme in Portugal. I am ready to have a further discussion with her before Report. We are looking at the guidelines and will address some of the issues that have been made in this debate. The debate has shown that we want to achieve the same outcome here in terms of preventing gang-related violence and gang-related drug-dealing activity by addressing the underlying causes of an individual’s involvement in a gang. Where there are drug dependency issues they need to be addressed if the gang injunction is to achieve its purpose. Without addressing drug issues in somebody who has a drug problem, we will not have a successful outcome from a gang injunction in that case.
I firmly believe that the existing framework already allows for such an approach and the revised statutory guidance to be issued in the autumn will reinforce this critical message to front-line professionals. I fear that the introduction of the dissuasion panels will unnecessarily complicate a process that is focused on the gang injunction and all that can be done with that. For these reasons, I hope that the noble Baroness will withdraw her amendment today. We will have the opportunity of talking further and I hope to share with her some of our thinking on the guidance that we are in the process of producing.
Before my noble friend concludes, could I ask him two questions? First, we had some impressive figures indicating the change in the percentage of treatments that were completed following the introduction of the system in Portugal. How do those rates compare with existing rates in the United Kingdom?
Secondly, he mentioned anger management as one means of diminishing gang violence and therefore, presumably, gang membership. I hope that he will not overlook the exceedingly powerful inducement of fear maintaining the membership of gangs—not merely internal intimidation but the feeling that nowhere is safe unless you are inside the gang, which is a very common phenomenon among young people certainly in London and I do not doubt in other major cities as well. I went to a conference some time ago in London where children were reported as having said that they felt safer in the gang than they did not only in school but at home. That is a much bigger issue than we are tackling now, but it cannot be ignored. If we are going to get the architecture right, it has to be taken into account.
I am not in the position to provide the figures that my noble friend asked for, but certainly when we study the Portuguese system and documentation I will make sure that I write to the noble Lord—and indeed to all noble Lords who have spoken in this debate. It will be useful to share that information.
My noble friend is absolutely right. There are all sorts of reasons why people belong to gangs. Fear is one of them. I have made two visits now to Brixton to see how territory, people and circumstance combine to encourage the existence of gangs. We need to be proactive in the way in which we deal with this problem. It causes abject misery through drug dependency; it causes crime through theft; it causes violence; and it causes unnecessary loss of life, as much of the violence can result in fatalities. All of that needs to be addressed in any policy that deals with gangs.
That is why we need a process. In my view, gang injunction lies at the heart of that process. I would be reluctant to dilute that but it can be informed by processes that can be imported from elsewhere. I hope that I have given some idea of my thinking about the issue and I hope that the noble Baroness, as I have said already, will withdraw her amendment.
I thank the Minister for his very considered reply, and also give a special thank you to the noble Lord, Lord Elton, for his thoughtful intervention. I assure him that one of the key points in the Portuguese system is indeed the monitoring of the observance of the contract by the individual.
Indeed: mentoring. The idea in this system is that the referral to, for example, treatment ensures that the person is then mentored in the environment to which they are referred, whether it is residential or day-based or a number of different things. The idea is a comprehensive package for the individual, monitored—not mentored—by the dissuasion commission panel to make sure that the person really does receive all the elements that they have signed up to in their contract. As I said, it is not a soft option but it is an effective one. That is what we are seeking to at least discuss here. I am truly grateful to the noble Lord, Lord Elton, to my noble friend Lord Howarth for a very considered and important contribution, and to the noble Baronesses, Lady Smith and Lady Hamwee. This has been a helpful debate.
I need to mention in response to the noble Baroness, Lady Smith, that Britain still has one of the highest levels of drug addiction and problems in Europe. We are in the top three countries. The tougher the policies, the worse a country tends to do. That is just a basic rule across many countries and is well understood in the field.
I am very grateful indeed to the Minister for agreeing that the department will look at—and, I hope, undertake a cost-benefit analysis of—dissuasion panels as an option for dealing with people with drug dependence problems. That is the point: it is cost effective and it is worth it. It produces results and it is cheaper. Rather than seeing it as a sort of two-tier system, one should think of it as dissuasion panels taking an awful lot of work away from the courts and dealing with that work more effectively: that is perhaps a better mental set in relation to this problem. With my many thanks to all those who have been involved, we will undoubtedly come back to this and, I hope, have further discussions with the Minister. On that basis, I beg leave to withdraw the amendment.
Amendment 32 withdrawn.
Clause 47 : Injunctions to prevent gang-related violence and drug-dealing activity
Amendments 33 to 39 not moved.
Debate on whether Clause 47 should stand part of the Bill.
My Lords, before the Committee approves Clause 47, I suggest that we think very carefully about its construction and its drafting. Broadening out our consideration from the specific issues of drugs on which we were focused while examining the last group of amendments, we should look at some wider issues of principle, particularly those of civil liberties. I do not want to detain the Committee unduly, but this House prides itself on its willingness to apply line-by-line scrutiny to legislation, and where this clause is concerned some close examination will be appropriate.
The clause would substitute for the existing Section 34 of the Policing and Crime Act 2009 a new Section 34. In proposed new Section 34(1), it is made clear that we are considering the question of powers to grant injunctions against people “aged 14 or over”, and therefore against children. We should bear that in mind as we consider what follows in Clause 47 and the new Section 34. Subsection (2) says that the first condition which the court must satisfy is that it thinks,
“on the balance of probabilities that the respondent has engaged in or has encouraged or assisted … gang-related violence, or … gang-related drug-dealing activity”.
We talked a moment ago about the question of the civil level of proof as against the criminal level—the balance of probabilities as against “beyond reasonable doubt”—and I understand the case that the Minister was making. But under Clause 47, if the court is satisfied on the balance of probabilities that these things have happened and that the person,
“has engaged in or has encouraged … drug-dealing activity”,
then we are told later on, in subsection (7), that “drug- dealing activity” means what it does under the terms,
“of the Misuse of Drugs Act 1971”.
So the young person is being drawn into the purview of the criminal justice system, at the age of 14 or over, but without the safeguards that the criminal law provides: the statutory defences and the higher standard of proof required.
I am not clear what representation a young person in these circumstances will be entitled to, or whether legal aid will be available to support a young person to make their case against an injunction. It also ought to be borne in mind that in criminal proceedings and in one of the amendments that the noble Baroness, Lady Meacher, proposed—I always want to call her my noble friend—the individual must agree to a drug rehabilitation order. I do not see any requirement in Clause 47 that the young person should agree to a course of action which would be prescribed in an injunction. There are issues here that we ought to reflect on.
The intention of these powers of injunction is, according to subsection (3),
“to prevent the respondent from engaging in … gang-related violence or gang-related drug-dealing”,
and so forth or,
“to protect the respondent from”,
the same. I am not clear how the application of an injunction in such circumstances would prevent a young person pursuing the course of action that the Government want to prevent occurring. It would be helpful to know from the Minister how the Government’s review of existing gang injunctions has gone and what it has so far found. Am I right in thinking that, between 2011 and 2014, there were only 88 gang injunctions in all and that only two of those were issued against people under the age of 18? One is bound to ask the question: why were there so few?
It may be that the explanations include considerable uncertainty among local people concerned with this process about whether injunctions would be beneficial. It may be to do with the complexity and time-consuming nature of the process of seeking and securing an injunction. It may be to do with the difficulty of mustering the evidence needed to obtain an injunction in regard to people who are on the periphery of a gang. It may be to do with the tension that there must be between professionals dealing with young people who might be the subject of an injunction. How are they to support them and build their trust when they are, at the same time, policing the injunction and may have to dispatch the young person back to court and to a criminal penalty? One would imagine that there are these difficulties.
Who are the professionals who are going to support the young people thus injuncted? I would imagine that the youth offending teams already have a very heavy load with the cases that are coming through to them from the criminal courts. What requirement are the Government laying on local agencies to work together? Will they be increasing the resources available to make a success of these injunctions in positive terms? Maybe what is needed is better funding, co-ordination and organisation—and, perhaps, better respect for the professionals working in this field—rather than new powers or some new structure. I do not know whether the Minister would be able to tell us what the latest figures are on the breaching of ASBOs. The figures I have seen tell me that, as of December 2007, 61% of ASBOs had been breached. How many gang injunctions have been breached and how confident can the Home Office be that these new gang injunctions are going to work, in that people will comply with them and they will prove to be worth while?
As for the ambition to,
“protect the respondent from gang-related violence or gang-related drug-dealing activity”,
I would like to share with the Committee a case study that the Howard League has offered to us. It says:
“Sam was 20 when he contacted one of the solicitors at the Howard League for Penal Reform. He had never been convicted of a gang related offence. He had been shot. The police imposed an interim gang-injunction on Sam without warning and without representation, claiming it was a ‘protective measure’. The sheer scope of the restrictions on his life were astonishing: he could not enter his home town—meaning he was effectively made homeless as he lived with his Mum there; he could not see, contact or even ring his partner, so he couldn’t see his son unless the child was in the care of someone else; and he was banned from contacting the majority of his friends. During this time Sam had the constant threat that even though he had done nothing wrong, if he breached any of these requirements he could be sent to prison. As the police can impose interim gang injunctions without the authority of the court, it was a year before it was finally decided that the interim injunction on Sam was not appropriate or lawful. This was a year of a young man’s life”.
So I need to be persuaded by the Minister that the objective of protecting young people can be satisfactorily secured through the issuance of such injunctions.
Under new subsection (4), a power could be taken under injunction to,
“prohibit the respondent from doing anything described in the injunction … require the respondent to do anything required in the injunction”.
These are completely open-ended powers. There is huge scope for arbitrary requirements to be laid upon the people who are the subject of injunctions. I am not seeking to suggest that the court would wish to act arbitrarily or inappropriately, but I ask the Minister what expertise is going to be found in the courts for dealing with people on the fringes of criminality. They have much experience in dealing with that, but they need expertise to deal with people who are on the fringes of drug dependency, or who are perhaps already into drug dependency.
What confidence does the Minister have that the courts and their advisers will be equipped right across the country to ensure that the terms of these injunctions are actually appropriate? What sort of requirements does he envisage will be stipulated in these injunctions? Does the Home Office have a view on best practice? What is the record so far? Is it going to evaluate what has already happened, and will it evaluate the consequences of the new model of gang injunctions? The Minister told us that draft statutory guidance would be issued in the autumn. That is encouraging. Will that draft statutory guidance be issued and be available to us before we come to Report? It would help us in our consideration of the Bill.
At new subsection (5), the definition of “gang-related” has been very significantly loosened from the 2009 legislation and has become a catch-all. The subsection elides “gang” and “group”. It includes any group above the number of three. The Minister did helpfully touch on this in his response to the previous debate, but it does lead me to want to know much more about the Home Office’s thinking on gangs. Gangs are a very important phenomenon. There has been much sociological and criminological study of them.
In my experience, when I was a Member of Parliament for Newport, young people would gather in groups on the streets. They were particularly likely to do so where they were living in communities where their homes were small, where their family background was poor and where the opportunity for constructive activity was all too little. Local people would be worried about that. But we have to accept—and I think this was suggested earlier—that a gang can be a social context in which young people find themselves. They seek to become established members of the group, they seek status, and they seek—as the noble Lord, Lord Elton, suggested—safety. There is no harm in that. Of course, if a group morphs into a gang and the gang is a significantly criminal organisation then that is very dangerous and we need to think very hard about how to rescue young people from their involvement in gangs of that kind. But it would be helpful before we legislate for these very open-ended and wide-ranging powers if the Minister would unfold to us what the Home Office’s thinking is about gangs and the most positive and effective approach to them.
We are told in new subsection (6), that,
“‘violence’ includes a threat of violence”.
In that case, if it is a serious threat of violence, it has to be taken very seriously, but what if it is just rough language or a bit of pushing and shoving? It seems that as the clause is at present drafted, people could be injuncted for very minor misbehaviour. We are told in the impact statement and in the Explanatory Notes that the reason why the Government are enlarging the scope of gang injunctions is because “front line professionals” have found the existing definition of a gang “unduly restrictive”. Again, I would like to know who these front-line professionals are, what they have said and whether the Home Office has interrogated them and applied some scepticism to the requests to have what is effectively open licence to pull in any kid who is a little bit truculent.
There are civil liberties issues here. We have seen the precedent of stop and search. We have seen the desperately unfortunate consequences in which young black people have been six times more likely to be stopped and searched and far more likely to be arrested and brought to court. The Home Secretary has quite rightly challenged the police on that history and those practices, but I fear that by legislating these open-ended powers of injunction, we could be about to repeat that same disastrous error. I wonder if there are going to be targets for how many injunctions are to be issued.
The scale of the problem that the Government are seeking to redress is absolutely huge. I read recently in the Sunday Times that the Home Office estimates that there are 300 drug traffickers, 3,000 middle-market wholesalers, but 70,000 street dealers. If there have only been the handful of gang injunctions issued that I mentioned earlier, then how are these gang injunctions to make any significant impact on a problem of this scale? It seems a means of getting at the petty criminals, the small people, and the low-hanging fruit. It seems a means of looking at the symptoms; it does not seem to address the roots.
I do not think the noble Lord should ask the House to legislate to this effect until he can show us that his new provisions for gang injunctions are part of a decent, coherent and convincing policy.
I am very happy to assure the noble Lord that our policy is indeed decent and coherent. I did not find his arguments so coherent, because I felt in some ways that he was trying to say that he felt the new provisions within the Bill were going too far, and were affecting civil liberties, and at the same time suggesting that they were not effective at all about dealing with young people who found themselves in gangs. In our last debate I showed there is coherence here. Gang violence is a serious problem. It does need addressing. It needs a legal framework against which you can address it. A great advantage of the injunction is that it provides an opportunity for that to happen.
Gang and youth violence is damaging too many young people in our country and can have a devastating effect not only on those who get caught up in it but also on their families and communities. Gang injunctions are a valuable civil tool that allows the police or a local authority to apply to the county court or the High Court for an injunction against an individual who has been involved in gang-related violence. Gang injunctions are available to help the police and local authorities prevent acts of gang violence, but importantly, the injunctions are also there to protect younger gang members’ behaviour from escalating, including by requiring them to participate in activities which help them leave gangs behind.
Gang involvement is a distinct issue; police and community safety partners require a tailored civil order that they can use as part of their response to tackle local gang issues effectively. Gang injunctions for adults have been available since January 2011.
I regret that the Minister referred to the speech of the noble Lord, Lord Howarth, as incoherent—or words to that effect. It seemed to me that the noble Lord’s arguments were incredibly powerful with regard to the lack of appropriate skills and training of the people in the courts, and the Howard League case he referred to. Obviously, as I said in my own speech, matters are made a great deal worse by cutting somebody off from their support systems and so on. I have to say that many of the comments made by the noble Lord, Lord Howarth, support strongly the case for having a professional tribunal or dissuasion panel to look at these cases, rather than leaving it to the courts, which do not appear to have the skills needed in these very difficult situations. I absolutely agree with the Minister that these are difficult problems; they have to be dealt with, but they have to be dealt with professionally, and I think that is the point the noble Lord, Lord Howarth, was trying to make.
I had intended to speak in this debate. The noble Lord was uncharacteristically quick off his feet to respond to my noble friend. This clause requires some clarification and I am sorry that he seems quite upset about the probing questions that have been asked. I will listen to what he has to say. If the issues I intended to ask him about are not addressed, I will come back to him at the end of his comments, but there are some points of clarification that would be helpful in this debate.
I am sorry, I just felt that the closing remarks of the noble Lord, Lord Howarth, when he said that government policy lacked coherence in this area, were belied by the contribution that I had made in the previous debate on the amendment moved by the noble Baroness, Lady Meacher.
In which case, I am in the process of doing just that. Perhaps we can draw a line under our little spat. Indeed, I was going on to talk about the ways in which the people who are responsible for seeking gang injunctions do bring professional expertise to these matters.
As I was saying when the noble Baroness, Lady Meacher, intervened, gang injunctions for adults have been available since January 2011, and gang injunctions for 14 to 17 year-olds have been available since January 2012. I hope it reassures the noble Lord, Lord Howarth, that when applying for injunctions against minors, the applicant must consider their duties towards young people in general, including the general duty to safeguard and promote the welfare of children, together with any child protection issues that arise in a particular case. In doing so, the applicant would be expected to seek the views of any social services or children’s services department that is engaged with the child.
The findings of a review of the operation of gang injunctions, published in January 2014, indicated that the definition of a gang used in the Policing and Crime Act 2009 has some limitations for addressing local gang issues. I am sure that noble Lords would expect the Government, having found those limitations, to come forward with amendments to address them.
Section 34(5) of the 2009 Act specifies the circumstances in which gang injunctions may be made. The court must be satisfied that,
“the respondent has engaged in, or has encouraged or assisted, gang-related violence”—
that is the fundamental requirement. “Gang-related violence” is defined as,
“violence or a threat of violence which occurs in the course of, or is otherwise related to, the activities of a group that … consists of at least 3 people … uses a name, emblem or colour or has any other characteristic that enables its members to be identified by others as a group, and … is associated with a particular area”.
We are not talking about stop and search here; we are talking about collective activity. Following consultation with practitioners, we have concluded that this definition is too restrictive and, more importantly, does not reflect the true nature of how gangs operate in England and Wales.
Gangs do not always have a name, emblem or colour or other characteristic which enables their members to be identified as a group. Instead, individuals may operate as a group and engage in criminality with some degree of organisation without these features. Although gangs are traditionally associated with particular territories, they are now increasingly involved in criminality beyond their own areas and can be less associated with a particular area. Gang structures are now seen to change over time—they are morphing—such that it is possible for gangs to disappear from certain locations and reappear in other locations relatively quickly. Gangs may move to other locations as a result of black market forces or being pushed out by rival gangs.
In order to reflect the changes in the way gangs operate, Clause 47 amends the 2009 Act to revise the definition of gang-related violence. Under the new definition, violence will be gang-related,
“if it occurs in the course of, or is otherwise related to, the activities of a group that … consists of at least three people”—
“and has one or more characteristics that enable its members to be identified by others as a group”.
It has been suggested that this definition is too wide and that any group of three or more people identified by others as such could be affected by this legislation. I assure the Committee that this is not the case. Being part of a gang as defined by this clause is the first stage of the process but courts will also need to be satisfied that the defendant has been involved in violence and that any such violence is related to the gang. Of course, only courts can impose a gang injunction, after they are satisfied that it is necessary to do so.
In addition, evidence from police and local authorities shows that urban street gangs often engage in street drug-dealing on behalf of organised criminals, and some gangs aspire to and may become organised crime groups in their own right. That is why we are expanding the activity in relation to which gang injunctions can be imposed to involvement in the drugs market. This will allow gang injunctions to be used to prevent individuals from engaging in drug-dealing and to protect people from being further drawn into illegal drug-dealing, which is particularly important for vulnerable people, in particular teenage children, of whom we spoke earlier.
The noble Lord, Lord Howarth, has raised some wider points about the Government’s overall drugs strategy. The noble Lord’s view is that the strategy is not sufficiently focused on tackling the root causes of demand for illegal drugs which drive this market. I agree with the noble Lord that reducing the demand for drugs is essential to successfully tackling this issue. Indeed, it is one of the three strands of the Government’s strategy, which balances action to reduce demand alongside support for individuals to recover from drug dependency and ensuring that law enforcement effectively protects society by restricting the supply of drugs.
We are confident that this approach is working. Drug usage has fallen to its lowest level since records began in 1996. Figures on the level of overall drug use among young people in 2012 show that 17% of pupils aged 11 to 15 reported ever taking a drug, compared with 29% in 2001. There is a marked fall in the use of drugs among young people.
The Home Office is fond of quoting certain statistics that are, I am sure, correct, and demonstrate declining use of certain drugs. Can the noble Lord, however, tell us whether the use of class A drugs has fallen? What is his view on the consumption of new psychoactive substances, which are also drugs, even if not proscribed under the Misuse of Drugs Act 1971? Surely the overall picture is far less comforting than he seeks to persuade us it is.
I accept that. I am not at all complacent about the role of drugs in society and I think the noble Lord knows that. However, I am saying that we have, through our strategy, at least reduced consumption over the past few years. It is an important element—we know that 45% of acquisitive crime, for example, is estimated to be carried out by opiate or crack users. It remains a matter of concern. Nobody is complacent about this—I did not want to create that impression. However, I also wanted to reassure the noble Lord and the noble Baroness that we are driving this policy hard because we recognise the damage that drugs do in society. We continue to do all we can to prevent people using drugs in the first place, and to intervene early with those who start to develop problems, for example by developing an online alcohol and drug education and prevention information service. This work to reduce demand for illegal drugs is crucial, but I am equally clear that we need to provide the police and local authorities with the tools they require to intervene to prevent the harm caused to communities by gangs who are involved in drug dealing and to divert young people on the periphery of this world away from gangs before their involvement becomes serious.
The whole point of this clause is to improve our response to gang-related violence and involvement in illegal drug dealing by redefining and extending the scope of these injunctions to ensure they better reflect the reality of gang culture in England and Wales. Of the 109 gang injunctions issued, 45% have been breached. Interim injunctions were granted on the authority of the court. It needs to act proportionately when it considers these matters. We never expected large numbers of gang injunctions to be used. They are aimed at preventing gang-related violence, and they are a useful tool for local partners to use in the right circumstances for the right individuals. The changes in this Bill will enable more effective targeting of those not directly involved in violence but who could influence violent activity. I say to the noble Lord that legal aid is available for gang injunctions, including costs incurred for a lawyer to represent a person in court. Legal aid also covers breach and variation hearings.
I have tried to cover most of the points raised by the noble Lord in his intervention. I apologise to the noble Baroness—I did not mean to cut her off from this debate, and if she wants to say a few words on this issue I am happy to do my best to reply to them too.
I am grateful to the noble Lord, as I think the noble Baroness, Lady Meacher, was intending to speak on this. We were looking at each other, and the noble Lord beat us both to the Dispatch Box.
I will be brief, as the Minister has sought to answer some of the questions, although others remain. We accept that the current definition of gangs has not been able to include or address some of the existing problems. The number of injunctions indicates that. Our worry is—this was raised at Second Reading—that in broadening the definition it becomes easier to get the lower-hanging fruit. There are two levels here. There are those gangs which are violent, intimidating—there are serious levels of violence in some cases. There are others who are altogether different: younger people who may appear intimidating to some people close to them and will have signs to indicate that they are gangs, but are of a very different order from those who threaten and terrorise communities. So there are two kinds of gangs under discussion. We want to see the most serious kind—the intimidating and violent— come into the ambit of this measure, but not by widening the definition so that those who are easier to catch and easier to identify, or are on the fringes of gangs, are inadvertently caught up.
I do not know whether the noble Lord, or any other noble Lords, saw the TV programme on Sunday evening called “Common”. I hesitate to address legal issues in the presence of the noble and learned Lord, Lord Hope of Craighead, but this fictional drama examined the law of common purpose or joint enterprise. If I understood right—I am sure I will be corrected if I am wrong—that law dictates that all participants of a criminal enterprise have a responsibility for all the results of that enterprise. This was a case about a young man who was before the courts on a murder charge, even though he was the driver of the car and had no idea what was happening. Nevertheless, he was part of that criminal enterprise.
We have a slightly similar issue before us: could those who may not be part of violent activity, perhaps on the fringe but not involved, be somehow caught up? I am not defending those who are part of a criminal gang, or part of an activity where they should be held responsible: it is the idea of the wider definition catching the lower-hanging fruit, those who are easier to place an injunction on in the courts. Given that the first condition has to be satisfied on the balance of probabilities—the respondent has engaged in, or has encouraged or assisted gang-related violence or drug dealing—it would be helpful if the Minister could say exactly how he defines “engaged in, encouraged or assisted”. I suppose “engaged in” is quite easy. However, will whether someone is “encouraging” or “assisting” be defined in guidance?
I also echo the point made by my noble friend Lord Howarth when he asked for guidance from the Minister on what measures could be expected from the courts—when will that guidance be available? Will it be made available to your Lordships’ House before Report? It would be quite helpful in those discussions. Furthermore, concerns were raised by several noble Lords at Second Reading that the standard of proof here is a civil rather than a criminal one. I do not think the Minister addressed that in his comments in response to my noble friend. It would be helpful if he were able to address that.
I am sorry not to be as quick on my feet as the noble Lord—he is obviously fitter and healthier than I am. I will do better in future.
I think it would be easier if I dealt with them all. If other noble Lords want to bring something to the party I would be happy to deal with them all in a final wind-up speech. I do apologise for jumping the gun. The two noble Baronesses were obviously far too polite to each other, but if the noble and learned Lord, Lord Hope, and my noble friend Lord Elton would like to speak, I will do my best to respond.
My Lords, I have been drawn to my feet by the comments of the noble Baroness, Lady Smith of Basildon. I have had experience of prosecuting cases involving gang violence—in a way, this is a point in favour of the injunction system. One of the great difficulties for the prosecutor is proving involvement in these activities beyond reasonable doubt. In Scotland, we used to have an offence called mobbing and rioting—that was one of my first forays into prosecution—where a whole number of people were brought into court and accused of being involved in a mob. The noble Baroness is quite right: if they were so involved, they were liable for everything that the mob did. I found that I lost quite a number of the accused because I could not prove that they were sufficiently connected to be brought into the system. If one was applying the civil standard, it would be reasonably clear that one would be able to say that they were involved in the kind of activity that the injunction is directed at. I therefore see a value in the injunction system.
I may have misunderstood the Minister, but did he say that 45% of such injunctions are breached? That troubles me for a reason that might be worth mentioning. In the cases that I came across, there was great intimidation of individuals to force them into the gang activity. If one has a typical city area where the gang competes with a gang from another place 300 or 400 yards along the road, all youths of a particular age are expected to participate in the activities of the gang. I am a bit troubled by the idea of a person being singled out for an injunction and then turning to their colleagues—or compatriots, it might be—who are saying, “Come along and join us. Get hold of a weapon and attack the other people”. If he says, “Well, I’m sorry, I can’t do that, because I’ve got an injunction against me”, I think that he would be jeered at and drawn along simply out of shame and intimidation. It is that aspect of the system that worries me. I would be interested if the Minister had any information as to why such a high proportion of those injunctions are being breached, because it might suggest that there is something in the system that is in need of improvement.
Broadly speaking, I understand the policy behind this. As a former prosecutor, I think that it has a value in being able to get people into some kind of legal system to deter them from further activity which the criminal law perhaps cannot do.
My Lords, mine is a much smaller question and reveals my ignorance of POCA. I understand that the applications will be made by the police. How long is it expected that it will take to grant the applications and are the arrangements for the interim in any way influenced by the proposed new section? I imagine that there is a section in the parent Act which applies the standards in the new section to the interim injunction. If not, how do they relate?
I am pleased that we have had this little episode at the end of our discussion. I am grateful for the contribution of the noble and learned Lord, Lord Hope. He is right: I did say that 45% of injunctions had been breached. Making civil injunctions work is always a challenge for authorities. We have discussed that sort of issue when considering previous Bills.
I say to my noble friend Lord Elton that it is not POCA, but PACA—it is the Police and Crime Act 2009 that is being amended by this part of the Bill.
I say to the noble Baroness that this is not about criminalising gang members but finding a civil way of dealing with the trouble in which they find themselves. They are members of a gang; we want to get them out of a gang. The gang is no good for them; it is no good for their fellow gang members. This is an important way of being able to deal with this matter.
I expect the guidelines, about which I spoke to the noble Baroness, Lady Meacher, privately yesterday and today in public—I am sorry that I did not address this issue earlier—to be available before we return on Report. I say again to the noble Baroness that the test of “encouraging or assisting” gang-related violence is in the existing legislation; it is not a new illustration. I am not aware that the courts are having any difficulty in interpreting that test.
I hope that I can with confidence propose that Clause 47 stand part of the Bill, having done my best to demonstrate all the things that noble Lord, Lord Howarth of Newport, demanded of me when he addressed the issue at the beginning of this debate.
Clause 47 agreed.
40: After Clause 47, insert the following new Clause—
“UK Passport Office powersForeign passport declaration
(1) Subject to subsection (2), where a person holds, tries to renew or to obtain a British passport, the UK Passport Office may require that person to provide information about any foreign passport or passports they currently hold or have held in the past and may further require that person to notify the UK Passport Office of any subsequently acquired foreign passport.
(2) Such information must be considered by the UK Passport Office to be of use for combatting terrorism or other serious or organised crime.
(3) Any information so obtained by the UK Passport Office may be retained by that Office and used for the purpose of combatting terrorism or serious or organised crime.”
My Lords, I make no apology for raising again the issue of foreign passports. I say straightaway that I am not proposing, and have never proposed, any restrictions of any sort on people holding foreign passports.
I last raised this matter on 7 April as an amendment to the Immigration Bill. It was of course opposed by the Home Office for the usual NIH reasons. Of all departments, the Home Office more than others rejects ideas that do not originate from its own creative and fertile mind. However, the problem is that the Home Office, especially in recent years, has not always been good at joined-up thinking, so it can be an obstacle to joined-up government. That is why I fear that my noble friend the Minister is probably under riding instructions to say that my proposal for there to a requirement that details of foreign passports held by British passport-holders should be with the Passport Office is unnecessary and irrelevant in the war against terrorism, serious crime or organised crime. There is a second reason. The Passport Office is at present in considerable difficulties and may regard itself as incapable of handling the changes that are needed, however urgent they are. I shall give a little detail of this later.
I bring forward the amendment in the context of the menace of the deep cloud of Islamist terrorism. Tragically, the fundamentally good and admirable purposes of Islam—one of the three great monotheistic religions, which has given the world so much in science, culture and ethics and has historically been a haven for religious tolerance—and the true religious dimension of it as laid out in the Koran, which at its finest level is expressed by the mystical doctrine of Sufi, have been undermined by the medieval intolerance of the Wahabi sect and hijacked by political Islam, with its armed terrorist groups, such as al-Qaeda and now ISIS, which are engaged in the savage and cruel civil war between the Sunnis and the Shias.
Although to some extent this has diverted the jihadists away from western shores, it has also drawn in a small number of Muslims, particularly the young and alienated, who live in non-Muslim countries. Indeed, in its ability to divert the world from peace, stability and prosperity, political Islam now looks as if it could cause as much grief in this century as did fascism and communism in the 20th century. I believe that theocracy is the antithesis of democracy. To counter the terrorist wings of political Islam becomes ever more urgent as the international security situation deteriorates as a result of the birth of an enhanced international Islamist-based terrorist movement. ISIS has now declared an Islamic state, or caliphate, with the declared aim of global expansion so that,
“the black flag of Islam”,
as one jihadist said, flies over the Palace of Westminster and Buckingham Palace, and Sharia becomes the law of our land as well as their land. It is, of course, absurd posturing, which could be mocked or ignored if it did not have the proved capacity to recruit alienated Muslims to its cause using the formidable weapon of suicide attack, which is reinforced by the false but seductive assurance of the rewards to the martyr. As a weapon, I remind your Lordships that it was never used by the IRA, and yet the terrorism of those 30 years caused us in Britain quite enough pain, grief and cost.
More than five years ago, I was warned by some in the security agencies that they were greatly handicapped by the fact that British passport holders could travel in and out of Britain on their British passports, and if they had additional passports of other countries, it was practically impossible to trace where they had been or what they had done before they returned to Britain on their British passports. Ever since then I have been trying to fill that gap in our defences. Of course, the solution was and is blindingly obvious. British passport holders should be required to give the Passport Office details of any other passport that they hold or acquire. This would then be entered on the electronic record of their British passport so that when a British passport is scanned on arrival at and departure from Britain, the Border Force officer would at once be alerted to that fact. I regard the new Border Force as a huge improvement on the previous arrangements. In some circumstances, it would provide a vital clue in helping to fulfil the first of all obligations of any Government: the defence of the realm.
However, progress with the full implementation of the e-Borders scheme, which started so long ago and has cost hundreds of millions of pounds, has been dismal. It will turn out to be a competitor for the title of the most disastrous, large-scale computer scheme that has been produced by a Government in this country probably for half a century. The intention was that all entries and departures of passengers from our borders should be identified, recorded, reconciled and retained for as long as necessary. Although arrivals are now mainly scrutinised electronically, departures are not. Only a week ago, in a Written Answer, my noble friend the Minister told me:
“Border Force officers perform in-person exit controls on passengers departing the UK on an intelligence-led basis in accordance with the Border Force Operating Mandate”.—[Official Report, 2/7/14; col. WA 268.]
That, of course, means that the operating mandate has changed. The e-Borders system was designed to ensure that the electronic scanning of departures would ensure that the agreement for temporary admission to this country could be monitored. Overstaying has been one of the major problems with the control of our immigration system. Dealing with this problem now seems to have been abandoned.
During the many years that I have been following the development of the e-Borders system, Her Majesty’s Government were at least open about its progress. In another Written Answer last week to a Question about the retention of records from electronic scanning, I was told that to reveal this,
“would not be in the interests of border and national security”.—[Official Report, 2/7/14; col. WA 268.]
That suggests that the passport system, on which effective border control depends, is in even worse shape than it was.
I have been looking at the current passport application form and the notes that go with it. I think it is the worst designed government form that I have seen for a long time. First, the strange orange ink used makes it extremely difficult to read, and thus complete. I gather that this colour was invented by a highly paid PR consultant, rather in the way that some years ago British Airways paid large sums to have the British flag removed from the tails of their aircraft and replaced with weird third-world designs. Secondly, the passport form seems to give no clear and mandatory obligation to give details of non-British passports held. The Passport Office claims the contrary. All I can say is, look at the form and decide.
A few months ago, I spoke to one of Britain’s most senior police officers, responsible for combating terrorism, who expressed great surprise that what I was asking for was not already in force. However, she has now departed, and I gather that the police now follow the correct Home Office line on this issue.
I will give one final example of why what I propose is urgent. Is my noble friend aware that the so-called caliphate state has started to produce its own passport and, as of last week, 111,000 have been issued? Indeed, I have a copy in my hand. Is he aware that the caliphate has announced that its armies will attack whoever harms the holder of this passport? Is my noble friend really going to tell the House that the Home Office has no interest in establishing which British passport holders also hold a caliphate passport? My amendment makes it clear that the whole purpose of collecting the information on other passports is to help in combating terrorism and serious and organised crime. I am convinced that it would do so, which is why I urge the Government at least to have another look at the whole issue.
I was so glad to hear that my right honourable friend the Home Secretary, for whom I have great admiration, has instructed her Permanent Secretary, Mr Mark Sedwill, to have a fresh look at the Passport Office. I hope I am not being presumptuous if I ask my noble friend the Minister to invite Mr Sedwill at least to glance at what I have just said. I beg to move.
My Lords, I am grateful to my noble friend Lord Marlesford for introducing this amendment. It is not the first time that he has raised the issue of foreign passports held by UK passport holders. My noble friend knows very well that success is not normally achieved at the first outing of an amendment, and I admire his persistence. He certainly does not need to apologise for raising this issue again, even if his speech was as wide-ranging as it was interesting.
I query the need for subsections (2) and (3) of the proposed new clause. I do not know why they are there at all. If Parliament agreed them, we would be telling enforcement officials, rather unhelpfully, “We give you this source of information and you are to be grateful and make use of it”. I suspect that my noble friend is far too skilled and experienced to carelessly insert a redundant provision into his amendment. Perhaps it has rather more to do with my noble friend ingeniously making his amendment relevant to the Bill.
The problem is that if we tidy up his amendment by deleting subsections (2) and (3), the amendment will no longer be relevant to the Bill. However, I have another anxiety. I can understand why my noble friend has not provided for any penalties, other than the implied possibility of the withdrawal of the UK passport under prerogative powers. My fear is that an innocent holder of multiple passports may find themselves in difficulties, while at the same time the serious criminal or terrorist has merely made an admin error. I hope that when my noble friend comes to reply to the debate, he will allay my concerns.
As noble Lords know, we debated this issue fairly recently when my noble friend moved a similar amendment on Report of last Session’s Immigration Bill on 7 April. Since then, following my recent meeting with my noble friend, I met him again today. We have looked afresh at the issue and I have to advise my noble friend that I have reached the same conclusion as I did before.
As I indicated when we debated this issue in the Immigration Bill, Her Majesty’s Passport Office contributes directly to the Home Secretary’s key aims of securing borders, tackling terrorism and reducing crime. It achieves this through its public protection strategy and by sharing data and intelligence with other parts of the Home Office and other agencies. I thank the senior officials from Her Majesty’s Passport Office for providing me with briefings in this area. They have been extremely busy recently, as noble Lords will know.
My noble friend raised a number of points concerning his amendment. I start by responding directly to the issues he raised. There is an existing requirement for holders of any uncancelled passport to provide that document when applying for a British passport. I will expand on that point later. HMPO issues around 5.5 million passports each year. Data are not held centrally on the number of applicants who hold a second passport under another nationality. Of the passports issued each year, around 1 million applications are from first-time applicants and the remaining 4.5 million are for passport renewals and replacements. About 95% of applications are made in the UK, with the remaining 5% from British citizens resident overseas.
There is no requirement for a British passport holder to notify HMPO of a change of address. This is because the address of the passport holder is not relevant to the ability to travel and cross borders. The HMPO database is for those issued with or refused a British passport. It is not intended to be a record of the individual’s changing personal circumstances unless that impacts on their identity, nationality or entitlement to continue to hold a passport. HMPO has an established process in place whereby the police, courts and prisons notify it of court or police conditions attached to an individual, including persons wanted, arrest warrants, bail conditions and travel restrictions.
I do not have an estimate of the costs involved in setting up a database as suggested in the amendment, but imagine it would be in the hundreds of thousands rather than millions. The issue is one of value for money. To what use would we put the information? If there were a benefit in setting up such a database, we would do so and the costs would be outweighed by security and public protection considerations. However, as I indicated, Her Majesty’s Passport Office already requires a person applying for a first-time passport or renewing or replacing any existing passport to indicate whether they have had any sort of passport—British or otherwise—or been included in any passport before.
Where a passport applicant indicates that they have, they are then required to send to the Passport Office all uncancelled passports. This requirement to submit a passport held in a second nationality is primarily for identification purposes. It can also assist in the determination of British nationality. However, the primary function is to ensure that any British passport issued is compatible with the identity and personal details contained in the existing overseas passport.
Border Force and law enforcement agencies can access data held by Her Majesty’s Passport Office provided it is relevant to their examination of a passenger at a port or is necessary in connection with any investigation or inquiries being undertaken. Accordingly, the information gathered by HM Passport Office is available to assist Border Force and others in helping to prevent and detect crime.
Holding dual national status is perfectly lawful in the UK. It is not a barrier to the issuing of a British passport. We believe that it would therefore be disproportionate to require a person to notify the UK Government of any subsequently acquired overseas passport unless that was relevant to an outstanding application for a British passport. Should such a person fail to disclose at the point of application for a British passport that they hold a passport under another nationality, it would be a criminal offence on the basis that they would have made a false statement on the application form. Apart from considerations of criminal proceedings, it would be open to consider the exercise of the royal prerogative to withdraw or refuse the issue of a British passport. That would be considered on the individual circumstances of the case and the seriousness of the consequences of the attempted deception.
I hope my noble friend will agree that there are steps already in place to deal with the concerns he raised. It would be a significant and intrusive additional step to require every British citizen who holds dual nationality to keep the Passport Office informed of their citizenship of another country. The Passport Office looked at the evidence and assessed the risk associated with dual nationals to be low. It therefore believes that the compiling and maintaining of a database of dual nationals containing details of large numbers of citizens who pose no risk at all to be disproportionate and overly burdensome. Moreover, we believe that existing powers are sufficient to enable action to be taken when dual nationals are considered to be a risk.
I very much recognise my noble friend’s concern about preventing those people who seek to cause harm to this country or our allies from being able to travel in and out of countries on different passports. The Committee will be aware that the royal prerogative was updated by the Home Secretary on 25 April 2013. In her Statement to the House of Commons, the Home Secretary made clear the importance of being able to refuse or withdraw passport facilities from British nationals who may seek to harm the UK or its allies by travelling on a British passport to, for example, engage in terrorist-related or other serious or organised criminal activity.
Information held by Her Majesty’s Passport Office on second passports under another nationality is already available to Border Force staff, the police and other agencies if considered relevant to an inquiry or investigation. The proposal to hold a database of all dual passport holders has been considered in consultation with law enforcement agencies. It is not considered that such a database would provide any significant additional benefit.
I thank my noble friend for raising this important issue. I know he does so in the genuine belief that he is assisting our fight against crime and terrorism. I know he would wish me to say otherwise, but if I felt genuinely that his amendment added to the security of the country or to the fight against crime I would encourage him here. As my noble friend Lord Attlee pointed out, I would look at the amendment to see how it could be made to better describe his ambition. However, I do not think that my noble friend Lord Marlesford is correct in his statement.
On the issuing of passports by the caliphate, it is up to the British Government to decide whether they accept them. I doubt that the British Government would.
On the application form, I draw my noble friend’s attention to the sheer number of applications to and passports issued by HMPO—5.5 million each year. The colour and design of the form allow it to be scanned and processed at high speed with a high degree of accuracy. It is deliberately laid out as it is and the last survey, between March last year and March this year, showed that 80% said the form was easy to complete and 81% said that they were clear about which sections they needed to complete. I am not saying that anything is ever perfect, but it does not fall into the category of being the worst form that I have ever encountered, as my noble friend suggested.
I realise that he may not be fully satisfied with my response, although I hope I have been able to reassure him that these data are already collected at the point at which a passport application is made and that the information is available to other agencies where it is relevant to their function. On that basis, I hope my noble friend will withdraw his amendment.