Baroness Hamwee
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.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
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.
Baroness Hamwee
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.
Lord Taylor of Holbeach
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.
Lord Howarth of Newport
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.
Lord Taylor of Holbeach
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.
Lord Swinfen
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.
Lord Taylor of Holbeach
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.
Baroness Smith of Basildon
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.
Lord Taylor of Holbeach
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.
Lord Taylor of Holbeach
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.
Lord Phillips of Sudbury
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.
Lord Taylor of Holbeach
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.
Baroness Smith of Basildon
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.
Lord Taylor of Holbeach
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.
Lord Howarth of Newport
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?
Lord Taylor of Holbeach
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.
Lord Howarth of Newport
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.
Lord Taylor of Holbeach
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.
Baroness Smith of Basildon
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?
Lord Taylor of Holbeach
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.
Lord Taylor of Holbeach
(b) in addition to an order discharging the person absolutely.”
Lord Taylor of Holbeach
“(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.”
Lord Taylor of Holbeach
Lord Taylor of Holbeach
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.
Baroness Meacher
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.
Lord Taylor of Holbeach
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.
Lord Elton
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.
Lord Taylor of Holbeach
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.
Baroness Meacher
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.
Lord Taylor of Holbeach
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.
Baroness Smith of Basildon
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.
Lord Taylor of Holbeach
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.
Lord Howarth of Newport
I did not say that the policy lacked coherence; I said that I thought it was wrong to ask the House to legislate before the Government had demonstrated that these new legislative provisions were part of a coherent and decent policy.
Lord Taylor of Holbeach
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”—
that remains—
“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.
Lord Howarth of Newport
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.
Lord Taylor of Holbeach
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.
Lord Elton
My Lords, before my noble friend applies the secateurs again to this budding debate, perhaps I may give notice that I also have points to raise, after he has dealt with this one.
Lord Taylor of Holbeach
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.
Lord Elton
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?
Lord Taylor of Holbeach
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.
Earl Attlee (Con)
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.
Lord Taylor of Holbeach
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.
Baroness Hamwee
My Lords, Section 47 of the Policing and Crime Act 2009—PACA, as my noble friend referred to it a few minutes ago—provides that the Secretary of State must issue guidance relating to gang-related violence injunctions. Under Section 47, the Secretary of State must, before issuing or revising guidance, consult the Lord Chief Justice of England and Wales and such other persons as the Secretary of State thinks appropriate. Given the multidisciplinary nature of gang-related violence, it is interesting that the only specific consultee is the Lord Chief Justice—the courts, essentially. My amendment would add consultation of representatives of chief police officers, local authorities, health authorities and persons concerned with the care of young people, the Youth Justice Board and, again, such other persons as the Secretary of State thinks appropriate.
I do not need to persuade the Committee of the interest, in a technical sense, of all those whom I have listed, in the issue of gang-related violence and the formation and operation of gangs. I appreciate that, under PACA, the Secretary of State is able to consult all these people but it would be appropriate to list a wider number of officeholders and interests than is simply caught up in “such other persons”. I beg to move.
Lord Taylor of Holbeach
My Lords, I am grateful to my noble friend Lady Hamwee for outlining her thinking behind this amendment. I entirely agree that the contents of any statutory guidance should be developed and agreed on by all the relevant parties in advance. I assure her that this is already the case. The statutory guidance on gang injunctions is being revised, as we have already discussed, and will be reissued in the autumn. We are already consulting the Youth Justice Board, the Ministry of Justice, HM Courts and Tribunals Service, the Judicial College, the Crown Prosecution Service and the College of Policing. We also plan to consult police forces and local authorities, through the Local Government Association, as well as the Department of Health and the Department for Education. This will ensure that the welfare of young people is integral to the process. I have emphasised, in my contributions, the importance of this guidance in making gang injunctions effective.
In legal terms, the current requirement to consult the Lord Chief Justice and,
“any other such person as the Secretary of State thinks appropriate”,
allows enough flexibility so that relevant parties are involved in the process as judged most appropriate. It is a commonly used form of words to describe this sort of consultation. Although I understand exactly why my noble friend has tabled this amendment, it is not possible to set out in legislation a comprehensive list of all those who should be consulted and I am not persuaded that anything further would be achieved by laying out a list of consultees. For this reason, and in the knowledge that the new guidance involves considerable consultation—though not I hope so much that it would mean it is not available by Report—I hope my noble friend will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, we know the phrase well. When my noble friend started to list those who are currently being consulted, I thought that this was sticking, again, with the court system. However, he widened that, and I was very pleased to hear confirmation that the importance of the welfare of young people, not just a criminal justice response, is being encapsulated in the consultation going on at the moment. I do not intend to pursue this, but I am glad to have that information and to have the recognition articulated in that way. I beg leave to withdraw the amendment.